Delhi District Court
State Through Cbi V. Bibianus Toppo & Ors vs Dr. Sukumar on 24 December, 2016
State through CBI v. Bibianus Toppo & Ors.
IN THE COURT OF SH. PAWAN KUMAR JAIN,
SPECIAL JUDGE, CBI-01, NORTH-WEST DISTRICT,
ROHINI COURTS COMPLEX, DELHI
IN THE MATTER OF:
CBI No. : 83/16 (Old No. 08/12)
CNR No. : DLNW01-000009-2005
FIR No. : RC- 2(A) to 4 (A)/2004/SCU-V/
CBI/New Delhi
U/Sec: 120B r/w 419/420/467/468/471/474 IPC
13(2) r/w 13(1)(d) of PC Act 1988
12(1) (b) of Passport Act 1967
Police Station: SCR-II/SCU-V/CBI/New Delhi
STATE
THROUGH
CENTRAL BUREAU OF INVESTIGATION,
NEW DELHI
VERSUS
CBI No. 83/16 (old No. 08/12) Page 1 of 219
State through CBI v. Bibianus Toppo & Ors.
1. Bibianus Toppo
S/o Late Joseph Toppo,
R/o H. No. 770, Block No. 11
Baba Kharak Singh Marg,
New Delhi-110001.
..........Accused No. 1
2. Harbhajan Yadav
S/o Late Sultan Singh Yadav,
R/o H. No. 949/1, Gali No. 4,
Ashok Vihar, Gurgaon,
Haryana.
..........Accused No. 2
3. Ram Chander
S/o Sh. Maman Ram,
R/o J-624, Sardar Colony,
Sector 16, Rohini, Delhi-85.
..........Accused No. 3
4. Sushma Bajaj
W/o Sh. Anil Bajaj,
R/o 1851, Outerm Line,
Kingsway Camp,
Delhi.
..........Accused No. 4
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5. Anil Dhawan
S/o Sh. Madan Lal Dhawan,
R/o 254, DDA Flats, 1st Floor,
New Ranjit Nagar,
New Delhi-8.
..........Accused No. 5
6. Naieem Safi
S/o Sh. Late Sh. Saleem Safi,
R/o A-296, DDA Flats,
New Ranjit Nagar,
New Delhi.
..........Accused No. 6
7. Amit Kumar Khatri
S/o Sh. Lekhraj Khatri
R/o Flat No. 113, Kadambari Apartment
Sector-9, Rohini,
Delhi.
..........Accused No. 7
8. Hemant Gandhi
S/o Sh. M. S. Gandhi,
R/o H.No. A-708, Kedar Apartments
Sector-9, Rohini, New Delhi.
(Vide order dated 05.08.2016, accused was
declared absconded)
..........Accused No. 8
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9. Dhiraj Bansal
S/o Sh. J. M. Bansal,
R/o C-1/318, Printers Apartments,
Sector-13, Rohini, New Delhi.
..........Accused No. 9
10. Gopal Singh Naruka
S/o Sh. Devi Singh,
R/o 15A/24, East Patel Nagar,
New Delhi.
..........Accused No. 10
11. Ranjit Singh
S/o Sh. Ram Samunder Yadav
R/o A-149, Shyam Colony,
Budh Vihar, Phase-II,
New Delhi.
..........Accused No. 11
12. Rajesh Kumar Sharma
S/o Sh. Roshan Lal,
R/o Ward No. 13, Chulkana Road,
Samalka Mandi, Distt. Panipat
Haryana.
..........Accused No. 12
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13. R. S. Rawat
S/o Late Sh. Bacchan Singh Rawat
R/o X-258, Sarojini Nagar,
New Delhi
(Proceedings against him were abated on
07.11.2014 on account of death)
..........Accused No. 13
14. G.D. Joshi
S/o Late Sh. K.D. Joshi
R/o K-251, Gali No. 6/B/5,
Mahipal Pur Extn.
Delhi.
(Proceedings against him were abated on
25.10.2016 on account of death)
..........Accused No. 14
15. Dalbir Singh
S/o Sh. Joginder Singh
R/o Village Chasabu,
Tehsil Phillor, Distt. Jalandhar
Punjab.
..........Accused No. 15
16. Jaswinder Singh
S/o Sh. Amrik Singh
R/o Village & PO Bada Pind
Tehsil Phillor, Distt. Jalandhar
Punjab.
..........Accused No. 16
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17. Shweta Dhawan
W/o Sh. Anil Dhawan
R/o 254, DDA Flats, 1st Floor,
New Ranjit Nagar,
New Delhi-8.
(Discharged vide order dated May 29, 2014)
..........Accused No. 17
Date of Institution : 28.12.2005
Date of judgement reserved on : 14.12.2016
Date of pronouncement of judgement : 22.12.2016
Appearance : Sh. Prabhat Kumar, learned Sr. Public
Prosecutor for CBI
Sh. R. Ramachandran, Advocate, counsel for
Bibianus Toppo (A1),
Amit Kumar Khatri (A7), Dhiraj Bansal (A9)
and Jasvinder Singh (A16)
Sh. Sukhwinder Singh, Advocate, counsel for
Harbhajan Yadav (A2), Ram Chander (A3),
Gopal Singh Naruka (A10) and Rajesh Kumar
Sharma (A12)
Sh. Anil Gupta, Advocate, counsel for Sushma
Bajaj (A4)
Sh. Lalit Yadav, Advocate, counsel for
Anil Dhawan (A5) and Naieem Safi (A6)
Ms. Manisha Sharma, Advocate, counsel for
Ranjit Singh (A11) and Dalbir Singh (A15)
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J U D G E M E N T :-
1. In brief facts of the case as disclosed from the charge-sheet are as under:-
(i) It was alleged that on receipt of reliable information, present FIRs were registered under Section 120-B IPC r/w Section 419/420/467/468/471/474 IPC and under Section 13 (2) r/w Section 13 (1) (d) of Prevention of Corruption Act, 1988 (in short PC Act) and Section 12 (1) (b) of Passport Act, 1967 (in short PP Act) on August 27, 2004.
(ii) It was alleged that during the year 2000-04 accused S/Sh. P.K. Kapoor, Superintendent (since deceased), Bibianus Toppo, Superintendent ("A1") and Harbhajan Yadav, UDC ("A2"), who were working in Regional Passport Office (in short RPO), Bhikaji Cama Place, New Delhi entered into a criminal conspiracy with private persons namely Rajesh Vohra s/o Sita Ram r/o 15-A, Om Nagar, Meethapur, Badarpur, New Delhi-110044 and other unknown persons, with the object to cheat RPO, New Delhi and in pursuance of the said conspiracy, a passport and eight other passports in the form of additional passport booklets were issued fraudulently and dishonestly one after another in the name of Mr. Rajesh Vohra by using similar personal particulars of Mr. Rajesh Vohra, but with photographs of eight different persons. It was alleged that though photographs of different persons were used at the time of seeking additional passport booklets, yet copy of original passport booklet bearing No. B-2321175 dated CBI No. 83/16 (old No. 08/12) Page 7 of 219 State through CBI v. Bibianus Toppo & Ors.
July 27, 2000 was used at each occasion.
(iii) It was alleged that Mr. Rajesh Vohra and his wife Mrs. Monisha Vohra submitted their applications for issuance of passport on June 19, 2000. Both the said applications were dealt with in separate Passport file bearing No. A-021424 and A-021429, both dated June 19, 2000.
(iv) It was further alleged that police verification of both the above applicants was entrusted to SI Daya Ram of Special Branch, Delhi Police (since deceased). It was alleged that he had submitted a false verification report in favour of both the applicants despite the fact that the address mentioned in the application forms was not existed. At the time of verification of the applicants, SI Daya Ram also filed the verification slip, which was witnessed by two persons certifying that they knew the applicants, however, both the said witnesses were found untraceable.
(v) On the basis of above said false police verification report, Mr. Rajesh Vohra and his wife Mrs. Monisha Vohra succeeded to get passport bearing No. B-2321175 and B-2321185, both dated July 27, 2000. On the basis of their passports, their minor son Master Ayush Vohra also obtained the passport bearing No. B-5120910 dated 18.04.2001. His date of birth was mentioned as February 17, 2001.
(vi) It was alleged that during investigation, it was revealed that Mr. Rajesh Vohra and his wife Mrs. Monisha Vohra had annexed the copy of ration-card bearing No. 647902 dated October CBI No. 83/16 (old No. 08/12) Page 8 of 219 State through CBI v. Bibianus Toppo & Ors.
14, 1998 purportedly issued from the office of Food & Supply, Okhla Phase-II, New Delhi. However, during investigation, same was found false and fabricated.
(vii) It was alleged that accused Amit Kumar Khatri ("A7") had arranged air-tickets for Mr. Rajesh Vohra, his wife Mrs. Monisha Vohra and his son Master Ayush Vohra through M/s Aero Trek International, New Delhi for the sector Delhi-Moscow-Zurich- Frankfurt-Moscow-New Delhi by Aeroflot Flight.
(viii) It was further alleged that the original passport of Mrs. Monisha Vohra and Master Ayush Vohra and the photographs of Mr. Rajesh Vohra and Master Ayush Vohra were recovered at the instance of accused Hemant Gandhi ("A8")
(ix) It was further alleged that on scrutiny of passports of Mrs. Monisha Vohra and Master Ayush Vohra, it was revealed that they had started their journey on October 06, 2001 from IGI Airport, New Delhi and they reached Zurich on October 07, 2001, but there was no stamp on their passports for having taken return journey. It was alleged that Mr. Rajesh Vohra along with his family stayed back and sent their passports to accused Hemant Gandhi ("A8").
2. It was alleged that accused Anil Dhawan ("A5") moved an application in the name of Mr. Rajesh Vohra for issuance of additional passport booklet on the ground that the pages of previous passport bearing No. B-2321175 had been full. He also annexed self- attested copy of the previous passport along with the application.
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Besides that, he also submitted a request letter, which was in the handwriting of Ms. Shweta Dhawan w/o accused Anil Dhawan (A5). As per charge-sheet, she wrote the application at the directions of A5. The said application was processed in the office of RPO, New Delhi. It was alleged that Mr. P.K. Kapoor, the then Superintendent did not scrutinize the application properly. It was further alleged that Mr. P.K. Kapoor had also given the promise-date i.e. May 28, 2003 on the request letter and at the time of giving promise-date, Mr. P.K. Kapoor obtained the signature of A5 as applicant on the request letter. It was alleged that Mr. P.K. Kapoor allowed A5 to sign on the request letter as 'R. Vohra' in his presence despite the fact that A5 was not the applicant.
(i) It was further alleged that accused Ms. Sushma Bajaj, Assistant, who was posted in HIT section ("A4") cleared the HIT checking in respect of the said application. It was alleged that she did not raise objection deliberately and due to her connivance, file had been processed without any hindrance and accordingly additional passport booklet bearing No. E-5133464 dated May 28, 2003 (in short First Additional Passport Booklet) was issued in favour of a different person on the personal particulars of Mr. Rajesh Vohra.
3. It was alleged that the said application was processed by accused Harbhajan Yadav ("A2") being the counter-clerk and he also made a recommendation for issuance of additional passport booklet and sent the file to P.K. Kapoor, accordingly, Mr. P.K. Kapoor permitted to issue the passport in the form of additional passport booklet.
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(i) On May 28, 2003, accused G.D. Joshi, UDC ("A14") received the passport and he delivered the said additional passport booklet to A5 whose features were entirely different from the feature of the applicant whose photograph was affixed on the passport. It was alleged that A14 had delivered the passport in connivance with A5 and he allowed A5 to write passport number and name of applicant and further allowed him to sign in name of Mr. Rajesh Vohra in the passport delivery register as well as on the passport application form & application for miscellaneous services.
(ii) It was further alleged that on the basis of said additional passport booklet, air-ticket for journey in the name of Mr. Rajesh Vohra was purchased through M/s Kashyap Travels, Connaught Place, New Delhi. During investigation, it was revealed that accused Rajesh Kumar Sharma ("A12") supplied the photocopy of the said additional passport booklet to Mr. Parminder Singh (PW5) of M/s Bandhu Travels, New Delhi for air-ticket for the sector Paris and back. Accordingly, Mr. Parminder Singh got issued air-tickets bearing No. 2504451873146-147 from M/s Kashyap Travels for journey for the sector Ex. Delhi-Tashkent-Paris-Tashkent-Delhi by Flight No. HY-422 dated June 13, 2003 of Uzbekistan Airlines. Accused Rajesh Kumar Sharma ("A12") collected the air-tickets from Mr. Parminder Singh after making payment in cash.
(iii) It was alleged that the identity of the person who travelled on the basis of said additional passport booklet and air- tickets could not be established.
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4. It was alleged that M/s Artistic Handicraft Exports is a partnership firm, but Rajesh Vohra had no relation with the said firm. However, Mr. Harish Chander Kawatra was a partner in the said firm and he used to book air tickets through M/s Jas Air of Mr. Gurinder Singh Walia with whom A5 was working. It was alleged that for the purpose of booking air tickets etc., Mr. Kawatra used to give letter- heads of his firm to M/s Jas Air and accused Anil Dhawan (A5).
(i) It was alleged that an application in the name of Mr. Rajesh Vohra was moved in the office RPO, New Delhi for issuance of additional passport booklet. Along with the application, a request letter was annexed on the letter-head of M/s Artistic Handicraft Exports bearing the signature of Mr. Rajesh Vohra as R. Vohra. It was revealed that the application registration form and passport application for miscellaneous services were filled-up by Ms. Shweta Dhawan at the instance of her husband i.e. accused Anil Dhawan (A5), but she did not sign the same in the name of applicant.
(ii) It was alleged that the passport application was processed by A2 and HIT clearance was done by A4 without pointing out the dissimilarities in the photograph and signature of the original passport holder and the applicant. She also did not point out that one additional passport booklet had already been issued on the strength of original passport bearing No. B-2321175, copy of which was annexed with the application form.
(iii) It was alleged that on the recommendation of A2, additional passport booklet bearing No. E-6330613 dated August 28, CBI No. 83/16 (old No. 08/12) Page 12 of 219 State through CBI v. Bibianus Toppo & Ors.
2003 (in short second additional passport booklet) was issued in the name of Rajesh Vohra, but in favour of a different person.
(iv) It was alleged that accused Naieem Safi (A6) had taken the delivery of second additional passport booklet by signing as R. Vohra on the passport application form and in the passport delivery register.
(v) It was alleged that A12 had supplied the copy of second additional passport booklet duly affixed with visa to Mr. Parminder Singh (PW5) of M/s Bandhu Travels for arranging air tickets for visiting Paris and back. Accordingly, PW5 got issued air tickets bearing No. 2504201895135-136 from M/s Kashyap Travels for journey for the sector Delhi-Tashkent-Paris-Tashkent-Delhi by Flight No. HY-422 dated October 03, 2003 of Uzbekistan Airlines and supplied the air-tickets to A12 after collecting payment in cash from him.
(vi) It was alleged that the identity of the person who travelled on the strength of said passport and air tickets could not be established.
5. It was further alleged that another application was moved for issuance of additional passport booklet in the name of Rajesh Vohra along with a request letter, which was on the letter-head of M/s Transasia Bio-Medicals Ltd., Lucknow, showing that Rajesh Vohra was a partner in the said company. However, during investigation, it was revealed that the said company was not located in CBI No. 83/16 (old No. 08/12) Page 13 of 219 State through CBI v. Bibianus Toppo & Ors.
Lucknow; rather the company had its office in Mumbai and Rajesh Vohra had no connection with the said company.
(i) It was alleged that the passport application registration form and passport application for miscellaneous services had been filled up by A5, but he did not mention about the earlier two additional passport booklets in the said forms. Along with the application, copy of the original passport bearing No. B-2321175 duly self-attested by A5 as R. Vohra was also enclosed.
(ii) It was alleged that the application was received by A2 and he wrote fee amount on the request letter and also affixed various stamps showing that the old passport had been cancelled and returned to the applicant. It was alleged that the accused Bibianus Toppo, Superintendent ("A1") deliberately allowed A5 to sign as R. Vohra in his presence on the request letter and fixed the delivery date as November 14, 2003.
(iii) It was alleged that in HIT Section, the application was dealt with by accused Ram Chander, LDC ("A3"), who intentionally did not point out about the issuance of earlier additional passport booklets despite the fact that details of the same were available in his computer.
(iv) It was alleged that the additional passport booklet bearing No. E-7103221 dated November 14, 2003 (in short Third Additional Passport Booklet) was issued and delivery of the same was taken by A5 from A14 by signing on the passport application form and CBI No. 83/16 (old No. 08/12) Page 14 of 219 State through CBI v. Bibianus Toppo & Ors.
in the passport delivery register as R. Vohra. It was alleged that A14 had full of knowledge that the recipient ("A5") of the additional passport booklet was not Rajesh Vohra.
(v) It was alleged that Ranjit Singh ("A11"), an employee of M/s Pahalwan Travels, Phillaur got air-ticket issued by supplying the photocopy of third additional passport booklet duly affixed with visa issued by the Embassy of Germany.
(vi) It was alleged that the visa application in the name of Rajesh Vohra was filled up in the handwriting of accused Dhiraj Bansal ("A9") and he also signed the application in the name of applicant as R. Vohra. On the basis of said application, German Embassy issued visa No. D-26497286 dated November 19, 2003.
(vii) It was alleged that the air-ticket was got arranged through M/s R.J. Tours and Travels, New Delhi and the payment was made in cash by A11.
(viii) It was alleged that on the basis of third additional passport booklet and the above said air tickets, accused Dalbir Singh ("A15") travelled to UK illegally, accordingly, he was deported to India on August 28, 2004 as he was holding passport in the name of Rajesh Vohra. It was alleged that A15 had utilized the above said additional passport booklet knowingly that the passport was not issued in his name, although his photograph was affixed thereon. It was alleged that A15 had made the payment of ` 4 lacs to accused Gopal Singh Naruka ("A10") through his brother Chandanjit Singh in the presence CBI No. 83/16 (old No. 08/12) Page 15 of 219 State through CBI v. Bibianus Toppo & Ors.
of A11.
6. It was alleged that another application was moved for issuance of additional passport booklet in the name of Rajesh Vohra. Along with the application form, a request letter was also annexed, which was written by accused Ms. Shweta Dhawan at the instance of her husband Anil Dhawan ("A5"), but she did not sign the said request letter. The said request letter was signed by A5. It was further alleged that though the application forms were filled up by A5, but he did not mention about the earlier additional passport booklets issued in the name of Rajesh Vohra. Along with the application forms, he also annexed self-attested copy of original passport bearing No. B- 2321175 dated July 27, 2000.
(i) It was alleged that the application was received by A2 and on the request letter, he wrote fee amount and affixed various stamps showing that the previous passport had been cancelled and returned to the applicant and placed the file before A1, who deliberately allowed A5 to sign the request letter in the name of R. Vohra in his presence and gave promise date as January 30, 2004.
(ii) It was alleged that in the HIT Section, file was dealt with by A3, who deliberately did not point out the dissimilarities in the photograph and signature of the applicant and of the original passport holder and also failed to point out the details of the earlier additional passport booklets.
(iii) It was alleged that accordingly, additional passport CBI No. 83/16 (old No. 08/12) Page 16 of 219 State through CBI v. Bibianus Toppo & Ors.
booklet bearing No. E-7495676 dated January 30, 2004 (in short 4 th additional passport booklet) was issued in the name of Rajesh Vohra, but in favour of a different person. The said additional passport booklet was delivered by A14 to A5 after obtaining his signature on the passport application form and in the delivery register with his full knowledge that the recipient was not Rajesh Vohra, but he was Anil Dhawan.
(iv) It was alleged that A11 got air ticket issued by supplying photocopy of the passport duly affixed visa issued by Embassy of France and air tickets were arranged through M/s R.J. Tours and Travels, New Delhi and the payment was made by him in cash.
(v) It was alleged that the identity of the person who travelled on the strength of said additional passport and air tickets could not be established.
7. It was alleged that M/s Bandejjia & Brothers was having its office at Agra and the said firm had business dealing with M/s Kanu Travels, New Delhi, in which G.S. Walia was one of the directors. Anil Dhawan (A5) was working with G.S. Walia.
(i) It was alleged that another application was moved for issuance of additional passport booklet in the name of Rajesh Vohra. Along with the application, a request letter on the letter-head of M/s Bandejjia & Brothers was also annexed wherein Rajesh Vohra was shown as a partner and the firm was showing working from CBI No. 83/16 (old No. 08/12) Page 17 of 219 State through CBI v. Bibianus Toppo & Ors.
Amritsar, though the said firm had no office in Amritsar and Rajesh Vohra had no connection with the said firm. It was alleged that the letter-head of the said firm was misused by A5.
(ii) It was alleged that the application forms were filled up by accused Anil Dhawan, but he did not mention about the earlier additional passport booklets issued in the name of Rajesh Vohra and he again annexed self attested copy of original passport bearing No. B-2321175 dated July 27, 2000.
(iii) It was alleged that the application was dealt with by A2 and he wrote fee amount on the request letter and affixed various stamps showing that the previous passport had been cancelled and returned. It was alleged that A1 deliberately allowed A5 to sign the request letter in his presence as R. Vohra and gave delivery date as February 06, 2004.
(iv) It was alleged that in the HIT Section, application was dealt with by A3, who deliberately did not point the dissimilarities in the photograph and signature of the applicant and original passport holder and he also did not point out the factum of issuance of earlier additional passport booklets on the basis of said original passport.
(v) It was alleged that consequently additional passport booklet bearing No. E-7710158 dated February 06, 2004 (in short 5 th additional passport booklet) was issued and it was delivered to A5 by A2 after obtaining his signature on the passport application form and in the delivery register with his full knowledge that the recipient was CBI No. 83/16 (old No. 08/12) Page 18 of 219 State through CBI v. Bibianus Toppo & Ors.
not Rajesh Vohra, but he was Anil Dhawan.
(vi) It was alleged that A7 got air tickets issued by supplying photocopy of passport duly affixed with visa of the Embassy of France. Air tickets were arranged through M/s Lynx Tours and Travels, New Delhi and the payment was made in cash.
(viii) It was alleged that identity of the persons who travelled on the strength of the above said additional passport booklet could not be established.
8. It was alleged that another application was moved for issuance of additional passport booklet in the name of Rajesh Vohra. Though the application forms were filled up by A5, but he did not mention about the previous additional passport booklets issued in the name of Rajesh Vohra. Along with the application, he annexed the request and self attested copy of original passport bearing No. B- 2321175 dated July 27, 2000.
(i) It was alleged that the application was dealt with by A2 and he wrote fee amount on the request letter and affixed various stamps showing that previous passport had been cancelled and returned to the applicant. A1 deliberately allowed A5 to sign as R. Vohra on the request letter in his presence and gave promise date as March 26, 2004.
(ii) It was alleged that in the HIT section, application was dealt with by A3, but he deliberately did not point out about the CBI No. 83/16 (old No. 08/12) Page 19 of 219 State through CBI v. Bibianus Toppo & Ors.
dissimilarities in the photograph and signature of the applicant and original passport holder. He also did not point out the factum of issuance of earlier additional passport booklets on the strength of the above said original passport.
(iii) It was alleged that accordingly additional passport bearing No. E-8582540 dated March 26, 2004 (in short 6 th additional passport booklet) was issued and delivery of the same was given to A5 by accused R.S. Rawat, Assistant, RPO ("A13") (since deceased) after obtaining his signature on the passport application form and in the delivery register with full knowledge that the recipient was not Rajesh Vohra, but accused Anil Dhawan.
(iv) It was alleged that A12 got the ticket issued by supplying photocopy of the passport duly affixed with visa by Embassy of France. Air tickets were arranged through Mr. Parminder Singh of M/s Bandhu Travels for visiting Paris and back. Mr. Parminder Singh got issued air ticket bearing No. 2504402084092 from M/s Kashyap Travels for journey Ex.Delhi-Tashkent-Paris-Tashkent-Delhi by Flight No. HY-422 dated April 23, 2004 of Uzbekistan Airlines. It was alleged that A12 had taken the delivery of air ticket from Mr. Parminder Singh after making payment in cash. It was alleged that the identity of the person who travelled on the strength of said passport booklet and air ticket could not be established.
9. It was alleged that another application was moved for issuance of additional passport booklet in the name of Rajesh Vohra. Along with the application, a request letter and self attested CBI No. 83/16 (old No. 08/12) Page 20 of 219 State through CBI v. Bibianus Toppo & Ors.
copy of original passport bearing No. B-2321175 dated July 27, 2000 were annexed. During investigation, it was revealed that the application forms were filled up by A5, but he did not mention about the earlier additional passport booklets issued in the name of Rajesh Vohra.
(i) It was alleged that the application was dealt with by A2, who wrote fee amount on the request letter and affixed various stamps showing that the previous passport had been cancelled and returned to the applicant and sent the file to A1.
(ii) It was alleged that A1 deliberately allowed A5 to sign the request letter as R. Vohra in his presence and gave delivery date as April 06, 2004.
(iii) It was alleged that in the HIT section, application was dealt with by A3, who deliberately did not point out the dissimilarities in the photograph and signature of the applicant and of original passport holder. He also did not point the issuance of earlier additional passport booklets on the strength of said original passport.
(iv) It was alleged that consequently passport bearing No. E-8583581 dated April 07, 2004 (in short 7 th additional passport booklet) was issued and delivered to A5 by A13 after obtaining his signature on the passport application form and in the passport delivery register with full knowledge that the recipient was not Rajesh Vohra, but accused Anil Dhawan.
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(v) It was alleged that A7 got issued air ticket by supplying the photocopy of passport duly affixed with visa. The air ticket was arranged through M/s Lynx Tours and Travels, New Delhi and the payment was made in cash.
(vi) It was alleged that the identity of the person, who obtained the said additional passport booklet was established. It was alleged that accused Jaswinder Singh ("A16") had obtained the said additional passport booklet in the name of Rajesh Vohra and made an attempt to travel on the strength of the said additional passport booklet, but he was apprehended at IGI Airport on May 25, 2004.
(vii) It was alleged that another application was moved in the name of Rajesh Vohra for issuance of additional passport booklet. Along with the application form, a handwritten request letter was annexed, which was written by accused Shweta Dhawan at the instance of her husband Anil Dhawan, but she did not sign on the request letter. Along with the application form, A5 had also annexed self attested copy of original passport bearing No. B-2321175 dated July 27, 2000. Though application forms were filled up by A5, yet he did not mention about the earlier additional passport booklets issued in the name of Rajesh Vohra.
(viii) It was alleged that application was dealt with by A2. On the request letter, A2 mentioned the fee amount and affixed various stamps on the forms showing that previous passport had been cancelled and returned to the applicant.
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(ix) It was alleged that A1 deliberately allowed A5 to sign the request letter as R. Vohra in his presence and gave delivery dated as May 07, 2004.
(x) It was alleged that in the HIT section, file was dealt with by A3, but he deliberately did not point out the dissimilarities in the photograph and signature of the applicant and of original passport holder. He also did not point out the details of the earlier additional passport booklets which were issued on the strength of the above said original passport.
10. It was alleged that consequently additional passport booklet bearing No. E-8577112 dated May 07, 2004 (in short 8th additional passport booklet) was issued and delivery of the same was given to A5 by A13 after obtaining his signature on the passport application form and in passport delivery register with his full knowledge that the recipient of the booklet was not Rajesh Vohra, but accused Anil Dhawan.
(i) It was alleged that A11 got air ticket issued by supplying photocopy of passport duly affixed with visa issued by Embassy of France and air-tickets were arranged through Mr. Parminder Singh of M/s Bandhu Travels for Paris and back. Mr. Parminder Singh got issued air-ticket No. 2504402091664 from M/s Kashyap Travels for journey Ex.Delhi-Tashkent-Paris-Tashkent-Delhi by Flight No. HY-422 dated June 08, 2004 of Uzbekistan Airlines and A11 collected the air-ticket from Mr. Parminder Singh after making payment in cash.
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11. It was alleged that the identity of the person, who travelled to Paris on the strength of the said additional passport booklet was established as Avtar Singh. It was alleged that Avtar Singh is still out of India and his whereabouts are not known. It was further alleged that Jasvinder Singh S/o Sh. Amrik Singh provided the photograph of Avtar Singh to A11 for the purpose of obtaining passport in his name, but A11 obtained passport in the name of Rajesh Vohra by using the photograph of Avtar Singh.
12. It was alleged that from the GEQD report, it has been confirmed that A5 had filled up the application forms for issuance of all additional passport booklets except second and eighth, forms for which were filled up by his wife Shweta Dhawan at his instruction. It was further alleged that A5 had not only filled-up the forms but he also signed the said forms as R. Vohra. It was further alleged that from the GEQD report, it has also been confirmed that A6 had taken the delivery of second additional passport booklet by signing as 'R. Vohra' on the passport application form and in the delivery register.
(i) It was further alleged that from GEQD report, it has also been confirmed that A5 had signed as 'R. Vohra' in the passport delivery register while taking the delivery of third, fifth, sixth, seventh and eighth additional passport booklets. It was further confirmed that Ms. Shweta Dhawan had written the request letter while obtaining first, fourth and eighth additional passport booklets, but she did so at directions of A5.
13. After completing investigation, CBI filed the CBI No. 83/16 (old No. 08/12) Page 24 of 219 State through CBI v. Bibianus Toppo & Ors.
charge-sheet stating that A1 to A16 along with Mr. P.K. Kapoor and SI Daya Ram (since both deceased) entered into a criminal conspiracy with the object to obtain passport and additional passport booklets fraudulently from RPO, New Delhi on the basis of false and forged documents, thus committed the offence punishable under Section 120-B IPC r/w 419/420/468/471 IPC and Section 13 (2) r/w Section 13 (1) (d) of PC Act, 1988 and 12 (1) (b) of Passport Act, 1967 and substantive offences thereto. It was further alleged that due to death, no charge-sheet has been filed against P.K. Kapoor and SI Daya Ram. It was further alleged that since the whereabouts of Rajesh Vohra and Avtar Singh could not be traced out, charge-sheet has not been filed qua them.
(i) Sanction under Section 19 of PC Act was obtained qua public servants i.e. A1 to A4, A13 and A14. However, sanction under Section 15 of Passport Act was obtained against all the accused persons. No charge-sheet was filed against accused Ms. Shweta Dhawan.
14. Though CBI had not filed the charge-sheet against accused Ms. Shweta Dhawan, yet she was summoned by the Court of Ld. Predecessor vide order dated September 08, 2008 for the offence punishable under Section 120-B IPC r/w Section 468 IPC and Section 468 IPC r/w Section 120-B IPC.
15. Vide order dated May 29, 2010, Court of Sh.
Rajnish Bhatnagar, the then Ld. Special Judge-01, CBI held that prima-facie a case is made out against A1 to A16 for the offence CBI No. 83/16 (old No. 08/12) Page 25 of 219 State through CBI v. Bibianus Toppo & Ors.
punishable under Section 120-B r/w 419/420/467/468/471 IPC and Section 13(2) r/w 13(1)(d) of PC Act and Section 12(1)(b) of PP Act and further held that prima-facie a case is also made out against the above said accused persons under Section 12(1)(b) of PP Act. It was further held that prima-facie a case is made out against A1 to A4, A13 & A14 for the offence punishable under Section 13(2) r/w 13(1) (d) of PC Act, 1988. It was further held that prima-facie a case is also made out against A5 for the offence punishable under Section 419/420/468/471 IPC. It was further held that prima-facie a case is also made out against A6 for the offence punishable under Section 468/419 IPC. It was further held that prima-facie a case is also made out against A9 for the offence punishable under Section 468 IPC. It was further held that prima-facie a case is also made out against A1 for the offence punishable under Section 467 IPC.
(i) Pursuant to the order dated May 29, 2010, formal charges were framed on July 30, 2010 against the above said accused persons, to which they pleaded not guilty and claimed trial.
(ii) Vide order dated May 29, 2010, accused Ms. Shweta Dhawan (A17) was discharged from all the charges.
16. In order to bring home the guilt of accused persons, CBI has examined as many as 51 witnesses. For the purpose of our discussion and convenience, the said witnesses have been classified in the following categories:-
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Witnesses from RPO, New Delhi:-
PW1 Sh. Ajai Gautam, Officer of NIC
PW4 Sh. Rajender Singh, posted in Printing &
Scanning Section
PW6 Sh. Tara Dutt Joshi, posted in Printing &
Scanning Section
PW7 Sh. S.P.Kothari, the then Superintendent
PW10 Sh. Puran Chand, posted in Writing &
Scanning Section
PW12 Sh. Rohtas, posted in Writing Section
PW13 Ms. Suman Sehgal, posted in Printing
Section
PW14 Ms. Shakuntla Devi, posted in Index/PAC
Section
PW15 Ms. Sudesh Kumar, posted in Index Section
PW16 Sh. Naved Mustazab, posted in Index/HIT
Section
PW23 Ms. Asha Idani, the then PIA
PW25 Ms. Shashi Bala Sadhna, official of RPO
PW43 Sh. M. S. Thapar, LDC, posted in Allotment
Section
PW50 Sh. I.M.Sabharwal, Superintendent
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Witnesses related to Air Tickets:-
PW3 Sh. B. R. Dogra
PW5 Sh. Parminder Singh
PW8 Sh. Hari Singh
PW11 Sh. Manoj Kumar Yadav
PW17 Sh. Dilip Gupta
PW18 Sh. H. K. Midha
PW20 Sh.H. Rehman
PW21 Sh. Virender Nautiyal
PW26 Sh. K. L. Khurana
PW27 Sh. Ajay Dutta
Witnesses related to accused Anil Dhawan (A5):-
PW2 Sh. G. S. Walia, employer of A5
PW28 Sh. Anup Kumar Gupta
PW29 Ms. Sudha Karan Nair
PW49 Mr. Harish Kawatra
Witnesses related to original passport of Rajesh Vohra and his family members:-CBI No. 83/16 (old No. 08/12) Page 28 of 219
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PW22 Sh. Shyam Sunder Viz, official of Food & Civil
Supply
PW24 ACP Mahavir Singh
PW30 Devish Chand Garg
PW31 Sh. Anil Kumar Jain
PW32 Sh. Mahinder Aggarwal
PW34 Sh. Parvesh Kumar
PW35 Sh. Raj Kumar Sahani
PW36 Sh. Parkash Chand Kalia
PW37 Sh. Rahul Kotnala
PW47 Sh. Ram Mehar
Witness related to accused Rajesh Kumar Sharma (A2):-
PW44 Sh. Jasvinder Singh
Postmen:-
PW9 Sh. Subhash Chander
PW33 Sh. Ram Bharat
Witnesses relating to Sanction :-
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PW41 Sh. Sharat Sabharwal, Additional Secretary
PW42 Sh. R.P.Dash, Joint Secretary
Witnesses relating to specimen writing & GEQD Report:-
PW46 Sh. Mahesh Chander
PW48 Dr. B. A. Vaid, GEQD
Officials from Delhi police:-
PW39 SI Dharam Pal
PW40 SI Kishore Kumar
Witnesses qua Hemant Gandhi:-
PW19 Sh. Joginder Khurana
Witnesses relating to accused Dhiraj Bansal (A9): -
PW38 Sh. A. K. Kapila
Witness qua accused Amit Khatri (A7):-
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PW45 Sh. Mangesh Kumar
CBI officials:-
PW51 Sh. R.K.Aggarwal, the then DSP, Investigating
officer
17. On culmination of prosecution evidence, accused persons were examined under Section 313 Cr.P.C wherein they denied each and every incriminating evidence led by prosecution and submitted that they have been falsely implicated in this case.
(i) A1 submitted that at the relevant time, there was no facility with PIAs to check photographs, signatures and old references of the applicants from their computers. Moreover, previous passport files did not use to be sent to the PIA for perusal and comparison.
(a) At the relevant time, procedure for issuance of additional passport booklet was liberalized by Ministry of External Affairs by issuing various circulars from time to time. Mandate of the said circulars was that additional passport booklet should be issued preferably on the same day or within 3-5 days subject to Index/HIT/PAC clearance. It was urged that since in the present case, there was no adverse report either from HIT or any other Section of RPO, he had issued passports in good faith. It was further submitted that at the relevant time, PIAs were over-burdened and he used to deal with more than 300 files in a day. It was urged that PW7 CBI No. 83/16 (old No. 08/12) Page 31 of 219 State through CBI v. Bibianus Toppo & Ors.
supported his version that the PIAs were over-burdened and files in question were complete in all respects.
(b) It was further submitted that on February 5, 2004 he was on leave, accordingly in the file Ex. PW2/C promise date was given by Ms. Asia. Similarly, on April 15, 2004, PW7 Mr. S. P. Kothari worked as PIA in his absence and he dealt with similar files and passed similar orders but no action was taken against them. Similarly, no action was taken against other PIAs such as Mr. U. S. Lingwal, Mr.Y. K. Kaushal for dealing with similar matters. Accordingly, it was requested to give benefit of doubt on the ground of parity.
(ii) A2 took the plea that no facility was provided to counter-clerk to check the record of previous passport and other particulars as mentioned in the application form. Moreover, in all the applications, applicants pretended that it was their first additional passport booklet. It was urged that he himself became a victim by the acts of vested interest applicants. It was further submitted that whenever he recommended for issuance of additional passport booklet, he did so after seeing the file that PIA had given promise date and HIT was cleared.
(iii) A3 took the plea that when he was posted in HIT Section, his seat was located in open space in a Hall where entry of public persons as well as RPO officials was free. It was urged that sometimes, employees of RPO and public persons used to be present or watched him while opening the computer, so there was every possibility that someone might have noted down his password and CBI No. 83/16 (old No. 08/12) Page 32 of 219 State through CBI v. Bibianus Toppo & Ors.
misused the same by giving HIT clearance in the files.
(iv) A4 took the plea that she has been falsely implicated in this case in collusion with one Charanjeet Singh, who has been charge-sheeted in passport scam cases and facing trial in Patiala House Court. It was further submitted that during investigation, she had disclosed this fact to the investigating officer and also made several complaints to senior officers for misuse of her P number and password, but no action was taken on her complaint. It was submitted that she had never dealt with files in question. It was further submitted that prior to 2004, there was no facility in the computer to check photograph and signature of applicants.
(v) A5 & A6 submitted that they had no concern with the applications in question and they have been falsely implicated in this case to save the real culprit.
(vi) A7 took the plea that he has been falsely implicated in the present matter and he had not undertaken any work in this case.
(vii) A9 took the plea that he had not submitted any application for issuance of passport in the name of Rajesh Vohra; nor he obtained air-tickets for the passport holders. Though a raid was conducted at his house, yet nothing incriminating was recovered from his house, which may connect him with the present case. It was further submitted that he had neither submitted nor signed the visa application of Rajesh Vohra. He had not taken any visa work in the CBI No. 83/16 (old No. 08/12) Page 33 of 219 State through CBI v. Bibianus Toppo & Ors.
present case. Even his specimen writing was also not taken by the investigating officer. It was further submitted that as per CBI version, PW Mr. Chandanjit Singh, brother of accused Dalbir Singh had seen the person who arranged travel documents for accused Dalbir Singh (A15), but the said witness had not made any allegation against him.
(viii) A10 submitted that he has been falsely implicated in this case.
(ix) A11 submitted that he has been falsely implicated in this case and further submitted that he had never resided in a hotel or any other place in Delhi. It was further urged that he never possessed/owned/used mobile phone as mentioned in Ex. PW51/O and Ex. PW51/P and further submitted that he did not know any person in the office of R.J Tours and Travels and he never visited the said company at any point of time.
(x) A12 submitted that he has been falsely implicated in this case.
(xi) A14 also submitted that he has been falsely implicated in this case.
(xii) A15 submitted that he is a victim in the hands of unknown persons, who sent him abroad on the basis of fake passport as he was less educated person. He further submitted that he never supplied wrong information to anyone for going to abroad. It was further submitted that he did not know about the detail of his passport CBI No. 83/16 (old No. 08/12) Page 34 of 219 State through CBI v. Bibianus Toppo & Ors.
when he boarded the plane.
(xiii) A16 submitted that he has also been arrested by Delhi Police in case FIR No. 224/2004 PS IGI Airport for the same allegations. It was further submitted that he has been falsely implicated by Delhi police as well as CBI and further urged that both the agencies are trying to get him punished twice for the same acts. It was further submitted that he had not committed any offence.
18. During their examination under Section 313 Cr.P.C, A1, A7, A9, A11 and A16 submitted that they would lead evidence in their defence. In order to prove their innocence, A1 and A7 examined two witnesses, namely DW1 Sonu Datt, Ahlmad of the Court and DW2 Prince Raushan, Junior Passport Assistant. Other accused refused to lead any evidence in their defence. Accordingly, their defence evidence was closed on September 27, 2016.
(i) During the pendency of trial, accused Hemant Gandhi (A8) was declared absconded vide order August 5, 2016. Since, during trial, accused R.S.Rawat and G.D.Joshi expired, proceedings qua them were abated vide orders dated November 7, 2014 and October 25, 2016 respectively.
Contentions relating to accused Anil Dhawan (A5) and Naieem Safi (A6):-
19. Shri Prabhat Kumar, learned Senior Public Prosecutor for CBI raised following contentions:-
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(i) That accused Anil Dhawan (A5) was an employee of PW2 Gurinder Singh Walia. It was further submitted that PW2 identified the handwritings of A5 on various documents including application forms which were submitted at the time of seeking additional passport booklets from time to time.
(ii) That PW2 also proved the admitted writing of accused Anil Dhawan ("A5") on some pages of Day Book (Ex.PW9/G) and deposed that the writings Mark A1 to A17 are in the handwriting of A5. PW2 also identified the writings of accused Anil Dhawan on the application form of Kanu Priya Gombar and Padmini Malpani, which were marked as A18 to A23.
(iii) That in addition to the above, accused Anil Dhawan ("A5") had also taken the delivery of five additional passport booklets by making an entry and signing in the passport delivery register in the name of applicants and the said writings are marked as Mark Q124, Q130 to Q137. It was further urged that the said writings were also identified by PW2 as the writing of A5, thus it was argued that this proves that additional passport booklets were received by accused Anil Dhawan.
(iv) It was urged that though no authority was given to A5 by the applicants, but despite that he had taken the delivery of above said passport booklets after putting the signature of applicants.
It was further argued that at the time of taking delivery of additional passport booklets, A5 had also acknowledged the receipt of booklets in the respective passport files. The said acknowledgments are CBI No. 83/16 (old No. 08/12) Page 36 of 219 State through CBI v. Bibianus Toppo & Ors.
separately marked as Q38/1, Q70, Q81/1, Q94 and Q112. It was further argued that during investigation, specimen writings and signatures of A5 were taken and the same are marked as S1 to S134. As per the GEQD report, the same were tallied with the questioned writings and signatures.
(v) That from the deposition of PW2 and GEQD report Ex.PW48/B, it has been established that A5 had not only filled up the forms at the time of obtaining addition passport booklets in fictitious names, but he had also forged the signatures of applicants on the said forms as well as on the supporting documents.
(vi) That accused Anil Dhawan ("A5") is also liable for the offence punishable under Section 419/420/471 IPC and Section 12 (1) (b) of Passport Act besides the charge of conspiracy.
20. Mr. Lalit Yadav, Advocate, counsel appearing for the accused Anil Dhawan ("A5") countered the said contentions as under:-
(i) That PW2 admitted in his deposition that a raid was conducted at his premises and numerous incriminating articles were recovered from his premises including various passports and blank letterheads of different companies, but instead of impleading PW2 as an accused, investigating officer in collusion with PW2 falsely implicated Anil Dhawan ("A5") in order to save PW2.
(ii) That due to collusion between investigating officer CBI No. 83/16 (old No. 08/12) Page 37 of 219 State through CBI v. Bibianus Toppo & Ors.
and PW2, investigating officer had not deliberately verified how PW2 possessed the blank letterheads of different companies. Similarly, he did not try to verify about the clients of PW2. It was submitted that in the absence of any such verification, it cannot be ruled out that the applicants qua which A5 has been charge-sheeted, were the clients of PW2. It was further submitted that even no attempt was made to interrogate Padmini Malpani and Kanu Priya Gombar to ascertain whether they had ever asked A5 to fill up their alleged forms.
(iii) That prosecution has set up a case against Anil Dhawan ("A5") that he was an employee of PW2, but during trial prosecution failed to produce any documentary evidence to prove this fact. It was argued that in the absence of any documentary evidence, it can not be said that A5 was an employee of PW2.
(iv) That though prosecution has placed strong reliance on the deposition of PW2 wherein he identified certain questioned writings as the writing of Anil Dhawan ("A5"), but no reliance can be placed on the said piece of evidence as PW2 is not an expert to identify the writing of any person.
(v) That no reliance can be placed on the alleged admitted writing i.e. marked as A1 to A23 because there is no evidence on record that the said writings were ever admitted by accused Anil Dhawan (A5).
(vi) That during investigation, investigating officer had not taken any specimen writings of PW2 deliberately and intentionally CBI No. 83/16 (old No. 08/12) Page 38 of 219 State through CBI v. Bibianus Toppo & Ors.
to favour him. It was argued that had investigating officer taken the specimen writings of PW2, it would have also been matched with some questioned writings.
(vii) That since the alleged specimen writings of A5 were not taken with the prior permission of the concerned Illaka Magistrate, no reliance can be placed on the said piece of evidence. It was further argued that no conviction can be recorded solely on the uncorroborated GEQD report.
21. Learned counsel submitted that there is no iota of admissible evidence against accused Naieem Safi (A6) except alleged specimen writing and GEQD report. It was further submitted that no effort was made even to collect the admitted writing of A6. It was further submitted that the alleged specimen writing was not even taken with the permission of the concerned Court or Illaka Magistrate.
(i) Per contra, learned Senior Public Prosecutor for CBI refuted the said contentions by arguing that from the GEQD report, it has been established that A6 had taken the delivery of second additional passport booklet by forging the signature of applicant in the passport delivery register.
22. In support of his contentions that no reliance can be placed on the uncorroborated report of GEQD, counsel placed reliance on the following citations:-
(i) Malay Kr. Ganguly v/s. Dr. Sukumar Mukherjee & others (2009) 9 Supreme Court CBI No. 83/16 (old No. 08/12) Page 39 of 219 State through CBI v. Bibianus Toppo & Ors.
Cases 221;
(ii) Sujit Biswas v/s. State of Assam, 2013 (5) LRC 133 (SC);
(iii) State of Maharashtra v/s. Dnyaneshwar Laxman Rao Wankhede, (2009) 12 SCR 513; (iv) State (G.N.C.T) of Delhi v/s. Saqib Rehman @ Masood & Ors. 2012(3) JCC 2127; (v) Sapan Haldar & Anr. V/s. State 2012 VIII AD (Delhi) 533 ; (vi) Sandeep Dixit v/s. State, 2013 I AD (Delhi) 407; (vii) Fakhruddin v/s. State of M. P, AIR 1967 SC 1326; (viii) Ram Chandra v/s. State of U. P, AIR 1957, SC 381; (ix) Ishwari Parsad Misra v/s Mohammd Isa, AIR 1963 SC 1728; (x) Shashi Kumar Banerjee v/s Subhodh Kumar Banerjee, AIR 1964 SC 529; (xi) Raghu v/s Rajendra Kumar, 2002 (3) KLT 945 (Kerala); (xii) Piara Singh v/s. Jagtar Singh & others, AIR 1987 P & H 93; (xiii) Thyseen Stallunjon Gmbh v/s SAIL, 96 (2002) DLT 515; (xiv) Ameer Mohd. v/s Barket Ali, AIR 2002 Rajasthan 406. CBI No. 83/16 (old No. 08/12) Page 40 of 219 State through CBI v. Bibianus Toppo & Ors. Findings qua accused Anil Dhawan (A5):-
23. First question emerges from the submissions advanced by counsel for both the parties; whether accused Anil Dhawan ("A5") was working with PW2 Mr. Gurinder Singh Walia or not?
(i) In this regard, the testimony of PW2 Mr. Gurinder Singh Walia and PW51 Mr. R.K. Aggarwal, investigating officer are relevant.
(ii) PW2 Mr. Gurinder Singh Walia in his examination- in-chief deposed that since 1991, he was running a company in the name and style of M/s Kanu Travels Care Pvt. Ltd., in which he was one of the directors. When the said company was closed, he started a new firm in the name and style of M/s Jas Air in the year 2002. He further deposed that accused Anil Dhawan was working in his company named M/s Kanu Travels Care Pvt. Ltd. and continued to work with him in his new firm M/s Jas Air. He further deposed that the duty of accused Anil Dhawan was to provide assistance to clients in getting visa and passport. Further, he was also required to deliver air- tickets to the clients and to collect payments from them. He further testified that A5 used to visit various Embassies and Passport offices in this regard. He further testified that accused Anil Dhawan worked with him for about nine years and due to that reason, he could identify his handwritings and signatures.
(iii) PW2 was cross-examined at length. In his cross-
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examination, he clarified that initially M/s Jas Air was a partnership firm wherein his wife was partner with him. But later on, the firm was converted into a sole proprietorship. Consequently, he became the sole proprietor of the said firm. In his cross-examination, he admitted that he had not furnished any bank account or document to CBI to show the strength of his employees, but furnished an explanation that he had only one employee i.e. accused Anil Dhawan. In his cross- examination, he further admitted that he used to pay salary to accused Anil Dhawan through cheque but he did not supply the same to the CBI.
(iv) PW51 in his cross-examination admitted that no document regarding the employment of accused Anil Dhawan was recovered during the search conducted at the house of PW2.
(v) PW51 corroborated the testimony of PW2 by deposing that accused Anil Dhawan was the employee of PW2. Though in his statement recorded under Section 313 Cr.P.C, accused Anil Dhawan did not admit that he was an employee of Mr. G. S. Walia, but he failed to disclose where he was working during the said period, if not working with Mr. G. S. Walia. He further failed to explain what was his relation with Mr. G. S. Walia, if there was no relationship of master and servant between them.
(vi) PW2 in his cross-examination admitted that CBI officials told him if accused Anil Dhawan could not be arrested, they (CBI) would arrest him. He further clarified that CBI officials released him when they saw that the additional passport booklet files were in CBI No. 83/16 (old No. 08/12) Page 42 of 219 State through CBI v. Bibianus Toppo & Ors.
the handwritings of accused Anil Dhawan. On the basis of said deposition, it was submitted that CBI had falsely implicated accused Anil Dhawan at the behest of PW2, but I do not find any substance in the said contention. Mere fact that CBI officials told PW2 if, accused Anil Dhawan could not be arrested, CBI would arrest him, in the absence of any cogent evidence on record, it is not sufficient to establish that CBI had falsely implicated accused Anil Dhawan in this case. Further, the deposition of PW2 that CBI officials told him that they would arrest him if they failed to arrest accused Anil Dhawan shows that there was some relations between PW2 and A5. As per the testimony of PW2, the said relationship was of employer and employee. Since, accused Anil Dhawan failed to furnish any other relationship between him and PW2, in the absence of any cogent evidence, I do not find any reason to disbelieve the deposition of PW2 wherein he deposed that accused Anil Dhawan was his employee and he worked with him for about nine years.
24. Second question emerges from the submissions advanced by the counsels for the parties; whether PW2 is the competent person to identify the handwritings of A5 or not?
(i) As already discussed that A5 was an employee in the firm/company of PW2 and he worked with PW2 for a long period of nine years, thus PW2 had sufficient opportunity to see A5 to write and sign. Thus, the testimony of PW2 wherein he identified certain handwritings of A5 becomes relevant under Section under Section 47 of Indian Evidence which reads as under:-
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47. Opinion as to handwriting, when relevant
- When the Court has to form an opinion as to the person by whom any document was written or signed, the opinion of any person acquainted with the handwriting of the person by whom it is supposed to be written or signed that it was or was not written or signed by that person, is a relevant fact.
Explanation - A person is said to be acquainted with the handwriting of another person when he has seen that person write, or when he has received documents purporting to be written by that person in answer to documents written by himself or under authority and addressed to that person, or when, in the ordinary course of business, documents purporting to be written by that person have been habitually submitted to him.
(emphasis supplied)
(ii). In view of Section 47 of Indian Evidence Act, I do not find any substance in the contention raised by learned defence counsel that since PW2 is not an expert, no reliance can be placed on his deposition wherein he identified certain writings of Anil Dhawan ("A5").
25. Next question crops up for adjudication whether the recovered 'Day Book' belonged to M/s Jas Air or not? If yes, from whom the same was recovered. In this regard, the testimony of PW2 is relevant.
(i) As per prosecution version, a raid was conducted at the premises of PW2 and during said raid, certain articles including CBI No. 83/16 (old No. 08/12) Page 44 of 219 State through CBI v. Bibianus Toppo & Ors.
the Day Book (Ex. PW9/G) were recovered. In his cross-examination, PW2 admitted that the said Day Book was recovered by the CBI during the raid conducted at his premises and further admitted that there was no stamp of his firm on the said Day Book. He further admitted that the said Day Book was written in the handwriting of several persons including him. He also admitted that such type of Day Books are easily available in the market. On the basis of his deposition, it was argued that there is no evidence on record that the said Day Book belonged to M/s Jas Air. But, it is pertinent to mention here that during his cross-examination, even no suggestion was given to the witness that the said Day Book did not belong to him. Mere fact that the Day Book does not bear the seal of the firm is not sufficient to hold that the same did not belong to PW2.
(ii) Further, from the deposition of PW2, it can safely be culled out that he was running a very small firm as only one employee i.e. Anil Dhawan (A5) was working with him. In such a small firm, if the Day Book is not bearing the name of the firm or its seal is not sufficient to hold that the Day Book did not belong to the firm.
26. Now coming to the next limb of arguments whether PW2 had identified the handwritings/signatures of A5 or not?
(i) PW2 in his examination-in-chief identified certain following questioned writings as the writing of accused Anil Dhawan (A5):-
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QUESTIONED NAME OF EXHIBITS
WRITINGS DOCUMENTS
Q35 to Q50 Ex.PW2/A and
Ex.PW7/E
Q52, Q53, Q54, Ex.PW2/B,
Q55, Q56, Q57, Ex.PW7/G, Ex.
Q59, Q60, Q60/1, Passport Application PW7/F and Ex.
Q61, Q62 to Q66 Registration Form and PW7/G
Application Form of Misc.
Services on Indian
Passport
Q68, Q69, Q71 to Ex.PW2/C,
Q75, Q75/1, Q76 Ex.PW7/H, Ex.
and Q77 PW7/I and Ex.
PW7/J
Q78, Q79, Q80, Ex.PW6/C,
Q81, Q81/1, Q82, Ex.PW7/K, Ex.
Q83, Q83/1, Q84 PW7/L and Ex.
to Q91 PW7/M
Q92, Q92/1, Q93 Ex.PW4/D,
to Q106, Q106/1, Ex. PW7/N, Ex.
Q107 and Q108 PW7/O and Ex.
PW7/P
Q109 to Q112, Ex.PW6/E,
Q115 to Q118, Ex.PW7/S, Ex.
Q118/1, Q119 to PW7/T and Ex.
Q123 PW7/R
CBI No. 83/16 (old No. 08/12) Page 46 of 219
State through CBI v. Bibianus Toppo & Ors.
Q1 to Q15 Ex.PW4/A, Ex.
PW7/A and Ex.
PW7/B
Q16 to Q19, Ex.PW4/C, Ex.
Q20/1, Q21 to PW7/C and Ex.
Q34 PW7/D
A1 to A4, A14 to Original Day Book Ex. PW9/G
A17
A18 to A21 Original Passport Ex. PW2/D
Application Forms of M/s
Kanu Priya Gomber
A22 and A23 Immigration Forms in the Ex. PW2/E
name of Padmini Malpani
(ii) From the above questioned writings, writings
marked Q35, Q37, Q41 to Q50, Q53, Q54, Q59, Q60, Q60/1, Q62 to Q65, Q69, Q70, Q74, Q75, Q75/1, Q76, Q77, Q78, Q80, Q81/1, Q83, Q83/1, Q84 to Q90, Q92/1, Q93, Q94, Q98 to Q108, Q106/1, Q109, Q111, Q112, Q116, Q117, Q118, Q118/1, Q119 to Q123, Q2, Q3, Q7, Q8 to Q15, Q16, Q19, Q20 Q23, Q24 to Q34 are the signatures in CBI No. 83/16 (old No. 08/12) Page 47 of 219 State through CBI v. Bibianus Toppo & Ors.
the name of 'R. Vohra' and same are identified by PW2 as the writings of A5.
(iii) The other questioned writings as mentioned in the above said table are on the Passport Application Registration Forms, Application Forms for Miscellaneous Services on Indian Passport and request letters, which were submitted from time to time in the name and personal particulars of Rajesh Vohra, but with the photographs of different persons. The said writings were also identified by A2 as the writings of A5.
(iv) In other words, as per the testimony of PW2, A5 had not only filled up the Applications Forms in the name and personal particulars of Rajesh Vohra, but he also signed in the name of 'R. Vohra' not only on the forms but on the supporting documents also.
Perusal of the said forms reveals that on each occasion, photograph of different person was pasted on the forms despite the fact that the forms were filled up in the name and personal particulars of Rajesh Vohra.
(v) In his cross-examination, PW2 admitted that he did not possess any diploma/degree/course/certificate in the field of handwriting. He further testified that A5 had filled up 1-2 forms of his clients in his presence and further clarified that except the said forms, A5 had not filled up the forms of any other client/customer in his presence. PW2 fairly conceded that the forms in the files Ex. PW2/A, Ex. PW2/B, Ex. PW2/C, Ex. PW4/A, Ex. PW4/C, Ex. PW4/D, Ex. PW6/C and Ex. PW6/E were not filled up in his presence. But, to my CBI No. 83/16 (old No. 08/12) Page 48 of 219 State through CBI v. Bibianus Toppo & Ors.
mind, the said deposition is not helpful to A5 in any manner as PW2 clarified in his deposition that A5 had worked with him for about nine years and due to that reason he had seen him to write and sign during his employment. Since, A5 had worked with PW2 for a quite long time, thus, it can safely be culled out that PW2 had sufficient opportunity to observe the handwriting and signatures of A5. Thus, merely fact that the forms in the above said files were not filled up in the presence of PW2 is not sufficient to discard the testimony of PW2 wherein he identified the writings/signatures of A5.
(vi) During the cross-examination of PW2, a question was put to him whether Q37, Q38, Q41 to Q50 in the file Ex. PW2/A were in the handwriting of A5 as he deposed in his testimony on July 27, 2015. He replied that the same were in the handwriting of A5. He further deposed that in the above said questioned writings, A5 had signed in the name of Rajesh Vohra. But fairly conceded that the said signatures were not made by A5 in his presence. This shows that PW2 had reiterated his testimony that he could identify the handwriting and signature of A5. Mere fact that the above said questioned writings were not made by A5 in the presence of PW2 is not sufficient in any manner to discard his testimony. Had the signatures been made in the presence of PW2, it would show that PW2 had a knowledge that A5 had signed in the name of applicant and in that situation probably PW2 would be in dock. Mere fact that A5 had not signed the above questioned signatures in the presence of PW2 is not sufficient to discard the testimony of PW2.
(vii) Though PW2 was cross-examined at length but no CBI No. 83/16 (old No. 08/12) Page 49 of 219 State through CBI v. Bibianus Toppo & Ors.
other question was put to him to establish that either PW2 was not in a position to recognize the handwriting of A5 or that there are some inherent defects in his testimony. In the absence of any such evidence on record, I do not find any reason to disbelieve the testimony of PW2 wherein he identified the questioned writings, details of which is given in the above said table.
(viii) From the deposition of PW2, it is established that A5 had not only filled up the forms in the name and personal particulars of Rajesh Vohra from time to time. But, he also signed the said forms and supporting documents including request letters in the name of R. Vohra. As already stated that though all the forms were filled up in the name and personal particulars of Rajesh Vohra, yet on each occasion the photographs of a different person was pasted on the said forms and on the supporting documents i.e. copies of the previous passport bearing No. B-2321175.
27. Now coming to the admitted and specimen handwritings.
(i) PW2 in his examination-in-chief also identified the handwritings of A5 in the Day Book (Ex. PW9/G) and the said writings were given Mark A1 to A4, A14 to A17. He further identified the handwritings of A5 on the Passport Registration Forms of Ms. Kanu Priya Gombar and the said writings were given Mark A18 to A21 and the form is exhibited as Ex. PW2/D. He also identified the writings of A5 on the Immigration Application Form of Ms. Padmini Malpani and the said writings were given Mark A22 and A23. The form is Ex.
CBI No. 83/16 (old No. 08/12) Page 50 of 219State through CBI v. Bibianus Toppo & Ors.
PW2/E.
(ii) As already discussed that the Day Book Ex.PW9/G belonged to PW2, who in his cross-examination admitted that the Day Book was written in the handwriting of several persons, but despite that PW2 identified the handwriting of A5. This shows that witness is truthful and he did not unnecessarily attribute more role to A5.
(iii) During his cross-examination, PW2 fairly conceded that Gombar Kanu Priya and Padmini Malpani were available and the said forms were recovered in the raid conducted at his premises. But here the question is not whether the said forms were recovered in the raid or not. But, real question is whether the said forms are in the handwriting of A5 or not? PW2 categorically deposed that the said forms are in the handwriting of A5.
(vi) No doubt, CBI claimed that the writings Mark A1 to A4 and A14 to A23 are admitted writings of A5. But, there is nothing on record which may show that the said writings were ever admitted by A5 either during investigation or during trial. In the absence of any such evidence on record, it cannot be said that same were admitted writings of A5. Since, the said writings were identified by PW2 as the writings of A5, the testimony of PW2 in this regard is relevant in terms of Section 47 of Evidence Act.
28. During investigation CBI had also taken the specimen writings of A5 which are marked as S-1 to S-134 and the same are exhibited as Ex. PW51/G (colly.), Ex. PW46/B (colly.) and CBI No. 83/16 (old No. 08/12) Page 51 of 219 State through CBI v. Bibianus Toppo & Ors.
Ex. PW51/H (colly.). Perusal of the said specimen writings reveals that the same were taken on different dates i.e. October 14, 2004; October 15, 2004; October 16, 2004; May 12, 2005 and May 20, 2005. It further reveals that the specimen writings allegedly taken on May 12, 2005 was taken in the presence of one independent witness namely Mr. Mahesh Chander (PW46) whereas specimen writings allegedly taken on May 20, 2005 was taken in the presence of Mr. S.P.Kothari (PW7). The specimen writings allegedly taken on October 15, 2004 and October 16, 2004 were taken in the presence of Mr. G. S. Walia (PW2). The specimen writings allegedly taken on October 14, 2004 was allegedly taken in the presence of PW Braham Pal, independent witness. During trial, prosecution deemed it appropriate to examine PWs Mr. G. S. Walia, Mr. S. P. Kothari and Mr. Mahesh Chander to prove the alleged specimen writings. Perusal of the deposition of PW2 and PW7 makes it clear that they had not uttered even a single word against the alleged specimen writings. They nowhere deposed that they were ever called by the investigating officer in his office at the time of taking the alleged specimen writings of A5. CBI did not deem it appropriate to examine Mr. Braham Parkash to establish the fact that any such specimen writings of A5 had ever been taken in his presence.
(i) No doubt CBI had examined PW46 Mr. Mahesh Chander to prove the specimen writings, but he did not support the prosecution case in any manner by deposing that when he reached CBI office, he was called in the room of Mr. R. K. Aggarwal (PW51) where 3-4 CBI officers were already sitting with him. He further testified that when he went inside the room, he was asked to sign CBI No. 83/16 (old No. 08/12) Page 52 of 219 State through CBI v. Bibianus Toppo & Ors.
certain papers and he clarified that no public person was present in the said room at that time and further clarified that the specimen writings of no person was not taken in his presence. He further explained that he signed on the Ex. PW46/A and Ex. PW46/B at the request of Mr. R. K. Aggarwal (PW51). Since, PW46 did not support the prosecution version, he was got declared hostile and cross- examined by learned Sr. Public Prosecutor appearing for the CBI. In his cross-examination, he deposed that he never met either with accused Anil Dhawan or Dhiraj Bansal and denied the suggestion that their specimen writings were ever taken in his presence. He categorically deposed that the above said persons namely Anil Dhawan and Dhiraj Bansal never met him during his visit to the CBI office and the said persons had never been asked to give their specimen writings/signatures in his presence. From the deposition of PW46, it becomes crystal clear that the specimen writings of Anil Dhawan and Dhiraj Bansal were not taken in his presence and he signed the specimen writings Ex. PW46/A and Ex. PW46/B at the request of Mr. R. K. Aggarwal.
(ii) No doubt PW51 in his examination-in-chief deposed that during investigation he had taken the specimen writings of accused Anil Dhawan on the above said dates and further clarified that he had also taken the specimen writings of Naieem Safi on December 2, 2004 and December 3, 2004. He testified that specimen writings of accused Anil Dhawan were taken in the presence of independent witnesses namely Mr. Braham Pal, Mr. G. S. Walia, Mr. Mahesh Chander and Mr. S.P.Kothari. During his cross-examination, he denied the suggestion that accused Anil Dhawan had not given his CBI No. 83/16 (old No. 08/12) Page 53 of 219 State through CBI v. Bibianus Toppo & Ors.
specimen writings to him or that the above said specimen writings were in fact of Mr. G. S. Walia, which he manipulated and shown as the specimen writings of accused Anil Dhawan.
(iii) Except the deposition of PW51, there is no other evidence on record which may show that accused Anil Dhawan had given his specimen writings. There is no explanation on the part of CBI why they had not examined the independent witness namely Mr. Braham Pal in whose presence some of the alleged specimen writings were taken. Similarly, there is no explanation from CBI, why the alleged specimen writings were not put to PW2 and PW7 when they graced the witness box. This shows that the CBI had deliberately withheld relevant witness i.e. PW Braham Pal from this Court without any reasonable explanation, hence, presumption shall be drawn against the CBI that if, witness be produced, he would not have supported the CBI version as PW46, PW2 & PW7 had not supported the prosecution version on the aspect of specimen writings.
(iv) Infact, there is no iota of admissible evidence on record except the deposition of PW51 that A5 had ever given his specimen writings to the investigating officer i.e. Mr. R. K. Aggarwal (PW51). Further, there is no explanation, why Mr. R. K. Aggarwal had taken the specimen writings of A5 on different five dates. Since, the accused had specifically taken the plea that he had not given his specimen writings to the investigating officer and infact the alleged specimen writings were the writings of Mr. G.S. Walia, in the absence of any other cogent evidence, I am of the considered opinion that the testimony of PW51 is not sufficient to prove the fact that specimen CBI No. 83/16 (old No. 08/12) Page 54 of 219 State through CBI v. Bibianus Toppo & Ors.
writings Mark S1 to S134 is the specimen writings of A5. In other words, CBI has miserably failed to prove the specimen writings of A5, accordingly same cannot be used to prove the guilt of A5.
29. As already discussed that from the testimony of PW2, it is established that A5 had not only filled up the forms for additional passport booklets in the name and personal particulars of Rajesh Vohra, but he also signed on the said forms, supporting documents and on the request letters enclosed with the forms in the name of applicants i.e. Rajesh Vohra. As already discussed that on the said forms, the photographs of different persons were affixed in order to get additional passport booklets in the name and personal particulars of Rajesh Vohra. Since, it has been established that A5 had filled up the forms and signed in the name of applicants i.e. Rajesh Vohra, in terms of Section 106 of Evidence Act, onus is shifted upon A5 to explain under which circumstances he had filled up and signed the said forms. But during trial, he failed to produce any evidence in this regard. In the absence of any contrary evidence on record, I do not find any reason to disbelieve the testimony of PW2.
(i) Since A5 had filled up the forms in the name and personal particulars of Rajesh Vohra from time to time but with the photographs of different persons and also signed the forms and supporting documents in the name of applicants in order to get additional passport booklets in the name and personal particulars of Rajesh Vohra. A5 by his above said acts, dishonestly induced RPO, New Delhi to issue additional passport booklets in the name and personal particulars of Rajesh Vohra in favour of the persons whose CBI No. 83/16 (old No. 08/12) Page 55 of 219 State through CBI v. Bibianus Toppo & Ors.
photographs were affixed on the passports. Thus, A5 is liable for the offence punishable under Section 420 IPC.
(ii) Since A5 had signed the forms and supporting documents in the name of applicants i.e. Rajesh Vohra in order to get additional passport booklets in favour of persons whose photographs were pasted on the forms knowingly well or having sufficient reasons to believe that the said persons were not Rajesh Vohra, A5 had committed forgery. Since, forgery had been committed to cheat RPO, New Delhi, A5 is also liable for the offence punishable under Section 468 IPC.
(iii) Since, the said forms and supporting documents were submitted in the office of RPO in order to get additional passport booklets, knowingly well that the persons whose photographs were affixed on the said forms were not Rajesh Vohra and the said forms were not signed by Rajesh Vohra, A5 is also liable for the offence punishable under Section 471 IPC r/w Section 468 IPC.
(iv) Though a separate charge under Section 419 IPC has also been framed against A5 alleging that he had taken the delivery of five additional passport booklets by representing himself as Rajesh Vohra and at the time of taking delivery, he had signed in the passport delivery register as Rajesh Vohra, but during trial, CBI failed to produce any evidence whatsoever to establish the fact that A5 had impersonated himself as Rajesh Vohra or he had signed in the delivery register in the name of Rajesh Vohra. Even the questioned writings, which were allegedly made by A5 in the delivery register CBI No. 83/16 (old No. 08/12) Page 56 of 219 State through CBI v. Bibianus Toppo & Ors.
were not shown to PW2 during his examination. Infact there is no evidence to establish that the questioned writings Mark 124, 130, 131, 132, 133, 134, 135, 136 and 137 were in the handwritings of A5. No doubt, GEQD had given the opinion that the author of the said writings and specimen writings i.e. marked S1 to S27, S67 to S134 are one and the same person, but since CBI failed to prove the specimen writings in accordance with law, same cannot be used for the purpose of comparison.
(v) No doubt, GEQD in his report Ex. PW48/B also opined that the author of certain questioned writings and specimen writings Mark S1 to S27 and A1 to A23 was one and the same person. Similarly, GEQD in his report Ex. PW48/F opined that the author of certain questioned writings and specimen writings Mark S1 to S27, S67 to S134 and A1 to A23 was one and the same person. As already discussed that A1 to A14 are specimen writings in the Day Book Ex. PW9/G whereas A18 to A23 are specimen writings on the forms Ex PW2/D and PW2/E.
30. Perusal of the Day Book Ex. PW9/G reveals that certain names were mentioned in the Day Book, which were given Mark A1 to A17. From these 17 writings, PW2 identified A1 to A4, A14 to A17 as in the writing of A5. Perusal of these writings reveals that these are the name of certain persons other than Rajesh Vohra and there is no similarities between the name of Rajesh Vohra and the name of persons mentioned in the Day Book. Thus, it cannot be said that the writings Mark A1 to A4 and A14 to A17 were sufficient in any manner to compare with the questioned writings as mentioned in the CBI No. 83/16 (old No. 08/12) Page 57 of 219 State through CBI v. Bibianus Toppo & Ors.
tabular forms.
(i) Similarly, perusal of the forms Ex. PW2/D and Ex. PW2/E reveals that the same contains the name, address and other particulars of Kanu Priya Gombar and Padimini Malpani whereas the words used in the said forms were not used in the questioned writings as mentioned in the above said table. Accordingly, it cannot be said that the writings Mark A18 to A23 in Ex. PW2/D and Ex. PW2/E were sufficient in any manner to give any definite opinion. Nor during trial, CBI produced any evidence to show how the said writings were significant and sufficient to compare with the above said questioned writings.
(ii) In view of the aforesaid discussion, I am of the considered opinion that GEQD report is not helpful to the CBI in any manner to establish that he was the author of questioned writings as mentioned in the above said table or in the passport delivery register.
(iii) In view of the above discussion, I am of the considered opinion that CBI failed to bring home the guilt of A5 for the offence punishable under Section 419 IPC beyond the shadow of all reasonable doubts.
31. Since, it has been established that A5 had filled up the forms in the name and personal particulars of Rajesh Vohra with the photographs of different persons, it establishes that A5 had furnished false information to the RPO stating that the persons whose photographs were pasted on the forms were Rajesh Vohra knowingly CBI No. 83/16 (old No. 08/12) Page 58 of 219 State through CBI v. Bibianus Toppo & Ors.
well or having reasons to believe that they were not Rajesh Vohra, accordingly, A5 is also liable for the offence punishable under Section 12(1)(b) of Passport Act.
(i) The question whether A5 was in conspiracy with other accused persons or not will be discussed in later part of the judgement.
Findings qua Naieem Safi (A6):-
32. The allegations against A6 is that he had dishonestly taken the delivery of additional passport booklet bearing No. E-6330613 by forging the signature of Rajesh Vohra in the passport delivery register.
(i) In order to prove the allegations against A6, CBI had taken the specimen writings of A6, which were given Mark S-28 to S66 {Ex. PW51/I (colly}. Perusal of the same reveals that his specimen writings were taken on two different dates i.e. on December 2, 2004 and December 3, 2004. On December 2, 2004, the specimen writings were taken in the presence of one independent person namely Mr. Suresh Chand, UDC, Regional Passport Office, Bhikaji Cama Place, Delhi whereas on December 3, 2004, the specimen writings were taken in the presence of another independent witness named Rajender Singh Chhabra, causal labour, Regional Passport Office, Bhikaji Cama Place, New Delhi.
(ii) During trial CBI had examined one Rajender Singh CBI No. 83/16 (old No. 08/12) Page 59 of 219 State through CBI v. Bibianus Toppo & Ors.
as PW4 who was working as causal labour at the relevant time. But, he had not uttered even a single word about the alleged specimen writings. CBI did not deem it appropriate to examine another independent witness namely Suresh Chand. In other words, there is no iota of evidence that the alleged specimen writings Ex. PW51/I was taken either in the presence of independent witnesses namely Rajender Singh Chhabra or Suresh Chand.
33. During trial CBI failed to furnish any reasonable explanation whatsoever for non-examination of the above said independent witness named Suresh Chand. Since, CBI has withheld the best witness without any reasonable explanation, presumption shall be drawn against CBI that if independent witness named Suresh Chand be produced in the Court, he would not have supported the prosecution case. If, PW4 is the same person in whose presence the some specimen writings of A6 were taken on December 3, 2004, his testimony is not helpful to the prosecution to prove the fact that A6 had given any such specimen writings on December 3, 2004 as he had not uttered even a single word qua such specimen writings. If, PW4 is not the said witness, there is no explanation from the CBI why the said Rajender Singh Chhabra had not been examined. In that eventuality, presumption shall be drawn against CBI that Rajender Singh Chhabra would not have supported the prosecution case, if he be produced during trial.
(i) No doubt, PW51 in his examination-in-chief deposed that he had taken the specimen writings of Naieem Safi. In his cross- examination, he admitted that he had not placed the letters through CBI No. 83/16 (old No. 08/12) Page 60 of 219 State through CBI v. Bibianus Toppo & Ors.
which he had summoned the alleged independent witnesses at the time of taking the specimen writings of Naieem Safi. Further, there is no explanation why his specimen writings had been taken on two consecutive dates. In his statement recorded under Section 313 Cr.P.C, A6 also took the plea that he had no concern with the case in question and he had been falsely implicated in this case. In these circumstances, it would not be safe to place reliance on the uncorroborated testimony of investigating officer especially when there is no explanation why the CBI had not examined the independent witnesses in whose presence the alleged specimen writings were taken.
34. Since, CBI failed to prove the alleged specimen writings of A6 beyond reasonable doubts, the said specimen writings can not be used to prove the guilt of A6. Since except the GEQD report, there is no other evidence on record against A6 to prove the fact that either he forged the signature of Rajesh Vohra or that he had impersonated himself as Rajesh Vohra or that he had taken the delivery of above said passport booklets, I am of the considered opinion that CBI has miserably failed to bring home the guilt of A6, accordingly, I hereby acquit A6 from all charges.
Contentions relating to accused Dheeraj Bansal (A9):-
35. Learned counsel appearing for A9 contended that allegations against A9 are that he had not only filled up the visa application form in the name of Rajesh Vohra but he had also signed the application in the name of Rajesh Vohra. It was further alleged that CBI No. 83/16 (old No. 08/12) Page 61 of 219 State through CBI v. Bibianus Toppo & Ors.
on the basis of said application, German Embassy had issued visa bearing No. D-26497286 dated November 19, 2003 in the name of Rajesh Vohra on the additional passport bearing No. E-7103221 dated November 14, 2003.
(i) It was further contended that in order to prove the charges, CBI had placed reliance on the specimen writings and GEQD report, but the evidences led by CBI are not sufficient to establish that A9 had given any specimen writing to the investigating officer at any point of time. It was further contended that as per CBI version, the handwriting was taken in the presence of PW46, but he turned hostile completely and did not support the prosecution case in any manner. It was argued that PW51 in his cross-examination deposed that the specimen writing of A9 was taken in the presence of PW46 Mr. Mahesh Chander, Mr. H.S. Panwar and Mr. R.S. Rawat, but during trial, CBI did not deem it appropriate to examine Mr. H.S. Panwar and Mr. R.S. Rawat. No doubt, CBI had examined PW46, but he did not support the prosecution case in any manner by deposing that the specimen writing was not taken in his presence. It was argued that since PW46 did not support the prosecution version, no reliance can be placed on the testimony of PW51. Further, PW51 also failed to furnish any explanation why he had not taken the specimen writing of A9 in one go.
(ii) It was further vigorously argued that prosecution case is that A9 had signed on the visa application at point Q142/1, but GEQD in its report Ex.PW48/K had not given any finding qua Q142/1. Accordingly, it was urged that since there is no evidence on record to CBI No. 83/16 (old No. 08/12) Page 62 of 219 State through CBI v. Bibianus Toppo & Ors.
establish that A9 had signed the visa application at point Q142/1, accused cannot be held guilty for the offence punishable under Section 468 IPC.
(iii) It was further contended that CBI has placed reliance on the letter Mark PW38/D alleging that the photocopy of the visa application was supplied by the Embassy of Federal Republic of Germany, New Delhi on April 20, 2005, but contended that no reliance can be placed on the said letter as the said letter is unsigned. Further, it is not established how the CBI had contacted the Embassy of Federal Republic of Germany, New Delhi. It was further submitted that during trial CBI failed to place any evidence whatsoever to establish that the photocopy of visa application Mark PW38/E allegedly sent through letter Mark PW38/D was the genuine copy of the original application. It was contended that since CBI failed to prove the said photocopy in accordance with law, no reliance can be placed even on the said photocopy of visa application.
(iv) It was further contended that there is no iota of evidence to establish that A9 had furnished any information to RPO, New Delhi in connection with the additional passport booklet bearing No. E-7103221 dated November 14, 2003 on which, Germany Embassy had issued the visa on the basis of alleged visa application, accordingly, it was urged that CBI has miserably failed to prove the charge under Section 12 (1) (b) of Passport Act.
(v) It was further contended that there is no iota of evidence to establish that accused was a member of conspiracy in CBI No. 83/16 (old No. 08/12) Page 63 of 219 State through CBI v. Bibianus Toppo & Ors.
order to get additional passport booklets in the name and personal particulars of Rajesh Vohra in favour different persons. It was submitted that PW51 in his cross-examination fairly conceded that A9 was not involved in the issuance of additional passport booklets in any manner.
36. Learned Senior Public Prosecutor appearing for CBI contended that since A9 had not only filled up the visa application form but he had also signed in the name of Rajesh Vohra and on the basis of said application, visa was issued in the name of Rajesh Vohra in favour of fictitious person i.e accused Dalbir Singh (A9), he is liable for the offence punishable under Section 468 IPC. He further contended that mere fact that CBI failed to examine Mr. H.S. Panwar and Mr. R.S. Rawat is not sufficient to discard the testimony of PW51 who proved the specimen writing of A9 beyond doubt. It was further contended that since from the GEQD report, it is established that A9 had filled up the form, inference can be drawn that he was the person who signed the said application at point Q142/1. It was further argued that mere fact that CBI did not place the original visa application or the fact that letter issued by German Embassy does not bear the signature of any person is not fatal to the prosecution case in any manner.
Findings qua accused Dhiraj Bansal (A9):-
37. From the submissions advanced by counsel for both the parties, first question arises for adjudication; whether CBI has proved the specimen writing of Dhiraj Bansal (A9) in accordance with CBI No. 83/16 (old No. 08/12) Page 64 of 219 State through CBI v. Bibianus Toppo & Ors.
law or not?
(i) Perusal of the record reveals that during investigation, some specimen writings of A9 were taken, which were given Mark S-139 to S176. It further reveals that the said specimen writings were taken at different occasions. The specimen writings S139 to S142 (Ex.PW51/J), S145 to S158 (Ex.PW51/K) were taken on February 10, 2005 in the presence of one independent witness named Mr. H.S. Panwar, UDC Sale Tax Department. It further reveals that the specimen writings S143 and S144 (Ex.PW46/A) were taken on February 10, 2005 and February 12, 2005 in the presence of one witness named PW Mahesh Chander, an employee of RPO, New Delhi. It further reveals that the specimen writings S159 to S176 (Ex.PW51/L) were taken on October 18, 2005 in the presence of Mr. R.S. Rawat, LDC, RPO, New Delhi.
(ii) From the above, it becomes clear that CBI has set up a case that the specimen writings of A9 were taken at three different occasions i.e. on February 10, 2005, February 12, 2005 and October 18, 2005 in the presence of three independent witnesses namely Mr. H.S. Panwar, Mr. Mahesh Chander and Mr. R.S. Rawat.
(iii) Admittedly, during trial, CBI did not deem it appropriate to examine Mr. H.S. Panwar and Mr. R.S. Rawat. Even investigating officer did not deem it appropriate to cite them in the list of witnesses. There is no explanation from CBI why the name of above said two witnesses were not cited in the list of witnesses and why CBI had not examined them to prove the specimen writings which CBI No. 83/16 (old No. 08/12) Page 65 of 219 State through CBI v. Bibianus Toppo & Ors.
were allegedly taken in the presence of above said two witnesses.
(iv) No doubt, CBI had examined Mr. Mahesh Chander as PW46 to prove the fact that the specimen writings Ex.PW46/A were taken in his presence. But PW46 did not support the prosecution version in any manner. As already stated, PW46 deposed that no specimen writing was taken by the CBI official in his presence and further testified that he had signed on the documents at the request of Mr. R.K. Aggarwal i.e. PW51. He categorically deposed that though Ex.PW46/A bears his signature, but the specimen writings were not taken in his presence. Since, PW46 did not support the prosecution case, he was got declared hostile and cross-examined by Learned Senior Public Prosecutor for CBI. In his cross-examination, he testified that neither he had seen Dhiraj Bansal; nor he ever met with him and denied the suggestion that the specimen writings of Dhiraj Bansal were taken in his presence. From the testimony of PW46, it becomes crystal clear that the specimen writings Ex.PW46/A were not taken in his presence.
(v) Perusal of S143 and S144 reveals that it bears the date February 10, 2005 below the signature of Mr. R.K. Aggarwal, but surprisingly on S143, it bears the date February 12, 2005 below the signature of PW46 and bears the date of February 10, 2005 below the signature of PW46 at S144. There is no explanation from the CBI if the specimen writings Ex.PW46/A were taken on February 10, 2005 in the presence of Mahesh Chander, how PW46 put date February 12, 2005 below his signature on the specimen writing mark S143. Further, if, on February 10, 2005 Mr. Mahesh Chander was present in the CBI CBI No. 83/16 (old No. 08/12) Page 66 of 219 State through CBI v. Bibianus Toppo & Ors.
office why he was not cited as a witness on the specimen writings Ex.PW51/J and Ex.PW51/K. Further, if Ex.PW46/A was taken on February 10, 2005 and Mr. H.S. Panwar was present in the CBI office to witness the specimen writings, what was the need to call another witness i.e PW Mr. Mahesh Chander from the RPO, New Delhi to become a witness of the specimen writings Ex.PW46/A. In the absence of any explanation from CBI, version of PW46 appears more trustworthy that he had signed Ex. PW46/A at the instance of Mr. R.K. Aggarwal and in fact no specimen writing was taken in his presence.
38. Since, CBI failed to examine Mr. H.S. Panwar and Mr. R.S. Rawat, CBI failed to establish that the specimen writings Ex. PW51/J, PW51/K and PW51/L were taken in the presence of independent witnesses namely Mr. H.S. Panwar and Mr. R.S. Rawat.
39. No doubt, PW51 in his examination-in-chief deposed that the above said specimen writings were taken in the presence of above said witnesses. During his cross-examination, he admitted that he had not recorded the statement of independent witnesses namely Mr. Mahesh Chander, Mr. H.S. Panwar and Mr. R.S. Rawat in whose presence the specimen writings of A9 were taken. He denied the suggestion that he did not record their statement because the specimen writings of A9 were not taken in their presence. He denied the suggestion that he used to take the specimen writing of some other persons and thereafter used to call witnesses asking them to sign the said specimen writings and in this manner he had created a false evidence against Dhiraj Bansal. A9 in his statement recorded under Section 313 Cr. P.C took the plea that he had not given any CBI No. 83/16 (old No. 08/12) Page 67 of 219 State through CBI v. Bibianus Toppo & Ors.
specimen writings to PW51, thus onus was on the prosecution to establish beyond doubt that A9 had given his specimen writings to PW51. Though CBI claimed that the specimen writings were taken in the presence of three independent witnesses at three different occasions, but surprisingly CBI did not deem it appropriate to examine two of them. Though one witness i.e. PW46 was examined by CBI, but he did not support the CBI version in any manner. Since, CBI withheld the best evidence without any reasonable explanation, presumption shall be drawn that the independent witnesses would not support the prosecution version, if they had been produced during trial. Further, there is no explanation from the CBI why investigating officer had taken specimen writings of A9 at three different occasions. Even CBI failed to produce the documents through which CBI summoned PW Mr. H.S. Panwar and Mr. R.S. Rawat to become witnesses of the specimen writings. In the absence of any other cogent evidence on record, I am of the considered opinion that the testimony of PW51 is not sufficient to establish the fact that A9 had given his specimen writings to him as alleged by the CBI. Accordingly, in my opinion, CBI failed to prove the specimen writing in accordance with law.
40. Next question emerges for adjudication; whether there is any admissible evidence to establish that A9 had signed the visa application.
(i) CBI has set up a case that since accused has signed the visa application at Q142/1, A9 had committed forgery. In order to prove the same, CBI placed reliance on the GEQD report CBI No. 83/16 (old No. 08/12) Page 68 of 219 State through CBI v. Bibianus Toppo & Ors.
Ex.PW48/K. Perusal of Ex.PW48/K reveals that the report is silent qua Q142/1. It merely pertains to Q141 and Q142. Since, the report is silent qua Q142/1, I am of the view that the report is not helpful to the prosecution to establish that Q142/1 was signed by A9. It is pertinent to state that there is no other iota of evidence on record to establish that Q142/1 was signed by A9. Thus, I am of the considered opinion that CBI has miserably failed to prove the charge of forgery against A9.
(ii) No doubt, GEQD report Ex.PW48/K states that the author of Q141, Q142 and S139 to S176 is one and the same person, but since CBI failed to prove the specimen writings in accordance with law, the said GEQD report is not helpful to the CBI even to establish that the author of Q141 and Q142 was A9.
(iii) Assuming for the sake arguments that A9 was the author of Q141 and Q142, even then it does not attract the provisions of forgery because filling up an application form in his own handwriting is not an offence.
41. Now, I proceed to examine whether CBI has succeeded to prove the visa application mark PW38/E in accordance with law or not.
(i) It is admitted case of CBI that the visa application Mark PW38/E was sent by Embassy of Federal Republic of Germany, New Delhi through its letter dated April 20, 2005 (Mark PW38/D). Perusal of the said letter reveals that the same was sent to the CBI No. 83/16 (old No. 08/12) Page 69 of 219 State through CBI v. Bibianus Toppo & Ors.
Ministry of External Affairs of Republic of India in reference to its note No.VI/405/2/9/05 dated April 06, 2005. The said reference note is Ex.PW38/C. Perusal of the same reveals that the note was sent to Royal Danish Embassy, New Delhi in relation to the passport holder named Geeta Devi Kapoor. There is no reference in the said letter regarding the passport or visa application of Rajesh Vohra. Thus, it is clear that vide letter Ex.PW38/C no information was sought by MEA, New Delhi from the Embassy of Federal Republic of Germany, New Delhi; rather information was sought from Royal Danish Embassy.
(ii) Perusal of the Mark PW38/D further reveals that it neither bears the name of the person nor signature of the person who purportedly written to the Ministry of External Affairs of Republic of India. Since, the letter is not signed by any person, to my mind, it has no evidentiary value. Further, there is no explanation from CBI why the said letter is unsigned. This shows that CBI has even failed to prove the source of the application (Mark PW38/E) in accordance with law.
(iii) Further, during trial, CBI failed to produce the original of Mark PW38/E without any reasonable explanation. Further, perusal of the Mark PW38/D reveals that the Embassy of Federal Republic of Germany, New Delhi had sent the attested copy of original visa application to the Ministry of External Affairs of Republic of India, New Delhi. But perusal of the mark PW38/E reveals that the same is not attested copy; rather, it is a simple photostate copy. This further shows that it is not the copy which was allegedly sent by the Embassy of Federal Republic of Germany, New Delhi through letter Mark PW38/D. CBI No. 83/16 (old No. 08/12) Page 70 of 219 State through CBI v. Bibianus Toppo & Ors.
(iv) From the aforesaid discussions, I am of the considered opinion even CBI failed to establish beyond reasonable doubt that the visa application mark PW38/E is the actual photocopy of the visa application.
42. Though a charge has been framed against A9 for the offence punishable under Section 12 (1) (b) of Passport Act, yet it is admitted case of CBI that A9 had not played any role in getting the additional passport in favour of any fictitious person. In this regard, the testimony of PW51 is relevant. PW51 in his cross-examination admitted that Dhiraj Bansal had not submitted any application for issuance of passport in the name of Rajesh Vohra. In fact there is no scintilla of evidence that A9 had played any role in the issuance of additional passport booklets in the name and personal particulars of Rajesh Vohra in favour of fictitious persons.
(i) In order to prove conspiracy between A9 on the one hand and other accused persons on the another hand; CBI has placed reliance on the visa application, which was allegedly filled up and signed by A9, but during trial, CBI failed to prove the same. There is no other evidence to establish that A9 was a member of conspiracy in the present matter with other accused persons or he played any role in issuance of additional passport booklets in the name and personal particulars of Rajesh Vohra in favour of different persons.
43. In the light of aforesaid discussions, I am of the considered opinion that CBI has miserably failed to prove the charges CBI No. 83/16 (old No. 08/12) Page 71 of 219 State through CBI v. Bibianus Toppo & Ors.
against A9, accordingly, I hereby, acquit him from all the charges.
Contentions qua accused Amit Kumar Khatri (A7):-
44. Learned counsel appearing for A7 contended that CBI has alleged that A7 had arranged air-tickets in the name of Rajesh Vohra and his family members in the year 2001 through M/s Aero Trek International, New Delhi and further alleged that in 2004, A7 had arranged air-tickets in favour of fictitious persons in the name of Rajesh Vohra in respect of fifth and seventh additional passport booklets through M/s Lynx Tours and Travels, New Delhi.
(i) It was argued that in order to prove the guilt of accused in respect of air-tickets arranged in the year 2001, prosecution has placed reliance on the deposition of PW26 and PW27. It was urged that PW26 did not utter even a single word qua A7. Though PW27 deposed that the air-tickets were collected by one Amit Kumar, but he did not identify him in the Court. It was argued that the testimony of PW27 is not helpful to the prosecution to establish that A7 was the person who collected the tickets from him.
(ii) It was further contended that CBI has further placed reliance on the copy of air-tickets Ex. PW26/B to PW26/E. But no reliance can be placed on the same as the same were computer generated. Since CBI has not filed any certificate under Section 65 B of Evidence Act, same cannot be read in evidence. It was further submitted that even during trial PW26 and PW27 failed to produce the office copy of Ex. PW26/B to PW27/E. CBI No. 83/16 (old No. 08/12) Page 72 of 219 State through CBI v. Bibianus Toppo & Ors.
(iii) It was contended that qua remaining two air-tickets in the name of Rajesh Vohra in respect of fifth and seventh additional passport booklets, prosecution has placed reliance on the deposition of PW11 Mr. Manoj Kumar, proprietor of Ms. Lynx Tours & Travels. However, it was contended that no reliance can be placed on his testimony as his conduct is quite suspicious. It was urged that though PW11 claimed that since A7, was his regular customer, he knew him very well and accordingly, he identified him in the Court. However, it is admitted case of CBI that firstly he was examined by Delhi police in case FIR No. 224/2004 at police station IGI Air Port in respect of air- tickets of Jasvinder Singh (A16). At that time, he informed the investigating officer that Rajesh Vohra came to his office to procure the air-tickets. At that time, he had not disclosed the name of A7. If, A7 was his regular client, there is no explanation either from PW11 or from CBI why PW11 had not disclosed the name of A7 to Delhi police in the aforesaid case.
(iv) It was further contended that it is admitted case of CBI that A11 had arranged air-tickets from two different firms. One ticket was got arranged through M/s Delmos Travels and Kashyap Travels and other ticket was got issued through M/s R.J Tours & Travels Pvt. Ltd. It was contended that since PW11 had dishonest intention, he arranged the air-tickets from two different companies.
(v) It was further contended that CBI failed to examine Kaptan Yadav, who allegedly collected the air-tickets; and Ms. Monika who issued the bills without any reasonable explanation. He further submitted that the invoices of the air-tickets were issued either in the CBI No. 83/16 (old No. 08/12) Page 73 of 219 State through CBI v. Bibianus Toppo & Ors.
name of M/s Lynx Tours & Travels or in the name of R.J. Tours and Travels (P) Ltd. in the name of passenger i.e. Rajesh Vohra, which shows that air-tickets were purchased by PW11 and not by A7.
(vi) It was further contended that though PW11 claimed that the said air-tickets were collected by A7 but during trial, no document was produced by CBI, which may show that the tickets were collected by A7.
(vii) It was further contended that though PW11 claimed that he knew A7 previously but, surprisingly he mentioned the incorrect name of A7 in his letters Ex. PW11/A, Ex. PW11/B and Ex. PW11/G. In Ex. PW11/A, he mentioned that air-ticket was purchased by one person named Rajesh Vohra whereas payment was made by Mr. Amit Kumar Khatri. But in Ex. PW11/B, he mentioned that the name of the person, who collected the ticket was Amit Kumar Vohra whereas in letter Ex. PW11/G, he mentioned that ticket was collected by Amit Kumar. Accordingly, it was argued that there is no substance in the testimony of PW11 that he knew A7 previously.
(viii) It was further contended that in order to prove the guilt of accused, prosecution has also placed reliance on the Search list (Ex. PW45/A) and alleged that the incriminating documents such as photocopy of the passport bearing No. E-8583581 of Rajesh Vohra and copy of air-ticket no. 250440208375-76 in the name of Rajesh Vohra were recovered from his house. However, it was contended that no reliance can be placed on the alleged search as the same was conducted in violation of Section 103 & 165 of Code of Criminal CBI No. 83/16 (old No. 08/12) Page 74 of 219 State through CBI v. Bibianus Toppo & Ors.
Procedure. It was contended that no specific reason was mentioned to conduct the search and even nothing was mentioned for what purpose the alleged search was conducted. It was contended that since the search was in violation of Section 103 and 165 of Cr.P.C, no reliance can be placed on the alleged recovered articles. In support of his contentions, reliance has been placed on the judgment State of Rajasthan vs. A.R.Rehman, AIR 1960 SC 210; Jagabandhu Gial vs. State, 1962 Crl. LJ 569 and Jagan Nath & another vs. Emperor, AIR 1928 Allahabad 185.
(ix) It was further contended that even the search was conducted in violation of provision of CBI manual.
(x) It was further contended that the alleged search was taken in the presence of one independent witness i.e. PW45 Mr. Mangesh Kumar who deposed that the alleged incriminating documents were recovered from the box of the bed whereas prosecution version is that the documents were recovered from the setty lying in the drawing room and one steel almirah lying at the second floor.
(xi) It was argued that since PW11 had arranged the air-tickets in the name of Rajesh Vohra in respect of fifth and seventh additional passport booklets, the photocopy of same were available with him, which CBI planted during the said search in order to falsely implicate A7 and due to that reason PW51 had not mentioned the purpose of alleged search in the search list Ex. PW45/A. CBI No. 83/16 (old No. 08/12) Page 75 of 219 State through CBI v. Bibianus Toppo & Ors.
45. Per contra, learned Sr. Public Prosecutor for CBI refuted the said contentions by arguing that there are ample evidence on record to prove the fact that A7 is the person who had purchased the air-tickets in the name of Rajesh Vohra and his family members in the year 2001 and thereafter, in the year 2004, he had purchased the air-tickets in the name of Rajesh Vohra in respect of fifth and seventh additional passport booklets from PW11 and sent the fictitious persons to abroad. It was alleged that during search, incriminating articles i.e photocopy of additional passport booklets of Rajesh Vohra and air- tickets were recovered from his premises and since the search was conducted in the presence of independent witness PW45, there is no reason to disbelieve the search.
Finding qua accused Amit Kumar Khatri (A7):-
46. As per charge-sheet, first allegation against A7 is that A7 had arranged air-tickets for Rajesh Vohra and his family members through M/s Aero Trek International, New Delhi for the sector Delhi-Moscow-Zurich-Frankfurt - Moscow-New Delhi.
(i) In order to prove the said allegation, CBI has placed reliance on the photocopy of air-tickets Ex. PW26/B (colly) and invoice bills Ex. PW26/C to Ex. PW26/E and on the statements of PW26 and PW27.
(ii) PW26 Mr. K. L. Khurana was an employee of M/s Aero Trek International. He deposed that his firm was a sub-agent of M/s Deepika Travels and used to obtain air-tickets from M/s Deepika CBI No. 83/16 (old No. 08/12) Page 76 of 219 State through CBI v. Bibianus Toppo & Ors.
Travels as per requirement. He further deposed that his firm had arranged air-tickets in the name of Ms. Monisha Vohra, Master Ayush Vohra and Mr. Rajesh Vohra and further testified that the above said passengers did not visit their office for taking the air-tickets; rather their agent named Mr. Amit came to their office and collected the tickets after making payment in cash.
(iii) Though PW26 deposed that one Mr. Amit came to their office to book and collect the air-tickets after making payment in cash, but PW26 did not state in his deposition whether said Amit Kumar was A7; nor he identified A7 in the Court. There is no other evidence whatsoever, which may show that Amit who took the air- tickets was none other than Amit Kumar Khatri i.e. A7.
(iv) In the absence of any other cogent evidence, I am of the considered opinion that the testimony of PW26 is not helpful to the CBI in any manner to prove that A7 had booked the air-tickets for Rajesh Vohra and his family members through M/s Aero Trek International or he made the payment of the said tickets in cash.
(v) PW27 Mr. Ajay Dutta is the Reservation Manager of M/s Deepika Travels and testified that the air-tickets in the name of Rajesh Vohra, Ms. Monisha Vohra and Master Ayush Vohra were issued by his firm and the payment against the said tickets were made by M/s Aero Trek International. Thus, PW27 did not utter even a single word against A7.
(vi) In view of the aforesaid discussion, I am of the CBI No. 83/16 (old No. 08/12) Page 77 of 219 State through CBI v. Bibianus Toppo & Ors.
considered opinion that CBI has miserably failed to establish that A7 had arranged air-tickets for Rajesh Vohra and his family members.
47. The next allegation against A7 is that he had arranged air tickets in the name of Rajesh Vohra on the additional passport booklet bearing No. E-7710158 dated February 6, 2004 (fifth additional passport booklet) through M/s Lynx Tours and Travels, New Delhi by supplying the photocopy of above said additional passport duly affixed visa issued by Embassy of France. It was further alleged that he had made the payment in cash while collecting the air-tickets.
(i) It was further alleged that A7 had also arranged air- tickets in the name of Rajesh Vohra from M/s Lynx Tours and Travels, New Delhi by supplying the copy of additional passport booklet bearing No. E-8583581 dated April 7, 2004 (seventh additional passport booklet). He made the payment in cash while collecting air- tickets. On the basis of said additional passport and air-tickets, accused Jasvinder Singh (A16) made an attempt to travel abroad in the name of Rajesh Vohra, but he was caught hold by the police at IGI Airport on May 25, 2004.
(ii) In order to prove the above said allegations, prosecution placed reliance on the deposition of PW5 Mr. Parminder Singh, an employee of M/s Bandhu Travels Pvt. Ltd. and PW11 Mr. Manoj Kumar, proprietor of M/s Lynx Tours and Travels Pvt. Ltd. Indisputably, PW5 had not uttered even a single word against A7, hence, his testimony is not helpful to the CBI in any manner to prove the guilt of A7. However, the testimony of PW11 is quite relevant.
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(iii) PW11 in his examination-in-chief deposed that he is the proprietor of M/s Lynx Tours and Travels Pvt. Ltd. as his firm is a sub-agent of authorized travel agents such as M/s Kashyap Travels; M/s Delmos Holidays Pvt. Ltd.; M/s Cozy Travels and M/s Bajaj Travels etc. He further testified that he used to get issued air-tickets through the above said travel agents.
(iv) He further deposed that he knew the accused Amit Kumar Khatri as A7 used to visit him for purchasing air-tickets on behalf of his clients. He also identified him in the Court. He denied the suggestion that he identified A7 at the instance of CBI or he did not know A7 previously. During trial, A7 failed to produce any evidence whatsoever to establish that he did not know PW11. In the absence of any specific contrary evidence on record, I do not find any reason to disbelieve the testimony of PW11 to the extent that he knew A7 previously and he identified him in the Court himself.
(v) PW11 further deposed that A7 came to buy air- ticket in the name of Rajesh Vohra on the basis of additional passport booklet bearing No. E-8583581 dated April 7, 2004 (seventh additional passport booklet). Accordingly, the ticket was got issued for the Sector Delhi-Paris; Frankfurt-Delhi with the travel dated May 25, 2004. He further testified that at the time of booking the air-ticket in the name of Rajesh Vohra, A7 had also supplied the copy of passport duly affixed visa in the name of Rajesh Vohra and he supplied the same to the CBI vide letter Ex. PW11/A. Perusal of Ex. PW11/A reveals that PW11 had not only supplied the copy of air-ticket, passport and visa in the name of Rajesh Vohra, but he also supplied the copy of passport of Amit CBI No. 83/16 (old No. 08/12) Page 79 of 219 State through CBI v. Bibianus Toppo & Ors.
Kumar Khatri (A7). This shows that Amit Kumar Khatri had also supplied the copy of his passport at the time of obtaining the air-ticket. Perusal of the photocopy of passport reveals that passport number of Amit Kumar Khatri was B-3778068. Copy of the said passport was also recovered from the premises of Amit Kumar Khatri during the search. The Search-list is already Ex. PW45/A. Thus, it becomes clear that PW11 had also supplied the copy of passport of Amit Kumar Khatri to the CBI on October 26, 2004. If, A7 did not know PW11, question arises how the copy of his passport came into the possession of PW11. But during trial, no explanation has been furnished by A7 in this regard. In the absence of any contrary evidence on record, I do not find any reason to disbelieve the testimony of PW11 wherein he deposed that A7 had visited his office at the time of booking the air-ticket in the name of Rajesh Vohra on the basis of seventh additional passport booklet.
(vi) PW11 further testified that A7 again visited his office to buy air-ticket in the name of Rajesh Vohra on the basis of additional passport booklet bearing No. E-7710158 (fifth additional passport booklet) for the sector Delhi-Paris-Frankfurt-Delhi. Accordingly, air-ticket was got issued with the travel dated April 9, 2004. He further testified that at the time of obtaining the air-ticket, Amit Kumar Khatri had supplied the copy of passport and visa in the name of Rajesh Vohra and he supplied the same to the CBI vide letter Ex. PW11/G. He further testified that the said ticket was got booked through M/s Delmos Travels. Perusal of Ex. PW11/G reveals that the ticket was collected by Mr. Amit Kumar. An attempt was made by the learned defence counsel that since, it is not mentioned that the tickets CBI No. 83/16 (old No. 08/12) Page 80 of 219 State through CBI v. Bibianus Toppo & Ors.
were collected by Amit Kumar Khatri, it can not be said that Amit Kumar as mentioned in Ex. PW11/G and A7 are one and the same person. But, to my mind, the said contention is without any substance as during trial PW11 identified A7 correctly. Further, during cross- examination of PW11, no attempt was made by the learned defence counsel to seek clarification whether 'Amit Kumar' as mentioned in Ex. PW11/G is a different person. On the contrary, in his examination-in- chief, he categorically deposed that Mr. Amit Kumar visited his office to buy the air-tickets on behalf of Rajesh Vohra.
(vii) An attempt was made by the defence counsel by arguing that since there is a discrepancy in the name of A7 in the letters Ex. PW11/G, Ex. PW11/B and Ex. PW11/A, which allegedly PW11 wrote to CBI, it cannot be said that PW11 knew A7 previously.
(viii) Indisputably, in the letter Ex. PW11/A, name is mentioned as Amit Kumar Khatri whereas in letter Ex. PW11/B, name is mentioned as Amit Kumar Vohra and in letter Ex. PW11/G, name is mentioned as Amit Kumar. No doubt, there is a discrepancy in the name of A7 in the aforesaid letters, but during trial, no attempt was made by the counsel to seek clarification about the said discrepancy from the witness. During his deposition, PW11 categorically deposed that it was Amit Kumar Khatri who visited his office to buy two air- tickets in the name of Rajesh Vohra on the basis of two additional passport booklets i.e. fifth and seventh additional passport booklets. In the absence of any contrary evidence on record, I do not find any reason to disbelieve the testimony of PW11.
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(ix) Learned counsel appearing for A7 also placed reliance on the letter Ex. DW1/B wherein it is mentioned that Rajesh Vohra has come to his office at the time of purchasing the air-ticket bearing No. 2504402083572. But, to my mind, the said letter is not helpful to the accused in any manner because the said letter was not put up to PW11 during his cross-examination, thus no opportunity was given to PW11 to explain why he had mentioned that Rajesh Vohra visited his office to buy air-tickets and why the name of Amit Kumar Khatri had not been mentioned therein. The said letter is addressed to Sub-Inspector Vikram Singh, PS IGI Airport but no attempt was made to examine Mr. Vikram in this matter.
(x) Further, perusal of letter Ex. DW1/B reveals that it pertains to air-ticket No. 25044020835752, but PW11 arranged the air-ticket No. 2504402083575 & 576, copy of which is supplied to the CBI vide letter Ex. PW11/A. Further, PW11 vide letter Ex. PW11/G supplied the copy of air-ticket bearing No.2504402061065-066. This establishes that the air-ticket qua which letter Ex. DW1/B pertains, was not supplied by PW11 to CBI.
48. Learned defence counsel further submits that since the invoices are in the name of Rajesh Vohra, it shows that tickets were got booked by Rajesh Vohra himself and not by Amit Kumar Khatri. But I do not find any substance in the said contention as PW11 categorically deposed that the said tickets were got booked by Amit Kumar Khatri. Mere fact that the name of passenger Rajesh Vohra is mentioned in the invoices Mark PW11/J and Ex. P|W11/F is not sufficient to disbelieve the testimony of PW11.
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(i) Learned defence counsel further vigorously argued that since PW11 had booked the ticket through two different agents i.e. one ticket was got booked through M/s Kashyap Travels and another ticket was got booked through M/s Delmos Travels, this shows that PW11 had dishonest intention and since A7 had approached both the occasions to PW11, A7 had no dishonest intention. To my mind, the said contention is also without any substance as no question was put to PW11 to seek explanation why he approached two different travel agents while booking the ticket in the name of Rajesh Vohra. As already discussed that PW11 was sub- agent of various authorised travel agents including M/s Delmos Travels and M/s Kashyap Travels. Mere fact that he availed their services at the time of booking air-tickets, in the absence of any contrary evidence on record, I do not find any reason to disbelieve the defence of PW11.
(ii) Learned defence counsel further contended that no reliance can be placed on the photocopies of the invoices Mark PW11/J, PW11/H, PW11/F and photocopies of air-ticket as during trial, CBI failed to produce original of the same. Indisputably, CBI failed to produce the original or even office copy of the invoices, but to my mind, the said lapse on the part of CBI is not helpful to the accused in any manner because PW11 categorically deposed on oath that the air-tickets were got booked by A7 on behalf of Rajesh Vohra and in this regard, he furnished the requisite information to the CBI vide letter Ex. PW11/G, Ex. PW11/B and Ex. PW11/A, which are admittedly original.
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49. Now I proceed to next limb of arguments; whether the search was conducted in accordance with Section 103 and 165 of Code of Criminal Procedure or not?
(i) Section 165 Cr.P.C was dealt with in length by the Apex Court in case State of Rajasthan vs. Rehman (supra) wherein the Apex Court held as under:-
"Under s.165 four conditions are imposed: (i) the police officer must have reasonable ground for believing that anything necessary for the purposes of an investigation of an offence cannot, in his opinion, be obtained otherwise than by making a search, without undue delay; (ii) he should record in writing the grounds of his belief and specify in such writing as far as possible the things for which the search to be made; (iii) he must conduct the search, it practicable, in person; and (iv) if it is not practicable to make the search himself, he must record in writing the reasons for not himself making the search and shall authorize a subordinate officer to make the search after specifying in writing the place to be searched, and, so far as possible, the thing for which search is to be made. As search is a process exceedingly arbitrary in character, stringent statutory conditions are imposed on the exercise of the power."
(ii) Apex Court further held as under:-
"Section165 of the Code lays down various steps to be followed in making a search. The recording of reasons is an importing step in the matter of search and to ignore it is to ignore the material part of the provisions governing searches. If that CBI No. 83/16 (old No. 08/12) Page 84 of 219 State through CBI v. Bibianus Toppo & Ors.
can be ignored, it cannot be said that the search is carried out in accordance with the provisions of Code of Criminal Procedure; it would be a search made in contravention of the provisions of the Code."
(emphasis supplied)
(iii) Same view was taken by the Allahabad High Court in case Jagan Nath and another vs. Emperor (supra).
(iv) From the aforesaid judgements, it becomes clear that before conducting search; firstly, there must be some reasonable grounds in the opinion of the investigating officer to conduct search; secondly, it is the duty of the investigating officer to record reasons of his belief in writing and as far as possible to record the things for which search is to be made.
50. Now question arises whether in the present case, investigating officer i.e. PW51 had complied with the above conditions before conducting the search or not?
(i) Indisputably, CBI had conducted the search vide search-list Ex. PW45/A. In the said document, investigating officer made the endorsement as under:-
"The search was conducted under the provisions of 165 Code of Criminal Procedure in the presence of Mr. Mangesh Kumar, an independent witness. In the house, Smt. Garima Khatri w/o Sh. Amit Kumar Khatri was found present. She was requested to ensure the presence of one male member to witness the search. Sh. Hemant CBI No. 83/16 (old No. 08/12) Page 85 of 219 State through CBI v. Bibianus Toppo & Ors.
Khatri, brother-in-law of Amit Kumar Khatri came at about 11.30 AM. He was apprised of the purpose of his visit and remained present during the search to which he agreed. The search was conducted under Section 165 Cr.P.C because there was not sufficient time to obtain the search warrant. The search was completed after following legal formalities. No damage was caused to any person or property. All the items mentioned as column no. 2 were taken into possession. The search conducted at 1400 hours."
(ii) Except the above said endorsement, CBI failed to produce anything on record which may show that there was a reasonable ground for believing that the searched articles could not be obtained, if search was not conducted or that investigating officer had recorded the grounds of his belief in writing.
(iii) On perusal of the endorsement made in Ex.PW45/A, it becomes clear that in Ex. PW45/A, investigating officer had even not mentioned that he had any reasonable ground to believe that if the search was not conducted, the alleged documents could not be obtained during investigation. Further, investigating officer had also not mentioned anything or the grounds of his belief. Even, investigating officer had also not mentioned for what purpose the search was conducted at the premises of A7.
(iv) Since PW51 had not complied with mandatory provisions of Section 165 Cr.P.C before conducting the search, I am of the considered opinion that in view of the law laid down by Apex Court in State of Rajasthan vs. Rehman (supra), the search was not CBI No. 83/16 (old No. 08/12) Page 86 of 219 State through CBI v. Bibianus Toppo & Ors.
conducted in accordance with the provisions of Section 165 Cr.P.C.
51. Now question arises what would be the impact on the recovered items, if the search is not conducted in accordance with provisions of Section 165 Cr.P.C?
(i) Learned defence counsel contended that since the search was not in accordance with the provisions of Section 165 Cr.P.C, the articles recovered during search cannot be looked into. To support his contention, he placed reliance on the judgment State of Rajasthan vs. Rehman (supra).
52. I have gone through the judgment State of Rajasthan vs. Rehman (supra) carefully. But, there is nothing therein that if the search is conducted in violation of the provisions of Section 165 Cr.P.C, no reliance can be placed on the documents recovered during such search.
(i) This issue was dealt with by the Apex Court in case State of Maharashtra vs. Natwar Lal Damodar Dass Soni 1980, 4SCC 669, wherein a contention was raised that since search was illegal, no reliance can be placed on the recovered items. Apex Court held as under:-
Para no. 9:
"Taking the first contention first, it may be observed that the police had powers under the Code of Criminal Procedure to search and seize this gold, if they had reason to believe that a cognizable office had been committed in respect CBI No. 83/16 (old No. 08/12) Page 87 of 219 State through CBI v. Bibianus Toppo & Ors.
thereof. Assuming arguendo, that the search, was illegal, then also, it will not affect validity of the seizure and further investigation by Custom Authorities or the validity of the trial, which followed on the complaint of the Asstt. Collector of Customs".
Para-10:
"In Radha Kishan vs. State of U.P. AIR 1963 SC 822 the appellant was a postman. He and his father were living in the same house. Certain undelivered postal articles were recovered from an almirah in the house, the key of which was produced by the father. The appellant Radha Kishan was tried and convicted of a offence punishable under Section 52 of Post offices Act, for secreting postal articles. One of the contentions raised on the behalf of appellant was that the search and seizure was illegal in as much as it was in contravention of the provisions of Section 103 and 165 of the Code of Criminal Procedure. Mudholkar, J. speaking for the Court, repelled this contention, thus; (SCR PP 411-12) "So far as the alleged illegality of the search is concerned, it is sufficient to say that even assuming that the search was illegal the seizure of the articles is not vitiated. It may be that where the provisions of Section 103 and 165 of the Code of Criminal Procedure, are contravened the search can be resisted by the person whose premises was sought to be searched. It may also be that because of the illegality of the search the Court may be inclined to examine carefully the evidence regarding the seizure. But beyond these two consequences, no further consequence ensues".
(emphasis supplied)
(ii) These observations aptly apply to the instant case.
CBI No. 83/16 (old No. 08/12) Page 88 of 219State through CBI v. Bibianus Toppo & Ors.
(iii) In view of the law laid down in the aforesaid judgment, I am of the considered opinion that mere fact that the search was not conducted in accordance with provisions of Section 165 Cr.P.C, the seized items under the search (Ex. PW45/A) cannot be ignored. However, since the search was in violation of Section 165 Cr.P.C, the case of the prosecution is required close scrutiny.
(iv) As per the search list Ex. PW45/A, total 12 documents were recovered during the search. Documents mentioned at serial no. 1 to 7 were shown to be recovered from the Setty kept in the drawing room whereas documents mentioned at serial no. 8 to 12 were shown to be recovered from the steel almirah at the second floor.
(v) As per the prosecution version, in this case the incriminating documents were photocopy of passport bearing No. B- 3778068 of A7; photocopy of two pages of the Passport bearing No. E-8583581 dated April 7, 2004 of Rajesh Vohra and photocopy of ticket bearing No. 2504402083575-576 in the name of Rajesh Vohra and the said documents are mentioned at serial no. 2, 3 and 4. It means that as per prosecution version, the incriminating documents in the case were recovered from the setty kept in the drawing room of the house of A7.
(vi) It is admitted case of the CBI that the alleged search was taken in the presence of PW45 Mr. Mangesh Kumar, fireman. He corroborated the prosecution case in his examination-in- chief that he joined the alleged search, but in his cross-examination, he deposed that the CBI officials had taken out the said documents CBI No. 83/16 (old No. 08/12) Page 89 of 219 State through CBI v. Bibianus Toppo & Ors.
i.e. photocopy of passport of Rajesh Vohra and air tickets in the name of Rajesh Vohra from the bed lying in the said flat. He further deposed that there were three rooms in the flat and the said documents, were taken out from the box of the bed. He further testified that at the time of recovery of the said documents, he was in the drawing room of the said flat. From the deposition of PW45, it becomes crystal clear that the documents were recovered from the bed lying in the said flat and at the time of recovery of said documents, he was in the drawing room, which further shows that the said bed was not lying in the drawing room but was in another room of the said flat. He did not depose that any document was recovered from the setty lying in the drawing room or that some documents were recovered from the almirah lying at the second floor. Though as per Ex. PW45/A, the search was conducted in the presence of Mr. Hemant Kandhari and Insp. Rajiv Vahi, but prosecution did not deem it appropriate to examine them. It means that there is no other evidence on record except the deposition of PW51 that the documents in this case were recovered from the setty lying in the drawing room. Since, there is a material contradiction between the testimony of PW45 and PW51, in the absence of any other corroborative evidence, I am of the view that it would not be safe to place any reliance on the uncorroborated testimony of PW51. Accordingly, I am of the considered opinion that CBI has failed to prove that the photostate copy of passport and air- tickets in the name of Rajesh Vohra were recovered during the search.
(vii) Further, it is also admitted case of CBI that at the time of booking the tickets, PW11 used to take photocopy of passport of the passenger and in this case, he had also taken the photocopy of CBI No. 83/16 (old No. 08/12) Page 90 of 219 State through CBI v. Bibianus Toppo & Ors.
passport of Rajesh Vohra at the time of booking the tickets. It is also admitted case of CBI that on October 26, 2004, PW11 had furnished the copy of air-tickets and passport of Rajesh Vohra. It is also admitted case of CBI that PW11 knew A7 previously as he was his regular customer. On the basis of above admitted facts, it was argued by the learned defence counsel that since the photocopy of air-ticket and passport of Rajesh Vohra were already in the custody of PW51, the possibility of planting of same during the search of PW51 cannot be ruled out. This apprehension cannot be ruled out because if the photocopy of air-ticket and passport were already in the custody of PW51, there was no occasion for him to conduct search to recover the same from the premises of A7.
(viii) Further, it is admitted case of CBI that in the said flat, A7 was residing alongwith his family members and the alleged incriminating documents were recovered from the setty, which was lying in the drawing room and there is nothing on record, which may show that the said setty was locked. If, we assumed that the alleged photocopy of the incriminating documents were recovered from the premises of A7, it merely show that same were in the joint possession of the family of A7. During investigation, no attempt was made to establish that the same were in the exclusive possession of A7. Even, no attempt was made by PW51 to record the statement of wife of A7 to establish that the said documents were kept by A7 or the documents were related to A7 only.
(ix) In view of the foregoing discussion, I am of the considered opinion that no reliance can be placed on the photocopy of CBI No. 83/16 (old No. 08/12) Page 91 of 219 State through CBI v. Bibianus Toppo & Ors.
passport/air-ticket, which were allegedly shown to be recovered from the premises of A7.
53. In the light of aforesaid discussion, I am of the considered opinion that CBI has succeeded to establish that A7 had booked air-ticket in the name of Rajesh Vohra at two occasions on the basis of fifth and seventh additional passport booklets. Now question arises whether this fact is sufficient to prove that A7 was the member of conspiracy; this aspect would be discussed while discussing the conspiracy in later part of the judgement.
Contentions qua accused Rajesh Kumar Sharma (A12) :-
54. Learned Public Prosecutor contended that A12 was known to Mr. Jasvinder Singh (PW44), who had given a photograph of his relative named Avtar Singh for the purpose of obtaining passport in the name of Avtar Singh, but A12 had obtained the passport in the name of Rajesh Vohra by using the said photograph of Avtar Singh. It was thus, argued that A12 was involved in the conspiracy while obtaining additional passport booklet bearing No. E-8577112 (eighth additional passport booklet) in the name of Rajesh Vohra in favour of Avtar Singh. It was alleged that since Avtar Singh is residing in abroad, he could not be arrested.
(i) It was further contended that besides the above, A12 was also involved in arranging air-tickets in respect of various persons who travelled abroad on the additional passport booklet fraudulently issued in the name of Rajesh Vohra. It was alleged that CBI No. 83/16 (old No. 08/12) Page 92 of 219 State through CBI v. Bibianus Toppo & Ors.
A12 had arranged tickets in respect of first, second, sixth, seventh and eighth additional passport booklets in favour of various persons who travelled abroad on the basis of said additional passport booklets, which were issued in the name of Rajesh Vohra. It was further submitted that A12 used to supply the photocopy of passport booklets duly affixed visa to PW Parminder Singh. Thereafter, Parminder used to procure air-ticket through different authorised agents. Thereafter, A12 used to collect the same from PW Parminder after making payment in cash.
(ii) It was vehemently contended that since A12 was involved in the issuance of additional passport booklet in favour of Avtar Singh in the name and personal particular of Rajesh Vohra and he arranged air-tickets for four different persons, A12 is liable for the offence punishable under Section 120 B IPC.
55. Per contra, learned counsel appearing for A12 sagaciously argued that the prosecution case is based on the deposition of PW44 Mr. Jasvinder Singh and PW5 Mr. Parminder Singh. It was astutely argued that though PW44 in his examination-in- chief admitted that he knew Rajesh Kumar Sharma very well as he used to send people abroad through him. He further deposed that he had supplied the photograph of his relative Avtar Singh to Rajesh Kumar Sharma, on the basis of which, the additional passport booklet was issued to Avtar Singh, but PW44 categorically deposed that accused Rajesh Kumar Sharma is not the person to whom he knew and handed over the photograph of Avtar Singh. Since, PW44 did not support the prosecution case, he was got declared hostile and cross-
CBI No. 83/16 (old No. 08/12) Page 93 of 219State through CBI v. Bibianus Toppo & Ors.
examined by learned Sr. Public Prosecutor for CBI, but he reiterated that accused Rajesh Kumar Sharma is not the person to whom he had handed over the photograph of Avtar Singh. He further testified that Rajesh Kumar Sharma with whom he used to deal with was a thin person whereas A12 is a fatty person.
(i) It was further sagaciously argued that no doubt, CBI had examined PW5 Parminder Singh, Manager of M/s Bandhu Travels Pvt. Ltd, but in his entire deposition, he has not uttered even a single word against A12. He only deposed that either Rajesh Vohra or his representative used to come to him and he used to detain the copy of passport and visa after comparing the same with original. He nowhere deposed that A12 came to him to procure tickets in the name of Rajesh Vohra at any point of time.
Findings qua Rajesh Kumar Sharma (A12):-
56. Admittedly, the first allegation against A12 is that he had procured additional passport booklet in favour of Avtar Singh in the name and personal particular of Rajesh Vohra. As per the charge-sheet, the service of A12 was engaged by PW44 Jasvinder Singh, who supplied the photograph of Avtar Singh to him. Indisputably, prosecution also examined Jasvinder Singh as PW44 and in his examination-in-chief, he admitted that he knew Rajesh Kumar Sharma very well as he had availed his services several times while sending people to abroad. He further deposed that he had supplied the photograph of his relative Avtar Singh to him and on the basis of said photograph Rajesh Kumar Sharma had got issued a CBI No. 83/16 (old No. 08/12) Page 94 of 219 State through CBI v. Bibianus Toppo & Ors.
passport in favour of Avtar Singh. But he also deposed that accused Rajesh Kumar Sharma present in the Court i.e. A12 was not the person with whom he used to deal with. In other words, PW44 turned hostile completely on the point of identity. Since, PW44 did not support the prosecution case, he was got declared hostile and cross-examined by learned Public Prosecutor appearing for CBI. But in his cross- examination, he did not support the prosecution version. Rather, he clarified that Rajesh Kumar Sharma with whom he used to deal with was a thin person whereas A12 is a fatty person. Except the testimony of PW44, there is no other iota of evidence to establish that the photograph of Avtar Singh was ever supplied by PW44 Jasvinder Singh to A12. In the absence of any such evidence on record, I am of the considered opinion that CBI miserably failed to establish that A12 had any role in obtaining the additional passport booklet in favour of Avtar Singh in the name and personal particulars of Rajesh Vohra.
(i) Indisputably, as per the charge-sheet filed by the CBI, A12 has arranged air-tickets in favour of four persons in whose favour the additional passport booklets i.e. first, second, sixth and eighth were issued in the name and personal particulars of Rajesh Vohra. As per the charge-sheet, A12 had arranged air-tickets by supplying the copy of above said additional passport booklets duly affixed visa to PW Parminder Singh, Manager of M/s Bandhu Travels Pvt. Ltd. As per the allegations, A12 used to collect the air-tickets from PW Parminder Singh after making payment in cash.
(ii) No doubt, CBI has examined Parminder Singh as PW5. But in his entire deposition, he had not uttered even a single CBI No. 83/16 (old No. 08/12) Page 95 of 219 State through CBI v. Bibianus Toppo & Ors.
word against A12. He only deposed that Rajesh Vohra or his representative used to come to him to obtain air-tickets and he used to return the original passport after keeping photocopy with him. He did not depose that A12 used to visit him being the representative of Rajesh Vohra or he used to ask him to arrange tickets in the name of Rajesh Vohra or A12 used to collect air tickets from him after making payment in cash. Surprisingly, PW5 was not cross-examined by the counsel for CBI which shows that CBI did not wish to contradict the version of PW5. Thus, to my mind the testimony of PW5 is not helpful to CBI in any manner to establish that A12 used to get air-tickets through PW5 in favour of different persons in whose favour the above said additional passport booklets were issued in the name and personal particular of Rajesh Vohra.
(iii) In the light of aforesaid discussion, I am of the considered opinion that CBI has miserably failed to bring home the guilt of A12, accordingly, I hereby acquit him from all charges.
Common contentions on behalf of A1 to A4:-
57. Learned counsels appearing for A1 to A4 submit that A1 to A4 were working in RPO, New Delhi at the time of commission of alleged offence. It was vigorously contended that since the passport is not a valuable thing, accused persons cannot be held guilty for the offence punishable under Section 13 (2) of PC Act.
(i). Per contra, learned Senior Public Prosecutor appearing for CBI refuted the said contention by sagaciously arguing CBI No. 83/16 (old No. 08/12) Page 96 of 219 State through CBI v. Bibianus Toppo & Ors.
that since passport confers a valuable right over a person, passport is a valuable thing.
58. To deal with the said contention, I deem it appropriate to refer to some of the provisions of Passport Act to ascertain the importance of passport. 'Passport' is defined in Section 2
(b) and 'travel document' is defined under Section 2 (e) of Passport Act and same are read as under:-
Section 2 (b) : "passport" means a passport issued or deemed to have been issued under this Act.
Section 2 (e) : "travel documents" means a travel document issued or deemed to have been issued under this Act.
(i) Significance of 'passport' and 'travel document' is described in Section 3 which reads as under:-
Section 3 : Passport or travel document for departure from India - No person shall depart from, or attempt to depart from India, unless he holds in this behalf a valid passport or travel document.
Explanation - For the purposes of this section -
(a) "passport" includes a passport which having been issued by or under the authority of the Government of a foreign country satisfies the conditions prescribed under the Passport (Entry into India) Act, 1920 (34 of 1920), in respect of the class of passports to which it belongs;CBI No. 83/16 (old No. 08/12) Page 97 of 219
State through CBI v. Bibianus Toppo & Ors.
(b) "travel document" includes a travel document which having been issued by or under the authority of Government of a foreign country satisfies the conditions prescribed.
(emphasis supplied)
(ii) From the combined reading of Section 2(b), 2(e) and 3 of the Passport Act, it becomes crystal clear that no person can depart from the territory of India unless he holds a valid passport or travel document issued by the Passport Authority. In other words, passport creates a legal right in favour of a person to depart from the territory of India. Besides that, passport is also a valid document to prove the nationality of a person. It is also a valid document for the identity of a person.
59. Though there is a reference of "valuable thing" in Section 13 (1) (d), yet "valuable thing" is not defined in PC Act.
(i) Question arises whether passport can be considered as "valuable thing" or not? (ii) Though "valuable security" is defined under
Section 30 of IPC, but Penal Code is also silent qua "valuable thing". Section 30 reads as under:-
Section 30 "Valuable security" - The words "valuable security" denote a document which is, or purports to be, a document whereby any legal right is created, extended, transferred, restricted, extinguished or released, or whereby any person acknowledges that he lies under CBI No. 83/16 (old No. 08/12) Page 98 of 219 State through CBI v. Bibianus Toppo & Ors.
legal liability, or has not a certain legal right.
(emphasis supplied)
(iii) Bare perusal of the Section 30 of IPC makes it clear that if a document either creates, extends, transfers, restricts, extinguishes or releases any legal right in favour of any person OR where any person acknowledges any legal liability OR acknowledges that he has no certain legal right, such document shall be called as "valuable security".
(iv) As evident from the provisions of Passport Act that passport authorizes a person to travel beyond the territory of India, thus, passport creates a legal right in favour of its holder to visit abroad subject to fulfillment of other requirements such as visa etc. but no person can depart beyond the territory of India unless he holds a valid passport or travel document. Thus, to my mind, passport is a valuable security.
(v) It can also be said that the "valuable security" is one of the species of "valuable things". All "valuable securities" may be "valuable things" but may not be vice-versa. However, in view of the provisions of Passport Act, it can be safely culled out that passport is a "valuable thing".
60. Next contention raised by learned counsels appearing for A1 to A4 is that since accused persons had acted in good faith while discharging their official duties, if they had committed any mistake in discharging their official duties, they cannot be held CBI No. 83/16 (old No. 08/12) Page 99 of 219 State through CBI v. Bibianus Toppo & Ors.
liable for the penal offences.
(i) Per contra, learned Sr. Public Prosecutor refuted the said contention by arguing that since accused persons had not taken due care deliberately while performing their duties, the plea of good faith is not available to them.
61. 'Good Faith' is defined under Section 52 of IPC, which reads as under:-
"Nothing is said to be done or believed in "good faith", which is done or believed without due care or attention."
(i) Thus, before taking the plea of good faith, the person who takes such plea has to show by producing relevant material/evidence on record that he had taken due care and attention. The question whether the above accused persons had taken any such care and attention at the time of dealing with the files in question shall be discussed while discussing their role.
62. Learned counsels appearing for A1 to A4 vigorously argued that no reliance can be placed on the certificate issued under Section 65-B of Evidence Act i.e. Ex.PW1/D as PW1 Ajai Gautam was not a competent person to issue the said certificate. It was further argued that the said certificate had not been issued in accordance with law.
(i) Per contra, learned Senior Public Prosecutor CBI No. 83/16 (old No. 08/12) Page 100 of 219 State through CBI v. Bibianus Toppo & Ors.
appearing for CBI refuted the said contention by arguing that PW1 was not only a competent person to issue the certificate but certificate was issued in accordance with law, hence there is no reason to disbelieve the deposition of PW1 when he deposed that data were not tempered with.
(ii) PW1 Mr. Ajai Gautam in his examination-in-chief deposed that he had joined National Informative Centre (NIC), New Delhi as Scientific Assistant in August 1997, thereafter he was sent on deputation to RPO, New Delhi. He further testified that the computerization started in RPO, New Delhi in the year 1994. In his cross-examination, he clarified that being the Scientific Technical Assistant, it was his duty to provide technical support to RPO officials. He further testified that the servers, which were installed in RPO were of HCL Technology Limited. He further testified that 3-4 servers were installed in RPO, New Delhi and further clarified that about 100 dump terminals; 20-25 computers with printers and five scanners were installed in the RPO, New Delhi. He further testified that he had generated the work-sheets from the computer system of RPO, New Delhi and handed over the same to Mr. I. M. Sabharwal (PW50) for furnishing the same to CBI and further testified that print outs generated by him were correct and the same are exhibited as Ex. PW1/B, Ex. PW4/B, Ex. PW6/A, Ex. PW6/B, Ex. PW6/H, Ex. PW6/G, Ex. PW6/F, Ex. PW1/C and Ex. PW6/D. He further testified that he had issued the certificate under Section 65B of Indian Evidence Act (Ex. PW1/D).
(iii) Perusal of Ex. PW1/D reveals that PW1 certified CBI No. 83/16 (old No. 08/12) Page 101 of 219 State through CBI v. Bibianus Toppo & Ors.
that the print outs generated by him in respect of files as mentioned therein were true and actual reproduction of the data maintained at Regional Passport Office, New Delhi as electronic record in the ordinary course of business and the said data/record were not tempered with. He further certified that the computer system from which the above prints out were taken, was properly working and further certified that computer/terminal through which the concerned officials worked during the relevant period, were also properly working.
(iv) PW1 Sh. Ajai Gautam was deputed at the office of RPO from NIC and his duty was to provide technical support to the RPO, New Delhi, it can safely be culled out that PW1 was a competent person for the maintenance of computers/servers installed in the office of RPO, New Delhi. In other words, he was one of the competent persons to certify that the data as mentioned in the above said prints out were actual reproduction of the electronic record as maintained at RPO, New Delhi and same were not tempered with and the computers/terminals through which same were fed and generated, were working properly.
(v) PW1 in his deposition testified that about 100 dump terminals were installed in the office of RPO, New Delhi. In his cross-examination, he clarified that Dump terminals means that there is no memory and hard disc and request from the system directly goes to server through LAN. It establishes that dump terminals were provided to most of the staff of RPO, New Delhi to feed information/data, which directly stored in the server through LAN. There is nothing on record which may show that dump terminals or CBI No. 83/16 (old No. 08/12) Page 102 of 219 State through CBI v. Bibianus Toppo & Ors.
computers from which the officials of RPO, New Delhi used to feed information as mentioned in the above said prints out were not working properly or that server was not working properly at the relevant time.
(vi) PW50 Mr. I. M. Sabharwal, the then Superintendent in the office of RPO, New Delhi corroborated the testimony of PW1 by deposing that he had supplied the above said prints out to CBI through his letter Ex. PW1/A. In his deposition, he clarified that the said documents were generated by PW1.
(vii) In view of the above discussion, I do not find any reason to disbelieve the deposition of PW1 Sh. Ajai Gautam. To my mind the above said documents i.e. Ex. PW1/B, Ex. PW4/B, Ex. PW6/A, Ex. PW6/B, Ex. PW6/H, Ex. PW6/G, Ex. PW6/F, Ex. PW1/C and Ex. PW6/D are admissible in evidence and I do not find any infirmity or illegality in the certificate issued under Section 65 B of Indian Evidence Act.
63. Learned counsels appearing for A1 to A4 vehemently contended that to prove the guilt of accused persons for the offence punishable under Section 13 (2) r/w 13 (1)(d) of PC Act, prosecution has to establish beyond doubts that there was dishonest intention on the part of accused persons, but since during trial CBI failed to produce any evidence to establish that there was any such dishonest intention on the part of A1 to A4, accused persons cannot be held guilty for the offence punishable under Section 13(1)(d) of P.C Act.
CBI No. 83/16 (old No. 08/12) Page 103 of 219State through CBI v. Bibianus Toppo & Ors.
(i) Per contra, learned Sr. Public Prosecutor appearing for CBI refuted the said contention by arguing sagaciously that though dishonest intention is one of the essential ingredients to prove the guilt of accused persons for the offences under Section 13(1)(d)(i) and (ii), but dishonest intention is not required to prove the guilt of the accused persons for the offence under Section 13(1)(d)(iii) of PC Act.
64. From the submissions advanced by counsel for both the parties, short but interesting question emerges whether 'criminal intent' or 'dishonest intention' is pre-requisite ingredient for the offence punishable under Section 13 (2) read with Section 13 (1)
(d) of PC Act or not?
(i) Section 13(1) (d) of Prevention of Corruption Act is in following three parts:-
Whoever:-
(i) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage; or
(ii) by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or
(iii) while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest;
(emphasis supplied) CBI No. 83/16 (old No. 08/12) Page 104 of 219 State through CBI v. Bibianus Toppo & Ors.
(ii) Bare perusal of clause (i) and (ii), makes it clear that dishonest intention is an essential ingredient as held by the Apex Court in C. K. Jaffer Sharief v/s. State, 2012 (11) SCALE 71 and S. K. Kale v/s. State of Maharashtra, AIR 1977 SC 822. But there is nothing in the said judgements, which may show that mens-rea is also an essential ingredient for the offence under clause (iii) of Section 13 (1)(d) of Prevention of Corruption Act, 1988. This issue was raised before the High Court of Delhi in Runu Ghosh v/s. CBI decided by the High Court of Delhi in Criminal Appeal No. 482 of 2002 on December 21, 2011. The relevant portions of the judgement are reproduced as under:-
70. There is no doubt that Section 13 (1) (d) (iii) differs from other parts of the Act, not only in structure, but also in substance. The use of terms such as habitually accepts agrees to accept attempts consideration which he knows to be inadequate dishonestly or fraudulently misappropriates. (property entrusted to him or allows any other person so to do); corrupt or illegal abusing his position are clear pointers to Parliamentary intention that mens rea is essential to be proved in relation to the offences provided for under Section 13 (1) (a) to (d) (i) and (ii). Section 13 (1) (d) (iii) contains no such words, which point to criminal intent.
There is substance in the Appellants arguments that the Supreme Court had previously interpreted Section 5 (1) (d) so as to mean the existence of criminal motive (dishonest intent). This was stated in Narayanan Nambyar's case (supra) as follows:
The gist of the offence under this clause is, that a public officer abusing his position as a public servant obtains for himself or for any other person any CBI No. 83/16 (old No. 08/12) Page 105 of 219 State through CBI v. Bibianus Toppo & Ors.
valuable thing or pecuniary advantage. Abuse means misuse i.e. using his position for something for which it is not intended. That abuse may be by corrupt or illegal means or otherwise than those means. The word otherwise has wide connotation and if no limitation is placed on it, the words corrupt, illegal, and otherwise mentioned in the clause become surplus age, for on that construction every abuse of position is gathered by the clause. So some limitation will have to be put on that word and that limitation is that it takes colour from the preceding words along with which it appears in the clause, that is to say something savouring of dishonest act on his part.... Similarly, the other cases cited, i.e. S.P. Bhatnagar (whether the accused abused their position and acted dishonestly or with a corrupt or oblique motive) Abdulla Mohammed (supra); A. Wati Ao; C.K. Damodaran Nair; M. Mohiuddin and R. Balakrishna Pillai (supra) support this view. In the last decision, it was held that the offence requires intention, and the offence comprehended an element of mental state would be necessary to do a conscious act to get the required result of pecuniary advantage or to obtain any valuable thing, even if it is for someone else.
71. The question is, whether this setting compels the court to hold that mens rea is, like the other provisions, a necessary pre-requisite or pre-condition which the prosecution has to establish, from the conduct of a public servant. It would also be relevant here to mention that Section 13 (1) (e) appears to be in line with Section 13 (1) (d) (iii) in as much as there is no pointer to criminal intent. That provision declares that a public servant in possession of pecuniary resources or property which he CBI No. 83/16 (old No. 08/12) Page 106 of 219 State through CBI v. Bibianus Toppo & Ors.
cannot satisfactorily account, or which are disproportionate to his known sources of income is guilty of criminal misconduct. Here, the sources of income may or may not be connected with the public servants duties; the emphasis is on inability to satisfactorily account, or that the wealth or assets held are disproportionate to the servants known sources of income. If the ingredients of the provision are satisfied, it is not necessary to prove mens- rea. Section 13 (1) (e) enacts that a public servant is guilty of criminal misconduct:
(e) if he or any person on his behalf, is in possession or has, at any time during the period of his office, been in possession for which the public servant cannot satisfactorily account, of pecuniary resources or property disproportionate to his known sources of income.
The ingredients which the prosecution has to prove in relation to this offence, (which is in pari materia with Section 5 (1) (e) of the 1947 Act, were spelt out in M. Krishna Reddy v State Deputy Superintendent of Police 1992 (4) SCC 45 as follows:
To substantiate a charge under Section 5(1)(e) of the Act, the prosecution must prove the following ingredients, namely, (1) the prosecution must establish that the accused is a public servant, (2) the nature and extent of the pecuniary resources or property which were found in his possession (3) it must be proved as to what were his known sources of income, i.e. known to the prosecution and (4) it must prove, quite objectively, that such resources or property found in possession of the accused were disproportionate to his known sources of income... It is clear therefore, that mens rea or criminal intent does not have to be proved in the case of a charge under CBI No. 83/16 (old No. 08/12) Page 107 of 219 State through CBI v. Bibianus Toppo & Ors.
Section 13 (1) (e); it is enough for the prosecution to establish the four ingredients of the offence. As noticed earlier, the setting of this provision too needs to be taken into account, along with the legislative history (of Section 5 of the earlier Act, with its amendments, and the new Section 13 (1) (d) re-cast in a totally different manner) -it appears immediately after another offence of criminal misconduct (Section 13 (1) (d) (iii)) that does not textually allude to or require intent, or mens rea.
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24.The distinction between a strict construction and a more free one has disappeared in modern times and now mostly the question is what is true construction of the statute? A passage in Craies on Statute Law, 7th Edn.
reads to the following effect:
The distinction between a strict and a liberal construction has almost disappeared with regard to all classes of statutes, so that all statutes, whether penal or not, are now construed by substantially the same rules. ... They are construed now with reference to the true meaning and real intention of the legislature. At p. 532 of the same book, observations of Sedgwick are quoted as under:
The more correct version of the doctrine appears to be that statutes of this class are to be fairly construed and faithfully applied according to the intent of the legislature, without unwarrantable severity on the one hand or unjustifiable lenity on the other, in cases of doubt the courts inclining to mercy CBI No. 83/16 (old No. 08/12) Page 108 of 219 State through CBI v. Bibianus Toppo & Ors.
73. Having regard to the previous history of the statute, the amendments to the 1947 Act, its avowed objects and the distinctive structure which Parliament adopted consciously, under the 1988 Act, despite being aware of the pre-
existing law, as well as the decisions of the Court- the conclusion which this Court draws is that mens rea is inessential to convict an accused for the offence under Section 13 (1)
(d) (iii). It would be sufficient if the prosecution proves that the public servant "obtains" by his act, pecuniary advantage or valuable thing, to another, without public interest. The inclusion of public interest, in the opinion of the Court, tips the scale in favour of a construction which does not require proof of mens rea. There can be many acts of a public servant, which result in pecuniary advantage, or obtaining of a valuable thing to someone else; typically these may relate to payment of royalty, grant of license or concessions, issuance of permits, authorizations, etc. Yet, such grants, concessions, or other forms of advantages to third parties would not criminalize the public servants actions, so long as they have an element of public interest. They (acts of the public servant) are outlawed, and become punishable, if they are "without public interest".
74. Having now settled the true interpretation of whether the offence under Section 13 (1) (d)
(iii) requires proof of mens-rea, it would now be vital to settle what really the prosecution would have to establish to say that the public servants actions or decisions, which result in a third party obtaining a pecuniary advantage or valuable thing, without public interest. The expression "public interest" is known to law; at the same time its meaning is not rigid, and takes colour from the particular statute or policy (Ref. Srinivasa Co-operative House Building Society v Madam Gurumurthy Sastry 1994 (4) SCC 675). It might be useful to CBI No. 83/16 (old No. 08/12) Page 109 of 219 State through CBI v. Bibianus Toppo & Ors.
consider the following formulation of what is public interest, in relation to actions by public officials or agencies or instrumentalities of state, in every sphere of government functioning, given in Shrilekha Vidyarthi (Kumari) v. State of U.P., (1991) 1 SCC 212:
There is an obvious difference in the contracts between private parties and contracts to which the State is a party. Private parties are concerned only with their personal interest whereas the State while exercising its powers and discharging its functions, acts indubitably, as is expected of it, for public good and in public interest. The impact of every State action is also on public interest. This factor alone is sufficient to import at least the minimal requirements of public law obligations and impress with this character the contracts made by the State or its instrumentality. It is a different matter that the scope of judicial review in respect of disputes falling within the domain of contractual obligations may be more limited and in doubtful cases the parties may be relegated to adjudication of their rights by resort to remedies provided for adjudication of purely contractual disputes...To this extent, the obligation is of a public character invariably in every case irrespective of there being any other right or obligation in addition thereto. An additional contractual obligation cannot divest the claimant of the guarantee under Article 14 of non- arbitrariness at the hands of the State in any of its actions. In a later decision, LIC of India v. Consumer Education & Research Centre, (1995) 5 SCC 482, it was held that:
Public authorities or those whose acts bear insignia of public element, action to public duty or obligation are enjoined to act in a manner i.e. fair, just and equitable, after taking objectively all the relevant options into consideration and in a manner that is reasonable, relevant and germane to effectuate CBI No. 83/16 (old No. 08/12) Page 110 of 219 State through CBI v. Bibianus Toppo & Ors.
the purpose for public good and in general public interest and it must not take any irrelevant or irrational factors into consideration or appear arbitrary in its decision. A recent judgment, has examined the concept, in NOIDA Entrepreneurs Association v. NOIDA, (2011) 6 SCC 508, in the light of provisions of Section 13 (1) (d), though the context of the courts' judgment were directions issued to investigate into action of public servants.
The court held that:
The State or the public authority which holds the property for the public or which has been assigned the duty of grant of largesse, etc. acts as a trustee and, therefore, has to act fairly and reasonably. Every holder of a public office by virtue of which he acts on behalf of the State or public body is ultimately accountable to the people in whom the sovereignty vests. As such, all powers so vested in him are meant to be exercised for public good and promoting the public interest. Every holder of a public office is a trustee.
xxxxxxxxxxxx xxxxxxxxxxxx
41. Power vested by the State in a public authority should be viewed as a trust coupled with duty to be exercised in larger public and social interest. Power is to be exercised strictly adhering to the statutory provisions and fact situation of a case. Public authorities cannot play fast and loose with the powers vested in them. A decision taken in an arbitrary manner contradicts the principle of legitimate expectation. An authority is under a legal obligation to exercise the power reasonably and in good faith to effectuate the purpose for CBI No. 83/16 (old No. 08/12) Page 111 of 219 State through CBI v. Bibianus Toppo & Ors.
which power stood conferred.
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77. The court, as a consequence has to determine the objective criteria by which acts (of public servants) without public interest, are to be judged, if mens rea (to obtain pecuniary advantage or valuable thing to another) is not a necessary ingredient. This exercise is essential because in the absence of mens rea (which has been ruled out) the court has to say what "acts" resulting in someone obtaining pecuniary advantage or valuable thing are "without public interest". Obviously the mere fact that a third party obtains pecuniary advantage, or a valuable thing, is insufficient; a supplier of equipment to public servants or offices, a travel agent who makes bookings for a public agency, a businessman or corporate group granted licenses or clearances, by departments or agencies of the Government, would all stand to benefit. Many of these decisions are in fact, and all are, expected to be in public interest.
Therefore, the kind of behaviour which amounts to an "act" resulting in someone "obtaining pecuniary advantage" or "valuable thing" "without public interest" needs to be spelt out.
78. In a previous part of this judgment, what constitutes "public interest" and the trust element, which informs every decision of a public servant or agency, was discussed and emphasized. The State in its myriad functions enters into contracts, of various kinds, involves CBI No. 83/16 (old No. 08/12) Page 112 of 219 State through CBI v. Bibianus Toppo & Ors.
itself in regulation, awards or grants largesse, and holds property. Each action of the State must further the social or economic goals sought to be achieved by the policy. Therefore, when a public servants decision exhibits complete and manifest disregard to public interest with the corresponding result of a third party obtaining pecuniary advantage or valuable thing, he is fastened with responsibility for "criminal misconduct" under Section 13 (1) (d) (iii). There is nothing reprehensible in this interpretation, because the "act" being "without public interest" is the key, the controlling expression, to this offence. If one contrasts this with "abuse" of office resulting in someone "obtaining" "pecuniary advantage or valuable thing", it is evident that Section 13 (1)(d) (ii) may or may not entail the act being without public interest. This offence- under Section 13 (1) (d) (iii) advisedly does not require proof of intent, or mens rea, because what Parliament intended was to punish public servants for acts which were without public interest. This kind of offence is similar to those intended to deal with other social evils, such as food and drug adulteration, (offences under Prevention of Food Adulteration Act, Section 13 (1), Drugs and Cosmetics Act; Section 7 (1) Essential Commodities Act, 1955, Section 25, Arms Act, 1959), possession of explosives, air and water pollution, etc.
79. What then is the behaviour or act which attracts such opprobrium as to result in criminal responsibility? It is not every act which results in loss of public interest, or that is contrary to public interest, that is a prosecutable offence. There can be no doubt that all acts prejudicial to public interest, can be the subject matter of judicial review. In those cases, courts consider whether the decision maker transgressed the zone of reasonableness, or breached the law, in his action. However, it is only those acts done with complete and manifest disregard to the norms, and manifestly injurious to public CBI No. 83/16 (old No. 08/12) Page 113 of 219 State through CBI v. Bibianus Toppo & Ors.
interest, which were avoidable, but for the public servants overlooking or disregarding precautions and not heeding the safeguards he or she was expected to, and which result in pecuniary advantage to another that are prosecutable under Section 13(1) (d) (iii). In other words, if the public servant is able to show that he followed all the safeguards, and exercised all reasonable precautions having regard to the circumstances, despite which there was loss of public interest, he would not be guilty of the offence. The provision aims at ensuring efficiency, and responsible behaviour, as much as it seeks to outlaw irresponsibility in public servants functioning which would otherwise go unpunished. The blameworthiness for a completely indefensible act of a public servant, is to be of such degree that it is something that no reasonable man would have done, if he were placed in that position, having regard to all the circumstances. It is not merely a case of making a wrong choice; the decision should be one such as no one would have taken.
(emphasis supplied)
(iii) From the above judgement, it becomes crystal clear that mens-rea is not required for the offence under Section 13(1)
(d) (iii) of the Prevention of Corruption Act. Prosecution is required only to prove that public servant while holding the office obtains for any person any valuable thing or pecuniary advantage without any public interest.
Circulars issued from time to time:-
65. Since during the course of arguments, counsel for CBI No. 83/16 (old No. 08/12) Page 114 of 219 State through CBI v. Bibianus Toppo & Ors.
accused persons also referred to various circulars issued by the Ministry of External Affairs to press their contentions that the procedure for issuance of additional passport booklets was substantially liberalized by the Government of India, I deem it appropriate to refer to the said circulars. The said circulars are collectively exhibited as PW51/F (colly). First circular in this regard was issued on June 24, 1997 and same is reproduced as under:-
Ministry of External Affairs (CPV Division) No. V.1/401/190 24.6.97 CIRCULAR With the introduction of MSP/MRP passport booklets, the personal particulars of the holder are entered in the inner portion of front and back cover of the passport booklet. It is no longer feasible to attach or seal the additional booklet to the previous old passport.
2. It has, therefore, been decided henceforth that while issuing additional booklet the practice of attaching and sealing the same with the old passport should be discontinued with immediate effect. The old passport should be cancelled and returned to the holder and suitable endorsement regarding old passport made in the new additional booklet. The validity of the additional booklet should be in continuation to the old passport of the holder.
3. In case second additional booklet is issued to the holder, the endorsement in the second additional booklet should carry the details of original passport and first additional booklet so CBI No. 83/16 (old No. 08/12) Page 115 of 219 State through CBI v. Bibianus Toppo & Ors.
that when asked by the appropriate authority, the holder should produce the same.
(Riva G. Das) Deputy Secretary (PV-I) All PIAs in India & Abroad
(i) The said circular was modified by issuing another circular dated November 25, 1997 wherein it was directed that instead of cancelling the original passport having valid visa, to put a stamp across the first three pages of the used booklet. The relevant portion of said circular reads as under:-
2. In view of the feedback received from our missions abroad, it has been decided to review the earlier decision. Instead of cancelling the original passport having valid visa, it has been decided to put a stamp across the first three pages of the used up booklet which would reads as " extended by the issue of a fresh booklet'
3. In the additional booklet, observation would read as:
"Holder has previously travelled on passport No. ........ dated........ issued at ........ which holds valid visas." (the details of the original passport may be included here, where there is a change of name, earlier name may be given).
4. This will be implemented with effect CBI No. 83/16 (old No. 08/12) Page 116 of 219 State through CBI v. Bibianus Toppo & Ors.
from December 15, 1997, in Missions abroad and with effect from December 1, 1997, in Passport Offices. In case of a subsequent passport booklet, details of the original passport as well as the previous additional booklet may be given.
6. Kindly confirm receipt.
(ii) Vide circular dated March 6, 2002, the condition of fresh police verification qua additional passport booklet and miscellaneous services was dispensed with. The relevant para are para 3 and 4, which read as under:-
3. Regrettably, we are noticing a reluctance among the PIAs to imbibe the spirit of the various people-friendly reforms being introduced by the Ministry. There is need to shake-off old and fossilised thinking and adopt a dynamic, creative and positive approach. For instance, now that the requirement of fresh police verification has been dispensed with for re-issue cases and additional booklets, there is no reason why these services cannot be provided within 3-4 working days when the original passport was issued from the same Passport Office.
4. Please discuss the possibilities with your PIAs and staff and send your report as to what steps have you taken to ensure that the fruits of the reforms reach the general public. I expect your reply by March 15, 2002.
(iii) Vide circular dated May 26, 2003, charges for Tatkal services was dispensed with and it was directed to provide miscellaneous services within maximum 3-5 days without charging CBI No. 83/16 (old No. 08/12) Page 117 of 219 State through CBI v. Bibianus Toppo & Ors.
any additional fee. The relevant portion of the circular reads as under:-
As it has been decided to render all miscellaneous services on the same day or maximum within 3-5 days, Ministry has decided not to charge any additional fee for rendering miscellaneous services under the tatkal scheme and has therefore deleted sl. no. 23 of the Schedule IV of the Passport Rules, 1980, originally numbered as 35 in Gazette Notification dated 22.05.2000, which had been renumbered as 23 in Gazette Notification dated 28.03.02 at the time of revision of Passport fee last year.
2. It is therefore reiterated that all miscellaneous services should be provided on the same day or maximum within 3-5 days, without charging any additional fee under the tatkal scheme.
3. A revised Gazette Notification dated 23.05.2003 issued by the Ministry to this effect is enclosed.
(iv) Vide circular dated April 29, 2004, all PIAs were authorised to issue additional passport booklets irrespective of the fact whether they had issued original passport or not subject to the clearance of Index/PAC/ check within 3-5 days preferably on same day without charging additional fee. The relevant portion is reproduced as under:-
"In order to avoid any recurrence of such instances in future, which causes undue harassment to the applicants, it has, therefore, been decided to reiterate Ministry's instructions on issue of additional booklet that any PIA in India or abroad shall issue additional booklet to the applicants, irrespective of place of original CBI No. 83/16 (old No. 08/12) Page 118 of 219 State through CBI v. Bibianus Toppo & Ors.
issue of passport and their residential address, subject to index/PAC check within 3-5 days, preferably same day, without charging any additional fee as specified earlier under the Tatkal scheme, since the same has been discontinued vide Ministry's circular of even number dated 25.5.2003. In case of any doubt, the help of PISON may be taken to ascertain the details of original passport issued by other PIA.
It has been noticed that in the past, whenever revised instructions/circulars were issued by the Ministry, the same were not implemented, either fully or in part, by PIAs and staff of the Passport Offices as the revised instructions/circulars were not brought to their notice or as they were not appropriately briefed to by the Passport Officers concerned. Accordingly, all Passport Officers should ensure that the revised instructions and circulars are circulated amongst the all PIAs and staff and necessary briefing are conducted so that the passport services are rendered to the applicants according to the rules to avoid unnecessary harassment to the applicants.
It is also requested that signatures of all PIAs and staff may be obtained when the instructions/circulars are circulated to them. A copy of the instructions/circulars with the signatures of the PIAs and staff may be forward to Ministry along with the acknowledgement.
(v) Vide circular dated July 11, 2002, procedure for valid visa booklet was issued and relevant portion reads as under:-
Procedure for Valid visa Booklet Cases "The passport containing valid visas are CBI No. 83/16 (old No. 08/12) Page 119 of 219 State through CBI v. Bibianus Toppo & Ors.
accepted at a separate counter No.6 only. The counter clerk at the time of submission of form by the applicant for an additional booklet, checks old passport, scrutinizes the application form and returns the passport to the applicant after retaining the photocopy of the old passport. Thereafter, a computerized receipt in lieu of the fee charges is issued to the applicant. The files are then sent to the Index Section for Index checking who in turn puts their remarks on the files regarding old references. After that file moves for 'Hit' checking; there also, they check the old particulars and except photographs whether the applicant has obtained more than one passport, etc. if the file numbers are in sequence then it is presumed that the hit is clear. The file number of old references are noted in the existing file so as to ensure that no other passport is issued to the applicant. Thereafter, the file moves to the Dealing Assistant for putting up to the PIA for grant order. The PIA, in turn, checks the hit list and index report including any other remarks passed on the file by the Dealing Hand, Indexer and Hit List clerks. No police verification (whether prior or post) would henceforth be required even if there is a charge in address.
Once all these reports are clear, the PIA passes the order on file for issue of an Additional Booklet."
(vi) From the combined reading of all the circulars, it becomes abundantly clear that the procedure for issuance of additional passport booklet was liberalised from 1997 to 2004. The stress of Ministry of External Affairs was to minimize the hardship of public at the time of getting additional passport booklet and miscellaneous services. However, simultaneously ample precaution was also taken to ensure that the said procedure be not misused by CBI No. 83/16 (old No. 08/12) Page 120 of 219 State through CBI v. Bibianus Toppo & Ors.
any unscrupulous person by directing that the additional passport booklets shall be issued subject to clearance of Index/PAC/HIT and in case of any doubt, officials of Passport office shall take the help of PISON to ascertain the details of original passport issued by other PIA. Simultaneously, at the time of dealing with the request for additional passport booklet, officials were also required to take the photocopy of previous passport also.
(vii) Further, from the circulars dated June 24, 1997 and November 25, 1997, it also becomes crystal clear that at the time of obtaining the additional passport booklet, officials of RPO are also required to affix a stamp of 'Cancellation and Returned' on the original/previous additional passport booklet, if any. Simultaneously, they are also required to affix a stamp on the new additional passport booklet as described in circular dated November 25, 1997.
66. Now coming to Rule 2 (iii) of the Passports Rules, 1980 wherein the circumstances under which additional passport can be issued is described. Rule reads as under:-
Issuing a fresh passport booklet when the pages in the booklet held are almost exhausted;
(i) Proviso to Rule 5 empowers the Passport Issuing Authority to compel the applicant to furnish additional information, documents or certificate which may be considered necessary by such authority for the disposal of the application. The proviso reads as under:-CBI No. 83/16 (old No. 08/12) Page 121 of 219
State through CBI v. Bibianus Toppo & Ors.
Provided further that in the course of any inquiry under sub-section (2) of section 5, a passport authority may require an applicant to furnish such additional information, documents or certificates, as may be considered necessary by such authority for the proper disposal of the application.
(emphasis supplied)
(ii) Bare perusal of above provisions makes it clear that additional passport booklet can be issued when the pages of previous passport booklet are going to be exhausted and passport issuing authority has ample power to ask for further additional information/documents/certificate as may be considered necessary for issuance of such additional passport booklet.
Contentions qua accused Harbhajan Yadav (A2) :-
67. Learned counsel appearing for A2 fairly conceded that at the relevant time, A2 was posted as counter-clerk but contended that he made recommendations in the files in question for issuance of additional passport booklets in good faith while discharging his official duties. It was further argued that whenever the applicants moved the application for issuance of additional passport booklets, applicants used to place the copy of previous passport and they also produced the original passport for inspection. It was urged that same was checked by A2 and on checking, he found that the photograph affixed on the application form was of the same person in whose favour the original passport was issued as his photograph was CBI No. 83/16 (old No. 08/12) Page 122 of 219 State through CBI v. Bibianus Toppo & Ors.
also found affixed on the said passport, thus it cannot be said that A2 had committed any offence when he made a recommendation to issue additional passport booklets in favour of the applicants from time to time. It was further contended that no instrument was provided to the counter clerk to check the genuineness of the documents and photocopy thereof produced by the applicants. It was further contended that as per practice and rules, A2 had affixed all requisite stamps at the relevant spaces provided in the forms, thus it cannot be said that he had committed any offence.
68. Per contra, learned Senior Public Prosecutor appearing for CBI refuted the said contentions by arguing that A2 had made recommendation for issuance of additional passport booklets in all the files without going through the original passports as he was in conspiracy with the applicants. It was further submitted that the same passport was used for obtaining eight additional passports booklets in the name and personal particulars of Rajesh Vohra, which was not permissible. It was submitted that the original passport could be used only once at the time of obtaining first additional passport booklet and thereafter, applicant was supposed to produce additional passport booklet at the time of obtaining second additional passport booklet and similarly he was supposed to produce second additional passport at the time of obtaining third additional passport booklet and so on. But in the instant case, A2 made recommendations on the basis of same passport without raising any objection that applicant had already obtained additional passport booklet on the basis of original passport, copy of which was annexed with the application.
CBI No. 83/16 (old No. 08/12) Page 123 of 219State through CBI v. Bibianus Toppo & Ors.
(i) It was further contended that the plea of good faith is not available to A2 as he acted dishonestly and he had not taken requisite precaution while making recommendations in favour of the applicants. It was further contended that even no instrument was required to detect the fraud played by the applicants. It was further contended that A2 had deliberately not raised any objection as he was in conspiracy with the applicants.
Findings qua accused Harbhajan Yadav (A2):-
69. It is undisputed fact that A2 was posted as counter-clerk and he made recommendations in all eight files in favour of the applicants for issuance of additional passport booklets. The passport files are exhibited as Ex. PW4/A, Ex. PW4/C, Ex. PW2/A, Ex. PW2/B, Ex. PW2/C, Ex. PW6/C, Ex. PW4/D and Ex. PW6/E.
(i) Perusal of all the above eight additional passport booklet files reveals that at the time of applying for additional passport booklets, applicants had annexed the photocopy of original passport bearing No. B-2321175, which was issued in the name and personal particulars of Rajesh Vohra. Along with the application forms, applicants had also submitted a request letter wherein they mentioned the reasons for seeking additional passport booklets. As per the request letters, applicants sought additional passport booklets from time to time on the ground that pages of previous passport i.e. passport bearing No. B-2321175 had already been full and they had to visit abroad urgently. The request letters are separately exhibited as Ex. PW7/B, Ex. PW7/D, Ex. PW7/E, Ex. PW7/G, Ex. PW7/J, Ex.
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PW7/M, Ex. PW7/P and Ex. PW7/R.
(ii) Since, the applicants had sought additional passport booklets on the ground that pages of previous passport had been full, being the counter clerk, it was the duty of A2 to check whether the pages of previous passport had already been full or not and to mention this fact in his noting. But there is nothing on record which may show that the pages of previous passport had been full or likely to be exhausted. Indisputably, A2 while making recommendations in favour of applicants had not mentioned in his noting that the pages of previous passport had either been full or likely to be exhausted.
70. Now question arises whether any instrument was required to see that pages of previous passport had been full as alleged by the applicants. The answer to the question is certainly in negative. Admittedly, the applicants had not placed the photostate copy of entire previous passport. There is nothing on record to establish the fact that pages of previous passport had been full. Since, A2 had made the recommendations for issuance of additional passport booklets, onus is shifted upon him to establish on what material, he satisfied himself that pages of previous passport had been full, but he failed to produce any such evidence on record.
(i) It is undisputed fact that at the time of issuing additional passport booklet, it is the duty of Passport Issuing Authority to cancel the original passport by putting the seal of cancellation and if there is a valid visa in the previous passport, RPO shall affix the CBI No. 83/16 (old No. 08/12) Page 125 of 219 State through CBI v. Bibianus Toppo & Ors.
stamp "Extended by the issue of a fresh booklet" in terms of circular dated November 25, 1997.
(ii) Perusal of aforesaid files reveals that when the applicant applied first time for issuance of additional passport booklet on May 22, 2003 (in file Ex. PW4/A) applicant had annexed the copy of original passport bearing No. B-2321175 and on the said photocopy, there is no seal of 'Cancellation'. It means that when the photocopy was prepared by the applicant from the above said original passport, the said passport was not bearing the seal of 'Cancellation'.
(iii) Admittedly, at the time of issuing additional passport booklet, in terms of circular dated June 24, 1997, RPO, New Delhi was required to cancel the previous passport by putting the seal of 'Cancellation'. It means that the counter-clerk must have cancelled the original passport bearing No. B-2321175 while making recommendation for issuance of additional passport booklet in file Ex. PW4/A.
(iv) Perusal of the remaining other seven files reveals that while applying for additional passport booklets, applicants enclosed the copy of above said previous original passport and the said photocopy bears the impression of seal of 'Cancellation' on two pages in all the files. This establishes that when the photocopy was prepared from the above said previous original passport, the said passport was bearing the seal of 'Cancellation', which must have been affixed by A2 while making recommendation in the file Ex. PW4/A. It means that when in all subsequent files, applicants produced the CBI No. 83/16 (old No. 08/12) Page 126 of 219 State through CBI v. Bibianus Toppo & Ors.
original previous passport i.e. B-2321175 for the inspection of A2 and its cancellation, A2 had occasion to see that the said original passport was bearing the seal of cancellation. The presence of said seal on the original passport and even the impression of seal on the photocopy of previous passport was sufficient enough for A2 to conclude or to raise objection that on the basis of said passport, one additional passport booklet had already been issued. But surprisingly, no such objection was raised by A2. This establishes that A2 had made the recommendations for issuance of additional passport booklet without checking the original as well as photocopy of previous passport.
(v) Since, the applicants had sought the additional passport booklets on the sole ground that the pages of previous passport had been full and they had to visit abroad urgently, it means that the applicants must have valid visa in his previous passport, thus in terms of circular dated November 25, 1997, it was the duty of RPO to affix the seal/stamp "Extended by the issue of a fresh booklet", but there is nothing on record, which may suggest that any such seal was ever affixed on the newly issued additional passport booklet from time to time.
(vi) Since, from the above, it becomes clear that A2 had not taken due care or attention while making recommendations in favour of the applicants for issuance of additional passport booklets, I am of the considered opinion that the plea of 'good faith' is not available to A2. Similarly, no scientific instrument was required to check whether pages of previous passport had been full and to ascertain whether the previous passport and copies thereof bear the CBI No. 83/16 (old No. 08/12) Page 127 of 219 State through CBI v. Bibianus Toppo & Ors.
seal of cancellation or not.
(vii) Being the counter-clerk, A2 was well aware that on his recommendations, applicants may get additional passport booklets, but despite that he did not highlight about the cancellation of previous passport and did not record the fact whether the pages of previous passport had been exhausted or not. Making recommendations in favour of applicants without highlighting the above discrepancies is certainly not in the public interest. Since, A2 assisted the applicants in getting additional passport booklets in the assumed name and personal particulars of Rajesh Vohra, I am of the view that A2 had acted without public interest when he made recommendations in favour of the applicants.
Contentions on behalf of A3 and A4:-
71. Learned counsel appearing for A3 vehemently contended that since there is a delay of several months in registration of FIR, a reasonable doubt arises over the prosecution case as the said delay remained unexplained during trial.
(i) It was further argued that in terms of Section 224 Cr.P.C charges should have been dropped by the prosecution against A3 as A3 has already been convicted in similar matters.
(ii) It was further contended that there is no cogent evidence on record to establish that the facility of checking photographs and signatures of the passport holder was available in CBI No. 83/16 (old No. 08/12) Page 128 of 219 State through CBI v. Bibianus Toppo & Ors.
the computer provided to A3. It was argued that there is no cogent evidence except the process sheets to establish that A3 had given HIT clearance in the files in question.
(iii) It was further argued that there is every possibility that the P number and Password of A3 might have been misused by some unscrupulous person. It was argued that in the absence of any cogent evidence, A3 cannot be held guilty for giving HIT clearance in the files.
(iv) It was further argued that there is no iota of evidence on record to establish that A3 had either taken any valuable thing or pecuniary advantage from the applicant(s) or from any other person at the time of giving alleged HIT clearance.
(v) In support of his contention, counsel placed reliance on the judgment K.M. Sujith v. State of Kerala, CRL A. No. 1707 of 2005 decided by High Court of Kerala on October 21, 2009.
72. Learned counsel appearing for A4 contended that as per prosecution version, A4 had given HIT clearance in one file i.e. Ex. PW4/C. It was contended that A4 had made several complaints to her senior officers that her Password was misused by one Charanjeet Singh, but no action was taken on her complaints. It was further submitted that Charanjeet Singh is facing trial in Passport scam cases in Patiala House Court, Delhi and A4 had also disclosed about the misuse of her 'P' number and Password to the investigating officer, CBI No. 83/16 (old No. 08/12) Page 129 of 219 State through CBI v. Bibianus Toppo & Ors.
but investigating officer had not conducted any investigation in this regard. It was further submitted that prior to 2004, there was no facility in her computer to match the photograph and signature of the applicants. It was argued that A4 had not dealt with the file Ex. PW4/C.
(i) Per contra, learned Senior Public Prosecutor appearing for CBI refuted the said contentions by arguing sagaciously that there is no delay in registration of FIR, hence the same is not fatal to the prosecution case in any manner. It was further contended that provisions of Section 224 Cr.P.C are not applicable in the facts and circumstances of the present case.
(ii) It was further contended that there are overwhelming evidence on record to establish beyond reasonable doubts that A3 and A4 were not only posted in HIT Section at the relevant time, yet they had dealt with the files in question and they had given HIT clearance without pointing out the dissimilarities in the photograph and signature of the applicants as well as without pointing out that additional passport booklets had already been issued in the name of applicant i.e. Rajesh Vohra. It was further argued that during trial, A3 and A4 failed to adduce any evidence to prove the fact that their 'P' number and Password were misused by any person.
Findings qua accused A3 and A4:-
73. It is undisputed fact that the FIRs were registered on August 27, 2004.
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(i) Perusal of the FIRs reveals that the same were registered on receipt of secret information. There is nothing on record which may show that secret information was received prior to August 27, 2004. Mere fact that the information was related to the offences committed in past is not sufficient to hold that there was any delay in registration of FIRs. Accordingly, I do not find any substance in the contention of learned defence counsel that there was inordinate delay in registration of FIRs or that same is fatal to the prosecution case.
74. Now coming to the Section 224 Cr.P.C, which reads as under:-
224. Withdrawal of remaining charges on conviction on one of several charges. When a charge containing more heads than one is framed against the same person, and when a conviction has been had on one or more of them, the complainant, or the officer conducting the prosecution, may, with the consent of the Court, withdraw the remaining charge or charges, or the Court of its own accord may stay the inquiry into, or trial of, such charge or charges and such withdrawal shall have the effect of an acquittal on such charge or charges, unless the conviction be set aside, in which case the said Court (subject to the order of the Court setting aside the conviction) may proceed with the inquiry into, or trial of, the charge or charges so withdrawn.
(i) Bare perusal of Section 224 Cr.P.C makes it clear that the said provision is applicable where accused is facing trial for more than one charges and accused had been held guilty for one or more charges. In such circumstances, the complainant or the prosecution as the case may be with the consent of the Court may CBI No. 83/16 (old No. 08/12) Page 131 of 219 State through CBI v. Bibianus Toppo & Ors.
withdraw the remaining charges. Since in the present case, accused has not been held guilty, the question of withdrawal of the charges does not arise. Moreover, as per Section 224 Cr.P.C, it is the prerogative of complainant or prosecution to withdraw the charges and accused can not claim as a matter of right to drop the charges. Thus, to my mind, in the facts and circumstances of the case, Section 224 Cr.P.C is not applicable.
75. A3 in his statement recorded under Section 313 Cr.P.C took the plea that when he was posted in HIT Section, his seat was located in open space in a Hall where entry of public as well as other employees of RPO was free without any restriction. A3 further submitted that at number of occasions, some employees and public persons used to be present near his seat at the time of opening the computer, thus there was every possibility that some one might have noted down his password and misused the same by giving HIT clearance in the files in question. It was submitted that he had not given HIT clearance in the files in question and he has been falsely implicated in this case.
(i) Similarly, A4 in her statement recorded under Section 313 Cr.P.C took the plea that she has been falsely implicated in this case in collusion with Charanjit Singh, who is facing trial at Patiala House Court in Passport scam matter. It was further submitted that during investigation, she disclosed to the investigating officer that she had made various complaints to higher officers for misuse of he 'P' number and Password but no investigation was conducted by the investigating officer. It was further submitted that she had not dealt CBI No. 83/16 (old No. 08/12) Page 132 of 219 State through CBI v. Bibianus Toppo & Ors.
with the file in question and further took the plea that prior to 2004, there was no facility in her computer to check photograph and signature of applicant.
(ii) From the above, it becomes crystal clear that A3 and A4 had taken the plea that in the files in question, HIT clearance might have been given by some unknown person by misusing their P number and Password.
(iii) In order to establish that A3 had given HIT clearance in five files Ex. PW2/A, Ex. PW2/B, Ex. PW2/D, Ex. PW6/C and Ex. PW4/D, prosecution has placed reliance on the process/worksheet Ex. PW6/F, Ex. PW6/G, Ex. PW6/H, Ex. PW6/B and Ex. PW6/A respectively. From the Ex. PW6/G, Ex. PW6/H, Ex. PW6/B and Ex. PW6/A, it becomes clear that A3 had given HIT clearance on January 30, 2004, February 6, 2004, March 25, 2004 and April 7, 2004 respectively whereas from Ex. PW6/F, it becomes clear that A3 had given HIT clearance on November 13, 2003.
(iv) In order to prove that A4 had given the HIT clearance in the file Ex. PW4/C, prosecution has placed reliance on the worksheet Ex. PW1/C, which shows that A4 had given HIT clearance on August 28, 2003.
76. Now question arises whether on the given dates facility of comparing photographs and signatures of the applicants with the passport holders was available in their computer or not?
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(i) In this regard, the testimony of PW1 is relevant. PW1 in his cross-examination clarified that in the year 2004, the terminals provided in HIT Section were able to display name, father's name, address, date of birth, sex and photograph of the applicant and detail of old passport booklet, if any. He further testified that since April 2004, this facility was provided in all computers installed in HIT Section. He further deposed that prior to April 2004, the above said facility was available since August 2002, but only in one computer of HIT Section. Thus, from the testimony of PW1 it becomes clear that during August 2002 to April 2004, the facility of checking personal particulars of applicants and his signatures and photographs was available only in one computer and since April 2004, the facility was available in all computers installed at HIT Section.
(ii) Since, A4 had given the HIT clearance in the file Ex. PW4/C on August 28, 2003, it means that the facility of comparing the photograph and signature of the applicant was not available in her computer. It is pertinent to state that there is no evidence on record to show that the computer having the facility of comparing the photograph and signature was provided to A4 in August 2003 when she had given the HIT clearance in Ex. PW4/C.
(iii) From Ex. PW6/G, Ex. PW6/H and Ex. PW6/B, it becomes clear that A3 had given the HIT clearance in the respective files prior to April 2004. Since, there is no evidence on record to establish that the computer having facility of checking photographs and signatures was provided to A3 during the said period, it cannot be said that any such facility was available in the computer of A3 when CBI No. 83/16 (old No. 08/12) Page 134 of 219 State through CBI v. Bibianus Toppo & Ors.
he had given the HIT clearance in the respective files.
(iv) No doubt, as per Ex. PW6/A, A3 had given the HIT clearance on April 7, 2004. Though PW1 deposed that since April 2004, the facility of checking photographs and signatures was available in all the computers of HIT Section, but he did not disclose whether the said facility was provided w.e.f April 1, 2004 or not. Thus, it cannot be said that whether the said facility was available in the computer of A4 on April 7, 2004 when he had given the HIT clearance vide Ex. PW6/A.
77. From the above discussion, I becomes clear that CBI has failed to establish that the facility of checking photographs and signatures of the applicants was available in the computer of A3 and A4 when they had given HIT clearance in the files in question.
(i) From the testimony of PW1, it also becomes clear that there was facility in the HIT Section to check personal particulars of the applicant and to find out the details of old passport, if any. It establishes that though A3 and A4 were not able to compare the photographs and signatures of the applicants with the photographs and signatures of original passport holder, but they were in a position to find out whether any passport had been issued in the name and personal particulars of applicant previously, if yes, they could also see the details of such passport.
(ii) As already discussed that first time A3 had given HIT clearance on November 13, 2003, but by that time additional CBI No. 83/16 (old No. 08/12) Page 135 of 219 State through CBI v. Bibianus Toppo & Ors.
passport booklet bearing No. E-6330613 (Ex. PW4/C) had already been issued in the name and personal particulars of Rajesh Vohra. After November 13, 2003, A3 had given HIT clearance on January 30, 2004; February 6, 2004; March 25, 2004 and April 7, 2004. It means that A3 was in a position to check whether any passport had been issued in the name and personal particulars of Rajesh Vohra or not while giving HIT clearance in the above said files. Indisputably, all the additional passport booklets had been issued in the name and personal particulars of Rajesh Vohra but in favour of different persons as photographs of different persons were affixed on the application forms. It means that A3 was in a position to find out that not only the original passport booklet bearing No. B-2321175 had been issued in the name and personal particulars of Rajesh Vohra; but thereafter, additional passport booklets had also been issued in his name and personal particulars. Thus, it was his duty to raise an abjection that since the applicants had not placed the last additional passport booklet while applying for additional passport booklet, an inquiry should be conducted by the RPO. But he preferred not to raise any such objection and preferred to give HIT clearance without raising any objection. Needless to say that the purpose of HIT clearance was to verify the facts mentioned by the applicants in their applications but A3 failed to raise any objection without any reasonable explanation.
(ii) Similarly, A4 had given HIT clearance on August 28, 2003, but prior to that additional passport booklet bearing No. E- 5133464 had already been issued in the name and personal particulars of Rajesh Vohra on May 28, 2003. Thus, it was the duty of A3 to highlight that the applicant had already received one additional CBI No. 83/16 (old No. 08/12) Page 136 of 219 State through CBI v. Bibianus Toppo & Ors.
passport booklet on the strength of original passport booklet bearing No. B-2321175 and since the applicant had not placed the copy of latest additional passport booklet i.e. bearing No. E-5133464, explanation should be called for from the applicant. But A4 without raising any objection gave the HIT clearance.
78. Now coming to the contention of A3 and A4 regarding mis-use of their 'P' number and Password.
(i) It is undisputed fact that HIT clearance was used to be given through computers by the officials posted in HIT Section. It is also undisputed fact that the officials posted in RPO could access the requisite file by using their allotted 'P' number and password. Needless to say that password always remains in the personal knowledge of an individual employee. It is pertinent to state that it is the duty of the employee not to share his or her password with anyone. Moreover, in the instant case, A3 and A4 had not taken any plea that they had shared their password with anyone. If, they had shared their passwords with anyone or same was misused by anyone, onus is shifted upon them under Section 106 of Evidence Act to explain under which circumstances they had shared their password or under which circumstances their passwords were misused. No doubt, A3 had taken the plea that his password might have been noted down by unscrupulous person, who used to be present while opening the computer. But in order to prove the said allegation, he failed to lead any evidence. Further, there is nothing on record to show that when he came to know about this fact. In the absence of any such evidence on record, no reliance can be placed on the plea taken by CBI No. 83/16 (old No. 08/12) Page 137 of 219 State through CBI v. Bibianus Toppo & Ors.
A3. Similarly, there is no substance in the plea of A4 because she even failed to produce the complaint, which she allegedly made against Charanjeet Singh. It is not clear whether she had made the complaint prior to giving the HIT clearance or after registration of the FIRs. If A3 and A4 had any suspicion that their passwords had been noted down by someone, it was their duty to change the password immediately but they failed to do so.
(ii) In the absence of any cogent evidence on record, I am of the considered opinion that no reliance can been placed on the plea taken by A3 and A4.
(iii) Being the official of RPO posted in HIT Section, it was their duty to point out the discrepancies in the application as discussed above but they failed to highlight the same. During trial, they failed to give any reasonable explanation for the above said lapses on their part. In the absence of any cogent evidence on record, it can safely be culled out that they had deliberately not highlighted the above said discrepancies in the applications.
(iv) Since, A3 and A4 were posted in HIT Section, they were well aware that passports would be issued on the basis of their reports. But, despite that they failed to raise any objection and failed to highlight the discrepancies as stated above, which was certainly not in the public interest. Admittedly, while giving HIT clearance they were acting as public servants and holding public office and by their acts, they assisted the applicants to get passports in favour of fictitious persons, which was not in public interest.
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Accordingly, I am of the view that A3 and A4 are liable for the offence under Section 13(1) (d) (iii) of PC Act.
Contentions on behalf of A1 Bibianus Toppo (A1):-
79. Learned counsel appearing for A1 raised the following contentions:-
(i) That A1 was working as Passport Issuing Authority (PIA) and being Superintendent and PIA, he had passed grant order in some of the files and similarly, he had also signed some of the additional passport booklets in the present case.
(ii) That in order to prove the criminal misconduct and conspiracy on the part of A1, CBI in the chargesheet categorically alleged that A1 had permitted A5 to sign the request letters in his presence in the name of applicants i.e. Rajesh Vohra, but during trial CBI failed to produce any evidence to establish this fact.
(iii) That the another main allegation against A1 is that he had passed the grant order for issuance of additional passport booklets in some files despite the fact that the photograph of applicants did not match with the photograph of the original passport holder. It was urged that no facility was provided to PIAs at the relevant time to compare the photograph and signature of the applicant with the photograph and signature of the original passport holder.CBI No. 83/16 (old No. 08/12) Page 139 of 219
State through CBI v. Bibianus Toppo & Ors.
(iv) That there are ample evidence on record to prove that only complete files used to be sent to PIAs and counter clerk used to check files thoroughly before sending the same to PIA, thus there was no occasion for the PIA to disbelieve his subordinate staff. Accordingly, it was urged that A1 had acted in good faith.
(v) That giving of promise date was subject to clearance by HIT section and other formalities. Admittedly, there was no adverse remark from any of the sections of the RPO, thus there was no occasion for A1 to raise any doubt over the acts performed by his sub-ordinate staff, accordingly it was urged that A1 had acted in good faith.
(vi) That at the relevant time the procedure for issuance of additional passport booklets was liberalized to the great extent by the Ministry of External Affairs by issuing various circulars. As per said circulars, additional passport booklet was required to be issued without any police verification preferably on the same day or within 3-5 days, thus in order to comply with the said circulars, the staff of RPO including A1 were under huge work pressure to clear the files without any delay and since there was heavy work load on PIAs at the relevant time, the possibility that due to heavy work load, some lapses might have occurred. But there is nothing on record which may show that the said lapses were intentional, hence A1 cannot be held liable for inadvertent lapses, if any.
(vii) That the presence of seal impression of 'Cancellation' on the photocopy of the previous passport did not come CBI No. 83/16 (old No. 08/12) Page 140 of 219 State through CBI v. Bibianus Toppo & Ors.
into the notice of A1 while dealing with the files in question. Even the said seal impression also did not come into the notice of investigating officer and prosecution witness such as PW S. P. Kothari, thus it cannot be said that A1 had dishonestly or deliberately passed the promise date and signed the additional passport booklets. It was further contended that even Ms. Asia had also given the promise date in the file where the seal impression of 'Cancellation' was appearing on the previous passport. It was further contended that since after passing the promise date, file used to be hand over to the applicant, the possibility that after taking the file, applicant might have changed the copy of previous passport, cannot be ruled out.
(viii) That in order to prove the guilt of accused under Section 13(1)(d) of PC Act, prosecution is required to prove 'dishonest intention' on the part of A1, but there is no evidence to prove the fact that A1 had any dishonest intention while he dealt with the files in question, accordingly it was urged that A1 cannot be held guilty.
(ix) That even the acts of A1 did not fulfil the pre- condition of Ronu Ghosh vs. CBI (supra). Further, in order to prove the guilt of A1 under Section 13(1)(d)(iii), there must be some evidence that accused had obtained any valuable or pecuniary thing for any other person and the word 'Obtains' shows that there must be some dishonest intention on the part of public servant but there is no such evidence on record.
(x) That similar acts were performed by other PIAs such as Ms. Asia, S.P Kothari and Asha Idnani and some other PIAs CBI No. 83/16 (old No. 08/12) Page 141 of 219 State through CBI v. Bibianus Toppo & Ors.
but no action was taken by the CBI against them whereas for the similar acts, CBI had impleaded A1 as an accused. It was contended that A1 is entitled for parity. In support of his contention reliance has been placed on the judgments namely State of Madhya Pradesh vs. Sheetal Sahai & others,(2009) 8 SCC 617., L. Chandraiah vs. State of Andhra Pradesh, AIR 2004, SC 252 Shanker Mandal vs. State 2001 Crl. LJ 3795, S.P.Bhatnagar and others vs. State of Maharashtra, AIR 1979 SC 826.
(xi) That there is no iota of evidence to prove the charges of conspiracy. There are evidence that whenever A1 used to be on leave, counter-clerk used to place files before other PIAs such as Ms. Asia, Tej Ram, S. P. Kothari and Savita Nanda. It was argued that if, A1 had been in conspiracy either with the applicants or counter- clerk, the files would not have been placed before other PIAs in his absence. Rather, applicants or counter-clerk would wait for joining of A1. It was further contended that A1 otherwise cannot be held guilty for the panel offences as CBI had not obtained any separate sanction under 197 Cr.P.C. It was further contended that it is admitted case of CBI that A1 had passed the promise dates and grant orders and signed the additional passport booklets in discharge of his official duties, thus A1 is entitled for the protection as provided under Section 197 Cr.P.C.
(xii) That there is no evidence on record to establish that A1 had furnished any false information in order to obtain the additional passport booklets in question, thus A1 cannot be held guilty for the offence punishable under Section 12(1)(b) of P P Act.
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(xiii) That there is no evidence on record to prove the charge that A1 had committed any forgery.
(xiv) That since there are sufficient material on record to prove that in this case two views are possible qua A1 and in such cases, the view favouring the accused is to be accepted. In support of his contention reliance has been placed on the judgment Abdulla Mohammed Pagankar vs. State, 1980 CRL. J.L.220.
(xv) That there is no evidence on record to establish that previous passport, which was produced before A1 at the time of giving the promise date, had not been exhausted or likely not to be exhausted. It was argued that in the absence of any such evidence, A1 cannot be held liable for the offence of misconduct.
80. Per contra, learned Public Prosecutor appearing for CBI raised the following contentions:-
(i) That A1 was working as PIA at the relevant time and it is undisputed fact that he had not only passed the promise dates, grant orders in some of the files but he also signed some additional passport booklets. It was contended that though the additional passport booklets were applied in the name and personal particulars of Rajesh Vohra but the photograph of different persons other than applicants were used on each occasion. In this manner, additional passport booklets were issued in favour of fictitious persons in the name and personal particulars of Rajesh Vohra.CBI No. 83/16 (old No. 08/12) Page 143 of 219
State through CBI v. Bibianus Toppo & Ors.
(ii) That since from the GEQD report, it has been established that A5 was the person who filled up the forms and signed the forms in the name of Rajesh Vohra, it proves that A5 must have appeared before A1 at the time of promise dates and grant orders. It was further contended that since the photograph of A5 was not affixed on the forms, it was the duty of A1 to raise objection, but since he was in conspiracy, he cleared the files without raising any objection.
(iii) That being the PIA, it was the duty of A1 to check whether the pages of previous passport had been full or not but there is nothing on record to prove this fact. Similarly, A1 had permitted to issue additional passport booklets on the photostate copy of original passport despite the fact that there was seal impression of 'Cancellation' on the said photostate copy. It was argued that the impression of said seal was sufficient to conclude that additional passport booklet had already been issued in favour of the applicant but despite that A1 cleared the file without raising any objection.
(iv) That no dishonest intention is required on the part of public servant for the offence under Section 13(1)(d)(iii) of PC Act.
(v) That the conduct of A1 fulfils all the conditions of Ronu Ghosh vs. State (supra), thus A1 is liable for the offence punishable under Section 13(1)(d)(iii) of PC Act.
Findings qua A1 Bibianus Toppo (A1):-
81. As per chargesheet, Mr. P. K. Kapoor, the then CBI No. 83/16 (old No. 08/12) Page 144 of 219 State through CBI v. Bibianus Toppo & Ors.
PIA (since deceased) had passed the promise date, grant order and signed the additional passport booklet in the file of first and second additional passport booklets. Whereas in respect of fifth additional passport booklet, promise date was passed by Ms. Asia and grant order was passed by Mr. Ghan Shyam Kansra. In respect of remaining five additional passport booklets, promise dates and grant orders were passed by A1. In other words, A1 had passed the promise dates and grant orders in the files in respect of third, fourth, sixth, seventh and eighth additional passport booklets.
(i) The files relating to the above said additional passport booklets are exhibited as Ex. PW2/A, Ex. PW2/B, Ex. PW6/C, Ex. PW4/D and Ex. PW6/E respectively. Perusal of the said files reveals that at the time of applying for additional passport booklets in the name of Rajesh Vohra, applicants had also submitted separate request letters stating that applicants required additional passport booklets on urgent basis as they had to visit abroad and the pages of old passport had already been full. On the said request letters, A1 had given the promise dates.
82. Now question arises what was the duty of A1 being the PIA at the time of giving promise date?
(i) In this regard the testimony of PW7 Sh. S. P. Kothari is relevant.
(ii) PW7 in his examination-in-chief deposed that PIA had to see the previous original passport booklet at the time of giving CBI No. 83/16 (old No. 08/12) Page 145 of 219 State through CBI v. Bibianus Toppo & Ors.
promise date. Thereafter, the previous passport duly cancelled by the counter-clerk shall be returned to the applicant. He further testified that PIA shall tally the particulars mentioned in the application with the particulars and photographs available in the previous passport produced by the applicant.
(iii) In his cross-examination, he clarified that PIA used to see the original passport when the file was sent to him by the counter-clerk. From the testimony of PW7, it becomes clear that before giving the promise date, it was the duty of PIA to check the original passport and compare its particulars with the particulars of applicants.
(iv) As already stated that applicants had sought the additional passport booklets on the ground that pages of previous passport had been full and they had to visit abroad urgently. In these circumstances, it was the paramount duty of PIA to check whether the pages of previous passport had been full or not. As already discussed that passport is a very important document as it authorises a person to travel beyond the territory of India, thus it is the duty of Passport Issuing Authority to act diligently while dealing with the application of passport and additional passport booklet.
(v) Indisputably, at the time of seeking additional passport booklets, applicants had submitted only few pages of previous passport. There is nothing on record which may show that all the pages of previous passport had already been exhausted or likely to be exhausted. No doubt, PW51 in his cross-examination, admitted CBI No. 83/16 (old No. 08/12) Page 146 of 219 State through CBI v. Bibianus Toppo & Ors.
that at the relevant time the practice in RPO was to take first two pages and last two pages of the previous passport. But this does not show that the pages of previous passport had been exhausted or likely to be exhausted. It was the duty of PIA to record this fact in the file that since the pages of previous passport had been full or likely to be full, applicant is entitled for additional passport booklet, but there is no such endorsement in the file. Even the counter clerk had not made any such endorsement while making recommendation for issuance of additional passport booklets. There is nothing on record, which may show on what basis PIA satisfied himself that the pages of previous passport had been exhausted or likely to be exhausted. To my mind, to check whether the pages of previous passport had been exhausted or not, neither any special training nor any scientific instrument was required.
83. I do not find any substance in the contention of learned defence counsel that since CBI failed to produce the original previous passport bearing No. B-2321175, prosecution has failed to establish that the pages of previous passport were not exhausted or were not likely to be exhausted. Since, A1 had dealt with the said passport and he was required to check the said passport before giving the promise date and before issuing the additional passport booklets, it was his duty to record his satisfaction in the file, but he failed to do so.
84. Perusal of the above said additional passport booklets reveals that at the time of seeking additional passport booklets, applicants had enclosed the photocopy of the previous CBI No. 83/16 (old No. 08/12) Page 147 of 219 State through CBI v. Bibianus Toppo & Ors.
passport bearing No. B-2321175 in all the files. But the photographs appearing on such photocopy was of different person on each occasion. It further reveals that alongwith the applications relating to third and fourth additional passport booklets, passport number is printed in the copy of previous passport whereas in remaining three files the said number is handwritten. The said discrepancy proves that at the time of seeking additional passport booklets, applicants had fabricated the first page of the passport bearing No. B-231175. Except the said discrepancy, there is no other discrepancy in the photocopy of all the previous passport, which was annexed alongwith the applications at the time of seeking additional passport booklets. This establishes that the photocopy of the same passport was used at the time of seeking additional passport booklets.
(i) PW7 and PW51 in their testimony deposed that at the time of issuance of additional passport booklets, previous original passport was required to be cancelled by putting seal of 'Cancellation'. As already stated that vide circular dated June 24, 1997 (Part of Ex. PW51/F), it was directed by Ministry of External Affairs that henceforth the old passport shall be cancelled and returned to the holder and suitable endorsement regarding old passport shall be made in the new additional passport booklet. It means that whenever any person applies for additional passport booklet on the basis of original passport, the said original passport is required to be cancelled by the RPO before issuing the additional passport booklet to the applicant. If the original passport is cancelled, the same cannot be used by the applicant for any purpose especially to obtain any other additional passport booklet on the basis of such cancelled passport.
CBI No. 83/16 (old No. 08/12) Page 148 of 219State through CBI v. Bibianus Toppo & Ors.
(ii) PW7 in his examination-in-chief deposed that PIA has to check the previous original passport booklet at the time of giving promise date and thereafter, previous passport duly cancelled by the counter-clerk shall be returned to the applicant. In his cross- examination, he deposed that it is the duty of the counter-clerk to cancel the passport by putting the stamp but he is not supposed to mention the date of 'Cancellation'. From the testimony of PW7, it becomes clear that when the passport was produced before A1 for the purpose of promise date, the original passport bears the stamp of cancellation.
85. Perusal of the file Ex. PW4/A reveals that photocopy of passport bearing No. B-2321175 was used first time on May 22, 2003. Perusal of the photostat copy of the previous passport, which was enclosed at the time of seeking additional passport booklet reveals that it does not bear the stamp of 'Cancellation'. It means that when first time i.e. on May 22, 2003 applicant sought additional passport booklet on the basis of above said previous passport, there was no seal of 'Cancellation' on the said passport and due to that reason the impression of stamp of 'Cancellation' does not appear on the photocopy of the previous passport.
(i) However, in respect of other files including the files which were dealt with by A1, the photocopy of the previous passport bears the seal of 'Cancellation'. The same is visible with naked eyes. It means that when the photocopy was prepared, the seal of 'Cancellation' was already affixed on the previous original passport CBI No. 83/16 (old No. 08/12) Page 149 of 219 State through CBI v. Bibianus Toppo & Ors.
and due to that reason seal impression of 'Cancellation' also appeared in the photostate copy. This further establishes that neither the counter-clerk, nor PIA (A1) had checked the Annexure to the application forms,. Had they checked the same, they would come to know that it bears the impression of seal of 'Cancellation', which would be enough for them to inquire from the applicant, but they failed to do so. To my mind, neither any special training nor any scientific instrument was required to see that seal of 'Cancellation' was appearing on the photocopy of previous passport.
(ii) No doubt when a question was put to PW7 during cross-examination whether there is any stamp of 'Cancellation' on the enclosure of previous file, he replied in negative. PW51 deposed in his cross-examination that he did not notice the impression of seal of 'Cancellation' during investigation. This reflects that how causally witness had deposed in the Court. Further, it also reflects that how causally the matter has been investigated by the investigating officer. Mere fact that PW7 and PW51 failed to notice the impression of seal of 'Cancellation' on the photocopy of previous passport does not exonerate the accused persons from their liability. Since, A1 was PIA, it can safely be inferred that he must have sufficient experience in the RPO office. It is highly improbable that such an experienced person would ignore such important fact while dealing with the files. Moreover, it is not the case that A1 could not notice the said seal once or twice; rather he ignored the impression of said seal repeatedly in all the files wherein the application forms were filled up by A5 only. In such circumstances, it is highly unbelievable that A1 could not notice the impression of seal due to rush of work or due to over slightness.
CBI No. 83/16 (old No. 08/12) Page 150 of 219State through CBI v. Bibianus Toppo & Ors.
(iii) Further, as per the circular dated November 25, 1997 (Part of Ex. PW51/A) where the previous passport had valid visa, Passport office shall made the following endorsement:-
Holder as previously travelled on Passport no. ..... dated ......
Issued on ...... which hold valid visa (the details of the original passport may be enclosed here where there is a change of name earlier name may be given).
(iv) As already stated that in all the above files, applicants sought additional passport booklet on the pretext that pages of previous passport had been full and they had to visit abroad on urgent basis. This shows that applicants were frequent fliers and due to that reason all the pages of previous passport had been exhausted and they needed additional passport booklets on urgent basis as they had to visit abroad again. But surprisingly there is nothing on record which may show that such endorsement was made on the newly issued additional passport booklets. Perusal of the worksheets reveals that there is nothing therein which may show that any such endorsement had ever been made in the newly issued additional passport booklets, while being the PIA, it was the duty of A1 to ensure that the said endorsement be made in the newly additional passport booklets, but he failed to do so.
86. From the above discussion it becomes clear that there is no material on record to show that on what basis, A1 satisfied himself that pages of previous passport had been exhausted or likely CBI No. 83/16 (old No. 08/12) Page 151 of 219 State through CBI v. Bibianus Toppo & Ors.
to be exhausted; secondly since there was an impression of stamp of 'Cancellation' on the photocopy of previous passport, it was sufficient to A1 to raise query from the applicants and from the counter-clerk, but he did not raise any objection; rather cleared the files on all occasions; thirdly in all the files application forms were filled up by A5; fourthly there is nothing on record which may show that A1 had directed to make the endorsement on the newly issued additional passport booklets in terms of circular dated November 25, 1997.
(i) I also do not find any substance in the submission of learned defence counsel that the applicants might have prepared the photocopy of previous passport after obtaining the promise dates from A1 because from the process-sheet Ex. PW6/F, it becomes clear that the application was submitted on November 12, 2003 and on the same day the file was scanned and detailed entries were made. Similarly, from the process-sheet Ex. PW6/G, the application was moved on January 29, 2004 and on the same day file was scanned and detail entries were made. As per Ex. PW6/G, application was moved on March 24, 2004 and on the same day file was scanned and detail entries were made on the very same day. Similarly, as per Ex. PW6/A, application was moved on April 5, 2004 and detail entries were made on the very same day. Since, in all the above said cases, files were scanned on the very same day when the applications were moved, it means that after the promise dates, files were not returned to the applicants; rather same were remained in the custody of RPO officials, consequently, the files were scanned and detailed entries were made in the computer on the very same day. In other words, there was no opportunity for the applicants to get prepared the CBI No. 83/16 (old No. 08/12) Page 152 of 219 State through CBI v. Bibianus Toppo & Ors.
photocopy of previous passport and to submit the files later on.
87. Now coming to the next contention whether there is any evidence to prove the charge under Section 467 IPC or not?
(i) No doubt, a separate charge has been framed against A1 for the offence punishable under Section 467 IPC alleging that he had dishonestly and fraudulently signed the above said additional passport booklets in the name of Rajesh Vohra. But to my mind, during trial CBI has miserably failed to produce any evidence to establish that A1 had committed any forgery. It is admitted case of CBI that A1 being PIA, A1 was competent to sign the additional passport booklets. It is also admitted case of CBI that A1 had not forged the signature of any person while dealing with the files in question. As already stated that though investigating officer had alleged in the chargesheet that A1 permitted A5 to sign the request letters in the name of Rajesh Vohra in his presence but CBI failed to prove any such evidence on record. In the absence of any such evidence, I am of the considered opinion that there is no iota of evidence to prove the ingredients of forgery i.e. Section 463 IPC.
88. Learned counsel appearing for A1 further contended that since CBI failed to prove the charges of cheating and forgery against A1, A1 cannot be held guilty for the offence punishable under Section 13 (2) of PC Act. In support of his contention, counsel placed reliance on the judgment L. Chandraiah vs. State of A.P (supra). To my mind the observations of the Hon`ble Court in the aforesaid case that since prosecution failed to prove the guilt of CBI No. 83/16 (old No. 08/12) Page 153 of 219 State through CBI v. Bibianus Toppo & Ors.
accused for the offence punishable under Section 467/471 & 409 IPC, he cannot be held guilty under Prevention of Corruption Act is not helpful to the accused in any manner. Perusal of the judgement reveals that in the said matter the accused who was a public servant was charge-sheeted for the offence punishable under Section 409/467/471 IPC and Section 5(1)(c)(d) read with Section 5(2) of PC Act, 1947. Section 5(1)(c) and 5(1)(d) reads as under:-
Section 5(1)(c):-
If he dishonestly or fraudulently misappropriated or otherwise convert for his own use any property entrusted to him or under his control as a public servant or allows any person to do so or;
(d) If he, by corrupt or illegal means, or by otherwise abusing his position as public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage.
89. It was held in the said judgment that since prosecution failed to prove dishonest intention which was an essential ingredient to prove the guilt of accused for the offence punishable under Section 409/467 and 471 IPC, accused cannot be held guilty under Prevention of Corruption Act. However, as already discussed that no dishonest intention is required to prove the guilt of accused for the offence under Section 13 (1) (d) (iii) of PC Act, thus the said judgment is not helpful to the accused in this case.
90. Now coming to the next contention raised by learned defence counsel that the word 'Obtains' denotes that there CBI No. 83/16 (old No. 08/12) Page 154 of 219 State through CBI v. Bibianus Toppo & Ors.
must be some dishonest intention on the part of public person. In support of his contention, learned defence counsel placed relieance on the judgment Subhash Parbat Sonvane vs. State of Gujrat in Crl. Appeal No. 546/2002 decided by Apex court on April 24, 2002.
(i) No doubt in the said judgement Hon`ble Court had interpreted the word 'Obtain' but it is nowhere stated that dishonest intention is required to prove the guilt of a person under Section 13(1)
(d)(iii) of PC Act. As per the judgment, 'Obtained' means to secure or gain (something) as the result of request or effort. It was further held that in order to convict a person under Section 13(1)(d) there must be evidence on record that accused obtained for himself or for any other person any valuable thing or pecuniary advantage by either corrupt or illegal means or by abusing his position as a public servant or he obtained for any person any valuable thing or pecuniary advantage without any public interest. Since in the instant case, the act of A1 and other public servants relates to clause (iii) to Section 13(1)(d) of PC Act, Court has to give finding that the act of public servants was without any public interest. As already held that passport is a valuable thing and by their respective acts public servants i.e. A1 to A4 had facilitated the applicants and co-accused i.e. Anil Dhawan to obtain passport in favour of fictitious persons, thus one of the conditions is satisfied. In view of the above, I am of the view that the said judgment is also not helpful to the accused in any manner.
91. Now coming the next contention that since A1 was over burdened, there may be possibility that the above lapses had taken place due to oversight and since there was no wilful CBI No. 83/16 (old No. 08/12) Page 155 of 219 State through CBI v. Bibianus Toppo & Ors.
wrongful act on the part of A1, A1 cannot be held guilty for the above said lapses. In support of his contention, counsel placed reliance on various judgements namely Sudhdeo Jha Utpel v/s. State of Bihar, AIR 1957 Supreme Court 466; Rajiv Kumar Goyal @ Raj Kumar Goyal Vs State through CBI in Criminal Appeal No. 265 of 2008 decided on August 08, 2014 by the High Court of Delhi and S.P. Bhatnagar etc. vs. State of Maharashtra AIR 1979, SC 826.
(i) As already held that neither A2 nor A1 deemed it appropriate to verify whether the pages of previous passport had been full or not. Similarly, they made no attempt to raise an objection how the impression of stamp of 'Cancellation' appeared on the photocopy of previous passport, which was annexed with the application. Further, neither the counter clerk nor PIA had made an attempt to make an endorsement on the newly issued additional passport booklet in terms of circular dated November 25, 1997. It is pertinent to state that being the PIA, it was the duty of A1 to satisfy himself whether the pages of previous passport had been full or not. But he failed to do so. The plea of A1 that he acted on the recommendation of A2 is not tenable in the facts and circumstances of the case. If the said plea be accepted, it would mean that PIA intends to say that he was not required to check the previous passport before issuing the additional passport booklet, which is not trustworthy and tenable. Similarly, being the PIA, it was the duty of A1 to see whether the counter clerk had cancelled the previous passport or not. Since, the impression of stamp of 'Cancellation' was appearing on the photocopy of previous passport, it means that the cancelled passport was used again and again in order to get the additional passport booklets in favour of CBI No. 83/16 (old No. 08/12) Page 156 of 219 State through CBI v. Bibianus Toppo & Ors.
fictitious persons but A1 failed to raise any query or objection. Needless to say that being the PIA, it was his duty to make inquiry how the impression of seal of 'cancellation' was appearing on the photocopy of previous passport but he failed to do. In the facts and circumstances of the case at hand, I am of the considered opinion that there is no substance in the plea of A1 that he failed to detect the fraud as he was overburdened at the relevant time.
92. Now coming to the judgements referred to by the learned defence counsel. Before dealing with the said judgments, it is pertinent to state that a particular judgment is to be read in the context of facts involved therein. Mere fact that in a case, on the basis of peculiar facts and circumstances of that case, work load is considered as one of the relevant fact in favour of the accused is not sufficient to hold that it becomes a universal rule that as and when the accused takes the plea of work load, Court would be bound to pass order in favour of the accused.
(i) To my mind, the judgement Sudhdeo Jha Utpel v/s. State of Bihar, (supra) is not helpful to A1 as the facts of the said case were totally different from the facts of case at hand. The said case relates to the offence punishable under Section 420/193/120B IPC whereas the main allegations against Bibianus Toppo (A1) is for the offence punishable under Section 13(1)(d) of PC Act. The ingredients of Section 420 IPC and 13(1)(d) of PC Act are totally different. Moreover, in the said matter there were sufficient material on record to support the claim of appellant that the company used to pay road tax to the tune of ` 40,000/- and there were several branches of CBI No. 83/16 (old No. 08/12) Page 157 of 219 State through CBI v. Bibianus Toppo & Ors.
the company, thus it was not feasible for the appellant being the General Manager to know whether any particular vehicle was of road worthy or road tax qua any particular vehicle had been paid or not. On the contrary, in the instant matter Bibianus Toppo (A1) was acting as Passport Issuing Authority, thus it was his responsibility to satisfy himself prior to issuing the passport/additional passport booklets whether the documents submitted by the applicants support their claim or not.
(ii) Now coming to the judgement title Rajiv Kumar Goyal @ Raj Kumar Goyal Vs State through CBI in Criminal Appeal No. 265 of 2008 decided on August 08, 2014 by the High Court of Delhi. No doubt, in the said judgment, the workload was considered as one of the grounds at the time of acquitting the accused who was a public servant. But it was not the sole ground to acquit the accused. I have perused the said judgement carefully. To my mind, the said judgement is not helpful to the accused in any manner as the facts involved therein were totally different from the facts of the case at hand. In the said matter, the accused was acquitted on multiple grounds including that CBI failed to establish whether the documents from the files were already missing when the appellant had passed the claims in favour of fictitious persons or the documents were removed later on and the same is clear from para 28 which reads as under :-
Para 28 Whether all the papers were in the file or not is the only aspect of the matter in these cases. It may be that in considering the conduct of L.K. Gupta, who had passed the claims, it would have to be shown by the Prosecution that the papers in the file were already missing when he passed the claims. If not, he would have the CBI No. 83/16 (old No. 08/12) Page 158 of 219 State through CBI v. Bibianus Toppo & Ors.
benefit of doubt since the failure to ensure that the files were kept in a temper proof environment would enable him to take a defence that although the papers were available in the file, they were somehow not found when the CBI was handed over those files. However, there is another aspect of the matter which involves claims being made on behalf of fictitious firms with fictitious consignors and road carriers. There, it does not matter much that some of the papers may have gone missing as long as there is enough evidence on record to show that the claims were made on behalf of fictitious firms with the transporter and consignors also being fictitious.
(emphasis supplied)
(iii) Further, it was observed by the Hon`ble Court that fraud was detected during investigation with the help of forensic evidence, thus it was quite possible that the applicant due to over burden could not realize that Vinod and Sanjay were the same person whereas in the instant case, the facts are totally different.
93. In the present case, fraud could be detected by A1 by just turning the pages of application and the documents submitted by the applicants, but he did not do so. Thus, in my view the said judgment is also not helpful to A1 in any manner.
94. Now coming to the case S.P. Bhatnagar etc. State of Maharashtra (supra). It is pertinent to state that the facts involved in the present case were totally different from the facts of the case at hand. Moreover, in the said case work-load was not only a criteria to exonerate the accused from the charges; rather there was CBI No. 83/16 (old No. 08/12) Page 159 of 219 State through CBI v. Bibianus Toppo & Ors.
evidence on record that no action was taken against other accused persons who also counter signed the bills and there was evidence on record that counter signature on the bills does not means verification of the bills. It only show that there was no reason to doubt the correctness of the figures. Relevant portion is reproduced as under:-
13.Re-5:- the first thing to be borne in mind with regard to the measurement certificates on the running bills is that it is the Assistant Engineer incharge of the work who is responsible for taking measurements of the actual quantities of the work executed by the contractor for entering the same in the measurement book and for recording a certificate that the measurements given in the bill are of the actual work carried out on spot in accordance with the Department's drawings and specifications. It has also to be remembered that A1 had to look after the Corporation's projects and installations all over India and A2 had to look after and supervise a large number of the Corporation's projects under the Western Branch which included installations at Sabarmati, Ahmedabad, Okha and Kandla in Gujarat and Sewri, Wadala and Trombay in Maharashtra and parts of Madhya Pradesh. It cannot also be ignored that according to Ganpati (D.W.3) when a Senior Engineer visits the site, he determines the progress of the work by visual inspection determining visually the approximate quantity of the work done. All this apart, an examination of the running bills (Exhibits 51, 53, 54, 55 and 56) shows that all of them bear the certificates as referred to and reproduced at page 11 of this judgment. It would be noted that whereas first three of these bills bear the counter-signatures of A2, Bill (Ex. 55) bears the countersignatures of K.S.Joshi; Senior Engineer and Bill (Exh.56) bears the counter-
signatures of Ramrao, another Senior Engineer, who was absolved in the departmental enquiry.
Now the fact that A2 countersigned the first three bills does not appear to be material in view CBI No. 83/16 (old No. 08/12) Page 160 of 219 State through CBI v. Bibianus Toppo & Ors.
of the following statement made by Ramrao vide Exhibit 107:-
"I had no reason to doubt Shri Vaidya's figures. Countersignatures of a bill as per our prevailing practice is not indicative of verification but only indicates that there is no reason to doubt the correctness of the figures."
(emphasis supplied)
95. On the contrary in the present case, under Passport Rules, A1 being the Passport Issuing Authority was responsible for the issuance of additional passport booklets, thus it was his duty to satisfy himself whether there is any material in support of the claim of applicants. As already discussed that in the instant case, there was no material on record to establish whether the pages of previous passport had been full. On the contrary, there is evidence on record to establish that if A1 had opened the same, at the time of passing promise date or grant order, he would have come to know about the fraud played by the applicants, but he did not deem it appropriate even to open the same. Thus, to my mind, the said judgment is not helpful to A1 in any manner.
96. No doubt, Ministry of Ministry of External Affairs had relaxed the terms and and conditions for issuance of additional passport booklets by issuing various circulars from time to time and further directed that efforts should be made that additional passport booklets be issued on the same day or preferably within 3-5 days. But it is also true that the Ministry of External Affairs also directed that due precaution should be taken at the time of issuance of additional CBI No. 83/16 (old No. 08/12) Page 161 of 219 State through CBI v. Bibianus Toppo & Ors.
passport booklets and additional passport booklets should be issued subject to check of PAC/Index/HIT and in case of any doubt PISCON should be checked. There is nothing in the said circulars that the PIA shall act in a mechanical manner while dealing with the request for additional passport booklet. As already stated that if A1 had just turned the pages of supporting documents at the time of giving promise date or grant order, he would come to know about the fraud played by the applicants, but he did not deem it appropriate to even turn the pages of supporting documents. Further, he even did not deem it appropriate to record that that the pages of previous passport had been exhausted or likely to be exhausted.
97. Now coming to the contention relating to parity.
(i) Learned counsel claimed parity with PW23 Ms. Asha Idnani, who passed similar order at the time of issuance of original passport bearing No. B-2321175. He also claimed parity with Ms. Asia, the then PIA who gave promise date in the file Ex. PW2/C on the similar documents. Even Ms. Asia has not been cited as a witness. In this regard, learned counsel relied upon the testimony of PW51. It was further submitted that Ms. Asia had also given the promise date on similar document in CC N. 10/12 while issuing additional passport booklet in the name of Ms. Neha Suri. Ms. Asia had also passed the promise date in another case bearing CC No. 25/09 while issuing additional passport booklet in the name of Ms. Alka Gupta. Learned counsel also claimed parity with PW7 Mr. S. P. Kothari, who acted similarly while dealing with the file Ex. PW7/D9 in another matter i.e CC No. 6/12. Besides that learned defence counsel CBI No. 83/16 (old No. 08/12) Page 162 of 219 State through CBI v. Bibianus Toppo & Ors.
also claimed parity with subordinate staff i.e. PW4, PW6, PW10, PW13 and PW14, who dealt with the files in question at the time of issuance of additional passport booklets.
98. In support of his contention learned counsel placed reliance on the judgments namely State of Madhya Pradesh v/s. Sheetla Sahai and others, (2009) 8 SCC, 617; L. Chandraiah v/s. State of Andhra Pradesh, 2004 SC 252 and Shanker Mandal vs. State 2001 Cri LJ 3795 (Jharkhand) and S.P. Bhatnagar & others vs. State of Maharashtra (supra).
(i) From the submissions advanced by counsel appearing for A1, it emerges that A1 has claimed parity on two aspects; firstly for the similar acts performed by Ms. Asia in passport file Ex. PW2/C and secondly, for the acts performed by other PIAs including Ms. Asia in other matters.
99. Now I proceed to deal with issue whether A1 is entitled for parity qua Ms. Asia in respect of acts performed by her in passport file Ex. PW2/C or not? In this regard the testimony of PW51 is relevant.
(i) Indisputably, in the passport file Ex. PW2/C, promise date was given by Ms. Asia, the then PIA and this fact is also mentioned in the work done sheet Ex. PW6/H. Perusal of the Ex. PW2/C reveals that applicant had submitted the photostate copy of previous passport bearing No. B-2231175 as submitted in other files. PW51 admitted in his cross-examination that applicant sought CBI No. 83/16 (old No. 08/12) Page 163 of 219 State through CBI v. Bibianus Toppo & Ors.
additional passport booklet in Ex. PW2/C on the ground that pages of previous passport had already been full and he further submitted that only five pages of previous passport were filed. PW51 further admitted that during investigation, it was revealed that the forms were filled up by A5 and he further admitted that during investigation, it was also revealed that A5 visited the RPO office to submit the said form and appeared before Ms. Asia at the time of seeking promise date.
(ii) On the basis of above testimony, it was contended by learned defence counsel that though Ms. Asia had also passed the promise date in the similar circumstances and on the basis of similar documents, yet no action had been taken against her. Even CBI had not cited Ms. Asia as prosecution witness, thus A1 is entitled for parity qua Ms. Asia.
100. In the instant case, investigating officer had categorically alleged in the chargesheet that A1 had permitted A5 to sign the request letters in his presence in the name of applicant i.e. Rajesh Vohra. In his cross-examination, PW51 admitted that during investigation, it was revealed that A5 visited RPO to submit the forms in the file Ex. PW2/C and he also appeared before Ms. Asia at the time of seeking promise date. In his testimony, he nowhere deposed that applicant Rajesh Vohra also accompanied A5 when he appeared before Ms. Asia. On the contrary, in his cross-examination he deposed that A5 told him during investigation that he appeared before Ms. Asia while seeking promise date. When a court question was asked from PW51 to ascertain whether Ms. Asia had given promise date in Ex. PW2/C without the personal appearance of applicant, PW51 deposed CBI No. 83/16 (old No. 08/12) Page 164 of 219 State through CBI v. Bibianus Toppo & Ors.
that though A5 had approached Ms. Asia at the time of seeking promise date, but he could not say whether he was accompanied with the applicant whose photograph was affixed on the form or not. He further deposed that due to that reason he had not taken any action against Ms. Asia. In other words, PW51 made an attempt to justify his action for not initiating any action against Ms. Asia by deposing that since it could not be revealed during investigation whether the applicant accompanied A5 at the time of seeking promise date or not. If, it was so, where was the occasion for PW51 to depose that A5 told him that he appeared before Ms. Asia while seeking promise date. When a specific court question was put to PW51 whether he made any enquiry from A5 to ascertain whether he went alone to take promise date or he was accompanied with applicant i.e Rajesh Vohra whose photograph was affixed on the form. PW51 deposed that he did not ask this fact from accused Anil Dhawan. If he did not ask this fact from A5 and he had not interrogated Ms. Asia, it is not clear on what basis he deposed in the Court that he could not say whether A5 was accompanied with applicant or not at the time of seeking promise date. When another court question was put to him, can he tell any reason for not making any such inquiry from A5, he deposed that he could not tell any reason and when another court question was put to him that on what basis he deposed that applicant might have accompanied Anil Dhawan (A5), PW51 deposed that he deposed so because applicant was supposed to be present before PIA at the time of promise date. If, it was so, it means that applicants were also appeared before A1 at the time of seeking promise date. If, it was so then it is not clear on what basis PW51 alleged in the chargesheet that A1 had permitted A5 to sign the request letters in the name of CBI No. 83/16 (old No. 08/12) Page 165 of 219 State through CBI v. Bibianus Toppo & Ors.
applicants in his presence. As already discussed that there is no iota of evidence to prove this fact. But from the deposition of PW51, it appears that he alleged so in the chargesheet without collecting any evidence.
(i) Similarly, when a court question was put to PW51 that since there was impression of seal of 'Cancellation' on the first and last page of the copies of previous passport in the file Ex. PW2/C, does the said seal indicate that on the basis of said previous passport additional passport booklet had already been issued in the name of passport holder. PW51 deposed that on the basis of said seal RPO officials would come to know that applicant had already obtained the additional passport booklet on the basis of said passport. When a further court question was put to PW51, did he make any inquiry from Ms. Asia why she had given the promise date when from the photocopy it was cleared that applicant had already obtained the additional passport, he deposed that he had not made any such inquiry.
(ii) From the testimony of PW51 it becomes clear that there is no evidence whether the applicant accompanied with A5 at the time of seeking promise date; secondly it also becomes clear that though there was impression of seal of 'Cancellation' on the photocopy of previous passport, which was sufficient for Ms. Asia to conclude that additional passport booklet had already been issued on the basis of previous passport, but despite that Ms. Asia did not raise any objection and passed the promise date. Thirdly, it also becomes clear that PW51 even did not deem it appropriate to interrogate Ms. CBI No. 83/16 (old No. 08/12) Page 166 of 219 State through CBI v. Bibianus Toppo & Ors.
Asia. Though PW51 took the plea that A5 told him during interrogation that he visited Ms. Asia at the time of seeking promise date, but PW51 did not record any such statement of A5. In these circumstances, it can safely be culled out that Ms. Asia had passed the promise date in the absence of applicant despite the fact that there was an impression of seal of 'Cancellation' on the previous passport. Indisputably, the allegations against A1 are also similar and on the basis of similar allegations, it was alleged by the CBI that A1 was in conspiracy with other accused persons.
(iii) To my mind, there was a lapse on the part of PW51 as he should have investigated the matter in depth to ascertain on what premises, Ms. Asia had passed the promise date in the absence of applicant and despite of having impression of seal of 'Cancellation' on the copy of previous passport.
101. But moot question is whether on the basis of said lapses on the part of PW51 and Ms. Asia, A1 is entitled for parity or not?
(i). Indisputably, in Ex. PW2/C, A1 had played no role in issuance of the additional passport booklet. The allegations qua A1 are in respect of additional passport booklets i.e. third, fourth, sixth, seventh and eighth. If parity be given to PIAs as claimed by learned defence counsel, it means that no PIA can ever be prosecuted, because in past investigating agency failed to prosecute one or more PIAs, who acted similarly in other matters. It would amount to play in the hands of unscrupulous investigating officers. No doubt, in the CBI No. 83/16 (old No. 08/12) Page 167 of 219 State through CBI v. Bibianus Toppo & Ors.
given facts and circumstances of the case, PW51 should have taken action against Ms. Asia or should have collected evidence to differentiate her case with the case of A1, but lapses on the part of PW51 is not sufficient to give parity to A1 because it would amount playing in the hands of investigating officer.
102. Now coming to the parity claimed by A1 qua other PIAs who performed similar acts in other matters.
103. Learned counsel also claimed parity qua Ms. Asia for her acts performed in CC No. 25/09 and CC No. 10/12; qua Ms. Asha Idnani for her acts performed in respect of original passport bearing no. B-2321175; qua Mr. S. P. Kothari for acts performed in CC No. 6/12 and CC No. 25/09.
(i) Indisputably, the above said PIAs had performed similar acts as performed by A1 in the present matter and it is also undisputed fact that they have not been impleaded as accused in those matters; rather they have been cited as prosecution witnesses. It is also undisputed fact that even no departmental proceeding had been initiated against them. But it is also true that A1 had not performed any act in the files, which were dealt with by the above said PIAs. As already discussed that mere fact that investigating agency had not taken any action against some persons in some other matters in past does not mean that A1 is entitled to claim parity qua those persons. If parity be given on such ground, no person can ever be prosecuted in future despite of having evidence against him. As already stated that it would amount playing in the hands of CBI No. 83/16 (old No. 08/12) Page 168 of 219 State through CBI v. Bibianus Toppo & Ors.
unscrupulous investigating officers.
(ii) It is pertinent to state that it is not the case of A1 that in the same files, he has been treated differently from other PIAs by the investigating agency for similar acts. Rather, his plea is that since CBI failed to prosecute other PIAs in other matters, he should also not be prosecuted or if he has been prosecuted, he should be acquitted. To my mind, such plea is not tenable.
104. Admittedly, as per process-sheet Ex. PW1/B, Ms. Asha Idnani had passed the grant order while issuing the original passport bearing no. B-2321175 in the name of Rajesh Vohra. It is also undisputed fact that in the said file, A1 had not played any role. Thus, to my mind, A1 is not entitled to claim any parity qua Ms. Asha Idnani in respect of original passport bearing No. B-2321175.
(i) Learned counsel also claimed parity qua ministerial staffs i.e. PW4, PW6, PW10, PW13 and PW14.
(ii) Perusal of the testimony of above witnesses reveals that PW4 and PW6 were working as causal labour and their duty was in Detail Entry and Scanning Section. PW10 was also causal labour and his duty was in Scanning Section. PW13 was working as PGO in RPO and his duty was in Printing Section. PW14 was working as Assistant and she was in HIT Section. Perusal of their testimony reveals that the above said witnesses had performed ministerial job while dealing with the files in their respective sections. They were not supposed to go through the files thoroughly as required by A1 being CBI No. 83/16 (old No. 08/12) Page 169 of 219 State through CBI v. Bibianus Toppo & Ors.
the PIA. Further, they had no opportunity to see original passport and to interact with the applicants, which was available with A1. Accordingly, I am of the view that A1 is not entitled for parity qua above said witnesses.
105. Now coming to the judgements cited by learned defence counsel in support of his contentions.
(i) To my mind the judgement State of Madhya Pradesh v/s. Sheetla Sahai and others, (2009) 8 SCC, 617 and L. Chandraiah v/s. State of Andhra Pradesh, 2004 SC 252 are not applicable in the facts and circumstances of the present case. In both the matters, investigating officer adopted the policy of pick and choose while impleading the accused persons whereas in the present case, no such pick and choose policy has been adopted by the investigating officer.
(ii) Similarly, the facts of Shanker Mandal vs. State (supra) are totally different from the facts of the case at hand. In the said case, accused Shanker Mandal was charge-sheeted on the ground that he took the charge of Assistant Store Keeper and being Asstt. Store Keeper, it was his duty to receive and issue diesel. However, it was found that the stock did not match, accordingly, he was charge-sheeted that he had misappropriated 1,07,885/- litres of diesel. However, during trial, it came in evidence that not only the appellant who used to receive and issue diesel, there were several other persons also who used to receive and issue diesel. Further, there was no order to prove that appellant was made In-charge of the CBI No. 83/16 (old No. 08/12) Page 170 of 219 State through CBI v. Bibianus Toppo & Ors.
Pump. On the basis of evidence available on record, it was held that it cannot be said that accused was only responsible for receiving and issuing diesel. Since the other persons were not charge-sheeted, accused was also acquitted on the ground that evidence led by prosecution was not sufficient to prove his guilt whereas the facts of the present case are totally different.
(iii) Similarly, in S. P. Bhatnagar (supra) case. The facts were totally different. In the said matter Ramrao also countered signed the bills as done by the appellant but he was not charge- sheeted. Similarly, no action was taken against another person namely K. S. Joshi who made wrong endorsement in respect of measurements. On the basis of evidence available on record, it was observed by the Court that it was difficult to understand how the appellant could be treated differently from the above two persons whereas in the instant case the person who made endorsement in favour of applicants i.e. A2 and the persons who cleared the HIT i.e. A3 and A4 have also been made accused by the CBI. Thus, it cannot be said that CBI had made any discrimination against A1 in the present case.
106. Now coming to the next contention raised by learned counsel that acts of A1 do not fulfil the requirement of judgment Runu Ghosh v/s. CBI (supra). It was urged that before holding the accused guilty, Court has to look into the circumstances in which A1 had worked. It was argued that since no facility was provided to PIA to detect the fraud and there were frequent instructions from the Ministry of External Affairs in the form of various circulars to issue CBI No. 83/16 (old No. 08/12) Page 171 of 219 State through CBI v. Bibianus Toppo & Ors.
additional passport booklets on priority basis on the same day or preferably within 3-5 days and this fact has been admitted by prosecution witness i.e. PW7 S.P.Kothari, who also admitted that files put up before A1 were complete in all respects and further admitted that other PIAs in other similar matters also acted similarly, thus it cannot be said that there was any fault on the part of A1.
(i) As already discussed that no training or scientific instrument was required to detect the fraud, thus the first circumstance is not sufficient to give any benefit of doubt to the accused. Similarly, though there were instructions from the Ministry of External Affairs in the form of various circulars as discussed earlier, but these circulars neither permitted the Passport Issuing Authority to act in violation of the Rules and Regulations of Passport Act and Passport Rules nor to act in a mechanical manner. By way of said circulars procedure was simplified to minimize the time in issuance of additional passports. However, it was also directed to take precaution to avoid any kind of fraud by directing the PIAs to consult PISON as and when there is any doubt. Thus, the second reason is also not helpful to the accused in any manner. As already discussed that the over burdened cannot be a ground to justify a wilful wrongful act or to act in the gross violation of rules and regulations. So far the fact that in other matters the other PIAs who acted in similar manner were not charge-sheeted by the CBI is concerned, as discussed earlier, is not a ground to acquit the accused in the present case as this Court is not supposed to give finding on the basis of charge-sheets filed by the CBI in other cases; rather, the Court is bound to give finding on the basis of evidence adduced in the instant case. As already discussed that there is no CBI No. 83/16 (old No. 08/12) Page 172 of 219 State through CBI v. Bibianus Toppo & Ors.
substance in the plea of parity as taken by A1 qua other PIAs.
107. Now coming to the next question whether RPO officials including PIA acted in public interest or not?
(i) If it is established that they acted in public interest, they cannot be held liable for their acts, otherwise they shall be liable for their acts.
(ii) No doubt, issuance of additional passport booklets to the previous passport holders is in public interest, but issuance of additional passport booklets in the name of fictitious persons cannot be in public interest. Rather, it would be totally against the public interest as it may also cause threat to the security of nation because such fictitious identity proof documents can be misused by anti-national elements. As already discussed that while dealing with the files in question, A2 who was working as counter-clerk at the relevant time did not check the original passport to verify whether the pages of previous passport had been full or not. He even did not bother to see how the impression of seal of 'Cancellation' appeared on the photocopy of previous passport. Since, the same passport was used for the issuance of additional passport booklets, it proves that A2 did not check the original passport while dealing with the request for second additional passport booklet and subsequent thereto. Similarly, A1 who was working as PIA also did not check the original passport to verify whether the pages of previous passport had been full or not. A1 also did not raise any objection despite the fact that there was impression of seal of 'Cancellation' on the copy of previous passport, CBI No. 83/16 (old No. 08/12) Page 173 of 219 State through CBI v. Bibianus Toppo & Ors.
which was sufficient to conclude that additional passport booklet had already been issued on the strength of said previous passport.
(iii) Similarly, A3 and A4 who were working in HIT Section also failed to point out that additional passport booklet (s) had already been issued in the name of Rajesh Vohra on the basis of previous passport, copy of which was annexed alongwith the applications.
(iv) Thus, it becomes clear that A1 to A4 had not taken reasonable precaution at the time of dealt with the files in question; rather they breached the settled norms and instructions issued from time to time through various circulars, thus their acts were not in public interest when they facilitated the applicants in getting additional passport booklets in the fictitious name by clearing the files without raising any objection.
108. Indisputably, there is no cogent evidence on record to bring home the guilt of A1 to A4 for the offences described in clause (i) and (ii) of Section 13 (1) (d) of the Prevention of Corruption Act as prosecution failed to establish that A1 to A4 had any dishonest intention while dealing with the files in question. But it can safely be culled out that the adduced evidences are sufficient to hold that A1 to A4 while holding public office obtained a valuable thing i.e. passport in favour of the fictitious persons through A5, which was not in public interest; rather it was without any public interest. Thus, to my mind, A1 to A4 are liable for the offence punishable under Section 13 (2) read with Clause-(iii) of Section 13 (1)(d) of PC Act.
CBI No. 83/16 (old No. 08/12) Page 174 of 219State through CBI v. Bibianus Toppo & Ors.
(i) However, I am of the considered opinion that the adduced evidences are not sufficient to bring home the guilt of A1 to A4 for the offence punishable under Section 12 (1) (b) of Passport Act, 1967 as there is nothing on record to show that A1 to A4 had furnished any false information as required under Passport Act, accordingly, I hereby acquit them thereunder.
(ii) In view of the above finding, I do not find any substance in the contention of learned defence counsel that since in the instant case two views are possible, A1 is entitled for acquittal.
Contentions relating to conspiracy:-
109. Learned counsel appearing for A1 to A4 vehemently argued that there is no iota of evidence to prove that the above said accused persons had acted in furtherance of any criminal conspiracy. It was argued that though prosecution has examined as many as 51 witnesses, yet none of them had uttered even a single word about the alleged conspiracy. It was further contended that mere fact that the accused persons had dealt with the files in question while discharging their official duties is not sufficient to prove that they were members of any conspiracy. It was further contended that even no sanction under Section 197 Cr.P.C. had been obtained for penal offences, thus A1 to A4 being the public servants cannot be convicted for penal offences with the aid of Section 120B IPC.
(i) In this regard paras no. 49 to 52 of State of CBI No. 83/16 (old No. 08/12) Page 175 of 219 State through CBI v. Bibianus Toppo & Ors.
Madhya Pradesh v. Sheetla Sahai (2009) 8 SCC 617 are relevant, accordingly same are reproduced as under:-
49. Criminal conspiracy has been defined in Section 120A of the Indian Penal Code, 1860 to mean:
When two or more persons agree to do, or cause to be done,--
(1) an illegal act, or (2) an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy:
Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to agreement in pursuance thereof.
Explanation.- It is immaterial whether the illegal act is the ultimate object of such agreement, or is merely incidental to that object.
Section 120 B of the Indian Penal Code provides for punishment for criminal conspiracy.
50. Criminal conspiracy is an independent offence. It is punishable separately. Prosecution, therefore, for the purpose of bringing the charge of criminal conspiracy read with the aforementioned provisions of the Prevention of Corruption Act was required to establish the offence by applying the same legal principles which are otherwise applicable for the purpose of bringing a criminal misconduct on the part of an accused.
51. A criminal conspiracy must be put to CBI No. 83/16 (old No. 08/12) Page 176 of 219 State through CBI v. Bibianus Toppo & Ors.
action in as much as so long a crime is generated in the mind of an accused, it does not become punishable. What is necessary is not thoughts, which may even be criminal in character, often involuntary, but offence would be said to have been committed thereunder only when that take concrete shape of an agreement to do or cause to be done an illegal act or an act which although not illegal by illegal means and then if nothing further is done the agreement would give rise to a criminal conspiracy.
Its ingredients are:-
(I) an agreement between two or more persons;
(ii) an agreement must relate to doing or causing to be done either (a) an illegal act;
(b) an act which is not illegal in itself but is done by illegal means:
What is, therefore, necessary is to show meeting of minds of two or more persons for doing or causing to be done an illegal act or an act by illegal means.
52. While saying so, we are not oblivious of the fact that often conspiracy is hatched in secrecy and by providing the said offence substantial direct evidence may not be possible to be obtained. An offence of criminal conspiracy can also be proved by circumstantial evidence.
In Kehar Singh and Ors. v/s. State (Delhi Administration) MANU/SC/0241/1988; 1988 (3) SCC 609 at 731. this Court has quoted the following passage from Russell on Crimes (12th Edn. Vol.1);
The gist of the offence of conspiracy then lies, not in doing the act, or effecting the purpose for which CBI No. 83/16 (old No. 08/12) Page 177 of 219 State through CBI v. Bibianus Toppo & Ors.
the conspiracy is formed, nor in attempting to do them, nor in inciting others to do them, but in the forming of the scheme or agreement between the parties. Agreement is essential. Mere knowledge, or even discussion, of the plan is not, per se enough.
In State (NCT) of Delhi vs. Navjot Sandhu @ Afsan Guru MANU/SC/0465/2005; (2005) 11 SCC 600, this Court stated the law, thus:
101. One more principle which deserves notice is that the cumulative effect of the proved circumstances should be taken into account in determining the guilt of the accused rather than adopting an isolated approach to each of the circumstances. Of course, each one of the circumstances should be proved beyond reasonable doubt. Lastly, in regard to the appreciation of evidence relating to the conspiracy, the Court must take care to see that the acts or conduct of the parties must be conscious and clear enough to infer their concurrence as to the common design and its execution.
We may also notice that in Ram Narayan Popli vs. CBI MANU/SC/0017/2003: (2003) 3 SCC 641, it was held:-
...Law making conspiracy a crime is designed to curb immoderate power to do mischief which is gained by a combination of the means. The encouragement and support which co- conspirators give to one another rendering enterprises possible which, if left to individual effort, would have been impossible, furnish the ground for visiting conspirators and abettors with condign punishment.....
In Yogesh @ Sachin Jagdish Joshi vs. State of Maharashtra MANU/SC/7528/2008: (2008) 6 SCALE 469, this Court opined:CBI No. 83/16 (old No. 08/12) Page 178 of 219
State through CBI v. Bibianus Toppo & Ors.
23. Thus, it is manifest that the meeting of minds of two or more persons for doing an illegal act or an act by illegal means is sine qua non of the criminal conspiracy but it may not be possible to prove the agreement between them by direct proof. Nevertheless, existence of the conspiracy and its objective can be inferred from the surrounding circumstances and the conduct of the accused. But the incriminating circumstances must form a chain of events from which a conclusion about the guilt of the accused could be drawn, It is well settled that an offence of conspiracy is a substantive offence and renders the mere agreement to commit an offence punishable even if an offence does not take place pursuant to the illegal agreement.
Ex. Facie, there is no material to show that a conspiracy had been hatched by the respondents."
(emphasis supplied)
(ii) From the above, it becomes crystal clear that the conspiracy can also be proved by the surrounding circumstances and conduct of the accused persons but the incriminating circumstances must form a chain of events from which conclusion about the guilt of accused persons can be drawn.
110. Now coming to the facts of the case at hand.
(i) Though in order to prove the guilt of accused persons, prosecution has examined as many as 51 witnesses, yet none of them has deposed even a single word about the alleged conspiracy among A1 to A4 on the one hand and the other accused CBI No. 83/16 (old No. 08/12) Page 179 of 219 State through CBI v. Bibianus Toppo & Ors.
persons on the other hand. No doubt, it is difficult to find out a direct evidence to prove the conspiracy as generally conspiracy is hatched in secrecy and it is settled law that conspiracy can also be proved by circumstantial evidence. But the onus is upon the prosecution to prove such circumstances in accordance with law. But in the instant case, CBI has even failed to produce any such circumstantial evidence to prove that there was any conspiracy between A1 to A4 on the one hand and other accused persons on the other hand. Mere fact that A1 to A4 were working in the same office and they had dealt with the files in question, in the absence of any other evidence, is not sufficient to draw a conclusion that they had hatched any conspiracy either among themselves or with the applicants or with the remaining accused persons. Being the officials posted at RPO, they were otherwise duty bound to deal with the files in question. Mere fact that there are some lapses on their part while dealing with the files itself is not sufficient to establish that they were in conspiracy either among themselves or with the applicants or with the remaining accused persons.
(ii) It is admitted case of CBI that first application for obtaining additional passport booklet was moved on May 22, 2003 whereas the last application was moved on May 07, 2004. Thus, in order to prove conspiracy, CBI was duty bound to establish that there was a meeting of mind among the accused persons prior to May 22, 2003., but during trial, CBI failed to produce any such evidence. Even there is nothing on record, which may show that the RPO officials i.e. A1 to A4 used to meet with other accused persons or they had any interaction or intimacy with them.
CBI No. 83/16 (old No. 08/12) Page 180 of 219State through CBI v. Bibianus Toppo & Ors.
111. No doubt, in order to show conspiracy among the public servants with the other accused persons, PW51 had categorically mentioned in the charge-sheet that A1 used to permit A5 to sign request letters in the name of applicants in his presence despite the fact that the photograph of applicants affixed on the forms was not of A5, but during trial, CBI failed to produce any scintilla of evidence to prove the same. There is no iota of evidence to establish that A1 to A4 used to meet with other accused persons in connection with the files in question.
(i) It is admitted case of CBI that at the time of obtaining additional passport booklets in the assumed name of Rajesh Vohra, applicants used to annex the copy of previous passport bearing No. B-2321175, but on all the occasions photograph of passport holder on the said photostate copy was of a different person. But surprisingly, no investigation was done by the CBI to find out how the applicants used to affix their photograph on the copy of passport after removing the photograph of original passport holder. Similarly, no attempt was made to recover any mechanism by which the accused used to affix the photograph of the applicants on the original passport. Investigating officer failed to ascertain the modus-operandi of the accused persons. To unearth the conspiracy among the accused persons, it was the prime duty of investigating officer to ascertain how the accused persons used to affix the photograph of applicants on the original passport and copy thereof. Even the investigating officer had not recorded the disclosure statement of the accused persons wherein they disclosed their modus-operandi to get the additional passport booklets in favour of different persons in the assumed name i.e. CBI No. 83/16 (old No. 08/12) Page 181 of 219 State through CBI v. Bibianus Toppo & Ors.
Rajesh Vohra. Had there been any such evidence on record, it would help the prosecution to prove conspiracy among the accused persons. But unfortunately, there is no such evidence.
(ii) Even there is nothing on record which may prove that A1 to A4 had either obtained any pecuniary advantage or valuable thing for themselves for performing their acts in favour of the applicants. Had they been in conspiracy with the applicants, it would be highly improbable that A1 to A4 would perform their act without any illegal gratification or other valuable things. Even, the CBI did not deem it appropriate to place the disclosure statement of accused persons, if any, on record. In the absence of any such disclosure statement, it is not clear whether accused persons used to take any illegal gratification or pecuniary advantage or valuable thing for performing their acts.
112. Perusal of the charge-sheet and testimony of witnesses examined by the prosecution, it appears that the CBI had invoked the provisions of Section 120B IPC qua public servants mere on the ground that they had dealt with the files in question. Except that there is no other evidence on record. As already stated to prove the conspiracy, prosecution has to prove the meeting of mind among the accused persons. But during trial, CBI failed to produce any such evidence. Mere fact that A1 to A4 were posted in the same office and they dealt with the files in question while discharging their official duties is ipso-facto not sufficient to prove that they had acted in furtherance of any conspiracy. In the absence of any cogent evidence on record, I am of the considered opinion that CBI has failed to prove CBI No. 83/16 (old No. 08/12) Page 182 of 219 State through CBI v. Bibianus Toppo & Ors.
the charge of conspiracy qua public servants, thus accused persons cannot be held liable for the acts of each other, however, accused persons shall be liable for their individual acts, if their acts attract commission of any offence.
113. Conspiracy qua among the private persons shall be discussed at the subsequent stage of judgment.
114. It is admitted case of CBI that A1 to A4 had abused their official position while dealing with the request letters/applications for issuance of additional passport booklets. It is also admitted case of CBI that A2 dealt with the files in question being the counter clerk; A1 dealt with the files in question being the PIA; whereas A3 and A4 dealt with the files in question being the officials posted at HIT section. Indisputably, all the above said accused persons dealt with the files while discharging their official duties. Mere fact that there are certain lapses on their part in discharge of their official duties is not sufficient to hold that there was no nexus between the acts performed by them and their official duties. Thus, to my mind, the sanction under Section 197 Cr. P.C was also required for penal offences qua public servants. In this regard, reliance is placed on:
(i) State of Madhya Pradesh Vs. Sheetla Sahai and others, (2009) 8 SCC, 617;
(ii) Prof. N. K. Ganguly vs. CBI Criminal Appeal No. 798 of 2015 decided by the Apex Court on November 19, 2015;
(iii) Amrik Singh vs. State of Pepsu, CBI No. 83/16 (old No. 08/12) Page 183 of 219 State through CBI v. Bibianus Toppo & Ors.
AIR 1955 SC 309.
(iv) R. Balakrishna Pillai vs. State of Kerala & another (1996) 1SCC 478
(i) Admittedly, CBI had not obtained any sanction under Section 197 Cr. P.C against the public servants, thus I am of the considered opinion that A1 to A4 cannot be held liable for penal offence for want of sanction.
(ii) In the light of foregoing discussion, I am of the considered opinion that CBI has failed to prove the charge of conspiracy against the public servants i.e. A1 to A4, accordingly, I hereby acquit them from the charge of conspiracy.
Contention relating to sanction under Section 19 of Prevention of Corruption Act:-
115. Learned counsel appearing for A1 to A4 vehemently contended that the sanction accorded under Section 19 of PC Act is defective as sanctioning authority had not applied its mind before according sanction and authority had acted in a mechanical manner just by signing on the draft sanction placed before it. It was further argued that the sanctioning authority had not considered relevant material at the time of according sanction.
116. Per contra, learned Senior Public Prosecutor countered the said contentions by arguing that there is no defect in the CBI No. 83/16 (old No. 08/12) Page 184 of 219 State through CBI v. Bibianus Toppo & Ors.
sanction.
117. In this regard the testimony of PW41 Sh. Sharat Sabharwal and PW42 Sh. R. R. Dash are relevant. PW41 had accorded the sanction qua A1 whereas PW42 had accorded the sanction qua A2 to A4.
(i) PW41 Sh. Sharat Sabharwal in his examination-in- chief deposed that he was working as Additional Secretary to the Govt. of India, Ministry of External Affairs at the relevant time and testified that he was competent to accord sanction for prosecution of the officers of passport office, New Delhi to the rank of Superintendent as he was competent to remove the officials to the rank of Superintendent. He further testified that he had accorded sanction against A1 vide sanction order Ex.PW41/A. He further deposed that before according the sanction, he had gone through the detail investigation report and documents which were sent by CBI at the time of seeking sanction. In his cross-examination, he explained that before according sanction, he called investigating officer to show all the documents, accordingly, investigating officer had shown all the relevant documents to him. Thereafter, he had accorded the sanction against A1.
(ii) Similarly, PW42 deposed that he was working as Joint Secretary to the Govt. of India and as Chief Passport Officer at the relevant time and further testified that he had accorded the sanction qua R.S. Rawat and G.D. Joshi (both since deceased), Harbhajan Yadav (A2), Ram Chander (A3) and Sushma Bajaj (A4). He CBI No. 83/16 (old No. 08/12) Page 185 of 219 State through CBI v. Bibianus Toppo & Ors.
further testified that before according the sanction, he had gone through the documents including the statement of witnesses placed before him and satisfied himself, thereafter he accorded the sanction as sought by CBI. In his cross-examination, he admitted that he was not competent to remove A1 from his service and due to that reason, he had not accorded sanction qua him under Section 19 of PC Act and further testified that qua other accused persons, he was competent to remove them from service, accordingly, he accorded the sanction qua them under Section 19 of PC Act.
(iii) From the testimony of PW41 and PW42, it becomes clear that before according sanction, they had gone through the relevant documents such as investigation report and statement of witnesses and after going through the same, they accorded the sanction. This shows that they had applied their mind at the time of according sanction.
118. In case Mohd. Iqbal Ahmed Vs State of Andhra Pradesh, 1979 SCC (Crl.) 926, Apex Court held that an order of sanction or valid sanction can be proved by the Sanctioning Authority in two ways either:-
(a) By producing the original sanction which itself contains the facts constituting the offence and the grounds of satisfaction; or
(b) By adducing evidence aliuned to show that the facts were placed before the Sanctioning Authority and the satisfaction arrived at, by it.
(i) In the instant case, prosecution has not only CBI No. 83/16 (old No. 08/12) Page 186 of 219 State through CBI v. Bibianus Toppo & Ors.
examined the persons, who were competent to remove A1 to A4 and accorded the sanction, but prosecution also produced the original sanction order. Thus, there is no reason to disbelieve the testimony of PW41 and PW42.
(ii) Though during the cross-examination of PW41 and PW42, an attempt was made to cause a dent in their testimony on the ground that the investigating agency had not placed entire material before them at the time of seeking sanction or they had not applied their mind or they had accorded sanction at the behest of CBI, but all these suggestions were categorically denied by them.
(iii) Apex Court in the case title State of Maharashtra Vs Mahesh G. Jain, criminal appeal No. 2345 of 2009 decided on May 28, 2013 summed up the Principles and guidelines which are required to be followed to decide the question which inundates the trial Court, challenging the sanction order. Hon'ble Apex Court after appreciating earlier precedents on the subject had culled out the guiding Principles in Para 13 of the judgements, which are reproduced as under:
(a) It is incumbent on the prosecution to prove that valid sanction has been granted by Sanctioning Authority after being satisfied that a case for sanction has been made out.
(b) The Sanction Order may expressly show that the sanctioning authority has perused the material placed before him and after consideration of the circumstances, has granted sanction for prosecution.
(c) The prosecution may prove by adducing CBI No. 83/16 (old No. 08/12) Page 187 of 219 State through CBI v. Bibianus Toppo & Ors.
the evidence that the material was placed before the Sanctioning Authority and his satisfaction was arrived at, upon perusal of the material placed before him.
(d) Grant of Sanction is only an administrative function and the sanctioning authority is required to prima-facie reach the satisfaction that relevant facts would constitute the offence.
(e) The adequacy of material placed before the Sanctioning Authority cannot be gone into, by the Court, as it does not sit in Appeal over the Sanction Order.
(f) If the sanctioning authority has perused all the material placed before him and some of them have not been proved, that would not vitiate the order of sanction.
(g) The order of sanction is a pre-requisite, as it is intended to provide a safeguard to the public servant against frivolous and vexatious litigants, but simultaneously an order of sanction should not be construed in a pedantic manner and there should not be a hyper technical approach to test its validity.
(iv) In Bhagwan Jathya Bhoir Vs State of Maharashtra, 1992 Crl. L. J. 1144 (Bombay), it was held by High Court of Bombay that procedure adopted by the investigating agency in forwarding a draft sanction order to the sanctioning authority after summarising all evidence and requesting him to examine the record and to accord sanction if satisfied, is not improper. Same view was taken by High Court of Madras in K. Nachimuthu Vs State 1994 Crl.
L. J. 2760.
(v) In view of the ongoing discussion, I do not find CBI No. 83/16 (old No. 08/12) Page 188 of 219 State through CBI v. Bibianus Toppo & Ors.
any merit in the contentions raised by counsel for the accused persons that the sanction accorded under Section 19 of PC Act is defective.
Contentions qua accused Dalbir Singh (A15) and Jaswinder Singh (A16):-
119. Learned counsel appearing for A15 and A16 vehemently contended that they cannot be held guilty in the present case as both the accused persons had been arrested separately by Delhi police in case FIR No. 396/2004 and 224/2004 respectively at PS IGI Airport and both the said cases are pending in this Court itself. It was argued that since both the accused persons have been arrested and prosecuted in the above said FIRs, their conviction would amount double jeopardise and it would be in violation of Article 20 (3) as well as Section 300 Cr. P.C.
(i) Learned counsel appearing for A15 contended that he was an illiterate person and was not aware that the passport had been issued in the name and personal particulars of Rajesh Vohra. It was further contended that he had disclosed his name correctly when it was asked by the officers as well as investigating officer. It was contended that A15 become the victim at the hands of unknown persons, who sent him abroad on the fake passport. It was further contended that he had never supplied any wrong information to anybody at the time of availing additional passport booklet; nor he furnished any wrong information at the emigration counter.
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(ii) Learned counsel appearing for A16 contended that A16 had also become the victim at the hands of unknown persons and A16 was not aware that the passport had been issued in the name and personal particulars of Rajesh Vohra. It was contended that the passport was delivered to A16 at the airport itself and since A16 was an illiterate person, he was not aware that the passport was issued in the name and personal particulars of Rajesh Vohra. He had seen that his photograph was affixed on the passport, consequently, he believed that the passport was in his name and accordingly, he entered the airport. It was further contended that at the airport, he disclosed his name correctly, this shows that he had no intention to cheat anybody. It was further contended that there is no evidence on record to show that he had furnished any false information either to the passport office or to anybody else. Learned counsel appearing for A15 and A16 further contended that there is no evidence on record to show that they were members of the conspiracy.
120. Per contra, learned Senior Public Prosecutor refuted the said contentions by arguing that A15 had travelled on the fake passport, which was issued in the name of Rajesh Vohra with his photograph, consequently, he was deported and thereafter he was arrested at the IGI Airport. It was further contended that A16 was arrested from the airport when he was trying to go abroad on the passport issued in the name and personal particulars of Rajesh Vohra with his photograph. It was further contended that the provisions of Section 300 Cr. P.C are not applicable in the facts and circumstances of the case.
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Finding qua A15 and A16:-
121. First question emerges from the submissions advanced by learned counsel for the accused persons; whether A15 and A16 are entitled for the protection available under Section 300 Cr. P.C or not.
122. Article 20 (3) Constitution of India says that no person shall be prosecuted and convicted for the same offence more than once. Pursuant to that, Section 300 Cr. P.C was enacted. Relevant portion of Section 300 Cr. P.C reads as under :
(1) A person who has once been tried by a Court of competent jurisdiction for an offence and convicted or acquitted of such offence shall, while such conviction or acquittal remains in force, not be liable to be tried again for the same offence, nor on the same facts for any other offence for which a different charge from the one made against him might have been made under sub-section (1) of section 221, or for which he might have been convicted under sub-section (2) thereof.
(emphasis supplied)
(i) Bare perusal of the provisions of Section 300, makes it clear that before granting benefit of Section 300 Cr. P.C, Court has to see that the trial had been held by the Court of competent jurisdiction; accused either has been convicted or acquitted for an offence; while such conviction or acquittal remains in force, such person cannot be tried again either for the same offence or for any other offence constituted on the basis of same facts. The first and CBI No. 83/16 (old No. 08/12) Page 191 of 219 State through CBI v. Bibianus Toppo & Ors.
foremost condition attract the Section 300 Cr. P.C, there must be either conviction or acquittal.
123. Now coming to the facts of the case at hand.
(i). It is undisputed fact that the Delhi police had arrested and prosecuted A15 in the case FIR No. 396/2004 for the offence punishable under Section 420/468/471/120-B IPC and Passport Act at PS IGI Airport. Similarly, A16 was arrested and prosecuted in case FIR No. 224/2004 for the offence punishable under Section 420/468/471/120-B IPC and Passport Act at IGI Airport. It is also undisputed fact that CBI has also filed the charge-sheet against A15 and A16 in the present case. All the said cases are pending before this Court.
(ii) Perusal of the file of the present case reveals that A15 and A16 have been charged for the offence punishable under Section 120B IPC r/w Section 419/420/467/468/471 IPC and Section 13 (2) r/w Section 13 (1) (d) of PC Act and Section 12 (1) (b) of Passport Act and they have also been charged for the substantive offence under Section 12 (1) (b) of Passport Act.
(iii) Perusal of the file pertaining to FIR No. 224/2004 reveals that A16 has been charged for the offence punishable under Section 419 IPC as he impersonated himself as Rajesh Vohra before Emigration Department; under Section 420 IPC r/w Section 511 IPC as he made an attempt to visit Paris on the basis of forged passport; under Section 420 IPC as he obtained visa in the name and personal particulars of Rajesh Vohra and under Section 471 IPC r/w Section CBI No. 83/16 (old No. 08/12) Page 192 of 219 State through CBI v. Bibianus Toppo & Ors.
468 IPC as he used the forged passport for the purpose of his travel. Similarly in the file relating to FIR No. 396/2004, A15 has been charged for the offence punishable under Section 419 IPC as he impersonated himself as Rajesh Vohra at the time of obtaining visa; under Section 420 IPC as he obtained visa and travelled on the basis of fake passport and under Section 471 IPC r/w Section 468 IPC as he used the forged the passport for the purpose of obtaining visa and his travelling to abroad.
(iv) Indisputably, since, all the cases are pending before this Court, A15 and A16 have not been convicted in the charge- sheet filed by the Delhi police till date. Thus, A15 and A16 do not satisfy even the basic condition of Section 300 Cr. P.C. Similarly, perusal of the charges framed against A15 and A16 in all the matters reveals that in the present matter, accused has been charged for the offence of obtaining additional passport booklets in the name and personal particulars of Rajesh Vohra whereas in Delhi police cases, they have been charged for obtaining visa and travelling or making an attempt to travel on the basis of fake and forged passport. Thus, in the present case, accused persons have not been charged for the charges, which have been framed against them in the above said Delhi police matters. Since, the present case does not satisfy the mandatory condition of Section 300 Cr. P.C, I am of the considered opinion that accused persons are not entitled for benefit of Section 300 Cr. P.C.
124. Now question arises whether there is any evidence on record to prove the charge of conspiracy or not:-
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(i). It is undisputed fact that A15 had travelled abroad i.e. UK on the strength of passport bearing No. E-7103221 issued from RPO, New Delhi and on August 28, 2004, he was deported from England on the ground that he had travelled abroad on the strength of passport issued in the name and personal particulars of Rajesh Vohra.
(ii) Perusal of the file relating to the above additional passport booklet reveals that the additional passport booklet was applied in the name and personal particulars of Rajesh Vohra with the photograph of A15. Along with the said application, photocopy of previous passport bearing No. B-2321175, which was issued in the name and personal particulars of Rajesh Vohra was annexed. On the said application form, additional passport booklet bearing No. E-
7103221 was issued on November 14, 2003. On the basis of said additional passport booklet, A15 had not only obtained visa but he also travelled UK and thereafter, he was deported to India.
125. Now question arises whether this evidence is sufficient to prove the charge of conspiracy or not?
(i). As already discussed, A5 had not only filled-up the forms but he had also signed in the name of applicant i.e. Rajesh Vohra in the file Ex.PW2/A, which contains the forms with the photograph of A15. This establishes that A5 had arranged the said additional passport booklet for A15. This proves that there was a conspiracy between A15 and A5 otherwise there was no occasion for A5 to apply for passport with the photograph of A15 in the name and personal particulars of Rajesh Vohra. Similarly, if A15 had not CBI No. 83/16 (old No. 08/12) Page 194 of 219 State through CBI v. Bibianus Toppo & Ors.
instructed to apply for passport, A15 would not have travelled on the basis of passport issued in the name and personal particulars of Rajesh Vohra.
126. No doubt, A15 had taken the plea in his statement recorded under Section 313 Cr. P.C that he had become the victim at the hands of unknown people as he was not aware till the time he boarded the plane that the passport was not issued in his name. He further took the plea that since he was a less educated person, he was not aware that the passport was not issued in his name.
(i) Perusal of the statement recorded under Section 313 Cr.P.C reveals that he signed in English, thus it can safely be culled out that A15 was in position at least to read and write his name in English. Thus, the plea of A15 that he was not able to read his name as he was less educated does inspire any confidence. Moreover, it is well known fact that at the time of taking boarding pass and emigration clearance, passenger has to disclose his name and personal particulars. Since, he succeeded in travelling to UK on the strength of said passport, it means that he represented himself as Rajesh Vohra at the time of boarding pass and emigration clearance, which further falsifies his plea that due to less education, he was not aware that the passport had been issued in the name and personal particulars of Rajesh Vohra.
127. Learned counsel appearing for A15 further submitted that since A15 was not entitled to obtain the passport in his CBI No. 83/16 (old No. 08/12) Page 195 of 219 State through CBI v. Bibianus Toppo & Ors.
name, there was no occasion for him to obtain the passport in the assumed name of Rajesh Vohra, this shows that he was the victim at the hands of unscrupulous person. But this plea does not inspire any confidence. If he was entitled to take passport in his name, there was no explanation why he travelled on the said passport and why he had not informed emigration department. Since, he travelled on the basis of passport issued in the name and personal particulars of another person i.e. Rajesh Vohra, this shows that he had no bonafide intention while travelling to abroad on the strength of said passport.
128. No doubt, there is no direct evidence to show that there was an agreement between A15 and A5 to procure the said passport, but as already discussed, conspiracy can be proved through circumstantial evidence as well as through the conduct of accused persons. Since, in the instant case, A15 had travelled abroad on the strength of fake passport, which was got issued/arranged by A5, I am of the considered opinion that the said fact is sufficient to establish the charge of conspiracy against A5 and A15.
129. Since, A15 had travelled abroad on the strength of the said passport, he is also liable for the offence punishable under Section 12 (1) (d) of the Passport Act as he knowingly used the said passport, which was issued in the name and personal particulars of the another person i.e. Rajesh Vohra.
Now coming to the role of A16:-
130. Indisputably, A16 had made an attempt to CBI No. 83/16 (old No. 08/12) Page 196 of 219 State through CBI v. Bibianus Toppo & Ors.
travel Paris on the strength of additional passport booklet bearing No. 8583581, which was issued in the name and personal particulars of Rajesh Vohra. He was apprehended at IGI Airport on May 25, 2004 while making an attempt to visit abroad i.e. Paris on the basis of said passport.
131. Perusal of the file Ex.PW4/D of additional passport booklet bearing No. E-8583581 reveals that the application was moved in the name and personal particulars of Rajesh Vohra for seeking additional passport booklet. However, on the forms, photograph of A16 was pasted. Along with the application, photocopy of passport bearing No. B-2321175 was also annexed, which was issued in the name and personal particulars of Rajesh Vohra, but on the said photocopy, photograph of A16 was affixed.
132. As already discussed that A5 had not only filled- up the said forms but he had also signed in the name of applicant i.e. Rajesh Vohra. On the basis of said application, additional passport booklet bearing No. E-8583581 was issued on April 07, 2004.
133. A16 in his statement recorded under Section 313 Cr.P.C took the plea that there was no legal bar for him to obtain passport in his name and personal particulars and he had no intention to travel abroad i.e. Paris in the name and personal particulars of Rajesh Vohra and further submitted that he had become the victim at the hands of Iqbal Singh and this fact is clear as he cooperated with the police as well as CBI official during investigation. It was further submitted that he had disclosed his correct name to the official at CBI No. 83/16 (old No. 08/12) Page 197 of 219 State through CBI v. Bibianus Toppo & Ors.
airport and never represented himself as Rajesh Vohra. It was further submitted that since the passport was handed over to him at airport by Iqbal Singh, he had no sufficient time to go through the same. He only checked his photograph on the passport.
(i) Though A16 took the plea that he would lead evidence in his defence, yet he failed to adduce any evidence in respect of his pleas. In the absence of any evidence on record, there is no substance in the plea of A16 that the passport was handed over to him at the airport. Moreover, assuming for the sake arguments that the passport was handed over to him at the airport, even then he could easily check whether the passport was issued in his name and personal particulars or not as he was not an illiterate person. From the statement recorded under Section 313 Cr. P.C, it becomes clear that he signed in English. This shows hat he at least read and write his name in English.
134. Though in his statement recorded under Section 313 Cr. P.C, he took the plea that since he cooperated with the officers at IGI Airport, investigating officer of Delhi police as well as CBI, this shows his innocence, but in order to prove this fact he has not led any evidence. No doubt, in the connected matter of Delhi police i.e FIR No. 224/2004, PW12 Insp. Vikram admitted in his cross- examination that during interrogation, accused disclosed his correct name, address and parentage. But this is not sufficient to establish that he had not misrepresented himself at airport. PW9 in the said case categorically deposed that he disclosed his real name at the time of making an inquiry from him. Though the evidence led in FIR No. CBI No. 83/16 (old No. 08/12) Page 198 of 219 State through CBI v. Bibianus Toppo & Ors.
224/2004 cannot be read in evidence in the present case, but this has been read to rebut plea of learned defence counsel that since accused had cooperated with investigating agency, he had no dishonest intention.
135. Indisputably, the accused was apprehended at emigration check, it means that he had already been obtained boarding pass. Needless to say that at the time of obtaining boarding pass, passenger is required to tell his name to the concerned staff. Since, the boarding pass was issued in the name of Rajesh Vohra, it proves that A16 must have told his name as Rajesh Vohra and not as Jaswinder Singh. As already stated that there is no substance in the plea of A16 that he was not aware that the passport was issued in the name and personal particulars of Rajesh Vohra. This further establishes that he had mis-represented himself as Rajesh Vohra at the time of obtaining boarding pass and he deliberately made an attempt to travel on the said passport, but he could not succeed to deceive the official posted at emigration check.
136. Since, the additional passport booklet was got prepared/arranged by A5 and A16 made an attempt to travel Paris on the said passport, this shows that there was some conspiracy between him and A5. No doubt, there is no direct evidence to prove the conspiracy between A5 and A16, but as already stated that the conspiracy can be established through circumstantial evidence or through conduct of the accused, I am of the considered opinion that in the present case, the conduct of A5 and A16 are sufficient to hold that there was a conspiracy between them otherwise there was no CBI No. 83/16 (old No. 08/12) Page 199 of 219 State through CBI v. Bibianus Toppo & Ors.
occasion for A5 to apply for passport in the name and personal particulars of Rajesh Vohra with the photograph of A16 and similarly, there would be no occasion for A16 to travel Paris on the strength of said passport. Accordingly, I am of the considered opinion that the prosecution has succeeded to prove the charges of conspiracy against A5 and A16 also.
137. Since, the passport was issued in the name and personal particulars of Rajesh Vohra, but despite that A16 made an attempt to travel Paris on the strength of said passport, A16 is also liable for the offence punishable under Section 12 (1) (d) of Passport Act.
138. Now question arise whether there is any material on record to prove conspiracy between A5 and A7.
(i) As already discussed that A7 had arranged air tickets qua two persons, who travelled abroad on the strength of 5 th and 7th additional passport booklets, which were issued in the name and personal particulars of Rajesh Vohra. As per the file Ex.PW2/C, additional passport booklet bearing No. E-7710158 was issued on February 06, 2004 whereas as per file Ex.PW4/D, 7 th additional passport booklet bearing No. E-8583581 was issued on April 07, 2004. As already discussed that A7 had arranged air tickets in respect of persons, who travelled abroad on the strength of said passports with the travelling date April 09, 2004 and May 25, 2004. Since, A7 had arranged the tickets in favour of the said passengers, in terms of Section 106 of Evidence Act, onus was upon him to explain who CBI No. 83/16 (old No. 08/12) Page 200 of 219 State through CBI v. Bibianus Toppo & Ors.
contacted him to book the said tickets. But during trial, A7 failed to discharge the said onus. As per the testimony of PW11, the passengers did not approach him to book the air tickets; rather the tickets were got booked by A7. This establishes that A7 had booked the said tickets for both the persons, who travelled on the strength of above said additional passport booklets.
(ii) As already discussed that the said additional passport booklets were applied by A5 in the name and personal particulars of Rajesh Vohra and it was A5, who signed in the name of applicants i.e. Rajesh Vohra in the forms as well as on the supporting documents. There is nothing on record, which may suggest that after collecting the said passports, the same were handed over by A5 to the applicants. In these circumstances, it can safely be culled out that after obtaining the passports, the same were given to A7 to arrange air tickets in favour of the persons in whose favour booklets were got issued in the name of Rajesh Vohra, accordingly, A7 arranged the said tickets through PW11. Had the said additional passport booklets been delivered to the applicants by A5, A7 would not have approached PW11 to arrange the tickets or if the passengers had approached A7 for arranging the tickets, A7 would have disclosed the detail of such persons during trial, but he failed to do so. This establishes that there was some conspiracy between A5 and A7. The role of A5 was to arrange additional passport booklets in the assumed name whereas the role of A7 was to arrange tickets for such passengers. Thus, I am of the considered opinion that CBI has succeeded to prove the conspiracy between A5 and A7.
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Contentions relating to accused Gopal Singh Naruka (A10):-
139. Learned counsel submitted that only allegation against A10 is that accused Dalbir Singh had made the payment of ` 4 lac to A10 through his brother Chandanjeet Singh in the presence of accused Ranjit Singh in a clandestine manner in order to obtain travel documents. It was sagaciously argued that during trial, CBI failed to produce any evidence to prove the said allegation. The only relevant witness was PW Chandanjeet Singh who allegedly made the payment of ` 4 lac to A10, but CBI did not bring him in the witness box. Even there is no evidence on record to establish that either accused Dalbir Singh told to the investigating officer that any such amount was given to A10; nor even A10 confessed any such fact. Even accused Ranjit Singh had not made any statement to the CBI that any such amount was given to A10 in his presence.
(i) Learned Senior Public Prosecutor appearing for CBI contended that PW Chandanjit Singh could not be examined due to death. However, PW51 in his testimony specifically deposed that a sum of ` 4 lac was given to A10.
(ii) Though CBI had examined 51 witnesses, yet none of them except PW51 uttered even a single word against A10. PW51 is the investigating officer. In his examination-in-chief, he deposed that during investigation it was revealed that A10 had arranged the passport and visa for accused Dalbir Singh in the name of Rajesh Vohra and for that purpose A10 had taken a sum of ` 4 lac from accused Dalbir Singh through his brother Chandanjeet Singh.
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Indisputably, the said transaction had not taken place in the presence of PW51; rather, it was revealed to him during investigation. But in his examination-in-chief, he failed to explain through whom he came to know about the above said transaction.
(iii) In his cross-examination, he admitted that A10 is not named in any of the FIRs registered by the CBI. He also admitted that Delhi police had registered an FIR No. 396/04 and even in the said case A10 was not named. He further testified that he did not arrest accused Dalbir Singh but swiftly added that he called Dalbir Singh 2-3 times for the purpose of interrogation. But, he failed to disclose the dates when he called him for the purpose of interrogation. When a Court question was put to PW51 whether he asked from accused Dalbir Singh from whom he procured the passport in question, PW51 deposed that he asked from accused Dalbir Singh and he told him that he had arranged the passport from one Ranjit Singh and Gopal Singh (A10). When a Court question was put to him whether the said interrogation was conducted in the presence of any witness, he deposed that at the time of interrogation, no witness was present. Further, when a question was put to him whether the statement of Dalbir Singh was recorded wherein he disclosed the name of Ranjit and Gopal Singh, he deposed that no such statement was recorded and when reason was asked for not recording the statement of Dalbir Singh, PW51 deposed that it was not required. During the course of arguments, learned Public Prosecutor failed to point out any provision where IO was not required to record the statement of accused if accused made certain revelations. Since, there is no statement of accused Dalbir Singh to the effect that he had CBI No. 83/16 (old No. 08/12) Page 203 of 219 State through CBI v. Bibianus Toppo & Ors.
arranged the said passport through Gopal Singh or any payment was made to A10 through Chandanjeet Singh, I am of the considered opinion that the testimony of PW51 wherein he deposed that a sum of ` 4 lac was paid to A10 by Dalbir Singh through his brother Chandanjit Singh in the presence of accused Ranjit Singh does not inspire any confidence. There is no other scintilla of evidence to establish that any such payment was ever made to A10. Accordingly, I am of the considered opinion that CBI has miserably failed to prove the guilt of A10, accordingly, I hereby acquit him from all charges.
Contentions qua accused Ranjeet Singh (A11):-
140. Learned counsel appearing for A11 submitted that there are two allegations against A11. First allegation is that A11 had arranged air-tickets in favour of two persons in whose favour third and fourth additional passport booklets were issued. It was alleged that as per prosecution version, A11 had arranged air-tickets through R.J Tours and Travels by supplying the photocopy of passport duly affixed with visa to the Travel agent. The second allegation is that a sum of ` 4 lac was paid to A10 by accused Dalbir Singh in the presence of A11.
(i) It was further submitted that though to prove the said allegations IO had cited two witnesses namely Shiv Singh and Chandanjeet Singh in the list of witnesses, but CBI failed to examine either of them during trial. It was further submitted that though CBI had examined as many as 51 witnesses, yet none of them except PW51 had uttered even a single word against accused Ranjit Singh. It CBI No. 83/16 (old No. 08/12) Page 204 of 219 State through CBI v. Bibianus Toppo & Ors.
was further submitted that during his testimony PW51 relied upon two letters of R.J.Tours and Travels Pvt. Ltd. i.e. Ex. PW51/O and Ex. PW51/P. Though in the said letters, it is mentioned that air-tickets were collected by Mr. Ranjit Singh whose cell phone numbers are 9810814378 and 9810345105. But, there is no evidence on record to establish that Mr. Ranjit as referred in the aforesaid letters is A11 and similarly there is no evidence that A11 had ever used the mobile phone mentioned therein. It was further contended that infact IO had not collected any evidence to connect A11 with the mobile phones mentioned in the aforesaid letters.
141. Per contra, learned counsel appearing for CBI submitted that since PW Chandanjit Singh died during trial, CBI could not produce him during trial and since PW Shiv Singh was not traceable despite efforts made by CBI, CBI failed to produce him also. However, it was submitted that since the name of Ranjit is mentioned in the letter Ex. PW51/O and PW51/P, this establishes that A11 was the person who arranged the air-tickets for the persons in whose favour third and fourth additional passport booklets were issued.
(i) As already discussed that there is no iota of evidence on record to establish that a sum of ` 4 lac was given to A10 though Chandanjit Singh in the presence of Ranjit Singh, I am of the considered opinion that CBI has failed to prove this allegation against A11.
(ii) Sofar, the allegation of arranging air-tickets is concerned; the sole relevant witness was PW Shiv Singh, but during CBI No. 83/16 (old No. 08/12) Page 205 of 219 State through CBI v. Bibianus Toppo & Ors.
trial CBI failed to bring him in the witness box. Even no effort was made by CBI to examine any other person from the office of RJ Tours and Travels Pvt. Ltd. to establish the fact that A11 had booked the air- tickets on the basis of aforesaid additional passport booklets or he had collected any such tickets from their office.
(iii) Indisputably, CBI placed reliance on the letter Ex. PW51/O and PW51/P through which RJ tours and Travels Pvt. Ltd had furnished certain informations to the CBI inter-alia that the air- tickets mentioned therein were collected by Ranjit and his cell number are 9810814378 and 9810345105. Admittedly, there is no iota of evidence on record to establish that Ranjit Singh whose name is mentioned in the aforesaid letters is A11. Similarly, there is no iota of evidence to establish that A11 is the owner of any of the above said mobile connection. Infact, investigating officer had not made any attempt to collect evidence to show the ownership of the aforesaid mobile phone connection. In the absence of any such evidence, it can not be said that A11 is the person to whom the said mobile phone numbers belong to.
(iv) It is admitted case of CBI that during his cross- examination, PW51 admitted that he did not arrest accused Ranjit Singh as his custodial interrogation was not required in the matter. Even his disclosure statement was not recorded. From his testimony, it appears that PW51 had not even examined Ranjit Singh, which shows that even no opportunity was given to A11 to explain whether he ever arranged any air-tickets from RJ Tours and Travels Pvt. Ltd.
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(v) In view of the aforesaid discussion, I am of the considered opinion that there is no iota of evidence on record to prove the guilt of accused Ranjit A11, accordingly, I hereby acquit him from all the charges.
CONCLUSION:-
141. Pondering over the ongoing discussion, I am of the considered opinion that prosecution has succeeded to prove:
(i) the charge against accused Anil Dhawan (A5), Amit Kumar Khatri (A7), Dalbir Singh (A15), Jaswinder Singh (A16) for the offence punishable under Section 120B IPC r/w Section 420/468 IPC and Section 471 IPC r/w Section 468 IPC and Section 12 (1) (b) of Passport Act, 1967 beyond of shadow of all reasonable doubts, accordingly, I hereby hold them guilty thereunder.
(ii) the charge against accused Anil Dhawan (A5) for the offence punishable under Section 420/468 IPC and Section 471 IPC r/w Section 468 IPC and Section 12 (1) (b) of Passport Act, 1967 beyond of shadow of all reasonable doubts, accordingly, I hereby hold him guilty CBI No. 83/16 (old No. 08/12) Page 207 of 219 State through CBI v. Bibianus Toppo & Ors.
thereunder.
(iii) the charge against accused Bibianus Toppo (A1), Harbhajan Yadav (A2), Ram Chander (A3) and Sushma Bajaj (A4) for the offence punishable under Section 13 (1) (d) (iii) of Prevention of Corruption Act, 1988 beyond of shadow of all reasonable doubts, accordingly, I hereby hold them guilty thereunder.
(iv) the charge against accused Dalbir Singh (A15) and Jaswinder Singh (A16) for the offence punishable under Section 12 (1) (d) of Passport Act, 1967 beyond of shadow of all reasonable doubts, accordingly, I hereby hold them guilty thereunder.
142. In the light of the aforesaid discussion, I am of the considered opinion that CBI has failed to bring home the guilt of accused persons namely Naieem Safi (A6), Dhiraj Bansal (A9), Gopal Singh Naruka (A10), Ranjit Singh (A11) and Rajesh Kumar Sharma (A12), accordingly, I hereby acquit them from all the charges.
Announced in the open Court on this 22nd day of December, 2016 (PAWAN KUMAR JAIN) Special Judge-01, CBI, North West Rohini Courts, Delhi/sv CBI No. 83/16 (old No. 08/12) Page 208 of 219 State through CBI v. Bibianus Toppo & Ors.
IN THE COURT OF SH. PAWAN KUMAR JAIN, SPECIAL JUDGE, CBI-01, NORTH-WEST DISTRICT, ROHINI COURTS COMPLEX, DELHI IN THE MATTER OF:
CBI No. : 83/16 (Old No. 08/12)
CNR No. : DLNW01-000009-2005
FIR No. : RC- 2(A) to 4 (A)/2004/SCU-V/
CBI/New Delhi
U/Sec: 120B r/w 419/420/467/468/471/474 IPC 13(2) r/w 13(1)(d) of PC Act 1988 12(1) (b) of Passport Act 1967 Police Station: SCR-II/SCU-V/CBI/New Delhi STATE THROUGH CENTRAL BUREAU OF INVESTIGATION, NEW DELHI VERSUS CBI No. 83/16 (old No. 08/12) Page 209 of 219 State through CBI v. Bibianus Toppo & Ors.
1. Bibianus Toppo S/o Late Joseph Toppo, R/o H. No. 770, Block No. 11 Baba Kharak Singh Marg, New Delhi-110001.
..........Convict No. 12. Harbhajan Yadav S/o Late Sultan Singh Yadav, R/o H. No. 949/1, Gali No. 4, Ashok Vihar, Gurgaon, Haryana.
..........Convict No. 23. Ram Chander S/o Sh. Maman Ram, R/o J-624, Sardar Colony, Sector 16, Rohini, Delhi-85.
..........Accused No. 34. Sushma Bajaj W/o Sh. Anil Bajaj, R/o 1851, Outerm Line, Kingsway Camp, Delhi.
..........Convict No. 4 CBI No. 83/16 (old No. 08/12) Page 210 of 219State through CBI v. Bibianus Toppo & Ors.
5. Anil Dhawan S/o Sh. Madan Lal Dhawan, R/o 254, DDA Flats, 1st Floor, New Ranjit Nagar, New Delhi-8.
..........Convict No. 56. Amit Kumar Khatri S/o Sh. Lekhraj Khatri R/o Flat No. 113, Kadambari Apartment Sector-9, Rohini, Delhi.
..........Convict No. 67. Dalbir Singh S/o Sh. Joginder Singh R/o Village Chasabu, Tehsil Phillor, Distt. Jalandhar Punjab.
..........convict No. 78. Jaswinder Singh S/o Sh. Amrik Singh R/o Village & PO Bada Pind Tehsil Phillor, Distt. Jalandhar Punjab.
..........Convict No. 8 CBI No. 83/16 (old No. 08/12) Page 211 of 219State through CBI v. Bibianus Toppo & Ors.
Appearance : Sh. Neetu Singh, learned Public Prosecutor for CBI Sh. R. Ramachandran, Advocate, counsel for Bibianus Toppo (C1), Amit Kumar Khatri (C6), and Jaswinder Singh (C8) Sh. Sukhwinder Singh, Advocate, counsel for Harbhajan Yadav (C2) and Ram Chander (C3) Sh. Anil Gupta, Advocate, counsel for Sushma Bajaj (A4) Sh. Lalit Yadav, Advocate, counsel for Anil Dhawan (C5) Ms. Manisha Sharma, Advocate, counsel for Dalbir Singh (C7) ORDER ON THE POINT OF SENTENCE :-
1. Vide separate judgment dated December 22, 2016, convicts namely Anil Dhawan (C5), Amit Kumar Khatri (C6), Dalbir Singh (C7), Jaswinder Singh (C8) have been held guilty for the offence punishable under Section 120B IPC r/w Section 420/468 IPC and Section 471 IPC r/w Section 468 IPC and Section 12 (1)
(b) of Passport Act, 1967.
(i) Convict Anil Dhawan (C5) has been held guilty for the offence punishable under Section 420/468 IPC and Section 471 IPC r/w Section 468 IPC and Section 12 (1) (b) of Passport Act, 1967.
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(ii) Convict Bibianus Toppo (C1), Harbhajan Yadav (C2), Ram Chander (C3) and Sushma Bajaj (C4) have also been held guilty for the offence punishable under Section 13 (1) (d) (iii) of Prevention of Corruption Act, 1988.
(iii) Convict Dalbir Singh (C7) and Jaswinder Singh (C8) have also been held guilty for the offence punishable under Section 12 (1) (d) of Passport Act, 1967.
2. Learned counsels appearing for the convicts request for a lenient view on the grounds that they are law abiding citizens and they are sole bread earners of their respective families. They are also suffering from the agony of trial for the last more than eight years.
(i) Besides that counsel appearing for convict Ram Chander submits that convict is a 55 years old man and there is no probability of repeating similar offence by him.
(ii) Counsel appearing for convict Ms. Sushma Bajaj requests for a lenient view on the ground that she has no criminal antecedents and even as per record, she had given the HIT clearance only in one file.
(iii) Similarly, counsel appearing for convict Harbhajan Yadav requests for a lenient view on the ground that convict Harbhajan Yadav is not involved in any other case except passport scam cases and further states that during last eight years, convict has not been found indulged in any other criminal matter, which shows that CBI No. 83/16 (old No. 08/12) Page 213 of 219 State through CBI v. Bibianus Toppo & Ors.
convict has reformed himself.
(iv) Learned counsel appearing for convict Bibianus Toppo submits that there is no evidence on record that convict had taken any illegal gratification or any monetary benefit. It is further submitted that convict is aged about 67 years and suffering from various ailments. Convict has only one son, but he is still unemployed, thus convict is the sole bread earner of his family.
(v) Counsel appearing for convict Anil Dhawan also requests for a lenient view on the ground that convict has been appearing regularly in the Court and there is nothing on record which may suggest that he had committed any other offence after filing the charge-sheets in passport scam cases. It is further submitted that both the kidneys of his father had already been failed, thus he is on regular dialysis for the last three years. It is further submitted that convict is a sole bread earner of his family comprising of his old parents and two small school going kids besides his wife.
(vi) Counsel appearing for convict Amit Kumar Khatri requests for a lenient view on the ground that convict is a sole bread earner of his family and he has two school going children. It is further submitted that father of the convict is heart patient and he has to bear the medical expenses of his father. It is further submitted that during trial, CBI failed to establish that convict Amit Kumar Khatri had obtained any pecuniary gain or wrongful gain and requests to release him for the period already undergone.
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(vii) Counsel appearing for convict Dalbir Singh requests for a lenient view on the ground that he is only male member in the family and he is sole bread earner of his family having two small kids. It is further submitted that accused has no criminal antecedents.
(viii) Counsel appearing for convict Jaswinder Singh requests for a lenient view on the ground that convict is sole bread earner of his family having two small kids. It is further submitted that convict is an agriculturist by profession. His mother is sick. It is further submitted that the role of convict is not serious in this matter as it is admitted case of CBI that he intended to go abroad for the purpose of earning his livelihood and he was otherwise entitled to obtain passport in his name. It is requested to release him for the period already undergone.
3. Per contra, counsel appearing for CBI refuted the said contentions by vehemently arguing that the convicts No. 1 to 5 are involved in numerous passport scam cases and due to their acts, passports in the form of additional passport booklets had been issued in favour of fictitious persons. It is further submitted that since passport is an important document to prove identity and nationality, such passports could be misused by anti-national elements. It is further submitted that convicts No.1 to 3 and convict no. 5 had also been convicted in other matters such as CC No. 74/2008, CC No. 56/08, CC No. 11/12, CC No. 5/12, CC No. 76/08, CC No. 24/09, CC No. 7/12 and CC No. 6/12. It is further submitted that in some matters, convict no. 4 is also held guilty.
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(i) It is further submitted that convict no. 6 arranged air- tickets in favour of fictitious persons and he had also been charge- sheeted in other cases.
(ii) It is further submitted that convict no. 7 & 8 were the real beneficiary. Convict no. 7 travelled abroad on the basis of forged passport whereas convict no.8 made an attempt to travel abroad on the strength of forged passport, but was arrested at IGI Airport.
(iii) It is requested to impose maximum sentence against the convicts.
4. I have heard rival submissions made by counsel for both the parties, perused the record carefully and gave my thoughtful consideration to their contentions.
5. In view of the aggravating and mitigating factors as highlighted by counsel for both the parties and the fact that prosecution not only failed to establish the charge of conspiracy with the public servants but also failed to prove that public servants had obtained any pecuniary advantage or valuable thing for themselves, I am of the considered opinion that it is not a fit case to impose maximum sentence qua public servants as prayed by learned Public Prosecutor for CBI. Simultaneously, in view of the aggravating factors as pointed out by the counsel for CBI, I am also of the opinion that it is also not a fit case to take extreme lenient view as prayed by counsel for the convicts.
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6. In view of the aforesaid discussion, I hereby sentence the convict nos. 1 to 4 i.e. Bibianus Toppo (C1), Harbhajan Yadav (C2), Ram Chander (C3) and Sushma Bajaj (C4) rigorous imprisonment for a period of one year and a fine of ` 20,000/- each in default further simple imprisonment for a period of six months for the offence punishable under Section 13(2) read with Section 13(1) (d) (iii) of Prevention of Corruption Act.
7. As already discussed that convicts namely Anil Dhawan (C5), Amit Kumar Khatri (C6), Dalbir Singh (C7) and Jaswinder Singh (C8) have been convicted for the charge of conspiracy. The role of C5 was to procure passports in favour of fictitious persons in the name and personal particulars of Rajesh Vohra whereas role of C6 was to procure air-tickets in favour of some of such persons. C7 and C8 were the two beneficiaries who obtained passports in the name and personal particulars of Rajesh Vohra.
(i) Considering the role played by them, I hereby sentence the convicts namely Anil Dhawan (C5), Amit Kumar Khatri (C6), Dalbir Singh (C7) and Jaswinder Singh (C8) rigorous imprisonment for a period of two years and a fine of ` 20,000/- each in default further simple imprisonment for a period of six months for the offence punishable under Section 120-B read with Section 420/468 IPC and Section 471 r/w 468 IPC and Section 12(1)(b) of Passport Act, 1967.
(ii) I also sentence convict no.5 Anil Dhawan rigorous imprisonment for a period of three years and a fine of ` 15,000/- in CBI No. 83/16 (old No. 08/12) Page 217 of 219 State through CBI v. Bibianus Toppo & Ors.
default further simple imprisonment for a period of six months for the offence punishable under Section 420 IPC.
(iii) I also sentence convict no.5 Anil Dhawan rigorous imprisonment for a period of three years and a fine of ` 15,000/- in default further simple imprisonment for a period of six months for the offence punishable under Section 468 IPC.
(iv) I also sentence convict no.5 Anil Dhawan rigorous imprisonment for a period of two years and a fine of ` 10,000/- in default further simple imprisonment for a period of three months for the offence punishable under Section 471 IPC r/w 468 IPC.
(v) I also sentence convict no.5 Anil Dhawan rigorous imprisonment for a period of one year and a fine of ` 5,000/- in default further simple imprisonment for a period of three months for the offence punishable under Section 12 (1) (b) of Passport Act, 1967.
(vi) Since, convicts namely Dalbir Singh (C7) and Jaswinder Singh (C8) were the beneficiaries, I hereby sentence them rigorous imprisonment for a period of two years and a fine of ` 5,000/- each in default further simple imprisonment for a period of three months for the offence punishable under Section 12 (1) (d) of Passport Act, 1967.
8. Benefit of Section 428 Cr. P.C, if any, be given to the convicts. All sentences shall run concurrently.
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9. Copy of judgment along with order on the point of sentence be given to the convicts/their counsels free of cost.
10. Since, accused Hemant Gandhi has been declared absconded, file be consigned to record room with direction that same be revived as and when he is arrested.
Announced in the open Court on this 24th day of December, 2016 (PAWAN KUMAR JAIN) Special Judge-01, CBI, North West Rohini Courts, Delhi/sv CBI No. 83/16 (old No. 08/12) Page 219 of 219