Delhi District Court
State Through Cbi V. Bibianus Toppo & Ors vs State on 23 February, 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. : 07/2012
ID No. : 02404R0009672008
FIR No. : RC-2(A)/2005/SCU-V/CBI/SCR-II,
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 and
substantive offences thereto
Police Station: CBI/SCU-V/SCR-II/New Delhi
STATE
THROUGH
CENTRAL BUREAU OF INVESTIGATION,
NEW DELHI
VERSUS
CBI No. 07/12 Page 1 of 159
State through CBI v. Bibianus Toppo & Ors.
1. Bibianus Toppo
S/o Late Joseph Toppo,
R/o 14 G, Sector 4,
DIZ Area, Raja Bazar,
Gole Market, New Delhi-01.
..........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, Outram Line,
Kingsway Camp,
New Delhi-09
..........Accused No. 4
5. G.D. Joshi
S/o Late K. D. Joshi,
R/o K-251, Gali No. 6B/5 ,
Mahipal Pur Extn. New Delhi-37
..........Accused No. 5
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State through CBI v. Bibianus Toppo & Ors.
6. R.S. Rawat
S/o Late Bachan Singh Rawat,
R/o X-258, Sarojni Nagar,
New Delhi-23.
(Proceedings abated on account
of death vide order dated 28.10.2014)
..........Accused No. 6
7. Umrao Singh
S/o Sh. Ghisa Ram
R/o Vill. Majri Khora, PO Pandmada
Khurd, PS Mundawas,
Distt. Alwar, Rajasthan
(Proceedings abated on account
of death vide order dated 17.09.2009)
..........Accused No. 7
8. Anil Dhawan
S/o Late Madan Lal Dhawan,
R/o 254, DDA Flats, 1st Floor,
New Ranjit Nagar,
New Delhi-8.
..........Accused No. 8
9. Naieem Safi
S/o Salim Safi
R/o A-296, DDA Flats, Ist Floor
New Ranjit Nagar,
New Delhi-8.
..........Accused No. 9
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State through CBI v. Bibianus Toppo & Ors.
10. Harish Kumar Malhotra
S/o Late Sh. Arjun Das Malhotra
R/o 6/140, Lodhi Mohalla, Farsh Bazar
Shahdara,
Delhi-110032
..........Accused No. 10
11. Vir Singh
S/o Mehar Singh
R/o A-95, Lok Vihar,
Pitampura,
New Delhi
(Proclaimed offender vide order dated
07.08.2010)
..........Accused No. 11
12. Rajwinder Singh
S/o Darshan Singh
R/o Surkh Pur, PS Kotwali,
Distt. Kapurthala
Punjab.
..........Accused No. 12
13. Malkit Singh
S/o Gian Singh
R/o Sangojla, PS Dhalwan,
Distt. Kapurthala
Punjab.
(Proclaimed offender vide order dated
07.08.2010)
..........Accused No. 13
CBI No. 07/12 Page 4 of 159
State through CBI v. Bibianus Toppo & Ors.
Date of Institution : 26.03.2012
Date of judgement reserved on : 04.02.2016
Date of pronouncement of judgement : 19.02.2016
Appearance : Sh. Harsh Mohan, learned Public Prosecutor
for CBI
Sh. R. Ramachandran, Advocate, counsel for
Bibianus Toppo (A1)
Sh. Sukhwinder Singh, Advocate, counsel for
Harbhajan Yadav (A2) and Ram Chander (A3)
Sh. Anil Gupta, Advocate, counsel for Sushma
Bajaj (A4)
Sh. Mrityunjay, Advocate, counsel for G.D.
Joshi (A5)
Sh. Lalit Yadav, Advocate, counsel for Anil
Dhawan (A8) and Naieem Safi (A9)
Sh. A.S. Kulshretha, Advocate, counsel for
Harish Kumar Malhotra (A10)
Sh. Arun Bansal, Advocate, counsel for
Rajwinder Singh (A12)
J U D G E M E N T :-
1. Facts in brief as unfolded from the charge-sheet are as under:-
(i) It was alleged that an information was received in the office of CBI that during the period 2000-2004 S/Sh. Om Parkash, PRO; Bibianus Toppo, Superintendent (hereinafter, "A1"); P. K. CBI No. 07/12 Page 5 of 159 State through CBI v. Bibianus Toppo & Ors.
Kapoor, Superintendent (since dead); Purshottam Lal, UDC; Harbhajan Yadav, UDC ("A2") all public servants working in Regional Passport Office ( in short RPO), New Delhi had entered into a criminal conspiracy with private persons namely Anil Dhawan ("A8"), Naieem Safi (A9) and others to cheat the RPO, New Delhi for obtaining various passports in the form of additional passport booklets by using similar personal particulars with different photographs and signatures of the passport holders.
(ii) It was alleged that in pursuance of the said criminal conspiracy, various passports in the form of additional passport booklets had been issued in the name of various persons, namely, Mr. Rajender Kumar Kapoor, Mr. Kamal Sharma, Ms. Rekha Khanna, Ms. Reena and Sunil Kumar Jolly. In the present case, multiple passport booklets were issued in the name of Rajender Kumar Kapoor s/o Mehar Chand Kapoor r/o A-87/C, Gali No. 4, Krishna Nagar, Sarojini Nagar, New Delhi-110029.
(iii) It was alleged that accused Vir Singh (A11) had applied for a passport in the fictitious name of Rajender Kumar Kapoor in the year 2000. Accordingly, the said application was processed in the file No. B-41056 dated November 2, 2000.
(iv) It was alleged that verification of identity, antecedents, characters and residence of the applicant was done by ASI Umrao Singh, (Special Branch), Delhi (A7). It was alleged that he had submitted a false verification report without verifying the identity, antecedents, character and address of the applicant.
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(v) It was alleged that on the basis of his false report, the passport bearing No. B-5081375 was issued on December 20, 2000 to Vir Singh (A11) in the name of Rajender Kumar Kapoor.
(vi) It was alleged that during investigation, it was revealed that no person by the name of Rajender Kumar Kapoor had ever resided at the given address, thus he had been proved to be a fictitious person. Though Vir Singh (A11) could not be traced out, but it was revealed that he had gone abroad on the strengthen of said passport.
(vii) It was alleged that Harish Kumar Malhotra (A10) had facilitated A11 in obtaining passport in the fictitious name as he had forged the signature of two persons, namely, Raj Kumar Saini and Yogender Singh on the witness identification slip in the presence of ASI Umrao Singh. It was alleged the handwriting expert in his report categorical stated that A10 had forged the signature of the above said two persons. It was further alleged that A10 had also obtained the said passport.
(viii) It was further alleged that on the basis of said original passport, multiple applications were made in the office of RPO, New Delhi on August 22, 2003, December 04, 2003, February 03, 2004, February 27, 2004, March 26, 2004 and April 20, 2004 for the issuance of additional passport booklets with the personal particulars and address of Rajender Kumar Kapoor, but with different photographs and signatures on each occasion.
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(ix) It was alleged that the above-said applications were processed in the RPO, New Delhi by accused Harbhajan Yadav, counter clerk (A2) and on the basis of said applications, 6 additional passports were issued. The detail of the said passport booklets and passport files numbers is given as under:
Passport File No. Passport No. Date T-10278/03 E-6330265 25.08.2003 T-15306/03 E-7104766 09.12.2003 T-1569/04 E-7710034 05.02.2004 T-3162/04 E-7988266 04.03.2004 T-5039/04 E-8582894 31.03.2004 T-6676/04 E-8584870 21.04.2004 (x) It was alleged that in the first file, additional passport
booklet bearing No. E-6330265 was granted and signed by P.K. Kapoor, Supdt. RPO, New Delhi, who had already died. In other remaining five files, additional passport booklet was granted and signed by accused Bibianus Toppo (A1).
(xi) It was alleged that the identity of the persons, who travelled on the basis of last 4 additional passport booklets (E- 7710034, E-7988266, E8582894 and E-8584870) could not be established during investigation.
(xii) It was alleged that accused Sushma Bajaj, Asstt. (A4) CBI No. 07/12 Page 8 of 159 State through CBI v. Bibianus Toppo & Ors.
and Ram Chander, LDC (A3) were posted in HIT section of RPO, New Delhi. It was alleged that there was a facility in their computer to check the photograph and signature of earlier passport holders and in case any dissimilarity, it was the duty of officials working in the HIT section to point out the same.
(xiii) It was alleged that in the present case, accused Sushma Bajaj (A4) had given the HIT clearance in passport file No. T- 10278/03 whereas in four passport files (T-1569/04, T-3162/04, T- 5039/04 and T-6676/04) HIT clearance was given by accused Ram Chander (A3). It was alleged that both the accused persons had given the HIT clearances without checking the particulars of the applicants, accordingly, the additional passport booklets were issued in the name of fictitious person.
2. It was alleged that during investigation, all the applications for additional passport booklets were sent to handwriting expert and it was revealed that all the passport applications were filled-up by accused Anil Dhawan (A8). During investigation, it was also revealed that accused Anil Dhawan (A8) had received all the additional passport booklets except passport booklet bearing No. E-6330265 dated August 25, 2003, which was collected by his associate Naieem Safi (A9). It was alleged that though the passports were not issued in the name of A8 and A9; nor they had any authority letter from the passport holders, but despite that they collected the same from the RPO, New Delhi by putting their signature in the name of applicant in the delivery register.
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(i) It was alleged that G.D. Joshi (A5) and R.S. Rawat (A6) were working in the RPO, New Delhi and their duty was to deliver the prepared additional passport booklets to the passport holders or their authorised representatives.
(ii) It was alleged that G.D. Joshi (A5) had delivered the three additional passport booklets ( E-7104766, E-7710034 and E- 7988266) to co-accused Anil Dhawan (A8) and he also delivered one additional passport booklet bearing No. E-6330265 to Naieem Safi (A9). Similarly, accused R.S. Rawat (A6) delivered 2 additional passport booklets (E-8582894 and E-8584870) to Anil Dhawan (A8).
(iii) It was alleged that though the said passports were not issued in the name of said accused persons and their photographs were not also affixed on the additional passport booklets and even they were not authorised by the passport holders, but despite that A5 & A6 had delivered the said additional passport booklets to them.
(iv) It was alleged that during investigation, it was revealed that Rajwinder Singh (A12), Malkit Singh (A13) had obtained the additional passport booklets bearing No. E-6330265 and E-7104766 as their photographs were affixed on the application form as well as additional passport booklets and it was revealed that the said passports were used by these accused persons for visiting abroad.
(v) It was alleged that the accused persons namely A1 to A7 entered into a criminal conspiracy with private persons, object of which was to get issued passport and additional passport booklets CBI No. 07/12 Page 10 of 159 State through CBI v. Bibianus Toppo & Ors.
fraudulently from RPO, New Delhi. It was alleged that the passport officials abused their official position and in conspiracy with accused Anil Dhawan (A8) and Naieem Safi (A9), Harish Kumar Malhotra (A10), Vir Singh (A11), Rajwinder Singh (A12) and Malkit Singh (A13) consequently they did not ask the applicants to produce their previous passport booklets for observation and cancellation and each time the original passport booklet bearing No. B-5081375 was shown to have been cancelled, which was not permissible as the same passport could not be used for the issuance of multiple additional passport booklets.
3. After completing investigation, challan was filed against accused persons for the offence punishable under Section 120B IPC read with Section 419/420/467/468/471/474 IPC and Section 13 (2) read with Section 13 (1) (d) of PC Act, 1988 and 12 (1) (b) of Passport Act, 1967 and substantive offences thereto.
4. Necessary sanction also obtained under Section 19 of PC Act in respect of A1 to A6. Sanction under Section 15 of Passport Act, 1967 was obtained in respect of all the accused persons. However, no sanction was obtained under Section 19 of PC Act qua accused Umrao Singh (A7) as he had already been retired from the service. No charge-sheet was filed against accused P.K. Kapoor as he had already expired on September 11, 2004.
5. Vide order dated September 17, 2009, proceeding qua accused Umrao Singh (A7) were abated on account of his death.
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6. Vide order dated August 07, 2010, accused Vir Singh (A11), Malkit Singh (A13) were declared proclaimed offender.
7. Vide order dated March 19, 2011, it was ordered to frame charge as under:
Name of the Offences under which charges to be framed. accused persons Bibianus Toppo 120B IPC r/w Section 419/420/467/468/471 IPC and Section 13 (2) r/w Section 13 (1) (d) of PC Act, 1988 and Section 12 (1) (b) of Passport Act, 1967.
Substantive offences under Section 13 (2) r/w Section 13 (1) (d) of PC Act, 1988.
Substantive offence under Section 12 (1)(b) of Passport Act, 1967.
Substantive offence under Section 467 IPC Harbhajan Yadav 120B IPC r/w Section 419/420/467/468/471 IPC and Section 13 (2) r/w Section 13 (1) (d) of PC Act, 1988 and Section 12 (1) (b) of the Passport Act, 1967 Substantive offence under Section 12 (1) (b) of Passport Act, 1967.
Substantive offences under Section 13 (2) r/w Section 13 (1) (d) of PC Act, 1988.
Ram Chander 120B IPC r/w Section 419/420/467/468/471 IPC and Section 13 (2) r/w Section 13 (1) (d) of PC Act, 1988 and Section 12 (1) (b) of the Passport CBI No. 07/12 Page 12 of 159 State through CBI v. Bibianus Toppo & Ors.
Act, 1967 Substantive offences under Section 12 (1) (b) of Passport Act, 1967.
Substantive offences under Section 13 (2) r/w Section 13 (1) (d) of PC Act, 1988.
Sushma Bajaj 120B IPC r/w Section 419/420/467/468/471 IPC and Section 13 (2) r/w Section 13 (1) (d) of PC Act, 1988 and Section 12 (1) of the Passport Act, 1967.
Substantive offences under Section 12 (1) (b) of Passport Act, 1967.
Substantive offences under Section 13 (2) r/w Section 13 (1) (d) of PC Act, 1988.
G.D. Joshi 120B IPC r/w Section 419/420/467/468/471 IPC and Section 13 (2) r/w Section 13 (1) (d) of PC Act, 1988 and Section 12 (1) of the Passport Act, 1967.
Substantive offences under Section 12 (1) (b) of Passport Act, 1967.
Substantive offences under Section 13 (2) r/w Section 13 (1) (d) of PC Act, 1988.
R.S. Rawat 120B IPC r/w Section 419/420/467/468/471 IPC and Section 13 (2) r/w Section 13 (1) (d) of PC Act, 1988 and Section 12 (1) of the Passport Act, 1967.
Substantive offences under Section 12 (1) (b) of Passport Act, 1967.CBI No. 07/12 Page 13 of 159
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Substantive offences under Section 13 (2) r/w Section 13 (1) (d) of PC Act, 1988.
Anil Dhawan 120B IPC r/w Section 419/420/467/468/471 IPC and Section 13 (2) r/w Section 13 (1) (d) of PC Act, 1967 and under Section 12 (1) (b) of PC Act, 1967.
Substantive offences under Section 12 (1) of the Passport Act, 1967.
Substantive offences under Section 419/420/468/471 IPC. Naieem Safi 120B IPC r/w Section 419/420/467/468/471 IPC
and Section 13 (2) r/w Section 13 (1) (d) of PC Act, 1988 and Section 12 (1) of the Passport Act, 1967.
Substantive offences under Section 12 (1) (b) of Passport Act, 1967.
Substantive offences under Section 419 IPC Harish Kumar 120B IPC r/w Section 419/420/467/468/471 IPC Malhotra and Section 13 (2) r/w Section 13 (1) (d) of PC Act, 1988 and Section 12 (1) of the Passport Act, 1967 Substantive offences under Section 12 (1) (b) of Passport Act, 1967.
Substantive offences under Section 419/468 IPC.CBI No. 07/12 Page 14 of 159
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Rajwinder Singh 120B IPC r/w Section 419/420/467/468/471 IPC and Section 13 (2) r/w Section 13 (1) (d) of PC Act, 1988 and Section 12 (1) (b) of the Passport Act, 1967 Substantive offences under Section 12 (1) (b) of Passport Act, 1967.
Substantive offence under Section 471/467 IPC.
8. Accordingly, on May 07, 2011, charges were framed against all the accused persons to which they pleaded not guilty and claimed trial.
9. In order to bring home the guilt of accused persons, prosecution has examined as many as 35 witnesses. For the purpose of discussion and convenience, all the witnesses have been classified in the following categories:-
Witnesses relating to accused Anil Dhawan (A8):
PW5 Pradeep Chawla, employer of A8
PW23 Gurinder Singh Walia, employer of A8.
PW24 Dr. B.A. Vaid, Handwriting Expert, GEQD,
CFSL, Shimla.
PW29 S.K. Soni
PW30 R.P. Atri
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Officials of RPO Office, New Delhi:
PW4 Mr. M.S. Thapar
PW6 Ms. Suman Kumar Sehgal
PW7 Mr. Raj Singh
PW8 Mr. Tara Dutt Joshi
PW10 Mr. Puran Chand
PW11 Smt. Shashi Gupta
PW12 Smt. Shakuntala Devi
PW15 S.N. Nagar
PW20 Mr. Ajai Gautam
PW22 Mr. Jeevan Singh
PW25 Mr. S.P. Kothari
Officials of RPO Office, Jalandhar (Punjab):
PW27 Pawan Kumar Sharma
Witness qua sanction:
PW18 Sh. R. Swaminathan, the then Joint
Secretary CPV (Councillor PP visa and
Chief PP Officer, Ministry of External
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Affairs, New Delhi)
CBI Officials:
PW33 Sh. R.K.Aggarwal, the then DSP
PW34 Rajiv Wahi, inspector
PW35 A.K. Tripati, investigating officer
Private persons :
PW1 Ramesh Kumar Saini
PW2 Satish Taluja
PW3 Sunil Vij
PW9 Amit Kumar Sharma
PW13 Kulwinder Singh
PW14 Yaad Singh
PW16 Sona Ram Kapoor
PW17 Maan Singh
PW19 Kumari Kaur
PW26 Inderjeet Vij
PW28 Jawinder Singh
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Witnesses regarding verification of antecedents of the applicant for issuance of passport :
PW21 Sh. Sumer Singh, ACP Public Grievances East District, Delhi Police Witnesses relating to accused Naieem Safi (A9) :
PW31 Gurbachan Singh
PW32 Gurpratap Singh
10. Vide order dated October 28, 2014, proceeding qua R.S. Rawat (A6) were abated on his death.
11. On culmination of prosecution evidence, accused persons were examined under Section 313 Cr.P.C wherein they denied all incriminating evidence led by prosecution and submitted that they have been falsely implicated in this case. All the accused persons except Bibianus Toppo (A1) stated that they did not want to lead evidence in their defence. The accused persons took the following plea in their statement recorded under Section 313 Cr. P.C.
(i) A1 took the plea that no sanction had been accorded by the competent authority to prosecute him in this case. Moreover, sanction has been accorded in mechanical manner without application CBI No. 07/12 Page 18 of 159 State through CBI v. Bibianus Toppo & Ors.
of mind.
(a) That at the relevant time, no facility was provided in the computer of PIAs to check the photograph, signature and old references of the applicants. Nor the previous passport file used to be sent to PIA for perusal and inspection. Accordingly, PIA had no facility to detect the fraud. Only in the year 2006, facility of checking of the photograph, signature and old references had been provided in the computer of PIAs.
(b) That during the period 2000-04, Ministry of External Affairs had simplified the procedure of issuance of additional passport booklet by issuing numerous circulars and further directed the PIAs that additional passport booklet should be issued on the same day or preferably within 3 to 5 days.
(c) That the accused had issued the additional passport booklets believing his subordinate staff and the fact that there was no adverse report in any of the files from any of the sections of RPO, New Delhi.
(d) That at the relevant time, accused was also looking after the miscellaneous service work, consequently, he had to deal with about 300 files in a day, thus it was not possible for the accused to go through each and every file minutely. At the time of dealing with the files in question, accused relied upon his subordinate staff and the fact CBI No. 07/12 Page 19 of 159 State through CBI v. Bibianus Toppo & Ors.
that there was no adverse report from the HIT section.
(e) That whenever accused remained on leave and not available in the office, similar procedure was adopted by other PIAs, namely, S.P. Kothari, Ms. Asia, Y.K. Kaushal and U.S. Lingwal, but no action had been taken against them for passing similar orders; rather they have been cited as prosecution witnesses in different cases.
(ii) Accused Harbhajan Yadav took the plea that he recommended on the files as per the procedure prevalent in the RPO, New Delhi and no facility was provided to him to check the genuineness of the documents produced by the applicant and further submitted that he used to work as per the instructions of his seniors and further stated that he had not obtained any monetary benefits from any one of the applicants in any manner.
(iii) Accused Ram Chander took the plea that the entry in the HIT section was free to all general public and employees of RPO, New Delhi, thus it was quite possible that at the time of opening the computer, somebody might have noted down his password from the movement of his fingers and later on misused the same and this is corroborated from the fact that HIT had been shown to be cleared by him despite that on that day he was on leave. He further submitted that he had not shared his password with anybody, nor authorised any person to give HIT clearances.
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(iv) Accused Sushma Bajaj (A4) took the plea that as per prosecution version, she had given HIT clearance in one file which pertained prior to December, 2003 and further submitted that at that time, no facility was provided in her computer to check the photograph and signature of the passport holder and number of additional passport booklets earlier issued to the applicants.
(v) Accused G.D. Joshi took the plea that he had done only registration of the applications in the concerned files and he had not delivered any passport to anyone and further submitted that he has been falsely implicated in this case.
(vi) Accused Anil Dhawan took the plea that he had never worked with G.S. Walia and he had no concern with him and further submitted that he had been made a scapegoat in this case by the CBI to save G.S. Walia from whose possession, numerous incriminating materials such as passport, blank documents, visa, blank letterheads of different companies/firms were recovered. He further submitted that he was called at the office of CBI by G.S. Walia on the pretext that he had some urgent work but when he reached there, CBI implicated him falsely in this case at the behest of G.S. Walia.
(vii) Accused Naieem Safi took the plea that he has no role in the present case and he has been falsely implicated in this case.
(viii) Accused Harish Kumar Malhotra took the plea that he CBI No. 07/12 Page 21 of 159 State through CBI v. Bibianus Toppo & Ors.
has been falsely implicated in this case and submitted that his name is not mentioned in the FIR and further took the plea that CBI had taken his signatures under pressure on blank papers.
(ix) Accused Rajwinder Singh took the plea that neither he had applied for nor authorised any person to apply or receive or use any additional passport on his behalf. He further submitted that he had a valid passport from Jallandher RPO since 1994. Photograph shown in one of the passports is a morphed photograph and the same does not belong to him.
12. In order to prove his innocence Bibianus Toppo (A1) examined the following witnesses:
DW1 Mukesh Kumar, Asstt. Passport Office, New Delhi DW2 Neeraj Kumar, Clerk, Rohini Court DW3 Sonu Bhardwaj, Ahlmad of this Court
13. I have heard rival submissions made by counsel for the parties, perused the record including written submissions filed on behalf of A1 carefully and gave my thoughtful consideration to their contentions.
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Common Contentions on behalf of A1 to A5:-
14. Learned counsel appearing for the accused persons who were working in RPO, New Delhi at the time of commission of alleged offence vigorously contended that since the passport is not a valuable document, accused persons cannot be held guilty for the offence punishable under Section 13 (2) of PC Act.
(i) Per contra, learned Public Prosecutor appearing for CBI refuted the said contentions by sagaciously arguing that since passport confers a valuable right over a person, passport is a valuable thing.
15. 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:-CBI No. 07/12 Page 23 of 159
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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;
(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.
16. 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 CBI No. 07/12 Page 24 of 159 State through CBI v. Bibianus Toppo & Ors.
"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 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.
CBI No. 07/12 Page 25 of 159State through CBI v. Bibianus Toppo & Ors.
(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".
17. Learned counsel appearing for A1 to A5 vehemently contended that accused persons had acted in good faith while discharging their duties, thus if they had committed any mistake in discharging their official duties, they cannot be held liable for the penal offences.
(i) On the contrary, learned Public Prosecutor refuted the said contentions by arguing that since accused persons had not taken due care deliberately while performing their duties, thus the plea of good faith is not available to them.
18. '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 CBI No. 07/12 Page 26 of 159 State through CBI v. Bibianus Toppo & Ors.
discussed while discussing their role.
19. Learned counsel appearing for the above said accused persons astutely argued that no reliance can be placed on the certificate Ex.PW20/B issued under Section 65B of Indian Evidence Act as PW20 Ajai Gautam was not a competent person to issue the said certificate. It was further argued that the said certificate was not in accordance with law. But the said contentions are refuted by learned Public Prosecutor by arguing that PW20 was not only competent person to issue the certificate but certificate was issued in accordance with law.
(i) PW20 Sh. Ajai Gautam in his examination-in-chief deposed that he is an officer of National Informative Centre (NIC) and he was on deputation to RPO, New Delhi and his duty was to maintain computers installed in the office of RPO and to render operational support to RPO officials. He further deposed that the documents Ex.PW4/L, Ex. PW10/A, PW9/A to PW9/E were generated by him at the instructions of Superintendent Administration, RPO and he also issued certificate under Section 65 B of Evidence Act certifying that he had generated the said documents and the same were true and actual reproduction of the data maintained at RPO, New Delhi as electronic record in the ordinary course of business and same was not tempered with. He further certified that the computer from which the prints out were taken, was properly working. He also clarified that the computers/terminals through which the concerned officials worked during the relevant period were also properly working.
CBI No. 07/12 Page 27 of 159State through CBI v. Bibianus Toppo & Ors.
(ii) Since, PW20 Sh. Ajai Gautam was deputed at the office of RPO from NIC and his duty was to maintain computers and to provide necessary technical support to RPO officials, thus PW20 Mr. Ajai Gautam was a competent person for the maintenance of computers/servers installed at the office of RPO. It means that he was one of the competent persons to certify that the data was actual reproduction of the electronic record and same was not tempered with and the system from which the above data fed and the documents were generated were working properly. There is nothing on record which may suggest that the dump terminals or the computers from which the officials of RPO used to feed information as mentioned in the aforesaid documents were not working properly or that the server was not working properly at the relevant time. In these circumstances, there is no reason to disbelieve the testimony of PW20 Mr. Ajai Gautam, who is an independent person. Thus, to my mind the above documents are admissible in evidence and I do not find any infirmity or illegality in the certificate issued under Section 65B of Indian Evidence Act.
20. Learned counsel appearing for the above accused persons assailed the prosecution case by vehemently arguing that there is no evidence to prove the guilt of accused persons for the offence punishable under Section 13 (2) of PC Act. It was further argued that accused persons have been charged for the offence under Section 13 (1) (d) of PC Act, but to prove the charges, prosecution is duty bound to prove dishonest intention, which is an essential ingredient of Section 13(1)(d) of P.C Act. However, it was urged that during trial prosecution failed to adduce any evidence to CBI No. 07/12 Page 28 of 159 State through CBI v. Bibianus Toppo & Ors.
prove that accused persons had any dishonest intent when they dealt with the files in question.
(i) Per contra, learned Public Prosecutor appearing for the CBI countered said contentions and sagaciously argued 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.
21. From the submissions advanced by counsel for 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:-
(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 CBI No. 07/12 Page 29 of 159 State through CBI v. Bibianus Toppo & Ors.
thing or pecuniary advantage without any public interest;
(emphasis supplied)
(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:CBI No. 07/12 Page 30 of 159
State through CBI v. Bibianus Toppo & Ors.
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 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 cannot satisfactorily account, or which are CBI No. 07/12 Page 31 of 159 State through CBI v. Bibianus Toppo & Ors.
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 Section 13 (1) (e); it is enough for the prosecution to establish the four ingredients of the offence. As noticed earlier, the CBI No. 07/12 Page 32 of 159 State through CBI v. Bibianus Toppo & Ors.
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
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 CBI No. 07/12 Page 33 of 159 State through CBI v. Bibianus Toppo & Ors.
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 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:
CBI No. 07/12 Page 34 of 159State through CBI v. Bibianus Toppo & Ors.
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 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 CBI No. 07/12 Page 35 of 159 State through CBI v. Bibianus Toppo & Ors.
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 which power stood conferred.
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CBI No. 07/12 Page 36 of 159State through CBI v. Bibianus Toppo & Ors.
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 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 CBI No. 07/12 Page 37 of 159 State through CBI v. Bibianus Toppo & Ors.
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 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 CBI No. 07/12 Page 38 of 159 State through CBI v. Bibianus Toppo & Ors.
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:-
22. Since during the course of arguments, counsel for accused persons also referred to various circulars issued by Ministry of External Affairs to press their contentions that the procedure for issuance of additional passport booklets was substantially liberalized by the Govt. of India, thus I deem it appropriate to refer the said circulars. First circular in this regard was issued on June 24, 1997, which is Ex. PW25/B and same is reproduced as under:-CBI No. 07/12 Page 39 of 159
State through CBI v. Bibianus Toppo & Ors.
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 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 CBI No. 07/12 Page 40 of 159 State through CBI v. Bibianus Toppo & Ors.
dated November 25, 1997 (Ex. PW25/A) 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 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 (Ex. PW25/DB) the condition of fresh police verification qua additional passport booklet CBI No. 07/12 Page 41 of 159 State through CBI v. Bibianus Toppo & Ors.
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 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.CBI No. 07/12 Page 42 of 159
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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 (Ex. PW25/DD) 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 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 CBI No. 07/12 Page 43 of 159 State through CBI v. Bibianus Toppo & Ors.
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 (Ex. PW25/DA) 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 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' clecking; there also, they check the old particulars and except photographs whether the applicant has obtained more than CBI No. 07/12 Page 44 of 159 State through CBI v. Bibianus Toppo & Ors.
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 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 CBI No. 07/12 Page 45 of 159 State through CBI v. Bibianus Toppo & Ors.
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.
23. 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:-
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 CBI No. 07/12 Page 46 of 159 State through CBI v. Bibianus Toppo & Ors.
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 relating to sanction under Section 19 of PC Act:-
24. Learned counsel appearing for the accused persons vehemently argued that the sanction accorded under Section 19 of PC Act is defective as sanctioning authority had not applied its mind before according the sanction and the authority had acted in a mechanical manner just by signing on the draft sanction placed before it. It was further argued that sanctioning authority had not considered relevant material at the time of according the sanction. In addition to the above, counsel appearing for A1 also contended that the sanction was not accorded by competent person qua A1 and further argued that there is no evidence to show that the relevant material was ever placed before the competent authority, thus it was urged that no reliance can be placed on the testimony of PW18 when he deposed that he had taken the approval of competent authority qua A1. In support of his contention reliance is placed on the judgements Inspector of Police, Visakhapatnam v Surya Sankaram Karri 2006 Cri. L J 4598 and Mohd. Iqbal Ahmed v. State of Andhra Pradesh AIR 1979 SC 677.
25. Per contra, learned Public Prosecutor countered the said contentions by arguing that there is no defect in the sanction and if CBI No. 07/12 Page 47 of 159 State through CBI v. Bibianus Toppo & Ors.
there is any defect, same is not fatal to the prosecution case in view of Section 19 (3) of PC Act. It was further argued that though PW18 was cross-examined in depth, yet no effort was made to call for the file in which the approval qua A1 had been taken by the PW18.
26. In this regard the testimony of PW18 Sh. R. Swaminathan is relevant.
(i) PW18 Sh. R. Swaminathan in his examination-in-chief categorically deposed that he also received investigation report and the statement of prosecution witnesses along with the request letter for seeking sanction and further deposed that he had gone through the said report and statement of prosecution witnesses and after satisfying himself, he accorded the sanction under Section 19 of the Prevention of Corruption Act as well as under Section 15 of Passport Act.
(ii) In his examination-in-chief, he further deposed that he was competent to remove all RPO officials i.e. A2 to A6 from the service, but he was not competent to remove A1. He further clarified that qua A1, Additional Secretary Administration and CPV was competent to remove him from service and due to said reason, he had taken his approval, thereafter sanction was accorded and sanction order under Section 19 of PC Act was issued, which is exhibited as Ex.PW18/A.
(iii) Perusal of the sanction order Ex. PW18/A makes it clear that sanction order was issued with the approval of competent CBI No. 07/12 Page 48 of 159 State through CBI v. Bibianus Toppo & Ors.
authority i.e. Additional Secretary (Administration and CPV), which corroborates the testimony of PW18 that necessary approval was also taken qua A1 from the competent authority.
(iv) Though PW18 was thoroughly cross-examined, yet no question was put to him that he had not taken any approval qua A1 from the competent authority. On the contrary a suggestion was put to the witness that he was not competent to sign the sanction order after taking the approval from the Additional Secretary, which was certainly denied by the witness. But the said suggestion indicates that the factum of taking approval from competent authority was not disputed. Moreover, PW18 in his testimony categorically deposed that since he was not competent to remove A1 from his office, he had taken the approval of Additional Secretary, who was competent to remove A1, and thereafter, he signed the sanction order. In these circumstances there is no reason to disbelieve PW18. No doubt, counsel for A1 had given a suggestion that approval of competent authority was not obtained, but the said suggestion was categorically denied, thus the said suggestion has no evidentiary value.
(v) In case Mohd. Iqbal Ahmed Vs State of Andhra Pradesh, 1979 SCC (Crl.) 926, Apex Court held that an order 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 CBI No. 07/12 Page 49 of 159 State through CBI v. Bibianus Toppo & Ors.
the facts were placed before the Sanctioning Authority and the satisfaction arrived at, by it.
(vi) In the instant case, not only PW18 deposed on oath that necessary approval was taken from the competent authority qua A1 but it is also recited in sanction order Ex.PW18/A, thus there is no reason to disbelieve the deposition of PW18.
(vii) During the cross-examination of PW18, an attempt was made to cause a dent in his testimony on the grounds that the investigating agency had not placed entire material before him at the time of seeking sanction; that he had not applied his mind and that he had accorded sanction on the basis of draft sanction placed before him. But all these suggestions were categorically denied. Even during the cross-examination of PW18, no question was put to him to the effect that no material was put up before the competent authority i.e. Additional Secretary at the time of taking approval qua A1. Thus, I do not find any substance in the contention of A1 that no material was placed before the competent authority at the time of taking approval qua A1.
(viii) It is pertinent to state that during cross-examination of PW18, no attempt was made by the defence counsel to call for the file in order to prove their plea that no material was placed before the sanctioning authority at the time of seeking sanction against the accused persons or that sanction was granted on the draft sanction produced by the CBI or without application of mind.
(ix) Apex Court in case title State of Maharasthra Vs CBI No. 07/12 Page 50 of 159 State through CBI v. Bibianus Toppo & Ors.
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 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, CBI No. 07/12 Page 51 of 159 State through CBI v. Bibianus Toppo & Ors.
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.
(x) 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.
(xi) In view of the ongoing discussion, I do not find any merit in the contentions raised by counsel for the accused persons that sufficient material was not placed before the sanctioning authority or the sanction was accorded on the basis of draft sanction or that sanction accorded under Section 19 of PC Act is defective.
27. Now coming to the judgements cited by counsel for the accused persons i.e Mohd. Iqbal Ahmed v/s. Andhra Pradesh AIR 1979 SC 677, State of Goa Vs Babu Thomas 2005 Crl. L. J. 4379 and State, Insp. of Police of Vishakhapatnam v/s. Surya Sankramkari, 2006 Crl. L.J. 4598. I have perused all the said judgements carefully. On perusal of judgements, I am of the view that same are not helpful to the accused in any manner as the facts involved in said cases were different from the facts of the case in hand. In the said cases, there was nothing on record to show that approval of competent authority was taken before granting the CBI No. 07/12 Page 52 of 159 State through CBI v. Bibianus Toppo & Ors.
sanction whereas in the instant case there is not only oral but documentary evidence on record to prove the fact that approval of competent authority i.e. Additional Secretary Administration and CPV was taken qua A1 before according the sanction. Thus, to my mind there is no infirmity or illegality in the sanction accorded by PW18.
28. Though I do not find any defect in the sanction accorded under Section 19 of PC Act, yet to my mind, there is no merit in the contention of learned public prosecutor that the defect if any, is curable under sub-section (3) of 19 PC Act. Relevant portion of sub- section 3 of 19 of PC Act read as under:
3. Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974)
(a) no finding , sentence or order passed by a special judge shall be reversed or altered by a court in appeal, confirmation or revision on the ground of the absence of, or any error, omission or irregularity in, the sanction required under sub-section (1), unless in the opinion of that court, a failure of justice has in fact been occasioned thereby;
(emphasis supplied)
(i) Bare perusal of Section 19 (3) (a) of PC Act makes it clear that it relates to the appellate/revisional court and not to the trial Court. The finding of Special Court cannot be reversed mere on the ground that there was any error, omission or irregularity in the sanction unless such omission, irregularity, in the opinion of that Court (Appellate/Revisional Court) a failure of justice has in fact been caused. Thus, the contention raised by learned Public Prosecutor is CBI No. 07/12 Page 53 of 159 State through CBI v. Bibianus Toppo & Ors.
without any substance.
Contentions relating to conspiracy:-
29. Learned counsel appearing for accused persons who were working in RPO, New Delhi vehemently argued that there is no iota of evidence on record to prove that accused persons had acted in furtherance of any criminal conspiracy. It was argued that though prosecution has examined as many as 35 witnesses, yet none of them had uttered even a single word about the alleged conspiracy. It was further argued 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 had been obtained under Section 197 Cr. P. C qua penal offences, thus A1 to A5 being public servants can not be convicted for the penal offences.
(i) Per contra, learned Public Prosecutor appearing for CBI contended that though there is no direct evidence on record to prove conspiracy among the accused persons, but the circumstances establish that above said accused persons were in conspiracy with other accused persons and due to that reason they had not taken due care while dealing with the files in question. It was further contended that no separate sanction under Section 197 Cr. P. C is required.
30. In this regard paras no. 49 to 52 of State of Madhya Pradesh v/s. Sheetla Sahai (2009) 8SCC 617 are relevant, accordingly same are reproduced as under:-
CBI No. 07/12 Page 54 of 159State through CBI v. Bibianus Toppo & Ors.
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 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.CBI No. 07/12 Page 55 of 159
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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 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 CBI No. 07/12 Page 56 of 159 State through CBI v. Bibianus Toppo & Ors.
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:
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."
(i) From the above, it becomes crystal clear that the CBI No. 07/12 Page 57 of 159 State through CBI v. Bibianus Toppo & Ors.
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.
31. 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 35 witnesses, yet none of them has deposed even a single word about the alleged conspiracy among the accused persons. No doubt, it is difficult to find out a direct evidence to prove the conspiracy as generally conspiracy is hatched in secrecy and conspiracy can also be proved by circumstantial evidence. But the onus is upon the prosecution to prove such circumstances against the accused persons. But in the instant case, CBI has even failed to produce any such circumstantial evidence to prove conspiracy among the accused persons. Mere fact that A1 to A6 were working in the same office and they had dealt with the files in question is not sufficient to draw a conclusion that they had hatched any conspiracy either 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.
32. It is admitted case of CBI that first time, application was moved for obtaining the additional passport booklet on August 22, 2003 whereas the last application was moved on April 20, 2004. In order to prove conspiracy, CBI is bound to establish that there was a meeting of mind among the accused persons prior to August 22, 2003.
CBI No. 07/12 Page 58 of 159State through CBI v. Bibianus Toppo & Ors.
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 A6 used to meet with other accused persons. Surprisingly, during investigation, CBI even did not try to establish the modus-operandi of the accused persons. Though CBI traced out two accused persons namely Rajwinder Singh and Malkit Singh in whose favour fictitious additional passport booklets were issued. But astonishingly the investigating officer did not deem it appropriate to interrogate them to ascertain the modus-operandi of the accused persons. Though PW35 deposed that he interrogated the accused Anil Dhawan to find out how beneficiaries used to contact him for getting additional passport booklets in fictitious name, but he deposed that Anil Dhawan denied all the charges. Even during investigation, disclosure statement of accused persons was not recorded to ascertain their modus-operandi. Had investigating officer recorded the disclosure statement of accused persons, prosecution may able to show some conspiracy among the accused persons, but investigating officer did not deem it appropriate to record such disclosure statements.
33. As already stated that to prove 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 A6 were posted in the same office and they dealt with the files in question while discharging their officials 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 the charges of conspiracy. Thus, accused persons cannot be held liable for the acts CBI No. 07/12 Page 59 of 159 State through CBI v. Bibianus Toppo & Ors.
of each other, however, accused persons shall be liable for their individual acts.
34. Further, it is admitted case of the CBI that accused persons had abused their official position while dealing with request letters/applications for issuance of additional passport booklets, thus in other words it is admitted case of CBI that there was reasonable relations between the acts of the accused persons and their official duties. Thus, to my mind sanction under Section 197 Cr.P.C was also required for the 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, AIR 1955 SC 309.
(iv) R. Balakrishna Pillai vs. State of Kerala & another (1996) 1SCC 478
(i) In the light of foregoing discussion, I am of the considered opinion that CBI failed to prove the charge of conspiracy against the public servants i.e. A1 to A5, accordingly, I hereby acquit them from the charges of conspiracy.CBI No. 07/12 Page 60 of 159
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Contentions raised on behalf of accused Anil Dhawan (A8):-
35. Shri Harsh Mohan learned Public Prosecutor for CBI raised the following contentions:-
(i) That accused Anil Dhawan was an employee of PW23 Gurinder Singh Walia and this fact has also been corroborated by PW5 Pradeep Kumar Chawla. It was further submitted that PW23 also identified the handwriting of accused Anil Dhawan on various documents including application forms that were submitted at the time of seeking additional passport booklets from time to time.
(ii) That PW23 also proved the admitted writing of A8 i.e. mark A1 to A17 on the Day Book which belonged to PW23. He also identified the writings of accused Anil Dhawan on the application form of Kanu Priya Gombar and Padmini Malpani which are marked as A18 to A23.
(iii) That in addition to the above, accused Anil Dhawan (A8) had also collected the five additional passport booklets bearing No. E-
7104766, E-7710034, E-7988266, E-8582894 and E-8584870 by signing in the respective passport files and passport delivery register. Q8, Q10, Q11, Q14 and Q15 are the writings of accused Anil Dhawan in passport delivery register, which proves that the said additional passport booklets were received by accused Anil Dhawan. Similarly, Q39, Q55 Q71, Q87 and Q102 are the writings of Anil Dhawan in the respective passport files wherein he acknowledged the receipt of above booklets, which further establishes that the delivery of the said CBI No. 07/12 Page 61 of 159 State through CBI v. Bibianus Toppo & Ors.
booklets were taken by accused Anil Dhawan. During investigation, specimen writings of accused Anil Dhawan (A8) was also taken and the same are marked as S16 to S35.
(iv) That handwriting expert PW24 Dr. B.A. Vaid in his report Ex.PW24/F proved that accused Anil Dhawan is the author of Q8 to Q11, Q14, Q15, Q39, Q55 Q71, Q87 and Q102. This shows that he had taken the delivery of the said passport. Similarly, from the report Ex.PW24/F, it is also established that accused Anil Dhawan is the author of Q20, Q21, Q23 to Q63, Q65, Q82, Q84 to Q113. This further establishes that accused Anil Dhawan had not only filled up the forms but he had also signed in the name of Rajender Kumar Kapoor.
(v) That A8 besides the charges of conspiracy is also liable for the offences punishable under Section 419/420/468/471 IPC and under Section 12 (1) (b) of Passport Act.
36. Mr. Lalit Yadav, Advocate, counsel appearing for the accused Anil Dhawan (A8) countered the said contentions as under:
(i) That the entire prosecution case is based on the deposition of PW23 G.S. Walia, but no reliance can be placed on his deposition as PW23 categorically deposed that his statement under Section 161 Cr. P.C was recorded by PW33 R.K. Aggarwal, but the same is not part of judicial file. PW23 further testified that his statement was never recorded by PW35 A.K. Tripathi whereas prosecution case is that his statement was recorded by PW35. It was further submitted that PW33 did not corroborate the testimony of CBI No. 07/12 Page 62 of 159 State through CBI v. Bibianus Toppo & Ors.
PW23 that he had recorded the statement of PW23.
(ii) That it is admitted case of prosecution that a raid was conducted at the premises of PW23 and numerous incriminating articles were recovered from his premises including various passports, blank documents and blank letterheads of different companies but instead of impleading PW23 as an accused, investigating officer in collusion with PW23 exonerated him and falsely implicated accused Anil Dhawan (A8).
(iii) That prosecution has set up a case against accused Anil Dhawan (A8) that he was an employee of PW23, but during trial prosecution failed to produce any documentary evidence to prove this fact. It was further argued that PW35 in his cross-examination deposed that he had not taken any documentary evidence to establish the fact that accused Anil Dhawan (A8) was an employee of PW23 G.S. Walia. It was further argued that in fact no attempt was made by the investigating officer to collect any documentary evidence to show that A8 was an employee of PW23 and he did so to implicate him falsely at the behest of PW23 G.S. Walia.
(iv) That though prosecution has placed strong reliance on the deposition of PW23 wherein he identified certain questioned writings as the writing of accused Anil Dhawan (A8), but no reliance can be placed on the said piece of evidence as PW23 is not an expert to identify the writings of any person.
(v) That no reliance can be placed on the alleged admitted CBI No. 07/12 Page 63 of 159 State through CBI v. Bibianus Toppo & Ors.
writing i.e. marked as A1 to A23 because there is no evidence on record that the said writings belonged to accused Anil Dhawan (A8).
(vi) That during investigation, investigating officer had not taken any specimen writings of PW5 and PW23 deliberately and intentionally to favour them. Had their writings been taken by the investigating officer, it would also have been matched with some questioned writings.
37. In support of his contentions, learned defence counsel placed reliance on the following citations:-
(i) Malay Kr. Ganguly v/s. Dr. Sukumar Mukherjee & others (2009) 9 Supreme Court 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;
(vi) Fakhruddin v/s. State of M. P, AIR
1967 SC 1326;
(vii) Ram Chandra v/s. State of U. P, AIR
1957, SC 381;
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(viii) Ishwari Parsad Misra v/s Mohammd
Isa, AIR 1963 SC 1728;
(ix) Shashi Kumar Banerjee v/s Subhodh
Kumar Banerjee, AIR 1964 SC 529;
(x) Raghu v/s Rajendra Kumar, 2002 (3)
KLT 945 (Kerala);
(xi) Piara Singh v/s. Jagtar Singh &
others, AIR 1987 P & H 93;
(xii) Thyseen Stallunjon Gmbh v/s SAIL,
96 (2002) DLT 515;
(xiii) Ameer Mohd. v/s Barket Ali, AIR
2002 Rajasthan 406.
Findings qua accused Anil Dhawan (A8):-
38. First question emerges from the submissions advanced by counsel for both the parties; whether accused Anil Dhawan (A8) was working with PW23 G.S. Walia or not? In this regard, the testimony of PW23 G.S. Walia and PW5 Pradeep Kumar Chawla are relevant.
(i) PW23 G.S. Walia in his examination-in-chief deposed that he was running a company M/s Kanu Travel Care Pvt. Ltd. since 1991, in which he was one of the directors and further testified that accused Anil Dhawan (A8) was his employee. He further deposed that in the year 2002, he had started a partnership firm in the name and style of M/s Jas Air and in the said firm also, accused Anil Dhawan (A8) was working and his job was to provide assistance to clients in CBI No. 07/12 Page 65 of 159 State through CBI v. Bibianus Toppo & Ors.
getting visa and issuance of passport. He further deposed that accused Anil Dhawan (A8) was also used to deliver tickets to clients; used to collect payments from clients; used to go to embassy and passport office for getting visa and passport for clients
(ii) PW5 Mr. Pradeep Kumar Chawla deposed that he was one of the directors in M/s Kanu Travels Care Pvt. Ltd. and the said company was closed in 2002 and further testified that in the said company there were two employees; one of them was Anil Dhawan. In other words, PW5 corroborated the testimony of PW23.
(iii) Though A8 had cross-examined PW23 Mr. G. S. Walia at length, yet during his cross-examination, no dispute was raised to the extent that he was not working with PW23 Mr. G. S. Walia. In other words, the testimony of PW23 to the extent that he was working initially in M/s Kanu Travels Care Pvt. Ltd. and thereafter, in M/s Jas Air remained unrebutted.
(iv) Though in his statement recorded under Section 313 Cr. P. C, A8 denied all the incriminating evidence led by prosecution and took the plea that he was not working with PW23 Mr. G. S. Walia, but in his statement, he failed to explain where he was working at the relevant time, if not working with PW23. Though on the one hand, he took the plea that he was not working with Mr. G. S. Walia, but on the other hand he stated that he was called at the office of CBI by Mr. G. S. Walia by making call to him on the pretext that he had some urgent work. If he had no relation with Mr. G. S. Walia, question of calling him at the office of CBI by Mr. G. S. Walia does not arise. This falsifies the CBI No. 07/12 Page 66 of 159 State through CBI v. Bibianus Toppo & Ors.
plea of accused Anil Dhawan that he had no concern or relation with Mr. G. S. Walia. Rather, it corroborates the testimony of PW5 and PW23 that accused Anil Dhawan was an employee of PW23.
(v) Even during trial, A8 failed to adduce any evidence contrary to the testimony of PW5 and PW23 to disprove the fact that he was not working with them. He also failed to produce any evidence to show that he was working somewhere else at the relevant time and not in the company of PW23 as deposed by him.
(vi) In the absence of any contrary evidence on record, I do not find any reason to disbelieve the testimony of PW5 and PW23 to the extent that initially accused Anil Dhawan was working in M/s Kanu Travels Care Pvt. Ltd till 2002 and when it was closed, he started working in the partnership firm named M/s Jas Air, in which PW23 was one of the partners.
39. Second question crops up for adjudication whether the recovered 'Day Book' belonged to M/s Jas Air or not? In this regard, the testimony of PW23 Mr. G. S. Walia and PW35 A.K. Tripathi are relevant.
(i) PW23 in his examination-in-chief deposed that the Day Book of his firm M/s Jas Air was seized by the CBI in one of the passport cases. He further deposed that requisite pages in this case of the said Day book are marked as Ex.PW23/J. However, during deposition original Day Book was shown to the witness from CC No. 08/12. After seeing the said documents and Day Book, PW23 testified CBI No. 07/12 Page 67 of 159 State through CBI v. Bibianus Toppo & Ors.
that the Day Book was written by him as well as by his employee i.e. accused Anil Dhawan and further testified that the pages Ex.PW23/J are in the handwriting of accused Anil Dhawan.
(ii) No doubt, in his cross-examination, PW23 deposed that the said Day Book does not bear any official stamp or mark of M/s Jas Air to show that the Day Book pertained to the said firm. But the said lapse is insufficient to discard the testimony of PW23, who is one of the partners in the said firm. Since, PW23 admitted that the Day book belonged to his firm and there is no contrary evidence to this, thus this Court has no reason to disbelieve his testimony to that extent.
(iii) PW35 in his cross-examination deposed that when he interrogated accused Anil Dhawan, he was already in custody in some other case and further testified that when accused Anil Dhawan was interrogated, he was alone. He further categorically deposed that nothing was recovered from accused Anil Dhawan in his presence. This shows that the said Day Book was not recovered by PW35 during investigation. Though PW33 also remained associated with the investigation of the case, but he remained silent about the said Day Book.
(iv) In these circumstances, CBI failed to establish when and how the said Day Book was seized.
40. Third question emerges from the submissions raised by counsel for the parties whether PW5 and PW23 are competent persons to identify the handwriting of A8 or not?
CBI No. 07/12 Page 68 of 159State through CBI v. Bibianus Toppo & Ors.
(i) As already held that A8 was an employee in the firm/company of PW5 and PW23, thus they have an opportunity to see A8 to write and sign. From the testimony of PW5 and PW23, it also becomes perspicuous that A8 had worked with them for a considerable long time i.e. during 1991 to 2002 when he was working in M/s Kanu Travels Care Pvt. Ltd. and thereafter, A8 started working in the partnership firm named M/s Jas Air of PW23. Thus, the testimony of PW5 and PW23 where they identified certain writings of A8 becomes relevant under Section 47 of Indian Evidence which reads as under:-
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 PW5 and PW23 are not experts, they cannot identify the writings of A8.
CBI No. 07/12 Page 69 of 159State through CBI v. Bibianus Toppo & Ors.
41. Now coming to the next issue how many questioned writings have been identified by PW23 during trial?
(i) PW23 in his examination-in-chief identified certain following questioned writings as the writing of accused Anil Dhawan (A8):-
QUESTIONED NAME OF EXHIBITS
WRITINGS DOCUMENTS
Q21, Q24, Q25, Ex. PW5/A, Ex.
Q27 PW5/A1 to Ex.
PW5/A3
Passport Application
Registration Form and
Q38, Q41, Q42 and Application Form of Ex. PW5/B1, Ex.
Q44 Misc. Services on PW5/B2 to Ex.
Indian Passport PW5/B4
Q54, Q57, Q58, Ex. PW7/D, Ex.
Q60 PW23/A, Ex. PW23/B
and Ex. PW4/G
Q70, Q73, Q74, Ex. PW7/E, Ex.
Q76 PW23/C, Ex. PW23/D,
Ex. PW4/J
CBI No. 07/12 Page 70 of 159
State through CBI v. Bibianus Toppo & Ors.
Q86, Q89, Q90, Ex. PW7/F, Ex.
Q92 PW23/E, Ex.23/F, Ex.
PW6/A
Q101, Q104, Q105, Ex. PW7/G, Ex.
Q107 PW23/G, Ex. PW23/H,
Ex. PW4/A
(ii) The above questioned writings are the body portion of the
Passport Application Registration Forms and Application Forms for Miscellaneous Services on Indian Passport. Since, PW23 identified the said writings as the writings of accused Anil Dhawan, it means that the said forms were filled up by accused Anil Dhawan.
(iii) Though prosecution has set up a case that accused Anil Dhawan had not only filled up the said forms but he also signed in all the forms in the name of applicant i.e. Rajender Kumar Kapoor and the said signatures are marked as Q20, Q26, Q28, Q36, Q37, Q43, Q45 to Q52, Q53, Q59, Q61 to Q68, Q69, Q75, Q77 to Q84, Q85, Q91, Q93 to Q99, Q100, Q106, Q108 to Q113. But PW23 expressed his inability to identity the same and he furnished a plausible explanation for the same by deposing that since he had not seen accused Anil Dhawan to sign in the name of any other person, he cannot say whether the said signatures were signed by accused Anil Dhawan or not.
(iv) Though PW5 in his examination-in-chief identified CBI No. 07/12 Page 71 of 159 State through CBI v. Bibianus Toppo & Ors.
certain questioned signatures which are marked Q20, Q23, Q26, Q28 to Q33, Q34 to Q37, Q40, Q43, Q45 to Q52 and in his cross- examination initially he deposed that he had seen accused Anil Dhawan to sign in the name of other persons on the visa application form, but when a question was asked, whether he raised any objection when he saw accused Anil Dhawan to sign in the name of other person on the Visa Application Form or was it a routine function of Anil Dhawan being an employee of his company, witness avoided the first part of the question and qua second part, deposed that it was not the duty of Anil Dhawan to sign in the name of other persons. He further clarified that he had not made any complaint to any authority but swiftly added that Mr. G. S. Walia must be aware about this fact as Mr. G. S. Walia was acted as Director of the company. He further deposed that he did not know the name of clients on whose visa application form, accused Anil Dhawan had signed in their name and swiftly added that he was not involved in day to day functioning of the company. When a question was asked whether he can identify the handwriting of a person who signed in the name of other person, he deposed that he cannot identify the handwriting of such person. When a specific question was asked whether he can identify that accused Anil Dhawan had signed in the name of another person. He deposed that during investigation, CBI had shown various Passport Application forms to him in the CBI office, which he identified and further clarified that since signature portion was also the part of said forms, he also identified the same. From the careful reading of the statement of PW5, it becomes clear that though he was in a position to identify the handwriting of accused Anil Dhawan as he was in his employment, but he was not sure whether the signature appearing on the forms were CBI No. 07/12 Page 72 of 159 State through CBI v. Bibianus Toppo & Ors.
also signed by accused Anil Dhawan or not.
(v) From the testimony of PW5 and PW23 it becomes crystal clear that they identified the handwriting of accused Anil Dhawan on the said form but their testimony is not sufficient to establish that accused Anil Dhawan had signed on the said forms in the name of applicant i.e. Rajender Kumar Kapoor
42. Now coming to the specimen writings marked as S16 to S35.
(i) CBI has set up a case that the specimen writings were taken in the presence of two independent witnesses namely Mr. S. K. Soni and Mr. R. P. Attri, who graced the witness box as PW29 and PW30 respectively. In their examination-in-chief they corroborated the prosecution version that the above specimen writings were taken in their presence which are marked collectively Ex. PW24/D. Though the witnesses were cross-examined at length, yet nothing could be extracted during their cross-examination which may help the accused to raise any kind of dispute over the said specimen writings. Further PW35 also deposed that the specimen writings Ex. PW24/D of accused Anil Dhawan were taken during investigation in the presence of independent witnesses. Thus, it is established beyond reasonable doubts that the specimen writings Ex. PW24/D of accused Anil Dhawan was taken by the CBI during investigation.
43. Now coming to the so-called admitted writings marked as A1 to A23:
CBI No. 07/12 Page 73 of 159State through CBI v. Bibianus Toppo & Ors.
(i) CBI has set up a case that being the employee of PW23, accused Anil Dhawan used to maintain Day Book of the firm M/s Jas Air. In order to prove the handwritings of accused Anil Dhawan, prosecution relied upon the testimony of PW23 Mr. G.S. Walia, who in his examination-in-chief deposed that the pages collectively Ex.
PW23/J are in the handwritings of accused Anil Dhawan and further deposed that the Day Book of the firm was usually maintained by him and accused Anil Dhawan. Perusal of the Ex. PW23/J revels that it contain the writings Mark A1 to A17.
(ii) Though, PW23 deposed that the passport application form of Ms. Kanu Priya Gombar Ex. PW23/K is in the handwritings of accused Anil Dhawan. Similarly, PW23 further deposed that Immigration Application Form of Ms. Padmini Malpani Ex. PW23/L is in the handwriting of accused Anil Dhawan. Perusal of the said forms reveals that the handwritings have been marked A18 to A23.
(iii) Though CBI claimed that the alleged writings marked A1 to A23 are the admitted writings of accused Anil Dhawan but this handwriting is never admitted by the accused Anil Dhawan during the trial. Even there is no evidence to suggest that accused had admitted the alleged handwritings at any point of time even during investigation. Thus, the said writings can not be treated as admitted handwriting of accused Anil Dhawan. However, since PW23 identified the said handwritings as the writings of accused Anil Dhawan, his testimony is relevant in terms of Section 47 of Indian Evidence Act.
(iv) Though, the testimony of PW23 is relevant to prove the CBI No. 07/12 Page 74 of 159 State through CBI v. Bibianus Toppo & Ors.
handwritings Marked A1 to A23. But before placing any reliance on his testimony qua these writings, prosecution has to establish how the said documents were seized by the CBI in this case. PW23 in his deposition deposed that a raid had been conducted at his premises wherein several documents including the Day Book had been seized by the CBI. During trial, prosecution has examined two CBI officials CBI i.e. PW33 DSP R.K. Aggarwal and PW35 Inspector A. K. Tripathi. However, both the witnesses remained silent qua the alleged Day Book and the documents relating to Priya Gomber and Padmini Malpani. PW33 Mr. R. K. Aggarwal did not utter even a single word either about the said raid or about the alleged Day Book and the documents relating to Priya Gomber and Padmini Malpani. Similarly, PW35 A. K. Tripathi did not utter even a single word in his examination-in-chief either about the Day Book or the documents relating to above two ladies. On the contrary, in his cross-examination, he deposed that he had no knowledge, if any, raid had been conducted at the premises of Mr. G. S. Walia. He further deposed that nothing was recovered from accused Anil Dhawan in his presence. He further deposed that the document Ex. PW23/J to Ex. PW23/L were not sent to GQED Shimla for opinion. In other words, during trial, CBI failed to establish how and when the alleged Day Book and the documents relating to Ms. Priya Gomber and Padmini Malpani were seized. In these circumstances, I am of the opinion that no reliance can be placed on the said documents.
44. Now coming to the Handwriting Expert Report:
(i) The report of GQED is Ex. PW24/F whereas the reasons CBI No. 07/12 Page 75 of 159 State through CBI v. Bibianus Toppo & Ors.
in support of the report are separately Ex. PW24/G.
(ii) As per the report Ex.PW24/F, the author of Q21, Q24, Q25, Q27, 38, Q41, Q42, Q44, Q54, Q57, Q58, Q60, Q70, Q73, Q74, Q76, Q86, Q89, Q90, Q92, Q101, Q104, Q105, Q107 and S16 to S35 is one and the same person. As already stated that S16 to S35 is the specimen writings and signature of accused Anil Dhawan, it means that accused Anil Dhawan is the author of the above said writings. As already stated that the above said writings are on the Passport Application Registration Forms and Application Forms for Miscellaneous Services on Indian Passport in all six files of additional passport booklets. In other words, prosecution has succeeded to establish that accused Anil Dhawan is the person who had filled up the said forms when a request was made for issuance of additional passport booklet from time to time.
(iii) Q20, Q23, Q26, Q28 to Q37, Q40, Q43, Q45 to Q53, Q55, Q56, Q59, Q61 to Q63, Q65 to Q70, Q72, Q75, Q77 to Q82, Q84, Q85, Q87, Q88, Q91, Q93 to Q100, Q102, Q103, Q106, Q108 to Q113 are the signature of the applicants in the name of Mr. Rajender Kumar Kapoor on the forms, request letters and supporting documents in all the additional passport booklet files.
(iv) As per the report Ex. PW24/F, the said questioned signatures tallied with the specimen writings of accused Anil Dhawan which establishes that accused Anil Dhawan is the author of said signatures. In other words at the time of filling up the applications in the name of Mr. Rajender Kumar Kapoor with different photographs CBI No. 07/12 Page 76 of 159 State through CBI v. Bibianus Toppo & Ors.
accused Anil Dhawan also signed in the name of Mr. Rajender Kumar Kapoor.
(v) As per the prosecution version at the time of taking the delivery of passport, accused Anil Dhawan impersonated himself as Rajender Kumar Kapoor and made entry in passport delivery register by mentioning the name of passport holders; additional passport booklet numbers and signing in the name of applicant. The said handwritings are marked as Q8, Q10, Q11, Q14 and Q15. The relevant pages of passport delivery register on which the said writings are written Ex. PW35/F to Ex. PW35/H respectively. The said questioned writings tallied with the specimen writings of accused Anil Dhawan, which establishes that it was accused Anil Dhawan who took the delivery of said passports from the office of RPO despite the fact that neither the passports were in his name nor he was authorised by the passports holders to collect the same. As per the report of GEQD Ex. PW24/F accused Anil Dhawan had collected the additional passport booklets bearing No. E7104766, E7710034, E7988266, E8582834 and E8584970.
45. PW24 is an independent person and is working as Dy. Government Examiner of Questioned Documents, CFSL Shimla. He is not only an independent witness but also well experienced person as he deposed that he had more than 32 years experience in the field of documents examination and he had examined thousands of documents independently and deposed before various courts throughout the country. He further deposed that the said questioned documents were also examined independently by Mr. N. C. Sood, CBI No. 07/12 Page 77 of 159 State through CBI v. Bibianus Toppo & Ors.
Government Examiner of Questions Documents. Thus, it becomes clear that the questioned writings were not only examined by an independent and experienced examiner but simultaneously, same were also examined by another equivalent competent examiner. PW24 had recorded the reasons in detail in Ex.PW24/G to arrive at the above conclusion. Thus, it can safely be culled out that the conclusions arrived at by PW24 are based on detailed reasons as mentioned in Ex.PW24/G. Though PW24 was cross-examined by A8 but nothing has been come out in his cross-examination, which may cast any dent either in his deposition or in his report.
(i) No doubt, an attempt has been made to cause a dent in the report of PW24 by putting a question that handwriting science is not a perfect science. But this suggestion was denied by PW24 by deposing that handwriting identification is a perfect science and a definite opinion can be given provided suitable and sufficient data are available and he clarified that in the instant case, sufficient and suitable data were provided.
(ii) Another futile attempt was made to create a doubt over his report by stating that CBI has failed to produce Mr. N. C. Sood in the witness box despite the fact that he is still alive. No doubt, PW24 deposed that Mr. N. C. Sood is still available. But prosecution was not required to bring him in the witness box when PW24 proved the report and defence failed to bring anything on record, which may cast any doubt over his report. Moreover, it is settled law that Court has to see the quality and not quantity of evidence. Thus, mere fact that Mr. N.C. Sood was not examined by prosecution is not sufficient to discard the CBI No. 07/12 Page 78 of 159 State through CBI v. Bibianus Toppo & Ors.
testimony of PW24, which is otherwise trustworthy and admissible. Moreover, if accused thinks that the deposition of Mr. N.C. Sood would help him to prove his innocence, he could have easily called him as a defence witness, but he also failed to examine him. Thus, to my mind, non-examination of Mr. N.C. Sood is not fatal to the prosecution in any manner.
46. Learned counsel vigorously argued that no reliance can be placed on the report of PW24 Dr. B.A.Vaid as investigating officer PW35 had not taken permission from the Court before taking the specimen handwritings of accused Anil Dhawan and in support of his contention, he strongly relied upon Sapan Haldar & another v/s. State (supra).
47. Perusal of the judgment Sapan Haldar & another v/s. State (supra) makes it clear that the fact in issue before the Hon'ble Court was Section 4 & 5 of Identification of Prisoners Act, 1920 and Section 311A Code of Criminal Procedure. After considering the relevant case law, Hon`ble Court arrived at following conclusion:-
(i) Handwriting and signature are not measurements as defined under clause (a) of Section 2 of The Identification of Prisoners Act, 1920. Therefore, Section 4 and Section 5 of The Identification of Prisoners Act, 1920 will not apply to a handwriting sample or a sample signature.
Thus, an investigating officer, during investigation, cannot obtain a handwriting sample or a signature sample from a person accused of having committed an offence.
(ii).Prior to June 23, 2006, when Act No. 25 of 2005 was notified, inter-alia, inserting Section 311A in the Code of Criminal Procedure, 1973, even a Magistrate could not direct a person accused to give specimen signatures of CBI No. 07/12 Page 79 of 159 State through CBI v. Bibianus Toppo & Ors.
handwriting samples. In cases where Magistrates have directed so, the evidence was held to be inadmissible as per the decision of the Supreme Court in Ram Babu Mishra's case (supra). According to Section 73 of the Indian Evidence Act, 1872, only the Court concerned can direct a person appearing before it to submit samples of his handwriting and or signatures for purposes of comparison.
(emphasis supplied)
48. However in the instant case, neither the Section 2 (a), 4 & 5 of identification of Prisoners Act nor Section 311A Cr. P.C are fact in issue before this Court. Indisputably, in the instant case, investigating officer had not taken the specimen handwritings of accused persons after obtaining permission either from the Court concerned or from the Court of Metropolitan Magistrate. Rather, specimen handwritings were taken during the investigation. It is pertinent to state that in the judgment Sapan Haldar & another v/s. State (supra), there is nothing which may suggest that investigating officer has no right or jurisdiction to take specimen handwritings of the suspect during investigation for the purpose of finding truth, which is ultimate object of any investigation.
(i) Though learned counsel appearing for A8 also placed reliance on the certain other judgements including Fakhruddin v/s. State of M.P (supra); Ram Chandra v/s. State of UP (supra); Ishwari Pal Mista v/s. Mohd. Isa (supra); Shashi Kumar Banerjee v/s. Subhodh Kumar Banerjee (supra), yet I do not deem it appropriate to discuss all the judgements separately because all the said judgements have been considered by the Apex Court in Murari Lal v/s. State of MP, AIR 1980 SC 531. In the said judgment Apex CBI No. 07/12 Page 80 of 159 State through CBI v. Bibianus Toppo & Ors.
Court had discussed the entire case law relating to Handwriting Expert Evidence, thus relevant portions of the judgment are reproduced as under:-
Para No.2.......... The Station House Officer, P. W. 28, came to the scene, found things in the room strewn about in a peel-smell condition. He seized various articles. One of the articles so seized was a prescription pad Ex. P-9. On pages A to F of Ex. P-9, there were writings of the deceased but on page 6, there was a writing in Hindi in pencil which was as follows:
Translated into English it means: "Though we have passed B. A., we have not secured any employment because there is none to care. This is the consequence. sd/- Balle Singh". ...... Specimen writings Exs. P-41 to P- 54 of Murari Lal were obtained. They were sent to a handwriting and finger-print expert P. W. 15 along with the prescription pad Ex. P-9, for his opinion. The expert gave his opinion that the writing in Hindi at page 6 of Ex. P-9 and the specimen writings of Exs. P-41 to P-54 were made by the same person......
3......He further argued that the High Court fell into a grave error in concluding that the writing at page 6 of Ex.
P-9 was that of the appellant. He submitted that the evidence of P. W. 8 who claimed to be familiar with the handwriting of the appellant was wholly unacceptable, that it was not permissible in law to act upon the uncorroborated opinion-evidence of the expert P. W. 15 and that the High Court fell into a serious error in attempting to compare the writing in Ex. P-9 with the admitted writing of the appellant.
4.We will first consider the argument, a Stale argument often heard, particularly in criminal courts, that the opinion-evidence of a handwriting expert should not be acted upon without substantial corroboration. We shall presently point out how the argument cannot be justified on principle or precedent. We begin with the observation that the expert is no accomplice. There is no justification for condemning his opinion evidence to the same class of evidence as that of an accomplice and insist upon corroboration. True, it has occasionally been said on very high authority that it would be hazardous to base a conviction solely on the opinion of a handwriting expert. But, the hazard in accepting the opinion of any expert, CBI No. 07/12 Page 81 of 159 State through CBI v. Bibianus Toppo & Ors.
handwriting expert or any other kind of expert, is not because experts, in general, are unreliable witnesses - the equality of credibility or incredibility being one which an expert shares with all other witness -, but because all human judgment is fallible and an expert may go wrong because of some defect of observation, some error of premises or honest mistake of conclusion. The more developed and the more perfect a science, the less the chance of an incorrect opinion and the converse if the science is less developed and imperfect. The science of identification of finger-prints has attained near perfection and the risk of an incorrect opinion is practically non- existent. On the other hand, the science of identification of handwriting is not nearly so perfect and the risk is, therefore, higher. But that is a far cry from doubting the opinion of a handwriting expert as an invariable rule and insisting upon substantial corroboration in every case, howsoever the opinion may be backed by the soundest of reasons. It is hardly fair to an expert to view his opinion with an initial suspicion and to treat him as an inferior sort of witness. His opinion has to be tested by the acceptability of the reasons given by him. An expert deposes and not decides. His duty 'is to furnish the judge with the necessary scientific criteria for testing the accuracy of his conclusion, so as to enable the judge to form his own independent judgment by the application of these criteria to the facts proved in evidence'. (Vide Lord President Cooper in Decie v. Edinburgh Magistrate, 1953 SC 34 quoted by Professor Cross in his Evidence).
5.From the earliest times, courts have received the opinion of experts. As long ago as 1553 it was said in Buckley v. Rice Thomas, (1554) 1 Plowden 118:
"If matters arise in our law which concern other sciences or faculties, we commonly apply for the aid of that science or faculty which it concerns. This is a commendable thing in our law. For thereby it appears that we do not dismiss all other sciences but our own, but we approve of them and encourage them as things worthy of commendation."
6.Expert testimony is made relevant by S. 45 of the Evidence Act and where the Court has to form an opinion upon a point as to identity of handwriting, the opinion of a person 'specially skilled' 'in questions as to identity of handwriting' is expressly made a relevant fact. There is nothing in the Evidence Act, as for example like Illustration (b) to Section 114 which entitles the Court to presume that an accomplice is unworthy of credit, unless CBI No. 07/12 Page 82 of 159 State through CBI v. Bibianus Toppo & Ors.
he is corroborated in material particulars, which justifies the court in assuming that a handwriting expert's opinion is unworthy of credit unless corroborated. The Evidence Act itself (S. 3) tells us that 'a fact is said to be proved when, after considering the matters before it, the Court either believes it to exist or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists'. It is necessary to occasionally remind ourselves of this interpretation clause in the Evidence Act lest we act on artificial standard of proof not warranted by the provisions of the Act. Further, under S. 114 of the Evidence Act, the Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct, and public and private business, in their relation to facts of the particular case. It is also to be noticed that S. 46 of the Evidence Act makes facts, not otherwise relevant, relevant if they support or are inconsistent with the opinion of experts, when such opinions are relevant. So, corroboration may not invariably be insisted upon before acting on the opinion of a handwriting expert and there need to no initial suspicion. But, on the facts of a particular case, a court may require corroboration of a varying degree. There can be no hard and fast rule, but nothing will justify the rejection of the opinion of an expert supported by unchallenged reasons on the sole ground that it is not corroborated. The approach of a court while dealing with the opinion of a handwriting expert should be to proceed cautiously, probe the reasons for the opinion, consider all other relevant evidence and decide finally to accept or reject it.
7.Apart from principle, let us examine if precedents justify invariable insistence on corroboration. We have referred to Phipson on Evidence, Cross on Evidence, Roscoe on Criminal Evidence, Archibald on Criminal Pleadings, Evidence and Practice and Halsbury's Laws, England but we were unable to find a single sentence hinting at such a rule. We may now refer to some of the decisions of this Court. In Ram Chandra v. U. P. State, AIR 1957 SC 381, Jagannadha Das, J. observed; "It may be that normally it is not safe to treat expert evidence as to handwriting as sufficient basis for conviction" (emphasis ours). 'May' and 'normally' make our point about the absence of an inflexible rule. In Ishwari Prasad Misra v. Mohammad Isa, (1963) 3 SCR 722, Gajendragadkar, J. observed;
"Evidence given by expert can never be conclusive, because after all it is opinion evidence", a statement CBI No. 07/12 Page 83 of 159 State through CBI v. Bibianus Toppo & Ors.
which carries us nowhere on the question now under consideration. Nor, can the statement be disputed because it is not so provided by the Evidence Act and, on the contrary, S. 46 expressly makes opinion evidence challenge-able by facts, otherwise irrelevant. And as Lord President Cooper observed in Davis v. Edinburgh Magistrate : "The parties have invoked the decision of a judicial tribunal and not an oracular pronouncement by an expert".
8.In Shashi Kumar v. Subodh Kumar, AIR 1964 SC 529, Wanchoo, J., after noticing various features of the opinion of the expert said:
"We do not consider in the circumstances of this case that the evidence of the expert is conclusive and can falsify the evidence of the attesting witnesses and also the circumstances which go to show that this Will must have been signed in 1943 as it purports to be. Besides, it is necessary to observe that expert's evidence as to handwriting is opinion evidence and it can rarely, if ever take the place of substantive evidence. Before acting on such evidence it is usual to see if it is corroborated either by clear direct evidence or by circumstantial evidence. In the present case the probabilities are against the expert's opinion and the direct testimony of the two attesting witnesses which we accept is wholly inconsistent with it".
So, there was acceptable direct testimony which was destructive of the expert's opinion; there were other features also which made the expert's opinion unreliable. The observations regarding corroboration must be read in that context and it is worthy of note that even so the expression used was 'it is usual' and not 'it is necessary'.
9.In Fakhruddin v. State of Madhya Pradesh, AIR 1967 SC 1326 : 1967 Cri LJ 1197, Hidayatullah, J. said:
"Both under S. 45 and S. 47 the evidence is an opinion, in the former by a scientific comparison and in the latter on the basis of familiarity resulting form frequent observations and experience. In either case the Court must satisfy itself by such means as are open that the opinion may be acted upon. One such means open to the Court is to apply its own observation to the admitted or proved writings and to compare them with the disputed one, not to become a handwriting expert but to verify the premises of the expert in the one case and to appraise the value of the opinion in the other case. This comparison depends on an analysis of the characteristics CBI No. 07/12 Page 84 of 159 State through CBI v. Bibianus Toppo & Ors.
in the admitted or proved writings and the finding of the same characteristics in large measure in the disputed writing. In this way the opinion of the deponent whether expert or other is subjected to scrutiny and although relevant to start with becomes probative. Where an expert's opinion is given, the Court must see for itself and with the assistance of the expert come to its own conclusion whether it can safely be held that the two writings are by the same person. This is not to say that the Court must play the role of an expert but to say that the Court accept the fact proved only when it has satisfied itself on its own observation that it is safe to accept the opinion whether of the expert or other witness".
These observations lend no support to any requirement as to corroboration of expert testimony. On the other hand, the facts show that the Court ultimately did act upon the uncorroborated testimony of the expert though the judges took the precaution of comparing the writing themselves.
10.Finally, we come to Magan Bihari Lal v. State of Punjab, AIR 1977 SC 1091 upon which Sri R. C. Kohli, learned counsel, placed great reliance. It was said by this Court:
"... but we think it would be extremely hazardous to condemn the appellant merely on the strength of opinion evidence of a handwriting expert. It is now well settled that expert opinion must always be received with great caution and perhaps none so with more caution than the opinion of a handwriting expert. There is a profusion of precedential authority which holds that it is unsafe to base a conviction solely on expert opinion without substantial corroboration. This rule has been universally acted upon and it has almost become a rule of law. It was held by this Court in Ram Chandra v. State of U. P., AIR 1957 SC 381 that it is unsafe to treat expert handwriting opinion as sufficient basis for conviction, but it may be relied upon when supported by other items of internal and external evidence. This Court again pointed out in Iswari Prasad v. Md. Isa, AIR 1963 SC 1728 that expert evidence of handwriting can never be conclusive because it is, after all, opinion evidence, and this view was reiterated in Shashi Kumar v. Subodh Kumar, AIR SC 529 where it was pointed out by this Court that expert's evidence as to handwriting being opinion evidence can rarely, if ever, take the place of substantive evidence and before acting on such evidence, it would be CBI No. 07/12 Page 85 of 159 State through CBI v. Bibianus Toppo & Ors.
desirable to consider whether it is corroborated either by clear direct evidence or by circumstantial evidence. This Court had again occasion to consider the evidentiary value of expert opinion in regard to handwriting in Fakhruddin v. State of M. P., AIR 1967 SC 1326 and it uttered a note of caution pointing out that it would be risky to found a conviction solely on the evidence of a handwriting expert and before acting upon such evidence, the court must always try to see whether it is corroborated by other evidence, direct or circumstantial."
The above extracted passage, undoubtedly, contains some sweeping general observations. But we do not think that the observations were meant to be observations of general application or as laying down any legal principle. It was plainly intended to be a rule of caution and not a rule of law as is clear from the statement 'it has almost become as rule of law'. 'Almost', we presume, means 'not quite'. It was said by the Court there was a 'profusion of precedential authority' which insisted upon corroboration and reference was made to Ram Chandra v. State of U. P., Ishwari Prasad v. Mohammed Isa, Shashi Kumar v. Subodh Kumar and Fakhruddin v. State of M. P. We have already discussed these cases and observed that none of them supports the proposition that corroboration must invariably be sought before opinion evidence can be accepted. There appears to be some mistake in the last sentence of the above extracted passage because we are unable to find in Fakhruddin v. State of Madhya Pradesh any statement such as the one attributed. In fact, in that case, the learned Judges acted upon the sole testimony of the expert after satisfying themselves about the correctness of the opinion by comparing the writings themselves. We do think that the observations in Magan Bihari Lal v. State of Punjab must be understood as referring to the facts of the particular case.
11.We are firmly of the opinion that there is no rule of law, nor any rule of prudence which has crystallised into a rule of law, that opinion evidence of a handwriting expert must never be acted upon, unless substantially corroborated. But, having due regard to the imperfect nature of the science of identification of handwriting, the approach, as we indicated earlier, should be one of caution. Reasons for the opinion must be carefully probed and examined. All other relevant evidence must be considered. In appropriate cases, corroboration may be sought. In cases where the reasons for the opinion are convincing and there is no reliable evidence throwing a doubt. the uncorroborated testimony of a handwriting expert may be CBI No. 07/12 Page 86 of 159 State through CBI v. Bibianus Toppo & Ors.
accepted. There cannot be any inflexible rule on a matter which, in the ultimate analysis, is no more than a question of testimonial weight. We have said so much because this is an argument frequently met with in subordinate courts and sentences torn out of context from the judgments of this Court are often flaunted.
12.The argument that the Court should not venture to compare writings itself, as it would thereby assume to itself the role of an expert is entirely without force. Section 73 of the Evidence Act expressly enables the Court to compare disputed writings with admitted or proved writings to ascertain whether a writing is that of the person by whom it purports to have been written. If it is hazardous to do so, as sometimes said, we are afraid it is one of the hazards to which judge and litigant must expose themselves whenever it becomes necessary. There may be cases where both sides call experts and the voices of science are heard. There may be cases where neither side calls an expert, being ill able to afford him. In all such cases, it becomes the plain duty of the Court to compare the writings and come to its own conclusion. The duty cannot be avoided by recourse to the statement that the court is no expert. Where there are expert opinions, they will aid the Court. Where there is none, the Court will have to seek guidance from some authoritative textbook and the Court's own experience and knowledge. But discharge it must, its plain duty, with or without expert, with or without other evidence. We may mention that Shashi Kumar v. Subodh Kumar and Fakhruddin v. State of Madhya Pradesh were cases where the Court itself compared the writings.
13.Reverting to the facts of the case before us, Sri Kohli had not a word of criticism to offer against the reasons given by the expert P. W. 15, for his opinion. We have perused the reasons given by the expert as well as his cross-examination. Nothing has been elicited to throw the least doubt on the correctness of the opinion. Both the Sessions Court and the High Court compared the disputed writing at page 6 in Ex. P-9 with the admitted writings and found, in conjunction with the opinion of the expert, that the author was the same person. We are unable to find any ground for disagreeing with the findings.
(emphasis supplied)
(ii) The above view was approved by the Apex Court in CBI No. 07/12 Page 87 of 159 State through CBI v. Bibianus Toppo & Ors.
Alamgir v/s. State (NCT) Delhi in Criminal Appeal No. 202 of 2001 decided on 12.11.2002.
(iii) Though counsel appearing for Anil Dhawan also cited certain other judgments relating to handwritings but in view of the law laid down in Murari Lal v/s. State of MP (supra), I am of the view that no fruitful purpose would be achieved to discuss the said judgements.
(iv) From the evidence adduced by prosecution, following facts can safely be culled out:-
(a) That A8 was an employee of PW23 Mr. G. S.
Walia since 1991.
(b) That the job of A8 was to deliver tickets to clients;
to collect payment; to help clients in getting passports and visa; to make entries in the Day book.
(c) That PW23 had identified certain writings i.e. Q21, Q24, Q25, Q27, Q38, Q41, Q42, Q44, Q54, Q57, Q58, Q60, Q70, Q73, Q74, Q76, Q86, Q89, Q90, Q92, Q101, Q104, Q105 and Q107 appearing on the passport application registration forms and forms for miscellaneous services on Indian passport submitted before the RPO from time to time and deposed that the said questioned writings are in the handwriting of accused Anil Dhawan.
CBI No. 07/12 Page 88 of 159State through CBI v. Bibianus Toppo & Ors.
(d) That the handwriting expert proved the fact that not only Anil Dhawan is the author of above questioned writings, but he is also the author of other questioned writings i.e. signatures, which are marked as Q20, Q23, Q26, Q28 to Q37, Q40, Q43, Q45 to Q53, Q55, Q56, Q59, Q61 to Q63, Q65 to Q69, Q71, Q72, Q75 to Q82, Q84, Q85, Q87, Q88, Q91, Q93 to Q100, Q102, Q103, Q106, Q108 to Q113 as the above said questioned writings tallied with the specimen writings marked as S16 to S35.
(e) That it is also established from the report Ex. PW24/F that A8 is the author of Q8, Q10, Q11, Q14, Q15, Q29, Q55, Q71, Q87 and Q102, which proves that accused Anil Dhawan had also collected the last five additional passport booklet by signing in the name of Rajender Kumar Kapoor.
49. Thus, from the above, it becomes clear that not only PW23 proved the fact that accused Anil Dhawan had filled up the passport application registration forms as well as application forms for miscellaneous services on Indian Passport in all six passport files, which were submitted before the office of RPO for obtaining additional passport booklets in the name of Mr. Rajender Kumar Kapoor from time to time with different photographs, but PW24 Dr. B.A.Vaid also corroborated the testimony of PW23 and also proved that A8 had signed in all the files in the name of applicants. Further, during trial, no reliable evidence, which may throw any doubt over the conclusion CBI No. 07/12 Page 89 of 159 State through CBI v. Bibianus Toppo & Ors.
arrived at by PW24 has been produced by the accused. Further, PW24 in his deposition categorically stated that in the instant case sufficient data were provided for comparison. Thus, in the absence of any contrary evidence on record, this Court has no reason to disbelieve the report of PW24 which is not only corroborated by PW23 but also supported by another independent Handwriting Expert Mr. N.C. Sood.
50. Since, it has been established that the passport application registration forms and applications for miscellaneous services on Indian Passport in all additional passport booklet files, which were submitted before the RPO for obtaining additional passport booklets from time to time, were not only filled up by accused Anil Dhawan, but he also signed the same in the name of applicants. Thus, in terms of Section 106 of Indian Evidence Act, burden is shifted upon the accused Anil Dhawan to explain under which circumstances he had filled up the said forms/applications and signed in the name of applicants. But during trial, he failed to discharge the said burden. In the absence of any contrary evidence on record, this Court has no hesitation to draw a conclusion that accused Anil Dhawan had not only filled up the said forms/applications knowingly well that the persons whose photographs are affixed on the said forms/applications were not Mr. Rajender Kumar Kapoor in whose name the said forms/applications had been filled up, but he also signed in the name of applicants in all the files, thus accused Anil Dhawan is liable for the offence punishable under Section 420 IPC as he dishonestly induced the office of RPO to believe that the persons whose photographs are affixed on the said forms/applications were Rajender Kumar Kapoor CBI No. 07/12 Page 90 of 159 State through CBI v. Bibianus Toppo & Ors.
and induced RPO to issue additional passport booklets as prayed in said forms/applications.
51. As already discussed that accused Anil Dhawan had signed in the name of Rajender Kumar Kapoor at the time of applying for additional passport booklets in all the files, thus he had committed forgery as defined under Section 463 IPC. As he did so with an intention to support his claim that the said forms were signed by the applicant Rajender Kumar Kapoor with an intention to commit fraud with RPO, New Delhi by signing additional passport in the name of Rajender Kumar Kapoor, thus accused Anil Dhawan is also liable for the offence punishable under Section 468 IPC.
52. Since, accused Anil Dhawan had also used the said forms in order to obtain additional passport booklets in the name of Rajender Kumar Kapoor, he is also liable for the offence punishable under Section 471 IPC.
53. Since, it has been established that accused Anil Dhawan also collected five additional passport booklets by signing in the name of Rajender Kumar Kapoor, it means that he represented himself as Rajender Kumar Kapoor at the time of obtaining additional passport booklets, thus, he is also liable for the offence punishable under Section 419 IPC.
54. Since, accused Anil Dhawan had filled up the passport application registration forms and forms for miscellaneous services in the name of Rajender Kumar Kapoor with different photographs and CBI No. 07/12 Page 91 of 159 State through CBI v. Bibianus Toppo & Ors.
he also signed on the said forms. Furthermore, he failed to furnish any reasonable explanation under which circumstances, he had filled up the said forms/applications in the name of same person with different photographs and signed the said forms in the name of applicants, thus his above acts are sufficient to draw a conclusion that he had furnished false information qua applicants knowingly or having reasons to believe that the persons whose photographs are affixed on the said forms/applications were not Rajender Kumar Kapoor, thus he facilitated the said persons in obtaining the passport from RPO by furnishing false information, thus accused Anil Dhawan is also liable for the offence punishable under Section 12 (1) (b) of Passport Act.
Contentions on behalf of accused Naim Safi (A9):-
55. Sh. Harsh Mohan, learned counsel for CBI contended that the role of accused Naieem Safi (A9) was that he had collected one additional passport booklet bearing No. E-6330265 from RPO despite the fact that neither he was applicant nor authorised by the applicant to collect the passport. It was further submitted that at time of taking the delivery of passport, he also made an entry in passport delivery register which is marked as mark Q4 and similarly he also acknowledged the receipt of passport in the file at mark Q22. It was argued that since Q22 tallied with the specimen writing of accused, it shows that he was in conspiracy with the accused Anil Dhawan & others.
56. Mr. Lalit Yadav, Advocate, learned counsel appearing for A9 refuted the said contentions by arguing sagaciously that there is no CBI No. 07/12 Page 92 of 159 State through CBI v. Bibianus Toppo & Ors.
cogent admissible evidence on record to prove the fact that A9 had collected the above said additional passport booklet from RPO office. It was urged that no witness had deposed that either he had delivered the said passport to the accused or he had seen the accused while collecting the passport. It was further contended that even GEQD report Ex.PW24/F is silent qua Q4, this further shows that there is no evidence on record that the alleged passport was collected by accused Naieem Safi.
(i) It was argued that no doubt, Q22 tallied with the alleged specimen writing of the accused, but this is not sufficient to impose the criminal liability as there is nothing on record to show that Q4 and Q22 were written by the one and the same person.
Findings qua accused Naieem Safi (A9):
57. CBI has set up a case against A9 that he had taken the delivery of additional passport booklet bearing No. E6330265. As per CBI version, at the time of taking the delivery of said additional passport booklet, A9 had represented himself as Rajender Kumar Kapoor and made an entry in the passport delivery register, wherein he mentioned the name of applicant; number of additional passport booklet and he also signed in the name of applicant. Relevant page of said delivery register is Ex. PW35/E. The said entry is marked as Q4. As per CBI version, A9 also acknowledged the receipt of said passport on the application form for miscellaneous services (Ex. PW5/A1) and the said writing is marked as Q22. It was argued that since A9 is the author of Q4 and Q22, he was not only the member of the said CBI No. 07/12 Page 93 of 159 State through CBI v. Bibianus Toppo & Ors.
conspiracy but he had also committed forgery in pursuance of the conspiracy.
(i) In order to prove its case prosecution has placed reliance on the GEQD report Ex. PW24/F but the said report is silent qua Q4. In other words, there is no evidence whatsoever that A9 was the author of Q4. Thus, there is no admissible evidence on record to establish the fact that either A9 had made the entry in Ex. PW35/E or he had taken the delivery of said passport booklets.
(ii) No doubt, as per the GEQD report Ex. PW24/F, Q22 matched with the specimen writings marked S1 to S15. But the question arises whether this is sufficient to prove the guilt of accused beyond the reasonable doubts. No doubt, as per Ex. PW24/F, author of Q22 is A9. But, it is pertinent to mention here that Q22 was not identified by any of the witnesses examined by the prosecution during trial. In other words the entire prosecution case is based on the report Ex. PW24/F.
(iii) Admittedly, it was alleged by the CBI that A9 is the author of Q4 and Q22. Though both the questioned writings were examined by GEQD, Shimla and report was submitted, but even there is no finding therein that Q4 and Q22 were written by one and the same person. Since, there is no report qua Q4, it can safely be culled out that the author of Q4 and Q22 is not the one and the same person.
(iv) As per prosecution version, Q22 was compared with specimen writings marked S1 to S35 ( Ex. PW24/C). However, perusal CBI No. 07/12 Page 94 of 159 State through CBI v. Bibianus Toppo & Ors.
of the said specimen writings reveals that these are four different set of writings of accused Naieem Safi (A9). S1 to S4 relates to one set; S5 to S8 relates to second set of writings, S9 to S12 related to third set of writings and S13 to S15 relates to fourth set of writings. However, in the reasons Ex. PW24/G, it is not specified which set of specimen writings qua Q22 was examined and findings was given.
(v) In view of the peculiar facts and circumstances of the case, I am of the considered opinion that it would not be safe to record conviction on the basis of sole finding qua Q22.
(vi) Prosecution failed to produce any other cogent evidence on record to prove the fact that accused Naieem Safi had either visited the office of RPO on that day or he had received the additional passport booklet from RPO office either by representing himself as Rajender Kumar Kapoor or signed in the passport delivery register in the name of applicant. Similarly, there is no evidence on record to prove the fact that he had furnished any false information to RPO to issue the said additional passport booklets. In these circumstances, I am of the considered opinion that accused Naieem Safi (A9) is entitled for the benefit of doubts. Accordingly, I hereby acquit him from all the charges.
Contentions on behalf of accused G.D.Joshi (A5):-
58. Sh. Harsh Mohan, learned Public Prosecutor for CBI submitted that the role of accused G.D. Joshi (A5) and R.S. Rawat (A6) (since deceased) was that they had supplied/delivered the CBI No. 07/12 Page 95 of 159 State through CBI v. Bibianus Toppo & Ors.
additional passport booklets to A8 and A9 without any authority. However, prosecution fairly conceded that there is no specific cogent evidence against either of them, but swiftly added that there is evidence on record to establish that the official who used to register the applications for additional passport booklets, also used to deliver the said additional passport booklets to the applicants in post lunch session and this fact is established from the statement of PW20. It was argued that since, G.D. Joshi had dealt with the application in respect of additional passport booklets bearing No. E-6330265, E- 7104766, E-7710034, E-7988266, it can safely be presumed that he had delivered the said booklets to A8 & A9 unauthorisedly. It was further contended that the said fact is also corroborated from the computer process sheet Ex.PW10/A and Ex.PW9/A to Ex.PW9/C.
59. On the converse, Sh. Mrityunjay Singh, Advocate, counsel appearing for A5 refuted the said contentions by sagaciously arguing that there is no iota of admissible evidence to bring home the guilt of accused beyond the shadow of all reasonable doubts. It was contended that prosecution case is based on the assumption and presumption. It was astutely argued that prosecution has set up a case against A5 that since A5 had registered the application form qua above additional passport booklets on August 22, 2003, December 04, 2003 February 03, 2004, and February 27, 2004, he must have delivered the same and this fact is also corroborated from the computer process sheets as submitted by the learned Public Prosecutor. But it was astutely argued that no reliance can be placed on the version of prosecution as it is admitted case of the prosecution that the passport booklets were not delivered on the said dates. It was CBI No. 07/12 Page 96 of 159 State through CBI v. Bibianus Toppo & Ors.
further contended that PW7 and PW25 in their cross-examination categorically deposed that no specific official was deputed to deliver the passport booklets. They further testified that passport could be delivered by any official of RPO, New Delhi.
(i) It was further perspicaciously contended that as per the duty roaster Ex.PW10/A, the application was registered on August 22, 2003 whereas booklet was delivered to the applicant on August 25, 2003; similarly, as per Ex.PW9/A, application was registered on December 04, 2003 whereas passport booklet was delivered on December 09, 2003; similarly, as per Ex.PW9/B, application was registered on February 03, 2004 whereas passport booklet was delivered on February 05, 2004. Similarly, as per Ex.PW9/C, application was registered on February 27, 2004 whereas passport was delivered on March 04, 2004. Thus, no reliance can be placed on the submission of learned Public Prosecutor that the official who used to register the application in pre lunch session, also used to deliver passport booklets in post lunch session.
Findings qua accused G.D.Joshi (A5):-
60. CBI has set up a case against A5 that he had delivered four additional passport booklets to A8 and A9 whereas two additional passport booklets were delivered by his co-accused Mr. R. S. Rawat (A6) (since deceased).
(i) In order to prove the culpability of A5, prosecution has placed reliance on the deposition of PW25 who deposed that the CBI No. 07/12 Page 97 of 159 State through CBI v. Bibianus Toppo & Ors.
official who used to register the application for additional passport booklet, also used to deliver the said passport booklets to the applicant in post lunch session and also relied upon the computer Process sheet Ex. PW9/A to Ex. PW9/C and Mark PW10/A.
(ii) Perusal of the Process sheet Mark PW10/A reveals that A5 had registered the application qua additional passport booklet bearing No. E-6330265 on August 22, 2003. From Ex. PW9/A to Ex. PW9/C it reveals that A5 had registered the application in respect of additional passport booklet bearing no. E7104766, E7710034 and E7988266 on December 4, 2003, February 3, 2004 and February 27, 2004. The said process sheets are silent qua the date when the delivery was made of the said additional passport booklets. However, it is clear from the said sheets that the said additional passport booklets were ready on August 25, 2003, December 9, 2003, February 5, 2004 and March 4, 2004. Thus, it becomes clear that the said additional passport booklets could not have been delivered on the day in post lunch session when A5 had registered the applications in respect of above additional passport booklets. Even there is no evidence on record to show that A5 was on duty when the passport booklets were allegedly delivered to A8 and A9.
(iii) In this regard, the testimony of PW7 Raj Singh and PW25 S. P. Kothari are relevant. In their cross-examination they candidly admitted that there was no designated post in the office of RPO at the relevant time to deliver the additional passport booklets and further testified that there is nothing in file which may show that in the present matter additional passport booklets were delivered either CBI No. 07/12 Page 98 of 159 State through CBI v. Bibianus Toppo & Ors.
by accused G.D.Joshi (A5) or R.S.Rawat (A6).
(iv) In view of the aforesaid discussion, I am of the considered opinion that CBI has failed to produce any cogent admissible evidence on record to establish the fact that A5 had delivered the additional passport booklet either to A8 or A9, thus, I hereby acquit the accused G.D.Joshi (A5) from all the charges.
Contentions on behalf of accused Ram Chander (A3):-
61. Learned counsel appearing for A3 contended that since there is a delay of 10 months in registration of FIR, a reasonable doubt arises over the prosecution case. It was further contended that though there is a delay of 10 months in registration of FIR and the FIR is in detail, yet the name of A3 is not mentioned therein, which proves his innocence.
(i) It was further contended that there is a material contradiction between the testimony of PW20 and PW25 on the point of facilities provided in HIT Section. Moreover, there is no evidence on record that the accused had issued the HIT clearance in the files in question. It was further argued that no reliance can be placed on the documents filed by the prosecution as there was every possibility that some one had misused P number and password of A3. Further, it was argued that in terms of Section 224 Cr. P.C charges should have been dropped by the prosecution.
(ii) It was sagaciously argued that as per prosecution CBI No. 07/12 Page 99 of 159 State through CBI v. Bibianus Toppo & Ors.
version, accused Ram Chander had given HIT clearances in passport No. T-5039/04 in respect of additional passport booklet No. E- 8582894 on 29.03.2004 whereas accused Ram Chander was on leave from 29.03.2004 to 02.04.2004 and this fact is proved by PW25 in his cross examination. It was urged that from this, it becomes clear that someone had misused his P-number and password and there is every possibility that the same person had also given the HIT clearances in other files without the knowledge or consent of accused Ram Chander. 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.
(iii) It was further argued that from the testimony of PW20 and PW25, it can safely be culled out that there was possibility that the password of A3 could be stolen by someone and misused by unscrupulous person. It was submitted that in these circumstances, it cannot be said that prosecution has proved its case beyond reasonable doubt.
62. Per contra, learned Public Prosecutor refuted the said contentions by arguing that there is no delay in registration of FIR and mere fact that the name of accused is not mentioned in the FIR is not sufficient to exonerate him. It was further contended that there are overwhelming evidence on record to establish beyond reasonable doubts that accused was not only posted in HIT Section at the relevant time but he also dealt with the files in question and he had given HIT clearance without pointing out the dissimilarity in the CBI No. 07/12 Page 100 of 159 State through CBI v. Bibianus Toppo & Ors.
photograph and signature of the applicant as well as without pointing out that additional passport booklets had been issued in the name of applicant earlier. It was further contended that during trial, accused failed to lead any evidence to prove the fact that his P number and password was misused by anyone and further submitted that Section 224 Cr. P.C is not applicable in the facts and circumstances of the case.
(i) It was further contended that no reliance can be placed on the testimony of PW25 wherein he deposed that A3 was on earned leave w.e.f. 29.03.2004 to 02.04.2004 as he was working in the same office and there is every possibility that he had been won over by the accused.
(ii) It was further contended that since as per Ex.PW9/D, entry was made from the P-number of accused Ram Chander, presumption is that he had made the entry and this further shows that he was present in the office, thus no reliance can be placed on the deposition of PW25.
Findings qua accused Ram Chander( A3):-
63. It is undisputed fact that the FIR was registered on February 1, 2005 and same is Ex. PW35/A. It is also undisputed fact that in the said FIR name of A3 is not mentioned despite the fact that all minor details are mentioned in the FIR.CBI No. 07/12 Page 101 of 159
State through CBI v. Bibianus Toppo & Ors.
(i) Perusal of the FIR reveals that the same was registered on receipt of the information. There is nothing on record which may show that the information was received prior to February 1, 2005. Mere fact that the received information was related to the offence committed in past is not sufficient that there was any delay in registration of the FIR. Similarly mere fact that the name of A3 is not mentioned in the FIR is ipso-fact not sufficient to exonerate the accused from the charges.
64. 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 CBI No. 07/12 Page 102 of 159 State through CBI v. Bibianus Toppo & Ors.
as the case may be with the consent of the Court may 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 prerogative of complainant or the 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.
65. A3 in his statement recorded under Section 313 Cr.P.C took the plea that during his posting in the office of RPO, New Delhi his seat was located in the main hall where entry of public persons was free, thus it was quite possible that at the time of opening the computer, somebody might have noted down his P number and password from the movement of his fingers and later on misused the same. It was submitted that when HIT was shown to have been cleared in one file, he was on leave. He further submitted that he had not given his password to anybody nor authorised anyone to give HIT clearance on his behalf. It was further submitted that he was on leave during the period March 29, 2004 to April 2, 2004 despite that it was shown as that he had given HIT clearance in one file on March 29, 2004.
(i) From the above, it becomes abundantly clear that accused had taken the plea that in the present case HIT clearance might have been given by some unknown unscrupulous person by misusing his password and P number. Secondly, he took the plea that though he was on leave on March 29, 2004, yet it has been shown that HIT clearance was given by him in one file, thus it is quite CBI No. 07/12 Page 103 of 159 State through CBI v. Bibianus Toppo & Ors.
possible that in other files also HIT clearance be given by the same person.
(ii) In order to establish that A3 had given the HIT clearance in the files, prosecution has placed reliance on the process sheet Ex. PW9/B to PW9/E. As per Ex. PW9/D, A3 had given the HIT clearance in respect of additional passport booklets bearing No. E8582894 on March 29, 2004. PW25 Mr. S. K. Kothari in his cross examination admitted that accused Ram Chander had obtained the record of attendance register after making an application before him and further admitted that he had supplied the said record to A3 and same is Ex. PW25/DA. Perusal of Ex. PW25/DA reveals that it is the attendance register. PW25 further admitted that as per the attendance register Ex. PW25/DA, A3 was on earned leave from March 29, 2004 to April 2, 2004 and he further clarified that since he was on leave, he was not in a position to give HIT clearance during the said period.
(iii) During trial CBI failed to produce any other evidence whatsoever to establish that on March 29, 2004, A3 was in the office or he had given the HIT clearance as mentioned in Ex. PW9/D. Even there is no evidence on record that he was called in the office to give HIT clearance or he proceeded on leave from the office itself after doing some work. In these circumstances, I am of the considered opinion that A3 has demolished the prosecution case in respect of additional passport booklet bearing No. E-8582894 that he had given the HIT clearance in the said file.
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(iv) As per Ex.PW9/B, A3 had given the HIT clearance in respect of additional passport booklets bearing No. E7710034 on February 4, 2004; as per Ex. PW9/C, A3 had given the HIT clearance in respect of Passport bearing No. E7988266 on March 3, 2004 and as per Ex. PW9/E, A3 had given the HIT clearance in respect of additional passport bearing No. E-8584870 on April 21, 2004. There is nothing on record to show that A3 was on leave on these days. Thus, from the Ex. PW9/B, PW9/C and PW9/C, it becomes clear that A3 had given the HIT clearance in respect of all the aforesaid additional passport booklets.
66. Now coming to the contentions regarding mis-use of 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 can access the file by using their allotted P number and password. Password always remains in the personal knowledge of an individual employee. Needless to say that it is the duty of an employee not to share his password with anyone. Moreover, in the instant case A3 had not taken any plea that he had shared his password with anyone but if he had shared his password with anyone or same was misused by anyone, onus is shifted upon him in terms of Section 106 of Evidence Act to explain under which circumstances, he had shared his password or under which circumstances his password was misused. But he failed to discharge the said burden. In the absence of any such evidence on record, I do not find any substance in the plea that CBI No. 07/12 Page 105 of 159 State through CBI v. Bibianus Toppo & Ors.
someone had misused his password.
(ii) PW20 Ajai Gautam is a star witness of the prosecution case, he in his examination-in-chief deposed that HIT checking without photograph was started in the year 2000 whereas HIT checking with photograph and signature was stated in August 2002 but only in one PC. He further clarified that since April 2004 HIT checking with photograph and signature was started in all the computers. Thus, from the testimony of PW20, it becomes clear that the facility of checking of photographs and signature in HIT section was provided in all the computers in April 2004.
(iii) As per Ex. PW9/B to Ex. PW9/E, A3 had given the HIT clearance on February 4, 2004 to April 21, 2004. In other words when he had dealt with the files except at the last occasion, no facility was provided in all the computers installed at HIT section to check the photographs and signatures of the applicant and compare the same with the photograph and signatures of original passport holder. No doubt, PW20 also deposed that in August 2002 the said facility was provided at one PC in the HIT section but there is nothing on record which may show that such PC was alloted to A3. In these circumstances, prosecution has failed to establish that there was a facility in the computer of A3 to compare the photograph and signatures of applicant with the photograph and signature of original passport holder.
(iv) No doubt, there was no facility in the system of A3 to compare the signatures and photographs of the applicant with the CBI No. 07/12 Page 106 of 159 State through CBI v. Bibianus Toppo & Ors.
original passport holder, but he was in a position to see whether any additional passport had been issued in the name of applicant or not. Similarly, he was also in a position to see the other particulars of original passport holders.
(v) In the instant case, A3 had given the HIT clearance first time on February 4, 2004 in the file of additional passport booklet bearing no. E7710034. However, prior to that two additional passport booklets bearing no. E6330265 and E7104766 had already been issued in the name of applicant Rajender Kumar Kapoor on August 25, 2003 and December 9, 2003. Thus, at the time of giving the HIT clearance on February 4, 2004, A3 was in a position to see that two additional passport booklets had already been issued in the name of same applicant. Since applicant was seeking additional passport booklet on the pretext that it was his first additional passport booklet, thus it was the duty of A3 to point out the same. But he failed to do so. Similarly, at the time of giving HIT clearance subsequently in other files on March 3, 2004 and April 21, 2004, it was his duty to point out and highlight the number of additional passport booklets, which had already been issued in the name of same applicant. But he failed to do so. This proves that he had given HIT clearance without checking the particulars of applicant. By giving HIT clearance without checking the record, A3 had facilitated the applicant in getting additional passport booklet in fictitious name which is not in the public interest. Thus, A3 is liable for the offence punishable under Section 13(2) read with 13(1)
(d)(iii) of PC Act.
CBI No. 07/12 Page 107 of 159State through CBI v. Bibianus Toppo & Ors.
(vi) However, I am of the view that there is no scintilla of evidence to prove the guilt of A3 for the offence punishable under Section 12(1)(b) of Passport Act 1967, accordingly, accused Ram Chander (A3) stands acquitted thereunder.
Contentions on behalf of Sushma Bajaj (A4):-
67. Learned Public Prosecutor appearing for CBI sagaciously contended that A4 was working as Assistant in RPO and at the relevant time, she was posted in HIT section. It was argued that she had given HIT clearances in one file in respect of additional passport bearing No. E-6330265. As per Mark PW10/A, she had given HIT clearance on August 25, 2003. It was argued that A4 had given cleared HIT without pointing out about the issuance of earlier passport in the same name. It was further contended that in HIT section, there was a facility in the computer of A4 to check the photograph and signature of the passport holder and in case of any dissimilarity, it was her duty to point out the same. It was urged that since A4 was in conspiracy with the applicant and other accused persons, she did not raise any such objection despite the fact that the photograph of the applicant was totally different from the photograph of the original passport holder. Similarly, there was substantial difference in the signature of applicant as well as the passport holder.
68. Per contra, learned counsel appearing for A4 refuted the said contentions by arguing that the P-number, password of A4 was misused by some unscrupulous official and in this regard, she had CBI No. 07/12 Page 108 of 159 State through CBI v. Bibianus Toppo & Ors.
made several complaints to her seniors, but no action was taken on her complaint. It was further contended that there is no iota of admissible evidence that the facility of checking photograph and signature was available in the computer of A4.
(i) It was argued that as per the testimony of PW20 the facility of checking the signature and photograph was provided in the computers of HIT section w.e.f. April, 2004. It was argued that since in the instant case, HIT clearance was given in August, 2003, thus it is admitted case of the CBI that at that time no such facility was available in the HIT section, thus it cannot be said that A4 had given the HIT clearance deliberately or in furtherance of any conspiracy.
(ii) It was further argued that an employee namely Charanjeet Sharma had misused her P-number and password and in this regard a complaint was made by the accused to his senior officer and association, but no action was taken against him. However, he was arrested in another matter relating to passport scam and is facing trial.
Findings qua Sushma Bajaj (A4):-
69. As per Mark PW10/A, A4 had given the HIT clearance in respect of first additional passport bearing No. E-6330265 on August 25, 2003.
70. Now question arises as to whether there is any evidence on record to show that the facility of checking of photograph and CBI No. 07/12 Page 109 of 159 State through CBI v. Bibianus Toppo & Ors.
signature was available in the computer of A4 at that time or not?
71. In this regard, the testimony of PW20 Ajai Gautam is quite relevant. Ajai Gautam was deputed in RPO, New Delhi from NIC and he was responsible for maintenance of computers installed in RPO, New Delhi. In his examination-in-chief, he deposed that HIT checking system without photograph was started in the RPO since 2000 and HIT checking system with photograph and signature was started in the RPO, New Delhi in August, 2002, but only in one PC. But there is no evidence on record that any such PC was provided to A4. It means that prosecution has failed to establish that A4 had any facility to check photographs and signature while clearing HIT in respect of file in question.
72. It is admitted case of CBI that A4 had cleared HIT in respect of first additional passport booklet bearing No.E6330265 on August 25, 2003. In view of the testimony of PW20, it becomes clear that there was no facility in the computer system of A4 at that time to check photographs and signatures of the applicant. In these circumstances, I am of the opinion that prosecution has failed to establish that A4 had any facility to compare photograph and signature of the applicant with the photograph and signature of the original passport holder.
73. Since it is admitted case of prosecution that the other particulars of the applicant were similar to the particulars of the original passport such as name, fathers name and address. Since, it was first additional passport booklet, there was no record in the CBI No. 07/12 Page 110 of 159 State through CBI v. Bibianus Toppo & Ors.
computer to show that any other additional passport booklet had been issued in the name of applicant. In these circumstances, if A4 had given the HIT clearance, it cannot be said that she had not raised any objection deliberately as argued by learned Public Prosecutor.
74. During trial, CBI has failed to produce any other cogent evidence to prove the culpability of A4. Similarly, there is no iota of evidence to prove the guilt of A4 for the offence punishable under Section 12(1)(b) of Passport Act, 1967.
75. In view of the aforesaid discussion, I am of the considered opinion that prosecution has failed to bring home the guilt of A4 beyond the shadow of all reasonable doubts, thus I hereby acquit Sushma Bajaj (A4) from all the charges.
Contentions qua Harbhajan Yadav (A2):-
76. Learned counsel appearing for A2 contended that at the relevant time, A2 was posted as counter clerk and he made a recommendation in all the files to issue additional passport booklet in good faith while discharging his official duties. It was further argued that whenever the applicants moved an application for issuance of additional passport, applicants had placed the copy of previous passport along with the original passport and same was checked by A2 and found that the photograph affixed on the application form was of the same person whose photograph was affixed on the passport, thus it cannot be said that A2 had committed any offence when he CBI No. 07/12 Page 111 of 159 State through CBI v. Bibianus Toppo & Ors.
made a recommendation to issue additional passport in favour of the applicant. It was further contended that no instrument was provided to the counter clerk to check the genuineness of the enclosures produced by the applicant. It was further contended that as per the practice and rules, A2 affixed all stamps at the relevant spaces provided at the forms, thus it cannot be said that he had committed any offence.
(i) It was contended that in fact the applicants had cheated the counter clerk by submitting the forged documents before him. Since, no instrument was provided to him detect the fake document, counter clerk failed to catch the said forgery at the initial level.
(ii) Though there may be a fault on the part of counter clerk while dealing with the files in question, but lapses on the part of counter clerk are not sufficient to prove the criminality on his part as there is no evidence of any dishonest intention against A2.
77. Per contra, learned Public Prosecutor appearing for CBI refuted the said contentions by arguing that A2 had made the recommendation for issuance of additional passport booklet without going through the files as he was in conspiracy with the applicants. It was submitted that the same passport was used for obtaining six additional passports subsequently, which is not permissible. It was submitted that the original passport could be used at the time of obtaining first additional passport booklet, thereafter, applicant was supposed to produce additional passport booklet at the time of obtaining second additional passport booklet and similarly he was CBI No. 07/12 Page 112 of 159 State through CBI v. Bibianus Toppo & Ors.
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 the recommendation on the basis of same passport. This shows that he had acted so being the member of conspiracy.
Findings qua Harbhajan Yadav (A2) and Bibianus Toppo (A1):-
78. It is undisputed fact that A2 was posted as counter clerk whereas A1 was Passport Issuing Authority being Superintendent at the relevant time. It is also undisputed fact that all the six files relating to additional passport booklets were dealt with by A2 being the counter clerk. It is also undisputed fact that in all the files except file no. P10278 (relating to additional passport booklet bearing No. E6330265) applications for additional passport booklets had been dealt with by A1 being the Passport Issuing Authority.
(i) During their examination recorded under Section 313 Cr. P.C, they took the plea that since no facility was provided to them to check the photograph and signature and old references of the applicants, they were not in a position to verity the same. They further took the plea that since previous passport files of the applicant was not used to be sent to them, they were not in a position to compare the photographs of the applicants with the original passport holders. A2 also took the plea that since no instrument was provided to him to verify the genuineness of the documents produced by the applicant, he was not in a position to ascertain whether the submitted documents were genuine or fake.
CBI No. 07/12 Page 113 of 159State through CBI v. Bibianus Toppo & Ors.
79. On perusal of all six files of additional passport booklets, it becomes clear that at the time of applying for additional passport booklets, applicants had submitted a request letter stating that they required additional passport booklets as the pages of previous passport had been full and further stated that they needed additional passport booklets on tatkal basis as they had to visit abroad urgently in connection with their business meetings. The said request letters are separately exhibited as Ex. PW4/F, PW4/D, PW4/H, PW4/K, PW3/A and PW4/B. Thus, it becomes abundantly clear that at the time of applying for additional passport booklets, applicants took the plea that since the pages of previous passport had been full and since they had to visit abroad urgently in connection with business meetings, they required additional passport booklets on tatkal basis.
(i) It is also undisputed fact that at the time of applying for additional passport booklets, applicants had placed photostate copy of previous passport bearing No. B-5081375, which was allegedly issued in favour of Veer Singh in the fictitious name of Rajender Kumar Kapoor.
(ii) Perusal of the additional passport booklet files further reveals that on all occasions, applicants placed the photostate copy of the same passport but with different photograph. The detail of request letters, reason for seeking additional passport booklets and the pages of previous passport enclosed in support of request letters is being depicted in tabular form as under:-
CBI No. 07/12 Page 114 of 159State through CBI v. Bibianus Toppo & Ors.
Request Reasons Page numbers of
letter dated previous passport
which were
annexed along
with request
letter/application
22/8/2003 Pages of Passport bearing No. 1, 2, 3, 4, 5, 6, 7, 14,
B-5081375 dated 20/12/2000 are 15, 36, 37
full. Additional Booklet required Visa stamp at 5, 7 & on urgent basis to attend 15. But the visa meeting in Germany. already expired.
03/12/2003 Pages of previous passport are 1, 2, 3, 4, 5, 6, 7,
full. Additional Booklet required 36, 37
on urgent basis to attend Visa stamp at 5 & 7.
meeting in Europe. But the visa already
expired.
03/02/2004 Pages of previous passport 1, 2, 3, 4, 5, 36, 37
bearing No. B-5081375 are full. Visa stamp at 5. But Additional Booklet required for the visa already urgent business trip on Tatkal expired. basis.
27/2/2004 Pages of previous passport are 1, 2, 3, 4, 5, 6, 7, full. Additional Booklet required 36, 37 urgently on Tatkal basis for Visa stamp at 5 & 7. business meeting in Europe. But the visa already expired.
26/03/2004 Pages of previous passport are 1, 2, 3, 4, 5, 36, 37 full. Additional Booklet required Visa stamp at 5. But urgently on Tatkal basis for the visa already business meeting in Europe. expired.
06/04/2004 Pages of previous passport 1, 2, 3, 36, 37 bearing No. B-5081375 dated 20/12/2000 are full. Additional Booklet required for journey.CBI No. 07/12 Page 115 of 159
State through CBI v. Bibianus Toppo & Ors.
(iii) From the above table, it becomes clear that at the time of applying for additional passport booklets, applicants had placed page numbers 1 to 5, 36 & 37 on all occasions except at the last occasion i.e. on April 06, 2004. Page No 6 & 7 was added at time of applying for Ist, IInd & IVth occasion. Alongwith first application, applicant also enclosed two more pages i.e. page number 14 and 15.
However, at the last occasion, applicant had placed only five pages i.e. page number 1 to 3 and 36 & 37 of the previous passport.
(iv) Perusal of the files of additional passport booklets further reveals that except in first file i.e file bearing No. T-10278 (relating to additional passport bearing No. E- 6330265) in all the files, there is a stamp on the first page i.e. photocopy of passport booklet which enclosed along with application and the said stamp reads as under:-
"Extended by the issue of a fresh booklet."
(v) The photocopy of the said relevant pages are Ex. PW5/B8, PW24/B, PW24/B4, PW24/B12 and PW24/B13.
80. Before proceeding further, I deem it appropriate to refer the circular dated June 24, 1997 (Ex. PW25/B) issued by Ministry of External Affairs (CPV Division). According to the said circular, the practice of attaching and sealing the old passport with the additional passport booklet was discontinued with immediate effect and it was directed that instead of attaching and sealing the old passport with the new additional passport booklet, old passport shall be cancelled and returned to the passport holder and suitable endorsement regarding CBI No. 07/12 Page 116 of 159 State through CBI v. Bibianus Toppo & Ors.
old passport shall be made in the new additional passport booklet. Thus as per the said circular, with effect from June 24, 1997, old passport booklet was not required to be attached with the new additional passport booklet. Rather, RPO official was supposed to cancel and returned the old passport to the passport holder. However, they shall make necessary endorsement regarding the old passport in the new additional passport booklet.
81. Vide circular dated November 25, 1997 (Ex. PW25/A), some modification was made in the said circular by deciding that instead of cancelling original passport having valid visa a stamp i.e. 'Extended by issue a fresh booklet' shall be affixed across the first three pages of the old passport. Similarly, in the additional passport booklet, following observations shall be made :-
"holder as previously travelled on passport bearing No. _________ dated _________ issued on _____________(the details of the original passport may be included here, whether there is a change of name, earlier name may be given).
82. From the combined reading of both the circulars, it becomes clear that where there is no valid visa in the previous passport, RPO shall cancel the old passport and returned the same to the applicant by putting the stamp and made necessary endorsement in the additional passport booklet. However, if there is any valid visa in the old passport, same shall not be cancelled. But a stamp i.e. "Extended by issue of a fresh booklet" shall be affixed on first three pages of the previous passport. Similarly, an endorsement as stated above shall be made in the additional passport booklet.
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83. From all the files of additional passport booklets, it becomes clear that the applicants sought additional passport booklet on the ground that pages of previous passport had been full and they had to visit abroad urgently in connection with their business. Thus, it appears that the applicants were having valid visa when they applying for additional passport booklets. If it was so, RPO officials were supposed to make endorsement on the additional passport booklet in terms of circular dated November 25, 1997. If the previous passport did not have any valid visa, in that situation RPO officials were supposed to cancel previous passport in terms of circular dated June 24, 1997.
(i) Since in the instant case RPO officials affixed stamp of "Extended by issue of a fresh booklet" in the last five files, it shows that the applicants were having valid visa at the time of applying for additional passport booklets otherwise there were no reason for the RPO officials to affix the said stamp. Rather, they would put the stamp of 'Cancelled and returned' on the previous passport.
84. Perusal of the additional passport booklet files reveals that at first occasion, the applicant had placed three pages containing the visa stamp i.e. page no. 5, 7 and 15 but the said visa had already been expired. At the second occasion, applicant had annexed the copy of page no. 5 & 7 but again the said visa had already been expired. At third occasion, applicant had placed the copy of only one page of visa i.e. page no. 5 but it had already been expired and at fourth occasion, applicant had annexed the copy of page no. 5 & 7 containing the visa stamp but the same had already been expired. At CBI No. 07/12 Page 118 of 159 State through CBI v. Bibianus Toppo & Ors.
fifth occasion, applicant had annexed the copy of page no. 5 containing the visa stamp but it had already been expired. At sixth occasion, applicant had not been placed the copy of any page containing the visa stamp.
(i) Since, applicant had sought additional passport booklets on the ground that pages of previous passport had been full. Thus, it was the paramount duty of A2 being the counter clerk and A1 being he Passport Issuing Authority to ensure whether there was any substance in their claim. The said fact could be easily verified by them after seeing the original passport to satisfy themselves whether pages of previous passport had been full or not. To my mind, no scientific instrument was required to verify the same as it could be ascertained with naked eye. Even no expertise was required to ascertain the same.
85. Since in terms of circulars issued by Ministry of External Affairs as stated above, it was the duty of RPO officials to affix stamp on the previous passport as and when any person applies for additional passport booklets. Since, in the instant case, the seal i.e. 'Extended by issue of a fresh booklet' is appearing on the pages of previous passport booklet annexed with the application/request letters submitted by the applicants in last five files, it shows that when the applicants applied for additional passport booklets, there should be a valid visa in the previous passport.
86. Since the applicants had not furnished any document in support of their claim that the pages of previous passport had been full CBI No. 07/12 Page 119 of 159 State through CBI v. Bibianus Toppo & Ors.
and there was a valid visa in the previous passport, it was the duty of A1 and A2 to ask the applicants to furnish the documents in support of their claim but they failed to do so. Since, there is nothing on record to show that the pages of previous pages had been full and there was a valid visa in previous passport, thus onus is shifted upon A1 and A2 in terms of Section 106 of Indian Evidence Act to explain on what basis they satisfied themselves that the pages of previous passport had been full and there was a valid visa in the previous passport. But during trial they failed to produce any such evidence. Further to my mind, no scientific instrument or special training was required to ascertain the above two facts.
87. Since, the applicants had annexed the photostate copy of previous passport containing the seal 'Extended by a issue of fresh booklet' in the last five files and the said files were dealt with by A1 being the Passport Issuing Authority and A2 being counter clerk, the said seal was more than sufficient to come to the conclusion or to raise suspicion that on the basis of said previous passport applicant had already been obtained additional passport booklet, thus applicant could not use such previous passport in obtaining the fresh additional passport booklet. But neither A2 being the counter clerk nor A1 being the Passport Issuing Authority raised any such objection. It is pertinent to state that to raise such objection neither any scientific instrument nor any special training was required. This could be detected with naked eye by a person of having ordinary intelligence.
88. From the above, it can safely be culled out that either A2 had not gone through the applications or not opened the files to CBI No. 07/12 Page 120 of 159 State through CBI v. Bibianus Toppo & Ors.
scrutinize the documents or he made the recommendations either at the instance of applicants with ulterior motive or he acted gross negligently by violating the guidelines issued by the Ministry of External Affairs from time to time. Similarly, though being the Passport Issuing Authority, it was the paramount duty of A1 to go through the files before putting his signature. But it appears that either he deliberately not opened the file and acted in conclusion with A2 and applicants or he acted gross negligently by violating the rules and regulations of Passport Act and directions issued by the Ministry of External Affairs from time to time. Had A1 or A2 checked the original Passport bearing No. B5081375, they would come to know immediately that the pages of previous passport had not been full and the applicants had no valid visa in the previous passport. Similarly, had they been opened the files or had seen the documents, they would come to know immediately that on the basis of said documents, applicants had already obtained the additional passport booklet. It is pertinent to state that to detect the said fraud neither any special training nor any scientific instrument was required.
89. It is pertinent to state that the application in all the files were filled up by accused Anil Dhawan. It is seldom to believe that the above said lapses had occurred inadvertently or accidentally only in the files in which the application forms were filled up by accused Anil Dhawan. Further, it is also pertinent to state that both the above accused persons also faced or facing trial in numerous cases such as CC No. 56/08, CC No. 74/08, CC No. 11/12, CC No. 5/12, CC No. 76/08, CC No. 24/09, CC No. 9/12, CC No. 6/12, CC No. 8/12, CC No. 10/12, CC No.25/09 wherein A2 being the counter clerk made CBI No. 07/12 Page 121 of 159 State through CBI v. Bibianus Toppo & Ors.
recommendation for insurance of additional passport booklet on the ground that pages of previous passport booklet had been full and A1 being the Passport Issuing Authority issued additional passport booklet. But surprisingly, in all the said cases, the application forms were filled up by accused Anil Dhawan. Again, it is seldom to believe that A2 made the recommendation for issuance of additional passport booklet only in cases where applications are filled up by accused Anil Dhawan and A1 passed the grant order and issued additional passport booklets only in those matters where the applications were filled up by accused Anil Dhawan. Their said conduct is relevant under Section 15 of Indian Evidence Act. As already stated that since that in terms of Section 106 Indian Evidence Act, the onus was upon them to explain under which circumstances they satisfied themselves that the pages of previous passport had been full and the applicant had valid visa and how the stamp i.e. 'Extended by issue of a fresh booklet' had appeared on the photostate copy of previous passport enclosed with the application, but they failed to discharge the said onus during trial.
90. As already stated that though the applicants had not submitted all pages of previous passport at the time of applying for additional passport booklets but despite that neither A2 nor A1 deemed it appropriate to ask the applicants to furnish the photostate copy of all the pages of previous passport to satisfy themselves whether all pages of passport had been full as alleged by the applicants in their respective application.
91. I have gone through the entire Passport Act, Rules and circulars placed before this Court. But this Court failed to come CBI No. 07/12 Page 122 of 159 State through CBI v. Bibianus Toppo & Ors.
across any provision/rule/administrative instructions which may prevent the passport officials including counter clerk and PIA from taking photocopy of entire previous passport. On the contrary, proviso to Rule 5 of Passport Rules 1980 empowers the Passport Issuing Authority to ask the applicant to furnish additional information, document or certificate which may be considered necessary for the disposal of application. Moreover, in the circular Ex. PW25/B, it was prescribed that old passport shall be returned to the applicant after retaining its photocopy. In other words, the officials while dealing with the above applications were supposed to retain the photocopy of previous passport before returning the same to the applicants.
92. Since, applicants had not furnished the photostate copy of entire previous passport at the time of seeking additional passport booklets, thus there was no material on record to satisfy the counter clerk and PIA that the pages of previous passport had been full. But despite that A2 processed the files without raising any objection, even A1 also did not deem it appropriate to raise any objection, thus in terms of Section 106 of Evidence Act, onus is shifted upon them to show on what basis they satisfied themselves that the pages of previous passports had been full. No doubt, the initial burden was on the prosecution, but in the instant case prosecution had discharged the initial burden by proving the request letters which applicants had enclosed alongwith the application forms. Since, the circumstances or facts which impelled the PIA to believe the version of applicants are in their special knowledge, thus in terms of Section 106 of Indian Evidence Act, burden is shifted upon them to show on what basis they arrived at the conclusion that pages of previous passports had been CBI No. 07/12 Page 123 of 159 State through CBI v. Bibianus Toppo & Ors.
full as alleged by the applicants. But during trial, they failed to adduce any such evidence on record.
93. No doubt, in his defence, A1 proved the letter dated November 10, 2015 wherein Ministry of External Affairs furnished certain information to the accused under Right to Information Act including that before the issuance of Passport Manual 2010, it was a prevalent practice to obtain the copy of first two pages and last two pages of old passport in re-issue cases. Now the said practice had already been incorporated in the Passport Manual, 2010. On the basis of the said letter, it was argued that mere fact that A1 had not insisted for producing the entire pages of previous passport is not sufficient to impose any criminal liability either on A1 or A2. But to my mind the said plea is not helpful to the accused persons in any manner because here the question is not whether the applicants had submitted front two pages and last two pages of the previous passport but the moot point is whether there was any material on record to show that the pages of previous passport had been full as mentioned in the request letter or whether the pages of previous passport booklets had almost exhausted as mentioned in Passport Rules. Admittedly, as stated above, there is no such evidence on record. As already discussed that in all the files applicants had enclosed the photostate copy of same passport but with different photographs and in the last five files, photocopy of previous passport bearing the stamp i.e. 'Extended by the issue of fresh booklet'. The said stamp was more than sufficient for A2 and A1 to hold that on the basis of said photostate copy, applicants had already obtained the additional passport booklet. Since, the said stamp indicates that the applicants had already CBI No. 07/12 Page 124 of 159 State through CBI v. Bibianus Toppo & Ors.
obtained additional passport booklet, it was the paramount duty of counter clerk and PIA to make further inquiry but it appears that A2 preferred to process the file without raising any such query. Similarly, A1 also preferred to sign without going through the files. Had PIA made inquiry from the applicant or from the counter clerk to ascertain how the stamp had been appeared on the photocopy of the passport, PIA would have come to know easily that the applicants were trying to play fraud with the RPO, but PIA did not raise any such objection. Rather, he preferred to put his signature and issued the additional passport booklets in favour of the applicants. Similarly, counter clerk had not raised any objection.
(i) No doubt, A1 took the plea that he believed on the note of counter clerk (A2) wherein he recommended to issue additional passport booklet in favour of the applicants. Admittedly, counter clerk had made the said recommendation in favour of the applicants. But question arises; was not it the duty of PIA to satisfy himself by going through the file? It is pertinent to state that the passport files relating to issuance of additional passports booklets were not voluminous. Rather, the files contained only four documents namely cash receipt; passport application registration form; application form for miscellaneous services; request letter along with the pages of photocopy of previous passport. Thus, it cannot be said that PIA was not in a position to go through the files being voluminous. It was a matter of just few seconds to see whether there was any material on record to corroborate the version of applicant or not. Moreover, A2 in his noting did not certify that the pages of previous passport had been full as mentioned by the applicants in their request letters. But it CBI No. 07/12 Page 125 of 159 State through CBI v. Bibianus Toppo & Ors.
appears that A1 did not deem it appropriate either to open the file or original passport before issuance of additional passport booklets in favour of the applicants.
94. It is manifested from the request letters that at the time of seeking additional passport booklets, applicants took the plea that they required additional passport booklets urgently as they had to go to abroad and entire pages of previous passports had already been full. It means that the applicants had valid visa and they required the additional passport booklets on urgent basis as all pages of previous passport had already been full. Thus, in terms of circular dated November 25, 1997, it was the duty of passport Issuing Authority to make the following endorsement on the additional passport:-
" Holder has previously travelled on passport No. ___ dated _ _ issued at _ _ which holds valid visa." (The details of original passport may be included here, where there is a change of name, earlier name be given.)
(i) The above endorsement could have been made by the passport issuing authority only if passport issuing authority had previous passport in original or photocopy thereof to check whether applicant had any valid visa or not. As from the evidence adduced by prosecution and the plea taken by A1 and A2 in their statement recorded under Section 313 Cr. P.C, the previous passport in original was returned to the applicants at the counter itself. Since, photocopy of entire passport was not taken from the applicants before issuing additional passport booklets, there was no material before the PIA to make the above endorsement on the fresh additional passport CBI No. 07/12 Page 126 of 159 State through CBI v. Bibianus Toppo & Ors.
booklets. Had the previous passport in original been seen or copy thereof be taken on record, passport issuing authority would have come to know immediately that the plea taken by the applicants for issuance of additional passport booklets was false. But the passport issuing authority did not deem it appropriate to do so and even it did not deem it appropriate to comply with the instructions issued by Ministry of External Affairs in its circular dated November 25, 1997.
95. During the course of arguments, counsel appearing for A1 and A2 also took the plea that they had acted in good faith. Counsel appearing for A1 further took the plea that since A1 had acted in good faith on the recommendation of counter clerk, he cannot be held liable for his act. But question arises whether in the present facts and circumstances plea of good faith is available to the accused or not?
96. As already held that 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. But from the above discussion, it becomes clear that neither A2 nor A1 had not taken any such care and attention, thus to my mind, the plea of good faith is not available to them.
(i) It is pertinent to state that being the PIA, it was his responsibility to ensure that no unscrupulous person could get passport on the basis of false documents. Simultaneously, it was also his duty to keep a check on his subordinates. Had there been photocopy of entire previous passport showing that the pages of CBI No. 07/12 Page 127 of 159 State through CBI v. Bibianus Toppo & Ors.
previous passport had been full and proper endorsement had been made on the issued additional passport booklet in terms of circular dated November 25, 1997, in that situation A1 would have a valid defence of good faith as defined under Section 52 of IPC. But unfortunately, it is not so. In these circumstances, I am of the considered opinion that there is no substance in the plea of A1 that he had acted in good faith on the recommendation of A2.
97. In view of the aforesaid discussion, I do not find any substance in the contention raised by counsel for A1 and A2 that since neither any instrument was provided to them nor any training was imparted to them to check the authenticity/genuineness of the documents and to compare the photograph and signature of the applicants; nor the previous passport file used to be sent to them for the purpose of comparison because in the instant case no such training/instrument was required to detect the fraud. It could be easily detected in ordinary course.
98. Learned counsel appearing for A1 vehemently contended that since A1 was over burdened, there may be possibility that the above lapses had taken place due to oversightness, thus there was no wilful wrongful act on the part of A1. But to my mind, the said contention is devoid of any merit. Work load can not be a ground to justify a wilful wrongful act. As already held that neither A2, nor A1 made any effort to satisfy themselves whether there is any material on record to substantiate the version of applicants as there is no material on record to show that all pages of previous passport/booklet had been full as mentioned by the applicants in their request letters.
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Similarly, no effort was made by them to raise query how the seal of 'Extended by issue of a fresh booklet.' had been appearing on the photocopy of the pages of previous passport.
(i) To my mind, the judgement Sudhdeo Jha Utpel v/s. State of Bihar, AIR 1957 Supreme Court 466 is also 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 A1 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 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 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 supports 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 public servant. But it was not the sole ground to acquit the accused. I CBI No. 07/12 Page 129 of 159 State through CBI v. Bibianus Toppo & Ors.
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 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 CBI No. 07/12 Page 130 of 159 State through CBI v. Bibianus Toppo & Ors.
not realize that Vinod and Sanjay were the same person whereas in the instant case, the facts are totally different. In the present case, the fraud could be detected by A1 by just mere opening the file and applying its mind. Thus, to my mind, the said judgment is not helpful to the accused in any manner.
(iv) In order to claim parity, counsel for A1 strongly placed reliance on the judgements 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. But to my mind, the said judgements 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 had been adopted. Mere fact that the investigating agency did not charge- sheet PIA in other matters, who allegedly played similar role that of A1 is not sufficient for this Court to hold that in the present matter investigating officer had adopted the policy of pick and choose. Indisputably, those other matters are not before this Court and this Court is not supposed to give any finding in those matters on the basis of evidence led by prosecution in the present matter. If in those matters, investigating officer had adopted pick and choose policy, appropriate action can be taken against the erring investigating officer. But mere fact that in the said matters, investigating agency did not deem it appropriate to file the charge-sheet against PIA, it is not sufficient to exonerate A1 in the present matter. Needless to say that the fate of A1 can be decided only on the basis of evidence available on record in the present matter and not on the basis of charge-sheets CBI No. 07/12 Page 131 of 159 State through CBI v. Bibianus Toppo & Ors.
filed by investigating agency in other alleged similar matters. However, it is pertinent to mention here that in the instant case, though first additional passport booklets was issued by Mr. P. K. Kapoor, yet no charge-sheet had been filed against him. But charge-sheet was not filed against him due to any discrimination; rather charge-sheet could not be filed against him as he had died prior to filing of the charge- sheet, thus it can not be said that any discrimination had been made by the investigating officer among the PIAs in the present matter.
(v) Similarly, the observations of the Hon`ble Court made in case Chandraiah vs. State of A.P (supra) that since prosecution failed to prove the guilt of 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 mus- appropriated 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.CBI No. 07/12 Page 132 of 159
State through CBI v. Bibianus Toppo & Ors.
99. 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, thus 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.
100. From the aforesaid discussion, following facts are established beyond the shadow of all reasonable doubts:-
(a) That accused Harbhajan (A2) was working as counter clerk at the relevant time whereas Bibianus Toppo (A1) was working as Passport Issuing Authority being Superintendent.
(b) That the counter clerk, A2 had dealt with all six files relating to additional passport booklets wherein different persons requested for additional passport booklet in the name and personal particulars of Rajender Kumar Kapoor.
(c) That in all the said files the applicants had sought the additional passport booklets on the pretext that the pages of previous passport CBI No. 07/12 Page 133 of 159 State through CBI v. Bibianus Toppo & Ors.
had already been full and they required additional passport booklet on Tatkal basis to visit abroad urgently in connection with business meetings etc.
(d) That alongwith the application and request letter the applicants had also enclosed the photocopy of few pages of previous passport.
(e) That the visa appearing on
photostate copy of few pages of previous
passport had already been expired.
(f) That the stamp of 'Extended by
issue of a fresh booklet' had been appearing on the last five files of additional passport booklets.
(g) That there was no material in the file to show that the pages of previous passport had already been full as alleged by the applicants at the time of seeking additional passport booklet. Despite that no effort was made either by A2 or A1 to make any enquiry from the applicants.
(h) That appearing of stamp i.e. CBI No. 07/12 Page 134 of 159 State through CBI v. Bibianus Toppo & Ors.
'Extended by issue of a fresh booklet' in the last five files shows that applicants had already obtained additional passport booklet on the basis of said passport, but despite that A2 had not raised any query from the applicants.
(i) That appearing of the above said seal in the last five files also indicates that there was valid visa in the previous passport, thus in terms of circular Ex. PW25/A, RPO officials were bound to make endorsement on the new additional passport booklet. But no such endorsement was made on the new additional passport booklet.
(j) That despite the above inherent defects in the applications, A2 being the counter clerk made recommendation in favour of the applicants for issuance of additional passport booklet.
(k) That though the appearing of the seal was more than sufficient to raise query from the applicants or counter clerk to ascertain how the said seal could be appeared on the photostate copy of previous passport but A1 failed to raise any such query which shows that he had cleared the file without going CBI No. 07/12 Page 135 of 159 State through CBI v. Bibianus Toppo & Ors.
through the file.
(l) That even A1 also failed to ensure that the detail of visa be mentioned in the new additional passport booklet in terms of circular Ex. PW25/A.
(m) That no scientific instrument or training was required to detect the said inherent defects as the same could easily be ascertained with naked eyes by a person of ordinary intelligence but despite that A1 and A2 preferred to ignore the said inherent defects without any reasonable ground.
101. Now coming to the additional contentions raised by counsel appearing for A1 that the acts of A1 are not governed by the judgement of Runu Ghosh v/s. CBI (supra), as 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 Ministry of External Affairs in the form of various circulars to issue additional passport booklets on the same day or preferably within 3-5 days and A1 was over worked at the relevant time and the witnesses particularly PW7 and PW25 admitted in their cross-examination that the files put up before A1 were complete in all respects, thus it cannot be said that there was any fault on the part of A1. It was further argued that in other matters other PIAs acted in the similar fashion but no action was CBI No. 07/12 Page 136 of 159 State through CBI v. Bibianus Toppo & Ors.
taken against them, rather they have been cited as prosecution witnesses.
(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 to the accused. Similarly, though there were instructions from the Ministry of External Affairs in the form of various circulars as discussed above, but these circulars never permitted the Passport Issuing Authority to act in violation of the Rules and Regulations of Passport Act and Passport Rules. 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 work cannot be a ground to justify a wilful wrongful act or to act in the gross violation of rules and regulations. Sofar the fact that in other matters the other PIAs who acted similar manner were not charge- sheeted by the CBI 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-sheet 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.
102. Now coming to the next question whether the RPO officials including PIA acted in public interest or not?
(i) If it is established that they acted in public interest, they CBI No. 07/12 Page 137 of 159 State through CBI v. Bibianus Toppo & Ors.
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 the 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 the nation because such fictitious documents can be used by anti-social elements. As already discussed that while dealing with the files in question, A1 to A3 not only failed to take reasonable precaution but they also breached the settled norms and instructions at the time of issuing additional booklets, thus their acts were not in the public interest when they facilitated in issuance of additional passport booklet in fictitious name by clearing files.
(iii) Admittedly, there is no cogent evidence on record to bring home the guilt of A1 to A3 for the offences described in clause (i) and (ii) of Section 13 (1) (d) of the Prevention of Corruption Act. But it can safely be culled out that the adduced evidence are sufficient to hold that A1 to A3 while holding public office obtained a valuable thing i.e. passport in favour of the fictitious persons, which was not in the public interest, thus they are liable for the offence punishable under Section 13 (2) read with Clause-(iii) of Section 13 (1)(d) of PC Act.
(iv) However, I am of the considered opinion that the adduced evidence are not sufficient to bring home the guilt of A1 to A3 for the offence punishable under Section 12 (1) (b) of Passport Act, CBI No. 07/12 Page 138 of 159 State through CBI v. Bibianus Toppo & Ors.
1967, accordingly, I hereby acquit them thereunder.
(v) Though a separate charge for the offence punishable under Section 467 IPC has also been framed against A1, but during trial, CBI failed to adduce any admissible evidence to prove the said charge. Mere fact that A1 signed on the additional passport booklets being the PIA is not sufficient in any manner to hold that he had committed any forgery as defined under Section 463 & 464 IPC. Accordingly, I hereby acquit A1 from the charge of Section 467 IPC.
Contention relating to accused Harish Kumar Malhotra (A10) :-
103. Learned Public Prosecutor submits that accused Harish Kumar Malhotra was known to ASI Umrao Singh (since deceased) and he also knew accused Vir Singh (since PO). It was contended that from the testimony of PW16 and PW17, it is established that when accused Vir Singh needed a passport, he contacted with PW16, who referred him to PW17, who sent him to the present accused. From the testimony of PW1, it becomes clear that accused Harish Kumar Malhotra used to accompany ASI Umrao Singh at the time of verification of addresses of the applicants, thus it was argued that from the testimony of PW1, PW16 and PW17, it can be established that accused Harish Kumar Malhotra was known to ASI Umrao Singh and Vir Singh, who obtained a passport in fictitious name of Rajender Kumar Kapoor.
(i) It was argued that the application of accused Vir Singh was assigned to ASI Umrao Singh for the purpose of verification and CBI No. 07/12 Page 139 of 159 State through CBI v. Bibianus Toppo & Ors.
as per record, ASI Umrao Singh had verified the antecedents of alleged Vir Singh @ Rajender Kumar Kapoor and on the verification slip, he had obtained the signature of two persons, namely, Raj Kumar Saini and Yogender Singh. During investigation, both the said persons were found fictitious as no such person was found residing at the addresses mentioned in the said slip.
(ii) It was further contended that during investigation, IO had taken the specimen signature of Harish Kumar Malhotra and sent the same alongwith the verification slip. From the GEQD report, it becomes clear that accused Harish Kumar Malhotra had forged the signature of Raj Kumar Saini and Yogender Singh. As per GEQD report Mark PW34/C, accused Harish Kumar Malhotra is the author of questioned writings mark Q46, Q47, Q61 to Q63. Similarly, he is also the author of Q66, Q67 which shows that he also filled up the personal particular form of Vir Singh @ Rajender Kumar Kapoor.
(iii) It was further contended that the photograph of Vir Singh on the personal particular form Ex.PW19/A was identified by PW19 Smt. Kumari Kaur. His photograph was also identified by PW16. Accordingly, it was argued that it has been established that accused Harish Kumar Malhotra had filled up the form of Vir Singh in the name of Rajender Kumar Kapoor and thereafter, he also forged the signature of witnesses on the verification slip in collusion with Umrao Singh and Vir Singh. It was further submitted that the mere fact GEQD report could not be exhibited during trial is not sufficient to discard the prosecution case.
CBI No. 07/12 Page 140 of 159State through CBI v. Bibianus Toppo & Ors.
104. Per contra, learned counsel appearing for the accused countered the said contentions by arguing that as per the statement of PW11, passport was dispatched and not delivered to the accused Harish Kumar. Further, there is no evidence whatsoever to show that accused had collected the passport of Vir Singh issued in the name of Rajender Kumar Kapoor, thus CBI failed to prove the charge under Section 419 IPC.
(i) It was argued that the only allegation against the accused is that he had forged the signature of Raj Kumar Saini and Yogender Pal on the verification slip, but during trial, CBI failed to prove the GEQD report in this regard in accordance with law.
Findings qua accused Harish Kumar Malhotra (A10) :-
105. Perusal of the charge-sheet reveals that the allegations against A10 are that Umrao Singh, ASI, Special Crime Branch (since deceased) had conducted the police verification of accused Vir Singh, who applied for a passport in the name of Rajender Kumar Kapoor. As per charge-sheet, the verification was conducted by Umrao Singh, ASI in the presence of Harish Kumar Malhotra (A10), who signed the witness identification slip in the name of Rajender Kumar Saini and Yogender Singh. On the basis of said witness identification slip, Umrao Singh, ASI had submitted a report in favour of accused Vir Singh and on the basis of his false report, passport bearing No. B- 5081375 was issued to the accused Vir Singh in fictitious name Rajender Kumar Kapoor.
CBI No. 07/12 Page 141 of 159State through CBI v. Bibianus Toppo & Ors.
106. In order to prove the said allegations, investigating officer had taken the specimen writing of A10 and sent the same alongwith the questioned writings to GEQD for comparison. The GEQD report is marked PW34/C reveals that S-119 to S-183 were the specimen writing of A10, but surprisingly investigating officer did not deem it appropriate to file the same alongwith the charge-sheet. Even, there is no reference of any such specimen writings in the list of documents. Even during his testimony, investigating officer has not uttered even a single word about the so-called alleged specimen writings of A10.
107. As per mark PW34/C, the alleged writing was examined by Dr. B.A. Vaid, Dy. GEQD and Mr. N.C. Sood, GEQD. Though Dr. B.A. Vaid graced the witness box as PW24, but he had not uttered even a single word about the said report.
108. Before placing reliance on the GEQD report, it is the paramount duty of investigating agency to prove the specimen writings or the admitted writing, if any. Since, in the instant case, CBI failed to prove the so-called specimen writings, thus no reliance can be placed even on the GEQD report mark PW34/C.
(i) There is no other evidence on record to bring home the guilt of A10.
109. In view of the aforesaid discussion, I am of the considered opinion that CBI miserably failed to bring home the guilt of Harish Kumar Malhotra (A10), thus I hereby acquit him from all the CBI No. 07/12 Page 142 of 159 State through CBI v. Bibianus Toppo & Ors.
charges.
Contentions relating to Rajwinder Singh (A12):-
110. Learned Public Prosecutor appearing for CBI contended that accused Rajwinder Singh is the person on whose behalf the application was moved at the time of obtaining first additional passport booklet bearing No. E-6330265. It was argued that on the application form, the photograph of Rajwinder Singh is affixed and his photograph is also affixed on the photostate copy of the passport which was allegedly submitted alongwith the application. It was alleged that since accused Rajwinder Singh had obtained the additional passport booklet in the fictitious name of Rajender Kumar Kapoor, it shows that he was a member of the conspiracy alongwith the other accused persons and he also committed cheating by inducing the passport officials to issue passport in his favour in fictitious name.
(i) It was argued that as per Ex.PW27/A, accused Rajwinder was deported from Abu Dabi on emergency certificate. As his date of birth was found different on the emergency certificate from the application form, a show cause notice was also issued to him by RPO Jallandhar, but he did not furnish any reply. It was argued that since he was deported on emergency certificate, it was not possible for him to get a new passport from RPO Jallandhar without fulfilling the requirements of law, accordingly, he decided to obtain passport in a fictitious name in the name of Rajender Kumar Kapoor.
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111. Per contra, learned counsel appearing for A12 refuted the said contentions by vehemently arguing that even during investigation, no effort was made by CBI to seek an explanation from the accused and this fact is clear from the deposition PW35 who categorical deposed that he filed the chargesheet without interrogating accused Rajwinder. It was argued that this shows that no opportunity was given to the accused to explain his version.
(i) It was further contended that prosecution case is that the accused had obtained a fictitious passport from RPO New Delhi, but no reliance can be placed on the said version because it is admitted case of CBI that accused had a valid passport from RPO Jallandhar. It was contended that since accused had a valid passport from Jallandhar, there was no occasion for A12 to get a passport in fictitious name.
(ii) It was further contended that though CBI alleged that the photo of accused was affixed on the application moved at the time of obtaining first additional passport booklet bearing No. E-6330265, but there is no evidence on record to show that the photograph affixed in the said file belongs to accused Rajwinder. It was further contended that similarly there is no evidence on record to show that how the accused Rajwinder got the said passport as PW35 admitted in his cross examination that even accused Anil Dhawan denied any relationship with the accused Rajwinder. It was further contended that this shows that there was no conspiracy whatsoever between Rajwinder and other accused. It was further contended that there is no evidence to show that accused Rajwinder used the alleged fictitious CBI No. 07/12 Page 144 of 159 State through CBI v. Bibianus Toppo & Ors.
passport as no such passport had been recovered from the accused.
(iii) It was further contended that the photograph affixed on the alleged application in the passport file is not the photograph of accused and no evidence has been adduced by the CBI to establish that the said photographs belongs to the accused. It was further contended that said photographs are morphed photograph.
Findings qua accused Rajwinder Singh (A12):-
112. Perusal of letter Ex.PW27/A makes it clear that A12 had applied for a passport at RPO, Jallandhar, but at that time, he had not disclosed the fact that he had passport bearing No. W-982847 dated August 19, 1985 and he had been deported from Abu Dhabi and came to India on emergency certificate. Since, the defect was found in his date of birth mentioned on emergency certificate and application form, a show-cause notice was given to him, but A12 failed to furnish any explanation despite sending reminder. The said letter is duly proved by PW27 Pawan Kumar Sharma, Assistant, RPO (Jallandhar). Though witness was cross-examined in depth, yet nothing could be extracted during his cross-examination, which may help A12.
113. From the deposition of PW27 and Ex.PW27/A, it becomes clear that though accused had a passport in the year 1985 and he was deported on emergency certificate from Abu Dhabi, but he had not mentioned this fact at the time of applying for fresh passport before RPO (Jallandhar) in the year 2000. Accordingly, a show-cause notice was given to him to which he failed to furnish any explanation.
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In other words, it was not possible for A12 to get a passport unless he satisfied the queries raised by the RPO (Jallandhar). In view of the above, I do not find any substance in the contention of learned defence counsel that accused had no occasion to obtain the passport in fictitious name as he was already having a valid passport from RPO (Jallandhar).
(i) It is a matter of record that at time of applying for additional passport booklet bearing No. E-6330265, the photograph of A12 was pasted on the passport application registration form (Ex.PW5/A) and application form for miscellaneous services (Ex.PW5/A1). His photograph is also found affixed on the photocopy of passport bearing No. B-5081375 (Ex.PW5/A4). Though a plea has been taken by learned defence counsel that the said photographs are morphed photographs and same did not belong to the accused, but during trial, no such evidence has been placed on record. The question of producing negatives of the said photographs by the CBI does not arise because the said photographs were used in the issuance of additional passport booklets and there was no occasion for the CBI to produce the negatives of the photographs.
114. Since, the photographs of A12 have been used in the application form for obtaining the above said passport booklet, thus in terms of Section 106 of Indian Evidence Act, onus is shifted upon him to explain under which circumstances, the said photographs have been reached in the hands of applicants, if he had not obtained the said passport. Moreover, the contentions of morphed photograph is otherwise untenable because the said passport could not be used by CBI No. 07/12 Page 146 of 159 State through CBI v. Bibianus Toppo & Ors.
any other person except A12 because the passport was issued in fictitious name, but with photograph of A12. As already stated that since A12 had already been deported from Abu Dhabi on emergency certificate and a show-cause notice had been issued by RPO Jallandhar, thus it was not possible for him to get a passport from RPO without satisfying the queries raised by RPO (Jallandhar). In other words, A12 had a motive to get passport by illegal means.
115. No doubt, PW35 in his cross-examination deposed that he had not interrogated A12 before filing the charge-sheet and further admitted that charge-sheet was filed without any interrogation. Admittedly, this is a default on the part of investigating officer because it was his duty to seek explanation of accused before filing the charge- sheet against him, but he failed to do so. Though PW35 deposed that he interrogated accused Anil Dhawan in this regard, but he denied his relationship with A12. Mere fact that there was a default on the part of investigating officer is not sufficient to exonerate the accused as even during trial, accused failed to furnish any explanation or circumstances to explain how his photographs have been used in the present case. In these circumstances, I am of the considered opinion that it was A12 who was ultimate beneficiary of the said passport. Mere fact that the additional passport booklet could not be recovered is not sufficient to exonerate the accused because there are conclusive evidence on record that the said passport was issued on the said application.
116. As already discussed that the said form was filled up and signed by accused Anil Dhawan. This proves the connection between A8 and A12. This shows that A12 must have approached A8 CBI No. 07/12 Page 147 of 159 State through CBI v. Bibianus Toppo & Ors.
for the alleged passport, accordingly, A8 had filled up the form in the name of Rajender Kumar Kapoor and affixed the photograph of A12 on the application form and thereafter, submitted the application in RPO, Delhi. This proves the conspiracy between A8 and A12, thus A12 is liable for the offence punishable under Section 120B IPC. Since, he furnished the said photographs in order to get passport in fictitious name, he is also liable for the offence punishable under Section 12(1)(b) of Passport Act, 1967.
(i) Though a separate charge for the offence punishable under Section 467/471 IPC has also been framed against A12, but during trial, no evidence has been adduced by the CBI to prove the fact that he had committed any forgery, thus I am of the view that CBI has failed to prove the guilt of accused for the offence punishable under Section 467 IPC. Though in the charge-sheet, it is alleged that accused had used the said passport by travelling abroad, but during trial, CBI failed to produce any such evidence on record, thus I am of the view CBI has also failed to prove the guilt of accused for the offence punishable under Section 471 IPC.
117. In view of aforesaid discussion, I am of the considered opinion that CBI has succeeded to prove the guilt of accused Rajwinder Singh for the offence punishable under Section 120B IPC and under Section 12(1)(b) of Passport Act, 1967. However, CBI failed to bring home the guilt of accused for the offence punishable under Section 467/471 IPC, thus I hereby acquit him thereunder.
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CONCLUSION:-
118. Pondering over the ongoing discussion, I am of the considered opinion that:-
(i) Prosecution has succeeded to bring home the guilt of accused Anil Dhawan (A8) and Rajwinder Singh (A12) for the offence punishable under Section 120B IPC beyond of shadow of all reasonable doubts, accordingly, I hereby hold them guilty thereunder.
(ii) Prosecution has also succeeded to
bring home the guilt of accused Anil Dhawan
(A8) for the offence punishable under
Section 419/420/468/471 IPC and under
Section 12 (1) (b) of Passport Act, 1967
beyond the shadow of all reasonable doubts, accordingly, I hereby hold him guilty thereunder.
(iii) Prosecution has also succeeded to bring home the guilt of accused Bibianus Toppo (A1), Harbhajan Yadav (A2) and Ram Chander (A3) for the offence punishable under Section 13 (2) read with Section 13 (1)
(d) (iii) of Prevention of Corruption Act, 1988 beyond the shadow of all reasonable doubts, CBI No. 07/12 Page 149 of 159 State through CBI v. Bibianus Toppo & Ors.
accordingly, I hereby hold them guilty
thereunder.
(iv) Prosecution has also succeeded
to bring home the guilt of accused Rajwinder Singh (A12) for the offence punishable under Section 12(1)(b) of the Passport Act, 1967 beyond the shadow of all reasonable doubts, accordingly, I hereby hold him guilty thereunder.
119. However, prosecution has failed to bring home the guilt of accused Sushma Bajaj (A4), G.D. Joshi (A5), Naieem Safi (A9), and Harish Kumar Malhotra (A10) beyond the shadow of all reasonable doubts, accordingly, I hereby acquit them from all the charges.
Announced in the open Court (PAWAN KUMAR JAIN) th on this 19 February, 2016 Special Judge-01, CBI, North West Rohini Courts, Delhi/sv CBI No. 07/12 Page 150 of 159 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. : 07/2012ID No. : 02404R0009672008 FIR No. : RC-2(A)/2005/SCU-V/CBI/SCR-II, 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 and substantive offences thereto Police Station: CBI/SCU-V/SCR-II/New Delhi STATE THROUGH CENTRAL BUREAU OF INVESTIGATION, NEW DELHI VERSUS CBI No. 07/12 Page 151 of 159 State through CBI v. Bibianus Toppo & Ors.
1. Bibianus Toppo S/o Late Joseph Toppo, R/o 14 G, Sector 4, DIZ Area, Raja Bazar, Gole Market, New Delhi-01.
..........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 ...........Convict No. 3
4. Anil Dhawan S/o Late Madan Lal Dhawan, R/o 254, DDA Flats, 1st Floor, New Ranjit Nagar, New Delhi-8.
..........Convict No. 4 CBI No. 07/12 Page 152 of 159State through CBI v. Bibianus Toppo & Ors.
5. Rajwinder Singh S/o Darshan Singh R/o Surkh Pur, PS Kotwali, Distt. Kapurthala Punjab.
..........Convict No. 5Appearance :Sh. N.P. Srivastava, learned Sr. Public Prosecutor for CBI Sh. R. Ramachandran, Advocate, counsel for Bibianus Toppo (C1) Sh. Sukhwinder Singh, Advocate, counsel for Harbhajan Yadav (C2) and Ram Chander (C3) Sh. Lalit Yadav, Advocate, counsel for Anil Dhawan (C4) Sh. Arun Bansal, Advocate, counsel for Rajwinder Singh (C5) ORDER ON THE POINT OF SENTENCE :-
1. Vide separate judgment dated February 19, 2016, Bibianus Toppo (C1), Harbhajan Yadav (C2) and Ram Chander (C3) have been held guilty for the offence punishable under Section 13 (2) read with Section 13 (1) (d) (iii) Prevention of Corruption Act, 1988. Besides that Anil Dhawan (C4) has been held guilty for the offence punishable under Sections 419/420/468/471 IPC; under Section 12 (1) (b) of Passport Act, 1967 and under Section 120B IPC.CBI No. 07/12 Page 153 of 159
State through CBI v. Bibianus Toppo & Ors.
2 Convict Rajwinder Singh (C5) is also held guilty for the offence punishable under Section 120B IPC and under Section 12 (1)
(b) of Passport Act, 1967.
3. 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 agony of trial for the last more than seven 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) 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 7 years, convict has not been found indulged in any other criminal matter, which shows that convict has reformed himself.
(iii) 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 66 years and suffering from various ailments. Convict has only one son, but he CBI No. 07/12 Page 154 of 159 State through CBI v. Bibianus Toppo & Ors.
is still unemployed, thus convict is the sole bread earner of his family.
(iv) 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 father of the convict Anil Dhawan had already been failed, thus he is on regular dialysis for the last three years. It is further submitted that convict is sole bread earner of his family comprising of his old parents and two small school going kids besides his wife.
(v) Learned counsel appearing for convict Rajwinder Singh (C5) submits that convict remained in custody for about seven days during trial, thus requests that a lenient view be taken and he be sentenced for the period already undergone. It is further submitted that convict is a heart patient having two school going kids, one marriageable age daughter and 80 years old mother and all are dependent upon him. It is further submitted that in fact accused is a victim of the conspiracy of other accused persons. It is further submitted that accused has no criminal antecedents.
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4. Per contra, counsel appearing for CBI refuted the said contentions by vehemently arguing that the convicts 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 argued that since passport is an important document to prove identity and nationality, thus such passports could be misused by anti-national elements. It is further submitted that the convicts 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 and CC No. 24/09, accordingly, prayer is made for maximum punishment.
5. I have heard rival submissions made by counsel for both the parties, perused the record carefully and gave my thoughtful consideration to their contentions.
6. In view of the aggravating and mitigating factors as highlighted by counsel for both the parties and the fact that prosecution failed to establish the charges of conspiracy with the public servants, I am of the considered opinion that it is not a fit case to impose maximum sentence 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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7. In view of the aforesaid discussion, I hereby sentence the convict no. 1 to 3 i.e. Bibianus Toppo (C1), Harbhajan Yadav (C2) and Ram Chander (C3) rigorous imprisonment for a period of one year and a fine of ` 10,000/- 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.
8. I also sentence convict no.4 Anil Dhawan rigorous imprisonment for a period of three years and a fine of ` 20,000/- in default further simple imprisonment for a period of nine months for the offence punishable under Section 420 IPC.
(i) I also sentence convict no.4 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 six months for the offence punishable under Section 419 IPC.
(ii) I also sentence convict no.4 Anil Dhawan rigorous imprisonment for a period of three years and a fine of ` 20,000/- in default further simple imprisonment for a period of nine months for the offence punishable under Section 468 IPC.
(iii) I also sentence convict no.4 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 CBI No. 07/12 Page 157 of 159 State through CBI v. Bibianus Toppo & Ors.
three months for the offence punishable under Section 471 IPC.
(iv) I also sentence convict no.4 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.
(v) I also sentence convict no.4 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 six months for the offence punishable under Section 120 B IPC.
9. I also sentence convict No. 5 Rajwinder Singh rigorous imprisonment for a period of one year and a fine of ` 5,000/- in default further simple imprisonment for a period of six months for the offence punishable under Section 120B IPC.
(i) I also sentence convict no. 5 Rajwinder Singh 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.
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10. Benefit of Section 428 Cr. P.C, if any, be given to the convicts. All sentences shall run concurrently.
11. Copy of judgment along with order on the point of sentence be given to the convicts/their counsels free of cost.
12. File be consigned to record room.
Announced in the open Court (PAWAN KUMAR JAIN) rd on this 23 February, 2016 Special Judge-01, CBI, North West Rohini Courts, Delhi/sm CBI No. 07/12 Page 159 of 159