Delhi District Court
Chadha vs State 2013 (6) Lrc 306 (Delhi). The ... on 14 December, 2015
State through CBI v. Narayan Diwakar & Ors. (Sri Madhuvana CGHS)
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. : 70/2008
ID No. : 02404R0651072007
FIR No. : RC BDI/2005/E0011/CBI/BS&FC/N.
DELHI
U/Sec: 120B r/w 420/468/471 IPC
and 13(2) r/w 13(1)(d) of PC Act 1988
and substantive offences thereto
Police Station: CBI/BS&FC/New Delhi
STATE
THROUGH
CENTRAL BUREAU OF INVESTIGATION,
NEW DELHI
VERUS
NARAYAN DIWAKAR & OTHERS
CBI No. 70/08 Page 1 of 89
State through CBI v. Narayan Diwakar & Ors. (Sri Madhuvana CGHS)
Appearance : Ms. Shashi Vishwakarma, Public Prosecutor
for CBI
Sh. Abhishek Prasad, Advocate, counsel for
Narayan Diwakar (A1), Srichand (A5), Anna
Wankhede (A6) and Balam Singh Aswal (A7)
Sh. Neeraj Verma, Advocate, counsel for
Daya Nand Sharma (A2)
Sh. S.K. Bhatnagar, Advocate, counsel for
Faiz Mohd. (A3), Ram Nath (A4) and P.K.
Thirwani (A8)
ORDER RESERVED ON : 30.11.2015
ORDER PRONOUNCED ON : 14.12.2015
ORDER:-
1. Facts in brief as unfolded from the charge-sheet are as under:-
(i) That in pursuance of the order dated August 2, 2005 passed by Hon'ble High Court in Civil Writ Petition No. 10066/2004, CBI registered an FIR on October 31, 2005.
(ii) It was alleged that Sri Madhuvana CGHS Ltd. (in short Society) was registered in the Registrar Cooperative Societies (in short RCS) on April 22, 1972 vide registration No. 155(H). At that time, there were 16 promoter members of the Society.CBI No. 70/08 Page 2 of 89
State through CBI v. Narayan Diwakar & Ors. (Sri Madhuvana CGHS)
(iii) It was alleged that after its registration, Society did not function in accordance with provisions of Delhi Co-operative Societies Act (in short DCS Act) and Delhi Co-operative Societies Rules (in short Rules). The Society's accounts remained un-audited since its inception and the list of the members was also not approved by the RCS. It was alleged that since the Society was not functional, it was placed under liquidation vide order dated March 21, 1979.
(iv) It was alleged that during the year 2003-2004, Mr. Narayan Diwakar, the then Registrar of Cooperative Societies (A1); Sh. D.N. Sharma, the then Assistant Registrar, North-West Zone, RCS Office (A2); Sh. Faiz Mohd., the then Grade-II/Dealing Assistant, North- West Zone, RCS Office, New Delhi (A3); Sh. Ram Nath, the then Inspector Grade-II, RCS Office, New Delhi (A4); Sh. Srichand, private person (A5); Anna Wankhede, private person (A6); Sh. B. S. Aswal, the then LDC O/o RCS office (A7) and Sh. P. K. Thirwani (A8), Sr. Auditor, Audit Branch, RCS office entered into a criminal conspiracy with the object to revive the aforesaid Society fraudulently on the basis of false and forged documents to cheat the DDA and to commit the offences of criminal misconduct by gross abuse of their official position as public servants, cheating, forgery, use of forged documents as genuine in the matter of said revival and dishonestly forwarded the list of so called members of the said Society to DDA for allotment of land to the Society at subsidized rates for obtaining pecuniary advantage for themselves and /or others.
(v) It was alleged that in pursuance of the said conspiracy, accused Sri Chand (A5) submitted a letter dated November 24, 2003 in CBI No. 70/08 Page 3 of 89 State through CBI v. Narayan Diwakar & Ors. (Sri Madhuvana CGHS) the office of Assistant Registrar, North-West Zone, RCS Office, New Delhi. The said letter was purportedly signed by Sh. H.S. Arora being the Secretary of the Society. In the said letter, a request was made to withdraw the winding up order as it was fraudulently and dishonestly represented that all the short-comings, on the basis of which the society was ordered to wind up, have been removed. Alongwith the said letter, a false and forged letter dated January 11, 1979 was also enclosed, which was relating to the change of address of the Society from 19/3, Asaf Ali Road to C-26, Shakti Apartment Plot No.5, Sector-9, Rohini, Delhi.
(vi) It was alleged that the aforesaid letter dated January 11, 1979 was purportedly issued under the signature of Sh. Kamal Kishore Gupta, so called Secretary of the Society and it was addressed to Sh. H. C. Joshi, the then AR (Housing), who had already been transferred from RCS Office in 1978 itself.
(vii) It was further alleged that alongwith the letter dated November 24, 2003, A5 also enclosed the Registration Certificate and copies of bye-laws of Society purportedly issued under the signature of Sh. Ganpat Ram Matta, Assistant Registrar (Housing). However, during investigation the said documents were found false and forged as Sh. Ganpat Ram Matta denied having his signature on the said documents.
(viii) It was alleged that the letter dated November 24, 2003 was registered by Sh. Faiz Mohd. (A3) vide diary No. 4361 dated November 24, 2003 and thereafter, he put up a note before Sh. D.N. CBI No. 70/08 Page 4 of 89 State through CBI v. Narayan Diwakar & Ors. (Sri Madhuvana CGHS) Sharma (A2). It was alleged that A3 reported in his note that original file of the Society was not traceable and recommended for issuance of a circular/letter to all concerned zones/branches of RCS to make efforts to trace out the file. He also recited that Society was registered on April 22, 1972 and it was placed under liquidation on March 21, 1979. The said note was endorsed by A2 on November 27, 2003 and it was sent to RCS (A1) for approval, who approved he same on November 28, 2003. Thereafter, a circular was issued on December 3, 2003 under the signature of A2.
(ix) It was alleged that on December 16, 2003, A3 again put up a note recommending that the file of the Society may be reconstructed on the basis of information furnished by the Society and also recommended that Shri Ramnath (A4) may be deputed to conduct an inspection of the Society under section 54 of DCS Act. The said note was dishonestly endorsed by Sh. D.N. Sharma (A2) on December 16, 2003 and approved by Sh. Narayan Diwakar (A1) on December 17, 2003.
(x) It was alleged that at the time of above recommendation and approval, there was no document in the RCS office to independently verify as to whether any society by the name of Sri Madhuvana CGHS Ltd. had ever been existed or registered in RCS office. It was alleged that under these circumstances, the above accused persons namely Sh. Narayan Diwakar (A1), D N Sharma (A2) and Faiz Mohd. (A3) were required to consider the claim of the purported society members with utmost caution and to verify the registration and winding up details of the society by making a reference CBI No. 70/08 Page 5 of 89 State through CBI v. Narayan Diwakar & Ors. (Sri Madhuvana CGHS) to the Delhi State Cooperative Bank, Liquidator, Executive Officer (Cooperative), DDA etc. to whom the copies of the winding up order was purportedly sent. However, they did not do so and in pursuance of the criminal conspiracy, A4 was appointed to conduct inspection of the society.
(xi) It was further alleged that A1 and A2 also dishonesty omitted to take any step about the missing file of the society. Even no police complaint was lodged by RCS officials in this regard. It was alleged that A1 dishonesty ignored the liquidation order deliberately and approved the reconstruction of the file. It was alleged that in furtherance of the aforesaid criminal conspiracy, A4 abused his official position and submitted a false inspection report regarding verification of registered office of the society at C-26, Shakti Apartment, Plot no. 5, Sector 9, Rohini, New Delhi. He also falsely reported that he met with Sh. H.S. Arora, Secretary of the Society who produced all relevant records. A4 also falsely reported that there were 120 members in the society and the list of members was not approved by RCS office. It was alleged that he also falsely mentioned in his report that the registered office of the Society was shifted from 19/3, Asaf Ali Road, New Delhi to C-26, Shakti Apartment, Plot no. 5, Sector 9 ,Rohini, New Delhi. Besides that he also confirmed the election of Managing Committee purportedly held on November 23, 2013 and further confirmed that the membership register was complete in all respects. It was alleged that the accounts of the society were un-audited since registration and the society has prepared to up-to-date accounts i.e. March 31, 2003 and further mentioned that as per the proceeding register, the last meeting of the society was held on November 24, 2004. He further confirmed that the society records CBI No. 70/08 Page 6 of 89 State through CBI v. Narayan Diwakar & Ors. (Sri Madhuvana CGHS) were found in the safe custody of Shri H.S Arora. He recited in his report that since the Society was not functioning since long, it was wound up vide order dated March 21, 1979. Accused Ram Nath (A4) had also mentioned the name of office bearers who were elected in the Special General Body Meeting purportedly held on November 23, 2003. As per his report Smt. Seema Aggarwal and Sh. K. C. Gupta were elected as President & Vice President whereas Sh. H. S. Arora, R. K. Aggarwal and Smt. Gurpreet Kaur were elected as Secretary, Treasurer and M.C. Member respectively.
(xii) It was further alleged that during investigation it was revealed that the said inspection report of A4 was a false document and he did not visit the Society premises. It was alleged that the original registered office of the Society i.e. 19/3, Asaf Ali Road, New Delhi was found non-existence. Though the changed registered address of the Society i.e. C-26, Shakti Apartment, Sec-9, Rohini, Delhi was found in existence and the same was found owned by Sh. H.S. Arora, but he denied that the said premise was over being used as registered office of the society. It was further alleged that except Smt. Seema Aggarwal and Sh. H.S Arora, all other elected Management Committee members were not found at their respective addresses. Even Sh. H.S. Arora and Smt. Seema Aggarwal stated that they had no concern with the said Society and never contested in any such election.
(xiii) It was alleged that Faiz Mohd. (A3), fraudulently took the aforesaid false and fabricated report and put up a note on the basis of said false report with a recommendation to reconstruct the file. He CBI No. 70/08 Page 7 of 89 State through CBI v. Narayan Diwakar & Ors. (Sri Madhuvana CGHS) also recorded that the Secretary of the society i.e. Sh. H. S. Arora attended the office on January 2, 2004 and submitted the copies of records including unaudited accounts from July 1, 1971 to March 31, 2003, Managing Committee proceedings dated October 19, 2003, agenda notice dated October 20, 2003, Under Postal Certificate as service proof of agenda notice dated October 20, 2003, proceeding of General Body Meeting dated November 23, 2003, nomination forms of elected members, Managing Committee proceedings dated November 24, 2003.
(xiv) It was alleged that vide his note, A3 requested the competent authority to consider the revival of the Society u/s 63(3) of DCS Act, 1972 and to approve the freeze strength of 120 members for allotment of land by DDA.
(xv) It was alleged that the same was dishonesty endorsed by A2 and the file was sent to the Reader to the RCS. The Reader recommended issuance of a notice for appearance of President/Secretary of the society in the court of RCS on February 26, 2004, which was approved by A1. The notice was issued by Shri Narendra Khatri, Reader to RCS on January 12, 2004 which was received by A5 personally on behalf of the society.
(xvi) It was alleged that though the date was given for the appearance of President and Secretary of Society on February 26, 2004, yet A1 in furtherance of the criminal conspiracy dishonesty and fraudulently called for the file of the society on January 13, 2004 and he CBI No. 70/08 Page 8 of 89 State through CBI v. Narayan Diwakar & Ors. (Sri Madhuvana CGHS) further ordered A2 to conduct physical verification of the members at random as well as spot verification and submit a report before the next date of hearing i.e. February 26, 2004.
(xvii) It was further alleged that A2 in furtherance of the criminal conspiracy issued a letter dated January 16, 2004 to the President/Secretary of the Society directing them to appear on January 25, 2004 along with original record of the Society. The said letter was delivered to A5. It was alleged that on the same day i.e. January 16, 2004, A2 directed A3 to conduct physical verification of members at random.
(xviii) It was alleged that A3 neither conducted any physical verification of the members at random nor spot verification of the society members. However, to make it appear that such a verification was actually conducted, Sh. Faiz Mohd submitted a bogus/fake verification report on January 22, 2004 stating that he had conducted physical verification of 12 members of the society and he had also obtained certificates regarding their bonafide membership in the society as well as copies of their respective Ration Cards. It was alleged that during investigation only 8 members could be traced out at the address mentioned in report but these 8 members denied of having any concerned with the said Society. They also denied of giving any such certificates/ration cards to A3 and further stated that A3 had never visited at their residence for any verification. It was alleged that remaining 4 members could not be traced out at the given address.
CBI No. 70/08 Page 9 of 89State through CBI v. Narayan Diwakar & Ors. (Sri Madhuvana CGHS) (xix) It was alleged that during investigation it was revealed that the aforesaid certificates were prepared and forged by A6, who was an employee of A5 and this fact has been proved by handwriting expert (GEQD).
(xx) It was further alleged that on the basis of his false report dated January 22, 2004, A3 prepared a detailed note dated January 23 2004, stating that he had conducted the physical verification of the Society and its registered office and further recited that inspection of the Society was conducted by A4 u/s 54 of DCS Act, 1972. In his note, he recommended for revival of Society and further recommended to approve the list of 120 members of the Society for allotment of land. It was further alleged that the said note was seen by A2 who recorded that the accounts of the Society containing final list of 120 members had been examined and got verified. It was alleged that A2 dishonestly endorsed the recommendations of A3 for revival of the society and forwarded the freeze list of 120 members to DDA for allotment of land.
(xxi) It was alleged that A1 had earlier fixed the date of hearing on February 26, 2004, but in a malafide manner/intention, he suo-moto heard the matter on February 19, 2004 instead of February 26, 2004 and reserved the case for orders on February 19, 2004.
(xxii) It was alleged that in furtherance of the criminal conspiracy A1 passed the order for revival of the society on March 01, 2004 stating therein that Smt. Rashmi Gulati, Advocated appeared before him and represented the case of the Society. In his order, A1 CBI No. 70/08 Page 10 of 89 State through CBI v. Narayan Diwakar & Ors. (Sri Madhuvana CGHS) cancelled the winding up order dated March 21, 1979 and revived the society with immediate effect subject to the condition that the pending audit and election of Management Committee shall be got completed within two months time. A1 appointed B. S. Aswal, Grade IV to act as an Election officer to conduct the election of the society.
(xiii) It was alleged that Smt. Rashmi Gulati was engaged by A5 and he provided the requisite documents to her. It was also alleged that Smt. Rashmi Gulati received her professional charges from A5.
(xxiv) It was further alleged that A2 dishonestly had forwarded the name of the Society to AR (Policy) alongwith the approved list of 120 members with a request to forward the list to DDA for allotment of land despite the fact that election and audit of the society was still pending.
(xxv) It was alleged that Sh. Yogiraj AR(Policy) forwarded the name of the society alongwith the approved list of 120 members of the society to DDA for allotment of the land.
(xxvi) It was alleged that though Sh. B. S. Aswal (A7) did not conduct any election, but despite that he submitted a false and bogus report showing that he had conducted the election on April 4, 2004. In his report, he mentioned the presence of 59 members. However, during investigation it was revealed that most of the members were either non- existant or they denied of participating in any such election. A7 submitted his proceeding on April 16, 2004 along with the list of CBI No. 70/08 Page 11 of 89 State through CBI v. Narayan Diwakar & Ors. (Sri Madhuvana CGHS) contested candidates namely Smt. Seema Aggarwal for the post of President, Sh. K. C. Gupta for the post of Vice President, Sh. H. S. Arora, R. K. Aggarwal and Smt. Gurmeet Kaur for the post of members of the Managing Committee. It was alleged that by submitting the false election report, A7 also facilitated the revival of the Society. As already stated that except Smt. Seema Aggarwal and Sh. H. S. Arora, all other members were found non-existant and they denied of participating in any such election.
(xxvii) It was alleged that Sh. P. K. Thirwani (A8) was appointed as Auditor to conduct the audit of the society by Sh. D. N. Sharma, AR, Audit. It was alleged that A8 had submitted a false and fictitious audit report for the period 1971-1972 to 2002-2003 purportedly conducted by him during the period March 5, 2004 to March 8, 2003. It was alleged that in accordance with the provisions of DCS Rules, 1971, A8 was requited to visit the premises of Society for conducting the said audit but he did not visit at any such premises. Even during audit, he did not check that the society was having any bank account in Delhi State Cooperative, which is mandatory as per DCS Act and Rules. Even A8 did not ensure the presence of Society President/Secretary/Treasurer during the course of aforesaid audit and obtained the false and forged signature of President Smt. Seema Aggarwal, Sh. H.S. Arora and Treasure Sh. R. K. Aggarwal on the brief summary as well as on the balance-sheet and other documents to show that the above said persons were present during audit. As already stated that Sh. R. K. Aggarwal was found non-existant at the given address whereas Smt. Seema Aggarwal and H.S. Arora denied their signature. It was alleged that the said persons were required to be signed in the presence of CBI No. 70/08 Page 12 of 89 State through CBI v. Narayan Diwakar & Ors. (Sri Madhuvana CGHS) auditor, which shows that A8 was also involved in the said conspiracy.
(xxiv) It was alleged that false and forged account of the society were got prepared by A5 from Sh. Neeraj Kumar, Chartered Account through his employee Mohd. Anees Khan. It was alleged that A5 had supplied all the documents to him. It was further alleged that A5 had also paid professional charges to Sh. Neeraj Kumar.
(xxv) It was further alleged that 120 non-judicial stamp papers, which were used for swearing of false and forged affidavits of members were procured by A6 in the name of alleged members from Sh. Ravi Robinson who purchased the same from Sh. P.R. Bhatia, stamp vendor. It was alleged that the said affidavits were notarized by Sh. K. K. Kaul, Notary Public on the same day i.e. November 24, 2003. But he did not enter the particulars of the members of the Society in the register maintained by him. It was alleged that three stamp papers were purchased in the name of Taj CGHS but same had been used to prepare the affidavits of Smt. Seema Aggarwal and Sh. H. S. Arora in the revival of the society. It was alleged that Sri Chand had also been charge-sheeted for the fraudulent revival of Taj CGHS.
(xxvi) It was alleged that CPU computers, hard-disk and printers were seized from the residence of A5 and same had been sent to GEQD Shimla along with relevant documents for examination and opinion.
(xxvii) It was alleged that A1 to A4 and A7 and A8 abused CBI No. 70/08 Page 13 of 89 State through CBI v. Narayan Diwakar & Ors. (Sri Madhuvana CGHS) their official position as public servants by corrupt and illegal means in criminal conspiracy with A5 and A6, who knowingly used forged documents as genuine and A1 the then RCS illegally revived the Society and approved the freeze list of 120 members of the Society and dishonestly induced DDA to allot land in favour of the Society. It was further alleged that A1 to A4, A7 and A8 also attempted to commit the offence of criminal misconduct by corrupt or illegal means by abusing their official position as public servant and facilitated the revival and approval of the freeze list of the Society for allotment of land by DDA.
(xxviii) It was alleged that Handwriting Expert confirmed the forgery committed by A6 on the affidavits and certificates and certain other documents that were submitted for revival of the society. Besides that Handwriting Expert also confirmed the signature/writing of A1 to A4, A7 and A8.
(xxix) With these allegations, CBI filed the chargesheet against the accused persons for the offence punishable under Section 120B read with 420/468/471 IPC and Section 13(2) read with Section 13(1)(d) of PC Act, 1988 and substantive offence under Section 15 read with Section 13(1)(d) of PC Act 1988 against A1 to A4, A7 and A8 and substantive offence under Section 420/511/468/471 IPC against A6 and under Section 420/511/471 IPC against A5.
(xxx) It was alleged that since A4, A7 and A8 were in service at the time of filing chargesheet, sanction under Section 19(1) of PC Act was obtained from the competent authority to prosecute them. It was further alleged that since A1, A2 and A3 had retired from the CBI No. 70/08 Page 14 of 89 State through CBI v. Narayan Diwakar & Ors. (Sri Madhuvana CGHS) government service, no sanction was obtained qua them under Section 19 of PC Act.
2. Learned Public Prosecutor vehemently contended that A1 was posted as Registrar in Cooperative Societies at the relevant time and he entered into a criminal conspiracy with the accused persons, object of which was to revive the Society in question fraudulently and to approve the list of fake members and sent the same to DDA for allotment of land. It was vigorously argued that in furtherance of the said conspiracy, A5 had moved an application for revival of the society on November 24, 2003. It was contended that when A1 approved the recommendation of his subordinate staff for revival of the society, there was no document in the office of RCS to independently verify as to whether any such society was in existence in the record of RCS or not. It was further argued that in such a condition, A1 being the RCS was supposed to act with utmost caution and he should verify the registration and winding up detail of the society by making reference to Delhi State Cooperative Bank, Liquidator, Executive Officer (cooperative) and DDA etc. to whom the copies of the winding up order was purportedly sent. It was urged that since A1 was in conspiracy, he had not taken any such step; rather he preferred to act on the basis of false and forged documents produced by A5 and recommendations made by his subordinate staff fraudulently with dishonest intention. It was further contended that even no police complaint was lodged regarding the missing of the file, which further shows that he was in conspiracy with the accused persons.
(i) It was further contended that the Society was registered CBI No. 70/08 Page 15 of 89 State through CBI v. Narayan Diwakar & Ors. (Sri Madhuvana CGHS) on April 22, 1972, but A4 in his report recited that the audit of the society was pending since July 01, 1971. It was argued that since Society was not in existence in July, 1971, question of pending of audit on the said date does not arise. But despite that A1 did not deem it appropriate to raise any objection. It was further argued that it was A1, who proved the name of Ramnath (A4), which further shows that A1 was acting in furtherance of some conspiracy.
(ii) It was further astutely contended that PW7 in his testimony deposed regarding the alleged conspiracy by stating that there was some conspiracy between private persons and RCS officials, which indicates that A1 was also involved. It was further urged that PW14 in his statement informed the CBI that only A1 can tell whether Rule 105 of DCS was considered at the time of revival of the society or not, which further indicates that A1 was involved in the conspiracy. It was further contended that PW16 in his statement deposed that no President/Secretary of the society was present at the time of court proceedings conducted by A1 on February 19, 2004, which further indicates that A1 was involved in the conspiracy. It was submitted that the testimony of PW16 was corroborated by PW17.
(iii) It was further perspicaciously contended that initially A1 had listed the matter for February 26, 2004, but he fraudulently called for the file of the Society on January 13, 2004 and thereafter on February 19, 2004 and reserved the matter for order. It was argued that since A1 called for the file suo-moto on January 13, 2004 and February 19, 2004, it indicates that he was very much involved in the conspiracy.
CBI No. 70/08 Page 16 of 89State through CBI v. Narayan Diwakar & Ors. (Sri Madhuvana CGHS)
3. Per contra, learned counsel appearing for A1 refuted the said contentions by sagaciously arguing that the main allegation against A1 is that he had passed revival order dishonestly and without application of mind. It was contended that but there is no substance in the said allegation as Section 63 (3) of DCS Act empowers the RCS to cancel the winding up order at any time whereas under Rule 105 of DCS Rules, winding up proceeding is terminated after one year from the date of issuance of winding up order. It was further contended that since in the instant matter, winding up order was passed on March 21, 1979, winding up order was required to be terminated in terms of Rule 105 of DCS. It was sagaciously argued that since in the present matter, proper application was moved by the Society and counsel i.e. PW9 appeared on behalf of the Society before A1, thus it cannot be said that A1 had acted dishonestly or he passed revival order in furtherance of any conspiracy. It was further contended that whenever a note was put up before A1, there was no adverse remark against the Society, thus it cannot be said that A1 had acted fraudulently. It was further contended that there is no iota of evidence that A1 had taken any monetary benefit or he had taken any other favour from the accused persons in lieu of passing of the revival order.
(i) It was further perspicaciously contended that since A1 was working as public servant at the time of passing of revival order, he is entitled for the protection provided under Section 197 Cr. P.C. It was urged that since CBI had not obtained any sanction under Section 197 Cr. P.C, accused cannot be charged for the penal offences. It was further contended that there is no iota of evidence to make out a prima- facie case against the accused for the offence punishable under CBI No. 70/08 Page 17 of 89 State through CBI v. Narayan Diwakar & Ors. (Sri Madhuvana CGHS) Section 13 (2) read with Section 13 (1) (d) of Prevention of Corruption Act.
4. Learned counsel appearing for CBI sagaciously contended that A4 had submitted a false inspection report regarding the verification of registered office of the Society and reported that all relevant documents regarding the Society were produced by H.S. Arora, Secretary. He also fraudulently confirmed the election of the Managing Committee purportedly held on November 23, 2003 whereas no such election was held. He also confirmed that office bearers were elected in the said body meeting whereas Seema Aggarwal and H.S. Arora, who were purportedly elected as President and Secretary in the said election, stated before the CBI that they had no concern with the said Society and they had never contested any election; nor they had participated in the said meeting. It was argued that the other office bearers were not even found at the given addresses. It was submitted that this clearly shows that A4 was acting in furtherance of the conspiracy and in pursuance to the said conspiracy, he submitted the false and bogus report in favour of Society, thus, it was urged that besides the charges mentioned in the charge-sheet, A4 is also liable for the offence punishable under Section 167 IPC.
(i) It was further contended that A3 had submitted a false physical inspection report wherein he confirmed that he had conducted physical verification of 12 members of the society. Though during investigation, only 8 members were found in existence, but they denied that any such verification was conducted by A3 and they also stated that they had never taken any membership of the said Society and they CBI No. 70/08 Page 18 of 89 State through CBI v. Narayan Diwakar & Ors. (Sri Madhuvana CGHS) had no concern with the said Society. It was further submitted that even remaining 4 members were not found in existence at the given addresses. It was further argued that since A3 had submitted a false inspection report, it clearly shows that he did so as he was in conspiracy with other accused persons in order to facilitate the Society in its revival and getting land at concession rate from DDA. It was further contended that since A3 had submitted a false and bogus report, he is also liable for the offence punishable under Section 167 IPC besides the charges levelled by CBI in the charge-sheet.
5. Learned counsel appearing for A3 and A4 countered the said contentions by arguing that there is no iota of evidence to prove that they were in conspiracy with the accused persons. It was further contended that they were not involved in the revival of the said society. It was further argued that since both the accused persons were acting in discharge of their official duties, they are entitled for the protection provided under Section 197 Cr. P.C. It was argued that since CBI had not obtained any sanction under Section 197 Cr. P.C, no charge can be framed against them for the penal offences. It was further contended that since there is no iota of evidence to prove that A3 and A4 had taken any monetary benefit from the accused persons, they cannot be held liable for the offence punishable under Section 13 (2) read with Section 13 (1) (d) of Prevention of Corruption Act.
6. Learned counsel appearing for CBI sagaciously contended that A7 was appointed as election officer and in his report submitted that the election was got conducted on April 04, 2004 and in the said election 59 members participated. However, during CBI No. 70/08 Page 19 of 89 State through CBI v. Narayan Diwakar & Ors. (Sri Madhuvana CGHS) investigation, it was revealed that either most of the members were not found in existence at the given addresses or they denied of their participation in the said election. A7 in his report further confirmed that in the said election, Seema Aggarwal and K.C. Gupta were elected for the post of President, Vice-President respectively whereas H.S. Arora, R.K. Aggarwal, Gurpreet Kaur were elected for the post of Members of the Managing Committee. However, during investigation, only Seema Aggarwal and H.S. Arora could be traced out at the given address and they confirmed that they had no concern with the said Society and they had never contested any such election whereas other 4 members were not even traced out at the given addresses. It was further contended that since A7 had submitted a false report, this clearly shows that he was one of the members of the conspiracy and he submitted the false report in order to facilitate the Society in its revival and getting land from DDA at concessional rate, thus he is also liable for the offence punishable under Section 167 IPC besides the other charges.
7. Per contra, learned counsel appearing for A7 refuted the said contentions by arguing that his report had no impact on the revival of the Society because revival order had already been passed by A1. It was further contended that moreover there is no iota of evidence on record to show that he had gained any personal benefit from any of the accused persons.
8. Learned counsel appearing for CBI contended that A8 was appointed as auditor of the Society. He had submitted a false report that he had conducted the audit of the Society for the period 1971-72 to 2002-03 during the period March 05, 2004 to March 08, CBI No. 70/08 Page 20 of 89 State through CBI v. Narayan Diwakar & Ors. (Sri Madhuvana CGHS) 2004. It was sagaciously contended that as per DCS Rules, auditor was required to visit the registered office of the society to conduct the audit, but he did not visit any such office. It was contended that as per the documents submitted by A5, registered office of the Society was at C-26, Shakti Apartment, Plot No. 5, Sector-9, Rohini, Delhi, which belonged to H.S. Arora, but H.S. Arora had stated before the CBI that he had no concern with the said Society and his premises was never used as registered office of the Society, which prima-facie proves that A8 had not visited the registered office of the Society and he conducted the audit without visiting the registered office. It was further astutely contended that Society was registered only on April 22, 1972, thus there was no occasion for A8 to audit the accounts of the society prior to its registration, but despite that he conducted the audit of the society even for the period prior to its registration, which further shows that he had submitted a false report. It was further argued that even during audit, A8 had not checked whether society was having any account in Delhi State Cooperative Bank, which is mandatory in terms of DCS Act and Rules. Besides that on the summary report and balance-sheet, Seema Aggarwal, H. S. Arora and R.K. Aggarwal being the President, Secretary and Treasurer signed the said documents whereas Seema Aggarwal and H.S. Arora categorically deposed that they had no concern with the said Society and R.K. Aggarwal was not traced out at the given address, which prima-facie proves that A8 had submitted a false report. It was further contended that since A8 submitted false report, this prima-facie proves that he was in conspiracy with the accused persons, thus he is also liable for the charges mentioned in the charge-sheet. Besides that he is also liable for the offence punishable under Section 167 IPC.
CBI No. 70/08 Page 21 of 89State through CBI v. Narayan Diwakar & Ors. (Sri Madhuvana CGHS)
9. Per contra, learned counsel appearing for A8 contended that there is no nexus between audit report and revival of the Society as the revival order was passed much prior to the audit report. It was further contended that there is no evidence on record to show that A8 had violated any mandatory provision of DCS while conducting the audit. It was further contended that there is no evidence on record that A8 had obtained the signature of President, Secretary and Treasure of the society on the summary report as well as on the balance-sheet, thus there is no substance in the contentions of CBI that he was involved in the conspiracy. It was further contended that even no departmental action was taken against the accused for submitting the said report. It was further contended that since A8 was working as public servant and he conducted the audit in discharge of his official duty, he is entitled for the protection available under Section 197 Cr. P.C. It was further argued that since CBI had not obtained any sanction under Section 197 Cr. P.C, A8 cannot be held liable for the penal offences. It was further argued that since there is no iota of evidence to prove prima-facie that he had taken any monetary benefit in submitting the said report, he cannot be held liable for the offence punishable under Section 13 (2) read with Section 13 (1) (d) of Prevention of Corruption Act.
10. Learned counsel appearing for CBI contended that A2 was working as Assistant Registrar at the relevant time and since he was in conspiracy with the accused persons, he did not raise any objection on the notes/recommendation made by his subordinate staff. Similarly, he had not raised any objection when A5 collected the letter dated January 16, 2004 on behalf of Society whereas A2 directed the President/Secretary of the Society to appear on January 25, 2004. Due CBI No. 70/08 Page 22 of 89 State through CBI v. Narayan Diwakar & Ors. (Sri Madhuvana CGHS) to said reason, he also appointed A3 to conduct physical verification of the members at random.
11. Per contra, learned counsel appearing for A2 contended that there is no iota of evidence to prove that A2 was involved in any conspiracy. It was submitted that mere fact that he had dealt with the file in question being the AR is not sufficient to prove prima-facie that he was involved in the conspiracy. It was further contended that since A2 dealt with the file in question in discharge of his official duty, A2 is also entitled for the protection available under Section 197 Cr. P.C. But since, CBI failed to obtain any such sanction, A2 cannot be held liable for the penal offences. It was further submitted that there is no iota of evidence that he had obtained any gain from the accused persons while dealing with the file in question.
12. Learned counsel appearing for CBI contended that A5 and A6 are the master mind behind the entire conspiracy. A6 is an employee of A5. It was argued that A5 had moved an application dated November 24, 2003 for revival of the society along with the forged document. Besides that he also collected the letter dated January 16, 2004 from RCS. In addition to that A5 also engaged an advocate Ms. Rashmi Gulati (PW9), who appeared on behalf of the society before RCS and he had paid profession charges to PW9. A5 also engaged Mr. Neeraj Kumar, Chartered Accountant to prepare the forged account of the society and he had also paid profession charges of ` 6000/- to Mr. Neeraj Kumar, Chartered Accountant. It was contended that from the above, it can safely be culled out that A5 had hatched the conspiracy, thus he is involved for all the offences mentioned in the charge-sheet.
CBI No. 70/08 Page 23 of 89State through CBI v. Narayan Diwakar & Ors. (Sri Madhuvana CGHS)
(i) It was further contended that A6 at the instance of A5 forged the signature of numerous persons such as Seema Aggarwal, Magan Kamal, K.C. Gupta, Anurag Gupta, Ravi Shankar Gupta, Satish Kumar, Dharampal, Rajender Prabhakar, Sunil Kumar, Kamal Kishore Gupta, Satpal Suri and H.S. Arora and this fact has been proved by GEQD in its report. It was contended that from the said forgery, it can safely be culled out that A6 was involved in the said conspiracy.
13. Per contra, learned counsel appearing for A5 and A6 contended that both have been falsely implicated in this case and there is no evidence on record to prove that they had gained any benefit from anyone.
14. I have heard rival submissions advanced by counsel for both the parties, perused the record carefully and gave by thoughtful consideration to their contentions.
15. Before dealing with the contentions raised by counsel for both the parties, I prefer to refer the principles laid down by the Apex Court on the point of framing of charge in Prafulla Kumar Samal (1979) 3 SCC 4 and reiterated by the High Court of Delhi in Aruna Chadha versus State 2013 (6) LRC 306 (Delhi). The principles are as under:
"(1) That the Judge while considering the question of framing the charges under Section 227 of the Code has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out.CBI No. 70/08 Page 24 of 89
State through CBI v. Narayan Diwakar & Ors. (Sri Madhuvana CGHS) (2)Where the materials placed before the court disclose grave suspicion against the accused which has not been properly explained the court will be fully justified in framing a charge and proceeding with the trial.
(3)The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. By and large however if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused.
(4)That in exercising his jurisdiction under Section 227 of the Code the Judge which under the present Code is a senior and experienced court cannot act merely as a post office or a mouthpiece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the court, any basic infirmities appearing in the case and so on. This however does not mean that the Judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial."
(emphasis supplied)
16. In Aruna Chadha case (supra) it was held:-
"33. Thus, on the basis of the judgments relied upon by the parties and noting the language used in Sections 227 and 228 of the Code it can very well be stated that if on the basis of material placed before the Court the commission of offence appears to be probable, the Court shall be duty bound to frame the charge against the accused. To put it differently, if two views are possible and there CBI No. 70/08 Page 25 of 89 State through CBI v. Narayan Diwakar & Ors. (Sri Madhuvana CGHS) is strong suspicion against the accused again the Court would be justified in framing the charge. As against this, if there is only a mere suspicion and two views are possible, the Court on the basis of mere suspicion should not proceed to frame the charge against an accused and should in the circumstances discharge him without making him undergo the ordeal of the trial.
(emphasis supplied)
17. Thus, it becomes clear that a charge will be framed only if prosecution succeeds either to show that collected materials are sufficient to make out a prima-facie that offence has been committed or there is strong suspicion against the accused persons. But if prosecution enables to show mere suspicion against the accused, accused persons shall be entitled for discharge as prayed by them.
18. As per charge-sheet, initially Seema Aggarwal, K.C. Gupta and H.S. Arora were elected as President, Vice-President and Secretary respectively whereas R.K. Aggarwal, Gurpreet Kaur were elected as Treasurer and Managing Committee Member respectively and this fact was confirmed by Ramnath (A4) in his report.
(i) As per charge-sheet, when Balam Singh Aswal (A7) was appointed as election officer to conduct the election of the Society, he in his report confirmed that fresh election was held on April 04, 2004 in which 59 members of the Society elected Ms. Seema Aggarwal and K.C. Gupta for the post of President and Vice-President respectively whereas H.S. Arora, R.K. Aggarwal and Gurpreet Kaur were elected for the post of member of Managing Committee respectively.
CBI No. 70/08 Page 26 of 89State through CBI v. Narayan Diwakar & Ors. (Sri Madhuvana CGHS)
(ii) Thus, from the charge-sheet, it can safely be culled out that at the time of seeking revival of the society, it was represented that the above persons were elected office bearers of the said Society. However, during investigation, only 2 persons namely Seema Aggarwal and H.S. Arora could be located at the address mentioned in the record of Society; rest of office bearers even could not be located at the given addresses. During investigation, CBI interrogated both the traced persons namely Seema Aggarwal and H.S. Arora. Both in their statement testified before the CBI that they had never taken any membership in the Society in question at any point of time and they had never contested any election and they had never held any post in the Managing Committee of the said Society. They also categorically stated that they had not signed any document on behalf of the said Society and further testified that probably someone had forged their signatures. From the statement of above both the witnesses, it becomes clear that neither Ms. Seema Aggarwal nor H.S. Arora had any concern with the Society in question and they had never held any post in the said Society; nor they signed any document on behalf of the said Society.
Finding qua Faiz Mohd. (A3) and Ramnath (A4):-
19. As per charge-sheet, Ramnath (A4) was appointed to conduct the inspection of the Society vide order dated December 30, 2003, accordingly, he submitted his report dated January 01, 2004. In his report, he certified that he had inspected the registered office of the Society i.e. C-26, Shakti Apartment, Plot No. 5, Sector-9, Rohini, Delhi where Mr. H.S. Arora, Secretary of the Society met him and produced all relevant record of the Society and intimated him that there were 120 CBI No. 70/08 Page 27 of 89 State through CBI v. Narayan Diwakar & Ors. (Sri Madhuvana CGHS) members in the Society, but the list of the members had not been approved by RCS till date. He also certified that membership register of the society was complete in all respect. Along with the report, he filed numerous documents stating that the same were produced by H.S. Arora.
(i) As already stated that H.S. Arora in his statement testified that he had no concern with the said Society. Neither he had taken any membership nor he had held any post in the Society. He also denied the visit of Ramnath at his residence i.e. C-26, Shakti Apartment, Plot No. 5, Sector-9, Rohini, Delhi and further testified that his flat was never used as registered office of the said society. Thus, from the statement of H.S. Arora, it can safely be culled out prima-facie that there are sufficient material on record to hold prima-facie that Ramnath (A4) had submitted a false inspection report in favour of the Society.
20. As per charge-sheet, Faiz Mohd. (A3) was deputed to physically verify 10% of the total members of the Society, accordingly, he conducted the verification and submitted his report dated January 22, 2004. In his report, he certified that he had visited the Society and physically verified the 10% of total members of the Society i.e. 12 members out of 120 members on January 17, 2004, January 18, 2004 and January 19, 2004. He further certified that the confirmation of such members along with their residence proof was also taken and he submitted the same along with his report. As per his report, he had physically verified the membership of K.C. Gupta, Magan Kamal, Seema Aggarwal, Anurag Gupta, Ravi Shankar Gupta, Satish Kumar, Dharmapal, Rajender Prabhakar, Sunil Kumar, Kamal Kishore Gupta, CBI No. 70/08 Page 28 of 89 State through CBI v. Narayan Diwakar & Ors. (Sri Madhuvana CGHS) Satpal Suri and H.S. Arora. However, during investigation, only 8 members could be traced out, but they testified before the CBI that they had never taken any membership in the Society in question. Remaining 4 persons could not be traced out. This prima-facie shows that accused Faiz Mohd. had submitted a false and bogus verification report in favour of the Society.
Finding qua Balam Singh Aswal (A7):-
21. As per charge-sheet, A7 was appointed as Election Officer vide order dated March 01, 2004, consequently, he submitted his report on April 16, 2004. As per his report, he had issued a notice dated March 04, 2004 for holding election for the post of President, Vice-President and 3 post of Managing Committee Members. He further testified that the meeting was called for on April 04, 2004 wherein election was held and result was declared on the very same day. As per his report, Seema Aggarwal and K.C. Gupta were elected as President and Vice-President respectively while Gurpreet Kaur, H.S. Arora and R.K. Aggarwal were elected as Managing Committee Member. As already discussed that Seema Aggarwal and H.S. Arora in their respective statement testified before the CBI that they had no concern with the Society and neither they had contested any election nor held any post in the said Society. The remaining 3 members namely K.C. Gupta, Gurpreet Kaur and R.K. Aggarwal could not be traced out at the given address. This is more than sufficient to hold prima-facie that Balam Singh Aswal (A7) had submitted a false report in favour of the Society.CBI No. 70/08 Page 29 of 89
State through CBI v. Narayan Diwakar & Ors. (Sri Madhuvana CGHS) Finding qua P.K. Thirwani (A8):-
22. As per charge-sheet, P.K. Thirwani (A8) was appointed as auditor vide order dated March 03, 2004, thereafter, he conducted the audit for the period July 01, 1971 to March 31, 2003. As per his report, brief summary report of the Society and other documents were signed by Seema Aggarwal President, K.C. Gupta Secretary and R.K. Aggarwal Treasurer. From the handwriting expert, it becomes clear that the said signatures were forged. As already discussed that Seema Aggarwal and H.S. Arora never held any post in the said society. During investigation, R.K. Aggarwal could not be traced out. This shows that P.K. Thirwani (A8) had not met with any elected representative of the Society during audit, thus onus is shifted upon him to explain who had furnished the documents to him for conducting the audit. As already held that the registered premises i.e. C-26, Shakti Apartment, Plot No. 5, Sector-9, Rohini, Delhi belonged to H.S. Arora and he categorically stated that his premises was never used as registered office of the Society.
(i) It is undisputed fact that as per Rule 84 (3) of DCS Rules, auditor is supposed to conduct the audit at the registered premises of the Society. Since, the said premises belonged to H.S. Arora and he testified that the same was never used as registered office of the Society, onus is shifted upon P.K. Thirwani to explain where he had conducted the audit. Since, the signature of the office bearers of the Society i.e. President, Secretary and Treasurer on the documents filed by P.K. Thirwani along with the report are forged and fabricated, onus is shifted upon him to explain how their signatures appeared on the CBI No. 70/08 Page 30 of 89 State through CBI v. Narayan Diwakar & Ors. (Sri Madhuvana CGHS) documents submitted by him along with the report. To my mind, at this stage, there are sufficient evidence to hold prima-facie that P.K. Thirwani had submitted a false audit report.
(ii) It is undisputed fact that the Society was registered on April 22, 1972, but P.K. Thirwani had conducted the audit of the accounts for the period July 01, 1971. It is not clear what books of accounts he had audited prior to the registration of the Society. This further shows that the report submitted by him is false.
(iii) Admittedly, as per the revival order dated March 01, 2004, Society was revived under the order of A1, but it was subject to the condition that the pending audit shall be got completed within 2 months. In addition to that RCS also appointed A7 as Election Officer to conduct election of the Managing Committee of the Society within 2 month. Thus, from the revival order, it becomes clear that the said order was subject to fulfilment of above conditions. Had the Society not complied with the directions, appropriate action would have been taken against the Society in terms of revival order. Thus I do not find any substance in the contention of the counsel for A7 and A8 that their report had no effect on the revival of the Society. Further, assuming for the sake of arguments that their report had no effect on the revival of the Society, but it does not give any licence to them to submit false and fabricated report in favour of the Society. But both the accused persons i.e. Balam Singh Aswal (A7) and P.K. Thirwani (A8) submitted false report as stated above.
23. From the above discussion, prima-facie it is clear that CBI No. 70/08 Page 31 of 89 State through CBI v. Narayan Diwakar & Ors. (Sri Madhuvana CGHS) A3, A4, A7 and A8 had submitted false reports in favour of the Society while they were holding public office. Being the public servant they were not supposed to submit false and bogus report. Rather, their duty was to submit correct report. Since, they had submitted false reports, it prima-facie shows that they had abused their official position at the time of preparing the reports in favour of the Society with dishonest intention to provide wrongful gain to the Society in the form of revival order and approval of the list of members, which would help the Society in getting land at concessional rate. Thus, to my mind, prima-facie A3, A4, A7 and A8 are liable for the offence punishable under Section 13 (2) read with Section 13 (1) (b) (ii) and (iii) of Prevention of Corruption Act, 1988 and under Section 15 of P.C. Act also.
Finding qua Sri Chand (A5) and Anna Wankhede (A6):-
24. The allegations against the above accused persons are that A5 is the main person, who hatched the criminal conspiracy as he had not only submitted the letter for revival of the Society, but he also arranged/prepared the forged and fabricated documents of the Society in question. Besides that he also engaged Ms. Rashmi Gulati, Advocate, who appeared before the RCS at the time of revival of the Society. In addition to that A5 also collected the documents/order from time to time from the office of RCS. He also engaged Mr. Neeraj Kumar, Chartered Accountant to prepare the report in favour of Society. As per allegations, A6 is an employee of A5 and he had prepared the minutes of the Society. Besides that he also forged the signatures of numerous persons such as Seema Aggarwal, Magan Kamal, K.C. Gupta, Anurag Gupta, Ravi Shankar Gupta, Satish Kumar, Dharampal, Rajender CBI No. 70/08 Page 32 of 89 State through CBI v. Narayan Diwakar & Ors. (Sri Madhuvana CGHS) Prabhakar, Sunil Kumar, Kamal Kishore Gupta, Satpal Suri and H.S. Arora.
(i) Perusal of the statements of witnesses including particularly PW9, PW10, PW16, PW17, PW19, PW27, PW28 and PW29 prima-facie it becomes clear that A5 had not not only prepared/moved the application for revival of the Society, but he also submitted forged and fabricated documents. He also engaged PW9 Rashmi Gulati, Advocate who appeared before RCS to represent the Society at the time of passing of the revival order. He also engaged Mr. Neeraj Kumar, Chartered Accountant, who prepared the report on the basis of documents supplied by A5. Prima-facie, it is also clear that he had collected the orders from time to time from the office of RCS being the consultant of the Society in question.
(ii) Similarly, from the testimony of witnesses particularly from the statement of PW11 to PW13 and PW29, it prima-facie becomes clear that A6 had purchased non-judicial stamp papers which were used for preparation of affidavit of fictitious members. From the statement of PW10, it also appears that A6 was working in DDA, but he was under suspension, thereafter, he joined the office of A5. Prima-facie it also become clear that A6 had prepared the proceedings register of Special General Body Meeting of the Society. Besides that from the report of GEQD, it also prima-facie becomes clear that A6 had forged the signatures of numerous persons such as Seema Aggarwal, Magan Kamal, K.C. Gupta, Anurag Gupta, Ravi Shankar Gupta, Satish Kumar, Dharampal, Rajender Prabhakar, Sunil Kumar, Kamal Kishore Gupta, Satpal Suri and H.S. Arora.
CBI No. 70/08 Page 33 of 89State through CBI v. Narayan Diwakar & Ors. (Sri Madhuvana CGHS)
(iii) From the above discussion, it can safely be culled out that there are more than sufficient evidence on record to hold prima- facie that A5 is the person, who hatched the conspiracy and A6 was his associate and he had not only assisted him in preparing the proceedings of the Society, but also forged the signatures of numerous persons.
Finding qua Narayan Diwakar (A1) and Daya Nand Sharma (A2):-
25. As per charge-sheet, first allegation against A1 is that at the relevant time, A1 was posted as Registrar of the Cooperative Societies whereas A2 was posted as Assistant Registrar in North-West Zone of RCS, New Delhi. The first main allegation against A1 and A2 is that they had recommended and approved a note of A3 wherein he recommended to issue a circular in order to trace out the file of the Society in question and also recommended to reconstruct the file without lodging police complaint. It was alleged that A2 had dishonestly forwarded the note of A3 for issuance of the circular, which was dishonestly approved by A1 being the RCS. It was also alleged that A2 had again approved the note of A3 for reconstruction of the file, which was dishonestly approved by A1.
(i) The second main allegation against A1 and A2 is that they had forwarded and approved the note of A3 despite the fact that there was no document in the office of RCS to verify independently whether any society by the name of Sri Madhuvan Cooperative Group Housing Society Ltd. was ever existed and wound up. It was alleged that in such a scenario A1 and A2 besides the other officials were CBI No. 70/08 Page 34 of 89 State through CBI v. Narayan Diwakar & Ors. (Sri Madhuvana CGHS) supposed to take utmost caution to verify the registration and winding up detail of the society, but they failed to take any precaution.
(ii) The third main allegation is that A2 had dishonestly forwarded the note of A3 wherein A3 recommended to freeze the strengthen of 120 members for allotment of the land.
(iii) The next fourth allegation against A1 and A2 is that though the matter was listed for February 26, 2004, yet A1 dishonestly and fraudulently called for the file on January 13, 2004 and directed A2 to get conducted physical verification of the members at random as well as spot verification and further directed to submit the report prior to February 26, 2004. The next allegation is that A2 in pursuance of the said directions, prepared the letter dated January 16, 2004 and handed over the same to A5 and further directed A3 to conduct physical verification of the members. The next allegation against A2 is that he forwarded the note of A3 wherein he recommended for revival of the Society and also recommended for approval of the list of 120 members of the society for allotment of the land.
(iv) The next allegation against A1 is that he had dishonestly passed the revival order. At last, it was alleged that A2 had dishonestly forwarded the name of Society to AR (Policy) along with the approved list of 120 members with a request to forward the list to the members of the society for allotment of the land despite the fact that election and audit of the society were pending.
26. Now I proceed to deal with the allegations one by one.
CBI No. 70/08 Page 35 of 89State through CBI v. Narayan Diwakar & Ors. (Sri Madhuvana CGHS)
27. Perusal of the society file reveals that dealing clerk had put up a note on November 24, 2003 with the following recommendation:-
"In this connection, it is submitted that the main file of the society is not available with this branch and might have lying with other branch/zone or tied up with other files. If agreed, we may issue circular to all the branches to search the main file of the society and if traced, it may be sent to this zone".
(i) No doubt, the above recommendation was put up before A2 being the AR wherein he forwarded the file to his senior i.e. Joint Registrar with the following note.
"Action as suggested by DA (Dealing Assistant) mark A above may be initiated in this case".
(ii) The said note was approved by the seniors such as Joint Registrar and RCS. Pursuance to the said note, a circular was issued. Since, the file was not traceable in the branch, dealing assistant put up the said note with the recommendation to issue a circular to all the branches and it was forwarded by A2 and approved by other senior officers including RCS. To my mind, the action suggested by dealing assistant and approved by other senior officers was one of the reasonable action to search the missing file. Thus, to my mind, the said action on the part of A1 and A2 does not attract any criminal liability.
CBI No. 70/08 Page 36 of 89State through CBI v. Narayan Diwakar & Ors. (Sri Madhuvana CGHS)
(iii) Since, the file could not be traced out despite issuance of the circular, dealing clerk put up another note with the following recommendation:
"In this connection as approved on page - 1/N a circular was issued to all the branches/zones vide letter dated December 03, 2003 to trace out the main file of the society within a week time, but no reply has been received till date from any branch/zone".
If agreed, we may reconstruct the main file from the record available with the society and appoint Sh. Ramnath, Grade-II as inspecting officer under Section 54 of DCS Act, 1972 to verify/examine the record of the society to bring out the factual position of the society.
(iv) A2 being the AR forwarded the said note to his senior i.e. Joint Registrar for approval. JR sent the file to RCS to approve the note. Finally, on the basis of order passed by the RCS, the file was reconstructed and Ramnath was appointed as inspecting officer.
28. Now question arises whether the said action on the part of A1 and A2 is sufficient to draw any inference that they acted dishonestly.
29. To my mind, their action is not sufficient to draw any inference either of dishonest intention or of any criminal liability because since the file could not be traced out despite issuance of circular, it was one of the reasonable procedures to reconstruct the file. Admittedly, no complaint was lodged with the police about the missing of file, but CBI failed to highlight any provision of DCS Act or Rules, which may CBI No. 70/08 Page 37 of 89 State through CBI v. Narayan Diwakar & Ors. (Sri Madhuvana CGHS) suggest that in case any file is found missing, RCS shall lodge a complaint with the police before passing the order of reconstruction. Moreover, it is pertinent to state that police action is required only where there is apprehension that file had been stolen by someone. Mere fact that the file is not traceable at the relevant point was not sufficient enough for the RCS to lodge a complaint with the police. Thus, to my mind, no inference can be drawn against A1 and A2 mere on the ground that RCS failed to lodge any complaint with the police about the missing of the file.
(i) No doubt, at the time of reconstruction of the file, no letter was sent to Delhi State Cooperative Bank, Liquidator, Executive Officer (Cooperative) and DDA etc. to know about the registration number of the society and winding up proceedings. Admittedly, at the time of submitting the application dated November 24, 2003, it was alleged that Society was registered on April 22, 1972 vide registration number 155 (H) and Society was put up under liquidation vide order dated March 21, 1979. Though the matter was investigated by CBI, but there is nothing in the charge-sheet, which may suggest that the Society was not registered vide above said registration number or that the Society was not placed under liquidation vide order dated March 21, 1979. In other words, it is admitted case of CBI that the Society was registered on April 22, 1972 vide registration number 155 (H) and it was placed under liquidation vide order dated March 21, 1979. In these circumstances, I am of the view that even the said lapse on the part of A1 and A2 is not sufficient to draw any conclusion even prima-facie that they had any dishonest intention when A2 forwarded the noting of A3 for reconstruction of the file and same was approved by A1.
CBI No. 70/08 Page 38 of 89State through CBI v. Narayan Diwakar & Ors. (Sri Madhuvana CGHS)
30. As per society file, A3 had put up a note on January 05, 2004 with the following recommendation:
"In view of the above, we may request the competent authority to consider the following
1. Revival of the society under Section 63 (3) of DCS Act, 1972.
2. To approve the list of 120 members for allotment of land.
(i) In the said note, A3 also mentioned that Secretary of the society attended the office on January 02, 2004 and he had submitted the photocopies of certain documents. The signature Secretary named H.S. Arora also appeared on the said note and during investigation, the said signature has been marked as Q17.
(ii) The said note was put up before AR Daya Nand Sharma (A2), who sent the same to Reader to RCS. At the time of forwarding the note to Reader to RCS, A2 had not made any comment on the said note. This shows that A2 had impliedly approved the recommendation of A3. But this itself is not sufficient to draw any conclusion that A2 had any dishonest intention. Similarly, there is nothing on record, which may show that A2 was aware that Ramnath (A4) had submitted a false report on the basis of which the said note was prepared. Being the AR, it was his duty to take action on the said note. Mere fact that he decided to forward the same to Reader to RCS is not sufficient to draw conclusion even prima-facie that he had any dishonest intention.CBI No. 70/08 Page 39 of 89
State through CBI v. Narayan Diwakar & Ors. (Sri Madhuvana CGHS)
(iii) As already stated, H.S. Arora in his statement categorically stated that he had no concern with the Society in question and he had never held any post in the said Society. Despite that the signature of H.S. Arora is appeared on the said note, which has been marked as Q17 during investigation. Q17 along with other questioned writings was also sent to GEQD for comparison with the specimen signatures of HS Arora, but GEQD had not given any report qua Q17. Since, HS Arora had made a statement that he had no concern with the said society and he had never held any post of Secretary in the Society, it shows prima-facie that he had not signed Q17 and it appears that someone had signed his signature on the said note. But for this signature, explanation is required to be given by A3 before whom the said person had appeared and put his signature as HS Arora and submitted documents to him. Mere fact that A2 had relied upon the note prepared by his subordinate i.e. A3 is not sufficient to draw any adverse inference in the absence of any other cogent evidence against A2.
(iv) The above said note was forwarded by A2 to Reader to RCS, who put up the note before RCS on January 07, 2004 with a recommendation that notice may be issued under Section 63 (3) of DCS Act to the President/Secretary of the Society for initial hearing on February 26, 2004 in the Court of RCS. The same was prepared by RCS (A1) on the same day.
31. No doubt, the RCS had taken up the file suo-moto on January 13, 2004 despite the fact that the notice was issued to the President/Secretary of the Society for initial hearing on February 26, 2004. On the basis of said action of A1, it was argued vehemently that CBI No. 70/08 Page 40 of 89 State through CBI v. Narayan Diwakar & Ors. (Sri Madhuvana CGHS) A1 had dishonest intention.
(i) Perusal of the note dated January 13, 2004 reveals that on that day RCS had directed his reader to send the file to the concerned Zone for verification of record pertaining to the membership as well as audit/election of the society. From the said note, the possibility of the fact that A1 intended to complete all formalities before listing the matter for hearing cannot be ruled out. Thus, in the absence of any contrary evidence on record, the mere fact that A1 being the RCS had taken up the file on January 13, 2004 suo-moto is not sufficient to hold even prima-facie that he had any dishonest intention.
32. On receipt of the file from the RCS, A2 as per the directions directed the staff to complete the above formalities and A3 was deputed to conduct the physical verification of the members.
(i) As per society file, A3 had put up a detail note on January 23, 2004 running into 11 pages wherein he disclosed all the facts including verification report and put up the note with the following recommendation.
"In view of the above stated facts, we may request the competent authority to consider the following:
1. Revival of the society under Section 63 (3) of DCS Act, 1972.
2. To approve the list of 120 members for onward transmission to DDA for allotment of land.CBI No. 70/08 Page 41 of 89
State through CBI v. Narayan Diwakar & Ors. (Sri Madhuvana CGHS)
(ii) The said note was taken up by A2 on January 23, 2004 and he had made the following endorsement.
May kindly peruse the office note from page 6/N onward. The details of M.S. of 120 (One hundred and Twenty) mentioned at page 13/N to 15/N may be taken on record and the request of the society may be considered under Section 63 (3) of DCS Act. The documents placed in the file have been verified w.r. to the original record submitted by society.
Physical verification of addresses of the M.S. of 12 (Twelve) members at random have also been verified by the Inspector.
Report placed at page 55 to 79/C (Vol. I) Submitted please.
23.01.2004
Reader to RCS AR (NW-II)
(iii) From the endorsement made by A2, it appears that he
had not given any independent opinion, however, on the basis of note put up by A3, he requested to consider the request of Society for its revival. The file was sent to Reader to RCS, who put up the file before RCS on February 19, 2004.
33. From the note dated February 19, 2004, it becomes clear that Ms. Rashmi Gulati, Advocate appeared on behalf of the Society and made certain submissions before A1. After hearing the advocate, RCS had reserved the case for order. No doubt, the matter was not listed for February 19, 2004 as the notice was sent to the CBI No. 70/08 Page 42 of 89 State through CBI v. Narayan Diwakar & Ors. (Sri Madhuvana CGHS) Society for February 26, 2004, but there is nothing on record, which may suggest that Ms. Rashmi Gulati, Advocate did not appear before the RCS on February 19, 2004. It appears that someone had intimated the Society. But no investigation had been conducted in this regard. Assuming for the sake of arguments that file was taken up at the directions of A1 on February 19, 2004, but in the absence of any other cogent evidence, this act is not sufficient to draw any conclusion even prima-facie that he had any dishonest intention.
34. Finally, A1 had passed a detail revival order on March 01, 2004. Perusal of the order reveals that the order was passed in detail with reason. The relevant portion of the order is reproduced as under :
"..... I have gone through the submissions made and affidavits filed by the President and Secretary of the society and the report submitted by Asstt. Registrar (N/W). It was mentioned during the course of proceedings that the winding up order passed by the then Dy. Registrar, was not in accordance with the laid down procedure, while winding up the Society as the reasons given were not adequate for initiating such an extreme step leading to the winding up of the Society. If there was any mis-management in the Society, it was appropriate to first initiate action u/s 32 of DCS Act, 1972 for placing the Society under supercession for setting right the working of the Society and then restoring the cooperative management. Such CBI No. 70/08 Page 43 of 89 State through CBI v. Narayan Diwakar & Ors. (Sri Madhuvana CGHS) orders for winding up of a Society without proper application of mind is not conducive for revitalization and re-strengthening of the cooperative movement in Delhi. Moreover, during the course of arguments, the counsel of the Society also mentioned that Dy. Registrar, who had passed order u/s 63 of DCS Act, 1972 was not competent to pass such an order as only the Registrar is competent to decide the matter u/s 63. There is also nothing on record to show that such power u/s 63 exerciseable by Registrar were delegated to the Dy. Registrar by the competent authority. It appears that during the time this order was passed, a large number of Societies were wound up in a mechanical manner without any valid and convincing reasons. It also appears that the Society was not given sufficient opportunity either to reply to the SCN issued to the Society or to rectify the shortcomings mentioned in the notice issued by the RCS.
In support of the above contention, it is pertinent to add that vide his Order No. PA/RCS/2000/733-745 dated 7-8-2003, my Ld. Predecessor had issued a detailed instructions regarding the revival of those societies which were wound up in a large number but liquidation proceedings were not initiated or completed due to various reasons pointed out in the said order. He has further observed in the said order that the societies have been liquidated on very-very trival CBI No. 70/08 Page 44 of 89 State through CBI v. Narayan Diwakar & Ors. (Sri Madhuvana CGHS) matters like non attendance in the office of the society's representatives or non production of records and thereafter liquidation proceedings have been taken up unilaterally. In some cases even communication to societies has not been sent. It is further observed that all such proceedings where the fate of the members at large is at stake, like those of de-registration u/s 19, liquidation and revival u/s 63 and supercession u/s 32 need to be taken up in a more reasoned manner and after following due process of law, i.e. by giving an opportunity of showing cause to the concerned Managing Committee of the Society and the speaking order has to be passed. In view of this, he directed that "henceforth, all the proceedings u/s 19 & 63 of the DCS Act, 1972 should be taken up in the Court of RCS."
Besides, on 18-12-1991, while disposing of an appeal against the winding up order of the Registrar, Cooperative Societies in respect of New Inderprastha CGHS Ltd., u/s 76 of the Delhi Cooperative Societies Act, 1972 (Mrs. Balwinder Kaur and Ors. Appellant Vs. RCS and Ors.), the Hon'ble Lt. Governor had observed as under:-
"I am inclined to agree with the submissions made by the Ld. Counsel for the appellants that the winding up of a Society is an extreme step and should be used as a last resort. In the present case, a liberal view needs to be taken and the CBI No. 70/08 Page 45 of 89 State through CBI v. Narayan Diwakar & Ors. (Sri Madhuvana CGHS) Society may be afforded another opportunity for its revival. The Society may be revived under the directions of the Registrar, Cooperative Society, if necessary, under an Administrator."
In view of the facts and circumstances as stated above and taking into consideration that no final liquidation order has been passed, I, N. Diwakar, Registrar Cooperative Societies, Govt.
of NCT of Delhi, hereby cancel the winding up order dated 21-03-1979 issued to the SRI MADHUVANA CGHS LTD (Regd. No. 155/GH), in exercise of the powers vested in me u/s 63 (3) of the Delhi Cooperative Societies Act, 1972 with immediate effect. Consequently, the SRI MADHUVANA CGHS LTD (Regd. No. 155/GH), is hereby revived with immediate effect, as the concerned Asstt. Registrar has already verified the list of the 120 members, submitted by the Society subject to the condition that the pending audit shall be got completed within two months time.
In addition to above, keeping in view the principle of natural justice and cooperative spirit, I hereby appoint Sh. B.S. Aswal, Gr. IV, of this department as Election Officer to conduct the election of the Managing Committee of the Society within two months of the issue of this order. The President/Secretary of the Society are directed to cooperate with the Election Officer so appointed, failing which action will be initiated against the CBI No. 70/08 Page 46 of 89 State through CBI v. Narayan Diwakar & Ors. (Sri Madhuvana CGHS) Society as per law.
(i) Before commenting on the said order, I deem it appropriate to refer Section 63, 66 and 67 of DCS Act, 1972 and Rule 105 of DCS Rule. The same are reproduced as under:-
63. Winding up of co-operative societies.
(1) If the Registrar, after an inquiry has been held under Section 55, or an inspection has been made under Section 56, or on receipt of an application made by not less than three-fourths of the members of a co-operative society, is of the opinion that the society ought to be wound up, he may issue an order directing it to be wound up.
(2) The Registrar may of his own motion make an order directing the winding up of a co-operative society --
(a) where it is a condition of the registration of the society that the society shall consist of at least ten members and the number of members has been reduced to less than then, or
(b) where the co-operative society has not commenced working or has ceased to function in accordance with co-operative principles.
(3) The Registrar may cancel an order for the winding up of a co-operative society at any time, in any case where, in his opinion, the society should continue to exist.
(4) A copy of such order shall be communicated by registered post to the society and to the financing institutions, if any, of which the society is a member.
(5) Notwithstanding anything contained in this section no co-operative bank shall be wound up except with the previous sanction in writing of the CBI No. 70/08 Page 47 of 89 State through CBI v. Narayan Diwakar & Ors. (Sri Madhuvana CGHS) Reserve Bank.
66. Liquidator.
(1) Where the Registrar has made an order section 63 for the winding up of a co-operative society, the Registrar may appoint a liquidator for the purpose and fix his remuneration.
(2) A liquidator shall on, appointment, take into his custody or under his control all the property, effects and actionable claims to which the society is or appears to be entitled and shall take such steps as he may deem necessary or expedient, to prevent loss or deterioration of, or damage to such property, effects and claims. He may carry on the business of the society so far as may be necessary with the previous approval of the Registrar.
(3) Where an appeal is preferred under section 76, an order of winding up of co-operative society made under Section 63 shall not operate thereafter until the order is confirmed in appeal:
Provided that the liquidator shall continue to have custody or control of the property, effects and actionable claims mentioned in sub-section (2) and have authority to take the steps referred to in that sub-section.
(4) Where an order of winding up of a co-operative society is set aside in appeal, the property, effects and actionable claims of the society shall revest in the society.
67. Powers of liquidator.
(1) Subject to any rules made in this behalf, the whole of the assets of a co-operative society, in respect of which an order for winding up has been made, shall vest in the liquidator appointed under section 66 from the date on which the order takes CBI No. 70/08 Page 48 of 89 State through CBI v. Narayan Diwakar & Ors. (Sri Madhuvana CGHS) effect and the liquidator shall have power to realise such assets by sale or otherwise.
(2) ...........
(a)........
(b)........
(c)........
(d)........
(e)........
(f)........
(g)........
(h)........
(i)........
(k)........
(l)........
(3) When the affairs of a cooperative society have been wound up, the liquidator shall make a report to the Registrar and deposit the records of the society in such place as the Registrar may direct.
Rule 105: Termination of Liquidation
Proceedings.
(1) The winding up proceedings of a society shall be closed within one year from the date of the order winding up, unless the period is extended by the Registrar:
Provided that the Registrar shall not grant any extension for a period exceeding six months at a time and three years in the aggregate, and shall immediately after the expiry of three years from the date of the order for winding up the society, deem that the liquidation proceedings have been terminated if there are no central amounts due to the Government or the Financing Bank by the society and pass an order terminating the liquidation proceedings.
(2) Notwithstanding anything contained in the foregoing sub-rule the Registrar shall terminate the liquidation proceedings on receipt of the final report from the liquidator. The final report of the liquidator CBI No. 70/08 Page 49 of 89 State through CBI v. Narayan Diwakar & Ors. (Sri Madhuvana CGHS) shall state that the liquidation proceedings of the society have been closed, and how the winding up has been conducted and the property and the claims of the society have been disposed of and shall included a statement showing a summary of the account of the winding up including the cost of liquidation, the amount (if any) standing to the credit of the society in liquidation, after paying off its surplus should be utilised.
(3) The liquidator before submitting the final report may call a meeting of general body of the society and place the report before it if permitted by the Registrar.
(emphasis supplied)
(ii) The above said provisions were dealt with by the High Court of Delhi in civil writ-petition No. 1767 of 1986 decided on November, 21 , 1986 in case title Vikas Cooperative Group Housing v. Registrar Cooperative and held as under:
"From a reading of the above Rule (105), it is clear that after an order for winding up of a society is passed the winding up proceedings are to be closed within one year of the date of the order of the winding up, unless the period is extended by the Registrar. The proviso to sub- rule (1) provides that the Registrar cannot grant extension for a period exceeding six months at a time and that period in aggregate cannot exceed three years and on the expiry of three years from the date of the order for the winding up of the society that liquidation proceedings are to be deemed to have been terminated, and an order to that effect has to be passed by the Registrar."
(iii) It was further held:
That now reverting to the facts of this case, as CBI No. 70/08 Page 50 of 89 State through CBI v. Narayan Diwakar & Ors. (Sri Madhuvana CGHS) already stated, the order for the winding up of the society was passed on March 17, 1979. There is nothing on the record to suggest that thereafter the Registrar had extended the time for the winding up of the society. In fact, on February 27, 1980 the Assistant Registrar had asked the Liquidator not to take any action till the time granted to the society for the deposit of the cost of land. It is not disputed that the cost of the land was deposited within the required time and thereafter the society submitted building plans which were sanctioned and the construction is almost half way through. It also cannot be disputed that huge amounts have been collected from the members and substantial amounts have been paid to the various contractors for the construction of residential flats. The only order that we have after March 17, 1979 is the impugned order by which Shri Kadamb, Assistant Registrar, has been appointed Liquidator to take charge of the records and prepare the account books and submit his report within three months. A reading of the provisions of Section 66 would show that an order under sub-section (2) can only be made after an order under Section 63 for the winding up of a Cooperative Society has been made. The crucial question arises whether the order made under section 63 of the Act in March 1979 was legally operative on the date the order under Section 66 as made. We have earlier referred to the provisions of Rule 105 which clearly state that the winding up proceedings of a society have to be closed within one year from the date of the order of winding up unless the period is extended by the Registrar. The proviso to sub-rule (1) of the Rule 105 provides that the Registrar can extend the period not exceeding six months at a time and the extension can only granted for a period of three years in the aggregate and that immediately after the expiry of three years from the date of the order for winding up of the society the liquidation proceedings shall be deemed to have been terminated. We have earlier stated that there is nothing on the record to show that after the passing of the order in March, 1979 there was any order for extending the period CBI No. 70/08 Page 51 of 89 State through CBI v. Narayan Diwakar & Ors. (Sri Madhuvana CGHS) mentioned in sub-rule (1). In any case under the proviso, the order lost its force after three years from March 17, 1979. The facts of the case noticed by us in the opening part of our order also suggest that after the land was allotted and the cost of the land was paid the Registrar had taken no action pursuant to the order dated March 17, 1979. On the fact of this case, in our view, it has to be assumed that the order passed under section 63 was cancelled and the society continues to exist. This is the only reasonable conclusion in the circumstances of this case."
(emphasis supplied)
(iv) From the above said judgment, it become clear that for for liquidation, appointment of liquidator under Section 66 (2) can only made after an order under Section 63 of the Act has been made. From the Section 63 (3), it is also clear that Registrar is empowered to cancel the order for winding up wherein in his opinion, society should continue to exist. Further, as per Rule 105, the winding up proceeding should be closed within the period of one year, which may be extended with the permission of Registrar upto three years. However, in the instant case, not only the winding up order under Section 63 was passed on March 21, 1979, and but the liquidator was also appointed in the said order whereas as per the above said judgment, liquidator should be appointed after passing of the winding up order. Indisputably, the winding up order was passed on March 21, 1979 and in terms of Rules 105 of the DCS Rules, proceedings should have been completed maximum within three years from the said order, but liquidation proceedings were not completed within the said period. Thus in terms of the above said judgment, the liquidation proceedings were would up to be terminated after the expiry of period of three years. Besides, the CBI No. 70/08 Page 52 of 89 State through CBI v. Narayan Diwakar & Ors. (Sri Madhuvana CGHS) above settled proposition, A1 had given sufficient reasons at the time of setting-aside the winding up order dated March 21, 1979.
(v) During investigation, nothing was revealed that A1 had passed the said order dishonestly or he had taken any kind of illegal consideration from the accused persons to pass the said order. Mere fact that A1 who being the RCS was duty bound to dispose of the application submitted by A5 and he decided to cancel the winding up proceeding is ipso-facto not sufficient to impose any criminal liability.
(vi) Though during investigation, an attempt was made by the investigating officer to ascertain whether A1 had taken any kind of bribe or illegal consideration to pass the said order, but none of the witnesses deposed that A1 had taken any kind of bribe. No doubt, one or two witnesses in their statement testified before the CBI that A5 used to visit RCS office and also used to meet A1. But there is nothing on record which may suggest that A5 had ever met with A1 in connection with the revival of the society or he had given any assurance of illegal consideration or bribe. In the absence of any cogent evidence, I am of the view that mere visit of A5 in the office of RCS and his meeting with the RCS is not sufficient to draw any inference even prima-facie that A1 had passed the revival order in furtherance of any conspiracy.
(vii) In view of the aforesaid discussion, I am of the considered that the collected materials are insufficient to make out a prima-facie case against A1 and A2.
35. Now coming to the next issue raised by the counsel for CBI No. 70/08 Page 53 of 89 State through CBI v. Narayan Diwakar & Ors. (Sri Madhuvana CGHS) the accused persons that since there is no sanction under Section 197 Cr. P.C, accused who were holding public office at the relevant time cannot be charged for penal offences.
36. Now, I proceed to deal with the contentions relating to sanction under Section 197 Cr. P.C.
37. Learned counsel appearing for A1 to A4 and A7 to A8 vigorously argued that since the above said accused persons are public servants and they acted in discharge of their official duty, thus there are entitled for the protection available under Section 197 Cr. P.C qua the penal offences. It was urged that since CBI had not obtained mandatory sanction qua them under Section 197 Cr. P.C for the penal charges, thus the above said accused persons are entitled for discharge for the penal offences. It was further contended that no sanction under Section 19 of Prevention of Corruption Act had been obtained by the CBI qua A1, A2 and A3 on the ground that they had already been retired from the service before filing the charge-sheet, but it was contended that since they acted in discharge of their official duty while dealing with the files in question, separate sanction under Section 197 is required qua the penal charges. In support of their contentions, counsels placed reliance on the judgments Amrik Singh v. State of Pepsu AIR 1955 SC 309, R. Balakrishna Pillai v. State of Kerala and Another (1996) 1 SCC 478, State of Madhya Pradesh Vs Sheetla Sahai and others (2009) 8 SCC 617, State of Punjab v. Labh Singh, 2014 SCC online SC 1019 and Prof. N.K. Ganguly v. CBI in Criminal Appeal No. 798 of 2015 decided by the Apex Court on November 19, 2015.
CBI No. 70/08 Page 54 of 89State through CBI v. Narayan Diwakar & Ors. (Sri Madhuvana CGHS)
38. Per contra, learned Public Prosecutor appearing for CBI refuted the said contentions by arguing that no separate sanction under Section 197 Cr. P.C was required qua the pubic servants as conspiracy and cheating was not part of their official duty. It was further argued that being the public servants, they were not supposed to enter into a criminal conspiracy and commit cheating and forgery, thus they are not entitled for the protection which is available to an honest public servant under Section 197 Cr. P.C. It was further contended that since CBI had taken sanction under Section 19 of Prevention of Corruption Act, no separate sanction is required for the penal offence. In support of her contention, learned Public Prosecutor placed reliance on the judgments Harihar Prasad v. State of Bihar (1972) 3 SCC 89, P.K. Pradhan v. State of Sikkim (2001) 6 SCC 704, Chaudhary Parveen Sultana v. State of West Bengal and another (2009) 3 SCC 398, Parkash Singh Badal v. State of Punjab and others (2007) 1 SCC 1, Raghunath Anant Govilkar v. State of Maharashtra and others (2008) 11 SCC 289, Rajib Ranjan and others v. R. Vijay Kumar (2015) 1 SCC 513, Shambhoo Nath Mishra v. State of U.P and others (1997) 5 SCC 326 and Surinder Kumar Bansal v. State of Punjab (2006) SC online P&H 25.
39. I have heard rival submissions advanced by counsel for both the parties, perused the record and the judgments cited by them carefully.
40. Perusal of the above said judgments reveal that most of the judgments are based on the case law laid down in Amrik Singh v. State of Pepsu AIR 1955 SC 309, Hori Ram Singh v. Emperor AIR CBI No. 70/08 Page 55 of 89 State through CBI v. Narayan Diwakar & Ors. (Sri Madhuvana CGHS) 1939 FC 43 and Shreekantiah Ramayya Munipalli v. State of Bombay AIR 1955 SC 287. It is also pertinent to state that except the judgment of Amrik Singh v. State of Pepsu (supra) and P.K. Pradhan v. State of Sikkim (supra), all the judgments were delivered by the Division Bench of the Apex Court whereas the above said two judgments were delivered by the larger bench.
(i) It is also pertinent to state that the judgments of Hori Ram Singh v. Emperor (supra) and Shreekantiah Ramayya Munipalli v. State of Bombay (supra) were discussed in detail in Amrik Singh v. State of Pepsu (supra), Thus, I deem it appropriate to discuss the law laid down in Amrik Singh v. State of Pepsu (supra) case.
41. In Amrik Singh's case, the allegations against the accused were that his duty was to disburse the wages to workers against their signature or thumb impression in the monthly acquittance roll. It was alleged that he had received the wages of ` 51/- after putting his thumb impression in the said monthly acquittance roll and misappropriated the said amount. Accordingly, he was charge-sheeted for the offence punishable under Section 465/409 IPC. The question of sanction was raised first time before the Apex Court. The moot question arose before the Apex Court whether the sanction under Section 197 (1) Cr. P.C was necessary for the prosecution of appellant under Section 409 IPC or not?
(i) While dealing with the above said question, Hon'ble Apex Court referred the judgment of Hori Ram Singh v. Emperor (supra) in CBI No. 70/08 Page 56 of 89 State through CBI v. Narayan Diwakar & Ors. (Sri Madhuvana CGHS) Para No. 5 and 6 and same are reproduced as under :
Para No. 5. There has been considerable divergence of judicial opinion on the scope of Section 197(1) of the Code of Criminal Procedure. The question has latterly been the subject of consideration by the highest courts in this country, and by the Privy Council, and the position may now be taken to be fairly well-settled. Hori Ram Singh v. Emperor [ AIR 1939 FC 43 : 1939 FCR 159] is a decision of the Federal Court on the necessity for sanction under Section 270 of the Government of India Act, 1935, which is similar in terms to Section 197(1) of the Code of Criminal Procedure. The facts in that case were that a Sub-Assistant Surgeon was charged under Section 409 with having dishonestly removed certain medicines from a hospital which was under his charge, to his own residence, and under Section 477-A, with having failed to enter them in the stock book. The sanction of the Government had not been obtained for the prosecution under Section 270 of the Government of India Act, and the point for decision was whether it was necessary. It was held that the charge under Section 477-A required sanction, as "the official capacity is involved in the very act complained of as amounting to a crime"; but that no sanction was required for a charge under Section 409, because "the official capacity is material only in connection with the 'entrustment' and does not necessarily enter into the later act of misappropriation or conversion, which is the act complained of".
Para No. 6. In the course of his judgment, Varadachariar, J. discussed the scope of Section 197(1) of the Code of Criminal Procedure and after observing that the decisions on that section were not uniform, proceeded to group them under three categories those which had held that sanction was necessary when the act complained of attached to the official character of the person doing it, those which had held that it was necessary in all cases in which the official character of the person gave him an opportunity for the commission of the crime, and CBI No. 70/08 Page 57 of 89 State through CBI v. Narayan Diwakar & Ors. (Sri Madhuvana CGHS) those which had held it necessary when the offence was committed while the accused was actually engaged in the performance of official duties. The learned Judge expressed his agreement with the first of the three views.
In H.H.B. Gill v. King [ AIR 1948 PC 128 : 75 IA 41] the question arose directly with reference to Section 197(1) of the Code of Criminal Procedure. There, the accused was charged under Section 16 with taking bribes, and under Section 120-B with conspiracy. On the question whether sanction was necessary under Section 197(1) it was held by the Privy Council that there was no difference in scope between that section and Section 270 of the Government of India Act, 1935, and approving the statement of the law by Varadachariar, J. in Hori Ram Singh v. Emperor [ AIR 1939 FC 43 : 1939 FCR 159] Lord Simonds observed:
"A public servant can only be said to act or to purport to act in the discharge of his official duty, if his act is such as to lie within the scope of his official duty........The test may well be whether the public servant, if challenged, can reasonably claim that, what he does, he does in virtue of his office".
(emphasis supplied)
(ii) Hon'ble Apex Court summed up the proposition of law in Para No. 7 and same is reproduced as under :
Para No. 7. The result of the authorities may thus be summed up: It is not every offence committed by a public servant that requires sanction for prosecution under Section 197(1) of the Code of Criminal Procedure; nor even every act done by him while he is actually engaged in the performance of his official duties; but if the act complained of is directly concerned with his official CBI No. 70/08 Page 58 of 89 State through CBI v. Narayan Diwakar & Ors. (Sri Madhuvana CGHS) duties so that, if questioned, it could be claimed to have been done by virtue of the office, then sanction would be necessary; and that would be so, irrespective of whether it was, in fact, a proper discharge of his duties, because that would really be a matter of defence on the merits, which would have to be investigated at the trial, and could not arise at the stage of the grant of sanction, which must precede the institution of the prosecution.
(emphasis supplied)
(iii) During the course of arguments, State conceded before the Apex Court that the sanction under Section 197 Cr. P.C was required to prosecute the accused for the offence punishable under Section 465 IPC, but took the plea that no sanction was required for the offence punishable under Section 409 IPC and the said issue was dealt with by the Apex Court in Para 8 to 10, which are reproduced as under :
Para No. 8. It is conceded for the respondent that on the principle above enunciated, sanction would be required for prosecuting the appellant under Section 465, as the charge was in respect of his duty of obtaining signatures or thumb impressions of the employees before wages were paid to them. But he contends that misappropriation of funds could, under no circumstances, be said to be within the scope of the duties of a public servant, that he could not, when charged with it, claim justification for it by virtue of his office, that therefore no sanction under Section 197(1) was necessary, and that the question was concluded by the decisions in Hori Ram Singh v. Emperor [ AIR 1939 FC 43 : 1939 FCR 159] and Albert West Meads v. King [ AIR 1948 PC 156 : 75 IA 185] , in both of which the charges were of criminal misappropriation. We are of opinion that this is too broad a statement of the legal position, and that the two decisions cited lend no support to it. In our judgment, even when the charge is one of misappropriation by a public CBI No. 70/08 Page 59 of 89 State through CBI v. Narayan Diwakar & Ors. (Sri Madhuvana CGHS) servant, whether sanction is required under Section 197(1) will depend upon the facts of each case. If the acts complained of are so integrally connected with the duties attaching to the office as to be inseparable from them, then sanction under Section 197(1) would be necessary; but if there was no necessary connection between them and the performance of those duties, the official status furnishing only the occasion or opportunity for the acts, then no sanction would be required.
Para No. 9. Quite recently, this court had to consider in Shreekantiah Ramayya Munipalli v. State of Bombay [ Criminal Appeal No. 89 of 1954] the necessity for sanction under Section 197(1), when the charge was one of misappropriation under Section 409. There, the law was laid down in the following terms:
"The section has content and its language must be given meaning.
What it says is -- 'when any public servant ... is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty....' We have therefore first to concentrate on the word 'offence'.
Now an offence seldom consists of a single act. It is usually composed of several elements and, as a rule, a whole series of acts must be proved before it can be established. In the present case, the elements alleged against the second accused are, first, that there was an 'entrustment' and/or 'dominion'; second, that the entrustment and/or dominion was 'in his capacity as a public servant'; third, that there was a 'disposal'; and fourth, that the disposal was 'dishonest'. Now it is evident that CBI No. 70/08 Page 60 of 89 State through CBI v. Narayan Diwakar & Ors. (Sri Madhuvana CGHS) the entrustment and/or dominion here were in an official capacity, and it is equally evident that there could in this case be no disposal, lawful or otherwise, save by an act done or purporting to be done in an official capacity".
On the facts, it was held in that case that the several acts which were complained of, were official acts, and that the prosecution was bad for want of sanction.
Para No. 10. The decisions in Hori Ram Singh v. Emperor [ AIR 1939 FC 43: 1939 FCR 159] , and Albert WestMeads v. King [ AIR 1948 PC 156 : 75 IA 185] when properly examined, do not support the extreme contention urged on behalf of the respondent. In Hori Ram Singh v. Emperor [ AIR 1939 FC 43 : 1939 FCR 159] the medicines had not been entered in the stock book, and were removed by the accused to his residence, and the charge against him was that in so removing them he had committed misappropriation. It was no part of the duty of the accused to remove medicines to his house, and he could not claim that he did so by virtue of his office. He could have made such a claim if he had, let us suppose, entered the medicines in the stock books and shown them as expended in the hospital. But, on the facts, no official act was involved, and that was why Varadachariar, J. observed that, "... so far as the charge under Section 409 was concerned, the acts in respect of which he was intended to be prosecuted could not be regarded as acts done or purported to be done in execution of his duty".
Reference may also be made to the following observations of Sulaiman, J. in the same case:CBI No. 70/08 Page 61 of 89
State through CBI v. Narayan Diwakar & Ors. (Sri Madhuvana CGHS) "The question whether a criminal breach of trust can be committed while purporting to act in execution of his duty is not capable of being answered hypothetically in the abstract, without any reference to the actual facts of the case. An attempt to answer the question in a generalised way has been responsible for loose language used in some of the cases cited before us.... The question whether the act purported to have been done in execution of duty or not must depend on the special circumstances of each case."
(emphasis supplied)
(iv) At last, Apex Court held that the sanction was required in the above said case to prosecute the accused for the offence punishable under Section 409 IPC. In this regard, Para No. 12 is relevant and reproduced as under :
Para No. 12. In this view, we have to examine whether the acts with which the appellant is charged directly bear on the duties which he has got to discharge as a public servant. The appellant received the sum of ` 51 alleged to have been misappropriated, as Subdivisions Officer, and he admits receipt of the same. Then it was his duty to pay that amount to the khalasi Parma, and take his signature or thumb-impression in acknowledge- ment thereof. The accused does claim to have paid the amount to Parma, and the acquittance roll records the payment, and there is in acknowledgement thereof a thumb-impression as against his name. If what appears on the face of the roll is true and whether it is true or not is not a matter relevant at the stage of sanction then the acts with which the appellant is charged fall within the scope of his duties, and can be justified by him as done by virtue of his office. Clearly, therefore, sanction was required under Section 197(1) of the Code of Criminal Procedure before the appellant could be prosecuted under Section 409, and the CBI No. 70/08 Page 62 of 89 State through CBI v. Narayan Diwakar & Ors. (Sri Madhuvana CGHS) absence of such sanction is fatal to the maintainability of the prosecution. The conviction should, therefore, be quashed.
(emphasis supplied)
42. Since, most of the cases were decided on the basis of law laid down in the aforesaid case, thus I do not deem it appropriate to reproduce all the aforesaid judgments.
43. In Harihar Prasad v. State of Bihar (supra) Hon'ble Apex Court after referring to the cases namely Shreekantiah Ramayya Munipalli v. State of Bombay (supra), Amrik Singh v. State of Pepsu (supra) held that no sanction is required in respect of acts complained of in the present case for the charges under Section 120 B IPC read with Section 409 IPC. The said observation is reproduced as under :
" The real question therefore is whether the acts complained of in the present case were directly concerned with the official duties of the three public servants. As far as the offence of criminal conspiracy punishable under Section 120-B, read with Section 409 of the Indian Penal Code is concerned and also Section 5(2) of the Prevention of Corruption Act, are concerned they cannot be said to be of the nature mentioned in Section 197 of the Code of Criminal Procedure. To put it shortly, it is no part of the duty of a public servant, while discharging his official duties, to enter into a criminal conspiracy or to indulge in criminal misconduct. Want of sanction under Section 197 of the Code of Criminal Procedure is, therefore, no bar."
(emphasis supplied) CBI No. 70/08 Page 63 of 89 State through CBI v. Narayan Diwakar & Ors. (Sri Madhuvana CGHS)
(i) Perusal of the said observations, make it clear that the observations were made in the light of peculiar facts involved in the said case. In the said case, the allegations against the accused persons were that they had not only awarded the contract to their known contractors, but they had also drew the bills frequently in their own name and gave advance payment to the contractors despite the fact that the contractors had not executed the work as per the terms and conditions. Even they had accepted bribe from the said contractors and the amount was recovered from them. In the light of these peculiar facts, it was held that no sanction was required for the charges of Section 120B IPC read with Section 409 IPC and this is abundantly clear from the observations of Hon'ble Apex Court when it categorically stated that the real question is whether the acts complained of in the present case were directly concerned with the official duties of the three public servants. Thus, as per the observations of Hon'ble Apex Court, no sanction is required because the above facts were not found directly concerned with the official duties of the accused persons. The said judgment was clarified by the Apex Court in R. Balakrishna Pillai v. State of Kerala and Another (supra). In the said case, CBI had taken the plea that in view of the finding in Harihar Prasad v. State of Bihar (supra) case, no sanction is required for the offence of conspiracy. The relevant portion of Para No. 6 is reproduced as under:
Para No. 6. The next question is whether the offence alleged against the appellant can be said to have been committed by him while acting or purporting to act in the discharge of his official duty. It was contended by the learned counsel for the State that the charge of conspiracy would not attract Section 197 of the Code for the simple reason that it is no part of the duty of a Minister CBI No. 70/08 Page 64 of 89 State through CBI v. Narayan Diwakar & Ors. (Sri Madhuvana CGHS) while discharging his official duties to enter into a criminal conspiracy. In support of his contention, he placed strong reliance on the decision of this Court in Harihar Prasad v. State of Bihar [(1972) 3 SCC 89 : 1972 SCC (Cri) 409 : 1972 Cri LJ 707] . He drew our attention to the observations in paragraph 74 of the judgment where the Court, while considering the question whether the acts complained of were directly concerned with the official duties of the public servants concerned, observed that it was no duty of a public servant to enter into a criminal conspiracy and hence want of sanction under Section 197 of the Code was no bar to the prosecution. The question whether the acts complained of had a direct nexus or relation with the discharge of official duties by the public servant concerned would depend on the facts of each case. There can be no general proposition that whenever there is a charge of criminal conspiracy levelled against a public servant in or out of office the bar of Section 197(1) of the Code would have no application. Such a view would render Section 197(1) of the Code specious.
Therefore, the question would have to be examined in the facts of each case. The observations were made by the Court in the special facts of that case which clearly indicated that the criminal conspiracy entered into by the three delinquent public servants had no relation whatsoever with their official duties and, therefore, the bar of Section 197(1) was not attracted. It must also be remembered that the said decision was rendered keeping in view Section 197(1), as it then stood, but we do not base our decision on that distinction. Our attention was next invited to a three-Judge decision in B. Saha v. M.S. Kochar [(1979) 4 SCC 177 : 1979 SCC (Cri) 939] . The relevant observations relied upon are to be found in paragraph 17 of the judgment. It is pointed out that the words "any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty" employed Section 197(1) of the Code, are capable of both a narrow and a wide interpretation but their Lordships pointed out that if they were construed too narrowly, the section will be rendered CBI No. 70/08 Page 65 of 89 State through CBI v. Narayan Diwakar & Ors. (Sri Madhuvana CGHS) altogether sterile, for, "it is no part of an official duty to commit an offence, and never can be". At the same time, if they were too widely construed, they will take under their umbrella every act constituting an offence committed in the course of the same transaction in which the official duty is performed or is purported to be performed. The right approach, it was pointed out, was to see that the meaning of this expression lies between these two extremes. While on the one hand, it is not every offence committed by a public servant while engaged in the performance of his official duty, which is entitled to the protection. Only an act constituting an offence directly or reasonably connected with his official duty will require sanction for prosecution. To put it briefly, it is the quality of the act that is important, and if it falls within the scope of the aforequoted words, the protection of Section 197 will have to be extended to the public servant concerned. This decision, therefore, points out what approach the Court should adopt while construing Section 197(1) of the Code and its application to the facts of the case on hand.
(emphasis supplied)
(ii) Thus, it becomes clear that mere fact that the investigating agency had filed the charge-sheet under Section 120B IPC read with Section 409 IPC is ipso-facto not sufficient to deprive public servants from protection available under Section 197 Cr. P.C. It depends upon facts of each case. If the acts were committed by the public servants in discharge of his official duties, sanction would be required under Section 197 Cr. P.C irrespective of the fact that the said acts attract the provisions of Section 120B IPC read with Section 409 IPC.
CBI No. 70/08 Page 66 of 89State through CBI v. Narayan Diwakar & Ors. (Sri Madhuvana CGHS)
44. In P.K. Pradhan v. State of Sikkim (supra), Apex Court refused to quash the proceedings for want of sanction under Section 197 Cr. P.C after considering the case law laid down in Amrik Singh v. State of Pepsu (supra) , Hori Ram Singh v. Emperor (supra) and Shreekantiah Ramayya Munipalli v. State of Bombay (supra), Apex Court held as under:
Para No. 15. Thus, from a conspectus of the aforesaid decisions, it will be clear that for claiming protection under Section 197 of the Code, it has to be shown by the accused that there is reasonable connection between the act complained of and the discharge of official duty. An official act can be performed in the discharge of official duty as well as in dereliction of it. For invoking protection under Section 197 of the Code, the acts of the accused complained of must be such that the same cannot be separated from the discharge of official duty, but if there was no reasonable connection between them and the performance of those duties, the official status furnishes only the occasion or opportunity for the acts, then no sanction would be required. If the case as put forward by the prosecution fails or the defence establishes that the act purported to be done is in discharge of duty, the proceedings will have to be dropped. It is well settled that question of sanction under Section 197 of the Code can be raised any time after the cognizance; maybe immediately after cognizance or framing of charge or even at the time of conclusion of trial and after conviction as well. But there may be certain cases where it may not be possible to decide the question effectively without giving opportunity to the defence to establish that what he did was in discharge of official duty. In order to come to the conclusion whether claim of the accused that the act that he did was in course of the performance of his duty was a reasonable one and neither pretended nor fanciful, can be examined during the course of trial by giving opportunity to the defence to establish it. In such CBI No. 70/08 Page 67 of 89 State through CBI v. Narayan Diwakar & Ors. (Sri Madhuvana CGHS) an eventuality, the question of sanction should be left open to be decided in the main judgment which may be delivered upon conclusion of the trial.
(emphasis supplied)
(i) At last, Apex Court left the question of sanction open and directed the Ld. Trial Court to decide the same at the time of final judgment and this is clear from the observations made by the Apex Court in Para No. 16, which is reproduced as under:
Para No. 16. In the present case, the accused is claiming that in awarding contract in his capacity as Secretary, Department of Rural Development, Government of Sikkim, he did not abuse his position as a public servant and works were awarded in favour of the contractor at a rate permissible under law and not low rates. These facts are required to be established which can be done at the trial. Therefore, it is not possible to grant any relief to the appellant at this stage. However, we may observe that during the course of trial, the court below shall examine this question afresh and deal with the same in the main judgment in the light of the law laid down in this case without being prejudiced by any observation in the impugned orders.
(emphasis supplied)
(ii) Thus, the said judgment is not helpful to the prosecution in the present matter.
45. In Chaudhary Parveen Sultana v. State of West Bengal and another (supra), Apex Court refused to accept the plea of accused under Section 197 Cr. P.C in the light of the peculiar facts of CBI No. 70/08 Page 68 of 89 State through CBI v. Narayan Diwakar & Ors. (Sri Madhuvana CGHS) the said case as in the said case, the allegations against the police officer was that on the pretext of conducting investigation, he along with his co-accused used to visit the house of complainant and threatened her husband in order to obtain the tutored statement and even tried to obtain their signature on blank papers. In view of the aforesaid allegations, Apex Court held as under :
Para No. 21. We have already indicated that we are unable to accept such a view. In our view, the offences complained of cannot be said to be part of the duties of the investigating officer while investigating an offence alleged to have been committed. It was no part of his duties to threaten the complainant or her husband to withdraw the complaint. In order to apply the bar of Section 197 Cr.P.C each case has to be considered in its own fact situation in order to arrive at a finding as to whether the protection of Section 197 Cr.P.C could be given to the public servant. The fact situation in the complaint in this case is such that it does not bring the case within the ambit of Section 197 and the High Court erred in quashing the same as far as Respondent 2 is concerned. The complaint prima facie makes out offences alleged to have been committed by Respondent 2 which were not part of his official duties.
(emphasis supplied)
46. No doubt, in Shambhoo Nath Mishra v. State of U.P and others (supra), it was held that the fabrication of record and misappropriation of public fund is not part of official duty of the public servants, but the said observations are required to be considered in the light of the peculiar facts involved in the said case. In the said case, a complaint was filed against the accused persons for the offence punishable under Section 409/420/465/468/477A and 109 IPC with the CBI No. 70/08 Page 69 of 89 State through CBI v. Narayan Diwakar & Ors. (Sri Madhuvana CGHS) allegations that the accused persons had fabricated the signature of complainant and after forging his signature, they withdrew the amount from his account and misappropriated the same. On the basis of these peculiar facts, it was held that it was not official duty of public servant to fabricate the record and misappropriate the public fund. Thus, the said judgment is also not helpful to the prosecution as the facts of the case at hand are totally different.
47. In Rajib Ranjan and others v. R. Vijay Kumar (supra) after referring to the case of Amrik Singh v. State of Pepsu (supra), Raghunath Anant Govilkar v. State of Maharashtra and others and Shambhoo Nath Mishra v. State of U.P and others (supra), it was held in Para No. 18, same is reproduced as under:
Para No. 18. The ratio of the aforesaid cases, which is clearly discernible, is that even while discharging his official duties, if a public servant enters into a criminal conspiracy or indulges in criminal misconduct, such misdemeanour on his part is not to be treated as an act in discharge of his official duties and, therefore, provisions of Section 197 of the Code will not be attracted. In fact, the High Court has dismissed the petitions filed by the appellant precisely with these observations, namely, the allegations pertain to fabricating the false records which cannot be treated as part of the appellants' normal official duties. The High Court has, thus, correctly spelt out the proposition of law. The only question is as to whether on the facts of the present case, the same has been correctly applied.
(emphasis supplied) CBI No. 70/08 Page 70 of 89 State through CBI v. Narayan Diwakar & Ors. (Sri Madhuvana CGHS)
(i) As already discussed that Apex Court had already clarified that the question whether the offence of criminal conspiracy, criminal misconduct or misappropriation was committed in discharge of official duty or not, it depends on facts of each case and it cannot be answered hypothetically in the abstract without any reference to the actual facts of the case. It is pertinent to state that in Rajib Ranjan and others v. R. Vijay Kumar (supra), proceedings were quashed by the Apex Court holding that the complainant had abused the process of the Court.
48. In State of Madhya Pradesh Vs Sheetla Sahai and others (supra), Apex Court propounded the rule of safe and sure test to determine whether the sanction is required for the act complained of public servants or not. In this regard, Para No. 61 is relevant and same is reproduced as under :
Para 61 Strong reliance has been placed by Mr. Tulsi on a judgment of this Court in Centre for Public Interest Litigation and Another Vs Union of India and Another [(2005) 8 SCC 202]. In that case, it was held :
"9 The protection given under Section 197 is to protect responsible public servants against the institution of possibly vexatious criminal proceedings for offences alleged to have been committed by them while they are acting or purporting to act as public servants. The policy of the legislature is to afford adequate protection to public servants to ensure that they are not prosecuted for anything done by them in the discharge of their duties without reasonable cause, and if sanction is granted, to confer on the Government, if they choose to exercise it, complete control of the prosecution.CBI No. 70/08 Page 71 of 89
State through CBI v. Narayan Diwakar & Ors. (Sri Madhuvana CGHS) This protection has certain limits and is available only when the alleged act done by the pubic servant is reasonably connected with the discharge of his official duty and is not merely a cloak for doing the objectionable act. If in doing his official duty, he acted in excess of his duty, but there is a reasonable connection between the act and performance of the official duty, the excess will not be a sufficient ground to deprive the public servant, but whether it was committed by a public servant acting or purporting to act as such in the discharge of his official capacity. Before Section 197 can be invoked, it must be shown that the official concerned was accused of an offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duties. It is not the duty which requires examination so much as the act, because the official act can be performed both in the discharge of the official duty as well as in dereliction of it. The act must fall within the scope and range of the official duties of the pubic servant concerned. It is the quality of the act which is important and the protection of this section is available if the act falls within the scope and range of his official duty. There cannot be any universal rule to determine whether there is a reasonable connection between the act done and the official duty, nor is it possible to lay down any such rule. One safe and sure test in this regard would be to consider if the omission or neglect on the part of the public servant to commit the act complained of could have made him answerable for a charge of dereliction of his official duty. If the answer to this question is in the affirmative, it may be said that such act was committed by the public servant while acting in the discharge of his official duty and there was every connection with the act complained of and the official duty of the public servant. This aspect makes it clear that the concept of Section 197 does not get immediately attracted on institution of the complaint case.
10. Use of the expression "official duty" implies that the act or omission must have been done by CBI No. 70/08 Page 72 of 89 State through CBI v. Narayan Diwakar & Ors. (Sri Madhuvana CGHS) the public servant in the course of his service and that it should have been in discharge of his duty. The section does not extend its protective cover to every act or omission done by a public servant in service but restricts its scope of operation to only those acts or omissions which are done by a public servant in discharge of official duty.
11. If on facts, therefore, it is prima-facie found that the act or omission for which the accused was charged had reasonable connection with discharge of his duty then it must be held to be official to which applicability of Section 197 of the Code cannot be disputed."
(emphasis supplied)
49. Recently, Hon'ble Apex Court had considered most of the above said judgments in Prof. N.K. Ganguly v. CBI (supra) after considering the entire case law including observations made by the Apex Court in Parkash Singh Badal v. State of Punjab and others (supra), Hon'ble Apex Court held as under:
" Mr. P.P. Khurana and Mr. Gopal Subramaniam, the learned senior counsel appearing on behalf of some of the appellant, on the other hand, contends that the decision in the Parkash Singh Badal case needs to be appreciated in light of the facts of that case. Thus, while stating that the offences under Sections 420/467/468/471 IPC and 120B IPC can by no stretch of imagination and by their very nature be regarded as having been committed by any public servant while acting of purporting to act in discharge of his official duty, this Court did not mean that merely because an official was charged with an offence under these sections, no sanction was required to be taken.
The learned counsel placed reliance on the following paragraph of the judgment to emphasis CBI No. 70/08 Page 73 of 89 State through CBI v. Narayan Diwakar & Ors. (Sri Madhuvana CGHS) the same:
"51. In Baijnath v. State of M.P. [1966 (1) SCR 210] the position was succinctly stated as follows:
"... it is the quality of the Act that is important and if it falls within the scope and range of his official duty the protection contemplated by Section 197 of the Code of Criminal Procedure will be attracted."
The learned senior counsel also placed reliance on the three judge bench decision of this Court rendered in the case of Shreekantiah Ramayya Munipalli, referred to supra, wherein it was held as under:
"18. ...... If Section 197 of the Code of Criminal Procedure is construed too narrowly it can never be applied, for of course it is not part of an official's duty to commit an offence and never can be. But it is not the duty we have to examine so much as the act because an official act can be performed in the discharge of official duty as well as in dereliction of it.....
19. Now an offence seldom consists of a single act. It is usually composed of several elements and as a rule a whole series of acts must be proved before it can be established..... Now it is evident that the entrustment and/or domino here were in an official capacity and it is equally evident that there could in this case be no disposal, lawful or otherwise, save by an act done or purporting to be done in an official capacity........."
25. From a perusal of the case law referred to supra, it becomes clear that for the purpose of obtaining previous sanction from the appropriate government under Section 197 of Cr. P.C, it is imperative that the alleged offence is committed in discharge of official duty by the accused. It is also important for the Court to examine the allegations contained in the final report against the Appellants, to decide whether previous sanction is required to be obtained by the respondent from the appropriate government before taking cognizance of the CBI No. 70/08 Page 74 of 89 State through CBI v. Narayan Diwakar & Ors. (Sri Madhuvana CGHS) alleged offence by the learned Special Judge against the accused. In the instant case, since the allegations made against the Appellants in the final report filed by the respondent that the alleged offences were committed by them in discharge of their official duty, therefore, it was essential for the learned Special Judge to correctly decide as to whether the previous sanction from the Central Government under Section 197 of Cr. P.C was required to be taken by the respondent, before taking cognizance and passing an order issuing summons to the appellants for their presence.
(emphasis supplied)
50. From the aforesaid discussion, the following proposition of law emerge:-
(i) It is not every offence committed by a public servant that requires sanction for prosecution under Section 197 Cr. P.C; nor even every act done by him while he is actually engaged in the performance of his official duties.
(ii) But, if the act complained of is directly concerned with his official duties so that if questioned, it could be claimed to have been done by the public servants by virtue of the office and then sanction would be necessary.
(iii) Even where the charges are for misappropriation by public servant, question whether the sanction is required under Section 197 (1) Cr. P.C will depend upon facts of the each case. If the acts complained of are so integrally connected with the duties attaching to the office so as to be inseparable, sanction would be necessary. If there CBI No. 70/08 Page 75 of 89 State through CBI v. Narayan Diwakar & Ors. (Sri Madhuvana CGHS) was no necessary connection between the duty and the act, the official status furnishing only the occasion or opportunity for the acts then no sanction would be required.
(iv) There is no universal rule to determine whether there is a reasonable connection between the act done and the official duty, nor it is possible to lay down any such rule.
(v) However, there is one safe and sure test to determine this connection is, if the omission or neglect on the part of public servant to commit the act complained of could have made him answerable for a charge of dereliction of his official duty. If the answer to this question is in affirmative, it may be said that the such act was committed by the public servant while conducting in discharge of his official duties and there was every connection with the act complained of and the official duty of the public servant.
(vi) An official act can be performed in discharge of official duty as well as in dereliction of it.
51. It is pertinent to state that in R. Balakrishna Pillai v. State of Kerala and Another (supra), State of Madhya Pradesh Vs Sheetla Sahai and others (supra), Prof. N.K. Ganguly v. CBI, accused persons were charge-sheeted by CBI for the offences under Penal Code as well as under Prevention of Corruption Act. Since, CBI had not obtained sanction under Section 197 Cr. P.C and act complained of was found in connection with the discharge of official duties, in the said cases, accused persons were discharged from the CBI No. 70/08 Page 76 of 89 State through CBI v. Narayan Diwakar & Ors. (Sri Madhuvana CGHS) penal charges. The question whether in the instant case, acts complained of were committed in discharge of official duties by the public servants or not will be discussed in latter part of the order.
52. I also deem it appropriate to refer the judgment State of Punjab Vs Labh Singh (supra). In the said case, Learned Special Judge framed the charges against the public servant for the penal offences under Section 218/409/465/467/120B IPC and Section 13 (1)
(c) read with Section 13 (1) (ii) of Prevention of Corruption Act. The said order was set-aside by the Hon'ble High Court on the ground that there was no sanction under Section 197 Cr. P.C. Accordingly, State approached the Apex Court. Apex Court set-aside the order of High Court qua the charges framed under Prevention of Corruption Act. The relevant Para No. 8 is reproduced as under:
"Para 8 However as regards charges for the offences punishable under the IPC concerned the High Court was absolutely right in setting aside the order of the Special Judge. Unlike section 19 of the POC Act, the protection under section 197 of Cr. P.C. is available to the concerned public servant even after retirement. Therefore, if the matter was considered by the sanctioning authority and the sanction to prosecute was rejected first on 13.09.2000 and secondly on 24.09.2003, the court could not have taken cognizance insofar as the offences punishable under the Indian Penal Code are concerned . As laid down by this Court in State of Himachal Pradesh v. Nishant Sareen, the recourse in such cases is either to challenge the order of the Sanctioning Authority or to approach it again if there is any fresh material".
(emphasis supplied) CBI No. 70/08 Page 77 of 89 State through CBI v. Narayan Diwakar & Ors. (Sri Madhuvana CGHS)
53. Now coming to the contention raised by learned Public Prosecutor whether separate sanction is required under Section 197 Cr. P.C where prosecution had obtained sanction under Section 19 of Prevention of Corruption Act.
(i) The scope of both the sanction is different and same was dealt with by the Apex Court in the judgment of State of Madhya Pradesh Vs Sheetla Sahai and others (supra) in Para No. 60 and same is reproduced as under:
Para 60 This leaves us with the question as to whether an order of sanction was required to be obtained. There exists a distinction between a sanction for prosecution under Section 19 of the Act and Section 197 of the Code of Criminal Procedure. Whereas in terms of Section 19, it would not be necessary to obtain in respect of those who had ceased to be a public servant, Section 197 of the Code of Criminal Procedure requires sanction both for those who were or are public servants.
(emphasis supplied)
(ii) Since, learned Public Prosecutor vehemently relied upon the judgment of Surinder Kumar Bansal v. State of Punjab (supra), I deem it appropriate to deal with it. In the said case issue arose before the High Court was whether in addition to the sanction required under Section 19 of the PC Act whether sanction under Section 197 Cr. P.C is also required for prosecution of public servants under PC Act. After referring to numerous judgments of the Hon'ble Supreme Court, Hon'ble High Court held that no separate sanction is required to prosecute the public servant under PC Act. Admittedly, no separate sanction is CBI No. 70/08 Page 78 of 89 State through CBI v. Narayan Diwakar & Ors. (Sri Madhuvana CGHS) required under Section 197 Cr. P.C to prosecute the public servant for the charges of PC Act, but the said judgment has not dealt with the issue about the situation whether separate sanction is required qua the penal charges or not.
54. From the numerous judgments of the Apex Court referred to in the aforesaid discussion, it can safely be culled out that separate sanction under Section 197 Cr. P.C is also required to prosecute public servant for the penal offences. Thus, I do not find any merit in the contention of learned Public Prosecutor that no separate sanction is required against the public servant for penal charges where the prosecution had obtained sanction under Section 19 of PC Act.
(i) It is pertinent to state that A1, A2 and A3 had already been ceased to be public servant before filing of the charge-sheet because they had already retired from their office, accordingly, no sanction was obtained against them even under Section 19 of PC Act. No doubt, the said public servants can be charged for the offence under Prevention of Corruption Act, but to prosecute them under penal offences, investigating agency is required to obtain proper sanction under Section 197 Cr. P.C if their acts complained of have any connection in discharge of their official duties otherwise CBI has to establish prima-facie that their acts had no connection in discharge of their official duties. It is also pertinent to mention here that in the charge-sheet, no reason has been given by the investigating agency for not obtaining sanction under Section 197 Cr. P.C at least qua them.
55. Perusal of the Rule 17.45 of Central Bureau of CBI No. 70/08 Page 79 of 89 State through CBI v. Narayan Diwakar & Ors. (Sri Madhuvana CGHS) Investigation (Crime) Manual-2005, it is clear that to prosecute a public servant in case of bribery, corruption and other criminal misconduct, sanction under Section 19 of PC Act is required and in cases which are covered by Section 197 of Cr. P.C, prior sanction of competent authority is also required for launching prosecution in the Court of law. No doubt, under the said Rule, it is mentioned that the sanction under Section 197 Cr. P.C is required in cases which are covered by Section 197 Cr. P.C. Since, the transparency is one of the fundamental ingredients of any fair and impartial investigation, thus where investigating agency files a charge-sheet against public servant without obtaining sanction under Section 197 Cr. P.C, it is the paramount duty of the investigating agency to mention reasons in the charge-sheet for not seeking such sanction. This will intimate the Court as well as accused about the reasons for not obtaining sanction under Section 197 Cr. P.C.
56. In the instant case, since investigating agency had not obtained sanction under Section 19 of PC Act qua A1, A2 and A3, investigating officer has specifically mentioned the reason i.e. no sanction is required as they had retired prior to filing the charge-sheet, for not obtaining sanction qua them. But surprisingly, no such reason has been given by the investigating agency in respect of sanction under Section 197 Cr. P.C. By non mentioning the reasons, investigating agency has concealed material information from the Court as well as from the accused, which prompts the accused persons to raise such plea during the course of arguments and in each case, prosecution as well as defence consume lot of judicial time on this point alone. Had CBI obtained necessary sanction under Section 197 Cr. P.C or divulged the reasons for not obtaining such sanction in the charge-sheet, CBI No. 70/08 Page 80 of 89 State through CBI v. Narayan Diwakar & Ors. (Sri Madhuvana CGHS) probably prosecution would help the Court in saving lot of judicial time. It is also pertinent to mention here that there is no clear cut policy in CBI cases because this Court has noticed that in some cases, CBI had obtained sanction under Section 197 Cr. P.C whereas in other cases, neither sanction had been obtained nor any reason for not obtaining the sanction had been mentioned in the charge-sheet. To my mind, being the prime investigating agency of the country, CBI should adopt a consistent approach at the time of filing the charge-sheet against public servants.
57. No doubt, unless investigating agency adopts a consistent and transparent approach in the matter of sanction under Section 197 Cr. P.C, Court has to perform its onerous duty and due to that reason, Court has heard the arguments on this point at length from both the sides.
58. Now, I proceed to examine facts of the case at hand to ascertain whether there was reasonable connection between the acts of the public servants (A1 to A4, A7 and A8) and their duties and whether their acts qualifies the safe and sure test as propounded by the Apex Court in State of Madhya Pradesh Vs Sheetla Sahai and others (supra).
59. It is admitted case of CBI that A1 was working as Registrar of the Cooperative Societies at the relevant time and being the RCS while discharging his official duty, he had approved the noting of A3, which was forwarded by A2 for issuance of a circular to trace the missing file and thereafter, approved the note to reconstruct the file.
CBI No. 70/08 Page 81 of 89State through CBI v. Narayan Diwakar & Ors. (Sri Madhuvana CGHS) Since, being the RCS, A1 dealt with the file in question in discharge of his official duty and he passed the order on the file which was put up before him by A2 and A3 in discharge of their official duty, thus to my mind, the act of A1 i.e. to approve the noting for issuance of circular and reconstruct the file had direct connection with the discharge of his official duties.
(i) Similarly, A2 also forwarded the above noting of A3 being the AR in the office of RCS, New Delhi, thus to my mind, the act of A2 in respect of the above noting had also direct connection with discharge of his official duty.
(ii) Similarly, the act of A3 when he put up a noting regarding the issuance of circular on the ground that the file of the Society was not traceable and again put up a note for reconstruction of the file had direct connection with the discharge of his official duty because being the dealing assistant, it was his duty to put up the application/representation of the society.
(iii) Thereafter, A3 put up notes on January 05, 2004 and January 23, 2004 on receipt of inspection report from A4 and physical verification conducted by him. A3 had put the said notes in discharge of his official duties being the dealing assistant, thus the said notings also had direct connection with the duty of A3.
(iv) Similarly, the notings dated January 05, 2004 and January 23, 2004 were forwarded and approved by A2 being the AR. Dealing clerk put up the file before A2 being the AR, who forwarded the CBI No. 70/08 Page 82 of 89 State through CBI v. Narayan Diwakar & Ors. (Sri Madhuvana CGHS) same to his senior officer in discharge of his official duty. Thus, to my mind, the act of A2 in respect of the said notings had also direct connection with his official duties.
(v) Similarly, A1 had approved the noting of his Reader on January 07, 2004 permitting his Reader to issue a notice to the President/Secretary of the Society for initial hearing on February 26, 2004. It is also admitted case of CBI that on January 13, 2004, A1 had passed the directions to the concerned AR being the RCS. Since, he passed the directions being the RCS, it means that the said act of A1 had direct connection with his official duty.
(vi) Similarly, A1 had given hearing to the society on February 19, 2004 and reserved the case for order. It is admitted case of CBI that being the RCS, he had heard the counsel for the society and reserved the case for order. Mere fact that he had taken the file suo- moto on January 13, 2004 and February 19, 2004 is not sufficient to say that there was no connection between his acts and duties. To my mind, the said acts of A1 had direct or reasonable connection with his official duties.
(vii) Similarly, A1 had passed the revival order on March 01, 2004 being the RCS. The said order had been passed being the Registrar of the Cooperative Societies, thus to my mind, the said act of A1 had direct connection with discharge of his official duty.
60. No doubt, A3, A4, A7 and A8 had submitted a false report when they were deputed to do certain acts, but it is admitted CBI No. 70/08 Page 83 of 89 State through CBI v. Narayan Diwakar & Ors. (Sri Madhuvana CGHS) case of CBI that A3 was deputed to conduct physical verification being the dealing assistant whereas A4 was deputed to conduct inspection being the grade-II officer; A7 was appointed as Election Officer and A8 was appointed as auditor to conduct the audit of the society. No doubt, being the public servants, they were supposed to submit a true and correct report to their office and it has already been discussed that their reports were not true and correct. But the fact remains that they had submitted their reports in discharge of their official duties. Had they not submitted the false report, probably they would not have committed any offence. Since, they had submitted the reports which were prima-facie false, thus their acts become an offence. The said offence had been committed by them being the public servants in discharge of their official duties. Thus, to my mind, their acts had sufficient connection with their duties. Moreover, since for their said acts i.e. submitting false reports in discharge of their official duties, made them answerable for a charge of dereliction of their official duties, thus their acts also satisfy the condition of Safe and Sure Test as propounded by the Apex Court in State of Madhya Pradesh Vs Sheetla Sahai and others (supra) case.
61. In view of the forgoing discussion, I am of the considered opinion that since the acts of above said accused persons as alleged by CBI in its charge-sheet are reasonably connected with the discharge of their official duties and their said acts qualify the Safe and Sure Test as propounded by the Apex Court, thus I am of the view that to prosecute the above said accused persons for penal charges i.e. 120B IPC read with Section 420/468/471 IPC, CBI was required to obtain mandatory sanction under Section 197 Cr. P.C. Since, CBI had CBI No. 70/08 Page 84 of 89 State through CBI v. Narayan Diwakar & Ors. (Sri Madhuvana CGHS) not obtained any such sanction, A1 to A4, A7 and A8 are entitled for discharge for the above said offences.
62. Now, coming to the contention relating to Section 167 IPC, which reads as under:
167. Public servant framing an incorrect document with intent to cause injury. - Whoever, being a public servant, and being as [such public servant, charged with the preparation or translation of any document or electronic record, frames, prepares or translates that document or electronic record] in a manner which he knows or believes to be incorrect, intending thereby to cause or knowing it to be likely that he may thereby cause injury to any person, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.
(emphasis supplied)
63. Bare perusal of Section 167 IPC, makes it clear that if a public servant while performing his duty prepares or translates any document in such a manner which he knows or believes to be incorrect with an intention to cause harm to any person, such public servant can be punished for such an act. Since, public servants can be punished only for those documents, which they prepare or translate in discharge of their official duties being the public servants, thus to my mind, even for the offence under Section 167 IPC, sanction under Section 197 Cr. P.C is required. Since, in the instant case, CBI had not obtained any sanction under Section 197 Cr. P.C, accused persons namely Faiz Mohd. (A3), Ram Nath (A4), Balam Singh Aswal (A7) and P.K. CBI No. 70/08 Page 85 of 89 State through CBI v. Narayan Diwakar & Ors. (Sri Madhuvana CGHS) Thirwani (A8) cannot be charged for the offence punishable under Section 167 IPC.
64. From the above said discussion, it can safely be culled out that Srichand (A5) had hatched a criminal conspiracy with his associate Anna Wankhede (A6) and with some other persons, the object of which was to revive the Sri Madhuvana Cooperative Group Housing Society fraudulently and to get the approval of list of 120 fake members from RCS and to get the land in favour of the said Society at concessional rate from DDA. In furtherance of the said conspiracy, A5 had moved the application dated November 24, 2003 for revival of the said Society bearing forged signature of H.S. Arora, Honorary Secretary of the said Society. In furtherance of the said conspiracy, A6 had prepared numerous fabricated documents and forged the signature of numerous persons as discussed earlier. The said forged and fabricated documents were used in revival of the said Society. It is also undisputed fact that by submitting the forged and fabricated documents, A5 induced the RCS to pass revival order dated March 01, 2004 and also induced him to approve the list of 120 fake members. Thus, prima-facie a case is made out against A5 and A6 for the offence punishable under Section 120B IPC read with Section 420/468/471 IPC. Since, A5 had submitted the application and he also did other acts such as submitting the documents in the RCS, collected documents/order from the RCS and engaged the counsel to represent the Society before the RCS and furnished the documents to Chartered Accountant to obtain a favourable report, thus prima-facie a case is also made out against A5 for the offence punishable under Section 420 IPC.
CBI No. 70/08 Page 86 of 89State through CBI v. Narayan Diwakar & Ors. (Sri Madhuvana CGHS)
(i) Since A6 had forged the signature of numerous persons as discussed earlier and he used the same during physical inspection of 10 % members of the Society, thus prima-facis a case is made out against A6 for the offence punishable under Section 468/471 IPC
65. Since, A3 and A4 had submitted a false report in discharge of their official duties while they holding the office as public servants, thus prima-facie they abused their official position as public servants and since they submitted the false report for obtaining a favourable revival order in favour of the society and for getting approval of the list of 120 fake members in which the society succeeded and their said reports made the society eligible to get land at concessional rate, thus prima-facie a case is made out against A3 and A4 for the offence punishable under Section 13 (2) read with Section 13 (1) (d) (ii) of PC Act.
66. Since, being the public servants, their duties were to submit true and correct report to the office, but they submitted a false report, which was not in the public interest because on the basis of said false reports, A5 had succeeded in obtaining the revival of the society as well as in getting the approval of list of 120 fake members, thus prima-facie A3 and A4 also liable for the offence punishable under Section 13 (2) read with Section 13 (1) (iii) of PC Act.
67. Since, A7 and A8 had submitted a false election report and audit report, which was not in public interest because being the public servants, it was their duties to submit a true and correct report, and by submitting the said reports, they made an attempt to facilitate CBI No. 70/08 Page 87 of 89 State through CBI v. Narayan Diwakar & Ors. (Sri Madhuvana CGHS) the Society to get land at concessional rate from DDA, thus prima-facie a case is made out against A7 and A8 for the offence punishable under Section 15 of PC Act read with Section 13 (1) (d) (ii) and (iii) of PC Act.
Conclusion:
68. Pondering over the ongoing discussion, I am of the considered opinion that :
(a) Prima-facie a case is made out against Srichand (A5) and Anna Wankhede (A6) for the offence punishable under Section 120B IPC read with Section 420/468/471 IPC.
(b) Prima-facie a case is also made out against Srichand (A5) for the offence punishable under Section 420 IPC.
(c) Prima-facie a case is also made out against Anna Wankhede (A6) for the offence punishable under Section 468/471 IPC.
(d) Prima-facie a case is also made out against Faiz Mohd. (A3) and Ram Nath (A4) for the offence punishable under Section 13 (2) read with Section 13 (1) (d) (ii) of PC Act.
(e) Prima-facie a case is also made out against Faiz Mohd. (A3) and Ram Nath (A4) for the offence punishable under Section 13 (2) read with Section 13 (1) (iii) of PC Act.CBI No. 70/08 Page 88 of 89
State through CBI v. Narayan Diwakar & Ors. (Sri Madhuvana CGHS)
(f) Prima-facie a case is also made out against Balam Singh Aswal (A7) and P.K. Thirwani (A8) for the offence punishable under Section 15 of PC Act read with Section 13 (1) (d) (ii) and (iii) of PC Act.
69. However, the collected evidences are not sufficient to make out a prima-facie case against Narayan Diwakar (A1), Daya Nand Sharma (A2) for any of the offences as mentioned in the charge- sheet, thus I hereby discharge both of them from all the charges.
Announced in the open Court on this 14th day of December, 2015 (PAWAN KUMAR JAIN) Special Judge-01, CBI, North West Rohini Courts, Delhi/sm CBI No. 70/08 Page 89 of 89