Uttarakhand High Court
Anurag Jain vs Central Bureau Of Investigation on 19 September, 2019
Equivalent citations: AIRONLINE 2019 UTR 480
Author: Lok Pal Singh
Bench: Lok Pal Singh
Reserved Judgment
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Criminal Misc. Application (C-482) No. 160 of 2013
Anurag Jain ............. Applicant
versus
Central Bureau of Investigation ............. Respondent
Mr. U.K. Uniyal, Senior Advocate assisted by Mr. Sandeep Kothari,
Advocate for the applicant.
Mr. Sandeep Tandon, Special Counsel for the C.B.I. / respondent.
List of cases referred:
1. 2017 (1) U.D. 160, Randhir Singh Vs CBI and others
2. (2013) 1 SCC (Cri) 986, Amit Kapoor vs Ramesh Chander.
3. (2013) 3 SCC 330, Rajiv Thapar vs Madan Lal Kapoor
Per: Hon'ble Lok Pal Singh, J.
By means of present application under Section 482 Cr.P.C., the applicant seeks to quash the charge sheet dated 29.09.2012, as also the entire proceedings of criminal case no. 04 of 2012, CBI Vs Anurag Jain, under Sections 420, 468, 471 of IPC; Section 3/7 of the Essential Commodities Act and Section 9B of the Explosive Act, pending in the court of Addl. Chief Judicial Magistrate, Dehradun (Special Magistrate CBI).
2) Brief facts of the case are that an FIR was lodged by N.K. Bhatt, Inspector CBI, Dehradun on dated 29.03.2012 against the applicant Anurag Jain, Proprietor, Anurag Gas Agency and others, in respect of offences punishable under Sections 120B, 420 IPC, Section 3/7 of the Essential Commodities 2 Act and Section 13(2) read with 13(1)(d) of the Prevention of Corruption Act stating therein that the domestic gas cylinders are being diverged for use in the commercial establishments in furtherance of conspiracy of the sales officer and the proprietor of the gas agency. It is also alleged in the FIR that the office-cum-residential premises is being used for storage of domestic and commercial gas cylinders in contravention of the license and there are lapses and laxity in maintaining the records of the gas agency.
3) On the basis of aforesaid allegations, a criminal case has been registered and the investigation had been initiated by the CBI. After completion of investigation, charge sheet was submitted against the applicant under Sections 420, 468, 471 of IPC; Section 3/7 of Essential Commodities Act and Section 9B Explosive Act.
4) Respondent CBI has filed its counter affidavit stating therein that charge sheet has been filed against the applicant after sufficient oral and documentary evidence were found against him. In reply to the averments made in paragraph nos. 6 and 7 of the affidavit, it has been stated that on 23.02.2013 a number of gas agencies were inspected, but during inspection no evidence was found against those gas agencies warranting CBI enquiry / investigation. It is further stated that the applicant's gas agency has not been made scape goat as during inspection sufficient evidence were 3 found against the applicant and this is precisely the reason that the applicant was charge sheeted alone, whereas the other accused persons were exonerated. It is alleged that gas agency of the applicant dishonestly and fraudulently created false documents with the object to cheat H.P.C.L. and used these documents as genuine. During inspection shortage of filled domestic gas cylinders were found in the stock of M/s Anurag Gas Agency and the applicant could not give any explanation regarding the same to the inspecting team about the shortage of the domestic gas cylinders. Thus, it is apparent that these domestic cylinders were diverted in the market for commercial use which is an offence under the Essential Commodities Act. During the course of inspection by the Sales Officer, various irregularities were found and as a result of which he had blocked a large number of gas connections. This clearly shows that M/s Anurag Gas Agency had caused wrongful loss to HPCL and obtained wrongful gain. It is also stated in the counter affidavit that during the course of surprise check, large number of filled domestic cylinders were found stored in the office-cum-residence of the applicant. Also, as per the Explosives Act, a quantity exceeding 100 Kg. cannot be stored at a place other than the place for which the explosive licence has been issued which is in clear contravention of the explosive licence granted to M/s Anurag Gas Agency specifically for 601, Kargi Grant, Dehradun and not for 581, Lakhibagh, which is the office-cum-residence of the applicant.
45) Learned Senior Counsel appearing on behalf of the applicant would submit that his first argument is in respect to the jurisdiction of the CBI to investigate the matter in a State without there being any consent of the State Government. He would further argue that the jurisdiction of the Central Government can only be extended if and only if the State Government has given a consent with respect to the investigation of that offence under Section 6 of the Delhi Special Police Establishment Act, 1946 (for brevity hereinafter referred to as the D.S.P.E. Act, 1946).
6) Section 6 of the D.S.P.E. Act, 1946 is quoted herein under for reference:
"6. Consent of State Government to exercise of Powers and Jurisdiction .- Nothing contained in Section 5 shall be deemed to enable any member of the Delhi Special Police Establishment to exercise powers and jurisdiction in any area in [a State, not being a Union Territory or Railway area, without the consent of the Government of that State.]"
7) Learned counsel for the respondent CBI relied upon a Notification no. 70 / Home (CBI) / 2001 dated Dehradun January 8, 2001, issued by Government of Uttaranchal (Home Department), wherein in pursuance of the provisions of Section 6 of the D.S.P.E. Act, 1946, the Governor of Uttaranchal (now Uttarakhand) has accorded consent to the extension of powers and jurisdiction of members of the D.S.P.E. to the whole of the State of Uttaranchal (now Uttarakhand) for investigation of offences mentioned in Schedule I. Subject 5 however, to the condition that no such investigation shall be taken up in cases relating to the public servants controlled by the State government of Uttaranchal (now Uttarakhand) except with the prior written permission of the State Government.
8) Learned counsel for the respondent CBI also drew attention of this Court towards a decision of this High Court given in the case of Randhir Singh1. The relevant para is reproduced hereunder:
"21. The question which arises next is -can CBI suo moto take up investigation of any crime anywhere in the country? The reply as posted by the CBI in the web side has been quoted in paragraph nos. 13, 14 and 15 of the rejoinder affidavit. CBI, by means of web side clarification, has replied that the CBI has no jurisdiction to exercise powers of investigation suo moto within the State territory and if a general consent is given that is meant for the public servants under the control of the Central Government working in the State."
(emphasis supplied)
9) A perusal of the documents brought on record would reveal that the charge sheet was challenged before this Court, as soon as the same was submitted against the applicant, even before the Magistrate could take cognizance over the said charge sheet. Though, the co-ordinate Bench of this Court vide order dated 27.02.2013, did not stay the further proceedings of the criminal case, but the case was entertained to be adjudicated upon the point - whether CBI had jurisdiction to investigate into the matter in hand? Further proceedings of the criminal case were not stayed by this Court and it was only directed that no coercive measures shall 6 be adopted to enforce the attendance / presence of the accused-petitioner before the trial court till the next date of listing. Neither cognizance in the matter was taken, nor the criminal case proceeded further against the applicant, for the reasons best known to the trial judge. Thus, mere submission of charge sheet, unless the Magistrate had taken cognizance in the matter, does not grant any unfettered right to the accused against whom the charge sheet has been submitted to challenge the charge sheet, but the co-ordinate Bench while granting the interim order did not take note of said fact.
10) Thus, the present criminal misc.
application challenging the charge sheet, firstly, is premature and charge sheet could not have been challenged by the applicant. The applicant should have wait unless the Magistrate took cognizance on the matter and should not have filed the criminal misc. application under Section 482 Cr.P.C. before this Court straight away for quashing of the charge sheet. Secondly, the applicant did not challenge the continuation of investigation by the CBI saying that the CBI has got no jurisdiction to investigate the matter. This pleading should have been taken by the applicant when the investigation was entrusted to the CBI. Furthermore, the State of Uttaranchal has issued a Notification no. 70 / Home (CBI) / 2001 dated Dehradun January 8, 2001, in pursuance of the provisions of Section 6 of the D.S.P.E. Act, 1946, after the Governor of 7 Uttaranchal (now Uttarakhand) has accorded consent to the extension of powers and jurisdiction of members of the D.S.P.E. to the whole of the State of Uttaranchal (now Uttarakhand) for investigation of offences mentioned in Schedule I. The only caveat to it is that no such investigation shall be taken up in cases relating to the public servants controlled by the State Government of Uttaranchal except with the prior written permission of the State Government. Thus, in view of the Notification dated 8th January, 2001, there was no requirement to seek permission by the CBI from the State Government to investigate the offences complained of against the applicant.
11) Admittedly, the applicant herein is the proprietor of 'Anurag Gas Agency' and was appointed as a dealer of Hindustan Petroleum Corporation Ltd., as such, he cannot be considered as an employee / public servant. Thus, in the opinion of this Court, the general consent given by the State Government to the CBI to investigate the matter within its territory is fully applicable in the instant case as the applicant, in no way, be considered a public servant under the control of Central Government working in the State of Uttarakhand. Therefore, the argument of learned Senior Counsel appearing for the applicant that CBI had no jurisdiction to investigate the matter within the territory of State of Uttarakhand without there being any consent of the State Government is misconceived and untenable. Since the cognizance 8 has not been taken by the Magistrate in the matter and the charge sheet straight away has been challenged before this Court, thus the provisions contained in Section 482 Cr.P.C. does not attract in the case in hand as this provision can be exercised by the High Court with caution only to prevent the abuse of process of any court or otherwise to secure the ends of justice. Since the criminal case against the applicant is yet to commence before the trial court, as such, the provisions under Section 482 Cr.p.C., to my mind, are not attracted at this stage.
12) In exercise of extraordinary jurisdiction under Section 482 of Cr.P.C., this Court cannot act as a trial court and further the court cannot scrutinize the evidence available on record at this stage. However, as the applicant has averred in the present C-482 petition that no material has come against him in the charge sheet, this Court has considered the entire material brought on record by the applicant and the CBI to evaluate as to whether any prima facie case is made out on the basis of charge sheet submitted against the applicant, or not?
13) On a perusal of material available on record, prima facie, this Court if of the view that there is sufficient material to proceed against the applicant in the criminal case. However, it is made clear that the Special Magistrate (CBI) has not taken cognizance in the matter yet after perusing the material collected by the Investigating Agency. But, 9 certainly, this is not the stage to quash the charge sheet on the ground raised in the present C-482 petition, as this Court does not find it a case where continuation of the criminal proceedings against the applicant would amount to abuse of process of any court. Powers exercised by the Court under Section 482 of Cr.P.C. though are unlimited and inherent, but the same are to be exercised judiciously and with caution.
14) Charge sheet, in the instant case, was submitted against the applicant after collection of credible material and evidence against him, as during inspection, applicant failed to give explanation regarding shortage of filled domestic gas cylinders, which were found in the stock of M/s Anurag Gas Agency, meaning thereby, that these cylinders were meant to be diverted in the market which is an offence punishable under the Essential Commodities Act. Various irregularities were found during the course of inspection in the applicant's gas agency and a large number of gas connections were blocked. This clearly shows that M/s Anurag Gas Agency had caused wrongful loss to HPCL and obtained wrongful gain. A large number of filled domestic cylinders were found stored in the office- cum-residence of the applicant during inspection. A perusal of the papers brought on record would reveal that explosive licence was issued to M/s Anurag Gas Agency to store compressed gas in cylinders at khasra no. 601, Haridwar Bye Pass Road, Dehradun and there was a specific condition 10 in the explosive licence that "compressed gas cylinders shall be stored only in the storage shed", whereas the compressed gas cylinders were kept stored at 581, Lakhi Bagh, Dehradun, which is office-cum-residential premises of the applicant. It is also evident that the applicant violated the conditions of the Explosive licence granted to him by the HPCL. There is no factual denial by the applicant that nothing has come against him during investigation. Charge sheet has been challenged only on the pretext that the consent was not granted by the State Government to the CBI to conduct an investigation in the matter.
15) Hon'ble Apex Court in Amit Kapoor2, has laid down certain principles in respect of exercise of jurisdiction under Section 482 of Cr.P.C. One of the principle is that the Court should apply the test as to whether the uncontroverted allegations, as made from the record of the case and the documents submitted therewith, prima facie establish the offence or not. If the allegations are so patently absurd and inherently improbable that no prudent person can ever reach such a conclusion and where the basic ingredients of a criminal offence are not satisfied then the court may interfere. Where the factual foundation for an offence has been laid down, the courts should be reluctant and should not hasten to quash the proceedings even on the premise that one or two ingredients have not been stated or do not appear to be satisfied if there is substantial compliance with the requirements of the 11 offence. The power is to be exercised ex debito justitiae, i.e., to do real and substantial justice for administration of which alone, the courts exists.
16) The Hon'ble Apex Court in Para 28 of ruling of Rajiv Thapar3 has held as under:-
"28. The High Court, in exercise of its jurisdiction under Section 482 of the Cr.P.C., must make a just and rightful choice. This is not a stage of evaluating the truthfulness or otherwise of allegations levelled by the prosecution/complainant against the accused. Likewise, it is not a stage for determining how weighty the defences raised on behalf of the accused is. Even if the accused is successful in showing some suspicion or doubt, in the allegations levelled by the prosecution/ complainant, it would be impermissible to discharge the accused before trial. This is so, because it would result in giving finality to the accusations levelled by the prosecution/ complainant, without allowing the prosecution or the complainant to adduce evidence to substantiate the same. The converse is, however, not true, because even if trial is proceeded with, the accused is not subjected to any irreparable consequences. The accused would still be in a position to succeed, by establishing his defences by producing evidence in accordance with law. There is an endless list of judgments rendered by this Court declaring the legal position, that in a case where the prosecution/complainant has levelled allegations bringing out all ingredients of the charge(s) levelled, and have placed material before the Court, prima facie evidencing the truthfulness of the allegations levelled, trial must be held."
17) In view of the findings recorded above and having considered the ratio of the judgments supra rendered by Hon'ble Supreme Court, in my opinion, prima facie case is made out against the applicant at this stage. Even from a bare perusal of FIR as well as the charge sheet, it is apparent that foundation of criminal offence is laid against the applicant in the instant case. The jurisdiction under Section 482 Cr.P.C. should not be exercised to stifle or scuttle the legitimate 12 prosecution. Certainly this is not the stage to quash the charge sheet. A charge sheet or proceedings of a criminal case should not be curbed on the ground that in case trial is held and concluded, the chances of conviction of the applicant in near future are very bleak.
18) The criminal misc. application filed under Section 482 of Cr.P.C., therefore, fails and is hereby dismissed. Liberty is, however, granted to the applicant to place all the factual pleas before the trial court for securing his acquittal, at an appropriate stage.
(Lok Pal Singh, J.) Dt. September 19, 2019.
Negi 13