Allahabad High Court
Arun Kumar vs Central Bureau Of Investigation, ... on 5 February, 2014
Author: Dharnidhar Jha
Bench: Dharnidhar Jha
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR RESERVED Court No. - 41 Case :- CRIMINAL REVISION No. - 3636 of 2013 Petitioner:- Arun Kumar Opposite Party :- Central Bureau Of Investigation, Anti-Corr.Branch & Another Counsel for Petitioner :- Sri Abhishek Kumar Counsel for Opposite Party :- Sri Anurag Khanna(C.B.I.) With Case :- CRIMINAL REVISION No. - 3490 of 2013 Petitioner:- Radhey Shyam Chaubey Opposite Party :- C.B.I. Anti Coruption Branch Ghaziabad Counsel for Petitioner :- Sri Dharmendra Singhal, Sri Sunil Singh Counsel for Opposite Party :- Sri Anurag Khanna With Case :- CRIMINAL REVISION No. - 3494 of 2013 Petitioner:- R.P. Yadav Opposite Party :- State Thru. C.B.I. Counsel for Petitioner:- Sri I.B. Isngh, Sr. Advocate, Sri Prashant with him.
Counsel for Opposite Party :- Sri Anurag Khanna With Case :- CRIMINAL REVISION No. - 3673 of 2013 Petitioner:- Ravindra Nath Mishra Opposite Party :- State Of U.P. And Anr.
Counsel for Petitioner:- Sri Mukesh Kumar Singh Counsel for Opposite Party :- Sri Anurag Khanna With Case :- CRIMINAL REVISION No. - 49 of 2014 Petitioner :- Ajai Kumar Singh Opposite Party :- State Of U.P. And Anr.
Counsel for Petitioner:- Sarvasri Nandit Srivastava, Vinay Saran Counsel for Opposite Party :- Sri A. Khanna With Case :- CRIMINAL REVISION No. - 50 of 2014 Petitioner :- Abhishek Gautam Opposite Party :- State Of U.P. And Anr.
Counsel for Petitioner :- Sarvasri Nandit Srivastava,Vinay Saran Counsel for Opposite Party :- Sri A.Khanna With Case :- CRIMINAL REVISION No. - 51 of 2014 Petitioner:- Ram Prasad Mishra Opposite Party :- State Of U.P. And Anr.
Counsel for Petitioner :- Sarvasri Nandit Srivastava,Vinay Saran Counsel for Opposite Party :- Sri A.Khanna With Case :- CRIMINAL REVISION No. - 20 of 2014 Petitioner :- Narendra Kumar And 17 Others Opposite Party :- C.B.I. Anti Corruption Branch Ghaziabad Counsel for Petitioner:-Sri Dharmendra Singhal Counsel for Opposite Party :- Sri Anurag Khanna With Case :- CRIMINAL REVISION No. - 62 of 2014 Petitioner:- Smt. Sushma Asthana And 2 Others Opposite Party :- C.B.I. Anti Corruption Branch Ghaziabad Counsel for Petitioner :- Sri Dharmendra Singhal Counsel for Opposite Party :- Sri Anurag Khanna Hon'ble Dharnidhar Jha, J
1. The present batch of nine criminal revision petitions arise out of order dated 25.11.2013 passed by the learned Special Judge (C.B.I.), Court No. 1, Ghaziabad in Special Case No. 49 of 2011 by which the petitions filed by the petitioners seeking their discharge from the case were dismissed. It appears further from the heads of charges which appear annexed to some of the petitions, like, that filed by petitioner Arun Kumar, that charges against the accused persons under Sections 120B, 420, 467, 468, 471 I.P.C. and Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act were framed.
2. Undisputedly, petitioners Arun Kumar, Radhe Shyam Chaube, R.P. Yadav, Ajay Kumar Singh and Ram Prasad Mishra were District Judges at one point of time or the other of the judgeship of Ghaziabad in the State of U.P. Petitioner Arun Kumar was In-charge District Judge, Ghaziabad from the 1st of January, 2008 to the 3rd of February, 2008. Petitioner Radhe Shyam Chaube was the District Judge of the same judgeship from the 30th of November, 2006 to the 31st of December, 2007. Petitioner R.P. Yadav was District Judge, Ghaziabad from the 14th of January, 2003 to the 31st of July, 2008 whereas petitioner Ravindra Nath Mishra was the District Judge, Ghaziabad from 4.9.2004 to 15.1.2006. Petitioner Ajay Kumar Singh was the District Judge of the above judgeship from the 13th of February, 2006 to the 19th of November, 2006 whereas Ram Prasad Mishra was the District Judge of the same judgeship from the 9th of March, 1999 to the 30th of June, 2002. As regards petitioner Narendra Kumar of Criminal Revision Petition No. 20 of 2014, he was the Assistant in the judgeship and petitioner Abhishek Gautam of Criminal Revision Petition No. 50 of 2014 is the son of petitioner Ajay Kumar Singh of Criminal Revision Petition No. 49 of 2014, who was the District Judge of Ghaziabad. The three petitioners of Criminal Revision Petition No. 62 of 2014 are the wife or other relatives of late Ashutosh Asthana, who appears the kingpin of the entire sordid scam having gained notoriety as "Ghaziabad G.P.F. Scam".
3. The case relates to fraudulent withdrawal of an amount of Rs.6,58,57,892/- in between years 2001-08 from the General Provident Fund (G.P.F.) account of class IV employees of the above said Judgeship. Some class III employees were also shown as class IV employees, and withdrawals were processed, sanctioned and made by the six District Judges, who are the petitioners in as many revision petitions of the present batch. Not only that some fictitious and real persons, who were not the employees of the judgeship, were shown to be the employees under class IV-cadre and different amounts were withdrawn in their fictitious names and were also shown paid to them.
4. It also appears that, initially, the case was registered by the local police and investigation was completed by sending up some persons for trial but, subsequently, the matter being highlighted, the State Government recommended for investigation of the entire fraud and fraudulent withdrawals by the Central Bureau of Investigation (C.B.I.) by issuing notification to that effect and, accordingly, the case was transferred to the C.B.I. It also appears that the Supreme Court also directed the investigation by the C.B.I.
5. After investigation of the case, the C.B.I. found the complicity of seven District Judges including the six petitioners, who were the District Judges at different points of time of the judgeship of Ghaziabad with other persons numbering 78 in total. It was revealed that Ashutosh Asthana (since dead), while working as Bill Clerk and Central Nazir of the District Court, Ghaziabad had, under criminal conspiracy with the District Judges, named in the charge sheet filed by the C.B.I. had created fraudulent applications and records for withdrawing different amounts in different names and, thus, on the basis of fake/forged documents, i.e., applications, notings, bills, sanction orders, etc. withdrew the above noted amount of Rs.6,58,57,892/- from the Government Exchequer in the names of class IV employees using the fabricated records as genuine, some of which were in fictitious and non-existent names, and thus committed the offence.
6. The full facts of the case has been revealed by the C.B.I. with the relevant details as regards the individual complicity in its charge sheet dated 1.7.2010 submitted in Case No. RG-1(A)2008/CBI/ACB/Gzb. The charge sheet contains full details of individuals in whose names different amounts were sanctioned and withdrawn and was shown paid along with all the relevant details of vouchers in the above connection.
7. As regards the allegations against the present set of petitioners, it appears that Ram Prasad Mishra, who was the District Judge, Ghaziabad from 9.3.1999 to 30.6.2002, was alleged not to have signed any sanction order or withdrawal orders but, during his inspection of the Nazarat and other relevant sections of his court in the capacity of District Judge, Ghaziabad, he had certified that withdrawals were as per rules and payments were really genuine. He had not sought the reconciliation of the sanction-records with that of the individual balance sheets standing in the names of different employees and, as noted above, had certified the transactions by which Rs.29,87,309/- had been withdrawn during his tenure as the District Judge. This allegation against Ram Prasad Mishra, the then District Judge, Ghaziabad appears in paragraph 16.13 of the charge sheet submitted by the C.B.I. Evidently, the allegation that fake persons, shown as employees, were paid up different amounts on fake applications, notings, bills, vouchers or payment orders appears against him.
8. So far as petitioner Arun Kumar is concerned, he was In-charge District Judge, Ghaziabad, as noted above, from the 1st of January, 2008 to the 3rd of February, 2008 just about for a month and, during that period, he had sanctioned the withdrawal of Rs. 10.70 lakh from the G.P.F. account of different employees and an amount of Rs. 5.90 lakh had indeed been withdrawn out of the total sanctioned amount out of which cheques worth Rs.2.20 lakh remained unpaid on account of not being presented to the Bank due to the fraud having come into the notice of this Court. The allegation against petitioner Arun Kumar appears in paragraphs 16.27 and 16.28 of the charge sheet with annexed details of the fraudulent employees.
9. So far as allegation against Radhe Shyam Chaube, the then District Judge, Ghaziabad is concerned, it has been alleged in paragraph 16.26 of the charge sheet that in between 30.11.2006 and 31.12.2007, while he was the District Judge, Ghaziabad, a total amount of Rs.31,78,45,00/- was fraudulently withdrawn from the accounts of class III and class IV employees out of whom some of the names were fictitious and some were outsiders, who were not employees of the civil court.
10. As regards petitioner R.P. Yadav, it appears from paragraphs 16.14 to 16.17 of the charge sheet as also from paragraph 50 of the order impugned herein that he was the District Judge, Ghaziabad from 14.1.2003 to 31.7.2004 and a total amount of Rs.85,71,052 was withdrawn from the G.P.F. account of class III employees and were shown paid to them. The highlight of the withdrawal was that the class IV employees from whose accounts withdrawal had been made by virtue of sanction orders passed by R.P. Yadav, most of them did not have a penny as balance in their accounts and further that some of the class III employees were shown in class IV cadre of the employees of the judgeship and the total of such withdrawal through the above mode was of Rs.21,85,000/-. An amount of Rs.8,80,000/- only was fraudulently withdrawn and was shown paid to persons who were rank outsiders and did not figure in the list of employees of the judgeship. R.P. Yadav had himself sanctioned the withdrawal and the bills prepared in the light of the sanction order passed by R.P. Yadav, had been passed in turn also by the then drawing and disbursing officer of the judgeship.
11. As regards petitioner Ravindra Nath Mishra, he was the District Judge, Ghaziabad from 4.9.2004 to 15.1.2006 and total fraudulent withdrawal from the G.P.F. account, which was sanctioned by him, was to the tune of Rs.1,28,70,054/- out of which payment of Rs. 68, 50,517 was shown to class IV employees and another amount of Rs. 26,76,537 was withdrawn showing class III employees as class IV employees of the Judgeship. An amount of Rs.33,43,000/- was shown paid or was really paid to persons, who were rank outsiders and were never the employees of the judgeship. The sanction orders passed in the tenure of petitioner R.N. Mishra were repudiated by the drawing disbursing officer as not bearing their signatures. The allegation against petitioner Ravindra Nath Mishra appears in paragraphs 16.18 and 16.19 of the charge sheet.
12. As regards petitioner Ajay Kumar Singh, I have already noted that he was District Judge,Ghaziabad from 13.2.2006 to 19.11.2006 and the allegations against him appear in paragraphs 16.22 and 16.23 and it is revealed that a total amount of Rs.31,74,215/-was similarly withdrawn, as was withdrawn during the period of other district judges.
13. As regards petitioner Ram Prasad Mishra, allegation against him appears in paragraph 16.13, and, undeniably, he was the District Judge, Ghaziabad from 9.3.2009 to 30.6.2002. An amount of Rs.29,87,309/- was allegedly withdrawn during his period fraudulently and defrayed fraudulently by showing paid to different employees.
14. Petitioner Abhishek Gautam was not the employee of the civil court. He happened to be the son of petitioner Ajay Kumar Singh, once the District Judge, Ghaziabad. It appears from the allegation and discussion of evidence made by the learned Trial Judge that he had taken out a loan for purchasing a motorcycle and a cheque of Rs. 36,000/- was paid into his loan account out of the withdrawn money by showing a G.P.F. sanction in his name by falsely showing him also as an employee of the judgeship.
15. So far as the three petitioners of criminal revision petition no. 62/14, namely, Smt. Sushma Asthana, Dharmendra Asthana and Smt. Savitri Asthana are concerned, the allegation against them appears discussed by the learned Trial Judge in paragraph 58 of the impugned order, and it is indicated that Smt. Asthana, who was the wife of the chief architect of the whole fraud, namely, Ashutosh Asthana, had received an amount of Rs.15,73,000/- after eleven fraudulent withdrawals out of which part of the amount was sanctioned by petitioner R.P. Yadav and the remaining amount was sanctioned by other District Judges, who are also the petitioners. Smt. Sushama Asthana was not an employee of the civil court. Similarly, petitioner Dharmendra Asthana, brother of Smt. Sushma Astahana and brother-in-law (sala) of Ashutosh Asthana, had been credited an amount of Rs.18,73,000/- by being sanctioned at eleven different occasions, and he was also never an employee of the judgeship. Similar is the case with petitioner Smt. Savitri Asthana, who was also not an employee of the civil court. It appears that she had also received some part of payment of the fraudulently withdrawn amount. She is the wife of Dharmendra Asthana.
16. The three petitioners of criminal revision petition no. 62 of 2014, i.e., Smt. Sushma Asthan, Dharmendra Asthana and Smt. Savitri Asthana, were not sent up by the C.B.I. rather as regards their complicity, the C.B.I. had submitted a closure report, but the learned Special Judge, who had passed the summoning order after having perused the charge sheet, had summoned them.
17. The learned Trial Judge, while passing the impugned order, has taken up the case of each and every accused from paragraph 50 of the impugned order and, thereafter, has discussed the materials against each of the petitioners, collected by the C.B.I. during investigation, which was mainly documentary evidence, and found out that the applications seeking discharge of the petitioners from trial of the case was not maintainable.
18. I had the occasion of hearing Sri Indra Bhushan Singh, Senior Advocate for petitioner R.P. Yadav, Sri Dharmendra Singhal, Advocate for petitioner Radhe Shyam Chaube and three petitioners of Criminal Revision Petition No. 62 of 2014 and the solitary petitioner of Criminal Revision Petition No. 20 of 2014, i.e., Narendra Kumar. I also heard Sri V.M. Jaidi, Senior Advocate, appearing for petitioner Ravindra Nath Mishra in Criminal Revision Petition NO. 3673 of 2013. Sri Vinay Saran, Advocate, has appeared for all the petitioners of Criminal Revision Petitions No. 49,50 and 51 of 2014. Sri Anurag Khanna, Advocate appeared on behalf of the C.B.I.
19. The contention, which was advanced by the learned counsel for the parties, was mainly touching upon every aspects of the case, like, the grant of pardon to an accomplish, the admissibility of the evidence and other such matters, which issues were also agitated before the learned Trial Judge during the hearing of the petitions filed by all the petitioners seeking their discharge from the case. Some of the petitioners, like, Ravindra Nath Mishra of Criminal Revision Petition No. 3673 of 2013, has taken a plea that he had neither passed any sanction order nor delegated any power to the Drawing and Disbursing Officers and further he had not received any amount and there was no documentary evidence against him showing that he had participated in any manner in defrauding the Exchequer.
20. The submissions on behalf of other petitioners were that sanction under Section 19 of the Prevention of Corruption Act, 1988 (P.C. Act, for short) was required as the discharge of the duty, and passing sanction orders were part of the official duty of the District Judges and, as such, non-sanctioning of the prosecution of the petitioners, who were the District Judges or the employees of the civil court, rendered the trial illegal. Submission also was that no offence under Section 13(1)(d) of the P.C. Act was made out and, as such, the jurisdiction of the court was also ousted and further that the evidence was inadmissible. Same and similar arguments were advanced by other counsel appearing for other petitioners.
21. There is no dispute in it that petitioners were District and Sessions Judges and Rule 13 of the General Provident Fund Uttar Pradesh Rules, 1985 (Rules, 1985 for short) in its second Schedule by Item No. III, which is headed 'in respect of non-gazetted officers only' declares as to who is the authority competent to grant temporary advance and the District and Sessions Judge finds place at serial no.(c). Except Ravindra Nath Mishra, petitioner in Criminal Revision Petition No. 3673 of 2013, there is no challenge to this fact that the other District Judges, like, Arun Kumar, Radhe Shyam Chaube, R.P. Yadav, Ajay Kumar Singh and Ram Prasad Mishra, had sanctioned different amounts and, on the basis of that sanction order, fraudulent withdrawals had been made of different sums of money. Most of the pleas were that in spite of being the sanctioning authority, it was the duty of the Drawing and Disbursing Officers of the judgeship during whose period the fraudulent withdrawals were made and the money was paid to persons, to ensure sanctity and appropriate observance of Rules and procedures and it could not be the liability of the District Judges-petitioners.
22. It is, first, necessary to find out as what was the rule of sanction of any advance from the G.P.F. of an employee? It appears from Rule 13(6) of the Rules 1985 that for sanctioning any advance on the application of the employee, the sanctioning authority had to pay due regard to the fact that sufficient amount was lying in the credit of the subscriber in the fund. Besides, the sanction order must specify the General Provident Fund account and a copy thereof must be enclosed by the Drawing and Disbursing Officers maintaining the G.P.F. passbook to the Accounts Officer. Moreover, there is a limit to sanctioning advances from G.P.F. account as may appear from Rule 13 and, on every occasion, the sanctioning authority has to record his reasons for granting the advance. Besides, sub Rule (4) of Rule 13 puts an embargo on the amount to be sanctioned by the sanctioning authority and it is very clear that no sanction order shall exceed the three months' pay or half of the amount at the credit of the subscriber in the fund, whichever is less and that too only when the earlier grant of such advance had been twelve months before the last sanctioning order and again, only when all the dues which were to be cleared by the employee, had been cleared by paying up instalments so as to liquidating the earlier advance.
23. It appears undisputed that most of the employees in whose favour the sanction orders were passed were fictitious persons and were not employees of the civil court Ghaziabad. Other set of fictitious sanctions was that class III employees had been shown in the category of class IV employees and applications had been processed and sanction orders had been passed by the sanctioning authorities and, thereafter, the Drawing and Disbursing Officers had processed the records and finally withdrawn the amount. It is also available from the records as also from the impugned order passed by the learned Special Judge that in cases of most of the employees, who were real employees of the civil courts, Ghaziabad, they had nil account as regards their General Provident Fund deposit and in spite of that, fictitious applications were processed by Ashutosh Asthana or the petitioner, like, Narendra Kumar, an Assistant in civil court, Ghaziabad, and the District Judges except Ravindra Nath Mishra had sanctioned the amounts and, on that basis, the respective Drawing and Disbursing Officers had withdrawn the amounts. The Treasury Officers also appeared in league with the employees or the District Judges and the Drawing and Disbursing Officers because the record reveals that there was one bill, which had been processed even without there being any signature or sanction order, and the payment had been made by the Treasury Officer on that bill also.
24. The case of Ravindra Nath Mishra might be that neither he had delegated powers nor he himself had sanctioned any amount and further neither he received any pecuniary or other benefits or part of the cash. However, the learned Trial Judge has recorded in paragraph 70 of the impugned order that the withdrawal of an amount of Rs.28.54 lacs was made during his administrative tenure and, within the period, he was the administrative head of the department and while making annual inspection of administrative and accounts offices of the judgeship, he had recorded in paragraph 27(e) of his Inspection Note that he found that the deductions from the salaries of the employees for being credited to their respective accounts, were being regularly made with a few exceptions and he further issued a direction that the account should be updated and closed. As regards the G.P.F. advance to different employees, he was taking a plea that he did not have any knowledge nor he had sanctioned any amount being the head of the department, but during his inspection, he had seen relevant records and, in spite of that, he did not raise any eye-brows. He was the head of the department and he had, during that inspection, perused the relevant records, registers, bills, etc. and ignored the fraudulent withdrawals or fraudulent processing of the applications only because he was fully aware of the whole transaction of defrauding the exchequer, which appears more prominent against him as applications in his tenure were also from those outsiders who were not the employees of the civil court or an employee of cadre-III could not have been in cadre-IV of the employees so as to appropriately applying for the G.P.F.-advance and payments of sums of money had been made to such fictitious persons also.
25. There is no dispute in it that other District Judges had sanctioned and withdrawals had been made in the light of sanction orders passed by them. The learned Trial Judge has recorded in different paragraphs of his impugned order that most of the District Judges had enjoyed courtesies by receiving valuable articles, like, wooden furnitures, electronic gazettes or instruments, electric appliances, etc. out of the fund-money withdrawn so fraudulently. There is no dispute in it, as appears discussed in the case of petitioner Abhishek Gautam, the son of petitioner Ajay Kumar Singh, once District Judge, Ghaziabad in whose period an amount of Rs.31,74,215/- was withdrawn, that he was also sanctioned a loan from the G.P.F as an employee of the civil court during the tenure of his father Ajay Kumar Singh and that amount of Rs.36,000/- was credited into his motorcycle loan account. Similar is the case with three petitioners, namely, Smt. Sushama Asthana, Dharmendra Asthana and Smt. Savitri Asthana, who had also received lakhs of rupees on being credited into their accounts as appears from the discussion of the relevant materials in paragraph 58 of the impugned Judgement where the learned trial Judge has indicated the amount which were credited or received by the three petitioners of Criminal Revision Petition No. 62 of 2014.
26. While addressing the Court, it was the unanimous submission on behalf of all the counsel that the learned Special Judge had no jurisdiction to try the case and, as such, it was out and out unjust and illegal that he was carrying on the trial by dismissing the discharge applications and was further going on to frame the charges. For answering the submission as also in order to finding out as to what is the jurisdiction of the Special Judge, who had passed the impugned order, it is pertinent to have a glance of the relevant provisions of the Prevention of Corruption Act.
27. Chapter II of the P.C. Act contains the relevant provisions. There are only four sections under that Chapter and Section 3 empowers the Central Government or the State Government to appoint as many Special Judges, as may be necessary, for such areas or for such case or group of cases specified in the notification of appointment to be issued in the official Gazette, to try such case or group of cases as is indicated by sub Section 1(a)&(b). Sub-section (1)(a) relates to the offences, which are made punishable by the P.C. Act, which are to be tried by him, whereas clause (b) empowers the Special Judge to try any conspiracy to commit or any attempt to commit or any abettment of any of the offences specified in clause (b). Thus, it appears that Section 3 empowers the Special Judge only to try offences under the P.C. Act. It also creates the courts of Special Judge or Judges area wise and offence wise. However, what appears from Section 4 is that in addition to Section 3, which is in respect of power to appoint the Special Judge to try cases under the P.C. Act, power is vested in the Special Judge under Section 4 to try offences other than those under the P.C. Act which had been committed by the accused for which he could be tried at the same trial. Sub-section (2) requires area-wise jurisdiction of the Special Judge to be notified by the Central Government by a notification. Thus, what appears is that the court of Special Judge to be created under Section 3 of the P.C. Act, derives the jurisdiction of trying the case area-wise and offence-wise as is specified by Section 4 of the P.C. Act. Sub Section (4) of Section 4 directs that the trial of such offences which the Special Judge is empowered to hold has to be held on day to day basis. Thus, it is not that the Special Judge could be trying offences only under the Prevention of Corruption Act, rather he is empowered and equally competent to try other offences also than those specified by Section 3 of the P.C. Act if the same has been committed by the accused with which offences the accused has to be charged at the same trial.
28. So far as the procedure for trial of the case by the Special Judge is concerned, the relevant provision is contained in Section 5. Sub section (1) of the provision points out that the Special Judge may take cognizance of offence without the accused being committed to him for trial and while trying the case, he has to follow the procedure prescribed by the Code of Criminal Procedure for the trial of warrant cases by the Magistrate. The language of Sub-section (1), which empowers the Special Judge to try the offences without the case being committed to him, could be appreciated only when one had perused the provisions of Sub-section (3) of Section 5, which points out that the Cr.P.C. has to apply to the trial of cases except that it shall not apply as regards granting pardon to an accused or a privy to the commission of offence, if he is ready to make a full disclosure of the whole circumstances within his knowledge relating to the offence and to every other person concerned whether as a principal or an abettor. Sub-section (3) further directs that the court of Special Judge shall be deemed to be a Court of Sessions and the prosecution shall be conducted by the Public Prosecutor. This is apparently co-related to the qualifications of a person, who has to be appointed as a Special Judge, which is contained in Section 3(2) of the P.C. Act. According to this provision, a person may be appointed as a Special Judge only when he is or has been a Sessions Judge or an Additional Sessions Judge or an Assistant Sessions Judge under the Code of Criminal Procedure, 1973. Thus, the court of Special Judge to be established under Section 3 of the P.C. Act is no doubt a court of sessions, but it has not to take cognizance of an offence on commitment of the case to it as per Sections 209 or 323 Cr.P.C. as is the general provision contained in Section 193 Cr.P.C. which lays down that no court of session shall take cognizance of any offence, except as otherwise provided by the Code, as a court of original jurisdiction unless the case has been committed to it by a Magistrate under the Cr.P.C.
29. Many terms and terminologies, like, "court of original jurisdiction" appears in the Cr.P.C. in one provision or the other, but they have not been defined by the Cr.P.C. What appears from Section 193 Cr.P.C. is that a court of sessions is definitely not a 'court of original jurisdiction', rather it is a court different from the court of original jurisdiction. What further appears is that even if the court of sessions has the power of taking cognizance, it remains a court of trial which derives jurisdiction to try an offence only when the case has been committed to it and that too-as may appear from Section 228 Cr.P.C.-if the offence is exclusively triable by it. It is not a court which has the trappings of a 'court of original jurisdiction'. Then the question is as to what is the meaning of 'a court of original jurisdiction'?
30. The P.C. Act is a special Act. It was revamped by amending Act of 1988 only to bring it into consonance with the need of the time as also to put into it some more teeth by enlarging the definition of 'Public Servant' which was widened by co-relating the performance of 'public duty' as defined by Section 2(b) by any person, who may not, strictu sensu, be otherwise a 'Public Servant' as defined by clauses (ii) to (xii) Explanations I & II except Section 2(c) of the P.C. Act. The Code of Criminal Procedure, 1973 was though made applicable to the proceedings under the P.C. Act, but only to the extent so far as its provision were not inconsistent with those of the P.C. Act (Section 22 P.C. Act). Thus, while Section 5(1) P.C. Act empowers the Special Judge to take cognizance, waving the need of the case being committed to him as per the requirement of Section 193 Cr.P.C., it does not lay down as to which could be the materials upon which the Special Judge shall act to take cognizance of an offence under Section 5(1). In the whole scheme of the P.C. Act, there is no provision enlisting any particular material upon which the Special Judge was to take cognizance of an offence. Thus, it has to be held that the provision of Section 190 Cr.P.C. is also the repository of powers of taking cognizance for the Special Judge as regards the materials upon which he could do so. Clearly, as such, the Special Judge has to apply his mind to the facts (a) of a petition of complaint constituting an offence, (b) of a police report and, lastly, (c) contained in information received from any person other than a police officer, or upon his own knowledge, that such an offence has been committed. This is the reason that a Magistrate, who acts under Section 190 Cr.P.C. to take cognizance of an offence is treated as 'a court of original jurisdiction'. The other trapping of such a court is that it does not only take cognizance under Section 190 Cr.P.C. and issues summons to an accused for his appearance, but on appearance of the accused, if it is an offence to be tried by him as per procedure of the Cr.P.C., he also proceeds straight away to try the accused. A court of original jurisdiction does not derive any jurisdiction to try an offence if he is competent as per the Cr.P.C. to try it which is not the case with the court of sessions, which cannot try cases or offences unless the case has been committed to it and the offence is exclusively triable by it. Thus, what appears to me is that even if the Special Judge is a Sessions Judge, he is a court of original jurisdiction.
31. The other aspect of creating a special court, so to say, under the P.C. Act, as noted earlier is that the procedure for holding the trial by it has been laid down through legislation by adoption. However, what may appear further is that the whole body of procedures under Chapter XIX for trial of warrant cases do not apply to a trial before the Special Judge as the application of Section 243 has been restricted by amending it by Section 22 (a) of the P.C. Act which requires the accused, immediately after closure of the prosecution evidence, to file the list of witnesses and documents which he wishes to examine or adduce in his defence.
32. The above conclusion of mine gets support from the decision of the Supreme Court in A.R. Antulay Vs. R.S. Nayak reported in AIR 1984 SC 718. The Supreme Court has given reasons which may be different from what I have proposed, but has held that the Special Judge is a court of original jurisdiction, as may appear from paragraph 27 of the Judgment in A.R. Antulay appearing at page 733 of the report.
33. It was submitted that powers of Special Judge of discharging an accused or framing charges against him in the light of the provisions of Section 6 is contained in Sections 239 and 240 of the Cr.P.C. which appear in Chapter XIX.
34. While addressing the arguments, repeated attempts were made to impress upon this Court that while hearing the applications for discharge, the court below was legally bound to consider the explanations given by the accused persons and other materials, which could have been placed before the C.B.I. during investigation in their defence specially the one placed by petitioner R.P. Yadav, who had placed before the C.B.I. some chit of papers showing that some amounts had been paid to Ashutosh Asthana. It was further contended that no reasons were assigned, as in case of Arun Kumar and others to indicate as to why they should not be discharged or why charges had to be framed against them. In this context, the learned counsel drew the attention of this Court to Sections 239 and 240 Cr.P.C.
35. It may be pertinent to point out that erstwhile provisions of Section 251A of the Code of Criminal Procedure, 1898 are replicated by the present set of provisions of Chapter XIX, with the difference that different Sub-sections of erstwhile Section 251A of Cr.P.C., 1898 are now split up as separate Sections of Chapter XIX of Cr.P.C., 1973. The language of Sections 239 and 240 is identical to the earlier part of Section 251A on account of being Sub-sections to that Section. While considering the question of framing the charges and discharging the accused as may appear from the very reading of Sections 239 and 240, the consideration has to be the same, i.e., the police report and the documents sent with it under Section 173 Cr.P.C. The accused has to be discharged if the charge is found to be groundless and he has to be charged if the Magistrate found that there was "ground for presuming" that the accused had committed an offence triable by him. If one had considered the provisions of Sections 227 and 228, one may find that the charges have to be framed by the court of sessions only when the court had considered the record of the case and had formed an opinion that there is "ground for presuming" that the accused had committed the offence which was triable by the court of sessions. Thus, what appears is that for framing a charge either in a case which is triable by a court of session or which is to be tried by following the procedure for trial of warrant cases by the Magistrate, the considerations in that behalf are the same, i.e., forming an "opinion that there is ground for presuming" that the accused had committed an offence. It has been held in several cases right from 2005 (1) SCC 568, State of Orissa Vs. Devendra Nath Padhi, that the materials, which are to be required to be considered, is only the police record and no other material including any to be filed by the accused, and the provisions of Sections 227 and 228 or 239 and 240 do not create any right in the accused to file any material or document at the stage of either seeking his discharge from the case or, at the time, when the Magistrate is considering to proceed against him by framing charges. In Devendra Nath Padhi the law was laid down once again that at the time of framing of charge or taking cognizance, the accused has no right to produce any material, which could be relevant to his defence and the same could be considered or filed before the trial court only during the trial and not before it. In Devendra Nath Padhi, the Supreme Court had considered its earlier decision in Satish Mehra Vs. Delhi Administration,(1996) 9 SCC 766 and overruled the Judgement holding that the case was not correctly decided as the decision in Satish Mehra had been rendered considering the defence of the accused. In another case of Sanghi Brothers (Indore) Pvt. Ltd. Vs. Sanjay Choudhary and others reported in (2008) 10 SCC 681, the Supreme Court held that while deciding to frame charges or considering the question of discharging an accused, the test to be applied was of prima facie case, that is to say, the existence of sufficient ground to presume that the accused had committed the offence. In yet another case of Kanti Bhadra Shah and another Vs. State of West Bengal (2001) SCC 722, the Supreme Court said that while considering the application of an accused seeking his discharge from the case, there was no requirement of giving any reason. Both in Kanti Bhadra Shah and Devendra Nath Padhi, it was noted that the very provisions of Sections 227 and 239 Cr.P.C. indicated that reasons were required to be given by the courts only when the accused persons had been discharged. In case the accused was proceeded with by framing charge, then there was no requirement of giving reasons as to why charges were to be framed. Thus, the submission that the order was not containing any reasons, prima facie, appears not acceptable in view of the very provisions of the Code of Criminal Procedure.
36. However, what I find from the consideration of the long drafted order of the learned Judge, which runs into 75 pages, is that he had considered each and every argument of the counsel of the parties who had appeared before him and had thereafter gone on to discuss each and every material in the light of the submission and had found out that it was not a case of discharge. It is true that the Special Judge has not noted in the same order dismissing the applications for discharge filed by the petitioners that he was to frame charges under various provisions of the Prevention of Corruption Act and also for the relevant offences under the I.P.C., but that is not required under law to be noted down specially when he already had written the heads of charges sufficiently indicating as to what offences were within his cognizance for being tried. I am satisfied that the order of discharge was not only a well considered order rather the learned Judge appears going in unusual and unnecessary details of discussing materials appearing against the accused persons probably because he was acting with abundant caution.
37. Yet another submission, which was made before this Court, was that the offence under Section 13 of the Prevention of Corruption Act was not made out. Section 13 of the P.C. Act defines and punishes criminal misconduct of a public servant, which reads as under:-
"13. Criminal misconduct by a public servant.-(1) A public servant is said to commit the offence of criminal misconduct,-
(a) if he habitually accepts or obtains or agrees to accept or attempts to obtain from any person for himself or for any other person any gratification other than legal remuneration as a motive or reward such as is mentioned in section 7; or
(b) if he habitually accepts or obtains or agrees to accept or attempts to obtain for himself or for any other person, any valuable thing without consideration or for a consideration which he knows to be inadequate from any person whom he knows to have been, or to be, or to be likely to be concerned in any proceeding or business transacted or about to be transacted by him, or having any connection with the official functions of himself or of any public servant to whom he is subordinate, or from any persons whom he knows to be interested in or related to the persons so concerned; or
(c) if he dishonestly or fraudulently misappropriates or otherwise converts for his own use any property entrusted to him or under his control as a public servant or allows any other person so to do; or
(d) if he,-
(i) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage; or
(ii) by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or
(iii) while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest; or
(c) if he or any person on his behalf, is in possession or has, at any time during the period of his office, been in possession for which the public servant cannot satisfactorily account, of pecuniary resources or property disproportionate to his known sources of income.
Explanation.-For the purposes of this section, "known sources of income" means income received from any lawful source and such receipt has been intimated in accordance with the provisions of any law, rules or orders for the time being applicable to a public servant.
(2)Any public servant who commits criminal misconduct shall be punishable with imprisonment for a term which shall be not less than one year but which may extend to seven years and shall also be liable to fine."
38. A bare perusal of the above provision indicates that the ingredients of the offence in each of its clauses (a) to (c) take into account all the imaginable misconduct of a public servant regarding acceptance or receipt or agreement to accept or attempt to obtain any gratification for himself or for any other person other than his legal remuneration even if it is a motive or a reward as per Section 7 of the Act. Other parts of the misconduct on the part of a public servant in accepting gratification or misappropriating any public fund in the manner as indicated by different provisions besides the acts of indulging in corrupt or illegal means in gaining pecuniary advantages or valuable things for himself, besides also by misusing his official position for gaining any pecuniary advantages or valuable things for himself etc. are offences punishable under the said provision.
39. While hearing arguments, the Court had clearly pointed out that the provisions of Section 13(1)(c) of the P.C. Act, if no other part of the section, was clearly attracted and as regards the other parts of the provision, they may also be attracted under the facts of the case. The Court is of the view that each and every clause of Sub-section (1) of Section 13 is in itself and independently of other clauses, creates and constitutes offence of criminal misconduct by a public servant, which is made punishable by the same provision. The facts of the present case, which are so glaring and bizarre, could hardly give any reason to any court to hold that offence under section 13 P.C Act could not be said to be constituted. Other offences under the I.P.C. definitely are constituted.
40. It is not only a mere case of criminal breach of trust rather the facts do indicate that the commission of the offence of criminal breach of trust is coupled with falsification of accounts as relevant documents and records were fraudulently prepared as appears evidently clear from the facts of the case in connivance with all the accused persons to legalize or justify the whole sordid and fraudulent transaction. The creation of records, like, the applications, the sanction order, the reports, notings, which were made by the employees of the Civil Court, Ghaziabad in processing the fraudulent applications, and the recommendation made either by the Drawing and Disbursing Officers or any other officer in that behalf, were all acts of creating false documents and, definitely, created and constituted offences under Sections 468, 471, etc. under which the charges were framed by the learned Special Judge. Any person, who had received or had paid any part of the withdrawn amount, was equally liable for committing not only the offences of forgery and misappropriation but also the offence under Section 120B I.P.C. But, what I found during the course of hearing of the present batch of revision petitions was that the C.B.I. was showing undue magnanimity and the learned Special Judge, who had taken cognizance of the offence, was also very kind to those accused persons, like, the Drawing and Disbursing Officers, the Treasury Officers and alike as neither they had been sent up by the C.B.I. nor the learned Special Judge had acted as a court of original jurisdiction, who was required to apply his mind to the facts of the case for finding out as to what offences were made out and who were the real offenders in committing those offences. I could not find out any reason as to why the C.B.I. was so kind to the Drawing and Disbursing Officers, who had very much given notings and recommended for sanctioning the amount by the District Judges. I also do not find any reason as to why the learned Special Judge missed performing his legal duty of applying his mind to the facts of the case for finding out as to who besides the persons, who had been sent up through the charge sheet, appeared accused to have committed the offences. I may take up the present opportunity to point out that the meaning of 'a court of original jurisdiction' as already pointed out was to take cognizance of offence as per Section 5 P.C. Act read with Section 190 Cr.P.C. There is a chain of decisions of the Apex Court laying down the duty of such a court of original jurisdiction. One such decision which comes into my mind, inter alia, is Raghu Bans Dubey Vs. State of Bihar (AIR 1967 SC 1167). It has been held in Raghu Bans Dubey that the duty of such a court (Magistrate in that case) was not only to find out, after perusing the police report, as to what offence or offences were made out on facts of the case, but it was also his duty to find out as to who the real offenders were and once he comes to the conclusion that any other person than those who had been sent up for trial also appeared to have committed the offence, he had to summon him also. This position of law as regards the duty of a cognizance taking court still holds the field. But sadly, the Special Judge who was taking cognizance of the offence on receipt of the charge-sheet, was unmindful of his duty.
41. The learned Special Judge missed the definition of 'false document' in the I.P.C. which indicates that anyone, who could have participated in creating any part of such a document which could, inter alia, have caused loss of any property to anyone or even to the public, could have been very well one of the participating accused in creation of the false document. Probably, the C.B.I. and the officer, who was taking cognizance, were working under some pressure not to send up the Drawing and Disbursing Officers or anyone who could be found from the charge sheet to have participated in commission of the offence. I am very much firm in my view that the C.B.I. was partial in investigating the case and in submitting the final report and was definitely favouring the Drawing and Disbursing Officers and the Treasury Officers.
42. While hearing the case and perusing the rejection order, what I further found was that there was a bill on which withdrawal of some amount from the G.P.F. was made, which was not even bearing any signature either of the sanctioning authority, like, the District Judge or of the Drawing and Disbursing Officer. This evidence itself indicated that the Treasury Officers were also duly hands in gloves and they were undermining the relevant Rule 13 of the General Provident Fund Uttar Pradesh Rules, which requires many certifications, like, sufficiency of funds, liquidations of earlier advance by making payment back into the account of the employee and prohibition of not granting further advances within a particular period. The Treasury Officers were also, in my opinion, fit to be sent up for trial but the C.B.I was again favouring them probably under some pressures having been exerted upon it from some higher-ups.
43. The trial court has to try the case as per the procedures set down by the Cr.P.C. I find that the prosecution of the case is based purely on records and documents. The records or the documents showing fraudulent processing of applications and withdrawing the amounts and then paying them up to different persons or giving benefit of different articles purchased out of the withdrawn amount, could be evidence primary in nature of the commission of offence. The trial court, as such, is directed to ensure that each and every document is produced before it and the same is admitted into evidence and then it should apply its mind as to who are the persons, who had participated in creation of false documents and withdrawal of money and who had benefited in addition to the accused persons already sent up. Whoever and howsoever big or powerful appears having participated in commission of the offence either by creating the false documents or on account of having benefited out of the money fraudulently withdrawn from the State Exchequer, must be summoned under Section 319 Cr.P.C.
44. Besides, the Court draws the attention of the trial court to keep in its mind the provision of section 4(4) of the P.C. Act, which directs the trial of the case to be held on day to day basis. There is similar provision under Section 309 Cr.P.C. but the P.C. Act being an Act special in nature, has its own provisions in Chapter II and in other parts of the P.C. Act, which have to have precedence over the provisions of the Cr.P.C. What further appears from Section 5(6) of the P.C. Act is that the Special Judge is not only a trial court but it is also a court, which is empowered to pass orders of confiscation of the properties of the accused under the Criminal Law Amendment Ordinance, 1944. All functions of a District Judge under the above said Ordinance have been vested into the Special Judge and it has a purpose. The properties, which could have been acquired out of the money earned by committing the offence under the P.C. Act, have to be attached, sold and the sale proceeds thereof deposited in the Government Treasury only after cognizance of offence under Section 13 of the P.C. Act has been taken. Section 452 Cr.P.C. is other such provision, but the special provision of the P.C. Act has to be followed though it is not that the application of Section 452 Cr.P.C. is to be completely ruled out while trying the case under the P.C. Act. The whole scheme of the P.C. Act is aimed at expediting the hearing of the case and, as such, there are many provisions contained therein, as may appear from Section 19(3)(b)(c) of the P.C. Act, that the revisional court lacks power to grant stay on trial of a case before a Special Judge. Further, while exercising the powers of revision even the High Court is precluded from calling for the records of the trial court without giving notice to the other side to show cause and if it is satisfied that the examination of the record can be made from the certified copies, then it has not to send for the trial court's record.
45. These are some of the aspects of the trial of the case which I have purposely pointed out to the trial court because I found that it was unnecessary for the learned Special Judge to go so deep and draft such long an order of discharge. In the present day circumstances, the time in the hands of courts is very short and courts have to simplify the procedures and cut down unnecessary details and elaborate hearing. The courts ought to exhibit brevity in drafting their orders and they have to be very precise and specific in applying the provisions specially when it is a case touching upon the integrity of an institution or the society. Saving time and investing the same in real trial is the prime requirement of our time and, as such, I wish suggesting to the learned trial Judge that he should confine his procedures to receive such evidences only which are documentary in form and should take oral evidence of such matters, which may appear extremely essential for the proof of the charges. Unwanted evidence and multiplicity of the same may be avoided so that the case of present nature is disposed of quickly. In this connection, let the learned trial Judge note the observations of the Supreme Court in Kanti Bhadra Shah and another Vs. State of West Bengal, (2001) SCC 722, which is as follows:-
"If there is no legal requirement that the trial court should write an order showing the reasons for framing a charge, there is no need to further burden the already burdened trial courts with such extra work. The time has reached to adopt all possible measures to expedite the court procedures and to chalk out measures to avert all roadblocks causing avoidable delays. If a Magistrate is to write detailed orders at different stages merely because the counsel would address arguments at all stages, the snail-paced progress of proceedings in trial courts would further be slowed down. A detailed order may be passed for culminating the proceedings before them, but it is quite unnecessary to write detailed orders at other stages, such as issuing process, remanding the accused to custody, framing of charges, passing over to next stages in the trial. It is a salutary guideline that when orders rejecting or granting bail are passed, the court should avoid expressing one way or the other on contentious issues, except in cases such as those falling within Section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985."
46. After what I have said and found above, I find no merit in the revision petitions. They are dismissed. If any order of stay on trial has been passed by any court, it stands vacated.
47. Before I part, I may like to highlight the need of filing appropriate petitions before the learned Special Judge by the State under the provisions of the Criminal Law Amendment Ordinance, 1944 without any further loss of time so as to seeking confiscation of properties amassed by the petitioners as cognizance of offence under Section 13 of the P.C. Act has already been taken. In my considered view, the State of U.P. may well be advised to formulate a law and legislate the same on the lines of the Bihar Special Courts Act, 2009 which may ensure confiscation of properties amassed by a public servant disproportionate to his known sources of income, so that there may be a decrease in the volume of acts of corruption. Let a copy of this order be forwarded to the Chief Secretary, Government of U.P. for needful.
Dt/-February, the 5th, 2014 Ram Murti