Delhi District Court
Rc No. 01/88 (Cbi vs . Ak Nehru & Ors.) on 7 August, 2012
RC No. 01/88 (CBI Vs. AK Nehru & Ors.) CC No. 55/11 RC No. 01/88 CBI Vs. AK Nehru & Ors. 07.08.2012 ORDER
1.0 CBI has filed a closure report in RC No. 1/88ACUII u/Ss 120B IPC r/w 5(3) (a) r/w 5(1)(d) of the PC Act, 1947.
Facts:
Pursuant to the source information received against Sh. AK Nehru, the then Minister of State (Internal Security), Minister of Home Affairs, Sh. BP Singhal, the then Addl. Secretary, Govt. of India, MHA, a case RC No. 01/88 was lodged u/Ss 120B IPC r/w 5(3) (a) r/w 5(1)(d) of the PC Act, 1947 in ACBII branch. Allegedly, the accused persons flouted the prescribed norms in processing of Tenders, suppressed vital information relating to the rate of 9mm pistol, and violated the guidelines regarding trial and testing and did not associate army personnel and technical experts. On 21/2/86, a decision was taken to replace the 0.38 revolvers, earlier being used by the State forces, with 9mm pistol. On 30/3/86, Sh. BP Singhal took over the charge of the post of Addl.
Secretary to the Govt. of India, Home Affairs. While the matter for procurement of Page 1 of 22 RC No. 01/88 (CBI Vs. AK Nehru & Ors.) 9mm pistols, cheaper than F.N. Browning was being processed, the Ministry of Finance vide letter dtd. 7/4/86 suggested to explore possibility of imports from Rupee Payment Area (RPA) countries, but did not change existing purchase procedure. Investigation revealed that Sh. J. Dovarok, representative of the Czechoslovak Embassy, met Sh. BP Singhal on 14/4/86 and expressed their willingness to offer 9mm pistols. Sh. BP Singhal, vide his note dtd 14/4/86 asked Sh. J. Dovarok to submit the offer and sample for evaluation. Vide communication dtd. 16/4/86 addressed to Sh. BP Singhal, Addl. Secretary, the current price of US$ 266.66 per 9mm pistol of M/s Merkuria Foreign Trade Corpn., Praha, (Czechoslovakia) was communicated and the Company also offered a discount of 10% for 20,000 numbers of pistols. The higher discount in the event of quantity larger than 20,000 was also offered by the firm. After discount, the price quoted by the firm was US$ 240 per piece. Sh. AK Verma, the then Director (NPC & Provn.)(A3) sent a communication dtd. 17/4/86 to the Embassy of India in USSR, Czechoslovakia, German Democratic Republic, Poland and Romania to explore the availability of 20,000 numbers of 9mm pistols alongwith spares, their current price and delivery schedules.
1.1 Investigation further revealed that on 14/5/86 in pursuance to the order of Minister of State (Internal Security) dtd. 17/3/86, a Technical Committee (Evaluation Committee) was formed consisting of Sh. SD Pandey, DG, CRPF as Chairman of the Evaluation Committee with Sh. VK Kaul, Director (Training) BPR & D and Sh. AK Verma, Director (Prov. & NPC) as members. Vide said order a Page 2 of 22 RC No. 01/88 (CBI Vs. AK Nehru & Ors.) Negotiation Committee was also formed. Sh. BP Singhal, Addl. Secretary, was made Chairman of the Negotiation Committee with Joint Secretary (P), Financial Advisor (Home) and Director (Prov.) of Ministry of Home Affairs as members.
1.2 Investigation revealed that A3 AK Verma vide his note dtd. 21/5/86 recorded that Czech pistol was of lowest price and A2 BP Singhal vide his note dtd. 29/5/86 allegedly discussed the facts with Sh. AK Nehru, Minister of State (Internal Security) to indicate as if the decision regarding purchase of Merkuria pistol was taken by A1 AK Nehru Minister of State (Internal Security), in the meeting held in his room, whereas as per CBI, Minister of State (Internal Security) had not taken any such decision. Subsequently, the price of Czech pistol was enhanced from US$ 240 to US$ 271.602.
1.3 Pursuant to the written instruction of Sh. Arun Nehru (A1) the then MOS (Internal Security), A2 Sh. BP Singhal was made the Chairman of the Negotiating Committee. Investigation revealed that Sh. BP Singhal (A2) also became the Chairman of the Evaluation Committee and thus, A2 BP Singhal became the Chairman of both - Evaluation Committee and Negotiating Committee, in his capacity as Addl. Secretary in the MHA where he was also required to process the file to finalize the purchases. CBI on it's closure report stated that allegedly, Sh. BP Singhal being Chairman of the Evaluation Committee recorded a note on 29/5/86 indicating as if Sh. Arun Nehru, Minister of State (Internal Security) desired the weapon to be tested by Addl. Secretary Page 3 of 22 RC No. 01/88 (CBI Vs. AK Nehru & Ors.) alongwith DG BSF, DG CRPF and DG BPR&D whereas MOS (Internal Security) had not made any change in the composition of the Evaluation Committee. A2 Sh. BP Singhal in violation of all norms directed the DG BPR&D not to associate Defence Authorities in the evaluation of the pistol and also directed that the pistol was to be tested in Delhi itself. Pursuant to this direction, the pistols were tested on 18/6/86 in New Delhi Police Line, Kingsway Camp, Delhi where no facilities for evaluation existed. The samples of steyer pistols was not obtained, despite being the fact that the same were lying in ITBP and FN Browning Pistol which was an old one was taken for comparison. The evaluation committee under the Chairmanship of A2 BP Singhal recommended for the purchase of CZ75 pistol on the pretext of ready availability at a considerably cheaper rate, whereas the comparative prices were neither available nor any discussion took place on it.
1.4 Sh. BP Singhal A2, gave the impression to the Members of the Evaluation Committee that it was only a preliminary trial and Sh. BP Singhal pointed out only two defects, whereas many defects and shortcomings were found during the trial. Rather A2 Sh. BP Singhal on clarification from Sh. J.
Dovarok circulated the remark to the members of the Evaluation Committee that the so called defects were a facility and not a handicap and the weapon in the present form was desirable. A3 Sh. AK Verma knowing fully well that all the tests were not carried out, did not point out that the evaluation was not proper. 1.5 A3 AK Verma in his note dtd. 18/7/86 pointed out that the offers of Page 4 of 22 RC No. 01/88 (CBI Vs. AK Nehru & Ors.) the General Currency Area were on higher side than the offer of CZ75 pistol. It is pertinent to mention here that A3 AK Verma had called an enquiry only from Rupee Payment Area Countries, whereas compared the price of CZ75 with the pistols offered from General Currency countries, which were received without any quotation, having been invited from them and even not being evaluated. A3 AK Verma also did not highlight the terms and conditions of General Currency Area particularly when they had indicated their prices as negotiable. The fact that the price of CZ75 were enhanced to US$ 271.602 from US$ 240 was not discussed. 1.6 A2 BP Singhal vide his note dtd. 27/4/86 enhanced the requirement of pistols from 50,000 to 55,000 and commented that the cost of Browning Pistol in comparison to Czech Pistol was 96.80 dollars more. He justified the price of the pistol particularly when the meeting of the Negotiation Committee was still to take place. In the said note he also suppressed the earlier offer of the firm of US$
240. In the meeting of the Negotiation Committee held on 31/7/86 the revision of the price of the pistol from US$ 240 to US$ 271.602 was not even discussed, whereas A2 BP Singhal and A3 AK Verma who were Chairman / Member of the Committee were aware of the same. In another meeting of the Negotiation Committee held on 1/8/86 only attended by A2 BP Singhal and A3 AK Verma held discussion with the Czech Trade Representative and informed other members over the telephone that the firm was not ready to reduce the price from Rs. 3,438/ and it was the cheapest in the World. The draft minutes of the meeting corrected and settled by Sh. BP Singhal did not contain any reference of Page 5 of 22 RC No. 01/88 (CBI Vs. AK Nehru & Ors.) the earlier offer of US$ 240 per pistol quoted by M/s Merkuria. Sh. BP Singhal A2 made addition in the minutes to the effect that the quantity discount of 10% for buying over 20,000 pieces had already been given meaning thereby that the original price was higher by 10% and only after discount Rs.3,438/ had been arrived.
1.7 Investigation further revealed that Sh. BP Singhal being aware of the fact that the earlier offer of Czech Pistol was US$ 240 and not US $ 271.602 as mentioned by Sh. AK Verma in his note dated 4/8/86 allowed the same to continue for obtaining administrative approval.
1.8 Investigation further revealed that while the matter was under
consideration of the Deptt. of Economic Affairs, Ministry of Finance for the release of Foreign Exchange for purchase of 55,000 numbers of Czech Pistol, it was found that neither proper quotation was called for nor negotiation was held properly while finalising the selection of the Pistol. Certain other defects were also noticed by the Officers of the Ministry of Finance before the matter was put up to Additional Secretary, Ministry of Finance, who discussed it with Sh. BP Singhal.
Sh. BP Singhal misrepresented before Addl. Secretary, Ministry of Finance, as a result, Ministry of Finance recommended the release of required foreign exchange for purchase of pistols.Page 6 of 22
RC No. 01/88 (CBI Vs. AK Nehru & Ors.) 1.9 Investigation revealed that after receiving approval from the Ministry of Finance, a contract was prepared, without getting it vetted from any legal expert and it was signed by Sh. BP Singhal on behalf of Ministry of Home Affairs, who had no authority to sign such contract. The contract itself was void as there was no termination clause incorporated in the contract. The CBI has claimed in the chargesheet that the contract was signed and Letter of Credit No. 86/1196 was opened by Border Security Force in favour of Messrs Merkuria in State Bank of India, Parliament Street, New Delhi. Messrs Merkuria sent 8892 pistols and some spare parts in four lots to India. Four sample pistols were also sent by the firm as per terms of the contract. The test of four samples was conducted on 18/12/1986 in Delhi and were found defective. Another test of samples drawn from the consignments received was conducted in January, 1987. These pistols were also found to be defective. On this the supplier was asked to replace the pistols.
In April, 1987, a fresh consignment was received which was tested and found to be defective. As a result, the contract was cancelled and further import of Czech pistols was stopped. CBI has alleged that A1 AK Nehru was Minister of Home Affairs (Internal Security) during the relevant period by order dtd. 21/2/86 took a policy decision to shift to 9mm pistols in place of 38 revolvers but neither by this order nor by any subsequent order had given any specific written direction to purchase pistols from M/s Merkuria only. CBI in its chargesheet submitted that A1 Arun Nehru during the course of investigation denied to have taken any decision for purchasing any particular make of pistol i.e. Merkuria Pistol or any other pistol. He also denied to have constituted a new Evaluation Committee. However, Sh. Page 7 of 22
RC No. 01/88 (CBI Vs. AK Nehru & Ors.) VK Jain, JS(P) and Sh. MC Mishra, Ex.DG, BSF confirmed the three decisions viz.:
1) that ASIs should be equipped with pistol,
2) Merkuria Pistol should be purchased provided it was found satisfactory, and,
3) functional aspect of Merkuria should be tested by AS(P) alongwith DG, CRPF; DG, BSF and DG, BPR&D, having been taken by Sh. Arun Nehru on 22/5/86 in the meeting.
Interestingly, Sh. SD Pandey, DG, CRPF during his examination could not recollect, if specific direction for purchasing Merkuria Pistol was taken by the Minister. CBI in its chargesheet stated that though A1 Arun Nehru admitted to have held meeting on 22/5/86 in his chamber with Sh. BP Singhal & Ors. He stated that he had not taken the decision to purchase Czech pistol nor he was interested in any particular make or with any particular supplier. Sh. Arun Nehru denied to have issued any direction to call quotations from RPA (Rupee Payment Areas) countries nor he instructed not to follow the established procedures of calling quotations, preparing comparative chart etc before taking the final decision. Sh. Arun Nehru maintained that he had given the approval for the purpose Czech pistols on the recommendation of the Home Secretary, Sh. CG Somiah. Interestingly, CBI has claimed that investigation could neither reveal any written instruction given by Sh. Arun Nehru for purchase of Merkuria Pistol nor could any written instruction for constituting a fresh Evaluation Committee which Sh. BP Singhal was to head as Chairman , thereby, making Sh. BP Singhal, the Chairman of both Evaluation Committee and Negotiation Committee. Page 8 of 22
RC No. 01/88 (CBI Vs. AK Nehru & Ors.) CBI has filed the closure report against Sh. AK Nehru on the ground that Sh. AK Nehru had not committed any misconduct or had misused his office with regard to the deal.
1.10 Investigation revealed that the cost of 8892 pistols of Rs. 3,17,93,022/ paid to M/s Merkuria was refunded by the firm, however, the expenditure on account of air freight, bank commission etc., amounting to Rs. 24,59,584.20 could not be realised from M/s Merkuria.
CBI concluded that the facts and circumstances revealed the commission of offence by Sh. BP Singhal and Sh. AK Verma. However, the sanction required u/S 197 Cr.PC was refused by the government and therefore, the closure report was filed.
Findings:
2.0 Before proceeding further on merits, it is pertinent to recall certain disturbing facts. The closure report in this case was filed in the year 2007, whereas the Govt of India, Ministry of Home Affairs had refused the sanction for prosecution of A2 BP Singhal and A3 AK Verma vide communication dtd. 16/6/97. It is also pertinent to mention here that A2 BP Singhal had retired on 29/3/90 and A3 AK Verma had retired on 31/3/90 and the communication for grant of sanction was sent in December 1992.
When the question of delay in filing of the closure report was raised, Page 9 of 22 RC No. 01/88 (CBI Vs. AK Nehru & Ors.) the CBI vide written reply dtd. 27/7/2012 assured to fix the responsibility of the individual for the delay in filing of the closure report. In regard to the refusal of the sanction u/S 197 Cr.PC, CBI stated that the prosecution sanction u/S 197 Cr.PC was sought in this case for prosecuting the accused persons for commission of the offences punishable u/Ss 420, 420 r/w 511 IPC r/w Sec. 13(2) r/w 13(1)(d) of PC Act, 1988 on the basis of legal advice, which was denied by the competent authority. CBI pleaded that the recent judgments of the Apex Court are not applicable in this case, as the same are of the period later than the date of denial of the prosecution sanction.
2.1 Sh. DK Singh, Ld. PP for CBI has submitted that there was no material to indicate prima facie case against A1 Arun Nehru and in view of the refusal of sanction against A2 BP Singhal and A3 AK Verma, the closure report of the CBI may be accepted.
3.0 I have heard Ld. PP for CBI and have gone through the record carefully.
4.0 Sec. 197 Cr.PC provides as under:
"(1) When any person who is or was a Judge or Magistrate or a public servant not removable from his office save by or with the sanction of the Government is accused of any offence alleged to have been committed by him while acting or purporting to act Page 10 of 22 RC No. 01/88 (CBI Vs. AK Nehru & Ors.) in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction
(a) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of the Union, of the Central Government;
(b) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of a State, of the State Government.
Sec. 197 Cr.PC has been designed to facilitate an effective and unhampered performance of their official duty by public servants, by providing for scrutiny into the allegations against them by their superior authorities and prior sanction for their prosecution as a condition precedent to the cognizance of the cases against them by the Courts. The purpose is to protect the public servant from frivolous, vexatious or false prosecution for offences alleged to have been committed by them while acting or purporting to act in the discharge of their official duty. It is a settled proposition that the section is to be construed neither too narrowly nor too widely. Sec. 197 Cr.PC does not offer complete exemption from prosecution. Nor does it extend its protective cover to every act or omission done by a public servant. It only restricts the scope of operation to only those acts or omissions which are done by a public servant in discharge of the official duties.
In State of HP Vs. MP Gupta, (2004) 2 SCC 349, the scope and ambit of 197 Cr.PC came up for interpretation before the Apex Court wherein it Page 11 of 22 RC No. 01/88 (CBI Vs. AK Nehru & Ors.) was inter alia held as under:
"8. 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 official 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. This protection has certain limits and is available only when the alleged act done by the public 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 the performance of the official duty, the excess will not be a sufficient ground to deprive the public servant from the protection. The question is not as to the nature of the offence such as whether the alleged offence contained an element necessarily dependent upon the offender being a 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 public 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 Page 12 of 22 RC No. 01/88 (CBI Vs. AK Nehru & Ors.) 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 his 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."
While elaborating on the nature of the provision, the Apex Court in MP Gupta's case (supra) further inter alia held as under:
"11. Such being the nature of the provision, the question is how should the expression, `any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty', be understood ? What does it mean ? `Official' according to dictionary, means pertaining to an office, and official act or official duty means an act or duty done by an officer in his official capacity. In B. Saha and Ors. v. M.S. Kochar (1979(4) SCC 177) it was held : (SCC pp. 18485, para
17) "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 in Section 197(1) of the Code, are capable of a narrow as well as a wide interpretation. If these words are construed too narrowly, the section will be rendered altogether sterile, for, `it is no part of an official duty to commit an offence, and never can be'. In the wider sense, these words will take under their umbrella every act Page 13 of 22 RC No. 01/88 (CBI Vs. AK Nehru & Ors.) constituting an offence, committed in the course of the same transaction in which the official duty is performed or purports to be performed. The right approach to the import of these words lies between two extremes. While on the one hand, it is not every offence committed by a public servant while engaged in the performances of his official duty, which is entitled to the protection of Section 197(1), an Act constituting an offence, directly and reasonably connected with his official duty will require sanction for prosecution and the said provision."
Use of expression, `official duty' implies that the act or omission must have been done by the public 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."
In this case, the contention of the accused that for the offence u/S 406 & 409 r/w 120B IPC, sanction u/S 197 of the Code is a condition precedent in launching of the prosecution was rejected. The case of Harihar Prasad Vs. State of Bihar, 1972 SCC (Cri.) 409 was cited with approval in which it was inter alia held as under:
"As far as the offence of criminal conspiracy punishable under Setion 120B, read with Section 409 of the Indian Penal Code is 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 Page 14 of 22 RC No. 01/88 (CBI Vs. AK Nehru & Ors.) conspiracy or to indulge in criminal misconduct. Want of sanction under Section 197 of the Code of Criminal Procedure is, therefore, no bar."
Similarly, in Prakash Singh Badal & Anr. Vs. State of Punjab & Ors., (2007) 1 SCC 1, it was inter alia held as under:
"The offence of cheating under Section 420 or for that matter offences relatable to Sections 467, 468, 471 and 120B can by no stretch of imagination by their very nature be regarded as having been committed by any public servant while acting or purporting to act in discharge of official duty. In such cases, official status only provides an opportunity for commission of the offence.
In Baijnath Gupta V. State of MP AIR 1966 SC 220, 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 duties the protection contemplated by Section 197 of the Criminal Procedure Code will be attracted."
The bare perusal of the above said judgments, leaves no room for doubt that for the offence of cheating no sanction u/S 197 Cr.PC is required. As far as A2 BP Singhal and A3 AK Verma is concerned, CBI has filed the closure report only on the ground that the sanction was refused by the Govt. of India. The facts as discussed above makes it clear that the accused persons in conspiracy with each other twisted the procedures and were able to place the order on a higher price knowing fully well that the pistols were offered at a lower price. Page 15 of 22
RC No. 01/88 (CBI Vs. AK Nehru & Ors.) 5.0 It is interesting to note the conclusion of the CBI regarding the accused no.1 Sh. Arun Nehru, the then Minister of State (Internal Security). The same has been produced as below :
"Sh. Arun Nehru was the Minister of State for Home Affairs (Internal Security) during relevant period. He had by order dtd. 21.02.86 taken a policy decision to shift to 9 mm pistols in place of 38 revolvers but neither by this order nor by any subsequent order he had given any specific written direction to purchase pistols from M/s. Merkuria only.
Shri Arun Nehru during examination denied to have taken any decision for purchasing any particular make of pistol e.g. Merkuria Pistol or any other Pistol. He also denied to have constituted a new Evaluation Committee. However, Shri VK Jain, JS (P) and Shri MC Mishra, ExDG, BSF confirmed the three decisions viz. (1) that ASIs should be equipped with pistol, (2) Merkuria Pistol should be purchased provided it was found satisfactory, and (3) functional aspect of Merkuria should be tested by AS(P) alongwith DG, CRPF; DG, BSF and DG, BPR&D, having been taken by Shri Arun Nehru on 22.05.1986 in the meeting. Shri SD Pandey, DG, CRPF during his examination could not recollect, if specific direction for purchasing Merkuria Pistol was taken by the Minister. Though Shri Arun Nehru admitted to have held meeting on 22.05.1986 in his chamber with Shri BP Singhal & others, he stated that he had not taken the decision to purchase Czech Pistols nor he was interested in any particular make or with any particular supplier. He had also not directed to call quotations from only RPA (Rupee Payment Areas) countries. Further, he had never instructed not to follow the established procedures of calling quotations, preparing Page 16 of 22 RC No. 01/88 (CBI Vs. AK Nehru & Ors.) comparative chart etc. before taking the final decision. Finally, he maintained that he has given his approval for the purchase of Czech Pistol on the recommendation of the Home Secretary, Shri CG Somiah.
Investigation could neither reveal any written instruction given by Shri Arun Nehru for purchase of Merkuria Pistol nor could reveal any written instruction for constituting a fresh Evaluation Committee, which Shri BP Singhal was to head as "Chairman", thereby making Shri BP Singhal the Chairman of both Evaluation Committee and Negotiation Committee.
During Investigation no prima facie evidence has come that Sh. Arun Nehru as a Minister had committed any misconduct or had misused his office with regard to the deal."
6.0 The primary duty of the Investigating agency is to conduct honest and impartial investigation of any complaint received by them. Here is a case where the Ministry was in the process of buying the pistols for the use by the state force. We may recall that this was the period during which there were many allegation regarding kickbacks and manipulations in the procurement of arm deals from the foreign countries. It is a matter of great concern that such kind of nasty allegations keep on appearing from time to time. 7.0 I have perused the entire charge sheet and the bulky documents filed alongwith the same. This court is constrained to say that CBI seems to have Page 17 of 22 RC No. 01/88 (CBI Vs. AK Nehru & Ors.) deviated from its primary job of doing an impartial investigation into such an important case. It seems that CBI expected Sh. Arun Nehru, the then Minister of State (internal security) to own up the alleged bungling in the procurement of 9 mm pistol. The tone and tenor of the entire charge sheet indicate that CBI reached to the conclusion of not having any prima facie case against Sh. Arun Nehru only on the basis of his own plea, that A2 Sh. BP Singhal is entirely responsible for the cheating and irregularities committed in the procurement of arms deal. Perusal of the record indicate that vide note dated 21.05.86 of A3 AK Verma Director (NPC & Prov.) mentioned that in terms of a recent directive from Minister of State (IS) (A1) stipulating certain guidelines regarding future purchases of costly equipments from abroad, two committees namely Evaluation Committee and Negotiation Committee for purchases to be made by Ministry of Home Affairs had been made. The composition of Evaluation Committee was mentioned as follows :
1. DG CRPF ..... Chairman
2. Director (Training) ..... Member (BPR&D (Shri V.K. Kaul)
3. Director (Prov.), MHA ..... MemberSecretary However, in the same file No. M98/88 IV13012/7/85G&Q Regarding Import of 9 mm pistols in 198586, I have found a note dated 29.05.86 which is the most relevant note for the purpose of this case. This noting is reproduced as below :Page 18 of 22
RC No. 01/88 (CBI Vs. AK Nehru & Ors.) "The decision regarding purchase of Mercuria was taken by MOS (IS) in the meeting held in his room. JS (P) DG BSF and DG CRPF and myself and HS were present. That weapon, the MOS (IS) designed should be tested by AS (S) alongwith DG BSF, DG CRPF and DG BPROD.
I have today spoken to Mr. Drorac of the Czechoslovakia Embassy and told him that the weapon has not arrived here. He said that the weapon left Prague by AIR on 10th. He is tracing its movement. It was also reported that there is plenty of chaos in the Cargo Section of Air India at the Indira Gandhi Airport Terminal.
However, as soon as the weapon is received, I should please be told."
The note sheets also indicate that A1 and A2 had been strongly advocating the procurement of CZ75 (merkuria pistol from Czechoslovakia). The file had been moving up and down. Perusal of the file also indicate that the file was also put up before MOS (Internal Security) on 24.07.86 whereby MOS (IS) (A1) mentioned that no commission to be paid to any agent and the procurement should be on the lowest price. The detailed note sheet of dated 30.07.86 duly approved by MOS (IS) (A1) on 31.07.86 indicates that the Evaluation Committee was changed with the approval of the then MOS (IS). It is interesting to note that in these notes, the issue regarding change of price from US$ 271.06 t0 US$ 240 has not been mentioned at all.
8.0 CBI has filed the closure report on the ground that A1 refused to have any role in the entire process and sanction was refused against A2 and Page 19 of 22 RC No. 01/88 (CBI Vs. AK Nehru & Ors.) A3.
9.0 "Cognizance" has not been defined in the Cr.P.C. Legally speaking, it would mean application of mind for the purpose of proceeding further in accordance with the law. The cognizance is always taken of the offence. It is a well settled preposition that when the court takes note of the accusation and applies its mind on the contents of the police report and if satisfied that the allegation if proved would constitute an offence the judicial proceeding can be initiated against the offender and this can be stated to have taken cognizance of the offence. Reference can be made to Kishan Singh Vs. State of Bihar 1977 Cr.L.J. 700. At the stage of taking the cognizance, the court is only required to consider the averments of fact made in the charge sheet and is not required to sift or appreciate the evidence. If there is material on record which is taken on face value makes out an offence, the cognizance of the offence can be taken. In the case of closure report having been filed by the CBI, the court is required to see whether there are sufficient ground to proceed against the accused or not. If on the basis of material available in the closure report, there are sufficient ground to proceed against the accused the accused persons can be summoned to face the judicial proceedings. At the stage of the cognizance/issuing of summons, the court is not required to consider the defence of the accused. FIR was lodged against the accused persons u/s 120B IPC r/w 5(3A) r/w 5(1)(d) of PC Act. It is pertinent to mention here that after investigation, CBI concluded that the facts revealed commission of offence u/s 120B r/w 420 IPC, 420 of IPC, 420 r/w 511 Page 20 of 22 RC No. 01/88 (CBI Vs. AK Nehru & Ors.) IPC and 5(2) r/w 5(1)(d) & 5(3A) of the Prevention of Corruption Act (Act II) of 1947 of charge sheet. It is a settled preposition that for the offence of conspiracy, the agreement is a gist of the offence. In the offence of conspiracy, each conspirator plays his separate part in one integrated and united effort to achieve the common purpose. Each of the conspirator is aware that he has a part to play in general conspiracy though he may not know all its secrets or the means by which the common purpose is to be accomplished. The evil scheme may be promoted by a few, some may drop out and some may join at a later stage but the conspiracy continues until it is broken up. Reference can be made to Hussain Umar Vs. Dalip Singh Ji AIR 1970 SC 45. In the offence of conspiracy direct evidence may not be possible. Even a casual connection may be sufficient to bring the case within the ambit of conspiracy .
It is pertinent to mention here that A1 Arun Nehru was MOS (IS) at the relevant time. In our present form of system, the Minister is the executive head of the Ministry and the Ministry runs under his directions. All the policy decisions are presumably taken under his direction only. I consider that it would not be possible for a Minister to say afterwards that his bureaucrat took the decision at his own without the Minister's permission. It has also to be kept in mind that the department functions at the direction of the Minister and it may not be possible for his subordinates to raise question on his functioning. The administrative set up may also not be in a position to press for written instructions on every aspect. In the offence of conspiracy even inference can be drawn, Page 21 of 22 RC No. 01/88 (CBI Vs. AK Nehru & Ors.) provided there are strong reasons for it. It is also pertinent to mention here that presently we are at the stage of taking the cognizance. The criminality will not be mitigated only because the contract was cancelled and money was refunded. The core point is that prima facie accused persons, being in the influential positions entered into criminal conspiracy to cheat the public exchequer and abused their official positions.
10.0 I consider that in view of the discussion made hereinabove, there is sufficient ground to proceed against A1 AK Nehru, A2 BP Singhal and A3 AK Verma. The closure report filed by the CBI is rejected.
I take cognizance of the offence u/S. 120B r/w 420 IPC, 420 of IPC, 420 r/w 511 IPC and 5(2) r/w 5(1)(d) & 5(3A) of the Prevention of Corruption Act (Act II) of 1947 against A1Sh. Arun Nehru, A2 B.P. Singhal and A3 AK Verma.
A1 AK Nehru, A2 BP Singhal and A3 AK Verma be summoned for 30.08.2012.
Announced in the Open Court (Dinesh Kumar Sharma)
on 07.08.2012 Spl. Judge (PC Act), CBI
Saket Courts / N.Delhi.
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