Delhi District Court
Cbi vs Narayan Diwakar Etc. on 29 July, 2010
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IN THE COURT OF SHRI AMAR NATH : SPECIAL JUDGE:
CBI-II ROHINI DELHI
RC No. 3E/2006/S18/CBI/EOU-VI. NEW DELHI
CC NO. 59/08
CBI Vs NARAYAN DIWAKAR ETC.
( INALSHA CGHS)
Date of filing application : 02.09.2009
Date on which order reserved : 27.07.2010
Date on which order announced : 29.07.2010
ORDER ON APPLICATION UNDER SECTION 173 (8) Cr.P.C. OF
ACCUSED VINOD KUMAR GUPTA.
The accused Vinod Kumar Gupta has moved an application
U/s 173(8) of the Code of Criminal Procedure Code seeking re-
investigation of the case on the ground that CB I has committed various
illegalities while conducting the investigation and prosecuting the case.
He placed reliance on the judgment of Dr. R.R.Kishore Vs. CBI Criminal
Revision Petition 2006 I AD (Delhi) 545, wherein it was held that if
illegal investigation is brought to the notice of the Trial Court at he initial
stage, then the court ought not to proceed with the trial but should direct
the re-investigation in order to cure the defect in the investigation. The
accused heavily emphasized upon the certain illegalities committed
during he course of investigation and the same are enumerated in the
application.
(i) Absence of Sanction U/s 6 of the DSPE Act.
CBI Vs. Narayan Diwakar (Inalsa CGHS)
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(ii) Absence of Notification U/s 3 of the DSPE Act.
(iii) Registration of cases under Indian Penal Code instead of
registering it under Delhi Co-operative Societies Rules Act which is
special act and violation of other legal provisions.
CBI has opposed the application by filing the separate reply stating
therein that the investigation has been carried out as per the prescribed
procedure under law and chargesheet has been filed based upon the
evidence collected during the course of investigation and after obtaining
requisite sanction from the Competent Authority to prosecute public
servant, thus there is no illegality in any manner. Provisions of Section 17
of the P. C. Act have been fully complied with while conducting
investigation of the instant case. Re-investigation is beyond the scope of
Section 173 (8) CrPC. In so far the judgment of Dr.R.R.Kishore is
concerned, the same is inapplicable to the facts and circumstances of the
case as in the instant case, no contravention of any legal/statutory provision
was done either at the time of registration of the case or during
investigation or thereafter.
I have heard the arguments and accordingly perused the record. In
order to better appreciation of the submissions made on behalf of both the
sides, let me examine the brief facts of the case.
INALSA CGHS was founded in the year 1983 with 102 members
who were employees of M/s Inalsha Ltd. The first General Body Meeting
was held on 28.10.1983 in which 102 member are shown to have attended.
The society was registered with the registration no.1130 (GH) on
22.12.1983 in the office of RCS having its registered office at 19 KG
Marg, New Delhi. The society conducted its proceedings in a regular
manner up to 7.7.1985, thereafter it became dormant as its members lost
CBI Vs. Narayan Diwakar (Inalsa CGHS)
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interest therein. Since the society failed to fulfill statutory requirements, it
was wound up by Sh.U.R.Kapoor Joint Registrar (G/H) vide order dated
27.11.1992 on the basis of short comings of the said society.
Accused Vinod Kumar Gupta (A-5) and Dharmendra Singh Rana
(died during investigation) met Subhash Dabas, a builder who showed his
keen interest in purchasing the said society. In the 2002, accused
Dharmendra Singh Rana ( since deceased) obtained the documents relating
to the society with the intention to sell it to any builder. He thereafter
contacted the accused Vinod Kumar Gupta (applicant herein) an expert in
the documentation work of the society, already running a CGHS named
Roop Villa. On getting the record, accused Vinod Kumar Gupta started
preparing false minutes of the Managing Committee Meetings dated
23.7.1985 to 24.11.2002 in his own handwriting. The GEQD Chandigarh
has also confirmed the same. He falsely mentioned on various dates of
meetings that a number of members have resigned from primary
membership of the society. In addition to preparation of MC meeting, he
has also forged the signatures of alleged members of the society in the said
proceedings. The scrutiny of the proceedings register revealed that the
resignation of number of founder members were falsely mentioned in the
proceeding register. He with the connivance of Late Dharmender Singh
Rana inserted names of 11 members in the false proceedings sated
20.6.1988 without these names. He also inserted his name as a member of
society in the MC proceedings on 28.8.1988.
Accused Subhash Dabas was also shown as a member of the society.
In addition to that, 22 more persons, friends or relatives of Subhash Dabas
were also shown to have been enrolled in the society. Another false
proceedings register was prepared in which first proceeding dated
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24.11.2002 was recorded by accused Vinod Kumar Gupta. He further
enrolled 18 persons vide false Managing Committee Meeting dtd
25.10.1988. He showed falsely in the minutes of the meeting that out of
105 members 73 members attended the meeting. The members shown to
have attended the said meeting denied to have attended the said meeting,
even their signatures were forged in the proceedings register. He moved an
application dated 28.11.2002 duly signed by him knowingly fully well
annexed with forged affidavits shown to have been signed by President and
the Treasurer of the society whereas he himself signed the said affidavit in
the office of RCS for revival of the said society, the address of the society
was shown to have been shifted to S-203, Vikas Chambers, D Block,
Central Market, Prashant Vihar, Rohini, New Delhi. During investigation,
it was found that the said premises was owned by Late Dharmender Singh
Rana.
Accused Yogi Raj while posted and functioning as Assistant
Registrar in the office of Registrar Cooperative Societies in the year 2002-
03 entered into conspiracy with Narayan Diwakar, the then RCS (now
retired), Niranjan Singh while functioning as Gr-II (DASS)/Head clerk
(Dealing Asstt.), Narender Singh Khatri posted and functioning as LDC
Grade-IV, Subhash Dabas, self styled President, Vinod Kumar Gupta, self
styled Secretary and Dharmendra Singh Rana with the fraudulent and
dishonest intention to cheat the office of the RCS and DDA to get a land
allotted in the name of Inalsa CGHS Ltd.
In furtherance of the criminal conspiracy, Sh. Narain Diwakar, RCS
by abusing his official position dishonestly accepted the bogus and forged
documents, processed and passed the revival orders and thereby facilitated
to the private persons in obtaining the revival orders and also forwarded
the forged list of members to DDA.
CBI Vs. Narayan Diwakar (Inalsa CGHS)
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In furtherance of the said criminal conspiracy Yogi Raj, Niranjan
Singh did not give importance to winding up order issued by
Sh.U.R.Kapoor, the then Joint Registrar of RCS office wherein
shortcomings of the said Inalsa CGHS were clearly mentioned and
dishonestly accepted the same without physical verification report and then
forwarded to RCS for revival of Inalsa CGHS. Accused Yogi Raj and
Niranjan Singh had not only dishonestly forwarded the forged list of 105
members of the Inalsa CGHS to DDA for allotment of land but also
deliberately ignored the audit objections raised by Auditor Sh.R.N.Yadav.
In order to commit criminal conspiracy. Sh.Narayan Diwakar, issued the
order dated 5.2.2003 thereby revived the society on the basis of forged and
false documents and without inspection reports.
The then RCS while passing the revival order deliberately appointed
Narender Singh Khatri as the Election Officer with an intention to facilitate
the accused private persons and in furtherance of the said criminal
conspiracy, Narender Singh prepared a false proceeding of Special General
Body Meeting showing thereby agenda notice for election and accordingly,
conducted elections on 16.3.2003 and he had also falsely shown that 36
members of the society had participated in the election and President,
Vice-President and Managing Committee Members were elected at O/o
RCS, Old Courts Building, Parliament Street, New Delhi. In furtherance
of the said criminal conspiracy Narender Singh Khatri allowed Vinod
Kumar Gupta to make forged signatures in the name of various members in
the proceedings dated 16.3.2003 fully knowingly that no such member had
attended the said special general body meeting. The minutes of the
meeting were bogus and the same were fabricated by Sh. Narinder Khatri.
In furtherance of the said criminal conspiracy, Niranjan Singh submitted a
false detailed note dishonestly and fraudulently claiming the verification of
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records of the society without obtaining the verification report from any
quarter.
Accused Subhash Dabas was the master mind of the conspiracy,
who took over the full control of the affairs of the society. The minutes of
the Managing Committee from 30.4.2003, 18.5.2003, 15.6.2003,
27.7.2003, 31.8.2003 & 19.10.2003 were falsely recorded by Rozy Dabas.
Subhas Dabas has falsely shown resignations of old members by inducting
new members who were known to him. Investigation has also revealed
that Subhash Dabas arranged to obtain the verification certificates of the
members of Inalsa CGHS. He also arranged fake attestation on affidavits
of members of the society purportedly attested by Sh. O. P. Chaudhary,
Notary Public.
During the investigation, the documents were sent to GEQD wherein
it was confirmed that the signatures of Sh.S.K.Bindal, Madho Prasad,
L.K.Charya appearing in the proceeding register have been forged by
accused Vinod Kumar Gupta. The GEQD has also attributed the signatures
of Sh.Subhash Dabas to have been appended by Sh. Subhash Dabas in this
forged proceeding register establishing his involvement.
Accused Vinod Kumar Gupta alleged Secretary of the society moved
an application dated 28.11.2002 under his signatures in the office of RCS
for revival of the society knowing fully well that the documents viz.
Photocopy of General Body held on 24.11.2002, list of 105 members for
approval, Agenda Notice, Election Programme, List of resigned members
after submission of first list, List of enrolled members after submission of
first list and Accounts statements for the year 1987 to 2002 are fake and
forged.
CBI Vs. Narayan Diwakar (Inalsa CGHS)
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The main thrust of the accused is that DCS Act being Special Law
shall prevail upon the General Law i.e. Indian Penal Code. Allegation as
set out in the charge sheet are touching the business of the society
furnishing false information to RCS by filing false and forged documents,
thus, offence U/s 82(3) DCS Act is clearly attracted, therefore the
provisions of Indian Penal Code cannot be invoked. He further contended
that offence U/s 82 (3) of Delhi Cooperative Societies Act has not been
notified by Delhi Government as required by Delhi Special Police
Establishment Act. The allegations of giving false recommendations and
filing of false and forged documents in the office of Registrar of
Cooperative Societies pertaining to the business of Registrar of
Cooperative Societies pertaining to the business of society are specifically
covered U/s 82 (3) of Delhi Cooperative Societies Act but he same has not
been invoked.
It is further agitated that since the matter is covered under the
provisions of Sec. 82 (3) of DCS Act which completely debars the
prosecution without the opportunity of being heard as well as previous
sanction of RCS. It is also agitated that offence alleged to have been
committed by the accused is punishable under the provisions of Special
law, hence the 'provisions' of Indian penal Code being general law cannot
be invoked.
He also placed reliance upon following judgments :-
1.State of Maharashtra Vs. Laljit Rajshi Shah & Ors. 2000 Supreme Court AIR PAGE 937,
2. Suresh Nanda VS. CBI Criminal Appeal no. 179/2008,
3. Greater Mumbai Co-operative Bank Ltd Vs. United yarn Textile & Ors. 2007 (5) SCALE 366,
4. Belsund Sugar Co-operative Ltd. Vs. State of Bihar (AIR 1999 CBI Vs. Narayan Diwakar (Inalsa CGHS) -8- Supreme Court 3125).
5. Divine Retreat Center Vs. State of Kerala SCC 2008 Scale 532
6. Hasan Bhai Vali Bhai Qureshi Vs. State of Gujarat AIR 2004 SC 2078.
On the other hand, it is argued by Ld. PP Dr. Padmini Singh for CBI that DCS Act and Rules are provisions for administration of Co-operative Housing Group Society which do not cover conspiracy to cheat, using forged documents as genuine and forgery for purpose of cheating. Hence, it cannot be said that the chargesheet filed by the CBI is barred due to enactment of Special Law. She has placed reliance upon the judgment of H. N. Risbud Vs. State of Delhi AIR 1955 Supreme Court 196, (FULL BENCH) wherein, it was held that irregularities in investigation does not go to the root of justice, so does not make the chargesheet illegal, therefore it cannot be said that cognizance taken by the court is bad-in- law.
The aforesaid decision delivered by Full Bench of Hon'ble Supreme Court was reiterated by the Apex Court in Union of India Vs. Prakash P. Hinduja (2003) 6 SCC 195. The judgment of Suresh Nanda Vs. CBI & Greater Bombay Co-operative Bank are not applicable as different issues were involved in those cases. It is submitted that the observation of the Hon'ble Supreme Court in case of Greater Bombay Co-operative Bank Ltd was given in the limited perspective regarding the recovery of dues by co-operative Bank on the matter, whether co-operative banks come in the definition of Company or not. Whereas in the case of Suresh Nanda Vs. CBI, it was held that the Passport Act is special enactment, therefore provision of Cr.P.C do not CBI Vs. Narayan Diwakar (Inalsa CGHS) -9- apply.
In Divine Retreat Center, the lordships have observed that High Court should desist to direct the investigative agencies to investigate on the ambiguous and anonymous complaints of the petitioners. But regard must be had to the fact that there is nothing in the judgment that Hon'ble High Court has no power to direct any investigative agency to investigate the matter. Hence, the judgments cited by the applicant/accused are not applicable to the facts of the present case.
It is urged that furnishing of false information to a public servant or producing forged documents in evidence are offences defined U/s 172 to 188 and Sections 193 to 196 for the prosecution of which there is bar of Section 195 Cr.P.C. CBI has filed the charge sheet U/s 420/468/471 r/w 120 B of Indian Penal Code besides the provisions of P.C.Act. Infact, it has been done to avoid the embargo of Sec. 82 (3) of the Act.
In K. Shamrao & Ors. Vs. Assistant Charity Commissioner AIR 2003 SC 1828 wherein it has been held that offence of giving false information to public servant is specifically covered U/ 177 & 182 of the IPC. Registrar Co-operative Societies is public office and hence these sections are required to be invoked. However, the same have not been invoked to avoid the embargo U/s 195 (1) (a) (i) Cr.P.C.1973.
Recently, similar contention has been dealt with by the apex court in the mater of State of M.P. Vs. Rameshwar & Ors. 2009 V AD(SC) 37 which is as follows:-
Their Lordships were pleased to make following observations while CBI Vs. Narayan Diwakar (Inalsa CGHS)
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dealing with aforesaid contention.
Mr. Tankha took us through the MP Co-operative Societies Act, 1960, in support of his submissions. He submitted that the said Act was a complete self contained Code by itself and provided for different eventualities relating to the administration of Co-operative Societies. While dealing with these arguments Hon'ble Supeme Court has observed as follows:_ "Mr.Tankha's submissions, which were echoed by Mr. Jain, that the M.P.Co-operative Societies Act, 1960 was a complete Code in itself and the remedy of the prosecuting agency lay not under the criminal process but within the ambit of Sections 74 to 76 thereof, cannot also be accepted, in view of the fact that there is no bar under the M.P.Co-operative Societies Act, 1960, to take resort to the provision of the general criminal law, particularly when charge under the Prevention of Corruption Act 1988 are invoked."
While dealing with similar contention Hon'ble Supreme Court in K. Ashoka Vs. N.L.Chandrashekar and Ors.(2009) 5 Supreme Court Cases 199 has held as follows:
"D.Cooperative Societies - Karnataka Cooperative Societies Act, 1959 (11 of 1959) - Ss. 111 and 109 - Bar to criminal proceedings, under - Applicability - Held, there is no statutory embargo on court to take cognizance of an offence under the provision of IPC - If allegations in complaint petition or in FIR make out CBI Vs. Narayan Diwakar (Inalsa CGHS)
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a case under IPC, bar under S.111 of 1959 Act is not applicable - Bar under the section applicable only for offences committed under 1959 Act - Criminal proceedings."
It is further observed in para no.23 of this authority which is as follows:
"Section 109 of the Act provides for commission of offences under the said Act. Therein, no statutory embargo has been placed for a Court to take cognizance of an offence under the provision of IPC. If the allegations made in the complaint or in the first information report make out a case under IPC, Section 111 of the Act to which our attention has been drawn, would constitute no bar for maintenance thereof being applicable only in respect of offences committed under the said Act. The said statutory interdict therefore cannot be extended in regard to commission of an offence under the other Act."
After applying the ratio of judgments of Apex court (s), I do not find any force in the aforesaid contention of the Ld. Defence counsel that offences are liable to be tried under DCS Act only by invoking the provisions of the said Act, therefore, the matter requires to be referred for reinvestigation/fresh investigation. It needs to be noticed that there is no bar to take resort to the provision of General Criminal Laws in DCS Act also. In this case, accused persons including the applicant were chargesheeted for the commission of offences of criminal conspiracy, cheating, forgery for the purpose of cheating, using as genuine a forged CBI Vs. Narayan Diwakar (Inalsa CGHS)
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document and criminal misconduct. These offences are nowhere defined or dealt with in DCS Act nor did the provisions of the said Act put a bar to proceed under the IPC & PC Act, if omission and commission on the part of an accused attracts penal provisions under these Acts. Even otherwise under section 26 of the General Clauses Act, the accused could be booked for the provisions of any other Law attracted.
Further in view of State of Maharashtra Vs. Laljit Rajsi Shah & Ors. 2000 Supreme Court AIR page 937 and 'Anil Bhai M. Patel Vs. Surya Pur Bank Agent 2007 Vol. III AD (SC) 773, it is urged that the Co-operative Society Act 1972 is a complete self contained statue, so the provisions of the said Act have to followed and that the provisions of Indian Penal code cannot be adhered to. He further urged that the Delhi Co-operative Societies Act 1972, provides a well defined system of addressing the issues relating to various private co-operative societies and it contains the provisions of fine, appeal, punishment and as such the resort to the provisions of the IPC by the CBI is wholly illegal. I have gone through the judgments cited by the accused. The facts and the contexts in which such judgments were delivered are entirely different than the present context, hence, the plea qua non- applicability of Indian Penal Code is misconceived. Suffice to say that the Delhi Cooperative Societies Act itself also does not impose any bar to take resort in the provisions of General Criminal Laws.
I am coming to the next plea of the accused that the non- compliance of Sec.3 of DSPE Act 1946 vitiates entire investigation. As per Sec.3 of DSPE Act 1946 the Central Government made notification in the official gazette to specify the offences or classes of offences which are to be investigated by Delhi Special Police Establishment. It is urged hat the act confers the jurisdiction on the CBI in relation to the investigation by the Central Government u/s 3 of the Act. Such CBI Vs. Narayan Diwakar (Inalsa CGHS)
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offences as notified are mentioned in DSPE Act 1946. it is further urged that offences covered by the Sec.3 of the Act do not include the offences under the Co-operative laws. Thus, the investigation done by the CBI for the co-operative societies is in violation of Sec.3 as it had no jurisdiction to conduct the investigation. Offences mentioned in the charge sheet are all notified offences U/s 3 of the DSPE Act, hence no fresh notification is necessary.
Next line of the arguments of Ld. Defence Counsel is that the Co-operative Society Act 1972 is a complete self contained statue, thus, the provisions of the Indian Penal Code cannot be adhered to. He further urged that the Delhi Co-operative Societies Act 1972, provides for a well defined system of addressing the issues relating to various private co-operative societies and it contains the provisions of fine, appeal, punishment and as such the resort to the provisions of the IPC by the CBI is wholly illegal.
I have gone through the Delhi Cooperative Societies Act, 1972. As per the preamble of the Act, it was enacted to consolidate and amend the laws relating to cooperative Societies in Union Territory of Delhi. Section 3 of the Act empower the Lt. Governor of Delhi to appoint a person to be the Registrar Cooperative Societies for Union Territory of Delhi and to appoint other persons to assist him. Section 4 of the Act specifies the Societies, which may be registered under section 9 of the Act. A registration certificate shall be issued to that society by the Registrar, as provided in Section 10 of the Act. Rights and liabilities of the members of Cooperative Society are defined in Chapter-III of the Act. Chapter-IV of the Act deals with provision relating to management of a Cooperative Society. Section 32 of the CBI Vs. Narayan Diwakar (Inalsa CGHS)
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Act empowers the Registrar to supersede managing committee of the society in given situations. Privileges of co-operative society are defined in Chapter-V of the Act. Provisions are made about properties and funds, which a Cooperative Society may possess, in Chapter VI of the Act. Audit enquiry, inspection and issues relating to surcharge are enacted in the provisions of Chapter VII of the Act. Settlement of disputes, touching Constitution , management or business of a Cooperative Society are to be governed under provisions of Section 60 of the Act, which can be referred to an arbitrator by the Registrar, as contemplated by Section 61 of the Act. Chapter-IX of the Act provides the procedure of winding up of the Cooperative Society, appointment of a liquidator and powers being exercised by him. Registrar is empowered to cancel registration of Cooperative Society under section 69 of the Act. Chapter-X provides for execution of awards, decrees, orders and decisions made under he Act. Section 76 enlists the order which are appealable. Cooperative Tribunal is appointed by the lt. Governor under provisions of Section 78 of the Act, who has powers of hearing appeals and revision. Lt. Governor is also empowered to revise the orders, as contemplated by Section 80 of the Act. Section 82 of the Act defines the term "offences", which provisions are reproduced below:- "82. Offences.-- (1) Any person other than a cooperative society carrying on business under any name or title of which the word "cooperative", or its equivalent in any Indian Language, is part, without the sanction of the Lt. Governor shall be punishable with fine which may extend to two hundred rupees and in the case of a continuing breach with a further fine which may extend to five hundred rupees for every day during which the breach is continued after conviction for the first such breach.
(2)Any member or past member or the nominee, heir or legal CBI Vs. Narayan Diwakar (Inalsa CGHS)
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representative of a deceased member of a cooperative society who contravenes the provisions of Section 36 and 37 by disposing of any property in respect of which the society is entitled to have a first charge under that section or do any other act to the prejudice of such claim, shall be punishable with fine which may extend to five hundred rupees.
(3) A cooperative society or an officer or member thereof willfully making a false return or furnishing false information, or any person willfully or without any reasonable excuse disobeying any summons, requisition or lawful written order issued under he provisions of this Act or willfully not furnishing any information required from him by a person authorised in this behalf under the provisions of this Act, shall be punishable with fine which may extend to two hundred rupees.
(4) Any employer who, without sufficient cause, fails to pay to a co- operative society the amount deducted by him under section 44 within a period of fourteen days from the date on which such deduction is made shall, without prejudice to any action that may be taken against him under any law for th time being in force be punishable with fine which may extend to five hundred rupees. (5) Any officer or custodian who willfully fails to hand over custody of books, records, cash, security and other property belonging to a co-operative society of which he is an officer or custodian, to a person entitled under section 33, 53, 54, 55 or 66 shall be punishable with fine which may extend to two hundred rupees and in the case of a continuing breach with a further fine which may extend to five hundred rupees for every during which the breach is continued after conviction for the first such breach.
(6) Any person who fraudulently acquires or abets in the acquisition CBI Vs. Narayan Diwakar (Inalsa CGHS)
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of any such property of which is subject to a charge under sections 36 and 37 shall be punishable with fine which may extend to two hundred rupees.
"No Court inferior to that Court of a Magistrate of first class can take cognizance of an offence, enacts the provisions of section 83 of the Act. Sub-section (2) of said section puts an embargo, wherein it is enacted that no prosecution would be instituted under this Act, without previous sanction of the Registrar and such sanction shall not be given without giving the person concerned a reasonable opportunity to represent his case.
The plain reading of the Act makes clear that the Act has been enacted by the Parliament with a view to provide for registration, management, smooth functioning, supervision and control of the Registrar over a co-operative society. Provisions are made for redressal of grievances concerning dispute touching constitution, management or business of a co-operative society. The Tribunal has been constituted to hear appeals or revision against the orders of the Registrar. Lt. Governor of Delhi is also empowered to hear appeal and revisions against the orders passed by the Registrar or Tribunal as the case may be. Offences which are coined, provide for instances of deviations from the provisions of the Act. AS indicated above, those abrasions are minor offences, for which prosecution can be launched before Magistrate of first class with previous sanction of the Registrar. Offences coined under the Act do not encompass human behaviour, which had been made penal under provisions of the Indian Penal Code as well as under Prevention of Corruption Act. Suffice to say that the Delhi Co-operative Society Act itself does not impose any bar to take resort in the provision of General Criminal Laws.
CBI Vs. Narayan Diwakar (Inalsa CGHS)
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Another plea of the accused is that the non-compliance of Sec.3 of DSPE Act 1946 vitiates entire investigation. As per Sec. 3 of DSPE Act 1946 the Central Government made notification in the official gazette to specify the offences or classes of offences which are to be investigated by Delhi Special Police Establishment. It is urged that the Act confers the jurisdiction on the CBI in relation to the investigation by the Central Government U/s 3 of the Act and such offences as notified are mentioned in DSPE Act 1946. It is further urged that offences covered by the Sec. 3 of the Act do not include the offences under the Co-operative laws. Thus, the investigation done by the CBI for the co-operative societies is in violation of Sec.3 as it had no jurisdiction to conduct the investigation. Offences mentioned in the charge sheet are all notified offences U/s 3 of the DSPE Act, hence no fresh notification is necessary.
In so far the plea of defence counsel regarding pendency of writ petition bearing no.18/2008 in the Apex court is concerned; firstly, it has not been decided yet, secondly, no order regarding the stay of proceedings qua the present case either from the Hon'ble Apex Court or High Court has been shown or produced. Moreover, it has not been shown that in the said writ petition, if any prayer was made by the accused/applicant to stay the proceedings of this case. When, no such prayer for grant of stay of this case has been made by the accused before the Hon'ble Apex Court then, accused cannot seek the stay of the proceedings of the present case in an indirect manner. AIR 2001 Supreme Court 2856 titled SatyaNarain Sharma Vs. State of Rajasthan is relied upon. Relevant portion is reproduced as under :-
"(A) Prevention of Corruption Act (49 of CBI Vs. Narayan Diwakar (Inalsa CGHS)
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1988), S. 19 - Stay of trial - Trial of public servant for corruption charges - No stay can be granted by Court by use of any power - This is also applicable to High Court when it exercises inherent jurisdiction under S. 482. Cr.P.C."
The last limb of the argument of the accused is that investigation is bad in law for non-compliance of Sec.6 of the DSPE Act 1946. The consent of the government of the State is required to exercise the power and jurisdiction in any area in State. It is argued that there is no state within the meaning of Sec.6 of DSPE Act 1946 and as such the CBI had no jurisdiction to conduct the investigation in the absence of Sanction U/s 6 of the Act. The sanction of Delhi Government is not necessary as investigation of this case has been referred to CBI by the Hon'ble High Court of Delhi vide Civil Writ Petition no. 10066/2004 directing CBI to conduct a thorough investigation into the matter relating to 135 Co-
operative Group Housing Society. Investigation has been carried out by the CBI only pursuant to the order of the Hon'ble High Court. Section 6 of the Act does not apply when the court directs CBI to conduct investigation as held in catena of judgments of Hon'ble High Courts as well as Apex Court.
Larger Bench of the Supreme Court comprises of Five Judges has dealt with the aforesaid proposition State of West Bengal & others Vs. Committee for protection of Democratic Rights 2010 III AD (SC) 45. Relevant portion is reproduced as follows:-
(B) - Delhi Special Police Establishment Act, 1946-
CBI Vs. Narayan Diwakar (Inalsa CGHS)
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Sec.4, 5 and 6 - Complaint along with a large number of a party workers killed - Doctrine of Separation of Powers - Power of judicial review conferred on the High Court - Issue - Whether the High Court, in exercise of its jurisdiction under Article 226 of the constitution of India, can direct CBI to investigate a cognizable offence, which is alleged to have taken place with in the territorial jurisdiction of a State, without the consent of the State Government- HELD-Yes-Power of judicial review being an integral part of the basic structure of the Constitution, no Act of Parliament can exclude or curtail the poers of the Constitutional Courts with regard to the enforement of fundamental rights-Any direction by the Supreme Court or the High Court in exercise of power under Article 32 or 226 to uphold the Constitution and maintain the rule of law cannot be termed as violating the federal structure- Power of the High Court under Article 226 of the Constitution cannot be taken away, curtailed or diluted by Section 6 of the Special Police Act-Being the protectors of civil liberties of the citizens, this court and the High Courts have not only the power and jurisdiction but also an obligation to protect the fundamental rights, guaranteed by Part III in general and under Article 21 of the Constitution in particular, zealously and vigilantly.
Similar view has already been taken in the order dated 17.9.2007 passed by Hon'ble Mr. Justice Sh.S.N.Dhingra in Criminal MC No. 2784 of 2007 wherein his Lordship was pleased to make the following observations:-
"The investigation was referred to CBI in this case by the High Court. One investigation of a case is given by the High Court to CBI under its inherent powers, CBI Vs. Narayan Diwakar (Inalsa CGHS)
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permission from State Government is not required. High Court is competent enough to refer a mater for investigation to CBI.
Investigation is done by police under Cr.P.C. There is no such thing as investigation under Delhi Cooperative Societies Act. In fact lot of bungling, corruption and registration of fake societies was found and the entire episode was investigated. Therefore, after investigation, the chargesheet had to be filed by CBI in respect of all those crimes, commission of which was revealed after investigation. It is also settled law that an act of accused may attract offences under different penal provisions and he can be charged under all such penal provisions."
In Cherrian Vs. Union of India (1992) 1 SCC 397, the Hon'ble Supreme Court directed CBI to take up the investigation of particular case without directing the Sate concerned to accord consent.
The plea of Ld. Defence Counsel is that Section 63 of the Act provides winding up order may be cancelled at any time and further that as per Rule 105 of the DCS Rules, 1973, there is automatic revival of the society, if liquidation proceedings are not completed within the period of three years, though do not call for any comments but it cannot be ignored more particularly when recalling of the liquidation order(s) is based on the allegations of conspiracy.
The contention of accused that FIR does not disclose the name of the complainant is misleading. The FIR discloses the source of the CBI Vs. Narayan Diwakar (Inalsa CGHS)
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complainant, correct version of the complaint, FIR number and other necessary details and hence it meets the requirement of Section 154 Cr.P.C. Moreover, First Information Report is an information and not an investigation.
Undoubtedly, the court has ample power U/s 173 (8) Cr.P.C. to order for further investigation in a given situation. The scheme of Sec.173 (8) Cr.P.C. makes it abundantly clear that even if the charge sheet is submitted, further investigation, if called for is not precluded. The question which arises for determination i whether an application can be made by the accused requesting for further investigation under the aforesaid provisions and the same can be ordered on the facts and circumstances of the particular case so demands but this would not be available on the application made by the accused. The present application is clearly misconceived and has been moved with the sole intention to delay the progress of the case.
In Hasan Bhai Vali Bhai Qureshi Vs. State of Gujarat AIR 2004 SC 2078, it was observed that Sub-Section (8) of 173 of the Code permits further investigation, and even dehors any direction from the court as such, it is open to the police to conduct proper investigation, even after the Court took cognizance of any offence on the strength of a police report earlier submitted. All the more so, if as in this case, the Head of the Police Department also was not satisfied of the propriety or the manner and nature of investigation already conducted.
On reading the judgment (Supra), it makes clear that the proposition with regard to right of the accused to seek further investigation has not been dealt with. The prerogative of further investigation is available to the CBI Vs. Narayan Diwakar (Inalsa CGHS)
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prosecution and not to the accused. This case was registered and investigated by CBI pursuant of directions given by Hon'ble High Court of Delhi. Hon'ble Supreme Court and various Hon'ble High Courts have held that provision s of Section 3 and 6 of DSPE Act do not apply when the Hon'ble Supreme Court/High Court directs CBI to conduct investigation. I find support of my view from the judgments viz., State of West Bengal Vs. Sampat Lal AIR 1985 SC 195, C A Gopalan Vs. Inspector General of Police 1993 Cr. L J 1543, Maniyeri Madhwan VS. Sub Inspector of Police, 1994 Cr L J 3063. Yashwant Vs. State of Maharashtra 1995 Cr L J 2228. Dharmistha Ben Narindera Sunh Jala VS. State of Gujarat 1997 Cr L J 3866.
Hon'ble Supreme Court in Naresh Kavarchand Khatri Vs. State of Gujarat & Anr. 2008 8 SCC 300 has held that power of the Court to interfere with an investigation is limited. The Court should not interfere in the matter at the initial stage in regard thereto.
Re-investigation or fresh investigation is out of the scope of Section 173 (8) of Cr.P.C. In this regard, reliance is placed on K. Chandrasekhar Vs. State of Kerala and Ors., 1998(2) RCR (Criminal) 719 : (1998(5) SCC 223). It was, inter alia, observed as follows :-
"24. The dictionary meaning of "further" (when used as an adjective) is "additional; more; supplemental".
"Further" investigation therefore is the continuation of the earlier investigation and not a fresh investigation or reinvestigation to be started ab initio wiping out the earlier investigation altogether. In drawing this conclusion we have also drawn inspiration from the CBI Vs. Narayan Diwakar (Inalsa CGHS)
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fact that sub-section (8) clearly envisages that on completion of further investigation the investigating agency has to forward to the Magistrate a "further"
report or reports - and not fresh report or reports - regarding the "further" evidence obtained during such investigation."
Further in Ramachandran Vs. R.Udhayakumar, AIR 2008 (SC) 3102 : 2008 Cr.L.J. 4309, it was held as follows"
"Criminal Procedure Code, Section 173(2) - Criminal Procedure Code, Section 173(8) - Fresh investigation, Re-investigation and further investigation - Distinction - After completion of investigation under Section 173(2) Cr.P.C., Police has right to further investigation under Section 173(8) Cr.P.C but not fresh investigation or re- investigation - Directions of the High Court for re-investigation or fresh investigation are clearly indefensible. 1998(2) RCR (Crl.) 719 (SC) relied."
Since the offences as per the charge-sheet were allegedly committed under the Penal Code as well as under the Prevention of Corruption Act, so it cannot be said that the investigation undertaken by the CBI was illegal. Insofar, the citations relied upon by the Ld. Counsel is concerned, there is no dispute with regard to the proposition of law laid down therein, however, every case has its own facts and circumstances, ratio of law laid down in particular authority is to be applied according to the facts and circumstances of that particular case. Facts and circumstances of the case CBI Vs. Narayan Diwakar (Inalsa CGHS)
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in hand has already been discussed in earlier part of my order which are entirely different than that the facts and circumstances of authorities cited by the Ld. Defence counsel.
In view of the aforesaid discussions, the present application is devoid of any merit as the same has been moved with the motivation to delay the progress of trial. In the result, application stands dismissed with costs of Rs.5000/- to be deposited with DLSA.
Announced in the open court on this 29th of July, 2010.
(Amar Nath) Spl. Judge, CBI-II Rohini Delhi CBI Vs. Narayan Diwakar (Inalsa CGHS)