Delhi District Court
Cbi vs Satyendra Tiwari on 6 June, 2011
RC11(S)/02: CBI/SCRIII/ND: U/s 120 B IPC r/w 467/468/471 IPC DOD: 06.06.2011 IN THE COURT OF VINOD YADAV: CHIEF METROPOLITAN MAGISTRATE: DELHI RC11(S)/02 CBI/SCRIII/New Delhi CBI V/s Satyendra Tiwari 06.06.2011 Present: Shri Anil Tanwar, Ld.Special PP for CBI. Accused on bail alongwith counsel Shri Ajay Rai, Advocate. O R D E R:
The arguments on charge in the matter were heard in detail on 27.05.2011 and the matter was kept for order today. The case FIR in the present matter was registered on 22.11.2002, on the basis of a complaint dated 05.11.2002, received by CBI from Shri Rajinder Singh, Dy. Inspector General of Police (Pers.), Central Reserve Police Force (in short "CRPF"), wherein it was alleged that ExConstable Satyender Tiwari (hereinafter referred to as "accused"), who stood dismissed from service from CRPF on 28.03.2000, after departmental enquiry, was engaged in sending representations for his reinstatement through various political persons, particularly Shri Brij Mohan Ram, Member of Parliament (Lok Sabha). It was further stated that a letter dated 11.12.2001, addressed to Shri Shahid Ahmed, Inspector General of Police, Bihar Sector (CRPF), Patna and letter dated 20.02.2002, addressed to DG, CRPF, purported to have been written by Shri L.K Advani, the then CBI V/s Satyendra Tiwari (Order On Charge) "Discharged" Page 1 of 13 RC11(S)/02: CBI/SCRIII/ND: U/s 120 B IPC r/w 467/468/471 IPC DOD: 06.06.2011 Home Minister of India, regarding reinstatement of accused in service were received through fax. Enquiries revealed that the said letters were never sent from the O/o Home Minister of India. Subsequently, copy of letter dated 11.01.2002, allegedly written by Shri PPS Sidhu, IG (Pers.), CRPF addressed to IG, Bihar Sector, CRPF, Patna regarding reinstatement of accused in service with instructions for his posting at IG, CRPF, Muzzafarpur was received in the office of DG, CRPF, Delhi, which were duly forwarded by Shri Brij Mohan, MP (Lok Sabha), vide his letters dated 30.04.2002 and 18.07.2002. On enquiry from Shri PPS Sidhu, IG (Pers.), CRPF, it was found that letter purportedly written by him was forged one and he had never sent the same. On the basis of aforesaid letter of Shri Rajinder Singh, Dy. Inspector General of Police (Pers.), case FIR in the matter U/s 120 B IPC r/w Sections 467/468/471 and 420/511 IPC was registered.
The investigation conducted in the matter disclosed that aggrieved by his dismissal from service, accused indulged in fabricating and forging the letters in the name of Shri L.K Advani, the then Home Minister and Shri PPS Sidhu, IG (Pers.), CRPF and sent the same through fax with the letter of Shri Brij Mohan Ram, MP (LS) to Director General of Police (CRPF) and IG (CRPF) in order to pressurise the aforesaid senior officers of CRPF for reinstating him in service.
CBI V/s Satyendra Tiwari (Order On Charge) "Discharged" Page 2 of 13 RC11(S)/02: CBI/SCRIII/ND: U/s 120 B IPC r/w 467/468/471 IPC DOD: 06.06.2011 Investigation further disclosed that letter dated 11.12.2001, addressed to Shri Shahid Ahmed, IGP, CRPF, Bihar Sector, purportedly sent by Shri L.K Advani, the then Home Minister was received in the office of IGP through fax installed in his office and the same was sent through fax number 3363817. The said fax number through which the aforesaid letter was sent to IGP was lying installed in the office of Shri Chandeshwari Prasad Singh, Junior Intelligence Officer, Intelligence Bureau, MHA, Govt. of India, but the same was not having STD and fax facility. Shri Chandeshwari Prasad Singh denied his acquaintance with the accused and denied having ever sent any fax message from his aforesaid telephone number.
Investigations further revealed that copy of another letter dated 11.12.2001 was received through fax in the office of DGP, CRPF, New Delhi on 12.12.2001, which was sent from fax number 3794035. The said letter was purportedly sent by the Home Minister of India. Shri Deepak Chhabra, the then Private Secretary to the Home Minister of India denied sending of said letter from the O/o Home Minister. It was revealed that fax number 3794035 was lying installed at Shop No.1, North Avenue, New Delhi on a telephone booth, which at the relevant time was being operated by one Shri Krishna Nambiar. This person was interrogated, wherein he admitted that the said fax was sent from his booth, but he could not tell as to who came to his STD booth for sending the said fax.
CBI V/s Satyendra Tiwari (Order On Charge) "Discharged" Page 3 of 13 RC11(S)/02: CBI/SCRIII/ND: U/s 120 B IPC r/w 467/468/471 IPC DOD: 06.06.2011 Investigation further disclosed that on 20.02.2002, another letter, purportedly sent by Home Minister of India to Shri Trinath Mishra, DG, CRPF was received in his office through fax, which was sent from fax number 3313412. It was found that the aforesaid fax was lying installed in Central Telegraph Office, Eastern Court, Janpath, New Delhi, which could have been used by any public person.
This also came to fore during investigation that before registration of FIR, the IG, CRPF had deployed one Shri V.P Singh, Assistant Commandant (GC), CRPF, Mokama Ghat, to conduct an enquiry and to contact the accused at his native place to ascertain the fact as to whether it was the accused who had sent the said fax letters. Shri V.P Singh accordingly contacted the accused at his village and he found the accused in possession of a copy of letter dated 11.01.2002 and accused could not give any satisfactory answer with regard to possession of said letter, but strangely said Shri V.P Singh did not take into possession the copy of said letter from the accused, as there is no seizure memo in this regard and his statement is only hearsay.
During the course of investigation, Shri Brij Mohan Ram, MP (LS) stated that brother of accused namely Shri Virender Tiwari was working with him as "Public Relation Officer" at the relevant time and he was residing at North Avenue, New Delhi. He admitted having sent letters dated 30.04.2002 and 18.07.2002 to Shri Trinath Mishra, DG, CRPF under his CBI V/s Satyendra Tiwari (Order On Charge) "Discharged" Page 4 of 13 RC11(S)/02: CBI/SCRIII/ND: U/s 120 B IPC r/w 467/468/471 IPC DOD: 06.06.2011 signatures, however, he further stated that the same were issued in routine manner. He denied having enclosed any letter alongwith his DO letters.
During the course of investigation, accused was subjected to "Lie Detection Test" and report in this regard is there on record.
The CBI took almost 4½ years to investigate this case and for the first time arrested the accused alongwith his brother Shri Virender Tiwari on 18.03.2006. Both the accused persons were taken on police custody remand and on 29.03.2006, the learned Magistrate in the matter observed as under:
"I have enquired from the IO. In absence of the originals of aforementioned fax, it cannot be ascertained as to who got issued fax messages to the complainant and only on the basis of the photocopy, no expert opinion can be obtained as to who has sent the fax in question and if it cannot be established, there is no reason to remand the accused persons in judicial custody. IO has admitted that fact that in absence of original fax, no expert opinion can be taken on the basis of the photocopies of the fax.
I have considered the submissions. It is also clear that the accused has not got any benefit by receiving all the aforesaid "faxes" in the office of the complainant and it cannot be ascertained that it was the accused Satyendra Tiwari only who has forged the fax. Therefore, it seems that there is no reason and justification in granting judicial custody remand as there is no incriminating evidence on record against the accused so far. The accused Urender Tiwari has been arrested only on the basis of disclosure statement of Satyendra Tiwari and there is no incriminating evidence against him also. In view of this fact, both the accused persons Satyendra Tiwari and Urender Tiwari are discharged from the custody from the court itself".
Thereafter, the chargesheet in the matter was filed on 07.01.2008 against the accused and his brother was absolved from the case. CBI V/s Satyendra Tiwari (Order On Charge) "Discharged" Page 5 of 13 RC11(S)/02: CBI/SCRIII/ND: U/s 120 B IPC r/w 467/468/471 IPC DOD: 06.06.2011 The learned Special PP for CBI, Shri Anil Tanwar has very vehemently argued that accused is the sole beneficiary of all the three letters, namely (i) D7 dated 11.12.2001, purportedly written to Shri Shahid Ahmed, IGP by Shri L.K Advani, the then Home Minister, (ii) letter D10, dated 20.02.2002, purportedly written to Shri Trinath Mishra, DG, CRPF by Shri L.K Advani, the then Home Minister of India and (iii) letter dated 11.01.2002, purportedly written by Shri Shahid Ahmed, IGP, CRPF by Shri PPS Sidhu, DG (Pers. & HQ) and as such, there is presumption that he had got faxed the aforesaid letters to the higher officers of CRPF for pressurising them to reinstate him in service. The aforesaid argument is further being strengthened with supplementary argument that during the departmental enquiry proceedings, one of the charges against the accused was of impersonating political persons.
It is next argued that during the course of investigation, accused made disclosure statement (D26) on 27.03.2006, wherein he offered to identify the shop from where he had got faxed letter dated 11.12.2001 and he in fact got the said shop identified vide Identification Memo (D27).
It is next argued that before registration of FIR, PW3 Shri V.P Prasad Singh had contacted the accused and at that time from his possession photocopy of a DO letter, written by Shri Brij Mohan, MP (LS) to DG, CRPF dated 11.01.2002 was recovered and he could not give any satisfactory answer thereto.
CBI V/s Satyendra Tiwari (Order On Charge) "Discharged" Page 6 of 13 RC11(S)/02: CBI/SCRIII/ND: U/s 120 B IPC r/w 467/468/471 IPC DOD: 06.06.2011 Per contra, learned defence counsel Shri Ajay Rai, advocate has very vehemently argued that there is no legally sustainable evidence against the accused in the matter. The investigating agency has no material to substantiate any charge against the accused, as there is no evidence as to who forged the aforesaid three letters, who made an attempt to deceive the DGP, CRPF and DG, CRPF (Pers. & HQ) to issue revocation of termination of accused. There is further no evidence as to who faxed the aforesaid three letters to the different authorities. It is further argued that in the present case, there is no evidence linking the accused with the aforesaid three letters.
It is further argued that the persons, who allegedly received fax copies of the aforesaid letters are not the complainants and there is no recovery of any incriminating material from the accused.
I have given thoughtful consideration to the arguments advanced at bar from both the sides. The law with regard to framing of charge in these type of cases is fairly settled now.
In case titled as, "State of Maharashtra & Ors. Vs. Som Nath Thapa & Other", reported as, "JT 1996 (4) SC 615" it was held that:
"If on the basis of material on record a court could come to the conclusion that commission of offence is a probable consequence, a case of framing of charge exists. To put it differently, if the courts were to think that the accused might have committed the offence it can frame a charge, though for conviction the conclusion is required to be that the accused has committed the offence. It is apparent that at the stage of framing of a charge probative value of the materials on record cannot be gone into, the material brought on record by the prosecution has to be accepted as true at that stage."CBI V/s Satyendra Tiwari (Order On Charge) "Discharged" Page 7 of 13
RC11(S)/02: CBI/SCRIII/ND: U/s 120 B IPC r/w 467/468/471 IPC DOD: 06.06.2011 In "State of Bihar Vs. Ramesh Singh", reported as, "AIR 1977 SC. 2018: (1977 CRI LJ 1606)" Hon'ble Supreme Court held in para 4 as under:
"At the beginning and the initial stage of the trial the truth, veracity and effect of the evidence which the prosecutor proposes to adduce are not be meticulously judged. Nor is any weight to be attached to the probable defence of the accused. It is not obligatory for the Judge at that stage of the trial to consider in any detail and weigh in a sensitive balance whether the facts, if proved, would be incompatible with the innocence of the accused or not. The standard of test and judgment which is to be finally applied before recording a finding regarding the guilt or otherwise of the accused is not exactly to be applied at this stage of deciding the matter under S.227 or S.228 of the code. At that stage the Court is not be see whether there is sufficient ground for conviction of the accused or whether the trial is sure to end in his conviction. But at the initial stage if there is s strong suspicion which leads the Court to think that there is ground for presuming that the accused has committed an offence then it is not open to the Court to say that there is no sufficient ground for proceeding against the accused."
In "Umar Abdula Sakoor Sorathia vs. Intelligence Officer Narcotic Control Bureau", reported as, "JT 1999 (5) SC 394", it was held that:
"It is well settled that at the stage of framing charge, the court is not expected to go deep into the probative value of the materials on record. If on the basis of materials on record, the court could come to the conclusion that the accused would have committed the offence, the court is obliged to frame the charge and proceed to the trial."
In the case of "Kallu Mal Gupta vs. State", reported as, "2000 I AD Delhi 107" it was held that:
"While deciding the question of framing of charge in a criminal case, the court is not to apply exactly the standard and test which it finally applied for determining the Guilt or otherwise. This being the initial stage of the trail, the court is not supposed to decide whether the materials collected by the investigating agency provides sufficient ground for conviction of the accused or whether the trial is sure to culminate in his conviction. What is required to be seen is whether there is strong suspicion which may lead to the court to think that there is ground for presuming that the accused has committed an offence."CBI V/s Satyendra Tiwari (Order On Charge) "Discharged" Page 8 of 13
RC11(S)/02: CBI/SCRIII/ND: U/s 120 B IPC r/w 467/468/471 IPC DOD: 06.06.2011 It is wellsettled law that at the time of framing of charge the FIR and the material collected by the investigating agency cannot be sieved through the cull ender of the finest gauzes to test its veracity. A roving inquiry into the pros and cons of the case by weighing the evidence is not expected or even warranted at the stage of framing charge. Reliance placed on "Sapna Ahuja Vs. State 1999V AD Delhi p 407".
"It is also settled law that if there is strong suspicion at the initial stage which leads the court to think that there is ground for presuming that the accused has committed an offence then it is not open to the court to say that there is no sufficient ground for proceeding against the accused. If there is sufficient ground to show that at the stage of framing of charge reasonable ground for believing that conviction is possible is sufficient".
In case of "Kanti Bhadra Shah Vs. State of West Bengal", reported as, "2000 I AD (SC) 1", Hon'ble Supreme Court held that:
"If trial court decides to frame charge there is no legal requirement that the trial court should pass an order specifying the reasons as to why it opts to do so. Framing of charge itself is prima facie order that the trial judge has formed the opinion after considering the report and the documents and after hearing both decides that there is ground for presuming that the accused has committed the offence. It was held that a magistrate is required to record his reasons for discharging the accused but there is no such requirement is he forms the opinion that there is ground for presuming that accused had committed offence. In such a situation the magistrate is only required to frame a charge in writing against the accused."
In paragraph No.12 Hon'ble Supreme Court observed:
"If there is no legal requirement that the trial court should write an order showing the reasons for framing of charge, why should the already burdened trial courts be further burdened with such an 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 stage, the snail pace progress of proceedings in trial courts would further be slowed down."CBI V/s Satyendra Tiwari (Order On Charge) "Discharged" Page 9 of 13
RC11(S)/02: CBI/SCRIII/ND: U/s 120 B IPC r/w 467/468/471 IPC DOD: 06.06.2011 Therefore, this court has to see that grave suspicion exists against the accused for committing alleged offences and not otherwise. Admittedly, in this case, the original letters, the copies whereof were received through fax by the senior officers of CRPF were never recovered. There is further no evidence on record as to who forged the said letters, who deceived whom and who used the said forged documents as genuine. In this regard, the guiding force is Section 88 of the Indian Evidence Act, which is reproduced as under:
Sec.88 : Presumption as to telegraphic messages:
The court may presume that a message, forwarded from a telegraph office to the person to whom such message purports to be addressed, corresponds with a message delivered for transmission at the office from which the message purports to be sent; but the Court shall not make any presumption as to the person by whom such message was delivered for transmission. Sec.88A: Presumption as to electronic messages:
The Court may presume that an electronic message, forwarded by the originator through an electronic mail server to the addressee to whom the message purports to be addressed corresponds with the message as fed into his computer for transmission; but the Court shall not make any presumption as to the person by whom such message was sent".
(Underlined emphasized) If the aforesaid provision is meticulously examined, then it would be apparent that there is presumption of the fax message being received, but there is no presumption as to who had sent the said fax message.
I have gone through the statement U/s 161 Cr.P.C of Shri Vinod Prasad Singh, upon whom a lot of stress was laid by the learned Special PP. The testimony of this witness can at the most be stated to be hearsay, as there is no evidence that this witness recovered copy of DO letter, which was allegedly found in possession of accused.
CBI V/s Satyendra Tiwari (Order On Charge) "Discharged" Page 10 of 13 RC11(S)/02: CBI/SCRIII/ND: U/s 120 B IPC r/w 467/468/471 IPC DOD: 06.06.2011 Both the sides very heavily relied upon the statement U/s 161 Cr.P.C of PW5 Shri Brij Mohan Ram, MP (LS). This witness in his evidence stated that accused is resident of his constituency and he used to visit him frequently, as his brother was "Public Relation Officer" in his office. He admitted having written various letters on behalf of accused for sympathetic consideration of his statutory appeal, which was pending before the Appellate Authority in CRPF. I have gone through the correspondence of this witness with various authorities. This witness categorically denied having sent any annexures alongwith his DO letters. The mute question which stares at our face is as to whether this satisfies the ingredients of forgery, using forged documents as genuine or cheating. The answer is "BIG NO".
All the incriminating letters are admittedly photocopies. Although there is evidence that the said letters were sent through fax from three different fax machines, but none of the witnesses has stated anything against the accused that he was the one who had sent the said faxes.
As regards the argument of learned Special PP that accused had made disclosure statement (D26) on 27.03.2006, wherein he had identified the shop from where he had got fax letter dated 11.12.2001, the same is not admissible in evidence as it did not lead to any recovery. CBI V/s Satyendra Tiwari (Order On Charge) "Discharged" Page 11 of 13 RC11(S)/02: CBI/SCRIII/ND: U/s 120 B IPC r/w 467/468/471 IPC DOD: 06.06.2011 It is trite law that at the stage of framing of charge, the court is required to collate evidence against the accused only to the extent that the same is legally admissible evidence and analyse the same effectively and determine if such evidence gives rise to "grave suspicion" against the accused or not and if two views are possible and the judge is satisfied that the evidence produced before him gives rise to some suspicion and not grave suspicion against the accused, then discharge of the accused would be fully justified.
This court is conscious of the law that the prosecution can be given a fair chance to lead secondary evidence in the matter to prove the photocopies of the fax messages, but then it will have to be seen whether the said secondary evidence, if allowed to be led in the matter can be read against the accused, particularly when there is no evidence connecting the accused either with forging of said documents or using the same. Will the framing of charge against the accused in this matter merely on the arguments of learned Special PP that the accused was the alleged beneficiary in the alleged letters would meet the ends of justice? As it is the accused, who has been facing the prosecution in this case for last ten years and another ten years would be wasted in conducting pointless trial. Will that not amount to wastage of precious judicial time, which will be lost in conducting trial in this case. It is a fact that the courts, particularly at the subordinate level are flooded with cases which include matters involving properties worth hundreds of millions of rupees and criminal cases in which persons sentenced to death and facing CBI V/s Satyendra Tiwari (Order On Charge) "Discharged" Page 12 of 13 RC11(S)/02: CBI/SCRIII/ND: U/s 120 B IPC r/w 467/468/471 IPC DOD: 06.06.2011 gallows under untold agony, persons sentenced to life imprisonment and kept in incarceration for long years, persons suffering from undue delay in service matters - government or private, persons awaiting disposal of cases wherein huge amounts of public revenue or unauthorized collection of tax amounts are locked up, detenus expecting their release from the detention orders etc., are all standing in a long serpentine queue for years with the fond hope of getting into courts and having their grievances redressed.
In view of the above discussion, I do not find any legally sustainable evidence against the accused in the matter for framing charges against him. He accordingly stands discharged from this case. His B/B stands cancelled, suerty stands discharged. Endorsement(s), if any, either on the documents of surety or of accused be cancelled forthwith. Original documents, if any, either of accused or of surety be returned to its rightful owner forthwith. File be consigned to record room after completion of necessary formalities.
Announced in the open court (Vinod Yadav)
on 06.06.2011 Chief Metropolitan Magistrate:
Delhi
CBI V/s Satyendra Tiwari (Order On Charge) "Discharged" Page 13 of 13