Delhi District Court
Spl. Judge (Pc Act-Iii) Cbi Courts vs . on 30 October, 2009
1
IN THE COURT OF SHRI YOGESH KHANNA,
SPL. JUDGE (PC ACT-III) CBI COURTS, ROHINI,
DELHI.
CBI/33/08
CBI
Vs.
Vishwanath Aggarwal Etc. .......... Accused
(Shri Narayan CGHS)
DATE OF INSTITUTION : 10.07.2007
DATE OF ORDER : 30.10.2009
RESERVED FOR ORDER: 20.10.2009
ORDER
I have heard the arguments on application dated 08.7.2009 moved on behalf of accused V.K. Bharadwaj challenging the cognizance taken by this Court in the absence of sanction u/s 197 of CrPC.
2. It is stated that the CBI has not obtained the sanction u/s 197 of CrPC to prosecute the accused and since the sanction u/s 197 CrPC is mandatory, hence, the cognizance taken against accused is bad and the proceedings may kindly be stayed.
3. Ld. PP has argued otherwise.
4. I have heard the arguments and perused the material on record. It is not out of place to mention that vide order dated 15.09.2008, the application u/s 197 Cr.PC of accused Narayan 2 Diwakar was dismissed by my Ld. Predecessor. I would like to refer to a paragraph of the said order:-
"Facts referred above makes it clear that since beginning a conspiracy was hatched between Narayan Diwakar, Vishwanath Aggarwal, Srichand, Balam Singh Aswal, Faiz Mohd., Ramesh Chandra, Vinod Kumar Bhardwaj, Prahlad Kr. Thirwani and Mohan Lal, and in pursuance of said conspiracy, documents were forged and fabricated, used as genuine one and membership list of the society was approved. It was not at all taken into account as to why the society has come out of slumbers after a gap of so many years. List was sent to DDA even without waiting for compliance report. All these circumstances are suggestive that actions of accused Narayan Diwakar were actuated with conspiracy. When Naryan Diwakar acted with conspiracy, in such a situation he is not entitled for any protection, as contemplated by provisions of section 197 of the Code. It was his office, which facilitated him in commission of the crime. Narayan Diwakar acted with an intention to commit crime, in that situation it cannot be said that he performed his functions in discharge of his public duties."3
5. In the aforesaid order dated 15.09.2008, my Ld. Predecessor while dismissing an application of accused Narayan Diwakar had also considered the roles of other officials of the office of the Registrar Cooperative Societies and had prima facie made observations qua the conspiracy between them.
6. I have perused the charge-sheet wherein the allegations against the present accused are that he processed the request made by co-accused Vishwanath Aggarwal for withdrawal of the liquidation order and for revival of the society vide his noted dated 22.9.2003 and suggested the name of co-accused Faiz Mohd to be appointed as inspecting officer. The said co-accused Faiz Mohd gave a bogus/false inspection report dated 26.10.2003. This bogus report was forwarded by the present accused vide his noted dated 30.10.2003 stating inter-alia a) that the inspecting officer had visited the registered office of the society and had checked all the records whereas in fact the society never existed at the aforesaid registered office i.e. B- 1299 Gharoli Dairy Farms, Delhi and b) that the proceeding register was in order though various members denied attending the General Body Meeting on 14.9.2003 at Gharoli Dairy Farms, Delhi-110 096.
7. Even accused prepared a detailed note on 19.11.2003 showing the scrutiny/inspection of the documents submitted by accused Vishwanath Aggarwal vide his letter dated 17.9.2003. Applicant/accused V.K. Bharadwaj mentioned in his note that 4 the society had submitted a photo copy of the membership applications, share money receipts, proceedings of the managing committee qua enrollment of the new members along with original affidavits of 165 existing members. He also noted that the secretary of the society produced the original record and documents for verification and the same were found in order. Thus, accused V.K. Bharadwaj suggested to request the competent authority for withdrawal of liquidation order dated 26.12.1978 for revival of the society and approval of the final list of 165 members.
8. It is pertinent to mention that the documents submitted by accused Vishwanath Aggarwal were bogus and false and out of 60 new members enrolled by the society 25 of them were traced but they denied to have ever applied for the membership of the society. The affidavits of 165 members of the society submitted by accused Vishwanath Aggarwal were also found to be forged and bogus documents. Accused Vishwanath Aggarwal also vide his note dated 28.1.2004 processed the letter dated 27.1.2004 of the secretary of the society for change in the name of the society. Further on 12.2.2004 accused V.K. Bharadwaj recorded a note to the effect that Radhey Shyam, President of the society appeared before him and produced the original record for verification and whereas the said Radhey Shyam denied to have attended the office of Registrar Cooperative Societies, Delhi nor produced any record before accused V.K. Bharadwaj.
59. Hence it was alleged that the aforesaid acts of accused V.K. Bharadwaj in conspiracy with private person to enable them to get a plot of land at concessional rates, on the basis of false and forge document constitute offence of criminal conspiracy punishable u/s 120-B IPC read with Section 420/471 IPC and Section 13(2) read with Section 13(1)(d) of P.C Act and u/s 15 read with Section 13(1)(d) of P.C Act.
10. In Bakshish Singh's Case, AIR 1983 SC 257, it was observed by the Hon'ble Supreme Court that the Court has to make a balance between the protection granted to the public servants and the safeguard available to the citizens against the excess of public servants. Further more in the matter of protection for the offence of conspiracy, forgery, cheating and bribery, no sanction u/s 197 of the Code is required, since the Apex Court has ruled that it is not the part of the duty of the public servants while discharging his duty, to enter into a criminal conspiracy or indulged in criminal mis-conduct or to commit offence of forgery, cheating and bribery.
11. Further in Raghunath Anant, 2008 Cr.L.J. 2054, the Apex Court again concluded that it is no part of duty of a public servant while discharging his official duty to enter into a criminal conspiracy or indulge in criminal mis-conduct, application of sanction u/s 197 of CrPC is, therefore, no bar for his prosecution. The Court ruled that the contention of the 6 respondent that for offences u/s 406 and 409 read with Section 120B of the Penal Code, sanction u/s 197 CrPC of the code is a condition precedent for launching the prosecution is equally fallacious.
12. In 'Dharambir Khattar Vs. CBI decided on 5.5.2009 in Criminal Revision Petition No.340 of 2008, by the Hon'ble High Court of Delhi, it was observed that:
"The matter can be looked at from another angle as well. The petitioners have been charged with the offence of criminal conspiracy under Section 120B IPC. Under Section 3 of PCA, the Special Judge is empowered to try not only "any offence punishable under this Code" but under Section 3(1)(b) "any conspiracy to commit or attempt to commit or any abetment of the offences specified in clause (1)".
Under Section 40 IPC, it has been mentioned that in Chapter VA and in Sections 109, 110 IPC the word "offence" denotes a thing punishable under this Code, or under any special or local law as hereinafter defined." Under Section 41 IPC, a special law has been defined as "a law applicable to a particular subject." Therefore, in terms of Section 40 and 41 IPC, the PCA would be a Special Law. The offence under Section 120B in Chapter VA IPC would therefore also become punishable under the PCA which is a special enactment for that 7 purpose. Once the sanction under Section 19 PCA has been obtained, there is no need to obtain a separate sanction under Section 197 CrPC for prosecuting the petitioners for the offence under Section 120B IPC."
13. In 'Kaushal Kumar Vs. CBI, 2009 (1) ILR 56 Delhi it has been observed that the offences u/s 120B IPC and also under P.C Act are not of the nature falling within Section 197 CrPC. It was further observed that a public servant who committed offence under the PC Act can be prosecuted with sanction u/s 19 of the P.C Act if he continues to be a public servant when court took cognizance, and he cannot seek protection u/s 197, CrPC merely because charge under IPC is included in sanction order.
14. Lastly, in Noor Mohammad vs. CBI Crl. Rev. P.577/2008 vide order dated 02.02.2009, the Hon'ble High Court while uhholding the order of the Ld. Special Judge qua dismissal of the application moved by the accused persons u/s 197 Cr.PC had observed that :
"The apprehension expressed by some of the petitioners that the trial court has foreclosed their submissions on the grant of sanction once and for all is misplaced. As pointed out by the trial court in the order dated 22nd August 2008, if at the end of the trial it is found that any of these petitioners is 8 either guilty for some of the other offences or that they were in fact performing their official duties, then the effect of the absence of sanction can be considered by the trial court at that stage."
15. Thus, the acts of accused V.K. Bharadwaj, including the aspect of conspiracy, prima facie are beyond the purview of discharge of his official duties and hence the accused is not entitled to protection u/s 197 Cr.PC.
Hence, the application of accused V.K. Bharadwaj dated 08.7.2009 u/s 197 CrPC stands dismissed.
Announced in opened court ( YOGESH KHANNA ) on 30.10.2009 Special Judge, CBI-III(PC Act) Rohini, Delhi.