Delhi District Court
Central Bureau Of Investigation vs Dr. Faheem Usman Siddiqui on 19 May, 2014
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IN THE COURT OF SHRI SANJEEV JAIN: SPECIAL JUDGE (PC ACT), CBI03
NEW DELHI DISTRICT, SAKET COURT, NEW DELHI
CC No. 35/12
RC No.A0003/ACUIII/2006/CBI/ND
U/s. 120B r.w. 420,468 & 471 IPC and section 13 (2) r.w. Section 13 (1) (d) of
Prevention of Corruption Act, 1988
Central Bureau of Investigation
Versus
1.Dr. Faheem Usman Siddiqui
2. Vijay Kumar (expired)
3. Ajay Bhardwaj
4. Krishna Chand Mehrotra (expired)
5. Sharad Kumar Mishra Date of FIR : 17.08.2006 Date of filing of Chargesheet : 17.12.2009 Arguments heard on : 04.04.2014 Date of Order : 19.05.2014 Appearance:
For prosecution : Sh Raj Mohan Chand, Ld. Sr.PP for CBI.
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For accused : Sh. M.P Singh, advocate for A1
Sh. Kishan Nautiyal, advocate for A5
Mrs. Meena Sharma, advocate for A3.
ORDER ON CHARGE
1. Chargesheet has been filed by CBI against (A1) Dr. Faheem Usman Siddiqui, (A2) Vijay Kumar (since expired), (A3) Ajay Bhardwaj, (A4) Krishna Chand Mehrotra (since expired) and (A5) Sharad Kumar Mishra. Hereinafter, the accused persons are referred either by mentioning "A" number or by their names or at some places by both.
1.1 As per prosecution case the brief facts are that this case was registered by CBI against accused persons on the allegations that Smt. Maneka Gandhi, in criminal conspiracy with the other accused/public servant Dr. Faheem Usman Siddiqui and Sh. Tara Chand Pandey by abusing their respective official positions sanctioned grant of Rs.15 lakhs to Alp Sankhyak Mridul Kanya Inter College Shiksha Samiit, Bisalpur from MAEF in an irregular and fraudulent manner for construction of Inter College building at Bisalpur and an amount of Rs.13,50,000/ was released in two installments of Rs.7.50 lakhs and Rs.6.00 lakhs to the Manager of the Samiti and thereby undue favour to Sh. Vijay Kumar Gupta, a political worker was given. 1.2 Investigation revealed that Maulana Azad Education Fund (MAEF), registered under the Societies Registration Act, 1860 has been granted by the 3 Government of India with a corpus fund, the earning of which are utilized for promotion of education amongst educationally backward sections of society. The main requirements for sanction of grant by MAEF are that the institution seeking funds must be 3 years old and should have their own land for construction of building. During the relevant period 1999 to 2002, MAEF was under the Ministry of Social Justice and Empowerment, Government of India and Smt. Menaka Gandhi was exofficio President as MOS (SJE) and Dr. F.U. Siddiqui was its Secretary.
1.3 Investigation further revealed that the Alp Sankhyak Mridul Girls Inter College Shiksha Samiti, Bisalpur (hereinafter referred as "Society") was established by Sh. Vijay Kumar Gupta in the name of his first wife late Smt. Mridul Gupta. The society was registered on 30.03.99 vide registration no.2019 of 199899 in the office of the Assistant Registrar of Firms, Societies and Chits Bareily Region at Bareily. All the office bearers of the society were either relatives or friends of Sh. Vijay Kumar Gupta or his employees who neither had any contribution in the field of education nor were aware about the activities of the society . Sh. Vijay Kumar Gupta , being the Manager , was the Chief Administrative Officer of the society and he was the controlling all the activities of the society.
1.4 Investigation further revealed that just after 13 days of its registration on 30.03.99, the proposal from Sh. Vijay Kumar Gupta , Manager of the Society was received in the office of MAEF on 12.04.99 seeking financial assistance of Rs.42 lakhs 4 for construction of Girls Inter College building at Bisalpur, Pilibhit . In this proposal, it was falsely mentioned that society was running Alp Sankhyak Mirdul Girls Inter college for the past three years having 179 students, comprising of 116 boys and 63 girls (co education).In support of the same false and fabricated lists of teaching staff and students, details of fees collected from the students, pramanpatra issued by one Sujat Ali, Head Master, statement of income/ expenditure and statement of affairs (balance sheet) prepared by Sh. Sharad Kumar Mishra, Chartered Accountant (all got prepared by Sh. Vijay Kumar gupta with the help of his employee Sh. Krishan Chand Mehrotra), were also enclosed to the said proposal. The necessary details of the students, teachers and the Head Master were arranged by Sh. Ajay Bhardwaj , who was working as officer on special duty to Smt. Menka Gandhi. It is submitted that 3.04 bigha (1949 sq mtr.) of land stated to be available for the school was actually in the personal name of Sh. Vijay Kumar Gupta.
1.5 Investigation further revealed that Sh. Mujeeb Ahmad Hashmi, Stenographer, MAEF pointed out deficiencies in the proposals on 14.5.99 but overlooking the deficiencies, on request of Sh. Ajay Bhardwaj , OSD to MOS (SJE) , Dr. F.U Siddiqui , Secretary of MAEF forwarded the proposal to Sh. Manoj Kumar Singh, District Magistrate , Pillibhit for inspection vide his hand written letter bearing no.1(1)/99 MAEF dated 25.6.1999. Dr. F.U Siddiqui was fully aware of the fact that Society did not have land in its name as on 14.5.99 itself and he instructed the Society to get the land 5 registered in its name.
1.6 Investigation further disclosed that Sh. Tara Chand Pandey , the then District Minorities Welfare Officer, Pillibhit carried out inspection on 13.7.99 and on 05.8.99 submitted his inspection report to Sh. Manoj Kumar singh. In his note Sh. Tara Chand Pandey had not recommended the case of Alp Sankhayak Mirdul Girls Inter college Shiksha Samiti, Bisalpur for sanction of grant of aid on the grounds that the school did not exist and that the details furnished in the application were found false. 1.7 Investigation further revealed that Manoj Kumar Singh did not pass any order/ remarks on the report of Sh. Tara Chand Pandey and instead of forwarding the factual report to MAEF , Sh. Manoj Kumar Singh endorsed the file to Sh. Vijay Kumar Tripathi, the then Chief Development Officer, Pillibhit.
1.8 On 25.8.99 Sh. Vijay Kumar Tripathi without carrying out any physical inspection made notings that "Neither any studies nor teaching was taking place under the Society. The Society is simply registered. The Society has requested for grant for construction of school building. The Society has got its own land.Therefore, recommendation can be made to release grant for construction of building." Sh. Vijay Kumar Tripathi gave false report as there was no land available in the name of society as on the date of his note. The land on which construction was proposed actually stood in the individual name of Sh. Vijay Kumar Gupta and his son Sh. Saurabh Kumar which was transferred to the Society on 27.11.99.
61.9 It is further revealed that Sh. Tara Chand Pandey got back the file on 25.8.99 and due to pressure tactics of both Sh. Manoj Kumar Singh and Sh. Vijay Kumar Tripathi , Sh. Tara Chand Pandey submitted his revised inspection report of the same date (13.7.99) on 25.08.99 itself recommending that "Society is registered as per the Society Act. Land is available with the Society. For construction of building , grant can be given.'' and also put fair reply letter as amended by Sh. Vijay Kumar Tirpathi for sending to MAEF, New Delhi. However, Sh. Tara Chand Pandey took care not to commit that the society had got its own land in the revised inspection report. 1.10 Investigation revealed that on 06.9.99 , MAEF received the letter no.1208 dated 28.8.99 of the DM, Pillibhit alongwith the inspection report. At that point of time, Dr. F.U Siddiqui was fully aware that the Society was not eligible to get the grantinaid from MAEF and Society had submitted false and fabricated documents to fulfill the eligibility conditions. Dr. F.U. Siddiqui ordered for placing the report before the Governing Body for its consideration by making notings in the file as "Place before next General Body Meeting". Case of Society was put in 30th Governing Body Meeting of MAEF held on 22.10.99 chaired by Smt. Menka Gandhi, the then Hon'ble Minister of State for Social Justice and Empowerment , Govt of India and the then Exofficio President of MAEF and was attended by other members viz. Dr. Mumtaz Ahmed Khan, the then Executive Vide President, Sh. Zafar Saifullah, the then Treasurer Dr. M.R. Haque ,Member and Dr. F.U Siddiqui , the then Secretary of MAEF. Request of Society 7 was considered and for a grant of Rs.15 lakhs was sanctioned for construction of Girls Inter College building.
1.11 Investigation revealed that Dr. F.U Siddiqui sent the sanction letter bearing no.1(12)(1)/99MAEF dated 09.11.99 to Sh. Vijay Kumar Gupta, Manger of the Society. MAEF released Rs.7,50,000/to the society as the first installment amount vide cheque no.647126 dated 30.12.99. After getting the utilization certificate for the said amount from Sh.Vijay Kumar Gupta on 15.5.2000, MAEF requested District Magistrate, Pilibhit to get the construction work inspected through some trustworthy Engineer and to send the inspection report to Foundation.
1.12 Investigation revealed that on 26.5.2000, the Foundation received a letter no.397/S.T2000 dated 26.05.2000 from Sh. Manoj Kumar Singh, District Magistrate, Pilibhit alongwith inspection report of Sh. A.H Khan , JE (Res.), Bisalpur, Pilibhit with recommendation for release of 2nd installment . Thereafter, a cheque bearing no.585381 dated 08.6.2000 for Rs.6 lakhs was issued to society towards release of second installment. On 15.3.2001 Sh. Vijay Kumar , Manager of the Society submitted utilization certificate for Rs.15,92,316/ and requested for the release of third installment of Rs.1.5 lakhs. Thereafter, a letter bearing no.1(12)(1)/99MAEF dated 21.6.2001 was sent by Dr F.U. Siddiqui to Sh. Sudhir Bobde, D.M, Pillibhit , UP requesting to inspect the construction work done by the Society against the release of second installment on behalf of Foundation. When there was no response even after nine months, Dr. F.U 8 Siddiqui sent a reminder letter bearing no.1(12)(1)/99MAEF dated 15.01.2002 to Sh. Rajiv Aggarwal, the then DM, Pillibhit for sending the inspection report. The DM nominated EE (RES), Pilibhit for carrying out the necessary inspection. A letter bearing no.194 dated 21.02.2002 was also sent by the then CDO Sh. Vijay Kumar Tripathi to EE (RES), Pilibhit for needful action which was followed by reminder vide letter no.234 dated 16.3.2002 issued by the then DMWO Sh. Syed Ahsan Amzad Zaidi. As inspection report was not received from the DM, Pilibhit , the 3 rd and final installment amount of Rs.1.5 lakhs was not released.
1.13 Investigation further revealed that school built with the amount of Rs.13.5 lakhs received from MAEF was named as "Smt. Menka Gandhi Kanya Inter College"
and an application was submitted to the Intermediate Education Board, Bareily through the District Inspector of Schools , Pillibhit seeking recognition for running 11 th and 12th classes. However, the recognition committee refused to give recognition to Smt. Menka Gandhi Kanya inter college , Bisalpur. Thereafter, G.O dated 04.9.2001 of the Special Secretary , Education, Govt. of UP was received by the intermediate Education Board, Bareily whereby the Governer had accorded recognition to Smt. Menka Gandhi Kanya Inter college, Bisalpur for running High School for 9th and 10th classes for 2003 onwards.
2. As per chargesheet, sanction was not granted for prosecution of Sh. Manoj Kumar Singh and Sh. Vijay Kumar Tripathi. It is submitted that (A1) Dr. F.U 9 Siddiqui had already left the job with MAEF, therefore no sanction is required for prosecution against him. It is further submitted that no sufficient evidence was found against Smt. Menka Gandhi for prosecution. Sh. Tara Chand Pandey was granted tender of pardon by the Ld. Special Judge for CBI, Patiala House Courts, New Delhi.
3. Chargesheet was filed against Dr. F.U Siddiqui (A1), Sh. Vijay Kumar Gupta (A2), Sh. Ajay Bhardwaj (A3), Sh. Krishna Chand Mehrotra (A4) and Sh. Sharad Kumar Mishra (A5) for the offence punishable u/s 120B r.w. Section 420,468 and 471 IPC and section 13(2) r.w. Section 13(1)(d) of the Prevention of Corruption Act, 1988. Cognizance of the offence was taken. Copies were supplied to accused persons as required u/s 207 Cr.P.C
4. I have heard the ld. PP for CBI and ld. Defence counsels for accused persons. I have carefully gone through the report u/s 173 Cr.PC., documents and the statements of witnesses recorded during investigation. I have considered the respective submissions advanced by Ld.Sr.PP and defence counsels.
5. Ld. Sr.PP submitted that there is sufficient material on record to show involvement of all the accused persons in the criminal conspiracy and commission of offence. Therefore, ld. PP requested for framing of charge.
6. It was submitted by Ld. Counsel for A1 Dr. Faheem Usman Siddiqui that accused is not covered in the definition of "public servant"; that prima facie there is no evidence on record to show that he had concealed anything from the General Body 10 Chaired by Smt. Menka Gandhi, the then Hon'ble Minister of the State for Social Justice and Environment, Government of India. Minutes of meeting dated 22.10.99 makes it clear that sanction of Rs.15 lacs was granted by governing body after consideration of the material. There is no evidence to show that governing body was mis lead in any manner by the accused F.U Siddiqui. On the contrary, proceedings dated 22.10.99 reflects that complete file was before the governing body and "three years condition"
was specifically relaxed by the decision of the governing body. Ld. Defence counsel contended that at the stage of charge, court can weigh and shift the evidence for limited purpose to assess, whether there is any prima facie case. If two views are possible, the benefit may be given to the accused and he may be discharged.
It was argued by Ld. Defence counsel for A1 that he does not fall within the definition of public servant as defined u/s (2) (C) of P. C Act, 1988.
Section (2) (C)(XII) and explanation no.1 and 2 provides that:
"Any person who is an office bearer or an employee of an educational, scientific , social , cultural or other institution, in whatever manner established, receiving or having received any financial assistance from the Central Government or any State Government , or local or other public authority.
Explanation 1 Persons falling under any of the above sub clauses are public servants , whether appointed by the Government or not.
Explanation 2 Wherever the words "public 11 servant" occur, they shall be understood of every person who is in actual possession of the situation of a public servant , whatever legal defect there may be in his right to hold that situation."
The word "institution" used in sub clause (XII) is used in relation of educations i.e scientific, social , cultural or other institutions. Word "institution" has a wide meaning which include institution of all nature, like registered society , un registered society etc. In view of the fact that MAEF was a institution duly funded by government of India and A1 being its Secretary was permanent employee of the said institution. In my view, he is squarely covered within the definition of sub clause "XII" as public servant.
6.1 Written arguments were filed on behalf of accused no.3 Ajay Bhardwaj wherein he stated that no specific allegation was found against him. It is submitted that there is neither oral evidence nor any document on record against him. As per chargesheet, on oral directions of Sh. Ajay Bhardwaj details were sent to him through Sh. Vijay Kumar Gupta and it is not mandatory for someone to accept oral directions of any one.
6.2 Witness Sh. Sabir Ali stated in his statement that "on oral directions of Sh. 12 Ajay Bhardwaj , the then OSD to Smt. Menka Gandhi, these details were sent to him through Sh. Vijay Kumar Gupta". Witness Dr. Murtaza Ali also stated on same lines. Smt. Menka Ganhi stated in her statement that Sh. Ajay Bhardwaj was attached to her and was looking after her parliamentary constituency.
6.3 Written submission also filed on behalf of Sharad Kumar Mishra (A5). It is submitted that there is no evidence against accused no.5 to prove that he directly or indirectly got any wrongful gain for himself and for his firm and therefore he is not liable to be prosecuted u/s 420 IPC. It is further submitted that there is no evidence against A5 that he forged any document and/or valuable security to attract offence u/s 468 IPC. It is further submitted that A5 being professional Chartered Accountant prepared statement of income and expenditure and statement of affairs (balance sheet) on the basis of information and books of accounts produced before him. It is submitted that it is evident from balance sheet wherein it is mentioned that "checked as per books of accounts prepared and produced before us and found in order". It was argued that A5 cannot be charged for any offence.
7. Main case of the prosecution against accused no.1 Faheem Usman Siddiqui is based on the allegations that A1 was the secretary of MAEF at relevant period; he was fully aware that Alp Sankhyak Mridul Girls Inter College Shiksha Samiti (hereinafter referred as "Alp Sankhyak Samiti") was not eligible for grant; A1 was aware that false and fabricated documents were submitted to fulfill the eligibility conditions; on 13 the request of Sh. Ajay Bhardwaj (A3) , F.U Siddiqui (A1) forwarded the proposal received from Sh. Vijay Kumar (A2); On receipt of report from DM, Pilibheet , F.U Siddiqui (A1) gave directions to place inspection report before the governing body of MAEF to show undue favour to the society; on directions of A1, deficiencies/short comings in the proposal was not pointed out in the agenda; A1 mis led the governing body of MAEF; and he issued the sanctioned grant of Rs.15 lacs to Alp Sankhyak Samiti by relaxing condition of three years past registration. In order to prove its allegations prosecution mainly relied on document i.e (i) D2 , file relating to MAEF pertaining to Alp Sankhyak Samiit; D3 i.e file relating to governing body meeting; D5 SBI cheque of Rs.7.5 lac paid to Alp Sankhyak Samiti; D6 SBI statement of account to show payment of Rs.7.5 lacs; D8 UCO Bank cheque for Rs.6 lacs paid to Alp Sankhyak Samiti; D9 UCO bank statement of account; D82 file of District Welfare officer, Pilibhit and D108 confessional statement of Sh. T.C Pandey to prove that claim of A2 Vijay Kumar Gupta (in respect of running of school at Bilaspur) was bogus. 7.1 Apart from the above documents LW20 Mujeeb Ahmed Hashmi mainly stated that Alp Shankyak Samiti did not merit grant of sanction and F.U Siddiqui (A1) did not point out short comings and deficiencies in the proposal before the governing body of MAEF.
7.2 LW21Syed Jamal Ali stated about the cheque issued to Alp Shankyak Samiti under the signature of F.U Siddiqui (A1).
147.3 LW22 Nanhakoo Prasad Gupta stated that society was not eligible for grant as per report of DMW.
7.4 LW23 Tara Chand Pandey stated that A2 Vijay Kumar Gupta furnished false details in proposal and enclosures were fake.
7.5 LW27 Zafar Saifulah stated that A1 did not place full facts about the Alp Sankhyak Samiti before governing body.
7.6 LW28 Sri Seraj Mehdi stated that it was the duty of A1 to place full facts before the governing body for consideration of proposal for grant. 7.7 LW31 Shaily Nedungadi and LW32 K.N Pattnaik mainly stated about grant of amounts to Alp Sankhyak Samiti from the bank account of MAEF.
8. After careful perusal of material on record , it is clear that governing body of MAEF was chaired by none else but by the Minister of Government of India. The agenda of relevant meeting is on record. One of the allegation of the prosecution is that in agenda, deficiencies were not pointed out by A1. General agenda is like a list of the work (put up before such bodies) and every detail is not mentioned in the agenda. In the same meeting of governing body, same agenda was placed in respect of other educational institutes and the details were not being given in respect of any other institution which reflects that as a matter of practice, details of deficiencies were not required to be mentioned in agenda. The record clearly reflects that sanction for grant of Rs.15 lacs was granted and three years past experience of the institute was relaxed 15 by governing body. The minutes of meeting clearly indicates that after consideration, governing body relaxed the condition of three years. It was the decision of the governing body which was within the powers of the said Governing body. There is no evidence that any witness was present inside the meeting of the governing body meeting. Therefore, what was discussed inside the governing body meeting can be assessed either from the minutes of the meeting or from the statements persons who were present in the said governing body meeting. None of the witnesses stated that complete file was not put up before the governing body or the matter not discussed. If the statement of witnesses discussed above is analyzed in the context of the case, it appears that the statements are based on the presumption that true facts were not placed by A1 before the governing body. When such matters are considered, there may be minor deficiencies, but the governing body is empowered to take a decision. After careful consideration of material on record, prima facie there is no convincing evidence on record to show that any fact was concealed by A1 from the governing body. In this case (A2) Vijay Kumar, Manager of Alp Sankhyak Samiti and (A4) Krishan Chand Mehrotra has already expired. None of the member of the governing body who were responsible to take decision has been prosecuted by CBI. As per prosecution, the false and fabricated reports were submitted by DM, Pilibhit but he is also not been prosecuted by the CBI. Being the Secretary of MAEF, the duty of A1 was to place the material before the governing body and it was for the governing body to 16 take decision. In my view, it will not be reasonable to accept the arguments of concealment of facts by A1 unless there is some convincing evidence. In my view, there is no such evidence on record to show the concealment of facts from the governing body.
9 The prosecution case revolves around the allegations of criminal conspiracy of A1 with other accused persons. It is admitted case of prosecution that MAEF was a organization for the welfare of educational institutions. There is no evidence to show that any pecuniary benefit was taken by F.U Siddiqui (A1) from anyone. It is admitted case of prosecution that after grant of sanction, ultimately the school building was constructed by Alp Sankhyak Samiti. Therefore, there is no reason to accept that the funds sanctioned to the said Samiti were misused by anyone. After careful consideration, in my opinion, it is not justified to connect A1 to the criminal conspiracy with other accused persons. The allegations of abuse of official position are also not supported from the evidence on record. The minutes of meetings of government body of MAEF indicates that it was conscious and considered decision of the governing body after consideration of material on record. 10 The main case against A3 Ajay Bhardwaj is based on the allegations that he was working as OSD to the Union Minister of State for Social Justice and Empowerment who was also Chairperson of MAEF. As per the allegations, A3 Ajay Bhardwaj arranged to furnish necessary details of students/teachers to A2 Vijay Kumar 17 on the basis of which the details were mentioned by A2 Vijay Kumar to MAEF. Case is based on D2 i.e file relating to Alp Sankhyak Samiti and D82 i.e file of DMW to show that proposal of Samiti was forwarded to DM, Pilibhit by (A1) F.U Siddiqui on the request of (A3) Ajay Bhardwaj. To support allegations against (A3) Ajay Bhardwaj, LW10 Sabir Ali and LW11 Murtaza Ali stated that on directions of A3 they furnished the details of their school staff and these informations were used by (A2) Vijay Kumar Gupta in fabricated and false documents. LW13 Sujat Ali Khan, LW14 Shyam Sunder Sahai and LW15 Smt. Reena Saxena mainly stated that list of teaching staff submitted by Vijay Kumar (A2) with proposal were fake. LW23 T.C Pandey mainly stated that proposal of Alp Sankhyak was forwarded to DM, Pilibhit by A1 at the request of A3 Ajay Kumar Bhardwaj.
It is admitted case of prosecution that A3 Ajay Bhardwaj was working as OSD to the Minister who was Chairperson of MAEF. A3 had no official position to give any oral directions to anyone. Even if, any oral directions were given by him, it was not mandatory for everyone to accept the oral directions. Moreover, even if for the sake of arguments, it is presumed that any oral directions were given by (A3) Ajay Bhardwaj being the OSD of Minister, statement of witnesses does not establish that he gave the directions to submit any forged documents or to conceal any fact . In my opinion, on the basis of evidence on record, case of "grave suspicion" is not made out against him . Prima facie, there is no convincing evidence on record to connect (A3) Ajay Bhardwaj 18 to the criminal conspiracy as alleged by prosecution.
11 Against (A5) Sharad Kumar Mishra , the case of the prosecution is that at the instance of (A2) Vijay Kumar, he knowingly and dishonestly prepared the false and fabricated statement of Income and Expenditure and statement of affairs (balance sheet)which were used alongwith the proposal seeking financial assistance for construction of Alp Sankhyak Mridul Kanya Inter College Shiksha Samiti building. The main allegation is that (A5) Sharad Kumar Mishra facilitated the commission of offence. LW19 Shakeel Ahmed and LW20 Mujeeb Ahmed stated that statement of Income and Expenditure and balance sheet issued by A5 were submitted to MAEF alongwith proposal of A2 Vijay Kumar.
It is admitted case of prosecution that (A5) Sharad Kumar Mishra was working as Chartered Accountant. The contention of A5 is that being a Chartered Accountant, his duty was to prepare the income and expenditure statement of his clients on the basis of documents/information submitted to him and he was not required to personally verify the correctness of the information. Even if the allegations of prosecution are taken as correct, it can only establish that balancesheet etc prepared by A5 were used by A2 Vijay Kumar alongwith proposal. There is no evidence on record to show that A5 was involved in criminal conspiracy or he intentionally or knowingly prepared the false statements. In case any false information /documents were submitted by (A1) Vijay Kumar , only he can be responsible for the same. After 19 weighing and shifting entire evidence on record, in my opinion, prima facie there is no convincing evidence on record against A5 to establish a case of "grave suspicion". 12 In the case of State of M.P Vs. S. B.Johari 2000 Crl. L. J. 944(SC), it was held that:
"At the stage of framing the charge, the Court has to prima facie consider whether there is sufficient ground for proceeding against the accused. The Court is not required to appreciate the evidence and arrive at the conclusion that the materials produced are sufficient or not for conviction the accused. If the Court is satisfied that a prima facie case is made out for proceeding further then a charge has to be framed. The charge can be quashed if the evidence which the prosecutor proposes to adduce to prove the guilt of the accused even if fully accepted before it is challenged by cross examination or rebutted by defence evidence if any, cannot show that accused committed the particular offence. In such case there would be no sufficient ground for proceeding with the trial."
In case of Niranjan Singh Karam Singh Punjab etc. Vs. Jitendra Bhimraj Bijjayya and others etc, the Hon'ble Supreme Court held that:
"At the stage of framing the charge, inquiry must 20 necessarily be limited to deciding if the facts emerging from such materials constitute the offence with which the accused could be charged. The Court may peruse the records for the limited purpose, but it is not required to marshal it with a view to decide the reliability thereof"
In the case of "State of Bihar Vs. Ramesh Singh", AIR 1977 SC 2018, Hon'ble Supreme Court observed that...
"It seems well settled that at the Sections 227228 stage the Court is required to evaluate the material and documents on record with a view to finding out of the facts emerging there from taken at their face value disclose the existence of all the ingredients constituting the alleged offence. The Court may for this limited purpose shift the evidence as it cannot be expected even at the initial stage to accept all the prosecution states as gospel truth even if it is opposed to common sense or the broad probabilities of the case."
The Hon'ble Supreme Court in Dilawar Balu Kurane Vs. State of Maharashtra (2002) 2 SCC 135 held as under:
"...In exercising powers under Section 227 of the Code of Criminal Procedure, the settled position of law is that the Judge while considering the question of framing the charges under the said section has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case 21 against the accused has been made out...
...by and large if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully justified to discharge the accused, and in exercising jurisdiction under Section 227 of the Code of Criminal Procedure, the Judge cannot act merely as a post office or a mouthpiece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the court but should not make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial."
In the case of Union of India Vs. Prafulla Kumar Samal & Anr., AIR 1979 SC 366, while dealing with the question of charge, it was observed by the Hon'ble Supreme Court, in paragraph 10, as under: "Thus, on a consideration of the authorities mentioned above, the following principles emerge:
(1) That the Judge while considering the question of framing the charges under Section 227 of the Code has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out:22
(2) Where the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained the court will be fully justified in framing a charge and proceedings with the trial.
(3) The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. By and large however if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but no grave suspicion against the accused, he will be fully within his right to discharge the accused.
(4) That in exercising his jurisdiction under Section 227 of the Code the Judge which under the present Code is a senior and experienced Judge cannot act merely as a Post Office or a mouthpiece of the prosecution, but has to consider the broad possibilities of the case, the total effect of the evidence and the documents produced before the court, and the basic infirmities appearing in the case and so on. This however does not mean that the Judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial".
13. In the above mentioned cases, it has been clearly held by Hon'ble Courts that at the stage of charge, Court has to consider the broader probabilities of the case 23 and is not required to go into the roving inquiry. At this stage, Court is not required to assess the inherent strengths or weaknesses of the evidence. If from the broader probabilities of the material on record, there is "grave suspicion" against the accused, charge may be framed. But, if there is only a case of "suspicion", court is justified to discharge the accused.
14 (A2) Vijay Kumar and (A4) Krishan Chand Mehrotra have already expired during the trial. Therefore, I do not find it proper to discuss the allegations and evidence against them in detail.
15 Apart from above findings, few admitted facts of the prosecution case are relevant to consider:
(i) It is admitted case of prosecution that after grant of sanction, the school building was constructed by Alp Sankhyak Samiti.
(ii) It is not the case of prosecution that funds sanctioned for the construction of school were mis used by anyone for the personal gain.
(iii) It is also admitted case of prosecution that ultimately on the directions of MAEF through A1 F.U Siddiqui, the land was transferred in the name of Alp Sankhyak Samiti where the school was constructed.
(iv) No substantial evidence was found by the CBI against Chairperson or the members of the governing body who took the decision to grant sanction to Alp Sankhyak Samiti.
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(v) No sanction for prosecution was granted against Sh. Manoj Kumar Singh, DM, Pilibhit.
16 In view of above I am convinced that criminal intention cannot inferred against (A1) F.U Siddiqui, (A3) Ajay Bhardwaj and (A5) Sharad Kumar Mishra. 17 Keeping in view the entire facts and circumstances , in my opinion, prima facie there is no sufficient material on record to establish essential ingredient of the offence and to call it a case of "grave suspicion" against A1 F.U Siddiqui, A3 Ajay Bhardwaj and A5 Shard Kumar Mishra. A2 Vijay Kumar and A4 Krishan Chand Mehrotra have already expired. Therefore, A1 F.U Siddiqui , A3 Ajay Bhardwaj and A5 Shard Kumar Mishra are discharged. Their personal bond and surety bond stands cancelled. However, they are directed to furnish personal bond of Rs.20,000/with one surety of the like amount u/s 437A Cr.PC. File be consigned to R.R. Order accordingly.
Announced in the open court (Sanjeev Jain)
on this 19 May, 2014
th
Special Judge (PC Act), CBI03
South District, Saket Courts
New Delhi