Delhi District Court
State Through Cbi V. Bibianus Toppo & Ors vs Dr. Sukumar on 1 December, 2015
State through CBI v. Bibianus Toppo & Ors.
IN THE COURT OF SH. PAWAN KUMAR JAIN,
SPECIAL JUDGE, CBI-01, NORTH-WEST DISTRICT,
ROHINI COURTS COMPLEX, DELHI
IN THE MATTER OF:
CBI No. : 09/2012
ID No. : 02404R0011672008
FIR No. : RC-2(A)/2005/SCU-V/CBI/SCR-II,
New Delhi
U/Sec: 120B r/w 419/420/467/468/471/474 IPC
13(2) r/w 13(1)(d) of PC Act 1988
12(1) (b) of Passport Act 1967 and
substantive offences thereto
Police Station: CBI/SCU-V/SCR-II/New Delhi
STATE
THROUGH
CENTRAL BUREAU OF INVESTIGATION,
NEW DELHI
VERUS
CBI No. 09/12 Page 1 of 130
State through CBI v. Bibianus Toppo & Ors.
1. Bibianus Toppo
S/o Late Joseph Toppo,
R/o 14 G, Sector 4,
DIZ Area, Raja Bazar,
Gole Market, New Delhi-01.
..........Accused No. 1
2. Harbhajan Yadav
S/o Late Sultan Singh Yadav,
R/o H. No. 949/1, Gali No. 4,
Ashok Vihar, Gurgaon,
Haryana.
..........Accused No. 2
3. Ram Chander
S/o Sh. Maman Ram,
R/o J-624, Sardar Colony,
Sector 16, Rohini, Delhi-85
..........Accused No. 3
4. Sushma Bajaj
W/o Sh. Anil Bajaj,
R/o 1851, Outram Line,
Kingsway Camp,
New Delhi-09
..........Accused No. 4
5. G.D. Joshi
S/o Late K. D. Joshi,
R/o K-251, Gali No. 6B/5 ,
Mahipal Pur Extn. New Delhi-37
..........Accused No. 5
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State through CBI v. Bibianus Toppo & Ors.
6. R.S. Rawat
S/o Late Bachan Singh Rawat,
R/o X-258, Sarojni Nagar,
New Delhi-23.
(Proceedings abated on account
of death vide order dated 16.10.2014)
..........Accused No. 6
7. Badloo Khan
S/o Late Abdulla
R/o Vill. Maina Mauj Pur, PO & PS
Khurja Jn.,
Distt. Bulandsahar, UP.
..........Accused No. 7
8. Anil Dhawan
S/o Late Madan Lal Dhawan,
R/o 254, DDA Flats, 1st Floor,
New Ranjit Nagar,
New Delhi-8.
..........Accused No. 8
Date of Institution : 26.03.2012
Date of judgement reserved on : 20.10.2015
Date of pronouncement of judgement : 26.11.2015
Appearance : Ms. Shashi Vishwakarma, learned Public
Prosecutor for CBI
Sh. R. Ramachandran, Advocate, counsel for
Bibianus Toppo (A1) and Badloo Khan (A7)
Dr. Anil Gupta, Advocate, counsel for Harbhajan
Yadav (A2) and Sushma Bajaj (A4)
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State through CBI v. Bibianus Toppo & Ors.
Sh. Sukhvinder Singh, Advocate, counsel for
Ram Chander (A3)
Sh. Mrityunjay, Advocate, counsel for G.D. Joshi
(A5)
Sh. Ashwani Verma, Advocate, counsel for
accused Anil Dhawan (A8)
J U D G E M E N T :-
1. Facts in brief as unfolded from the charge-sheet are as under:-
(i) It was alleged that an information was received in the office of CBI that during the period 2000-2004 S/Sh. Om Parkash, PRO;
Bibianus Toppo, Superintendent (hereinafter, "A1"); P. K. Kapoor, Superintendent (since deceased); Purshottam Lal, UDC; Harbhajan Yadav, UDC ("A2") all employees and working in Regional Passport Office (in short RPO), New Delhi had entered into a criminal conspiracy with private persons namely Anil Dhawan ("A8"), Naieem Safi and others to cheat the RPO, New Delhi for obtaining various passports in the form of additional passport booklets by using similar personal particulars with different photographs and signatures of the passport holders.
(ii) It was alleged that in pursuance of the above criminal conspiracy, various passports in the form of additional passport booklets had been issued in the name of various persons such as Mr. Rajender Kumar Kapoor s/o Mr. Mehar Chand Kapoor, Mr. Kamal s/o Mr. Madan Lal, Ms. Rekha Khanna d/o Late Mr. Raj Kumar Khanna, Ms. CBI No. 09/12 Page 4 of 130 State through CBI v. Bibianus Toppo & Ors.
Reena d/o Ms. Janaki Dass Khanna and Sunil Kumar Jolly s/o Mr. Agya Ram Jolly. It was alleged that in the present case, three additional passport booklets had been issued in the name of Ms. Rekha Khanna d/o Late Sh. Raj Kumar Khanna R/o F-163, New Usmanpur, Delhi-53.
(iii) It was alleged that one passport application in the name of Ms. Rekha Khanna had been submitted in RPO, New Delhi. Upon which passport file No. A-14763 dated April 26, 1999 was processed and thereafter a passport bearing No. A-7621069 dated June 15, 1999 was issued.
(iv) It was alleged that during investigation original passport file could not be collected, but original passport was recovered during the investigation of case No. RC.3(A)/04-SCR-II/N.Delhi. It was alleged that the identity of the person whose photograph was affixed on the said passport could not be established. However, it was established that the said person had never resided at the address mentioned in the passport application form.
(v) It was alleged that the verification of identity, antecedents, characters and residence was conducted by ASI Badloo Khan (A7) who had submitted a false verification report without verifying the identity, antecedents, character and address of the applicant. It was further alleged that on the basis of said false verification report, the above passport was issued in the name of Ms. Rekha Khanna.
(vi) It was alleged that during investigation no person in the name of Ms. Rekha Khanna was found at the address mentioned in the CBI No. 09/12 Page 5 of 130 State through CBI v. Bibianus Toppo & Ors.
passport application form. It was further revealed that the ration card annexed along with passport application form was found fictitious as the same was not issued from the office of Food and Supply. However, it was revealed that Ms. Rekha Khanna had gone abroad on the basis of said passport.
(vii) It was alleged that ASI Badloo Khan had facilitated the issuance of said original additional passport in the name of Ms. Rekha Khanna by submitting the false police verification report with some ulterior motive. It was further alleged that on the basis of said passport, three separate applications were moved on different dates i.e. September 2, 2003, January 28, 2004 ad March 24, 2004 for the the issuance of passport in the form of additional passport booklets with similar personal particulars but with different photograph and signature on each occasion in the name of Ms. Rekha Khanna.
(viii) It was further alleged that on the basis of said applications, additional passport booklets bearing No. E-6331150 dated September 4, 2009, E7495556 dated January 29, 2004 and E-8582541 dated March 26, 2004 were issued.
(ix) It was further alleged that all the said applications were dealt with and processed by accused Harbhajan Yadav (A2). In respect of first additional passport booklet bearing No. E6331150, Mr. P.K. Kapoor, Superintendent (since deceased) passed the grant order and he also signed the same whereas in respect of remaining two passports, grant order was passed by Bibianus Toppo (A1). He also signed the said passports.
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(x) It was alleged that real identity of the person who actually travelled in the name of Ms. Rekha Khanna on the basis of third additional passport bearing No. E-8582541 could not be established. Other two passports were not used. It was alleged that P.K.Kapoor could not be examined as he had expired on September 11, 2004.
(xi) It was further alleged that Ms. Sushma Bajaj (A4) and Ram Chander (A3) were posted as Assistant and LDC respectively in HIT Section of RPO, New Delhi. It was further alleged that A4 had cleared the HIT in respect of first additional passport booklet in file No. T-10827 whereas A3 had cleared the HIT in respect of other two passports files. It was alleged that both the officials had cleared the HIT without pointing out the issuance of earlier passports in the form of additional passport booklets in the same name. It was further alleged that in HIT Section there was a facility in their computers to check the photographs and signatures of all the earlier passport holders and in case of dissimilarities, the said officials were required to point out the same. But in the instant case, both the officials did not point out any dissimilarity and the fact that additional passport booklets were issued in the same name previously. It was alleged that the said officials had not carried out the requisite exercise intentionally and deliberately and thereby additional passport booklets were issued in favour of fictitious persons.
(xii) It was alleged that all the passport application forms were filled up by the accused Anil Dhawan. He had also signed in the name of Ms. Rekha Khanna. It was further alleged that the said allegations have been established by the handwriting Expert in his report. It was CBI No. 09/12 Page 7 of 130 State through CBI v. Bibianus Toppo & Ors.
further alleged that accused Anil Dhawan also took the delivery of second and third additional passport booklets from accused G.D.Joshi (A6) and R.S. Rawat (A7) despite the fact that he was not authorised by the applicants. It was alleged that they delivered the said additional passport booklets to A8 as they were members of said conspiracy. However, it was alleged that during investigation it could not be established who had taken the delivery of first additional passport booklet from RPO, New Delhi.
(xiii) It was further alleged that A1 to A7 had entered into a criminal conspiracy, the object of which was to get issued passport and additional passport booklets fraudulently from RPO New Delhi. In pursuance of the said conspiracy, Passport officials i.e. A1 to A6 had abused their official position as public servants and in conspiracy with Anil Dhawan, they did not ask the applicants to produce their previous passport booklets for observation and cancellation and every time, original passport bearing No. A-7621069 dated June 15, 1999 was shown to have been cancelled. It was alleged that the original passport could not be cancelled again and again and it could not be the basis for issuance of several passports in the name of same persons.
(xiv) After completing investigation, CBI filed the chargesheet against accused persons for the offences punishable under Section 120B read with Section 419/420/467/468/471/474 Indian Penal Code (in short IPC) and under Section 13(2) read with 13(1)(d) of PC Act, 1988 and 12 (1)(b) of PP Act, 1967 and substantive offences thereto on the part of accused persons. Since A1 to A6 were working in RPO at the relevant time, requisite sanction under Section 19 of Prevention of CBI No. 09/12 Page 8 of 130 State through CBI v. Bibianus Toppo & Ors.
Corruption Act 1988 (in short PC Act) was obtained to prosecute them. CBI also obtained sanction under Section 15 of of Passport Act, 1967. Separate sanction under Section 19 of PC Act was also obtained qua A7.
2. Vide order dated February 20, 2010, it was held that prima- facie a case is made out against A1 to A8 for the offences punishable under Section 419/420/468/471 IPC and under Section 13(2) read with 13(1)(d) of PC Act, 1988 and 12 (1)(b) of PP Act, 1967. It was further held that prima-facie a case is also made out against A1 to A7 for the offence punishable under Section 13(2) read with Section 13(1)(d) of PC Act. It was further held that prima-facie a case is also made out against A8 for the offence punishable under Section 420/468/471 IPC and Section 12(1)(b) of PP Act 1967.
3. Accordingly on March 5, 2010 formal charges were framed against all the accused persons to which they pleaded not guilty and claimed trial.
4. In order to bring home the guilt of accused persons, prosecution has examined as many as 24 witnesses. For the purpose of discussion and convenience, all witnesses have been classified in the following categories:-
Witnesses relating to accused Anil Dhawan (A8):
PW1 Gurinder Singh Walia, employer of A8. CBI No. 09/12 Page 9 of 130 State through CBI v. Bibianus Toppo & Ors. PW2 Pradeep Kumar Chawla, employer of A8 PW11 Dr. B.A. Vaid, Handwriting Expert, GEQD, CFSL, Shimla. Officials of RPO Office, New Delhi: PW3 Ms. Suman Kumar Sehgal PW7 Mr. Tara Dutt Joshi PW8 Mr. M.S.Thapar PW9 Mr. Puran Chand PW10 Mr. Surender Prasad Kothari PW12 Mr. Anil Kumar Sharma PW13 Mr. Raj Singh PW14 Mr. Jeevan Singh PW18 Mr. Ajai Gautam PW19 Mr. Ramesh Chander PW20 Mr. I.M.Sabharwal Witness qua sanction: PW21 Sh. R. Swaminathan, the then Joint Secretary CPV (Councillor PP visa and Chief PP Officer, Ministry of External Affairs, New Delhi) CBI No. 09/12 Page 10 of 130 State through CBI v. Bibianus Toppo & Ors. PW22 Mr. Ajay Kumar, the then DCP Control Room, Delhi Police
Witnesses relating to accused Badloo Khan (A7):-
PW4 Sh. Sumer Singh, ACP Public
Grievances East District, Delhi Police
PW5 Sh. Sanjay Kr. Arora, Supdt. in the office of
Food & Supply Circle -50 Gonda
PW6 Sh. Udai Ram, resident of Usman Pur
PW15 Sh. Vikram Singh, resident of Usman Pur
PW16 Sh. Suresh Chand, resident of Usmanpur
PW17 Sh. Dinesh Kumar, resident of Usmanpur
CBI Officials:
PW23 Sh. R.K.Aggarwal, the then DSP
PW24 A.K.Tripati, investigating officer
5. On culmination of prosecution evidence, accused persons were examined under Section 313 Cr.P.C wherein they denied all incriminating evidence led by prosecution and submitted that they have been falsely implicated in this case. A2, A5 and A8 refused to lead any evidence in their defence. However, A1, A3, A4 and A7 submitted that CBI No. 09/12 Page 11 of 130 State through CBI v. Bibianus Toppo & Ors.
they would lead evidence in their defence.
(i). A1 took the plea that at the relevant time, no facility was provided to PIAs to see photographs, signatures and old references of the applicants. Even previous files were not used to be sent to PIAs for perusal. It was further submitted that there were instructions from the Ministry of External Affairs to issue additional passport booklets within 3-5 days and several instructions were also issued to liberalize the procedure. It was further submitted that the passport could not be issued without HIT clearance and since in the present matter HIT was cleared, passports were issued. It was further submitted that at the relevant time, he was also looking after miscellaneous and additional passport service work and he used to deal with around 300 files in a day. It was submitted that due to heavy work load, it was not possible for A1 to go through the files thoroughly, thus there was possibility of oversightness. It was submitted that though there was similar lapse on the part of other PIAs in other matters, but no action was taken against them.
(ii). A2 Harbhajan Yadav took the plea that at the relevant time no facility was provided to him to see photographs/signatures and old references of the applicants. It was further submitted that counter clerk had no occasion to see previous files and even no facility was provided to the counter-clerk to check the authenticity of documents produced by the applicants. It was further submitted that all the allegations are false and CBI had falsely implicated him in this case.
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(iii). Similarly, A3 also denied each and every incriminating evidence led by prosecution and submitted that entry of RPO officials as well as public was not restricted in HIT section, thus there was every possibility that someone might have come to know his P number and password and thereafter, the said person had misused the same. It was further submitted that though he was on leave during March 29, 2004 to April 2, 2004, HIT clearance was shown to have been given by him in CC No. 7/12. It was further submitted that no facility was provided in his computer to compare photographs and signatures of previous passport holders.
(iv). Similarly, A4 Sushma Bajaj denied each and every evidence led by prosecution and further submitted that at the relevant time, no facility was provided in her computer to see photographs and signatures of the previous passport holders. It was further submitted that she had made several complaints about the misuse of her P number and password to her senior officers but no action was taken on her complaint.
(v). A5 G.D.Joshi also denied all incriminating evidence led by prosecution and submitted that he was posted to do registration work. No witness has deposed against him that he had delivered the passport to anyone in the present case.
(vi). A7 Badloo Khan also denied each and every incriminating evidence led by prosecution and submitted that he had submitted the correct police verification report on the basis of facts CBI No. 09/12 Page 13 of 130 State through CBI v. Bibianus Toppo & Ors.
disclosed before him by the applicant. It was further submitted that during his tenure office had awarded various certificates for his good work and good conduct.
(vii). A8 Anil Dhawan also denied all incriminating evidence led by prosecution and submitted that he has been falsely implicated in this case in order to save real culprit i.e. PW1 Gurvinder Singh Walia.
(viii). In order to prove their innocence A1 and A3 examined Mr. Sonu Bhardwaj, Ahlmad of this Court as DW1. Besides that A1 also examined Sunil, Record clerk of Rohini Court complex as DW2.
(ix). A7 examined five witnesses namely DW3 Bhim Singh Sherawat, DW4 Narender Kumar, Head Clerk in the Office of Election Commissioner, DW5 Rajender and DW6 Subhash Chand, both residents of Usman Pur and DW7 Ajit Singh, Public Relation Inspector, Post Office, Seelampur.
(x). Though during her statement under Section 313 Cr.P.C, A4 submitted that she would adduce defence evidence, but she failed to do so and closed her defence evidence. In this regard, her statement was recorded on April 16, 2015.
6. I have heard rival submissions advanced by counsel for the parties and perused the record carefully.
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Contentions relating to accused Badloo Khan (A7):-
7. Learned Public Prosecutor contended that A7 was working in the Special Branch of Delhi Police as ASI and as per the testimony of PW4 Sumer Singh, application of Ms. Rekha Khanna was assigned to him to verify the antecedents, character and residence of applicant Rekha Khanna. It was vigorously argued that A7 in his report testified that Ms. Rekha Khanna was residing at F-163 New Usman Pur, Seelam Pur, Delhi whereas she was not residing at the given address It was thus urged that A7 had submitted a false report in favour of Ms. Rekha Khanna knowingly well that she was not residing at the given address. It was argued that by submitting a false report, A7 facilitated in the issuance of passport in favour of Ms. Rekha Khanna. It was further contended that infact the address i.e. F-163, New Usman Pur, Seelampur, Delhi is not in existence and this fact has been proved from the testimony of PW6, PW15, PW16 and PW17 as they categorically deposed that in F Block there are only 118 houses. It was contended that since there are only 118 houses in F Block, the address mentioned by the applicant is fictitious one. But despite that A7 declared that applicant Ms. Rekha Khanna was residing at the given address.
(i) It was further contended that PW17 is the owner of Fair Price Shop in the locality of New Usman Pur and he testified that no such address is in existence in the said area. It was further contended that during trial A7 had not denied his report, thus it was contended that it has been established beyond doubt that A7 had submitted a false report as he was in conspiracy with the applicant and other accused persons.
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8. Mr. R. Ramachandran, Advocate appearing for A7 refuted the said contentions by arguing sagaciously that prosecution has set up a case against A7 that since only 118 houses are situated in F Block at New Usman Pur, Seelam Pur, Delhi, address i.e. F-163, New Usman Pur, Seelam Pur, Delhi was not in existence, thus A7 had submitted a false report knowingly and deliberately in favour of Ms. Rekha Sharma. It was contended that though prosecution has placed reliance on the deposition of PW17 but in his cross-examination, he deposed that he is not sure how many houses are located in F Block. It was urged that this shows that PW17 is not sure whether F-163 is in existence or not. It was further contended that though PW6, PW15 and PW16 deposed that F-163 is not in existence at Usmanpur, Seelampur, Delhi but no reliance can be placed on their deposition as there are overwhelming evidence on record to prove the fact that there were more than 118 houses in F block. It was further submitted that this fact has been proved by A7 by examining DW5, DW6 and DW7.
(i) It was further astutely contended that prosecution case is that the address i.e. F-163, New Usmanpur, Seelampur, Delhi was not in existence. But surprisingly it is also admitted case of CBI that the passport in question was delivered to Ms. Rekha Khanna through post. It was contended that if no such address was in existence, it was not cleared by the prosecution how the said passport had been delivered to the applicant through post. It was contended that delivery of passport shows that the address was in existence.
(ii) It was contended that infact no investigation was conducted by the investigating officer to ascertain whether address was CBI No. 09/12 Page 16 of 130 State through CBI v. Bibianus Toppo & Ors.
in existence or not. He never tried to visit at the said address. It was further argued that CBI had set up a case that Ms. Rekha Khanna had visited abroad on the basis of passport in question, but no effort was made by the CBI to ascertain what address she had disclosed at the time of obtaining visa.
(iii) It was sagaciously argued that no doubt it was the duty of A7 to verify whether applicant Ms. Rekha Khanna was residing at the given address or not, but A7 was not required to verify the genuineness of ration card. It was contended that mere fact later on it was revealed that ration card produced by Ms. Rekha Khanna was fictitious, does not mean that A7 was in conspiracy with Ms. Rekha Khanna. It was further contended that at the relevant time, detail procedure of reverification was in existence and PW4 deposed that some of the reports submitted by A7 were also sent for reverification on random basis, but all such reports were found correct, which shows that A7 was otherwise sincere towards his duty.
Findings qua Badloo Khan (A7):-
9. PW4 Mr. Sumer Singh was working as Inspector at the relevant time and posted at North-East Zone of Delhi Police. He testified that he had received the application form of applicant Ms. Rekha Khanna from the office of DCP Special Branch for verification and assigned the same to A7 for the purpose of verification on April 29, 1999. He further testified that after verification A7 had submitted his report on May 12, 1999. He also proved the report of A7 which is Ex.
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PW4/B. Along with his report Badloo Khan had also submitted witnesses slip and the report from the local police station which are Ex. PW4/E and PW4/F. During trial, A7 had not disputed that the form of Ms. Rekha Khanna was not assigned to her for verification. In fact, he admitted that the same was assigned to him and he had submitted the report. But he took the plea that he had submitted the correct report on the basis of facts disclosed to him by the applicant. Thus, it is established beyond doubt that the form of Ms. Rekha Khanna was assigned to A7 by PW4 for verification and A7 submitted the report declaring that applicant was residing at F-163 New Usman Pur, Seelampur, Delhi and she had no criminal record.
(i) In order to prove the fact that the address F-163, New Usman Pur, Seelampur was not in existence, CBI has placed reliance on the deposition of PW6 Udai Ram, PW15 Vikram Singh, PW16 Suresh Chand and PW17 Dinesh Kumar.
(ii) Perusal of their testimony reveals that they categorically deposed that there are 118 houses in F Block, New Usman Pur, Seelampur, Delhi. They further categorically deposed that there is no house No. 163, 168-170 in F Block of the said colony. On the basis of their deposition, learned counsel for CBI contended that A7 had submitted a false and bogus report in favour of the applicant. Though PW17 in his examination-in-chief deposed that F-163 is not located in Usman Pur area, but in his cross-examination he deposed that he is not sure whether F 163 was there or not. This shows that PW17 was not sure about the existence of F163 in New Usman Pur, Seelampur, Delhi.
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(iii) During trial, accused examined several witnesses in order to establish that there were more houses in F Block than 118. DW5 Rajinder is the resident of F919 New Usman Pur, Delhi testified that he has been residing at the said address for the last 15-20 years and in order to prove his identity he also produced the Voter Card issued by Election Commission of India and Aadhar Card. Similarly, DW6 Subhash Chand is the resident of F-244 Naya Gauv, Usman Pur and he also testified that he is residing at the said house since his childhood and at the time of deposition, his age was 39 years, which means, he is residing there for the last 39 years. He also produced the Voter ID for the purpose of his identification. DW4 Narender Kumar is working as Head Clerk in Election Commission office and he produced Electoral list of the area for the year 2005 and same is Ex. DW4/B which shows that there were 924 houses in F Block. DW3 also proved speed post envelopes which were returned undelivered from the address F-916, gali no. 11 Naya Gauv, New Usman Pur, Pushta-II and F244 Gali no. 5 Naya Gauv, New Usman Pur Pushta-II, Delhi with report that the addressee was not found residing at the said address. By the said envelopes, counsel for A7 made an attempt to establish that there were more than 118 houses in F Block. No doubt, during trial, DW4 failed to produce relevant certificate under Section 65 B of Evidence Act but the said lapse on his part is not helpful to the prosecution in any manner because there are other cogent admissible evidence on record to establish the fact that there were more than 118 house in F Block, New Usman Pur, Delhi.
(iv) In view of the categorical evidence led by A7 during trial, I do not find any substance in the prosecution claim that there were only CBI No. 09/12 Page 19 of 130 State through CBI v. Bibianus Toppo & Ors.
118 houses in F Block at New Usman Pur, Seelam Pur, Delhi.
10. PW24 Sh. A. K. Tripathi, investigating officer in his cross- examination deposed that the name of Passport official who dealt with issuance of original passport bearing No. A7621069 in the name of Ms. Rekha Khanna is mentioned in the work done sheet i.e. Ex.PW18/B. He also admitted that as per Ex. PW18/B, the said passport was sent to applicant Ms. Rekha Khanna through dispatch by Smt. Bindra Devi. As per document Ex. PW18/B the said passport was dispatched on June 22, 1999. It is admitted case of prosecution that the said passport was delivered to the applicant. Indisputably, it is the admitted case of the CBI that the passport was prepared in the name of Ms. Rekha Khanna resident of F-163 New Usman Pur, Seelampur, Delhi. If the passport not returned to the RPO, New Delhi undelivered, it means that the said passport had been delivered to the applicant Ms. Rekha Khanna at the given address. If it was so, it falsifies the claim of CBI that there was no address F-163 New Usman Pur, Delhi in the said colony.
(i) Admittedly, it is not the case of CBI that the said passport was obtained by the applicant in connivance with local postman. In fact in this regard, no investigation had been made.
(ii) It is admitted case of the CBI that at the time of submitting his report, applicant was also identified by two witnesses namely Vijay Kumar and Geeta who signed on the identification slip Ex. PW4/E. But surprisingly no effort was made to trace the said two witnesses. Even it is not the case of the CBI that said slip was filled up by A-7 of his own.
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No doubt as per the said slip, Vijay Kumar was residing at F 170 whereas Geeta was residing at F-168. As already held that there were more than 118 houses in the colony, thus it is difficult to say that the address of said persons is fictitious.
(iii) In order to establish that the copy of ration card which was produced by applicant at the time of police verification is false, prosecution has relied upon the statement of PW5. No doubt, PW5 deposed that the ration card Ex. PW4/C was not issued from Food & Supply Office Circle no. 50, Gonda but his testimony is not sufficient to establish any criminality on the part of A7. PW4 in his examination-in- chief deposed that the duty of A7 was to visit at the given address and to check the documents like ration card, registration certificate of vehicle, bank passbook for verification of applicant address and to check the identity of the applicant by seeing the photograph affixed on personal particular form by obtaining signature of two witnesses who are known to the applicant. He further testified that A7 was also supposed to verify the antecedents of applicants from register No. 09 maintained in the concerned police station. He nowhere deposed that it was also the duty of A7 to check the documents like ration card, registration certificate and passbook. Thus, mere fact that later on ration card was found fake is not sufficient ipso-facto to impose any criminal liability upon A7. It is admitted case of the CBI that at the time of conducting the verification, A7 had taken the copy of ration card and also checked the antecedents from the concerned police station and he had also taken the signature of two persons from the neighbourhood. In these circumstances, it is seldom to believe the version of CBI that A7 had submitted a false report knowingly and deliberately in order to CBI No. 09/12 Page 21 of 130 State through CBI v. Bibianus Toppo & Ors.
favour the applicant.
(iv) Now coming to the issue of identity of applicant Ms. Rekha Khanna. It is admitted case of CBI that the photographs of applicant was affixed on the verification form. It is also undisputed fact that the same photograph was affixed on her passport. In the chargesheet, CBI had alleged that Ms. Rekha Khanna had visited the abroad on the basis of said passport. If there is any substance in the finding, it means that the person whose verification was conducted by A7and the person whose photograph was affixed on the passport was one and same person. It is also admitted case of the CBI that that at the time of producing the passport, applicant had filed an affidavit attested by Ajay Gautam, SDM Model Town, Delhi. This further shows that the said applicant had appeared before the SDM for the attestation of affidavit. Admittedly, no investigation was conducted by the CBI from the said SDM qua the said affidavit. In the absence of any such evidence on record, it can be safely culled out that photograph affixed on the passport file was of the person who appeared before the SDM for attestation of the affidavit.
(v) In the light of above discussion, there may be possibility that the applicant had cheated A7 by producing fictitious ration card and witnesses namely Vijay Kumar and Geeta in order to secure a favourable police verification from him. To my find, the evidence led by the CBI are not sufficient to hold that A7 had submitted a false and bogus report knowingly and deliberately in order to favour the applicant Ms. Rekha Khanna facilitating her to obtain the passport in fictitious name.
CBI No. 09/12 Page 22 of 130State through CBI v. Bibianus Toppo & Ors.
(vi) In view of the aforesaid discussion, I am of the considered opinion that CBI has miserably failed to bring home the guilt of accused Badloo Khan beyond the shadow of all reasonable doubts, thus I hereby acquit him from all the charges.
Contentions relating to accused Anil Dhawan (A8):-
11. Ms. Shashi Vishwakarma learned Public Prosecutor for CBI raised the following contentions:-
(i) That accused Anil Dhawan was an employee of PW1 Gurinder Singh Walia and this fact has also been corroborated by PW2 Pradeep Kumar Chawla. It was further submitted that PW1 also identified the handwriting of accused Anil Dhawan on various documents including application forms that were submitted for seeking additional passport booklets from time to time.
(ii) That PW1 also proved the admitted writing of A8 i.e. mark A1 to A17 on the Day Book which belonged to PW1. He also identified the writings of accused Anil Dhawan on the application form of Kanu Priya Gombar and Padmini Malpani which are marked as A18 to A23.
(iii) That in addition to the above, accused Anil Dhawan (A8) had also collected the second and third additional passport booklets bearing No. E-7495556 dated January 29, 2004 and E-8582541 dated March 26, 2004 by signing in the respective passport files and passport delivery register. Q9 and Q13 are the writings of accused Anil Dhawan CBI No. 09/12 Page 23 of 130 State through CBI v. Bibianus Toppo & Ors.
in passport delivery register, which proves that the said additional passport booklets were received by accused Anil Dhawan. Similarly, Q177 and Q191 are the writings of Anil Dhawan in the respective passport files, which further establishes that the delivery of the said booklets were taken by accused Anil Dhawan. During investigation, specimen writings of accused Anil Dhawan (A8) was also taken and the same are marked as S16 to S35. The said writings were taken in the presence of two independent witnesses.
(iv). That handwriting expert PW11 Dr. B.A. Vaid in his report Ex.PW11/J proved that accused Anil Dhawan is the author of Q156 to Q158, Q160 to Q174, Q177, Q178, Q181 to Q186, Q189 to Q201.
(v). That A8 besides the charges of conspiracy is also liable for the offences punishable under Section 419/420/468/471 IPC and under Section 12 (1) (b) of Passport Act.
12. Mr. Ashwani Verma, Advocate, counsel appearing for the accused Anil Dhawan (A8) countered the said contentions and submitted as under:
(i) That the entire prosecution case is based on the deposition of PW1 G.S. Walia, but no reliance can be placed on his deposition as PW1 categorically deposed that his statement under Section 161 Cr. P.C was recorded by PW23 R.K. Aggarwal, but the same is not part of judicial file. PW1 further testified that his statement was never recorded by PW24 A.K. Tripathi whereas prosecution case is that his statement was recorded by PW24. It was further submitted that CBI No. 09/12 Page 24 of 130 State through CBI v. Bibianus Toppo & Ors.
PW23 did not corroborate the testimony of PW1 that he had recorded the statement of PW1.
(ii) That it is admitted case of prosecution that a raid was conducted at the premises of PW1 and numerous incriminating articles were recovered from his premises including various passports, blank documents but instead of impleading PW1 as an accused, investigating officer in collusion with PW1 exonerated him and falsely implicated accused Anil Dhawan (A8).
(iii) That prosecution has set up a case against accused Anil Dhawan (A8) that he was an employee of PW1, but during trial prosecution failed to produce any documentary evidence to prove this fact. It was further argued that PW24 in his cross-examination deposed that he had not taken any documentary evidence to establish the fact that accused Anil Dhawan (A8) was the employee of PW1 G.S. Walia. It was further argued that in fact no attempt was made by the investigating officer to collect any documentary evidence to show that A8 was an employee of PW1 and he did so to implicate him falsely at the behest of PW1 G.S. Walia.
(iv) That though prosecution has placed strong reliance on the deposition of PW1 wherein he identified certain questioned writings as the writing of accused Anil Dhawan (A8), but no reliance can be placed on the said piece of evidence as PW1 is not an expert witness to identify the writings of any person.
(v) That no reliance can be placed on the alleged admitted CBI No. 09/12 Page 25 of 130 State through CBI v. Bibianus Toppo & Ors.
writing i.e. marked as A1 to A23 because there is no evidence on record that the said writings belonged to accused Anil Dhawan (A8).
(vi) That during investigation, investigating officer had not taken any specimen writings of PW1 and PW2 deliberately and intentionally to favour them. Had their writings been taken by the investigating officer, it would also have been matched with some questioned writings.
13. In support of his contentions, learned defence counsel placed reliance on the following citations:-
(i) Malay Kr. Ganguly v/s. Dr. Sukumar Mukherjee & others (2009) 9 Supreme Court Cases 221;
(ii) Sujit Biswas v/s. State of Assam, 2013 (5) LRC 133 (SC);
(iii) State of Maharashtra v/s.
Dnyaneshwar Laxman Rao Wankhede,
(2009) 12 SCR 513;
(iv) State (G.N.C.T) of Delhi v/s. Saqib
Rehman @ Masood & Ors. 2012(3) JCC
2127;
(v) Sapan Haldar & Anr. V/s. State 2012
VIII AD (Delhi) 533 ;
(vi) Sandeep Dixit v/s. State, 2013 I AD
(Delhi) 407;
(vi) Fakhruddin v/s. State of M. P, AIR
1967 SC 1326;
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State through CBI v. Bibianus Toppo & Ors.
(vii) Ram Chandra v/s. State of U. P, AIR
1957, SC 381;
(viii) Ishwari Parsad Misra v/s Mohammd
Isa, AIR 1963 SC 1728;
(ix) Shashi Kumar Banerjee v/s Subhodh
Kumar Banerjee, AIR 1964 SC 529;
(x) Raghu v/s Rajendra Kumar, 2002 (3)
KLT 945 (Kerala);
(xi) Piara Singh v/s. Jagtar Singh &
others, AIR 1987 P & H 93;
(xii) Thyseen Stallunjon Gmbh v/s SAIL,
96 (2002) DLT 515;
(xiii) Ameer Mohd. v/s Barket Ali, AIR
2002 Rajasthan 406.
Findings qua accused Anil Dhawan (A8):-
14. First question emerges from the submissions advanced by counsel for both the parties; whether accused Anil Dhawan (A8) was working with PW1 G.S. Walia or not? In this regard, the testimony of PW1 G.S. Walia and PW2 Pradeep Kumar Chawla are relevant.
(i) PW1 G.S. Walia in his examination-in-chief deposed that he was running a company M/s Kanu Travel Care Pvt. Ltd. since 1991, in which he was one of the directors and further testified that accused Anil Dhawan (A8) was his employee. He further deposed that in the year 2002, he had started a partnership firm in the name and style of M/s Jas Air and in the said firm also, accused Anil Dhawan (A8) was CBI No. 09/12 Page 27 of 130 State through CBI v. Bibianus Toppo & Ors.
working and his job was to provide assistance to clients in getting visa and and issuance of passport. He further deposed that accused Anil Dhawan (A8) was also used to deliver tickets to clients; used to collect payments from clients; used to go to embassy and passport office for getting visa and passport for clients
(ii) PW2 Mr. Pradeep Kumar Chawla deposed that he was also one of the directors in M/s Kanu Travels Care Pvt. Ltd. and the said company was closed in 2002 and further testified that in the said company there were two employees; one of them was Anil Dhawan. Thus, PW2 corroborated the testimony of PW1. Since, A8 did not deem it appropriate to cross-examine PW2 Pradeep Kumar Chawla, thus the testimony of PW2 remained unchallenged during the trial.
(iii) Though A8 had cross-examined PW1 Mr. G. S. Walia at length, yet during his cross-examination, no dispute was raised to the extent that he was not working with PW1 Mr. G. S. Walia. In other words, the testimony of PW1 to the extent that he was working initially in M/s Kanu Travels Care Pvt. Ltd. and thereafter, in M/s Jas Air remained unrebutted.
(iv) Though in his statement recorded under Section 313 Cr. P. C, A8 denied all the incriminating evidence led by prosecution, but in his statement, he failed to explain where he was working at the relevant period, if not working with PW1. Even during trial, A8 failed to adduce any evidence contrary to the testimony of PW1 and PW2 to disprove the fact that he was not working in their company. He also failed to produce any evidence to show that he was working somewhere else CBI No. 09/12 Page 28 of 130 State through CBI v. Bibianus Toppo & Ors.
and not in the company of PW1 as deposed by him. In the absence of any contrary evidence on record, I do not find any reason to disbelieve the testimony of PW1 and PW2 to the extent that initially accused Anil Dhawan was working in M/s Kanu Travels Care Pvt. Ltd till 2002. When it was closed, he started working in the partnership firm named M/s Jas Air, in which PW1 was one of the partners.
(v) It is pertinent to state that PW1 in his cross-examination deposed that he used to pay salary to accused Anil Dhawan (A8) through cheque. However, he also admitted that he did not provide any such document to the CBI. PW24 in his cross-examination deposed that he did not ask PW1 G.S. Walia to give any document showing that accused Anil Dhawan was working with him. In order to justify the said lapse on his part, he swiftly added that the same was not required as PW1 G.S. Walia identified the handwriting of accused Anil Dhawan on passport files. The explanation furnished by PW24 for not asking PW1 to furnish the documentary evidence to show the employment of accused Anil Dhawan is not satisfactory. This shows that PW24 had not conducted the investigation on this point diligently. Had he taken the documentary evidence to prove the employment of accused Anil Dhawan, probably, this objection would not have been raised by the counsel. But in the present case, the said lapse on the part of PW24 is not fatal to the prosecution in any manner.
(vi) In view of the aforesaid discussion, I am of the considered opinion that prosecution has successfully established that accused Anil Dhawan (A8) was working with PW1 G.S. Walia.
CBI No. 09/12 Page 29 of 130State through CBI v. Bibianus Toppo & Ors.
15. Second question crops up for adjudication whether the recovered 'Day Book' belonged to M/s Jas Air or not? In this regard, the testimony of PW1 Mr. G. S. Walia and PW24 A.K. Tripathi are relevant.
(i) PW1 in his examination-in-chief deposed that the Day Book of his firm M/s Jas Air was seized by the CBI in one of the passport cases. He further deposed that 10 pages, which are photocopies and are marked as Ex.PW11/H1 to Ex.PW11/H10 are the pages of his Day Book. The original Day Book was shown to the witnesses from CC No. 08/12. After seeing the said documents and Day Book, PW1 testified that the Day Book was written by him as well as by accused Anil Dhawan and further testified that the pages marked Ex.PW1H1 to Ex.PW11/H10 are in the handwriting of accused Anil Dhawan and he identified the same.
(ii) No doubt, in his cross-examination, PW1 deposed that the said Day Book does not bear any official stamp or mark of M/s Jas Air to show that the Day Book pertained to the said firm. However, the said lapse is insufficient to discard the testimony of PW1, who is one of the partners in the said firm. Since, PW1 admitted that the Day book belonged to his firm and there is no contrary evidence on record, thus this Court has no reason to disbelieve his testimony to that extent.
(iii) PW24 in his cross-examination deposed that when he interrogated accused Anil Dhawan, he was already in custody in some other case and further testified that he did not recollect whether he was alone when he interrogated accused Anil Dhawan. However, he categorically deposed that nothing was recovered from accused Anil CBI No. 09/12 Page 30 of 130 State through CBI v. Bibianus Toppo & Ors.
Dhawan in his presence. This shows that the said Day Book was not recovered by PW24 during investigation. Though PW23 also remained associated with the investigation of the case, but he remained silent about the said Day Book.
(iv) During trial, the pages of Day Book were brought on record first time during the deposition of PW11 Dr. B.A. Vaid, Handwriting Expert. Since, PW11 is an Handwriting Expert, he was not in a position to depose how and when and from whom the said Day Book was seized. In these circumstances, during trial, CBI has failed to establish when and from whom the said Day Book was seized.
16. Third question emerges from the submissions raised by counsel for the parties whether PW1 is a competent person to identify the handwriting of A8 or not?
(i) As already held that A8 was an employees of PW1, thus PW1 had an opportunity to see A8 to write and sign. From the testimony of PW2 Mr. Pradeep Kumar Chawla and PW1 Mr. G. S. Walia, it also becomes perspicuous that A8 had worked with PW1 for a considerable long time i.e. during 1991 to 2002 as he was working in M/s Kanu Travels Care Pvt. Ltd. and thereafter, in his firm M/s Jas Air. Thus, the testimony of PW1 where he identified certain writings of A8 becomes relevant under Section 47 of Indian Evidence which reads as under:-
47. Opinion as to handwriting, when relevant -
When the Court has to form an opinion as to the person by whom any document was written or signed, the opinion of any person acquainted with the handwriting of the person by whom it is supposed to be written or signed that it was or was not written or signed by that CBI No. 09/12 Page 31 of 130 State through CBI v. Bibianus Toppo & Ors.
person, is a relevant fact.
Explanation - A person is said to be acquainted with the handwriting of another person when he has seen that person write, or when he has received documents purporting to be written by that person in answer to documents written by himself or under authority and addressed to that person, or when, in the ordinary course of business, documents purporting to be written by that person have been habitually submitted to him.
(emphasis supplied)
(ii) In view of Section 47 of Indian Evidence Act, I do not find any substance in the contention raised by learned defence counsel that since PW1 is not an expert, he cannot identify the writings of A8.
17. Now coming to the next issue how many questioned writings have been identified by PW1 during trial?
(i) PW1 in his examination-in-chief identified certain questioned writings as the writing of accused Anil Dhawan (A8) and the same are marked as Q156, Q157, Q158, Q160 to Q174 in Ex.PW1/A as the writing of accused Anil Dhawan. Similarly, in Ex.PW1/B he also identified the handwriting marked as Q175, Q177, Q178, Q181, Q182 to Q188 as the writing of accused Anil Dhawan. PW1 also identified the questioned writings marked as Q189, Q190, Q192 to Q203 as the writings of accused Anil Dhawan and same are in the file Ex.PW1/C. In his examination-in-chief, he categorically deposed that the handwriting marked as Q176, Q179, Q180 are not in the handwriting of accused Anil Dhawan. He further deposed that he is not sure whether Q191 is in the handwriting of accused Anil Dhawan or not.
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(ii) During his cross-examination, he deposed that he had not seen accused Anil Dhawan to sign any document in the name of any other person. He further clarified that he cannot identify the signature of any other person i.e. applicant has been signed by accused Anil Dhawan or not. However, swiftly added that he can only identify the handwriting of accused Anil Dhawan (A8). From his deposition, it can safely be culled out that PW1 is able to identify the handwriting of accused Anil Dhawan as he was working with him for a considerable long period, however, PW1 is unable to identify whether the signature made in the name of applicant had been signed by accused Anil Dhawan or not.
(iii) Since, Q156, Q158, Q159, Q162, Q164, Q165 to Q175, Q177, Q178, Q181, Q182 to Q188, Q189, Q191, Q192, Q195, Q197 to Q203 are the signatures in the name of Rekha Khanna, thus, it can safely be culled out that PW1 is not able to identify whether the said signatures were made by accused Anil Dhawan or not.
(iv) Now, as per the testimony of PW1, he had only identified Q157, Q160, Q161, Q163 in the file Ex.PW1/A. He also able to identify Q190, Q193, Q194, Q196 in the file Ex.PW1/C. He failed to identify any of the questioned writing in the file Ex.PW1/B.
(v) Thus as per the testimony of PW1, in the file Ex.PW1/A and Ex.PW1/C, passport application registration forms as well as application forms for miscellaneous services of Indian passport were filled up by accused Anil Dhawan because the said writings are in the body portion of the said forms, which are marked as Q157, Q160, CBI No. 09/12 Page 33 of 130 State through CBI v. Bibianus Toppo & Ors.
Q161, Q163, Q190, Q193, Q194, Q196.
18. Now coming to the specimen writings marked as S16 to S35.
(i) CBI has set up a case that the said writings were taken in the presence of two independent witnesses, but during trial, CBI did not deem it appropriate to examine either of them. The said specimen writing was got exhibited by prosecution during the deposition of PW11 Dr. B.A. Vaid and same are Ex.PW11/F1 to Ex.PW11/F20. Admittedly, the said writings were not taken in the presence of PW11, thus, he was not in a position to prove the same in accordance with law.
(ii) PW24 in his examination-in-chief deposed that the specimen signatures/writings marked as S16 to S35 were given by accused Anil Dhawan (A8) voluntarily before the independent witnesses namely S.K. Soni and R.P. Atri. He also identified their signatures. He further testified that at the time of giving specimen writings, accused Anil Dhawan also signed below the specimen writings certifying that he had given the said writings voluntarily. Thus, the said writings were got proved by prosecution during the testimony of PW24. During cross- examination of PW24, a suggestion was put to the witness that he had not followed proper procedure at the time of obtaining the handwriting of accused Anil Dhawan. The said suggestion indicates that accused has not disputed the fact that his specimen writings were not taken by investigating officer; rather he disputed the manner in which it was taken and took the plea that the said procedure was not proper. At the end, a suggestion was given to PW24 that accused Anil Dhawan had CBI No. 09/12 Page 34 of 130 State through CBI v. Bibianus Toppo & Ors.
not given his specimen writing, which was categorically denied by the witnesses. From the testimony of PW24, it is established that the specimen writing of accused Anil Dhawan was taken by PW24.
19. Now coming to the so-called admitted writings marked as A1 to A23:
(i) Writings marked A1 to A17 are appearing on the pages of Day Book Ex.PW11/H1 to Ex.PW11/H10. Writings marked A18 to A21 are appearing on the passport application form of Kanu Priya Gombar, photocopy of the same are Ex.PW11/H11 to Ex.PW11/H14 whereas writing marked A22 and A23 are appearing on the photocopy of Immigration Application Form of Ms. Padmini Malpani, which are Ex.PW11/H15 and Ex.PW11/H16. It is pertinent to state that all the said documents were got exhibited during the deposition of PW11 Dr. B.A. Vaid in whose presence neither the said forms were filled up nor seized.
Thus, to my mind, PW11 is not a competent witness to prove the said documents. The reliance can be placed on the said documents only, if prosecution succeeds to establish how the said documents came on record during the course of investigation. Though, PW1 identified the writings in those documents as the writing of accused Anil Dhawan, but he did not depose that the passport application form of Ms. Kanu Priya Gombar and Immigration Application Form of Ms. Padmini Malpani were seized by the CBI in his presence. Though, in his examination-in- chief, PW1 deposed that CBI had seized the Day Book in some other case, but during trial, CBI failed to adduce any evidence on record to establish in which case, the said Day Book was seized. Similarly, during trial, CBI has also failed to establish how the said forms were seized by CBI No. 09/12 Page 35 of 130 State through CBI v. Bibianus Toppo & Ors.
CBI. Though, prosecution has examined PW24 A.K. Tripathi, investigating officer of the case, but surprisingly, he did not utter even a single word about the said documents. He categorically deposed that the documents Ex.PW11/H11 to Ex.PW11/H12 were not seized by him. Though, PW23 also remained associated with the investigation, but he also remained silent about the said documents. In other words, during trial, CBI failed to prove from whom the said documents were seized. In these circumstances, I am of the opinion that no reliance can be placed on the said documents.
20. Now coming to the Handwriting Expert Report:
(i) The report is Ex.PW11/J and reasons of the report are Ex.PW11/K. As per the report Ex.PW11/J, the author of Q156 to Q158, Q160 to Q174, Q177, Q178, Q181 to Q186. Q189 to Q201 and S16 to S35 and A1 to A23 are one and the same person. Since, prosecution has succeeded to establish that the specimen writings marked as S16 to S35 are the specimen writings of accused Anil Dhawan, it means that accused is the author of the above questioned writings.
(ii) Q9, Q13 is the writing of the person in the passport delivery register, who had taken the delivery of additional passport booklet bearing No. E-7495556 and E-8582541. As per the handwriting report Ex.PW11/J, the author of the said questioned writing is also accused Anil Dhawan.
(iii) In other word, PW11 proved that in all the files Ex.PW1/A to Ex.PW1/C, the signature of the applicants i.e. Q156, Q158, Q162, CBI No. 09/12 Page 36 of 130 State through CBI v. Bibianus Toppo & Ors.
Q164 to Q174, Q177, Q178, Q181 to Q186, Q188, Q189, Q191, Q192, Q195, Q197 to Q201 were signed by accused Anil Dhawan.
(iv) It is also established from the report that the forms in file Ex.PW1/A and Ex.PW1/C were filled up by accused Anil Dhawan. It is also established from the said report that accused Anil Dhawan had taken the delivery of the above said two additional passport booklets by signing in the delivery register.
21. PW11 is an independent person and is working as Dy. Government Examiner of Questioned Documents, CFSL Shimla. He is not only an independent witness but also well experienced person as he deposed that he had more than 32 years experience in the field of documents examination and he had examined thousands of documents independently and deposed before various courts throughout the country. He further deposed that the said questioned documents were also examined independently by Mr. N. C. Sood, Government Examiner of Questions Documents. Thus, it becomes clear that the questioned writings were not only examined by an independent and experienced examiner but simultaneously, same were also examined by another equivalent competent examiner. PW11 had recorded the reasons in detail in Ex.PW11/K to arrive at the above conclusion. Thus, it can safely be culled out that the conclusions arrived at by PW11 are based on detailed reasons as mentioned in Ex.PW11/K. Though PW11 was cross-examined by A8 but nothing has been come out in his cross- examination, which may cast any dent either in his deposition or in his report.
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(i) No doubt, an attempt has been made to cause a dent in the report of PW24 by putting a question that handwriting science is not a perfect science. But this suggestion was denied by PW24 by deposing that handwriting identification is a perfect science and a definite opinion can be given provided suitable and sufficient data are available and he clarified that in the instant case, sufficient and suitable data were provided.
(ii) Another futile attempt was made to create a doubt over his report by stating that CBI has failed to produce Mr. N. C. Sood in the witness box despite the fact that he is still alive. No doubt, PW11 deposed that Mr. N. C. Sood is still available. But prosecution was not required to bring him in the witness box when PW11 proved the report and defence failed to bring anything on record, which may cast any doubt over his report. Moreover, it is settled law that Court has to see the quality and not the quantity of evidence. Thus, mere fact that Mr. N.C. Sood was not examined by prosecution is not sufficient to discard the testimony of PW11, which is otherwise trustworthy and admissible. Moreover, if accused thinks that the deposition of Mr. N.C. Sood would help him to prove his innocence, he could have easily called him as a defence witness, but he also failed to examine him. Thus, to my mind, non-examination of Mr. N.C. Sood is not fatal to the prosecution in any manner.
22. Learned counsel vigorously argued that no reliance can be placed on the report of PW11 as PW24 had not taken permission from the Court before taking the specimen handwritings of accused Anil Dhawan and in support of his contention, he strongly relied upon CBI No. 09/12 Page 38 of 130 State through CBI v. Bibianus Toppo & Ors.
Sapan Haldar & another v/s. State (supra).
23. Perusal of the judgment Sapan Haldar & another v/s. State (supra) makes it clear that the fact in issue before the Hon'ble Court was Section 4 & 5 of Identification of Prisoners Act, 1920 and Section 311A Code of Criminal Procedure. After considering the relevant case law, Hon`ble Court arrived at following conclusion:-
(i) Handwriting and signature are not measurements as defined under clause (a) of Section 2 of The Identification of Prisoners Act, 1920. Therefore, Section 4 and Section 5 of The Identification of Prisoners Act, 1920 will not apply to a handwriting sample or a sample signature. Thus, an investigating officer, during investigation, cannot obtain a handwriting sample or a signature sample from a person accused of having committed an offence.
(ii).Prior to June 23, 2006, when Act No. 25 of 2005 was notified, inter-alia, inserting Section 311A in the Code of Criminal Procedure, 1973, even a Magistrate could not direct a person accused to give specimen signatures of handwriting samples. In cases where Magistrates have directed so, the evidence was held to be inadmissible as per the decision of the Supreme Court in Ram Babu Mishra's case (supra). According to Section 73 of the Indian Evidence Act, 1872, only the Court concerned can direct a person appearing before it to submit samples of his handwriting and or signatures for purposes of comparison.
(emphasis supplied)
24. However in the instant case, neither the Section 2 (a), 4 & 5 of identification of Prisoners Act nor Section 311A Cr. P.C are fact in issue before this Court. Indisputably, in the instant case, investigating officer had not taken the specimen handwritings of accused persons after obtaining permission either from the Court concerned or from the Court of Metropolitan Magistrate. Rather, specimen handwritings were CBI No. 09/12 Page 39 of 130 State through CBI v. Bibianus Toppo & Ors.
taken during the investigation. It is pertinent to state that in the judgment Sapan Haldar & another v/s. State (supra), there is nothing which may suggest that investigating officer has no right or jurisdiction to take specimen handwritings of the suspect during investigation for the purpose of finding truth, which is ultimate object of any investigation.
(i) Though learned counsel appearing for A8 also placed reliance on the certain other judgements including Fakhruddin v/s. State of M.P (supra); Ram Chandra v/s. State of UP (supra); Ishwari Pal Mista v/s. Mohd. Isa (supra); Shashi Kumar Banerjee v/s. Subhodh Kumar Banerjee (supra), yet I do not deem it appropriate to discuss all the judgements separately because all the said judgements have been considered by the Apex Court in Murari Lal v/s. State of MP, AIR 1980 SC 531. In the said judgment Apex Court had discussed the entire case law relating to Handwriting Expert Evidence, thus relevant portions of the judgment are reproduced as under:-
Para No.2.......... The Station House Officer, P. W. 28, came to the scene, found things in the room strewn about in a peel-smell condition. He seized various articles. One of the articles so seized was a prescription pad Ex. P-9. On pages A to F of Ex. P-9, there were writings of the deceased but on page 6, there was a writing in Hindi in pencil which was as follows:
Translated into English it means: "Though we have passed B. A., we have not secured any employment because there is none to care. This is the consequence. sd/- Balle Singh". ...... Specimen writings Exs. P-41 to P-54 of Murari Lal were obtained. They were sent to a handwriting and finger-print expert P. W. 15 along with the prescription pad Ex. P-9, for his opinion. The expert gave his opinion that the writing in Hindi at page 6 of Ex. P-9 and the specimen writings of Exs. P-41 to P-54 were made by the same person......
3......He further argued that the High Court fell into a grave CBI No. 09/12 Page 40 of 130 State through CBI v. Bibianus Toppo & Ors.
error in concluding that the writing at page 6 of Ex. P-9 was that of the appellant. He submitted that the evidence of P. W. 8 who claimed to be familiar with the handwriting of the appellant was wholly unacceptable, that it was not permissible in law to act upon the uncorroborated opinion- evidence of the expert P. W. 15 and that the High Court fell into a serious error in attempting to compare the writing in Ex. P-9 with the admitted writing of the appellant.
4.We will first consider the argument, a Stale argument often heard, particularly in criminal courts, that the opinion- evidence of a handwriting expert should not be acted upon without substantial corroboration. We shall presently point out how the argument cannot be justified on principle or precedent. We begin with the observation that the expert is no accomplice. There is no justification for condemning his opinion evidence to the same class of evidence as that of an accomplice and insist upon corroboration. True, it has occasionally been said on very high authority that it would be hazardous to base a conviction solely on the opinion of a handwriting expert. But, the hazard in accepting the opinion of any expert, handwriting expert or any other kind of expert, is not because experts, in general, are unreliable witnesses - the equality of credibility or incredibility being one which an expert shares with all other witness -, but because all human judgment is fallible and an expert may go wrong because of some defect of observation, some error of premises or honest mistake of conclusion. The more developed and the more perfect a science, the less the chance of an incorrect opinion and the converse if the science is less developed and imperfect. The science of identification of finger-prints has attained near perfection and the risk of an incorrect opinion is practically non- existent. On the other hand, the science of identification of handwriting is not nearly so perfect and the risk is, therefore, higher. But that is a far cry from doubting the opinion of a handwriting expert as an invariable rule and insisting upon substantial corroboration in every case, howsoever the opinion may be backed by the soundest of reasons. It is hardly fair to an expert to view his opinion with an initial suspicion and to treat him as an inferior sort of witness. His opinion has to be tested by the acceptability of the reasons given by him. An expert deposes and not decides. His duty 'is to furnish the judge with the necessary scientific criteria for testing the accuracy of his conclusion, so as to enable the judge to form his own independent judgment by the application of these criteria to the facts proved in evidence'. (Vide Lord President Cooper in Decie v. Edinburgh Magistrate, 1953 SC 34 quoted by Professor Cross in his Evidence).
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5.From the earliest times, courts have received the opinion of experts. As long ago as 1553 it was said in Buckley v. Rice Thomas, (1554) 1 Plowden 118:
"If matters arise in our law which concern other sciences or faculties, we commonly apply for the aid of that science or faculty which it concerns. This is a commendable thing in our law. For thereby it appears that we do not dismiss all other sciences but our own, but we approve of them and encourage them as things worthy of commendation."
6.Expert testimony is made relevant by S. 45 of the Evidence Act and where the Court has to form an opinion upon a point as to identity of handwriting, the opinion of a person 'specially skilled' 'in questions as to identity of handwriting' is expressly made a relevant fact. There is nothing in the Evidence Act, as for example like Illustration
(b) to Section 114 which entitles the Court to presume that an accomplice is unworthy of credit, unless he is corroborated in material particulars, which justifies the court in assuming that a handwriting expert's opinion is unworthy of credit unless corroborated. The Evidence Act itself (S. 3) tells us that 'a fact is said to be proved when, after considering the matters before it, the Court either believes it to exist or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists'. It is necessary to occasionally remind ourselves of this interpretation clause in the Evidence Act lest we act on artificial standard of proof not warranted by the provisions of the Act. Further, under S. 114 of the Evidence Act, the Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct, and public and private business, in their relation to facts of the particular case. It is also to be noticed that S. 46 of the Evidence Act makes facts, not otherwise relevant, relevant if they support or are inconsistent with the opinion of experts, when such opinions are relevant. So, corroboration may not invariably be insisted upon before acting on the opinion of a handwriting expert and there need to no initial suspicion. But, on the facts of a particular case, a court may require corroboration of a varying degree. There can be no hard and fast rule, but nothing will justify the rejection of the opinion of an expert supported by unchallenged reasons on the sole ground that it is not corroborated. The approach of a court while dealing with the opinion of a handwriting expert should be to proceed cautiously, probe the reasons for the opinion, CBI No. 09/12 Page 42 of 130 State through CBI v. Bibianus Toppo & Ors.
consider all other relevant evidence and decide finally to accept or reject it.
7.Apart from principle, let us examine if precedents justify invariable insistence on corroboration. We have referred to Phipson on Evidence, Cross on Evidence, Roscoe on Criminal Evidence, Archibald on Criminal Pleadings, Evidence and Practice and Halsbury's Laws, England but we were unable to find a single sentence hinting at such a rule. We may now refer to some of the decisions of this Court. In Ram Chandra v. U. P. State, AIR 1957 SC 381, Jagannadha Das, J. observed; "It may be that normally it is not safe to treat expert evidence as to handwriting as sufficient basis for conviction" (emphasis ours). 'May' and 'normally' make our point about the absence of an inflexible rule. In Ishwari Prasad Misra v. Mohammad Isa, (1963) 3 SCR 722, Gajendragadkar, J. observed;
"Evidence given by expert can never be conclusive, because after all it is opinion evidence", a statement which carries us nowhere on the question now under consideration. Nor, can the statement be disputed because it is not so provided by the Evidence Act and, on the contrary, S. 46 expressly makes opinion evidence challenge-able by facts, otherwise irrelevant. And as Lord President Cooper observed in Davis v. Edinburgh Magistrate : "The parties have invoked the decision of a judicial tribunal and not an oracular pronouncement by an expert".
8.In Shashi Kumar v. Subodh Kumar, AIR 1964 SC 529, Wanchoo, J., after noticing various features of the opinion of the expert said:
"We do not consider in the circumstances of this case that the evidence of the expert is conclusive and can falsify the evidence of the attesting witnesses and also the circumstances which go to show that this Will must have been signed in 1943 as it purports to be. Besides, it is necessary to observe that expert's evidence as to handwriting is opinion evidence and it can rarely, if ever take the place of substantive evidence. Before acting on such evidence it is usual to see if it is corroborated either by clear direct evidence or by circumstantial evidence. In the present case the probabilities are against the expert's opinion and the direct testimony of the two attesting witnesses which we accept is wholly inconsistent with it".
So, there was acceptable direct testimony which was destructive of the expert's opinion; there were other features also which made the expert's opinion unreliable.
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The observations regarding corroboration must be read in that context and it is worthy of note that even so the expression used was 'it is usual' and not 'it is necessary'.
9.In Fakhruddin v. State of Madhya Pradesh, AIR 1967 SC 1326 : 1967 Cri LJ 1197, Hidayatullah, J. said:
"Both under S. 45 and S. 47 the evidence is an opinion, in the former by a scientific comparison and in the latter on the basis of familiarity resulting form frequent observations and experience. In either case the Court must satisfy itself by such means as are open that the opinion may be acted upon. One such means open to the Court is to apply its own observation to the admitted or proved writings and to compare them with the disputed one, not to become a handwriting expert but to verify the premises of the expert in the one case and to appraise the value of the opinion in the other case. This comparison depends on an analysis of the characteristics in the admitted or proved writings and the finding of the same characteristics in large measure in the disputed writing. In this way the opinion of the deponent whether expert or other is subjected to scrutiny and although relevant to start with becomes probative. Where an expert's opinion is given, the Court must see for itself and with the assistance of the expert come to its own conclusion whether it can safely be held that the two writings are by the same person. This is not to say that the Court must play the role of an expert but to say that the Court accept the fact proved only when it has satisfied itself on its own observation that it is safe to accept the opinion whether of the expert or other witness".
These observations lend no support to any requirement as to corroboration of expert testimony. On the other hand, the facts show that the Court ultimately did act upon the uncorroborated testimony of the expert though the judges took the precaution of comparing the writing themselves.
10.Finally, we come to Magan Bihari Lal v. State of Punjab, AIR 1977 SC 1091 upon which Sri R. C. Kohli, learned counsel, placed great reliance. It was said by this Court:
"... but we think it would be extremely hazardous to condemn the appellant merely on the strength of opinion evidence of a handwriting expert. It is now well settled that expert opinion must always be received with great caution and perhaps none so with more caution than the opinion of a handwriting expert. There is a profusion of precedential authority which holds that it is unsafe to base a conviction solely on expert opinion without substantial corroboration.CBI No. 09/12 Page 44 of 130
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This rule has been universally acted upon and it has almost become a rule of law. It was held by this Court in Ram Chandra v. State of U. P., AIR 1957 SC 381 that it is unsafe to treat expert handwriting opinion as sufficient basis for conviction, but it may be relied upon when supported by other items of internal and external evidence. This Court again pointed out in Iswari Prasad v. Md. Isa, AIR 1963 SC 1728 that expert evidence of handwriting can never be conclusive because it is, after all, opinion evidence, and this view was reiterated in Shashi Kumar v. Subodh Kumar, AIR SC 529 where it was pointed out by this Court that expert's evidence as to handwriting being opinion evidence can rarely, if ever, take the place of substantive evidence and before acting on such evidence, it would be desirable to consider whether it is corroborated either by clear direct evidence or by circumstantial evidence. This Court had again occasion to consider the evidentiary value of expert opinion in regard to handwriting in Fakhruddin v. State of M. P., AIR 1967 SC 1326 and it uttered a note of caution pointing out that it would be risky to found a conviction solely on the evidence of a handwriting expert and before acting upon such evidence, the court must always try to see whether it is corroborated by other evidence, direct or circumstantial."
The above extracted passage, undoubtedly, contains some sweeping general observations. But we do not think that the observations were meant to be observations of general application or as laying down any legal principle. It was plainly intended to be a rule of caution and not a rule of law as is clear from the statement 'it has almost become as rule of law'. 'Almost', we presume, means 'not quite'. It was said by the Court there was a 'profusion of precedential authority' which insisted upon corroboration and reference was made to Ram Chandra v. State of U. P., Ishwari Prasad v. Mohammed Isa, Shashi Kumar v. Subodh Kumar and Fakhruddin v. State of M. P. We have already discussed these cases and observed that none of them supports the proposition that corroboration must invariably be sought before opinion evidence can be accepted. There appears to be some mistake in the last sentence of the above extracted passage because we are unable to find in Fakhruddin v. State of Madhya Pradesh any statement such as the one attributed. In fact, in that case, the learned Judges acted upon the sole testimony of the expert after satisfying themselves about the correctness of the opinion by comparing the writings themselves. We do think that the observations in Magan Bihari Lal v. State of Punjab must be understood as referring to the facts of the particular case.
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11.We are firmly of the opinion that there is no rule of law, nor any rule of prudence which has crystallised into a rule of law, that opinion evidence of a handwriting expert must never be acted upon, unless substantially corroborated. But, having due regard to the imperfect nature of the science of identification of handwriting, the approach, as we indicated earlier, should be one of caution. Reasons for the opinion must be carefully probed and examined. All other relevant evidence must be considered. In appropriate cases, corroboration may be sought. In cases where the reasons for the opinion are convincing and there is no reliable evidence throwing a doubt. the uncorroborated testimony of a handwriting expert may be accepted. There cannot be any inflexible rule on a matter which, in the ultimate analysis, is no more than a question of testimonial weight. We have said so much because this is an argument frequently met with in subordinate courts and sentences torn out of context from the judgments of this Court are often flaunted.
12.The argument that the Court should not venture to compare writings itself, as it would thereby assume to itself the role of an expert is entirely without force. Section 73 of the Evidence Act expressly enables the Court to compare disputed writings with admitted or proved writings to ascertain whether a writing is that of the person by whom it purports to have been written. If it is hazardous to do so, as sometimes said, we are afraid it is one of the hazards to which judge and litigant must expose themselves whenever it becomes necessary. There may be cases where both sides call experts and the voices of science are heard. There may be cases where neither side calls an expert, being ill able to afford him. In all such cases, it becomes the plain duty of the Court to compare the writings and come to its own conclusion. The duty cannot be avoided by recourse to the statement that the court is no expert. Where there are expert opinions, they will aid the Court. Where there is none, the Court will have to seek guidance from some authoritative textbook and the Court's own experience and knowledge. But discharge it must, its plain duty, with or without expert, with or without other evidence. We may mention that Shashi Kumar v. Subodh Kumar and Fakhruddin v. State of Madhya Pradesh were cases where the Court itself compared the writings.
13.Reverting to the facts of the case before us, Sri Kohli had not a word of criticism to offer against the reasons given by the expert P. W. 15, for his opinion. We have perused the reasons given by the expert as well as his cross-examination. Nothing has been elicited to throw the CBI No. 09/12 Page 46 of 130 State through CBI v. Bibianus Toppo & Ors.
least doubt on the correctness of the opinion. Both the Sessions Court and the High Court compared the disputed writing at page 6 in Ex. P-9 with the admitted writings and found, in conjunction with the opinion of the expert, that the author was the same person. We are unable to find any ground for disagreeing with the findings.
(emphasis supplied)
(ii) The above view was approved by the Apex Court in Alamgir v/s. State (NCT) Delhi in Criminal Appeal No. 202 of 2001 decided on 12.11.2002.
(iii) Though counsel appearing for Anil Dhawan also cited certain other judgments relating to handwritings but in view of the law laid down in Murari Lal v/s. State of MP (supra), I am of the view that no fruitful purpose would be achieved to discuss the said judgements.
(iv) From the evidence adduced by prosecution, following facts can safely be culled out:-
(a) That A8 was an employee of PW1 Mr. G. S. Walia since 1991.
(b) That the job of A8 was to deliver tickets to clients;
to collect payment; to help clients in getting passports and visa; to make entries in the Day book.
(c) That PW1 had identified certain writings i.e. Q157, Q160, Q161, Q163, Q190, Q193, Q194 and Q196 appearing on the passport application registration forms CBI No. 09/12 Page 47 of 130 State through CBI v. Bibianus Toppo & Ors.
submitted before the RPO from time to time and deposed that the said questioned writings are in the handwriting of accused Anil Dhawan.
(d) That the handwriting expert proved the fact that not only Anil Dhawan is the author of Q157, Q160, Q161, Q163, Q190, Q193, Q194, Q196, but he is also the author of other questioned writing marked as Q156, Q158, Q162, Q164 to Q175, Q177, Q178, Q181 to Q186, Q189, Q191, Q192, Q195, Q197 to Q203 as the above said questioned writings tallied with the specimen writings marked as S16 to S35.
25. Thus, from the above, it becomes clear that not only PW1 proved the fact that Anil Dhawan had filled up the passport application registration forms as well as application forms for miscellaneous services of Indian Passport in Ex.PW1/A and Ex.PW1/C, which were submitted before the office of RPO for obtaining additional passport booklets in the name of Ms. Rekha Khanna from time to time with different photographs, but PW11 also corroborated the testimony of PW1 and also proved that A8 had signed in all the files in the name of applicants. Further, during trial, no reliable evidence, which may throw any doubt over the conclusion arrived at by PW11 has been produced by the accused. In the absence of any contrary evidence on record, this Court has no reason to disbelieve the report of PW11 which is not only corroborated by PW1 but also supported by another independent Handwriting Expert Mr. N.C. Sood.
26. Since, it has been established that the passport CBI No. 09/12 Page 48 of 130 State through CBI v. Bibianus Toppo & Ors.
application registration forms and applications for miscellaneous services of Indian Passport in file Ex.PW1/A and Ex.PW1/C, which were submitted before the RPO for obtaining additional passport booklets from time to time, were not only filled up by accused Anil Dhawan, but he also signed the same in the name of applicants. Similarly, it is also established that in file Ex.PW1/B, accused Anil Dhawan had signed passport application registration forms and applications for miscellaneous services Indian Passport in the name of applicants. Thus, in terms of Section 106 of Indian Evidence Act, burden is shifted upon the accused Anil Dhawan to explain under which circumstances he had filled up the said forms/applications and signed in the name of applicants. But during trial, he failed to discharge the said burden. In the absence of any contrary evidence on record, this Court has no hesitation to draw the conclusion that accused Anil Dhawan had not only filled up the said forms/applications knowingly well that the persons whose photographs are affixed on the said forms/applications were not Ms. Rekha Khanna in whose name the said forms/applications had been filled up, but he also signed in the name of applicants in all the files, thus accused Anil Dhawan is liable for the offence punishable under Section 420 IPC as he dishonestly induced the office of RPO to believe that the persons whose photographs are affixed on the said forms/applications were Rekha Khanna and induced RPO to issue additional passport booklets as prayed in said forms/applications.
27. As already discussed that accused Anil Dhawan had signed in the name of Rekha Khanna at the time of applying for additional passport booklets in file Ex.PW1/A, Ex.PW1/B and Ex.PW1/C, thus he had committed forgery as defined under Section CBI No. 09/12 Page 49 of 130 State through CBI v. Bibianus Toppo & Ors.
463 IPC as did so with an intention to support his claim that the said forms were signed by the applicant Rekha Khanna with an intention to commit fraud with RPO, New Delhi by signing additional passport in the name of Rekha Khanna.
28. Since, accused Anil Dhawan had also used the said forms in order to obtain additional passport booklets in the name of Rekha Khanna, he is also liable for the offence punishable under Section 471 IPC.
29. Since, it has been established that accused Anil Dhawan also collected two additional passport booklets by signing in the name of Rekha Khanna, it means that he represented himself as Rekha Khanna at the time of obtaining additional passport booklets, thus, he is also liable for the offence punishable under Section 419 IPC.
30. Since, accused Anil Dhawan had filled up the passport application registration forms and forms for miscellaneous services in the name of Rekha Khanna with different photographs and he also signed on the said forms. Furthermore, he failed to furnish any reasonable explanation under which circumstances, he had filled up the said forms/applications in the name of same person with different photographs and signed the said forms in the name of applicants, thus his above act are sufficient to draw a conclusion that he had furnished false information qua applicants knowingly or having reasons to believe that the persons whose photographs are affixed on the said forms/applications were not Rekha Khanna, thus facilitated the said persons in obtaining the passport from RPO by furnishing false CBI No. 09/12 Page 50 of 130 State through CBI v. Bibianus Toppo & Ors.
information, thus accused Anil Dhawan is also liable for the offence punishable under Section 12 (1) (b) of Passport Act.
Contention relating to G.D. Joshi (A5):-
31. Ms. Shashi Vishwakarm, learned Public Prosecutor for CBI submitted that the role of accused G.D. Joshi (A5) and R.S. Rawat (A6) (since deceased) was that they had supplied/delivered the additional passport booklets to A8 without any authority. However, prosecution fairly conceded that there is no specific cogent evidence against either of them, but swiftly added that there are evidence on record to establish that the official who used to deal with the applications for additional passport booklets, also used to deliver the said additional passport booklets to the applicants in post lunch session. It was argued that since, G.D. Joshi had dealt with the application in respect of additional passport booklets bearing No. E-6331150 and E-7495556, it can safely be presumed that he had delivered the said booklets to A8 unauthorisedly. It was further contended that the said fact is also corroborated from the computer process sheet Ex.PW7/A and Ex.PW7/B.
32. On the converse, Sh. Mrityunjay Singh, Advocate, counsel appearing for A5 refuted the said contentions and sagaciously contended that there is no iota of admissible evidence to bring home the guilt of accused beyond the shadow of all reasonable doubts. It was contended that prosecution case is based on the assumption and presumption. It was astutely argued that prosecution has set up a case against A5 that since A5 had registered the application form qua CBI No. 09/12 Page 51 of 130 State through CBI v. Bibianus Toppo & Ors.
additional passport booklet bearing No. E-6331150 and E-7495556 on September 02, 2003 and January 28, 2004 respectively, he must have delivered the same and this fact is also corroborated from the computer process sheet Ex.PW7/A and Ex.PW7/B. But it was sagaciously argued that no reliance can be placed on the version of prosecution. It was contended that PW10 and PW13 in their cross-examination categorically deposed that no specific official was deputed to deliver the passport booklets. They further testified that passport could be delivered by any official of RPO, New Delhi.
(i) It was further perspicaciously contended that as per the duty roaster Ex.PW7/A, G.D. Joshi had registered the application qua passport booklet bearing No. E-6331150 on September 02, 2003 whereas the said passport was prepared only on September 04, 2003. Similarly, as per Ex.PW7/B, A5 had registered the application qua additional passport booklet bearing No. E-7495556 on January 28, 2004 whereas passport was prepared only on January 29, 2004. Thus, no reliance can be placed on the submission of learned Public Prosecutor that the official who used to register the application in pre lunch session, also used to deliver passport booklets in post lunch session.
Findings qua G.D. Joshi (A5):-
33. CBI has set up a case against A5 that he had delivered the additional passport booklets bearing No. E-6331150 and E-7495556 whereas third additional passport i.e. bearing No. E-8582541 was delivered by R.S. Rawat (A6) (since deceased). As per the charge-
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sheet, second and third passport booklets were delivered by A5 and A6 to A8, but during investigation, CBI failed to find out to whom the delivery of first additional passport booklet was given.
34. In order to prove the culpability of A5, prosecution has placed reliance on the deposition of PW10 S.P. Kothari and PW13 Raj Singh. Besides that the testimony of PW24 A.K. Tripathi, investigating officer of the case is also relevant.
(i) PW10 in his cross-examination deposed that there is no designated post in the office of RPO, New Delhi to deliver the passport, but he swiftly added that the passport was used to be delivered by the official to whom such duty was assigned and further clarified that there is no prescribed rank of the officer, who could be deputed for such duty. He further testified that there was no written guidelines about the manner of delivery of passport. He further categorically deposed that the record of the duty assigned to the particular official for delivery of passport was being maintained in the office. He further clarified that it is not always necessary that the official to whom duty to deliver the passport is assigned for one day may remain posted in the same capacity for the next day unless there is such direction. He further clarified that it was a team work, thus any official of the team could be assigned the duty of delivery of the passport. He further deposed that there is no document in the file, which may show that the concerned passport/additional passport booklet was delivered either by A5 or A6 to anyone. The testimony of PW10 is fully corroborated by PW13 Raj Singh, who was working as Assistant in the RPO, New Delhi in the year 1994 and thereafter he was promoted as Superintendent in the year CBI No. 09/12 Page 53 of 130 State through CBI v. Bibianus Toppo & Ors.
2005.
(ii) Though there is a contradiction between the testimony of PW10 and PW13 as PW13 deposed that no record was being maintained in the RPO, New Delhi to show that which particular official was deputed on a particular day to deliver the passport whereas PW10 deposed that record of the duty assigned to particular official for delivery of passport was being maintained in the office. But the said contradiction is not helpful to the prosecution in any manner because both the witnesses categorically deposed that there is nothing on record, which may show that the above said additional passport booklets were delivered either by A5 or A6.
35. Now coming to the computer process sheet Ex.PW7/A and Ex.PW7/B.
36. As per Ex.PW7/A, Mr. G.D. Joshi had registered the application in respect of additional passport booklet bearing No. E-6331150 on September 02, 2003 whereas he registered the application in respect of additional passport booklet bearing No. E-7495556 on January 28, 2004. As per the said documents, first additional passport was prepared on September 04, 2003 whereas second additional passport booklet was prepared on January 29, 2004. It means that in both the cases, additional passport booklets were not ready for delivery when G.D. Joshi had registered the application in respect of the said additional passport booklets. Thus, no reliance can be placed on the contention of learned Public Prosecutor that the official, who used to register the application in pre lunch session, also CBI No. 09/12 Page 54 of 130 State through CBI v. Bibianus Toppo & Ors.
used to deliver the prepared additional passport booklets in post lunch sessions. Even, there is no evidence on record to prove the fact that G.D. Joshi was on duty on September 04, 2003 and January 29, 2004 when the above additional passport were prepared. In these circumstances, the above said documents are not helpful to the prosecution to prove the fact that the said passports were delivered by the accused G.D. Joshi (A5).
37. Now coming to the testimony of PW24 A.K. Tripathi, investigating officer of the case.
(i) In his cross-examination, when a specific question was asked from him who told him that the said additional passport booklets were delivered by A5 and A6. PW24 deposed that he did not remember, but it was told by the officials of RPO, New Delhi. If this fact was told to him by any official of RPO, New Delhi, it was the duty of investigating officer to record his statement, but no such official was produced in the witness box during trial.
(ii) PW24 further deposed that as per his recollection, registration of the application was used to be done in pre lunch session whereas delivery of the passport used to be made in the afternoon. But from the documents Ex.PW7/A and Ex.PW7/B, it is clear that the passport were not delivered on the same day. Further, PW24 deposed that he had not enquired the situation who would deliver the passport, if an official who was deputed for registration of the passport application proceeded on leave in post lunch session. He further deposed that he did not remember if there was any document on record to show that A5 CBI No. 09/12 Page 55 of 130 State through CBI v. Bibianus Toppo & Ors.
or A6 had delivered the passport in this case. He further deposed that he did not recollect whether he came across any document or circular, which mandates that same official who has done registration of passport application was supposed to deliver the prepared passport in post lunch session. He further deposed that he did not know whether there was any designated post in the RPO for delivery of passports. He also admitted that in the duty chart, the name of official who delivered the passport is not mentioned, but swiftly added that there was no such column. The testimony of PW24 is sufficient to cull out that he had not conducted the investigation diligently in order to find out who was deputed to deliver the additional passport booklets in question.
38. I have seen the passport delivery register. It is shocking to know that there is nothing in the said register, which may suggest who was maintaining the said register. No official used to sign in the said register. All entries made in the register appeared to be made by the persons who collected their respective passports. Even during investigation, no sincere efforts were made to know who was on duty on that particular day when the said additional passport booklets were allegedly delivered.
39. From the ongoing discussion, it becomes crystal clear that there is no iota of admissible evidence against accused Mr. G. D. Joshi (A5), hence I am of the opinion that CBI has miserably failed to prove the culpability of accused Mr. G. D. Joshi, accordingly, I hereby acquit him from all the charges.
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Contentions relating to Sushma Bajaj (A4):-
40. Learned Public Prosecutor appearing for CBI sagaciously contended that A4 was working as Assistant in RPO and at the relevant time, she was posted in HIT section. It was argued that on September 04, 2003, A4 had cleared HIT without pointing out about the issuance of earlier passport in the same name. It was further contended that in HIT section, there was a facility in the computer of A4 to check the photograph and signature of the passport holder and in case of any dissimilarity, it was her duty to point out the same. It was urged that since A4 was in conspiracy with the applicant and other accused persons, she did not raise any such objection despite the fact that the photograph of the applicant was totally different from the photograph of the original passport holder. Similarly, there was substantial difference in the signature of applicant as well as the passport holder.
41. Per contra, learned counsel appearing for A4 refuted the said contentions by arguing that the P-number, password of A4 was misused by some unscrupulous official and in this regard, she had made several complaints to her seniors, but no action was taken on her complaint. It was further contended that there is no iota of admissible evidence that the facility of checking photograph and signature was available in the computer of A4.
Findings qua Sushma Bajaj (A4):-
42. As per Ex.PW7/A, it is admitted case of CBI that A4 cleared HIT in respect of first additional passport bearing No. CBI No. 09/12 Page 57 of 130 State through CBI v. Bibianus Toppo & Ors.
E-6331150 on September 04, 2003.
43. Now question arises as to whether there is any evidence on record to show that the facility of checking of photograph and signature was available in the computer of A4 at that time or not?
44. In this regard, the testimony of PW18 Ajai Gautam is quite relevant. Ajai Gautam was deputed in RPO, New Delhi from NIC and he was responsible for maintenance of computer installed in RPO, New Delhi. In his examination-in-chief, he categorically deposed that HIT checking system without photograph was started in the RPO since 2000 and HIT checking system with photograph and signature was started in the RPO, New Delhi in August, 2002, but only in one PC. He further clarified that since April, 2004, in all the computers of HIT, facility of checking with photograph and signature was provided. He further deposed that at the relevant time, only 20-25 computers were installed in RPO whereas about 100 dump terminals were installed in RPO, New Delhi. It means that generally dump terminals were provided to officials to do their job. There is nothing on record, which may show whether dump terminal was provided to A4 or any PC was provided. Admittedly, there is no cogent evidence on record to establish that any PC was provided to A4 when she was posted in HIT section.
45. As per the testimony of PW18, facility of checking HIT with photograph and signature was started in RPO initially in August, 2002, but it was provided only in one PC. Since, there is no evidence on record that any PC was provided to A4, it means that prosecution has failed to establish that A4 had facility to check photograph and signature CBI No. 09/12 Page 58 of 130 State through CBI v. Bibianus Toppo & Ors.
while clearing HIT in respect of the file in question.
46. No doubt, PW18 also deposed that since April, 2004, facility of checking photograph and signature was provided on all the computers installed in HIT section. It means that since April, 2004, officials posted at HIT section were in a position to compare the photograph of the present applicant with the previous passport holder and they were also able to compare their signatures. But the said facility was available since April, 2004 and not prior to that.
47. It is admitted case of the prosecution that A4 had cleared HIT in respect of first additional passport booklet bearing No. E-6331150 on September 04, 2003. In view of the testimony of PW18, no facility was available in the computer provided to A4. In these circumstances, prosecution has failed to establish that A4 had any facility to compare photograph and signature of the applicant with the photograph and signature of the original passport holder. It is admitted case of prosecution that the other particulars of the applicant were similar to the particulars of the original passport such as name, fathers name and address. In these circumstances, it is seldom to believe that A4 had deliberately not raised any objection as argued by learned Public Prosecutor.
48. During trial, CBI has failed to produce any other cogent evidence to prove the culpability of A4.
49. In view of the aforesaid discussion, I am of the considered opinion that prosecution has failed to bring home the guilt of A4 beyond CBI No. 09/12 Page 59 of 130 State through CBI v. Bibianus Toppo & Ors.
the shadow of all reasonable doubts, thus I hereby acquit Sushma Bajaj (A4) from all the charges.
Common Contentions:-
50. Before dealing with the contentions raised by counsel for A1, A2 and A3, I prefer to deal with some common contentions raised by the counsels for A1 to A3.
51. Learned counsel appearing for the accused persons vehemently contended that since the passport is not a valuable document, the above accused persons cannot be held guilty for the offence punishable under Section 13 (2) of PC Act.
52. To deal with the said contention, I deem it appropriate to refer to some of the provisions of Passport Act to ascertain the importance of passport. 'Passport' is defined in Section 2 (b) and 'travel document' is defined under Section 2 (e) of Passport Act and same read as under:-
Section 2 (b) : "passport" means a passport issued or deemed to have been issued under this Act.
Section 2 (e) : "travel documents" means a travel document issued or deemed to have been issued under this Act.
(i) Significance of 'passport' and 'travel document' is described in Section 3 which reads as under:-CBI No. 09/12 Page 60 of 130
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Section 3 : Passport or travel document for departure from India - No person shall depart from, or attempt to depart from India, unless he holds in this behalf a valid passport or travel document.
Explanation - For the purposes of this section -
(a) "passport" includes a passport which having been issued by or under the authority of the Government of a foreign country satisfies the conditions prescribed under the Passport (Entry into India) Act, 1920 (34 of 1920), in respect of the class of passports to which it belongs;
(b) "travel document" includes a travel document which having been issued by or under the authority of Government of a foreign country satisfies the conditions prescribed.
(emphasis supplied)
(ii) From the combined reading of Section 2(b), 2(e) and 3 of the Passport Act, it becomes crystal clear that no person can depart from the territory of India unless he holds a valid passport or travel document issued by the Passport Authority. In other words, passport creates a legal right in favour of a person to depart from the territory of India. Besides that, passport is also a valid document to prove the nationality of a person. It is also a valid document for the identity of a person.
53. Though there is a reference of "valuable thing" in Section 13 (1) (d), yet "valuable thing" is not defined in PC Act.
(i) Question arises whether passport can be considered as "valuable thing" or not?
CBI No. 09/12 Page 61 of 130State through CBI v. Bibianus Toppo & Ors.
(ii) Though "valuable security" is defined under Section 30 of IPC, but Penal Code is also silent qua "valuable thing". Section 30 reads as under:-
Section 30 "Valuable security" - The words "valuable security" denote a document which is, or purports to be, a document whereby any legal right is created, extended, transferred, restricted, extinguished or released, or whereby any person acknowledges that he lies under legal liability, or has not a certain legal right.
(emphasis supplied)
(iii) Bare perusal of the Section 30 of IPC makes it clear that if a document either creates, extends, transfers, restricts, extinguishes or releases any legal right in favour of any person OR where any person acknowledges any legal liability OR acknowledges that he has no certain legal right, such document shall be called as "valuable security".
(iv) As evident from the provisions of Passport Act that passport authorizes a person to travel beyond the territory of India, thus, passport creates a legal right in favour of its holder to visit abroad subject to fulfillment of other requirements such as visa etc. but no person can depart beyond the territory of India unless he holds a valid passport or travel document. Thus, to my mind, passport is a valuable security.
(v) It can also be said that the "valuable security" is one of the species of "valuable things". All "valuable securities" may be "valuable things" but may not be vice-versa. However, in view of the provisions of Passport Act, it can be safely culled out that passport is a "valuable CBI No. 09/12 Page 62 of 130 State through CBI v. Bibianus Toppo & Ors.
thing".
54. Learned counsel appearing for the accused persons also vigorously argued that the accused persons had acted in good faith, thus if they committed any mistake in discharging of their official duties, they cannot be held liable for the penal offences.
55. 'Good Faith' is defined under Section 52 of IPC, which reads as under:-
"Nothing is said to be done or believed in "good faith", which is done or believed without due care or attention."
(i) Thus, before taking the plea of good faith, the person who takes such plea has to show by producing relevant material/evidence on record that he had taken due care and attention. The question whether the above accused persons had taken any such care and attention at the time of dealing with the file in question shall be discussed while discussing their role.
56. Learned counsel appearing for the accused persons vehemently contended that no reliance can be placed on the certificate Ex.PW18/C issued under Section 65B of Indian Evidence Act as PW18 was not competent to issue the said certificate.
57. PW18 Sh. Ajai Gautam in his examination-in-chief deposed that he is an officer of National Informative Centre (NIC) and he was on deputation to RPO, New Delhi and his duty was to maintain CBI No. 09/12 Page 63 of 130 State through CBI v. Bibianus Toppo & Ors.
computers installed in the office of RPO and to render technical support to RPO officials. He further deposed that at that time only 20-25 computers, 100 dump terminals, 4 scanners, 4 servers and 20 printers were installed in the office of RPO. Since, 100 dump terminals were installed in the office of RPO, it means that the data fed by officials while performing their duties on such terminals used to be stored directly on the server because in dump terminals there used to be neither any hard disk nor RAM. He further deposed that the documents Ex.PW7/A to Ex.PW7/C and Ex.PW24/G were generated by him at the instructions of Superintendent Administration, RPO and he also issued certificate under Section 65 B of Evidence Act certifying that he had generated the said documents and the same were true and correct and the computer system was properly working from which the said documents were generated and the record was not tempered with. Since, PW18 Sh. Ajai Gautam was deputed at the office of RPO from NIC and his duty was to maintain computers and to provide necessary technical support to RPO officials, thus, PW18 Sh. Ajai Gautam was competent person for the maintenance of computers/servers installed at the office of RPO. It means that he was one of the competent persons to certify that the data was not tempered with and the system from which the above documents were generated was working properly. There is nothing on record which may suggest that the dump terminals or the computers from which the officials of RPO used to feed information as mentioned in the aforesaid documents were not working properly or that the server was not working properly at the relevant time. In these circumstances, there is no reason to disbelieve PW18 Sh. Ajai Gautam, who is an independent person, when he deposed that the computer system was working properly at the relevant time. Thus, to my CBI No. 09/12 Page 64 of 130 State through CBI v. Bibianus Toppo & Ors.
mind the above documents are admissible in evidence and I do not find any infirmity or illegality in the certificate under Section 65B of Indian Evidence Act.
58. Learned counsel appearing for the accused persons also assailed the prosecution case on the ground that there is no evidence to prove the guilt of accused persons for the offence punishable under Section 13 (2) of PC Act. It was further argued that accused persons have been charged for the offence under Section 13 (1) (d) of PC Act, for which dishonest intent is an essential ingredient, but prosecution failed to adduce any evidence to prove that the accused persons had any dishonest intent when they dealt with the files in question.
59. From the submissions advanced by counsel for the parties, short but interesting question emerges whether 'criminal intent' or 'dishonest intention' is pre-requisite ingredient for the offence punishable under Section 13 (2) read with Section 13 (1) (d) of PC Act or not?
(i) Section 13(1) (d) of Prevention of Corruption Act is in following three parts:-
(i) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage; or
(ii) by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary CBI No. 09/12 Page 65 of 130 State through CBI v. Bibianus Toppo & Ors.
advantage; or
(iii) while holding office as a public
servant, obtains for any person any valuable thing or pecuniary advantage without any public interest;
(emphasis supplied)
(ii) Bare perusal of clause (i) and (ii), it becomes clear that dishonest intention is an essential ingredient as held by the Apex Court in C. K. Jaffer Sharief v/s. State, 2012 (11) SCALE 71 and S. K. Kale v/s. State of Maharashtra, AIR 1977 SC 822. But there is nothing in the said judgements, which may show that mens-rea is also an essential ingredient for the offence under clause (iii) of Section 13 (1)(d) of Prevention of Corruption Act, 1988. This issue was raised before the High Court of Delhi in Runu Ghosh v/s. CBI decided by the High Court of Delhi in Criminal Appeal No. 482 of 2002 on December 21, 2011. The relevant portions of the judgement are reproduced as under:-
70. There is no doubt that Section 13 (1) (d) (iii) differs from other parts of the Act, not only in structure, but also in substance. The use of terms such as habitually accepts agrees to accept attempts consideration which he knows to be inadequate dishonestly or fraudulently misappropriates. (property entrusted to him or allows any other person so to do); corrupt or illegal abusing his position are clear pointers to Parliamentary intention that mens rea is essential to be proved in relation to the offences provided for under Section 13 (1) (a) to (d) (i) and (ii). Section 13 (1) (d) (iii) contains no such words, which point to criminal intent. There is substance in the Appellants arguments that the Supreme Court had previously interpreted Section 5 (1) (d) so as to mean the existence of CBI No. 09/12 Page 66 of 130 State through CBI v. Bibianus Toppo & Ors.
criminal motive (dishonest intent). This was stated in Narayanan Nambyar's case (supra) as follows:
The gist of the offence under this clause is, that a public officer abusing his position as a public servant obtains for himself or for any other person any valuable thing or pecuniary advantage. Abuse means misuse i.e. using his position for something for which it is not intended. That abuse may be by corrupt or illegal means or otherwise than those means. The word otherwise has wide connotation and if no limitation is placed on it, the words corrupt, illegal, and otherwise mentioned in the clause become surplus age, for on that construction every abuse of position is gathered by the clause. So some limitation will have to be put on that word and that limitation is that it takes colour from the preceding words along with which it appears in the clause, that is to say something savouring of dishonest act on his part.... Similarly, the other cases cited, i.e. S.P. Bhatnagar (whether the accused abused their position and acted dishonestly or with a corrupt or oblique motive) Abdulla Mohammed (supra); A. Wati Ao; C.K. Damodaran Nair; M. Mohiuddin and R. Balakrishna Pillai (supra) support this view. In the last decision, it was held that the offence requires intention, and the offence comprehended an element of mental state would be necessary to do a conscious act to get the required result of pecuniary advantage or to obtain any valuable thing, even if it is for someone else.
71. The question is, whether this setting compels the court to hold that mens rea is, like the other provisions, a necessary pre-requisite or pre-condition which the prosecution has to establish, from the conduct of a public servant. It would also be relevant here to mention that Section 13 (1) (e) appears to be in line with Section 13 (1) (d) (iii) in as much as there is no CBI No. 09/12 Page 67 of 130 State through CBI v. Bibianus Toppo & Ors.
pointer to criminal intent. That provision declares that a public servant in possession of pecuniary resources or property which he cannot satisfactorily account, or which are disproportionate to his known sources of income is guilty of criminal misconduct. Here, the sources of income may or may not be connected with the public servants duties; the emphasis is on inability to satisfactorily account, or that the wealth or assets held are disproportionate to the servants known sources of income. If the ingredients of the provision are satisfied, it is not necessary to prove mens rea. Section 13 (1) (e) enacts that a public servant is guilty of criminal misconduct:
(e) if he or any person on his behalf, is in possession or has, at any time during the period of his office, been in possession for which the public servant cannot satisfactorily account, of pecuniary resources or property disproportionate to his known sources of income.
The ingredients which the prosecution has to prove in relation to this offence, (which is in pari materia with Section 5 (1) (e) of the 1947 Act, were spelt out in M. Krishna Reddy v State Deputy Superintendent of Police 1992 (4) SCC 45 as follows:
To substantiate a charge under Section 5(1)(e) of the Act, the prosecution must prove the following ingredients, namely, (1) the prosecution must establish that the accused is a public servant, (2) the nature and extent of the pecuniary resources or property which were found in his possession (3) it must be proved as to what were his known sources of income, i.e. known to the prosecution and (4) it must prove, quite objectively, that such resources or property found in possession of the accused were disproportionate to his known sources of income... It is clear therefore, that mens rea or CBI No. 09/12 Page 68 of 130 State through CBI v. Bibianus Toppo & Ors.
criminal intent does not have to be proved in the case of a charge under Section 13 (1) (e); it is enough for the prosecution to establish the four ingredients of the offence. As noticed earlier, the setting of this provision too needs to be taken into account, along with the legislative history (of Section 5 of the earlier Act, with its amendments, and the new Section 13 (1) (d) re-cast in a totally different manner) -it appears immediately after another offence of criminal misconduct (Section 13 (1) (d) (iii)) that does not textually allude to or require intent, or mens rea.
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24.The distinction between a strict construction and a more free one has disappeared in modern times and now mostly the question is what is true construction of the statute? A passage in Craies on Statute Law, 7th Edn. reads to the following effect:
The distinction between a strict and a liberal construction has almost disappeared with regard to all classes of statutes, so that all statutes, whether penal or not, are now construed by substantially the same rules. ... They are construed now with reference to the true meaning and real intention of the legislature. At p. 532 of the same book, observations of Sedgwick are quoted as under:
The more correct version of the doctrine appears to be that statutes of this class are to be fairly construed and faithfully applied according to the intent of the legislature, without unwarrantable severity on the one hand or unjustifiable lenity on the other, in cases of doubt the courts inclining to mercy CBI No. 09/12 Page 69 of 130 State through CBI v. Bibianus Toppo & Ors.
73. Having regard to the previous history of the statute, the amendments to the 1947 Act, its avowed objects and the distinctive structure which Parliament adopted consciously, under the 1988 Act, despite being aware of the pre-existing law, as well as the decisions of the Court- the conclusion which this Court draws is that mens rea is inessential to convict an accused for the offence under Section 13 (1) (d) (iii). It would be sufficient if the prosecution proves that the public servant "obtains" by his act, pecuniary advantage or valuable thing, to another, without public interest. The inclusion of public interest, in the opinion of the Court, tips the scale in favour of a construction which does not require proof of mens rea. There can be many acts of a public servant, which result in pecuniary advantage, or obtaining of a valuable thing to someone else;
typically these may relate to payment of royalty, grant of license or concessions, issuance of permits, authorizations, etc. Yet, such grants, concessions, or other forms of advantages to third parties would not criminalize the public servants actions, so long as they have an element of public interest. They (acts of the public servant) are outlawed, and become punishable, if they are "without public interest".
74. Having now settled the true interpretation of whether the offence under Section 13 (1) (d) (iii) requires proof of mens rea, it would now be vital to settle what really the prosecution would have to establish to say that the public servants actions or decisions, which result in a third party obtaining a pecuniary advantage or valuable thing, without public interest. The expression "public interest" is known to law; at the same time its meaning is not rigid, and takes colour from the particular statute or policy (Ref.
Srinivasa Co-operative House Building Society v Madam Gurumurthy Sastry 1994 (4) SCC 675).
It might be useful to consider the following formulation of what is public interest, in relation to actions by public officials or agencies or instrumentalities of state, in every sphere of CBI No. 09/12 Page 70 of 130 State through CBI v. Bibianus Toppo & Ors.
government functioning, given in Shrilekha Vidyarthi (Kumari) v. State of U.P., (1991) 1 SCC 212:
There is an obvious difference in the contracts between private parties and contracts to which the State is a party. Private parties are concerned only with their personal interest whereas the State while exercising its powers and discharging its functions, acts indubitably, as is expected of it, for public good and in public interest. The impact of every State action is also on public interest. This factor alone is sufficient to import at least the minimal requirements of public law obligations and impress with this character the contracts made by the State or its instrumentality. It is a different matter that the scope of judicial review in respect of disputes falling within the domain of contractual obligations may be more limited and in doubtful cases the parties may be relegated to adjudication of their rights by resort to remedies provided for adjudication of purely contractual disputes...To this extent, the obligation is of a public character invariably in every case irrespective of there being any other right or obligation in addition thereto. An additional contractual obligation cannot divest the claimant of the guarantee under Article 14 of non- arbitrariness at the hands of the State in any of its actions. In a later decision, LIC of India v. Consumer Education & Research Centre, (1995) 5 SCC 482, it was held that:
Public authorities or those whose acts bear insignia of public element, action to public duty or obligation are enjoined to act in a manner i.e. fair, just and equitable, after taking objectively all the relevant options into consideration and in a manner that is reasonable, relevant and germane to effectuate the purpose for public good and in general public interest and it must not take any irrelevant or irrational factors into consideration or appear arbitrary in its decision.CBI No. 09/12 Page 71 of 130
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A recent judgment, has examined the concept, in NOIDA Entrepreneurs Association v. NOIDA, (2011) 6 SCC 508, in the light of provisions of Section 13 (1) (d), though the context of the courts' judgment were directions issued to investigate into action of public servants.
The court held that:
The State or the public authority which holds the property for the public or which has been assigned the duty of grant of largesse, etc. acts as a trustee and, therefore, has to act fairly and reasonably. Every holder of a public office by virtue of which he acts on behalf of the State or public body is ultimately accountable to the people in whom the sovereignty vests. As such, all powers so vested in him are meant to be exercised for public good and promoting the public interest. Every holder of a public office is a trustee.
xxxxxxxxxxxx xxxxxxxxxxxx
41. Power vested by the State in a public authority should be viewed as a trust coupled with duty to be exercised in larger public and social interest. Power is to be exercised strictly adhering to the statutory provisions and fact situation of a case. Public authorities cannot play fast and loose with the powers vested in them. A decision taken in an arbitrary manner contradicts the principle of legitimate expectation. An authority is under a legal obligation to exercise the power reasonably and in good faith to effectuate the purpose for which power stood conferred.
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77. The court, as a consequence has to determine the objective criteria by which acts (of public servants) without public interest, are to be judged, if mens rea (to obtain pecuniary advantage or valuable thing to another) is not a necessary ingredient. This exercise is essential because in the absence of mens rea (which has been ruled out) the court has to say what "acts"
resulting in someone obtaining pecuniary advantage or valuable thing are "without public interest". Obviously the mere fact that a third party obtains pecuniary advantage, or a valuable thing, is insufficient; a supplier of equipment to public servants or offices, a travel agent who makes bookings for a public agency, a businessman or corporate group granted licenses or clearances, by departments or agencies of the Government, would all stand to benefit. Many of these decisions are in fact, and all are, expected to be in public interest.
Therefore, the kind of behaviour which amounts to an "act" resulting in someone "obtaining pecuniary advantage" or "valuable thing"
"without public interest" needs to be spelt out.
78. In a previous part of this judgment, what constitutes "public interest" and the trust element, which informs every decision of a public servant or agency, was discussed and emphasized. The State in its myriad functions enters into contracts, of various kinds, involves itself in regulation, awards or grants largesse, and holds property. Each action of the State must further the social or economic goals sought to be achieved by the policy. Therefore, when a public servants decision exhibits complete and manifest disregard to public interest with the corresponding result of a third party obtaining pecuniary advantage or valuable thing, he is fastened with responsibility for "criminal misconduct" under Section 13 (1) (d) (iii). There CBI No. 09/12 Page 73 of 130 State through CBI v. Bibianus Toppo & Ors.
is nothing reprehensible in this interpretation, because the "act" being "without public interest"
is the key, the controlling expression, to this offence. If one contrasts this with "abuse" of office resulting in someone "obtaining"
"pecuniary advantage or valuable thing", it is evident that Section 13 (1)(d) (ii) may or may not entail the act being without public interest. This offence- under Section 13 (1) (d) (iii) advisedly does not require proof of intent, or mens rea, because what Parliament intended was to punish public servants for acts which were without public interest. This kind of offence is similar to those intended to deal with other social evils, such as food and drug adulteration, (offences under Prevention of Food Adulteration Act, Section 13 (1), Drugs and Cosmetics Act; Section 7 (1) Essential Commodities Act, 1955, Section 25, Arms Act, 1959), possession of explosives, air and water pollution, etc.
79. What then is the behaviour or act which attracts such opprobrium as to result in criminal responsibility? It is not every act which results in loss of public interest, or that is contrary to public interest, that is a prosecutable offence. There can be no doubt that all acts prejudicial to public interest, can be the subject matter of judicial review. In those cases, courts consider whether the decision maker transgressed the zone of reasonableness, or breached the law, in his action. However, it is only those acts done with complete and manifest disregard to the norms, and manifestly injurious to public interest, which were avoidable, but for the public servants overlooking or disregarding precautions and not heeding the safeguards he or she was expected to, and which result in pecuniary advantage to another that are prosecutable under Section 13(1) (d) (iii). In other words, if the public servant is able to show that he followed all the safeguards, and exercised all reasonable precautions having regard to the circumstances, despite which there was loss of public interest, he would not be guilty of the offence. The CBI No. 09/12 Page 74 of 130 State through CBI v. Bibianus Toppo & Ors.
provision aims at ensuring efficiency, and responsible behaviour, as much as it seeks to outlaw irresponsibility in public servants functioning which would otherwise go unpunished. The blameworthiness for a completely indefensible act of a public servant, is to be of such degree that it is something that no reasonable man would have done, if he were placed in that position, having regard to all the circumstances. It is not merely a case of making a wrong choice; the decision should be one such as no one would have taken.
(emphasis supplied)
(iii) From the above judgement, it becomes crystal clear that mens-rea is not required for the offence under Section 13(1) (d) (iii) of the Prevention of Corruption Act. Prosecution is required only to prove that public servant while holding the office obtains for any person any valuable thing or pecuniary advantage without any public interest.
60. Now question arises whether accused persons had acted in public interest or not. It will be discussed in detail in later part of the judgment.
61. During the course of arguments, counsel for accused persons also referred to various circulars issued by Ministry of External Affairs to press their contentions that the procedure for issuance of additional passport booklets was substantially liberalized by the Govt. of India, thus I deem it appropriate to refer the said circulars. First circular in this regard is reproduced as under:-
CBI No. 09/12 Page 75 of 130State through CBI v. Bibianus Toppo & Ors.
Ministry of External Affairs
(CPV Division)
No. V.1/401/190 24.6.97
CIRCULAR
With the introduction of MSP/MRP passport
booklets, the personal particulars of the holder are entered in the inner portion of front and back cover of the passport booklet. It is no longer feasible to attach or seal the additional booklet to the previous old passport.
2. It has, therefore, been decided henceforth that while issuing additional booklet the practice of attaching and sealing the same with the old passport should be discontinued with immediate effect. The old passport should be cancelled and returned to the holder and suitable endorsement regarding old passport made in the new additional booklet. The validity of the additional booklet should be in continuation to the old passport of the holder.
3. In case second additional booklet is issued to the holder, the endorsement in the second additional booklet should carry the details of original passport and first additional booklet so that when asked by the appropriate authority, the holder should produce the same.
(Riva G. Das) Deputy Secretary (PV-I) All PIAs in India & Abroad CBI No. 09/12 Page 76 of 130 State through CBI v. Bibianus Toppo & Ors.
(i) The said circular was modified by issuing another circular dated November 25, 1997 wherein it was directed that instead of cancelling the original passport having valid visa, to put a stamp across the first three pages of the used booklet. The relevant portion of said circular reads as under:-
2. In view of the feedback received from our missions abroad, it has been decided to review the earlier decision. Instead of cancelling the original passport having valid visa, it has been decided to put a stamp across the first three pages of the used up booklet which would reads as " extended by the issue of a fresh booklet'
3. In the additional booklet, observation would read as:
"Holder has previously travelled on passport No. ........ dated........ issued at ........ which holds valid visas." (the details of the original passport may be included here, where there is a change of name, earlier name may be given).
4. This will be implemented with effect from December 15, 1997, in Missions abroad and with effect from December 1, 1997, in Passport Offices. In case of a subsequent passport booklet, details of the original passport as well as the previous additional booklet may be given.
6. Kindly confirm receipt.
(ii) Vide circular dated March 6, 2002 (Ex. PW10/DD) the condition of fresh police verification qua additional passport booklet and CBI No. 09/12 Page 77 of 130 State through CBI v. Bibianus Toppo & Ors.
miscellaneous services was dispensed with. The relevant para are para 3 and 4, which read as under:-
3. Regrettably, we are noticing a reluctance among the PIAs to imbibe the spirit of the various people-friendly reforms being introduced by the Ministry. There is need to shake-off old and fossilised thinking and adopt a dynamic, creative and positive approach. For instance, now that the requirement of fresh police verification has been dispensed with for re-issue cases and additional booklets, there is no reason why these services cannot be provided within 3-4 working days when the original passport was issued from the same Passport Office.
4.Please discuss the possibilities with your PIAs and staff and send your report as to what steps have you taken to ensure that the fruits of the reforms reach the general public. I expect your reply by March 15, 2002.
(iii) Vide circular dated May 26, 2003 (Ex.PW10/DC), charges for Tatkal services was dispensed with and it was directed to provide miscellaneous services within maximum 3-5 days without charging any additional fee. The relevant portion of the circular reads as under:-
As it has been decided to render all miscellaneous services on the same day or maximum within 3-5 days, Ministry has decided not to charge any additional fee for rendering miscellaneous services under the tatkal scheme and has therefore deleted sl. no. 23 of the Schedule IV of the Passport Rules, 1980, originally numbered as 35 in Gazette Notification dated 22.05.2000, which had been renumbered as 23 in Gazette Notification dated 28.03.02 at the time of revision of Passport fee last year.CBI No. 09/12 Page 78 of 130
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2. It is therefore reiterated that all miscellaneous services should be provided on the same day or maximum within 3-5 days, without charging any additional fee under the tatkal scheme.
3. A revised Gazette Notification dated 23.05.2003 issued by the Ministry to this effect is enclosed.
(iv) Vide circular dated April 29, 2004 (Ex. PW10/DB) all PIAs were authorised to issue additional passport booklets irrespective of the fact whether they had issued original passport or not subject to the clearance of Index/PAC/ check within 3-5 days preferably on same day without charging additional fee. The relevant portion is reproduced as under:-
"In order to avoid any recurrence of such instances in future, which causes undue harassment to the applicants, it has, therefore, been decided to reiterate Ministry's instructions on issue of additional booklet that any PIA in India or abroad shall issue additional booklet to the applicants, irrespective of place of original issue of passport and their residential address, subject to index/PAC check within 3-5 days, preferably same day, without charging any additional fee as specified earlier under the Tatkal scheme, since the same has been discontinued vide Ministry's circular of even number dated 25.5.2003. In case of any doubt, the help of PISON may be taken to ascertain the details of original passport issued by other PIA.
It has been noticed that in the past, whenever revised instructions/circulars were issued by the Ministry, the same were not implemented, either fully or in part, by PIAs and staff of the Passport Offices as the revised instructions/circulars were not brought to their notice or as they were not appropriately briefed CBI No. 09/12 Page 79 of 130 State through CBI v. Bibianus Toppo & Ors.
to by the Passport Officers concerned.
Accordingly, all Passport Officers should ensure that the revised instructions and circulars are circulated amongst the all PIAs and staff and necessary briefing are conducted so that the passport services are rendered to the applicants according to the rules to avoid unnecessary harassment to the applicants.
It is also requested that signatures of all PIAs and staff may be obtained when the instructions/circulars are circulated to them. A copy of the instructions/circulars with the signatures of the PIAs and staff may be forward to Ministry along with the acknowledgement.
(v) Vide circular (Ex. PW20/DA) dated July 11, 2002, procedure for valid visa booklet was issued and relevant portion reads as under:-
Procedure for Valid visa Booklet Cases "The passport containing valid visas are accepted at a separate counter No.6 only. The counter clerk at the time of submission of form by the applicant for an additional booklet, checks old passport, scrutinizes the application form and returns the passport to the applicant after retaining the photocopy of the old passport. Thereafter, a computerized receipt in lieu of the fee charges is issued to the applicant. The files are then sent to the Index Section for Index checking who in turn puts their remarks on the files regarding old references. After that file moves for 'Hit' clecking; there also, they check the old particulars and except photographs whether the applicant has obtained more than one passport, etc. if the file numbers are in sequence then it is presumed that the hit is clear. The file number of old references are noted in the existing file so as to ensure that no other CBI No. 09/12 Page 80 of 130 State through CBI v. Bibianus Toppo & Ors.
passport is issued to the applicant. Thereafter, the file moves to the Dealing Assistant for putting up to the PIA for grant order. The PIA, in turn, checks the hit list and index report including any other remarks passed on the file by the Dealing Hand, Indexer and Hit List clerks. No police verification (whether prior or post) would henceforth be required even if there is a charge in address.
Once all these reports are clear, the PIA passes the order on file for issue of an Additional Booklet."
(vi) From the combined reading of all the circulars, it becomes abundantly clear that the procedure for issuance of additional passport booklet was liberalised from 1997 to 2004. The stress of Ministry of External Affairs was to minimize the hardship of public at the time of getting additional passport booklet and miscellaneous services. However, simultaneously ample precaution was also taken to ensure that the said procedure be not misused by any unscrupulous person by directing that the additional passport booklets shall be issued subject to clearance of Index/PAC/HIT and in case of any doubt, officials of Passport office shall take the help of PISON to ascertain the details of original passport issued by other PIA. Simultaneously at the time of dealing with the request for additional passport booklet, officials were also required to take the photocopy of previous passport also.
(vii) Further, from the circulars dated June 24, 1997 and November 25, 1997, it also becomes crystal clear that at the time of obtaining the additional passport booklet, officials of RPO are also required to affix a stamp of 'cancellation and returned' on the original/previous additional passport booklet, if any. Simultaneously, CBI No. 09/12 Page 81 of 130 State through CBI v. Bibianus Toppo & Ors.
they are also required to affix a stamp on the new additional passport booklet as described in circular dated November 25, 1997.
62. Now coming to Rule 2 (iii) of the Passports Rules, 1980 wherein the circumstances under which additional passport can be issued is described. Rule reads as under:-
Issuing a fresh passport booklet when the pages in the booklet held are almost exhausted;
(i) Proviso to Rule 5 empowers the Passport Issuing Authority to compel the applicant to furnish additional information, documents or certificate which may be considered necessary by such authority for the disposal of the application. The proviso reads as under:-
Provided further that in the course of any inquiry under sub-section (2) of section 5, a passport authority may require an applicant to furnish such additional information, documents or certificates, as may be considered necessary by such authority for the proper disposal of the application.
(emphasis supplied)
(ii) Bare perusal of above provisions makes it clear that additional passport booklet can be issued when the pages of previous passport booklet are going to be exhausted and passport issuing authority has ample power to ask for further additional information/documents/certificate as may be considered for issuance of such additional passport booklet.CBI No. 09/12 Page 82 of 130
State through CBI v. Bibianus Toppo & Ors.
63. Now I proceed to examine the individual role of A1, A2 and A3.
Contentions relating to accused Ram Chander (A3):-
64. Learned counsel appearing for A3 contended that since there is a delay of 10 months in registration of FIR, a reasonable doubt arises over the prosecution case. It was further contended that though there is a delay of 10 months in registration of FIR and the FIR is in detail, yet the name of A3 is not mentioned therein, which proves his innocence.
(i) It was further contended that there is a material contradiction between the testimony of PW13 and PW18 on the point of facilities provided in HIT Section. Moreover, there is no evidence on record that the accused had issued the HIT clearance in the files in question. It was further argued that no reliance can be placed on the documents filed by the prosecution as there was every possibility that some one had misused P number and password of A3. At last, it was argued that in terms of Section 224 Cr. P.C charges should have been dropped by the prosecution.
65. Per contra, learned Public Prosecutor refuted the said contentions by arguing that there is no delay in registration of the FIR and mere fact that the name of accused is not mentioned in the FIR is not sufficient to exonerate him. It was further contended that there are overwhelming evidence on record to establish beyond reasonable doubts that accused was not only posted in HIT Section at the relevant CBI No. 09/12 Page 83 of 130 State through CBI v. Bibianus Toppo & Ors.
time but he also dealt with the files in question and he had given HIT clearance without pointing the dissimilarity in the photograph and signature of the applicant as well as without pointing out that additional passport booklets had been issued in the name of applicants earlier. It was further contended that during trial, accused failed to lead any evidence to prove the fact that his P number and password was misused by anyone and further submitted that Section 224 Cr.P.C is not applicable in the facts and circumstances of the case.
Findings qua Ram Chander (A3):-
66. It is undisputed fact that the FIR was registered on February 1, 2005 and same is Ex. PW24/A. It is also undisputed fact that in the said FIR name of A3 is not mentioned despite the fact that all minor details are mentioned in the FIR.
(i) Perusal of the FIR reveals that the same was registered on receipt of the information. There is nothing on record which may show that the information was received prior to February 1, 2005. Mere fact that the received information was related to the offence committed in past is not sufficient that there was any delay in registration of the FIR. Similarly mere fact that the name of A3 is not mentioned in the FIR is ipso-fact not sufficient to exonerate the accused from the charges.
67. Now coming to the Section 224 Cr.P.C, which reads as under:-
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224. Withdrawal of remaining charges on conviction on one of several charges. When a charge containing more heads than one is framed against the same person, and when a conviction has been had on one or more of them, the complainant, or the officer conducting the prosecution, may, with the consent of the Court, withdraw the remaining charge or charges, or the Court of its own accord may stay the inquiry into, or trial of, such charge or charges and such withdrawal shall have the effect of an acquittal on such charge or charges, unless the conviction be set aside, in which case the said Court (subject to the order of the Court setting aside the conviction) may proceed with the inquiry into, or trial of, the charge or charges so withdrawn.
(i) Bare perusal of Section 224 Cr.P.C makes it clear that the said provision is applicable where accused is facing trial for more than one charges and accused had been held guilty for one or more charges. In such circumstances, the complainant or the prosecution as the case may be with the consent of the Court withdraw the remaining charges. Since in the present case, accused has not been held guilty, the question of withdrawal of the charges does not arise. Moreover, as per Section 224 Cr.P.C, it is prerogative of complainant or the prosecution to withdraw the charges and accused can not claim as a matter of right to drop the charges. Thus, to my mind in the facts and circumstances of the case, Section 224 Cr.P.C is not applicable.
68. A3 in his statement recorded under Section 313 Cr.P.C took the plea that when he was assigned the duty of HIT clearance, his seat was in the open hall where employees of RPO of other department/Section including NIC officials and daily wagers used to CBI No. 09/12 Page 85 of 130 State through CBI v. Bibianus Toppo & Ors.
come. It was further submitted that some officials might have come to know his password and P number while giving HIT clearance. It was further submitted that in CC No. 7/12 HIT clearance was shown to have been given by him during the period March 29, 2004 to April 2, 2003 despite the fact that he was on leave during the said period. He further submitted that he had made a complaint in this regard to his association. Besides that he took the plea that no facility was provided in his computer to compare photograph and signature of the applicant with the original passport holder.
(i) From the above, it becomes abundantly clear that accused had taken the plea that in the present case HIT clearance might have been given by some unknown person by misusing his password and P number. Though in his statement under Section 313 Cr.P.C he submitted that he would lead evidence to prove his defence but during trial he failed to produce any evidence in this regard.
(ii) It is undisputed fact that HIT clearance was used to be given through computers by the officials posted in HIT Section. It is also undisputed fact that the officials posted in RPO can access the file by using their allotted P number and password. Password always remains in the personal knowledge of an individual employee. Needless to say that it was the duty of an employee not to share his password with anyone. Moreover, in the instant case A3 had not taken any plea that he had shared his password with anyone but if he had shared his password with anyone or same was misused by anyone, onus is shifted upon him in terms of Section 106 of Evidence Act to explain under which circumstances, he had shared his password or under which CBI No. 09/12 Page 86 of 130 State through CBI v. Bibianus Toppo & Ors.
circumstances his password was misused. But he failed to discharge the said burden. In the absence of any such evidence on record, I do not find any substance in the plea that someone had misused his password.
(iii) In order to establish that A3 had cleared the HIT in the files in question, prosecution has placed reliance on the process sheet Ex. PW7/B and PW7/C. As per Ex. PW7/B accused had given the HIT clearance in the file qua second additional passport booklets bearing No. E7495556 on January 29, 2004. Similarly, as per Ex. PW7/C, A3 accused had given HIT clearance in the file qua third additional passport booklet bearing No. E 8582541 on March 25, 2004. There is nothing on record that A3 was on leave or he had not attended the office on the said dates. Similarly during trial, A3 also failed to produce any cogent evidence to prove the fact that he had not dealt with the said files. In the absence of any contrary evidence on record, I do not find any reason to disbelieve the said documents. Thus from the said documents, it becomes clear that A3 had given the HIT clearance in second and third additional passport booklet files.
(iv) PW18 Ajai Gautam is a star witness of the prosecution case, he in his examination-in-chief deposed that HIT checking without photograph was started in the year 2000 whereas HIT checking with photograph and signature was stated in August 2002 but only in one PC. He further clarified that since April 2004 HIT checking with photograph and signature was started in all the computers. Thus, from the testimony of PW18, it becomes clear that the facility of checking of photographs and signature in HIT section was provided in all the CBI No. 09/12 Page 87 of 130 State through CBI v. Bibianus Toppo & Ors.
computers in April 2004.
(v) As per Ex. PW7/B and Ex. PW7/C, A3 had given the HIT clearance on January 29, 2004 and March 25, 2004. In other words when he had dealt with the said files in question, no facility was provided in all the computers at HIT section to check the photographs and signatures of the applicant and compare the same with the photograph and signatures of original passport holders. No doubt, PW18 also deposed that in August 2002 the said facility was provided at one PC of the HIT section but there is nothing on record which may shown that any such PC was alloted to A3. In these circumstances, prosecution has failed to establish that there was a facility in the computer of A3 to compare the photograph and signatures of applicant with the photograph and signature of original passport holder.
(vi) PW18 further deposed that if any matching entry is found in the computer then computer would mark it as suspected with host entry otherwise computer would mark it as clear. He further deposed that the official performing the HIT check was able to see all the details of the applicant from previous application/passport, if issued to the applicant. It means that if any additional passport booklet had been issued to the applicant, official who give the HIT clearance would be able to know whether applicant had obtained any additional passport booklet in additional to original passport not.
(vii) In the instant case, additional passport booklet bearing No. E6331150 was issued in the name of applicant on September 4, 2003 besides the original passport issued in the name of applicant on CBI No. 09/12 Page 88 of 130 State through CBI v. Bibianus Toppo & Ors.
June 22, 1999. In other words, when A3 had given HIT clearance in respect of second additional passport booklet, A3 would come to know that the additional passport booklet bearing No. E6331150 had already been issued in her name. Similarly, when A3 had dealt with the file in respect of third additional passport booklet bearing No. E8582541, A3 must have come to know that applicant had already obtained two additional passport booklets as mentioned above. Thus, accused was supposed to raise objection because applicant had applied for the additional passport booklet on the pretext that she was applying for additional passport booklet first time.
(viii) Moreover, during the cross-examination of PW10, he admitted the suggestion given by the counsel that complete data of applicant was used to be fed in the computer at the relevant time. PW10 further admitted the suggestion that the movement of the file number also used to be fed in the computer with all particulars of the applicant. He further admitted the suggestion that all the particulars of the applicant of that file were used to be displayed by the computer and further admitted the suggestion that the work of HIT Section was to check the existing and old particulars, if any. From the testimony of PW10, it becomes crystal clear that all the particulars and information of applicant must be available in the computer and used to be displayed on the computer screen. In other words, when the applicant had applied for second and third additional passport booklets, computer must have displayed the number of additional passport booklets which had already been issued in the name of applicant. But despite that A3 did not raise any objection.
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69. In these circumstances, though no facility was available in the computer of A3 to compare the photograph and signature of the applicants with the photograph and signature of the original passport holder but he was not in a position to check whether any additional passport booklet had been issued in the name of applicants or not. Though the additional passport booklet had already been issued when he had given HIT clearance but he had not raised any objection. This shows that he had given HIT clearance without checking the particulars of the applicants. By giving HIT clearance without checking the record, A3 had facilitated the applicants in getting additional passport booklets in fictitious name which is not in the public interest, thus A3 is liable for the offence punishable under Section 13 (2) read with Section 13 (1) (d)
(iii) of PC Act.
Contentions qua Harbhajan Yadav (A2):-
70. Learned counsel appearing for A2 contended that at the relevant time, A2 was posted as counter clerk and he made a recommendation in all the files to issue additional passport booklet in good faith while discharging his official duties. It was further argued that whenever the applicants moved an application for issuance of additional passport, applicants had placed the copy of previous passport along with the original passport and same was checked by A2 and found that the photograph affixed on the application form was of the same person whose photograph was affixed on the passport, thus it cannot be said that A2 had committed any offence when he made a recommendation to issue additional passport in favour of the applicant. It was further contended that no instrument was provided to the counter clerk to CBI No. 09/12 Page 90 of 130 State through CBI v. Bibianus Toppo & Ors.
check the genuineness of the enclosures produced by the applicant. It was further contended that as per the practice and rules, A2 affixed all stamps at the relevant spaces provided at the forms, thus it cannot be said that he had committed any offence.
71. Per contra, learned Public Prosecutor appearing for CBI refuted the said contentions by arguing that A2 had made the recommendation for issuance of additional passport booklet without going through the file as he was in conspiracy with the applicants. It was submitted that the same passport was used for obtaining three additional passports subsequently, which is not permissible. It was submitted that the original passport could be used at the time of obtaining first additional passport booklet, thereafter, applicant was supposed to produce additional passport booklet at the time of obtaining second additional passport booklet and similarly he was supposed to produce second additional passport at the time of obtaining third additional passport booklet. But in the instant case, A2 made the recommendation on the basis of same passport. This shows that he had acted so being the member of conspiracy.
Findings qua (A2) Harbhajan Yadav :-
72. It is undisputed fact that A2 was posted as counter clerk at the relevant time and in all three files Ex.PW1/A to Ex.PW1/C, he had made a recommendation for issuance of additional passport booklet. During his examination recorded under Section 313 Cr. P.C, he took the plea that no facility was provided to him to check the photograph and signature and old references of the applicants. He further took the plea CBI No. 09/12 Page 91 of 130 State through CBI v. Bibianus Toppo & Ors.
that since previous passport file of the applicant was not used to be sent to the counter clerk, he was not in a position to compare the photograph of the applicants with the original passport holder. No instrument was provided to the counter clerk to verify the documents produced by the applicant to ascertain whether the same were fake or genuine.
73. On perusal of the file Ex.PW1/A to Ex.PW1/C, it becomes clear that at the time of applying for additional passport booklet, applicants had submitted a request letter, which are Ex.PW11/A9, Ex.PW11/B8, Ex.PW11/C8. In the said request letters, applicants had submitted that they needed additional passport booklets as the pages of previous passport had been full and they required additional passport booklets as they had to visit abroad urgently for the purpose of business meeting. Thus, it becomes clear that at the time of applying for additional passport booklets, applicants took the plea that since the pages of previous passport had been full and they had to visit abroad, thus they required additional passport booklets on urgent basis.
74. At the time of applying for additional passport booklets, applicants also placed photostate copy of previous passport bearing No. A-7621069. Perusal of the file reveals that on all occasions, applicants placed the photostate copy of the same passport but with different photograph. Learned counsel appearing for A2 submits that since the earlier photograph used to be pasted on the passport with glue, thus there is every possibility that the applicants had removed the photograph of original passport holder from the passport bearing No. A-7621069 and pasted her photograph at the time of applying for CBI No. 09/12 Page 92 of 130 State through CBI v. Bibianus Toppo & Ors.
additional passport booklet, thus it was urged that in fact applicants had cheated the counter clerk by furnishing false and fabricated documents.
(i) Perusal of the first page of the previous passport bearing No. A-7621069 makes it clear that in all the files, applicants had placed the photocopy of same passport as it bears the signature of same person D.P. Ghosh and manner in which the stamp was affixed is also the same in all the files. Even the particulars of passport holder are same.
75. Perusal of the photocopy of the passport bearing No. A-7621069 further reveals that at the time of applying for first additional passport booklet, applicant had submitted the photostate copy of page No. 2, 3, 22, 23, 26, 27, 28 and 29 besides the front page of passport. But at the time of applying for second additional passport booklet, applicant had submitted the photocopy of above passport comprising the page No. 2, 3, 34, 35, 36 and 37 and front page. When third additional passport booklet was applied, applicant submitted the copy of page No. 2, 3, 34, 35, 36 and 37 besides the front page.
(i) Perusal of the file Ex.PW1/B and Ex.PW1/C further reveals that the photostate copy of the above said passport bears the seal 'Extended by issue of fresh booklet'.
76. Before proceeding further, I deem it appropriate to refer the circular dated June 24, 1997 issued by Ministry of External Affairs (CPV Division). According to the said circular, the practice of attaching and sealing the old passport with the additional passport booklet was CBI No. 09/12 Page 93 of 130 State through CBI v. Bibianus Toppo & Ors.
discontinued with immediate effect and it was directed that instead of attaching and sealing the old passport with the new additional passport booklet, old passport shall be cancelled and returned to the passport holder and suitable endorsement regarding old passport shall be made in the new additional passport booklet. Thus as per the said circular, with effect from June 24, 1997, old passport booklet was not required to be attached with the new additional passport booklet. RPO official was supposed to cancelled and returned the old passport to the passport holder. However, they were supposed to make necessary endorsement regarding the old passport in the new additional passport booklet.
77. Vide circular dated November 25, 1997, some modification was made in the said circular by deciding that instead of cancelling original passport having valid visa a stamp i.e. 'Extended by issue a fresh booklet' shall be affixed across the first three pages of the old passport. Similarly, in the additional passport booklet, following observations shall be made :-
"holder as previously travelled on passport bearing No. _________ dated _________ issued on _____________(the details of the original passport may be included here, whether there is a change of name, earlier name may be given).
78. From the combined reading of both the circulars, it becomes clear that where there is no valid visa in the previous passport, RPO shall cancel the old passport and returned the same to CBI No. 09/12 Page 94 of 130 State through CBI v. Bibianus Toppo & Ors.
the applicant by putting the stamp and made necessary endorsement in the additional passport booklet. However, if there is any valid visa in the old passport, same shall not be cancelled. But a stamp "i.e. extended by issue of a fresh booklet" shall be affixed on first three pages of the previous passport. Similarly, an endorsement as stated above shall be made in the additional passport booklet.
79. From the file Ex.PW1/A to Ex.PW1/C, it becomes clear that the applicants sought additional passport booklet on the ground that pages of previous passport had been full and they had to visit abroad urgently in connection with their business. Thus, it appears that the applicants were having valid visa. If it was so, RPO official was supposed to make endorsement on the additional passport booklet in terms of circular dated November 25, 1997. If the previous passport did not have any valid visa, in that situation RPO official was supposed to cancel previous passport in terms of circular dated June 24, 1997.
80. In Ex.PW1/A at the time of applying for first additional passport booklet, applicant had furnished only two pages i.e. page No. 23 and 27, which bears the stamp of visa. Other pages do not bears the stamp of visa. Similarly, at the time of applying for additional passport booklet in Ex.PW1/B and Ex.PW1/C, applicant had not placed the photocopy of any page of previous passport showing that the pages of previous passport had been full. Even, in the said files, applicant had not placed the photocopy of page No. 23 and 27 as she placed in Ex.PW1/A. Thus, it becomes clear that at the time of applying for additional passport booklets, applicants had not furnished any material on record in support of their claim that the pages of previous passport CBI No. 09/12 Page 95 of 130 State through CBI v. Bibianus Toppo & Ors.
had been full. Since, A2 had made recommendation in favour of the applicant for issuance of additional passport booklet without any material, thus in terms of Section 106 Indian Evidence Act onus is shifted upon the accused to explain on what basis he satisfied himself that the pages of previous passport had been full. But during trial, he failed to produce any such evidence.
81. As per Ex.PW1/A to Ex.PW1/C, counter clerk had also affixed the stamp of cancellation and returned at the forms at the relevant space. This shows that the counter clerk had cancelled and returned the old passport. If it was so, counter clerk shall also put the stamp on the previous passport. But instead of putting the seal of cancellation and returned, counter clerk put the seal of 'Extended by issue of a fresh passport', which is in terms of circular dated November 25, 1997
82. At the time of applying for second additional passport booklet in Ex.PW1/B, applicant had submitted the photocopy of previous passport which are Ex.PW1/B4 to Ex.PW1/B7. Perusal of the said passport becomes clear that the stamp of 'Extended by issue of fresh passport' was affixed on the front page and page No. 2. It means that when the applicant had produced the said documents along with the application, there was a stamp on Ex.PW11/B4. Similarly, in file Ex.PW1/C, the photocopy of previous passport Ex.PW11/C4 to Ex.PW11/C7 also bear the same seal. Since, the said seal is required to be affixed when the applicant had obtained additional passport booklet and the applicant was having valid visa in his/her old passport. The said seal was more than sufficient for the counter clerk to raise a query CBI No. 09/12 Page 96 of 130 State through CBI v. Bibianus Toppo & Ors.
where was the additional passport booklet, but A2 failed to raise any such objection. No scientific instrument was required to raise the said objection as the said stamp was sufficient to hold prima-facie that applicant had already obtained additional passport booklet, but it appears that A2 had not checked the file while making recommendation in favour of the applicant. Had A2 raised the objection, he would have come to know immediately that the applicant had already obtained additional passport booklet and since applicant had not disclosed this fact in the application form, he would have immediately come to know that the applicant was trying to obtain passport by some fraudulent means.
(i) Moreover during investigation, CBI had seized the original passport bearing No. A-7621069 and same is Ex.PW10/A. Perusal of the same reveals that page No. 3 to 22, 24 to 26, 28 and 30 to 32 are blank, which falsifies the claim of applicants that pages of previous passport had been full. But despite that A2 did not raise any objection and cleared the file
83. As already held that the passport is a valuable document as it authorises a person to travel beyond the territory of India subject to other conditions such as visa etc. Besides that passport is also a very important document to prove nationality and identity of a person. To issue such an important document in favour of a person, it is the duty of the issuing authority/official to remain quite vigilant at the time of performing their duties. But from the above, it becomes clear that A2 failed to perform his duty in accordance with circular dated June 24, 1997 and November 25, 1997. Had he acted in accordance with the CBI No. 09/12 Page 97 of 130 State through CBI v. Bibianus Toppo & Ors.
prescribed procedure, he would come to know immediately that the applicants had already obtained additional passport booklet and applicants were trying to obtain another passport booklet by concealing relevant fact. But he failed to raise any such objection. It is pertinent to state that issuance of passport in the name of fictitious person is not in the public interest and the recommendation of A2 facilitated the applicants in obtaining additional passport booklet in favour of fictitious persons, thus A2 is liable for the offence punishable under Section 13 (2) read with 13 (1) (d) (iii) of PC Act.
Contentions relating to accused Bibianus Toppo (A1):-
84. Learned counsel appearing for A1 raised following contentions
(i) That no facility was provided to PIA to verify the photograph and signature of applicants from the previous passport file, thus there was no default on the part of A1 when he acted on the recommendation of the counter clerk (A2).
(ii) That counter clerk was supposed to send only those files to PIA, which were complete in all respect. Since, in the instant matter, counter clerk had affixed the requisite stamp on the forms and the passport and made recommendation in favour of applicants for issuance of additional passport booklets, there was no occasion for A1 to disbelieve his staff. It was submitted that there are overwhelming evidence on record to prove the fact that the files in question were complete in all respect.
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(iii) That PIA used to give promise date, but the same is subject to clearances from HIT section. It was argued that no additional passport booklet could be issued without HIT clearances and since there was no adverse remark from the HIT section, there was no fault on the part of A1 when he acted on the basis of recommendation made by counter clerk and the HIT section.
(iv) That at the relevant time, it was the prevalent practice in RPO that counter clerk did not use to mention old passport number in the space available in the affixed stamp and this fact has been corroborated by PW10 and PW13 in their deposition.
(v) That at the relevant time, there was heavy work load with PIAs and this fact has also been proved by PW10, PW13 and PW20 in their deposition. It was argued that due to heavy work load, there may be possibility of oversightness on the part of A1 while dealing with the files in question, but the said oversightness is not sufficient to impose any criminal liability.
(vi). It was argued that A1 may be negligent in performing his duty but that negligence was not sufficient to impose any criminal liability. In support of his contention, reliance has been placed on the judgment Rajiv Kumar Goyal @ Raj Kumar Goyal Vs. State through CBI, Criminal Appeal No. 265 decided on August 08, 2014. Reliance has also been placed on the judgment Sudhdeo Jha Utpal Vs. State of Bihar, AIR 1957 SC 466.
(vii) That accused also deserves acquittal on the ground of parity because in other similar matter, no action was taken by CBI CBI No. 09/12 Page 99 of 130 State through CBI v. Bibianus Toppo & Ors.
against other PIA such as Ms. Asia and S.P. Kothari, who acted in similar manner. Even no departmental proceeding was initiated against them. It was argued that in fact CBI had adopted the policy of pick and choose which is not permissible in criminal law. In support of his contention, learned counsel placed reliance on the judgment State of Madhya Pradesh Vs. Sheetla Sahai and others, (2009) 8 SCC, 617 and L. Chandraiah Vs. State of Andhra Pradesh, 2004 SC 252.
(viii) That there is no iota of evidence that accused was a member of any conspiracy. It was further submitted that since no sanction had been obtained by CBI under Section 197 Cr. P.C, accused cannot be held guilty for the penal offences. It was further submitted that since accused had acted in discharge of his official duty while granting promise date and signed the additional passport booklet, CBI was duty bound to obtain sanction under Section 197 Cr. P.C to prosecute the accused for penal offences.
(ix) That the sanction under Section 19 is not in accordance with law as PW21 was not a competent person to remove A1 from his office. Moreover, sanction had been granted without application of mind. In support of his contention, reliance has been placed on the judgment Mohd. Iqbal Ahmed Vs. State of A.P, AIR 1979 SC 677 and State, Inspector of Police, Visakhapatnam Vs. Surya Sankaram Karri, 2006, CLJ 4598.
(x) That the judgment titled as Runu Ghose Vs. CBI is not applicable in the facts and circumstances of the case because there are sufficient evidence on record to prove the fact that in similar CBI No. 09/12 Page 100 of 130 State through CBI v. Bibianus Toppo & Ors.
circumstances, other PIAs had acted in same manner, but no action has been taken against them. Rather, they have been cited as prosecution witnesses against the accused.
(xi) That even Section 13 (1) (d) (iii) of PC Act is not applicable in the present matter because the word "obtain indicates that there must be some 'dishonest intention' on the part of public servant, but there is no evidence on record to prove this fact. It was further argued that issuance of additional passport booklet in favour of applicant is in the public interest whereas Section 13 (1) (d) (iii) is attracted where public servant acted without any public interest. It was thus argued that accused cannot be held guilty even for the offence punishable under Section 13 (1) (d) (iii) of PC Act.
(xii) That Ministry of External Affairs by way of its various circulars liberalised the policy of issuance of additional passport booklet and it was directed that the same should be issued preferably on the same day or maximum within 3 to 5 days. It was thus argued that mere fact that the passport was issued within 3 to 5 days is not sufficient to prove any criminality on the part of A1
85. Per contra, learned counsel for CBI refuted the said contentions by arguing sagaciously that since A1 was working as PIA at the relevant time, it was his duty to ensure that the passport be issued in accordance with Rules and Regulations. It was argued that A1 had acted without application of mind in furtherance of criminal conspiracy and due to that reason, he even did not open the files and signed blindly. It was argued that due to that reason, additional passport CBI No. 09/12 Page 101 of 130 State through CBI v. Bibianus Toppo & Ors.
booklets were issued in favour of fictitious persons, which cannot be in the public interest. It was further argued that accused cannot be permitted to take the plea of oversightness and heavy work load. It was contended that since A1 was PIA, it was his duty to keep a check on the irregularities of his subordinate staff, but he acted in conspiracy with them and due to that reason, applicants succeeded in getting the additional passport booklets in favour of fictitious persons by producing the photocopy of same passport but with different photograph. It was further contended that there is no illegality in the Sanction under Section 19 of PC Act and further submitted that no separate sanction under Section 197 Cr. P.C is required to prosecute the accused persons.
Findings qua Bibianus Toppo (A1) :-
86. In the instant case, A1 had dealt with the files Ex.PW1/B and Ex.PW1/C whereas the file Ex.PW1/A was dealt with by Mr. P.K. Kapoor, Superintendent (since deceased).
(i) At the time of seeking second and third additional passport booklets, applicants had furnished separate application along with the passport registration form and application form for miscellaneous service of India Passport wherein the applicants had disclosed the reason for seeking additional passport booklets. The said applications are separately exhibited as Ex.PW11/B-8 and Ex.PW11/C-8 respectively.
(ii) Perusal of the said applications reveals that in both the CBI No. 09/12 Page 102 of 130 State through CBI v. Bibianus Toppo & Ors.
applications, applicants had disclosed that they needed fresh additional passport booklets as the pages of previous passport had already been full and they had to visit abroad urgently. Thus, additional passport booklets were sought by the applicants on the ground that the pages of previous passport had already been full.
87. Now question arises what was the duty of PIA in such circumstances.
(i) Since the applicants sought additional passport booklets on the ground that the pages of previous passport had been full, thus it was the paramount duty of PIA to check the previous passport to satisfy himself whether all pages of previous passport had been full or not.
(ii) As already discussed in Ex.PW1/B, applicant had submitted page No. 1, 2, 3, 34 to 37 of the original passport whereas at the time of applying for third additional passport booklet (Ex.PW1/C) applicant had filed page No. 1, 2, 3, 34 to 37 of the previous passport. Perusal of the said pages does not reveal whether the pages of previous passport had been full or not. Despite that PIA did not deem it appropriate to ask the applicants to furnish the photostate copy of all the pages of previous passport to satisfy himself whether all pages of previous passport had been full as alleged by the applicants in their respective application or not.
(iii) I have gone through the entire Passport Act, Rules and circulars placed before this Court. But this Court fails to come across any provision/rule/administrative instructions which may prevent the CBI No. 09/12 Page 103 of 130 State through CBI v. Bibianus Toppo & Ors.
passport officials including counter clerk and PIAs from taking photocopy of entire previous passport. On the contrary, proviso to Rule 5 of Passport Rules 1980 empowers the Passport Issuing Authority to ask the applicant to furnish additional information, document or certificate which may be considered necessary for the disposal of application. Moreover, in the circular Ex. PW20/DA, it was prescribed that old passport shall be returned to the applicant after retaining its photocopy. In other words, the officials while dealing with the above applications were supposed to retain the photocopy of previous passport before returning the same to the applicants.
(iv) Since, applicants had not furnished the photostate copy of entire previous passport at the time of seeking additional passport booklets, thus there was no material on record to satisfy the PIA that the pages of previous passport had been full. But despite that A1 did not raise any objection, thus in terms of Section 106 of Evidence Act, onus is shifted upon the PIA to show on what basis he satisfied himself that the pages of previous passports had been full. No doubt, the initial burden was on the prosecution, but in the instant case prosecution had discharged the initial burden by proving the request letters Ex.PW11/B-8, Ex.PW11/B-9 and by producing the photocopy of previous passport which applicants had enclosed along with the request letters. Since, the circumstances or facts which impelled the PIA to believe the version of applicants are in the special knowledge of the PIA, thus in terms of Section 106 of Indian Evidence Act, burden is shifted upon him to show on what basis he arrived at the conclusion that pages of previous passports had been full as alleged by the applicants. But during trial, A1 failed to adduce any such evidence on CBI No. 09/12 Page 104 of 130 State through CBI v. Bibianus Toppo & Ors.
record.
88. As already discussed that in all the files, applicants had annexed photocopy of same passport, but with different photographs. In Ex.PW1/B and Ex.PW1/C, stamp i.e. 'Extended by the issue of fresh booklets' is also affixed on the first and second page of previous passport. The said stamp was more than sufficient for the PIA to hold that on the basis of said photostate copy, applicant had already obtained the additional passport booklet. Since, the said stamp indicates that the applicant had already obtained additional passport booklet, it was paramount duty of the PIA to make further inquiry where was the said additional passport booklet but it appears that PIA had signed without going through the file. Had PIA made inquiry from the applicant or from the counter clerk how the stamp had been appeared on the photocopy of the passport, PIA would have come to know easily that the applicants were trying to play fraud with the RPO, but PIA did not raise any such objection. Rather, he preferred to put his signature and issue the additional passport booklet in favour of the applicants.
(i) On the contrary in the instant case, original passport (Ex.PW10/A) is on record. As already discussed numerous pages were blank, which falsifies the claim of applicants that all pages of previous passport had been full. But despite that A1 did not raise any objection and issued the additional passport booklets.
(ii) No doubt a plea had been taken by A1 that he believed on the noting of counter clerk (A2) wherein he recommended to issue additional passport booklets in favour of the applicants. Admittedly, CBI No. 09/12 Page 105 of 130 State through CBI v. Bibianus Toppo & Ors.
counter clerk had made the said recommendation in favour of applicants. But question arises; was not it the duty of PIA to satisfy himself by going through the file? It is pertinent to state that the passport files relating to issuance of additional passports booklets were not voluminous. Rather, the files contained only four documents namely cash receipt; passport application registration form; application form for miscellaneous services; request letter along with the pages of photocopy of previous passport. Thus, it cannot be said that PIA was not in a position to go through the files being voluminous. It was a matter of just few seconds to see whether there was any material on record to corroborate the version of applicant or not. Moreover, A2 in his noting did not certify that the pages of previous passport had been full as mentioned by the applicants in their request letters. But it appears that A1 did not deem it appropriate either to open the file or original passport before issuance of additional passport booklets in favour of the applicants.
89. It is manifested from the request letters (Ex. PW11/B-8, and Ex. 11/C-8) that at the time of seeking additional passport booklets, applicants took the plea that they required additional passport booklets urgently as they had to go to abroad and entire pages of previous passports had already been full. It means that the applicants had valid visa and they required the additional passport booklets on urgent basis as all pages of previous passport had already been full. Thus, in terms of circular dated November 25, 1997, it was the duty of passport Issuing Authority to make the following endorsement on the additional passport:-
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" Holder has previously travelled on passport No. ___ dated _ _ issued at _ _ which holds valid visa." (The details of original passport may be included here, where there is a change of name, earlier name be given.)
(i) The above endorsement could be made by the passport issuing authority only if passport issuing authority had previous passport in original or photocopy thereof to check whether applicant had any valid visa or not. As from the evidence adduced by prosecution and the plea taken by A1 and A2 in their statement recorded under Section 313 Cr. P.C, the previous passport in original was returned to the applicants at the counter itself. Since, photocopy of entire passport was not taken from the applicants before issuing additional passport booklets, there was no material before the PIA to make above endorsement on the fresh additional passport booklets. Had the previous passport in original been seen or copy thereof be taken on record, passport issuing authority would have come to know immediately that the plea taken by the applicants for issuance of additional passport booklets was false.
But the passport issuing authority did not deem it appropriate to do so and even it did not deem it appropriate to comply with the instructions issued by Ministry of External Affairs in its circular dated November 25, 1997.
90. During the course of arguments, counsel appearing for A1 also took the plea that since PIA had acted in good faith on the recommendation of counter clerk, he cannot be held liable for his act. But question arises whether in the present facts and circumstances plea of good faith is available to the accused or not?
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91. As already held that before taking the plea of good faith, the person who takes such plea has to show by producing relevant material/evidence on record that he had taken due care and attention. But from the above discussion, it becomes clear that A1 had not taken any such care and attention, thus to my mind, the plea of good faith is not available to A1.
(i) It is pertinent to state that being the PIA, it was his responsibility to ensure that no unscrupulous person could get passport on the basis of false documents. Simultaneously, it was also his duty to keep a check on his subordinates. Had there been photocopy of entire previous passport showing that the pages of previous passport had been full and proper endorsement had been made on the issued additional passport booklet in terms of circular dated November 25, 1997, in that situation A1 would have a valid defence of good faith as defined under Section 52 of IPC. But unfortunately, it is not so. In these circumstances, I am of the considered opinion that there is no substance in the plea of A1 that he had acted in good faith on the recommendation of A2.
92. Perusal of the application forms for miscellaneous services of Indian Passport (Ex. PW11/B-2 and Ex. PW11/C-2) reveals that there is stamp "cancelled and returned old passport No.....". From the evidence adduced, it is established that it was the duty of counter clerk to mention old passport number and he was also supposed to sign below the said stamp. Indisputably, though stamp is affixed on the said application forms, but neither the old passport number is filled up in the available space nor there is any initial of the counter clerk. This shows CBI No. 09/12 Page 108 of 130 State through CBI v. Bibianus Toppo & Ors.
that there is a lapse on the part of counter clerk in this regard. However, during arguments counsel appearing for A2 submitted that since counter clerk had made a specific endorsement in the said application forms in his own handwriting that he had cancelled the old passport and also recommended for issuance of additional passport booklet, it is not relevant if counter clerk did not fill up the passport number and put his signature below the said stamp. No doubt, counter clerk was supposed to mention the old passport number in the space available in the above said stamp and he was also supposed to put his signature. But keeping in view the fact that counter clerk had made a specific endorsement on the said application forms wherein he recommended not only to issue additional passport booklet to the applicants but also certified that he had cancelled and returned the original passports, the lapse on the part of counter clerk is not significant.
(i) No doubt, being the supervisory authority, A1 was supposed not to encourage such irregularity by his subordinate staff but he failed to stop such irregularity. The purpose of filling up old passport number is to inform the supervising officer including PIAs that the counter clerk had cancelled and returned the particular passport. In the absence of such number, it would not be feasible for the supervising officer including PIAs to know which passport was cancelled and returned by the counter clerk.
(ii) No doubt, the old passport number is also mentioned in column no. 4 of the said application forms but the same was filled up by the applicants and not by the official of RPO office. If the old number is not filled up by the counter clerk in the space available in the above said CBI No. 09/12 Page 109 of 130 State through CBI v. Bibianus Toppo & Ors.
stamp, PIA would be required to verify the passport number as mentioned in column no. 4 and from the photocopy of the passport annexed along with the application forms, which will be time consuming exercise but surprisingly no effort was made by the PIA to discontinue this irregularity. However, the said irregularity is not sufficient to draw an inference either against A1 or A2 because it is undisputed fact that A2 had made a specific noting on the application forms to the effect of "old passport cancelled and returned" and also recommended for issuance of additional passport booklets.
93. Now coming to the contention relating to work load. To my mind the said contention is devoid of any merit. Work load can not be a ground to justify a wilful wrongful act. As already held that neither A1, nor A2 made any effort to satisfy themselves whether there is any material to substantiate the version of applicant to seek additional passport booklet as there is no material on record to show that all pages of previous passport/booklet had been full as mentioned by the applicants in their request letters.
(i) To my mind, the judgement Sudhdeo Jha Utpel v/s. State of Bihar, AIR 1957 Supreme Court 466 is also not helpful to A1 as the facts of the said case were totally different from the facts of case in hand. The said case relates to the offence punishable under Section 420/193/120B IPC whereas the main allegations against A1 for the offence punishable under Section 13(1) (d) of PC Act. The ingredients of Section 420 IPC and 13(1) (d) of PC Act are totally different. Moreover, in the said matter there were sufficient material on record to support the claim of appellant that the company used to pay road tax to CBI No. 09/12 Page 110 of 130 State through CBI v. Bibianus Toppo & Ors.
the tune of ` 40,000/- and there were several branches of the company, thus it was not feasible for the appellant being the General Manager to know whether any particular vehicle was of road worthy or road tax qua any particular vehicle had been paid or not. On the contrary, in the instant matter A1 was acting as Passport Issuing Authority, thus it was his responsibility to satisfy himself prior to issuing the passport/additional passport booklets whether the documents submitted by the applicants supports their claim or not.
(ii) Now coming to the judgement title Rajiv Kumar Goyal @ Raj Kumar Goyal Vs State through CBI in Criminal Appeal No. 265 of 2008 decided on August 08, 2014 by the High Court of Delhi. I have perused the said judgement carefully. To my mind, the said judgement is not helpful to the accused in any manner as the facts involved therein were totally different from the facts of the case in hand. In the said matter, CBI failed to establish whether the documents were already missing when the appellant had passed the claims in favour of fictitious persons or the documents were removed later on and the same is clear from para 28 which reads as under :
Para 28 Whether all the papers were in the file or not is the only aspect of the matter in these cases. It may be that in considering the conduct of L.K. Gupta, who had passed the claims, it would have to be shown by the Prosecution that the papers in the file were already missing when he passed the claims. If not, he would have the benefit of doubt since the failure to ensure that the files were kept in a temper proof environment would enable him to take a defence that although the papers were available in the file, they were somehow not found when the CBI was handed over those files. However, there is another CBI No. 09/12 Page 111 of 130 State through CBI v. Bibianus Toppo & Ors.
aspect of the matter which involves claims being made on behalf of fictitious firms with fictitious consignors and road carriers. There, it does not matter much that some of the papers may have gone missing as long as there is enough evidence on record to show that the claims were made on behalf of fictitious firms with the transporter and consignors also being fictitious.
(iii) In order to claim parity, counsel for A1 strongly placed reliance on the judgements State of Madhya Pradesh v/s. Sheetla Sahai and others, (2009) 8 SCC, 617 and L. Chandraiah v/s. State of Andhra Pradesh, 2004 SC 252. But to my mind, the said judgements are not applicable in the facts and circumstances of the present case. In both the matters, investigating officer adopted the policy of pick and choose while impleading the accused persons whereas in the present case, no such pick and choose policy had been adopted. Mere fact that the investigating agency did not charge-sheet PIA in other matters, who allegedly played similar role that of A1 is not sufficient for this Court to hold that in the present matter investigating officer had adopted the policy of pick and choose. Indisputably, those other matters are not before this Court and this Court is not supposed to give any finding in those matters on the basis of evidence led by prosecution in the present matter. If in those matters, investigating officer had adopted pick and choose policy, appropriate action can be taken against the erring investigating officer. But mere fact that in the said matters, investigating agency did not deem it appropriate to file the charge-sheet against PIA, it is not sufficient to exonerate A1 in the present matter. Needless to say that the fate of A1 can be decided only on the basis of evidence available on record in the present matter and not on the basis of charge-sheets filed by investigating agency in other CBI No. 09/12 Page 112 of 130 State through CBI v. Bibianus Toppo & Ors.
alleged similar matters. However, it is pertinent to mention here that in the instant case, though first additional passport booklets was issued by Mr. P. K. Kapoor, yet no charge-sheet had been filed against him. But charge-sheet was not filed against him due to any discrimination; rather charge-sheet could not be filed against him as he had died prior to filing of the charge-sheet, thus it can not be said that any discrimination has been made by the investigating officer among the PIAs in the present matter.
94. As already held that no dishonest intention is required to hold the passport officials including A1 guilty for the offence punishable under Section 13 (1) (d) (iii) of PC Act. Thus, I do not find any substance in the contention of learned defence counsel that since accused had no dishonest intention, he cannot be held guilty for the offence punishable under Section 13 (1) (d) (iii) of PC Act.
95. Now question arises whether passport officials including PIA had acted in public interest or not?
(i) If it is established that they acted in public interest, they cannot be held liable for their acts, otherwise they shall be liable for their acts.
(ii) Indisputably, issuing the additional passport booklets in the name of fictitious persons cannot be in public interest. Rather, it would be totally against the public interest as it may also cause threat to the security of the nation because such fictitious documents can be used by anti-social elements. As already discussed that while dealing CBI No. 09/12 Page 113 of 130 State through CBI v. Bibianus Toppo & Ors.
with the files in question, A1 to A3 not only failed to take reasonable precaution but they also breached the settled norms and instructions at the time of issuing additional booklets, thus their act was not in the public interest when they dealt with the said files.
(iii) Admittedly, there is no cogent evidence on record to bring home the guilt of A1 to A3 for the offences described in clause (i) and
(ii) of Section 13 (1) (d) of the Prevention of Corruption Act. But there are sufficient material on record to prove their guilt for the offence described in clause (iii) of Section 13 (1) (d) of the Prevention of Corruption Act. From the above discussion, it can safely be culled out that there are sufficient evidence on record to hold that A1 to A3 while holding public office obtained a valuable thing i.e. passport in favour of the fictitious persons, which was not in the public interest, thus they are liable for the offence punishable under Section 13 (2) read with Clause-
(iii) of Section 13 (1) (d) of PC Act.
Contentions relating to sanction under Section 19 of PC Act:-
96. Learned counsel appearing for the accused persons vehemently argued that the sanction accorded under Section 19 of PC Act is defective as sanctioning authority had not applied its mind before according the sanction and the authority had acted in mechanical manner just by signing on the draft sanction placed before it. It was further argued that sanctioning authority had not considered relevant material at the time of according the sanction. In addition to the above, counsel appearing for A1 also contended that the sanction was not CBI No. 09/12 Page 114 of 130 State through CBI v. Bibianus Toppo & Ors.
accorded by competent person qua A1.
97. Per contra, learned Public Prosecutor countered the said contentions by arguing that there is no defect in the sanction and if there is any defect, same is not fatal to the prosecution case in view of Section 19 (3) of PC Act.
98. In this regard the testimony of PW21 Sh. R. Swaminathan is relevant.
(i) PW21 Sh. R. Swaminathan in his examination-in-chief categorically deposed that he also received investigation report and the statement of prosecution witnesses along with the request letter for seeking sanction and further deposed that he had gone through the said report and statement of prosecution witnesses and after satisfying himself, he accorded the sanction under Section 19 of the Prevention of Corruption Act as well as under Section 15 of Passport Act.
(ii) In his examination-in-chief, he deposed that he was competent to remove all RPO officials i.e. A2 to A6 from the service, but he was not competent to remove A1. He further clarified that qua A1 Additional Secretary Administration and CPV was competent to remove him from service. He further deposed that due to said reason, he had taken his approval, thereafter, sanction was accorded and sanction order under Section 19 of PC Act was issued, which is exhibited as Ex.PW21/A.
(iii) Perusal of sanction order Ex. PW21/A makes it clear that CBI No. 09/12 Page 115 of 130 State through CBI v. Bibianus Toppo & Ors.
sanction order was issued with the approval of competent authority i.e. Additional Secretary (Administration and CPV), which corroborates the testimony of PW21 that necessary approval was also taken qua A1 from the competent authority.
(iv) Though PW21 was thoroughly cross-examined, yet no question was put to him that he had not taken any approval qua A1 from the competent authority. No doubt, counsel for A1 had put a suggestion that approval of competent authority was not obtained, but the said suggestion was categorically denied, thus the said suggestion has no evidentiary value.
(v) In case Mohd. Iqbal Ahmed Vs State of Andhra Pradesh, 1979 SCC (Crl.) 926, Apex Court held that an order or valid sanction can be proved by the Sanctioning Authority in two ways either:-
(a) By producing the original sanction which itself contains the facts constituting the offence and the grounds of satisfaction; or
(b) By adducing evidence aliuned to show that the facts were placed before the Sanctioning Authority and the satisfaction arrived at, by it.
(vi) In the instant case, not only PW21 deposed on oath that necessary approval was taken from the competent authority qua A1 but it is also recited in sanction order Ex.PW21/A, thus there is no reason to disbelieve the deposition of PW21.
(vii) During the cross-examination of PW21, an attempt was made to cause a dent in his testimony on the grounds that the CBI No. 09/12 Page 116 of 130 State through CBI v. Bibianus Toppo & Ors.
investigating agency had not placed entire material before him at the time of seeking sanction; that he had not applied his mind and that he had accorded sanction on the basis of draft sanction placed before him. But all these suggestions were categorically denied.
(viii) It is pertinent to state that during cross-examination of PW21, no attempt was made by the defence counsel to call for the file in order to prove their plea that no material was placed before the sanctioning authority at the time of seeking sanction against the accused persons or that sanction was granted on the draft sanction produced by the CBI or without application of mind.
(ix) Apex Court in case title State of Maharasthra Vs Mahesh G. Jain, criminal appeal No. 2345 of 2009 decided on May 28, 2013 summed up the Principles and guidelines which are required to be followed to decide the question which inundates the trial Court, challenging the sanction order. Hon'ble Apex Court after appreciating earlier precedents on the subject had culled out the guiding Principles in Para 13 of the judgements, which are reproduced as under:
(a) It is incumbent on the prosecution to prove that valid sanction has been granted by Sanctioning Authority after being satisfied that a case for sanction has been made out.
(b) The Sanction Order may expressly show that the sanctioning authority has perused the material placed before him and after consideration of the circumstances, has granted sanction for prosecution.
(c)The prosecution may prove by adducing the evidence that the material was placed before the CBI No. 09/12 Page 117 of 130 State through CBI v. Bibianus Toppo & Ors.
Sanctioning Authority and his satisfaction was arrived at, upon perusal of the material placed before him.
(d) Grant of Sanction is only an administrative function and the sanctioning authority is required to prima facie reach the satisfaction that relevant facts would constitute the offence.
(e) The adequacy of material placed before the Sanctioning Authority cannot be gone into, by the Court, as it does not sit in Appeal over the Sanction Order.
(f) If the sanctioning authority has perused all the material placed before him and some of them have not been proved, that would not vitiate the order of sanction.
(g) The order of sanction is a pre-requisite, as it is intended to provide a safeguard to the public servant against frivolous and vexatious litigants, but simultaneously an order of sanction should not be construed in a pedantic manner and there should not be a hyper technical approach to test its validity.
(x) In Bhagwan Jathya Bhoir Vs State of Maharashtra, 1992 Crl. L. J. 1144 (Bombay), it was held by High Court of Bombay that procedure adopted by the investigating agency in forwarding a draft sanction order to the sanctioning authority after summarising all evidence and requesting him to examine the record and to accord sanction, if satisfied, is not improper. Same view was taken by High Court of Madras in K. Nachimuthu Vs State 1994 Crl. L. J. 2760.
(xi) In view of the ongoing discussion, I do not find any merit in the contentions raised by counsel for the accused persons that the sanction accorded under Section 19 of PC Act is defective.
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99. Now coming to the judgements cited by counsel for the accused persons namely Mohd. Iqbal Ahmed v/s. Andhra Pradesh AIR 1979 SC 677, State of Goa Vs Babu Thomas 2005 Crl. L. J. 4379 and State, Insp. of Police of Vishakhapatnam v/s. Surya Sankramkari, 2006 Crl. L.J. 4598. I have perused all the said judgements carefully. On perusal of judgements, I am of the view that same are not helpful to the accused in any manner as the facts involved in said cases were different from the facts of the case in hand. In the said cases, there was nothing on record to show that approval of competent authority was taken before granting the sanction whereas in the instant case there is not only oral but documentary evidence on record to prove the fact that approval of competent authority i.e. Additional Secretary Administration and CPV was taken qua A1 before according the sanction. Thus, to my mind there is no infirmity or illegality in the sanction accorded by PW21.
100. Though I do not find any defect in the sanction accorded under Section 19 of PC Act, yet to my mind, there is no merit in the contention of learned public prosecutor that the defect if any, is curable under sub-section (3) of 19 PC Act. Relevant portion of sub-section 3 of 19 of PC Act read as under:
3. Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974)
(a) no finding , sentence or order passed by a special judge shall be reversed or altered by a court in appeal, confirmation or revision on the ground of the absence of, or any error, omission or irregularity in, the sanction required under sub-section (1), unless in the opinion of that CBI No. 09/12 Page 119 of 130 State through CBI v. Bibianus Toppo & Ors.
court, a failure of justice has in fact been occasioned thereby;
(emphasis supplied)
(i) Bare perusal of Section 19 (3) (a) of PC Act makes it clear that it relates to the appellate/revisional court and not to the trial Court. The finding of Special Court cannot be reversed mere on the ground that there was any error, omission or irregularity in the sanction unless such omission, irregularity, in the opinion of that Court (Appellate/Revisional Court) a failure of justice has in fact been caused. Thus, the contention raised by learned Public Prosecutor is without any substance.
Contentions relating to conspiracy:-
101. Learned counsel appearing for accused persons vehemently argued that there is no iota of evidence on record that there was any conspiracy among the accused persons. On the contrary, counsel appearing for CBI contended that though there is no direct evidence on record to prove conspiracy among the accused persons, but from their acts, it is established that all accused persons were in conspiracy with each other otherwise there was no possibility for the applicants to get additional passport booklets in the name of fictitious persons.
102. Though in order to prove the guilt of accused persons, prosecution has examined as many as 24 witnesses, yet none of them has deposed even a single word about the alleged conspiracy among CBI No. 09/12 Page 120 of 130 State through CBI v. Bibianus Toppo & Ors.
the accused persons. No doubt, it is difficult to find out direct evidence to prove the conspiracy as generally conspiracy is hatched in secrecy. It is also undisputed fact that the conspiracy may also be proved by circumstantial evidence. But the onus is upon the prosecution to prove such circumstances against the accused persons. But in the instant case, CBI has even failed to produce any such circumstantial evidence to prove conspiracy among the accused persons. Mere fact that A1 to A6 were working in the same office and they had dealt with the files in question is not sufficient to draw a conclusion that they had hatched any conspiracy either with the applicants or with the remaining accused persons. Being the officials posted at RPO, they were otherwise duty bound to deal with the files in question.
103. It is admitted case of CBI that first time, application was moved for obtaining additional passport booklet on August 29, 2003 whereas the last application was moved on March 24, 2004. In order to prove conspiracy, CBI is bound to establish that there was a meeting of mind among the accused persons prior to August 29, 2003. But during trial, CBI failed to produce any such evidence. Even there is nothing on record, which may show that the RPO officials i.e. A1 to A6 used to meet with other accused persons. Surprisingly, during investigation, CBI even did not try to establish the modus-operandi of the accused persons. Though PW24 in his cross-examination deposed that he had recorded the statement of accused persons during investigation, but the same has not been placed on record. Even the disclosure statement of accused persons was not recorded to ascertain their modus-operandi. Had investigating officer recorded the disclosure statement of accused persons, prosecution may able to show some conspiracy among the CBI No. 09/12 Page 121 of 130 State through CBI v. Bibianus Toppo & Ors.
accused persons, but investigating officer did not deem it appropriate to record such disclosure statements. Even he did not place the statement of accused persons on record. Mere fact that A1 to A6 were posted in the same office and they dealt with the files in discharge of their official duty is not sufficient ipso-facto to prove that they were acting in furtherance of any conspiracy. In the absence of any cogent evidence on record, I am of the considered opinion that CBI has failed to prove the conspiracy. Thus, accused persons cannot be held laible for the acts of each other, however, accused persons shall be liable for their individual acts.
CONCLUSION:-
104. Pondering over the ongoing discussion, I am of the considered opinion that:-
(i) prosecution has succeeded to bring home the guilt of accused Anil Dhawan (A8) for the offence punishable under Section 419/420/468/471 IPC beyond of shadow of all reasonable doubts, accordingly, I hereby hold him guilty thereunder.
(ii) prosecution has also succeeded to bring home the guilt of accused Anil Dhawan (A8) for the offence punishable under Section 12 (1) (b) of Passport Act, 1967 beyond the shadow of all reasonable doubts, accordingly, I hereby hold him guilty thereunder.
(iii) prosecution has also succeeded to bring home the guilt CBI No. 09/12 Page 122 of 130 State through CBI v. Bibianus Toppo & Ors.
of accused Bibianus Toppo (A1), Harbhajan Yadav (A2) and Ram Chander (A3) for the offence punishable under Section 13 (2) read with Section 13 (1) (d) (iii) of Prevention of Corruption Act, 1988 beyond the shadow of all reasonable doubts, accordingly, I hereby hold them guilty thereunder.
105. However, prosecution has failed to bring home the guilt of accused Sushma Bajaj (A4), G.D. Joshi (A5), and Badloo Khan (A7) beyond the shadow of all reasonable doubts, accordingly, I hereby acquit them from all the charges.
Announced in the open Court on this 26th day of November, 2015 (PAWAN KUMAR JAIN) Special Judge-01, CBI, North West Rohini Courts, Delhi/sm CBI No. 09/12 Page 123 of 130 State through CBI v. Bibianus Toppo & Ors.
IN THE COURT OF SH. PAWAN KUMAR JAIN, SPECIAL JUDGE, CBI-01, NORTH-WEST DISTRICT, ROHINI COURTS COMPLEX, DELHI IN THE MATTER OF:
CBI No. : 09/2012ID No. : 02404R0011672008
FIR No. : RC-2(A)/2005/SCU-V/CBI/SCR-II,
New Delhi
U/Sec: 120B r/w 419/420/467/468/471/474 IPC 13(2) r/w 13(1)(d) of PC Act 1988 12(1) (b) of Passport Act 1967 and substantive offences thereto Police Station: CBI/SCU-V/SCR-II/New Delhi STATE THROUGH CENTRAL BUREAU OF INVESTIGATION, NEW DELHI VERUS CBI No. 09/12 Page 124 of 130 State through CBI v. Bibianus Toppo & Ors.
1. Bibianus Toppo S/o Late Joseph Toppo, R/o 14 G, Sector 4, DIZ Area, Raja Bazar, Gole Market, New Delhi-01.
..........Convict No. 12. Harbhajan Yadav S/o Late Sultan Singh Yadav, R/o H. No. 949/1, Gali No. 4, Ashok Vihar, Gurgaon, Haryana.
..........Convict No. 23. Ram Chander S/o Sh. Maman Ram, R/o J-624, Sardar Colony, Sector 16, Rohini, Delhi-85 ..........Convict No. 3
4. Anil Dhawan S/o Late Madan Lal Dhawan, R/o 254, DDA Flats, 1st Floor, New Ranjit Nagar, New Delhi-8.
..........Convict No. 4 CBI No. 09/12 Page 125 of 130State through CBI v. Bibianus Toppo & Ors.
Appearance : Sh. Harsh Mohan , learned Public Prosecutor for CBI Sh. R. Ramachandran, Advocate, counsel for Bibianus Toppo (C1) Dr. Anil Gupta, Advocate, counsel for Harbhajan Yadav (C2) Sh. Sukhvinder Singh, Advocate, counsel for Ram Chander (C3) Sh. Ashwani Verma, Advocate, counsel for accused Anil Dhawan (C4) ORDER ON THE POINT OF SENTENCE :-
1. Vide separate judgment dated November 26, 2015, Bibianus Toppo (C1), Harbhajan Yadav (C2) and Ram Chander (C3) have been held guilty for the offence punishable under Section 13 (2) read with Section 13 (1) (d) (iii) Prevention of Corruption Act, 1988.
Besides that Anil Dhawan (C4) has been held guilty for the offence punishable under Section 419/420/468/471 IPC and 12 (1) (b) of Passport Act, 1967.
2. Learned counsels appearing for convicts request for lenient view on the grounds that they are law abiding citizens and they are sole bread earners of their respective families. They are also suffering from agony of trial for the last more than seven years.
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(i) Besides that counsel appearing for convict Ram Chander submits that convict is a 54 years old man and there is no probability of repeating similar offence by him.
(ii) Similarly, counsel appearing for convict Harbhajan Yadav requests for a lenient view on the ground that convict Harbhajan Yadav is not involved in any other case except passport scam cases and further states that during last 7 years, convict has not been found indulged in any other criminal matter, which shows that convict has reformed himself.
(iii) Learned counsel appearing for convict Bibianus Toppo submits that there is no evidence on record that convict had taken any illegal gratification or any monetary benefit. It is further submitted that convict is aged about 65 years and suffering from various ailments. Convict has only one son, but he is still unemployed, thus convict is the sole bread earner of his family.
(iv) Counsel appearing for convict Anil Dhawan also requests for a lenient view on the ground that convict has been appearing regularly in the Court and there is nothing on record which may suggest that he had committed any other offence after filing the charge-sheets in passport scam cases. It is further submitted that both the kidneys of father of the convict Anil Dhawan had already been failed, thus he is on regular dialysis for the last two years. It CBI No. 09/12 Page 127 of 130 State through CBI v. Bibianus Toppo & Ors.
is further submitted that convict is sole bread earner of his family comprising of his old parents and two small school going kids besides his wife.
3. Per contra, counsel appearing for CBI refuted the said contentions by vehemently arguing that the convicts are involved in numerous passport scam cases and due to their act, passports in the form of additional passport booklets had been issued in favour of fictitious persons. It is further argued that since passport is an important document to prove identity and nationality, thus such passports could be misused by anti- national elements. It is further submitted that the convicts had also been convicted in other matters such as CC No. 74/2008, CC No. 56/08, CC No. 11/12 and CC no. 5/12, CC No. 76/08 and 24/09, accordingly, prayer is made for maximum punishment.
4. I have heard rival submissions made by counsel for both the parties, perused the record carefully and gave my thoughtful consideration to their contentions.
5. In view of the aggravating and mitigating factors as highlighted by counsel for both the parties and the fact that prosecution failed to establish the charges of conspiracy, I am of the considered opinion that it is not a fit case to impose maximum sentence as prayed by learned Public Prosecutor for CBI. Simultaneously, in view of the aggravating factors as pointed out CBI No. 09/12 Page 128 of 130 State through CBI v. Bibianus Toppo & Ors.
by counsel for CBI, I am also of the opinion that it is also not a fit case to take extreme lenient view as prayed by counsel for the convicts.
6. In view of the aforesaid discussion, I hereby sentence the convict no. 1 to 3 i.e. Bibianus Toppo (C1), Harbhajan Yadav (C2) and Ram Chander (C3) rigorous imprisonment for a period of one year and a fine of ` 10,000/- each in default further simple imprisonment for a period of six months for the offence punishable under Section 13(2) read with Section 13(1) (d) (iii) of Prevention of Corruption Act.
(i) I also sentence convict no.4 Anil Dhawan rigorous imprisonment for a period of three years and a fine of ` 20,000/- in default further simple imprisonment for a period of nine months for the offence punishable under Section 420 IPC.
(ii) I also sentence convict no.4 Anil Dhawan rigorous imprisonment for a period of two year and a fine of ` 10,000/- in default further simple imprisonment for a period of six months for the offence punishable under Section 419 IPC.
(iii) I also sentence convict no.4 Anil Dhawan rigorous imprisonment for a period of three years and a fine of ` 20,000/- in default further simple imprisonment for a period of nine months for the offence punishable under Section 468 IPC.
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(iv) I also sentence convict no.4 Anil Dhawan rigorous imprisonment for a period of two year and a fine of ` 10,000/- in default further simple imprisonment for a period of three months for the offence punishable under Section 471 IPC.
(v) I also sentence convict no.4 Anil Dhawan rigorous imprisonment for a period of one year and a fine of ` 5,000/- in default further simple imprisonment for a period of three months for the offence punishable under Section 12 (1) (b) of Passport Act, 1967.
7. Benefit of Section 428 Cr.P.C, if any, be given to the convicts. All sentences shall run concurrently.
8. Copy of judgment along with order on the point of sentence be given to the convicts/their counsel free of cost.
9. File be consigned to record room.
Announced in the open Court on this 1st day of December, 2015 (PAWAN KUMAR JAIN) Special Judge-01, CBI, North West Rohini Courts, Delhi/sm CBI No. 09/12 Page 130 of 130