Delhi District Court
1 Scc 478, State Of Madhya Pradesh vs Sheetla Sahai And Others on 21 March, 2016
State through CBI v. Anna Wankhede and others (TAJ CGHS LTD.)
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. : 06/2008
ID No. : 02404R0437222006
FIR No. : RC-9(E)/2005/EOW-I/CBI
New Delhi
U/Sec: 120B IPC r/w
419/420/465/467/468/471 IPC
13(2) r/w 15 and 13(1)(d) of PC Act 1988
substantive offences thereto
Police Station: CBI/EOW-I/CBI/New Delhi
STATE
THROUGH
CENTRAL BUREAU OF INVESTIGATION,
NEW DELHI
VERSUS
CBI No. 06/08 Page 1 of 95
State through CBI v. Anna Wankhede and others (TAJ CGHS LTD.)
1. Anna Wankhede
S/o Sh. P. Arun Ji
R/o 148/EA-2, Phase-III,
Mayur Vihar
New Delhi
(Convicted vide order dated 06.06.2012)
..........Accused No. 1
2. Narayan Diwakar
S/o Late C. Lal
R/o G-30, Masjid Moth,
Gr. Kailash-II,
New Delhi
..........Accused No. 2
3. D.N. Sharma
S/o Late Ram Diwaya
R/o 1376, Rani Bagh,
New Delhi-34
..........Accused No. 3
4. Ram Nath
S/o Late Bishan Lal
R/o 192, West Guru Anga Nagar
Laxmi Nagar, Gali No.9,
Delhi-92
..........Accused No. 4
CBI No. 06/08 Page 2 of 95
State through CBI v. Anna Wankhede and others (TAJ CGHS LTD.)
5. Faiz Mohd.
S/o Late Gulam Mohd.
R/o 4794, Bara Hindu Rao
Near Sadar Bazar
Pahari Dhiraj, Delhi-6
..........Accused No. 5
6. Sri Chand
S/o Hari Singh
R/o 274-A, Pocket-C,
Mayur Vihar, Phase-III,
Delhi-91
(Discharged vide order dated 30.04.2012)
..........Accused No. 6
Date of Institution : 19.11.2008
Date of judgement reserved on : 29.02.2016
Date of pronouncement of judgement : 15.03.2016
Appearance: Sh. Harsh Mohan, Public Prosecutor for
CBI
Sh. Abhishek Prasad, Advocate, counsel for
accused Narayan Diwakar (A2)
Sh. Neeraj Verma, Advocate, counsel for
accused D.N. Sharma (A3)
Sh. S.K. Bhatnagar, Advocate, counsel for
accused Ram Nath (A4) and Faiz Mohd. (A5)
CBI No. 06/08 Page 3 of 95
State through CBI v. Anna Wankhede and others (TAJ CGHS LTD.)
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 on July 29, 2005 an FIR was registered on the basis of source information. It was alleged that during the period 2001-2004 Anna Wankhede ("A1"), self styled Secretary of the Taj Cooperative Group Housing Society Ltd. (in short 'Society') conspired with accused Narayan Diwakar ("A2"), the then Registrar Cooperative Societies, New Delhi (RCS); D.N.Sharma, the then Assistant Registrar, North West (AR/NW) ("A3"); accused Ramnath, the then Grade II Inspector ("A4"); Faiz Mohd. Retired Grade-II Inspector ("A5") and accused Srichand, the builder ("A6") & others to fraudulently and dishonestly revive the Taj CGHS Ltd. It was alleged that the said Society was defunct and in furtherance of the above said criminal conspiracy, A2 revived the Society on the basis of bogus/fake documents, inspection reports, physical verification reports etc. with sole intention to get the land allotted in the name of the society from DDA at cheaper rate. It was alleged that since under Section 63(3) of Delhi Cooperative Societies Act, 1972 (in short DCS Act), a wound up society can be revived, the builder Mafia exploited the said provision in criminal conspiracy with the officials of RCS.
(ii) It was alleged that the Society was registered with RCS on June 15, 1972 with the Registration No. 135(H) at the address of 1855, Gali Wazir Bagh, Post Office, Turkman gate, Tehsil & District, Delhi. It was further alleged that the society had also functioned from 2241, Gali CBI No. 06/08 Page 4 of 95 State through CBI v. Anna Wankhede and others (TAJ CGHS LTD.) Dekotan, Turkman Gate, Delhi.
(iii) It was alleged that initially there were only 54 members in the society, which were increased upto the strength of 167 subsequently. Though in May 1975 DDA had offered a land to the said Society, yet same was not accepted by the Society as Society was expecting land in South Delhi area through Wakf Board. Accordingly, DDA closed the said offer. Thereafter, Society was wound up by the RCS on May 16, 1979 vide liquidation order dated May 16, 1979 and Mr. M.L.Ahuja was appointed as Liquidator.
(iv) It was alleged that later on Society challenged the order dated May 16, 1979 by filing an appeal before the Court of Lt. Governor, Delhi on December 12, 1979, but it was dismissed on May 23, 1980.
The said order was challenged by the Society before the High court of Delhi by filing a Civil Writ Petition No. 1314 of 1980. Vide order dated December 3, 1980, the order dated May 16, 1979 and December 12, 1979 were set aside. Consequent to the order passed by the Hon`ble High court of Delhi, DDA alloted a piece of land to the society at Geeta Colony, Delhi in the year 1982, the possession thereof was given to the Society on June 15, 1983.
(v) It was alleged that on May 15, 1984, Society had changed its address from Turkman Gate to C-156, Minto Road Complex, New Delhi.
(vi) It was alleged that in the year 1988, the said Society had amalgamated with Sartaj CGHS, accordingly, a new Registration No. CBI No. 06/08 Page 5 of 95 State through CBI v. Anna Wankhede and others (TAJ CGHS LTD.) i.e. 2001 was alloted to the new society named as Taj Sartaj CGHS Ltd. The total strength of its member became to 358 (160 of Taj CGHS Ltd. and 191 of Sartaj CGHS Ltd.) (in short Taj-Sartaj CGHS Ltd. or Amalgamated Society).
(vii) It was alleged that the said Amalgamated Society completed the construction of flats for all its 358 members by 1991 and the flats were also alloted to them in February 1991.
(viii) It was further alleged that in the year 2003, the original files of Taj CGHS and the Amalgamated Society were dishonestly and fraudulently made to disappear from the office of RCS. Later on, an application dated October 1, 2003 was submitted in the office of RCS by Anna Wankhede (A1) claiming himself as Secretary of the Society in the name of Taj CGHS with a request to cancel the wound up order and revived the Society under Section 63(3) of DCS Act, 1972.
(ix) It was recited by Anna Wankhede (A1) in his above application that the Society was registered at its address C-156, Minto Road Complex, New Delhi and it shifted its registered office to B-3/66, Ashok Vihar, Phase-II, New Delhi. It was alleged that during investigation it was revealed that the said address was bogus as no society was found ever existed at the given address and it was further revealed that the said premises was in the possession of Ashwani Mittal since September 4, 2003.
(x) It was further alleged that the above said application of A1 was processed by accused Faiz Mohd.(A5) in the office of RCS on CBI No. 06/08 Page 6 of 95 State through CBI v. Anna Wankhede and others (TAJ CGHS LTD.) November 18, 2003 and D.N. Sharma (A3) being the Assistant Registrar forwarded the said note to Joint Registrar on November 20, 2003.
(xi) It was alleged that though A2 had not mentioned the liquidation order No. F-47/135/78/H/Coop/1690-99 dated August 23, 1979 in his application, yet the said number is mentioned in the note of A2, which was forwarded by A3.
(xii) It was alleged that that Rakesh Bhatnagar, the then Joint Registrar noted in his note dated December 21, 2003 that the request of A2 was not supported by any documentary evidence, accordingly he advised AR (NW) to obtain copies of registration certificate, liquidation order, registered bye-laws and list of address etc. from the Society.
(xiii) It was alleged that since the original files of the Society were missing from the office of RCS, it shows that A5 and A4 had pre- set mind to get the Society revived on the basis of bogus notes.
(xiv) It was alleged that A1 had supplied the above requisite documents to the RCS vide his letter dated December 10, 2003 in response to the letter dated November 28, 2003 sent by D.N.Sharma (A3). It was alleged that A1 had submitted the copy of liquidation order dated November 28, 2003 and it bears same number, which was dishonestly mentioned by accused Faiz Mohd. and D.N. Sharma in their notes earlier. It was alleged that A1 also submitted the bogus/forged registration certificate because in the said certificate, it was mentioned that Society was registered on June 24, 1972 at the address of C-156, CBI No. 06/08 Page 7 of 95 State through CBI v. Anna Wankhede and others (TAJ CGHS LTD.) Minto Road Complex, New Delhi whereas during investigation, it was revealed that the Society was registered on June 15, 1972 at the registered office 2241, Dekotan Street, Turkman Gate and later on Society had shifted its registered office to C-156, Minto Road Complex, New Delhi on May 15, 1984.
(xv) It was alleged that A1 had also submitted a bogus copy of liquidation order as M.L.Ahuja the then liquidator told the CBI that liquidation number appeared in the submitted copies was different from the original one. He further informed the CBI that signature of Ashok Desai, the then Dy. Registrar appearing on the copy of said liquidation order was also forged.
(xvi) It was further revealed that RCS officials did not verify the liquidation order from any Government office despite the fact that copy of the same was sent to different Government Departments such as DDA, Revenue Department of NCT, Delhi State Cooperative Bank and branches/zones in the office of RCS etc. It was further alleged that the liquidation order could have also been verified from the gazette notification issued under Rule 94 (4) of DCS Rules, 1973. It was further alleged that RCS officials could have also been checked whether the registration of the said Society was cancelled under Section 19 of DCS Act, 1972 or not.
(xvii) It was further revealed that on January 7, 2004, Narayan Diwakar (A2) approved the proposal to re-construct the file of the Society on the basis of the record available with the Society and further approved the proposal to appoint Ram Nath, Grade-II Inspector CBI No. 06/08 Page 8 of 95 State through CBI v. Anna Wankhede and others (TAJ CGHS LTD.) as inspecting officer to conduct inspection of the records of Society under Section 54 of DCS Act, 1972. But, he did not raise any question about the missing of original files of the Society. The said proposal was recommended and forwarded by A5, A3 and J.S.Sindhu, the then Joint Registrar. But they also did not propose to take any step about the missing files. Even no police complaint was lodged by the RCS officials regarding missing of the files.
(xviii) It was alleged that accused Narayan Diwakar (A2) ignored the verification of liquidation order deliberately and approved the reconstruction of file and further deliberately appointed accused Ram Nath to inspect the record of the Society.
(xix) It was alleged that accused Ram Nath (A4) submitted a false inspection report dated January 19, 2004 stating that he visited the office of Society at B-3/66, Ashok Vihar, Phase-II, Delhi and the audit of the Society was pending since 1971. However, during investigation, it was revealed that no society had ever existed at the said address and Society was registered only in 1972. It was further alleged that A3 also falsely recorded in the notesheet that A4 had visited the office of the Society and collected the relevant record.
(xx) It was alleged that as per record collected by A4, Mr. S. K. Sharma; Chaman Lal; Anna Wankhede; Smt. Anita Singh and Smt. Pushpa Devi were shown to be elected as President , Vice President, Secretary, Treasurer and member respectively on July 6, 2003.
CBI No. 06/08 Page 9 of 95State through CBI v. Anna Wankhede and others (TAJ CGHS LTD.) (xxi) It was alleged that during investigation it was revealed that all the above persons except Anna Wankhede were fictitious, thus they cannot be traced out. It was further alleged that 134 members out of 135 were found fictitious.
(xxii) It was alleged that on January 20, 2004, A3 and A5 put up a joint note recommending the revival of the Society under Section 63(3) of DCS Act 1972 and to approve the list of 135 members of the Society for allotment of land. They also falsely recited in their note including that A4 had visited the office address of the Society and found membership register complete in all respect; audit of the Society was pending since July 1, 1971 and they further recited that the proceeding register was also found complete.
(xxiii) It was alleged that the membership application and affidavits of 135 members, which were collected by accused Ram Nath were also found forged. During investigation, it was revealed that all the stamp papers on which the said affidavits were prepared were purchased by A1 on December 5, 2003 from one Avanish Kumar, an employee of P.R.Bhatia, Stamp Vendor, having licence No. L-262, Parliament Street, New Delhi. Thereafter, A1 got typed the said affidavits from typist Ravi Robinson, then he got notarised the same from Sh. K. K. Kaul, Notary Public on December 13, 2003. It was alleged that neither Notary Public affixed his stamp on the affidavits nor entered particulars of the society members in the register maintained by him.
CBI No. 06/08 Page 10 of 95State through CBI v. Anna Wankhede and others (TAJ CGHS LTD.) (xxiv) It was further alleged that on the recommendation of A5 and A3, the Reader of A2 approved the issuance of notice under Section 63(3) of DCS Act on January 23, 2004 to cancel the winding up order and fixed the matter for hearing on February 10, 2004.
(xxv) It was alleged that on February 10, 2004, A1 appeared before A2. Thereafter, A2 directed Assistant Registrar (NW) to conduct spot verification of the membership and listed the matter on February 24, 2004.
(xxvi) It was alleged that A2 deliberately approved the issuance of aforesaid notice without raising any query about the missing files and without counter checking the forged documents submitted by the Society.
(xxvii) It was alleged that accused Faiz Mohd. (A5) conducted the spot verification of members and he submitted a false report on February 16, 2004. It was alleged that while recommending the request of Society under Section 63(3) of DCS Act, 1972, D.N.Sharma (A3) submitted a detail report dated February 20, 2004 on the note sheet stating that Faiz Mohd. had conducted physical verification of the society i.e. 14 members out of 135. It was further alleged that the Society was registered at Sl. no. 135H on June 24, 1972 at the registered address C-156, Minto Road Complex, New Delhi and is functioning from B-3/66, Ashok Vihar, Phase-II, New Delhi since March 16, 1979. He also recorded that the documents pertaining to the membership were produced by the Secretary of the Society for verification and same were counter checked/verified and found in order CBI No. 06/08 Page 11 of 95 State through CBI v. Anna Wankhede and others (TAJ CGHS LTD.) and the documents of the Society containing the final list of 135 members have been examined and got verified.
(xxviii) It was further alleged that Faiz Mohd. (A5) submitted a bogus photostate copy of ration card of 14 members who have been allegedly verified by him. In his report, A5 certified that said 14 members were genuine. However, during investigation, it was revealed that either the said 14 members were not residing at the given addresses or their addresses were fictitious. It was further alleged that from the office of Food and Supply, it was revealed that the said ration cards were not issued from their office, thus the same were forged and fabricated. It was alleged that this establishes the conspiracy of A3, A4 and A5 with A1 and they facilitated A1 in revival of the Society on the basis of false, forged and fabricated documents.
(xxix) It was alleged that though A2 had fixed the matter before him for February 24, 2004 but there is nothing on record to show what had happened on February 24, 2004. It was alleged that on March 9, 2004, A2 with dishonest intention recorded that winding up order passed by the then Dy. Registrar shows that no proper procedure was followed by him and the reasons mentioned therein were not adequate to initiate such extreme step. It was also recorded that sufficient opportunity was not given to the Society to rectify shortcomings mentioned in the notice issued by the RCS. Accordingly, A2 reserved the case for order and vide order dated March 11, 2004, A2 cancelled the winding up order and revived the Society. In the said order, it was recorded that A1 Secretary of the Society appeared before him along with Mr. V. K. Gulati, Advocate. He further recorded that the CBI No. 06/08 Page 12 of 95 State through CBI v. Anna Wankhede and others (TAJ CGHS LTD.) revival order was subject to the condition that the pending audit and the election of the Managing Committee shall be got completed within two month's time and he appointed Mr. Sanjeev Bharti as an Election Officer, to conduct the election of the Society. It was alleged that vide letter dated March 11, 2004, A3 forwarded the name of Society to AR (Policy) alongwith the approved list of 135 members with a request to forward the list to DDA for allotment of land. Accordingly, Yogi Raj, Asstt. Registrar (Policy) forwarded the name of the Society along with the approved list of 135 members to the DDA vide letter dated March 25, 2004 for allotment of land. It was alleged that though revival order was conditional, yet the name of the Society was forwarded to DDA on March 25, 2004. It was alleged that neither the election was got conducted nor audit was got done before forwarding the name of the Society to DDA, this clearly shows that A2 had pre-set mind to get the land alloted in the name of Society.
(xxx) It was alleged that A1 vide his letter dated March 29, 2004 requested to change the name of Society, the same was approved by A2 being the RCS on the very same day and the changed name was communicated to DDA vide letter dated April 2, 2004. It was further alleged that Society had changed its address from B-3/66, Ashok Vihar, Phase II to G-17/17, Sector-15, Rohini I, Delhi. It was alleged that Society had never functioned from the said address, which shows that A1 had provided a bogus address of the Society.
(xxxi) It was alleged that DDA had sent back the file to RCS for re-verification of 135 members of the Society, accordingly RCS published a notice in the newspapers directing the said Society, CBI No. 06/08 Page 13 of 95 State through CBI v. Anna Wankhede and others (TAJ CGHS LTD.) members to furnish their affidavits in support of their membership.
(xxxii) It was alleged that during investigation it was revealed that Sri Chand (A6) approached M/s Vibha ADS on December 30, 2004 and paid a sum of ` 21, 777/- in cash for issuance of public notice in the name of Golden Valley CGHS i.e. new name of the Society. The said firm paid the amount to M/s HT Media Ltd, New Delhi for publishing an advertisement on behalf of the said Society. It was further alleged that since A6 had introduced Smt. Rashmi Gulati and V. K. Gulati to A1 for representing the Society for its revival, this shows that A6 had played a major role in the fraudulent revival of the Society. It was alleged that during investigation, no criminality was found on the part of J.S.Sindhu, the then Joint Registrar and Yogi Raj, the then Asstt. Registrar (Policy). However, since they acted negligently, recommendation was made to the competent authority to take suitable action against them. Similarly, recommendation was made to Ministry of Law and Justice, New Delhi for taking suitable action against Mr. K. K. Kaul, Advocate, Public Notary for his conduct.
(xxxiii) It was alleged that during investigation, accused persons namely S. K. Sharma, Smt. Anita Sharma, Chaman Lal, Smt. Pushpa Devi and R.S.Gill were found fictitious persons, accordingly their name have been mentioned in column no. 2.
2. After completing investigation, challan was filed against A1 to A6 for the offence punishable under Section 120B IPC read with Section 419/420/467/468/471 IPC and Section 13 (2) read with Section 13 (1) (d) of PC Act, 1988 and substantive offences punishable under CBI No. 06/08 Page 14 of 95 State through CBI v. Anna Wankhede and others (TAJ CGHS LTD.) Section 13(2) read with 13(1)(d) of Prevention of Corruption Act, 1988 against A2 to A5.
3. Necessary sanction was also obtained under Section 19 of PC Act in respect of A3 and A4. However, no sanction was obtained under Section 19 of PC Act qua other accused persons.
4. Vide order dated April 30, 2012, A6 had been discharged.
5. Vide order dated April 30, 2012, it was ordered to frame charges as under:
Name of the Offences under which charges to be framed. accused persons A1 to A5 Section 120B r/w Section 420/468/471 r/w Section 13 (2) r/w Section 13 (1) (d) of PC Act, 1988 Narayan Diwakar Section 15 read with Section 13 (1) (d) r/w Section 13 (2) of PC Act, 1988 Faiz Mohd. Section 15 read with Section 13 (1) (d) r/w Section 13 (2) of PC Act, 1988 Substantive offences under Section 468/471 IPC D.N. Sharma Section 15 read with Section 13 (1) (d) r/w Section 13 (2) of PC Act, 1988 Anna Wankhede Section 420/468/471 IPC.CBI No. 06/08 Page 15 of 95
State through CBI v. Anna Wankhede and others (TAJ CGHS LTD.)
6. Accordingly, on June 04, 2012, charges were framed against the accused persons in terms of order dated April 30, 2012.
7. Since, accused Anna Wankhede pleaded guilty to the charges, he was held guilty, accordingly, he was convicted vide separate judgment dated June 04, 2012 and sentenced for the period already undergone (i.e. 12 months) and burdened with the fine of ` 5,000/- in default thereof further simple imprisonment for one month.
8. In order to bring home the guilt of other accused persons, CBI has examined as many as 49 witnesses. For the purpose of our discussion and convenience, all the witnesses have been classified in the following categories:
Witnesses relating to prove the ration card of various members:
PW2 Jai Kishan, the then inspector in the
Department of Food and Supply
PW3 Sh. Keemti Lal Khurana, official of Food and
Supply
PW6 Pratap Shankar, official of Food and
Supply
PW8 Ashish Shokeen, official of Food and Supply
PW9 Rajiv Kumar, Inspector, Food and
Supply
PW12 O.N. Chopra, official of Food and Supply
PW13 A.K. Bhardwaj, official of Food and Supply
PW14 Rajiv Kumar, official of Food and Supply
CBI No. 06/08 Page 16 of 95
State through CBI v. Anna Wankhede and others (TAJ CGHS LTD.) PW15 Smt. Raj Bala, official of Food and Supply Witnesses from various post offices to prove that some of the members were not residing at the given addresses:
PW4 Rajesh Kumar Jain, postman, Malkaganj PW5 Prem Singh, postman, Ashok Vihar PW10 S.V. Sadawarti, Asstt. Supdt. Rohini Post Office PW11 Sushil Kumar Tiwari, Asstt. Supdt., GPO, Delhi.
Public witnesses to prove that various persons were not members of the society:
PW7 Raj Kumar
PW19 Smt. Moli Jose
PW20 Sh. Ashwani Mittal
PW21 Sh. Chunni Lal
PW23 Smt. Padma Chandradas
PW24 Ms. Sharmila Malkani
PW26 Sh. Jagbir Singh Dahiya
PW27 Smt. Mohini Devi
PW33 Sh. Mehruddin
CBI No. 06/08 Page 17 of 95
State through CBI v. Anna Wankhede and others (TAJ CGHS LTD.) Original members :
PW30 Sh. Syed Rais Ahmed
PW31 Sh. Abdul Rashid
Witnesses related to affidavits:
PW17 Ravi Robinson, Commercial Typist
PW18 Krishan Kumar Kaul, Notary Public
PW25 Avneesh Kumar, Stamp Vendor
PW36 Pyara Ram Bhatia, Principal Stamp Vendor
PW40 Mohinder Singh, Dy. Secretary, Govt. of NCT,
New Delhi
PW48 S.K. Gupta, independent witness of seizure of
typing machine
Witnesses relating to GEQD:
PW39 Dr. Bibha Rani, Director, CFSL, CBI
PW49 N.C. Sood
Officials from the office of RCS:
PW16 Mr. Manohar Lal Ahuja, Liquidator
PW22 Yogi Raj, Asstt. Registrar (Policy)
CBI No. 06/08 Page 18 of 95
State through CBI v. Anna Wankhede and others (TAJ CGHS LTD.) PW28 Jasbir Singh Sindhu, Joint Registrar PW29 Sanjeev Bharti, Stenographer PW32 Rakesh Bhatnagar, Joint Registrar PW37 G.S. Meena, Joint Registrar PW38 V.K. Bansal, Asstt. Registrar PW46 Rajesh Kumar Srivastava, the then RCS Officers from DDA :
PW34 Mr. R.K. Singh, the then Commissioner (Land Disposal) PW35 Mr. Ram Naresh Thakur, the then Asstt. Director Witnesses relating to sanction:
PW1 Mr. D.K. Mishra, the then Addl. Secretary, Govt. of NCT, Delhi PW42 Mr. S. Raghunathan, the then Chief Secretary, Govt. of NCT, Delhi Miscellaneous witnesses:
PW45 Naresh Kumar Saxena, official of M/s Vibha Ads.
PW47 Ms. Rashmi Gulati, Advocate CBI No. 06/08 Page 19 of 95 State through CBI v. Anna Wankhede and others (TAJ CGHS LTD.) CBI officials :
PW41 Mr. C. S. Prakash Narayanan, the then inspector
PW43 Vijay Chaettiar, the then inspector
PW44 P.K. Khanna, the then inspector, investigating
officer
9. On culmination of prosecution evidence, A2 to A5 were examined under Section 313 Cr. P.C wherein they denied each and every incriminating evidence led by prosecution and submitted that they have been falsely implicated in this case, however, they refused to lead evidence in their defence.
(i) A2 took the plea that he had passed the revival order in terms of the settled proposition of law and in view of the order passed by the Hon'ble High Court in Vikas CGHS Ltd. v. RCS and further submitted that there is no evidence to show that he had passed the revival order in furtherance of any conspiracy.
(ii) A3 took the plea that he has been falsely implicated in this case.
(iii) A4 took the plea that he has been falsely implicated in this case as no land was ever allotted by the DDA. Even no investigation was made from DDA regarding seizure of the register of allotment of land. No recovery was affected from him. It was further submitted that inspection under Section 54 of DCS Act was not required to revive the Society. No sanction had been obtained qua him under Section 197 CBI No. 06/08 Page 20 of 95 State through CBI v. Anna Wankhede and others (TAJ CGHS LTD.) Cr.P.C.
(iv) A5 took the plea that he had been made scape goat in this case and further submitted that he had not violated any provision of law either at the time of dealing with the file or conducting physical verification. It was submitted that there is no evidence to show that he had made any demand for pecuniary gain or obtained any valuable thing. Even no sanction had been obtained qua him under Section 197 Cr. P.C. COMMON CONTENTIONS RELATING TO SANCTION :-
10. Learned counsel appearing for A2 to A5 sagaciously argued that it is admitted case of CBI that the accused persons (A2 to A5) were public servants at the time of commission of alleged offence and as per allegations levelled in the charge-sheet, they had misused their official position either by submitting false reports or showing favour to the Society in question, thus it was urged that the alleged acts had reasonable connection with the official duties performed by the above said accused persons. It was argued that at the time of commission of alleged offence, A1 was working as Registrar of Cooperative Society and whatever order/directions, he had passed, he had passed the same while discharging his duties as Registrar of Cooperative Societies, thus there is a direct connection between the acts performed by him and the commission of alleged offence. Similarly, it was argued that at the time of commission of offence, accused D.N. Sharma (A3) was working as Assistant Registrar in the RCS office and as per allegations, he had forwarded certain proposals put up before him by dealing assistant for CBI No. 06/08 Page 21 of 95 State through CBI v. Anna Wankhede and others (TAJ CGHS LTD.) the approval of RCS. It was argued that whatever recommendations were made by A3, were made by him being the Assistant Registrar while dealing with the file in question in discharge of official duties, thus the acts performed by him had reasonable connection with discharge of official duties. Similarly, it was argued that accused Ram Nath was working as inspector at the relevant time and as per allegations, he had submitted a false and bogus inspection report dated January 19, 2004, which was used in the revival of the said Society. It was contended that assuming for the sake of arguments that the alleged report is totally false and fabricated, but it is admitted case of CBI that he had prepared the said report being the inspector while performing his duty, thus the act of the accused Ram Nath had reasonable connection with the alleged offence. At last, learned counsel appearing for accused Faiz Mohd. contended that at the relevant time, he was posted as dealing clerk and he had also submitted a physical verification report dated February 16, 2004. As per allegations, the said report is false and fabricated. It was contended that assuming for the sake of arguments that the alleged report is totally false and fabricated, but is admitted case of CBI that accused Faiz Mohd. had submitted the report being the official of RCS, thus the acts performed by accused Faiz Mohd. had reasonable connection with the alleged commission of offence. It was argued that since there is a reasonable connection between the acts performed by A2 to A5 and the commission of alleged offence, thus being the public servants they are entitled for the protection available under Section 197 Cr. P.C. It was argued that since CBI had not obtained any sanction under Section 197 Cr. P.C, they cannot be held liable for penal offences. In support of their contentions, they placed reliance on the judgments Amrik Singh v. State of Pepsu AIR 1955 CBI No. 06/08 Page 22 of 95 State through CBI v. Anna Wankhede and others (TAJ CGHS LTD.) SC 309, R. Balakrishna Pillai v. State of Kerala and Another (1996) 1 SCC 478, State of Madhya Pradesh Vs Sheetla Sahai and others (2009) 8 SCC 617, State of Punjab v. Labh Singh, 2014 SCC online SC 1019 and Prof. N.K. Ganguly v. CBI in Criminal Appeal No. 798 of 2015 decided by the Apex Court on November 19, 2015.
11. Per contra, learned Public Prosecutor appearing for CBI refuted the said contentions by vehemently arguing that no separate sanction under Section 197 Cr. P.C was required qua the public servants as conspiracy, cheating and forgery was not part of their official duty. It was further argued that being the public servants, they were not supposed to enter into a criminal conspiracy and commit cheating and forgery, thus it was urged that they are not entitled for the protection under Section 197 Cr. P.C, which is available to honest public servants. It was further contended that since CBI had taken sanction under Section 19 of Prevention of Corruption Act, no separate sanction was required for penal offences. In support of his contention, learned Public Prosecutor placed reliance on the judgments Harihar Prasad v. State of Bihar (1972) 3 SCC 89, P.K. Pradhan v. State of Sikkim (2001) 6 SCC 704, Chaudhary Parveen Sultana v. State of West Bengal and another (2009) 3 SCC 398, Parkash Singh Badal v. State of Punjab and others (2007) 1 SCC 1, Raghunath Anant Govilkar v. State of Maharashtra and others (2008) 11 SCC 289, Rajib Ranjan and others v. R. Vijay Kumar (2015) 1 SCC 513, Shambhoo Nath Mishra v. State of U.P and others (1997) 5 SCC 326 and Surinder Kumar Bansal v. State of Punjab (2006) SC online P&H 25.
CBI No. 06/08 Page 23 of 95State through CBI v. Anna Wankhede and others (TAJ CGHS LTD.)
12. I have heard rival submissions advanced by counsel for both the parties on the above question of law, perused the judgments cited by them and record carefully and gave my thoughtful consideration to their contentions.
13. Perusal of the above said judgments reveal that most of the judgments are based on the case law laid down in Amrik Singh v. State of Pepsu AIR 1955 SC 309, Hori Ram Singh v. Emperor AIR 1939 FC 43 and Shreekantiah Ramayya Munipalli v. State of Bombay AIR 1955 SC 287. It is also pertinent to state that except the judgment of Amrik Singh v. State of Pepsu (supra) and P.K. Pradhan v. State of Sikkim (supra), all the judgments were delivered by the Division Bench of the Apex Court whereas the above said two judgments were delivered by the larger bench.
(i) It is also pertinent to state that the judgments of Hori Ram Singh v. Emperor (supra) and Shreekantiah Ramayya Munipalli v. State of Bombay (supra) were discussed in detail in Amrik Singh v. State of Pepsu (supra), Thus, I deem it appropriate to discuss the law laid down in Amrik Singh v. State of Pepsu (supra) case.
14. In Amrik Singh's case, the allegations against the accused were that his duty was to disburse the wages to workers against their signature or thumb impression in the monthly acquittance roll. It was alleged that he had received the wages of ` 51/- after putting his thumb impression in the said monthly acquittance roll and misappropriated the said amount. Accordingly, he was charge-sheeted CBI No. 06/08 Page 24 of 95 State through CBI v. Anna Wankhede and others (TAJ CGHS LTD.) for the offence punishable under Section 465/409 IPC. The question of sanction was raised first time before the Apex Court. The moot question arose before the Apex Court whether the sanction under Section 197 (1) Cr. P.C was necessary for the prosecution of appellant under Section 409 IPC or not?
(i) While dealing with the above said question, Hon'ble Apex Court referred the judgment of Hori Ram Singh v. Emperor (supra) in Para No. 5 and 6 and same are reproduced as under :
Para No. 5. There has been considerable divergence of judicial opinion on the scope of Section 197(1) of the Code of Criminal Procedure. The question has latterly been the subject of consideration by the highest courts in this country, and by the Privy Council, and the position may now be taken to be fairly well-settled. Hori Ram Singh v. Emperor [ AIR 1939 FC 43 : 1939 FCR 159] is a decision of the Federal Court on the necessity for sanction under Section 270 of the Government of India Act, 1935, which is similar in terms to Section 197(1) of the Code of Criminal Procedure. The facts in that case were that a Sub-Assistant Surgeon was charged under Section 409 with having dishonestly removed certain medicines from a hospital which was under his charge, to his own residence, and under Section 477-A, with having failed to enter them in the stock book. The sanction of the Government had not been obtained for the prosecution under Section 270 of the Government of India Act, and the point for decision was whether it was necessary. It was held that the charge under Section 477-A required sanction, as "the official capacity is involved in the very act complained of as amounting to a crime"; but that no sanction was required for a charge under Section 409, because "the official capacity is material only in connection with the 'entrustment' and does not necessarily enter into the later act of misappropriation or conversion, which is the act complained of".CBI No. 06/08 Page 25 of 95
State through CBI v. Anna Wankhede and others (TAJ CGHS LTD.) Para No. 6. In the course of his judgment, Varadachariar, J. discussed the scope of Section 197(1) of the Code of Criminal Procedure and after observing that the decisions on that section were not uniform, proceeded to group them under three categories those which had held that sanction was necessary when the act complained of attached to the official character of the person doing it, those which had held that it was necessary in all cases in which the official character of the person gave him an opportunity for the commission of the crime, and those which had held it necessary when the offence was committed while the accused was actually engaged in the performance of official duties. The learned Judge expressed his agreement with the first of the three views.
In H.H.B. Gill v. King [ AIR 1948 PC 128 : 75 IA 41] the question arose directly with reference to Section 197(1) of the Code of Criminal Procedure. There, the accused was charged under Section 16 with taking bribes, and under Section 120-B with conspiracy. On the question whether sanction was necessary under Section 197(1) it was held by the Privy Council that there was no difference in scope between that section and Section 270 of the Government of India Act, 1935, and approving the statement of the law by Varadachariar, J. in Hori Ram Singh v. Emperor [ AIR 1939 FC 43 : 1939 FCR 159] Lord Simonds observed:
"A public servant can only be said to act or to purport to act in the discharge of his official duty, if his act is such as to lie within the scope of his official duty........The test may well be whether the public servant, if challenged, can reasonably claim that, what he does, he does in virtue of his office".
(emphasis supplied) CBI No. 06/08 Page 26 of 95 State through CBI v. Anna Wankhede and others (TAJ CGHS LTD.)
(ii) Hon'ble Apex Court summed up the proposition of law in Para No. 7 and same is reproduced as under :
Para No. 7. The result of the authorities may thus be summed up: It is not every offence committed by a public servant that requires sanction for prosecution under Section 197(1) of the Code of Criminal Procedure; nor even every act done by him while he is actually engaged in the performance of his official duties; but if the act complained of is directly concerned with his official duties so that, if questioned, it could be claimed to have been done by virtue of the office, then sanction would be necessary; and that would be so, irrespective of whether it was, in fact, a proper discharge of his duties, because that would really be a matter of defence on the merits, which would have to be investigated at the trial, and could not arise at the stage of the grant of sanction, which must precede the institution of the prosecution.
(emphasis supplied)
(iii) During the course of arguments, State conceded before the Apex Court that the sanction under Section 197 Cr. P.C was required to prosecute the accused for the offence punishable under Section 465 IPC, but took the plea that no sanction was required for the offence punishable under Section 409 IPC and the said issue was dealt with by the Apex Court in Para 8 to 10, which are reproduced as under :
Para No. 8. It is conceded for the respondent that on the principle above enunciated, sanction would be required for prosecuting the appellant under Section 465, as the charge was in respect of his duty of obtaining signatures or thumb impressions of the employees before wages were paid to them. But he contends that misappropriation of funds could, under no circumstances, be said to be within CBI No. 06/08 Page 27 of 95 State through CBI v. Anna Wankhede and others (TAJ CGHS LTD.) the scope of the duties of a public servant, that he could not, when charged with it, claim justification for it by virtue of his office, that therefore no sanction under Section 197(1) was necessary, and that the question was concluded by the decisions in Hori Ram Singh v. Emperor [ AIR 1939 FC 43 : 1939 FCR 159] and Albert West Meads v. King [ AIR 1948 PC 156 : 75 IA 185] , in both of which the charges were of criminal misappropriation. We are of opinion that this is too broad a statement of the legal position, and that the two decisions cited lend no support to it. In our judgment, even when the charge is one of misappropriation by a public servant, whether sanction is required under Section 197(1) will depend upon the facts of each case. If the acts complained of are so integrally connected with the duties attaching to the office as to be inseparable from them, then sanction under Section 197(1) would be necessary; but if there was no necessary connection between them and the performance of those duties, the official status furnishing only the occasion or opportunity for the acts, then no sanction would be required.
Para No. 9. Quite recently, this court had to consider in Shreekantiah Ramayya Munipalli v. State of Bombay [ Criminal Appeal No. 89 of 1954] the necessity for sanction under Section 197(1), when the charge was one of misappropriation under Section 409. There, the law was laid down in the following terms:
"The section has content and its language must be given meaning.
What it says is -- 'when any public servant ... is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty....' We have therefore first to concentrate on the word CBI No. 06/08 Page 28 of 95 State through CBI v. Anna Wankhede and others (TAJ CGHS LTD.) 'offence'.
Now an offence seldom consists of a single act. It is usually composed of several elements and, as a rule, a whole series of acts must be proved before it can be established. In the present case, the elements alleged against the second accused are, first, that there was an 'entrustment' and/or 'dominion'; second, that the entrustment and/or dominion was 'in his capacity as a public servant'; third, that there was a 'disposal'; and fourth, that the disposal was 'dishonest'. Now it is evident that the entrustment and/or dominion here were in an official capacity, and it is equally evident that there could in this case be no disposal, lawful or otherwise, save by an act done or purporting to be done in an official capacity".
On the facts, it was held in that case that the several acts which were complained of, were official acts, and that the prosecution was bad for want of sanction.
Para No. 10. The decisions in Hori Ram Singh v. Emperor [ AIR 1939 FC 43: 1939 FCR 159] , and Albert WestMeads v. King [ AIR 1948 PC 156 : 75 IA 185] when properly examined, do not support the extreme contention urged on behalf of the respondent. In Hori Ram Singh v. Emperor [ AIR 1939 FC 43 : 1939 FCR 159] the medicines had not been entered in the stock book, and were removed by the accused to his residence, and the charge against him was that in so removing them he had committed misappropriation. It was no part of the duty of the accused to remove medicines to his house, and he could not claim that he did so by virtue of his office. He could have made such a claim if he had, let us suppose, entered the medicines in the stock books and shown them as expended in the hospital. But, on the facts, no official act was involved, and that was why Varadachariar, J. observed that, CBI No. 06/08 Page 29 of 95 State through CBI v. Anna Wankhede and others (TAJ CGHS LTD.) "... so far as the charge under Section 409 was concerned, the acts in respect of which he was intended to be prosecuted could not be regarded as acts done or purported to be done in execution of his duty".
Reference may also be made to the following observations of Sulaiman, J. in the same case:
"The question whether a criminal breach of trust can be committed while purporting to act in execution of his duty is not capable of being answered hypothetically in the abstract, without any reference to the actual facts of the case. An attempt to answer the question in a generalised way has been responsible for loose language used in some of the cases cited before us.... The question whether the act purported to have been done in execution of duty or not must depend on the special circumstances of each case."
(emphasis supplied)
(iv) At last, Apex Court held that the sanction was required in the above said case to prosecute the accused for the offence punishable under Section 409 IPC. In this regard, Para No. 12 is relevant and reproduced as under :
Para No. 12. In this view, we have to examine whether the acts with which the appellant is charged directly bear on the duties which he has got to discharge as a public servant. The appellant received the sum of ` 51 alleged to have been misappropriated, as Subdivisions Officer, and he admits receipt of the same. Then it was his duty to pay that amount to the khalasi Parma, and take his signature or thumb-impression in acknowledge-CBI No. 06/08 Page 30 of 95
State through CBI v. Anna Wankhede and others (TAJ CGHS LTD.) ment thereof. The accused does claim to have paid the amount to Parma, and the acquittance roll records the payment, and there is in acknowledgement thereof a thumb-impression as against his name. If what appears on the face of the roll is true and whether it is true or not is not a matter relevant at the stage of sanction then the acts with which the appellant is charged fall within the scope of his duties, and can be justified by him as done by virtue of his office. Clearly, therefore, sanction was required under Section 197(1) of the Code of Criminal Procedure before the appellant could be prosecuted under Section 409, and the absence of such sanction is fatal to the maintainability of the prosecution. The conviction should, therefore, be quashed.
(emphasis supplied)
15. Since, most of the cases were decided on the basis of law laid down in the aforesaid case, thus I do not deem it appropriate to reproduce all the aforesaid judgments.
16. In Harihar Prasad v. State of Bihar (supra) Hon'ble Apex Court after referring to the cases namely Shreekantiah Ramayya Munipalli v. State of Bombay (supra), Amrik Singh v. State of Pepsu (supra) held that no sanction is required in respect of acts complained of in the present case for the charges under Section 120 B IPC read with Section 409 IPC. The said observation is reproduced as under :
" The real question therefore is whether the acts complained of in the present case were directly concerned with the official duties of the three public servants. As far as the offence of criminal conspiracy punishable under Section 120-B, read with Section 409 of the Indian Penal Code is concerned and also Section 5(2) of the Prevention of Corruption Act, are concerned they cannot be CBI No. 06/08 Page 31 of 95 State through CBI v. Anna Wankhede and others (TAJ CGHS LTD.) said to be of the nature mentioned in Section 197 of the Code of Criminal Procedure. To put it shortly, it is no part of the duty of a public servant, while discharging his official duties, to enter into a criminal conspiracy or to indulge in criminal misconduct. Want of sanction under Section 197 of the Code of Criminal Procedure is, therefore, no bar."
(emphasis supplied)
(i) Perusal of the said observations, make it clear that the observations were made in the light of peculiar facts involved in the said case. In the said case, the allegations against the accused persons were that they had not only awarded the contract to their known contractors, but they had also drew the bills frequently in their own name and gave advance payment to the contractors despite the fact that the contractors had not executed the work as per the terms and conditions. Even they had accepted bribe from the said contractors and the amount was recovered from them. In the light of these peculiar facts, it was held that no sanction was required for the charges of Section 120B IPC read with Section 409 IPC and this is abundantly clear from the observations of Hon'ble Apex Court when it categorically stated that the real question is whether the acts complained of in the present case were directly concerned with the official duties of the three public servants. Thus, as per the observations of Hon'ble Apex Court, no sanction is required because the above facts were not found directly concerned with the official duties of the accused persons. The said judgment was clarified by the Apex Court in R. Balakrishna Pillai v. State of Kerala and Another (supra). In the said case, CBI had taken the plea that in view of the finding in Harihar Prasad v. State of Bihar (supra) case, no sanction is required for the offence of conspiracy. The CBI No. 06/08 Page 32 of 95 State through CBI v. Anna Wankhede and others (TAJ CGHS LTD.) relevant portion of Para No. 6 is reproduced as under:
Para No. 6. The next question is whether the offence alleged against the appellant can be said to have been committed by him while acting or purporting to act in the discharge of his official duty. It was contended by the learned counsel for the State that the charge of conspiracy would not attract Section 197 of the Code for the simple reason that it is no part of the duty of a Minister while discharging his official duties to enter into a criminal conspiracy. In support of his contention, he placed strong reliance on the decision of this Court in Harihar Prasad v. State of Bihar [(1972) 3 SCC 89 : 1972 SCC (Cri) 409 : 1972 Cri LJ 707] . He drew our attention to the observations in paragraph 74 of the judgment where the Court, while considering the question whether the acts complained of were directly concerned with the official duties of the public servants concerned, observed that it was no duty of a public servant to enter into a criminal conspiracy and hence want of sanction under Section 197 of the Code was no bar to the prosecution. The question whether the acts complained of had a direct nexus or relation with the discharge of official duties by the public servant concerned would depend on the facts of each case. There can be no general proposition that whenever there is a charge of criminal conspiracy levelled against a public servant in or out of office the bar of Section 197(1) of the Code would have no application. Such a view would render Section 197(1) of the Code specious.
Therefore, the question would have to be examined in the facts of each case. The observations were made by the Court in the special facts of that case which clearly indicated that the criminal conspiracy entered into by the three delinquent public servants had no relation whatsoever with their official duties and, therefore, the bar of Section 197(1) was not attracted. It must also be remembered that the said decision was rendered keeping in view Section 197(1), as it then stood, but we do not base our decision on that distinction. Our attention was next invited to a CBI No. 06/08 Page 33 of 95 State through CBI v. Anna Wankhede and others (TAJ CGHS LTD.) three-Judge decision in B. Saha v. M.S. Kochar [(1979) 4 SCC 177 : 1979 SCC (Cri) 939] . The relevant observations relied upon are to be found in paragraph 17 of the judgment. It is pointed out that the words "any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty" employed Section 197(1) of the Code, are capable of both a narrow and a wide interpretation but their Lordships pointed out that if they were construed too narrowly, the section will be rendered altogether sterile, for, "it is no part of an official duty to commit an offence, and never can be". At the same time, if they were too widely construed, they will take under their umbrella every act constituting an offence committed in the course of the same transaction in which the official duty is performed or is purported to be performed. The right approach, it was pointed out, was to see that the meaning of this expression lies between these two extremes. While on the one hand, it is not every offence committed by a public servant while engaged in the performance of his official duty, which is entitled to the protection. Only an act constituting an offence directly or reasonably connected with his official duty will require sanction for prosecution. To put it briefly, it is the quality of the act that is important, and if it falls within the scope of the aforequoted words, the protection of Section 197 will have to be extended to the public servant concerned. This decision, therefore, points out what approach the Court should adopt while construing Section 197(1) of the Code and its application to the facts of the case on hand.
(emphasis supplied)
(ii) Thus, it becomes clear that mere fact that the investigating agency had filed the charge-sheet under Section 120B IPC read with Section 409 IPC is ipso-facto not sufficient to deprive public servants from protection available under Section 197 Cr. P.C. It CBI No. 06/08 Page 34 of 95 State through CBI v. Anna Wankhede and others (TAJ CGHS LTD.) depends upon facts of each case. If the acts were committed by the public servants in discharge of his official duties, sanction would be required under Section 197 Cr. P.C irrespective of the fact that the said acts attract the provisions of Section 120B IPC read with Section 409 IPC.
17. In P.K. Pradhan v. State of Sikkim (supra), Apex Court refused to quash the proceedings for want of sanction under Section 197 Cr. P.C after considering the case law laid down in Amrik Singh v. State of Pepsu (supra) , Hori Ram Singh v. Emperor (supra) and Shreekantiah Ramayya Munipalli v. State of Bombay (supra), Apex Court held as under:
Para No. 15. Thus, from a conspectus of the aforesaid decisions, it will be clear that for claiming protection under Section 197 of the Code, it has to be shown by the accused that there is reasonable connection between the act complained of and the discharge of official duty. An official act can be performed in the discharge of official duty as well as in dereliction of it. For invoking protection under Section 197 of the Code, the acts of the accused complained of must be such that the same cannot be separated from the discharge of official duty, but if there was no reasonable connection between them and the performance of those duties, the official status furnishes only the occasion or opportunity for the acts, then no sanction would be required. If the case as put forward by the prosecution fails or the defence establishes that the act purported to be done is in discharge of duty, the proceedings will have to be dropped. It is well settled that question of sanction under Section 197 of the Code can be raised any time after the cognizance; maybe immediately after cognizance or framing of charge or even at the time of conclusion of trial and after conviction as well. But there may be certain cases where it may not be CBI No. 06/08 Page 35 of 95 State through CBI v. Anna Wankhede and others (TAJ CGHS LTD.) possible to decide the question effectively without giving opportunity to the defence to establish that what he did was in discharge of official duty. In order to come to the conclusion whether claim of the accused that the act that he did was in course of the performance of his duty was a reasonable one and neither pretended nor fanciful, can be examined during the course of trial by giving opportunity to the defence to establish it. In such an eventuality, the question of sanction should be left open to be decided in the main judgment which may be delivered upon conclusion of the trial.
(emphasis supplied)
(i) At last, Apex Court left the question of sanction open and directed the Ld. Trial Court to decide the same at the time of final judgment and this is clear from the observations made by the Apex Court in Para No. 16, which is reproduced as under:
Para No. 16. In the present case, the accused is claiming that in awarding contract in his capacity as Secretary, Department of Rural Development, Government of Sikkim, he did not abuse his position as a public servant and works were awarded in favour of the contractor at a rate permissible under law and not low rates. These facts are required to be established which can be done at the trial. Therefore, it is not possible to grant any relief to the appellant at this stage. However, we may observe that during the course of trial, the court below shall examine this question afresh and deal with the same in the main judgment in the light of the law laid down in this case without being prejudiced by any observation in the impugned orders.
(emphasis supplied) CBI No. 06/08 Page 36 of 95 State through CBI v. Anna Wankhede and others (TAJ CGHS LTD.)
(ii) Thus, the said judgment is not helpful to the prosecution in the present matter.
18. In Chaudhary Parveen Sultana v. State of West Bengal and another (supra), Apex Court refused to accept the plea of accused under Section 197 Cr. P.C in the light of the peculiar facts of the said case as in the said case, the allegations against the police officer was that on the pretext of conducting investigation, he along with his co-accused used to visit the house of complainant and threatened her husband in order to obtain the tutored statement and even tried to obtain their signature on blank papers. In view of the aforesaid allegations, Apex Court held as under :
Para No. 21. We have already indicated that we are unable to accept such a view. In our view, the offences complained of cannot be said to be part of the duties of the investigating officer while investigating an offence alleged to have been committed. It was no part of his duties to threaten the complainant or her husband to withdraw the complaint. In order to apply the bar of Section 197 Cr.P.C each case has to be considered in its own fact situation in order to arrive at a finding as to whether the protection of Section 197 Cr.P.C could be given to the public servant. The fact situation in the complaint in this case is such that it does not bring the case within the ambit of Section 197 and the High Court erred in quashing the same as far as Respondent 2 is concerned. The complaint prima facie makes out offences alleged to have been committed by Respondent 2 which were not part of his official duties.
(emphasis supplied) CBI No. 06/08 Page 37 of 95 State through CBI v. Anna Wankhede and others (TAJ CGHS LTD.)
19. No doubt, in Shambhoo Nath Mishra v. State of U.P and others (supra), it was held that the fabrication of record and misappropriation of public fund is not part of official duty of the public servants, but the said observations are required to be considered in the light of the peculiar facts involved in the said case. In the said case, a complaint was filed against the accused persons for the offence punishable under Section 409/420/465/468/477A and 109 IPC with the allegations that the accused persons had fabricated the signature of complainant and after forging his signature, they withdrew the amount from his account and misappropriated the same. On the basis of these peculiar facts, it was held that it was not official duty of public servant to fabricate the record and misappropriate the public fund. Thus, the said judgment is also not helpful to the prosecution as the facts of the case at hand are totally different.
20. In Rajib Ranjan and others v. R. Vijay Kumar (supra) after referring to the case of Amrik Singh v. State of Pepsu (supra), Raghunath Anant Govilkar v. State of Maharashtra and others and Shambhoo Nath Mishra v. State of U.P and others (supra), it was held in Para No. 18, same is reproduced as under:
Para No. 18. The ratio of the aforesaid cases, which is clearly discernible, is that even while discharging his official duties, if a public servant enters into a criminal conspiracy or indulges in criminal misconduct, such misdemeanour on his part is not to be treated as an act in discharge of his official duties and, therefore, provisions of Section 197 of the Code will not be attracted. In fact, the High Court has dismissed the petitions filed by the appellant precisely with these observations, namely, the allegations pertain to fabricating the false records which cannot be CBI No. 06/08 Page 38 of 95 State through CBI v. Anna Wankhede and others (TAJ CGHS LTD.) treated as part of the appellants' normal official duties. The High Court has, thus, correctly spelt out the proposition of law. The only question is as to whether on the facts of the present case, the same has been correctly applied.
(emphasis supplied)
(i) As already discussed that Apex Court had already clarified that the question whether the offence of criminal conspiracy, criminal misconduct or misappropriation was committed in discharge of official duty or not, it depends on facts of each case and it cannot be answered hypothetically in the abstract without any reference to the actual facts of the case. It is pertinent to state that in Rajib Ranjan and others v. R. Vijay Kumar (supra), proceedings were quashed by the Apex Court holding that the complainant had abused the process of the Court.
21. In State of Madhya Pradesh Vs Sheetla Sahai and others (supra), Apex Court propounded the rule of safe and sure test to determine whether the sanction is required for the act complained of public servants or not. In this regard, Para No. 61 is relevant and same is reproduced as under :
Para 61 Strong reliance has been placed by Mr. Tulsi on a judgment of this Court in Centre for Public Interest Litigation and Another Vs Union of India and Another [(2005) 8 SCC 202]. In that case, it was held :
"9 The protection given under Section 197 is to protect responsible public servants against the institution of possibly vexatious criminal proceedings for offences alleged to have been CBI No. 06/08 Page 39 of 95 State through CBI v. Anna Wankhede and others (TAJ CGHS LTD.) committed by them while they are acting or purporting to act as public servants. The policy of the legislature is to afford adequate protection to public servants to ensure that they are not prosecuted for anything done by them in the discharge of their duties without reasonable cause, and if sanction is granted, to confer on the Government, if they choose to exercise it, complete control of the prosecution.
This protection has certain limits and is available only when the alleged act done by the pubic servant is reasonably connected with the discharge of his official duty and is not merely a cloak for doing the objectionable act. If in doing his official duty, he acted in excess of his duty, but there is a reasonable connection between the act and performance of the official duty, the excess will not be a sufficient ground to deprive the public servant, but whether it was committed by a public servant acting or purporting to act as such in the discharge of his official capacity. Before Section 197 can be invoked, it must be shown that the official concerned was accused of an offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duties. It is not the duty which requires examination so much as the act, because the official act can be performed both in the discharge of the official duty as well as in dereliction of it. The act must fall within the scope and range of the official duties of the public servant concerned. It is the quality of the act which is important and the protection of this section is available if the act falls within the scope and range of his official duty. There cannot be any universal rule to determine whether there is a reasonable connection between the act done and the official duty, nor is it possible to lay down any such rule. One safe and sure test in this regard would be to consider if the omission or neglect on the part of the public servant to commit the act complained of could have made him answerable for a charge of dereliction of his official duty. If the answer to this question is in the affirmative, it may be said that CBI No. 06/08 Page 40 of 95 State through CBI v. Anna Wankhede and others (TAJ CGHS LTD.) such act was committed by the public servant while acting in the discharge of his official duty and there was every connection with the act complained of and the official duty of the public servant. This aspect makes it clear that the concept of Section 197 does not get immediately attracted on institution of the complaint case.
10. Use of the expression "official duty" implies that the act or omission must have been done by the public servant in the course of his service and that it should have been in discharge of his duty. The section does not extend its protective cover to every act or omission done by a public servant in service but restricts its scope of operation to only those acts or omissions which are done by a public servant in discharge of official duty.
11. If on facts, therefore, it is prima-facie found that the act or omission for which the accused was charged had reasonable connection with discharge of his duty then it must be held to be official to which applicability of Section 197 of the Code cannot be disputed."
(emphasis supplied)
22. Recently, Hon'ble Apex Court had considered most of the above said judgments in Prof. N.K. Ganguly v. CBI (supra) after considering the entire case law including observations made by the Apex Court in Parkash Singh Badal v. State of Punjab and others (supra), Hon'ble Apex Court held as under:
" Mr. P.P. Khurana and Mr. Gopal Subramaniam, the learned senior counsel appearing on behalf of some of the appellant, on the other hand, contends that the decision in the Parkash Singh Badal case needs to be appreciated in light of the facts of that case. Thus, while stating that the offences under Sections 420/467/468/471 IPC and 120B IPC can CBI No. 06/08 Page 41 of 95 State through CBI v. Anna Wankhede and others (TAJ CGHS LTD.) by no stretch of imagination and by their very nature be regarded as having been committed by any public servant while acting of purporting to act in discharge of his official duty, this Court did not mean that merely because an official was charged with an offence under these sections, no sanction was required to be taken.
The learned counsel placed reliance on the following paragraph of the judgment to emphasis the same:
"51. In Baijnath v. State of M.P. [1966 (1) SCR 210] the position was succinctly stated as follows:
"... it is the quality of the Act that is important and if it falls within the scope and range of his official duty the protection contemplated by Section 197 of the Code of Criminal Procedure will be attracted."
The learned senior counsel also placed reliance on the three judge bench decision of this Court rendered in the case of Shreekantiah Ramayya Munipalli, referred to supra, wherein it was held as under:
"18. ...... If Section 197 of the Code of Criminal Procedure is construed too narrowly it can never be applied, for of course it is not part of an official's duty to commit an offence and never can be. But it is not the duty we have to examine so much as the act because an official act can be performed in the discharge of official duty as well as in dereliction of it.....
19. Now an offence seldom consists of a single act. It is usually composed of several elements and as a rule a whole series of acts must be proved before it can be established..... Now it is evident that the entrustment and/or domino here were in an official capacity and it is equally evident that there could in this case be no disposal, lawful or otherwise, save by an act done or purporting to be done in an official capacity........."
25. From a perusal of the case law referred to CBI No. 06/08 Page 42 of 95 State through CBI v. Anna Wankhede and others (TAJ CGHS LTD.) supra, it becomes clear that for the purpose of obtaining previous sanction from the appropriate government under Section 197 of Cr. P.C, it is imperative that the alleged offence is committed in discharge of official duty by the accused. It is also important for the Court to examine the allegations contained in the final report against the Appellants, to decide whether previous sanction is required to be obtained by the respondent from the appropriate government before taking cognizance of the alleged offence by the learned Special Judge against the accused. In the instant case, since the allegations made against the Appellants in the final report filed by the respondent that the alleged offences were committed by them in discharge of their official duty, therefore, it was essential for the learned Special Judge to correctly decide as to whether the previous sanction from the Central Government under Section 197 of Cr. P.C was required to be taken by the respondent, before taking cognizance and passing an order issuing summons to the appellants for their presence.
(emphasis supplied)
23. From the aforesaid discussion, the following proposition of law emerges:-
(i) It is not every offence committed by a public servant that requires sanction for prosecution under Section 197 Cr. P.C; nor even every act done by him while he is actually engaged in the performance of his official duties.
(ii) But, if the act complained of is directly concerned with his official duties so that if questioned, it could be claimed to have been done by the public servants by virtue of the office, then sanction would be necessary.CBI No. 06/08 Page 43 of 95
State through CBI v. Anna Wankhede and others (TAJ CGHS LTD.)
(iii) Even where the charges are for misappropriation, cheating or conspiracy by public servant, question whether the sanction is required under Section 197 (1) Cr. P.C will depend upon facts of the each case. If the acts complained of are so integrally connected with the duties attaching to the office so as to be inseparable, sanction would be necessary. If there was no necessary connection between the duty and the act, the official status furnishing only the occasion or opportunity for the acts then no sanction would be required.
(iv) There is no universal rule to determine whether there is a reasonable connection between the act done and the official duty, nor it is possible to lay down any such rule.
(v) However, there is one safe and sure test to determine this connection is, if the omission or neglect on the part of public servant to commit the act complained of could have made him answerable for a charge of dereliction of his official duty and if the answer to this question is in affirmative, then it may be said that the such act was committed by the public servant while conducting in discharge of his official duties and there was every connection with the act complained of and the official duty of the public servant.
(vi) An official act can be performed in discharge of official duty as well as in dereliction of it.
24. It is pertinent to state that in R. Balakrishna Pillai v. State of Kerala and Another (supra), State of Madhya Pradesh Vs Sheetla Sahai and others (supra), Prof. N.K. Ganguly v. CBI, CBI No. 06/08 Page 44 of 95 State through CBI v. Anna Wankhede and others (TAJ CGHS LTD.) accused persons were charge-sheeted by CBI for the offences under Penal Code as well as under Prevention of Corruption Act. Since, CBI had not obtained sanction under Section 197 Cr. P.C and the act complained of was found in connection with the discharge of official duties, in the said cases, accused persons were discharged from the penal charges. The question whether in the instant case, acts complained of were committed in discharge of official duties by the public servants or not will be discussed in latter part of the judgment.
25. I also deem it appropriate to refer the judgment State of Punjab Vs Labh Singh (supra). In the said case, Learned Special Judge framed the charges against the public servant for the penal offences under Section 218/409/465/467/120B IPC and Section 13 (1)
(c) read with Section 13 (1) (ii) of Prevention of Corruption Act. The said order was set-aside by the Hon'ble High Court on the ground that there was no sanction under Section 197 Cr. P.C. Accordingly, State approached the Apex Court. Apex Court set-aside the order of High Court qua the charges framed under Prevention of Corruption Act. The relevant Para No. 8 is reproduced as under:
"Para 8 However as regards charges for the offences punishable under IPC concerned the High Court was absolutely right in setting aside the order of the Special Judge. Unlike section 19 of the POC Act, the protection under section 197 of Cr. P.C. is available to the concerned public servant even after retirement. Therefore, if the matter was considered by the sanctioning authority and the sanction to prosecute was rejected first on 13.09.2000 and secondly on 24.09.2003, the court could not have taken cognizance insofar as the offences punishable under the Indian Penal Code are concerned . As CBI No. 06/08 Page 45 of 95 State through CBI v. Anna Wankhede and others (TAJ CGHS LTD.) laid down by this Court in State of Himachal Pradesh v. Nishant Sareen, the recourse in such cases is either to challenge the order of the Sanctioning Authority or to approach it again if there is any fresh material".
(emphasis supplied)
26. Now coming to the contention raised by learned Public Prosecutor whether separate sanction is required under Section 197 Cr. P.C where prosecution had obtained sanction under Section 19 of Prevention of Corruption Act.
(i) The scope of both the sanction is different and same was dealt with by the Apex Court in the judgment of State of Madhya Pradesh Vs Sheetla Sahai and others (supra) in Para No. 60 and same is reproduced as under:
Para 60 This leaves us with the question as to whether an order of sanction was required to be obtained. There exists a distinction between a sanction for prosecution under Section 19 of the Act and Section 197 of the Code of Criminal Procedure. Whereas in terms of Section 19, it would not be necessary to obtain in respect of those who had ceased to be a public servant, Section 197 of the Code of Criminal Procedure requires sanction both for those who were or are public servants.
(emphasis supplied)
(ii) Since, learned Public Prosecutor vehemently relied upon the judgment of Surinder Kumar Bansal v. State of Punjab (supra), I deem it appropriate to deal with it. In the said case issue arose before CBI No. 06/08 Page 46 of 95 State through CBI v. Anna Wankhede and others (TAJ CGHS LTD.) the High Court was whether in addition to the sanction required under Section 19 of the PC Act whether sanction under Section 197 Cr. P.C is also required for prosecution of public servants under PC Act. After referring to numerous judgments of the Hon'ble Supreme Court, Hon'ble High Court held that no separate sanction is required to prosecute the public servant under PC Act. Admittedly, no separate sanction is required under Section 197 Cr. P.C to prosecute the public servant for the charges of PC Act, but the said judgment has not dealt with the issue about the situation whether separate sanction is required qua the penal charges or not.
27. From the numerous judgments of the Apex Court referred to in the aforesaid discussion, it can safely be culled out that separate sanction under Section 197 Cr. P.C is also required to prosecute public servant for the penal offences. Thus, I do not find any merit in the contention of learned Public Prosecutor that no separate sanction is required against the public servant for penal charges where the prosecution had obtained sanction under Section 19 of PC Act.
(i) It is pertinent to state that A2, A3 & A5 had already been ceased to be public servants before filing of the charge-sheet because they had already been retired from their office, accordingly, no sanction was obtained against them under Section 19 of PC Act. No doubt, the said public servants can be charged for the offence punishable under PC Act without any sanction as they had already been ceased to be public servants, but to prosecute them under penal offences, investigating agency was required to obtain sanction under Section 197 Cr. P.C, if their acts complained of had any connection in discharge of CBI No. 06/08 Page 47 of 95 State through CBI v. Anna Wankhede and others (TAJ CGHS LTD.) their official duties. It is pertinent to mention here that in the charge- sheet, no explanation whatsoever has been given by the investigating agency for not obtaining sanction under Section 197 Cr. P.C.
28. Now, I proceed to examine the facts of the case at hand to ascertain whether there was reasonable connection between the acts of public servants (A2 to A5) and their duties and whether their acts qualify the Safe and Sure Test as propounded by the Apex Court in State of Madhya Pradesh Vs Sheetla Sahai and others (supra).
29. It is admitted case of CBI that on November 18, 2003, accused Faiz Mohd. (A5) put up a note (Ex.PW32/A) with the following proposal/recommendations:
"Finally the Secretary of the Society has requested for the revival of the Society under Section 63 (3) of DCS Act, 1972. In this connection, it is submitted that the main file of the Society is not available with the Zone and it may have been tied up or lying with other Zones. In the first instance, we may issue circular to all the branches/zones to search/trace the same and if found, it may be returned to this Zone."
(i) On November 20, 2003, the said file was forwarded by accused D.N. Sharma (A3) to his senior i.e. Joint Registrar. The file was returned by the Joint Registrar with certain objections including that the application was not supported by any documentary evidence, accordingly, it was directed that the Society be asked to submit the copies of Registration Certificate, Registered by-laws; Membership Register alongwith the copy of Liquidation Order and further directed to CBI No. 06/08 Page 48 of 95 State through CBI v. Anna Wankhede and others (TAJ CGHS LTD.) search the file thoroughly. The file was returned on November 21, 2003. Thereafter, on December 10, 2003, A5 again put up the file stating that the Society had furnished the requisite documents vide letter dated December 10, 2003 and stated that the main file could not be traced-out despite efforts made by him, accordingly, he reiterated his earlier proposal that the circular be issued to all branches/zones with a request to search/trace the main file, if lying with Zone and returned the same, if found within week failing which it shall be presumed that no such file is lying in the said Zone. The said proposal was forwarded by A3 to the Joint Registrar on December 10, 2003 with recommendation to approve the proposal of issuance of circular in order to trace out the file. Joint Registrar cleared the file on December 16, 2003. Accordingly, RCS (A2) approved the proposal on December 16, 2003.
30. To my mind, the acts of A2, A3 and A5 in dealing with the above said proposal had direct connection with discharge of their official duties.
31. Since, the file could not be traced out despite issuance of the circular on December 18, 2003, A5 being the dealing assistant again put up a note (Ex.PW28/A) on December 30, 2003 with the following proposal:
"In this connection as approved of page 1/N, circular was issued to all the branches/zones vide letter dated December 18, 2003 (Ex.PW30/C) to trace out the main file of the Society within week time, but no reply has been received till date from any branch/zone."CBI No. 06/08 Page 49 of 95
State through CBI v. Anna Wankhede and others (TAJ CGHS LTD.) If agreed, we may reconstruct the main file from the record available with the Society and appoint Mr. Ram Nath, Grade-II, inspecting officer under Section 54 of DCS Act, 1972 to verify/examine the record of the Society to bring the factual position of the Society."
32. The said note was forwarded by A3 on January 05, 2004 with a recommendation to approve the proposal. Joint Registrar also forwarded the file to RCS on January 06, 2004 with a recommendation to approve the proposal. Accordingly, RCS (A2) approved the proposal on January 07, 2004 by putting his signature. To my mind, from the above proposal/recommendation/approval, it becomes clear that the acts performed by A2, A3 and A5 had direct connection with discharge of their official duties.
33. It is admitted case of CBI that in compliance of the order date January 07, 2004, Mr. Ram Nath, Grade-II Inspector was appointed to verify/examine the record of the Society under Section 54 of DCS Act.
34. It is also admitted case of CBI that accused Ram Nath (A4) had submitted his report dated January 19, 2004 (Ex.PW37/H) wherein he certified that he visited the registered office of the Society where its Secretary named Anna Wankhede met him and produced all relevant records of the Society. He further certified that as per record, Society had shifted its address from C-156, Minto Road Complex, New Delhi to B-3/66, Ashok Vihar, Phase-II, Delhi. Besides that he also certified other things in favour of the Society. Though as per CBI, the CBI No. 06/08 Page 50 of 95 State through CBI v. Anna Wankhede and others (TAJ CGHS LTD.) said report is totally false and he submitted the report in furtherance of the conspiracy with the accused Anna Wankhede, but it cannot be said that the act of A4 i.e. submitting the report Ex.PW37/H, though it may be a false report, had no connection with his official duties. No doubt, being the inspecting officer, it was his duty to submit a correct report and since the report is false, it means that he had not performed his duty honestly, but it cannot be said that there was no connection between the act performed by him and his duty. Rather, there is a reasonable nexus between the act and his duty. Mere fact that later on it was revealed that the report submitted by A4 was false is not sufficient to deprive him from the protection available to him under Section 197 Cr. P.C
35. On receipt of the report Ex.PW37/H, A5 being the dealing assistant again put up the file on January 20, 2004 wherein he reproduced the report of A4 and made the following proposal:-
"In view of the above, we may request competent authority to consider the following:-
(i) Revival of the Society under
Section 63 (3) of DCS Act, 1972.
(ii) To approve the list of 135 members
for allotment of land."
36. The said proposal was forwarded by A3 being the AR to the Reader to RCS on January 20, 2004. Accordingly, on January 23, 2004, Reader to RCS put up the file before RCS (A2) with the following proposal (Ex.PW37/K):-CBI No. 06/08 Page 51 of 95
State through CBI v. Anna Wankhede and others (TAJ CGHS LTD.) "As per Section 63 (3) of DCS Act, 1972, Registrar may cancel an order for the winding up of a Cooperative Society at any point of time, in any case where, in his opinion the Society should continue to exist.
If approved, we may issue notice under Section 63 (3) of DCS Act, 1972 to the President/Secretary of the Society for initial hearing on February 10, 2004 in the Court of Worthy RCS."
37. The said note was approved by RCS (A2) on January 23, 2004 itself.
38. To my mind, the act of A2 had direct connection with the discharge of his official duty, thus for this act also, A2 is entitled for the protection available to him under Section 197 Cr. P.C.
39. Thereafter, on February 10, 2004, a hearing was given to the Society. As per noting (Ex.PW37/L), accused Anna Wankhede appeared before RCS (A2). RCS directed his Reader to send the file to the concerned Zone for verification of record pertaining to the membership, audit and election. In addition to that AR was also directed to conduct the spot verification of membership and submit the report on the next date of hearing and matter was adjourned to February 24, 2004. To my mind, the said act of A2 had also direct connection with his official duty in terms of Section 197 Cr. P.C.
40. It is admitted case of CBI that in pursuance of the above said order, accused Faiz Mohd. (A5) was appointed to conduct physical verification of members of the Society. It is also admitted case of CBI CBI No. 06/08 Page 52 of 95 State through CBI v. Anna Wankhede and others (TAJ CGHS LTD.) that A5 had submitted his report dated February 16, 2004 (Ex.PW37/M) and in his report he certified that he had visited and physically verified the 10% of total members of Taj CGHS Ltd. i.e. 14 members out of 135 members on February 14, 2004 and February 15, 2004. He also annexed the confirmation of said members and their residential proof alongwith his report. No doubt, as per CBI version, the said report is false because during investigation, it was revealed that most of the members were found non existant. Assuming for the sake of arguments that the said report is totally false, but it shows that A5 had submitted the said report being the inspector. If report is false or he misused his official position, he may be liable for the said act, but it cannot be said that there was no connection between his act and official duty. Rather, for this report he can be made answerable for the charge of dereliction of his duty. In other word, he qualifies the test of Safe and Sure as propounded by the Apex Court in State of Madhya Pradesh Vs Sheetla Sahai and others (supra). Thus, to my mind, he is entitled for the protection under Section 197 Cr. P.C even for the said act.
41. Thereafter, on February 16, 2004, A5 had put up a note (Ex.PW37/C) with the following proposal.
"In view of the above, we may request competent authority to consider the following:
(i) Revival of the Society under
Section 63 (3) of DCS Act, 1972.
(ii) To approve the final list of 135
members for onward transmission to DDA for allotment of land."CBI No. 06/08 Page 53 of 95
State through CBI v. Anna Wankhede and others (TAJ CGHS LTD.)
42. The said proposal was forwarded by A3 being the AR on Feb 20, 2004 with the following recommendation (Ex.PW37/D)"
"The request of the Society may be considered under Section 63 (3) of DCS Act, 1972.
(i) Thereafter, he sent the file to the Reader to RCS.
43. To my mind, the act of A3 and A5 in putting up the above said note and forwarding the same to the Reader to RCS had direct connection with their official duties, thus both the accused persons are entitled for the protection qua their said acts.
44. As per record, on March 09, 2004, RCS (A2) had given hearing to the Society which was represented by Sh. V.K. Gulati, Advocate. At that time, the concerned AR i.e. A3 was also present. After hearing the matter, A2 being the RCS reserved the case for order. The noting in this regard is Ex.PW37/E. Thereafter, A2 being the RCS had passed the revival order on March 11, 2004 (Ex.PW29/A). Indisputably, A2 had passed the revival order being the RCS, thus the acts of A2 which he performed on March 09, 2004 and March 11, 2004 had direct relations with discharge of his official duties. Thus, to my mind, A2 is entitled for the protection under Section 197 Cr. P.C qua these acts also.
45. From the aforesaid discussion, it becomes clear that A2 and A3 had dealt with the file being the AR and RCS and there is no iota of evidence that they had recorded any false fact intentionally in their noting/order. Though they are allegations that A4 and A5 had CBI No. 06/08 Page 54 of 95 State through CBI v. Anna Wankhede and others (TAJ CGHS LTD.) submitted a false report in favour of the Society when they were appointed to conduct inspection under Section 54 of DCS Act and to conduct the physical verification of the members respectively. No doubt, being the public servants, they were supposed to submit true and correct report to their office, but the fact remains that they had submitted their report in discharge of their official duties. Had they not submitted false report probably they would not have committed any offence. Since, they had submitted report which was found false during investigation, their acts became an offence. The said offence had been committed by them being the public servants while discharging their official duties. Thus, to my mind, their acts had sufficient connection with their official duties. Moreover, since for their said acts i.e. submitting false report in discharge of their official duties, made them answerable for a charge of dereliction of their official duties, thus their acts also satisfy the condition of Safe and Sure Test as propounded by the Apex Court in State of Madhya Pradesh Vs Sheetla Sahai and others (supra).
46. In view of the foregoing discussion, I am of the considered opinion that since the acts of the above said accused persons have reasonable connection with discharge of their official duties and their said acts also qualify the Safe and Sure Test as propounded by the Apex Court ,thus I am of the considered opinion that sanction under Section 197 Cr. P.C is required for the penal offences. Since, CBI had not obtained any such sanction, A2 to A5 cannot be held guilty for the penal offences.
CBI No. 06/08 Page 55 of 95State through CBI v. Anna Wankhede and others (TAJ CGHS LTD.) CONTENTIONS RELATING TO SECTION 19 OF P.C. ACT :-
47. Learned counsel appearing for the accused Ram Nath (A4) contended that though CBI had obtained sanction under Section 19 of PC Act, but no reliance can be placed on the said sanction as the same is invalid because same was not accorded by the competent authority. It was argued that Registrar of Cooperative Societies was competent to accord sanction qua A4, but CBI had obtained sanction from the Chief Secretary, thus sanction is invalid. It was further argued that sanction had been accorded in mechanical manner without any application of mind.
48. In this regard, the testimony of PW42 S. Raghunathan is relevant, at the relevant time, he was posted as Principal Secretary to the Chief Minister. In his examination-in-chief, he categorically deposed that he was competent to remove the accused Ram Nath from service, accordingly, he accorded the sanction under Section 19 of PC Act and same is Ex.PW42/A. Though during cross-examination a question was put to him that under Rules, RCS was himself competent to remove Grade-II inspector, but witness expressed his ignorance about any such Rules. During trial, no such Rule is placed on record. Even during trial, no evidence is led by defence to show that PW42 was not competent to remove the accused from service or that RCS was competent to remove him from the service. In the absence of any such evidence, no reliance can be placed on the defence version that PW42 was not a competent authority to accord sanction as he was not competent to remove A4 from the service. Moreover, it is undisputed fact that PW42 was higher in rank than RCS, thus if RCS was competent to accord CBI No. 06/08 Page 56 of 95 State through CBI v. Anna Wankhede and others (TAJ CGHS LTD.) sanction, it cannot be said that the sanction accorded by PW42 is invalid on the ground of competency.
(i) PW42 in his testimony categorically stated that before according sanction, he had gone through all the documents including statement of witnesses, thus it cannot be said that PW42 had not applied his mind before according the sanction.
49. Moreover, it is settled law that grant of sanction is an administrative function and Court cannot sit in the appeal of the said order while examining whether the material placed before the sanctioning authority was adequate to accord sanction or not. (Reliance is placed on State of Maharashtra v. Mahesh Ji Jain, Crl. Appeal No. 2349 of 2009 decided on May 28, 2013 by the Apex Court).
50. In view of the aforesaid discussion, I am of the considered that there is no inherent defect in the sanction Ex.PW42/A, thus I do not find any substance in the contention raised by learned defence counsel.
CONTENTIONS RELATING TO CONSPIRACY:
51. Learned counsel appearing for CBI vehemently contended that since A2 to A5 dealt with the file in question and put up favourable note in favour of the Society, this shows that they were in conspiracy with accused Anna Wankhede (A1), who submitted an application for revival of the Society and claimed himself Secretary of the Society.
CBI No. 06/08 Page 57 of 95State through CBI v. Anna Wankhede and others (TAJ CGHS LTD.)
52. Per contra, learned counsel appearing for the accused persons countered the said contention by vigorously arguing that accused persons dealt with the file in question while discharging their official duties. Mere fact that they dealt with the file in question being the government servants posted at the relevant time in the office of Registrar Cooperative Societies is itself not sufficient to prove that they were in conspiracy with accused Anna Wankhede.
(i) Counsel appearing for A3 contended that he was posted there as Assistant Registrar and being the AR, he had forwarded the file with his comment to the higher officer. Except that there is no other allegations against him.
(ii) Similarly, counsel appearing for A2 contended that he was posted there as RCS and being RCS, he had taken decision on the notes put up before him from time to time. Mere fact that he had taken some decision on the notes put up before him is insufficient to draw a conclusion that he was either in conspiracy with the accused persons or he had acted so in furtherance of any such conspiracy.
(iii) Similarly, counsel appearing for A4 and A5 contended that they had submitted their reports in discharge of their official duties. Merely fact that later on it was revealed that they had submitted a false report is not sufficient to draw a conclusion that they were in conspiracy with accused Anna Wankhede.
53. Before dealing with the contentions raised by counsel for the parties, I deem it appropriate to to refer judgment State of Madhya CBI No. 06/08 Page 58 of 95 State through CBI v. Anna Wankhede and others (TAJ CGHS LTD.) Pradesh Vs Sheetla Sahai and others (2009) 8 SCC 617 wherein Apex Court had dealt with the issue of conspiracy in Para No. 49 to 52 and same are reproduced as under:-
49. Criminal conspiracy has been defined in Section 120A of the Indian Penal Code, 1860 to mean:
When two or more persons agree to do, or cause to be done,--
(1) an illegal act, or (2) an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy:
Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to agreement in pursuance thereof.
Explanation.- It is immaterial whether the illegal act is the ultimate object of such agreement, or is merely incidental to that object.
Section 120 B of the Indian Penal Code provides for punishment for criminal conspiracy.
50. Criminal conspiracy is an independent offence. It is punishable separately. Prosecution, therefore, for the purpose of bringing the charge of criminal conspiracy read with the aforementioned provisions of the Prevention of Corruption Act was required to establish the offence by applying the same legal principles which are otherwise applicable for the purpose of bringing a criminal misconduct on the part of an accused.
51. A criminal conspiracy must be put to action in as much as so long a crime is generated in the mind of an accused, it does not become punishable. What is necessary is not thoughts, which may even be criminal in character, often involuntary, but offence would be said to have been committed thereunder only when that take concrete shape of an agreement to do or cause to be done CBI No. 06/08 Page 59 of 95 State through CBI v. Anna Wankhede and others (TAJ CGHS LTD.) an illegal act or an act which although not illegal by illegal means and then if nothing further is done the agreement would give rise to a criminal conspiracy.
Its ingredients are:-
(I) an agreement between two or more persons;
(ii) an agreement must relate to doing or causing to be done either (a) an illegal act;
(b) an act which is not illegal in itself but is done by illegal means:
What is, therefore, necessary is to show meeting of minds of two or more persons for doing or causing to be done an illegal act or an act by illegal means.
52. While saying so, we are not oblivious of the fact that often conspiracy is hatched in secrecy and by providing the said offence substantial direct evidence may not be possible to be obtained. An offence of criminal conspiracy can also be proved by circumstantial evidence.
In Kehar Singh and Ors. v/s. State (Delhi Administration) MANU/SC/0241/1988; 1988 (3) SCC 609 at 731. this Court has quoted the following passage from Russell on Crimes (12th Edn. Vol.1);
The gist of the offence of conspiracy then lies, not in doing the act, or effecting the purpose for which the conspiracy is formed, nor in attempting to do them, nor in inciting others to do them, but in the forming of the scheme or agreement between the parties. Agreement is essential. Mere knowledge, or even discussion, of the plan is not, per se enough.
In State (NCT) of Delhi vs. Navjot Sandhu @ Afsan Guru MANU/SC/0465/2005; (2005) 11 SCC 600, this Court stated the law, thus:
101. One more principle which deserves notice is that the cumulative effect of the proved circumstances should be taken into account in determining the guilt of the accused rather than adopting an isolated approach to each of the circumstances. Of course, each one of the CBI No. 06/08 Page 60 of 95 State through CBI v. Anna Wankhede and others (TAJ CGHS LTD.) circumstances should be proved beyond reasonable doubt. Lastly, in regard to the appreciation of evidence relating to the conspiracy, the Court must take care to see that the acts or conduct of the parties must be conscious and clear enough to infer their concurrence as to the common design and its execution.
We may also notice that in Ram Narayan Popli vs. CBI MANU/SC/0017/2003: (2003) 3 SCC 641, it was held:-
...Law making conspiracy a crime is designed to curb immoderate power to do mischief which is gained by a combination of the means. The encouragement and support which co-
conspirators give to one another rendering enterprises possible which, if left to individual effort, would have been impossible, furnish the ground for visiting conspirators and abettors with condign punishment.....
In Yogesh @ Sachin Jagdish Joshi vs. State of Maharashtra MANU/SC/7528/2008: (2008) 6 SCALE 469, this Court opined:
23. Thus, it is manifest that the meeting of minds of two or more persons for doing an illegal act or an act by illegal means is sine qua non of the criminal conspiracy but it may not be possible to prove the agreement between them by direct proof. Nevertheless, existence of the conspiracy and its objective can be inferred from the surrounding circumstances and the conduct of the accused. But the incriminating circumstances must form a chain of events from which a conclusion about the guilt of the accused could be drawn, It is well settled that an offence of conspiracy is a substantive offence and renders the mere agreement to commit an offence punishable even if an offence does not take place pursuant to the illegal agreement.
Ex. Facie, there is no material to show that a conspiracy had been hatched by the respondents."
CBI No. 06/08 Page 61 of 95State through CBI v. Anna Wankhede and others (TAJ CGHS LTD.)
(i) From the above, it becomes crystal clear that the conspiracy can also be proved by the surrounding circumstances and conduct of the accused persons but the incriminating circumstances must form a chain of events from which conclusion about the guilt of accused persons can be drawn.
54. Now coming to the facts of the case at hand.
55. Firstly, I shall deal with the role of accused Ram Nath (A4) and Faiz Mohd. (A5)
56. As per order dated January 12, 2004, A4 was appointed as inspecting officer to conduct inspection of the Society under Section 54 of DCS Act. Accordingly, he submitted his report dated January 19, 2004 (Ex.PW37/H) (colly.). In his report he certified several facts including :
(i) That he visited the office of Society located at B-3/66, Ashok Vihar, Phase-II, Delhi on January 18, 2004 and meet with Anna Wankhede, Secretary of the Society.
(ii) That Anna Wankhede produced all the relevant record of the Society and informed that presently there are 135 members in the Society, but the list of the members had not been proved by the RCS till date.
(iii) That as per record, Society had shifted its address from C-156, Minto Road Complex, New Delhi to B-3/66, Ashok Vihar, Phase-CBI No. 06/08 Page 62 of 95
State through CBI v. Anna Wankhede and others (TAJ CGHS LTD.) II, Delhi vide resolution dated March 15, 1979.
(iv) That the membership register was complete; audit was pending since July 01, 1971; proceeding register was found complete; last election was held on July 06, 2003.
(v) That all the record was found in the safe custody of Anna Wankhede.
(vi) That the Society was liquidated vide order dated August 23, 1979.
57. It is pertinent to state that this report is not disputed by A4 during trial.
58. In order to establish that no Society was functioning at the address i.e. B-3/66, Ashok Vihar, Phase-II, Delhi, prosecution has examined owner of the said premises i.e. PW20 Ashwani Mittal. PW20 deposed that the said house was purchased in the name of his mother Chanda Mittal and they are residing at the said property since 2000. He testified that he neither knew any such Society nor Anna Wankhede. He further testified that no Society by the name of Taj Cooperative Group Housing Society had ever functioned from the said premises. Though the said witness was cross-examined by A4, but nothing could be extracted during his cross-examination, which may cast any dent in his testimony. From the deposition of PW20, it becomes crystal clear that the said Society was not functioning from the above said address and accused Anna Wankhede had no relation with the said premises.
CBI No. 06/08 Page 63 of 95State through CBI v. Anna Wankhede and others (TAJ CGHS LTD.) Despite that A4 certified in his report that when he visited the said premises on January 18, 2004, not only accused Anna Wankhede met there but he also produced all the relevant record of the Society from the said premises. By certifying the above, A4 made a case for the Society that the Society was functioning from the above said address, which was not correct. This proves that A4 had submitted a false report in favour of accused Anna Wankhede.
59. Since, it has been established that the report Ex.PW37/H is false, onus is shifted upon A4 to explain under which circumstances, he had submitted the false report. But during trial, he failed to adduce any such evidence.
60. As per Section 54 of the DCS Act, 1972, Registrar or his authorised representative has power to inspect Cooperative Societies. For the purpose of such inspection, Registrar or his representative shall have access to all the books, accounts papers, vouchers, securities, stocks and other property of the Society. Since, A4 was deputed by the RCS vide order dated January 12, 2004, thus in terms of Section 54 of the DCS Act, he was authorised representative of the RCS to inspect the premises of the Society and books of account. Further, under Section 63 (3) of DCS Act, RCS has ample power to hold an inquiry before passing the revival order, thus if RCS decided to invoke Section 54 of DCS Act, before dealing with the request of Society for revival, it cannot be said that RCS had acted beyond his jurisdiction. Thus, I do not find any substance in the contention of the learned defence counsel that the inspection of the book had no relation for the purpose of revival of the Society.
CBI No. 06/08 Page 64 of 95State through CBI v. Anna Wankhede and others (TAJ CGHS LTD.)
61. As already stated that A5 was posted as Grade-II Inspector in the RCS office at the relevant time. Vide order dated February 10, 2004 (Ex.PW37/L), RCS directed the AR to conduct the spot verification of the membership and submit its report on the next date of hearing i.e. February 24, 2004. In compliance of the said order, A5 was appointed to conduct such physical verification. Accordingly, A5 submitted his report dated February 16, 2004 (Ex.PW37/M).
(i) In his report, he certified that as per the directions given by Worthy RCS, he visited and physically verified 10 % of total members of the Society i.e. 14 members out of 135 members on February 14, 2004 and February 15, 2004. He also annexed confirmation of the said members alongwith their residential address with his report.
(ii) As per his report, he conducted physical verification of 14 members, namely Jafar Ahmed, Jamal Ansari, Abdul Mazid, Jamil Ahmed, Nasrooddin, Md. Arfin, Md. Aziz, Md. Miyan, Md. Irfan, Md. Izaz, Shahnawaj Ahmed, Md. Mansood, Anita Singh and Virender Singh. At the time of submitting his report, A5 had also taken a certificate from the above said members certifying that they were bonafide members of the Society. The said certificates were purportedly signed by the above said members.
(iii) During investigation, signature, name and address of the members on the said certificates were marked Q1 to Q14. From the GEQD report Ex.PW44/K, it is established that the author of the said signatures and writings was Anna Wankhede, who had already been convicted. Thus, it is proved beyond doubt that the said certificates CBI No. 06/08 Page 65 of 95 State through CBI v. Anna Wankhede and others (TAJ CGHS LTD.) were not given by the above said members; rather their signatures have been forged by accused Anna Wankhede. Since, A5 had certified in his report that he visited and verified the said persons personally, it proves that he had submitted the false report.
62. During trial, prosecution has examined several witnesses from the office of Food and Supply to establish that the copy of ration cards annexed with the said reports were bogus and fabricated and the same were not issued by the Food and Supply office. From the testimony of PW2, PW3, PW6, PW8, PW9, PW12, PW13, PW14 and PW15, it becomes clear that the copy of ration cards of Shahnawaj Ahmed, Md. Arfin, Nasrooddin, Md. Izaz, Jafar Ahmed, Jamal Ansari, Abdul Mazid, Md. Irfan, Jamil Ahmed were fake and the same were not issued from their office.
(i) Similarly, in order to establish whether the said persons were residing at the addresses mentioned in the above said certificates or not, CBI during investigation sent a letter to them through post. But the same were returned unserved with the report either the address was incorrect or no such person was residing at the given address. In order to prove the said undelivered letters, prosecution examined the various postmen. From the testimony of PW4, PW5, PW10 and PW11, it becomes clear that the persons namely Md. Vakil, Md. Musa, Md. Arfin, Md. Aizaz Qureshi, Md. Miyan, Md. Jamil Ahmed, Jafar Ahmed, Md. Aziz, Md. Mansood, Shahnawaj, Md. Irfan, Nasrooddin, Virender Singh, Jamal Ansari, Abdul Mazid were either not residing at the given address or address was found incorrect. This further shows that A5 had submitted false and fabricated report.
CBI No. 06/08 Page 66 of 95State through CBI v. Anna Wankhede and others (TAJ CGHS LTD.)
63. From the above discussion, it becomes crystal clear that A4 and A5 had submitted false reports in their office. During trial, both of them failed to furnish any reasonable explanation under which circumstances, they had submitted the said false reports in their office. Since, the said reports were in favour of accused Anna Wankhede, who claimed himself as Honorary Secretary of the Society, in the absence of any cogent evidence, the above said acts of the above said accused persons, prove beyond doubt that they were in conspiracy with accused Anna Wankhede. However as already discussed that their above said acts had reasonable connection with their official duties, thus sanction under Section 197 Cr. P.C was required to hold them guilty for conspiracy. Since, CBI failed to obtain requisite mandatory sanction, both the above said accused persons cannot be held guilty for the offence punishable under Section 120B IPC.
64. Now, I take up the case of accused Narayan Diwakar (A2) and D. N. Sharma (A3).
65. At the relevant time, A2 was posted as Registrar of Cooperative Group Housing Society, Delhi whereas A3 was posted as AR. As per record, A3 had dealt with the file in question first time on November 20, 2003 when he forwarded the note prepared by A5 to JR; thereafter, he dealt with the file in question on December 10, 2003 when he again forwarded the note prepared by A5 to JR. Thereafter, he dealt with the file on January 05, 2004 when he sent the note prepared by A5 to JR wherein he recommended to approve "to appoint A4 as inspecting officer under Section 54 of DCS Act to verify/examine the record of the Society". Thereafter, he again dealt with the file on January 20, 2004 CBI No. 06/08 Page 67 of 95 State through CBI v. Anna Wankhede and others (TAJ CGHS LTD.) when he forwarded the note to the Reader to RCS for revival of the Society and to approve the freeze list. Thereafter, he dealt with the file on February 20, 2004 when he sent the note prepared by A5 to the RCS with his comment and recommendation "keeping in view the facts mentioned in the notes, request of the Society may be considered under Section 63 (3) of DCS Act." Except that there is no other evidence on record against A3.
66. It is undisputed fact that A3 was working as AR at the relevant time in the office of RCS and being the AR, it was his duty to take some view on the note put up before him by his subordinate i.e. A5. Mere fact that A3 being the AR either simple forwarded the note to his senior officer or sent the same with some comment, in the absence of any other cogent evidence, is not sufficient to draw a conclusion that either A3 was in conspiracy with his subordinate i.e. A5 or with the applicant i.e. accused Anna Wankhede. Though CBI has examined as many as 49 witnesses during trial, but none of the witnesses uttered even a single word about the fact, which may show that either A3 was a member of the conspiracy or he dealt with the file in furtherance of any such conspiracy. In the absence of any such evidence on record, I am of the considered opinion that CBI has miserably failed to prove the charges of conspiracy against A3.
67. Similarly, as per record A2 dealt with the file in question first time on December 16, 2003 when he approved the proposal of his subordinates to issue a circular in order to trace out the missing file. Thereafter, he dealt with the file on January 07, 2004, when he approved the proposal of his subordinates to appoint A4 as inspecting CBI No. 06/08 Page 68 of 95 State through CBI v. Anna Wankhede and others (TAJ CGHS LTD.) officer under Section 54 of the DCS Act. Thereafter, he dealt with the file on February 10, 2004 when he passed certain directions to the AR including to conduct the spot verification of membership and submit the report before the next date of hearing. Thereafter, he dealt with the file on March 09, 2004 when he gave personal hearing to the representative of the Society i.e. Mr. V.K. Gulati, Advocate and reserved the matter for order. Finally, he passed the revival order on March 11, 2004. Except that there is no other evidence on record to prove the fact that either A2 was in conspiracy with his subordinates or with accused Anna Wankhede. Mere fact that he dealt with the file on the above said dates being the Registrar of the Cooperative Societies, in the absence of any other cogent evidence, is totally insufficient to prove that A2 was a member of any conspiracy or he acted in furtherance of any such conspiracy.
68. Besides that, from the revival order Ex.PW29/A it becomes clear that the order is not only reasoned but self-explanatory also, thus it cannot be said that A2 had passed any cryptic order without any basis. Moreover, this Court is not sitting in appeal of the said order. Mere fact that later on, it was revealed that the said order was passed on the basis of some false and fabricated documents is not sufficient ipso-facto, in the absence of any other cogent evidence, to draw a conclusion that either A2 was a member of the conspiracy or he passed the said order in furtherance of any such conspiracy. On the contrary, in the given circumstances, the possibility that the subordinate staff particularly A4 and A5 by producing false, fabricated and forged record induced A2 to pass direction/order in favour of the applicant cannot be ruled out. Mere fact that A2 being the Registrar failed to CBI No. 06/08 Page 69 of 95 State through CBI v. Anna Wankhede and others (TAJ CGHS LTD.) detect the fraud played by his subordinates particularly by A4 and A5 and the applicant i.e. accused Anna is ipso-facto not sufficient to impose any criminal liability upon A2. In order to prove the complicity of A2, prosecution has to establish that either there was some meeting of mind between A2 and the other accused persons or there are some circumstances, which may show that A2 had any such meeting of mind with other accused persons. But during trial, CBI failed to adduce any such evidence. In the absence of any such evidence, I am of the considered opinion that CBI has failed to prove the charges of conspiracy against A2.
69. In the light of aforesaid discussion, I am of the considered opinion that though there are evidence on record to prove the conspiracy between A4, A5 and A1, but since CBI failed to obtain the sanction under Section 197 Cr. P.C., A4 and A5 cannot be held guilty for the offence of conspiracy under Section 120B IPC. However, CBI failed to bring home the guilt of accused A2 and A3 for the offence punishable under Section 120B IPC.
CONTENTIONS RELATING TO FORGERY :-
70. Learned Public Prosecutor for the CBI sagaciously argued that there are sufficient evidence on record to prove the guilt of accused A4 and A5 under Section 468/471 IPC as it has been established that they had submitted a false report. On the contrary, counsel appearing for both the accused persons sagaciously argued that mere fact the reports submitted by them were found false during investigation is not sufficient to prove that they had committed any CBI No. 06/08 Page 70 of 95 State through CBI v. Anna Wankhede and others (TAJ CGHS LTD.) forgery. It was argued that in order to prove the guilt of accused persons for the offence punishable under Section 468 IPC, prosecution has to satisfy the requirements of Section 464 IPC.
71. Forgery is defined under Section 463 IPC which reads as under:
463. Forgery - whoever makes any false documents or false electronic record or part of a document or electronic record, with intent to cause damage or injury to the public or to any person, or to support any claim or title, or to cause any person to part with property, or to enter into any express or implied contract, or with intent to commit fraud or that fraud may be committed, commits forgery.
(emphasis supplied)
72. In order to prove forgery, prosecution has to satisfy the ingredients of 'making of false documents' as defined under Section 464 IPC, which reads as under:-
464. Making a false document:- A person is said to make a false document or false electronic record:-
First-Who dishonestly or fraudulently-
(a) makes, signs, seals or executes a document or part of a document;
(b) makes or transmits any electronic record or part of any electronic record;
(c) affixes any electronic signature on any electronic record;
(d) makes any mark denoting the CBI No. 06/08 Page 71 of 95 State through CBI v. Anna Wankhede and others (TAJ CGHS LTD.) execution of a document or the authenticity of the electronic signature, with the intention of causing it to be believed that such document or part of document, electronic record or electronic signature was made, signed, sealed, executed, transmitted or affixed by or by the authority of a person by whom or by whose authority he knows that it was not made, signed, sealed, executed or affixed; or Secondly- Who, without lawful authority, dishonestly or fraudulently, by cancellation or otherwise, alters a document or an electronic record in any material part thereof, after it has been made, executed or affixed with electronic signature either by himself or by any other person, whether such person be living or dead at the time of such alternation; or Thirdly-Who dishonestly or fraudulently causes any person to sign, seal, execute or alter a document or an electronic record or to affix his electronic signature on any electronic record knowing that such person by reason of unsoundness of mind or intoxication cannot, or that by reason of deception practised upon him, he does not know the contents of the document or electronic record or the nature of the alternation.
(emphasis supplied)
73. Though it is already proved that the reports submitted by A4 and A5 were false, yet in order to prove their guilt under Section 468 IPC, CBI has to establish that the said reports fall within the four corners of Section 464 IPC. Indisputably, A4 was deputed to conduct inquiry and inspection under Section 54 of DCS Act and thereafter, he submitted his report Ex.PW37/H. The said report bears his signature. Similarly, it is also undisputed fact that in compliance of order dated February 10, 2004, A5 was deputed to conduct physical verification and CBI No. 06/08 Page 72 of 95 State through CBI v. Anna Wankhede and others (TAJ CGHS LTD.) pursuant to that directions, A5 submitted his report Ex.PW37/M. The said report also bears his signature.
74. It is admitted case of CBI that the signature of members on the certificates annexed to the report Ex.PW37/M were forged by accused Anna Wankhede and not by A5. Thus, the forgery was committed by accused Anna Wankhede, who forged the signature of members on the certificates. There is no scintilla of evidence to establish that A5 had committed any forgery.
75. Similarly, there is no evidence against A4 except that he had signed his report. Mere fact that the report bears his signature does not mean that he had committed any forgery.
76. In view of the above discussion, I am of the considered opinion that there is no iota of evidence to prove the charges of forgery either against A4 or A5, accordingly, I hereby acquit them from the charge of forgery.
77. Though a separate charge has also been framed against A4 and A5 for the offence punishable under Section 471 IPC, but in order to bring home their guilt within the four corners of Section 471 IPC, prosecution has to establish that the accused persons either knew or they had reason to believe that the said reports were forged.
78. No doubt, the report submitted by A4 is false, but there is nothing on record, which may show that any forgery had been committed qua the said report, thus A4 cannot be held guilty for the CBI No. 06/08 Page 73 of 95 State through CBI v. Anna Wankhede and others (TAJ CGHS LTD.) offence punishable under Section 471 IPC.
79. Though there is evidence on record to establish that the forgery has been committed in the report Ex.PW37/M submitted byA5, but this itself is not sufficient to hold A5 guilty for the offence punishable under Section 471 IPC. As already discussed that the report submitted by A5 was false and accused Anna Wankhede had committed forgery by signing the signature of the members. No doubt, this proves beyond reasonable doubt that A5 neither visited the members personally nor he verified them. But there is no evidence on record to prove that A5 knew the fact that Anna Wankhede had forged the signature of the said members. The possibility that the A5 had submitted the report on the basis of documents i.e. certificates and copy of ration cards supplied to him by Anna Wankhede cannot be ruled out. Unless there are some evidence on record to show that either A5 knew that Anna Wankhede had forged the signature of said persons or there are some cogent evidence to draw a conclusion that A5 had reason to believe that Anna Wankhede had forged the signatures on the certificates, I am of the considered opinion that A5 cannot be held guilty for the offence punishable under Section 471 IPC mere on the ground that he used the said report in his office note Ex.PW37/C.
80. In view of the aforesaid discussion, I am of the considered opinion that CBI has failed to bring home the guilt of A4 and A5 beyond the shadow of all reasonable doubts for the offence punishable under Section 468/471 IPC, accordingly, I hereby acquit them thereunder.
CBI No. 06/08 Page 74 of 95State through CBI v. Anna Wankhede and others (TAJ CGHS LTD.) CONTENTIONS RELATING TO THE ALLEGATIONS UNDER PC ACT:-
81. Learned counsel appearing for A2 to A5 vigorously argued that since, there is no iota of evidence on record to establish that the accused persons had taken either pecuniary advantage or valuable thing either for themselves or for any other person, accused persons cannot be held guilty for the offence punishable under Section 15 r/w Section 13 (1) (d) of PC Act.
(i) Learned counsels appearing for A2 and A3 sagaciously argued that there is no iota of evidence against A2 and A3 to prove their culpability except that they had dealt with the files in question being the Registrar and Assistant Registrar respectively. It was argued that mere fact that they had dealt with the file at the relevant time and took a particular decision on the basis of material placed before them is not sufficient in any manner to establish that they had abused their official position in any manner.
(ii) Learned counsel appearing for A4 and A5 vehemently contended that mere fact later on it was revealed that the reports submitted by them were not correct is not sufficient to hold them guilty under Section 15 of PC Act because there is no evidence on record to establish that they had obtained any pecuniary advantage or valuable thing from any person. It was further contended that since no procedure was prescribed in the DCS Act and DCS Rules to prepare the report, thus if some mistake had taken place while preparing the reports, it cannot be said that they had taken any pecuniary advantage or CBI No. 06/08 Page 75 of 95 State through CBI v. Anna Wankhede and others (TAJ CGHS LTD.) valuable thing. It was further argued that even the reports submitted by A4 and A5 were not required to revive the Society.
82. Per contra, Ld. Public Prosecutor refuted the said contentions by vigorously arguing that since the above accused persons had dealt with the files in question with a malafide intention, they are liable for the offence punishable under Section 15 of PC Act. It was further contended that though there is no direct evidence to establish that the above said accused persons had taken pecuniary advantage or valuable thing from accused Anna Wankhede, but it has been established that on the basis of their reports, not only the Society was revived, but the list of the members was also approved by the RCS and same was sent to DDA for allotment of land. Thus by their acts, accused persons made an attempt to obtain valuable thing for their co- accused i.e. Anna Wankhede. It was further contended that since A2 and A3 were posted at responsible position at the relevant time, it was their duty to check all the documents thoroughly before recommending and passing the revival order. It was argued that since they were in conspiracy with Anna Wankhede, A3 forwarded the notes without checking the record and similarly A2 passed the revival order without taking any due precaution.
83. Before dealing with the contentions raised by counsel for the parties, I prefer to refer Section 13 (1) (d) of Prevention of Corruption Act, which is in following three parts : -
Whoever:-
(i) by corrupt or illegal means, CBI No. 06/08 Page 76 of 95 State through CBI v. Anna Wankhede and others (TAJ CGHS LTD.) 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 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)
(i) Bare perusal of clause (i) and (ii), makes it 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 CBI No. 06/08 Page 77 of 95 State through CBI v. Anna Wankhede and others (TAJ CGHS LTD.) 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 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 CBI No. 06/08 Page 78 of 95 State through CBI v. Anna Wankhede and others (TAJ CGHS LTD.) 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 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 CBI No. 06/08 Page 79 of 95 State through CBI v. Anna Wankhede and others (TAJ CGHS LTD.) 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 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 CBI No. 06/08 Page 80 of 95 State through CBI v. Anna Wankhede and others (TAJ CGHS LTD.) 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
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 CBI No. 06/08 Page 81 of 95 State through CBI v. Anna Wankhede and others (TAJ CGHS LTD.) 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 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 CBI No. 06/08 Page 82 of 95 State through CBI v. Anna Wankhede and others (TAJ CGHS LTD.) 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. 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.
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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.CBI No. 06/08 Page 83 of 95
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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 CBI No. 06/08 Page 84 of 95 State through CBI v. Anna Wankhede and others (TAJ CGHS LTD.) pecuniary advantage or valuable thing, he is fastened with responsibility for "criminal misconduct" under Section 13 (1) (d) (iii). There 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 CBI No. 06/08 Page 85 of 95 State through CBI v. Anna Wankhede and others (TAJ CGHS LTD.) precautions having regard to the circumstances, despite which there was loss of public interest, he would not be guilty of the offence. The 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)
(ii) 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.
84. Section 15 of the Prevention of Corruption Act reads as under:
15. Punishment for attempt - Whoever attempts to commit an offence referred to in clause (c) or clause (d) of sub-section 1 of Section 13 shall be punishable with imprisonment for a term which may extend to three years and with fine.
85. From Section 15 of PC Act, it becomes clear that even an attempt to commit any of the offences mentioned in clause (c) and (d) of Section 13 (1) of PC Act is also an offence.
CBI No. 06/08 Page 86 of 95State through CBI v. Anna Wankhede and others (TAJ CGHS LTD.)
86. As already discussed that A4 was appointed as inspecting officer to conduct inspection under Section 54 of DCS Act, 1972. Thereafter, A4 submitted his report Ex.PW37/H. It has also been established that the said report was incorrect and false on material points. Similarly, A5 was appointed to conduct physical verification of members of the Society. Consequently, he submitted his report dated February 16, 2004 (Ex.PW37/M). It has also been established that the said report was also false. Even it has also been established that A1 forged the signature of members on the certificates purportedly issued by the said members qua whom A5 certified in his report that he had physically verified them. Thus, it has been established beyond doubt that A4 and A5 had submitted false report in the office.
87. As already discussed that under Section 63 (3) of DCS Act, Registrar has power to conduct an inquiry, thus before passing the revival order, when a note Ex.PW28/A was put up before A2, which was forwarded by A3 and the Joint Registrar, A2 approved the recommendation to appoint A4 as inspecting officer under Section 54 of DCS Act to verify/examine the record of the Society. Similarly, when again the file was put up before A2 for revival of the Society, A2 directed the AR to conduct the spot verification of membership vide order dated February 10, 2004 (Ex.PW37/L).
88. Thus, it becomes clear that A4 and A5 had submitted the reports in terms of order passed by A2, who was working as Registrar of Cooperative Societies. Since, under Section 63 (3) of DCS Act, Registrar had ample power to conduct an inquiry before passing the revival order, it cannot be said that the said reports were not required to CBI No. 06/08 Page 87 of 95 State through CBI v. Anna Wankhede and others (TAJ CGHS LTD.) pass the revival order.
(i) Assuming for the sake of arguments that the said reports were not required to pass revival order, but the moot question is when A4 and A5 were directed to conduct inspection/physical verification, it was their paramount duty to submit a correct report. But they deliberately submitted false and fabricated report.
89. Since, A4 and A5 submitted false reports while acting as public servants, it amounts abusing of official position. Further, submission of false and fabricated reports in the office is not in public interest. In other words, the above acts of A4 and A5 were against the public interest.
90. By submitting the false and fabricated report in favour of Anna Wankhede, A4 and A5 made an attempt to commit the offence as defined under clause (ii) and (iii) of Section 13 (1) (d) of PC Act. By submitting the false reports, they not only facilitated Anna Wankhede to get approved the list of fake members but also helped him to get revival order. Apart from that, they also facilitated him to get sent the said list to DDA in order to get land in the name of defunct Society at subsidized rate. Thus, they made an attempt to get valuable thing i.e. land in the name of defunct Society.
91. In view of the above, I am of the considered opinion that there are sufficient evidence on record to prove the guilt of accused Ram Nath (A4), Faiz Mohd. (A5) beyond the shadow of all reasonable doubts for the offence punishable under Section 15 r/w Section 13 (1) CBI No. 06/08 Page 88 of 95 State through CBI v. Anna Wankhede and others (TAJ CGHS LTD.)
(d) (ii) & (iii) of PC Act, accordingly, I hereby hold them guilty thereunder.
92. No doubt, A2 had passed the revival order. But as already stated that the revival order is not only reasoned but also self explanatory. Further, it is admitted case of CBI that before passing the revival order, A2 had conducted an inquiry by appointing A4 as inspecting officer under Section 54 of DCS Act and directing to conduct physical verification of the members of the Society. Thus, it cannot be said that A2 had passed the revival order without making any inquiry or taking due precaution. Though, it has been established that A4 and A5 had submitted false reports, yet there is no iota of evidence on record to establish that either A2 or A3 knew that the said reports were false. In the absence of any such evidence, it will not be proper to impose any criminal liability upon them.
(i) No doubt, A2 had also passed direction to reconstruct the file without lodging the FIR, but during trial, no material has been placed on record to establish that the registration of FIR was a pre-condition to reconstruct the file. Further, if registration of FIR was a pre-condition to reconstruct the file, then in that eventuality CBI should also implead Joint Registrar as an accused as also approved the note for reconstruction of the file. But CBI cited him as a witness. In the absence of any cogent evidence on record, I do not find any substance in the contention of Ld. Public Prosecutor that since FIR was not lodged before reconstruction of the file, A2 and A3 had dishonest intention or they were in conspiracy with the accused Anna Wankhede.
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93. No doubt, A3 being AR, approved the note (Ex.PW28/A) of dealing assistant wherein A5 made a proposal to appoint A4 as inspecting officer under Section 54 of DCS Act to verify/examine all the record of Society. Similarly, it is also admitted case of CBI that the AR directed A5 to conduct physical verification of the members. But the said acts are not sufficient in any manner to establish that A3 knew the fact that A4 and A5 had submitted false reports.
94. Similarly, it is also admitted case of CBI that A3 had forwarded the note Ex.PW37/C to the Reader to RCS on February 20, 2004 with his recommendation (Ex.PW37/D), but there is nothing on record to show that A3 knew the fact that A4 and A5 had submitted false reports and the note that was put up before A3 was based on false reports. In the absence of any such evidence on record mere fact that A3 being the AR had acted on the note put up by A5 being the Assistant Registrar is not sufficient in any manner that either he had abused his official position or he had acted without any public interest or that he had made an attempt to commit an offence as defined in clause (c) and
(d) of Section 13 (1) of PC Act.
95. In view of the aforesaid discussion, I am of the considered opinion that the evidences led by CBI are insufficient to prove the guilt of A2 and A3 for the offence punishable under Section 15 r/w Section 13 (1) (d) of PC Act, accordingly, I acquit them thereunder.
CONCLUSION:
96. In the light of the aforesaid discussion, I am of the CBI No. 06/08 Page 90 of 95 State through CBI v. Anna Wankhede and others (TAJ CGHS LTD.) considered opinion that:-
(i) CBI has succeeded to bring home the guilt of accused Ram Nath (A4) and Faiz Mohd (A5) for the offence punishable under Section 15 r/w Section 13 (1) (d) (ii) & (iii) of PC Act, 1988 beyond the shadow of all reasonable doubts, accordingly, I hereby hold them guilty thereunder.
(ii) CBI has failed to bring home the guilt of accused Narayan Diwakar (A2) and D.N. Sharma (A3) for the offence punishable under Section 15 r/w Section 13 (1) (d) of PC Act beyond the shadow of all reasonable doubts, accordingly, I hereby acquit them thereunder.
(iii) CBI has also failed to bring home the guilt of accused Narayan Diwakar (A2) and D.N. Sharma (A3), Ram Nath (A4), Faiz Mohd. (A5) for the offence punishable under Section 120B IPC r/w 468/471/420 IPC beyond the shadow of all reasonable doubts, accordingly, I hereby acquit them thereunder.
(iv) CBI has also failed to bring home the guilt of accused Ram Nath (A4), Faiz Mohd. (A5) for the offence punishable under Section 468/471 IPC beyond the shadow of all reasonable doubts, accordingly, I hereby acquit them thereunder.
Announced in the open Court on this 15th day of March, 2016 (PAWAN KUMAR JAIN) Special Judge-01, CBI, North West Rohini Courts, Delhi/sm CBI No. 06/08 Page 91 of 95 State through CBI v. Anna Wankhede and others (TAJ CGHS LTD.) 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. : 06/2008ID No. : 02404R0437222006 FIR No. : RC-9(E)/2005/EOW-I/CBI New Delhi U/Sec: 120B IPC r/w 419/420/465/467/468/471 IPC 13(2) r/w 15 and 13(1)(d) of PC Act 1988 substantive offences thereto Police Station: CBI/EOW-I/CBI/New Delhi STATE THROUGH CENTRAL BUREAU OF INVESTIGATION, NEW DELHI VERSUS CBI No. 06/08 Page 92 of 95 State through CBI v. Anna Wankhede and others (TAJ CGHS LTD.)
1. Ram Nath S/o Late Bishan Lal R/o 192, West Guru Anga Nagar Laxmi Nagar, Gali No.9, Delhi-92 ..........Convict No. 1
2. Faiz Mohd.
S/o Late Gulam Mohd.
R/o 4794, Bara Hindu Rao Near Sadar Bazar Pahari Dhiraj, Delhi-6 ..........Convict No. 2 Appearance: Sh. Harsh Mohan, Public Prosecutor for CBI Sh. S.K. Bhatnagar, Advocate, counsel for convict Ram Nath (C1) and Faiz Mohd. (C2) ORDER ON THE POINT OF SENTENCE:-
1. Vide separate judgment dated 15.03.2016, Ram Nath (A4) and Faiz Mohd. (A5) had been held guilty for the offence punishable under Section 15 r/w Section 13 (1) (d) (ii) & (iii) of Prevention of Corruption Act, 1988.CBI No. 06/08 Page 93 of 95
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2. Learned counsel appearing for the convicts requests for a lenient view on the ground that they are facing trial since 2006 and convict Ram Nath is 66 years old whereas convict Faiz Mohd is about 73 years old.
3. Per contra, counsel appearing for CBI requests that maximum sentence be imposed against both the convicts as they had abused their official position by submitting false reports.
4. I have heard rival submissions advanced by counsel for both the parties, perused record carefully and gave my thoughtful consideration to their contentions.
5. It is undisputed fact that accused Anna Wankhede had confessed his guilt, accordingly, he was held guilty vide judgment dated 04.06.2012 for the offence punishable under Section 120B IPC r/w Section 420/468/471 IPC and Section 13 (2) r/w Section 13 (1) (d) of PC Act, 1988 and for the offences punishable under Section 420/468/471 IPC. Vide order dated 06.06.2012, he was sentenced for a period of 12 months with a fine of ` 5,000/- in default of further simple imprisonment for a period of one month.
6. Indisputably, the role of the above two convicts is not more grave than that of Anna Wankhede, thus I am of the view that it is not a fit case to award maximum sentence as prayed by Learned Public Prosecutor for CBI. However, it has already been established that both CBI No. 06/08 Page 94 of 95 State through CBI v. Anna Wankhede and others (TAJ CGHS LTD.) the convicts were posted as public servants at the relevant time and both of them abused their official position by submitting false reports in favour of the Society/Anna Wankhede to enable the Society/Anna Wankhede to get land at subsidized rate.
7. Considering the aggravating and mitigating factors and facts and circumstances of the case, I hereby sentence both the convicts rigorous imprisonment for the period of six months and a fine of ` 20,000/- each in default further simple imprisonment for a period of three months for the offence punishable under Section 15 r/w Section 13 (1) (d) (ii) & (iii) of Prevention of Corruption Act, 1988.
8. Benefit of Section 428 Cr. P.C, if any, be given to them.
9. Copy of judgment along with order on the point of sentence be given to both the convicts/their counsel free of cost.
10. File be consigned to record room.
Announced in the open Court on this 21st day of March, 2016 (PAWAN KUMAR JAIN) Special Judge-01, CBI, North West Rohini Courts, Delhi/sm CBI No. 06/08 Page 95 of 95