Allahabad High Court
Ram Shanker Singh vs State Of U.P. And Another on 4 January, 2017
Bench: Arun Tandon, Umesh Chandra Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Court No. - 10 Case :- APPLICATION U/S 482 No. - 27288 of 2016 Applicant :- Ram Shanker Singh Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Rajiv Lochan Shukla,Ankur Singh Kushwaha,Vikash Chandra Tiwari Counsel for Opposite Party :- G.A.,Amit Misra Hon'ble Arun Tandon,J.
Hon'ble Umesh Chandra Srivastava,J.
Heard Shri Rajiv Lochan Shukla, learned counsel on behalf of the applicant, Shri Amit Mishra, on behalf of C.B.I. and learned AGA for the State.
This application under section 482 Cr.P.C. has been filed for quashing of the order dated 16.2.2016 passed by the Special Judicial Magistrate, C.B.I., Ghaziabad in Case Crime No.235 of 2010 (State vs. C.B.I. Ram Shanker and others), under section 120-B read with Section 201 read with Section 420 read with Section 477-A I.P.C. and Section 65 of the Information Technology Act, 2000 and under Sections 201, 420, 477-A I.P.C. and Section 65 of the Information Technology Act, 2000 arising out of R.C. No.1(A)2008/ACU-IX, New Delhi under Sections 120-B, 420, 167, 477-A I.P.C. and Section 65 of the Information Technology Act, Police Station- C.B.I., ACU-IX, New Delhi, District- Ghaziabad.
In pursuance to the direction issued by the writ court in Civil Misc. Writ Petition No.48287 of 2005, Deepak Sharma vs. State of U.P. and others connected with Civil Misc. Writ Petition No.50418 of 2005, Manav Sewa Samiti and others vs. New Okhla Industrial Development Authority and others, an investigation was conducted by C.B.I. in the matter of draw of lots held by Noida on 2nd July, 2005 for its 'Residential Plot Scheme 2004(1)'. The Director, CBI was required to get the investigation done under his supervision through responsible senior officer. The report was required to be submitted to this Court within three months in that regard. The Division Bench specifically observed that the direction so issued is an step towards cleansing the public administration. It is indeed a herculean task but small steps would make great strides in the days to come.
In pursuance to the direction so issued by the High Court a first information report bearing FIR No. 1 of 2008 under Sections 120-B, 420, 167, 477-A I.P.C., 13 (1) (d) read with section 13(2) Prevention of Corruption Act, 1988 and section 65 Information Technology Act, 2000 was registered on 7.1.2008 that is after three years of the direction by the writ court. After investigation, a chargesheet was submitted under section 173 Cr.P.C. in the month of March, 2010 against two persons namely Ram Shanker Singh (the applicant) and Alok Singh Chauhan under Section 120-B read with Sections 420, 201, 477-A I.P.C. and Section 65 of the Information Technology Act, 2000.
The Court took the cognizance of the police report submitted and accordingly summoned the accused Ram Shanker Singh and Alok Singh Chauhan. From the records we find that the accused instead of responding to the summoning orders, avoided the compliance thereof. As a result whereof on 28.7.2010/3.9.2010 bailable warrants were issued.
Against the order taking cognizance and the order issuing bailable warrants, accused Ram Shanker Singh and Alok Singh Chauhan filed Criminal Revision No.3527 of 2010 and Criminal Revision No.3765 of 2010 before High Court. These two criminal revisions were heard by the Division Bench of this Court and were dismissed by means of a detailed order dated 8.7.2011.
According to the petitioner, they thereafter surrendered and have been granted bail. The applicant as well as Shri Alok Singh Chauhan, made applications for discharge under section 239 Cr.P.C., which application has been rejected vide order dated 16.2.2016, and 26.2.2016 was fixed as the date for framing of charge. The charges were framed under an order dated 24.8.2016.
It is at this stage that the revisionist Ram Shanker Singh has filed this application under section 482 Cr.P.C. for quashing of the charges, leveled against the petitioner, as well as the order dated 16.2.2016 whereby the discharge application was rejected. It has further been prayed that the proceeding of Case No.235 of 2010 may be quashed.
In paragraph 28 of the present application it has been stated that the other co-accused A.S. Chauhan has preferred Criminal Revision No.822 of 2016. What is the status of the said Criminal Revision is not known.
However the applicant, Ram Shanker Singh, in his wisdom has decided to approach this Court under section 482 Cr.P.C. The contention raised on behalf of the applicant for not preferring criminal revision after he felt aggrieved by the order, rejecting the discharge application and after framing of the charge is that since against the order framing charge no criminal revision would be maintainable, the appellant has decided to approach this Court by means of this present application.
At the very outset we may record that the order rejecting the discharge application was made in the month of February, 2016 while the charge has been framed under order dated 24.8.2016. These are two distinct orders. The order rejecting the discharge application was admittedly revisable. Why the applicant did not think it proper to challenge the order rejecting the discharge application for more than six months, has not been explained. Against the order rejecting the discharge application, a criminal revision would be maintainable, there is little or no reason for the accused to approach this Court under section 482 Cr.P.C. against the said order.
So far as framing of the charge is concerned, we find that under sections 238, 239 and 240, Cr.P.C., the proceedings for consideration of discharge and framing of the charge are more or less simultaneous inasmuch as if after consideration discharge application is rejected after finding that there is ground for presuming that the accused has committed an offence which is triable under the said chapter then the only cause open to the Magistrate is to frame charge. Meaning thereby, that framing of the charge is a necessary consequence to the rejection of the discharge application.
The charges as framed against the applicant are being objected before us on the pleas said to be stated in paragraph nos.11, 12, 13, 15, 16, 17, 19, 20, 21, 22, 26, 27, 30, 32, 33, 34 and 35 of this application as reproduced below:
"11. That in respect of the charge framed under Section 420 IPC there is no evidence whatsoever in the charge-sheet that the applicant by his spoken or written words or even by this gestures deceived someone. There is also no material with the prosecution to show that the applicant made a fraudulent or dishonest inducement to the person so deceived. Thus the ingredient of the offence under Section 420 IPC is absent. Therefore no offence under Section 420 IPC is made out against the applicant.
12. That in respect of the charge framed under Section 477-A IPC there is no evidence on record to show that the applicant has destroyed, altered, multilated or falsified any book, electronic record, paper, writing, valuable security or account or abetted in the doing of the same. Thus, no offence under Section 477-A IPC is made out against the applicant. It may be further pointed out here that thhe software in question was demonstrated and then the C.D. of the same was sealed as such there could not have been any manipulation in the software source code.
13. That there is no evidence on record in respect of offence under Section 65 IT Act, 2000. There is no allegation in the charge-sheet that the computer source code of the software relating to draw of lots, prepared or developed by the co-accused Alok Singh Chauhan, which was overseen by the applicant, was knowingly or intentionally concealed, destroyed or altered or knowingly or intentionally caused some other person to conceal, destroy or alter in the manner as provided by Section 65 of the IT Act, 2000.
15. That the entire case of the prosecution rests on the fact that as per the report of Andhra Pradesh Forensic Science Laboratories, on the date of 2.7.2005 this laptop was not used to conduct the draw of the lots as it was not in use during the time period 10:00 hrs. to 14:00 hrs. Therefore, the allegation that all the iteration tables created on 2.7.2005 between 10:00 hrs. to 14:00 hrs. are connected and are a result of manipulation by the applicant and co-accused Alok Singh Chauhan is ludicrous because above mentioned fact has not been mentioned in the report of APFSL and also such a time period cannot be ascertained by any manner.
16. That only the time at which a particular file in the laptop/computer was created/accessed/modified/deleted alone could be known but the duration of working on that file cannot be known. The same is evident from the report of the Andhra Pradesh Forensic Science Laboratories.
17. That the APFSL report explicitly mentions that the laptop was in use with regard to File created/Last written/Last accessed/Entry Modified/File deleted at 09:00 hrs, 14:00 hrs. and 22:00 hrs. on 2.7.2005 which clearly proves the prosecution case to be based on erroneous grounds, as the laptop indeed was in use on 2.7.2005.
19. That it may be submitted here that the original C.D. Of the software in question was sealed in the presence of the members of the committee and at no point of time was the seal tamper with, therefore, it cannot be said that at any point of time the software was tampered and the source code was changed.
20. That in order to know whether a particular computer source code has been tampered or not the first thing that is required to be done is to obtain the original version of the computer source code and the alleged tampered version of computer source code so that by comparison of the two, it could be ascertained whether both the versions are same of not. In the instant matter this exercise has not been performed by the CBI which further exposes the ignominious investigation of the case by CBI.
21. That there was a team of expert engineers which had certified the software created under the supervision of the applicant and for the kind perusal of this Hon'ble Court, a true copy of the Technical Committee Certificates is being filed herewith and marked as Annexure No.9 to this affidavit.
22. That as far as the applicability of sec. 120-B IPC is concerned there is no evidence on record which proves that there was an agreement whether oral or in writing between the applicant and co-accused A.S. Chauhan to commit an illegal act or to commit a legal act by illegal means. Since the main ingredient of an offence under Section 120-B IPC is lacking therefore the charge under Section 120-B IPC cannot be sustained.
26. That thus from the entire facts and circumstances as enumerated in the preceding paragraphs, it is apparent that no criminal offences are made out against the accused applicant, and even if the prosecution case is taken at its face value and accepted in its entirely, even then no case/offences are made out against the accused applicant.
27. That from the aforesaid, it is crystal clear that the allegations even if taken at their face value and accepted in their entirety, even then no offences under Sections 420, 201, 120-B, 477-A IPC, 65 IT Act are made out.
30. That initially when the charge-sheet has been preferred by the CBI, an application was moved on behalf of the applicant seeking appropriate orders from the learned Magistrate towards taking of cognizance and the fact that the CBI did not have jurisdiction to place the said charge-sheet before the learned court, which application was dismissed by the learned Special Judicial Magistrate, against which a criminal revision was preferred by the co-accused A.S. Chauhan, being Criminal Revision No.3765 of 2010, and that by the applicant, being Criminal Revision No.3527 of 2010. Initially vide order dated 8.9.2010, an interim order was granted in favour of the applicant and thereafter the revisions were connected and the matters were placed before the Hon'ble the Division Bench for adjudication and this Hon'ble Court, by means of its order dated 8.7.2011, was pleased to dismiss the criminal revisions and vacated the interim orders. For the kind perusal of this Hon'ble Court, a true copy of the order dated 8.9.2010 passed by this Hon'ble Court in Criminal Revision No.3527 of 2010 granting interim protection to the applicant is being filed herewith and marked as Annexure No.10 to this affidavit and a true copy of the final order dated 8.7.2011 passed by this Hon'ble Court in Criminal Revision No.3527 of 2010 is being filed herewith and marked as Annexure No.11 to this affidavit.
32. That apart from the grounds mentioned above, a specific contention is being raised by means of the present application to the effect that as per the charge-sheet filed by the CBI in paragraph no.28 it has been mentioned that for allotment of plots 715 VIPs (Very Important Persons) had applied for out of whom allegedly due to the machinations of the applicant, 129 VIPs were selected for allotment of plots. It may be submitted here that in the entire investigation of the CBI neither the names of 715 VIPs, who had applied for allotment of plots nor the allegedly successful candidates, 129 in number, have been identified. Nothing has come on record to substantiate the figures so produced by the CBI and the identities of the alleged beneficiaries has neither been investigated nor disclosed. The parameters for determining VIPs has also not been disclosed so that any Court adjudicating the matter may actually come to a conclusion whether unsuitable people had been selected or nepotism had been practiced against a particular class. Furthermore, it may be relevant to point out here that the offences that is being alleged is of officials of UPDESCO and an independent contractor, who for allegedly extraneous considerations tampered with software for randomized selection of allottees so that it may pick a specified class of persons to be the beneficiary of such allotment. Once such class of persons and the parameters for determining the said class have not been disclosed in the entire investigation nor has it been shown that the particular persons for whom the said fraud was perpetrated actually existed, no prosecution for allegedly falsification of digital records or concealment of evidence, cheating and forgery could be prosecuted and the applicant deserves to be discharged, the charges framed against the applicant deserves to be quashed.
33. That the CBI has not disclosed as to why no efforts were made to trace out the alleged beneficiaries.
34. That no investigation was made into the assets of the accused persons, being charge-sheeted, to find out as to whether there is any monetary, property or other consideration unaccounted for to give arise to any suspicion that the applicant or the other accused had actually accepted any illegal monetary consideration or consideration of any other kind to indulge in the alleged criminal act. This ground is without prejudice to the earlier contention of the applicant that no criminal act has been perpetrated by the applicant nor has any software been tampered with.
35. That in the absence of the above mentioned investigation as well as non-identification of the alleged beneficiaries,the entire basis for the commission of the alleged offence disappears and no prosecution can be launched against the applicant for an offence which is, on the face of record,not made out."
We have carefully gone through the aforesaid grounds which have been pressed before us. These pleas are more or less in the nature of defence to be taken before the trial and need to be examined on consideration of the evidence which has been collected or which may be produced in support of the charges.
The chargesheet need not be quashed by this Court on the plea which has been pressed before us at this stage.
We may further notice that Division Bench of this Court had granted an interim order in favour of the appellant on 7.9.2016. As a result whereof the proceedings of the aforesaid case were directed to remain stayed. What was pressed was that the CBI was directed to conduct an investigation and find out the officers and employees of NOIDA, UPDESCO and State Government responsible for manipulation in the draw of lots which has not been done.
We may record that the said contention raised on behalf of the applicant is totally misconceived inasmuch as it is open to the trial court to summon the person if it finds during trial that he is also involved in an offence and for that purpose reference be made to section 319 of the Cr.P.C. It is also open to the accused to bring to the knowledge of the Court concerned that besides him there are other persons involved who may also be put to trial for the offence.
We further find that the investigation which was directed by the writ court vide order dated 4.10.2005 though CBI has been dragged for more 5 years and further because of the filing of the criminal revision earlier by the accused appellant being Criminal Revision No.3527 of 2010 and Criminal Revision No.3765 of 2010, where under the interim order continued in operation till the matter was finally decided in 2011, and thereafter because of the interim order granted in this application the trial has not yet started even after 12 years of the order of the writ court.
Before parting with, we would like to record that in the given facts the F.I.R. was lodged by the C.B.I. after holding preliminary inquiry under the order of the writ Court. Thereafter, the case was investigated by a Senior Officer of the C.B.I. under the supervision of Director, C.B.I. After finding sufficient evidence against applicant and one more namely Alok Singh Chauhan regarding manipulation made by them in the matter of draw of lots with regard to allotment of residential plots, during investigation, report under section 173(2) of the Cr.P.C. against applicant and Alok Singh Chauhan was filed. Surprisingly, there being no known procedure under law at pre-cognizance stage, an objection was filed by the applicant against the said report and the learned Special Magistrate, C.B.I. after having taken consideration of the report together with evidences collected during investigation rejected the objection so filed by the applicant and took cognizance against him and co-accused Alok Singh Chauhan for the offence under sections 120-B, 201, 420, 477-A I.P.C. and section 65 Information Technology Act, vide order dated 28.06.2010. The Special Magistrate directed the applicant and co-accused to put in their appearance. Despite the aforesaid order being passed to the notice of the applicant and co-accused Alok Singh Chauhan when they did not comply with the said order, bailable warrants were issued against both of them vide orders dated 28.07.2010 and 03.09.2010 of the learned Special Magistrate, C.B.I. It was only after this order that a criminal revision being Criminal Revision No. 3527 of 2010 by the applicant and another Criminal Revision being Criminal Revision No. 3765 of 2010 by co-accused Alok Singh Chauhan was filed on various grounds. The revisions were dismissed by a detailed judgement dated 08.07.2011 and orders of the learned Special Magistrate, C.B.I. taking cognizance and issuing bailable warrants against applicant and co-accused Alok Singh Chauhan were affirmed.
After the revisions preferred by the applicant and co-accused Alok Singh Chuhan being dismissed by the Division Bench of this Court after negating the grounds taken therein, applicant and co-accused Alok Singh Chauhan instead of assisting the learned Special Judge, C.B.I. by allowing him to proceed with trial after framing charge, again tried to instal the proceedings by filing discharge applications. This discharge application was rejected and instead of preferring revision against the said order, the applicant waited for the framing of charge against him, which took place after six months, and thereafter filed this present application, being fully conscious of the fact that once the order taking cognizance had been confirmed in criminal revision it would be almost impermissible for the Magistrate to allow discharge under section 239 of the Cr.P.C. Discharge contemplated under section 239, Cr.P.C. may only be made upon considering the police report alongwith documents sent with it under section 173, Cr.P.C., where it is found that even a presumption that accused has committed the offence under Chapter XIX, cannot be drawn. In view of the aforesaid preposition of law regarding discharge and framing of charge with reference to section 239 and 240, Cr.P.C. application filed by the applicant for discharge after his revision against the order taking congnizance was filed and dismissed by a detailed judgement by the High Court was nothing but a deliberate futile attempt. Further non filing of revision against the order refusing its prayer of discharge and preferring this present application under section 482, Cr.P.C. after framing of charge is a clear misuse of the process of the Court.
Reference may be had to the observations of the Apex Court in the case of State of Madhya Pradesh vs. Rakesh Mishra, reported in 2015 CRI.L.J. 2510, wherein in paragraph 14 it has been laid down as follows:
"14. We may, however, express our disappointment of such extended litigation at the pre-trial stage itself. The delay in justice delivery system not only renders justice ineffective but also ill-founded as it leads to erosion of evidence. In the light of this observation, we request the Trial Court to conduct the trial in the most expeditious manner."
Application being deliberately made with a view to install proceedings to be taken against applicant deserves to be dismissed with special costs.
In view of the facts and circumstances of the case this application is accordingly dismissed with costs of Rs. 20,000/-.
Interim order, if any, stands vacated.
The trial court is directed to proceed with the trial with all promptness and without granting any unnecessary adjournment to any of the parties.
Order Date :- 4.1.2017 Deepika