Delhi District Court
State Through Cbi vs Bibianus Toppo & Others on 16 April, 2015
State through CBI v/s Bibianus Toppo & others
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. 76/2008
ID No. : 02404R0009592008
FIR No. RC-2(A)/05/SCU- V/SCR-II/CBI, DELHI
U/Sec: 120B r/w 419/420/467/468/471/474 IPC
13(2) r/w 13(1)(d) of PC Act 1988
12(1) (b) of Passport Act 1967 and
substantive offences thereto
Police Station: CBI/SCU-V/SCR-II/New Delhi
STATE
THROUGH
CENTRAL BUREAU OF INVESTIGATION,
NEW DELHI
VERUS
1. Bibianus Toppo
S/o Late Joseph Toppo,
R/o 14 G, Sector 4,
DIZ Area, Raja Bazar,
Gole Market, New Delhi-01.
..........Accused No. 1
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2. Harbhajan Yadav
S/o Late Sultan Singh Yadav,
R/o H. No. 949/1, Gali No. 4,
Ashok Vihar, Gurgaon,
Haryana.
..........Accused No. 2
3. Ram Chander
S/o Sh. Maman Ram,
R/o J-624, Sardar Colony,
Sector 16, Rohini, Delhi-85
..........Accused No. 3
4. G.D. Joshi
S/o Late K. D. Joshi,
R/o 676, Sector - 8, R.K. Puram,
New Delhi - 22.
..........Accused No. 4
5. R.S. Rawat
S/o Late Bachan Singh Rawat,
R/o X-258, Sarojni Nagar,
New Delhi-23.
(Proceedings abated on account
of death vide order dated 19.12.14)
..........Accused No. 5
6. Anup Singh
S/o Late Sh. Kishori Lal,
R/o Vill. Sadarpur, PO & PS Bahdurgarh,
Distt. Ghaziabad, UP.
..........Accused No. 6
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7. Anil Dhawan
S/o Late Madan Lal Dhawan,
R/o 254, DDA Flats, 1st Floor,
New Ranjit Nagar,
New Delhi-8.
..........Accused No. 7
8. Naieem Safi
S/o Sh. Salim Safi,
R/o A-296, DDA Flat,
1st Floor, New Ranjit Nagar,
New Delhi - 8.
..........Accused No. 8
9. Sweta Dhawan
W/o Anil Dhawan,
R/o 254, DDA Flats,
1st Floor, Ranjit Nagar,
New Delhi - 8.
(Discharged vide order dated 8.4.2010)
..........Accused No. 9
Date of Institution : 20.12.2008
Date of judgement reserved on : 27.03.2015
Date of pronouncement of judgement : 10.04.2015
Appearance : Ms. Shashi Vishwakarma, Public
Prosecutor for CBI
Sh. R. Ramachandran, Advocate, counsel
for accused no.1 and 6
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Sh. Anil Gupta, Advocate, counsel for
accused No.2
Sh. Sukhvinder Singh, Advocate, counsel
for accused no.3
Sh. Mritunjay Singh, Advocate, counsel for
accused no. 4
Sh. Ashwani Verma, Advocate, counsel for
accused no. 7
Sh. Lalit Yadav, Advocate, counsel for
accused no. 8
J U D G E M E N T:-
1. Facts in brief as unfolded from the charge-sheet are as under:-
(i) That an information was received in CBI office that during the period 2000-2004 S/Sh. Om Parkash, PRO; Bibianus Toppo, Superintendent (A1); P. K. Kapoor, Superintendent (since deceased);
Purshottam Lal, UDC; Harbhajan Yadav, UDC (A2) all employees and working in Regional Passport Office (in short RPO), New Delhi entered into a criminal conspiracy with Sh. Anil Dhawan (A7), Naieem Safi (A8) and others to cheat the RPO, New Delhi for obtaining various passports in the form of additional passport booklets using similar personal particulars with different photographs and signatures of the passport holders.
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(ii) It was alleged that in pursuance of the above criminal conspiracy, various passports in the form of additional passport booklets had been issued in the name of following persons:-
Sl. Name Father's Name Residential Address
No.
(a) Mr. Rajender Mr. Mehar Chand 87/C, Gali No. 4, Krishna
Kumar Kapoor Kapoor Nagar, Sarojni Nagar,
New Delhi-29.
(b) Mr. Kamal Sharma Mr. Madan Lal 1/9619, Rohtas Nagar,
Shahadra, Delhi
(c) Ms. Rekha Late Mr. Raj Kumar F-163, New Usmanpur,
Khanna Khanna Delhi-53.
(d) Ms. Reena Mr. Janaki Dass 18/D, Pocket-A, Dilshad
Khanna Garden, Delhi
(e) Mr. Sunil Kumar Mr. Agya Ram Jolly H. No. 35, Phase-1A,
Jolly Shiv Shankar Road, Om
Vihar, Uttam Nagar, New
Delhi-59.
(iii) The present charge-sheet pertains to the additional
passport booklets issued in the name of Mr. Kamal Sharma s/o Mr. Madan Lal Sharma, R/o 1/9619, Rohtas Nagar, Shahadra, Delhi.
(iv) As per charge-sheet, one passport application form (Ex. PW9/B) in the name of above Mr. Kamal Sharma was submitted in the Regional Passport Office, New Delhi vide file No. A-029425 dated August 11, 1999 (Ex. PW10/A) and after due processing, the Passport CBI No. 76/08 Page 5 of 149 State through CBI v/s Bibianus Toppo & others bearing No. A-8247494 dated August 11, 1999 (Ex. PW12/A) was issued. The said passport was recovered from the possession of accused Mr. Anil Dhawan (A7). It was alleged that during investigation, the real identity of the person whose photograph was affixed on the passport application registration form could not be established.
(v) It was alleged that during investigation, it was revealed that the person whose photograph was affixed on the passport application registration form had never resided at the address given in the form i.e. 1/9619, Rohtas Nagar, Shahadra, Delhi.
(vi) It was further alleged that verification of the identity, antecedents, character and residence was done by Mr. Anup Singh, the then ASI, Special Branch of Delhi Police (A6). It was alleged that Mr. Anup Singh had submitted a bogus report without verifying the character, antecedents and address of the applicant. On the basis of said false report, the passport bearing No. A-8247494 dated August 11, 1999 (Ex. PW12/A) was issued in the name of above Kamal Sharma.
(vii) It was also alleged that during investigation, it was revealed that no person in the name of Kamal Sharma had ever resided at the address mentioned in the application form and it was further revealed that he was a fictitious person. However, during investigation, the address i.e 1/9619, Rohtas Nagar, Shahadra, Delhi as mentioned in the application form was traced out and it was found that one Mr. Vinod Gera (PW1) was occupying the said premises and he informed the investigating agency that he has been residing at the CBI No. 76/08 Page 6 of 149 State through CBI v/s Bibianus Toppo & others said address since 1986 and expressed his ignorance about the so called applicant Kamal Sharma and further informed the investigating officer that he had never let out his house on rent to any person including so called applicant Kamal Sharma.
(viii) It was further alleged that at the time of conducting the verification qua applicant Kamal Sharma, accused Anup Singh (A6) had cited two witnesses namely Mr. Om Parkash s/o Mr. Gulab Singh R/o i.e 1/9621, Rohtas Nagar, Shahadra, Delhi and Mr. Vinod Kumar s/o Sh. Hari Chand, R/o 1/9613, Rohtas Nagar, Shahadra, Delhi whereas during investigation Mr. Sri Krishan Sharma and Mr. Vijay Chand Sharma were found residing at the above said addresses respectively and on inquiry they informed the investigating agency that they did not know any person by the name of Kamal Sharma; nor they had let out their houses on rent to any person in the name of Kamal Sharma at any point of time. It was, thus, alleged that Mr. Anup Singh (A6) had facilitated issuance of passport to the non-existing person in the name of Kamal Sharma by submitting false police verification report with ulterior motive.
(ix) It was alleged that the person whose photograph was affixed in the name of Kamal Sharma is reported to have gone abroad on the strength of passport issued in the name of said applicant Kamal Sharma.
(x) It was further alleged that on the basis of above said original passport, three applications at three different dates and times for obtaining additional passport booklets with similar personal CBI No. 76/08 Page 7 of 149 State through CBI v/s Bibianus Toppo & others particulars but with different photographs and signatures on each occasion were submitted in the RPO, New Delhi and on the basis of said applications, three additional passport booklets were issued. The detail of said applications and additional booklets are as under:-
Date of Passport file Number Additional Passport application Booklet Number & date 12.11.2003 T-14366 (Ex.PW3/DA) E-7103153 dated 13.11.2003 04.03.2003 T-3441 (Ex. PW4/A) E-7988496 dated 05.03.2004 12.05.2004 T-8455 (Ex. PW4/B) E-8578037 dated 13.05.2004 (Ex.PW18/C)
(xi) It was alleged that the above applications were processed by Mr. Harbhajan Yadav (A2) in the office of RPO and the additional passport booklets were granted and signed by Mr. Bibianus Toppo (A1).
(xii) It was alleged that during investigation the real identity of the persons who actually travelled in the name of Kamal Sharma on the basis of said passport booklets could not be established. It was further alleged that in the HIT Section of RPO, New Delhi there was facility in the computer system to check and verify the photographs and signatures of earlier passport holders and to point out the dissimilarity, if any, and it was also the duty of the official of HIT Section to point out any dissimilarity in the application for additional passport booklet.
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(xiii) It was alleged that Ram Chander (A3) was posted in the HIT Section during the relevant time and he had cleared the above passport booklet files without pointing out the dissimilarity in the photograph of the applicants and the previous passport holder. It was alleged that accused Ram Chander had deliberately and intentionally cleared the above said passport files in favour of fictitious persons to issue the additional passport booklet.
(xiv) It was further alleged that during investigation, it was transpired that passport application form for the issuance of first and third additional passport booklet were filled up by Mr. Anil Dhawan whereas the passport application form qua second additional passport booklet was filled up by his wife named Ms. Sweta Dhawan. It was further transpired that accused Mr. Anil Dhawan had signed all the three application forms in the name of Kamal Sharma.
(xv) It was further alleged that passport No. E-7103153 dated November 13, 2003 and E-8578037 dated May 13, 2004 (Ex.PW18/C) were received by accused Anil Dhawan whereas second additional passport booklet bearing No. E-7988496 dated March 5, 2004 was received by accused Naieem Safi (A8) from the RPO, New Delhi. It was further alleged that they had received the above said additional passport booklets without any authority from the applicants named Kamal Sharma.
(xvi) It was further alleged that accused G. D. Joshi (A4) and R. S. Rawat (A5) were working in the RPO, New Delhi and their duty CBI No. 76/08 Page 9 of 149 State through CBI v/s Bibianus Toppo & others was to deliver the passports to the applicants or their authorised representative. It was alleged that passport bearing No. E-7103153 was delivered by accused G. D. Joshi (A4) to accused Anil Dhawan (A7) whereas additional passport booklet bearing No. E-8578037 (Ex.PW18/C) was delivered to accused Anil Dhawan by accused R. S. Rawat. The second additional passport booklet bearing No. E- 7988496 was delivered to accused Naieem Safi by R.S. Rawat.
(xvii) It was alleged that the physical features of accused Anil Dhawan and Naieem Safi were totally different from the persons whose photographs were affixed on the said passports. Despite that accused G. D. Joshi and R. S. Rawat had delivered the additional passport booklets to accused Anil Dhawan and Naieem Safi and both the accused collected the passports by putting their signatures as Kamal Sharma in the register.
(xviii) It was alleged that accused No. 1 to 6 entered into a criminal conspiracy and object of the conspiracy was to obtain passport and passports in the form of additional passport booklets fraudulently from Regional Passport Office, New Delhi. The passport officials by abusing their official position as public servants and in conspiracy with accused no. 7 and 8 did not ask the applicants to produce previous passport booklets for observation and cancellation and every time, the original passport bearing No. A-8247494 (Ex.PW12/A) was shown to have been cancelled despite the fact that the same could not have been cancelled again and again and could not be the basis for issuance of several additional passport booklets.
CBI No. 76/08 Page 10 of 149State through CBI v/s Bibianus Toppo & others (xix) It was alleged that sanction under Section 19 of Prevention of Corruption Act 1988 (in short PC Act) in respect of accused no. 1 to 5 and sanction under Section 15 of Passport Act, 1967 (in short P P Act) qua accused no. 1 to 9 had been obtained from competent authority. No sanction under Section 19 of P C Act was obtained qua accused Anup Singh (A6) as he had already been dismissed from the service.
(xx) After completing investigation, challan was filed against the accused persons for the offences punishable under Section 120B read with Section 419/420/467/468/471/474 IPC and under Section 13(2) read with 13(1)(d) of P C Act, 1988 and 12 (1)(b) of P P Act and substantive offences thereto on the part of accused persons.
2. Vide order dated April 8, 2010, learned Predecessor of this Court ordered to frame charges against the accused persons as under:-
Sl. No. Name of Accused Charges ordered to be framed
1. Accused no. 1 to 8 Offences under Section 120B IPC read with Section 419/420/467/468/471 IPC, u/s 13(2) read with Section 13(1) (d) of P C Act, 1988 and 12(1) (b) of the P P Act, 1967.
2. Accused no. 1 to 5 Offences under Section 13(2) read with Section 13(1)(d) of Prevention of Corruption Act, 1988 CBI No. 76/08 Page 11 of 149 State through CBI v/s Bibianus Toppo & others
3. Accused no. 6, 7, 8 Section 12(1) (b) of P P Act
4. Accused no. 7 and 8 Section 420/468/471 IPC
5. Accused no. 7 Section 419 IPC
6. Accused no. 1 Section 467 IPC
7. Accused no. 8 Section 419 IPC
8. Accused no. 6 Section 13(2) read with 3(1) (d) of Prevention of Corruption Act.
Accordingly, separate charges were framed against all the accused persons to which they pleaded not guilty and claimed trial.
3. It is pertinent to state that vide order dated April 8, 2010, accused no. 9, Smt. Sweta Dhawan was discharged from all the charges.
4. In order to bring home the guilt of accused persons, prosecution has examined as many as 26 witnesses. For the purpose of discussion and convenience, all witnesses have been classified in the following categories:-
Witnesses relating to accused Anil Dhawan (A7):
PW2 Pradeep Kumar Chawla, Director of
M/s Kanu Travels Care Private Limited.
PW5 Gurinder Singh Walia, Employer of A-7.
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State through CBI v/s Bibianus Toppo & others PW24 Dr. B.A. Vaid, Handwriting Expert, GEQD, CFSL, Shimla.
Witnesses qua police verification report:
PW1 Vinod Gera, owner of the premises No.
1/9619, Pratap Nagar, Gali No. 4, Rohtas
Nagar, Shahadra, Delhi.
PW18 Sh. Sri Krishan Sharma
PW19 Sh. J.P. Mittal
PW23 Sh. Sumer Singh, the then Inspector of
Special Branch, Delhi Police
Witnesses qua Kamal Sharma:
PW9 Sh. Sandeep Lamba
PW20 Sh. Bodhraj
PW21 Sh. Vijay Chander Sharma
Officials of Regional Passport Office, New Delhi:
PW3 Sh. Tara Dutt
PW4 Sh. M.S. Thapar
PW6 Sh. Ajay Gautam
PW7 Sh. Puran Chand
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State through CBI v/s Bibianus Toppo & others PW8 Sh. I.M. Sabharwal PW10 Sh. Raj Singh PW11 Sh. Suman Kumar Sehgal PW12 Smt. Sudershan Gambhir PW13 Sh. Jeevan Singh PW14 Sh. S.P. Kothari PW15 Sh. S.N. Nagar PW16 Sh. Amit Kumar Sharma PW17 Smt. Manorama Sharma Witness relating to sanction:
PW22 Sh. R. Swaminathan, the then Joint Secretary, CPV (Counsellor, Passport and Visa and chief Passport Officer, Ministry of External Affairs, New Delhi).
CBI officials:
PW25 Sh. R.K. Aggarwal, the then DSP and Addl.
SP
PW26 Sh. A.K. Tripathi, the then Inspector,
investigating officer
5. On Culmination of prosecution evidence, accused
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State through CBI v/s Bibianus Toppo & others persons were examined under Section 313 of Code Criminal Procedure (in short Cr. P. C.). In their statements, accused No. 1, 4, 5, 6 and 7 submitted that they would lead evidence in their defence but during trial they failed to lead evidence in their defence. Other accused persons refused to lead evidence in their defence.
(A). Accused No. 1 in his statement recorded under Section 313 Cr. P.C denied all the incriminating evidence led by prosecution and took the plea that at the relevant time, PIAs did not have any facility at their computers to see the photograph, signature and old references of applicants. Similarly, along with the additional booklet files, previous passport file of applicants was also not used to be sent for the perusal of PIAs and PIAs did not have any instrument or machine to check the correctness of annexures.
(i). It was further submitted that there were administrative instructions by way of various circulars that the additional passport booklets should be issued to applicants subject to Index/HIT and PAC check within 3-5 days, preferably on the same day. As in the present case, there was no adverse remarks of HIT/PAC or from any other section of RPO, the file was cleared in routine manner.
(ii). It was further stated that he (A1) was overburdened as he was looking after miscellaneous work as well as work of additional passport booklets, thus he used to deal with more than 300 files in a day.
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(iii). It was further stated that he has been falsely implicated in this case.
(B). Accused Harbhajan Yadav (A2) also denied all incriminating evidence led by prosecution and submitted that during relevant time, no facility was provided to the counter clerk in his computer to check photograph and signature and old references of the applicant. Furthermore, along with the additional booklets files, previous passport file of the applicant was not used to be sent for the perusal of the counter clerk and he did not have any instrument or machine to detect the correctness of annexures annexed with application forms. Counter clerk did not have any instrument to check or verify the documents produced by the applicant.
(i). It was further submitted that the procedure for issuance of additional passport was liberalised by issuing various administrative instructions through various circulars wherein directions were given to PIAs that additional booklets should be issued subject to Index/HIT and PAC check within 3-5 days, preferably on the same day and in the instant case, there was no adverse remark from PAC/HIT or from any other section.
(ii). It was submitted that at the relevant time, he used to work at counter in pre-lunch sessions and dealing assistant in post lunch sessions, thus he was overburdened at the relevant time.
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(iii). It was pleaded that he has been falsely implicated in this case.
(C). Accused Ram Chander (A3) also either denied all incriminating evidence led by prosecution or expressed his ignorance about the same and further submitted that he has been falsely implicated in this case and he is innocent.
(D). Similarly, accused G.D. Joshi (A4) and R.S. Rawat (A5) also submitted that they have been falsely implicated in this case and they are innocent.
(E). Accused Anup Singh (A6) also denied all the incriminating evidence led by prosecution and submitted that he has been falsely implicated in this case.
(i). It was submitted that he had submitted correct police verification report on the basis of facts produced before him by the applicant Kamal Sharma. It was stated that he had conducted verification on 23.08.1999 when applicant met him at the given address i.e. H. No. 1/9619, Rohtas Nagar, Shahadra and necessary formalities were completed at the spot, thereafter, he visited the concerned police station to verify the antecedents of applicant but no criminal record was found.
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(ii). It was further submitted that he had performed his duty honestly and diligently during his tenure and due to that reason, no complaint was ever filed against him. It was stated that in a month, he used to do 10-15 verifications, some of which used to be reverified by the department in routine manner.
(iii). It was further stated that as per prosecution version, the passport was dispatched to Kamal Sharma and thereafter Kamal Sharma approached RPO in the year 2000 for availing miscellaneous service and for adding his wife name in the original passport, thus it can not be said that Kamal Sharma was a fictitious person.
(iv). It was stated that witnesses qua him have not deposed true facts and no reliance can be placed on their deposition, moreover, there are inconsistencies between the statement of witnesses examined by CBI.
(F). Accused Anil Dhawan (A7) also denied all the incriminating evidence led by prosecution.
(i). It was further submitted that he has been falsely implicated in this case and all the witnesses are interested, fabricated and planted. It was submitted that PW24 Dr. B.A. Vaid is not a competent person to examine the handwriting as he did not have any diploma or degree in the field of handwriting examination.
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(ii). It was stated that PW5 G.S. Walia should have been implicated as an accused but with the connivance of investigating agency, he has been cited as a witness while he (A7) has been falsely implicated in this case.
(G). Accused Naieem Safi (A8) also either denied incriminating evidence led by prosecution or expressed his ignorance about the same and submitted that he has been falsely implicated in this case and all the witnesses are either interested or planted.
6. It is pertinent to state that accused persons did not prefer to lead evidence in their defence.
7. During the pendency of trial, accused R.S. Rawat (A5) had expired, consequently, proceedings qua him were abated on December 19, 2014.
8. I have heard the rival marathon submissions advanced by counsel for the parties, perused their written submissions as well as evidence available on record. Their submissions shall be dealt with accused wise.
CBI No. 76/08 Page 19 of 149State through CBI v/s Bibianus Toppo & others Contentions relating to accused Anup Singh (A6):
9. Ms. Shashi Vishwakarma learned Public Prosecutor for the CBI raised following contentions:-
(i). That accused Anup Singh had conducted the police verification qua original passport Ex. PW12/A, which was issued in the name of one Kamal Sharma s/o Madan Lal Sharma, R/o 1/9619, Rohtas Nagar, Shahadra, Delhi, which was assigned to him by PW23 Sumer Singh.
(ii) That at the time of verifying the application of Kamal Sharma, Anup Singh had prepared a witnesses slip (Ex.PW18/B), which was signed by one Om Parkash R/o 1/9621 Rohtas Nagar, Shahadra, Delhi and Vinod Kumar, R/o 1/9613, Rohtas Nagar, Shahadra, Delhi in support of the fact that applicant Kamal Sharma was residing at the given address. Anup Singh had also collected the photostate copy of his ration card Ex. PW19/A.
(iii) That PW18 Sri Kishan Sharma is the resident of 1/1921 and he categorically deposed that no such person by the name of Om Parkash had ever resided at the said address and further deposed that applicant Kamal Sharma never resided at 1/9619.
(iv). That PW21 Vijay Chander Sharma also deposed that no person by the name of Vinod Kumar had ever resided at 1/9613 and he never let out his premises to any such person.CBI No. 76/08 Page 20 of 149
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(v). That PW18 also deposed that the persons whose photo found affixed on the original passport as well as three additional passport booklets were never resided at house No. 1/9619 Rohtas Nagar, Shahadra, Delhi.
(vi). That PW1 Vinod Gera categorically deposed that he is running a go-down at premise No. 1/9619, which further proves that no person by the name of Kamal Sharma had ever resided at the said address.
(vii). That PW19 J. P. Mittal deposed that the ration card, copy of which is Ex. PW19/A had never been issued and it is a bogus document.
(viii). That PW20 Bodh Raj also corroborated the testimony of above witnesses by deposing that he had never seen the applicant Kamal Sharma at the said address.
(ix). That as per Ex. PW23/B, Anup Singh was bound to verify the particulars mentioned in the passport application form; to verify whether the person whose photograph affixed on the passport application form, was residing at the given address; and whether he had any criminal antecedent or not.
(x). That since the police verification was conducted on the very same day when applicant had applied for passport, this indicates that Anup Singh was in hand gloves with the applicant or with the CBI No. 76/08 Page 21 of 149 State through CBI v/s Bibianus Toppo & others person who applied for the passport.
(xi). That as per the circular marked as Mark PW26/F verification of applicant and his antecedents are of great importance as it involves security, integrity of the nation.
(xii). That as per circular dated 6.3.2002 Ex. PW8/DF, additional passport booklet is to be issued within 3-4 days where no police verification report is required but in the instant case, original passport, where police report is mandatory, was issued on the very same day.
(xiii). That during the trial, accused Anup Singh had not produced any evidence in his defence to rebut the prosecution case.
(xiv). That PW22 proved necessary sanction under Section 15 of Passport Act 1967.
(xv). That by furnishing a false verification report, accused A6 is liable for the offences punishable under Section 13 (2) r/w 13(1)
(d) of the Prevention of Corruption Act and he is also liable for the offence punishable under Section 12(1) (b) of the Passport Act.
(xvi). That A6 is also liable for the offences punishable under Section 120B IPC along with other accused persons, thus liable for other penal offences.
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10. Mr. R. Ramachandran, Advocate, counsel appearing for the accused Anup Singh (A6) countered the submissions raised by counsel for CBI by arguing sagaciously that CBI has set up a case against accused Anup Singh that he had not only done the verification report on the same day but he had also furnished a false verification report qua applicant Kamal Sharma despite the fact that Kamal Sharma was not residing at the address mentioned in the registration form of passport. It was argued that as per CBI version, accused Anup Singh had conspired with the accused persons as the original passport was issued on the basis of false verification report. It was urged, however, during trial CBI has failed to bring home the guilt of accused Anup Singh beyond reasonable doubt and this fact is established even from the evidence led by prosecution.
(i). It was energetically argued that there is no iota of evidence even to show that accused Anup Singh had acted in haste in any manner. It was sagaciously submitted that applicant Kamal Sharma had moved an application before the RPO, New Delhi for fresh passport, which was registered on August 11,1999 which is proved from the document Ex.PW10/A and from the document Ex.PW6/A, it is established that the passport was dispatched from the RPO office on September 23, 1999 thus, RPO had taken almost 40 days to issue the passport.
(ii). It was further urged as per the documents placed by prosecution, the application was received in the office of Anup Singh on August 13, 1999 which was assigned to him on the very same day and from the verification done by Anup Singh, it becomes clear that he CBI No. 76/08 Page 23 of 149 State through CBI v/s Bibianus Toppo & others had conducted the verification on August 23, 1999 and submitted his report to his superior officer i.e. PW23 on August 24, 1999 who sent the report to DCP on August 25, 1999 thereafter, on September 06, 1999 the report was sent to the RPO vide letter Ex.PW23/B. It was thus sagaciously argued that there was no haste on the part of Anup Singh in submitting the report.
(iii). It was further argued that prosecution had not impleaded any official of RPO as accused in this case for the issuance of first passport. The only accused qua first passport is Anup Singh. During trial, prosecution has failed to place any document on record on what basis he has been charge-sheeted for the offence of criminal conspiracy and with whom he had hatched the criminal conspiracy. If accused Anup Singh had any criminal conspiracy, the officials who had issued first passport on the basis of report of Anup Singh should have also been charge-sheeted.
(iv). It was further argued that as per prosecution version, Kamal Sharma is a fictitious person and no such person is in existence by the said name but this version is contrary to the facts recited in the charge-sheet itself. It was argued that in the charge- sheet, IO had recited categorically that on the basis of said passport, Kamal Sharma had gone abroad and due to that reason, he could not be apprehended and his identity could not be established. If Kamal Sharma had travelled abroad on the basis of said passport it means that there was a person in the name of Kamal Sharma. It was further submitted that beside this, PW26 in his cross-examination conducted on March 22, 2013 admitted that he had not conducted any CBI No. 76/08 Page 24 of 149 State through CBI v/s Bibianus Toppo & others investigation on the aspect that Kamal Sharma had approached the passport office in 2000 to avail any miscellaneous service such as to add his spouse name Ms. Naina Devi in the passport and the then PIA Asha Idnani, Superintendent had allowed his application. It was argued that this shows that there was a person in the name of Kamal Sharma, thus, it cannot be said that Kamal Sharma is a fictitious person.
(v). It was further argued that as per PW23, the duty of verifying officer i.e. Anup Singh was to visit the address mentioned in the application to verify the said address; to tally the photograph of applicant with the person; and to obtain the signature of two witnesses in his presence, who knew the applicant. It was sagaciously argued that there was no requirement that Anup Singh had to verify the genuineness of the document such as ration card or to take the copy of ID documents of witnesses. It was argued that during verification done by Anup Singh, he had collected the photocopy of ration card and found that his name was mentioned therein and the said Kamal Sharma was identified by two persons namely, Om Prakash and Vinod Kumar. It was argued that since Anup Singh was not required to verify the genuineness of ration card, he had not conducted any verification qua the said ration card from the office of Food and Civil Supply. It was further contended that the copy of the ID documents of the witnesses were not taken as the same was not required. It was further contended that mere fact that after six years the said witnesses and Kamal Sharma were not found at the said address does not prove that the accused Anup Singh had furnished a false report in pursuance of any conspiracy. It was further contended that in the Special Branch of CBI No. 76/08 Page 25 of 149 State through CBI v/s Bibianus Toppo & others Delhi Police, there is a procedure of re-verification to rule out the possibility of collusion between any individual official with applicants and this fact is proved by PW23, who also testified that he used to send some cases for verification at random but all reports were found correct. It was contended that in such a scenario, it is seldom to hold that Anup Singh would submit any such report deliberately.
(vi). It was argued that during investigation, IO failed to collect any evidence whatsoever to connect the accused Anup Singh with any other accused person. Even during investigation, IO did not deem it appropriate to analyse the call details of accused persons to ascertain whether they were in touch with each other at the relevant time or not.
(vii). It was further argued that there may be possibility that Kamal Sharma had misrepresented himself before Anup Singh in order to obtain a passport from RPO from the said address, by producing fake ration card but this is not sufficient to bring home the guilt of accused Anup Singh in the absence of any other cogent evidence on record.
(viii). It was further argued that no reliance can be placed on the testimony of PW1 to the extent that no person was residing at premises No. 1/9619, Pratap Pura, Rohtas Nagar, Gali No. 4, Shahadra, Delhi as PW18 in his examination in chief categorically deposed that PW1 was residing at the said premises along with his family. This shows that PW1 had concealed material facts from the Court and it further proves that the said premises was being used for CBI No. 76/08 Page 26 of 149 State through CBI v/s Bibianus Toppo & others the purpose of residence. It was argued that PW1 failed to produce any document to show that the said premises was being exclusively used for the go-down only. It was further contended that even during investigation, IO PW26 did not deem it appropriate to examine PW1 and this fact is admitted by PW26, who deposed that PW1 was examined by Insp. Suman Saroha, but prosecution failed to bring him in the witness box. Meaning thereby, there is no evidence on record to show that PW1 was examined by the IO to ascertain the fact whether the said premises was used by Kamal Sharma at any point of time or not.
(ix). It was further contended that it is not the prosecution case that the delivery of passport was given to Kamal Sharma by hand. On the contrary, prosecution case is that the passport was dispatched at the said address through post and this fact is proved by PW17. Admittedly, the said passport did not return undelivered to RPO office. Rather, it was delivered at the given address. It means that the said passport was delivered to the addressee i.e. Kamal Sharma, which further corroborated the prosecution version that Kamal Sharma had approached the RPO office in 2000 for addition the name of his spouse. It was further contended that even no effort was made to examine the postman to show that the passport was not delivered to the addressee but delivered to some other person.
(x). It was further contended that investigating agency had made a futile attempt to connect the accused Anup Singh with accused Anil Dhawan by showing that the said passport was recovered from the possession of accused Anil Dhawan but no CBI No. 76/08 Page 27 of 149 State through CBI v/s Bibianus Toppo & others reliance can be placed on the said piece of evidence; firstly the recovery is doubtful; secondly, it was contrary to the prosecution case because in the charge-sheet, IO had recited categorically that Kamal Sharma had travelled abroad on the basis of said passport. If it was so how the passport could have been recovered from Anil Dhawan. It was contended that at the most, said piece of evidence may be relevant against the accused Anil Dhawan but has no bearing qua accused Anup Singh.
(xi) It was further contended that it is not the case of CBI that form of original passport was filled up by Anil Dhawan like qua additional passport booklets. It was argued that there is no iota of evidence to connect Anup Singh either with accused Anil Dhawan or with any accused persons. It was further argued that even during investigation, no effort was made by the IO to seek an explanation from Anil Dhawan how he had possessed the said passport.
(xii). It was further contended that it is not the prosecution case that Kamal Sharma did not appear before the RPO at the time of seeking the fresh passport or that some other persons appeared on his behalf or that the said person represented himself as Kamal Sharma before the RPO. Rather, from the evidence led by prosecution it becomes clear that the passport was applied by Kamal Sharma, same was delivered to him by dispatch and thereafter in 2000, he again approached the RPO for addition the name of his wife. All these proves that Kamal Sharma was a real person, thus, it cannot be said that Anup Singh had committed any offence.
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(xiii). It was further contended that in order to bring home the guilt of accused under Section 12 of Passport Act, prosecution has to establish that accused Anup Singh either knowingly furnished the false information or suppressed any material information in order to obtain a passport but during trial prosecution failed to bring any such evidence on record.
Findings qua accused Anup Singh (A6):-
11. CBI has set up a case against A6 (Anup Singh) that he had submitted a bogus report and on the basis of his bogus report, original passport bearing No. A8247494 dated August 11, 1999 was issued to the applicant Kamal Sharma. Since, Kamal Sharma had moved an application for issuance of passport only on August 11, 1999, it was argued that A6 was in hand gloves with the accused persons otherwise it would not be possible for A6 to conduct the police verification on the very same day.
(i) In this regard, the scanned file (Ex. PW10/A) of the original passport bearing No. A8247494 and the documents relating to the police verification report i.e Ex. PW18/A, Ex. PW18/B, Ex. PW19/A, Ex. PW23/B, Ex. PW23/C and Ex. PW23/D are relevant.
(ii) Perusal of the file Ex. PW10/A, makes it clear that the applicant Kamal Sharma had moved an application for issuance of passport on August 11, 1999. It further becomes clear that passport was issued on September 17, 1999. This fact is further proved from CBI No. 76/08 Page 29 of 149 State through CBI v/s Bibianus Toppo & others the original passport Ex. PW12/A, as the date of issuance is mentioned as September 17, 1999 and not August 11, 1999 as alleged by CBI, thus it becomes crystal clear that the RPO, New Delhi had taken more than one month times in issuing the passport to the applicant Kamal Sharma.
(iii) Vide Ex. PW23/D, application of Kamal Sharma was sent to the office of Commissioner of Police for police verification on August 11, 1999 and from the endorsement made on the said document, it becomes clear that the same was assigned to ASI Anup Singh (A6) on August 13, 1999.
(iv) From the reports of Anup Singh (Ex. PW23/C & Ex. PW18/B), it becomes further clear that A6 had conducted the police verification on August 23, 1999. Thereafter, he submitted the report to his superior on August 24, 1999. From the document Ex. PW23/B it becomes clear that the police verification report was sent to RPO, New Delhi on September 6, 1999.
(v) From the above documents, it becomes crystal clear that there is no substance in the allegation of CBI that A6 had conducted the police verification on the same day, when Kamal Sharma had moved an application for issuance of first passport and on the basis of said report, original passport was issued on the same day i.e. August 11, 1999. On the converse, from the said documents it becomes pellucid that A6 had taken about 10 days time to conduct the verification and the passport was issued on September 17, 1999, thus RPO had taken more than one month's time in preparation of the CBI No. 76/08 Page 30 of 149 State through CBI v/s Bibianus Toppo & others passport Ex. PW12/A.
(vi) Ex. PW6/A is a computerized process sheet and from the said document it becomes limpid that the said passport was dispatched to the applicant by Ms. Manorama Sharma on September 23, 1999. It means that the RPO had taken more than 40 days in sending the passport to the applicant. This further falsifies the claim of CBI that passport was issued on August 11, 1999.
12. It was argued on behalf of CBI that Anup Singh had conducted the police verification report on the basis of forged ration card. Question arises whether A6 was also supposed to verify the ration card at the time of doing verification of the applicant?
(i) It is undisputed fact that at the time of verification, applicant had produced the copy of ration card before A6 and same is Ex. PW19/A wherein his name is also mentioned. It is also undisputed fact that as per the testimony of PW19, said ration card was never issued by the office of Food and Civil Supply. It is also undisputed fact that A6 had not verified the ration card from the office of Food and Civil Supply. But the moot question is whether A6 was supposed to verify the authenticity of ration card or not?
(ii) In this regard the testimony of PW23, the then Insp. Sumer Singh is relevant. In his examination-in-chief he described the procedure of verification of applications of passports. He deposed that the verifying officer is required to visit the place and address mentioned in the application form to verify the details i.e. address of CBI No. 76/08 Page 31 of 149 State through CBI v/s Bibianus Toppo & others the applicant; the verifying officer is also required to verify the genuineness of the address of applicant and verifying officer was also required to collect the copy of ration card or driving licence etc. of the applicant, which is required to be signed by the verifying officer along with his seal. It is pertinent to state that PW23 nowhere deposed that verifying officer was also required to verify the supporting documents such as ration card or driving licenses from the issuing authority. As per the deposition of PW23, verifying officer was only required to collect the copy of supporting documents for the proof of address of the applicant and in the instant case A6 had collected the copy of ration card from the applicant. Thus, it cannot be said that A6 had not done the requisite compliance.
(iii) As per the deposition of PW23, verifying officer was required to check the photograph of the applicant on the personal particular form and to match with the facial features of the applicant. In this regard, it is pertinent to state that it is admitted case of CBI that Kamal Sharma had applied for passport and at that time he had affixed his photograph on the application form and it is also undisputed fact that on the passport also, the photo of the same person is affixed. Admittedly, A6 in his report Ex.PW23/C recited that the photograph of the applicant was matched. This shows that A6 had matched the facial features of the applicant with the photographs affixed on the application form. There is nothing on record which may show that the person who was residing at the given address was not having the similar features.
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13. CBI has also set up a case against A6 that the witnesses slip Ex. PW18/B is a forged document as no witness by the name of Om Parkash and Vinod Kumar ever resided at the addresses mentioned in Ex. PW18/B and A6 had not collected any I. D document to prove their identity.
(i) Indisputably, A6 had not obtained the copy of I.D proof documents from either of the witnesses but question arises whether there was any such requirement or not? In this regard the testimony of PW23 is relevant. In his examination-in-chief he deposed that verifying officer is required to check the photograph of the applicant pasted on the personal particular form and to match the same with the facial features of the applicant, who is required to be present at the given address along with two witnesses. Verification officer is also required to take signature of two witnesses in his presence who knew the applicant previously. Admittedly, A6 had taken the signature of two witnesses namely Om Parkash and Vinod Kumar who declared before A6 that they knew the applicant Kamal Sharma for the last five years. From the deposition of PW23, it becomes clear that he nowhere deposed that verifying officer was also required to verify the address of said witnesses.
(ii) No doubt, common sense says that the verifying officer should have at least verified whether the said witnesses were residing at the addresses mentioned in the witness slip Ex. PW18/B. PW18 Sri Krishan Sharma in his examination-in-chief deposed that he has been residing at 1/9621 Behl Gali, Gali No. 4, Rohtas Nagar, Shahadra, Delhi and further testified that he never let out the said premises to CBI No. 76/08 Page 33 of 149 State through CBI v/s Bibianus Toppo & others any person in the name of Om Parkash and no such person ever resided at the given address whereas as per Ex. PW18/B Om Parkash was residing at the said address. During trial, A6 failed to produce any witness to the effect that Om Parkash had ever resided at the given address. In the absence of any contrary evidence, there is no reason to disbelieve the testimony of PW18 on this count.
(iii) Similarly, PW21 Mr. Vijay Chander Sharma, in his examination-in-chief deposed that he has been residing at 1/9613, Behl Gali, Gali No. 4, Pratap Pura, Rohtas Nagar, Shahadra, Delhi-32 since 1969 and he did not know any person by the name of Vinod Kumar and he had never let out his premises to any such person. During trial, A6 failed to produce any evidence contrary to the testimony of PW21.
(iv) From the deposition of PW18 and PW21, it can safely be culled out that neither witness Om Parkash nor Vinod Kumar ever resided at the addresses as mentioned in Ex. PW18/B.
(v) During trial, A6 failed to adduce any evidence on record to prove the fact that the above said witnesses had ever resided at the given addresses. In his statement recorded under Section 313 Cr. P.C he nowhere took the plea that he had visited the premises of said witnesses. Rather, he took the plea that as per the procedure, verifying officer was not required to visit the address of witnesses. No doubt, there is no specific rule or regulation to the effect that verifying officer was required to visit the premises of witnesses, but since the purpose of verification is to verify the antecedents and address of CBI No. 76/08 Page 34 of 149 State through CBI v/s Bibianus Toppo & others applicant, verifying officer was supposed to satisfy himself whether the witnesses who testified before him that they knew the applicant for the last several years, are the residents of the addresses disclosed by them or not. To verify the same, it was not necessary for the verifying officer to visit their addresses, this could be verified simply by asking the witnesses to show their some I.D proof documents but A6 failed to do so. This shows that there is default on the part of A6. But question arises whether the said default on the part of A6 is sufficient to prove the criminal intent or not? To my mind, in the absence of any other cogent evidence, said default is not sufficient to infer any criminal intent on the part of A6.
14. CBI has also set up a case against A6 that the premises bearing No. 1/9619 Pratap Pura, Gali No. 4, Rohtas Nagar, Shahadra was not a residential premises and same was being used by PW1 as go-down for the last several years.
(i) In this regard, the deposition of PW1 is relevant, who in his examination-in-chief deposed that he has been running a go-down consisting of one tin shed, two rooms and one office at 1/9619, Pratap Pura, Gali No. 4, Rohtas Nagar, Shahadra, Delhi since 1986 and he never let out his go-down to any person by the name of Kamal Sharma. He also deposed that the persons whose photographs are affixed on the passport files for additional passport booklets had also never resided at the given address. Thus, as per the testimony of PW1 the said premises was used as a go-down and not as a residential premise. When PW1 graced the witness box, he disclosed his residential address as 1/9752, Pratap Pura, Rohtas Nagar, Gali No. 6, CBI No. 76/08 Page 35 of 149 State through CBI v/s Bibianus Toppo & others Shahadra, Delhi. In other words, even PW1 was not residing at 1/9619, Pratap Pura, Gali No. 4, Rohtas Nagar, Shahadra, Delhi.
(ii) However, the deposition of PW1 is contrary to the deposition of PW18 who deposed that he has been residing in the said locality since 1974. The premises bearing No. 1/9619, Rohtas Nagar, Shahadra was in the possession of one Sardarjee till 1985, thereafter, said sardarjee had sold the said premises to Vinod Gera (PW1) in the year 1985. He further deposed that since then Vinod Gera has been residing in the said premises along with his family. Thus, as per the testimony of PW18, PW1 is residing at the given address since 1985 along with his family. In other words, there is a material contradiction between the testimony of PW1 and PW18. If PW1 was residing at the given address, question arises why he made a false statement in the Court that he has been using the said premises as a go-down. Admittedly, PW1 has not produced any document on record to show that at the relevant time he was residing at 1/9752, Pratap Pura, Rohtas Nagar, Gali No. 6, Shahadra.
(iii) In this regard, the testimony of PW26 is also relevant. PW26 in his cross-examination deposed that he had not examined PW1 during investigation; rather PW1 was examined by Insp. Suman Saroha. But admittedly, prosecution did not deem it appropriate to bring Insp. Suman Saroha in the witness box. He further deposed that he did not know whether PW1 had provided any title document pertaining to the said property and he did not verify from the office of Food and Civil Supply whether PW1 is the resident of said premises. This shows that PW26 had not conducted any investigation qua PW1.
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(iv) In these circumstances, the testimony of PW1 to the extent that the premises No. 1/9619 was being exclusively used for go-down purpose does not inspire any confidence.
15. As per the deposition of PW23, verifying officer was also supposed to verify the criminal antecedents of the applicant from the concerned police station. As per the report Ex. PW23/C, the applicant was not having any criminal antecedents. It is pertinent to state that there is no allegation against the accused that applicant had any criminal antecedent. Thus, it can not be said that there was any fault on the part of A6 qua to that extent.
16. PW 23, the then inspector Sumer Singh in his cross- examination deposed that during his tenure, he had reverified some cases, in which verification was done by A6 (Anup Singh) and on reverification, reports submitted by A6 were found genuine. He further deposed that he did not remember whether reverification was also done in respect of the verification report of applicant Kamal Sharma or not. From the testimony of PW23 one thing is clear that some cases of A6 were sent for reverification and same were found genuine.
17. Prosecution has strongly placed reliance on the circular marked as Mark PW26/F to stress the importance of the verification qua passport applications. Perusal of the said circular reveals that a detail procedure for reverification of passport inquiry has also been laid down in the said circular. As per the prescribed procedure, Area Inspector was required to reverify at least 20 passport verification CBI No. 76/08 Page 37 of 149 State through CBI v/s Bibianus Toppo & others cases in a week and he was bound to submit his report to SO to DCP, Special Branch on every Monday at 10:00 AM. Thereafter, SO to DCP, Special Branch shall send 10 reply pre-paid post cards to the passport applicants and 20 questionnaires to the referees every week. The such post cards will be received in a given post box number and the said post box shall be opened once every month by SO to DCP, Special Branch in the presence of Inspector, CVR and all the replies/complaints/suggestions will be put up to DCP, Special Branch for his perusal. The monthly report shall be placed before Additional CP, Special Branch for his perusal. Besides the above, at least 20 cases of passport verification cases shall be reverified by each ACP in-charge, Zone every week and compiled report will be submitted before DCP for his perusal.
(i). Thus, from the perusal of said circular, it becomes abundantly clear that in order to keep a check on the conduct and behaviour of inquiry officers, a detail procedure has been prescribed for reverification of such reports. PW23 in his cross-examination clarified that he had done reverification in some matters, where reports were submitted by A6 and the reports submitted by A6 were found correct. In such a scenario, it is seldom to draw an inference that A6 would be sure that his verification report qua applicant Kamal Sharma would not be sent for reverification.
18. From the aforesaid discussion, it becomes lucid that the application of Kamal Sharma was assigned to A6 on August 13, 1999; he conducted verification on August 23, 1999; he submitted his report on August 24, 1999; ACP sent the report to DCP on August 25, 1999;
CBI No. 76/08 Page 38 of 149State through CBI v/s Bibianus Toppo & others the report was sent to RPO office on September 06, 1999 vide letter Ex.PW23/B. Since, the application was assigned to A6 by the office in routine, neither the applicant was aware that the said application would be assigned to A6 nor A6 was aware that the said application would be assigned to him. A6 had not acted in haste as he had taken about 10 days time to conduct the verification. No doubt, he had not verified the genuineness of the ration card and neither he had visited the premises of witnesses nor asked them to show their ID documents but the same in the absence of any other cogent evidence are not sufficient to prove the criminal intent on the part of A6. The possibility that the applicant Kamal Sharma had cheated A6 by producing bogus ration card and fake witnesses in order to obtain a favourable verification report from A6 cannot be ruled out.
19. Prosecution also set up a case that applicant Kamal Sharma was a fictitious person. However, the said claim of CBI is contrary to its own case as CBI in the charge-sheet categorically alleged that the person whose photograph was affixed on the passport of Kamal Sharma was reported to have been gone abroad on the strength of passport issued in the name of Kamal Sharma. In other words, facial features of the person who had gone abroad on the strength the said passport were similar with the person whose photograph was affixed on the passport. There may be dispute that his name was Kamal Sharma or not. Since, CBI failed to trace him out, no investigation could be conduct qua the said person.
(i). PW17 Smt. Manorama Sharma, UDC, RPO deposed that she had dispatched the passport Ex.PW12/A and she made an CBI No. 76/08 Page 39 of 149 State through CBI v/s Bibianus Toppo & others endorsement in this regard in the passport file Ex.PW10/A. In other words, passport in question was delivered to the applicant i.e. Kamal Sharma through post and not by hand. During investigation, no effort was made to examine the postman to disprove the fact that the said passport was not collected by the applicant through post. If it was so, it proves two facts i.e. firstly the said premises was not exclusively used for go-down as deposed by PW1; secondly that the applicant or his authorised representative was present at the said premises, who received the said passport from the postman.
(ii). Perusal of the original passport Ex.PW12/A reveals that on July 28, 2000 applicant had approached the RPO vide miscellaneous application number X-7741 for the addition of his spouse name, Naina Devi and at that time, applicant was dealt with by Ms Asha Idnani, Superintendent, RPO, Delhi. PW26 in his cross- examination conducted on March 22, 2013 deposed that he did not recollect whether he had seen the said endorsement on the passport during investigation. He further deposed that he had not examined the case on the above aspect but swiftly attempted to furnish an explanation that since the identity of applicant was fake, no purpose would be achieved to examine the said aspect. But the said explanation is without any substance. If the applicant was fake, it means that Asha Idnani had acted in collusion with the fake person, thus, she should also be liable for her wrongful act. If applicant was in existence, it would strengthen the defence version that the applicant Kamal Sharma was not a fictitious person as alleged by the CBI. This shows that PW26 had not investigated the matter with due diligence.
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20. Indisputably, CBI has not charge-sheeted any RPO official except A6 qua the issuance of first original passport Ex.PW12/A. This itself shows that A6 was not involved in any kind of conspiracy either with the RPO officials or with anybody else qua the issuance of original passport (Ex.PW12/A). During trial, no evidence has been adduced on the part of CBI to show that A6 had any connection with any official of RPO. Had there been any conspiracy as alleged by CBI, it means that some RPO officials were in conspiracy with the applicant otherwise it would not have been possible for the applicant to get the passport. But CBI failed to connect the accused Anup Singh either with the applicant or with any other official of RPO qua original passport Ex.PW12/A. Admittedly, A6 has no role qua other additional passports issued in the name of Kamal Sharma from time to time. In these circumstances, it is seldom to believe the CBI version that A6 had submitted the verification report in pursuance of any conspiracy.
21. Mulling over the foregoing discussion, I am of the considered opinion that prosecution has failed to bring home the guilt of accused Anup Singh (A6) beyond the shadow of all reasonable doubts, thus, I hereby acquit the accused Anup Singh (A6) from all the charges.
Contentions relating to accused Anil Dhawan (A7):
22. Ms. Shashi Vishwakarma, learned counsel appearing for CBI raised following contentions:-
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(i) That the original passport (Ex. PW12/A) and third additional passport booklet (Ex. PW18/C) were recovered from accused Anil Dhawan vide memo (Ex. PW26/C). Ex. PW26/C has been inadvertently marked as Ex. PW22/C.
(ii) That Anil Dhawan was an employee of PW5 Gurinder Singh Walia and this fact is also corroborated by PW2, and PW5 had identified the handwriting of accused Anil Dhawan on various documents including application forms that were submitted for seeking additional passport booklets from time to time.
(iii) That PW5 deposed that the application form for first additional passport booklet, file of which is Ex. PW3/DA, bears the writing of A7 at Q114 to Q128. Similarly, on the application form of second additional passport booklet, file of which is Ex. PW4/A, bears the writing of A7 at Q129 to Q 144. Similarly, the application form for third additional booklet, file of which is Ex. PW4/B also having the handwriting of A7 at Q145 to Q155.
(iv) That besides the above, PW5 also proved the admitted writing i.e Mark A18 to A21 on the application form of Kanu Priya Gomber, mark A1 to A17 on the 'Day Book' of PW5 and the writings mark as A22 to A23 on the form of Padmani Malpani by deposing that the same are in the handwriting of A7.
(v) That in addition to the above, A7 had also collected the first additional passport booklet and PW5 deposed that Q7 in the CBI No. 76/08 Page 42 of 149 State through CBI v/s Bibianus Toppo & others passport delivery register is in the handwriting of A7 and same is Ex.
PW5/L1. Similarly, the third additional passport booklet was also collected by A7 and acknowledgment in this regard is marked as Q17 in Ex. PW5/L2 and deposed that same is in the handwriting of A7.
(vi) That Q114, Q116, Q117, Q120, Q122, Q124 to Q128 on Ex. PW3/DA and Q145, Q147, Q148, Q151, Q153 to Q155 on Ex. PW4/B are in the handwriting of A7.
(vii) That the specimen handwritings of A7 are marked as S16 to S35 in Ex. PW24/D and proved by PW26 by deposing that the same were taken in the presence of two independent witnesses namely S. K. Soni and R. P. Atri.
(viii) That handwriting Expert PW24 Dr. B. A. Vaid in his report Ex. PW24/F opined that Q115, Q116, Q118, Q119, Q121, Q136, Q146, Q147, Q149, Q150, Q152, S16 to S35 and A1 to A23 were written by the one and same person.
(ix) That A7 besides the conspiracy, is also liable for the substantive offences punishable under Section 419/420/468/471 IPC and under Section 12 (1) (b) of P P Act.
23. Sh. Ashwani Verma, Advocate, learned counsel appearing for A7 countered the contentions raised by counsel for CBI and submitted as under:-
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(i) That prosecution has placed reliance on the seizure memo Ex. PW26/C wherein the original passport Ex. PW12/A and third additional passport booklet Ex. PW18/C had been shown as recovered from accused Anil Dhawan, but no reliance can be placed on the said document as during trial, prosecution failed to establish how the said documents were recovered from the accused. It was sagaciously argued that A7 was not arrested in this case; rather he was arrested in some other case in the year 2004 and he was released on bail in December 2004. It was urged that CBI failed to adduce any evidence to establish whether the said documents were produced by A7 pursuant to any notice issued by the IO or the same were recovered in pursuance of any statement made by the accused.
It was argued that both the said documents were never recovered from the accused and same had been planted to create a false evidence against the accused.
(ii) That PW26 admitted in his cross-examination that he had not arrested the accused and further conceded that A7 was arrested in some other case and further testified that nothing was recovered from A7 in his presence. It was argued that in these circumstances, no reliance can be placed on the alleged recovery.
(iii) That PW26, IO of the case had not conducted any investigation in this case except to record the statement of Pradeep Chawla on March 14, 2005 and the statement of G. S. Walia on January 27, 2006. It was argued that the investigation was assigned to PW26 only on February 02, 2005.
CBI No. 76/08 Page 44 of 149State through CBI v/s Bibianus Toppo & others
(iv) That prosecution has strongly placed reliance on the testimony of PW5 Gurinder Singh Walia but no reliance can be placed on his testimony as PW5 categorically deposed that his statement under Section 161 Cr. P. C. was recorded by Mr. R. K. Aggarwal but the same is not on the judicial file and he further testified that his statement was never recorded by PW26 A. K. Tripathi whereas prosecution case is that his statement was recorded by PW26. PW25 R. K. Aggarwal did not corroborate the testimony of PW5 that he had recorded the statement of PW5.
(v) That it is admitted case of prosecution that a raid was conducted at the premises of PW5 and several incriminating articles were recovered from his premises including numerous passports, blank documents etc but instead of impleading him as an accused, IO in collusion with PW5 exonerated him and falsely implicated A7.
(vi) That during raid at the premises of PW5, the list of passengers was also recovered but no effort was made to interrogate any of the passengers to find out the real truth. Even no effort was made to open LOC qua Kamal Sharma in whose favour first passport was issued.
(vii) That PW5 in his deposition nowhere deposed that he had got recovered any passport/additional passport booklet from the house of accused Anil Dhawan.
(viii) That prosecution has set up a case against A7 that he was an employee of PW5 but during trial, prosecution failed to CBI No. 76/08 Page 45 of 149 State through CBI v/s Bibianus Toppo & others produce any documentary evidence to prove this fact. It was argued that PW2 in his examination-in-chief deposed that two persons were working in the company but surprisingly no effort was made to find out the second person. No effort was made to collect the partnership deed.
(ix) That during investigation no effort was made to visit the premises bearing No. 8248 Mahipal Pur Extension i.e. address of M/s Kanu Travels Care (P) Ltd. to ascertain the fact whether A7 ever worked there or not. It was contended that in fact the said company belonged to the father of Ms. Kanu Priya Gomber but he was not examined during investigation. Even IO did not deem it appropriate to examine the wife of PW5 despite the fact that she was one of the directors in the said company.
(x) That no attempt was made to collect any documentary evidence to show that A7 was an employee in the said company at any point of time.
(xi) That prosecution has placed reliance on the deposition of PW5 wherein he identified several questioned writings as the writings of accused Anil Dhawan. But it was submitted that no reliance can be placed on the said piece of evidence. It was contended that initially PW5 failed to identify the questioned writings Mark Q114, Q116, Q117, Q120, Q122, Q124 to Q128 on Ex. PW3/DA and Q145, Q147, Q148, Q151, Q153 to Q155 on Ex. PW4/B. However, in his subsequent part of examination-in- chief conducted on September 8, 2010 PW5 identified the said writings by deposing that the same are in CBI No. 76/08 Page 46 of 149 State through CBI v/s Bibianus Toppo & others the handwriting of A7. It was vigorously argued that this shows that PW5 identified the said writings at the behest of prosecution, thus no reliance can be placed on the testimony of PW5.
(xii) That no reliance can be placed on the 'day book' as there is neither any seal of the company nor signature of the owner.
(xiii) That PW5 failed to identify the questioned handwriting i.e. Q7 on Ex. PW5/L1 and Q17 on Ex. PW5/L2 and he also failed to identify the writing of Mark Q151 and Q153, thus it was argued that no reliance can be placed on the said writings.
(xiv) That PW5 in his cross-examination admitted that CBI officials had not taken the specimen handwritings of A7 in his presence as he was in the adjoining room at that time and the factum of taking handwriting of A7 was told to him by CBI official and accordingly, he identified the same.
(xv) That PW5 was otherwise not a competent person to identify the handwriting of any person and in his cross-examination, he admitted that accused Anil Dhawan did not sign in the name of any other person in his presence, thus he cannot identify the signature of any other person.
(xvi) That during investigation, IO had not taken any specimen handwritings of PW2 and PW5 deliberately and intentionally to favour them. Had their handwritings been taken, it would also have been matched with some questioned writings.
CBI No. 76/08 Page 47 of 149State through CBI v/s Bibianus Toppo & others (xvii) That no reliance can be placed on Ex. PW5/H, Ex. PW5/J, Ex. PW5/K1 and Ex. PW5/K2 as the same were not recovered from the possession of A7; rather same were recovered from the possession of A5.
(xviii) That no effort was made by the IO to arrest Kamal Sharma.
24. In support of his contentions, learned defence counsel placed reliance on the following citations:-
(i) Malay Kr. Ganguly v/s. Dr. Sukumar Mukherjee & others (2009) 9 Supreme Court Cases 221;
(ii) Sujit Biswas v/s. State of Assam, 2013 (5) LRC 133 (SC);
(iii) State of Maharashtra v/s.
Dnyaneshwar Laxman Rao Wankhede,
(2009) 12 SCR 513;
(iv) State (G.N.C.T) of Delhi v/s. Saqib
Rehman @ Masood & Ors. 2012(3) JCC
2127;
(v) Sapan Haldar & Anr. V/s. State 2012
VIII AD (Delhi) 533 ;
(vi) Sandeep Dixit v/s. State, 2013 I AD
(Delhi) 407;
(vi) Fakhruddin v/s. State of M. P, AIR
1967 SC 1326;
(vii) Ram Chandra v/s. State of U. P, AIR
CBI No. 76/08 Page 48 of 149
State through CBI v/s Bibianus Toppo & others 1957, SC 381;
(viii) Ishwari Parsad Misra v/s Mohammd Isa, AIR 1963 SC 1728;
(ix) Shashi Kumar Banerjee v/s Subhodh Kumar Banerjee, AIR 1964 SC 529;
(x) Raghu v/s Rajendra Kumar, 2002 (3) KLT 945 (Kerala);
(xi) Piara Singh v/s. Jagtar Singh & others, AIR 1987 P & H 93;
(xii) Thyseen Stallunjon Gmbh v/s SAIL, 96 (2002) DLT 515;
(xiii) Ameer Mohd. v/s Barket Ali, AIR 2002 Rajasthan 406.
Finding qua A7:-
25. From the submissions raised by counsel for both the parties, first question emerges for adjudication whether any reliance can be placed on the recovery memo Ex. PW26/C wherein original passport (Ex. PW12/A) and additional passport booklet (Ex. PW18/C) have been shown as recovered from A7? In this regard, the testimony of PW26 Mr. A. K. Tripathi and the seizure memo Ex. PW26/C (inadvertently marked Ex. PW22/C) are relevant.
(i) As per the seizure memo (Ex. PW26/C), original passport (Ex. PW12/A) and additional passport booklet (Ex. PW18/C) were seized from A7 on July 28, 2005 in the presence of two public witnesses namely Mr. Om Parkash and Mr. Jagmohan Rawat. It is CBI No. 76/08 Page 49 of 149 State through CBI v/s Bibianus Toppo & others pertinent to state that both the witnesses were not examined by the CBI during trial.
(ii) Perusal of the memo Ex. PW26/C makes it clear that memo is silent how A7 was called by the investigating officer on July 28, 2005.
(iii) From the testimony of PW26, it becomes crystal clear that he had not arrested A7; rather A7 was already in the custody of CBI in some other matter. During arguments, counsel appearing for both the parties fairly conceded that A7 was arrested somewhere in October 2004 in some other case and was released on bail in December 2004. As evident from Ex. PW26/C that the above two documents were allegedly produced by A7 before PW26 on July 28, 2005. Now question arises whether A7 appeared before PW26 on July 28, 2005 of his own or he was called by PW26?
(iv) PW26 in his cross-examination conducted on January 10, 2014 admitted that he had not arrested A7 in this case and further testified that he did not remember whether A7 was summoned on July 28, 2005 by issuing a notice. He further deposed that he even did not remember exactly when he interrogated A7 in this case but deposed that he had interrogated A7 after registration of the FIR in question, which was registered in February 2005. He further deposed that he did not remember how many times he had interrogated A7 and further deposed that he even did not remember by which mode A7 was called for the purpose of interrogation. He further testified that he did not remember for what purpose, A7 was called by him on July 28, 2005.
CBI No. 76/08 Page 50 of 149State through CBI v/s Bibianus Toppo & others
(v) From the testimony of PW26 it becomes abundantly clear that he failed to depose for what purpose A7 was summoned, if summoned at all, on July 28, 2005; he also failed to depose how A7 was summoned; he also failed to depose how many times he had interrogated A7. On the contrary, it is undisputed fact that A7 was released on bail in December 2004. If A7 was released on bail in December 2004, it means that A7 had produced the above two passports (Ex. PW12/A & Ex. PW18/C) after about seven months of his release, which looks quite improbable. Admittedly, PW26 did not depose that he had searched the premises of A7 and during the said search, both the above documents were recovered. It is also undisputed fact that A7 is facing trial in numerous cases of similar nature. It is quite improbable that when he was arrested first time by the CBI, CBI would not have had the search of his premises. It is also pertinent to state that even it is not the case of CBI that the said two passports were recovered during any such search. Since, A7 had been arrested as an accused in several similar cases, it looks quite improbable on his part that either he would keep such incriminating documents for such a long period in his house or that he of his own without any instruction or direction from the investigating officer would produce the same before the investigating officer on July 28, 2005 as projected by CBI.
(vi) Further, PW26 in his charge-sheet recited that he could not interrogate the person whose photograph was affixed on Ex. PW12/A, as he had gone abroad on the strength of said passport. If it was so, question arises how the said passport could have been CBI No. 76/08 Page 51 of 149 State through CBI v/s Bibianus Toppo & others produced by A7 before PW26 on July 28, 2005. If the passport was in the possession of A7, it means that the person whose photograph is affixed on the said passport could not have gone abroad on the strength of said passport. Further, it was the minimum duty of PW26 to make an inquiry from A7 how the said passports came into his possession but no such interrogation was made. This further creates a doubt over the version of CBI.
(vii) The cumulative effect of the above discussion is that the circumstances under which above two documents have been shown as recovered from A7 are quite doubtful. In these circumstances, I am of the considered opinion that it would not be safe to place any reliance on the said piece of evidence.
26. Second question emanates from their submissions for adjudication whether Anil Dhawan (A7) was working with PW5 Mr. G. S. Walia or not? In this regard, the testimony of PW2 Pradeep Kumar Chawla and PW5 Mr. G. S. Walia are relevant.
(i) PW5 Mr. G. S. Walia in his examination-in-chief deposed that he was running a company M/s Kanu Travels Care Pvt. Ltd. since 1991, in which he was one of the directors and testified that Anil Dhawan was his employee. He further deposed that in the year 2002, he had started a partnership firm in the name and style of Jas Air and in the said firm also Anil Dhawan was working and his job was to provide assistance to clients in getting visa and issuance of passport and A7 used to deliver tickets to the clients; used to collect payments from clients; used to go to Embassy and Passport Office for getting CBI No. 76/08 Page 52 of 149 State through CBI v/s Bibianus Toppo & others visa and passports for clients.
(ii) PW2 Mr. Pradeep Kumar Chawla deposed that he was also one of the directors in M/s Kanu Travels Care Pvt. Ltd. and the said company was closed in 2002 and further deposed that in the said company they were two employees; one of them was Anil Dhawan. Thus, PW2 corroborated the testimony of PW5. Since, A7 did not deem it appropriate to cross-examine PW2 Mr. Pradeep Kumar Chawla, thus the testimony of PW2 remained unchallenged during the trial.
(iii) Though A7 had cross-examined PW5 Mr. G. S. Walia at length, yet during his cross-examination, no dispute was raised to the extent that he was not working with PW5 Mr. G. S. Walia. In other words, the testimony of PW5 to the extent that he was working initially in M/s Kanu Travels Care Pvt. Ltd. and thereafter, in Jas Air remained unrebutted.
(iv) Though in his statement recorded under Section 313 Cr. P. C, A7 denied the question no. 8 wherein it was also put to him that he was working with A5 Mr. G. S. Walia, yet in his statement recorded under Section 313 Cr. P. C, he failed to explain where he was working at the relevant period, if not working with PW5. During the trial, A7 failed to adduce any evidence contrary to the testimony of PW2 and PW5. He also failed to produce any evidence to show that he was working somewhere else and not in the company of PW5 as deposed by him. In the absence of any contrary evidence on record, I do not find any reason to disbelieve the testimony of PW2 and PW5 to the CBI No. 76/08 Page 53 of 149 State through CBI v/s Bibianus Toppo & others extent that initially accused Anil Dhawan was working in M/s Kanu Travels Care Pvt. Ltd till 2002 when it was closed, he started working in the partnership firm named M/s Jas Air, in which PW5 was one of the partners.
(v) In these circumstances, I do not find any substance in the contention of learned counsel for A7 that since PW26 failed to seize any documentary evidence regarding the employment of A7 and the fact that PW26 had not made any inquiry from the premises where the said company/firm was being run to prove the fact that A7 was working in the aforesaid company and firm, no reliance can be placed on the deposition of PW2 and PW5.
27. Third question crop up for adjudication whether the recovered 'Day Book' belonged to M/s Jas Air or not? In this regard, the testimony of PW5 Mr. G. S. Walia is relevant.
(i) The relevant pages of 'Day book' are Ex. PW5/H and Ex. PW5/J. In his examination-in-chief, PW5 deposed that A7 used to make entries in the Day Book with regard the payment received. PW5, in his examination-in-chief not only admitted the Day Book but also identified the handwriting of A7 on certain pages. No doubt, in his cross-examination, PW5 deposed that the said Day Book does not bear any official stamp or mark of M/s Jas Air to show that the Day Book pertained to the said firm. However, the said lapses are insufficient to discard the testimony of PW5, who is one of the partners in the said firm. Since, PW5 admitted that the Day book belonged to his firm and there is no contrary evidence on record, thus this Court CBI No. 76/08 Page 54 of 149 State through CBI v/s Bibianus Toppo & others has no reason to disbelieve his testimony to that extent.
28. Fourth question emerges from the submissions raised by counsel for the parties whether PW5 is a competent person to identify the handwriting of A7 or not?
(i) As already held that A7 was one of the employees of PW5, thus he had an opportunity to see A7 to write and sign. From the testimony of PW2 Mr. Pradeep Kumar Chawla and PW5 Mr. G. S. Walia, it also becomes perspicuous that A7 had worked with PW5 for a considerable long time i.e. during 1991 to 2002 as earlier he was working in M/s Kanu Travels Care Pvt. Ltd. and thereafter, in his firm M/s Jas Air. Thus, the testimony of PW5 where he identified certain writings of A7 becomes relevant under Section 47 of Indian Evidence which reads as under:-
47. Opinion as to handwriting, when relevant -
When the Court has to form an opinion as to the person by whom any document was written or signed, the opinion of any person acquainted with the handwriting of the person by whom it is supposed to be written or signed that it was or was not written or signed by that person, is a relevant fact.
Explanation - A person is said to be acquainted with the handwriting of another person when he has seen that person write, or when he has received documents purporting to be written by that person in answer to documents written by himself or under authority and addressed to that person, or when, in the ordinary course of business, documents purporting to be written by that person have been habitually submitted to him.
(emphasis supplied) CBI No. 76/08 Page 55 of 149 State through CBI v/s Bibianus Toppo & others
(ii) In view of Section 47 of Indian Evidence Act, I do not find any substance in the contention raised by learned defence counsel.
29. Learned counsel appearing for accused Anil Dhawan energetically contended that PW5 is not a reliable witness as in his examination-in-chief recorded on August 6, 2010, he deposed that he could not identify the questioned writings mark Q114, Q116, Q117, Q120, Q122, Q124, Q125, Q128 on Ex. PW3/DA and Q129 to Q135, Q137 to Q144 on Ex. PW4/A and Q145, Q147, Q148, Q151, Q153 to Q155 on Ex. PW4/B. But when he was called for further examination- in-chief on September 8, 2010, he identified all these writings. It was argued that this shows that PW5 Mr. G. S. Walia is a tutored witness.
(i) Indisputably, PW5 in his examination-in-chief recorded on August 6, 2010 failed to recognize the above questioned writings whereas in his examination-in-chief recorded on September 8, 2010, he deposed that the above questioned writings were in the handwritings of Anil Dhawan (A7).
(ii) Q114, Q116, Q117, Q120 to Q 122, Q124 to Q129, Q131, Q132, Q135, Q137 to Q141, Q143, Q144, Q145, Q147, Q148, Q151, Q153 to Q155 are purported signatures of applicants who applied for additional passports from time to time.
(iii) PW5 in his cross-examination deposed that Anil Dhawan did not use to sign in the name of any other person in his presence and further admitted that he could not identify the signatures of any person if it is signed by anybody else. But he clarified that he could CBI No. 76/08 Page 56 of 149 State through CBI v/s Bibianus Toppo & others identify the handwriting of accused Anil Dhawan. He further deposed that he could not say who had signed i.e. questioned writings mark Q151 and Q153. Thus, PW5 Mr. G. Walia in his cross-examination clarified that he could not identify the signature of any person, if it was signed by anybody else in his own handwriting. In other words PW5 was not sure whether the above questioned writings i.e. signatures were in the handwriting of accused Anil Dhawan or not. But mere fact that he is not sure about the author of above questioned writings i.e. signatures is not sufficient to discard his entire deposition.
(iv) Learned counsel appearing for Anil Dhawan further astutely contended that since PW5 Mr. G. S. Walia in his cross- examination deposed that when specimen writings of Anil Dhawan was being taken by CBI, he was in the adjoining room and he identified the specimen handwritings of Anil Dhawan at the instance of CBI official, thus, no reliance can be placed on his deposition.
(v) Indisputably, PW5 in his cross-examination conducted on April 25, 2011 admitted that when the signatures and handwritings of Anil Dhawan was being taken by CBI, he was in the adjoining room and he was told by CBI that these writings and signatures were of Anil Dhawan, consequently, he identified the same. From his testimony, it becomes lucid that the specimen writings of A7 was not taken in his presence but the same is not helpful to the accused in any manner as it has already been held that PW5 Mr. G. S. Walia was able to identify the handwriting of A7 as A7 had worked with him for a considerable long period. Moreover, the fact in issue before this Court is not whether the specimen handwritings were taken by the CBI in the CBI No. 76/08 Page 57 of 149 State through CBI v/s Bibianus Toppo & others presence of PW5 or not but the fact in issue before this Court is whether the specimen handwritings were of A7 or not and the same has been proved from the testimony of PW5 as well as from the deposition of PW26.
30. From the deposition of PW5, it becomes limpid that PW5 had identified certain questioned writings i.e. Mark Q115, Q118, Q119, Q121, Q 123, Q136, Q146, Q149, Q150 and Q152. These questioned writings are on the three registration application forms which were submitted before the RPO, New Delhi for obtaining the additional passport booklets in the name of Mr. Kamal Sharma with different photographs from time to time.
(i) Similarly, PW5 identified the writings marked as A1 to A17 on the Day book Ex. PW5/J by deposing that the same are in the handwritings of accused Anil Dhawan. He also identified the writings marked A18 to A21 on the Ex. PW5/H i.e. application form of Gomber Kanu Priya by deposing that the same are in the handwritings of accused Anil Dhawan. He also identified the writings marked A22 and A23 as of Anil Dhawan. Thus, it becomes clear that PW5 had identified certain questioned writings from the application forms submitted before RPO at the time of obtaining additional passport booklets from time to time and he also identified certain writings of Anil Dhawan from the Day Book, which he used to maintain in his firm. He also identified certain writings of Anil Dhawan from the passport application form submitted on behalf of Kanu Priya Gomber.
CBI No. 76/08 Page 58 of 149State through CBI v/s Bibianus Toppo & others
(ii) Though in his examination-in-chief, PW5 also identified Q7 and Q17 as the writings of Anil Dhawan. Q7 and Q17 are writings on the passport delivery register and prosecution has set up a case that by Q7 and Q17, accused Anil Dhawan had obtained the delivery of two additional passports from the office of RPO. However, in his cross-examination PW5 Mr. G. S. Walia clarified that he is unable to identify the signatures appearing on Q7 and Q17 as these two questioned writings are not only signatures but also includes the name of applicant and passport number. In other words, PW5 identified the name of applicants and passport numbers mentioned in Q7 and Q17, which are on Ex. PW5/L1 and Ex. PW5/L2 respectively as the writing of accused Anil Dhawan but he failed to recognize the signature of the applicants appearing in the said register.
(iii) S16 to S35 (colly Ex. PW24/D) are the specimen writings of Anil Dhawan. The same are not only identified by PW5 Mr. G. S. Walia but also identified by PW26 Mr. A. K. Tripathi.
31. Thus, the fact in issue before this Court is whether the questioned writings i.e. Q114 to Q155 were in the handwritings of Anil Dhawan or not? In this regard, the deposition of PW24 Dr. B. A. Vaid, Dy. Government Examiner is relevant.
(i) PW24 is an independent person and was working as Dy. Government Examiner of questioned documents at CFSL Shimla at the relevant time. He is not only an independent person but also well experienced person as he deposed that he had more than 34 years experience in the field of documents examination and he had CBI No. 76/08 Page 59 of 149 State through CBI v/s Bibianus Toppo & others examined thousands of documents independently and deposed before various courts throughout the country. He further deposed that the said questioned documents were also examined independently by Mr. N. C. Sood. Thus, it becomes clear that the questioned writings were not only examined by an independent and experienced examiner but simultaneously, same were also examined by another examiner.
(ii) PW24 Dr. B. A. Vaid in his examination-in-chief proved his report as Ex. PW24/F and also proved the reasons furnished in support of his opinion and same are Ex. PW24/G.
(iii) From the report Ex. PW24/F, it becomes clear that author of Q115, Q116, Q118, Q119, Q121, Q136, Q146, Q147, Q149, Q150, Q152 and S16 to S35 and A1 to A23 was the one and same person.
(iv) Thus, PW24 Dr. B. A. Vaid corroborated the testimony of PW5, when he identified the questioned writings of Anil Dhawan on various application registration forms, specimen writings and admit writings in his deposition.
(v) PW24 had elaborated the reasons in Ex. PW24/G to arrive at the above conclusion. Thus, it can safely be culled out that the conclusion arrived at by PW24 is based on detailed reasons as mentioned in Ex. PW24/G.
(vi) Though PW24 was cross-examined by A7 but nothing has been come out in his cross-examination, which may cast any dent CBI No. 76/08 Page 60 of 149 State through CBI v/s Bibianus Toppo & others either in his deposition or in his report.
(vii) No doubt, an attempt has been made to cause a dent in the report of PW24 by putting a question that handwriting science is not a perfect science. But this suggestion was declined by PW24 by deposing that handwriting identification is a perfect science and a definite opinion can be given provided suitable and sufficient data are available and he clarified that in the instant case, sufficient and suitable data were provided. Another futile attempt was made to create a doubt over his report by stating that CBI has failed to produce Mr. N. C. Sood in the witness box despite the fact that he is still alive. No doubt, PW24 deposed that Mr. N. C. Sood is still alive but prosecution was not required to bring him in the witness box when PW24 proved the report and defence failed to bring anything on record, which may cast any doubt over his report. Moreover, it is settled law that Court has to see the quality and not quantity of evidence. Thus, mere fact that Mr. N.C. Sood was not examined by prosecution is not sufficient to discard the testimony of PW24, which is otherwise trustworthy and admissible. Moreover, if accused thinks that the deposition of Mr. N.C. Sood would help him to prove his innocence, he could easily call him as a defence witness, but he also failed to examine him. Thus, to my mind, non-examination of Mr. N.C. Sood is not fatal to the prosecution in any manner.
32. Learned counsel vigorously argued that no reliance can be placed on the report of PW24 as PW26 had not taken any permission from the Court at the time of taking specimen handwritings of Anil Dhawan and in support of his contention, he strongly relied CBI No. 76/08 Page 61 of 149 State through CBI v/s Bibianus Toppo & others upon Sapan Haldar & another v/s. State (supra).
33. Perusal of the judgment Sapan Haldar & another v/s. State (supra) makes it clear that the fact in issue before the Hon`ble Court was Section 4 & 5 of Identification of Prisoners Act, 1920 and Section 311A Code of Criminal Procedure. After considering the relevant case law, Hon`ble Court arrived at following conclusion:-
(i) Handwriting and signature are not measurements as defined under clause (a) of Section 2 of The Identification of Prisoners Act, 1920. Therefore, Section 4 and Section 5 of The Identification of Prisoners Act, 1920 will not apply to a handwriting sample or a sample signature.
Thus, an investigating officer, during investigation, cannot obtain a handwriting sample or a signature sample from a person accused of having committed an offence.
(ii). Prior to June 23, 2006, when Act No. 25 of 2005 was notified, inter-alia, inserting Section 311A in the Code of Criminal Procedure, 1973, even a Magistrate could not direct a person accused to give specimen signatures of handwriting samples. In cases where Magistrates have directed so, the evidence was held to be inadmissible as per the decision of the Supreme Court in Ram Babu Mishra's case (supra). According to Section 73 of the Indian Evidence Act, 1872, only the Court concerned can direct a person appearing before it to submit samples of his handwriting and or signatures for purposes of comparison.
(emphasis supplied)
34. However in the instant case, neither the Section 2(a), 4 & 5 of Prisoners Act nor Section 311A Cr. P.C are fact in issue before this Court. Indisputably, in the instant case, investigating officer had not taken the specimen handwritings of accused persons after obtaining permission either from the Court concerned or from the CBI No. 76/08 Page 62 of 149 State through CBI v/s Bibianus Toppo & others Court of Metropolitan Magistrate. Rather, specimen handwritings were taken during the investigation. It is pertinent to state that in the judgment Sapan Haldar & another v/s. State (supra), there is nothing which may suggest that investigating officer has no right or jurisdiction to take specimen handwritings of the suspect during investigation for the purpose of finding truth, which is ultimate object of any investigation.
(i) Though learned counsel appearing for A7 also placed reliance on the certain other judgements including Fakhruddin v/s. State of M.P (supra); Ram Chandra v/s. State of UP (supra); Ishwari Pal Mista v/s. Mohd. Isa (supra); Shashi Kumar Banerjee v/s. Subhodh Kumar Banerjee (supra), yet I do not deem it appropriate to discuss all the judgements separately because all the said judgements have been considered by the Apex Court in Murari Lal v/s. State of MP, AIR 1980 SC 531. In the said judgment Apex Court had discussed the entire case law relating to Handwriting Expert Evidence, thus relevant portions of the judgment are reproduced as under:-
Para No.2.......... The Station House Officer, P. W. 28, came to the scene, found things in the room strewn about in a peel-smell condition. He seized various articles. One of the articles so seized was a prescription pad Ex. P-9. On pages A to F of Ex. P-9, there were writings of the deceased but on page 6, there was a writing in Hindi in pencil which was as follows:
Translated into English it means: "Though we have passed B. A., we have not secured any employment because there is none to care. This is the consequence. sd/- Balle Singh". ...... Specimen writings Exs. P-41 to P- 54 of Murari Lal were obtained. They were sent to a handwriting and finger-print expert P. W. 15 along with the prescription pad Ex. P-9, for his opinion. The expert gave CBI No. 76/08 Page 63 of 149 State through CBI v/s Bibianus Toppo & others his opinion that the writing in Hindi at page 6 of Ex. P-9 and the specimen writings of Exs. P-41 to P-54 were made by the same person......
3...... He further argued that the High Court fell into a grave error in concluding that the writing at page 6 of Ex.
P-9 was that of the appellant. He submitted that the evidence of P. W. 8 who claimed to be familiar with the handwriting of the appellant was wholly unacceptable, that it was not permissible in law to act upon the uncorroborated opinion-evidence of the expert P. W. 15 and that the High Court fell into a serious error in attempting to compare the writing in Ex. P-9 with the admitted writing of the appellant.
4. We will first consider the argument, a Stale argument often heard, particularly in criminal courts, that the opinion-evidence of a handwriting expert should not be acted upon without substantial corroboration. We shall presently point out how the argument cannot be justified on principle or precedent. We begin with the observation that the expert is no accomplice. There is no justification for condemning his opinion evidence to the same class of evidence as that of an accomplice and insist upon corroboration. True, it has occasionally been said on very high authority that it would be hazardous to base a conviction solely on the opinion of a handwriting expert. But, the hazard in accepting the opinion of any expert, handwriting expert or any other kind of expert, is not because experts, in general, are unreliable witnesses - the equality of credibility or incredibility being one which an expert shares with all other witness -, but because all human judgment is fallible and an expert may go wrong because of some defect of observation, some error of premises or honest mistake of conclusion. The more developed and the more perfect a science, the less the chance of an incorrect opinion and the converse if the science is less developed and imperfect. The science of identification of finger-prints has attained near perfection and the risk of an incorrect opinion is practically non- existent. On the other hand, the science of identification of handwriting is not nearly so perfect and the risk is, therefore, higher. But that is a far cry from doubting the opinion of a handwriting expert as an invariable rule and insisting upon substantial corroboration in every case, howsoever the opinion may be backed by the soundest of reasons. It is hardly fair to an expert to view his opinion with an initial suspicion and to treat him as an inferior sort of witness. His opinion has to be tested by the CBI No. 76/08 Page 64 of 149 State through CBI v/s Bibianus Toppo & others acceptability of the reasons given by him. An expert deposes and not decides. His duty 'is to furnish the judge with the necessary scientific criteria for testing the accuracy of his conclusion, so as to enable the judge to form his own independent judgment by the application of these criteria to the facts proved in evidence'. (Vide Lord President Cooper in Decie v. Edinburgh Magistrate, 1953 SC 34 quoted by Professor Cross in his Evidence).
5. From the earliest times, courts have received the opinion of experts. As long ago as 1553 it was said in Buckley v. Rice Thomas, (1554) 1 Plowden 118:
"If matters arise in our law which concern other sciences or faculties, we commonly apply for the aid of that science or faculty which it concerns. This is a commendable thing in our law. For thereby it appears that we do not dismiss all other sciences but our own, but we approve of them and encourage them as things worthy of commendation."
6. Expert testimony is made relevant by S. 45 of the Evidence Act and where the Court has to form an opinion upon a point as to identity of handwriting, the opinion of a person 'specially skilled' 'in questions as to identity of handwriting' is expressly made a relevant fact. There is nothing in the Evidence Act, as for example like Illustration (b) to Section 114 which entitles the Court to presume that an accomplice is unworthy of credit, unless he is corroborated in material particulars, which justifies the court in assuming that a handwriting expert's opinion is unworthy of credit unless corroborated. The Evidence Act itself (S. 3) tells us that 'a fact is said to be proved when, after considering the matters before it, the Court either believes it to exist or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists'. It is necessary to occasionally remind ourselves of this interpretation clause in the Evidence Act lest we act on artificial standard of proof not warranted by the provisions of the Act. Further, under S. 114 of the Evidence Act, the Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct, and public and private business, in their relation to facts of the particular case. It is also to be noticed that S. 46 of the Evidence Act makes facts, not otherwise relevant, relevant if they support or are inconsistent with the opinion of experts, when such CBI No. 76/08 Page 65 of 149 State through CBI v/s Bibianus Toppo & others opinions are relevant. So, corroboration may not invariably be insisted upon before acting on the opinion of a handwriting expert and there need to no initial suspicion. But, on the facts of a particular case, a court may require corroboration of a varying degree. There can be no hard and fast rule, but nothing will justify the rejection of the opinion of an expert supported by unchallenged reasons on the sole ground that it is not corroborated. The approach of a court while dealing with the opinion of a handwriting expert should be to proceed cautiously, probe the reasons for the opinion, consider all other relevant evidence and decide finally to accept or reject it.
7. Apart from principle, let us examine if precedents justify invariable insistence on corroboration. We have referred to Phipson on Evidence, Cross on Evidence, Roscoe on Criminal Evidence, Archibald on Criminal Pleadings, Evidence and Practice and Halsbury's Laws, England but we were unable to find a single sentence hinting at such a rule. We may now refer to some of the decisions of this Court. In Ram Chandra v. U. P. State, AIR 1957 SC 381, Jagannadha Das, J. observed; "It may be that normally it is not safe to treat expert evidence as to handwriting as sufficient basis for conviction"
(emphasis ours). 'May' and 'normally' make our point about the absence of an inflexible rule. In Ishwari Prasad Misra v. Mohammad Isa, (1963) 3 SCR 722, Gajendragadkar, J. observed; "Evidence given by expert can never be conclusive, because after all it is opinion evidence", a statement which carries us nowhere on the question now under consideration. Nor, can the statement be disputed because it is not so provided by the Evidence Act and, on the contrary, S. 46 expressly makes opinion evidence challenge-able by facts, otherwise irrelevant. And as Lord President Cooper observed in Davis v. Edinburgh Magistrate : "The parties have invoked the decision of a judicial tribunal and not an oracular pronouncement by an expert".
8. In Shashi Kumar v. Subodh Kumar, AIR 1964 SC 529, Wanchoo, J., after noticing various features of the opinion of the expert said:
"We do not consider in the circumstances of this case that the evidence of the expert is conclusive and can falsify the evidence of the attesting witnesses and also the circumstances which go to show that this Will must have been signed in 1943 as it purports to be. Besides, it CBI No. 76/08 Page 66 of 149 State through CBI v/s Bibianus Toppo & others is necessary to observe that expert's evidence as to handwriting is opinion evidence and it can rarely, if ever take the place of substantive evidence. Before acting on such evidence it is usual to see if it is corroborated either by clear direct evidence or by circumstantial evidence. In the present case the probabilities are against the expert's opinion and the direct testimony of the two attesting witnesses which we accept is wholly inconsistent with it".
So, there was acceptable direct testimony which was destructive of the expert's opinion; there were other features also which made the expert's opinion unreliable. The observations regarding corroboration must be read in that context and it is worthy of note that even so the expression used was 'it is usual' and not 'it is necessary'.
9. In Fakhruddin v. State of Madhya Pradesh, AIR 1967 SC 1326 : 1967 Cri LJ 1197, Hidayatullah, J. said:
"Both under S. 45 and S. 47 the evidence is an opinion, in the former by a scientific comparison and in the latter on the basis of familiarity resulting form frequent observations and experience. In either case the Court must satisfy itself by such means as are open that the opinion may be acted upon. One such means open to the Court is to apply its own observation to the admitted or proved writings and to compare them with the disputed one, not to become a handwriting expert but to verify the premises of the expert in the one case and to appraise the value of the opinion in the other case. This comparison depends on an analysis of the characteristics in the admitted or proved writings and the finding of the same characteristics in large measure in the disputed writing. In this way the opinion of the deponent whether expert or other is subjected to scrutiny and although relevant to start with becomes probative. Where an expert's opinion is given, the Court must see for itself and with the assistance of the expert come to its own conclusion whether it can safely be held that the two writings are by the same person. This is not to say that the Court must play the role of an expert but to say that the Court accept the fact proved only when it has satisfied itself on its own observation that it is safe to accept the opinion whether of the expert or other witness".
These observations lend no support to any requirement as to corroboration of expert testimony. On the other hand, the facts show that the Court ultimately did act CBI No. 76/08 Page 67 of 149 State through CBI v/s Bibianus Toppo & others upon the uncorroborated testimony of the expert though the judges took the precaution of comparing the writing themselves.
10. Finally, we come to Magan Bihari Lal v. State of Punjab, AIR 1977 SC 1091 upon which Sri R. C. Kohli, learned counsel, placed great reliance. It was said by this Court:
"... but we think it would be extremely hazardous to condemn the appellant merely on the strength of opinion evidence of a handwriting expert. It is now well settled that expert opinion must always be received with great caution and perhaps none so with more caution than the opinion of a handwriting expert. There is a profusion of precedential authority which holds that it is unsafe to base a conviction solely on expert opinion without substantial corroboration. This rule has been universally acted upon and it has almost become a rule of law. It was held by this Court in Ram Chandra v. State of U. P., AIR 1957 SC 381 that it is unsafe to treat expert handwriting opinion as sufficient basis for conviction, but it may be relied upon when supported by other items of internal and external evidence. This Court again pointed out in Iswari Prasad v. Md. Isa, AIR 1963 SC 1728 that expert evidence of handwriting can never be conclusive because it is, after all, opinion evidence, and this view was reiterated in Shashi Kumar v. Subodh Kumar, AIR SC 529 where it was pointed out by this Court that expert's evidence as to handwriting being opinion evidence can rarely, if ever, take the place of substantive evidence and before acting on such evidence, it would be desirable to consider whether it is corroborated either by clear direct evidence or by circumstantial evidence. This Court had again occasion to consider the evidentiary value of expert opinion in regard to handwriting in Fakhruddin v. State of M. P., AIR 1967 SC 1326 and it uttered a note of caution pointing out that it would be risky to found a conviction solely on the evidence of a handwriting expert and before acting upon such evidence, the court must always try to see whether it is corroborated by other evidence, direct or circumstantial."
The above extracted passage, undoubtedly, contains some sweeping general observations. But we do not think that the observations were meant to be observations of general application or as laying down any legal principle. It was plainly intended to be a rule of caution and not a rule of law as is clear from the statement 'it has almost become as rule of law'. 'Almost', CBI No. 76/08 Page 68 of 149 State through CBI v/s Bibianus Toppo & others we presume, means 'not quite'. It was said by the Court there was a 'profusion of precedential authority' which insisted upon corroboration and reference was made to Ram Chandra v. State of U. P., Ishwari Prasad v.
Mohammed Isa, Shashi Kumar v. Subodh Kumar and Fakhruddin v. State of M. P. We have already discussed these cases and observed that none of them supports the proposition that corroboration must invariably be sought before opinion evidence can be accepted. There appears to be some mistake in the last sentence of the above extracted passage because we are unable to find in Fakhruddin v. State of Madhya Pradesh any statement such as the one attributed. In fact, in that case, the learned Judges acted upon the sole testimony of the expert after satisfying themselves about the correctness of the opinion by comparing the writings themselves. We do think that the observations in Magan Bihari Lal v. State of Punjab must be understood as referring to the facts of the particular case.
11. We are firmly of the opinion that there is no rule of law, nor any rule of prudence which has crystallised into a rule of law, that opinion evidence of a handwriting expert must never be acted upon, unless substantially corroborated. But, having due regard to the imperfect nature of the science of identification of handwriting, the approach, as we indicated earlier, should be one of caution. Reasons for the opinion must be carefully probed and examined. All other relevant evidence must be considered. In appropriate cases, corroboration may be sought. In cases where the reasons for the opinion are convincing and there is no reliable evidence throwing a doubt. the uncorroborated testimony of a handwriting expert may be accepted. There cannot be any inflexible rule on a matter which, in the ultimate analysis, is no more than a question of testimonial weight. We have said so much because this is an argument frequently met with in subordinate courts and sentences torn out of context from the judgments of this Court are often flaunted.
12. The argument that the Court should not venture to compare writings itself, as it would thereby assume to itself the role of an expert is entirely without force. Section 73 of the Evidence Act expressly enables the Court to compare disputed writings with admitted or proved writings to ascertain whether a writing is that of the person by whom it purports to have been written. If it is hazardous to do so, as sometimes said, we are afraid it is one of the hazards to which judge and litigant must CBI No. 76/08 Page 69 of 149 State through CBI v/s Bibianus Toppo & others expose themselves whenever it becomes necessary. There may be cases where both sides call experts and the voices of science are heard. There may be cases where neither side calls an expert, being ill able to afford him. In all such cases, it becomes the plain duty of the Court to compare the writings and come to its own conclusion. The duty cannot be avoided by recourse to the statement that the court is no expert. Where there are expert opinions, they will aid the Court. Where there is none, the Court will have to seek guidance from some authoritative textbook and the Court's own experience and knowledge. But discharge it must, its plain duty, with or without expert, with or without other evidence. We may mention that Shashi Kumar v. Subodh Kumar and Fakhruddin v. State of Madhya Pradesh were cases where the Court itself compared the writings.
13. Reverting to the facts of the case before us, Sri Kohli had not a word of criticism to offer against the reasons given by the expert P. W. 15, for his opinion. We have perused the reasons given by the expert as well as his cross-examination. Nothing has been elicited to throw the least doubt on the correctness of the opinion. Both the Sessions Court and the High Court compared the disputed writing at page 6 in Ex. P-9 with the admitted writings and found, in conjunction with the opinion of the expert, that the author was the same person. We are unable to find any ground for disagreeing with the findings.
(emphasis supplied)
(ii) The above view was approved by the Apex Court in Alamgir v/s. State (NCT) Delhi in Criminal Appeal No. 202 of 2001 decided on 12.11.2002.
(iii) Though counsel appearing for Anil Dhawan also cited certain other judgments relating to handwritings but in view of the law laid down in Murari Lal v/s. State of MP (supra), I am of the view that no fruitful purpose would be achieved to discuss the said judgements.
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(iv) From the evidence adduced by prosecution, following facts can safely be culled out:-
(a) That A7 was an employee of PW5 Mr. G. S.Walia since 1991;
(b) That the job of A7 was to deliver tickets to clients; to collect payment; to help clients in getting passports and visa; to make entries in the Day book.
(c) That PW5 had identified certain writings i.e. Q115, Q118, Q119, Q121, Q136, Q146, Q149, Q150, Q152 which appearing on the passport application registration forms submitted before the RPO from time to time and deposed that the said questioned writings are in the handwriting of accused Anil Dhawan.
(d) That PW5 also identified certain other writings of Anil Dhawan from the Day Book of M/s Jas Air and same are marked A1 to A17.
(e) That PW5 also identified certain writings of accused Anil Dhawan from the passport application form of Kanu Priya Gomber and same are Marked as A18 to A23.
(f) That PW5 also identified the portion of Q7 and Q17 appearing on the passport delivery register as the handwritings of Anil Dhawan.CBI No. 76/08 Page 71 of 149
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(g) That PW5 & PW26 also proved specimen handwritings of A7 which are marked as mark S16 to S35.
(h) That PW24 proved that Q115, Q116, Q118, Q119, Q121 (all appearing on the passport application registration forms Ex. PW5/A and Ex. PW5/B; Q136 (appearing on application form for miscellaneous services Ex. PW5/D) and Q146, Q147, Q148, Q149, Q150, Q152 (appearing on passport application registration form and application form for miscellaneous services Ex. PW5/E to Ex.PW5/G and S16 to S35 and A1 to A23 were written by one and same person.
35. Thus, from the above, it becomes abundantly clear that not only PW5 proved the fact that Anil Dhawan had filled up the passport application registration forms as well as application forms for miscellaneous services of Indian Passport, which were submitted before the office of RPO for obtaining additional passport booklets in the name of Kamal Sharma from time to time with different photographs, but PW24 also corroborated the testimony of PW5. Further, during trial, no reliable evidence, which may throw any doubt over the conclusion arrived at by PW24 have been produced by the accused. In the absence of any contrary evidence on record, this Court has no reason to disbelieve the report of PW24 which is not only corroborated by PW5 but also supported by another independent Handwriting Expert Mr. N.C. Sood.
36. Since, it has been established that the passport CBI No. 76/08 Page 72 of 149 State through CBI v/s Bibianus Toppo & others application registration forms and applications for miscellaneous services of Indian Passport, which were submitted before the RPO for obtaining additional passport booklets from time to time, were filled up by accused Anil Dhawan, thus in terms of Section 106 of Indian Evidence Act, burden is shifted upon the accused Anil Dhawan to explain under which circumstances he had filled up the said forms/applications. But during trial, he failed to discharge the said burden. In the absence of any contrary evidence on record, this Court has no hesitation to draw the conclusion that accused Anil Dhawan had filled up the said forms/applications knowingly well that the persons whose photographs are affixed on the said forms/applications were not Kamal Sharma in whose name the said forms/applications had been filled up, thus accused Anil Dhawan is liable for the offence punishable under Section 420 IPC as he dishonestly induced the office of RPO to believe that the persons whose photographs are affixed on the said forms/applications were Kamal Sharma and induced RPO to issue additional passport booklets as prayed in said forms/applications. Since, there is nothing on record which may prove that accused Anil Dhawan had used the additional passport booklets, which were issued on the above forms and applications, thus I am of the view that the CBI has failed to bring home the guilt of Anil Dhawan within the four corners of Section 471 IPC beyond the shadow of all reasonable doubts.
(i) Questioned writings marked as Q114, Q116, Q117, Q120, Q122, Q124 to Q129, Q131, Q132, Q137 to Q141, Q143, Q144, Q145, Q147, Q148, Q151, Q153, Q154, Q155 are the signatures of CBI No. 76/08 Page 73 of 149 State through CBI v/s Bibianus Toppo & others applicants on the various documents including the passport application registration forms and application forms for miscellaneous services, which were submitted before RPO to obtain additional passport booklets. But the report Ex. PW24/F is silent qua the said signatures except marks Q116 and Q147. No finding has been given that the above writings except marks Q116 and Q147 were also written by one and same person who authored the specimen writings marked as S16 to S35 and A1 to A23. From the testimony of PW5, it has also been clear that he is not sure about the author of said writings. In these circumstances, it is seldom to draw a conclusion that the said writings were written by accused Anil Dhawan. Since, prosecution failed to establish that accused Anil Dhawan is the author of said writings, prosecution has failed to bring home the guilt of accused qua the said application forms within the four corners of Section 468 IPC.
(ii) Prosecution has also set up a case that accused Anil Dhawan had collected two additional passport booklets by putting his signatures as Kamal Sharma in the passport delivery register and his writings are marked as Q7 and Q17. But the handwriting expert's report Ex. PW24/F is silent qua the said writings. From the deposition of PW5, it can safely be culled out that he is not sure about the author of Q7 and Q17. During trial, prosecution failed to produce any other cogent evidence to establish the fact that accused Anil Dhawan had collected the two additional passport booklets from the office of RPO by representing himself as Kamal Sharma. Thus, prosecution has also failed to bring home the guilt of accused Anil Dhawan for the offence punishable under Section 419 IPC. As prosecution also failed to prove CBI No. 76/08 Page 74 of 149 State through CBI v/s Bibianus Toppo & others that accused Anil Dhawan had signed in the passport delivery register as Kamal Sharma, accused also deserves acquittal from the charge of forgery punishable under Section 468 IPC.
(iii) Since accused Anil Dhawan had filled up the passport application registration form in the name of Kamal Sharma with the different photographs and he failed to furnish any reasonable explanation under which circumstances, he had filled up the said forms/ applications in the same name with different photographs, thus, his act is sufficient to draw a conclusion that he had furnished false information qua the applicants knowingly or having reason to believe that the persons whose photographs are affixed on the said forms/applications were not Kamal Sharma, thus he facilitated the said persons in obtaining the passport from the office of RPO by furnishing the false information, thus accused Anil Dhawan is also liable for the offence punishable under Section 12(1)(b) of Passport Act, 1967.
(iv) The role of accused Anil Dhawan (A7) qua the offence punishable under Prevention of Corruption Act, conspiracy and for the offence punishable under Section 467 IPC shall be dealt with at the time of dealing with the role of accused Bibianus Toppo (A1), Harbhajan Yadav (A2) and Ram Chander (A3).
Contentions relating to accused Naieem Safi (A8):
37. Ms. Shashi Vishwakarma, learned counsel for CBI contended that the role of accused Naieem Safi (A8) was that he had CBI No. 76/08 Page 75 of 149 State through CBI v/s Bibianus Toppo & others collected second additional passport booklet from A5 despite the fact that neither he was applicant nor authorised by the applicant to collect the passport. It was argued that this shows that he was also involved in the conspiracy and his job was to collect such forged passport.
38. Mr. Lalit Yadav, Advocate, learned counsel appearing for A8 refuted the said contentions by arguing sagaciously that there is no cogent admissible evidence on record to prove the fact that A8 had collected the above additional passport booklet from RPO office. It was urged that no witness had deposed that either he had delivered the said passport to the accused or he had seen the accused while collecting the passport. It was contended that only evidence against the accused is the opinion of handwriting expert which is not a substantive piece of evidence, thus, no reliance can be placed on the said sole piece of evidence.
Findings qua accused Naieem Safi (A8):
39. Prosecution has set up a case against A8 that he had taken the delivery of additional passport bearing No. E7988496, file of which is Ex. PW4/A, from the office of RPO and at the time of taking the delivery of said passport, he had put up his signature on the application form Ex. PW10/A, which is marked as Q131. Simultaneously, he also signed in the delivery register Ex. PW24/B7 and his writing has been marked as Q12.
(i). As per prosecution version, during investigation, investigating officer had obtained the specimen handwritings of A8, CBI No. 76/08 Page 76 of 149 State through CBI v/s Bibianus Toppo & others which are marked as S1 to S15. In order to prove the guilt of A8, prosecution has solely relied upon the report of handwriting expert (Ex. PW24/F).
(ii). It is pertinent to state that before placing any reliance on the report Ex. PW24/F, prosecution is bound to prove the specimen writings marked S1 to S15. Though the said writings are Ex. PW24/C, yet it is not clear how the same could be proved by PW24. Indisputably, PW24 is a handwriting expert and it is not the case of CBI that the said specimen handwritings were taken in the presence of PW24. Thus, PW24 is not a competent witness to prove the said specimen writings.
(iii) As per Ex. PW24/C, the said writings were taken by Mr. A. K. Tripathi (PW26) in the presence of one public independent witness named Gurupatra Singh. But surprisingly, CBI preferred not to bring him in the witness box. Though PW26 Mr. A. K. Tripathi graced the witness box but he preferred to remain silent qua the said specimen handwritings. In other words, CBI failed to prove specimen writings in accordance with law.
(iv) Since specimen handwritings are not proved, no reliance can be placed on the report Ex. PW24/F, which is based on the said specimen writings. Moreover, the report Ex. PW24/F is also silent qua Q12. Though as per Ex. PW24/F, Q131 and S1 to S15 were written by the one and same person, but no reliance can be placed on the said finding as CBI failed to prove specimen writings in accordance with law. There is no other admissible cogent evidence against accused CBI No. 76/08 Page 77 of 149 State through CBI v/s Bibianus Toppo & others Naieem Safi to prove his culpability.
(v) In the light of aforesaid discussion, I am of the considered opinion that the CBI has miserably failed to bring home the guilt of accused Naieem Safi (A8), thus, I hereby acquit him from all the charges.
Contentions relating to accused G.D. JOSHI (A4):
40. Ms. Shashi Vishwakarma, learned counsel for CBI submitted that role of accused G.D. Joshi (A4) and R.S. Rawat (A5) (since deceased) was that they had supplied/delivered the additional booklets to A7 and A8. But fairly conceded that there is no specific cogent evidence against either of them, however, swiftly added that PW14 in his examination-in-chief deposed that the official who used to deal with the application for additional passport booklet also used to deliver the said passport booklet to the applicant in the post lunch sessions. It was argued that since G.D. Joshi had dealt with the application for the issuance of first additional passport booklet, it can be presumed that he had delivered the said booklet to the applicant. It was further contended that the said fact is also corroborated from the computer process sheet Ex.PW3/DB which shows that he had dealt with the said file.
41. On the converse, Mr. Mritunjay Singh, Advocate, learned counsel appearing for accused G.D.Joshi (A4) refuted the said contentions and submitted that there is no iota of evidence on record CBI No. 76/08 Page 78 of 149 State through CBI v/s Bibianus Toppo & others to bring home the guilt of accused beyond the shadow of all reasonable doubts. It was contended that prosecution case is based on assumptions and presumptions. It was sagaciously argued that prosecution has set up a case against the accused that since accused G.D. Joshi had registered the application form qua passport file of additional passport bearing no. E7103153 on November 12, 2003, he must have delivered the same and this fact is corroborated from the duty roaster Ex.PW3/DB.
(i). However, it was contended that no reliance can be placed on the said version as PW8, PW10 and PW14 in their cross- examination categorically deposed that no specific official was deputed to deliver the passport. They further testified that passport could be delivered by any official of RPO and PW14 even deposed that the passport could be delivered by any official from the level of casual labour to assistant in RPO Office.
(ii). It was further perspicaciously contended that as per duty roster Ex.PW6/B, the application form qua additional passport booklet no. E7988496 was registered by Mr. Brij Mohan, thus as per prosecution version, the said passport should have been delivered by Brij Mohan to the applicant. But surprisingly PW26 had not impleaded Brij Mohan as an accused qua the said additional passport booklet. This shows that it was not necessary that passport could have been delivered only by the person who had registered the application. Had it been so, PW26 would have also impleaded Brij Mohan as an accused.
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(iii). It was further argued that there is no cogent admissible evidence on record to prove the fact that the passport in question was delivered by accused G.D. Joshi, thus, it was contended that prosecution has failed to prove the case qua accused G.D. Joshi miserably.
Finding qua A4:
42. CBI has set up a case against A4 that he had delivered the additional passport bearing No. E7103153 to an unauthorised person i.e. Anil Dhawan and in order to prove his culpability, CBI has placed reliance on the duty roster Ex. PW3/DB and the deposition of PW8, PW10 and PW14.
(i) PW8 in his cross examination deposed that there is no designated post in the office of RPO to deliver passports. He further swiftly added that any official in RPO could be deputed to deliver passports by RPO or in-charge of Administration. He further testified that the name of official who delivered the said passport to the applicant is not mentioned in Ex. PW3/DB.
(ii) PW10 Raj Singh also corroborated the testimony of PW8 by deposing that there was no designated post in RPO to deliver the passport and it could be delivered by any official and no record was being maintained to show which passport was delivered by which official. PW14 also corroborated the testimony of PW8 and PW10. Thus, it becomes clear that the testimony of PW8, PW10 and PW14 are not helpful to the prosecution in any manner to prove the CBI No. 76/08 Page 80 of 149 State through CBI v/s Bibianus Toppo & others culpability of A4.
43. Now coming to the document Ex. PW3/DB. As per the said document, A4 had registered the application for seeking additional passport booklet but there is nothing in the said document, which may show that the additional passport was also delivered by him. Counsel appearing for CBI placed reliance on the testimony of PW14 wherein he deposed that generally the person who registered the application form for issuance of additional passport is used to deliver the same in post lunch session. But to my mind, such general depositions are not helpful to the prosecution to prove the culpability of any person.
(i). Admittedly, in the instant case additional passport was not delivered on the very same day but was delivered on the next day i.e. November 13, 2003. Further, as per document Ex. PW6/B, the application qua additional passport bearing No. E7988496 was registered by Mr. Brij Mohan but he has not been impleaded as an accused in this case qua that passport. This further shows that it was not necessary that the person who registered the application form was duty bound to deliver the same to the applicant or his authorised representative.
(ii) I have seen the passport delivery register, it is shocking to know that there is nothing in the said register, which may suggest who was maintaining the said register. No official used to sign in the said register. All entries made in the register appeared to be made by the persons who collected their respective pass-ports. Even during CBI No. 76/08 Page 81 of 149 State through CBI v/s Bibianus Toppo & others investigation, no sincere efforts were made to know who was on duty on that particular day when the said additional passport booklets were delivered.
(iii) From the ongoing discussion, it becomes crystal clear that there is no iota of admissible evidence against accused Mr. G. D. Joshi, hence I am of the view that CBI has miserably failed to prove the culpability of accused Mr. G. D. Joshi, accordingly I hereby acquit him from all the charges.
Contentions relating to accused Bibianus Toppo (A1), accused Harbhajan Yadav (A2) and accused Ramchander (A3):
44. Since, the role of A1, A2 and A3 is inter-connected, their case is taken together.
45. Ms. Shashi Vishwakarma, learned counsel for CBI diligently contended that in the instant case, three additional passport booklets were issued in favour of three different persons on the same personal particulars of Mr. Kamal Sharma in whose favour original passport was issued. It was urged that as per settled procedure and rules, at time of issuing the additional passport, officials of RPO were required to take the photocopy of previous passport and to compare the particulars of applicant from the said previous passport. It was further argued that but in the instant case at the time of obtaining first additional passport, applicant had produced the copy of original passport but surprisingly at the time of obtaining the second and third CBI No. 76/08 Page 82 of 149 State through CBI v/s Bibianus Toppo & others additional passport, applicants again produced the photocopy of original passport and not the photocopy of previous additional passport booklet. It was argued that this shows that the officials of RPO were hand in gloves with each other and they were acting in furtherance of some conspiracy.
(i) It was further contended that all the three additional passport booklets were issued on the very next day of the applications. No doubt, as per the circulars issued from time to time, the additional passport was required to be issued within 3-5 days and preferably on the same day but subject to check from HIT/PAC/Index, thus officials who were dealing with the applications of additional passports were required to take all precautions before issuing the additional passports.
(ii) It was contended that from the file of second additional passport booklet (Ex.PW4/A), it becomes clear that the applicant had applied for additional booklet on March 4, 2004 but surprisingly A1 had made an endorsement on March 03, 2004 directing to deposit the fee of ` 500/- and had given the promise date for March 05, 2004. Similarly, the application for third additional passport booklet (Ex.PW4/B) was registered in the RPO on May 12, 2004 but again it was dealt with by A1 on the very same day while it should have been dealt with by A2 who was working at the counter. This shows that the applicants or their representatives had direct access to A1 and due to that reason the applicants had approached A1 on the very same day whereas the counter clerk (A2) dealt with the file on the next day i.e. May 13, 2004. It was submitted that there is no such lapse qua the CBI No. 76/08 Page 83 of 149 State through CBI v/s Bibianus Toppo & others first additional passport booklet.
(iii) It was further argued that the counter clerk (A2) qua second and third additional passport booklets recommended for issuance of additional passport booklet despite the fact that the photograph affixed on the application was different with the photograph affixed on the previous passport. It was argued that at the time of moving the application for fresh additional passport, applicants used to affix their own photograph on the original passport and used to produce copy of such passport before the RPO officials. It was argued that this shows that at the time of dealing with the applications for additional passport booklets, officials of RPO did not deem it appropriate even to check the original passport/additional passport booklet. It was further contended that the officials of RPO were also supposed to make an endorsement on the application form to the effect that they had canceled and returned the old passport and were also supposed to mention the number of old passport on the application form. But surprisingly, though seal was put on the application form by the counter clerk but the passport number is not mentioned in the available space deliberately; even the counter clerk had not put his signature below the said seal. It was argued that this shows that either counter clerk had not checked the original passport and he put the seal without canceling the same on the original/additional passport or that he had deliberately ignored the said mandatory requirement which shows that the officials were acting under some conspiracy as PIA also did not raise any objection why the counter clerk had not mentioned the passport number on the endorsement.
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(iv) It was argued that as per file Ex.PW3/DA, A1 had dealt with the file on November 12, 2003 while as per computer process sheet Ex.PW3/DB, A1 had dealt with the said file only on November 13, 2003. This again shows that A1 was acting with some criminal intent and under some conspiracy.
(v) It was further contended that A1 was PIA at the relevant time whereas A2 was counter clerk. It was further contended that during their statement recorded under Section 313 Cr. PC neither A1 nor A2 disputed the fact that they had not dealt with the files for additional passport booklets; rather their plea is that they had acted bona-fide and due to heavy work, probably some negligence had taken place on their part but they had no criminal or dishonest intent. But it was urged, their said plea does not inspire any confidence.
(vi) It was further contended that besides their admission made in their statements recorded under Section 313 Cr. P.C, from the documents Ex.PW3/DB, Ex.PW6/B and Ex.PW6/C it becomes clear that they had dealt with the said files.
(vii) It was further contended that A1 A2 and A3 took defence in their statements recorded under Section 313 Cr. P.C that there was no facility in their computer to check the photograph of previous passport holder; the only facility available in their computer was to check signature and particulars but from the deposition of PW6, it has been established that the facility of checking of photograph was available in the HIT section since 2002. As the CBI No. 76/08 Page 85 of 149 State through CBI v/s Bibianus Toppo & others additional booklets were issued during the period November 2003 to May 2004, thus the plea taken by the accused is without any basis.
46. Shri Anil Gupta, Advocate, learned counsel appearing for accused Harbhajan Yadav (A2) energetically contended that no doubt A2 was working as counter clerk at the relevant time, yet he had performed his duty diligently and there is no criminal misconduct on his part. It was contended that no instrument was provided to him to check the genuineness of passports produced before him by the applicants from time to time. It was further argued that at the time of issuance of additional passport booklets, applicants had produced original previous passport booklets and also filed the photo-copy of same on record. Accordingly, A2 in due course of his duties had made cancellation, as per the requirement, on the original passports/additional booklets and also made endorsement on the application form in this regard. It was further contended that mere fact that later on it was revealed that the said applicants had played some fraud with the RPO, does not mean that A2 had any dishonest intention at the time of forwarding the applications for issuance of additional passport booklets from time to time.
(i). It was further sagaciously contended that to bring home the guilt of accused for the offence punishable under Section 13 (1) (d)
(iii) of PC Act, prosecution is duty bound to show by cogent evidence that passport was a valuable thing, but prosecution failed to prove the same. It was argued that Section 30 of IPC only defines 'valuable security' and not 'valuable thing'. It was further contended that "valuable things" is also not defined under Passport Act. It was further CBI No. 76/08 Page 86 of 149 State through CBI v/s Bibianus Toppo & others urged that from the bare reading of Section 13 (1) (d) (iii) of PC Act, it becomes clear that 'valuable thing' means something which has some monetary value. Since passport has no monetary value, Section 13 (1)
(d) (iii) is not applicable in the facts and circumstance of the case. It was argued that even Passport Act also does not say that passport is a 'valuable' thing as recited in Section 13 (1) (d) (iii) of PC Act.
(ii). It was further argued that the conduct of A2 may be negligent while performing his duty, but his conduct is not a criminal misconduct as defined under Section 13 (1) of PC Act.
(iii). It was further contended that prosecution also failed to produce any cogent evidence, which may prove the guilt of accused for the offence punishable under Section 12 of the Passport Act.
(iv). It was further argued that prosecution case is primarily based on the deposition of PW6 but PW6 failed to produce any documentary evidence to prove the fact that the entire RPO office was computerized in 2004. It was argued that in the absence of any documentary evidence, no reliance can be placed on his oral evidence.
(v). It was further contended that prosecution also placed reliance on the deposition of PW10 but PW10 in his cross examination clarified that it was not mandatory on the part of counter clerk to fill-up the old passport number on the application form for additional passport booklets. He further clarified that it was not even mandatory for the counter clerk to put his signature below the stamp. The CBI No. 76/08 Page 87 of 149 State through CBI v/s Bibianus Toppo & others signature of applicant was to be taken as a proof that the original passport/additional booklet had been returned to the applicant.
(vi). It was vehemently argued that A2 could not be part of conspiracy because he was not a competent person to give assurance to the applicants to arrange a passport for them as he was merely a counter clerk and it was not within his jurisdiction to issue and deliver the passport to the applicants.
47. Learned counsel appearing for accused Bibanous Toppo (A1) raised following contentions:-
(i) That A1 had no knowledge about the difference in photographs and wrong enclosures of previous passports, when he dealt with passport files in question as the previous passport files were not sent to A1 for his perusal. Moreover, A1 had no facility to detect genuineness and correctness of the enclosures. PW6 and PW10 supported the above version of A1.
(ii) That at the time of applying for additional passport, applicant pretended that he was applying for first additional passport, thus there was no occasion for A1 to raise any suspicion and this version is corroborated by PW7, PW8, PW10, PW11, PW12, PW13, PW14 and PW16 in their depositions.
(iii) That due to lack of facility, it was not possible for A1 to detect fake and incorrect enclosures, if any, and this fact has been proved from Ex. PW8/DL and Ex. PW8/DM (originals of which have CBI No. 76/08 Page 88 of 149 State through CBI v/s Bibianus Toppo & others been filed in CC No. 6/12). Though in the said matter the application form for additional passport (Ex. PW8/M) was dealt with by PW14 Mr. S. P. Kothari, but he was not impleaded as an accused in the said case; rather he was cited as a prosecution witness and this fact is clear from the deposition of PW14.
(iv) That there is no substance in the plea of learned Public Prosecutor for CBI that since two passport files were dealt with by A1 prior to counter clerk (A2), it shows criminal intent on the part of A1.
Though all request letters, in all the additional passport files, bear the stamp of 'Tatkal fee' and fee of ` 500/- is written in red ink whereas A1 had put his signature in green ink, which proves that before placing the file before A1, counter clerk wrote the fee because counter clerk was supposed to accept the fee, which was approved by PIA (A1). The said version of A1 is also supported by PW10 in his cross- examination.
(v) That giving of promise date prior to registration of application form is not against any procedure because fee can be accepted when it is approved by PIA. The difference in dates as pointed out by learned Public Prosecutor for CBI is also not significant because after getting promise date, it is not mandatory for the applicant to submit his passport on the same day as he could submit the same on the next day or even thereafter and this fact has been corroborated by PW14 Mr. S. P. Kothari in his deposition.
(vi) That dealing with the file by PIA prior to the noting of counter clerk is also not significant because counter clerk could write CBI No. 76/08 Page 89 of 149 State through CBI v/s Bibianus Toppo & others the noting either at the counter when he performed his duty as counter clerk or later on when he performed his duty as dealing assistant and this version has also been corroborated by PW10 and PW14 in their deposition.
(vii) That similar discrepancy had taken place in Ex. PW8/DN (CC No. 6/12) but in the said case Mr. S. P. Kothari had not been impleaded as an accused; rather he has been cited as prosecution witness.
(viii) That since no specific question has been put to the accused in his statement recorded under Section 313 Cr. P.C that since he dealt with certain files prior to counter clerk, thus he conspired with accused persons, this lapse caused prejudice to the accused, hence the said evidence can not be read against the accused.
(ix) That as per procedure, the file pertaining to additional passport booklets firstly goes to counter where counter clerk checks the file and if he is satisfied with the file, he used to accept the file. Once counter clerk is satisfied, he used to put three types of stamp i.e. 'Tatkal fee stamp', 'undertaking stamp' on the request letter and 'cancel and return' stamp on the application form for miscellaneous services and he also used to write the amount of fee i.e ` 500/- in the space available in 'Tatkal fee stamp' and also used to take signature of the applicant in the space available on the undertaking stamp and cancels and returns the original passport. In other words, file used to be sent to PIA for giving promise/delivery date, after completing the CBI No. 76/08 Page 90 of 149 State through CBI v/s Bibianus Toppo & others major work by the counter clerk.
(x) That since counter clerk had sent the file after putting all the stamps, there was no occasion for PIA (A7) to disbelieve his counter clerk. Moreover, additional booklet can not be issued unless HIT/Index/PAC was cleared and since there was no adverse remark, there was no occasion for PIA to disbelieve his officials. The said version is corroborated by PW10 and PW14 in their deposition.
(xi) That the difference in dates when A1 had dealt with the file and the date of dealing that appeared in computer record is not significant. Moreover, prosecution failed to connect how the said discrepancy helps the prosecution to prove the conspiracy. It was contended that the entry used to be fed in the computer by the dealing clerk and if there is any delay in making the entry, the discrepancy would occur and this fact is corroborated by PW10 in his cross- examination. Further similar discrepancy also occurred in Ex. PW8/DM and Ex. PW8/DN ( CC No. 6/12) but no action was taken against the PIA in the said matter.
(xii) That mere fact that A1 had given promise date was not sufficient for the applicant to get passport. The said promise date was subject to clearance of HIT/Index/PAC.
(xiii) That no adverse inference can be drawn against the accused mere on the ground that additional passport booklets were issued in a day or two days times as there was specific directions from the Ministry of External Affairs through various circulars that additional CBI No. 76/08 Page 91 of 149 State through CBI v/s Bibianus Toppo & others passport booklets should be issued within 3-5 days preferably on the same day.
(xiv). That non mentioning of old passport number in the space available in the affixed stamp is insignificant as PW10 and PW14 in their deposition clarified that it was not mandatory for the counter clerk either to fill-up old passport or to sign the same as the old passport number is already available in column 4 of the application.
(xv). That similar allegations were levelled against the PIA in another matter titled CBI v/s Om Prakash (CC No. 47/08) but A1 was acquitted by the learned Predecessor of this Court.
(xvi). That similar allegations were levelled by the CBI against Ms. Asia, the then PIA in CC No. 11/12 but the learned Predecessor of this Court had not convicted Ms. Asia in the said matter.
(xvii). That since A1 was overburdened, he was not supposed to look into the minute detail in each and every case and in support of his contention reliance has been place on the judgment Sudhdio Jha Utpal v/s State of Bihar AIR 1957 SC 466.
(xviii). That since CBI has either not charge-sheeted the PIAs working in RPO, New Delhi who dealt with similar files in other matters or if they were charge-sheeted, they were acquitted, thus accused also deserves acquittal on the ground of parity and reliance CBI No. 76/08 Page 92 of 149 State through CBI v/s Bibianus Toppo & others has been placed on State of M.P. v/s Sheetal Sahai & Others (2009) 8 SCC 617 and L. Chandraiah v/s State of A.P. & another reported in AIR 2004 SC 252.
(xix). That there is no evidence to prove the fact that A1 was in conspiracy with any of the accused persons. A1 had acted in good faith and there is no intentional wrongful act on his part, which may prove culpability on his part.
(xx). That PW22 Swami Nathan was not a competent person to accord sanction qua A1 as he was not competent to remove A1 from his post. Moreover, he has not applied his mind at the time of according sanction, thus sanction is defective. In support of his contentions reliance has been placed on Mohd. Iqbal Ahmed v. State of Andhra Pradesh, AIR 1979 SC 677, State of Goa v. Babu Thomas, 2005 CRL. L.J. 4379, State, Inspector of Police Viskhapatnam v. Surya Sankaram Karri, 2006 CRL. L.J. 4598 (xxi). That no sanction was given by PW22 qua the offences punishable under penal code.
(xxii). That prosecution has failed to bring home the guilt of A1 within the ambit of Section 13 (1) (d) of PC Act as the essential ingredients i.e. dishonest intention is missing and in support of his contention reliance has been placed on Union of India & another v/s Major J.S. Khanna 1972 CLJ 849, S.K. Kale v/s State of Maharashtra AIR 1977 SC 822, T.R. Arya v/s State of Punjab 1987 CLJ 222, C.K. Jaffer Sharief v/s State (Through CBI) 2012 (11) CBI No. 76/08 Page 93 of 149 State through CBI v/s Bibianus Toppo & others SCALE 71.
(xxiii). That prosecution has failed to prove the certificate issued under Section 65B of Indian Evidence Act in accordance with law.
48. Sh. Sukhvinder Singh, learned counsel appearing for accused No. 3 raised following contentions:
(i). That there is a delay in registration of FIR as the last additional passport booklet was issued in June 2004 whereas the FIR was lodged on February 01, 2005 and the delay in FIR has not been explained by the prosecution during trial, thus, the delay is fatal to the prosecution case.
(ii). That the FIR has been registered on the basis of information received from unknown source and bare perusal of FIR reveals that the said source had disclosed each and every minute detail of the alleged so-called conspiracy but despite that the alleged source has not attributed any role to A3 which shows that A3 has no role in the entire episode. In support of his contention, reliance has been placed on Darshan Singh @ Bhasuri & others v. State of Punjab, AIR 1983 SC 554
(iii). That during investigation, no attempt was made to find out why the alleged applicants were forced to obtain passport by fraudulent means when they could obtain the passport lawfully. There is no evidence on record to show that the applicants were debarred CBI No. 76/08 Page 94 of 149 State through CBI v/s Bibianus Toppo & others from obtaining a valid passport by lawful means.
(iv). That CBI even failed to trace out the persons who obtained the said passports by fraudulent means.
(v). That no attempt was made to ask the accused to join investigation to seek his version before filing the charge-sheet. In this case, even no notice was given to A3.
(vi). That though there is allegation that the said conspiracy was hatched somewhere during the year 1999-2004 but A3 was not working in HIT in the year 1999, thus, the question of becoming a part of the said conspiracy does not arise.
(vii). That there is no evidence on record to show how and when the alleged conspiracy was hatched among the accused persons particularly qua accused A3. To support the contention, reliance has been placed on Balkar Singh v. State of Haryana, 2015 (1) JCC 479.
(viii). That 'valuable thing' is not defined under Prevention of Corruption Act and in order to prove the guilt of accused for the offence punishable under Section 13 (2) of PC Act, prosecution is duty bound to prove that the passport is a 'valuable thing' but prosecution failed to prove this fact. 'Valuable thing' is neither defined under the Passport Act nor in the Prevention of Corruption Act.CBI No. 76/08 Page 95 of 149
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(ix). That there is no evidence to show that accused had even processed or dealt with the files in question. Nor there is any evidence that accused had signed or made any endorsement over the said files. Similarly, there is no evidence who had sent the files to A3 and to whom A3 had sent the files after HIT clearance.
(x). That the entire prosecution case is based on the testimony of PW6 who proved the duty rosters Ex. PW3/DB, Ex.PW6/B and Ex.PW6/C but no reliance can be placed on the said documents as there is no proper certificate under Section 65B of Indian Evidence Act and from the deposition of PW6 it becomes clear that there is every possibility to temper with the data and PW6 did not state that there is no possibility of tempering or misuse of password.
(xi). That PW6 failed to produce the copy of his educational qualification.
(xii). In support of his contentions, learned counsel also cited following judgments:
(a). Dhananjaya Reddy etc. v/s State of Karnataka 2001, (1) C.C. Cases (SC) 256; (b). Kali Ram v/s State of Himachal Pradesh AIR 1973 SC2773; (c). State of U.P. v/s Arun Kumar Gupta, 2003 CLJ 894 (SC). (d). Subash Parbat Sonvane v/s State of Gujarat 2002 CLJ 2787 (SC). CBI No. 76/08 Page 96 of 149
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(e). Major S.K. Kale v/s State of Maharashtra, 1977 SCC (Crl.) 356.
(f). Kanwarjit Singh Kakkar v/s State of Punjab & Anr. 2011 (3) JCC 1917. (g). State v/s Kuldeep Kumar (Delhi) 2011 (3) JCC 1924. (h). S. Ram Yadav v/s CBI & Ors. 2014 (1) JCC 343. (i). Jibrial Diwan v/s State of Maharashtra, 1997 CLJ 4070 (SC). (j). Haridaya Ranjan Pd. Verma & Ors. v/s State of Bihar & Anr. 2000 (1) JCC (SC) 362. Findings qua A1, A2 and A3:
49. Since, the above accused persons are involved in issuance of additional passport booklets, their pleas are taken together.
50. Before proceeding further, I deem it appropriate to refer some provisions of Passport Act to find out the importance of passport. Passport is defined in Section 2 (b) and travelled document is defined under Section 2 (e) and same read as under:-
Section 2 (b) : "passport" means a passport issued or deemed to have been issued under this Act.
Section 2 (e) : "travel documents" means a travel document issued or deemed to have been issued under this Act.CBI No. 76/08 Page 97 of 149
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(i) Significance of passport and travelled document is described in Section 3 which reads as under :
Section 3 : Passport or travel document for departure from India - No person shall depart from, or attempt to depart from India, unless he holds in this behalf a valid passport or travel document.
Explanation - For the purposes of this section -
(a) "passport" includes a passport which having been issued by or under the authority of the Government of a foreign country satisfies the conditions prescribed under the Passport (Entry into India) Act, 1920 (34 of 1920), in respect of the class of passports to which it belongs;
(b) "travel document" includes a travel document which having been issued by or under the authority of Government of a foreign country satisfies the conditions prescribed.
(ii). From the combined reading of Section 2(b), 2(e) and 3 of the Passport Act, it becomes crystal clear that no person can depart from the territory of India unless he holds a valid passport or travel document issued by the Passport Authority. In other words, passport creates a legal right in favour of a person to depart from the territory of India. Besides that passport is also a valid document to prove the nationality of a person. It is also a valid document for the identity of a person.
51. Though there is a reference of "valuable thing" in Section 13 (1) (d), yet "valuable thing" has not been defined in PC Act.
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(i). Question may arise whether passport can be considered as "valuable thing" or not?
(ii). Though "valuable security" is defined under Section 30 of IPC, but Penal Code is also silent qua "valuable thing". Section 30 reads as under :
Section 30 "Valuable security" - The words "valuable security" denote a document which is, or purports to be, a document whereby any legal right is created, extended, transferred, restricted, extinguished or released, or whereby any person acknowledges that he lies under legal liability, or has not a certain legal right.
(iii). Bare perusal of the Section 30 of IPC makes it clear that if a document either creates, extends, transfers, restricts, extinguishes or releases any legal right in favour of any person OR where any person acknowledges any legal liability OR acknowledges that he has no certain legal right, such document shall be called as "valuable security".
(iv). As evident from the provisions of Passport Act that passport authorizes a person to travel beyond the territory of India, thus, passport creates a legal right in favour of its holder to visit abroad subject to fulfillment of other requirements such as visa etc. but no person can depart beyond the territory of India unless he holds a valid passport or travel document.CBI No. 76/08 Page 99 of 149
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(v). It can also be said that the "valuable security" is one of the species of "valuable things". All "valuable securities" may be "valuable things" but may not be vice-versa. However, in view of the provisions of Passport Act, it can be safely culled out that passport is a "valuable thing".
52. Now coming to various circulars issued by Ministry of External Affairs regarding the additional passport booklets and miscellaneous services. As per the circular dated June 24, 1997 (Ex.PW8/DH), the practice of attaching and sealing the additional booklet with old passport was discontinued with immediate effect. The said circular is reproduced as under:-
Ministry of External Affairs (CPV Division) No. V.1/401/190 24.6.97 CIRCULAR With the introduction of MSP/MRP passport booklets, the personal particulars of the holder are entered in the inner portion of front and back cover of the passport booklet. It is no longer feasible to attach or seal the additional booklet to the previous old passport.
2. It has, therefore, been decided henceforth that while issuing additional booklet the practice of attaching and sealing the same with the old passport should be discontinued with immediate effect. The old passport should be cancelled and returned to the holder and suitable endorsement regarding old passport made in the new additional booklet. The validity of the additional booklet should be in continuation to the old passport of the holder.
3. In case second additional booklet is issued to the holder, the endorsement in the second additional booklet should carry the details of original passport and first CBI No. 76/08 Page 100 of 149 State through CBI v/s Bibianus Toppo & others additional booklet so that when asked by the appropriate authority, the holder should produce the same.
(Riva G. Das) Deputy Secretary (PV-I) All PIAs in India & Abroad
(i) The said circular was modified by issuing another circular dated November 25, 1997 (Ex. PW8/DG) wherein it was directed that instead of cancelling the original passport having valid visa, to put a stamp across the first three pages of the used booklet. The relevant portion of said circular reads as under:-
2. In view of the feedback received from our missions abroad, it has been decided to review the earlier decision. Instead of cancelling the original passport having valid visa, it has been decided to put a stamp across the first three pages of the used up booklet which would reads as " extended by the issue of a fresh booklet'
3. In the additional booklet, observation would read as:
"Holder has previously travelled on passport No. ........ dated........ issued at ........ which holds valid visas." (the details of the original passport may be included here, where there is a change of name, earlier name may be given).
4. This will be implemented with effect from December 15, 1997, in Missions abroad and with effect from December 1, 1997, in Passport Offices. In case of a subsequent passport booklet, details of the original passport as well as the previous additional booklet may be given.
6. Kindly confirm receipt.CBI No. 76/08 Page 101 of 149
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(ii) Vide circular dated March 6, 2002 (Ex. PW8/DF) the condition of fresh police verification qua additional passport booklet and miscellaneous services was dispensed with. The relevant para are para 3 and 4, which read as under:-
3. Regrettably, we are noticing a reluctance among the PIAs to imbibe the spirit of the various people-friendly reforms being introduced by the Ministry. There is need to shake-off old and fossilised thinking and adopt a dynamic, creative and positive approach. For instance, now that the requirement of fresh police verification has been dispensed with for re-issue cases and additional booklets, there is no reason why these services cannot be provided within 3-4 working days when the original passport was issued from the same Passport Office.
4. Please discuss the possibilities with your PIAs and staff and send your report as to what steps have you taken to ensure that the fruits of the reforms reach the general public. I expect your reply by March 15, 2002.
(iii) Vide circular dated May 26, 2003, charges for Tatkal services was dispensed with and it was directed to provide miscellaneous services within maximum 3-5 days without charging any additional fee. The relevant portion of the circular reads as under:-
As it has been decided to render all miscellaneous services on the same day or maximum within 3-5 days, Ministry has decided not to charge any additional fee for rendering miscellaneous services under the tatkal scheme and has therefore deleted sl. no. 23 of the Schedule IV of the Passport Rules, 1980, originally numbered as 35 in Gazette Notification dated 22.05.2000, which had been renumbered as 23 in Gazette Notification dated 28.03.02 at the time of revision of Passport fee last year.CBI No. 76/08 Page 102 of 149
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2. It is therefore reiterated that all miscellaneous services should be provided on the same day or maximum within 3-5 days, without charging any additional fee under the tatkal scheme.
3. A revised Gazette Notification dated 23.05.2003 issued by the Ministry to this effect is enclosed.
(iv) Vide circular dated April 29, 2004 (Ex. PW8/DD) all PIAs were authorised to issue additional passport booklets irrespective of the fact that whether they had issued original passport or not subject to the clearance of Index/PAC/ check within 3-5 days preferably on same day without charging additional fee. The relevant para are 2, 3 4 and same are reproduced as under:-
2. In order to avoid any recurrence of such instances in future, which causes undue harassment to the applicants, it has, therefore, been decided to reiterate Ministry's instructions on issue of additional booklet that any PIA in India or abroad shall issue additional booklet to the applicants, irrespective of place of original issue of passport and their residential address, subject to index/PAC check within 3-5 days, preferably same day, without charging any additional fee as specified earlier under the Tatkal scheme, since the same has been discontinued vide Ministry's circular of even number dated 25.5.2003. In case of any doubt, the help of PISON may be taken to ascertain the details of original passport issued by other PIA.
It has been noticed that in the past, whenever revised instructions/circulars were issued by the Ministry, the same were not implemented, either fully or in part, by PIAs and staff of the Passport Offices as the revised instructions/circulars were not brought to their notice or as they were not appropriately briefed to by the Passport Officers concerned. Accordingly, all Passport Officers should ensure that the revised instructions and circulars are circulated amongst the all PIAs and staff and necessary briefing are conducted so that the passport services are rendered to the applicants according to the CBI No. 76/08 Page 103 of 149 State through CBI v/s Bibianus Toppo & others rules to avoid unnecessary harassment to the applicants.
It is also requested that signatures of all PIAs and staff may be obtained when the instructions/circulars are circulated to them. A copy of the instructions/circulars with the signatures of the PIAs and staff may be forward to Ministry along with the acknowledgement.
(v) From the combined reading of all the circulars, it becomes abundantly clear that the procedure for issuance of additional passport was liberalised from 1997 to 2004. The stress of Ministry of External Affairs was to minimize the hardship of public at the time of getting additional passport and miscellaneous services. However, simultaneously ample precaution was also taken to ensure that the said procedure be not misused by any unscrupulous person by directing that the additional passport booklets shall be issued subject to clearance of Index/PAC/HIT and in case of any doubt, officials of Passport office shall take the help of PISON to ascertain the details of original passport issued by other PIA.
(vi) Further, from the circulars Ex. PW8/DG and Ex. PW8/DH, it also becomes crystal clear that at the time of obtaining the additional passport booklet, officials of RPO are also required to affix a stamp of cancellation and returned on the original/previous additional passport booklet, if any. Simultaneously, they are also required to affix a stamp on the new additional passport booklet as described in Ex. PW8/DG.
53. Now coming to Rule 2(iii) of the Passports Rules, 1980 wherein the circumstances under which additional passport can be issued is prescribed. Rules reads as under:-
CBI No. 76/08 Page 104 of 149State through CBI v/s Bibianus Toppo & others Issuing a fresh passport booklet when the pages in the booklet held are almost exhausted;
(i) Proviso to Rule 5 empowers the Passport Issuing Authority to compel the applicant to furnish additional information, documents or certificate which may be considered necessary by such authority for the disposal of the application. The proviso reads as under:-
Provided further that in the course of any inquiry under sub-section (2) of section 5, a passport authority may require an applicant to furnish such additional information, documents or certificates, as may be considered necessary by such authority for the proper disposal of the application.
54. Now coming to the fact of the case in hand. In the instant case three different persons but all in the same name and particulars of Kamal Sharma had applied for additional passport booklets during the period November 12, 2003 to May 12, 2004. Their applications were dealt with vide additional passport booklet files Ex. PW3/DA, Ex. PW4/A and Ex. PW4/B respectively. At the time of seeking the additional passport booklets, all the applicants furnished a separate application along with passport application form for miscellaneous services of Indian Passport, wherein the applicants disclosed the reason for seeking additional passport booklet. The said applications are separately exhibited as Ex. PW9/D, Ex. PW10/B and Ex. PW10/E.
(i) Perusal of the said applications reveals that in all the applications, applicants had disclosed that they needed fresh CBI No. 76/08 Page 105 of 149 State through CBI v/s Bibianus Toppo & others additional passport as the pages of previous passport had already been full and they had to visit abroad urgently. Thus, additional passports were sought by the applicants on the ground that the pages of previous passports had already been full.
55. Now question arises what was the duty of officials, who dealt with the said applications? Needless to say that it was their paramount duty to check the previous passport to satisfy themselves whether all pages of previous passport had been full, on the basis of which, the applicants prayed for additional passport booklets.
(i) Perusal of the applications for seeking additional passport further reveals that the applicants had filed the photostate copy of front and back pages of previous passports. But surprisingly none of the officials including PIA deemed it appropriate to ask the applicants to furnish the photostate copy of all pages of the previous passport to satisfy themselves that all pages of previous passports had been full as alleged by the applicants in their respective applications.
56. I have gone through the entire Passport Act, Rules and circulars placed before this Court. But this Court fails to come across any provision/rule/administrative instructions which prevented the passport officials including counter clerk and PIA from taking the photocopy of entire previous passport. On the contrary, proviso to Rule 5 of Passport Rules 1980 empowers the Passport Issuing Authority to ask the applicant to furnish additional information, document or certificate which may be considered necessary for the disposal of application. Since, applicants had not furnished the CBI No. 76/08 Page 106 of 149 State through CBI v/s Bibianus Toppo & others photostate copy of entire previous passport held by them at the time of seeking additional passport booklet, thus there was no material on record to satisfy the PIA/other officials that the pages of previous passport had been full, hence onus is shifted upon the officials who dealt with the said applications to show on what basis they satisfied themselves that the pages of previous passports held by the applicants had been full. No doubt, the initial burden was on the prosecution but in the instant case prosecution had discharged the initial burden by proving the request letters (Ex. PW9/D, Ex. PW10/B and Ex. PW10/E and by producing the photocopy of previous passport which applicants enclosed along with their request letters. Since, the circumstances or facts which impelled the Passport Issuing Authority and other officials to believe the version of applicants are in the special knowledge of the Passport Issuing Authority and other officials, thus in terms of Section 106 Indian Evidence Act, burden is shifted upon them to show on what basis they arrived at the conclusion that pages of previous passports had been full as alleged by the applicants.
57. Harbhajan Yadav (A2) was the counter clerk. Being the counter clerk, he was one of the persons who dealt with the said applications including request letters. But during trial, he failed to furnish any reasonable explanation on what basis he arrived at the conclusion that the pages of previous passports had been full as mentioned in the request letters. During the arguments, counsel appearing for A2 Harbhajan Yadav made a submission that at the time of seeking the additional passport, applicants had produced the previous passport having photographs of same applicant and CBI No. 76/08 Page 107 of 149 State through CBI v/s Bibianus Toppo & others accordingly A2 had taken the photocopy of first two and last pages of the previous passport and returned the original passport after making necessary endorsement in terms of circular Ex. PW8/DG. But there is no explanation why he had not asked the applicant to furnish the photocopy of the entire previous passport to satisfy himself that all pages of the previous passport had been full. If all the pages of previous passport, which allegedly had been shown to A2 and which allegedly A2 had cancelled and returned to the applicants had been full as mentioned in the request letters of applicants, A2 would have certainly asked the applicants to place the copy of entire passport for the satisfaction of PIA and other officials but no such attempt was made on the part of A2. In the absence of any cogent evidence on record, I am of the view that there was no occasion for A2 to believe the version of applicants that they needed additional passport booklets on account of fulfilling the entire pages of previous passports.
58. Bibianus Toppo (A1) was PIA/superintendent and being the superintendent, he was Passport Issuing Authority at the relevant time. As per item three of Schedule 1 of Passport Rules 1980, Superintendent of Regional Passport Office, Delhi was Passport Issuing authority as defined under the Act. When A1 was discharging such responsible duties, it was his paramount duty to satisfy himself whether there is any material on record to corroborate the version of applicants as mentioned in their request letters or not. As already discussed that in the instant case, prosecution has discharged the initial burden, thus in terms of Section 106 of Indian Evidence Act, burden is shifted upon A1 to explain under which circumstances, he believed the version of applicants that they needed additional passport CBI No. 76/08 Page 108 of 149 State through CBI v/s Bibianus Toppo & others on account of fulfilling all pages of previous passports. But during the trial, no such evidence has been led by A1 to discharge the said burden.
59. No doubt a plea has been taken by A1 that he believed the noting of A2 (counter clerk) made on the application forms for miscellaneous services of Indian passport wherein he recommended to issue additional passport booklets in favour of the applicants. Admittedly, counter clerk had made the said recommendation in favour of applicants. But question arises was not it the duty of Passport Issuing Authority to satisfy himself by going through the file. It is pertinent to state that the Passport files relating issuing of additional passports were not voluminous. Rather, the files contain only four documents namely cash receipt; passport application registration form; application form for miscellaneous services; request letter along with photocopy of previous first two pages and back pages of previous passport. Thus, it cannot be said that PIA was not in a position to go through the files being voluminous. It was a matter of just few seconds to see whether there is any material on file to corroborate the version of applicant or not. But it appears that A1 did not deem it appropriate to open the file before the issuance of additional passport in favour of the applicants.
60. Perusal of the application forms for miscellaneous services of Indian Passport (Ex. PW5/B, Ex. PW10/A and Ex. PW5/F) reveals that there is stamp "cancelled and returned old passport No.....". From the evidence adduced, it is also established that it was the duty of counter clerk to mention old passport number and he was CBI No. 76/08 Page 109 of 149 State through CBI v/s Bibianus Toppo & others also supposed to sign below the said stamp. Indisputably, though stamp is affixed on the said application forms, but neither the old passport number is filled up nor there is any initial of the counter clerk. This shows that there is a lapse on the part of counter clerk in this regard. However, during the arguments counsel appearing for A2 submitted that since counter clerk had made a specific endorsement in the said application forms in his own handwriting that he had cancelled the old passport and also recommended for issuance of additional passport booklet, it is not relevant if counter clerk did not fill up the passport number and put his signature below the said stamp. No doubt, counter clerk was supposed to mention the old passport number in the space available in the above said stamp and he was also supposed to put his signature, but keeping in view the fact that counter clerk had made a specific endorsement on the said application forms wherein he recommended not only to issue additional passport booklet to the applicants but also certified that he had cancelled and returned the original passports, the lapse on the part of counter clerk is not significant.
(i) No doubt, being the supervisory authority, A1 was supposed not to encourage such irregularity by his subordinate staff but he failed to stop such irregularity. The purpose of filling up old passport number is to inform the supervising officer including PIA that the counter clerk had cancelled and returned the particular passport. In the absence of such number, it would not be feasible for the supervising officer including PIA to know which passport was cancelled and returned by the counter clerk.
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(ii) No doubt, the old passport number is also mentioned in column no. 4 of the said application forms but the same was filled up by the applicants and not by the official of RPO office. If the old number is not filled up by the counter clerk in the space available in the above said stamp, PIA would be required to verify the passport number as mentioned in column no. 4 and from the photocopy of the passport annexed along with the application forms, which will be time consuming exercise but surprisingly no effort was made by the PIA to discontinue this irregularity. However, the said irregularity is not sufficient to draw an inference either against A1 or A2 because it is undisputed fact that A2 had made a specific nothing on the application forms to the effect of 'old passport cancelled and returned' and also recommended for issuance of additional passport booklets.
61. It is manifested from the request letters (Ex. PW9/D, Ex. PW10/B and Ex. PW10/E) that at the time of seeking additional passport booklets, applicants took the plea that they required additional passport urgently as they had to go abroad and entire pages of previous passports had already been full. It means that the applicants had valid visa and they required the additional booklet on urgent basis as all pages of previous passport had already been full. Thus, in terms of circular Ex. PW8/DG, it was the duty of passport Issuing Authority to make the following endorsement on the additional passport:-
" Holder has previously travelled on passport No. ___ dated _ _ issued at _ _ which holds valid visa." (The details of original passport may be included here, where there is a change of name, earlier name be given.) CBI No. 76/08 Page 111 of 149 State through CBI v/s Bibianus Toppo & others
(i) The above endorsement could be made by the passport issuing authority only if passport issuing authority has previous passport in original or photocopy thereof to check whether applicant had any valid visa. As from the evidence adduced by prosecution and the plea taken by A1 and A2 in their statement recorded under Section 313 Cr.P.C, the previous passport in original was returned to the applicants at the counter itself. Since, photocopy of entire passport was not taken from the applicants before issuing additional passport booklets, there was no material before the PIA to make above endorsement on the fresh additional booklet. Had the previous passport in original been seen or copy thereof be taken on record, passport issuing authority would have come to know immediately that the plea taken by the applicants for issuance of additional passport booklets was false. But the passport issuing authority did not deem it appropriate to do so and even it did not deem appropriate to comply with the instructions issued by Ministry of External Affairs in its circular Ex.PW8/DG.
62. During arguments, counsel for the accused persons also took the plea that since accused persons acted in good faith, they cannot be held liable for the penal offences. Now question arises whether in the present facts and circumstances plea of good faith is available to the accused persons or not?
63. 'Good Faith' is defined under Section 52 of IPC, which reads as under:-
CBI No. 76/08 Page 112 of 149State through CBI v/s Bibianus Toppo & others "Nothing is said to be done or believed in "good faith", which is done or believed without due care or attention."
(ii) Thus, before taking the plea of good faith, the person who takes such plea has to show by producing relevant material/evidence on record that he had taken due care and attention.
But in the instant case, A1 failed to produce any such material on record. Mere fact that counter clerk (A2) made a recommendation in favour of applicants for issuance of additional passport booklet was not sufficient for A1 either to believe the version of applicant or counter clerk blindly without satisfying himself whether there is any material in support of their claim/recommendation on the file. Being the PIA, it was his responsibility to ensure that no unscrupulous person could get passport on the basis of false claim. Simultaneously, it was his duty to keep a check of his subordinates. Had there been photocopy of entire previous passport showing that all pages of previous passport had been full and proper endorsement had been made on the issued additional passport booklet in terms of circular Ex. PW8/DG, in that situation PIA (A1) would have a valid defence of good faith as defined under Section 52 of IPC. But unfortunately, it is not so. In these circumstances, I am of the view that there is no substance in the plea of A1 that he acted on good faith on the recommendation of A2.
64. Now coming to the duty rosters Ex. PW6/A, Ex. PW3/DB, Ex. PW6/B and Ex. PW6/C. The said documents are computer generated wherein the name of officials, who dealt with the files relating to the additional passport booklets and original passport in CBI No. 76/08 Page 113 of 149 State through CBI v/s Bibianus Toppo & others question are mentioned. As per the said documents, Ram Chander had given HIT clearance in all the three additional passport booklet files whereas accused Bibianus Toppo had given the promise date as well as passed grant order in all the said files. Since, Bibianus Toppo had not disputed the fact that he had not dealt with the files in question, the said documents qua accused Bibianus Toppo have not much significance. However, counsel for Ram Chander raised a dispute qua the role of A3, hence these documents are relevant qua him.
(i) Perusal of the statement recorded under Section 313 Cr. P.C of accused Ram Chander, it becomes clear that he nowhere took the plea that he was not posted in HIT Section at the relevant time nor he produced any evidence in this regard.
(ii) PW6 Sh. Ajay Gautam in his examination-in-chief deposed that he is an officer of National Informative Centre (NIC) and he was on deputation to RPO, New Delhi and his duty was to maintain computers installed in the office of RPO and to render technical support to RPO officials. He further deposed that at that time only 15 computers, 100 dump terminals, 4 scanners, 3 servers and 20 printers were installed in the office of RPO. Since, 100 dump terminals were installed in the office of RPO, it means that the officials who used to perform their duties on such terminals, all data used to be stored directly on the server because in dump terminals, there used to be neither any hard disk nor RAM. He further deposed that the said documents were generated by him at the instructions of Superintendent Administration, RPO and he also issued certificate CBI No. 76/08 Page 114 of 149 State through CBI v/s Bibianus Toppo & others under Section 65 B of Evidence Act certifying that he had generated the said documents and the same were true and correct and the computer system was properly working from which the said documents were generated and the record was not tempered with. No doubt, in his cross-examination he deposed that there is a possibility to modify or edit data at the server end but also clarified that in the instant case, no such modification or edition had taken place. Since, PW6 Sh. Ajay Gupta was deputed at the office of RPO from NIC and his duty was to maintain computers and to provide necessary technical support to RPO officials, thus, PW6 Sh. Ajay Gautam was competent person for the maintenance of computers/servers installed at the office of RPO. It means that he was one of the competent persons to certify that the data was not tempered with and the system from which the above documents were generated was working properly. There is nothing on record which may suggest that the dump terminals or the computers from which the officials of RPO used to feed information as mentioned in the aforesaid documents were not working properly or that the server was not working properly at the relevant time. In these circumstances, there is no reason to disbelieve PW6 Sh. Ajay Gautam, who is an independent person, when he deposed that the computer system was working properly at the relevant time. Thus, to my mind the above documents are admissible in evidence.
(iii) Counsel appearing for A3 vehemently contended that no reliance can be placed on the said documents as there was every possibility to misuse the P number and password of A3. It is undisputed fact that the file in the RPO can only be accessed by the CBI No. 76/08 Page 115 of 149 State through CBI v/s Bibianus Toppo & others employees of RPO by using their login i.e. P number and password. Password remains in the personal knowledge of an individual employee. It is his duty not to share his password with anyone. Moreover, in the instant case, A3 had never taken a plea that he had shared his password with anyone. If he had shared his password with anyone or the same was misused by anyone, onus is shifted upon him in terms of Section 106 of Indian Evidence Act to explain under which circumstances he had shared his password or under which circumstances, his password had been misused, but he failed to discharge his burden. In the absence of any evidence on record, I do not find any substance in the plea that someone had misused his password.
(iv) In the aforesaid documents, not only the name of officials who dealt with the above said files is mentioned, but it also depicted when they had processed the said files. As per the said documents, A3 had processed the said files on November 13, 2003, March 5, 2004 and May 13, 2004. There is nothing on record which may show that he was not present in the office or he was not posted in HIT Section on the said dates, thus in the absence of any contrary evidence on record there is no reason to disbelieve the official record which was being maintained in ordinary course of business performed by RPO officials and generated and proved by an independent witness.
(v) I also do not find any substance in the plea taken by the counsel for A3 that no reliance can be placed on the deposition of PW6 Sh. Ajay Gautam as he failed to produce the copy of his CBI No. 76/08 Page 116 of 149 State through CBI v/s Bibianus Toppo & others educational qualification. Since, he was working in NIC, a government organization, presumption lies in his favour that he was otherwise competent to perform his duty.
(vi) From the deposition of PW6 Sh. Ajay Gautam and documents Ex. PW3/DB, Ex. PW6/B and Ex. PW6/C, it becomes crystal clear that A3 had dealt with additional passport booklets files in question by giving HIT clearance.
65. Counsel appearing for A3 vigorously argued that there was no facility in the HIT Section at the relevant time to compare the photographs of applicants with the photographs affixed on previous passports. In this regard, the testimony of PW6 Sh. Ajay Gautam is relevant.
(i) PW6 in his examination-in-chief deposed that scanning of photographs and signatures facility was started in the office of RPO in June 2000 and HIT checking with photographs was started in the year 2000 and HIT checking with photographs and signatures was started in July 2002 on one PC only. However, the facility of HIT checking with photographs and signatures was started since April 2004.
(ii) As per Ex. PW6/C, HIT clearance was given on May 13, 2004. Despite that A3 failed to find out the discrepancies in photographs of previous passport holder and the applicant whereas there is significant difference between the photographs of both the persons.
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(iii). Assuming for the sake of arguments that there was no facility of checking photographs in the computer in HIT Section at the relevant time. Was not the duty of officials posted at HIT Section to verify from the previous files physically. There was no restriction to check from the previous files. It is pertinent to mention here that as per circular Ex. PW8/DD, additional booklet was to be issued subject to clearance from HIT and there was nothing in the said circular that official posted at HIT was not supposed to consult the previous file, if the requisite facility was not available in his computer. On the contrary, it was directed that in case of doubt officials should consult PISON. Thus, the plea taken by A3 that he was not in a position to compare the photographs for want of facility is devoid of merit.
(iv) Further the HIT clearance can be given by the HIT section only by entering the name of applicant or by the previous passport number. If any of the details of the applicant would be fed in the computer, in ordinarily course, computer would display all the relevant information of the said person. In other words, computer would also display how many additional passport booklets have already been issued in the name of said person. Indisputably, when the applicants moved applications from time to time to seek additional passport booklets, every time they used to file copy of original passport (Ex. PW12/A) with different photograph. Had the official posted at HIT section opened the file of applicant Kamal Sharma, when second application for obtaining second additional passport booklet was moved, he would have come to know that in the name of said person, one additional passport booklet had already been issued. Since, the applicant had filed the copy of original passport, the official CBI No. 76/08 Page 118 of 149 State through CBI v/s Bibianus Toppo & others posted at HIT section would come to know easily that the applicant was playing fraud with RPO, but the said official i.e. A3 preferred to give HIT clearance instead of raising an objection. Thus, in the facts and circumstances of the case, the plea taken by accused Ram Chander is without any substance.
66. Now coming to the contention relating to work load. To my mind the said contention is devoid of any merit. Work load can not be a ground to justify a wilful wrongful act. As already held that neither A1 (Bibianus Toppo) nor A2 (Harbhajan Yadav) made any effort to satisfy himself whether there is any material to substantiate the version of applicant to seek additional passport booklet as there is no material on record to show that all pages of previous passport/booklet had been full as mentioned by the applicants in their request letters.
(i). To my mind, the judgment Sudhdeo Jha Utpel v/s. State of Bihar (supra) is also not helpful to A1 as the facts of the said case were totally different from the facts of case in hand. The said case relates to the offence punishable under Section 420/193/120B IPC whereas the main allegations against A1 is for the offence punishable under Section 13(1) (d) of PC Act. The ingredients of Section 420 IPC and 13(1) (d) of PC Act are totally different. Moreover, in the said matter there were sufficient material on record to support the claim of appellant that the company had used to pay road tax to the tune of ` 40,000/- and there were several branches of the company, thus it was not feasible for the appellant being the General Manager to know whether any particular vehicle was of road worthy or road tax qua any particular vehicle had been paid or not. On the CBI No. 76/08 Page 119 of 149 State through CBI v/s Bibianus Toppo & others contrary, in the instant matter A1 was acting as a Passport Issuing Authority, thus it was his responsibility to satisfy himself prior to issuing the passport/additional passport booklets whether the documents submitted by the applicants supports their claim or not.
(ii). In order to claim parity, counsel for A1 strongly placed reliance on the judgment State of Madhya Pradesh v/s. Sheetla Sahai and others (supra) and L. Chandraiah v/s. State of Andhra Pradesh (supra). But to my mind, the said judgements are not applicable in the facts and circumstances of the present case. In both the matters, investigating officer adopted the policy of pick and choose while impleading the accused persons whereas in the present case, no such pick and choose policy had been adopted. Mere fact that the investigating agency did not charge-sheet PIAs in other matters, who allegedly played similar role that of A1 is not sufficed for this Court to hold that in the present matter investigating officer had adopted the policy of pick and choose. Indisputably, those other matters are not before this Court and this Court is not supposed to give any finding in those matters on the basis of evidence led by prosecution in the present matter. If in those matters, investigating officer had adopted pick and choose policy, appropriate action can be taken against the erring investigating officer. But mere fact that in the said matters, investigating agency did not deem it appropriate to file the charge- sheet against PIAs, it not sufficient to exonerate A1 in the present matter. Needless to say that the fate of A1 can be decided only on the basis of evidence available on record in the present matter and not on the basis of charge-sheets filed by investigating agency in other alleged similar matters.
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67. Now coming to the contention whether dishonest intention is pre-requisite ingredient for the offence punishable under Section 13(1) (d) of PC Act or not?
(i) Section 13(1) (d) of Prevention of Corruption Act is in following three parts:-
(i) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage; or
(ii) by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or
(iii) while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest; or (emphasis supplied)
(ii). Bare perusal of clause (i) and (ii), it becomes clear that dishonest intention is an essential ingredient as held by the Apex Court in C. K. Jaffer Sharief v/s. State and S. K. Kale v/s. State of Maharashtra (supra). 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:-
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70. There is no doubt that Section 13 (1) (d) (iii) differs from other parts of the Act, not only in structure, but also in substance. The use of terms such as habitually accepts agrees to accept attempts consideration which he knows to be inadequate dishonestly or fraudulently misappropriates. (property entrusted to him or allows any other person so to do); corrupt or illegal abusing his position are clear pointers to Parliamentary intention that mens rea is essential to be proved in relation to the offences provided for under Section 13 (1) (a) to (d) (i) and (ii). Section 13 (1) (d) (iii) contains no such words, which point to criminal intent. There is substance in the Appellants arguments that the Supreme Court had previously interpreted Section 5 (1) (d) so as to mean the existence of 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.CBI No. 76/08 Page 122 of 149
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71. The question is, whether this setting compels the court to hold that mens rea is, like the other provisions, a necessary pre-requisite or pre-condition which the prosecution has to establish, from the conduct of a public servant. It would also be relevant here to mention that Section 13 (1) (e) appears to be in line with Section 13 (1)
(d) (iii) in as much as there is no pointer to criminal intent.
That provision declares that a public servant in possession of pecuniary resources or property which he cannot satisfactorily account, or which are disproportionate to his known sources of income is guilty of criminal misconduct. Here, the sources of income may or may not be connected with the public servants duties; the emphasis is on inability to satisfactorily account, or that the wealth or assets held are disproportionate to the servants known sources of income. If the ingredients of the provision are satisfied, it is not necessary to prove mens rea. Section 13 (1) (e) enacts that a public servant is guilty of criminal misconduct:
(e) if he or any person on his behalf, is in possession or has, at any time during the period of his office, been in possession for which the public servant cannot satisfactorily account, of pecuniary resources or property disproportionate to his known sources of income.
The ingredients which the prosecution has to prove in relation to this offence, (which is in pari materia with Section 5 (1) (e) of the 1947 Act, were spelt out in M. Krishna Reddy v State Deputy Superintendent of Police 1992 (4) SCC 45 as follows:
To substantiate a charge under Section 5(1)(e) of the Act, the prosecution must prove the following ingredients, namely, (1) the prosecution must establish that the accused is a public servant, (2) the nature and extent of the pecuniary resources or property which were found in his possession (3) it must be proved as to what were his known sources of income, i.e. known to the prosecution and (4) it must prove, quite objectively, that such resources or property found in possession of the accused were disproportionate to his known sources of income... It is clear therefore, that mens rea or CBI No. 76/08 Page 123 of 149 State through CBI v/s Bibianus Toppo & others criminal intent does not have to be proved in the case of a charge under Section 13 (1) (e); it is enough for the prosecution to establish the four ingredients of the offence. As noticed earlier, the setting of this provision too needs to be taken into account, along with the legislative history (of Section 5 of the earlier Act, with its amendments, and the new Section 13 (1) (d) re- cast in a totally different manner) -it appears immediately after another offence of criminal misconduct (Section 13 (1) (d) (iii)) that does not textually allude to or require intent, or mens rea.
..............
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24. The distinction between a strict construction and a more free one has disappeared in modern times and now mostly the question is what is true construction of the statute? A passage in Craies on Statute Law, 7th Edn.
reads to the following effect:
The distinction between a strict and a liberal construction has almost disappeared with regard to all classes of statutes, so that all statutes, whether penal or not, are now construed by substantially the same rules. ... They are construed now with reference to the true meaning and real intention of the legislature. At p. 532 of the same book, observations of Sedgwick are quoted as under:
The more correct version of the doctrine appears to be that statutes of this class are to be fairly construed and faithfully applied according to the intent of the legislature, without unwarrantable severity on the one hand or unjustifiable lenity on the other, in cases of doubt the courts inclining to mercy
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 CBI No. 76/08 Page 124 of 149 State through CBI v/s Bibianus Toppo & others act, pecuniary advantage or valuable thing, to another, without public interest. The inclusion of public interest, in the opinion of the Court, tips the scale in favour of a construction which does not require proof of mens rea. There can be many acts of a public servant, which result in pecuniary advantage, or obtaining of a valuable thing to someone else; typically these may relate to payment of royalty, grant of license or concessions, issuance of permits, authorizations, etc. Yet, such grants, concessions, or other forms of advantages to third parties would not criminalize the public servants actions, so long as they have an element of public interest. They (acts of the public servant) are outlawed, and become punishable, if they are "without public interest".
74. Having now settled the true interpretation of whether the offence under Section 13 (1) (d) (iii) requires proof of mens rea, it would now be vital to settle what really the prosecution would have to establish to say that the public servants actions or decisions, which result in a third party obtaining a pecuniary advantage or valuable thing, without public interest. The expression "public interest" is known to law; at the same time its meaning is not rigid, and takes colour from the particular statute or policy (Ref. Srinivasa Co-operative House Building Society v Madam Gurumurthy Sastry 1994 (4) SCC 675). It might be useful to consider the following formulation of what is public interest, in relation to actions by public officials or agencies or instrumentalities of state, in every sphere of 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 CBI No. 76/08 Page 125 of 149 State through CBI v/s Bibianus Toppo & others cases the parties may be relegated to adjudication of their rights by resort to remedies provided for adjudication of purely contractual disputes...To this extent, the obligation is of a public character invariably in every case irrespective of there being any other right or obligation in addition thereto. An additional contractual obligation cannot divest the claimant of the guarantee under Article 14 of non- arbitrariness at the hands of the State in any of its actions. In a later decision, LIC of India v. Consumer Education & Research Centre, (1995) 5 SCC 482, it was held that:
Public authorities or those whose acts bear insignia of public element, action to public duty or obligation are enjoined to act in a manner i.e. fair, just and equitable, after taking objectively all the relevant options into consideration and in a manner that is reasonable, relevant and germane to effectuate the purpose for public good and in general public interest and it must not take any irrelevant or irrational factors into consideration or appear arbitrary in its decision. A recent judgment, has examined the concept, in NOIDA Entrepreneurs Association v. NOIDA, (2011) 6 SCC 508, in the light of provisions of Section 13 (1) (d), though the context of the courts' judgment were directions issued to investigate into action of public servants.
The court held that:
The State or the public authority which holds the property for the public or which has been assigned the duty of grant of largesse, etc. acts as a trustee and, therefore, has to act fairly and reasonably. Every holder of a public office by virtue of which he acts on behalf of the State or public body is ultimately accountable to the people in whom the sovereignty vests. As such, all powers so vested in him are meant to be exercised for public good and promoting the public interest. Every holder of a public office is a trustee.
xxxxxxxxxxxx xxxxxxxxxxxx CBI No. 76/08 Page 126 of 149 State through CBI v/s Bibianus Toppo & others
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.
............
.............
............
77. The court, as a consequence has to determine the objective criteria by which acts (of public servants) without public interest, are to be judged, if mens rea (to obtain pecuniary advantage or valuable thing to another) is not a necessary ingredient. This exercise is essential because in the absence of mens rea (which has been ruled out) the court has to say what "acts" resulting in someone obtaining pecuniary advantage or valuable thing are "without public interest". Obviously the mere fact that a third party obtains pecuniary advantage, or a valuable thing, is insufficient; a supplier of equipment to public servants or offices, a travel agent who makes bookings for a public agency, a businessman or corporate group granted licenses or clearances, by departments or agencies of the Government, would all stand to benefit. Many of these decisions are in fact, and all are, expected to be in public interest. Therefore, the kind of behaviour which amounts to an "act" resulting in someone "obtaining pecuniary advantage" or "valuable thing" "without public interest" needs to be spelt out.
78. In a previous part of this judgment, what constitutes "public interest" and the trust element, which informs every decision of a public servant or agency, was discussed and emphasized. The State in its myriad functions enters into contracts, of various kinds, involves itself in regulation, awards or grants largesse, and holds property. Each action of the State must further the social or economic goals sought to be achieved by the policy. Therefore, when a public servants decision exhibits complete and manifest disregard to public interest with the corresponding result of a third party obtaining pecuniary advantage or valuable thing, he is fastened with responsibility for "criminal misconduct" under Section 13 CBI No. 76/08 Page 127 of 149 State through CBI v/s Bibianus Toppo & others (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 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) CBI No. 76/08 Page 128 of 149 State through CBI v/s Bibianus Toppo & others
(iii). From the above judgement, it becomes crystal clear that mens-rea is not required for the offence under Section 13(1) (d)
(iii) of the Prevention of Corruption Act. Prosecution is required only to prove that public servants while holding the office obtains either for himself or for any person any valuable thing or pecuniary advantage without any public interest.
68. Now question arises whether A1, A2 and A3 had acted in public interest or not?
(i). If it is established that they acted in public interest, they cannot be held liable for their acts, otherwise they shall be liable for their acts.
(ii). Indisputably, issuing the additional passport booklets in the name of fictitious persons cannot be in public interest. Rather, it would be totally against the public interest as it may also cause threat to the security of the nation because such fictitious documents can be misused by anti-social elements. As already discussed that while dealing with the files in question, A1, A2 and A3 not only failed to take reasonable precaution but also breached the settled norms and instructions at the time of issuing additional booklets, thus their act was not in the public interest when they dealt with the said files.
CBI No. 76/08 Page 129 of 149State through CBI v/s Bibianus Toppo & others
(iii) Admittedly, there is no cogent evidence on record to bring home the guilt of A1, A2 and A3 for the offences described in clause (i) and (ii) of Section 13(1) (d) of the Prevention of Corruption Act. But there are sufficient material on record to prove their guilt for the offence described in clause (iii) of Section 13(1) (d) of the Prevention of Corruption Act.
69. Now coming to the contention whether there is any material on record to prove the conspiracy among the accused persons or not?
(i). In this regard paras no. 49 to 52 of State of Madhya Pradesh v/s. Sheetla Sahai (supra) are relevant, accordingly 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 CBI No. 76/08 Page 130 of 149 State through CBI v/s Bibianus Toppo & others 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 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 CBI No. 76/08 Page 131 of 149 State through CBI v/s Bibianus Toppo & others 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 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.....CBI No. 76/08 Page 132 of 149
State through CBI v/s Bibianus Toppo & others 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."
(i) From the above, it becomes clear that the conspiracy can be proved by the surrounding circumstances and conduct of the accused persons.
(ii). Now coming to the facts of the case in hand.
(iiii) In the instant case, first application for additional passport booklet was moved on November 12, 2003 and same was issued on November 13, 2003. Second application for additional passport booklet was moved on March 4, 2004 and it was issued on March 5, 2004. Third application for additional passport booklet was moved on May 12, 2004 and it was issued on May 13, 2004. Thus, it CBI No. 76/08 Page 133 of 149 State through CBI v/s Bibianus Toppo & others becomes clear that the additional passport booklets were issued on the very next day of the application. Though at the time of seeking additional passport booklets, applicants disclosed that they required additional passport booklet as pages of previous passport had been full. But despite that none of the above accused persons made an attempt to check or take any document on record to satisfy himself whether the reason furnished by applicants to seek additional passport booklets is genuine or not. They preferred to act blindly on the version of applicants, which shows that they were under some agreement with the applicants otherwise they would not act in such a manner. It is also pertinent to mention here that all the applications have writings of A7, which further shows that he was also part of that agreement/understanding. Similarly, A3 did not prefer to do HIT properly. Had he done the HIT properly, it would have been revealed that applicants did not deserve any additional passport booklet. It is also pertinent to state that this is not the sole incident. Rather, Passport office had acted in the same manner in which the application passport registration forms were filled up by A7. This further proves that all the above accused persons were acting under some agreement. No doubt, there is no direct evidence to prove the meeting of minds among them but the surrounding circumstances and the act of the accused persons are sufficient to form a chain to prove the fact that they were acting under some agreement, thus, to my mind, prosecution has succeeded to prove conspiracy among A1 Bibianus Toppo, A2 Harbhajan Yadav, A3 Ram Chander and A7 Anil Dhawan. Accordingly, they shall also be liable for the act of each other.
CBI No. 76/08 Page 134 of 149State through CBI v/s Bibianus Toppo & others
70. Now coming to the contentions relating to sanction.
(i) In this regard the testimony of PW22 Sh. R. Swaminathan is relevant.
(ii) PW22 Sh. R. Swaminathan in his examination-in-chief categorically deposed that he had also received investigation report and the statement of prosecution witnesses along with the request letter for seeking sanction and further deposed that he had gone through the said report and statement of prosecution witnesses and after getting satisfying himself, he accorded the sanction under Section 19 (1) (c) of the Prevention of Corruption Act as well as under
Section 15 of Passport Act. In his examination-in-chief, he also admitted that he was competent to remove A2 (Harbhajan Yadav), A3 (Ram Chander), A4 (G.D. Joshi) and A5 (R. S. Rawat) from the service but he was not competent to remove A1 as Additional Secretary Administration and CPV was competent to remove A1 (Bibianus Toppo) from the service. He further clarified that due to said reason, he had taken the approval of Additional Secretary Administration and CPV qua A1, thereafter, sanction was accorded. Sanction under Section 19(1) (C) is Ex. PW22/A whereas sanction accorded under Section 15 of the Passport Act is Ex. PW22/B. Perusal of Ex. PW22/A corroborates the testimony of PW22 that the approval of Additional Secretary Administration and CPV was taken. During cross-examination of PW22, an attempt was made to cause a dent in his testimony on the grounds that the investigating agency has not placed entire material before him at the time of seeking sanction or that he had not applied his mind or that he had accorded the sanction CBI No. 76/08 Page 135 of 149 State through CBI v/s Bibianus Toppo & others on the basis of draft sanction placed before him. But all these suggestions were categorically denied. Sanction was also challenged on the ground that approval of competent authority was not obtained qua A1 (Bibinaus Toppo) but the same was also categorically denied. It is pertinent to state that during the cross-examination of PW22, no attempt was made by the defence counsel to call for the file containing the approval of Additional Secretary Administration and CPV. There is no contrary evidence to the testimony of PW22. In the absence of any contrary evidence on record, I do not find any reason to disbelieve his testimony.
(iii). Now coming to the judgement titled Mohd. Iqbal Ahmed v/s. Andhra Pradesh (supra), State of Goa v/s. Babu Thomas (supra) and State, Insp. of Police of Vishakhapatnam v/s.
Surya Sankramkari. I have perused all the said judgements carefully. On perusal of judgements, I am of the view that same are not helpful to the accused in any manner as the facts involved in said cases were different from the facts of the case in hand. In the said cases, there was nothing on record to show that approval of competent authority was taken before granting the sanction whereas in the instant case there is not only oral but documentary evidence on record to prove the fact that approval of competent authority i.e Additional Secretary Administration and CPV was taken qua A1 (Bibianus Toppo) before according the sanction. Thus, to my mind there is no infirmity or illegality in the sanction accorded by PW22.
71. Now coming to the contention whether the act of A1 (Bibianus Toppo) for issuing additional passport booklets and the act CBI No. 76/08 Page 136 of 149 State through CBI v/s Bibianus Toppo & others of A7 (Anil Dhawan) filling up application registration form and application form for miscellaneous services amounts forgery or not?
(i) 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 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 CBI No. 76/08 Page 137 of 149 State through CBI v/s Bibianus Toppo & others 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)
(ii) There is no dispute that A1 (Bibianus Toppo) had issued additional passport booklets in question under his signature. But to my mind, this itself is not sufficient to satisfy the ingredients of Section 464 IPC. It is undisputed fact that A1 was otherwise competent to issue additional passport booklets, thus, it cannot be said that he had issued the additional passport booklets with an intention to make others to believe that same were issued under the authority of any other person. To my mind, the act of A1 even does not fall either of the explanations appended to Section 464 IPC.
(iii) No doubt, the allegations against A7 (Anil Dhawan) was that he had also put his signatures on the passport application registration forms and application forms for miscellaneous services in the name of Kamal Sharma knowingly well that he was not Kamal Sharma and he had also put his signatures in the name of Kamal Sharma while taking the delivery of two passports. Similarly, A8 Naieem Safi also put his signature as Kamal Sharma while taking the delivery of one of the additional passport booklets. However, it has already been held that during trial prosecution has failed to prove that A7 and A8 signed in the name of Kamal Sharma either on the passport application registration forms or application forms for miscellaneous services or passport delivery register and there is no admissible evidence against them, thus, prosecution failed to bring CBI No. 76/08 Page 138 of 149 State through CBI v/s Bibianus Toppo & others home the guilt of A7 and A8 within the four corners of Section 464 IPC.
(iv) Since, prosecution failed to satisfy the ingredients of Section 464 IPC, prosecution also failed to prove the guilt of accused persons for the offence punishable under Section 467/468 IPC.
72. Now coming to the contentions relating to delay in FIR and non-mentioning the name of A3 in the FIR. To my mind, both the contentions are insignificant. Moreover, there is no delay in lodging the FIR as the FIR was lodged as and when the information was received from the source. Similarly, mere fact that the name of A3 is not mentioned in the FIR is not sufficient to prove the innocence of A3 as held in Darshan Singh @ Bhasuri & others v/s State of Punjab (supra).
Lapses in investigation:
73. There are certain lapses in the investigation, a few are as under:
(i). That investigating officer recited in the challan that original passport was issued on August 11, 1999, which is factually incorrect.
(ii) That it was also recited in the challan that A6 had conducted the police verification on the same day i.e. August 11, 1999, CBI No. 76/08 Page 139 of 149 State through CBI v/s Bibianus Toppo & others which is also factually incorrect.
(iii) That no sincere efforts were made to apprehend the persons whose photographs are affixed on the passport/additional passport booklets.
(iv) That if the persons, whose photographs are affixed on the passport/additional pass-ports booklets, obtained the said passport/additional booklets for their own use, no effort was made to find out to whom and how they used to contact. And if the said passport/booklets were obtained by A7 who filled up the forms for such booklets, no effort was made to find out the motive of A7 behind this.
(v) That since the fake passport/additional booklets could be used by anti national elements or terrorists as their identity proof while executing their ill-design, being the premier investigating agency, CBI was duty bound to find out the motive behind getting such passport/booklets in name of fictitious persons. But no such effort was made.
(vi) That no sincere effort was made to collect sufficient cogent evidence to prove who had delivered the prepared booklets.
(vii) That no effort was made to analyse the call details of the accused persons. Needless to say, call details could render immense help to ascertain the modus-operandi of the accused persons.CBI No. 76/08 Page 140 of 149
State through CBI v/s Bibianus Toppo & others
(viii) That no effort was made to know the version of accused persons. Needless to say that the main object of investigation is to find out truth, which can be achieved only after knowing the version of suspects/accused.
74. However, the above lapses are not fatal to the prosecution in any manner to prove the guilt of A1, A2, A3 and A7.
Conclusion:
75. Pondering over the ongoing discussion, I am of the considered opinion that prosecution has miserably failed to bring home the guilt of accused persons namely G.D.Joshi (A4) and Naieem Safi (A8), thus, I hereby acquit both the accused persons from all the charges.
(i) Prosecution also failed to bring home the guilt of accused Anup Singh (A6) beyond the shadow of all reasonable doubts, thus, I hereby acquit him from all the charges.
(ii) However, prosecution has succeeded to bring home the guilt of accused persons namely Bibianus Toppo (A1), Harbhajan Yadav (A2), Ram Chander (A3) and Anil Dhawan (A7) for the offences punishable under Section 120B IPC read with Section 420 IPC and Section 13(2) read with Section 13(1) (d) (iii) of the Prevention of Corruption Act and under Section 12(1) (b) of Passport Act. Accordingly, I hereby hold them guilty thereunder.
CBI No. 76/08 Page 141 of 149State through CBI v/s Bibianus Toppo & others
(iii) Prosecution has also succeeded to bring home the guilt of accused Bibianus Toppo (A1), Harbhajan Yadav (A2) and Ram Chander (A3) for the offence punishable under Section 13(2) read with Section 13(1) (d) (iii) of the Prevention of Corruption Act, 1988, thus, I hereby hold them guilty thereunder.
(iv) Prosecution has also succeeded to bring home the guilt of accused Anil Dhawan (A7) for the offence punishable under Section 420 IPC and under Section 12(1) (b) of the Passport Act beyond the shadow of all reasonable doubts, thus, I hereby hold him guilty thereunder.
(v) However, prosecution failed to prove other charges qua Bibianus Toppo (A1), Harbhajan Yadav (A2), Ram Chander (A3) and Anil Dhawan (A7), accordingly, they stand acquitted qua other charges.
Announced in the open Court on 10th day of April, 2015 (PAWAN KUMAR JAIN) Special Judge-01, CBI, North West Rohini Courts, Delhi CBI No. 76/08 Page 142 of 149 State through CBI v/s Bibianus Toppo & others 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. 76/2008ID No. : 02404R0009592008 FIR No. RC-2(A)/05/SCU- V/SCR-II/CBI, DELHI U/Sec: 120B r/w 419/420/467/468/471/474 IPC 13(2) r/w 13(1)(d) of PC Act 1988 12(1) (b) of Passport Act 1967 and substantive offences thereto Police Station: CBI/SCU-V/SCR-II/New Delhi STATE THROUGH CENTRAL BUREAU OF INVESTIGATION, NEW DELHI VERSUS
1. Bibianus Toppo S/o Late Joseph Toppo, R/o 14 G, Sector 4, DIZ Area, Raja Bazar, Gole Market, New Delhi-01.
......Convict No.1
2. Harbhajan Yadav CBI No. 76/08 Page 143 of 149 State through CBI v/s Bibianus Toppo & others S/o Late Sultan Singh Yadav, R/o H. No. 949/1, Gali No. 4, Ashok Vihar, Gurgaon, Haryana.
......Convict No.2
3. Ram Chander S/o Sh. Maman Ram, R/o J-624, Sardar Colony, Sector 16, Rohini, Delhi-85 ......Convict No.3
7. Anil Dhawan S/o Late Madan Lal Dhawan, R/o 254, DDA Flats, 1st Floor, New Ranjit Nagar, New Delhi-8.
......Convict No.4 Appearance : Ms. Shashi Vishwakarma, Public Prosecutor for CBI Sh. R. Ramachandran, Advocate, counsel for convict no.1 Sh. Anil Gupta, Advocate, counsel for convict no.2 Sh. Sukhvinder Singh, Advocate, counsel convict no.3 Sh. Ashwani Verma, Advocate, counsel for convict no.4 ORDER ON THE POINT OF SENTENCE (ORAL):
CBI No. 76/08 Page 144 of 149State through CBI v/s Bibianus Toppo & others
1. Vide separate judgment dated April 10, 2015, Bibianus Toppo (A1), Harbhajan Yadav (A2), Ram Chander (A3) and Anil Dhawan (A7) have been held guilty for the offences punishable under Section 120B IPC read with Section 420 IPC and Section 13(2) read with Section 13(1) (d) (iii) of the Prevention of Corruption Act and under Section 12(1) (b) of Passport Act. Bibianus Toppo (A1), Harbhajan Yadav (A2) and Ram Chander (A3) have also been held guilty for the offence punishable under Section 13(2) read with Section 13(1)
(d) (iii) of the Prevention of Corruption Act, 1988 and accused Anil Dhawan (A7) has also been held guilty for the offence punishable under Section 420 IPC and under Section 12(1) (b) of the Passport Act.
2. Learned counsel appearing for convicts requests for lenient view on the grounds that they are law abiding citizens and they are the sole bread earners of their respective families. They are also suffering from the agony of trial for the last about one decade.
(i) Besides that counsel appearing for convict Ram Chander submits that convict is 54 years old person and further states that there is no probability of repeating the similar offence by him. It is further submitted that the convict Ram Chander is still serving RPO but presently he has been transferred to RPO CBI No. 76/08 Page 145 of 149 State through CBI v/s Bibianus Toppo & others Lucknow, which shows that the department has pardoned the convict for his act.
(ii) Similarly, counsel appearing on behalf of convict Harbhajan Yadav requests for a lenient view on the ground that convict Harbhajan Yadav is still working in the RPO, Chandigarh which shows that the department has pardoned him for his act. It is further submitted that convict is not involved in any other case except passport scam cases and further submits that during the last 10 years, convict has not been found in any criminal matter, which shows that convict has reformed himself.
(iii) Learned counsel appearing on behalf of convict Bibianus Toppo submits that there is no evidence on record that convict had taken any illegal gratification or any monetary benefits. It is further submitted that convict is aged about 65 years and suffering from various ailments. Convict has only one son, but he is still unemployed, thus convict is sole bread earner of his family.
(iv) Mr. Ashwani Verma, Advocate, counsel appearing for convict Anil Dhawan also requests for a lenient view on the ground that convict has been appearing regularly in the Court and there is nothing on record, which may suggest that he had committed any other offence after filing the charge-sheets in passport scam cases. It is further submitted that both the kidneys CBI No. 76/08 Page 146 of 149 State through CBI v/s Bibianus Toppo & others of father of the convict had already been failed, thus he is on regular dialysis for the last two years. It is further submitted that convict is sole bread earner of his family comprising of his old parents and two small school going kids besides his wife.
3. Per contra, counsel appearing for CBI refuted the said contentions by vehemently arguing that the convicts are involved in numerous passport scam cases and due to their act, passports in form of additional passport booklets had been issued in favour of fictitious persons. It is argued that since passport is an important document to prove the identity and nationality, thus such passports can be misused by anti-national elements. It is further submitted that the convicts had also been convicted in other matters such as CC No. 74/2008, CC No. 56/08, CC No. 11/12 and CC no. 5/12, accordingly, learned Public Prosecutor prays for maximum punishment.
4. I have heard rival submissions made by counsel for both the parties, perused the record carefully and gave my thoughtful consideration to their contentions.
5. In view of the aggravating and mitigating factors as highlighted by counsel for both the parties, I am of the considered opinion that it is not a fit case to impose maximum sentence as prayed by learned Public Prosecutor for CBI. Simultaneously, in view of the aggravating factors as pointed out by counsel for CBI No. 76/08 Page 147 of 149 State through CBI v/s Bibianus Toppo & others CBI, I am also of the opinion that it is also not a fit case to take extreme lenient view as prayed by counsel for the convicts.
6. In view of the aforesaid discussion, I hereby sentence the convict no. 1 to 4 i.e. Bibianus Toppo (convict no.1), Harbhajan Yadav ( convict no.2), Ram Chander (convict no.3) and Anil Dhawan (convict no.4) rigorous imprisonment for a period of two years and a fine of ` 10,000/- each in default further simple imprisonment for a period of six months for the offence punishable under Section120B IPC read with Section 420 IPC and Section 13(2) read with Section 13(1)
(d) (iii) of Prevention of Corruption Act and under Section 12(1)
(b) of Passports Act.
(i) I also sentence convicts namely Bibianus Toppo (convict no.1), Harbhajan Yadav (convict no.2), Ram Chander (convict no. 3) rigorous imprisonment for a period of two years and a fine of ` 15,000/- each in default further simple imprisonment for a period of six months for the offence punishable under Section 13(2) read with Section 13(1) (d) (iii) of the Prevention of Corruption Act, 1988.
(ii) I also sentence convict no. 4 Anil Dhawan rigorous imprisonment for a period of three years and a fine of ` 25,000/- in default further simple imprisonment for a period of nine months for the offence punishable under Section 420 IPC.
CBI No. 76/08 Page 148 of 149State through CBI v/s Bibianus Toppo & others
(iii) I also sentence convict Anil Dhawan rigorous imprisonment for a period of one year and a fine of ` 5,000/- in default further simple imprisonment for the offence punishable under Section 12(1) (b) of the Passports Act, 1967.
7. Benefit of Section 428 Cr.P.C, if any, be given to the convicts. All sentences shall run concurrently.
8. Copy of judgment along with order on the point of sentence be given to the convicts/their counsel free of cost.
9. File be consigned to record room.
Announced in the open Court
on 16th day of April, 2015 (PAWAN KUMAR JAIN)
Special Judge-01, CBI, North West
Rohini Courts, Delhi/sv
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