Delhi District Court
Cbi vs . Shrichand Etc. on 2 November, 2010
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IN THE COURT OF SH. AMAR NATH : SPECIAL JUDGE :
CBI: ROHINI COURTS : DELHI.
CC NO. 16/09
RC NO. DAI-2006-A-0064 CBI/ACB.
CBI Vs. SHRICHAND ETC.
(NAVAL TECHNICAL OFFICERS CGHS)
Date of filing application : 19.01.2010
Reserved for order : 25.10.2010
Date on which order announced : 02.11.2010
ORDER ON APPLICATION UNDER SECTION 227 Cr.P.C.
OF ACCUSED P.D.SHARMA FOR DROPPING OF
PROCEEDINGS.
By this order, I shall decide the application of
accused Padam Dutt Sharma for dropping the proceedings on
the ground that CBI has committed various illegalities while
conducting the investigation and prosecute the case. The RC is
not confirmity with the law of the land established by Registrar
and provisions provided in Criminal Procedure & Special Act.
The consent of the State is not taken as required U/s 6 of the
DSPE Act. Registration of case under Indian Penal Code
instead of registering it under Delhi Co-operative Societies Act
which is a Special Act.
CBI VS. SHRICHAND Etc. (NAVAL TECHNICAL OFFICERS CGHS)
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To substantiate his plea, he relied upon the
judgment of Dr. R. R. Kishore Vs. CBI Criminal Revision
Petition 2006 I AD (Delhi) 545, wherein it was held that if
illegal investigation is brought to the notice of the Trial Court
at the initial stage, then the court ought not to proceed with the
trial but should direct the re-investigation in order to cure the
defect in the investigation. He pointed out the following
illegalities :-
1.Absence of Sanction U/s 6 of the DSPE Act.
2. Absence of Notification U/s 3 of the DSPE Act.
3. Registration of cases under Indian Penal Code instead of registering it under Delhi Co-operative Societies Rules Act which is Special Act and violation of other legal provisions.
CBI has opposed the application by filing the separate reply stating therein that the investigation has been carried out as per the prescribed procedure under law and chargesheet has been filed based upon the evidence collected during the course of investigation and thus there is no legal infirmity while conducting the investigation and then prosecute the accused in the instant case. In so far the judgment of Dr.R.R.Kishore is concerned, the same is inapplicable to the facts and circumstances of the case as in the instant case, no contravention of any legal/statutory provision CBI VS. SHRICHAND Etc. (NAVAL TECHNICAL OFFICERS CGHS) -3- was done either at the time of registration of the case or during investigation or thereafter. There are no provision in DCS Act to deal with the situation when the person commits the offence of forgery, cheating and the conspiracy in connection with the matter relating to co-operative societies under the DCS Act. The said act does not define the offences as mentioned in the Chapter-XVIII in the IPC and of the law relating to the conspiracy which is a subject matter of the chargesheet.
I have heard the arguments and accordingly perused the record.
First & foremost point raised is that DCS Act being Special Law shall prevail upon the General Law i.e. Indian Penal Code. Allegation as set out in the charge sheet are touching the business of the society furnishing false information to RCS by filing false and forged documents, thus, offence U/s 82(3) DCS Act is clearly attracted, therefore the provisions of Indian Penal Code cannot be invoked. He further contended that offence U/s 82 (3) of Delhi Cooperative Societies Act has not been notified by Delhi Government as required by Delhi Special Police Establishment Act. The allegations of giving false recommendations and filing of false and forged documents in the office of Registrar of Cooperative Societies pertaining to the business of society are CBI VS. SHRICHAND Etc. (NAVAL TECHNICAL OFFICERS CGHS) -4- specifically covered U/s 82 (3) of Delhi Cooperative Societies Act but he same has not been invoked.
It is further agitated that since the matter is covered under the provisions of Sec. 82 (3) of DCS Act which completely debars the prosecution without the opportunity of being heard as well as previous sanction of RCS. It is also agitated that offence alleged to have been committed by the accused is punishable under the provisions of Special law, hence the 'provisions' of Indian penal Code being general law cannot be invoked.
On the other hand, it is argued by Ld. PP Sh. Amrit Pal Singh for CBI that DCS Act and Rules are provisions for administration of Co-operative Group Housing Society which do not cover conspiracy to cheat, using forged documents as genuine and forgery for purpose of cheating. Hence, it cannot be said that the chargesheet filed by the CBI is barred due to enactment of Special Law. She has placed reliance upon the judgment of H. N. Risbud Vs. State of Delhi AIR 1955 Supreme Court 196, (FULL BENCH) wherein, it was held that irregularities in investigation do not go to the root of justice, so does not make the chargesheet illegal, therefore it cannot be said that cognizance taken by the court is bad in law.
CBI VS. SHRICHAND Etc. (NAVAL TECHNICAL OFFICERS CGHS) -5- Recently, similar contention has been dealt with by the Apex Court in the matter of State of M.P. Vs. Rameshwar & Ors. 2009 V AD(SC) 37, their Lordships were pleased to make following observations while dealing with aforesaid contention.
Mr. Tankha took us through the MP Co-
operative Societies Act, 1960, in support of his submissions. He submitted that the said Act was a complete self contained Code by itself and provided for different eventualities relating to the administration of Co-operative Societies.
While dealing with these arguments, Hon'ble Supreme Court has observed as follows:-
"Mr.Tankha's submissions, which were echoed by Mr. Jain, that the M.P.Co-operative Societies Act, 1960 was a complete Code in itself and the remedy of the prosecuting agency lay not under the criminal process but within the ambit of Sections 74 to 76 thereof, cannot also be accepted, in view of the fact that there is no bar under the M.P.Co-
operative Societies Act, 1960, to take resort to the provision of the general criminal law, particularly when charge under the CBI VS. SHRICHAND Etc. (NAVAL TECHNICAL OFFICERS CGHS) -6- Prevention of Corruption Act 1988 are invoked."
While dealing with similar contention Hon'ble Supreme Court in K. Ashoka Vs. N.L.Chandrashekar and Ors.(2009) 5 Supreme Court Cases 199 has held as follows:
"D.Cooperative Societies - Karnataka Cooperative Societies Act, 1959 (11 of 1959) - Ss. 111 and 109 - Bar to criminal proceedings, under - Applicability - Held, there is no statutory embargo on court to take cognizance of an offence under the provision of IPC - If allegations in complaint petition or in FIR make out a case under IPC, bar under S.111 of 1959 Act is not applicable - Bar under the section applicable only for offences committed under 1959 Act - Criminal proceedings."
It is further observed in para no.23 of this authority which is as follows:-
"Section 109 of the Act provides for commission of offences under the said Act.
Therein, no statutory embargo has been placed for a Court to take cognizance of an offence under the provision of IPC. If the allegations made in the complaint or in the first CBI VS. SHRICHAND Etc. (NAVAL TECHNICAL OFFICERS CGHS) -7- information report make out a case under IPC, Section 111 of the Act to which our attention has been drawn, would constitute no bar for maintenance thereof being applicable only in respect of offences committed under the said Act. The said statutory interdict therefore cannot be extended in regard to commission of an offence under the other Act."
After applying the ratio of judgments of Apex Court (s), I do not find any force in the aforesaid contention of the Ld. Defence counsel that offences are liable to be tried under DCS Act only by invoking the provisions of the said Act, therefore, the matter requires to be referred for reinvestigation/fresh investigation. It needs to be noticed that there is no bar to take resort to the provision of General Criminal Laws in DCS Act also. In this case, accused persons including the applicant were chargesheeted for the commission of offences of criminal conspiracy, cheating, forgery for the purpose of cheating, using as genuine a forged document and criminal misconduct. These offences are nowhere defined or dealt with in DCS Act nor did the provisions of the said Act put a bar to proceed under the IPC & PC Act, if omission and commission on the part of an accused attracts penal provisions under these Acts. Even otherwise under CBI VS. SHRICHAND Etc. (NAVAL TECHNICAL OFFICERS CGHS) -8- section 26 of the General Clauses Act, the accused could be booked for the provisions of any other Law attracted.
It is urged that Co-operative Society Act 1972 is a complete self contained statue, thus, the provisions of the Indian Penal Code cannot be adhered to. He further urged that the Delhi Co-operative Societies Act 1972, provides for a well defined system of addressing the issues relating to various private co- operative societies and it contains the provisions of fine, appeal, punishment and as such the resort to the provisions of the IPC by the CBI is wholly illegal.
Significant to mention here that the legislature in its wisdom deemed fit to put the restriction/prohibition regarding the applicability of other acts which could be seen from the provision of Sec. 91 of the DCS Act 1972 which provides "the provisions of the Companies Act 1956 was not applied to Co- operative Societies Act. But such restriction/prohibition is nowhere mentioned in DCS Act, 1972 which debars the applicability of IPC or PC Act under which the accused persons had been charged.
The plain reading of the Act makes clear that the Act has been enacted by the Parliament with a view to provide for CBI VS. SHRICHAND Etc. (NAVAL TECHNICAL OFFICERS CGHS) -9- registration, management, smooth functioning, supervision and control of the Registrar over a co-operative society. Provisions are made for redressal of grievances concerning dispute touching constitution, management or business of a co-operative society. The Tribunal has been constituted to hear appeals or revision against the orders of the Registrar. Lt. Governor of Delhi is also empowered to hear appeal and revisions against the orders passed by the Registrar or Tribunal as the case may be. Offences which are coined, provide for instances of deviations from the provisions of the Act. As indicated above, those abrasions are minor offences, for which prosecution can be launched before Magistrate of first class with previous sanction of the Registrar. Offences defined under the Act do not encompass human behaviour, which had been made penal under provisions of the Indian Penal Code as well as under Prevention of Corruption Act. Suffice to say that the Delhi Co-operative Society Act itself does not impose any bar to take resort in the provision of General Criminal Laws.
Another plea of the accused is that the non-compliance of Sec.3 of DSPE Act 1946 vitiates entire investigation. As per Sec. 3 of DSPE Act 1946 the Central Government made notification in the official gazette to specify the offences or classes of offences which are to be investigated by Delhi Special Police CBI VS. SHRICHAND Etc. (NAVAL TECHNICAL OFFICERS CGHS)
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Establishment. It is urged that the Act confers the jurisdiction on the CBI in relation to the investigation by the Central Government U/s 3 of the Act and such offences as notified are mentioned in DSPE Act 1946. It is further urged that offences covered by the Sec. 3 of the Act do not include the offences under the Co- operative laws. Thus, the investigation done by the CBI for the co-operative societies is in violation of Sec.3 as it had no jurisdiction to conduct the investigation. Offences mentioned in the charge sheet are all notified offences U/s 3 of the DSPE Act, hence no fresh notification is necessary.
Another line of argument of the accused is that investigation is bad in law for non-compliance of Sec.6 of the DSPE Act 1946. The consent of the government of the State is required to exercise the power and jurisdiction in any area in State. It is argued that there is no state within the meaning of Sec.6 of DSPE Act 1946 and as such the CBI had no jurisdiction to conduct the investigation in the absence of Sanction U/s 6 of the Act. The sanction of Delhi Government is not necessary as investigation of this case has been referred to CBI by the Hon'ble High Court of Delhi vide Civil Writ Petition no. 10066/2004 directing CBI to conduct a thorough investigation into the matter relating to 135 Co-operative Group Housing Society. Investigation has been carried out by the CBI only pursuant to the order of the Hon'ble High Court. Section 6 of CBI VS. SHRICHAND Etc. (NAVAL TECHNICAL OFFICERS CGHS)
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the Act does not apply when the court directs CBI to conduct investigation as held in catena of judgments of Hon'ble High Courts as well as Apex Court.
Constitution Bench of the Supreme Court comprises of Five Judges has dealt with the aforesaid proposition in State of West Bengal & others Vs. Committee for protection of Democratic Rights 2010 III AD (SC) 45. Relevant portion is reproduced as follows:-
(B) - Delhi Special Police Establishment Act, 1946-Sec.4, 5 and 6 - Complaint along with a large number of a party workers killed - Doctrine of Separation of Powers
- Power of judicial review conferred on the High Court
- Issue - Whether the High Court, in exercise of its jurisdiction under Article 226 of the constitution of India, can direct CBI to investigate a cognizable offence, which is alleged to have taken place with in the territorial jurisdiction of a State, without the consent of the State Government- HELD-Yes-Power of judicial review being an integral part of the basic structure of the Constitution, no Act of Parliament can exclude or curtail the poers of the Constitutional Courts with regard to the enforcement of fundamental rights-Any direction by the Supreme Court or the High Court in CBI VS. SHRICHAND Etc. (NAVAL TECHNICAL OFFICERS CGHS)
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exercise of power under Article 32 or 226 to uphold the Constitution and maintain the rule of law cannot be termed as violating the federal structure-Power of the High Court under Article 226 of the Constitution cannot be taken away, curtailed or diluted by Section 6 of the Special Police Act-Being the protectors of civil liberties of the citizens, this court and the High Courts have not only the power and jurisdiction but also an obligation to protect the fundamental rights, guaranteed by Part III in general and under Article 21 of the Constitution in particular, zealously and vigilantly.
Similar view has already been taken in the order dated 17.9.2007 passed by Hon'ble Mr. Justice Sh.S.N.Dhingra in Criminal MC No. 2784 of 2007 wherein his Lordship was pleased to make the following observations:-
"The investigation was referred to CBI in this case by the High Court. One investigation of a case is given by the High Court to CBI under its inherent powers, permission from State Government is not required. High Court is competent enough to refer a mater for investigation to CBI.
Investigation is done by police under Cr.P.C. There is no CBI VS. SHRICHAND Etc. (NAVAL TECHNICAL OFFICERS CGHS)
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such thing as investigation under Delhi Cooperative Societies Act. In fact lot of bungling, corruption and registration of fake societies was found and the entire episode was investigated. Therefore, after investigation, the chargesheet had to be filed by CBI in respect of all those crimes, commission of which was revealed after investigation. It is also settled law that an act of accused may attract offences under different penal provisions and he can be charged under all such penal provisions."
This case was registered and investigated by CBI pursuant of directions given by Hon'ble High Court of Delhi. Hon'ble Supreme Court and various Hon'ble High Courts have held that provisions of Section 3, 4, 5 and 6 of DSPE Act do not apply when the Hon'ble Supreme Court/High Court directs CBI to conduct investigation. I find support of my view from the following judgments; State of West Bengal Vs. Sampat Lal AIR 1985 SC 195, C A Gopalan Vs. Inspector General of Police 1993 Cr L J 1543, Maniyeri Madhwan Vs. Sub Inspector of Police, 1994 Cr L J 3063. Yashwant Vs. State of Maharashtra 1995 Cr L J 2228. Dharmistha Ben Narindera Sunh Jala Vs. State of Gujarat 1997 Cr L J 3866.
Hon'ble Supreme Court in Naresh Kavarchand Khatri Vs. State of Gujarat & Ans 2008 8 SCC 300 has held CBI VS. SHRICHAND Etc. (NAVAL TECHNICAL OFFICERS CGHS)
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that power of the Court to interfere with an investigation is limited. The Court should not interfere in the matter at the initial stage in regard thereto. The police authorities, in terms of section 156 of the Code of Criminal Procedure, exercise a Statutory Power.
Hon'ble Mr. Justice Sanjiv Khanna has recently decided Writ Petition (Criminal) NO.188/2010 on 31.8.2010 wherein Law of conspiracy dealt in detail after relying upon the judgment of Hon'ble Supreme Court titled as Mohd. Amin Vs. CBI 2008 (14) Scale 240and thus, observed as follows:
"The principles which can be deduced from the abovenoted judgments are that for proving a charge of conspiracy, it is not necessary that all the conspirators know each and every detail of the conspiracy so long as they are co-
participators in the main object of conspiracy. It is also not necessary that all the conspirators should participate from the inception of conspiracy to its end. If there is unity of object or purpose, all participating at different stages of the crime will be guilty of conspiracy."
Since the offences as per the charge-sheet were allegedly CBI VS. SHRICHAND Etc. (NAVAL TECHNICAL OFFICERS CGHS)
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committed under the Penal Code as well as under the Prevention of Corruption Act, so it cannot be said that the investigation undertaken by the CBI was illegal. Insofar, the citations relied upon by the Ld. Counsel is concerned, there is no dispute with regard to the proposition of law laid down therein, however, every case has its own facts and circumstances, ratio of law laid down in particular authority is to be applied according to the facts and circumstances of that particular case. Facts and circumstances of the case in hand have already been discussed in earlier part of my order which are entirely different than that the facts and circumstances of authorities cited by the Ld. Defence counsel.
In view of the aforesaid discussions, the present application is devoid of any merit as the same has been moved with the motivation to delay the progress of trial. In the result, application stands dismissed with costs of Rs.6000/- to be deposited with DLSA.
Announced in the open court on 2nd Day of November, 2010. (Amar Nath) Spl. Judge, CBI-II Rohini Delhi CBI VS. SHRICHAND Etc. (NAVAL TECHNICAL OFFICERS CGHS)