Delhi District Court
Cbi vs . Ramesh Chandra (Janki Kunj Cghs) on 23 July, 2010
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IN THE COURT OF SH. AMAR NATH : SPECIAL JUDGE :
CBI: ROHINI COURTS : DELHI.
RC No. RC-21 E/2005/EOW-II/NEW DELHI
CC NO. 12/08
CBI Vs. RAMESH CHANDRA (JANKI KUNJ CGHS)
Date of filing application : 04.11.2009
Date on which reserved for orders : 21.07.2010
Date on which order announced : 23.07.2010
ORDER ON APPLICATION UNDER SECTION 173 (8) Cr.P.C. OF
PREM NARAIN SHARMA
The accused P. N. Sharma has moved an application U/s
173(8) of the Code of Criminal Procedure Code seeking re-investigation
of the case on the ground that CBI has committed various illegalities while
conducting the investigation and prosecuting the case. He placed reliance
on 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. The accused heavily
emphasized upon the certain illegalities committed during the course of
CBI Vs.Ramesh Chandra (JANKI KUNJ CGHS)
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investigation and the same are enumerated in the application.
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 charge sheet has been filed based upon the evidence collected during the course of investigation and after obtaining requisite sanction from the Competent Authority to prosecute public servant, thus there is no illegality in any manner. Investigation of the instant case conducted by the Inspector of Police/CBI who is competent to investigate the case as required u/s 17 of PC Act. Re-investigation is beyond the scope of Section 173(8) Cr.P.C.
I have heard the arguments and accordingly perused the record. In order to better appreciation, let me examine the brief facts of the case.
Delhi College of Engineering Teachers CGHS was registered on 13.04.1971 was registered vide registration no. 22(GH) with 28 promoter CBI Vs.Ramesh Chandra (JANKI KUNJ CGHS) -3- members having its address at Delhi College of Engineering, Kashmiri Gate, Delhi. As per bye-laws of the society, membership of the society was restricted to teachers of Delhi College of Engineering. On 04.08.1979, this society was wound up as it failed to muster its strength to 50 members.
In the year 2003, Arjun Singh impersonated as P. K. Jain; President of the society and submitted the application to RCS raising strength of the society to 140 members. It was resolved to wind up the society in General Body Meeting held on 2.3.1979. In an extra ordinary General Body Meeting convened by the Management Committee on 18.2.2003 wherein earlier AGM resolution dated 2.3.1979 was formally withdrawn, authorising Sh.P.K.Jain to file an appeal before RCS to allow this society for verification list of member for onward transmission to DDA for allotment of land. The name of the society from Delhi College of Engineering Teachers CGHS was allowed to change as Janki Kunj CGHS Ltd. by the official of Office of RCS in criminal conspiracy with certain private persons and forwarded the list of the members to the DDA for allotment. Vinod Kumar Bhardwaj recorded a noting on 19.06.2003 to the effect that the file of the society was not traceable and sought approval for its reconstruction with the help of the available records, Ramesh Chandra endorsed the said proposal submitted the said file to Rakesh Bhatnagar who placed it before Narain Diwakar, the then RCS. Accused Narain Diwakar CBI Vs.Ramesh Chandra (JANKI KUNJ CGHS) -4- ordered reconstruction of the file. Accordingly, letter dated 13.08.2003 was prepared by Vinod Kumar Bhardwaj and was sent to President/Secretary of the society for submission of record of the society for reconstruction. Vinod Kumar Bhardwaj vide his noting dated 15.09.1993 suggested appointment of M. P. Bajaj as Inspecting Officer who showed his inability to conduct the inspection. Then, N. D. Kaushik was deputed for the said purpose with approval of accused Narain Diwakar vide order dated 16.01.2004. N. D. Kaushik stated false facts in his report to the effect that he visited the office of the society and met Sushil Kumar; Secretary of the society and verified the records. Infact, there was no person with the name of Sushil Kumar as Secretary of the society. Accused P. N. Sharma had forged signatures of Sushil Kumar. Record of Delhi College of Engineering CGHS Ltd was available on website of RCS which was not taken into account at all. Narain Diwakar had ignored the fact that the society had been liquidated in 1979 itself approved change of name of the society and list of 140 bogus members on 12.03.2004 without its revival.
As per minutes of the General Body Meeting purportedly held on 16.09.2003, P. K. Jain was shown as elected President, R. K. Gautam as Vice President, Sushil Kumar as Secretary, Smt. Sushma Kaur as Executive Member(Woman), Smt. Kalawati as Executive Member(Woman), Mohinder Singh as Executive Member, M.C.Arya as Treasurer of the CBI Vs.Ramesh Chandra (JANKI KUNJ CGHS) -5- society.
During investigation, it was revealed that all of them were fictitious and non-existent persons. As per noting submitted by Vinod Kumar Bhardwaj, 59 members were shown to have resigned but resignation letters in respect of only 28 members were available. V.K.Gupta and J. C. Bhatia were shown to have resigned on 17.04.1978 & 14.04.1978 but their names figured in the new list. Though, the society liquidated in 1979, yet S. K. Majumdar, B. N. Mishra, P. K. Kundu, R. N. Chaterjee, R. P. Kapur and S. P. Dubey were shown members of Managing Committee till 1980 in the minutes of the meeting purportedly held on 18.07.1980. All the 30 members were refunded with their share money in 1979 itself. These facts were not taken into account by accused Narain Diwakar when he approved the change of name of the society and list of 140 bogus members.
Accused P.N.Sharma and Arjun Singh had forged the applications and affidavits of the members. P. N. Sharma forged signature of Sushil Kumar on affidavit dated 14.02.2004 besides the fact that he had forged 71 affidavits and Arjun Singh had forged 19 affidavits, out of total 140 affidavits submitted to RCS office, GEQD has confirmed the aforesaid facts. The society so revived was forwarded to DDA for allotment of land at cheaper rate. All these facts are suggest that there was conspiracy between CBI Vs.Ramesh Chandra (JANKI KUNJ CGHS) -6- Narain Diwakar; official of RCS and others and in pursuance of that conspiracy, various illegal acts were done.
The main thrust of the accused is that DCS Act being Special Law shall prevail upon the General Law i.e Indian Penal Code. Allegations 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 information and filing of false and forged documents in the office of Registrar of Cooperative Societies pertaining to the business of society are specifically covered U/s 82(3) of Delhi Cooperative Societies Act but the same has not been invoked.
It is further agitated that since the matter is covered under the provisions of Section 83(2) of DCS Act completely debarring the prosecution of the accused without previous sanction of RCS after offering an opportunity to represent his case. 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.
CBI Vs.Ramesh Chandra (JANKI KUNJ CGHS) -7- To support his contentions, he heavily placed reliance upon following judgments :-
1. State of Maharashtra Vs. Laljit Rajshi Shah & Ors. 2000 Supreme Court AIR PAGE 937,
2. Suresh Nanda VS. CBI Criminal Appeal no. 179/2008,
3. Greater Mumbai Co-operative Bank Ltd Vs. United yarn Textile & Ors. 2007 (5) SCALE 366,
4. Belsund Sugar Co-operative Ltd. Vs. State of Bihar (AIR 1999 Supreme Court 3125).
5. Divine Retreat Center Vs. State of Kerala SCC 2008 Scale 532.
6. Hasan Bhai Vali Bhai Qureshi Vs. State of Gujarat AIR 2004 SC 2078.
On the other hand, it is argued by Ld. PP Dr. Padmini 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. In so far the Dr. R.R. Kishore' case 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 was done either CBI Vs.Ramesh Chandra (JANKI KUNJ CGHS) -8- at the time of registration of the case or during investigation or thereafter.
The aforesaid decision delivered by Full Bench of Hon'ble Supreme Court was followed/affirmed by the Apex Court in Union of India Vs. Prakash P. Hinduja (2003) 6 SCC 195. The judgment of Hon'ble Supreme Court in Suresh Nanda's case & Greater Bombay Co- operative Bank's case are not applicable in the present case as different issue was involved in these cases. The observation of the Hon'ble Supreme Court in case of Greater Bombay Co-operative Bank Ltd, was given in the limited perspective regarding the recovery of dues by co-operative Bank on the matter, whether co-operative banks come in the definition of Company or not. Whereas in the case of Suresh Nanda's, it was held that the Passport Act is special enactment, therefore provision of Cr.P.C do not apply.
In Divine Retreat Center, the lordships have observed that High Court should desist to direct the investigative agencies to investigate on the ambiguous and anonymous complaints of the petitioners. But regard must be had to the fact that there is nothing in the judgment that Hon'ble High Court has no power to direct any investigative agency to investigate the matter. Hence, the judgments cited by the applicant/accused are not applicable to the facts of the present case. CBI Vs.Ramesh Chandra (JANKI KUNJ CGHS) -9- Ld. Defence Counsel further argued that furnishing of false information to a public servant or producing forged documents in evidence are offences defined U/s 172 to 188 and Sections 193 to 196 of IPCfor the prosecution of which there is bar under Section 195 Cr.P.C. CBI has filed the charge sheet U/s 420/468/471 r/w 120 B of Indian Penal Code besides the provisions of P.C.Act. Infact, it has been done to avoid the embargo of Sec.83(3) of the Act.
In K.Shamrao & Ors. Vs. Assistant Charity Commissioner AIR 2003 SC 1828 wherein it has been held that offence of giving false information to public servant is specifically covered U/s 177 & 182 of the IPC. Registrar Co-operative Societies is public office hence these sections are required to be invoked. However, the same have not been invoked to avoid the embargo U/s 195(1)(a)(i) Cr.P.C 1973.
The Hon'ble Supreme Court in the matter of State of M. P. Vs. Rameshwar & Ors. 2009 V AD(SC) 37 has dealt with aforesaid proposition. Relevant portion of the judgment is as under :-
"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 aforesaid contention, Hon'ble Supreme Court CBI Vs.Ramesh Chandra (JANKI KUNJ CGHS)
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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 Prevention of Corruption Act 1988 are invoked."
While dealing with similar line of contention, Hon'ble Supreme Court in K. Ashoka Vs. N L Chandrashekar and Ors (2009) 5 Supreme Court Cases 199 has affirmed/followed the same view. Relevant portion of the judgment is as under:
"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 provisions 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."
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In paragraph no.18 of this judgment, it has been observed as under : -
"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 provisions of IPC. If the allegations made in the complaint or in the first information report make out a case under the 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 any 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 CBI Vs.Ramesh Chandra (JANKI KUNJ CGHS)
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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 section 26 of the General Clause Act, the accused could be booked for the provisions of any other Law attracted.
Further in view of State of Maharashtra Vs. Laljeet Rajsi Shah & Ors. 2000 Supreme Court AIR page 937 and 'Anil Bhai M. Patel Vs. Surya Pur Bank Agent 2007 Vol. III AD (SC) 773, it is urged that the Co- operative Society Act 1972 is a complete self contained statue, so the provisions of the said Act have to followed and that the provisions of Indian Penal code cannot be adhered to. He further urged that the Delhi Co- operative Societies Act 1972, provides 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. I have gone through the judgments cited by the accused. The facts and the contexts in which such judgments were delivered are entirely different than the present context, hence, the plea qua non-applicability of Indian Penal Code is misconceived.
I have also gone through The Delhi Cooperative Societies Act, CBI Vs.Ramesh Chandra (JANKI KUNJ CGHS)
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1972. As per the preamble of the Act, it was enacted to consolidate and amend the laws relating to Cooperative Societies in Union Territory of Delhi. Section 3 of the Act empowers the Lt. Governor of Delhi to appoint a person to be the Registrar Cooperative Societies for Union Territory of Delhi and to appoint other persons to assist him. Section 4 of the Act specifies the Societies, which may be registered under section 9 of the Act. A registration certificate shall be issued to that society by the Registrar, as provided in Section 10 of the Act. Rights and liabilities of the members of Cooperative Society are defined in Chapter-III of the Act. Chapter-IV of the Act deals with provisions relating to management of a Cooperative Society. Section 32 of the Act empowers the Registrar to supersede managing committee of the society in given situations. Privileges of co-operative society are defined in Chapter-V of the Act. Provisions are made about properties and funds, which a Cooperative Society may possess, in Chapter VI of the Act. Audit enquiry, inspection and issues relating to surcharge are enacted in the provisions of Chapter VII of the Act. Settlement of disputes, touching Constitution, management or business of a Cooperative Society are to be governed under provisions of Section 60 of the Act, which can be referred to an arbitrator by the Registrar, as contemplated by Section 61 of the Act. Chapter-IX of the Act provides the procedure for winding up of the Cooperative Society, appointment of a liquidator and powers being exercised by him. Registrar is empowered to cancel registration of CBI Vs.Ramesh Chandra (JANKI KUNJ CGHS)
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Cooperative Society under section 69 of the Act. Chapter-X provides for execution of awards, decrees, orders and decisions made under the Act. Section 76 enlists the orders which are appealable. Cooperative Tribunal is appointed by the Lt. Governor under provisions of Section 78 of the Act, who has powers of hearing appeals and revision. Lt. Governor is also empowered to revise the orders, as contemplated by Section 80 of the Act. Section 82 of the Act defines the "offences", which provisions are reproduced below :- "82. Offences. -- (1) Any person other than a cooperative society carrying on business under any name or title of which the word "cooperative", or its equivalent in any Indian Language, is part, without the sanction of the Lt. Governor shall be punishable with fine which may extend to two hundred rupees and in the case of a continuing breach with a further fine which may extend to five hundred rupees for every day during which the breach is continued after conviction for the first such breach.
(2) Any member or past member or the nominee, heir or legal representative of a deceased member of a cooperative society who contravenes the provisions of Section 36 and 37 by disposing of any property in respect of which the society is entitled to have a first charge under that section or do any other act to the prejudice of such claim, shall be punishable with fine which may extend to five hundred rupees.
(3) A cooperative society or an officer or member thereof willfully making a CBI Vs.Ramesh Chandra (JANKI KUNJ CGHS)
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false return or furnishing false information, or any person willfully or without any reasonable excuse disobeying any summons, requisition or lawful written order issued under the provisions of this Act or willfully not furnishing any information required from him by a person authorised in this behalf under the provisions of this Act, shall be punishable with fine which may extend to two hundred rupees.
(4) Any employer who, without sufficient cause, fails to pay to a co- operative society the amount deducted by him under section 44 within a period of fourteen days from the date on which such deduction is made shall, without prejudice to any action that may be taken against him under any law for the time being in force be punishable with fine which may extend to five hundred rupees.
(5) Any officer or custodian who willfully fails to hand over custody of books, records, cash, security and other property belonging to a co-operative society of which he is an officer or custodian, to a person entitled under section 33, 53, 54, 55 or 66 shall be punishable with fine which may extend to two hundred rupees and in the case of a continuing breach with a further fine which may extend to five hundred rupees for every day during which the breach is continued after conviction for the first such breach. (6) Any person who fraudulently acquires or abets in the acquisition of any such property of which is subject to a charge under sections 36 and 37 shall be punishable with fine which may extend to two hundred rupees. CBI Vs.Ramesh Chandra (JANKI KUNJ CGHS)
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"No Court inferior to that Court of a Magistrate of first class can take cognizance of an offence, enacts the provisions of section 83 of the Act. Sub-section (2) of said section puts an embargo, wherein it is enacted that no prosecution would be instituted under this Act, without previous sanction of the Registrar and such sanction shall not be given without giving the person concerned a reasonable opportunity to represent his case.
The plain reading of the Act makes clear that the Act has been enacted by the Legislation with a view to provide for 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 coined 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 CBI Vs.Ramesh Chandra (JANKI KUNJ CGHS)
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that the Delhi Cooperative Societies Act itself also does not impose any bar to take resort in the provisions 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 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.
In so far the plea of defence counsel regarding pendency of writ petition bearing no.18/2008 in the Apex court is concerned; firstly, it has not been decided yet, secondly, no order regarding the stay of proceedings qua the present case either from the Hon'ble Apex Court or High Court has been shown or produced. Moreover, it has not been shown that in the said writ petition, if any prayer was made by the accused/applicant to stay the CBI Vs.Ramesh Chandra (JANKI KUNJ CGHS)
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proceedings of this case. When, no such prayer for grant of stay of this case has been made by the accused before the Hon'ble Apex Court then, accused cannot seek the stay of the proceedings of the present case in an indirect manner. AIR 2001 Supreme Court 2856 titled SatyaNarain Sharma Vs. State of Rajasthan is relied upon. Relevant portion is reproduced as under:-
"(A) Prevention of Corruption Act (49 of 1988), S. 19 - Stay of trial - Trial of public servant for corruption charges - No stay can be granted by Court by use of any power -
This is also applicable to High Court when it exercises inherent jurisdiction under S. 482.
Cr.P.C."
The last limb of the 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 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. Section 6 of 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 CBI Vs.Ramesh Chandra (JANKI KUNJ CGHS)
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as Apex Court.
Larger 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-
Complainant along with a large number of a party workers were attacked-Many 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 within 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 powers of the Constitutional Courts with regard to the enforcement of fundamental rights-Any direction by the Supreme Court or the High Court in 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 CBI Vs.Ramesh Chandra (JANKI KUNJ CGHS)
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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 taken in the order dated 17.09.2007 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. Once 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 matter for investigation to CBI.
Investigation is done by police under Cr.P.C. There is no 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 CBI Vs.Ramesh Chandra (JANKI KUNJ CGHS)
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under all such penal provisions."
In Cherrian Vs. Union of India (1992) 1 SCC 397, the Hon'ble Supreme Court directed CBI to take up the investigation of particular case without directing the State concerned to accord consent.
The plea of Ld. Defence Counsel is that Section 63 of the Act provides winding up order may be cancelled at any time and further that as per Rule 105 of the DCS Rules, 1973, there is automatic revival of the society, if liquidation proceedings are not completed within the period of three years, though do not call for any comments but it cannot be ignored more particularly when recalling of the liquidation order(s) is based on the allegations of conspiracy.
Undoubtedly, the court has ample power U/s 173(8) Cr.P.C to order for further investigation in a given situation. The scheme of Sec. 173(8) Cr.P.C makes it abundantly clear that even if the charge sheet is submitted, further investigation, if called for is not precluded. 2002(2) Crimes 159 SC is relied upon. The question which arises for determination is whether an application can be made by the accused requesting for further investigation under the aforesaid provisions and the same can be ordered on the facts & circumstances of the particular case so demands.
In Hasan Bhai Vali Bhai Qureshi Vs. State of Gujarat AIR 2004 SC 2078, it was observed that Sub-Section (8) of 173 of the Code permits further investigation, and even dehors any direction from the court as such, it is open CBI Vs.Ramesh Chandra (JANKI KUNJ CGHS)
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to the police to conduct proper investigation, even after the Court took cognizance of any offence on the strength of a police report earlier submitted. All the more so, if as in this case, the Head of the Police Department also was not satisfied of the propriety or the manner and nature of investigation already conducted.
On reading the judgment (Supra), it makes clear that the proposition with regard to right of the accused to seek further investigation has not been dealt with. The prerogative of further investigation is available to the prosecution and not to the accused. 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 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 CBI Vs.Ramesh Chandra (JANKI KUNJ CGHS)
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of the Code of Criminal Procedure, exercise a Statutory Power.
Re-investigation or fresh investigation is out of the scope of Section 173 (8) of Cr.P.C. In this regard, reliance is placed on K. Chandrasekhar Vs. State of Kerala and Ors., 1998(2) RCR (Criminal) 719 : (1998(5) SCC 223). It was, inter alia, observed as follows :-
"24. The dictionary meaning of "further" (when used as an adjective) is "additional; more; supplemental". "Further"
investigation therefore is the continuation of the earlier investigation and not a fresh investigation or reinvestigation to be started ab initio wiping out the earlier investigation altogether. In drawing this conclusion we have also drawn inspiration from the fact that sub-section (8) clearly envisages that on completion of further investigation the investigating agency has to forward to the Magistrate a "further" report or reports - and not fresh report or reports
- regarding the "further" evidence obtained during such investigation."
Further in Ramachandran Vs. R.Udhayakumar, AIR 2008 (SC) 3102 :
2008 Cr.L.J. 4309, it was held as follows"
"CriminalProcedure Code, Section 173(2) - Criminal Procedure Code, Section 173(8) - Fresh investigation, Re- investigation and further investigation - Distinction - After completion of investigation under Section 173(2) Cr.P.C., Police has right to further investigation under Section 173(8) Cr.P.C but not fresh investigation or re-investigation
- Directions of the High Court for re-investigation or fresh CBI Vs.Ramesh Chandra (JANKI KUNJ CGHS)
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investigation are clearly indefensible. 1998(2) RCR (Crl.) 719 (SC) relied."
Since the offences as per the charge-sheet were allegedly 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 has 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 has no merits 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.5000/- to be deposited with DLSA.
Announced in the open court on 23rd day of July, 2010.
(AMARNATH) SPL. JUDGE : CBI-II ROHINI : DELHI CBI Vs.Ramesh Chandra (JANKI KUNJ CGHS)