Delhi District Court
Cbi vs . 1) Avinash Chander Garg on 23 February, 2017
IN THE COURT OF SH. BRIJESH KUMAR GARG
SPECIAL JUDGE:CBI01: CENTRAL: TIS HAZARI, DELHI
Filing No.: 124248/2008
Registration No.: 532328/2016
CNR No.: DLCT01000627/2008
RC : 4(E)/2006
PS : CBI/EOUV/New Delhi
U/s: Section u/s 120B r/w
Section 217/420 of IPC
and Sec. 13(2) r/w
Sec. 13(1)(d) of
The Prevention of
Corruption Act 1988.
CBI Vs. 1) Avinash Chander Garg
S/o Late Sh. H.C.Garg,
R/o 4221, Gali Ahiran,
Paharidhiraj, Sadar Bazar,
Delhi110 006.
2) Gopal Krishan Aggarwal
S/o Late Sh. V.K.Aggarwal,
R/o 2496, Gali Kashmiriyan,
Sarak Prem Narayan, Churiwalan,
Bazar Sita Ram, Delhi.
3) Mamta Nehra
D/o Late Sh. Babu Ram Nehra,
R/o 448, Gali Sheesh Mahal,
Bazar Sita Ram, Delhi.
4) Naresh Shekhri
S/o Late Sh. Hari Dev,
CBI Vs. A.C.Garg etc. (RC 4(E)/2006) Page 1 of 133 Special Judge, CBI01, Central, Delhi
R/o 1656, Hemant Garh,
Bazar Sita Ram, Delhi.
5) Sri Krishan Vashisth
S/o Late Sh. Tota Ram Vashisth,
R/o A45, 1st Floor, Shakarpur,
Near Sanjay Park, Delhi.
6) Kishan Lal
S/o Late Sh. Puran Chand,
R/o 2785, Gali Arya Samaj,
Bazar Sita Ram, Delhi.
7) Abhinav Aggarwal
S/o Sh. G.K. Aggarwal,
R/o 2496, Gali Kashmiriyan,
Sarak Prem Narayan, Churi walan,
Bazar Sitaram, Delhi.
Date of Institution : 29.09.2008
Judgment Reserved on : 09.02.2017
Judgment Delivered on : 23.02.2017
J U D G M E N T
FACTS OF THE CASE
1. It has been stated in the charge sheet that on the directions of the
Hon'ble High Court of Delhi, dated 20.04.2006, in Writ Petition (Civil)
No. 4582/2003, in case titled as, "Kalyan Sanstha Vs. Union of India &
Others", the CBI was directed to conduct an inquiry into the alleged
CBI Vs. A.C.Garg etc. (RC 4(E)/2006) Page 2 of 133 Special Judge, CBI01, Central, Delhi
nexus between MCD officials, builders / owners and politicians, which
facilitated large scale unauthorized constructions in various parts of
Delhi.
2. On the directions of the Hon'ble High Court, a preliminary inquiry
was entrusted to SI Sunil Kumar, who submitted his report, dated
27.07.2006, on the basis of which, a regular case was registered on
27.07.2006 against accused A.C.Garg, the then Executive Engineer
(Building), Sadar Paharganj Zone, Delhi and S.A.Khan, the then
Assistant Engineer (Building), Sadar Paharganj Zone, MCD, Delhi,
other unknown officials of Sadar Paharganj Zone, MCD, Delhi and
some private persons.
3. It is further stated in the chargesheet that during the relevant
period, Building Section of Sadar Paharganj Zone, MCD, Delhi, was
consisting of six wards, falling within the jurisdiction of various police
stations and accused A.C.Garg (A1) was working as Executive
Engineer (Building), Sadar Paharganj Zone, MCD, Delhi, for the period
w.e.f. 25.08.2004 to 19.12.2005 and he simultaneously worked as
Assistant Engineer (Building), for the period, w.e.f. 08.07.2005 to
CBI Vs. A.C.Garg etc. (RC 4(E)/2006) Page 3 of 133 Special Judge, CBI01, Central, Delhi
09.04.2005.
4. It is further stated in the chargesheet that accused A.C.Garg (A1)
was dismissed from the service on 07.04.2006 and was subsequently
compulsory retired vide orders dated 27.04.2007. He unauthorizedly
retained 15 files relating to the unauthorized constructions at different
premises in his area, even after his dismissal from service and did not
hand over the same to the Office Incharge (Building) for further
necessary action, for ulterior motives. He ultimately returned these
files in the month of May 2006, only after written communications by
the office of the Executive Engineer (Building), Sadar Paharganj Zone,
MCD, Delhi, as these files were required by the CBI, for inquiry
purposes.
5. It is further stated in the chargesheet that 15 files of unauthorized
constructions were retained by accused A.C.Garg (A1) in his personal
custody, without any justifiable reason and demolition orders were
passed in these files. It is further stated that the relevant entries
regarding the passing of such demolition orders in the 'Misil Band
Register' could be made only after receipt of these files from accused
CBI Vs. A.C.Garg etc. (RC 4(E)/2006) Page 4 of 133 Special Judge, CBI01, Central, Delhi
A.C.Garg (A1), in May 2006, which ultimately saved the concerned
properties from demolition action.
6. It is further stated in the chargesheet that property No. 27472748,
Gali Arya Samaj, Bazar Sita Ram, Delhi, measuring about 335 sq.
yards, which is the rear / eastern portion of property No. 27452748,
Gali Arya Samaj, Bazar Sita Ram, Delhi, was initially owned by Shri
Subash Chand Goel & Sons (HUF) and in pursuance to a criminal
conspiracy with the other accused persons, accused Gopal Krishan
Aggarwal (A2) purchased the said property in the name of accused
Mamta Nehra (A4) on 27.01.2005. In pursuance to the criminal
conspiracy, accused Mamta Nehra (A4) executed a sale deed in
favour of accused Naresh Kumar Shekhri (A5) on 31.08.2005 for a
sale consideration of rupees one lac.
7. It is further stated in the chargesheet that accused Gopal Krishan
Aggarwal (A2) and accused Mamta Nehra (A4) approached the
tenants for vacation of the property and after getting the property
vacated, they started constructing a four storey building, measuring
about 50 sq. yards, without any sanctioned building plan from the
CBI Vs. A.C.Garg etc. (RC 4(E)/2006) Page 5 of 133 Special Judge, CBI01, Central, Delhi
MCD, in blatant violations of DMC Act / Building byelaws / MCD
circulars / office orders etc. and the said construction was started
around March, 2005 and was completed around September, 2005.
8. It is further stated in the chargesheet that the unauthorized
construction in the said building was reported by SI Sombir Singh of
Police Station Hauz Qazi to accused A.C.Garg (A1), vide letter dated
20.05.2005, who was also holding the additional charge of AE/JE for
concerned ward and the unauthorized construction was accordingly
booked for action. In the said file, the name of accused Gopal Krishan
Aggarwal (A2) was shown as owner / builder and the show cause
notice dated 24.08.2005 and the self demolition notice dated
29.08.2005 were also issued in his name. The demolition order in the
said file was passed on 05.09.2005, but, the file was not handed over
to the Office Incharge (Building), for demolition action, by accused
A.C.Garg (A1), in violation of the existing rules & provisions.
9. It is further stated in the chargesheet that the accused persons,
after completion of the unauthorized constructions of four storey
building comprised of four flats each, having area of about 50 sq.
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yards, sold the said flats to various persons for their personal gains.
10. It is further stated in the chargesheet that in or around September,
2005, construction of another building, having an area of about 290 sq.
yards was started after demolishing the old structure, without obtaining
the sanctioned building plan from the MCD, in violation of the building
byelaws and the same was completed in or around February 2006.
11. It is further stated in the chargesheet that unauthorized
construction in this property was also reported by various sources to
accused A.C.Garg (A1), who booked this building also for
unauthorized constructions, vide file No. 126/B/U/C/SPZ/05, dated
24.10.2005. Accused G.K.Aggarwal (A2) was the owner / builder of
the said property also. The show cause notice dated 24.10.2005 and
self demolition notice dated 28.10.2005 were again issued in the name
of accused Gopal Krishan Aggarwal (A2). Demolition order in this file
was also passed on 04.11.2005. But, this file was also not handed
over to the office incharge, MCD, for demolition action, in violation of
the existing provisions, by accused A.C.Garg (A1).
12. It is further stated in the chargesheet that in pursuance to the
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criminal conspiracy, another sale deed was executed by accused
Naresh Kumar Shekhri (A5) in favour of accused Sri Krishan Vashisht
(A6) on 30.11.2005.
13. It is further stated in the chargesheet that after construction of 16
flats in the aforesaid building, having an area of about 290 sq. yards,
14 flats were sold by accused Sri Krishan Vashisht (A6) to different
unsuspecting buyers through separate sale deeds, for his personal
gains. The said building was constructed without sanctioned building
plan from the MCD and the same had already been booked by the
MCD for unauthorized constructions.
14. It is further stated in the chargesheet that Shri Satish Chander
Goel filed a civil suit No. 262/2005 against accused Mamta Nehra (A4)
and the officials of MCD, regarding unauthorized construction in the
building, having ground area of about 290 sq. yards and vide order
dated 14.10.2005, the court of Shri G.P.Mittal, Ld. ADJ, Delhi,
restrained accused Mamta Nehra (A4) from raising any construction,
other than the sanctioned building plan. But, she continued with the
unauthorized construction.
CBI Vs. A.C.Garg etc. (RC 4(E)/2006) Page 8 of 133 Special Judge, CBI01, Central, Delhi
15. It is further stated in the chargesheet that on 29.10.2005, the MCD
was directed by the court to stop any unauthorized construction in
violation of the site plan and building byelaws and accused A.C.Garg
(A1) had attended the court on 21.11.2005. He was ordered to file a
site plan in respect of the unauthorized construction at the said
property and on 18.11.2005, accused A.C.Garg (A1) filed a reply, in
which he accepted that unauthorized construction has been carried out
in the suit property, without any sanctioned building plan and the same
has been booked vide UC file No. 126, dated 24.10.2005 and the
demolition order has been passed and he assured the court that the
further action would be taken in due course of time, as per law.
16. It is further stated in the chargesheet that accused A.C.Garg (A1)
had himself booked the unauthorized constructions in the aforesaid two
properties and he was duty bound to take demolition action against the
said properties, but he abused his official position as a public servant
and conspired with other accused persons and deliberately did not take
any action of demolition against the unauthorized construction. He
unauthorizedly retained the two files of unauthorized constructions in
CBI Vs. A.C.Garg etc. (RC 4(E)/2006) Page 9 of 133 Special Judge, CBI01, Central, Delhi
his personal custody, till 17.05.2006, which facilitated coaccused
Gopal Krishan Aggarwal (A2) and other accused persons, in
completing the unauthorized construction of the aforesaid 16 flats in
the second building and their fraudulent sale to innocent unsuspected
buyers, for their personal gains.
17. It is further stated in the chargesheet that accused A.C.Garg (A1)
was in regular contact with accused Gopal Krishan Aggarwal (A2) and
accused Abhinav Aggarwal (A3) and the call detail record of mobile
phone No. 9811007778, registered in his name, confirmed their
telephonic contact with accused A.C.Garg (A1) on his mobile phone
No. 9350685801 on eight occasions, during the period w.e.f.
05.11.2005 to 24.11.2005.
18. It is further stated in the chargesheet that in pursuance to the
criminal conspiracy, the money received through sale of flats illegally
constructed at the aforesaid properties was also passed on to the
prime conspirator i.e. accused Gopal Krishan Aggarwal (A2) and his
son accused Abhinav Aggarwal (A3), through various cheques.
19. It is further stated in the chargesheet that accused Mamta Nehra
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(A4) and accused Kishan Lal (A7) had also issued various cheques in
favour of accused Gopal Krishan Aggarwal (A2) and his firm M/s.
M.G.Printers & Stationers, without any justifiable reason.
20. It is further stated in the chargesheet that the MCD authorities had
confirmed that no building plan was sanctioned by them in respect of
the aforesaid two buildings and the construction of these two buildings
were in gross violation of the provisions of the DMC Act / Building Bye
laws.
21. It is further stated in the chargesheet that by not getting the
sanctioned building plan from the MCD, for the aforesaid two buildings,
the accused persons caused wrongful loss to the MCD authorities to
the tune of Rs. 6,500/ and Rs.42,500/ respectively, which was to be
paid to the MCD as building plan fees, while getting the building plan
sanctioned.
22. It is further stated in the chargesheet that in pursuance to the
criminal conspiracy, the accused persons have caused undue
pecuniary advantage to themselves and corresponding loss of revenue
to the MCD.
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23. It is further stated in the chargesheet that accused A.C.Garg (A
1), the then Executive Engineer (Building) SP Zone, Delhi abused his
official position and knowingly disobeyed the directions of law and
facilitated the accused persons, in completion of unauthorized
construction of the aforesaid two buildings at property No. 27472748,
Gali Arya Samaj, Bazar Sita Ram, Delhi, which ultimately caused
undue pecuniary advantage to accused Gopal Krishan Aggarwal (A2)
and others and corresponding loss to the MCD.
24. It is further stated in the chargesheet that during his tenure,
accused A.C.Garg (A1) has not resorted to coercive measures, like
sealing of unauthorized constructions or demolition of the unauthorized
constructions or criminal prosecution against the accused persons,
though there were provisions for the same under the DMC Act.
25. It is further stated in the chargesheet that during the tenure of
accused A.C.Garg (A1), for the period w.e.f. 24.08.2004 to
19.12.2005, unauthorized construction in his area continued unabated
inspite of the demolition orders passed by him and he did not take
sufficient steps to check the unauthorized constructions, as per the
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procedure laid down in the DMC Act and no coercive measure was
taken by him.
26. It is further stated in the chargesheet that facts and circumstances
of the case and the evidence collected on record indicate the
commission of offence u/s 120B r/w Sec. 217/420 and 13(2) r/w Sec.
13(1)(d) of The Prevention of Corruption Act, 1988, against accused
A.C.Garg (A1); accused Gopal Krishan Aggarwal (A2); accused
Abhinav Aggarwal (A3); accused Mamta Nehra (A4); accused Naresh
Kumar Shekhri (A5); accused Sri Krishan Vashisht (A6) and accused
Kishan Lal (A7). But, no evidence had come on record to disclose any
conspiracy on the part of accused S.A.Khan, A.E. (Bldg.) and
therefore, he was not recommended for prosecution, but a regular
departmental action for major penalty was recommended against him.
27. The charge sheet in the case was filed on 29.09.2008 and vide
order dated, 01.12.2008, cognizance for various offences was taken
by the Ld. Predecessor of this court and all the accused were
accordingly summoned to face the trial for the said offences.
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CHARGES
28. On 07.04.2012, order on charge was passed by Sh. Pradeep
Chaddah, Ld. Predecessor of this court, against all the accused
persons and in pursuance to it, the charge for the offence punishable
u/s 120B IPC r/w Sections 217, 420 IPC & Section 13(2) r/w Sec.
13(1)(d) of the P.C.Act was framed against all the accused persons on
19.04.2012. Additional charges for the offences punishable u/s 420,
217 IPC & u/s 13(1)(d) r/w Sec. 13(2) of the P.C.Act were also framed
against accused Avinash Chander Garg. Additional charge for the
offence punishable u/s 420 IPC was also framed against accused
Gopal Krishan Aggarwal, Abhinav Aggarwal, Mamta Nehra, Naresh
Kumar Shekhri, Sri Krishan Vashisht and Krishan Lal. All the accused
persons had pleaded not guilty, to all the charges and had claimed trial.
Prosecution Evidence
29. During the trial, the prosecution has examined the following
witnesses, namely:
i) PW1 Sh. Sunil Kumar, Inspector, CBI, New Delhi. He was
entrusted with a preliminary inquiry by his the then SP, CBI Sh.
CBI Vs. A.C.Garg etc. (RC 4(E)/2006) Page 14 of 133 Special Judge, CBI01, Central, Delhi
S.K.Jha. He has deposed that the preliminary inquiry was registered
against accused A.C. Garg, the then Executive Engineer, MCD, Sadar
Paharganj Zone, Delhi, on the directions of the Hon'ble High Court of
Delhi, in writ petition (C) No. 4582/2003, in the matter of Kalyan
Sanstha Vs. Union of India & Ors. He has further deposed that the
preliminary inquiry disclosed the commission of offences punishable
under Section 120B IPC r/w Section 13 (1) (d) r/w 13(2) of the P.C Act
on the part of accused A.C. Garg, Executive Engineer and S.A Khan,
Asstt. Engineer, other MCD officials and private persons and
accordingly, he recommended for registration of a regular case, on
which, RC No. 4/2006 was registered. He has proved his complaint
dated 27.07.2006, as Ex.PW1/A. The copy of the FIR has been
proved on record as Ex.PW1/B.
ii) PW2 Sh. Ankit Srivastava, owner of flat No. 101, at House No.
2748, Gali Arya Samaj, Bazar Sitaram, Delhi. He has categorically
stated that accused Srikishan Vashisth had not informed him that the
building was being constructed without any sanctioned plan from the
MCD and had already been booked by the MCD for unauthorized
CBI Vs. A.C.Garg etc. (RC 4(E)/2006) Page 15 of 133 Special Judge, CBI01, Central, Delhi
construction.
iii) PW3 Sh. Manoj Vats, who was posted as LDC (Building
Department), S.P. Zone, MCD, during the period, w.e.f. September,
2002 to July, 2007. He has deposed about issuing FIR Nos. 34201 to
34300, show cause notices No. 29651 to 29675 and demolition notice
book containing notices with S.No. 27226 to 27250, to accused A.C.
Garg, on 22.07.2005. He has proved the FIR book, show cause notice
book and the demolition notice book, as Ex.PW3/H1 to Ex.PW3/H4,
respectively. He has further deposed that vide letter dated 12.06.2007,
Ex.PW3/D, CBI was informed that no building plan was sanctioned in
respect of the properties mentioned in the CBI letter dated 16.05.2007.
He has further deposed that the various documents and records were
also handed over to the CBI, vide letter dated 13.03.2007 Ex.PW3/E.
He has further deposed that vide letter dated 03.05.2007, the file
pertaining to civil suit No. 262/05, titled as 'Satish Chander Goel vs.
Mamta Nehra & Ors.', was required but, the said file could not be
traced in the office of the building department on which, the office
Incharge (Building) contacted the accused A.C. Garg on phone and
CBI Vs. A.C.Garg etc. (RC 4(E)/2006) Page 16 of 133 Special Judge, CBI01, Central, Delhi
requested him to return the file. Thereafter, accused A.C. Garg
returned the said file on 04.05.2007, in dispatch section of building
department. Thereafter, the said file was handed over to the CBI, vide
productioncumreceipt memo dated 14.05.2007, Ex.PW3/G.
iv) PW4 Ms. Charu Saxena. One Ms. Shabnam daughter of Mohd.
Ehsaan, impersonated as Charu Saxena and on 25.05.2012, her
statement, as PW4 Charu Saxena was recorded partly. During her
examination, the Ld. Defence counsel raised some doubt about her
identity and thereafter, it was revealed that she was impersonating as
PW4 Charu Saxena. The Ld. Predecessor of this court had
accordingly, passed the appropriate order regarding registration of an
FIR against her for the offences punishable u/s 193 & 419 IPC.
v) PW5 Sh. Vineet Mehta, who was appointed as local commissioner
by the concerned court, vide orders dated 18.10.2005, in civil suit No.
262/2005, titled as, 'Satish Chander Goel vs. Mamta Nehra & Ors.'. He
has proved his inspection report dated 20.10.2005, as Ex.PW5/A.
vi) PW6 Sh. K.S.Mehra, the Commissioner MCD. He has granted
sanction for prosecution of accused A.C.Garg, Executive Engineer
CBI Vs. A.C.Garg etc. (RC 4(E)/2006) Page 17 of 133 Special Judge, CBI01, Central, Delhi
(Building), MCD, vide order dated 30.08.2008, Ex.PW.6/A.
vii) PW7 Smt. Anita Gupta, who purchased flat No. 112 at house No.
2748, Ward7, Gali Arya Samaj, from accused Srikishan Vashisth in
the year 2006. She has proved the sale deed of her flat as Ex.PW7/A.
viii) PW8 Sh. Kishor Chandra Pradhan, who was posted as Chief
Manager in Andhra Bank, Asaf Ali Road Branch, during the period
w.e.f. April 2007 to July 2010. He has supplied the statements of
account and various other documents, to the CBI, pertaining to the
bank accounts of accused Naresh Kumar Shekhri, Mamta Nehra,
Gopal Krishan Aggarwal and his firm M/s M G Printers & Stationers, at
his branch.
ix) PW9 Sh. Ranbir Singh, ACP (Retd.), who was posted as SHO,
P.S. Hauz Qazi, Delhi on 15.05.2007. He supplied various documents,
including the complaints against the unauthorized constructions under
the jurisdiction of his police station, to IO Inspector Sanjay Dubey, vide
letter dated 05.06.2007, Ex.PW9/B, in response to the letter of
Inspector Sanjay Dubey dated 15.05.2007, Ex.PW9/A.
x) PW10 Sh. Aquil Ahmed, who was posted as Assistant Engineer
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Building Plan, City Zone, MCD, in the year 2007. In pursuance to the
letter of the CBI, dated 05.06.2007, Ex.PW10/D, he along with J.Es.
Satish and Ovais Sabari, visited property No. 2748, Gali Arya Samaj,
Bazar Sitaram, Delhi and took measurements and prepared the reports
Ex.PW10/A and Ex.PW10/B. The said reports were forwarded to
Inspector Sanjay Dubey, by Executive Engineer Sh. Ansar Alam, vide
letter dated 13.07.2007, Ex.PW10/C.
xi) PW11 Sh. S.K.Sehgal, Assistant Zonal Inspector, Sadar Pahar
Ganj Zone, Delhi, who identified signatures of Assistant Assessor &
Collector (Tax), MCD, Mr. Sharma on the letter dated 13.11.2007, vide
which it was informed to Inspector Sanjay Dubey that accused Naresh
Kumar Shekhri was the applicant in respect of property No. 2748, Gali
Arya Samaj, Bazar Sitaram, Delhi.
xii) PW12 Smt. Shakuntla Sharma, who purchased part of property
bearing No. 2748, situated at Ward No. 8, Gali Arya Samaj, Bazar
Sitaram, Delhi, from accused Srikrishan Vashisth, vide sale deed dated
22.03.2006, Ex.PW12/A.
xiii) PW13 Ms. Charu Saxena, who purchased flat No. 106, at
CBI Vs. A.C.Garg etc. (RC 4(E)/2006) Page 19 of 133 Special Judge, CBI01, Central, Delhi
property No. 2748, Ward No. 8 at Gali Arya Samaj, Bazar Sitaram,
Delhi, from accused Srikrishan Vashisth.
xiv) PW14 Smt. Madhuri Mishra, who along with her husband Sh.
Sarvesh Mishra, purchased flat No. 107 situated at property No. 2748,
at Gali Arya Samaj, Bazar Sitaram, Delhi, from accused Srikrishan
Vashisth.
xv) PW15 Sh. Sarvesh Mishra, he along with his wife Madhuri Mishra
purchased flat No. 107 situated at property No. 2748, at Gali Arya
Samaj, Bazar Sitaram, Delhi, from accused Srikrishan Vashisth.
xvi) PW16 Sh. Bikramjeet Singh, who was posted as Assistant
Engineer (Building), at MCD Headquarters, Delhi. On 06.05.2008, he
handed over certified photocopies of various documents (Ex.PW16/A1
to Ex.PW16/A8) to IO Inspector Sanjay Dubey, vide productioncum
receipt memo Ex.PW16/A. However, the document Ex.PW16/A1 to
Ex.PW16/A8 could not be proved during the trial, in accordance with
law.
xvii) PW17 Col. A.K.Sachdeva, who was posted as Nodal Officer in
Reliance Communications, New Delhi, in the year 2007. He provided
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the subscribers details of mobile No. 9350685801 to IO Inspector
Sanjay Dubey, vide his letter dated 24.08.2007, Ex.PW17/A.
xviii) PW18 Ms. Divya Kanojiya, who purchased flat No. 109, at
house No. 2748, 2nd Floor, Gali Arya Samaj, Bazar Sitaram, Delhi, from
accused Srikrishan Vashisth. She has proved her sale deed as
Ex.PW18/B. She has also deposed that at the time of purchase,
accused Srikrishan Vashisth had not disclosed that the property had
been booked by the MCD for unauthorized construction.
xix) PW19 Ms. Yojana Sharma, who purchased flat No. 111, house
No. 2748, 2nd Floor, Gali Arya Samaj, Bazar Sitaram, Delhi, from
accused Srikrishan Vashisth. She has proved her sale deed as
Ex.PW19/C. She has also deposed that at the time of purchase,
accused Srikrishan Vashisth had not disclosed that the property had
been booked by the MCD for unauthorized construction.
xx) PW20 Ms. Pushpa Rani, who purchased flat No. 115, house No.
2748, 3rd Floor, Gali Arya Samaj, Bazar Sitaram, Delhi, from accused
Srikrishan Vashisth. She has proved her sale deed as Ex.PW20/C.
She has also deposed that at the time of purchase, accused Srikrishan
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Vashisth had not disclosed that the property had been booked by the
MCD for unauthorized construction.
xxi) PW21 Ms. Triveni Devi, who purchased flat No. 108, house No.
2748, 1st Floor, Gali Arya Samaj, Bazar Sitaram, Delhi, from accused
Srikrishan Vashisth. She has proved her sale deed as Ex.PW21/B.
She has also deposed that at the time of purchase, accused Srikrishan
Vashisth had not disclosed that the property had been booked by the
MCD for unauthorized construction.
xxii) PW22 Sh. Madan Lal Sain, who purchased flat No. 113, at
House No. 2748, 3rd Floor, Gali Arya Samaj, Bazar Sitaram, Delhi, from
accused Srikrishan Vashisth. He has proved his sale deed as
Ex.PW22/C. He has also deposed that at the time of purchase,
accused Srikrishan Vashisth had not disclosed that the property had
been booked by the MCD for unauthorized construction.
xxiii) PW23 Sh. Alok Kumar Sharma, has deposed that his mother
has purchased flat No. 105, 1st floor, at House No. 2748, Gali Arya
Samaj, Bazar Sitaram, Delhi, from accused Srikrishan Vashisth.
xxiv) PW24 Sh. Sunil Kumar, LDC from Record Room (Sessions), Tis
CBI Vs. A.C.Garg etc. (RC 4(E)/2006) Page 22 of 133 Special Judge, CBI01, Central, Delhi
Hazari Courts, Delhi. He has produced the judicial file containing
record of suit No. 262/05 titled as, 'Satish Chander Goel vs. Mamta
Nehra & Ors.'. Certified copies of the documents have been proved on
record as Ex.PW24/A.
xxv) PW25 Sh. Ram Prakash Gupta, he was working as Notary
Public at the office of Sub Registrar, Asaf Ali Road, Delhi, since
15.05.1995. He has produced and proved the register maintained by
him, regarding the documents notarized by him, for the year 2005, as
Ex.PW25/A.
xxvi) PW26 Sh. Rishabh Gupta, has deposed that his mother Smt.
Anita Gupta had purchased flat No. 112, 2 nd floor, at House No. 2748,
Gali Arya Samaj, Bazar Sitaram, Delhi, from accused Srikrishan
Vashisth, in September, 2006.
xxvii) PW27 Sh. Amit Sharma, who purchased flat No. 110, 2nd floor,
at House No. 2748, Gali Arya Samaj, Bazar Sitaram, Delhi, from
accused Srikrishan Vashisth, in June, 2007. He has proved his sale
deed as Ex.PW27/A.
xxviii) PW28 Sh. Shish Ram, who was posted as Senior Vigilance
CBI Vs. A.C.Garg etc. (RC 4(E)/2006) Page 23 of 133 Special Judge, CBI01, Central, Delhi
Inspector, Vigilance Department, MCD, Rajpur Road, Civil Lines, Delhi,
in September 2007. He handed over two files pertaining to the
unauthorized constructions in property No. 2747, Gali Arya Samaj,
Bazar Sitaram, Delhi to Inspector Sanjay Dubey vide productioncum
receipt memo dated 28.09.2007, Ex.PW28/A.
xxix) PW29 Sh. A.A.Khan, who was posted as J.T.O., Kashmere
Gate, Delhi in the year 2007. He provided the photocopy of Chapter
XXI of the Telecommunication Manual Vol. 11, to the CBI, vide letter
dated 06.10.2007, Ex.PW29/A.
xxx) PW30 Sh. Virender Kumar, who was posted as Sub Registrar
III, Asaf Ali Road, Delhi, in the year 2007. He provided certified
photocopies of sixteen sale deeds to the CBI, vide his letter dated
26.06.2007, Ex.PW30/A.
xxxi) PW31 Sh. Nasir Mirza, who was posted as Zonal Inspector,
MCD, SP Zone, Delhi, from the year 2003 till 2007. He has deposed
that in the year 200405, the self assessment system was introduced in
MCD for collection of house tax. He has deposed that in the year
1994, the property No. 2745 to 2748, were in the name of Suresh
CBI Vs. A.C.Garg etc. (RC 4(E)/2006) Page 24 of 133 Special Judge, CBI01, Central, Delhi
Chand, Satish Chand, Subhash Chand, Kamal Chand Goel and
Sushila Devi, as per records. The complete file of the said property
has been placed on record as Ex.PW31/A, collectively.
xxxii) PW32 Sh. Israr Babu, who was posted as Alternate Nodal
Officer, Vodafone Mobile Service Limited, New Delhi, in May 2010. He
has deposed that vide letter Ex.PW32/A, the call details in respect of
mobile No. 9811007778 and 9811071453, for the period w.e.f.
01.07.2005 to 30.04.2006, along with supporting documents, were
supplied to Inspector Sanjay Dubey. He has further deposed that Sh.
Jyotish Mohrana also supplied the call details Ex.PW32/B.
xxxiii) PW33 Sh. Rakesh N.D., who was working as Stamp Vendor
during the period w.e.f. 1987 to 2010. He has deposed about selling of
the nonjudicial stamp papers, which were used for executing various
sale deeds.
xxxiv) PW34 Sh. M.M.Khan, who was posted as Executive Engineer
(Bldg.), SP Zone, MCD, Delhi, during the period w.e.f. December 2005
to November 2006. He has provided various documents and
information to Inspector Sanjay Dubey. He has also proved his various
CBI Vs. A.C.Garg etc. (RC 4(E)/2006) Page 25 of 133 Special Judge, CBI01, Central, Delhi
letters and notings. The letter dated 21.09.2006 and 14.08.2006, have
been proved on record as Ex.PW34/A & Ex.PW34/C, respectively. He
has also deposed that vide letter dated 30.12.2005 Ex.PW34/D,
accused A.C. Garg, A.E. (Building), SP Zone and S.A. Khan, A.E.
(Building), SP Zone, were asked to return the files pertaining to the
unauthorized constructions, by office incharge Sh. Gajender. He has
also deposed that vide letter dated 02.02.2006, Ex.PW34/E and the
reminder letter dated 27.04.2006, Ex.PW34/F, accused A.C. Garg was
again asked to hand over the UC files detained by him immediately,
after completing all the formalities. He has further stated that the
relevant documents along with AnnexureA, B, C & D, were supplied to
Inspector Sanjay Dubey, vide letter dated 01.09.2006, Ex.PW34/G.
The details of files / documents returned back by accused A.C. Garg to
the office of MCD/SPZ, after his dismissal have been proved on record
as AnnexureB, Ex.PW34/J. The AnnexureC containing details of the
files / documents / complaints etc, which were not returned by A.C.
Garg, has been placed on record as Ex.PW34/K.
xxxv) PW35 Sh. Ashok Kumar Fotedar, who was posted as Branch
CBI Vs. A.C.Garg etc. (RC 4(E)/2006) Page 26 of 133 Special Judge, CBI01, Central, Delhi
Manager, State Bank of India, Hauz Qazi, Delhi, in the year 2007. He
has provided various documents to Inspector Sanjay Dubey, pertaining
to the account No. 01190014415 (New Account No. 10771990131) of
accused Srikrishan Vashisth.
xxxvi) PW36 Sh. R.K.Saldhi, who was posted as an Officer at
Canara Bank Establishment Section, Nehru Place, New Delhi, in the
year 2006. He accompanied the CBI team on 28.07.2006, during the
search of the premises occupied by accused A.C. Garg, at Pahari
Dhiraj, Sadar Paharganj Zone, Delhi.
xxxvii) PW37 Sh. Rakesh Kumar Sharma, who purchased ground
floor of property bearing house No. 2748, Gali Arya Samaj, Bazar
Sitaram, Delhi, from accused Naresh Kumar Shekhri on 21.10.2005,
vide registered sale deed Ex.PW37/A.
xxxviii) PW38 Sh. Mukesh Kumar, who was working as LDC in the
Building Department of MCD, SP Zone, Delhi. He has deposed that
vide letters dated 30.12.2005, Ex.PW34/D, dated 02.02.2006,
Ex.PW34/E, and dated 27.04.2006, Ex.PW34/F, accused A.C. Garg
was asked to return the UC files and the details of the files were
CBI Vs. A.C.Garg etc. (RC 4(E)/2006) Page 27 of 133 Special Judge, CBI01, Central, Delhi
mentioned in these letters. He has further deposed that in pursuance
to the said letters, a total of 15 files were returned back by the accused
on various dates and accordingly, entries were made in diary register
Ex.PW38/A. He has further stated that vide letter dated 01.09.2006,
various documents, as mentioned in it, were provided to Inspector
Sanjay Dubey.
xxxix) PW39 Sh. Ram Singh Saini, who was working as Stamp
Vendor, at the office of Sub RegistrarIII, Asaf Ali Road, Delhi, since
198182. He has deposed about the sale of various nonjudicial stamp
papers.
xL) PW40 Sh. Sanjeev Goel. He is the son of Subhash Chander
Goel, the erstwhile coowner of property bearing No. 2745 to 2748,
Gali Arya Samaj, Bazar Sitaram, Delhi. He has deposed that the
aforesaid properties were ancestral properties and were in the name of
his father and his three brothers Suresh Chand Goel (since deceased),
Satish Chander Goel and Kamal Chand Goel (since deceased). He
has further deposed that in the year 1990 the said property was
distributed among the aforesaid four persons and a portion of the
CBI Vs. A.C.Garg etc. (RC 4(E)/2006) Page 28 of 133 Special Judge, CBI01, Central, Delhi
property was given to him and his father. He has further deposed that
a number of single storyed rooms were constructed in the back side of
the property called as Katra and the same was occupied by various
tenant. He has further deposed that in the year 2005, his father sold
his property to Mamta Nehra, through registered sale deed dated
27.01.2005.
xLi) PW41 Sh. L.R.Jatav, who was posted as Manager, Syndicate
Bank, DDA Shopping Complex, Defence Colony, Delhi, during the
period w.e.f. May 2003 to May 2009. Vide letter dated 29.06.2007 (sic.
29.02.2007), Ex.PW41/A, Inspector Sanjay Dubey sought documents
from the bank and vide letter dated 11.07.2007, Ex.PW41/B, the
certified true photocopies of the documents pertaining to account No.
19476 (new Account No. 90002019682), in the name of Gopal Krishan
Aggarwal were supplied to him. He also provided various documents
pertaining to the account No. 4529 in the name accused Mamta Nehra,
proprietor of M/s Surya Print & Pack, to Inspector Sanjay Dubey.
xLii) PW42 Sh. Arvind Kumar Aggarwal, who was posted as Senior
Branch Manager in Punjab National Bank, Asaf Ali Road Branch, from
CBI Vs. A.C.Garg etc. (RC 4(E)/2006) Page 29 of 133 Special Judge, CBI01, Central, Delhi
2007 to October, 2009. In response to the letter dated 29.06.2007,
Ex.PW42/A and the letter dated 25.07.2007, Ex.PW42/B, written by
Inspector Sanjay Dubey, IO, he provided various documents to him,
pertaining to the account in the name of M/s. M.G. Printers &
Stationers, having accused Gopal Krishan Aggarwal as its proprietor,
vide his letter dated 16.08.2007, Ex.PW42/C. He also provided various
documents pertaining to the account No. 0127002100080120 of M/s
Trade Group (India) of accused Kishan Lal, to Inspector Sanjay Dubey.
xLiii) PW43 Sh. Satish, who was posted as JE (Plan), City Zone,
Building Department, MCD, New Delhi, during the year 2007. He has
also deposed that in the year 2007, he along with Akil Ahmed, A.E.
(Building Plan) and Ovais Sabri, J.E. (Building Plan), inspected the
property No. 2747 2748, Gali Arya Samaj, Delhi, on the instructions of
his Executive Engineer Building City Zone and prepared the reports
Ex.PW10/A & Ex.PW10/B. He has also proved the site plans of the
properties as Ex.PW43/A & Ex.PW43/B.
xLiv) PW44 Sh. Gajender Kumar, who was posted as Officer
Incharge (Building), MCD, SPZ, in the year 2004. He has deposed
CBI Vs. A.C.Garg etc. (RC 4(E)/2006) Page 30 of 133 Special Judge, CBI01, Central, Delhi
about the entire process of registration of FIRs under the DMC Act,
regarding unauthorized constructions, i.e., booking of properties,
issuance of various show cause notices and the demolition orders by
the concerned officials of the MCD, to the owners / builders of the
concerned properties. He has also deposed about the process of
demolition of unauthorized constructions.
xLv) PW45 Sh. Munish Kumar Kapoor, who was posted as
Manager, Connaught Place Branch of Union Bank of India, in July
2006. On 28.07.2006, he also accompanied the CBI team during the
raid / search conducted at the premises of accused A.C. Garg at
Pahari Dhiraj, Sadar Bazar, Delhi.
xLvi) PW46 Sh. Ovais Sabri, who was posted as Junior Engineer in
the office of Executive Engineer (MaintenanceIII), Shahdra (North),
Delhi, in July, 2007. He has also deposed that in the year 2007, he
along with Akil Ahmed, A.E. (Building Plan) and Satish, J.E. (Building
Plan), inspected the property No. 2747 2748, Gali Arya Samaj, Bazar
Sitaram, Delhi, on the instructions of his Executive Engineer, Building,
City Zone and prepared the reports Ex.PW10/A & Ex.PW10/B. He has
CBI Vs. A.C.Garg etc. (RC 4(E)/2006) Page 31 of 133 Special Judge, CBI01, Central, Delhi
also proved the site plans of the properties as Ex.PW43/A &
Ex.PW43/B,
xLvii) PW47 Sh. Subhash Chand Goel, erstwhile coowner of
property No. 27452748, Gali Arya Samaj, Bazar Sitaram, Delhi. He
has deposed that the aforesaid property was his ancestral property and
his father expired on 02.02.1961 and the said property was partitioned
in the year 1990, in the name of the four brothers, namely, Suresh
Chand, Satish Chander Goel, Subhash Chand Goel and Kamal Chand
Goel. He has further deposed that in partition, Katra 2748 and rear
portion of property No. 2747, were given to him and there were ten
tenants in the property No. 2748, called as Katra. He has further
stated that in the year 2005, he disposed off his property No. 2747
2748, measuring about 335 sq. yards, which was the rear / eastern
portion of the said property, situated at Gali Arya Samaj, Ward No. 8,
Bazar Sitaram, Delhi, to Smt. Mamta Nehra, on 27.01.2005.
xLviii) PW48 Sh. Rakesh Kumar Sharma. He has deposed that he
remained occupant in a Katra at 2747, Gali Arya Samaj, Bazar Sitaram
Delhi, for about 50 years and the said Katra was owned by Lala Ram
CBI Vs. A.C.Garg etc. (RC 4(E)/2006) Page 32 of 133 Special Judge, CBI01, Central, Delhi
Chander and after his death, his sons Suresh Chand Goel, Satish
Chand Goel, Subhash Chand Goel and Kamal Chand Goel, became
the owners of the property. He has further deposed that in the year
2005, the entire land of property No. 2748 was sold by Subhash Chand
Goel to Mamta Nehra on 27.01.2005 and a four storyed building was
constructed there by her and in the said building, first floor of the
property was purchased by his mother, from Smt. Mamta Nehra, on
26.08.2005.
xLix) PW49 Sh. Satish Chand Goel, the erstwhile coowner of the
property bearing No. 27472748, Gali Arya Samaj, Bazar Sitaram,
Delhi. He has also deposed that the said property was his ancestral
property and was in the name of his father. The said property
remained in the joint possession of all his brothers, till 1990 and in
1990, it was divided through an arbitration award. The front portion of
the said property was allotted to Satish Chand Goel, Suresh Chand
Goel and Kamal Chand Goel. Lateron, he mutually exchanged his
portion with them and thereafter, the North side portion of the said
property was occupied by him. Smt. Rani Goel, the wife of his younger
CBI Vs. A.C.Garg etc. (RC 4(E)/2006) Page 33 of 133 Special Judge, CBI01, Central, Delhi
brother Kamal Chand Goel (since deceased) sold her ground floor
portion to accused G.K.Aggarwal, known as Katra in East at back
portion of the said property. The said portion known as Katra was
allotted to Subash Chander Goel and several families were residing in
the said Katra in tinsheds. Lateron, his brother Subash Chand Goel
sold his entire property to accused Mamta Nehra in January, 2005.
Thereafter, the construction of the building on the said portion was
started by Mamta Nehra and Shri G.K.Aggarwal, through some
contractor. He has further deposed that the construction was raised
without any sanctioned plan from the MCD and therefore, he made
complaint to Delhi Police and also to the Deputy Commissioner, MCD,
SP Zone, Delhi. He has further deposed that he lodged a written
complaint to the Chief Vigilance Officer, MCD on 18.10.2005 and the
same has been proved on record as Ex.PW.49/A. He has further
deposed that on 07.10.2005, he filed a civil suit, bearing No. 262/05, in
the court of the Ld. ADJ at Tis Hazari against accused Mamta Nehra,
Gopal Krishan Aggarwal, MCD and Subash Chander Goel, seeking a
decree of permanent injunction, as mentioned in the plaint contained in
CBI Vs. A.C.Garg etc. (RC 4(E)/2006) Page 34 of 133 Special Judge, CBI01, Central, Delhi
file Ex.PW.24/A. He has further deposed that on 14.10.2005, the court
restrained accused Mamta Nehra from raising any construction in the
suit property without any sanctioned building plan from the MCD. He
has further deposed that in the said suit, Shri Vineet Mehta, Advocate
was appointed as Local Commissioner to visit the site and accordingly,
he visited the property on 20.10.2005 and submitted his report, dated
25.10.2005, Ex.PW.5/A. He has further deposed that on 05.12.2005,
the MCD filed its written statement, under the signatures of accused
A.C.Garg, wherein, he accepted the unauthorized construction at the
suit property and confirmed that the property has been booked vide file
No. 126/B/UC/SPZ/05, dated 24.10.2005 and he also confirmed that
the property was also liable for demolition, as per law. He has further
stated that on 08.12.2005, the statement of accused A.C.Garg was
recorded in the court, wherein, he again accepted the same and
lateron, under pressure of accused Mamta Nehra, G.K.Aggarwal and
Abhinav Aggarwal, he withdrew his suit on 04.06.2006.
L) PW50 Sh. Raj Kumar, who resided in the Katra as a tenant of
Subash Chander Goel. He has deposed that the property known as
CBI Vs. A.C.Garg etc. (RC 4(E)/2006) Page 35 of 133 Special Judge, CBI01, Central, Delhi
Katra was sold by Subash Chand Goel to Mamta Nehra and she
constructed a four storeyed building there, consisting of 16 flats and
she proposed to sell one of the flats to him, for a sum of Rs.50,000/.
Li) PW51 Sh. Suresh Kumar, the owner of flat No. 116, at property
No.2748, situated at Ward No.8, Gali Arya Samaj, Bazar Sita Ram,
Delhi110006. He has supplied the photocopy of the sale deed to the
IO Inspector Sanjay Dubey.
Lii) PW52 Sh. Sanjay Dubey, who was working as Inspector, CBI,
EOUV, New Delhi. He is the Investigating Officer of the present case.
He has deposed about the investigations conducted by him in the
present case. He has also deposed about seizure of various
documents, during the trial, from various persons / witnesses.
Liii) PW53 ACP Ram Kumar, who was posted as S.H.O., P.S. Hauz
Qazi, during the period w.e.f. the year 2005 to 2007. He has deposed
that SI Somvir Singh (since deceased) who was working under him at
PS Hauz Qazi had written a letter to the Deputy Commissioner, MCD,
SP Zone, Delhi and to Executive Engineer (Building), MCD, SP Zone,
regarding ongoing unauthorized constructions at property No. 2747
CBI Vs. A.C.Garg etc. (RC 4(E)/2006) Page 36 of 133 Special Judge, CBI01, Central, Delhi
and 2748, respectively, at Gali Arya Samaj, Bazar Sitaram, Delhi. The
said letters have been proved on record as Ex.PW.53/A &
Ex.PW.53/B, respectively.
30. After completion of the prosecution evidence, the statements of all
the accused were recorded, u/s 313 Cr.P.C., wherein, all of them have
denied all the incriminating evidence against them and have deposed
that they are innocent and have been falsely implicated in this case.
31. Accused Avinash Chander Garg in his statement, under Section
313 Cr.P.C., has stated that he had not retained any file with him and
after his dismissal, he was having no staff attached with him and the
files which were lying in his office, could not be brought to the notice of
the concerned officers and therefore, it was made to appear that he
had retained these files. He has further stated that the demolition of
any property or construction is done on priority basis, for which there is
office circular also. The properties which are subjectmatter of litigation
and are of residential nature, are the lowest in priority of demolition.
Same was the case in the properties involved in the present case.
Besides, this, it is the duty of the J.E., to carry out actual demolition
CBI Vs. A.C.Garg etc. (RC 4(E)/2006) Page 37 of 133 Special Judge, CBI01, Central, Delhi
and it is not the duty of Executive Engineer. He further submits that he
was dismissed from the service alongwith sixteen other Executive
Engineers of the MCD, but, the dismissal order has been setaside,
lateron.
32. Accused Gopal Krishan Aggarwal in his statement, under
Section 313 Cr.P.C., has also stated that he is innocent and has been
falsely implicated in the case.
33. Accused Mamta Nehra in her statement, under Section 313
Cr.P.C., has also stated that she is innocent and has been falsely
implicated in this case.
34. Accused Naresh Shekhri in his statement, under Section 313
Cr.P.C., has also stated that he is innocent and has been falsely
implicated in this case.
35. Accused Sri Krishan Vashisth in his statement, under Section
313 Cr.P.C., has also stated that he is innocent and has been falsely
implicated in this case.
36. Accused Kishan Lal, in his statement, under Section 313
Cr.P.C., has also stated that he has been falsely implicated in this
CBI Vs. A.C.Garg etc. (RC 4(E)/2006) Page 38 of 133 Special Judge, CBI01, Central, Delhi
case. He has further stated that he was having general business trade
transactions, regarding printing business with the firms of accused
G.K.Aggarwal and other coaccused, which pertains to even much prior
to the present case.
37. Accused Abhinav Aggarwal, in his statement, under Section 313
Cr.P.C., has also stated that he is innocent and has been falsely
implicated in this case. He has further stated that there was a tenancy
dispute between him and Sh. Satish Chand Goel, on whose complaint
the present case was registered. Sh. Satish Chand Goel had falsely
implicated him and his father in the present case. He never carried out
any illegal construction and they were having nothing to do with the
illegal constructions.
DEFENCE EVIDENCE
38. Accused A.C. Garg has examined three witness in his defence,
i.e., DW1 Sh. Manmohan Dass, Chief Engineer, Building
Headquaters, MCD, Town Hall, Delhi; DW4 Sh. Manish Ranjan,
Section Officer, CAT, New Delhi and DW5 Sh. Pram Bahadur, Beldar,
from the office of E.E., Building Department, Sadar Paharganj Zone,
CBI Vs. A.C.Garg etc. (RC 4(E)/2006) Page 39 of 133 Special Judge, CBI01, Central, Delhi
MCD, New Delhi.
39. DW1 Sh. Manmohan Dass has deposed about the provisions of
the lodging of an FIR, under the DMC Act, pertaining to the illegal
constructions. He has deposed that the FIRs are registered in the
respective zones and the J.E. or the Executive Engineer of the
concerned area were competent to lodge the FIR. He has further
deposed that only the Zonal Engineer of the concerned zone was
empowered to order for renewal / demolition of the illegal
constructions. He has further deposed that there is a priority in the
department for demolition of the illegal constructions, for which, the
Commissioner had issued circulars and the priority list is prepared for
demolition of illegal constructions, as per the circular. He has further
deposed that the illegal constructions in the commercial properties are
mentioned at the top of the priority list. Thereafter, the variations in the
sanctioned plan, which are not compoundable in nature, are
mentioned. Thereafter, the cases in which the parties have lost their
cases from the courts, are mentioned. Thereafter, the encroachments
in the properties are mentioned for demolition and lastly, the illegal
CBI Vs. A.C.Garg etc. (RC 4(E)/2006) Page 40 of 133 Special Judge, CBI01, Central, Delhi
constructions in residential properties are mentioned. He has further
deposed that the duty for demolition of illegal construction is cast on
the J.E. concerned.
40. DW4 Shri Manish Ranjan has produced the original file from
Central Administrative Tribunal, Principal Bench, New Delhi, pertaining
to T.A No. 23/09 and has proved the judgment as Ex.DW.4/A.
41. DW5 Shri Prem Bahadur has deposed that in the year 200405,
accused A.C.Garg was the E.E. (Building), whereas Sh. Dinesh Kumar
and S.A.Khan were Assistant Engineer (Buildings) at that time. At that
time, no J.E. (Building) was posted in the zone.
42. Accused Gopal Krishan Aggarwal and Abhinav Aggarwal have
also examined four witnesses in their defence, namely, DW2 Ms.
Kavita, Inspector, from Ward No. 46(4), Income Tax Department, IP
Estate, New Delhi, who has produced the income tax records
pertaining to the incometax returns of Smt. Sumitra Aggarwal and
Gopal Krishan Aggarwal; DW3 Sh. Gagan Singh Gwal, Dy. Manager,
Punjab National Bank, Asaf Ali Road Branch, New Delhi, who has
brought the statement of account of M/s. M.G. Printers & Stationers,
CBI Vs. A.C.Garg etc. (RC 4(E)/2006) Page 41 of 133 Special Judge, CBI01, Central, Delhi
bearing current account No. 0127002100067916, for the period, w.e.f.
28.10.2005 to 17.09.2015; DW6 Ms. Aruna Sarojesh Singh, Branch
Manager, Allahabad Bank, Hauz Qazi Branch, Delhi, who has
produced the statement of account of M/s. M.G. Printers & Stationers,
bearing account No. 103133, for the period w.e.f. 01.07.1999 to
28.01.2005; and DW7 Sh. Satish Kumar, Officer Allahabad Bank,
Hauz Qazi, Delhi, who has also produced the statement of account of
M/s M.G. Printers & Stationers, bearing account No. 103133.
43. After completion of trial, final arguments were addressed by Shri
Praneet Sharma, Ld. Sr. PP for the CBI; Shri Virender Kumar,
Advocate, for accused Avinash Chander Garg and Shri M.S. Khan,
Advocate, for the remaining six accused persons.
ARGUMENTS ON BEHALF OF THE CBI / PROSECUTION
44. It has been argued by Shri Praneet Sharma, Ld. Sr. PP for the
CBI that PW49 Satish Chand Goel, the erstwhile coowner of the
property bearing No. 274748, situated at Ward No.8, Gali Arya Samaj,
Sitaram Bazar, Delhi, has deposed about the sale of various portions of
these properties by the coowners of the properties to accused Gopal
CBI Vs. A.C.Garg etc. (RC 4(E)/2006) Page 42 of 133 Special Judge, CBI01, Central, Delhi
Krishan Aggarwal and Mamta Nehra and he has also deposed that
accused Gopal Krishan Aggarwal and Mamta Nehra were raising illegal
and unauthorized constructions in the said properties, without any
sanctioned building plan from the MCD and therefore, he filed suit No.
262/05 before the concerned court at Delhi for restraining them and the
MCD, from raising unauthorized illegal constructions, in which restraint
orders were passed by the court on 14.10.2005. He has further argued
that on 05.12.2005, the accused A.C.Garg filed a written statement on
behalf of the MCD and accepted that illegal and unauthorized
constructions were being done by the accused persons in the aforesaid
properties and the same have been booked for demolition. But,
despite restraint orders from the court and despite passing of
demolition orders by accused A.C.Garg, accused A.C.Garg deliberately
retained the files of unauthorized constructions with him and the same
were not sent to the concerned department for demolition action, till the
time of his dismissal from service, in April 2006.
45. Ld. Sr. PP for the CBI has further argued that at the time of the
issuance of show cause notices regarding the unauthorized
CBI Vs. A.C.Garg etc. (RC 4(E)/2006) Page 43 of 133 Special Judge, CBI01, Central, Delhi
constructions, under the DMC Act, accused A.C.Garg was discharging
the dual duties as Assistant Engineer (Building) as well as the
Executive Engineer (Building), in SP Zone of the MCD. At that time,
even no Junior Engineer was posted in the Zone. Accused A.C.Garg
was therefore discharging all the duties of the J.E., the A.E. and the
E.E. (Building) at the relevant time.
46. Ld. Sr. PP for the CBI has further argued that accused A.C.Garg
had also issued the self demolition notices, regarding the unauthorized
constructions done by accused Gopal Krishan Aggarwal and Mamta
Nehra and he had also passed demolition orders. But, still he kept the
files of the unauthorized constructions with him illegally, only in
connivance with all the other accused persons, with an illegal or ulterior
motive to benefit them. He had deliberately and intentionally never
forwarded the demolition orders and the U/C files to the incharge of the
concerned department, for demolition action, in compliance of the
circulars of the MCD.
47. Ld. Sr. PP for the CBI has further argued that PW44 Sh.
Gajender, the office incharge at Sadar Paharganj Zone, MCD had
CBI Vs. A.C.Garg etc. (RC 4(E)/2006) Page 44 of 133 Special Judge, CBI01, Central, Delhi
specifically stated before the court that the case files pertaining to the
unauthorized constructions had remained with accused A.C.Garg only
and he returned the files only in the month of May, 2006, after his
termination from service on 07th April, 2006, that too on the request
letters and reminders of the E.E. (Building), for return of the U/C files.
48. Ld. Sr. PP for the CBI has further argued that since the accused
A.C.Garg had illegally retained the files of unauthorized constructions
with him, no demolition of the unauthorized constructions could take
place and the same had caused undue pecuniary / monetary gain to all
the remaining accused persons and had also caused losses of revenue
to the MCD. He has further argued that the fact of unauthorized
constructions and booking of the unauthorized constructions for
demolition by the MCD and passing of the demolition orders by the
MCD, was deliberately concealed by the accused persons from the
unsuspecting innocent buyers and the sale deeds executed by the
accused persons have also wrongly mentioned that the properties were
free from all kind of encumbrances.
49. Ld. Sr. PP for the CBI has further argued that the office order
CBI Vs. A.C.Garg etc. (RC 4(E)/2006) Page 45 of 133 Special Judge, CBI01, Central, Delhi
dated 16.12.2003, Ex.PW.16/A5 (D107) and the office order dated
22.1.2000, Ex.PW.16/A8 were deliberately and intentionally flouted by
accused A.C.Garg, with the intention to favour the other accused
persons and the same had caused undue financial gain to them and
undue loss of revenue to the MCD.
50. Ld. Sr. PP for the CBI has further argued that the deposition of the
prosecution witnesses and the documentary evidence on record has
proved the prosecution case against all the accused persons, beyond a
shadow of doubt and therefore, all of them be held guilty and convicted
for the offences charged against them.
51. The Ld. Sr. PP for the CBI has also argued that the complete case
file was sent to PW6 Sh. K.S. Mehra, Commissioner, MCD, who has
also granted sanction, u/s 19 of the P.C. Act, 1988, for prosecution of
accused Avinash Chander Garg, AE/EE, vide orders dated 30.08.2008,
Ex.PW6/A. The remaining accused are public persons and therefore,
no sanction for their prosecution was required.
52. The Ld. Sr. PP for the CBI has relied upon the following
judgments, in support of his contentions:
CBI Vs. A.C.Garg etc. (RC 4(E)/2006) Page 46 of 133 Special Judge, CBI01, Central, Delhi
(i) "State of Bihar & Ors. vs. Rajmangal Ram", reported as,
AIR 2014 Supreme Court 1674;
(ii) 2014 State of Maharashtra Through C.B.I. vs. Mahesh G.
Jain, reported as (2013) 8 SCC 119;
(iii) State of M.P. Vs Bhooraji & Ors., reported as (2001) 7
SCC 679;
(iv) Tehsildar Singh & Anrs. vs. State of UP, reported as AIR
1959 Supreme Court 1012;
(v) Parkash Singh Badal & others vs. State of Punjab &
Ors., reported as (2007) 1 SCC 1;
(vi) Smt. Neera Yadav vs. CBI (Bharat Sangh), reported as
2006 (2) RCR (Crl.) 765;
(vii) Runu Ghosh vs. CBI, reported as 2011 SCC Online
Del.5501.
Arguments on behalf of the accused A.C.Garg (A1)
53. On the other hand, Sh. Virender Kumar, Advocate, for the
accused A.C.Garg has argued that there is no material evidence on
record to prove any conspiracy between the accused A.C.Garg and the
remaining coaccused. He has further argued that there is no evidence
on record to show that accused A.C.Garg had, by corrupt or illegal
means, obtained any valuable thing or pecuniary advantage from the
remaining accused. Therefore, no offence u/s 13 (1)(d) r/w Sec. 13(2)
of the P.C.Act, 1988, is made out against him. The Ld. Defence
counsel has relied upon the following judgments in support of his
CBI Vs. A.C.Garg etc. (RC 4(E)/2006) Page 47 of 133 Special Judge, CBI01, Central, Delhi
above contentions :
(i) B.Virupakshaiah Vs. State of Karnataka & Ors., reported
as 2016 (1) JCC (SC) 622;
(ii) Aditya Nashier Vs. CBI, reported as 2014 IV AD (Delhi)
661.
54. The Ld. Defence counsel has further argued that during the
relevant time, accused A.C.Garg was discharging the duties as A.E.
(Building) as well as E.E. (Building) and there was no J.E. (Building)
posted in the zone at that time and he was not authorized to take any
demolition action in the files pertaining to the unauthorized
constructions. Only the JE concerned was authorized to take the
demolition action with the help of other officials of the MCD and the
police officials of the concerned Police Stations.
55. The Ld. Defence counsel has further argued that PW49 Satish
Chand Goel, erstwhile coowner of the properties had filed a civil suit
bearing No. 262/05, before the concerned court, wherein, the MCD
was also a respondent and stay orders were passed by the concerned
court on 14.10.2005, whereby, the other accused persons were
restrained from making any further unauthorized construction in the
CBI Vs. A.C.Garg etc. (RC 4(E)/2006) Page 48 of 133 Special Judge, CBI01, Central, Delhi
building. Accused A.C.Garg had duly booked the unauthorized
constructions and had also issued the show cause notices to the other
accused persons and had also issued the self demolition notices to
them and had also passed the demolition orders in the said files and
therefore, it cannot be said that no action was taken by him against the
illegal and unauthorized constructions, deliberately.
56. The Ld. Defence counsel has further argued that for demolition
action, a priority list has to be prepared by the MCD as per the office
orders Ex.PW.16/A5 and Ex.PW.16/A8 and the unauthorized
constructions in the present case were at the bottom of the priority list
and due to the pendency of the civil suit against the MCD and owners
of the property, no demolition action was taken by the MCD against the
said properties, which is a normal procedure. He has further argued
that the accused A.C.Garg was terminated from service on 07.04.2006
and the civil suit was withdrawn by the complainant / plaintiff on
04.01.2006 and therefore, the small delay of about three months, in
taking the demolition action against the unauthorized constructions
cannot be termed as deliberate or intentional and the same was only
CBI Vs. A.C.Garg etc. (RC 4(E)/2006) Page 49 of 133 Special Judge, CBI01, Central, Delhi
because of the pendency of the aforesaid civil suit.
57. The Ld. Defence counsel has further argued that even as per the
circulars of the MCD, the unauthorized constructions, in the present
case were compoundable and residential in nature and therefore, there
was no urgency or priority for demolition of these unauthorized
constructions, immediately, after withdrawal of the suit in January,
2006. Furthermore, no demolition action has been taken by the MCD
against these unauthorized constructions till date, despite of the fact
that no civil suit or litigation is pending against these properties, now.
58. The Ld. Defence counsel has further argued that PW6
K.S.Mehra, Commissioner MCD, who has passed the sanction order
dated 30.08.2008, Ex.PW.6/A was not the competent authority to grant
the sanction u/s 19 of the P.C.Act, 1988 for prosecution of accused
A.C.Garg, as accused A.C.Garg was working as Executive Engineer
(Building) at that time and was a ClassA Officer of the MCD and only
the House of the Corporation was competent to pass the sanction
order. He has relied upon the following judgments in support of his
above contentions :
CBI Vs. A.C.Garg etc. (RC 4(E)/2006) Page 50 of 133 Special Judge, CBI01, Central, Delhi
(i) G.S.Matharoo vs. CBI, reported as 2012 II AD (Delhi) 188;
(ii) A.K.Ganju & Ors. vs. CBI, reported as 2014 I AD (Delhi) 349.
59. The Ld. Defence counsel has further argued that besides the
offence punishable under Section 13 (2) r/w Sec. 13 (1)(d) of the
P.C.Act, 1988, the accused A.C.Garg has been charged for the
offences punishable under Sections 217, 420 & 120B IPC also and
therefore, a separate sanction u/s 197 Cr.P.C. is also required for his
prosecution. He has relied upon the judgment of the Hon'ble Supreme
Court, in case titled as, "Prof. N.K.Ganguly vs. CBI, New Delhi",
reported as "2016(1) JCC 243", in support of this argument.
Arguments on behalf of the remaining accused persons
60. Shri M.S.Khan, Advocate, for the remaining accused persons has
also argued on the same lines and has stressed that there is no
evidence on record to indicate any conspiracy between the accused
persons. He has further argued that being a beneficiary only, does not
indicate any conspiracy between the accused persons. He has further
argued that accused A.C.Garg had duly booked the unauthorized
constructions for demolition action and has also passed the demolition
CBI Vs. A.C.Garg etc. (RC 4(E)/2006) Page 51 of 133 Special Judge, CBI01, Central, Delhi
orders and there may be some negligence on the part of accused
A.C.Garg for not referring the case files of unauthorized constructions
to the concerned department of the MCD for demolition action, but, the
same was not sufficient to prove that he was also a part of the
conspiracy. He has also argued that there is no evidence on record
that the remaining accused persons have paid any illegal gratification
to accused A.C.Garg for seeking any unlawful favour from him. He has
further argued that the unauthorized constructions were booked by
accused A.C.Garg and demolition orders were also passed in the
month of August, 2005 and November, 2005, but the unauthorized
constructions could not be demolished due to the pendency of the civil
suit against the MCD, before the concerned court. Furthermore, the
unauthorized constructions were compoundable in nature and
therefore, no demolition action has been taken against these
properties, till date.
OBSERVATIONS / FINDINGS
61. I have carefully perused the case file and I have given my
considered thoughts to the arguments addressed by the Ld. Sr. PP for
CBI Vs. A.C.Garg etc. (RC 4(E)/2006) Page 52 of 133 Special Judge, CBI01, Central, Delhi
the CBI and the Ld. Defence counsels and I have also perused the
various judgments, cited by them.
62. Perusal of the record shows that a large number of civil writ
petitions were filed before the Hon'ble High Court of Delhi, by various
petitioners, since the year 2001 to 2006, regarding the rampant and
large scale unauthorized constructions in Delhi and in WP(C) Nos.
4582/2003, 4369/2001, 855758/2005, 138023/2004, 1539798/2004,
12630/2005, 1827274/2005, 22728/2005, 22729/2005, 1833/1994,
5907/2001, 1726/2002, 3542/2003, 6755/2003, 17454/2005,
17455/2005, 20567/2005, 22141/2005/ 22142/2005, 22146/2005,
1833/94, 2779/2004, 6838/2005, 13168/2005, 4142/06, 685/2006,
736/2006, 1539/2006 and Cont. Case (C) No.731/2004, the following
directions were issued by the Hon'ble High Court, on 20.04.2006 :
"We have time and again observed that the rampant and
large scale unauthorized constructions which exist in
Delhi could not have come up without the negligence,
apathy and connivance of the MCD engineers and
officials. Such engineers and officials cannot be allowed
to get away with simple disciplinary action at the
departmental level only resulting in either dismissal or
some other penalty. The remissness and apathy on their
part do not appear to be a simple case of dereliction of
CBI Vs. A.C.Garg etc. (RC 4(E)/2006) Page 53 of 133 Special Judge, CBI01, Central, Delhi
duty. There is much more to it than what meets the eye.
We therefore direct the Director of Central Bureau of
Investigation to register a preliminary inquiry against such
engineers and officials and also to probe their nexus with
their hierarchy in the engineering department, builders as
well as the political bosses. The inquiry shall be
conducted by a Task Force headed by a person not
below the rank of a Joint Director. The status report be
filed within one month.
We also direct the Commissioner of MCD to inquire as to
whether there is any class of engineers against whom
disciplinary action has not been initiated inspite of the fact
that they were also negligent, indifferent and connived in
letting the largescale unauthorized constructions come
up. The MCD commissioner shall inform the court on this
aspect on the next date."
63. In pursuance to the above directions, a preliminary inquiry was
entrusted to Inspector Sunil Kumar (PW1). The preliminary inquiry
disclosed the commission of offences punishable u/s 120B IPC r/w
Section 13(1) (d) r/w 13(2) of the P.C Act on the part of A.C. Garg,
Executive Engineer, SP Zone, MCD, Delhi, other MCD officials and
private persons and accordingly, he recommended for registration of a
regular case, on which, RC No. 4/2006 was registered. PW1 Inspector
Sunil Kumar has proved his complaint dated 27.07.2006, as Ex.PW1/A,
on the basis of which, the FIR, Ex.PW1/B was registered.
CBI Vs. A.C.Garg etc. (RC 4(E)/2006) Page 54 of 133 Special Judge, CBI01, Central, Delhi
64. Perusal of the record further shows that during the trial, Sh.
Gajender Kumar, PW44, who was posted as Officer Incharge
(Building), SPZ, MCD, Delhi, in the year 2004, has deposed about the
registration of FIRs under the DMC Act, regarding unauthorized
constructions. He has deposed that whenever an FIR is registered
regarding unauthorized constructions or booking of property, J.E.
(Bldg.) of concerned area, puts the same along with a show cause
notice, before the Office Incharge (Bldg.) for getting number on it. For
this purpose, a 'Misal Band' register is maintained and entry is made in
the said register, regarding allotment of number to the FIR. Thereafter,
the FIR and show cause notice are returned to the J.E. concerned and
thereafter, the show cause notices are issued and demolition orders
are passed by the concerned Asstt. Engineer and thereafter, the file
comes back to the Office Incharge (Bldg.) for further necessary action.
Thereafter, Officer Incharge (Bldg.) has to consult the concerned
Executive Engineer for taking further action regarding demolition of the
unauthorized constructions.
65. PW44, Sh. Gajender Kumar, has further deposed that the
CBI Vs. A.C.Garg etc. (RC 4(E)/2006) Page 55 of 133 Special Judge, CBI01, Central, Delhi
priorities for demolition of unauthorized constructions were used to be
prepared by him and sent to Executive Engineer (Bldg.) for its approval
and thereafter, the demolition program was used to be issued by the
Executive Engineer (Bldg.). After approval of demolition program the
concerned J.E. was supposed to take the file of unauthorized
construction from the Office Incharge (Bldg.) and accordingly carry out
the demolition of properties, according to the priorities fixed in the
demolition program. In case, demolition action was taken by the
concerned JE /AE (Bldg.), he was supposed to make entry in the U/C
file and return the same to the Office Incharge (Bldg.). In case, no
demolition action was taken, the J.E. concerned was to write reasons
for not taking the demolition action in the concerned U/C file. He has
further deposed that, in case, the JE concerned was not available for
the demolition action, the demolition action was supposed to be taken
by the LAC, i.e., the current duty AE/JE. He has further deposed that
the demolition program was used to be forwarded to the concerned
DCP, Delhi Police and SHO of the concerned police station, for
providing necessary police force to carry out the demolition program.
CBI Vs. A.C.Garg etc. (RC 4(E)/2006) Page 56 of 133 Special Judge, CBI01, Central, Delhi
The same was also forwarded to Superintending Engineer, MCD, SP
Zone; DC, SP Zone, MCD and the concerned J.Es. & A.Es. The
monthly action taken report, in which demolition action taken in a
month, was prepared by O/I (Building), on the basis of the entries
made in the demolition register and the action taken report was
forwarded to the D.C. & S.E. of S.P. Zone, MCD; DC (Zones) and MCD
Headquarter, under the signatures of Executive Engineer (Bldg.).
66. Perusal of the record further shows that Sh. Satish Chand Goel,
the erstwhile coowner of the property bearing No. 27472748, Gali
Arya Samaj, Bazar Sitaram, Delhi, which were booked for unauthorized
constructions and for demolition, has been examined as PW49. He
has deposed that the said property was his ancestral property and was
in the name of his father. The said property remained in the joint
possession of all his brothers, till 1990 and in 1990, it was divided
through an arbitration award. The front portion of the said property was
allotted to Satish Chand Goel, Suresh Chand Goel and Kamal Chand
Goel. Lateron, he mutually exchanged his portion with them and
thereafter, the North side portion of the said property was occupied by
CBI Vs. A.C.Garg etc. (RC 4(E)/2006) Page 57 of 133 Special Judge, CBI01, Central, Delhi
him. Smt. Rani Goel, the wife of his younger brother Kamal Chand
Goel (since deceased) sold her ground floor portion to accused
G.K.Aggarwal, which was known as Katra in East at back portion of the
said property. The said portion known as Katra was allotted to Subash
Chander Goel and several families were residing in the said Katra in
tinsheds. Lateron, his brother Subash Chand Goel sold his entire
property to accused Mamta Nehra in January, 2005. Thereafter, the
construction of the building on the said portion was started by Mamta
Nehra and Shri G.K.Aggarwal, through some contractor.
67. PW49 Sh. Satish Chand Goel has further deposed that the
construction was raised without any sanctioned plan from the MCD and
therefore, he made complaint to Delhi Police and also to the Deputy
Commissioner, MCD, SP Zone, Delhi. He has further deposed that he
lodged a written complaint to the Chief Vigilance Officer, MCD on
18.10.2005. The said complaint has been proved on record as
Ex.PW.49/A.
68. PW49 Sh. Satish Chand Goel has further deposed that on
07.10.2005, he filed a civil suit, bearing No. 262/05, in the court of the
CBI Vs. A.C.Garg etc. (RC 4(E)/2006) Page 58 of 133 Special Judge, CBI01, Central, Delhi
Ld. ADJ at Tis Hazari against accused Mamta Nehra, Gopal Krishan
Aggarwal, MCD and Subash Chander Goel, seeking a decree of
permanent injunction, as mentioned in the plaint, contained in file
Ex.PW.24/A. He has further deposed that on 14.10.2005, the court
restrained the accused Mamta Nehra from raising any construction in
the suit property without any sanctioned building plan from the MCD.
He has further deposed that in the said suit, Shri Vineet Mehta,
Advocate, was appointed as Local Commissioner, to visit the site and
accordingly, he visited the property on 20.10.2005 and submitted his
report, dated 25.10.2005, Ex.PW.5/A.
69. PW49 Satish Chand Goel has further deposed that on 05.12.2005,
the MCD filed its written statement under the signatures of accused
A.C.Garg, wherein, he accepted the unauthorized constructions at the
suit property and confirmed that the property has been booked vide file
No. 126/B/UC/SPZ/05, dated 24.10.2005 and he also confirmed that
the property was also liable for demolition, as per law. He has further
stated that on 08.12.2005, the statement of accused A.C.Garg was
recorded in the court, wherein, he again accepted the same and
CBI Vs. A.C.Garg etc. (RC 4(E)/2006) Page 59 of 133 Special Judge, CBI01, Central, Delhi
lateron, under pressure of accused Mamta Nehra, G.K.Aggarwal and
Abhinav Aggarwal, he withdrew his suit on 04.01.2006.
70. PW49 Satish Chand Goel has further deposed that on 04.11.2005,
he also made a complaint to the Lt. Governor, through telegram,
regarding unauthorized constructions in the back portion towards East
of property No. 2747, Gali Arya Samaj, Bazar Sitaram, Delhi, despite
court orders. The said telegram has been proved on record as
Ex.PW36/A5 (D47/5).
71. PW47, Subhash Chand Goel, the brother of PW49 Satish Chand
Goel, has also corroborated his testimony and has deposed that the
ancestral property bearing No. 27452748, Gali Arya Samaj Bazar
Sitaram, Delhi, was coowned by the four brothers, namely, Subhash
Chand Goel, Satish Chand Goel, Suresh Chand Goel and Kamal
Chand Goel. He has also deposed that a partition of the said ancestral
property has taken place in the year 1990 and the rear portion of the
property No. 2747, called as Katra, with property No. 2748 was given
to him in the partition and there were ten tenants in the said Katra at
property No. 2748. He has further deposed that he sold his property
CBI Vs. A.C.Garg etc. (RC 4(E)/2006) Page 60 of 133 Special Judge, CBI01, Central, Delhi
measuring about 335 sq. yards. to accused Smt. Mamta Nehra vide
sale deed dated 27.01.2005.
72. PW40 Sh. Sanjeev Goel son of Subhash Chand Goel, PW48 Sh.
Rakesh Kumar Sharma and PW50 Sh. Rajkumar, have also
corroborated the above facts. PW40 Sh. Sanjeev Goel son of
Subhash Chand Goel has also deposed that the properties bearing No.
27452748, Gali Arya Samaj, Bazar Sitaram, Delhi, were his ancestral
properties and in the year 1990, the said properties were distributed
among his father and his three brothers. He has further deposed that
in the year 2005 his father Subhash Chand Goel has sold his portion of
the property to accused Mamta Nehra, through registered sale deed
dated 27.01.2005.
73. PW48 Sh. Rakesh Kumar Sharma, who was also a tenant at the
Katra, has also deposed that the said Katra was owned by Lala Ram
Chander and after his death, his four sons Suresh Chand Goel, Satish
Chand Goel, Subhash Chand Goel & Kamal Chand Goel, became the
owners of the property. He has further stated that in the year 2005 the
property No. 2748, Gali Arya Samaj, Bazar Sitaram, Delhi, was sold by
CBI Vs. A.C.Garg etc. (RC 4(E)/2006) Page 61 of 133 Special Judge, CBI01, Central, Delhi
Subhash Chand Goel to accused Mamta Nehra on 27.01.2005 and a
four storeyed building was constructed there, by her. PW50 Sh.
Rajkumar, has further deposed that the property known as Katra was
sold by Subhash Chand Goel to accused Mamta Nehra, where she
constructed a four storeyed building consisting of 16 flats.
74. The aforesaid fact of the property bearing No. 27452748, Gali
Arya Samaj, Bazar Sitaram, Delhi, being an ancestral property and its
partition in the year 1990 and selling of the said properties to accused
G.K. Aggarwal and Smt. Mamta Nehra by the erstwhile owners of the
said properties, is also not in dispute.
75. PW44 Gajender Kumar, Office Incharge (Building) SP Zone, MCD,
has also deposed about the files of unauthorized constructions in
different properties in different areas under SP, Zone, MCD, wherein,
demolition orders were passed by accused A.C. Garg on different
dates, but, no demolition action was taken by him despite passing of
the demolition orders.
76. PW44 Sh. Gajender Kumar has also deposed about ten such
files and has categorically stated that in file marked D23, pertaining to
CBI Vs. A.C.Garg etc. (RC 4(E)/2006) Page 62 of 133 Special Judge, CBI01, Central, Delhi
property No. 2748, Gali Arya Samaj, Bazar Sitaram, Delhi, the
demolition order was passed by accused A.C. Garg on 05.09.2005 and
this file was returned by him to the office of Executive Engineer
(Building), on 17.05.2006. This file has been proved on record as
Ex.PW44/E4 (Collectively).
77. PW44 Sh. Gajender Kumar has also deposed that in file marked
D25, pertaining to property No. 2747, Gali Arya Samaj, Bazar Sitaram,
Delhi, demolition order was passed on 04.11.2005 by accused A.C.
Garg and the file was returned by him to the Office of Executive
Engineer (Bldg.), on 17.05.2006. The said file has been proved on
record as Ex.PW44/E6 (Collectively).
78. PW44 Sh. Gajender Kumar has also deposed that he handed
over the list of booked properties during the period 24.08.2004 to
19.12.2005, to the CBI on 22.03.2007, vide seizure memo Ex.PW44/A.
The list of the booked properties, where, the properties were booked
for unauthorized constructions, has been proved on record as
Ex.PW44/F.
79. PW44 Sh. Gajender Kumar has further deposed that he also
CBI Vs. A.C.Garg etc. (RC 4(E)/2006) Page 63 of 133 Special Judge, CBI01, Central, Delhi
handed over the 'MisalBand' register for the period w.e.f. 01.04.2005
to 28.02.2007, to the CBI on 22.03.2007 vide seizure memo
Ex.PW44/B. He has categorically stated that the entries in the said
register at S.No. 57,64,81,98,114,126,127,130,131 & 137, marked X1
to X10 respectively, were made by him in his handwriting and these
entries were made by him after passing of the demolition orders in the
concerned unauthorized construction files, after receipt of the files in
Office Incharge (Building) Section. This witness has proved the 'Misal
Band' register as Ex.PW44/G.
80. PW44 Sh. Gajender Kumar has further deposed that vide letter
dated 12.06.2007 (D12), Ex.PW3/D, he informed Inspector Sanjay
Dubey, in response to his letter dated 16.05.2007, that as per record of
the MCD, no building plan was sanctioned in respect of the 15
properties as mentioned in the letter Ex.PW3/D.
81. Perusal of the documents Ex.PW44/E4 Collectively, indicates that
the FIR under the DMC Act, regarding the unauthorized constructions
at property bearing No. 2748, Gali Arya Samaj, Bazar Sitaram, Delhi6,
was registered on 24.08.2005 vide U/C file No. 98/B/U/C/SPZ/05.
CBI Vs. A.C.Garg etc. (RC 4(E)/2006) Page 64 of 133 Special Judge, CBI01, Central, Delhi
Thereafter, a show cause notice bearing No. 29658, u/s 344(1) & 343
of the DMC Act, 1957, was issued by accused A.C. Garg, in the
capacity of A.E./E.E., to accused G.K. Aggarwal. Thereafter, a self
demolition notice u/s 343 of the DMC Act, 1957, bearing No. 27231
dated 29.08.2005, was also issued to accused G.K. Aggarwal by
accused A.C. Garg, in the capacity of A.E. (Bldg.) / E.E. (Bldg.).
Thereafter, a demolition order was passed by accused A.C. Garg on
05.09.2005, in the capacity of A.E. (Bldg.) / SP Zone/ E.E. (Bldg.).
82. Perusal of the documents Ex.PW44/E6 Collectively, indicates that
the FIR under the DMC Act, regarding the unauthorized constructions
at property bearing No. 2747, Gali Arya Samaj, Bazar Sitaram, Delhi6,
was registered on 24.10.2005 vide U/C file No. 126/B/U/C/SPZ/05.
Thereafter, a show cause notice bearing No. 29662, u/s 344(1) & 343
of the DMC Act, 1957, was issued by accused A.C. Garg, in the
capacity of A.E./E.E., to accused G.K. Aggarwal. Thereafter, a self
demolition notice u/s 343 of the DMC Act, 1957, bearing No. 27234
dated 28.10.2005, was also issued to accused G.K. Aggarwal by
accused A.C. Garg, in the capacity of A.E. (Bldg.) / E.E. (Bldg.).
CBI Vs. A.C.Garg etc. (RC 4(E)/2006) Page 65 of 133 Special Judge, CBI01, Central, Delhi
Thereafter, a demolition order was passed by accused A.C. Garg on
04.11.2005, in the capacity of A.E. (Bldg.) / SP Zone/ E.E. (Bldg.).
83. The aforesaid files pertaining to unauthorized constructions in
properties No. 27472748, Gali Arya Samaj, Bazar Sitaram, Delhi, were
handed over by PW28 Shish Ram, Sr. Vigilance Inspector from
Vigilance Department of the MCD to Inspector Sanjay Dubey, during
the investigations of the present case, vide productioncumreceipt
memo dated 28.09.2007, Ex.PW28/A.
84. PW44 Sh. Gajender Kumar has further deposed that vide letter
dated 30.12.2005 (D40), accused A.C. Garg, AE Building SP Zone
MCD and S.A. Khan AE (Building), SP Zone, were asked to return the
U/C files mentioned therein, to the office of Sh. M.M. Khan, Executive
Engineer. He has further deposed that letters and reminders dated
24.01.2006, 02.02.2006 & 27.04.2006 were also issued to accused
A.C. Garg for return of the files, as mentioned in the letter dated
30.12.2005. These three letters and reminders have been proved on
record as Ex.PW34/D, Ex.PW34/E & Ex.PW34/F respectively.
85. PW34 Sh. M.M. Khan, Executive Engineer (Bldg.), SP Zone, has
CBI Vs. A.C.Garg etc. (RC 4(E)/2006) Page 66 of 133 Special Judge, CBI01, Central, Delhi
also corroborated the above facts and has deposed that these letters
and reminders Ex.PW34/D, Ex.PW34/E & Ex.PW34/F were put up
before him by PW44 Gajender, the then Office Incharge and vide
these letters and reminders, accused A.C. Garg, A.E. (Building), SP
Zone, was asked to return the U/C files to his office. He has further
deposed that vide reminder dated 27.04.2006, Ex.PW34/F, accused
A.C. Garg was also directed to hand over the complete charge to the
concerned A.Es.
86. PW44 Sh. Gajender Kumar has further deposed that the U/C files
were returned by accused A.C Garg to the diary clerk on 17.05.2006 &
19.05.2006. He has categorically stated that the U/C files, which were
sought to be returned by the Office Incharge (Building), were with
accused A.C. Garg, when the unauthorized constructions were booked
and the said files remained with accused A.C. Garg, till the time, these
were returned by him on 17.05.2006 & 19.05.2006. he has also
categorically stated that the entry of demolition is made in the 'Misal
Band' register only when the file is received in his section i.e. in the
office of the Office Incharge (Building), SP Zone, MCD and thereafter,
CBI Vs. A.C.Garg etc. (RC 4(E)/2006) Page 67 of 133 Special Judge, CBI01, Central, Delhi
the demolition action plan is prepared. He has further deposed that in
this case also, the entry of demolition order was made in 'MisalBand'
register, after the files were received from accused Avinash Chander
Garg. He has further deposed that in this case, the properties
mentioned in the files, which were returned by accused Avinash
Chander Garg were not included in the demolition plan.
87. PW38 Sh.Mukesh Kumar, LDC from Building Department of the
MCD SP Zone, has also corroborated the depositions of PW34 M.M.
Khan, Executive Engineer (Building) and PW44 Gajender Kumar. He
has also deposed that the letter dated 30.12.2005, Ex.PW34/D, the
letter dated 02.02.2006, Ex.PW34/E and the reminder dated
27.04.2006, Ex.PW34/F, were sent to accused A.C. Garg by his
Executive Engineer and the same were dispatched from his section,
asking A.C.Garg to return the U/C files and hand over the same to the
office incharge (building). He has further stated that the details of the
25 files was mentioned in the said letter and in response to the
aforesaid official letter, accused A.C. Garg returned the 15 U/C files on
17.05.2006, 19.05.2006 & 22.05.2006. He has further deposed that
CBI Vs. A.C.Garg etc. (RC 4(E)/2006) Page 68 of 133 Special Judge, CBI01, Central, Delhi
the relevant entries regarding handing over of these files were made in
the diary register by Mr. Bahadur, Beldar. The diary register has been
proved on record as E.xPW38/A. During his crossexamination, PW38
Mukesh Kumar has also categorically stated that during the relevant
period accused A.C. Garg, A.E. was also having additional charge of
Executive Engineer and he was looking after the work of Executive
Engineer of SP Zone, MCD.
88. During the investigations, IO S.I. Sanjay Dubey also sought the
details of tenure and postings of accused A.C.Garg, A.E. (Bldg.), from
the Office of the Deputy Commissioner, SP Zone, MCD, Delhi, in
response to which, the details Ex.PW.34/C were furnished to him. As
per details Ex.PW.34/C, accused A.C.Garg was also discharging the
duties as J.E. for the period w.e.f. 08.07.2005 to 09.04.2006. He was
also discharging the duties as A.E., during the period w.e.f. 08.07.2005
to 09.04.2006. It is also mentioned that during this period, Sh. Ashok
Kumar, A.E. posted in Ward No. 107, 108 was on leave. Accused
A.C.Garg has also discharged the duties as E.E., during the period
w.e.f. 25.08.2004 to 19.12.2005.
CBI Vs. A.C.Garg etc. (RC 4(E)/2006) Page 69 of 133 Special Judge, CBI01, Central, Delhi
89. The above evidence clearly indicates that unauthorized
constructions were being done at the properties bearing No. 2747
2748, at Ward No. 7, Gali Arya Samaj, Bazar Sitraram Delhi, in Sadar
Paharganj Zone of the MCD, in violation of the building bylaws of the
MCD and without any sanctioned building plan. The said illegal and
unauthorized constructions were also booked for demolition by the
accused A.C. Garg, by passing appropriate demolition orders under the
DMC Act in the respective U/C files. But, he deliberately and
intentionally kept the said files with him and had not forwarded the
same to the Office Incharge (Building) for taking the demolition action.
As per the circular, dated 16.12.2003, issued by the MCD, he was
required to send the concerned files pertaining to the unauthorized
construction, after passing of the demolition order, to the Office
Incharge (Building), for preparing the priority list for taking the
demolition action.
90. The relevant extract of the circular, dated 16.12.2003 is
reproduced below, for ready reference :
CBI Vs. A.C.Garg etc. (RC 4(E)/2006) Page 70 of 133 Special Judge, CBI01, Central, Delhi
MUNICIPAL CORPORATION OF DELHI
COMMISSIONER'S OFFICE
No. D/38/EE(B) HQ9/03 Dated : 16.12.03
Subject : Manual of Instructions on Unauthorised
Construction.
1. Checking of Unauthorised Construction
.....xxxxx.....xxxxx.....xxxx.....xxxxx
2. Delegations of powers to officials of
Corporation to control the Building Activity.
.....xxxxx.....xxxxx......xxxxx.....xxxxx
Powers as delegated by Commissioner
under the Act to varius officers of the Building
Department were circulated vide office order No.
56/SE(B)/HQ/97/UDC11 dated 2.9.1997.
3. Actions that are to be taken against
unauthorised Constructions
A. For construction carried out without any
Approval
Whenever any unauthorised construction is
detected, which is being carried out in contravention
of the provision of Section 332 of the Act, actions in
the following chronological order are required to be
taken.
i) An F.I.R. is to be prepared by the Junior Engineer
at the site of construction in a printed book duly
numbered. The Executive Engineer of the zone
issues this book. (Refer Format) It is to be ensured
that all columns of this F.I.R. are carefully filled up.
ii) This F.I.R. is to be placed by the J.E. concerned
CBI Vs. A.C.Garg etc. (RC 4(E)/2006) Page 71 of 133 Special Judge, CBI01, Central, Delhi
to his next superior officer i.e. A.E. on the very same
day for appropriate orders.
iii) A Show Cause Notice under section 344 (1) and
section 343 shall be prepared by the Junior Engineer
according to the orders of A.E. on the F.I.R. and the
same shall be placed before the Assistant Engineer
for his approval and signatures. Entry of the F.I.R.
and notices shall be made by Office Incharge (O.I.) in
the 'Misal Band' register (Refer Format) on the same
day. The case number as entered in the 'Misal Band'
register shall also be recorded on the F.I.R. and as
well as on the notices. This number shall form an
integral part of the number assigned to each of the
files on unauthorised construction in the particular
property number for all future references. It shall be
the responsibility of E.E. (Bldg.) of the zone to close
the said 'Misal Band' register at the end of each day.
iv) In addition to action as stipulated in paragraph (iii)
above, J.E. will prepare a requisition (Refer Format)
under section 344 (2) of the DMC Act for the police
intervention on the very same day as per the
instructions issued vide Office Order No. D/97/EE (B)
HQ dated 6th February 2003.
v) In case it is found that owner / builder is still
continuing with the work a complaint is to be lodged
with the concerned police station U/s 46 A of the
DMC Act, 1957 (As amended) read with section
34/120 of the Indian Penal Code (Refer Format).
vi) A Show Cause Notice under section 344 (1) and
section 343 (Refer Format) will be served by the
Junior Engineer under the signature of Assistant
Engineer as laid down under section 444 of the Act
on Owner / Building/Occupier.
vii) Simultaneously, action for prosecution should be
initiated under section 332 read with section 461 and
CBI Vs. A.C.Garg etc. (RC 4(E)/2006) Page 72 of 133 Special Judge, CBI01, Central, Delhi
if building material / Malba is found lying at the site of
work prosecution action under section 325 read with
section 461 should also be taken. This action shall
be proceeded with soon after service of notice under
section 344(1) and section 343.
viii) After expiry of the period of Show Cause notice
served upon the Owner/Builder/Occupier, Assistant
Engineer will pass an appropriate order for demolition
under section 343.
ix) Action for sealing of the property shall also be
initiated under section 345 A of the Act as per the
instructions contained in Office Order No.
D/285Addl.Cm.(E)/2000 dated 13th September 2000.
Whenever, sealing action for any property is
contemplated and the property in question is found
occupied, vacation notice under section 349 read
with section 346 be issued (Refer Format).
x) The procedure to be followed for launching
prosecution action has been laid down in Office
Order No. 8/C dated 19.3.866 issued under the
signatures of Commissioner.
xi) After expiry of period of demolition notice, formal
orders for demolition shall be passed by the Assistant
Engineer and file sent to the Office Incharge (O.I.) for
demolition purposes. The demolition action will be
taken as per the instructions contained in Office
Order No. D/845/E.E. (B) HQ dated 22.1.2000.
xii) At the time of demolition, if any property is found
locked, a notice is to be issued to owner/occupier
under section 435 (Refer Format).
xiii) The test checks to be applied by various officers
for unauthorised constructions are mentioned in
Office order No. 459/Addl. CM. (E)/2001 dated 4th
July, 2001.
xiv) After demolition action has been taken,
CBI Vs. A.C.Garg etc. (RC 4(E)/2006) Page 73 of 133 Special Judge, CBI01, Central, Delhi
demolition charges shall be recovered from the
Owner /Builder/Occupier as per the instructions
contained in Circular No. D//318/EE (B) HQ dated
17.4.01. In case where Building department could
not recover demolition charges, the same shall be got
recovered as arrears of Taxes as per instructions laid
down in Circular No. 610/Dy. A&C (HQ)/7677 dated
19.1.77
B. For construction that is carried out with approval
.....xxxx.....xxxxx.....xxxxx.....xxxxx
4. Responsibility and Accountability
.....xxxx.....xxxxx.....xxxxx.....xxxxx
.......................
Sd/
(Rakesh Mehta)
Commissioner
91. From Clause3A (xi) of the circular dated 16.12.2013, it is clear
that after expiry of the period of demolition notice, the formal orders for
demolition were to be passed by the Asstt. Engineer and he was also
required to send the file to the Office Incharge (Building) for the
demolition purposes. It is also mentioned that the demolition action
shall be taken as per the instructions contained in office order No.
D/845/EE (B)/HQ dated 22.01.2000. It is pertinent to mention here
that during the relevant time, accused A.C. Garg was discharging the
dual duties as Asstt. Engineer (Bldg.) as well as Executive Engineer
CBI Vs. A.C.Garg etc. (RC 4(E)/2006) Page 74 of 133 Special Judge, CBI01, Central, Delhi
(Bldg.) and he had issued all the necessary show cause notices, self
demolition notices as well as the demolition orders, as prescribed
under the DMC Act. But, he deliberately and intentionally retained the
U/C files with him, till 17.05.2006, 19.05.2006 & 22.05.2006, despite
being terminated from the services on 07.04.2006.
92. The office order dated 22.11.2000 is also reproduced below :
MUNICIPAL CORPORATION OF DELHI
(COMMISSIONER OFFICE)
No. D/845/E.E. (B)/HQ Dated 22.11.2000
OFFICE ORDER
In partial modification of office order No. 11/C dated
4.4.86, priorities for the demolition of unauthorised
constructions will be as under:
Priority :
a) Cases of unauthorised construction of commercial nature
such as markets, office godowns which have been
dismissed / remanded from the courts.
b) Unauthorised construction of commercial nature including
cases where unauthorised structure was demolished and
has been reconstructed.
c) All cases of commercial as well as residential nature
where sanction of building plans is revoked.
d) Unauthorised construction of new colonies on green
agriculture land / private land.
e) Unauthorised construction of commercial as well as
residential nature, which has either been dismissed from
the court or court has passed orders for demolition
CBI Vs. A.C.Garg etc. (RC 4(E)/2006) Page 75 of 133 Special Judge, CBI01, Central, Delhi
including the case of unauthorised construction which
effect rights (light, ventilation, passed etc.) of neighbours.
f) Cases which are specifically referred by L.G., Ministry of
Urban Development and Public Grievance Commission of
Delhi Government.
g) Cases of unauthorised construction affected by any
scheme or coming in the Right of way of roads.
Others
a) Unauthorised constructions of residential nature in set
backs of residential and nonresidential buildings.
b) Cases regularised under the policy announced vide
circular No. D/999/ADDL.CM (E)/99 dated 1299, circular
No. D/1093/ADDL.CM. (E)/99 dated 3599 and No.
D/201/Addl. CM. (E)/2000 dated 2062000. While fixing
interse priority the first priority under this category is to
be given to those cases where there is an additional
storey beyond what is permitted under the present
building norms.
c) All other cases which are not covered in priorities
mentioned above
Following procedure for demolitions will be followed :
1. The intersepriority for demolition of unauthorised
construction in above two categories will be fixed by the
concerned Executive Engineer (B) himself, the guidelines
principle being that in the same category, in which
demolition orders have been passed last, will be
demolished first.
2. The cases will be entered in the Demolition Register
section wise i.e. the matured cases of the area of each
Junior Engineer will be recorded separately in the
Demolition Register in the order detailed above the
demolition action will be taken by the Junior Engineer
accordingly.
CBI Vs. A.C.Garg etc. (RC 4(E)/2006) Page 76 of 133 Special Judge, CBI01, Central, Delhi
3. Out of turn demolition action can be taken, where deemed
necessary after obtaining specified order from the Deputy
Commission of the Zone.
4. Daily demolition programme of the Zone will be specifically
prescribed by the Deputy Commissioner / Superintending
Engineer / Executive Engineer / Assistant Engineer of the
zone in accordance with the men / J.E. wise priorities
prescribed in above paras and will not be left to the lower
staff.
5. Executive Engineer (B) shall personally ensure that on an
average four cases per demolition squad are pulled down
every day. Monthly report on demolition will be sent by
Executive Engineer (B) through Superintending Engineer
of the zone to the Deputy Commissioner (Zones) by 5 th
each month in the Proforma already circulated who will
submit consolidated report to Commissioner by 10 th of
every month.
6. No official of the vigilance Deptt. Below the rank of Deputy
Direction of Vigilance shall call for a file from the Building
Department. The Vigilance Department will not keep the
files of the Building Department for more than 10 days
without approval of the Deputy Commissioner of the
zone. The files concerning unauthorised construction
should be returned by the Vigilance Department after
taking extyracts, if necessary so that the processing of
the Vigilance cases and action on unauthorised
construction go on simultaneously.
7. Site inspection of unauthorised construction cases shall
be carried out to the following extent :
Assistant Engineer (B): 4034 of total cases booked in his
jurisdiction
Executive Engineer (B) : 2034 of total cases booked in
a month.
8. It should be noted that Dy. Commissioners are exclusively
responsible for the administrative control of Building
CBI Vs. A.C.Garg etc. (RC 4(E)/2006) Page 77 of 133 Special Judge, CBI01, Central, Delhi
Department including unauthorised construction and
should take disciplinary action against the erring officials
at their own level.
9. Sometimes complaints are received from zones that
trucks are ... for demolition purposes. Instructions
already exit that zones may engage trucks and labour as
and when required by them on hire.
10. Deputy Commissioner / Superintending Engineer /
Executive Engineer / Assistant Engineer of the zone will
chalk out programme of demolition in such a way that
each J.E. demolishes unauthorised constructions of all
the categories at least once a month each, so that
unauthorised constructions of all categories are
demolished side by side.
This order will take immediate effect and is issued for
strict compliance
Sd/
(S.P. AGGARWAL)
COMMISSIONER
93. The abovementioned office order No. D/845/EE (B)/HQ dated
22.01.2000 has prescribed the priorities for demolition of the
unauthorized constructions. It has also prescribed that the daily
demolition program of the zone will be specifically prescribed by the
DC / SE / EE / AE of the zone. It was further prescribed that the
Executive Engineer Building shall personally ensure that on an
average, four cases per demolition squad were pulled down every day,
CBI Vs. A.C.Garg etc. (RC 4(E)/2006) Page 78 of 133 Special Judge, CBI01, Central, Delhi
Monthly report on demolition will be sent by Executive Engineer
(Bldg.)through SE of the zone to the Dy. Commissioner Zone by 05 th of
each month in the prescribed proforma. But, the provisions of this
office order were also never followed by accused A.C. Garg,
deliberately and intentionally, only to favour the other accused persons.
94. Furthermore, the accused A.C.Garg has also failed to comply the
directions issued vide circular No. D/78/Addl. CM (E)/97 dated
21.03.1997. The said circular is also reproduced below, as under:
MUNICIPAL CORPORATION OF DELHI
(OFFICE OF ADDITIONAL COMMISSIONER {ENGG})
TOWN HALL : DELHI
No. D/78/ADDL. CM.(E)/97 DATED: 21ST MARCH, 1997
C I R C U L A R
It has been emphasised time and again that all out
efforts should be made to stop the ongoing unauthorised
constructions. In the last meeting of the Deputy Municipal
Commissioners held on 18.3.1997, the Commissioner
impressed upon the officers concerned that the
constructions in progress, which are without any
sanctioned building plans or are in violation of the building
byelaws, should be targetted for necessary action in the
first instance. It was emphasised that all the ongoing
unauthorised constructions should be investigated on
priority for demolition action as per rules.
CBI Vs. A.C.Garg etc. (RC 4(E)/2006) Page 79 of 133 Special Judge, CBI01, Central, Delhi
2. The Lt. Governor has further directed that Municipal
Corporation of Delhi, for the present, should focus its
energies on ongoing violations / constructions /
encroachments and not start reopening old cases of
violation of building byelaws.
3. The instructions may please be noted for strict
compliance.
Sd/
( V.S.SHARMA )
ADDITIONAL COMMISSIONER (ENGG)
95. It has been held by the Hon'ble High Court of Delhi, in case titled
as, "Runu Ghosh vs. C.B.I", reported as, "2011 SCC OnLine Del
5501", as under :
" 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 preexisting law, as well as the decisions of
the Courtthe conclusion which this court draws is that
mens rea is inessential to convict an accused for the
offence under Section 13(1)(d)(iii). It would be sufficient
if the prosecution proves that the public servant "obtains"
by his act, pecuniary advantage or valuable thing, to
another, without public interest. The inclusion of public
interest, in the opinion of the Court, tips the scale in
favour of a construction which does not require proof of
mens rea. There can be many acts of a public servant,
which result in pecuniary advantage, or obtaining of a
valuable thing to someone else; typically these may
relate to payment of royalty, grant of license of
CBI Vs. A.C.Garg etc. (RC 4(E)/2006) Page 80 of 133 Special Judge, CBI01, Central, Delhi
concessions, issuance of permits, authorizations, etc.
Yet, such grants, concessions, or other forms of
advantages to third parties would not criminalize the
public servant's 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 rule 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 servant's 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 Cooperative 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"
xxxx xxxx xxxx
"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 police.
Therefore, when a public servant's decision exhibits
CBI Vs. A.C.Garg etc. (RC 4(E)/2006) Page 81 of 133 Special Judge, CBI01, Central, Delhi
compete 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(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)(iii) may
or may not entail the act being without public interest.
This offenceunder 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, (offence
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 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 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
CBI Vs. A.C.Garg etc. (RC 4(E)/2006) Page 82 of 133 Special Judge, CBI01, Central, Delhi
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 servant's 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.
xxxx xxxx xxxx
81. As notice previously, the silence in the statute,
about the state of mind, rules out applicability of the mens
rea or intent standard, (i.e. the prosecution does not have
to prove that the accused intended the consequence,
which occurred or was likely to occur). Having regard to
the existing law Section 13(1)(1)(e) (which does not
require proof of criminal intent) as well as the strict
liability standards prevailing our system of law, therefore,
a decision is said to be without public interest, (if the
other requirements of the provision, i.e. Section 13(1)(d)
(iii) are fulfilled) if that action of the public servant is the
consequence of his or her manifest failure to observe
those reasonable safeguards against detriment to the
public interest, which having regard to all circumstances,
it was his or her duty to have adopted.
82. It would be useful to in this context, take recourse
to certain examples. For instance, in not adopting any
discernable criteria, in awarding supply contract, based
on advertisements calling for responses, published in
newspapers having very little circulation, two days before
CBI Vs. A.C.Garg etc. (RC 4(E)/2006) Page 83 of 133 Special Judge, CBI01, Central, Delhi
the last date of submission of tenders, which result in a
majority of supplies being left out of the process, and
resultant award of permits to an unknown and untested
supplier, would result in advantage to that individual, and
also be without public interest, as the potential benefit
from competitive bids would be eliminated. Likewise,
tweaking tender criteria, to ensure that only a few
applicants are eligible, and ensure that competition (to
them) is severely curtailed, or eliminated altogether, thus
stifling other lines of equipment supply, or banking on
only one life saving drug supplier, who with known
inefficient record, and who has a history of supplying sub
standard drugs, would be acts contrary to public interest.
In all cases, it can be said that public servant who took
the decision, did so by manifestly failing to exercise
reasonable proper care and precaution to guard against
injury to public interest, which he was bound, at all times
to do. The intention or desire to cause the consequence
may or may not be present; indeed it is irrelevant; as long
as the decision was taken, which could not be termed by
any yardstick, a reasonable one, but based on a
complete or disregard of consequence, that act would be
culpable.
83. The test this Court has indicated is neither
doctrinaire, nor vague; it is rooted in the India legal
system. A public servant acts without public interest,
when his decision or action is so unreasonable that no
reasonable man, having regard to the entirety of
circumstances, would have so acted; it may also be that
while deciding or acting as he does, he may not intend
the consequence, which ensues, or is likely to ensue, but
would surely have reasonable foresight that it is a likely
one, and should be avoided. To put in differently, the
public servant acts without public interest, if his action or
decision, is by manifestly failing to exercise reasonable
CBI Vs. A.C.Garg etc. (RC 4(E)/2006) Page 84 of 133 Special Judge, CBI01, Central, Delhi
precautions to guard against injury to public interest,
which he was bound, at all times to do, resulting in injury
to public interest. The application of this test has to
necessarily be based on the facts of each case; the
standard however, is objective. Here, one recollects the
following passage of Justice Holmes in United States vs.
Wurzach 1930 (280) US 396 :
"Wherever the law draws a line there will be cases
very near each other on opposite sides. The precise
course of the line may be uncertain, but no one can come
near it without knowing that he does so, if he thinks, and
if he does so it is familiar to the criminal law to make him
take the risk"
(emphasis supplied by me)
96. In the present case also the aforesaid acts of accused A.C. Garg,
AE (Bldg.) / EE (Bldg.), in not sending the U/C files to the office
incharge (Building) for taking demolition action, has also resulted in
pecuniary advantage to his coaccused, without public interest. His
aforesaid acts exhibit complete and manifest disregard to public
interest with the corresponding result of the other accused persons
obtaining illegal pecuniary advantage and therefore, accused A.C.
Garg, AE (Bldg.) / EE (Bldg.), is necessarily to be fastened with the
responsibility for "criminal misconduct" under Section 13(1) (d) (iii) of
the P.C. Act, 1988. The aforesaid acts also points towards an inherent
CBI Vs. A.C.Garg etc. (RC 4(E)/2006) Page 85 of 133 Special Judge, CBI01, Central, Delhi
criminal conspiracy between the accused A.C. Garg and the remaining
coaccused.
97. The main defence of the accused A.C.Garg, as argued by his Ld.
Defence counsel has remained that the unauthorized constructions in
the property bearing No. 27472748, situated at Ward No. 8, Gali Arya
Samaj, Bazar Sitaram, Delhi, could not be demolished only because of
the pendency of the suit bearing No.262/05, which was filed by PW49
Satish Chand Goel, in which the MCD was also a respondent. But, I
do not find any merit in the said submissions of the Ld. Defence
counsel, as the pendency of the civil suit against the MCD is no ground
for not taking the demolition action against the unauthorized
constructions. On the contrary, the suit No. 262/05 was filed by
complainant Satish Chand Goel (PW49), for permanent injunction,
wherein, it was prayed by him that the respondents, including the MCD,
be restrained from carrying out any unauthorized constructions in the
said properties, in violation of the building bylaws and without any
sanctioned building plan from the MCD. It was further prayed that the
unauthorized constructions done by accused Mamta Nehra and Gopal
CBI Vs. A.C.Garg etc. (RC 4(E)/2006) Page 86 of 133 Special Judge, CBI01, Central, Delhi
Krishan Aggarwal, may be demolished. In the said suit the
respondents, i.e., the accused Mamta Nehra and Gopal Krishan
Aggarwal were restrained from the carrying out the unauthorized
constructions in the aforesaid properties, vide orders dated 14.10.2005.
The MCD was not restrained by the court from taking demolition action
against the unauthorized constructions. The case file of suit No. 262 /
05 titled as, "Satish Chand Goel vs. Mamta Nehra & Ors", has been
proved on record as Ex.PW24/A.
98. Perusal of the record further shows that suit No. 262/05 was filed
before the concerned court on 07.10.2005, but, the unauthorized
constructions in property No. 2748, Gali Arya Samaj, Bazar Sitaram,
Delhi, were booked for unauthorized constructions on 24.08.2005, vide
U/C file No. 98/B/U/C/SPZ/05 and demolition order was passed by
accused A.C. Garg on 05.09.2005. The unauthorized construction on
property NO. 2747 was booked on 24.10.2005 vide UC file No.
126/B/U/C/SPZ/05 and the demolition order in the said file was passed
by accused A.C Garg on 04.11.2005. It is also relevant to mention
here that accused A.C. Garg filed a written statement in the said suit,
CBI Vs. A.C.Garg etc. (RC 4(E)/2006) Page 87 of 133 Special Judge, CBI01, Central, Delhi
on behalf of the MCD, on 05.12.2005, wherein, he conceded that the
unauthorized constructions were being done in the said properties and
the same have been booked for demolition. But, he deliberately and
intentionally kept the U/C files with him, so that no demolition action
could be taken against the unauthorized constructions in these
properties.
99. During the trial, the accused or their Ld. Defence counsels have
failed to produce any notice / circular or office memorandum of the
MCD which prohibits the demolition of the unauthorized constructions,
in respect of which the demolition orders have already been passed.
On the contrary, the circulars and office memorandums of the MCD
had clearly specified that these files should be taken up on priority
basis for demolition.
100. The next argument of the Ld. Defence counsels has remained that
there is no material or cogent evidence on record to prove any
conspiracy between the accused persons. In the case titled as,
"K.R.Purushothaman Vs State of Kerala, reported as, "(2005) 12
Supreme Court Cases, 631, it was held by the Hon'ble Supreme
CBI Vs. A.C.Garg etc. (RC 4(E)/2006) Page 88 of 133 Special Judge, CBI01, Central, Delhi
Court as under:
11. Section 120A IPC defines "criminal conspiracy".
According to this Section when two or more persons
agree to do, or cause to be done (i) an illegal act, or (ii)
an act which is not illegal by illegal means, such an
agreement is designated a criminal conspiracy. In Major
E.G.Barsay V. State of Bombay Subba Rao J., speaking
for the Court has said :(SCR p.228)
"The gist of the offence is an agreement to break the law.
The parties to such an agreement will be guilty of criminal
conspiracy, though the illegal act agreed to be done has
not been done. So too, it is not an ingredient of the
offence that all the parties should agree to do a single
illegal act. It may comprise the commission of a number
of acts."
12. In State V. Nalini it was observed by S.S.M. Quadri, J.
at JT para 677: (SCC pp.56869, para 662) "In reaching the stage of meeting of minds, two or more persons share information about doing an illegal act or a legal act by illegal means. This is the first stage where each is said to have knowledge of a plan for committing an illegal act or a legal act by illegal means. Among those sharing the information some or all may form an intention to do an illegal act or a legal act by illegal means. Those who do form the requisite intention would be parties to the agreement and would be conspirators but those who drop out cannot be roped in as collaborators on the basis of mere knowledge unless they commit acts or omissions from which a guilty common intention can be inferred. It is not necessary that all the conspirators should participate from the inception to the end of the conspiracy; some may join the conspiracy after the time when such intention was first entertained by any one of them and some others may quit from the CBI Vs. A.C.Garg etc. (RC 4(E)/2006) Page 89 of 133 Special Judge, CBI01, Central, Delhi conspiracy. All of them cannot but be treated as conspirators. Where in pursuance of the agreement the conspirators commit offences individually or adopt illegal means to do a legal act which has a nexus with the object of conspiracy, all of them will be liable for such offences even if some of them have not actively participated in the commission of those offences."
13. To constitute a conspiracy, meeting of minds of two or more persons for doing an illegal act or an act by illegal means is the first and primary condition and it is not necessary that all the conspirators must know each and every detail of the conspiracy. Neither is it necessary that every one of the conspirators take active part in the commission of each and every conspiratorial acts. The agreement amongst the conspirators can be inferred by necessary implication. In most of the cases, the conspiracies are proved by the circumstantial evidence, as the conspiracy is seldom an open affair. The existence of conspiracy and its objects are usually deduced from the circumstances of the case and the conduct of the accused involved in the conspiracy. While appreciating the evidence of the conspiracy, it is incumbent on the court to keep in mind the wellknown rule governing circumstantial evidence viz. each and every incriminating circumstance must be clearly established by reliable evidence and the circumstances proved must form a chain of events from which the only irresistible conclusion about the guilt of the accused can be safely drawn, and no other hypothesis against the guilt is possible. Criminal conspiracy is an independent offence in the Penal Code. The unlawful agreement is sine qua non for constituting offence under the Penal Code and not an accomplishment. Conspiracy consists of the scheme or adjustment between two or more persons which may be express or implied or partly CBI Vs. A.C.Garg etc. (RC 4(E)/2006) Page 90 of 133 Special Judge, CBI01, Central, Delhi express and partly implied. Mere knowledge, even discussion, of the plan would not per se constitute conspiracy. The offence of conspiracy shall continue till the termination of agreement.
14. Suspicion cannot take the place of legal proof and prosecution would be required to prove each and every circumstance in the chain of circumstances so as to complete the chain. It is true that in most of the cases, it is not possible to prove the agreement between the conspirators by direct evidence but the same can be inferred from the circumstances giving rise to conclusive or irresistible inference of an agreement between two or more persons to commit an offence. It is held in Noor Mohd. Mohd. Yusuf Momin V. State of Maharashtra, that:
(SCC pp.699700, para 7) "[I]n most cases proof of conspiracy is largely inferential though the inference must be founded on solid facts. Surrounding circumstances and antecedent and subsequent conduct, among other factors, constitute relevant material."
15. It is cumulative effect of the proved circumstances which should be taken into account in determining the guilt of the accused. Of course, each one of the circumstances should be proved beyond reasonable doubt. 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. While speaking for the Bench it is held by P. Venkatarama Reddi, J. in State (NCT of Delhi) V. Navjot Sandhu (p.63) as follows:
(SCC pp.69192, para 103) "103. We do not think that the theory of agency can be extended thus far, that is to say, to find all the conspirators guilty of the actual offences committed in execution of the common design even if such offences were ultimately committed by some of them, without the CBI Vs. A.C.Garg etc. (RC 4(E)/2006) Page 91 of 133 Special Judge, CBI01, Central, Delhi participation of others. We are of the view that those who committed the offences pursuant to the conspiracy by indulging in various overt acts will be individually liable for those offences in addition to being liable for criminal conspiracy; but, the nonparticipant conspirators cannot be found guilty of the offence or offences committed by the other conspirators. There is hardly any scope for the application of the principle of agency in order to find the conspirators guilty of a substantive offence not committed by them. Criminal offences and punishments therefor are governed by the statute. The offender will be liable only if he comes within the plain terms of the penal statute.
Criminal liability for an offence cannot be fastened by way of analogy or by extension of a common law principle.
(emphasis supplied by me)
101. Perusal of the record further shows that PW2 Pankaj Srivastava, PW7 Anita Gupta, PW12 Smt. Shakuntala Sharma, PW13 Ms. Charu Saxena, PW14 Smt. Madhuri Mishra, PW15 Sarvesh Mishra, PW18 Ms. Divya Kanojia, PW19 Ms. Yojna Sharma, PW20 Ms. Pushpa Rani, PW21 Ms. Triveni Devi, PW22 Sh. Madan Lal Sain, PW23 Alok Kumar Sharma, PW26 Rishab Gupta, PW27 Amit Sharma and PW 37 Rakesh Kumar Sharma, have all deposed that they had purchased different flats at property No. 2748, Gali Arya Samaj, Bazar Sitaram, Delhi, from accused Srikishan Vashisth. They have also proved the sale deeds of their respective flats, on record. During the course of CBI Vs. A.C.Garg etc. (RC 4(E)/2006) Page 92 of 133 Special Judge, CBI01, Central, Delhi investigations, PW30 Virender Kumar, from the office of Sub RegistrarIII, Asaf Ali Road, had handed over the certified photocopies of 16 sale deeds, to Inspector Sanjay Dubey, vide letter Ex.PW30/A. The certified photocopies of the sale deeds are also on record and these sale deeds have been duly proved by the aforesaid witnesses, who purchased the flats from accused Srikishan Vashisth.
102. Perusal of the record further shows that vide sale deed dated 27.01.2005, PW47 Subhash Chand Goel had sold the Eastern portion of the property bearing NO. 27472748, measuring about 335 sq. yards to accused Mamta Nehra. The said property was resold by accused Mamta Nehra to accused Naresh Kumar Sekhari, vide sale deed dated 31.08.2005. The said property was again sold by accused Naresh Kumar Sekhari to accused Srikishan Vashisth, vide sale deed dated 30.11.2015. Thereafter, accused Srikishan Vashisth sold various illegally and unauthorizedly constructed flats on the said property, to various unsuspecting and innocent buyers, who have been examined as prosecution witnesses, during the trial.
103. PW2 Ankit Srivastava has proved the sale deed of his flat No. CBI Vs. A.C.Garg etc. (RC 4(E)/2006) Page 93 of 133 Special Judge, CBI01, Central, Delhi 101, as Ex.PW2/C. During his examination before the court, he had categorically stated that he purchased the said property from accused Srikishan Vashisth for a total amount of Rs. 4 Lacs, out of which an amount of Rs.1,50,000 was paid to him through cheque No. 246605 from his bank account No. 27673 at Oriental Bank of Commerce, Chawri Bazar, Delhi, whereas, the remaining amount of Rs.2.50 Lacs was paid in cash.
104. PW7 Anita Gupta has also proved the sale deed of her flat No. 112, as Ex.PW7/A. She had also deposed that she purchased the said flat from accused Srikishan Vashisth.
105. PW12 Smt. Shakuntala Sharma has also proved the sale deed of her property, measure 60 sq. yards on first floor of the property bearing No. 2748, Ward No. 8, Gali Arya Samaj, Bazar Sitaram, Delhi6, as Ex.PW12/A. She has also stated that she purchased the said property from accused Srikishan Vashisth. This witness has also identified accused Srikishan Vashisth in the court, during her deposition.
106. PW13 Ms. Charu Saxena has also proved the sale deed of her flat No. 106, on property No. 2748, Ward No. 8, situated at Gali Arya CBI Vs. A.C.Garg etc. (RC 4(E)/2006) Page 94 of 133 Special Judge, CBI01, Central, Delhi Samaj, Bazar Sitaram, Delhi, as Ex.PW13/1.
107. PW14 Smt. Madhuri Mishra has also deposed that she alongwith her husband Sarvesh Mishra (PW15) purchased flat No. 107, from accused Srikishan Vashisth and she had already sold the said property to one Sh. Rajkumar Sharma.
108. PW15 Sarvesh Mishra has also deposed that he alongwith his wife purchased flat No. 107, from accused Srikishan Vashisth and he had already sold the said property to one Sh. Rajkumar Sharma. The sale deed of the property has been placed on record as Ex.PW15/B. This witness has also stated that vide letter Ex.PW15/A, he provided the information along with the photocopy of the sale deed to the IO of this case.
109. PW18 Ms. Divya Kanojya, has also proved the sale deed of her flat No. 109, as Ex.PW18/B. She has also deposed that the said property was purchased by her from accused Srikishan Vashisth.
110. PW19 Ms. Yojna Sharma has also proved the sale deed of her flat No. 111, as Ex.PW19/C. She has also deposed that the said property was purchased by her from accused Srikishan Vashisth.
CBI Vs. A.C.Garg etc. (RC 4(E)/2006) Page 95 of 133 Special Judge, CBI01, Central, Delhi
111. PW20 Pushpa Rani has also proved the sale deed of her flat No. 105, as Ex.PW20/C. She has also deposed that the said property was purchased by her from accused Srikishan Vashisth.
112. PW21 Ms. Triveni Devi has also proved the sale deed of her flat No. 108, as Ex.PW21/B. She has also deposed that the said property was purchased by her from accused Srikishan Vashisth.
113. PW22 Madan Lal Sain has also proved the sale deed of his flat No. 113, as Ex.PW22/C. He has also deposed that the said property was purchased by him from accused Srikishan Vashisth.
114. PW23 Alok Kumar Sharma has also deposed that his mother had purchased flat No. 105, from accused Srikishan Vashisth.
115. PW26 Rishab Gupta has also deposed that his mother Smt. Anita Gupta purchased flat No. 112 from accused Srikishan Vashisth for a consideration of Rs. 3 Lacs. The sale deed dated 04.09.2006 executed by accused Srikishan Vashisth in favour of his mother Anita Gupta has been proved on record as Ex.PW26/C.
116. PW27 Amit Sharma has also proved the sale deed of his flat No. 117, as Ex.PW27/A. He has also deposed that the said property was CBI Vs. A.C.Garg etc. (RC 4(E)/2006) Page 96 of 133 Special Judge, CBI01, Central, Delhi purchased by him from accused Srikishan Vashisth.
117. PW37 Rakesh Kumar Sharma has also deposed that he purchased his property bearing House No. 2748, Ground Floor, Four Storeyed Building, Gali Arya Samaj, Bazar Sitaram, Delhi, from accused Naresh Kumar Sekhari, vide sale deed dated 21.10.2005, Ex.PW37/A.
118. The depositions of the aforesaid witnesses clearly indicate that accused Mamta Nehra purchased 335 sq. yards of property No. 2747 2748, from its erstwhile owner Subhash Chand Goel and coaccused G.K. Aggarwal purchased the other portion of the property from Smt. Rani Goel wife of Kamal Chand Goel (since deceased). Thereafter, she along with coaccused Naresh Kumar Sekhri, Srikishan Vashisth and Gopal Krishan Aggarwal, got constructed various flats on the said property, in violation of the building bylaws of the MCD without any sanctioned building plan. Thereafter, the aforesaid accused persons sold the aforesaid illegally and unauthorisedly constructed flats for different considerations to different innocent buyers.
119. The material cogent evidence on record, as discussed above, has CBI Vs. A.C.Garg etc. (RC 4(E)/2006) Page 97 of 133 Special Judge, CBI01, Central, Delhi clearly proved the entire conspiracy between the accused Avinash Chander Garg, A.E. (Bldg.) / E.E. (Bldg.) and the coaccused Gopal Krishan Aggarwal, Mamta Nehra, Naresh Sekhari and Srikishan Vashisth. But, no cogent or material evidence has come on record to prove, beyond a shadow of doubt, that the accused Kishan Lal and Abhinav Aggawal were also a part of the entire conspiracy. Mere knowledge, on the part of accused Kishan Lal and Abhinav Aggarwal that the remaining coaccused, namely. Gopal Krishan Aggarwal, Mamta Nehra, Naresh Sekhari and Srikishan Vashisht were carrying out the unauthorized constructions in their properties, in violation of the building bylaws and without any sanctioned building plan from the MCD, is not sufficient to make them a coconspirator.
120. Accused Kishan Lal is alleged to have issued some cheques from his firm M/s Trade Group (India) to the firm of coaccused Gopal Krishan Aggarwal, M/s. M.G. Printers & Stationers, but, the same is also not sufficient to hold that the said cheques were issued by accused Kishan Lal as an act for completing the common object of the conspiracy. The said cheques might have been issued by accused CBI Vs. A.C.Garg etc. (RC 4(E)/2006) Page 98 of 133 Special Judge, CBI01, Central, Delhi Kishan Lal from his firm to the firm of coaccused Gopal Krishan Aggarwal, as a routine business transaction. The prosecution has failed to prove miserably, by cogent evidence that the said cheques were issued by accused Kishan Lal from his firm to the firm of accused Gopal Krishan Aggarwal as a beneficiary of the entire conspiracy.
121. The link evidence between the two acts is missing. As far as the case of accused Abhinav Aggarwal is concerned, there are allegations that accused Abhinav Aggarwal, being the son of coaccused Gopal Krishan Aggarwal, was also involved in the entire conspiracy as he had talked to coaccused A.C. Garg, AE/EE, on various occasions. In the considered opinion of this court, being the son of a conspirator does not make him a coconspirator. His telephonic calls with coaccused A.C. Garg are not sufficient to make him a coconspirator in the present case. Even the call details record could not be proved during the trial, in accordance with law.
Sanction for Prosecution
122. Let us now examine the other contention of the Ld. Defence counsels, regarding the validity of the sanction for prosecution of CBI Vs. A.C.Garg etc. (RC 4(E)/2006) Page 99 of 133 Special Judge, CBI01, Central, Delhi accused A.C.Garg (A1), which was granted by PW6 Sh. K.S. Mehra, Commissioner MCD, vide order Ex.PW6/A.
123. The Ld. Defence counsel for the accused A.C. Garg has challenged the validity and legality of the sanction order on two grounds. First, that the Commissioner MCD was not the competent authority to grant the sanction for prosecution of accused A.C. Garg (A1), as the "Corporation", only, was the competent authority to grant sanction for his prosecution as the accused A.C. Garg was CategoryA officer. The Ld. Defence counsel has relied upon the judgment of the Hon'ble High Court of Delhi, in case titled as, "G.S. Matharaoo vs. CBI" (Supra), wherein, it has been held as under:
19. In terms of Section 59(d), DMC Act, it is clear that the power of the Commissioner for disciplinary action is subject to Regulations that may be made thereunder. By virtue of power to make Regulations under Section 480 of the DMC Act, the Corporation vide its notification dated th 15 December, 1976 notified the Schedule to Regulation 7 which provided that for category A posts, the Corporation was the authority competent to impose penalty. This Regulation 7 and the Schedule thereto have not been rescinded till date despite the amendment under Section 59 of the DMC Act. As a matter of fact, the Additional Commissioner (Establishment) had sent a proposal to bifurcate the posts in Category A and as per the CBI Vs. A.C.Garg etc. (RC 4(E)/2006) Page 100 of 133 Special Judge, CBI01, Central, Delhi amendments proposed, it was proposed that for officers of the rank of Deputy Commissioner and above, the authority competent to impose the penalty of removal would be the Corporation and for the post below that of Deputy Commissioner, the Commissioner would be the competent authority...........
20. A perusal of the proposal sent by the Additional Commissioner (Establishment) on 20th September, 2010 itself states that the said amendments in the Regulations was to bring the same in conformity with the provisions of the act and as per the 4th paragraph it was proposed that the existing schedule framed under Regulation 7 as placed as Annexure A may be substituted by the amended schedule as proposed at Annexure B. However, this proposal was not accepted by the Corporation. Thus, it is clear that the Corporation itself is of the considered opinion that the existing schedule needs to be continued. This is contrary to what has been urged by learned counsel for the CBI that the schedule to the Regulations stood repealed by the amendment Act of 1993. Further Section 59(d) of the DMC Act could not be construed to mean that it repealed the existing Regulations and was only subject to the Regulations which would be made after the amendment Act. A plain reading of the provisions of the Act and the Regulations show that the Corporation is the competent authority to remove the Petitioner from the service and not the Commissioner, MCD.
(emphasis supplied by me)
124. During the course of final arguments, the Ld. Sr. PP for the CBI has submitted that the Commissioner, MCD (PW6 Sh. K.S. Mehra), was the competent authority to grant the sanction for prosecution of CBI Vs. A.C.Garg etc. (RC 4(E)/2006) Page 101 of 133 Special Judge, CBI01, Central, Delhi accused A.C. Garg, as he was discharging dual duties as A.E. (Building) as well as E.E. (Building) and the Commissioner MCD was the competent authority to grant sanction for prosecution of any A.E., whereas, the House of the 'Corporation' was the competent authority for grant of sanction for prosecution of any A.E. Furthermore, the competency of the authority concerned is no ground to declare the sanction order as invalid or illegal. He has relied upon the judgment of the Hon'ble Supreme Court, in case titled as, "State of Bihar vs. Rajmangal Ram" (Supra), wherein, it has been held as under :
5. The object behind the requirement of grant of sanction to prosecute a public servant need not detain the court save and except to reiterate that the provisions in this regard either under the Code of Criminal Procedure or the Preventions of Corruption Act, 1988 are designed as a check on frivolous, mischievous and unscrupulous attempts to prosecute a honest public servant for acts arising out due discharge of duty and also to enable him to efficiently perform the wide range of duties case on him by virtue of his office. The test, therefore, is always is -
whether the act complained of has a reasonable connection with the discharge of official duties by the government or the public servant. If such connection exists and the discharge or exercise of the governmental function is, prima facie, founded on the bonafide judgment of the public servant, the requirement of sanction will be insisted upon so as to act as a filter to keep at bay any CBI Vs. A.C.Garg etc. (RC 4(E)/2006) Page 102 of 133 Special Judge, CBI01, Central, Delhi motivated, illfounded and frivolous prosecution against the public servant. However, realising that the dividing line between an act in the discharge of official duty and an act that not, may, at times, get blurred thereby enabling certain unjustified claims to be raised also on behalf of the public servant so as to derive undue advantage of the requirement of sanction, specific provisions h ave been incorporated in Section 19(3) of the Prevention of Corruption Act as well as in Section 465 of the Code of Criminal Procedure, which, inter alia, make it clear that any error, omission or irregularity in the grant of sanction will not affect any finding, sentence or order passed by a competent court unless in the opinion of the court a failure of justice has been occasioned. This how the balance is sought to be struck...................
7. In a situation where under both the enactments any error, omission or irregularity in the sanction, which would also include the competence of the authority to grant sanction, does not vitiate the eventual conclusion in the trial including the conviction and sentence, unless of course a failure of justice has occurred, it is difficult to see how at the intermediary stage a criminal prosecution can be nullified or interdicted on account of any such error, omission or irregularity in the sanction order without arriving at the satisfaction that a failure of justice has also been occasioned. This is what was decided by this Court in State by Police Inspector vs. T. Venkatesh Murthy wherein it has been inter alia observed that, "14. ................ Merely because there is any omission, error or irregularity in the matter of according sanction, that does not affect the validity of the proceeding unless the court records the satisfaction that such error, omission or irregularity has resulted in failure of justice." 8. The above view also found reiteration in Praksh Singh Badal and Another vs. State of Punjab and Other wherein it CBI Vs. A.C.Garg etc. (RC 4(E)/2006) Page 103 of 133 Special Judge, CBI01, Central, Delhi was, inter alia, held that mere omission, error or irregularity in sanction is not to be considered fatal unless it has resulted in failure of justice. In Prakash Singh Badal (Supra) it was further held that Section 19(1) of the P.C. Act is a matter of procedure and does not go to the root of jurisdiction. On the same line is the decision of this Court in R. Venkatkrishnan vs. Central Bureau of Investigation. In fact, a three judge Bench in State of Madhya Pradesh vs. Virender Kumar Tripathi while considering an identical issue, namely, the validity of the grant of sanction by the Additional Secretary of the Department of Law and Legislative Affairs of the Government of Madhya Pradesh instead of the authority in the parent department, this Court held that in view of Section 19(3) of the P.C. Act, interdicting a criminal proceedings midcourse on ground of invalidity of the sanction order will not be appropriate unless the court can also reach the conclusion that failure of justice had been occasioned by any such error, omission or irregularity in the sanction. It was further held that failure of justice can be established not at the stage of framing of charge but only after the trial has commenced and evidence is led (para 10 of the Report).
(emphasis supplied by me)
125. To analyse the arguments of the Ld. Sr. PP for the CBI and the Ld. Defence counsels, let us first have a look at the relevant provisions of Section 19 of the P.C Act, 1988, which is reproduced below :
19. Previous sanction necessary for prosecution. (1) No Court shall take cognizance of an offence punishable under sections 7, 10, 11, 13 and 15 alleged to have been CBI Vs. A.C.Garg etc. (RC 4(E)/2006) Page 104 of 133 Special Judge, CBI01, Central, Delhi committed by a public servant, except with the previous sanction (save as otherwise provided in the Lokpal and Lokayuktas Act, 2013 (1 of 2014)
(a) in the case of a person who is employed in connection with the affairs of the Union and is not removable from his office save by or with the sanction of the Central Government, of that Government;
(b) in the case of a person who is employed in connection with the affairs of a State and is not removable from his office save by or with sanction of the State Government, of that Government;
(c) in the case of any other person, of the authority competent to remove him from his office.
(2) Where for any reason whatsoever any doubt arises as to whether the previous sanction as required under sub section (1) should be given by the Central Government or the State Government or any other authority, such sanction shall be given by that Government or authority which would have been competent to remove the public servant from his office at the time when the offence was alleged to have been committed.
(3) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974);
(a) no finding, sentence or order passed by a special Judge shall be reversed or altered by a Court in appeal, confirmation or revision on the ground of the absence of, or any error, omission or irregularity in, the sanction required under subsection (1), unless in the opinion of that Court, a failure of justice has in fact been occasioned thereby;
(b) no Court shall stay the proceedings under this Act on the ground of any error, omission or irregularity in the sanction granted by the authority, unless it is satisfied that such error, omission or irregularity has resulted in a failure of justice;
CBI Vs. A.C.Garg etc. (RC 4(E)/2006) Page 105 of 133 Special Judge, CBI01, Central, Delhi
(c) no Court shall stay the proceedings under this Act on any other ground and no Court shall exercise the powers of revision in relation to any interlocutory order passed in any inquiry, trial, appeal or other proceedings. (4) In determining under subsection (3) whether the absence of, or any error, omission or irregularity in, such sanction has occasioned or resulted in a failure of justice, the Court shall have regard to the fact whether the objection could and should have been raised at any earlier stage in the proceedings.
Explanation. For the purposes of this section,
(a) error includes competency of the authority to grant sanction;
(b) a sanction required for prosecution includes reference to any requirement that the prosecution shall be at the instance of a specified authority or with the sanction of a specified person or any requirement of a similar nature.
(emphasis supplied by me)
126. When the above provisions are carefully analysed in the light of the abovenoted judgments, this court is of the considered opinion that a harmonious construction of the provisions of Section 19 and the explanation appended thereto, is to be given by this court. In the considered opinion of this court, once the legislature has provided that appellate court / the Hon'ble High Court is barred under Section 19 (3) of the P. C. Act, 1988, from interfering with the order passed by the Special Judge, in appeal, confirmation or revisional proceedings, on CBI Vs. A.C.Garg etc. (RC 4(E)/2006) Page 106 of 133 Special Judge, CBI01, Central, Delhi the ground that the sanction is bad, save and except in cases where the appellate or revisional court finds that 'failure of justice' has occurred by such invalidity, then it can never be the intention of the legislature that the Special Courts can declare the same sanction order as invalid, on the same ground of incompetency of the authority granting sanction for prosecution. That is why, in the considered opinion of this court, the explanation has been appended to Section 19 as a whole and not to the provisions of Subsection 3 of Section 19 only. Furthermore, during the trial and the final arguments, the accused and the Ld. Defence counsels have failed to disclosed any cause or ground, which has caused or occasioned the 'failure of justice', to them. They have failed to disclose anything in this regard and have failed to show as to how the proceedings or the trial was vitiated or was not proper. During the entire trial, the accused A.C. Garg was having the knowledge of the entire prosecution case against him and had hotly contested the case. It has been held by the Hon'ble Supreme Court, in case titled as, "State of M.P. vs. Bhooraji & Ors."
(Supra), as relied by the Ld. PP for the CBI, as under :
CBI Vs. A.C.Garg etc. (RC 4(E)/2006) Page 107 of 133 Special Judge, CBI01, Central, Delhi
15. A reading of the section makes it clear that the error, omission or irregularity in the proceedings held before or during the trial or in any enquiry were reckoned by the legislature as possible occurrences in criminal courts. Yet the legislature disfavoured axing down the proceedings or to direct repetition of the whole proceedings afresh.
Hence, the legislature imposed a prohibition that unless such error, omission or irregularity has occasioned "a failure of justice" the superior court shall not quash the proceedings merely on the ground of such error, omission or irregularity.
16. What is meant by "a failure of justice" occasioned on account of such error, omission or irregularity? This Court has observed in Shamnsaheb M. Multtani v. State of Karnataka thus : (SCC p.585, para 23) "23. We often hear about 'failure of justice' and quite often the submission in a criminal court is accentuated with the said expression. Perhaps it is too pliable or facile an expression which could be fitted in any situation of a case. The expression 'failure of justice' would appear, sometimes, as an etymological chameleon (the simile is borrowed from Lord Diplock in Town Investments Ltd. v. Deptt. of the Environment). The criminal court, particularly the superior court should make a close examination to ascertain whether there was really a failure of justice or whether it is only a camouflage."
(emphasis supplied by me)
127. In view of the above pronouncements and the facts & circumstances of the present case, I am of the considered opinion that the sanction order Ex.PW6/A, cannot be held to be invalid or illegal, CBI Vs. A.C.Garg etc. (RC 4(E)/2006) Page 108 of 133 Special Judge, CBI01, Central, Delhi solely on the ground that the Commissioner MCD was not competent to grant the sanction for prosecution of accused A.C. Garg, A.E./E.E., as no 'failure of justice' has been caused to him. Even otherwise, PW 6 K.S. Mehra, Commissioner MCD was the competent authority for grant of sanction for prosecution of the Officers of MCD upto the designation of Assistant Engineer and the 'Corporation' was the competent authority for grant of sanction in case of Executive Engineers. But, during the relevant period, accused A.C.Garg was discharging the dual duties of A.E. as well as of E.E. Therefore, the judgment of the Hon'ble High Court of Delhi, in the case of 'G.S.Matharoo (Supra)' is not applicable to the facts and circumstances of the present case.
128. The Ld. Defence counsel for accused A.C. Garg has also challenged the sanction order, Ex.PW6/A, on the ground that the accused A.C. Garg has also been charged for the offences punishable under Sections 120B, 217 & 420 IPC and therefore, in view of the judgment of the Hon'ble Supreme Court, in case titled as, "Prof. N.K. Ganguly Vs. CBI, Delhi" (Supra), a separate sanction under Section CBI Vs. A.C.Garg etc. (RC 4(E)/2006) Page 109 of 133 Special Judge, CBI01, Central, Delhi 197 of the Code of Criminal Procedure, was also required, for his prosecution. But, I do not find any merit, even in this submission.
129. It has been held by the Hon'ble Supreme Court in "Prof. N.K.Ganguly's" case (Supra), as under :
25. From a perusal of the case law referred to supra, it becomes clear that for the purpose of obtaining previous sanction from the appropriate government under Section 197 of CrPC, it is imperative that the alleged offence is committed in discharge of official duty by the accused. It is also important for the Court to examine the allegations contained in the final report against the Appellants, to decide whether previous sanction is required to be obtained by the respondent from the appropriate government before taking cognizance of the alleged offence by the learned Special Judge against the accused. In the instant case, since the allegations made against the Appellants in the final report filed by the respondent that the alleged offences were committed by them in discharge of their official duty, therefore, it was essential for the learned Special Judge to correctly decide as to whether the previous sanction from the Central Government under Section 197 of CrPC was required to be taken by the respondent, before taking cognizance and passing an order issuing summons to the appellants for their presence.
(emphasis supplied by me)
130. Reading of the aforesaid judgment shows that the Hon'ble Supreme Court, had distinguished the case of "Prakash Singh Badal CBI Vs. A.C.Garg etc. (RC 4(E)/2006) Page 110 of 133 Special Judge, CBI01, Central, Delhi vs. Union of India, as reported in 16 (2007) 1 SCC 1", from N.K. Ganguly's case. It has been held by the Hon'ble Supreme Court in the case of Prakash Singh Badal (Supra), as under : "50. The offence of cheating under Section 420 or for that matter offences relatable to Sections 467, 468, 471 and 120B can by no stretch of imagination by their very nature be regarded as having been committed by any public servant while acting or purporting to act in discharge of official duty. In such cases, official status only provides an opportunity for commission of the offence." (emphasis supplied by me)
131. It was also held by the Hon'ble Allahabad High Court, in case titled as, "Smt. Neera Yadav Vs. CBI (Bharat Sangh)" (Supra), as under :
70. Once the authority competent to remove a public servant, has recorded its satisfaction and has granted the sanction, the requirement of any further sanction may create substantive obstruction in the way of prosecution of such public servant. There is no reason or compulsion to assume a similar scrutiny by a different authority particularly when the appointing authority itself has analyzed the matter and has recorded its satisfaction. It would not only be superfluous but may frustrate the very object of grant of sanction. A member of Indian Administrative Services working in State cadre may develop, with the passage of time, and in discharge of his duties, cordial relations with the politicians and others, CBI Vs. A.C.Garg etc. (RC 4(E)/2006) Page 111 of 133 Special Judge, CBI01, Central, Delhi who matter in the concerned State. It may happen, and the judicial notice can be taken of the fact that the Government at the Centre and the State may have different political affinities. In such case a situation may arise, where the Central Government finds a trial into alleged offence by a court of law against such public servant as genuine and desirable and grants sanction, the State Government for political reasons takes a different view. It may be vice versa. In our view, the decision of authority competent to remove such public servant must prevail over the view of any other authority. We may fortify our aforesaid view with the following additional reasons :
Firstly, Section 197 of the Criminal Procedure Code nowhere suggests that the sanction required under the said provision is over and above and in addition to a sanction already provided under a Special Act.
71. Secondly, the contention of the learned counsel is selfcontradictory with reference to interpretation of Section 19 of the Act of 1988. Section 19 specifically requires previous sanction before cognizance of an offence punishable under Sections 7, 10, 11, 13 and 15 of the Act of 1988 is taken. It does not talk of any further sanction under any other provision. Subsection (3) of Section 19 of the said Act provides that in respect of certain irregularities etc. in the matter of sanction, no Court shall interfere in certain circumstances affecting the proceedings under the Act of 1988. Taking an illustration, under Sections 7, 10, 11, 13 and 15 of the Act of 1988, any irregularity in sanction would not by itself vitiate the prosecution, by virtue of subsection (3), irrespective of anything contained in the Code of Criminal Procedure 1973, yet can it be said that the aforesaid provision shall be rendered ineffective by application of Section 197 Cr.P.C. In our view, apparently, the answer would be in CBI Vs. A.C.Garg etc. (RC 4(E)/2006) Page 112 of 133 Special Judge, CBI01, Central, Delhi negative. Thus, the argument that, where the act is in discharge of official duties, for prosecution under the provisions of the Act of 1988, sanction Section 197 Cr.P.C. will also be required, is clearly fallacious. Any other interpretation would amount to adding certain words in Section 19 of Act of 1988 and making the Special Act subservient to Section 197 Cr.P.C., which is not permissible. When the provisions of status are clear, categorical and unambiguous, the Court is not required to read anything more, or make an addition to it. ..........
.........
73. Thirdly, the Code of Criminal Procedure , 1973 is a procedural law while Act of 1988 is a special enactment and substantive law, having its own independent procedural provisions. Section 40 I.P.C. makes conspiracy an offence under the Special Act, i.e., the Act of 1988. If there is no specific provision under Special Act and the reading of the statute so permits, the general provision of procedural law, like Cr.P.C., would be read in the special Act but not otherwise............................. .........
........
75. In the Act of 1988, specific provision has been made for sanction with reference to the offences under the said Act and thus, it would neither be correct nor is otherwise permissible to import the provisions of Cr.P.C. unless it is specifically provided in the special enactment.
76. In K. Veeraswami (1991)3 SCC 655 (supra) quoting Craies on Statute Law, the Hon'ble Apex Court held "the construction which would promote the general legislative purpose underlying the provision in question, is to be preferred to a construction which would not. If the literal meaning of the legislative language used would lead to results which would defeat the purpose of the Act the court CBI Vs. A.C.Garg etc. (RC 4(E)/2006) Page 113 of 133 Special Judge, CBI01, Central, Delhi would be justified in disregarding the literal meaning and adopt a liberal construction which effectuates the object of the legislature."
.....
....
82. We are conscious of the fact that in the present case the petitioners have raised the issue of sanction at the beginning of the proceeding. However, it is not a case where no sanction has been accorded. The employer, who is the authority competent to remove, has considered and applied its mind and thereafter granted sanction in no uncertain terms permitting prosecution under Section 13 (1)(d) and (2) in Act of 1988 as well as Section 120B, I.P.C. and other provisions of other enactments. The public interest has been served and the probability and possibility of vexatious prosecution stands excluded. Now, with the assistance of legal brain raising threadbare and hair splitting arguments, the petitioners are making an attempt to foil the entire prosecution so as to prevent trial of senior members of Indian Administrative Services, i.e., Country's Principal Civil Service and other important persons. Such an attempt would certainly be against larger public interest.
........
.......
90. There is another angle to judge the correctness of the submission. In case for an offence under the Act of 1988 where sanction under Section 19 is granted, Section 197 Cr.P.C. is also applied, the object and purpose with which the provision of sanction has been made, will be rendered futile. It will lead to an exercise in futility. We fail to understand as to why separate sanction under both the enactments would be necessary. Learned counsel for the petitioners could not explain the purpose of requiring sanction under Section 197 Cr.P.C., except that if the law CBI Vs. A.C.Garg etc. (RC 4(E)/2006) Page 114 of 133 Special Judge, CBI01, Central, Delhi requires, the provisions of sanction has to be observed strictly as it is jurisdictional issue. The Act of 1988 is a Special Act.
.......
.......
91. Subsection (3) of Section 5 of the Act of 1988 applies the provisions of Cr.P.C., only in so far as they are not inconsistent with the Act in the matter of procedure and power of Special Judge. The same intention is evident from Sections 4(1), (3) and (4), 6(2), 17, 19(3), 22 and 23 of the Act of 1988. There is a marked difference in the language of Sections. 197 Cr.P.C. and Section 19 of the Act of 1988. The two, provisions are not paramateria. In brief the distinction may be summarized as under :
(i) Section 197 Cr.P.C., is applicable to a serving public servant and also to those who are no more in service, on account of retirement, termination, dismissal or otherwise, whereas Section 19 of Act of 1988 provides protection only to a public servant who is in service.
(ii) Section 197 Cr.P.C. provides sanction of such authority under whom the public servant at the time of commission of the alleged offence is employed and is restricted only to the affairs of the Union or State and not to any other authority. For example, a public servant neither employed in connection with the affairs of the Union or with the affairs of the State, at the time of commission of alleged offence, would not be entitled to claim any protection under Section 197 Cr.P.C. Section 19 of Act of 1988 extends the protection not only with reference to the employment of the concerned public servant in the affairs of the Union or the State, but also with reference to the power of removal from office by the concerned Government, may be the Central Government or the State Government. It further provides protection to a third category, i.e. all the remaining public servants with CBI Vs. A.C.Garg etc. (RC 4(E)/2006) Page 115 of 133 Special Judge, CBI01, Central, Delhi reference to the power of removal. For example, in the matter of statutory bodies, local authorities etc., where the power of removal is not exercisable either by the Central Government or the State Government, the sanction of the authority having power of removal is required by 19(1)(C) of the Act of 1988 vide K. Veeraswami (1991) 3 SCC 655 (supra).
.......
......
95. The authorities contemplated under Section 19 of Act of 1988 are more than those provided under Section 197 Cr.P.C. Even in those cases where protection under Section 197 Cr.P.C. may not be claimed by a public servant, it may come to his rescue where cognizance is to be taken under the Act of 1988. This difference with reference to sanctioning authority has been considered and explained by the Hon'ble Apex Court in R.R.Chari v. State of Uttar Pradesh (AIR 1962 SC 1573) (supra).
(iii) Section 197 Cr.P.C. is applicable only when the public servant has committed offence while acting or purporting to an Act in discharge of his official duty. Sanction under Section 19 of the Act of 1988 is much wider and do not impose any such, restriction.
(iv) Lastly, we also find that although prosecution has been launched under Section 13 of Act of 1988 with respect to criminal misconduct, on the part of the aforesaid two persons in discharge of their official duties, the involvement of these two petitioners in criminal conspiracy to benefit themselves or others cannot be construed as an act in discharge of their official duties. Learned counsel for the petitioners addressed us at length to demonstrate that the entire allegations against the petitioners show that their action is in discharge of their official duties and, therefore, without sanction under Section 197 Cr.P.C., no prosecution either under the Act of 1988 or I.P.C. is CBI Vs. A.C.Garg etc. (RC 4(E)/2006) Page 116 of 133 Special Judge, CBI01, Central, Delhi permissible, and in particular, prosecution under Section 120B IPC cannot be allowed to proceed further at all. However, we propose to deal with this aspect in detail while considering question No.2.
........
........
104. Thus, answering question No.1, we are not agreeable with the contention of the learned counsel for the petitioners that sanction, under both the Acts, i.e, the Act of 1988 & Cr.P.C. is necessary, for prosecution under Section 13 or any other provision of the Act of 1988.
105. Question No.1 is, thus, answered in negative.
Question No. 2106. This issue was argued from two angles :
First : Section 120B IPC is an independent and substantive provision and, thus, where Special Judge takes cognizance in a prosecution under the Act of 1988, in a matter where the allegation constitutes acts in discharge of official duties, sanction under Section 197 Cr.P.C., would be mandatory failing which the prosecution under Section 120B IPC, cannot proceed. In order to elaborate the submission, learned counsel for the petitioners relied upon cases to show as to what is the meaning of the official acts in discharge of official duty. ..........
.........
117. This leaves us to consider another angle the aspect whether an offence of conspiracy alleged to have been committed under Section 120B IPC, i.e., conspiracy, would it constitute acts in discharge of official duties, particularly where the narration of events is with reference to the acts constituting offence under the Act of 1988, and will at all attract Section 197 Cr.P.C.
118. Privy Council in AIR 1958 PC 128 (H.H.B. Gill and another v. The King) held that the prosecution under CBI Vs. A.C.Garg etc. (RC 4(E)/2006) Page 117 of 133 Special Judge, CBI01, Central, Delhi Section 161 Cr.P.C., read with Section 120B IPC does not require any sanction under Section 197 Cr.P.C., since the act of bribe cannot be said to be an act in discharge of official duty.
.........
.........
121. Similar view has been taken in respect to prosecution under different provisions of the Indian Penal Code including Section 120B IPC as detailed hereinbelow : (A) In Hori Ram Singh v. Emperor, AIR 1939 PC 43, it was held that sanction under Section 270 of the Government of India Act, 1935, which is similar to Section 197(1) of the Code of Criminal Procedure, no sanction was required for prosecution under Section 409 IPC. (B) The same view was followed in AIR 1948 PC 156, Albert West Medas v. The King.
(C) For offence under Section 409 IPC, no sanction under Section 197 Cr.P.C. was necessary, has been held in the following : (I) AIR 1957 SC 458 Om Prakash Gupta v. State of U.P., (II) AIR 1960 SC 266 Satwant Singh v. State of Punjab, (III) AIR 1966 SC 220 Baijnath Gupta v. State of Madhya Pradesh, (V) AIR 1967 SC 776 P. Arulswami v. State of Madras, (VI) 1972 (3) SCC 89 :
(1972 Cri. LJ 89) Harihar Prasad v. State of Bihar, (VII) AIR 1999 SC 2405 State of Kerala v. V. Padmanabhan Nair, (VIII) AIR 2004 SC 2317, (IX) AIR 1996 SC 901 R. Batakrishna Pillai v. State of Kerala, (X) 2004 (2) SCC 349 : (2003 AII SCW 6887).
(D) With respect to Section 120B IPC, the Hon'ble Apex Court in Harihar Prasad v. State of Bihar, (1972 Cri. LJ
89) (supra) considering the question of applicability of Section 197 Cr.P.C., has observed as under :
"As far as the offences of criminal conspiracy punishable under S.120B read with Section 409 IPC and also Section 5(2) of the Prevention of Corruption Act are concerned CBI Vs. A.C.Garg etc. (RC 4(E)/2006) Page 118 of 133 Special Judge, CBI01, Central, Delhi they cannot be said to be of the nature mentioned in Section 197 of the Code of Criminal Procedure."
(Emphasis added) This paragraph has been quoted with approval recently in 2005 (36) AIC 108 : (AIR 2006 SC 336) (Supreme Court) Romesh Lal Jain v. Naginder Singh Rana & others, 2005(4) R.C.R. (Criminal) 835 : 2005 (3) Apex Criminal 533 (paras 23 & 28) (E) In State of Kerala v. V. Padmanabhan Nair, (AIR 1999 SC 2405) (supra) the Hon'ble Apex Court held as under :
"That apart, the contention of the respondent that for offences under Sections 406 and 409 read with Section 120B of the I.P.C., sanction under Section 197 of the Code is a condition precedent for launching the prosecution is equally fallacious..........."
"It is no part of the duty of a public servant, while discharging his official duties, to enter into a criminal conspiracy or to indulge in criminal misconduct." (Para7) (Emphasis added) (F) In State (NCT of Delhi) v. Nabjot Saddhu @ Afsan Guru, 122 (2005) DLT 194 : (AIR 2005 SC 3820) (SC) the Hon'ble Apex Court observed as under :
"The other submission that the addition of the offence under Section 120B IPC which does not require sanction, reveals total nonapplication of mind, does not appeal to us. Though the conspiracy to the commit offences punishable by Section 121B IPC, is covered by Section 121A, probably Section 120B was also referred to by way of abandon caution though the prosecution for the said offence does not require sanction." (Emphasis added).
122. To put it more clearly, it is no part of the duty of a public servant, while discharging official duties, to enter into a criminal conspiracy or to indulge in criminal CBI Vs. A.C.Garg etc. (RC 4(E)/2006) Page 119 of 133 Special Judge, CBI01, Central, Delhi misconduct and thus the absence of sanction under Section 197 Cr.P.C. not a bar to proceed with the trial.
123. Moreover, there is an apparent fallacy in the contention of the learned counsel for the petitioners that just because the petitioners have been chargesheeted under Section 120B IPC, this itself is sufficient to attract Section 197 Cr.P.C. The entire allegations against the petitioners constitute offence under various provisions of Act of 1988, which is a Special Act. Section 40 I.P.C., clarifies that where conspiracy is an offence under the Special Act, Section 120B would be referable to the offence under the said special Act. Section 120B IPC in the present case cannot be read in isolation and has to be read alongwith the provisions of the Special Act, i.e., the Act of 1988. Since the sanction under Section 19 of the Special Act has been obtained from the competent authority, in our view, Section 197 Cr.P.C. is not attracted as Section 120B IPC is referable to the offences committed under the Special Act.
124. In the present case, three chargesheets contain offences under Sections 13 (1)(d) and (2) of Act of 1988 read with Section 120B IPC and one chargesheet is only under Sections 13(1)(d) & (2) of the Act of 1988. The offences under Act of 1988 as has been held by the Hon'ble Apex Court in Harihar Prasad, (1972 Cri. LJ 89) (supra), Kalicharan Mahapatra (supra), which still holds field does not come within the purview of word "in discharge of the official duty". Thus, the offence of criminal conspiracy under Section 120B IPC, would also not be within the term "in discharge of official duty" and, therefore, Section 197 Cr.P.C. has no application at all. ........
........
127. In view of the aforesaid, answers to the aforesaid three questions are as follows :
CBI Vs. A.C.Garg etc. (RC 4(E)/2006) Page 120 of 133 Special Judge, CBI01, Central, Delhi (I) For prosecution under Prevention of Corruption Act, 1988, once sanction under Section 19 of the said Act is granted, there is no necessity for obtaining further sanction under Section 197 of the Code of Criminal Procedure.
(II) Where a public servant is sought to be prosecuted under the provisions of Prevention of Corruption Act read with Section 120B IPC and sanction under Section 19 of Act of 1988 has been granted, it is not at all required to obtain sanction under Section 197 Cr.P.C. from the State Government or any other authority merely because the public servant is also charged under Section 120B IPC. (III) The offences under the Prevention of Corruption Act, 1988 as well as charge of criminal conspiracy, cannot be said to constitute "acts in discharge of official duty."
(emphasis supplied by me).
132. During the arguments, the Ld. Sr. PP for the CBI as well as the Ld. Defence counsels have admitted that the above judgment of the Hon'ble High Court of Allahabad, has not been set aside, altered or modified, till date.
133. Furthermore, it has been held by a three Judges Bench of the Hon'ble Supreme Court, in case titled as, "State of Uttar Pradesh Vs. Paras Nath Singh", reported as, "(2009) 6 Supreme Court Cases, 372", as under :
"6. "10. Prior to examining (whether) the courts below committed CBI Vs. A.C.Garg etc. (RC 4(E)/2006) Page 121 of 133 Special Judge, CBI01, Central, Delhi any error of law in discharging the accused, it may not be out of place to examine the nature of power exercised by the court under Section 197 of the Code and the extent of protection it affords to public servants, who, apart from various hazards in discharge of their duties, in absence of a provision like the one may be exposed to vexatious prosecution. Sections 197(1) and (2) of the Code read as under:
'197. Prosecution of Judges and public servants. (1) When any person who is or was a Judge or Magistrate or a public servant not removable from his office save by or with the sanction of the Government is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no court shall take cognizance of such offence except with the previous sanction
(a) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of the Union, of the Central Government;
(b) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of a State, of the State Government;
* * * (2) No court shall take cognizance of any offence alleged to have been committed by any member of the armed forces of the Union while acting or purporting to act in the discharge of his official duty, except with the previous sanction of the Central Government.' The section falls in the chapter dealing with conditions requisite for initiation of proceedings. That is, if the conditions mentioned are not made out or are absent then no prosecution can be set into motion. For instance, no prosecution can be initiated in a Court of Session under Section 193, as it cannot take CBI Vs. A.C.Garg etc. (RC 4(E)/2006) Page 122 of 133 Special Judge, CBI01, Central, Delhi cognizance as a court of original jurisdiction, of any offence, unless the case has been committed to it by a Magistrate or the Code expressly provides for it. And the jurisdiction of a Magistrate to take cognizance of any offence is provided by Section 190 of the Code, either on receipt of a complaint, or upon a police report or upon information received from any person other than a police officer, or upon his knowledge that such offence has been committed. So far as public servants are concerned, the cognizance of any offence, by any court, is barred by Section 197 of the Code unless sanction is obtained from the appropriate authority. If the offence, alleged to have been committed, was in discharge of the official duty. The section not only specifies the persons to whom the protection is afforded but it also specifies the conditions and circumstances in which it shall be available and the effect in law if the conditions are satisfied. The mandatory character of the protection afforded to a public servant is brought out by the expression, 'no court shall take cognizance of such offence except with the previous sanction'. Use of the words 'no' and 'shall' makes it abundantly clear that the bar on the exercise of power of the court to take cognizance of any offence is absolute and complete.
The very cognizance is barred. That is, the complaint cannot be taken notice of. According to Black's Law Dictionary the word 'cognizance' means 'jurisdiction' or 'the exercise of jurisdiction' or 'power to try and determine causes'. In common parlance, it means taking notice of. A court, therefore, is precluded from entertaining a complaint or taking notice of it or exercising jurisdiction if it is in respect of a public servant who is accused of an offence alleged to have been committed during discharge of his official duty.
CBI Vs. A.C.Garg etc. (RC 4(E)/2006) Page 123 of 133 Special Judge, CBI01, Central, Delhi
11. Such being the nature of the provision, the question is how should the expression, 'any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty', be understood? What does it mean? 'Official' according to the dictionary, means pertaining to an office, and official act or official duty means an act or duty done by an officer in his official capacity. In B.Saha v. M.S.Kochar, it was held: (SCC pp. 18485, para 17) '17. The words "any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty" employed in Section 197(1) of the Code, are capable of a narrow as well as a wide interpretation. If these words are construed too narrowly, the section will be rendered altogether sterile, for, "it is no part of an official duty to commit an offence, and never can be". In the wider sense, these words will take under their umbrella every act constituting an offence, committed in the course of the same transaction in which the official duty is performed or purports to be performed. The right approach to the import of these words lies between these two extremes. While on the one hand, it is not every offence committed by a public servant while engaged in the performance of his official duty, which is entitled to the protection of Section 197(1), an act constituting an offence, directly and reasonably connected with his official duty will require sanction for prosecution and the said provision."
(emphasis in original) Use of the expression 'official duty' implies that the act or omission must have been done by the public servant in the court of his service and that it should have been in discharge of his duty. The section does not extend its protective cover to every act or omission done by a public servant in service but restricts its scope of operation to only those acts or omissions which are CBI Vs. A.C.Garg etc. (RC 4(E)/2006) Page 124 of 133 Special Judge, CBI01, Central, Delhi done by a public servant in discharge of official duty.
12. It has been widened further by extending protection to even those acts or omissions which are done in purported exercise of official duty. That is under the colour of office. Official duty therefore implies that the act or omission must have been done by the public servant in course of his service and such act or omission must have been performed as part of duty which, further, must have been official in nature. The section has, thus, to be construed strictly, while determining its applicability to any act or omission in the course of service. Its operation has to be limited to those duties which are discharged in the course of duty. But, once any act or omission has been found to have been committed by a public servant in discharge of his duty then it must be given liberal and wide construction so far its official nature is concerned. For instance, a public servant is not entitled to indulge in criminal activities. To that extent the section has to be construed narrowly and in a restricted manner. But once it is established that that act or omission was done by the public servant while discharging his duty, then the scope of its being official should be construed so as to advance the objective of the section in favour of the public servant. Otherwise the entire purpose of affording protection to a public servant without sanction shall stand frustrated. For instance, a police officer in discharge of duty may have to use force which may be an offence for the prosecution of which the sanction may be necessary. But if the same officer commits an act in course of service but not in discharge of his duty then the bar under section 197 of the Code is not attracted. To what extent an act or omission performed by a public servant in discharge of his duty can be deemed to be official, was explained by this court in Matajog Dobey vs. H.C. Bhari thus : (AIR p.49 paras 17 & 19) " 17. ..... The offence alleged to have been committed (by the accused) must have something to do, or must CBI Vs. A.C.Garg etc. (RC 4(E)/2006) Page 125 of 133 Special Judge, CBI01, Central, Delhi be related in some manner, with the discharge of official duty. .......
* * *
" 19.
...... There must be a reasonable connection between the act and the discharge of official duty; the act must bear such relation to the duty; that the accused could lay a reasonable [claim], but not a pretended or fanciful claim, that he did it in the course of the performance of his duty.
13. If, on fact, therefore, it is prima facie found that the act or omission for which the accused was charged had reasonable connection with discharge of his duty then the act must be held to be official to which applicability of section 197 of the Code cannot be disputed.
* * *
21. That apart, the contention of the respondent that for offences under Section 406 & 409 read with Section 120B IPC sanction under Section 197 of the Code is a condition precedent for launching the prosecution is equally fallacious. This court has stated the legal position in Shreekantiah Ramayya Munipalli v. State of Bombay and also in Amrik Singh v. State of Pepsu that it is not every offcence committed by a public servant which requires sanction for prosecution under Section 197 of the Code, nor even every act done by him while he is actually engaged in the performance of his official duties. Following the above legal position it was held in Harihar Prasad v. State of Bihar as follows: (SCC p.115, para 66) "66. .... As far as the offence of criminal conspiracy punishable under Section 120B, read with Section 409 of the Penal Code is concerned and also Section 5(2) of the Prevention of Corruption Act is concerned, they cannot be said to be of the nature mentioned in Section 197 of the Code of Criminal Procedure. To put it shortly, it is no part of the duty of a public servant, while CBI Vs. A.C.Garg etc. (RC 4(E)/2006) Page 126 of 133 Special Judge, CBI01, Central, Delhi discharging his official duties, to enter into a criminal conspiracy or to indulge in criminal misconduct. Want of sanction under Section 197 of the Code of Criminal Procedure, is therefore, no bar.'
22. Above views are reiterated in State of Kerala v. V. Padmanabhan Nair. Both Amrik Singh and S.R. Munipalli were noted in that case. Sections 467, 468 and 471 IPC relate to forgery of valuable security, Will, etc; forgery for the purpose of cheating and using as genuine a forged document respectively. It is no part of the duty of a public servant while discharging his official duties to commit forgery of the type covered by the aforesaid offences. Want of sanction under Section 197 of the Code is, therefore, no bar."
This position was highlighted in State of H.P. v. M.P. Gupta, at SCC pp.35762, paras 1014 & 2122.
(emphasis supplied by me)
134. In view of above pronouncements, I am of the considered opinion that the judgments of the larger Benches of the Hon'ble Supreme Court, as discussed in case titled as, State of Uttar Pradesh Vs. Paras Nath Singh (Supra), shall prevail over the judgment of the Hon'ble Supreme Court, in "N.K. Ganguly's" case (Supra). Therefore, a separate sanction under Section 197 Cr.P.C., in addition to the sanction for prosecution of accused A.C. Garg, under Section 19 of the P.C. Act, 1988, is not required.
135. Furthermore, perusal of the sanction order Ex.PW6/A, clearly CBI Vs. A.C.Garg etc. (RC 4(E)/2006) Page 127 of 133 Special Judge, CBI01, Central, Delhi indicate that PW6 Sh.K.S. Mehra, the Commissioner, MCD, has passed the said sanction order, after a detailed examination of the material placed before him and after due application of mind.
136. In case titled as, "State of Maharashtra through CBI vs. Mahesh G. Jain" (Supra), it has been held by the Hon'ble Supreme Court of India, as under :
9. In "C.S. Krishnamurthy vs. State of Karnataka", it has been held as follows: "....... sanction order should speak for itself and in case the facts do not so appear, it should be proved by leading evidence that all the particulars were placed before the sanctioning authority for due application of mind. In case the sanction speaks for itself then the satisfaction of the sanctioning authority is apparent by reading the order."
10. In R. Sundarajan vs. State by DSP, SPE, CBI, Chennai, while dealing with the validity of the order of sanction, the two learned judges have expressed thus: "it may be mentioned that we cannot look into the adequacy or inadequacy of the material before the sanctioning authority and we cannot sit as a court of appeal over the sanction order. The order granting sanction shows that all the available materials were placed before the sanctioning authority who considered the same in great detail. Only because some of the said materials could not be proved, the same by itself, in our opinion, would not vitiate the order of sanction. In fact in this case there was abundant material before the sanctioning authority, and hence we do not agree that the sanction order was in any way vitiated."
CBI Vs. A.C.Garg etc. (RC 4(E)/2006) Page 128 of 133 Special Judge, CBI01, Central, Delhi
11. In State of Karnataka vs. Ameerjan, it has been opined that an order of sanction should not be construed in a pedantic manner. But, it is also well settled that the purpose for which an order of sanction is required to be passed should always be borne in mind. Ordinarily, the sanctioning authority is the best person to judge as to whether the public servant concerned should receive the protection under the Act by refusing to accord sanction for his prosecution or not.
12. In Kootha Perumal vs. State through Inspector of Police, Vigilance and AntiCorruption, it has been opined that the sanctioning authority when grants of sanction on an examination of the statements of the witnesses as also the material on record, it can safely be concluded that the sanctioning authority has duly recorded its satisfaction and, therefore, the sanction order is valid.
13. From the aforesaid authorities the following principles can be culled out:
(a) It is incumbent on the prosecution to prove that the valid sanction has been granted by the sanctioning authority after being satisfied that a case for sanction has been made out.
(b) The sanction order may expressly show that the sanctioning authority has perused the material placed before him and, after consideration of the circumstances, has granted sanction for prosecution.
(c) The prosecution may prove by adducing the evidence that the material was placed before the sanctioning authority and his satisfaction was arrived at upon perusal of the material placed before him.
(d) Grant of sanction is only an administrative function and the sanctioning authority is required to prima facie reach the satisfaction that relevant facts would constitute the offence.
(e) The adequacy of material placed before the CBI Vs. A.C.Garg etc. (RC 4(E)/2006) Page 129 of 133 Special Judge, CBI01, Central, Delhi sanctioning authority cannot be gone into by the court as it does not sit in appeal over the sanction order.
(f) If the sanctioning authority has perused all the materials placed before him and some of them have not been proved that would not vitiate the order of sanction.
(g) The order of sanction is a prerequisite as it is intended to provide a safeguard to public servant against frivolous and vexatious litigants, but simultaneously an order of sanction should not be construed in a pedantic manner and there should not be hypertechnical approach to test its validity.
(emphasis supplied by me)
137. When the aforementioned principles are applied to the facts and circumstances of the present case and to the sanction order Ex.PW6/A, it is observed that the sanctioning authority has given the details of the circumstances of the present case, which led him to grant the sanction for prosecution of the accused A.C. Garg. He has also mentioned, in this order, that the statements of the witnesses, the documents and other material placed before him by the CBI, were duly considered by him.
138. It was further held by the Hon'ble Supreme Court, in 'Mahesh G. Jain's case' (Supra), as under :
CBI Vs. A.C.Garg etc. (RC 4(E)/2006) Page 130 of 133 Special Judge, CBI01, Central, Delhi
16. Presently, we shall proceed to deal with the contents of the sanction order. The sanctioning authority has referred to the demand of the gratification for handing over TDS certificate in Form 16A of the IncomeTax Act, the acceptance of illegal gratification by the accused before the panch witnesses and how the accused was caught red handed. That apart, as the order would reveal, he has fully examined the material documents, namely, the FIR, CFSL report and other relevant documents placed in regard to the allegations and the statements of witnesses recorded under Section 161 of the Code and, thereafter, being satisfied he has passed the order of sanction. The learned trial judge, as it seems, apart from other reasons has found that the sanctioning authority has not referred to the elementary facts and there is no objective material to justify a subjective satisfaction. The reasonings, in our considered opinion, are absolutely hypertechnical and, in fact, can always be used by an accused as a magic trick to pave the escape route. The reasons ascribed by the learned trial judge appear as if he is sitting in appeal over the order of sanction. True it is, grant of sanction is a sacrosanct and sacred act and is intended to provide a safeguard to the public servant against vexatious litigation but simultaneously when there is an order of sanction by the competent authority indicating application of mind, the same should not be lightly dealt with. The filmsy technicalities cannot be allowed to become tools in the hands of an accused. In the obtaining factual matrix, we must say without any iota of hesitation that the approach of the learned trial judge as well as that of the learned single judge is wholly incorrect and does not deserve acceptance.
(emphasis supplied by me)
139. Therefore, I do not find any illegality or perversity in the sanction CBI Vs. A.C.Garg etc. (RC 4(E)/2006) Page 131 of 133 Special Judge, CBI01, Central, Delhi order, Ex.PW6/A. RESULT
140. In view of the above discussion, I am of the considered opinion that the prosecution / CBI has successfully proved its case, beyond a shadow of doubt, for the offence punishable under Section 120B read with Section 420, 217 IPC & Section 13(2) read with Section 13 (1)(d)
(iii) of The Prevention of Corruption Act, 1988, only against accused A.C. Garg (A1); Gopal Krishan Aggarwal (A2); Smt. Mamta Nehra (A
4); Naresh Kumar Shekhari (A5) and Srikrishan Vashisth (A6). The prosecution has also successfully proved its case against accused A.C. Garg (A1), beyond a shadow of doubt, for the substantive offences punishable under Section 420, 217 IPC & 13(2) read with Section 13(1)
(d) (iii) of the P.C. Act, 1988. The prosecution has also successfully proved its case, beyond a shadow of doubt, against accused Gopal Krishan Aggarwal (A2), Mamta Nehra (A4), Naresh Kumar Shekhari (A5) and Srikishan Vashisth (A6), for the substantive offence punishable under Section 420 IPC. They are, accordingly, held guilty and convicted for the said offences.
CBI Vs. A.C.Garg etc. (RC 4(E)/2006) Page 132 of 133 Special Judge, CBI01, Central, Delhi
141. However, the prosecution has miserably failed to prove any case against accused Abhinav Aggarwal (A3) and Kishan Lal (A7) and therefore, both of them are hereby acquitted of all the charges, as framed against them, in the present case. The bail bonds submitted by accused Abhinav Aggarwal (A3) and accused Kishan Lal (A7) on 02.12.2015, under Section 437A Cr.P.C., shall remain in force for a period of six months from today. Their earlier bail bonds are cancelled and earlier sureties are discharged. They are further directed to appear before the Appellate Court, as and when, any notice is issued to them by the Appellate Court, in any appeal, if preferred by the prosecution/ CBI, against their acquittal.
Let the convicts be heard on the point of sentence, on the next date of hearing.
It is ordered accordingly.
Announced in open Court on this 23rd day of February, 2017 BRIJESH KR. GARG Special Judge (PC Act) CBI01, Tis Hazari, Delhi CBI Vs. A.C.Garg etc. (RC 4(E)/2006) Page 133 of 133 Special Judge, CBI01, Central, Delhi