Delhi District Court
Cbi vs . Narain Diwakar Etc. (Anchal Cghs) on 21 August, 2010
IN THE COURT OF SH. AMAR NATH : SPECIAL JUDGE : CBI: ROHINI COURTS : DELHI. RC 1(A)/2006/ACU-IV/CBI/New Delhi CBI Vs. NARAIN DIWAKAR ETC. (ANCHAL CGHS) CC NO. 35/08 Date of filing application : 18.08.2009 Date on which reserved for orders : 18.08.2010 Date on which order announced : 21.08.2010 ORDER ON APPLICATION UNDER SECTION 173(8) Cr.P.C. OF ACCUSED S. VINOD KUMAR GUPTA The accused Vinod Kumar Gupta has moved an application U/s 173(8) of the Code of Criminal Procedure Code seeking discharge on the ground that CBI has committed various illegalities while conducting the investigation and prosecuting the case. To substantiate his plea, he relied upon the judgment of Dr. R. R. Kishore Vs. CBI Criminal Revision Petition 2006 I AD (Delhi) 545, wherein it was held that if illegal investigation is brought to the notice of the Trial Court at the initial stage, then the court ought not to proceed with the trial but should direct the re-investigation in order to cure the defect in the investigation. The accused heavily emphasized upon the certain illegalities committed during the course of investigation and the same are enumerated in the application. 1.
Absence of Sanction U/s 6 of the DSPE Act.
2.Absence of Notification U/s 3 of the DSPE Act.
3.Registration of cases under Indian Penal Code instead of registering it under Delhi Co-operative Societies Rules Act which is Special Act and violation of other legal provisions.
CBI has opposed the application by filing the separate reply stating therein that the investigation has been carried out as per the prescribed procedure under law and chargesheet has been filed based upon the evidence collected during the course of investigation and after obtaining requisite sanction from the Competent Authority to prosecute public servant, thus there is no illegality in any manner. Provisions of Section 17 of the P. C. Act have been fully complied with while conducting investigation of the instant case. Re-investigation is beyond the scope of Section 173(8) CrPC. In so far the judgment of Dr.R.R.Kishore is concerned, the same is inapplicable to the facts and circumstances of the case as in the instant case, no contravention of any legal/statutory provision was done either at the time of registration of the case or during investigation or thereafter.
I have heard the arguments and accordingly perused the record. In order to better appreciation, let me examine the brief facts of the case.
ANCHAL CGHS was registered with the Office of Registrar on 22.09.1983 with registration no. 655 with 63 promoter members having its registered office at 7, Sethi Bhawan, Rajendra Place, New Delhi. Sh.G.P.S.Angroola and J. K. Marwah were President and Secretary respectively of the society. The said society was wound up by Sh.Satish Mathur, Dy. Registrar vide order dated 20.12.1989 on the ground that society had not intimated to RCS about unaudited accounts since its registration as the society was lying defunct. A letter dated 25.12.2002 purportedly written by D. K. Gupta in the capacity of President of society, which was received by Sh.J. S. Sharma, the then AR (SW) whereby the address of the society from Rajendra Place, New Delhi to Flat no. 6A, Sector-7, Pocket-1, Dwarka, New Delhi was sought to be changed. J. S. Sharma promptly ordered to call for files of the society from West Zone to his South West Zone. However, investigation revealed that D. K. Gupta, one of the members of the society had not made any correspondence in this regard and his signatures on aforesaid letter were forged by Vinod Gupta. Flat no. 6A, Sector-7, Pocket-1, Dwarka, New Delhi was actually the office address of Satish Gupta, one of the accused in this case.
On receipt of file of the society from West Zone, Sudershan Kumar Singhal falsely represented himself as Secretary of the society sought revival of the society by submitting a letter dated 14.01.2003 with list of 90 members including 27 new members. Along with this letter, he also submitted proceedings of GBM held on 15.12.2002 showing election of the new Managing Committee. In the said meeting, Sushil Kumar Singhal and Smt. Raj Lata Gupta were shown to have been elected as President and Vice President of the society respectively besides he himself(Sudershan Kumar Singhal), Bhuvaneshwar Garg, S. K. Aggarwal, Subhash Rustagi and Smt.Madhu Chaudhary were elected as member of MC. Sudershan Kumar Singhal was not promoter member of the society as apparent from the list of 63 promoter members available in the file. Yet Raman Verma, Dealing Assistant processed his letter and put up before J. S. Sharma on 20.01.2003. J. S. Sharma forwarded the file to Narain Diwakar through his reader N. S. Khatri and accused Narain Diwakar approved the said proposal vide order dated 22.01.2003 and notices were issued to President/Secretary of the society for hearing of the case before him on 04.02.2003.
On 04.02.2003, Satish Gupta being Vice President of the society appeared before accused Narain Diwakar though his name was not figured as member of the society in the list of 90 promoter members. Narain Diwakar directed concerned zone to verify membership, election status and audit position of the society. Thereafter, the file was sent to Dealing Assistant. On 06.02.2003, 10.02.2003, Sudershan Singhal being Secretary produced documents/records of the society before Raman Verman and J.S.Sharma on 06/10.02.2003. Then, the file was put up by Raman Verma before J. S. Sharma on 11.02.2003 with names of 63 promoter members and 27 new members who were shown to have enrolled later. J.S.Sharma recorded a note on the file ânecessary verification has been made and after completing all the formalities besides checking accounts and records, he forwarded the note for revival of the society.
In the investigation, it was revealed that Narain Diwakar recorded the presence of Satish Gupta on 11.02.2003 as Vice President of the society knowing fully well that his name has not been figured in the list of 90 members of the society which was put up by Raman Verma. Accused Narain Diwakar falsely ordered revival of the society on 14.02.2003 by appointing Sanjeev Bharti as Election Officer to conduct election of managing committee within two months. Pursuant to the said order, Sanjeev Bharti submitted a report on 27.03.2003 stating therein that GBM called by him on 23.03.2003 and Bhuvneshwar Garg was elected as President, Sushil Kumar Gupta as Vice President, Subhash Rustagi, Smt.Madhu Chaudhary and Smt. Raj Rani Gupta as members of the Managing Committee.
During investigation, it was further revealed that J.S.Sharma vide letter dated 18.02.2003 sent list of 90 members to AR(Policy) for onward submission to DDA for allotment of land. Accordingly, a letter dated 27.02.2003, under signature of Sh.Yogi Raj, then AR(Policy) was sent to DDA for allotment of land to the society, with list of 90 members. However, matter of allotment of land to the society still pending with the DDA.
It was further disclosed that accused Narain Diwakar in connivance with other officials of RCS and private persons on the basis of false, forged and fabricated documents revived the AANCHAL CGHS after the gap of more than 13 years of wound up order. In pursuance of said conspiracy, Dharmender Singh Rana got a membership register and a proceedings register prepared by Ashutosh Pant. Dharmender Singh Rana sold those documents to Vinod Gupta, who sold it further to Sudershan Kumar Singhal. GEQD has also confirmed that forgery of documents was committed by Ashutosh Pant. Thereafter, new proceedings register showing proceedings of 15.12.2002 and 23.03.2003 was prepared by Vinod Gupta, wherein new managing committee was shown to have been elected. Vinod Gupta, Sudershan Kumar singhal and Satish Gupta had forged signatures of various members, who were shown to have attended said meeting and this fact has been confirmed by GEQD.
During investigation, it was disclosed that G.P.S.Angroola and J. K. Marwah, original President and Secretary of the society respectively were not acquainted with persons who were elected in new managing committee. However, original record was in possession of J. K. Marwah as revealed in the investigation. Further it was revealed that Narain Diwakar while reviving the society did not verify locus standi and credentials of persons appearing before him as office bearers of the society. Even he did not pay any heed to affidavits of 27 new members, who were shown to have been enrolled during 1984, submitted before him only in the year, 2003 and there was no intimation in this regard in the year, 1984 too. He also mentioned falsely in his revival order that President and Secretary of the society have made oral commitments to fulfill all statutory obligations. However, the fact that President and Secretary of the society never appeared before him as apparent from order of revival as well as notings dated 04.02.2003 and 11.02.2003. He also mentioned in his revival order that the society was managing its affairs continuously. Thus, all these facts show that revival order dated 14.02.2003, passed by Narain Diwakar, was not only in disagreement to original documents but also was based on false facts, which could have been verified by him before passing the order of revival.
During investigation, it was also revealed that J.S.Sharma had also overlooked various forged documents of the society during its revival process and put false noting to that effect. Raman Verma too adopted malafide modus operandi by willfully ignoring large scale forgeries of documents of the society. Sanjeev Bharti also submitted false election report of the society.
During the investigation, it came to light that the accused persons entered into criminal conspiracy with an object to cheat the DDA. In furtherance of the said criminal conspiracy, private persons connived with officials of RCS including Registrar, Co-operative Societies who recommended for allotment of land to DDA on the basis of forged/false documents by abusing their official position as public servants and gave undue pecuniary advantage/favour to them.
The main thrust of the accused is that DCS Act being Special Law shall prevail upon the General Law i.e. Indian Penal Code. Allegation as set out in the charge sheet are touching the business of the society furnishing false information to RCS by filing false and forged documents, thus, offence U/s 82(3) DCS Act is clearly attracted, therefore the provisions of Indian Penal Code cannot be invoked. He further contended that offence U/s 82 (3) of Delhi Cooperative Societies Act has not been notified by Delhi Government as required by Delhi Special Police Establishment Act. The allegations of giving false recommendations and filing of false and forged documents in the office of Registrar of Cooperative Societies pertaining to the business of Registrar of Cooperative Societies pertaining to the business of society are specifically covered U/s 82 (3) of Delhi Cooperative Societies Act but he same has not been invoked.
It is further agitated that since the matter is covered under the provisions of Sec. 82 (3) of DCS Act which completely debars the prosecution without the opportunity of being heard as well as previous sanction of RCS. It is also agitated that offence alleged to have been committed by the accused is punishable under the provisions of Special law, hence the 'provisions' of Indian penal Code being general law cannot be invoked.
He also placed reliance upon following judgments :-
1. State of Maharashtra Vs. Laljit Rajshi Shah & Ors. 2000 Supreme Court AIR PAGE 937,
2. Suresh Nanda VS. CBI Criminal Appeal no. 179/2008,
3. Greater Mumbai Co-operative Bank Ltd Vs. United yarn Textile & Ors. 2007 (5) SCALE 366,
4. Belsund Sugar Co-operative Ltd. Vs. State of Bihar (AIR 1999 Supreme Court 3125).
5. Hasan Bhai Vali Bhai Qureshi Vs. State of Gujarat AIR 2004 SC 2078.
On the other hand, it is argued by Ld. PP Sh. Amrit Pal Singh for CBI that DCS Act and Rules are provisions for administration of Co-operative Group Housing Society which do not cover conspiracy to cheat, using forged documents as genuine and forgery for purpose of cheating. Hence, it cannot be said that the chargesheet filed by the CBI is barred due to enactment of Special Law. She has placed reliance upon the judgment of H. N. Risbud Vs. State of Delhi AIR 1955 Supreme Court 196, (FULL BENCH) wherein, it was held that irregularities in investigation do not go to the root of justice, so does not make the chargesheet illegal, therefore it cannot be said that cognizance taken by the court is bad-in-law.
The aforesaid decision delivered by Full Bench of Hon'ble Supreme Court was followed/affirmed by the Apex Court in Union of India Vs. Prakash P. Hinduja (2003) 6 SCC 195. The judgments of Suresh Nanda Vs. CBI & Greater Bombay Co-operative Bank are not applicable as different issues were involved in these cases. It is submitted that the observation of the Hon'ble Supreme Court in case of Greater Bombay Co-operative Bank Ltd was given in the limited perspective regarding the recovery of dues by co-operative Bank on the matter, whether co-operative banks come in the definition of Company or not. Whereas in the case of Suresh Nanda Vs. CBI, it was held that the Passport Act is special enactment, therefore provision of Cr.P.C do not apply.
In the matter of State of M.P. Vs. Rameshwar & Ors. 2009 V AD(SC) 37, their Lordships were pleased to make following observations while dealing with aforesaid contention.
Mr. Tankha took us through the MP Co-operative Societies Act, 1960, in support of his submissions. He submitted that the said Act was a complete self contained Code by itself and provided for different eventualities relating to the administration of Co-operative Societies.
While dealing with these arguments, Hon'ble Supreme Court has observed as follows:-
âMr.Tankha's submissions, which were echoed by Mr. Jain, that the M.P.Co-operative Societies Act, 1960 was a complete Code in itself and the remedy of the prosecuting agency lay not under the criminal process but within the ambit of Sections 74 to 76 thereof, cannot also be accepted, in view of the fact that there is no bar under the M.P.Co-operative Societies Act, 1960, to take resort to the provision of the general criminal law, particularly when charge under the Prevention of Corruption Act 1988 are invoked.â While dealing with similar contention Hon'ble Supreme Court in K. Ashoka Vs. N.L.Chandrashekar and Ors. (2009) 5 Supreme Court Cases 199 has held as follows:
âD.Cooperative Societies â Karnataka Cooperative Societies Act, 1959 (11 of 1959) â Ss. 111 and 109 â Bar to criminal proceedings, under â Applicability â Held, there is no statutory embargo on court to take cognizance of an offence under the provision of IPC â If allegations in complaint petition or in FIR make out a case under IPC, bar under S.111 of 1959 Act is not applicable â Bar under the section applicable only for offences committed under 1959 Act â Criminal proceedings.â It is further observed in para no.23 of this authority which is as follows:-
âSection 109 of the Act provides for commission of offences under the said Act. Therein, no statutory embargo has been placed for a Court to take cognizance of an offence under the provision of IPC. If the allegations made in the complaint or in the first information report make out a case under IPC, Section 111 of the Act to which our attention has been drawn, would constitute no bar for maintenance thereof being applicable only in respect of offences committed under the said Act. The said statutory interdict therefore cannot be extended in regard to commission of an offence under the other Act.â After applying the ratio of judgments of Apex Court (s), I do not find any force in the aforesaid contention of the Ld. Defence counsel that offences are liable to be tried under DCS Act only by invoking the provisions of the said Act, therefore, the matter requires to be referred for reinvestigation/fresh investigation. It needs to be noticed that there is no bar to take resort to the provision of General Criminal Laws in DCS Act also. In this case, accused persons including the applicant were chargesheeted for the commission of offences of criminal conspiracy, cheating, forgery for the purpose of cheating, using as genuine a forged document and criminal misconduct. These offences are nowhere defined or dealt with in DCS Act nor did the provisions of the said Act put a bar to proceed under the IPC & PC Act, if omission and commission on the part of an accused attracts penal provisions under these Acts. Even otherwise under section 26 of the General Clauses Act, the accused could be booked for the provisions of any other Law attracted.
Further in view of State of Maharashtra Vs. Laljit Rajsi Shah & Ors. 2000 Supreme Court AIR page 937 and 'Anil Bhai M. Patel Vs. Surya Pur Bank Agent 2007 Vol. III AD (SC) 773, it is urged that the Co-operative Society Act 1972 is a complete self contained statue, so the provisions of the said Act have to followed and that the provisions of Indian Penal code cannot be adhered to. He further urged that the Delhi Co-operative Societies Act 1972, provides a well defined system of addressing the issues relating to various private co-operative societies and it contains the provisions of fine, appeal, punishment and as such the resort to the provisions of the IPC by the CBI is wholly illegal. I have gone through the judgments cited by the accused. The facts and the contexts in which such judgments were delivered are entirely different than the present context, hence, the plea qua non-applicability of Indian Penal Code is misconceived. Suffice to say that the Delhi Cooperative Societies Act itself also does not impose any bar to take resort in the provisions of General Criminal Laws.
Next line of the arguments of Ld. Defence Counsel is that the Co-operative Society Act 1972 is a complete self contained statue, thus, the provisions of the Indian Penal Code cannot be adhered to. He further urged that the Delhi Co- operative Societies Act 1972, provides for a well defined system of addressing the issues relating to various private co- operative societies and it contains the provisions of fine, appeal, punishment and as such the resort to the provisions of the IPC by the CBI is wholly illegal.
I have gone through the Delhi Cooperative Societies Act, 1972. As per the preamble of the Act, it was enacted to consolidate and amend the laws relating to cooperative Societies in Union Territory of Delhi. Section 3 of the Act empower the Lt. Governor of Delhi to appoint a person to be the Registrar Cooperative Societies for Union Territory of Delhi and to appoint other persons to assist him. Section 4 of the Act specifies the Societies, which may be registered under section 9 of the Act. A registration certificate shall be issued to that society by the Registrar, as provided in Section 10 of the Act. Rights and liabilities of the members of Cooperative Society are defined in Chapter-III of the Act. Chapter-IV of the Act deals with provision relating to management of a Cooperative Society. Section 32 of the Act empowers the Registrar to supersede managing committee of the society in given situations. Privileges of co-operative society are defined in Chapter- V of the Act. Provisions are made about properties and funds, which a Cooperative Society may possess, in Chapter VI of the Act. Audit enquiry, inspection and issues relating to surcharge are enacted in the provisions of Chapter VII of the Act. Settlement of disputes, touching Constitution , management or business of a Cooperative Society are to be governed under provisions of Section 60 of the Act, which can be referred to an arbitrator by the Registrar, as contemplated by Section 61 of the Act. Chapter-IX of the Act provides the procedure of winding up of the Cooperative Society, appointment of a liquidator and powers being exercised by him. Registrar is empowered to cancel registration of Cooperative Society under section 69 of the Act. Chapter-X provides for execution of awards, decrees, orders and decisions made under he Act. Section 76 enlists the order which are appealable. Cooperative Tribunal is appointed by the lt. Governor under provisions of Section 78 of the Act, who has powers of hearing appeals and revision. Lt. Governor is also empowered to revise the orders, as contemplated by Section 80 of the Act.
Section 82 of the Act defines the term âoffencesâ, which provisions are reproduced below:- â82. Offences.-- (1) Any person other than a cooperative society carrying on business under any name or title of which the word âcooperativeâ, or its equivalent in any Indian Language, is part, without the sanction of the Lt. Governor shall be punishable with fine which may extend to two hundred rupees and in the case of a continuing breach with a further fine which may extend to five hundred rupees for every day during which the breach is continued after conviction for the first such breach.
(2)Any member or past member or the nominee, heir or legal representative of a deceased member of a cooperative society who contravenes the provisions of Section 36 and 37 by disposing of any property in respect of which the society is entitled to have a first charge under that section or do any other act to the prejudice of such claim, shall be punishable with fine which may extend to five hundred rupees.
(3) A cooperative society or an officer or member thereof willfully making a false return or furnishing false information, or any person willfully or without any reasonable excuse disobeying any summons, requisition or lawful written order issued under he provisions of this Act or willfully not furnishing any information required from him by a person authorised in this behalf under the provisions of this Act, shall be punishable with fine which may extend to two hundred rupees. (4) Any employer who, without sufficient cause, fails to pay to a co-operative society the amount deducted by him under section 44 within a period of fourteen days from the date on which such deduction is made shall, without prejudice to any action that may be taken against him under any law for th time being in force be punishable with fine which may extend to five hundred rupees.
(5) Any officer or custodian who willfully fails to hand over custody of books, records, cash, security and other property belonging to a co-operative society of which he is an officer or custodian, to a person entitled under section 33, 53, 54, 55 or 66 shall be punishable with fine which may extend to two hundred rupees and in the case of a continuing breach with a further fine which may extend to five hundred rupees for every during which the breach is continued after conviction for the first such breach.
(6) Any person who fraudulently acquires or abets in the acquisition of any such property of which is subject to a charge under sections 36 and 37 shall be punishable with fine which may extend to two hundred rupees. âNo Court inferior to that Court of a Magistrate of first class can take cognizance of an offence, enacts the provisions of section 83 of the Act. Sub-section (2) of said section puts an embargo, wherein it is enacted that no prosecution would be instituted under this Act, without previous sanction of the Registrar and such sanction shall not be given without giving the person concerned a reasonable opportunity to represent his case.
The plain reading of the Act makes clear that the Act has been enacted by the Parliament with a view to provide for registration, management, smooth functioning, supervision and control of the Registrar over a co-operative society. Provisions are made for redressal of grievances concerning dispute touching constitution, management or business of a co-operative society. The Tribunal has been constituted to hear appeals or revision against the orders of the Registrar. Lt. Governor of Delhi is also empowered to hear appeal and revisions against the orders passed by the Registrar or Tribunal as the case may be. Offences which are coined, provide for instances of deviations from the provisions of the Act. As indicated above, those abrasions are minor offences, for which prosecution can be launched before Magistrate of first class with previous sanction of the Registrar. Offences defined under the Act do not encompass human behaviour, which had been made penal under provisions of the Indian Penal Code as well as under Prevention of Corruption Act. Suffice to say that the Delhi Co-operative Society Act itself does not impose any bar to take resort in the provision of General Criminal Laws.
Another plea of the accused is that the non-compliance of Sec.3 of DSPE Act 1946 vitiates entire investigation. As per Sec. 3 of DSPE Act 1946 the Central Government made notification in the official gazette to specify the offences or classes of offences which are to be investigated by Delhi Special Police Establishment. It is urged that the Act confers the jurisdiction on the CBI in relation to the investigation by the Central Government U/s 3 of the Act and such offences as notified are mentioned in DSPE Act 1946. It is further urged that offences covered by the Sec. 3 of the Act do not include the offences under the Co-operative laws. Thus, the investigation done by the CBI for the co-operative societies is in violation of Sec.3 as it had no jurisdiction to conduct the investigation. Offences mentioned in the charge sheet are all notified offences U/s 3 of the DSPE Act, hence no fresh notification is necessary.
Another line of argument of the accused is that investigation is bad in law for non-compliance of Sec.6 of the DSPE Act 1946. The consent of the government of the State is required to exercise the power and jurisdiction in any area in State. It is argued that there is no state within the meaning of Sec.6 of DSPE Act 1946 and as such the CBI had no jurisdiction to conduct the investigation in the absence of Sanction U/s 6 of the Act. The sanction of Delhi Government is not necessary as investigation of this case has been referred to CBI by the Hon'ble High Court of Delhi vide Civil Writ Petition no. 10066/2004 directing CBI to conduct a thorough investigation into the matter relating to 135 Co-operative Group Housing Society. Investigation has been carried out by the CBI only pursuant to the order of the Hon'ble High Court. Section 6 of the Act does not apply when the court directs CBI to conduct investigation as held in catena of judgments of Hon'ble High Courts as well as Apex Court.
Larger Bench of the Supreme Court comprises of Five Judges has dealt with the aforesaid proposition in State of West Bengal & others Vs. Committee for protection of Democratic Rights 2010 III AD (SC) 45. Relevant portion is reproduced as follows:-
(B) â Delhi Special Police Establishment Act, 1946-Sec.4, 5 and 6 â Complaint along with a large number of a party workers killed â Doctrine of Separation of Powers â Power of judicial review conferred on the High Court â Issue â Whether the High Court, in exercise of its jurisdiction under Article 226 of the constitution of India, can direct CBI to investigate a cognizable offence, which is alleged to have taken place with in the territorial jurisdiction of a State, without the consent of the State Government- HELD-Yes-Power of judicial review being an integral part of the basic structure of the Constitution, no Act of Parliament can exclude or curtail the poers of the Constitutional Courts with regard to the enforcement of fundamental rights-Any direction by the Supreme Court or the High Court in exercise of power under Article 32 or 226 to uphold the Constitution and maintain the rule of law cannot be termed as violating the federal structure-
Power of the High Court under Article 226 of the Constitution cannot be taken away, curtailed or diluted by Section 6 of the Special Police Act-Being the protectors of civil liberties of the citizens, this court and the High Courts have not only the power and jurisdiction but also an obligation to protect the fundamental rights, guaranteed by Part III in general and under Article 21 of the Constitution in particular, zealously and vigilantly.
Similar view has already been taken in the order dated 17.9.2007 passed by Hon'ble Mr. Justice Sh.S.N.Dhingra in Criminal MC No. 2784 of 2007 wherein his Lordship was pleased to make the following observations:-
âThe investigation was referred to CBI in this case by the High Court. One investigation of a case is given by the High Court to CBI under its inherent powers, permission from State Government is not required. High Court is competent enough to refer a mater for investigation to CBI.
Investigation is done by police under Cr.P.C. There is no such thing as investigation under Delhi Cooperative Societies Act. In fact lot of bungling, corruption and registration of fake societies was found and the entire episode was investigated. Therefore, after investigation, the chargesheet had to be filed by CBI in respect of all those crimes, commission of which was revealed after investigation. It is also settled law that an act of accused may attract offences under different penal provisions and he can be charged under all such penal provisions.â In Cherrian Vs. Union of India (1992) 1 SCC 397, the Hon'ble Supreme Court directed CBI to take up the investigation of particular case without directing the Sate concerned to accord consent.
In so far the plea of Ld. Defence Counsel regarding the pendency of writ petition of accused S.P.Saxena in the Hon'ble Apex court is concerned; firstly, it has not been decided yet, secondly, no order regarding the stay of proceedings qua the present case either from the Hon'ble Apex Court or High Court has been shown or produced. Moreover, it has not been shown that in the said writ petition, if any prayer was made by the accused S.P.Saxena to stay the proceedings of this case. When no such prayer for grant of stay of this case has been made by the present accused or accused S.P.Saxena before the Hon'ble Apex Court then, accused cannot seek the stay of the proceedings of the present case in an indirect manner. AIR 2001 Supreme Court 2856 titled SatyaNarain Sharma Vs. State of Rajasthan is relied upon. Relevant portion is reproduced as under :-
â(A) Prevention of Corruption Act (49 of 1988), S. 19 â Stay of trial â Trial of public servant for corruption charges â No stay can be granted by Court by use of any power â This is also applicable to High Court when it exercises inherent jurisdiction under S. 482. Cr.P.C.â I disagree with the contention of Ld. Defence Counsel that FIR does not disclose the complete particulars of complaint as contemplated U/s 154 Cr.P.C meaning thereby the present case is without any FIR. Instant case was registered and investigated on the basis of the direction passed by the Hon'ble High Court of Delhi in Civil Writ Petition no. 10066/2004 on 02.08.2005. It discloses the correct particulars of complaint, correct version of the complaint, FIR number and other details, hence it meets the requirement of Sec. 154 Cr.P.C.
The plea of Ld. Defence Counsel is that Section 63 of the Act provides winding up order may be cancelled at any time and further that as per Rule 105 of the DCS Rules, 1973, there is automatic revival of the society, if liquidation proceedings are not completed within the period of three years, though do not call for any comments but it cannot be ignored more particularly when recalling of the liquidation order(s) is based on the allegations of conspiracy.
Undoubtedly, the court has ample power U/s 173(8) Cr.P.C to order for further reinvestigation in a given situation. The scheme of Sec. 173(8) Cr.P.C makes it abundantly clear that even if the charge sheet is submitted, further investigation, if called for is not precluded. 2002(2) Crimes 159 SC is relied upon. The question which arises for determination is whether an application can be made by the accused requesting for further investigation under the aforesaid provisions and the same can be ordered on the facts & circumstances of the particular case so demands.
This case was registered and investigated by CBI pursuant of directions given by Hon'ble High Court of Delhi. Hon'ble Supreme Court and various Hon'ble High Courts have held that provisions of Section 3, 4, 5 and 6 of DSPE Act do not apply when the Hon'ble Supreme Court/High Court directs CBI to conduct investigation. I find support of my view from the following judgments; State of West Bengal Vs. Sampat Lal AIR 1985 SC 195, C A Gopalan Vs. Inspector General of Police 1993 Cr L J 1543, Maniyeri Madhwan Vs. Sub Inspector of Police, 1994 Cr L J 3063. Yashwant Vs. State of Maharashtra 1995 Cr L J 2228. Dharmistha Ben Narindera Sunh Jala Vs. State of Gujarat 1997 Cr L J 3866.
Hon'ble Supreme Court in Naresh Kavarchand Khatri Vs. State of Gujarat & Ans 2008 8 SCC 300 has held that power of the Court to interfere with an investigation is limited. The Court should not interfere in the matter at the initial stage in regard thereto. The police authorities, in terms of section 156 of the Code of Criminal Procedure, exercise a Statutory Power.
Re-investigation or fresh investigation is out of the scope of Section 173 (8) of Cr.P.C. In this regard, reliance is placed on K. Chandrasekhar Vs. State of Kerala and Ors., 1998(2) RCR (Criminal) 719 : (1998(5) SCC 223). It was, inter alia, observed as follows :-
â24. The dictionary meaning of âfurtherâ (when used as an adjective) is âadditional; more; supplementalâ. âFurtherâ investigation therefore is the continuation of the earlier investigation and not a fresh investigation or reinvestigation to be started ab initio wiping out the earlier investigation altogether. In drawing this conclusion we have also drawn inspiration from the fact that sub-section (8) clearly envisages that on completion of further investigation the investigating agency has to forward to the Magistrate a âfurtherâ report or reports â and not fresh report or reports â regarding the âfurtherâ evidence obtained during such investigation.â Further in Ramachandran Vs. R.Udhayakumar, AIR 2008 (SC) 3102 : 2008 Cr.L.J. 4309, it was held as followsâ âCriminal Procedure Code, Section 173(2) â Criminal Procedure Code, Section 173(8) â Fresh investigation, Re-investigation and further investigation â Distinction â After completion of investigation under Section 173(2) Cr.P.C., Police has right to further investigation under Section 173(8) Cr.P.C but not fresh investigation or re-investigation â Directions of the High Court for re-investigation or fresh investigation are clearly indefensible. 1998(2) RCR (Crl.) 719 (SC) relied.â Since the offences as per the charge-sheet were allegedly committed under the Penal Code as well as under the Prevention of Corruption Act, so it cannot be said that the investigation undertaken by the CBI was illegal.
Insofar, the citations relied upon by the Ld. Counsel is concerned, there is no dispute with regard to the proposition of law laid down therein, however, every case has its own facts and circumstances, ratio of law laid down in particular authority is to be applied according to the facts and circumstances of that particular case. Facts and circumstances of the case in hand has already been discussed in earlier part of my order which are entirely different than that the facts and circumstances of authorities cited by the Ld. Defence counsel.
In view of the aforesaid discussions, the present application is devoid of any merit as the same has been moved with the motivation to delay the progress of trial. In the result, application stands dismissed with costs of Rs.6000/- to be deposited with DLSA.
Announced in the open court
on the 21st Day of August, 2010. (Amar Nath) Spl. Judge, CBI-II
Rohini Delhi