Delhi District Court
Cbi vs . Rakesh Kumar & Ors. on 26 February, 2011
IN THE COURT OF SH.R.P.PANDEY : SPECIAL JUDGE-01(CBI)
ROHINI COURTS : DELHI
CBI NO.58/08
CBI VS. RAKESH KUMAR & ORS.
Reserved for order - 18.02.11
Date of order - 26.02.11
ORDER-
1.This order will dispose of an application of accused/Shiv Kumar (A-2) filed under section 5(2) of PC Act, 1988 for tender of pardon as also his objections to the application of the prosecution (CBI) under section 306 Cr.PC for pardon to accused/Har Gulab Singh (A-3).
2. Brief facts of the case are that RC No.1(S)/2006-SCU- I/CBI/SCR-I/New Delhi was registered on 27.03.06 against 14 accused persons including Rakesh Kumar, the then Director General, Indian Council for Cultural Relations (ICCR), New Delhi, Shiv Kumar Sharma, Hargulab Singh and others for illegal trafficking of 9 CBI No.58/08 Page No.1 of 15 individuals to Germany.
3. It is stated that in the month of March, 2005, Shiv Kumar Sharma (A-2) introduced Hargulab Singh (A-3) as his friend to Rakesh Kumar in the office of ICCR for the empanelment of a bhangra group in the name of Hargulab Singh (A-3). On being asked by Shiv Kumar Sharma (A-2), Hargulab Singh (A-3) paid Rs.1 lac to him for the empanelment of the group. In furtherance of the criminal conspiracy, on 27.04.05, Shiv Kumar Sharma (A-2) along with Ct.Gurbhej singh and Hargulab Singh (A-3) visited the office of Rakesh Kumar at New Delhi and paid Rs.1 lac to Rakesh Kumar in the presence of Hargulab Singh for the empanelment of the group.
4. It is alleged that in furtherance of the criminal conspiracy, the fake bhangra group "Mahek Punjab Di" was got empanelled with ICCR and Shiv Kumar Sharma collected huge amount of money from the prospective candidates for their illegal trafficking. On 01.09.05, Rakesh Kumar visited Ludhiana on the pretext of watching the CBI No.58/08 Page No.2 of 15 performance of the group. Shiv Kumar Sharma (A-2) provided hospitality to Rakesh Kumar (A-1) by making available two girl artists for sexual favour for selection of the group.
5. It is further stated that on 05.09.05, Shiv Kumar Sharma (A-
2) visited the office of ICCR with the ordinary passports and partially filled applications of the members of the dance group for issuance of their official passports. On 12.09.05, a group of 15 persons left for Germany including Shiv Kumar Sharma (A-2). He was neither a performer nor an official of ICCR. In the night of 15.09.05 and morning of 16.09.05, seven members of the group other than Hargulab Singh (A-2) and his son Randeep Singh, escaped as a result of pre-planned conspiracy amongst Rakesh Kumar, Shiv Kumar Sharma and others.
6. Based on the investigation by the CBI charge sheet was filed by the CBI u/s 173 Cr.PC against accused Rakesh Kumar (A-1); Shiv Kumar Sharma (A-2); Hargulab Singh (A-3); Mrs.Balwinder @ CBI No.58/08 Page No.3 of 15 Bawa (A-4) and Gurbhej Singh (A-5). Cognizance was taken by the court and the accused persons were summoned by ld.predecessor.
7. One application has been filed by the prosecution (CBI) u/s 306 Cr.PC for grant of pardon to accused/Hargulab Singh (A-3) whose statement was recorded u/s 164 Cr.PC during the investigation of the case. However, pending the application of CBI for grant of pardon to accused/Hargulab Singh (A-3), accused/Shiv Kumar (A-2) had filed an application seeking supply of the copy of the application as also supply of copy of the statement of accused/Hargulab Singh (A-3) u/s 164 Cr.PC, which was allowed by ld.predecessor, vide order dated 30.01.10 and after receipt of the copy of application, the objections have been filed by accused/Shiv Kumar (A-2) to the application of CBI u/s 306 Cr.PC for grant of pardon to accused/Hargulab Singh (A-3).
8. As per the objections raised by accused/Shiv Kumar (A-2) to the application of CBI u/s 306 Cr.PC, it has been submitted that an application u/s 306 Cr.PC for grant of pardon to an accused, is not CBI No.58/08 Page No.4 of 15 maintainable at the behest of CBI as only the accused could move such an application. It is also submitted that no such application could be filed u/s 306 Cr.PC as the appropriate provision is Section 5(2) of PC Act. It is also stated that since accused/Hargulab Singh (A-3) made statement u/s 164 Cr.PC and disclosed true and complete facts, therefore, no further true facts can be disclosed by him and hence the application is liable to be dismissed. It is also alleged that accused/Hargulab Singh (A-3) is having previous criminal record, therefore, he should not be pardoned.
9. I have heard Sh.A K Bajpayee, ld.counsel for accused no.2/Shiv Kumar Sharma and Sh.J S Wadia, Ld.Special Public Prosecutor for CBI and perused the records carefully.
10. Ld.counsel for accused/Shiv Kumar (A-2) has submitted that CBI has no locus standi in moving such application and any such application should have been moved by accused/Hargulab Singh (A-
3) and not by the CBI.
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11. He has also relied upon the judgment of Hon'ble Supreme Court cited as Lt.Commander Pascal Fernandes Vs. State of Maharashtra and Others, AIR 1968 (SC) 594, particularly to the observations of the Hon'ble Supreme Court that there is nothing in the language of the section to show that the Special Judge must be moved by the prosecution and that he may consider an offer by an accused.
12. From perusal of the above cited judgment, I find that there is no bar put by Apex Court that the prosecution can not file an application for tender of pardon to particular accused person. Rather the ratio of law laid down in above referred case is that the court may consider an offer made by an accused even when prosecution has not filed any such application for the tendering pardon to such accused person. Thus, there is no substance in the submissions of ld.counsel for accused/Shiv Kumar (A-2) that an application for grant of pardon to an accused filed by prosecution (CBI), is not maintainable. CBI No.58/08 Page No.6 of 15
13. Ld.counsel for accused has further submitted that there are specific provisions under Section 5(2) of PC Act for tender of pardon to an accused and, therefore, the application should have been filed u/s 5(2) of the PC Act and not under section 306 Cr.PC as has been done by the prosecution in this case. For this purpose, he has relied upon the judgment of Hon'ble Supreme Court cited as Jasbir Singh Vs. Vipin Kumar Jaggi and Others, AIR 2001 (SC) 2734, particularly to the following observations of the Hon'ble Supreme Court:-
"...Assuming there is a conflict between the powers of the court under Section 307 Cr.PC and the power of the Central Government under Section 64 of the Act, then it must be held that Section 64 would prevail both on the ground that the Act being a special Act overrides Cr.PC which is a general Act and also because the later enactment must prevail over the earlier one."
14. In the above cited judgment, Hon'ble Supreme Court has laid down that assuming there is conflict between powers of court u/s 307 Cr.PC and power of Central Government under Section 64 of the CBI No.58/08 Page No.7 of 15 NDPS Act, the provisions of NDPS Act would prevail both for the reason that the NDPS Act being a special Act overrides Cr.PC which is a general law and also because the later enactment must prevail over the earlier one.
15. However the ld.defence counsel could not point out any of the provisions of Section 306 or 307 of Cr.PC which are in conflict with the provisions of Section 5(2) of the PC Act.
16. On the other hand, ld.Public Prosecutor has submitted that the application filed by prosecution may be treated as having been filed u/s 5(2) of PC Act read with Section 306 Cr.PC. I am of the view that even if the instant application has not been filed mentioning the specific provisions of 5(2) of PC Act, it does not call for its dismissal only for this technical reason, particularly when there is no material conflict between the provisions of 5(2) of PC Act and Section 306 Cr.PC regarding tender of pardon to accused.
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17. Thus, I find that there is no substance in the submissions of ld.counsel for accused/Shiv Kumar that the application of prosecution (CBI) is liable to be dismissed for the reason that it has not been filed u/s 5(2) of the PC Act.
18. Next submission of the ld.counsel for accused/Shiv Kumar (A-2) is that prosecution should not give undue favour to accused/Hargulab Singh (A-3) and disfavour to other accused persons.
19. He has relied upon the judgment of Hon'ble Delhi High Court cited as Ashok Kumar Aggarwal Vs. CBI & Anr., 2007 Ind.Law Del.761, wherein Hon'ble Delhi High Court emphasised that the court is not a mute spectator and keeping in mind the interest of co-accused persons, he should at least consider that the prosecution is not unduly favouring the person seeking pardon, at the cost of the co-accused.
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20. I find that the above observations of Hon'ble Delhi High Court are by way of a caution to the trial court to keep a watch that the prosecution should not unduly favour one co-accused person at the cost of other accused persons.
21. When during investigation accused/Hargulab Singh (A-3) had made a statement u/s 164 Cr.PC disclosing his involvement as well as involvement of other accused persons and their specific role in commission of alleged offence then under such circumstances, the application of the prosecution (CBI) for grant of pardon to accused/Hargulab Singh (A-3), can not be said to give undue favour to him at the cost of the other accused persons, when particularly prosecution (CBI) has submitted that accused/Hargulab Singh (A-3) has disclosed the true facts about his involvement in the alleged crime as well as involvement of the other accused persons and has expressed his desire to become an approver in this case.
22. In this respect, ld.Public Prosecutor has rightly relied upon CBI No.58/08 Page No.10 of 15 the judgment of Hon'ble Madras High Court cited as Senthamarai Vs. Krishnaraj and Ors., 202 Cri.LJ 2375, wherein Hon'ble Madras High Court had observed that the tender of pardon is a matter essentially between the concerned court and the person to whom the pardon is granted and the co-accused can not tell the court that the statement of the person concerned is fake and, therefore, pardon can not be granted to him.
23. He has also relied upon judgment of Hon'ble Supreme Court cited as Ranadhir Basu vs. State of West Bengal, 2000 Cri.LJ 1417, wherein Hon'ble Supreme Court had observed that examination of the approver before ld.Magistrate is neither an enquiry nor a trial and, therefore, the plea that such an approver may be examined in open court and the other accused persons be given opportunity to cross-examine the approver, was not necessary.
24. He has also relied the judgment of Hon'ble Supreme Court in Narayan Chetanram Chaudhary & Ors. Vs. State of CBI No.58/08 Page No.11 of 15 Maharashtra, AIR 2000, SC 3352, wherein Hon'ble Supreme Court has observed that Section 306 Cr.PC does not contemplate that the statement of the approver should be recorded twice i.e first before the magistrate and subsequently in trial court after committal of case. It was also observed by Hon'ble Supreme Court that there is no legal obligation on the trial court or a right in favour of the accused to insist for the compliance with the requirement of Section 306 (4) Cr.PC i.e for examining of the accomplice as witness in court again.
25. Thus, it is clear from the legal position discussed above that the objection of accused/Shiv Kumar (A-2) to the application of the prosecution (CBI) filed u/s 306 Cr.PC do not hold any substance and, therefore, it is dismissed and the application of prosecution u/s 306 Cr.PC is treated as having been filed under the provisions under section 5(2) of the PC Act as well, on the oral submissions of the ld.Public Prosecutor.
26. Accused/Shiv Kumar (A-2) has also filed an application u/s CBI No.58/08 Page No.12 of 15 5(2) of the PC Act for tendering him pardon. He has stated in his application that he is an innocent person and falsely implicated in this case by the CBI with malafide intention and he is ready to disclose true facts and circumstances of the commission of the crime which are within his knowledge and thus seeking pardon u/s 5(2) of the PC Act.
27. Application has been opposed by CBI by filing a reply that it has been filed with ulterior motive and as such prosecution does not intend to take him as approver in this case.
28. On the application of accused/Shiv Kumar, ld.counsel has submitted that accused/Shiv Kumar is willing to become an approver and will disclose true facts and circumstances of the matter. He has also submitted that co-accused/Hargulab Singh (A-3) has past criminal antecedents whereas accused/Shiv Kumar (A-2) has no such criminal antecedents.
29. On the other hand, ld.Public Prosecutor has submitted that CBI No.58/08 Page No.13 of 15 FIR stated to be filed against accused/Hargulab Singh (A-3) have been cancelled as they were found to be the false cases against him. He has also submitted that accused/Shiv Kumar (A-2) is a prime accused in this case, who was involved in the entire conspiracy with co-accused persons to get the fake Bhangra Group approved with ICCR on the basis of forged/fake documents and in furtherance of conspiracy, he received monetary consideration from various persons for their illegal trafficking to Germany and that he also accompanied the fake Bhangra Group to Germany to ensure the illegal trafficking of the concerned persons and that he is one of the main conspirator.
30. From perusal of the application of accused/Shiv Kumar (A-
2) u/s 5(2) of the PC Act, I find that it is only an skeleton application. He never offered himself during investigation, to make a statement before the Magistrate about the true facts & circumstances of the case and even in the application he has not mentioned as to what facts he is going to disclose and, therefore, his application appears to be only an afterthought and a device to misguide the court and to further delay CBI No.58/08 Page No.14 of 15 the expeditious disposal of the case. Thus, his application is found without any merit and hence dismissed.
Announced in the Open (R.P.PANDEY)
Court on 26.02.2011 SPECIAL JUDGE,01(CBI)
ROHINI COURTS: DELHI
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