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Delhi District Court

Central Bureau Of Investigation vs . on 1 December, 2014

             IN THE COURT OF SH.R P PANDEY
     SPECIAL JUDGE-01 (CBI): ROHINI COURTS:DELHI



CBI No.11/12


Central Bureau of Investigation


           Vs.

Bibianus Toppo & Ors.


FIR No. : RC.5(A)/2004/SCU-V/CBI/SCR-II/CBI/New Delhi

Under Section : 120 B r/w Sec.419//// IPC
Section 13 (2) r/w 13 (1) (d) of P.C. Act 1988 and Section 12 of
Passport Act, 1967


Date of Filing Application : 25.11.14

Arguments Concluded on : 28.11.14

Date of Order               : 01.12.14

CASE ID No.                 : 02404R0651282007




                                                       CBI Case No.11/12
                                           CBI Vs. Bibianus Toppo & Ors.
                                                         Page No.1 of 16
 Appearances:     Sh.N.P   Srivastava,   Public    Prosecutor         for
                 CBI.

                 Mr. R.Ramachandran, Advocate for A-1.

                 Mr.Sukhwinder     Singh,        Advocate            for
                 accused Nos.2, 3 & 4.

ORDER:

1. By this order I proceed to dispose of a joint application filed by accused/Ram Chander and Anil Dhawan u/s 224 Cr.PC r/w section 300, 318, 219, 220 Cr.PC, 71 IPC r/w Article 20(2) of the Constitution of India for dropping of the proceedings. Reply has been filed by CBI to the application. Copy supplied.

2. While in this case final arguments were being heard by the court in which ld.Public Prosecutor had already argued the matter and ld.counsels for accused nos.1 to 3 have also partly argued their case on 21.11.2014 and the matter was CBI Case No.11/12 CBI Vs. Bibianus Toppo & Ors.

adjourned for remaining arguments on 28.11.2014 but in the meanwhile the instant application was filed on behalf of accused/Ram Chander and Anil Dhawan on 25.11.2014, the notice of which was issued to CBI and the matter was fixed for reply and disposal of this application alongwith remaining final arguments.

3. The court desired that the contentions raised in the instant application could be heard and disposed of along with the final arguments, but the ld.counsel for the accused/applicants agitated that his application be disposed of first before hearing the remaining final arguments of the case. Accordingly instant application was taken up for arguments and disposal. Heard.

4. It has been submitted by ld.counsel for the accused/applicants that accused/applicants are facing trial along with their co-accused persons in different pending cases which CBI Case No.11/12 CBI Vs. Bibianus Toppo & Ors.

are mentioned in para 5 of their application and in all these cases, CBI had registered FIR on source information that employees of Regional Passport Office (RPO) and some travel agents had hatched a conspiracy during 2000 to 2004 and in pursuance of which the passports and the additional passport booklets were being issued to different persons who were not entitled to receive the same. On the basis of same information different FIRs were registered by CBI although the subject matters of all the FIRs was same and after completion of investigation CBI has filed different charge sheets in those FIR cases mentioned in para 5 of the application, out of which two cases have already been decided.

5. He has submitted that as per the prosecution's own allegations the alleged acts mentioned in all these cases were committed in pursuance of the same conspiracy and as such they were to be tried together in a single charge sheet but CBI Case No.11/12 CBI Vs. Bibianus Toppo & Ors.

the CBI capriciously registered different FIRs and filed different charge sheets even in a single FIR. He has thus submitted that different offences in the chain of same events should be tried in a single trial as per the provisions of Section 224 of Cr.PC and that filing different charge sheets is violative of provisions of Section 71 IPC and amounts to double jeopardy u/s 300 Cr.PC as no one can be punished for the same offence twice.

6. On the other hand, ld.Public Prosecutor has submitted that such application of accused persons is not maintainable as at this stage when the trial is already concluded and the instant case alongwith some other cases mentioned in the application have reached the stage of final arguments, it is not possible to unite the trial of cases u/s 219 Cr.PC. He has also contended that the facts and circumstances of each of the cases referred in the application are totally different wherein the transactions, accused persons and the sections of law against CBI Case No.11/12 CBI Vs. Bibianus Toppo & Ors.

each of the accused persons are different. He has also submitted that dropping of the proceedings against accused persons is not permissible and not provided under the Cr.PC. He has also submitted that as per the law, for every distinct offence, of which any person is accused, there shall be separate charge and every such charge shall be tried separately. He has, therefore, prayed for dismissal of the application being devoid of any merit.

7. During the course of arguments, ld.counsel for the accused/applicants has relied upon judgment cited as Amitbhai Anil Chandra Shah Vs. Central Bureau of Investigation (2013) 6 SCC 348, wherein it was observed by Hon'ble Supreme Court that 'right from the inception of entrustment of investigation to CBI by order dated 12.11.10 till filing of the charge sheet dated 04.09.12, this court (Apex Court) has treated the alleged fake encounter of Tulsiram Prajapati to be CBI Case No.11/12 CBI Vs. Bibianus Toppo & Ors.

an outcome of one single conspiracy alleged to have been hatched in November, 2005 which ultimately culminated in 2006 and, therefore, under such circumstances, the filing of 2nd FIR and a fresh charge sheet for the same is contrary to the provisions of the Code suggesting that the petitioner was not being investigated, prosecuted and tried in accordance with law.' The Hon'ble Supreme Court had observed, " This court has consistently laid down the law on the issue interpreting the Code, that a 2nd FIR in respect of an offence or different offences committed in the course of the same transaction is not only impermissible but it violates Article 21 of the Constitution."

8. On carefully going through the aforesaid judgment, I find that the legal issue before Hon'ble Supreme Court in Amitbhai Anil Chandra Shah's case (supra) was that whether the 2nd FIR can be registered in respect of some offences or different offences committed in the course of same CBI Case No.11/12 CBI Vs. Bibianus Toppo & Ors.

transaction. But it does not prohibit the registration of different FIRs or filing of different charge sheets for the offences committed pursuant to different conspiracies between different accused persons in different course of transactions.

9. Adverting to the facts of the cases of passport scam before me, the position is that there are different accused, at times different public servants working in RPO Delhi who allegedly colluded with different travel agents/touts for preparation of fake passports with fake identity but the photographs of real persons, who are all different persons, some of which are made accused and some of which could not be traced, as they flew abroad and not returned back. It is not the case that all the passport booklets have been issued in the same span of time pursuant to a single conspiracy.

10. It is clear that in all these cases of passport CBI Case No.11/12 CBI Vs. Bibianus Toppo & Ors.

scam there are different conspiracies under which the passports were issued in favour of different persons as the photographs of different persons have been utilized for getting issued passport booklets, who either attempted/tried to travel abroad or successfully travelled abroad with forged passports on which their photographs were affixed but with fake names and other particulars.

11. It is not that in every case the passport was granted/signed by accused/Bibianus Toppo or HIT was cleared by accused/Ram Chander alone. It is also not the case that only accused/Anil Dhawan had written and signed the passport applications on behalf of different impostors. Thus different conspiracies were hatched by different officials of RPO, Delhi with different private persons each time for issuance of passport with photographs of altogether different impostors. CBI Case No.11/12

CBI Vs. Bibianus Toppo & Ors.

12. Ld.Public Prosecutor has rightly pointed out that wherever CBI had found that the offence was outcome of a single conspiracy between accused public servants and private accused persons, CBI has filed single charge sheet even though different FIRs were registered in respect of different passport booklets. For this purpose he has cited that for three different RC bearing FIRs bearing RC Nos.2(A) to 4(A) of 2004, a single charge sheet was filed in the court which is bearing CC No. 08/12. Thus, it is not the case that there was a single conspiracy or single chain of events under which different passport booklets have been issued for which CBI has registered different FIRs or filed different charge-sheets.

13. It has been pointed out by ld.counsel for the accused persons that there are two charge sheets, one is bearing CC No.05/12 and another bearing CC No.11/12 which both have arisen out of the same FIR No.5(A)/04 registered with CBI Case No.11/12 CBI Vs. Bibianus Toppo & Ors.

CBI but it is admitted fact that whereas the passport booklet in CC No.05/12 was got issued with the photograph of one Amarvir Kaur (PO), the photograph used for issuance of passport booklet in CC No.11/12 is of Kuldeep Kaur (PO), who both had attempted/travelled abroad on the passports issued in the name of one Gita Devi Kapoor which were issued by RPO Delhi and even one Rajesh Kumar Sharma is accused in CC No.05/12 only but he is not an accused in CC No.11/12. Both the passport booklets were issued during different periods and both the accused, who had travelled/attempted to travel abroad are not connected to each other. Whereas Kuldeep Kaur (PO) attempted to travel abroad on a passport issued with her photograph on 06.02.04 and arrested at the airport, Amarvir Kaur successfully travelled abroad on a passport issued with her photograph on 05.03.04. Accused Rajesh Sharma had also travelled abroad with her to facilitate her. In this way we find that these are two different offences committed in two different course of CBI Case No.11/12 CBI Vs. Bibianus Toppo & Ors.

transactions under different conspiracies for which two different charge sheets have been filed, although there was a single FIR registered by CBI bearing RC No.5(A)/04.

14. The ld.counsel for accused/applicants has also relied upon judgment of Hon'ble Supreme Court cited as Rama Chaudhary Vs. State of Bihar, AIR 2009 SC 2308 wherein Hon'ble Supreme Court had laid down that even after submission of police report under sub-section (2) of section 173 of Cr.PC on completion of investigation, the police had a right to " further investigation" under sub-section (8) of Section 173 but not " fresh investigation" or " reinvestigation."

15. The case in hand is not of " fresh investigation"

or " reinvestigation." This is the case of filing two two charge sheets in respect of two incidents of issuance of two passport booklets at two different points of time with photograph of two CBI Case No.11/12 CBI Vs. Bibianus Toppo & Ors.

impostors not connected to each other. Merely because the public servants involved in the case are the same public servants along with one of the private person/Anil Dhawan, it does not entitle them to agitate that the police could not have filed two different charge sheets in a single FIR.

16. The ld.counsel for the accused/applicants could not cite any law which prohibits the police or CBI to file two charge sheets in a single FIR case where the alleged incidents are different and there are two sets of conspiracies. I find that none of the authorities relied upon by the ld.counsel for the accused/applicants as discussed above are of any help to them.

17. It has been pointed out by ld.Publc Prosecutor that the accused public servants vide a transfer petition bearing no.Crl.No.02/09 had approached Hon'ble High Court with same prayer and in the same petition all the accused persons herein CBI Case No.11/12 CBI Vs. Bibianus Toppo & Ors.

are either petitioners or the respondents (except the accused who are POs). The Hon'ble High Court vide order dated 13.03.09 had passed a direction that all the six cases be shifted to one court in Rohini and thereafter in pursuance to that order all the cases were assigned to the predecessor and since then they are being tried in this court, some of which have been decided and some of which are either at the stage of final arguments or evidence.

18. If the applicants/accused persons were suffering any prejudice by filing of separate charge sheets or separate FIRs or separate trials in respect of different incidents of fraudulent issuance of passports, they could have sought remedy in respect of the same also before Hon'ble High Court when they had approached the Hon'ble High Court in 2009 when even the charge were not yet framed.

CBI Case No.11/12

CBI Vs. Bibianus Toppo & Ors.

19. It would be pertinent to refer to a judgment of Hon'ble High Court in Dr.R R Kishore Vs. CBI, 142 (2007) DLT 702, wherein the Hon'ble Delhi High Court has laid down, 'if cognizance is taken on the basis of an illegal investigation and no objection is taken at the initial stages and the trial proceeds to its conclusion and results in conviction, then the same can be set aside only if it has resulted in a miscarriage of justice.' Being guided by this judgment, I am of the view that this is not the stage when such kind of objections are made and the court is asked to decide the same before passing the judgment.

20. Thus, I am of the view that the instant application has been filed by accused/Ram Chander and Anil Dhawan only in order to further delay the disposal of the case at the fag end of the trial. I accordingly dismiss the joint application filed by them with cost of Rs.5,000/- on each of them for abusing the process of law. The cost to be deposited with DLSA within a CBI Case No.11/12 CBI Vs. Bibianus Toppo & Ors.

week's time.

Announced in the open     (R P PANDEY)
Court on 01.12.2014     Spl.Judge-CBI-01
                        Rohini Court:Delhi




                                        CBI Case No.11/12
                            CBI Vs. Bibianus Toppo & Ors.
                                         Page No.16 of 16