Delhi District Court
9. In Case State Of Madhya Pradesh vs Sheetla Sahai on 22 December, 2015
State through CBI v. Mohd. Ashfaq Qureshi & Others
(NEW HIND CGHS)
IN THE COURT OF SH. PAWAN KUMAR JAIN,
SPECIAL JUDGE, CBI-01, NORTH-WEST DISTRICT,
ROHINI COURTS COMPLEX, DELHI
IN THE MATTER OF:
CBI No. : 18/2008
ID No. : 02404R0436422006
FIR No. : RC 16(E)/2005/EOW-I/CBI/N. Delhi
U/Sec: 120B IPC r/w 419/420/468/471 IPC
and Section 13(2) r/w 13(1)(d) of PC
Act 1988 and substantive offences
thereto
Police Station: CBI/EOW-I/New Delhi
STATE
THROUGH
CENTRAL BUREAU OF INVESTIGATION,
NEW DELHI
VERSES
CBI No. 18/08 Page 1 of 55
State through CBI v. Mohd. Ashfaq Qureshi & Others
(NEW HIND CGHS)
1. MOHD. ASHFAQ QURESHI
S/o Shafiq Ur. Rehman,
R/o 1603, Aziz Ganj,
Bahadurgarh Road, Delhi-6.
(Proceedings abated vide order
dated 10.05.2011 due to death)
.........Accused No. 1
2. MR. RAMAN VERMA
S/o Late Jagan Nath Verma,
R/o F-444, Karam Pura,
New Delhi-15
.........Accused No. 2
3. MR. RAMESH CHANDRA
S/o Late Agya Ram,
R/o CD-52, F-DDA Flat, LIG,
Hari Nagar, Delhi.
.........Accused No.3
4. NARAYAN DIWAKAR
S/o Late Chhati Ram,
R/o G-30, Maszid Moth,
New Delhi-48.
(Discharged vide order dated 03.07.2012)
.........Accused No.4
CBI No. 18/08 Page 2 of 55
State through CBI v. Mohd. Ashfaq Qureshi & Others
(NEW HIND CGHS)
5. MR. B.M.SETHI
S/o Late Hira Lal Sethi,
R/o L-8, Kirti Nagar,
New Delhi-15
(Proceedings abated vide order
dated 07.09.2009 due to death)
.........Accused No. 5
6. MR. KRISHAN KUMAR
S/o Late Amar Singh,
R/o B-36, Pkt-B, Mayur Vihar,
Phase-II, New Delhi.
Permanent Address:-
Karnal, Guru Colony,
Behind Sector-8 (Haryana)
(Discharged vide order dated 03.07.2012)
.........Accused No.6
7. HAFIZ MOHD. JAMIL
S/o Late Hazi Mohd. Suleman,
R/o 7890, Mohalla Sheikhan,
Bara Hindu Rao,
Delhi-6.
(Discharged vide order dated 03.07.2012)
.........Accused No. 7
CBI No. 18/08 Page 3 of 55
State through CBI v. Mohd. Ashfaq Qureshi & Others
(NEW HIND CGHS)
Appearance : Ms. Shashi Vishwakarma, Public Prosecutor
for CBI
Sh. S.K. Bhatnagar, Advocate, counsel for
Raman Verma (A2) and Amicus Curiae for
Ramesh Chandra (A3)
JUDGMENT RESERVED ON : 04.11.2015
JUDGMENT PRONOUNCED ON : 22.12.2015
JUDGMENT:-
1. Facts in brief as unfolded from the charge-sheet are as under:-
(i) It was alleged that New Hind CGHS Ltd. (in short 'Society') was registered on January 31, 1984 with registration No. 1425-GH with 53 promoter members having its registered office at 7975, Quershi Girls School, Gali Shamshuddin, Bara Hindu Rao, Delhi-110006, which fell within the jurisdiction of North Zone.
(ii) It was alleged that since minimum 60 members were required to form a Group Housing Society, Sh. Anwar Ahmed, Secretary of the Society promised to complete the said requirement at the earliest after registration of the Society.
(iii) It was alleged that on November 3, 1983 a resolution CBI No. 18/08 Page 4 of 55 State through CBI v. Mohd. Ashfaq Qureshi & Others (NEW HIND CGHS) was passed in the General Body Meeting of the Society about the registration of Society with 266 members, consequently in pursuance of the said resolution, an application was submitted to RCS Office for registration of the Society with 266 members.
(iv) It was alleged that though in the list of 266 members, name of M.A. Quershi and Hafiz Mohd. Jamil did not mention, yet they signed the Proceedings Register of the Society being the Management Committee Member and Treasure of the said Society respectively. However, subsequently, both of them became members of the said Society w.e.f April 1, 1984.
(v) It was alleged that Smt. Sehnaz Begum wife of Haflz Mohd. Jamil was already a member in the Society w.e.f November 3, 1983. Similarly, Moonish Qureshi s/o M. A.Qureshi had also been enrolled as a member of the Society in the year 1985, but at that time, he was below 18 years of age. It was alleged that since he was minor at that time, he was not eligible to become a member of the Society. It was further alleged that several other minor persons were also enrolled as members. It was alleged that Society was more or less a family affair of Mr. M.A. Qureshi (A1) and Mr. Hafiz Mohd. Jamil (A7).
(vi) It was alleged that though Anwar Ahmed, the then Secretary of the Society had submitted a list of 285 members to the RCS on February 25, 1986 and in the said list name of A1 and A7 also figured, but the said list was required to be submitted prior to the cut CBI No. 18/08 Page 5 of 55 State through CBI v. Mohd. Ashfaq Qureshi & Others (NEW HIND CGHS) off date i.e. July 31, 1985. But the Society failed to submit any such list prior to cut off date.
(vii) It was further alleged that Sh. Arun Kumar, the then Asstt. Registrar recorded a note dated December 17, 1988 that a list of 53 members may be sent to DDA and that no permission could be granted to the Society to enroll the members after July 31, 1985. The said note was approved by Mr. Sanat Kaul, the then RCS on December 20, 1988. Accordingly, a letter was sent to DDA on the same day with recommendation for allotment of land to 53 members of the Society.
(viii) It was alleged that though the name of 53 members were approved by the RCS, yet Society had held the election with 285 members on January 10, 1989, consequently, Society was asked to submit its record but Society failed to submit the same despite reminder dated September 26, 1991 and October 29, 1991.
(ix) It was alleged that on April 4, 1989 Hafiz Mohd. Jamil (A7) had forwarded a list of 185 members to RCS with a request to send the same to DDA for allotment of the land. However, the concerned clerk of RCS had mentioned the number of members as 185 instead of 285 inadvertently. It was alleged that Mr. Anwar Ahmed, the then Secretary of the Society had earlier sent a list of 285 members which was duly signed by President, Vice-President and Secretary of the Society which also included the name of 53 promoter CBI No. 18/08 Page 6 of 55 State through CBI v. Mohd. Ashfaq Qureshi & Others (NEW HIND CGHS) members. The Proceedings Register of the Society showed that the total strength of the Society was 300 as on February 25, 1986, it was thus alleged that Society was not sure about its strength.
(x) It was further alleged that Jamil Murtaza, the then Dy. Registrar had sent a letter dated March 18, 1993 to the Society directing to send a list of members as on March 31, 1993 in duplicate in the prescribed performa by April 10, 1993, but Society did not respond to the RCS. Thereafter, Mr. B. M. Sethi, the then Asstt. Registrar requested the Society vide letter dated April 23, 1996 for production of original record for verification for audit, but the Society again failed to comply with the directions.
(xi) It was further alleged that M.A.Quershi (A1) vide his letter dated January 8, 2001 intimated the RCS about the change of address to H-51, Dr. Iqbal Lane, Muradi Road, Batla House, Jamia Nagar, New Delhi-25, which was accompanied by a 'No Objection Certificate' from Mohd. S.Khalil, owner of the said premise. It was alleged that though during investigation, Mr. Khalil confirmed the said NOC, but stated that Society had never operated from his residence.
(xii) It was further alleged that A1 in connivance with Ramesh Chandra, the then AR(A3) and others moved an application for change of address with a view to get the list of 300 members approved and forwarded the same to DDA for allotment of land.
CBI No. 18/08 Page 7 of 55State through CBI v. Mohd. Ashfaq Qureshi & Others (NEW HIND CGHS)
(xiii) It was alleged that Mr. Raman Verma, dealing Asstt. (A2) recorded a note on January 17, 2001 and recommended to call for the original file of the Society from North Zone and several reminders were also sent, but in casual manner, consequently, file was not received.
(xiv) It was alleged that Mr. Raman Verma (A2) recorded a note on July 9, 2001 stating that A1 had forwarded some of the remaining affidavits but all the deficient affidavits had not been filed, thus A1 was directed to file the same on July 18, 2001, consequently A1 had filed the remaining documents as per the note recorded by A2.
(xv) It was alleged that above both the notes were seen by Ramesh Chandra (A3) being the AR. It was alleged that A1 had endorsed resignation letters of the members in the file to get the freeze list approved from the South Zone of RCS for verification but the original resignation letters were still undated, which clearly proves the criminal conspiracy on the part of A2 and A3.
(xvi) It was alleged that in furtherance of the criminal conspiracy, A2 had recorded a note mentioning falsely that Society was registered on January 31, 1984 with 266 promoter members whereas the Society was registered with only 53 members who were found eligible. It was further alleged that A2 also falsely recorded in his note that inspection of the Society was conducted on June 18, 2001 and audit had been completed by 2000-2001 and the Society CBI No. 18/08 Page 8 of 55 State through CBI v. Mohd. Ashfaq Qureshi & Others (NEW HIND CGHS) conducted its election last on February 25, 2000. It was alleged that Ramesh Chandra (A3) dishonestly and fraudulently mentioned in his note that Society was registered with 266 promoter members and now Society had submitted a list of 300 members and recommended to approve the same for allotment of land by DDA. It was alleged that Mr. B.M.Sethi (A5) agreed to the said recommendation vide his note dated August 3, 2001. Krishan Kumar (A6) also approved the proposal vide his note dated August 3, 2001 and finally Mr. Narain Diwakar (A4) approved the said proposal.
(xvii) It was further alleged that as per the approval given by Mr. Narain Diwakar (A4), Ramesh Chandra (A3) forwarded a list of 300 members to A.R (Policy) vide letter dated August 6, 2001 for onward transmission to DDA for allotment of land to the said Society. It was alleged that Sh. Noor Mohd., the then AR (Policy) returned the list of members in original with the remarks that as per their record, the total strength of the Society was 53, thus wanted clarification in the matter, but he did not receive any response, accordingly, he sent the list of 300 members to the DDA on August 22, 2001.
(xviii) It was alleged that though the original file was available with Asst. Registrar (North), yet nobody was intended to get hold of the file. Besides that, it was misrepresented in various notes that list of 266 promoter members had been approved at the time of registration of the Society whereas only a list of 53 members had been approved at that time.
CBI No. 18/08 Page 9 of 55State through CBI v. Mohd. Ashfaq Qureshi & Others (NEW HIND CGHS) (xix) It was alleged that the DDA had not processed the recommendation of RCS for allotment of land because in its earlier recommendation RCS had shown the strength of Society as 53.
(xx) It was further alleged that the officials of RCS were fully aware that the Society had earlier been dealt with by the North Zone and that a list of 53 promoter members had been approved. But without waiting the response from North Zone, the accused persons processed the request of the Society dishonestly and fraudulently and approved the list of 300 members on the basis of misrepresentation. It was alleged that A3, A4, A5 and A6 failed to call for the file intentionally with a view to show favour to the Society. It was alleged that though the file was actually received from North Zone on August 28, 2001 and same was put up to Krishan Kumar (A6) but he failed to take any action on the said file. Mr. B.M. Sethi (A5) who held the charge of Dy. Registrar (North) ordered for merger of the file with the file of South Zone and did not take any action. It was alleged that A1 had submitted the application for change of address with dishonest intention to get the list of 300 members approved from South Zone without calling for the file from North Zone.
(xxi) It was alleged that in response to the letters dated October 3, 2003 and October 14, 2003 sent by the DDA regarding assessment of requirement of land and location, A1 had sent a letter to DDA on November 6, 2003 in which he had shown the registered office of the Society at 7957, Qureshi Girls School, Gali Shamsuddin, CBI No. 18/08 Page 10 of 55 State through CBI v. Mohd. Ashfaq Qureshi & Others (NEW HIND CGHS) Bara Hindu Rao, Delhi-6. Thereafter, DDA sent another letter to the Society on December 10, 2003 and M.A.Qureshi sent preference of locality to the DDA vide its letter dated January 5, 2004.
(xxii) It was alleged that M.A.Qureshi had forged the signatures of several members of the Management Committee in Urdu and English. In the minutes of meeting, he recorded that the meetings had taken place at the new address but it was refuted by the owner of the premises. It was alleged that Hafiz Mohd. Jamil also recorded some proceedings and forged the signatures of some members in Urdu and this was established by GEQD in its report.
(xiii) It was alleged that A1 and A7 had conspired with A2, A3, A4, A5 and A6 and in furtherance of the said conspiracy, A4 had dishonestly and fraudulently approved the list of 300 members of the Society and got it transmitted to DDA for allotment of land without considering the list of 53 members that was lying in the original file in North Zone of RCS and reconstructed the file without considering the actual status of the Society.
(xxiv) After completing the investigation, chargesheet was filed against A1 to A7 for the offence punishable under Section 120B read with 419/420/468/471 IPC and Section 13(2) read with Section 13(1)(d) of PC Act, 1988 and substantive offence under Section 419/420/511/468/471 IPC against A1 and A7 and further substantive offence under Section 15 read with Section 13(1)(d) of PC Act 1988 CBI No. 18/08 Page 11 of 55 State through CBI v. Mohd. Ashfaq Qureshi & Others (NEW HIND CGHS) against A2, A3, A4, A5 and A6.
(xxv) Vide order dated July 3, 2012 accused Narain Diwakar (A4), Krishan Kumar (A6) and Hafiz Mohd. (A7) were discharged. Proceedings qua Mohd. Ashfaq Qureshi (A1), B.M.Sethi (A5) were abated as they had expired during the proceedings. However, it was held that there are sufficient evidence against accused Raman Verma (A2) and Ramesh Chandra (A3) to make out a prima-facie case for the offence punishable under Section 120B read with 420/468/471 IPC and Section 13(2) read with Section 13(1)(d) of PC Act, 1988 and substantive offence under Section 13 (2) read with Section 13(1)(d) of PC Act 1988. Accordingly, a formal charge was framed against both the accused persons on August 7, 2012.
2. In order to bring home the guilt of accused persons, prosecution has examined as many as 49 witnesses. For the purpose of our discussion and convenience, these witnesses have been classified in the following categories:
Witnesses from the office of RCS:-
PW1 Sh. J.N. Gupta, Assistant Registrar
PW2 Dr. Ajay Kumar Singla, the then Assistant
Registrar
PW5 Sh. S.K. Seth, Head Clerk in the office of RCS
PW6 Sh. P.M. Tanwar, the then Assistant Registrar
PW46 Smt. Shakuntala Joshi, Assistant Registrar
CBI No. 18/08 Page 12 of 55
State through CBI v. Mohd. Ashfaq Qureshi & Others (NEW HIND CGHS) PW48 Mr. Prahlad Kumar Thirwani, Sr. Auditor Official from DDA:-
PW7 Sh. Sohan Pal Sharma, LDC
PW15 Sh. Ram Dass, Dy. Director
PW26 Sh. Sanjeev Ahuja, Union Territory Civil Service
Officer
Members or office bearers of the Society:-
PW3 Mohd. Khalil
PW4 Sh. Jane Alam
PW8 Ms. Shaheen Begum
PW9 Mohd. Suleman
PW10 Mohd. Gulfam
PW11 Mohd. Naeem
PW12 Ata Ur Rehman
PW13 Fazlur Rehman
PW14 Shajauddin
PW16 Zamiruddin
PW17 Shahnawaz Ahmed
PW18 Mohd. Aijaz
PW19 Mohd. Irshad Qureshi
PW20 Smt. Juveda Begum
PW21 Saeedur Rehman
PW22 Smt. Sardar Begum
CBI No. 18/08 Page 13 of 55
State through CBI v. Mohd. Ashfaq Qureshi & Others (NEW HIND CGHS) PW23 Mohd. Farman PW24 Mohd. Matin PW25 Mst. Anees Begum PW27 Mohd. Saheed PW28 Sh. Mashroor Rehmat PW29 Sh. Anwar Ahmed PW30 Sh. Zahiruddin PW31 Mst. Saira Bi PW32 Smt. Suraiya Begum PW33 Mohd. Shamsher PW34 Smt. Shabana Parveen PW35 Mohd. Khurram PW36 Smt. Parveen Begum PW37 Mohd. Aziz PW38 Smt. Naieela Begum Witnesses relating to GEQD:-
PW40 Sh. Mohinder Singh (Retired), GEQD PW43 Sh. Vishwa Mitter Bhagi, witness of specimen writings Miscellaneous witnesses:-
PW39 Sh. Neeraj Kumar, Chartered Accountant PW45 Sh. Sushil Kumar Sharma, turned hostile PW47 Sri Chand, turned hostile CBI No. 18/08 Page 14 of 55 State through CBI v. Mohd. Ashfaq Qureshi & Others (NEW HIND CGHS) Witnesses relating to sanction:
PW42 Jayshree Raghuraman, Director Deptt. of Social Welfare, NCT of Delhi.
CBI officials:-
PW41 Sh. Anupam Mathur, Inspector
PW44 Sh. Virender Singh, Inspector, investigating
officer
PW49 Sh. S.K. Deshwal, Inspector
3. On culmination of prosecution evidence, both the accused persons were examined under Section 313 Cr. P.C in which they denied each and every incriminating evidence led by prosecution and submitted that they have been falsely implicated in this case.
Raman Verma (A2) submitted that he would lead evidence in his defence and in order to prove his innocence, he examined Ms. Rajrani, UDC (Vigilance), Department of Social Welfare, Govt. of NCT of Delhi in his defence. However, Ramesh Chandra (A3) refused to lead evidence in his defence
4. Learned counsel appearing for accused persons sagaciously contended that in the instant case, charge has been framed against accused persons for the offence punishable under Section 120B IPC and 120B IPC read with Section 420/468/471 IPC CBI No. 18/08 Page 15 of 55 State through CBI v. Mohd. Ashfaq Qureshi & Others (NEW HIND CGHS) and 13 (2) read with Section 13 (1) (d) of Prevention of Corruption Act, 1988 and for the offece punishable under Section 13 (2) read with Section 13 (1) (d) of Prevention of Corruption Act, 1988. It was vehemently contended that however, there is no iota of admissible evidence on record to prove the said charges. It was vigorously contended that there is no admissible evidence on record to prove the charge of conspiracy. Similarly, there is no evidence on record to prove the charge of Section 13 (1) (d) of Prevention of Corruption Act. It was further contended that though prosecution has examined as many as 49 witnesses, yet none of the witnesses had uttered even a single word against the accused persons. It was further contended that since both the accused persons were public servants at the relevant time and they put up the notings in discharge of their official duties, thus both the accused persons are entitled for the protection available under Section 197 Cr.P.C and since CBI had not obtained mandatory sanction under Section 197 Cr.P.C, accused persons cannot be held guilty for the conspiracy and other penal charges.
5. Per contra, learned Public Prosecutor refuted the said contentions by vigorously arguing that from the testimony of PW45 and PW47, it can safely be presumed that both the accused persons had hatched a criminal conspiracy with Mohd. Ashfaq Qureshi and in furtherance of the said conspiracy, they had put up the noting dated January 10, 2001, July 02, 2001 and July 09, 2001.
(i) It was further contented that as per charge-sheet, A2 CBI No. 18/08 Page 16 of 55 State through CBI v. Mohd. Ashfaq Qureshi & Others (NEW HIND CGHS) and A3 had committed the offence under Section 15 of PC Act whereas charge had been framed against them for the offence punishable under Section 13 (2) read with Section 13 (1) (d) of Prevention of Corruption Act, 1988. It was argued that since accused persons had made an attempt to provide valuable things i.e. land in favour of the accused persons, thus prosecution is pressing the charge for the offence punishable under Section 15 of PC Act and further submits that prosecution is not pressing the charges for the offence punishable under Section 13 (2) read with Section 13 (1) (d) of Prevention of Corruption Act. It was further argued that since accused persons had put up a noting Ex.PW44/D6 on the basis of representation received from A1, they had committed the offence under Section 15 of PC Act. It was further submitted that accused persons had not taken any action when the file was received from North-Zone, which further proves that they had malafide intention. It was further submitted that accused persons were not supposed to put up the noting unless the file was received from North-Zone, but they deliberately put up the noting in favour of the Society without waiting for the file from North-Zone.
6. I have heard rival submissions advanced by counsel for both the parties, perused the record carefully and gave my thoughtful consideration to their contentions.
7. It is pertinent to state that though CBI had filed the charge-sheet against as many as seven accused persons, but learned CBI No. 18/08 Page 17 of 55 State through CBI v. Mohd. Ashfaq Qureshi & Others (NEW HIND CGHS) Predecessor of this Court vide order dated July 03, 2012 discharged Narayan Diwakar (A4), Krishan Kumar (A6), Hafiz Mohd. (A7) from all the charges and proceedings qua Mohd. Ashfaq Qureshi (A1) and B.M. Sethi (A5) were abated as they died during the proceedings. However, vide order dated July 03, 2012, it was held that prima-facie a case is made out against Raman Verma (A2) and Ramesh Chandra (A3) for the offence punishable under Section 13 (2) read with Section 13 (1) (d) of Prevention of Corruption Act, 1988 and further held that prima-facie a case is also made out against both of them for the offence punishable under Section 120B IPC and Section 120B IPC read with Section 420/468/471 IPC and under Section 13 (2) read with Section 13 (1)(d) of Prevention of Corruption Act, 1988.
8. Before dealing with the contentions relating to the conspiracy, I deem it appropriate to deal with the legal proposition.
9. In case State of Madhya Pradesh Vs Sheetla Sahai and others (2009) 8 SCC 617, Hon'ble Apex Court dealt with the question of conspiracy in Para No. 49 to 52 and same are reproduced as under:-
"49. Criminal conspiracy has been defined in Section 120A of the Indian Penal Code, 1860 to mean:
When two or more persons agree to do, or cause to be done,--
(1) an illegal act, or CBI No. 18/08 Page 18 of 55 State through CBI v. Mohd. Ashfaq Qureshi & Others (NEW HIND CGHS) (2) an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy:
Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to agreement in pursuance thereof.
Explanation.- It is immaterial whether the illegal act is the ultimate object of such agreement, or is merely incidental to that object.
Section 120 B of the Indian Penal Code provides for punishment for criminal conspiracy.
50. Criminal conspiracy is an independent offence. It is punishable separately. Prosecution, therefore, for the purpose of bringing the charge of criminal conspiracy read with the aforementioned provisions of the Prevention of Corruption Act was required to establish the offence by applying the same legal principles which are otherwise applicable for the purpose of bringing a criminal misconduct on the part of an accused.
51. A criminal conspiracy must be put to action in as much as so long a crime is generated in the mind of an accused, it does not become punishable. What is necessary is not thoughts, which may even be criminal in character, often involuntary, but offence would be said to have been committed thereunder only when that take concrete shape of an agreement to do or cause to be done an illegal act or an act which although not illegal by illegal means and then if nothing further is done the agreement would give rise to a criminal conspiracy.
Its ingredients are:-
CBI No. 18/08 Page 19 of 55State through CBI v. Mohd. Ashfaq Qureshi & Others (NEW HIND CGHS) (I) an agreement between two or more persons;
(ii) an agreement must relate to doing or causing to be done either (a) an illegal act;
(b) an act which is not illegal in itself but is done by illegal means:
What is, therefore, necessary is to show meeting of minds of two or more persons for doing or causing to be done an illegal act or an act by illegal means.
52. While saying so, we are not oblivious of the fact that often conspiracy is hatched in secrecy and by providing the said offence substantial direct evidence may not be possible to be obtained. An offence of criminal conspiracy can also be proved by circumstantial evidence.
In Kehar Singh and Ors. v/s. State (Delhi Administration) MANU/SC/0241/1988; 1988 (3) SCC 609 at 731. this Court has quoted the following passage from Russell on Crimes (12th Edn. Vol.1);
The gist of the offence of conspiracy then lies, not in doing the act, or effecting the purpose for which the conspiracy is formed, nor in attempting to do them, nor in inciting others to do them, but in the forming of the scheme or agreement between the parties.
Agreement is essential. Mere knowledge, or even discussion, of the plan is not, per se enough.
In State (NCT) of Delhi vs. Navjot Sandhu @ Afsan Guru MANU/SC/0465/2005; (2005) 11 SCC 600, this Court stated the law, thus:
101. One more principle which deserves notice is that the cumulative effect of the proved circumstances should be taken into CBI No. 18/08 Page 20 of 55 State through CBI v. Mohd. Ashfaq Qureshi & Others (NEW HIND CGHS) account in determining the guilt of the accused rather than adopting an isolated approach to each of the circumstances. Of course, each one of the circumstances should be proved beyond reasonable doubt.
Lastly, in regard to the appreciation of evidence relating to the conspiracy, the Court must take care to see that 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.
We may also notice that in Ram Narayan Popli vs. CBI MANU/SC/0017/2003: (2003) 3 SCC 641, it was held:-
...Law making conspiracy a crime is designed to curb immoderate power to do mischief which is gained by a combination of the means. The encouragement and support which co-conspirators give to one another rendering enterprises possible which, if left to individual effort, would have been impossible, furnish the ground for visiting conspirators and abettors with condign punishment.....
In Yogesh @ Sachin Jagdish Joshi vs. State of Maharashtra MANU/SC/7528/2008: (2008) 6 SCALE 469, this Court opined:
23. Thus, it is manifest that the meeting of minds of two or more persons for doing an illegal act or an act by illegal means is sine qua non of the criminal conspiracy but it may not be possible to prove the agreement between them by direct proof.
Nevertheless, existence of the conspiracy and its objective can be inferred from the surrounding circumstances and the conduct of the accused. But the incriminating circumstances must form a CBI No. 18/08 Page 21 of 55 State through CBI v. Mohd. Ashfaq Qureshi & Others (NEW HIND CGHS) chain of events from which a conclusion about the guilt of the accused could be drawn, It is well settled that an offence of conspiracy is a substantive offence and renders the mere agreement to commit an offence punishable even if an offence does not take place pursuant to the illegal agreement.
Ex. Facie, there is no material to show that a conspiracy had been hatched by the respondents."
(emphasis supplied)
(i) From the above, it becomes clear that the conspiracy can also be proved by surrounding circumstances and conduct of the accused persons but prosecution is duly bound to prove such circumstances and conduct beyond doubt.
10. Now, I proceed to examine the evidence available on record to determine as to whether there is sufficient evidence to prove the guilt of accused persons for the offence of conspiracy or not?
11. Since, during the course of arguments, learned Public Prosecutor strongly placed reliance on the deposition of PW45 and PW47 to prove the charges of conspiracy, I deem it appropriate to discuss their deposition first.
12. PW45 Sh. Sushil Kumar Sharma was an employee of CBI No. 18/08 Page 22 of 55 State through CBI v. Mohd. Ashfaq Qureshi & Others (NEW HIND CGHS) Sri Chand and he deposed that PW Sri Chand used to visit RCS office. In respect of New Hind Society, members of Muslim community used to come to the office of Sri Chand and one of the main person among them was Qureshi whose full name he did not remember. He further testified that there were some dealings between Sri Chand and muslim people in respect of the said Society, but he did not know detail of the same. The said witness was declared hostile by learned Public Prosecutor and he was cross-examined at length, but nothing could be extracted during his cross-examination, which may help prosecution to prove that there was any conspiracy between the present accused persons and M.A. Qureshi. This Court is unable to understand how the testimony of PW45 is relevant to prove the conspiracy between the accused persons with M.A. Qureshi and anybody else.
13. PW47 is Sri Chand, but he also turned hostile and in his examination-in-chief, he deposed that he had not rendered any consultancy to New Hind CGHS. He further deposed that Sushil Kumar Sharma (PW45) had once brought M.A. Qureshi, Secretary of the Society to his office and Mr. Sushil Kumar Sharma told him that he was doing accounts work with the said Society with the help of one Neeraj Kumar, Chartered Accountant. He further deposed that Sushil Kumar Sharma was an employee of Neeraj Kumar. He further testified that M.A. Qureshi told him that he was in the process of reviving the Society with the help of Sushil Kumar Sharma and he wanted to know from him the procedure of approval of list of the Members of the Society, accordingly, he told the procedure to him. He further testified CBI No. 18/08 Page 23 of 55 State through CBI v. Mohd. Ashfaq Qureshi & Others (NEW HIND CGHS) that at that time, the strength of the said Society was 300 members. Since, the witness did not support the case set up by prosecution, he was got declared hostile and cross-examined by learned Public Prosecutor at length, but nothing could be extracted during his cross- examination, which may help the prosecution to prove that there was any conspiracy between the present accused persons with any other accused persons.
14. Though prosecution has examined as many as 49 witnesses, yet none of the witnesses has uttered even a single word against the present accused persons, which may show that the present accused persons had entered into an agreement to commit any illegal an act or act which was not illegal by illegal means.
15. PW46 Smt. Shakuntala Joshi is the only witness who identified the signatures of Ramesh Chandra (A3) on the letter Ex.PW46/C, Ex.PW46/D. Except that she had not uttered even a single word about any conspiracy. Mere fact that A3 had signed on the said letters is not sufficient in any manner to establish that he was acting in furtherance of any conspiracy.
16. PW44 Inspector Virender Singh is investigating officer of the case and he has not uttered even a single word about the conspiracy except that the letter Ex.PW44/H2 was signed by Ramesh Chandra (A3) being the Assistant Registrar and said letter was collected by him during investigation.
CBI No. 18/08 Page 24 of 55State through CBI v. Mohd. Ashfaq Qureshi & Others (NEW HIND CGHS)
17. No doubt, since generally conspiracy is hatched in secrecy, thus it is not possible to get a direct evidence to prove the conspiracy and it is settled law that the offence of conspiracy can also be proved by circumstantial evidence, but in the instant case, even CBI failed to produce any such circumstances, which may prove that the present accused persons had entered into an agreement with any other accused persons to commit any illegal act or an act which was not illegal by illegal means.
18. In view of the aforesaid discussion, I am of the considered opinion that there is no iota of admissible evidence to prove the charges of conspiracy against the present accused persons.
19. Now, I proceed to examine the next contention relating to conspiracy as to whether sanction under Section 197 Cr. P.C was required in the present case or not?
20. In this regard, the case of Amrik Singh v. State of Pepsu AIR 1955 SC 309 is relevant. In the said case, the allegations against the accused were that his duty was to disburse the wages to workers against their signature or thumb impression in the monthly acquittance roll. It was alleged that he had received the wages of ` 51/- after putting his thumb impression in the said monthly acquittance roll and misappropriated the said amount. Accordingly, he was charge-sheeted for the offence punishable under Section 465/409 CBI No. 18/08 Page 25 of 55 State through CBI v. Mohd. Ashfaq Qureshi & Others (NEW HIND CGHS) IPC. The question of sanction was raised first time before the Apex Court. The moot question arose before the Apex Court whether the sanction under Section 197 (1) Cr. P.C was necessary for the prosecution of appellant under Section 409 IPC or not?
(i) While dealing with the above said question, Hon'ble Apex Court referred the judgment of Hori Ram Singh v. Emperor, AIR 1939 FC 43 in Para No. 5 and 6 and same are reproduced as under :
Para No. 5. There has been considerable divergence of judicial opinion on the scope of Section 197(1) of the Code of Criminal Procedure. The question has latterly been the subject of consideration by the highest courts in this country, and by the Privy Council, and the position may now be taken to be fairly well-settled. Hori Ram Singh v. Emperor [ AIR 1939 FC 43 : 1939 FCR 159] is a decision of the Federal Court on the necessity for sanction under Section 270 of the Government of India Act, 1935, which is similar in terms to Section 197(1) of the Code of Criminal Procedure. The facts in that case were that a Sub-Assistant Surgeon was charged under Section 409 with having dishonestly removed certain medicines from a hospital which was under his charge, to his own residence, and under Section 477-A, with having failed to enter them in the stock book. The sanction of the Government had not been obtained for the prosecution under Section 270 of the Government of India Act, and the point for decision was whether it was necessary. It was held that the charge under Section 477-A required sanction, as "the official capacity is involved in the very act complained of as amounting to a crime"; but that no sanction was required for a charge under Section 409, because "the official capacity is material only in connection with the 'entrustment' and does not necessarily enter into the later act of misappropriation or CBI No. 18/08 Page 26 of 55 State through CBI v. Mohd. Ashfaq Qureshi & Others (NEW HIND CGHS) conversion, which is the act complained of".
Para No. 6. In the course of his judgment, Varadachariar, J. discussed the scope of Section 197(1) of the Code of Criminal Procedure and after observing that the decisions on that section were not uniform, proceeded to group them under three categories those which had held that sanction was necessary when the act complained of attached to the official character of the person doing it, those which had held that it was necessary in all cases in which the official character of the person gave him an opportunity for the commission of the crime, and those which had held it necessary when the offence was committed while the accused was actually engaged in the performance of official duties. The learned Judge expressed his agreement with the first of the three views.
In H.H.B. Gill v. King [ AIR 1948 PC 128 : 75 IA 41] the question arose directly with reference to Section 197(1) of the Code of Criminal Procedure. There, the accused was charged under Section 16 with taking bribes, and under Section 120-B with conspiracy. On the question whether sanction was necessary under Section 197(1) it was held by the Privy Council that there was no difference in scope between that section and Section 270 of the Government of India Act, 1935, and approving the statement of the law by Varadachariar, J. in Hori Ram Singh v. Emperor [ AIR 1939 FC 43 : 1939 FCR 159] Lord Simonds observed:
"A public servant can only be said to act or to purport to act in the discharge of his official duty, if his act is such as to lie within the scope of his official duty........The test may well be whether the public servant, if challenged, can reasonably claim that, what he does, he does in virtue of his office".
(emphasis supplied) CBI No. 18/08 Page 27 of 55 State through CBI v. Mohd. Ashfaq Qureshi & Others (NEW HIND CGHS)
(ii) Hon'ble Apex Court summed up the proposition of law in Para No. 7 and same is reproduced as under :
Para No. 7. The result of the authorities may thus be summed up: It is not every offence committed by a public servant that requires sanction for prosecution under Section 197(1) of the Code of Criminal Procedure; nor even every act done by him while he is actually engaged in the performance of his official duties; but if the act complained of is directly concerned with his official duties so that, if questioned, it could be claimed to have been done by virtue of the office, then sanction would be necessary; and that would be so, irrespective of whether it was, in fact, a proper discharge of his duties, because that would really be a matter of defence on the merits, which would have to be investigated at the trial, and could not arise at the stage of the grant of sanction, which must precede the institution of the prosecution.
(emphasis supplied)
(iii) During the course of arguments, State conceded before the Apex Court that the sanction under Section 197 Cr. P.C was required to prosecute the accused for the offence punishable under Section 465 IPC, but took the plea that no sanction was required for the offence punishable under Section 409 IPC and the said issue was dealt with by the Apex Court in Para 8 to 10, which are reproduced as under :
Para No. 8. It is conceded for the respondent that on the principle above enunciated, sanction would be required for prosecuting the appellant under Section 465, as the charge was in respect of his duty of obtaining signatures or thumb impressions of the employees before wages were paid to them.CBI No. 18/08 Page 28 of 55
State through CBI v. Mohd. Ashfaq Qureshi & Others (NEW HIND CGHS) But he contends that misappropriation of funds could, under no circumstances, be said to be within the scope of the duties of a public servant, that he could not, when charged with it, claim justification for it by virtue of his office, that therefore no sanction under Section 197(1) was necessary, and that the question was concluded by the decisions in Hori Ram Singh v. Emperor [ AIR 1939 FC 43 : 1939 FCR 159] and Albert West Meads v. King [ AIR 1948 PC 156 : 75 IA 185] , in both of which the charges were of criminal misappropriation. We are of opinion that this is too broad a statement of the legal position, and that the two decisions cited lend no support to it. In our judgment, even when the charge is one of misappropriation by a public servant, whether sanction is required under Section 197(1) will depend upon the facts of each case. If the acts complained of are so integrally connected with the duties attaching to the office as to be inseparable from them, then sanction under Section 197(1) would be necessary; but if there was no necessary connection between them and the performance of those duties, the official status furnishing only the occasion or opportunity for the acts, then no sanction would be required.
Para No. 9. Quite recently, this court had to consider in Shreekantiah Ramayya Munipalli v. State of Bombay [ Criminal Appeal No. 89 of 1954] the necessity for sanction under Section 197(1), when the charge was one of misappropriation under Section 409. There, the law was laid down in the following terms:
"The section has content and its language must be given meaning.
What it says is -- 'when any public servant ... 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....' CBI No. 18/08 Page 29 of 55 State through CBI v. Mohd. Ashfaq Qureshi & Others (NEW HIND CGHS) We have therefore first to concentrate on the word 'offence'.
Now an offence seldom consists of a single act. It is usually composed of several elements and, as a rule, a whole series of acts must be proved before it can be established. In the present case, the elements alleged against the second accused are, first, that there was an 'entrustment' and/or 'dominion'; second, that the entrustment and/or dominion was 'in his capacity as a public servant'; third, that there was a 'disposal'; and fourth, that the disposal was 'dishonest'. Now it is evident that the entrustment and/or dominion here were in an official capacity, and it is equally evident that there could in this case be no disposal, lawful or otherwise, save by an act done or purporting to be done in an official capacity".
On the facts, it was held in that case that the several acts which were complained of, were official acts, and that the prosecution was bad for want of sanction.
Para No. 10. The decisions in Hori Ram Singh v. Emperor [ AIR 1939 FC 43: 1939 FCR 159] , and Albert WestMeads v. King [ AIR 1948 PC 156 : 75 IA 185] when properly examined, do not support the extreme contention urged on behalf of the respondent. In Hori Ram Singh v. Emperor [ AIR 1939 FC 43 : 1939 FCR 159] the medicines had not been entered in the stock book, and were removed by the accused to his residence, and the charge against him was that in so removing them he had committed misappropriation. It was no part of the duty of the accused to remove medicines to his house, and he could not claim that he did so by virtue of his office. He could have made such a claim if he had, let us suppose, entered the medicines in the stock books and shown them as CBI No. 18/08 Page 30 of 55 State through CBI v. Mohd. Ashfaq Qureshi & Others (NEW HIND CGHS) expended in the hospital. But, on the facts, no official act was involved, and that was why Varadachariar, J. observed that, "... so far as the charge under Section 409 was concerned, the acts in respect of which he was intended to be prosecuted could not be regarded as acts done or purported to be done in execution of his duty".
Reference may also be made to the following observations of Sulaiman, J. in the same case:
"The question whether a criminal breach of trust can be committed while purporting to act in execution of his duty is not capable of being answered hypothetically in the abstract, without any reference to the actual facts of the case. An attempt to answer the question in a generalised way has been responsible for loose language used in some of the cases cited before us.... The question whether the act purported to have been done in execution of duty or not must depend on the special circumstances of each case."
(emphasis supplied)
(iv) At last, Apex Court held that the sanction was required in the above said case to prosecute the accused for the offence punishable under Section 409 IPC. In this regard, Para No. 12 is relevant and reproduced as under :
Para No. 12. In this view, we have to examine whether the acts with which the appellant is charged directly bear on the duties which he has got to discharge as a public servant. The appellant CBI No. 18/08 Page 31 of 55 State through CBI v. Mohd. Ashfaq Qureshi & Others (NEW HIND CGHS) received the sum of ` 51/- alleged to have been misappropriated, as Subdivisions Officer, and he admits receipt of the same. Then it was his duty to pay that amount to the khalasi Parma, and take his signature or thumb-impression in acknowledge- ment thereof. The accused does claim to have paid the amount to Parma, and the acquittance roll records the payment, and there is in acknowledgement thereof a thumb-impression as against his name. If what appears on the face of the roll is true and whether it is true or not is not a matter relevant at the stage of sanction then the acts with which the appellant is charged fall within the scope of his duties, and can be justified by him as done by virtue of his office. Clearly, therefore, sanction was required under Section 197(1) of the Code of Criminal Procedure before the appellant could be prosecuted under Section 409, and the absence of such sanction is fatal to the maintainability of the prosecution. The conviction should, therefore, be quashed.
(emphasis supplied)
21. No doubt, in Harihar Prasad v. State of Bihar (1972) 3 SCC 89, Hon'ble Apex Court after referring to the cases namely Shreekantiah Ramayya Munipalli v. State of Bombay AIR 1955 SC 287, Amrik Singh v. State of Pepsu AIR 1955 SC 309, held that no sanction is required in respect of acts complained of in the present case for the charges under Section 120 B IPC read with Section 409 IPC. The said observation is reproduced as under :
" The real question therefore is whether the acts complained of in the present case were directly concerned with the official duties of the three public servants. As far as the offence of criminal conspiracy punishable under Section 120-B, read CBI No. 18/08 Page 32 of 55 State through CBI v. Mohd. Ashfaq Qureshi & Others (NEW HIND CGHS) with Section 409 of the Indian Penal Code is concerned and also Section 5(2) of the Prevention of Corruption Act, are 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 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."
(emphasis supplied)
(i) Perusal of the said observations, make it clear that the observations were made in the light of peculiar facts involved in the said case. In the said case, the allegations against the accused persons were that they had not only awarded the contract to their known contractors, but they had also drew the bills frequently in their own name and gave advance payment to the contractors despite the fact that the contractors had not executed the work as per the terms and conditions. Even they had accepted bribe from the said contractors and the amount was recovered from them. In the light of these peculiar facts, it was held that no sanction was required for the charges of Section 120B IPC read with Section 409 IPC and this is abundantly clear from the observations of Hon'ble Apex Court when it categorically stated that the real question is whether the acts complained of in the present case were directly concerned with the official duties of the three public servants. Thus, as per the observations of Hon'ble Apex Court, no sanction is required because the above facts were not found directly concerned with the official CBI No. 18/08 Page 33 of 55 State through CBI v. Mohd. Ashfaq Qureshi & Others (NEW HIND CGHS) duties of the accused persons. The said judgment was clarified by the Apex Court in R. Balakrishna Pillai v. State of Kerala and Another (1996) 1 SCC 478. In the said case, CBI had taken the plea that in view of the finding in Harihar Prasad v. State of Bihar (supra) case, no sanction is required for the offence of conspiracy. The relevant portion of Para No. 6 is reproduced as under:
Para No. 6. The next question is whether the offence alleged against the appellant can be said to have been committed by him while acting or purporting to act in the discharge of his official duty. It was contended by the learned counsel for the State that the charge of conspiracy would not attract Section 197 of the Code for the simple reason that it is no part of the duty of a Minister while discharging his official duties to enter into a criminal conspiracy. In support of his contention, he placed strong reliance on the decision of this Court in Harihar Prasad v. State of Bihar [(1972) 3 SCC 89 : 1972 SCC (Cri) 409 : 1972 Cri LJ 707] . He drew our attention to the observations in paragraph 74 of the judgment where the Court, while considering the question whether the acts complained of were directly concerned with the official duties of the public servants concerned, observed that it was no duty of a public servant to enter into a criminal conspiracy and hence want of sanction under Section 197 of the Code was no bar to the prosecution. The question whether the acts complained of had a direct nexus or relation with the discharge of official duties by the public servant concerned would depend on the facts of each case. There can be no general proposition that whenever there is a charge of criminal conspiracy levelled against a public servant in or out of office the bar of Section 197(1) of the Code would have no application. Such a view would render Section 197(1) of the Code specious.
Therefore, the question would have to be CBI No. 18/08 Page 34 of 55 State through CBI v. Mohd. Ashfaq Qureshi & Others (NEW HIND CGHS) examined in the facts of each case. The observations were made by the Court in the special facts of that case which clearly indicated that the criminal conspiracy entered into by the three delinquent public servants had no relation whatsoever with their official duties and, therefore, the bar of Section 197(1) was not attracted. It must also be remembered that the said decision was rendered keeping in view Section 197(1), as it then stood, but we do not base our decision on that distinction. Our attention was next invited to a three-Judge decision in B. Saha v. M.S. Kochar [(1979) 4 SCC 177 : 1979 SCC (Cri) 939] . The relevant observations relied upon are to be found in paragraph 17 of the judgment. It is pointed out that 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 Section 197(1) of the Code, are capable of both a narrow and a wide interpretation but their Lordships pointed out that if they were 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". At the same time, if they were too widely construed, they 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 is purported to be performed. The right approach, it was pointed out, was to see that the meaning of this expression 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. Only an act constituting an offence directly or reasonably connected with his official duty will require sanction for prosecution. To put it briefly, it is the quality of the act that is important, and if it falls within the scope of the aforequoted words, the protection of Section 197 will have to be extended to the public servant concerned. This decision, therefore, points out what approach the Court should adopt while construing Section 197(1) of the Code and its CBI No. 18/08 Page 35 of 55 State through CBI v. Mohd. Ashfaq Qureshi & Others (NEW HIND CGHS) application to the facts of the case on hand.
(emphasis supplied)
(ii) Thus, it becomes clear that mere fact that the investigating agency had filed the charge-sheet under Section 120B IPC read with Section 409 IPC is ipso-facto not sufficient to deprive public servants from protection available under Section 197 Cr. P.C. It depends upon facts of each case. If the acts were committed by the public servants in discharge of his official duties, sanction would be required under Section 197 Cr. P.C irrespective of the fact that the said acts attract the provisions of Section 120B IPC read with Section 409 IPC.
22. No doubt, in case Rajib Ranjan and others v. R. Vijay Kumar (2015) 1 SCC 513 after referring to the case of Amrik Singh v. State of Pepsu (supra), Hon'ble Apex Court observed that entering into a criminal conspiracy or indulging in criminal misconduct is not part of discharge of official duty. In this regard, para 18 is relevant, which is reproduced as under:
Para No. 18. The ratio of the aforesaid cases, which is clearly discernible, is that even while discharging his official duties, if a public servant enters into a criminal conspiracy or indulges in criminal misconduct, such misdemeanour on his part is not to be treated as an act in discharge of his official duties and, therefore, provisions of Section 197 of the Code will not be attracted. In fact, the High Court has dismissed the petitions filed by the appellant precisely with these CBI No. 18/08 Page 36 of 55 State through CBI v. Mohd. Ashfaq Qureshi & Others (NEW HIND CGHS) observations, namely, the allegations pertain to fabricating the false records which cannot be treated as part of the appellants' normal official duties. The High Court has, thus, correctly spelt out the proposition of law. The only question is as to whether on the facts of the present case, the same has been correctly applied.
(emphasis supplied)
(i) As already discussed, Apex Court had already clarified that the question whether the offence of criminal conspiracy, criminal misconduct or misappropriation was committed in discharge of official duty or not, it depends on facts of each case and it cannot be answered hypothetically in the abstract without any reference to the actual facts of the case. It is pertinent to state that in Rajib Ranjan and others v. R. Vijay Kumar (supra), proceedings were quashed by the Apex Court holding that the complainant had abused the process of the Court.
23. In State of Madhya Pradesh Vs Sheetla Sahai and others (supra), Apex Court propounded the rule of safe and sure test to determine whether the sanction is required for the act complained of public servants or not. In this regard, Para No. 61 is relevant and same is reproduced as under :
Para 61 Strong reliance has been placed by Mr. Tulsi on a judgment of this Court in Centre for Public Interest Litigation and Another Vs Union of India and Another [(2005) 8 SCC 202]. In that case, it was held :
"9 The protection given under Section 197 is to protect responsible public servants against the CBI No. 18/08 Page 37 of 55 State through CBI v. Mohd. Ashfaq Qureshi & Others (NEW HIND CGHS) institution of possibly vexatious criminal proceedings for offences alleged to have been committed by them while they are acting or purporting to act as public servants. The policy of the legislature is to afford adequate protection to public servants to ensure that they are not prosecuted for anything done by them in the discharge of their duties without reasonable cause, and if sanction is granted, to confer on the Government, if they choose to exercise it, complete control of the prosecution.
This protection has certain limits and is available only when the alleged act done by the pubic servant is reasonably connected with the discharge of his official duty and is not merely a cloak for doing the objectionable act. If in doing his official duty, he acted in excess of his duty, but there is a reasonable connection between the act and performance of the official duty, the excess will not be a sufficient ground to deprive the public servant, but whether it was committed by a public servant acting or purporting to act as such in the discharge of his official capacity. Before Section 197 can be invoked, it must be shown that the official concerned was accused of an offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duties. It is not the duty which requires examination so much as the act, because the official act can be performed both in the discharge of the official duty as well as in dereliction of it. The act must fall within the scope and range of the official duties of the pubic servant concerned. It is the quality of the act which is important and the protection of this section is available if the act falls within the scope and range of his official duty. There cannot be any universal rule to determine whether there is a reasonable connection between the act done and the official duty, nor is it possible to lay down any such rule. One safe and sure test in this regard would be to consider if the omission or neglect on the part of the CBI No. 18/08 Page 38 of 55 State through CBI v. Mohd. Ashfaq Qureshi & Others (NEW HIND CGHS) public servant to commit the act complained of could have made him answerable for a charge of dereliction of his official duty. If the answer to this question is in the affirmative, it may be said that such act was committed by the public servant while acting in the discharge of his official duty and there was every connection with the act complained of and the official duty of the public servant. This aspect makes it clear that the concept of Section 197 does not get immediately attracted on institution of the complaint case.
10. Use of the expression "official duty" implies that the act or omission must have been done by the public servant in the course 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 done by a public servant in discharge of official duty.
11. If on facts, 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 it must be held to be official to which applicability of Section 197 of the Code cannot be disputed."
(emphasis supplied)
24. Recently, Hon'ble Apex Court had considered most of the above said judgments in Prof. N.K. Ganguly v. CBI in Crl. Appeal No. 798/2015 decided by the Apex Court on November 19, 2015 after considering the entire case law including observations made by the Apex Court in Parkash Singh Badal v. State of Punjab and others, (2007) 1 SCC 1, Hon'ble Apex Court held as under:
CBI No. 18/08 Page 39 of 55State through CBI v. Mohd. Ashfaq Qureshi & Others (NEW HIND CGHS) " Mr. P.P. Khurana and Mr. Gopal Subramaniam, the learned senior counsel appearing on behalf of some of the appellant, on the other hand, contends that the decision in the Parkash Singh Badal case needs to be appreciated in light of the facts of that case. Thus, while stating that the offences under Sections 420/467/468/471 IPC and 120B IPC can by no stretch of imagination and by their very nature be regarded as having been committed by any public servant while acting of purporting to act in discharge of his official duty, this Court did not mean that merely because an official was charged with an offence under these sections, no sanction was required to be taken.
The learned counsel placed reliance on the following paragraph of the judgment to emphasis the same:
"51. In Baijnath v. State of M.P. [1966 (1) SCR 210] the position was succinctly stated as follows:
"... it is the quality of the Act that is important and if it falls within the scope and range of his official duty the protection contemplated by Section 197 of the Code of Criminal Procedure will be attracted."
The learned senior counsel also placed reliance on the three judge bench decision of this Court rendered in the case of Shreekantiah Ramayya Munipalli, referred to supra, wherein it was held as under:
"18. ...... If Section 197 of the Code of Criminal Procedure is construed too narrowly it can never be applied, for of course it is not part of an official's duty to commit an offence and never can be. But it is not the duty we have to examine so much as the act because an official act can be performed in the discharge of official duty as well as in dereliction of it.....
19. Now an offence seldom consists of a single act. It is usually composed of several elements and CBI No. 18/08 Page 40 of 55 State through CBI v. Mohd. Ashfaq Qureshi & Others (NEW HIND CGHS) as a rule a whole series of acts must be proved before it can be established..... Now it is evident that the entrustment and/or domino here were in an official capacity and it is equally evident that there could in this case be no disposal, lawful or otherwise, save by an act done or purporting to be done in an official capacity........."
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 Cr. P.C, 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 Cr. P.C 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)
25. From the aforesaid discussion, the following proposition of law emerge:-
(i) It is not every offence committed by a public servant that requires sanction for prosecution under Section 197 Cr. P.C; nor even CBI No. 18/08 Page 41 of 55 State through CBI v. Mohd. Ashfaq Qureshi & Others (NEW HIND CGHS) every act done by him while he is actually engaged in the performance of his official duties.
(ii) But, if the act complained of is directly concerned with his official duties so that if questioned, it could be claimed to have been done by the public servants by virtue of the office, then sanction would be necessary.
(iii) Even where the charges are for misappropriation by public servant, question whether the sanction is required under Section 197 (1) Cr. P.C will depend upon facts of the each case. If the acts complained of are so integrally connected with the duties attaching to the office so as to be inseparable, sanction would be necessary. If there was no necessary connection between the duty and the act, the official status furnishing only the occasion or opportunity for the acts then no sanction would be required.
(iv) There is no universal rule to determine whether there is a reasonable connection between the act done and the official duty, nor it is possible to lay down any such rule.
(v) However, there is one safe and sure test to determine this connection is, if the omission or neglect on the part of public servant to commit the act complained of could have made him answerable for a charge of dereliction of his official duty. If the answer to this question is in affirmative, it may be said that the such act was committed by the public servant while conducting in discharge of his CBI No. 18/08 Page 42 of 55 State through CBI v. Mohd. Ashfaq Qureshi & Others (NEW HIND CGHS) official duties and there was every connection with the act complained of and the official duty of the public servant.
(vi) An official act can be performed in discharge of official duty as well as in dereliction of it.
26. It is pertinent to state that in R. Balakrishna Pillai v. State of Kerala and Another (supra), State of Madhya Pradesh Vs Sheetla Sahai and others (supra), Prof. N.K. Ganguly v. CBI, accused persons were charge-sheeted by CBI for the offences under Penal Code as well as under Prevention of Corruption Act. Since, CBI had not obtained sanction under Section 197 Cr.P.C and the act complained of was found in connection with discharge of official duties, in the said cases, accused persons were discharged from the penal charges. The question whether in the instant case, acts complained of were committed in discharge of official duties by the public servants or not will be discussed in latter part of the judgement.
27. I also deem it appropriate to refer the judgment State of Punjab Vs Labh Singh, 2014 SCC online SC 1019. In the said case, Learned Special Judge framed the charges against the public servant for the penal offences under Section 218/409/465/467/120B IPC and Section 13 (1) (c) read with Section 13 (1) (ii) of Prevention of Corruption Act. The said order was set-aside by the Hon'ble High Court on the ground that there was no sanction under Section 197 Cr. P.C. Accordingly, State approached the Apex Court. Apex Court set- aside the order of High Court qua the charges framed under CBI No. 18/08 Page 43 of 55 State through CBI v. Mohd. Ashfaq Qureshi & Others (NEW HIND CGHS) Prevention of Corruption Act. The relevant Para No. 8 is reproduced as under:
"Para 8 However as regards charges for the offences punishable under the IPC concerned the High Court was absolutely right in setting aside the order of the Special Judge. Unlike section 19 of the POC Act, the protection under section 197 of Cr. P.C. is available to the concerned public servant even after retirement. Therefore, if the matter was considered by the sanctioning authority and the sanction to prosecute was rejected first on 13.09.2000 and secondly on 24.09.2003, the court could not have taken cognizance insofar as the offences punishable under the Indian Penal Code are concerned . As laid down by this Court in State of Himachal Pradesh v. Nishant Sareen, the recourse in such cases is either to challenge the order of the Sanctioning Authority or to approach it again if there is any fresh material".
(emphasis supplied)
28. Now, I proceed to examine the facts of the case at hand to ascertain whether there was reasonable connection between the acts of public servants (A2 & A3) and their duties and whether their acts qualifies the Safe and Sure test as propounded by Apex Court in State of Madhya Pradesh vs. Sheetla Sahani and others (supra).
(i). It is admitted case of CBI that at the relevant time accused Raman Verma (A2) was working as Dealing Asstt. whereas accused Ramesh Chandra (A3) was working as Asstt. Registrar in CBI No. 18/08 Page 44 of 55 State through CBI v. Mohd. Ashfaq Qureshi & Others (NEW HIND CGHS) South-Zone of the RCS office.
(ii) It is also admitted case of CBI that M.A.Qureshi had submitted an application dated January 8, 2001 regarding change of address of the Society from 7975, Quershi Girls School, Gali Shamshuddin, Bara Hindu Rao, Delhi-110006 to H-51, Dr. Iqbal Lane, Muradi Road, Batla House, Jamia Nagar, New Delhi-25.
(iii) It is also admitted case of CBI that on receipt of the said representation, A2 had put up a note on January 11, 2001 recommending to call for the file of the Society from North-Zone, which was approved by A3 being the Asstt. Registrar.
(iv) It is also admitted case of the CBI that thereafter reminders were issued on February 16, 2001; April 9, 2001 and June 18, 2001. Before issuing the reminders, A2 put up the note being the dealing Asstt. for issuance of reminders and same was approved by A3 being the Asstt. Registrar. Despite issuance of several reminders, the file of the Society was not received from North-Zone.
(v) As per the noting file of the Society, when file was not received back from North-Zone, a note was put up by A2 stating that A.I. had already visited the Society and had given his report dated June 18, 2001 and also recommended, if approved, original record be called for from the Society. Thereafter, as per noting dated July 2, 2001, M.A.Qureshi produced the record for verification. As per the CBI No. 18/08 Page 45 of 55 State through CBI v. Mohd. Ashfaq Qureshi & Others (NEW HIND CGHS) noting dated July 2, 2001, several deficiencies were found in the affidavits produced by M.A.Qureshi and Mr. Qureshi was advised to bring the deficient documents on July 9, 2001. As per the noting dated July 9, 2001, Mr. M.A.Qureshi produced some affidavits but failed to produce certain other affidavits, detail of which is mentioned in the noting and Mr. Qureshi was directed to file the remaining documents on July 18, 2001. As per the said file, Mr. Qureshi produced the remaining documents on July 18, 2001.
(vi) As per the noting file, on July 30, 2001 A2 being the dealing Asstt. prepared a detailed note running into 13 pages on the basis of information furnished by the Society and the said noting is Ex. PW44/D6. He put up the note with the following recommendation:-
"In view of the above explained position, the list of 300 members may be approved and same same be forwarded to DDA for allotment of land subject to condition that, if any, the resignation/enrolments were found fake, the Society shall be held responsible (as per the affidavit filed by the Secretary of the Society, placed on P-378/c of Volume-IV)."
(vii) Perusal of the said note reveals that A2 in his note clearly mentioned that the main file of the Society lies in North Zone but North Zone failed to send the file despite sending letter and repeated reminders. It was also mentioned that North Zone had not CBI No. 18/08 Page 46 of 55 State through CBI v. Mohd. Ashfaq Qureshi & Others (NEW HIND CGHS) sent the file even after lapses of 7 months and since members of the Society were pressing hard for the approval of list of the members, in the interest of members, the Society was called for verification of original records vide office letter dated June 26, 2001. Thereafter, on the basis of documents produced by the Society, the said note was prepared.
(viii) Thus, it is admitted case of CBI that it was in the knowledge of higher officers such as Astt. Registrar, Dy. Registrar, Joint Registrar and Registrar that the said note was prepared on the basis of information/documents produced by the Society. Despite that they had not only recommended but also approved the said note. Though the CBI had impleaded A4, A5 and A6 being Registrar, Dy. Registrar and Joint Registrar, who approved the said note but they had been discharged by the Ld. Predecessor of this Court vide order dated July 03, 2012.
(ix) In other words, it is admitted case of CBI that A2 had prepared the above said notes being the dealing Asstt. in discharge of his official duty and A3 forwarded the said notes with his recommendation/comments being the Asst. Registrar while discharging his official duty. Thus, the acts of A2 and A3 while dealing with the said files had direct connection with discharge of their official duty being the dealing Asstt. and Asstt. Registrar. Further, if they had misrepresented any fact or omitted to mention any relevant fact or committed any negligence while putting the said note or making recommendation, they could be made answerable for a charge of CBI No. 18/08 Page 47 of 55 State through CBI v. Mohd. Ashfaq Qureshi & Others (NEW HIND CGHS) dereliction of their official duty, thus their acts also qualify the Sure and Safe Test as propounded by the Apex Court in State of Madhya Pradesh vs. Sheetla Sahai.
29. In view of the foregoing discussion, I am of the considered opinion that since the said notes were prepared and recommended by A2 and A3 in discharge of their official duties being the dealing Asstt. and Asst. Registrar, thus I am of the considered opinion that they are entitled for the protection available to them being public servants under Section 197 Cr.P.C. Since, CBI had not obtained sanction qua them under Section 197 Cr.P.C, thus I am of the view that they can not otherwise be held guilty for the offence punishable under Section 120B IPC read with Section 420/468/471 IPC and Section 13(2) read with Section 13(1)(d) of PC Act.
30. Now, I proceed to examine whether there is any admissible and cogent evidence on record to bring home the guilt of accused persons for the offence punishable under Section 13(1)(d) of PC Act or not?
31. Section 13(1) of Prevention of Corruption Act, 1988 is in following three parts:-
(i) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage; or
(ii) by abusing his position as a public servant, obtains for himself or for any other CBI No. 18/08 Page 48 of 55 State through CBI v. Mohd. Ashfaq Qureshi & Others (NEW HIND CGHS) person any valuable thing or pecuniary advantage; or
(iii) while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest; or (emphasis supplied)
(ii) Bare perusal of clause (i) and (ii), it becomes clear that dishonest intention is an essential ingredient as held by the Apex Court in C. K. Jaffer Sharief v/s. State (through CBI) 2012 (11) SCALE 71 and S. K. Kale v/s. State of Maharashtra, AIR 1977 SC
822. But there is nothing in the said judgements, which may show that mens-rea is also an essential ingredient for the offence under clause
(iii) of Section 13 (1)(d) of Prevention of Corruption Act, 1988. This issue was raised before the High Court of Delhi in Runu Ghosh v/s. CBI decided by the High Court of Delhi in Criminal Appeal No. 482 of 2002 on December 21, 2011 and it was held that no mens-rea is required to prove the guilt of public servants under clause (iii) of Section 13(1)(d) of PC Act, but prosecution is duty bound to prove that the act of public servant was without any public interest.
(iii) Though prosecution has examined as many as 49 witnesses but none of the witnesses deposed that there was any dishonest or malafide intention on the part of A1 and A2 when they dealt with the representation of the Society being the dealing Asstt. and Asstt. Registrar. Similarly, there is nothing on record which may show that their act was without any public interest. On the contrary, CBI No. 18/08 Page 49 of 55 State through CBI v. Mohd. Ashfaq Qureshi & Others (NEW HIND CGHS) being the dealing Asstt. and Asstt. Registrar, it was their duty to take action on the representation received from the Society and decide the matter. Mere fact that later on it was revealed that the Secretary of the Society had furnished some false information is not ipso-facto sufficient to conclude either that A2 and A3 had any dishonest intention or they acted without any public interest. In these circumstances, I am of the considered opinion that CBI has miserably failed even to bring home the guilt of present accused persons under Section 13(1)(d) of the PC Act.
32. Since in this matter, the real controversy is that the Society failed to increase its strength within the prescribed period, I proceed to analyse the facts available on record.
(i) It is admitted case of CBI that though the Society had applied for registration with 265 members but it was registered with only 53 members as some discrepancies were found qua other members and on the assurance of the secretary of the Society, Society was permitted to complete its strength by 60 members at the earliest. The noting file of the Society reveals that later on Society had conducted election with 285 members but RCS stalled the election process on the ground that the approved strength of the Society is only 53 and directed to hold election with 53 members.
(ii). From the noting file, it also appears that the Society had furnished the list of 285 members on February 25, 1986 but it was CBI No. 18/08 Page 50 of 55 State through CBI v. Mohd. Ashfaq Qureshi & Others (NEW HIND CGHS) not taken on record because the Society furnished the said list after the lapse of cut off date i.e. July 31, 1985. It was alleged that since Society could not increase its strength prior to cut off date, A1 had hatched the conspiracy with the office of RCS to get list of 300 members approved from South Zone and in order to get such approval A1 had moved the application for change of address of the Society so that file could be transferred from North Zone to South Zone.
33. Now, question arises what is the rule in regard to the induction and expulsion of the member. In this regard Rule 37 of DCS Rules is relevant and same is reproduced as under:-
37. List of Members of Co-operatives:
(1) Every co-operative society shall prepare a list of its members as on the last day of each co-operative year. The list shall be kept open at the office of the society, during office hours for inspection by any member of the society. The list of members shall be revised thirty days prior to the date of the meeting fixed for the election of the committee of the society and shall include the members admitted and exclude the members removed during the period commencing from the date when the list was last revised and ending with the date of the revision of the list. The list shall be in Form 10.CBI No. 18/08 Page 51 of 55
State through CBI v. Mohd. Ashfaq Qureshi & Others (NEW HIND CGHS) (2) A list drawn in accordance with sub-rule (1) shall be supplied by the society to a member on payment of Re.1 per 100 members or part thereof.
(3) a copy of the list shall be sent to the Registrar free of charge at least 14 days before the general meeting fixed to elect the members of its committee.
(emphasis supplied)
34. Bare perusal of the said Rule makes it clear that the Society has to prepare the list of its members as on last date of each cooperative year and such list shall be revised 30 days prior to the date of meeting fixed for the election of the committee. There is no reference of any cut off date. Even during the course of arguments CBI failed to produce any rule or regulation to show that the Society could not increase or decrease its members after lapse of cut off date. Even during trial, CBI has failed to produce any such rule or regulation. In the absence of any such evidence on record , I do not find any substance in the contention of CBI that Society was debarred from raising its strength from 53 to 300 after the lapse of cut off date.
(i) Moreover, it is admitted case of CBI that to operate any co-operative group housing society, there must be minimum 60 members which may increase upto 300 members. It is also admitted case of CBI that the strength of the Society was just 53. Though Society had submitted a list of 285 members but it was not approved as the same was furnished after the expiry of cut off date. In other CBI No. 18/08 Page 52 of 55 State through CBI v. Mohd. Ashfaq Qureshi & Others (NEW HIND CGHS) words, it is the case of CBI that the Society was not eligible to get land as its approved strength was below the required minimum members i.e. 60. If it was so, there was no purpose to continue the said society because the sole motive of the Society was to get land from DDA and to construct flats on the said land for its members. But despite that CBI even failed to produce any rule or regulation which may show that Society could not increase its strength after the expiry of alleged cut off date.
35. Now, I proceed to examine whether there was any lapse in the investigation?
36. PW44 Insp. Virender Singh in his cross-examination admitted that a letter was sent by A3 to Noor Mohd, AR (Policy) for transmitting the list of approved members to DDA, accordingly, Noor Mohd. sent a letter to DDA on August 22, 2001. He proved the letter which was sent by accused Ramesh Chandra (A3) to Noor Mohd. and the letter which was sent by Noor Mohd to DDA and the same are Ex. PW44/D1 and PW44/D2 respectively. He also admitted that on August 21, 2001 Noor Mohd had raised an objection by mentioning that how the list of 300 members was being sent to DDA while the strength of the members of the Society was only 53. The said objection was raised by Noor Mohd on the letter dated August 6, 2001 and the said objection is Ex. PW44/H2. Though PW44 deposed that after raising objection, Noor Mohd had sent the file to accused Ramesh Chandra for clarification but during investigation it could not be established how CBI No. 18/08 Page 53 of 55 State through CBI v. Mohd. Ashfaq Qureshi & Others (NEW HIND CGHS) the file was again reached to the office of Noor Mohd. But he testified that Noor Mohd had sent the list to DDA. When a specific question was put up to him whether he sought any clarification from Nood Mohd. why he had sent the list of 300 members to DDA on August 22, 2001, when he himself raised an objection on August 21, 2001. He deposed that he did not examine Noor Mohd to seek any clarification on this point.
(i) From the deposition of PW44 it becomes crystal clear that on August 21, 2001 Noor Mohd had raised the objection how the list of 300 members was being sent to DDA when the strength of Society was 53, but on the very next day, he himself sent the said list to DDA. In such a scenario, it was the duty of investigating officer to seek clarification why he had sent the list to DDA knowingly well that the strength of the Society was 53 whereas accused Ramesh Chandra had sent the list of 300 members. But surprisingly investigating officer did not even deem it appropriate to examine Noor Mohd. on this vital aspect. Even during trial, no attempt was made by the CBI to produce Noor Mohd to clarify the same.
(ii) As already discussed, A2 had clearly mentioned in his note that since North Zone failed to send the file despite repeated reminders and members of the Society were pressing hard, note was put up in the interest of members on the basis of information furnished by the Society. It means that it was not in the knowledge of A2 and A3 that the strength of the Society was only 53 when they dealt with the CBI No. 18/08 Page 54 of 55 State through CBI v. Mohd. Ashfaq Qureshi & Others (NEW HIND CGHS) file. The allegations against A2 and A3 were that it was their duty not to put up the said note without receiving the file from North-Zone. But on the other hand, no action was taken against Noor Mohd. who sent the list of 300 members to DDA knowingly well that the approved strength of the Society was just 53. Even no clarification was sought from him.
(iii) This shows that the investigation was not conducted diligently.
36. Pondering over the ongoing discussion, I am of the considered opinion that CBI has miserably failed to bring home the guilt of accused persons namely Raman Verma (A2) and Ramesh Chandra (A3), thus, I hereby acquit both of them from all the charges.
37. File be consigned to record room.
Announced in the open Court on this 22nd day of December, 2015 (PAWAN KUMAR JAIN) SPECIAL JUDGE, CBI-01, NORTH-WEST, ROHINI COURTS DELHI/sv CBI No. 18/08 Page 55 of 55