Delhi District Court
Cbi vs . Ss Rathore & Ors. on 10 May, 2013
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IN THE COURT OF DINESH KUMAR SHARMA
SPL. JUDGE (PC ACT), CBI - 01,
SAKET COURTS, NEW DELHI
CC NO.02/13
CBI Vs. SS Rathore & Ors.
RC No.25(A)/01
ORDER ON CHARGE
1.0 CBI has filed a chargesheet against Sh. S.S. Rathore (A1) (public
servant), Sh. D.D. Mittal (A2) (since expired), Sh. Vinod Mittal (A3) (private
person) and Sh. Manoj Mittal (A4) (private person) for the offence under Section
120B read with 420 IPC and Section 13 (2) read with Section 13 (1) (d) PC Act
and substantive offence under Section 420 IPC for illegally issuing NOC under
ULCR Act in respect of property in question. Sh. S.S. Rathore (public servant)
has also been sent for trial for the substantive offence punishable under Section
13 (2) read with 13 (1) (d) of PC Act 1988.
1.1 The facts in this case relates back to the year 1919 when Notified
Area Committee (hereinafter referred to as "NAC") purchased 7.86 aces of land
(the land in question) from Lala Raghubar Dayal for a sum of Rs.9,200/ on
08.02.1919 vide a sale deed duly registered on 11.02.1919. The NAC leased out
the entire land to M/s. Edward Keventer of Aligarh Dairy Firm for a period of 30
years commencing from 01.11.1920. The case of the prosecution is that upon
expiry of the lease period in favour of M/s. Edward Keventer on 31.10.1950, the
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NAC vide resolution date 29.11.1950 terminated the lease and lessee was notified
to handover the possession of the land. In the year 1958, the Govt of India took
decision to transfer the Nazul Land Management to Delhi Administration and care
of land within the jurisdiction of NAC was transferred to the L&DO. The eviction
proceedings were initiated against M/s. Edward Keventer Ltd. (successors). While
matter rested, thus Sh. Rati Ram claiming to be in occupation of land measuring
about 17 bighas 14 biswa filed a suit against Union of India and L& DO seeking a
decree of permanent injunction against the defendants from dispossession
stating therein that he was in occupation of land and cultivating the same since
many years as "Gairmarusi tenant". The civil court by order dated 10.03.1966
dismissed the said suit on the ground that the said suit was barred under the
provisions of Public premises (unauthorized occupant) Act 1958 and therefore,
the suit was not maintainable. Sh. Rati Ram filed an appeal against this order.
Simultaneously, Sh. Rati Ram made a request to NAC on 01.02.1967 for 99 years
of lease in his favour claiming to be the possession of land for about 15 years.
Sh. Rati Ram died on 25.12.1969 leaving behind his wife Smt. Ram
Piari and his son Kanwal Singh. The Appellate Court remanded back the trial
and the Trial Court again dismissed the suit holding that plaintiff was not the
tenant in the said land and was not in possession of the same prior to 1962. The
legal heirs of Sh. Rati Ram again filed an appeal in the year 1974 and the
Appellate Court vide order dated 27.08.1974 inter alia held that legal
representatives of Late Sh. Rati Ram were unauthorized occupant of the public
land, but they could not be dispossessed without due process of law. It is
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pertinent to mention here that in the meanwhile Govt. of India sanctioned 4.61
acres of land to Delhi Administration for construction of staff quarters and 3.044
acres with DDA for development and maintenance of the land as green. DDA
upon getting the possession initiated proceedings under PP Act in the year 1974
against the legal representatives of Late Sh. Rati Ram and while these
proceedings were pending before Estate Officer, it transpired that Smt. Ram Piari
and Kanwal Singh sold the entire land of 17 bigha 14 biswa in favour of 17
persons by registered sale deed stated to have been executed on 26.05.1989 and
duly registered on 02.06.1989. Allegedly the mutation was done in connivance of
Sh. Risal Singh (Naib Tehsildar), Sh. Chotte Lal (Patwari) and Sh. Bhoom Singh
(Patwari).
It is pertinent to mention here that on 28.07.1989 the mutation in
respect of the entire land was got effected in the records maintained by the
Revenue Authority in favour of Sh. Rati Ram and on the same day further
mutation was effected in respect of same land in favour of Ram Piari and Kanwal
Singh. The mutation in respect of same land was also got effected in the revenue
records in favour of said 17 persons on the same day.
Investigation revealed that out of the total 17 bighas and 14 biswa of
this land, 11 bighas was transferred to St. Jesus Education Society. Sh. Sarabjit
Sharma was the Chairman of the said Society, who applied for NOC on 08.07.91
for setting up a school on the aforesaid land and the NOC was issued to the
society on 20.11.1991 by Late Sh. J.D. Jain, the then Competent Authority (Under
Secretary) without verifying the status of said land. The investigation revealed
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that the entire land 17 bigha 14 biswa was located within the urban agglomeration
of Delhi and the Urban Land (Ceiling and Regulation) Act, 1976 imposed a bar on
holding of land in Delhi beyond a maximum of 500 sq. meters. The aforesaid
land of 17 bigha 14 biswa was far in excess of limit prescribed and therefore, it
was incumbent upon each one of the purchasers to file a return under the said
act with the Competent Authority.
Investigation also revealed that standing committee of MCD vide its
decision dated 30.01.1992 approved the lay out plan of School on the above said
khasras and the land use of this khasra was earmarked for Primary School.
However, the Society did not construct any school on this land. In the year 1995,
A2, A3 and A4 purchased the entire land in the name of 13 companies vide sale
deed dated 05.04.95. In the said sale deed dated 05.04.95 for the first time, there
was mention of sale deed and resolution of 1943 in favour of Late Sh. Rati Ram.
In the meanwhile, Sh. Girdhari Lal Tiwari filed a civil writ petition
3830/1996 inviting the attention of the court on alleged unauthorized transfer of
17 bigha 14 biswa of land and unauthorized construction made on 10 bigha 14
biswa on such land situated at Model Town. A prayer was made to demolish the
construction raised on this land. During the proceedings of said writ petition the
Hon'ble High Court of Delhi referred alleged / forged sale deed dated 20.05.1943
and the resolution register containing resolution dated 02.01.1943 to CFSL. The
CFSL vide his opinion dated 19.09.1998 opined that the original writing on page
nos. 214 to 217 have been chemically erased / removed and the alleged sale
deed thereon have been over written. It was inter alia held in the said writ petition
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that :
"In terms of the aforesaid order passed by this court the CFSL has filed its
report giving its opinion that the said resolution dated 02.01.1943 and the
sale deed dated 20.05.1943 are forged documents giving reasons for
arriving at the aforesaid conclusion. We have ourselves perused the sale
deed and the subject resolution. The deed of sale dated 20.05.1943 ex
facie is not a genuine document. A bare perusal of the same would
indicate that the existing English writings in the said sale deed have been
written after washing out the original writings by the method of application
of some chemical / physical earser. Remnants of original writing at some
portion are still visible. Application of chemical substance for washing off
the original writings has affected the colour and texture of the paper. The
handwriting expert also in his report has highlighted such features. He has
also opined that the black ink used in the writing is different and that the
same sale deed has been written using two different inks. He has also
found that the signatures of the President and the Secretary in the
mentioned documents have also been forged. He has also opined that
resolution dated 2.1.1943 and 11.3.1943 are also forged and substituted in
the proceeding register of the Notified Area Committee. Reasons for the
same have been given and on perusal we are convinced that the reasons
are cogent and correct."
1.2 The investigation revealed that sale deed and resolution of the year
1943 surfaced only in the year 1995, as Sh. Rati Ram did not mention this when
he filed a civil suit in the year 1965 against alleged illegal dispossession, nor did
the same was produced during the further litigation in the court or before Estate
Officer. Investigation revealed that legal heirs of Late Sh. Rati Ram sold the land
to 17 persons in the year 1989 claiming their right of ownership as per Punjab
Tenancy Act. The CBI has alleged that the resolution and the sale deed
purported to be of year 1943 were prepared some time after 02.06.1989.
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1.3 The investigation revealed that the entire land was bought by A2 to
A4 in the name of 13 companies vide sale deeds dated 05.04.1995. The details
of the companies and the area of land purchased by them has been detailed in
the charge sheet and have not been reproduced herein.
A3 Sh. Vinod Mittal authorized signatory for Chavan Rishi
Apartments vide its application dated 19.07.1995 to the Town Planer, MCD applied
for approval of lay out plan for group housing at village Malikpur Chhavani and
submitted copies of Standing Committee resolution dated 20.01.1992 granting the
approval of lay out plan for school, copy of letter of approval of site for primary
school, copies of sale deeds, copy of memorandum of settlement dated July,
1995 authorized by all the purchasers of the land, authorizing A3 to act on their
behalf to get the building plan sanctioned for residential group housing scheme in
the name and style of M/s. Chavan Rishi Apartments.
1.4 The investigation revealed that the clearance from Competent
Authority of ULCR was required for approval of lay out plan. The different
companies of A2 to A4 through Directors / persons applied for NOCs with the
Competent Authority of ULCR vide their application dated 03.07.1995 and filed
statements under Saction 6 (i) and 15 of ULCR Act, 1976 and affidavits that these
companies and persons do not have any vacant land / built up property in India
except plot / building mentioned in the statement under Section 6 (i) of ULCR,
1976.
The investigation revealed that the authorized companies controlled
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by A2 to A4 filed statement under Saction 6 (1) as required under Saction 15 of
ULCR Act, 1976 alongwith the other documents. Ms. Nirmala Gupta, Advocate
filed her vakalatnama in each case alongwith application. In their identical
applications the persons representing the various companies submitted that all
the 20 purchasers of the land are interested to construct Group Housing Society
on the entire plot of 9013.3389 meters (10 bigha and 14 biswa) out of the above
khasra, which is permissible under master plan as the land use under master
plan is residential and the holding of each person is within ceiling limit of 500 sq.
metes as required under Saction 4 (1) (a) of ULCR Act, 1976. The investigation
revealed that in April, 1955 when the sale deed was executed in favour of A2 to
A4 a settlement deed was also executed between the buyers and the sellers vide
which it was informed to the sellers that litigation against Ram Piari in regard to
above land under title DDA Vs. Ram Piari was pending in the Court of Ms. Urmila
Rani, the then Ld. Additional District Judge. This settlement deed had signatures
of A2 and A3, however, the accused furnished false information to the
Competent Authority that no litigation is pending pertaining to the land in
question.
The investigation revealed that M/s. St. Jesus Education Society
was granted exemption under Saction 19 (VII) on 20.01.1991 and this fact was in
the knowledge of A3 as he had submitted photocopy of letter dated 17.01.1992 of
the Commissioner, MCD alongwith his application submitted to the Town Planer,
MCD for sanction of a lay out plan in which there was mention about the NOC
granted in the year 1991 by the Competent Authority. However, this fact was
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concealed from the Competent Authority and it was revealed that NOC was
applied by furnishing false information and concealment of true facts. The
Competent Authority was neither informed about the litigation between the DDA
and Smt. Ram Piari, nor was informed about the earlier exemption granted to the
educational society under Saction 19 (VII) of ULCR Act. Had it been disclosed
the sanction granted to the educational society was liable to be withdrawn under
Saction 20 (2) of ULCR Act and the land would have been declared surplus in the
hands of the declarants. The CBI has alleged that this land was surplus and liable
to be vested, if Ram Piari and Kanwal Singh are considered as owners of the land
in the year 1976, when ULCR Act, 1976 came in force.
1.5 The investigation revealed that A3 Vinod Mittal, Director of M/s.
Bhatinda Chemical Ltd., which owned land measuring 7 bigha in the above
khasras malafidely did not intimate acquisition of the said land to the Competent
Authority, to avoid the land having been declared surplus and acquired by the
government. The investigation also revealed that the M/s. JMD Build Well Pvt.
Ltd., M/s. Vinman Developers Pvt. Ltd. through its directors Sh. Vinod Mittal and
Sh. Vinod Mittal in individual capacity bought land measuring 1364 sq. meters
including 124.39 sq. meters built up area in property No.8 in Battery Lane, Civil
Lines, Delhi by sale deed duly registered on 26.11.1996. A2 Sh. D.D. Mittal (since
expired) had duly witnessed the sale deed. A4 Manoj Mittal was shown as the
tenant in one of these properties and therefore A2 to A4 had knowledge that the
companies in question had purchased the above land and therefore if purchase
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of this land had been informed to the Competent Authority, the Competent
Authority would have not granted the NOC and the land would have been
declared as excess land.
The investigation revealed that in the sale deed dated 01.04.1995,
the land in question is shown as agricultural land, whereas the same is shown as
Gross residential in the Master Plan in the year 1962 and MPD2001. The use of
the land as per Zonal Plan under Master Plan 1962 was for primary school.
However, the applicants in their application stated that the "land use" under the
Master Plan 2001 is residential. The investigation revealed A1 admitted the
genuineness of these companies without any separate documents of
registration / incorporation and issued a common order for all persons and
companies on a common address and issued a single notice to M/s. Chavan Rish
Apartments, which shows that A1 had knowledge that these all persons are
members of the same family. Allegedly during the proceedings only late Sh. D.D.
Mittal and Ms. Nirmala Gupta, Advocate appeared for all the companies.
Allegedly the Competent Authority by granting the NOC to the companies
defeated the basic object of the act. The competent authority ought to have
considered these companies as separate identity and should have ascertained
the holding of these persons individually or directors of other companies. It is
pertinent to mention here that the NOC granted by A1 dated 01.11.1995 was
quashed by Hon'ble Vijay Kapoor, the then Lt. Governor in suo moto revision
proceedings under Section 34 of the ULCR Act on 22.09.1998.
It has been alleged that A1 Competent Authority issued the NOC
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illegally without examining that whether the title of the land has validly passed.
The CBI has alleged that A1 in pursuance to the conspiracy with A2 to A4
granted NOC and abused its officials position. The CBI has concluded in the
chargesheet that no criminality can be attributed to the officials of MCD, who
approved the lay out plan and referred their lapses to the department for initiation
of departmental action for major penalty against them. The investigation could
not ascertain that who had committed forgery of the documents pertaining to the
1943 documents. The CBI reached to the conclusion that Smt. Ram Piari and
Kanwal Singh merely inherited land from Sh. Rati Ram being legal heir and were
not knowing the forgery of sale deed. Sh. Kanwal Singh has since expired and
Smt. Ram Piari has not been sent for trial being aged and illiterate. The CBI has
also concluded that 17 persons who bought the land form Smt. Ram Piari and Sh.
Kanwal Singh in the year 1989 were bonafide purchasers and had no knowledge
of the forgery of the sale deed and resolution of the year 1943. Similarly, the
kingpin for effecting the mutation of year 1989 on the same day was held to be
Sh. Rishal Singh, the then Naib Tehsildar, who had also expired. The
investigation revealed that 13 different companies which were represented by
Late Sh. D.D. Mittal, Sh. Vinod Mittal and Sh. Manoj Mittal filed the applications
for grant of NOC before Competent Authority alongwith affidavit misrepresenting
that the said companies and individual had only land in question under Section 6
(1) of ULCR Act. The accused persons willfully and purposely with the object to
deceive did not not disclose that these companies had land, other than declared
in the affidavit . The accused persons also in pursuance of a criminal conspiracy
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amongst themselves and others did not inform about pendency of the matter
"DDA Vs. Ram Piari" under PP Act against Ram Piari in the court of Ms. Urmila
Rani, ADJ which was fixed for 25.04.95. Had these informations been furnished
in proper perspective, the NOC could not have been granted. In pursuance of the
criminal conspiracy, Sh. S.S. Rathore the then Competent Authority, ULCR also
willfully and purposely by abusing his official position did not call for the required
additional information.
2.0 Sh. DK Singh, Ld. PP for CBI submitted that the present case was
registered on the written complaint dtd. 20/2/01 of Sh. SC Sharma, the then Dy.
CVO, Ministry of Urban Development in compliance of the directions of the
Hon'ble High Court of Delhi in writ petition No. 3830/96 dtd. 21/8/2000. The
investigation was carried out regarding illegal transaction, including forgery and
falsification of documents, misdeeds of tampering, falsifying and interpolation of
the official record pertaining to government land at Vill. Malikpur Chawni (now
known as Model Town). Ld. PP submitted that the land in question was
transferred to Land & Development Officer from Notified Area Committee w.e.f.,
01/04/1958 and thereafter, L&DO started eviction proceedings before the Estate
Officer. Sh. DK Singh, Ld. PP argued that in the meanwhile Late Sh. Ratiram
filed a civil suit in the year 1965 claiming to be in occupation of the land, this civil
suit was dismissed by the subordinate judge vide order dtd. 10/3/66 on the
ground that the suit was not maintainable being barred under the Provisions of
the Public Premises Eviction of Unauthorized Occupants Act, 1958. In 1969, Sh.
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Ratiram expired leaving behind his wife Smt. Ram Piari and son Sh. Kanwal
Singh. In July 1974, the DDA took over the land measuring 3.044 acres out of the
above said land for development and maintenance of land as green and started
proceedings against Smt. Ram Piari under PP Act. Ld. PP argued that in 1979 in
a proceedings under PP Act, Smt. Ram Piari in her statement dtd. 13/6/1979
before the Estate Officer DDA, duly admitted that DDA is the owner of the land in
question and her husband Sh. Ratiram took the same on "batai" for agricultural
purpose about 1516 years back. However, Smt. Ram Piari did not have any
record pertaining to this.
The story took a turn on 26/5/89 when legal heirs of Late Sh.
Ratiram sold the land in question to 17 persons. Ld. PP submitted that on the
same day forgery in the revenue records were made. The mutation was firstly
made in the name of Sh. Ratiram, whereas Ratiram had already died in the year
1969 and then mutation was effected in the name of Smt. Ram Piari and Sh.
Kanwal Singh and on the same day the mutation was effected in the name of said
17 buyers. Sh. DK Singh, Ld. PP fairly conceded that the investigation could not
ascertain that who had committed the forgery in the revenue records. In the
meanwhile Sh. Kanwal Singh S/o Late Sh. Ratiram also expired leaving behind
only Smt. Ram Piari, who was an illiterate and very old lady. The land further
changed hand on 11/4/94 when 03 purchasers out of the above said 17 persons
namely Sh. Mahesh Sehra, Smt. Sneh Lala and Sh. Rajesh Kumar sold one
bigha of their land to Smt. Chandu Somani, Sh. Shyam Somani and Smt. Radha
Krishan Somani. The Somani's having came to know about the dispute sold the
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land to A2 DD Mittal (since expired), A3 Vinod Mittal and A4 Manoj Mittal.
Remaining 14 persons also sold their land to the Mittal's. Mittal's purchased the
above said land in the name of 13 different companies.
Sh. DK Singh, Ld. PP for CBI further submitted that after purchasing
the land Sh. Vinod Mittal A4 requested the Town Planner, MCD for approval of the
Lay Out Plan for a Group Housing Society named "Chavan Rishi Apartment" on a
total land of 2.32 acres claiming therein that the proposal for the Group housing
scheme was in accordance with the Draft Zonal Plan of the approved Master
Plan, 2001. It was pointed out that at the time of submission of the Lay Out Plan,
the zonal plan in which the use of land was shown as residential was only at the
drafts stage, and therefore, the zonal plan of the year 1962 was applicable. In the
Zonal Plan of 1962, the land in question was shown as primary school. However,
on 10/1/96, the draft preamble note with regard to Lay Out Plan for Group
Housing Scheme on the said land was approved by the Lay Out Scrutiny
Committee. Ld. PP submitted that while preparing the Draft Preamble Note for
Chavan Rishi Apartment, it was not suppressed that earlier the land use for this
particular land was for education purposes and therefore, no dishonest intention
was made out against Lay Out Scrutiny Committee. Sh. DK Singh, Ld. PP for CBI
submitted that A1 SS Rathore malafidely and illegally granted NOC under ULCR
Act.
In respect of A1 SS Rathore, Sh. DK Singh, Ld. PP submitted
that as per Urban Land Ceiling Regulation Act (ULCR Act), 1976, no person
holding vacant land in excess of the ceiling limit as on the date of commencement
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of the Act is allowed to transfer any such land or part of thereof, unless statement
u/S 6 has been filed and notification u/S 10(1) has been published. Ld. PP
submitted that A1 SS Rathore was duty bound to assess the land on the date of
commencement of the Act and he must have seen that whether the land had
validly passed into the hands of declarants. A1 SS Rathore also failed to
ascertain the status of the land, as in the sale deed executed in April 1995, the
land was shown as agricultural land, whereas, the land in question was not used
for any agricultural purposes. A1 SS Rathore also wrongfully admitted the
genuineness of the companies without any supporting documents of registration
nor did he discuss the legal status of the companies in his order. A1 SS Rathore
passed a single order dtd. 1/11/96 for all the above companies and persons with
common address, 4, Battery Lane, Civil Lines, Delhi declaring that these persons
and companies are the separate identity and do not have any excess land to the
ceiling limit. Ld. PP submitted that all the companies who filed declarations had
their registered office and Directors, which are more or less common, and all the
companies were represented by either Sh. DD Mittal or his sons Vinod Mittal and
Manoj Mittal. The record also revealed that all the companies were represented
by a common advocate namely Smt. Nirmala Gupta. Ld. PP submitted that A1 SS
Rathore by his acts and deeds defeated the basic principles of ULCR Act. The
basic objective of the Act is to prevent concentration of urban property in the
hands of few persons and speculation and profiteering therein. Sh. DK Singh, Ld.
PP argued that these companies should not have been considered separate
identity. A1 SS Rathore also did not summon the companies balance sheets, ITR
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etc nor did he serve the draft statement u/S 8 of the ULCR Act. The State has
argued that A1 SS Rathore should have lifted the corporate veil of various
companies and should have treated the entire property to be holding of the
Directors of the various companies. A1 SS Rathore also failed to ascertain the
status of the land at the time of inception i.e. In the year 1976. If the land was in
excess in the year 1976, then the subsequent sale & purchase by 17 persons
would not have changed the status of the land. Ld. PP submitted that A1 entered
into a conspiracy with the remaining accused persons and got them pecuniary
advantage against public interest. Sh. DK Singh, Ld. PP specifically pointed out
that document D13 would show that the exemption u/S 19 (vii) of ULCR Act was
illegally granted to St. Jesus Education Society by Late Sh. JD Jain, the then
competent authority in the year 1991, by circumventing the provisions of the Act.
The document D13 ie. File No. F.36(Misc.)/6/98/L&B/ULCR and F.
36(9)/1/91/L&B/ULCR would also show that the LG had quashed the impugned
order dtd. 1/11/95 of A1 SS Rathore in a suomoto revision proceedings and
Hon'ble LG observed that the order was improper and illegal. Sh. DK Singh, Ld.
PP also referred to the statement of list witness 2 Sh. KC Aggarwal, the
successor in office of A1 who has also stated that NOC granted in the year 1995
to the builders of Chavan Rishi Apartments is illegal, because the then competent
authority should have seen as to whether the land was validly passed through the
builders by sellers.
Sh. DK Singh, Ld. PP for CBI argued that A3 Vinod Mittal in
conspiracy with his coaccused filed a false affidavit that these companies and
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persons did not have any vacant land / built up property in India except plot /
building mentioned in the statement u/S6(i) ULCR Act, 1976, whereas A3 Vinod
Mittal was having other land in the above khasras. A3 also furnished a false
information that there was no pending litigation in respect of the land in question
whereas settlement deed dtd. 5/4/95 executed between the seller and purchaser
of the land indicate that the matter regarding land in question was pending in the
Court of Smt. Urmila Rani, titled as DDA Vs. Ram Piari. Ld. PP submitted that
accused persons wrongly and illegally showed the land used as residential
whereas, as per master plan effective as on the date the land use was
educational institution. The Draft Zonal Plan in MPD2001 in which the land use
was shown as residential, had no sanctity unless it is approved and notified. Ld.
PP argued that malafide of the accused persons is also apparent, as the sale
deed by virtue of which the land was transferred showed the land used as
agricultural whereas the accused by applying for permission under ULCR Act did
not treat the land as agricultural land. It was submitted that A4 Manoj Mittal also
did have other land in the above khasra and this fact he intentionally did not
disclose in the declaration filed before the competent authority.
3.0 Sh. Riyaz Ahmed Bhatt, Ld. Counsel for A1 SS Rathore argued
in detail and presented the complete chronology of events in this case. Ld.
Counsel submitted that A1 SS Rathore joined as competent authority on
23.08.95. Accused persons A3 and A4 had already applied for NOC and
therefore, there is no question of conspiracy between A1 and other accused
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persons. Ld. Counsel also read out the relevant provisions of ULCRA and
submitted that order of competent authority was in order. Ld. Counsel submitted
that CBI has not been able to bring any material on record to indicate that there
was any illegality, impropriety or misconduct on the part of A1 SS Rathore. Ld.
Counsel mainly argued that A1 SS Rathore has passed the impugned order in
discharge of his quasi judicial function in accordance with the provisions of
ULCRA and therefore, he is protected under the Judges Protection Act. Ld.
Counsel submitted that in order to prosecute a person performing quasi judicial
function, there has to be glaring material on record which could attribute criminal
misconduct. A public servant discharging quasi judicial function cannot be
prosecuted merely because his order suffers from illegality. Sh. Bhatt read out the
order of Hon'ble LG to buttress his point that there was no impropriety or
misconduct on the part of A1 SS Rathore. In support of his contentions Ld.
Counsel cited following judgments :
1. Union of India & Anr. Vs. Major Bahadur Singh, (2006) 1 SCC 368 ;
2. State of Uttar Pradesh Vs. Ram Chandra Trivedi, AIR 1976 SC 2547 ;
3. Runu Ghosh Vs. CBI, MANU/DE/6909/2011 ;
4. SK Kale Vs. State of Maharashtra, AIR 1977 SC 822 ;
5. R. Balakrishna Pillai Vs. State of Kerala, (2003) 9 SCC 700 ;
6. R. Sai Bharati Vs. J. Jayalalitha, (2004) 2 SCC 9 ;
7. Damodar Vs. State of Rajasthan, (2004) 12 SCC 336 ;
8. KR Purushothaman Vs. State of Kerala, (2005) 12 SCC 631 ;
9. A. Subair Vs. State of Kerala, (2009) 6 SCC 587 ;
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10. C.K. Jaffer Sharief Vs. State (Through CBI), (2013) 1 SCC 205 ;
11. Gauri Shankar Prasad Vs. State of Bihar and Anr., AIR 2000 SC 3517 ;
12. Rakesh Kumar Mishra Vs. State of Bihar and Ors., (2006) 1 SCC 557 ;
13. State of M.P. Vs. Sheetla Sahai & Ors., (2009) 8 SCC 617 ; and
14. ES Sanjeeva Rao Vs. CBI, Mumbai, 2012 Cri.L.J. 4053.
3.1 Sh. Manoj K. Singh, Ld. Counsel for A3 Vinod Mittal argued in
detail to bring home the point that CBI has gone much beyond their jurisdiction,
as conferred upon them by the order of Hon'ble High court in writ petition No.
3830 of 1996. CBI conducted the investigation malafidely and implicated the
accused persons falsely. CBI instead of booking the culprits who were allegedly
involved in tampering and forging of revenue record and other official documents,
misdirected its investigation towards the issuance of NOC by the authority which
had no bearing or correlation with the alleged forgery committed for diversion of
the government land to private parties. Accused persons chargesheeted by the
CBI have nothing to do with the alleged manipulations and misdeeds of
tampering, falsifying and interpolation of official records. Ld. Counsel argued that
sole allegation against his client is that he filed the written statement before the
competent authority i.e. A1 SS Rathore. It has been submitted that even if the
material available on record is taken into account, no case under the offence of
criminal conspiracy is made out. Ld. Counsel submitted that statement filed by A3
is correct as per his understanding and no false statement was made. It has
further been submitted that even otherwise, the punishment for furnishing false
18
// 19 //
information before the competent authority, is specifically provided under ULCR
Act and therefore, it is automatically goes out of the purview of the IPC.
Sh. Manoj K. Singh, Ld. Counsel submitted that general provisions
of law are not applicable when offence is covered under the special statute. Ld.
Counsel submitted that there was no conspiracy amongst the accused persons
and nor is there any material to make out the offence u/S.420 IPC r/w S.13(1)(d)
punishable u/S.13(2) of PC Act, 1988. Ld. Counsel also argued that A1 SS
Rathore was discharging quasi judicial function and therefore, falls within the
ambit of section 19 of IPC and therefore, protected u/S.2 of the Judges Protection
Act.
Sh. Manoj K. Singh, Ld. Counsel primarily argued that there is no
material on the record to make out the offence u/S.13(1)(d) of PC Act 1988 as
prosecution's case itself does not speak about mensrea, abusing official position
and pecuniary advantage being taken by the accused persons. Ld. Counsel also
argued that there is no material on the record to infer that there is any conspiracy
amongst the accused persons. Ld. Counsel relied upon State of Madhya
Pradesh Vs. Sheetla Sahai and Ors., 2009 Cri.L.J. 4436, in support of his
contentions that in order to charge accused persons for conspiracy, there has to
be meeting of minds between the accused persons. Merely on the basis of whims
and fence, the accused persons cannot be charged.
Sh. Manoj K. Singh, Ld. Counsel argued at length that granting of
NOC did not confer any pecuniary gain to the accused as NOC was not even
required for approval of the building plan. The last limb of argument is that ULCR
19
// 20 //
Act has been repealed by the repealing Act, 1999 and by virtue of S.4 of the
ULCRA Repeal Act 1999, all proceedings stand abated. Ld. Counsel submitted
that prosecution has no material on record to prove its case against the accused.
In support of his contentions, Ld. Counsel cited following judgments :
1. Ms. Mayawati Vs. Union of India and Ors., 2012 (4) CTC 322 ;
2. Biswanath Patra Vs. Divisional Engineer (E) S and LP And State , AIR
2007 Cal. 189 ;
3. J. Alexander IAS Vs. CBI, 2002 (2) KCCR 1363 ;
4. J. Jayalalitha Vs. State represented by Director of Vigilance & Anti
Corruption, 2002 (1) LW (Crl.) 37 ;
5. C. Chenga Reddy & Ors Vs. State of Andhra Pradesh, AIR 1996 SC
3390 ;
6. State of M.P . Vs. Rajeev Jain, 2001 (4) MPHT 58 ;
7. K.R. Purushothaman Vs. State of Kerala, AIR 2006 SC 35 ;
8. Narayana Nambiar Vs. State of Kerala, AIR 1963 SC 1116 ;
9. A. Subair Vs. State of Kerala, 2009 (6) SCC 587 ;
10. Major SK Kale Vs. State of Maharashtra, AIR 1977 SC 822 ;
11. Rachapudi Subba Rao Vs. Advocate General, (AP) AIR 1981 SC 755 ;
12. Narayan Diwakar Vs. CBI, 129 (2006) DLT 258 ;
13. Anowar Hussain Vs. Ajoy Kumar Mukherjee & Ors., AIR 1965 SC
1651 ;
14. Delhi Cooperative Tribunal Vs. AC Aggarwal, 2006 (91) DRJ 348 ;
20
// 21 //
15. E.S. Sanjeeva Rao Vs. CBI Mumbai and Others, 2012 Cri.LJ 4053 ;
16. West Bengal Properties Ltd. & Anr. Vs. State of West Bengal & Ors.,
AIR 1994 Cal. 182 ;
17. T. Barai Vs. Henry Ah Hoe & Anr., AIR 1983 SC 150 ;
18. Tej Pratap Singh Vs. Union of India, 2009 (9) AD Del 466 ;
19. Abdul Rehman and Ors. Vs. KM AneesulHaq, 2012 (1) ACR 26 (SC) ;
20. Sachida Nand Singh and Anr. Vs. State of Bihar and Anr., AIR 1998
SC 1121 ;
21. Har Prasad Vs. Hans Ram and Ors., 1966 Cri.LJ. 244 ;
22. R. Balakrishna Pillai Vs. State of Kerala, 2003 (2) ACR 1382 (SC) ; and
23. Kailash Nath Tripathi Vs. State of UP, 2008 (1) ACR 765.
3.2 Sh. PR Aggarwal, Ld. Counsel for A4 Manoj Mittal besides filing
written arguments made detailed oral submissions. Sh. PR Aggarwal submitted
that there was no dishonest intention or malafide on part of the accused persons.
A2 to A4 purchased the land in question in April 95 from the persons to whom the
land in question was sold in the year 1989 by legal representatives (LRs) of Late
Rati Ram. Sh. Aggarwal submitted that after the land was bought by A2 to A4 in
the name of different companies, the permission under ULCRA was applied on
03.07.95 and the permission was granted by Sh. SS Rathore (A1), who was
competent authority at that time, on 01.11.1995. Sh. PR Aggarwal pointed out that
prior to it the competent authority under ULCRA had also granted the permission
for constructing the school to St. Jesus Educational Society. It was submitted that
21
// 22 //
present FIR was lodged in pursuance to the public interest writ petition No.
3838/1996 in which the Hon'ble High Court vide order dated 21.08.2000 inter alia
observed that this is a proper case where the CBI should be directed to make an
inquiry with regard to the entire transaction including the forgery and fabrication
of documents. It was further directed that CBI shall make investigation relating to
the illegal transaction including forgery, falsification of documents, tampering and
falsifying by interpolation of the official records pertaining to the land in question
and thus who were found responsible shall be proceeded with in accordance with
law.
Ld. Counsel submitted that the land in question was purchased in
favour of private limited companies and each one of the companies became
owners of the land in question having less than 500 sq. mtrs. in their family. It is
not disputed that the constitution of various private limited companies belonged to
Mittal family headed by Late Sh. DD Mittal, A2. Sh. Aggarwal submitted that after
the acquisition of the land, the MCD was approached for sanctioning the layout
plan for the Group Housing Society on the said land. MCD inter alia put a
condition for NOC / exemption from ULCRA authorities for the site alongwith other
conditions in terms of this condition, the competent authority was approached for
"NOC". It is not disputed that all the companies were presented through Smt.
Nirmal Gupta, Advocate. Ld. Counsel submitted that A1 SS Rathore, who was
competent authority at the relevant time, after considering the documents filed
before him held that each one of the declarant was having less than 500 sq. mtrs.
of land and also held that each of the declarant had a separate entity as per
22
// 23 //
ULCRA and after considering the entire documents of the file of the case, affidavit
/ submissions made before the competent authority granting NOC. Ld. Counsel
pointed out that complete mechanism is provided in the scheme of the Act for
challenging the order of the competent authority. The first appeal can be filed
before the Tribunal and second appeal lies to the High Court. State Government
is also vested with the power of revision u/S.24 of the Act. In the present case, no
appeal was filed challenging the order dated 01.11.95. However, Hon'ble Lt.
Governor of Delhi in suo motu revision petition quashed the impugned order vide
order dated 22.09.98. It is pertinent to mention here that in WP No.38/1996
Hon'ble Delhi High Court held that the resolution and sale deed of the year 1943
is a forged document. Sh. Aggarwal mentioned in his written arguments that the
NOC granted by Late Sh. JD Jain in the year 1991 to St. Jesus Education Society,
was allegedly illegal since the Memorandum of Settlement in favour of St. Jesus
Education Society represented by Sh. Sarabjit Sharma is unregistered document
and no right, title or interest can be transferred in immovable property or it can be
varied or extinguished except by a registered document. Sh. PR Aggarwal,
Advocate relied upon Dilawar Babu Kurane Vs. State of Maharashtra, AIR
2002 SC 564, to support that there is no material on the record which could evoke
grave suspicion against the accused. Ld. Counsel submitted that while exercising
the jurisdiction at the stage of charge, the court cannot act merely as a post
office. The court is required to consider total effect of evidence and documents
produced before the court. It has further been submitted that if the case of the
prosecution is based on flimsy ground and if the chances of conviction are bleak,
23
// 24 //
accused is entitled to be discharged. Sh. Aggarwal submitted that at the stage of
charge , the court is bound to sift and weigh the evidence and if two views are
equally possible, the accused should be discharged.
Ld. Counsel submitted that A3 and A4 could have played no role in
the forgery of sale deed dated 20.05.43 as they were not even born at that time.
Ld. Counsel pointed out that even CBI has not been able to bring any material on
record to establish its charge of forgery. Ld. Counsel submitted that the present
accused persons also had no role when the mutation was effected in the year
1989, nor were they party to the sale deed executed in the year 1989. Ld.
Counsel submitted that CBI has wrongfully exonerated the 17 persons from whom
the accused persons had bought the land in question being the bonafide
purchasers and similarly, Ram Piyari and Kanwar Singh have also not been
chargesheeted whereas they were the persons who had sold the land in question
and got the mutation effected in their name in the year 1989. Ld. Counsel
submitted that review officer who effected the mutation in the year 1989 has also
been legally let off by the CBI. Sh. PR Aggarwal argued that standing committee
of the MCD had duly approved the lay out plan on the basis of which the flats
were constructed and accused persons spent a considerable amount on the
same. Sh. PR Aggarwal pointed out in his written arguments that neither Sh. JD
Jain who had also granted the NOC nor Sh. Sarabjit Sharma, Chairman of St.
Jesus Society have been prosecuted by CBI. Ld. Counsel submitted that the
order passed by A1 SS Rathore dated 01.11.95 was passed by him lawfully,
bonafidely and within his powers on the basis of records produced before him.
24
// 25 //
Sh. Aggarwal further submitted that ULCRA was enacted in the year 1976 and it
was repealed in the year 1999. Section 4 of the repealing Act specifically provides
that all proceedings relating to any order made or purported to be made under
principal Act pending before the commencement of this Act, before any court,
tribunal or other authority shall abate. Ld. Counsel submitted that in view of
Section 4 of the Repealing Act, there is no scope for continuing with the
proceedings against the accused persons. Ld. Counsel submitted that accused
persons had not obtained any wrongful gain for themselves nor passed any
wrongful loss to anyone. It has been argued that even the ingredients of cheating
are not made out in the present case. Rather, the accused persons constructed
4550 flats for providing residential accommodation to various persons after the
plan was duly sanctioned by MCD. The flats so constructed were demolished and
accused persons suffered a loss of Rs.34 crores. The accused persons also filed
a suit for recovery which is still pending. Sh. PR Aggarwal submitted that while
the petition was pending in the High Court, Govt. had agreed to settle the matter
on the payment of Rs.10.50 crores as penalty and the accused persons deposited
the penalty in the court. However, Govt. of India changed its stand and amount so
deposited was reverted to the persons who had booked the flats in the Group
Housing Society.
It is pertinent to mention here that Sh. PR Aggarwal has defended
the order of A1 SS Rathore dated 01.11.95. It has been submitted that same has
been passed in accordance with the law. Ld. Counsel submitted that there is no
evidence on the file that any illegal gratification by way of bribe or otherwise was
25
// 26 //
even paid to A1 SS Rathore or even offered by remaining accused persons. It has
been submitted that accused persons acted in consonance with the objection of
the Act. The accused persons initiated to construct the Group Housing Society
which would have resulted in sharing of land by more than 50 families. It has
been submitted that there is not even an iota of evidence to establish any
conspiracy or nexus amongst the accused persons.
4.0 In rebuttal, Ld. PP for CBI submitted that the plea of A1 SS Rathore
that he has passed the impugned order in good faith with due care and attention,
inevitably requires that plea of the accused is to be decided on the trial. Ld. PP
further submitted that if the plea has been taken by the defence that their case
falls within the general exemption then as per Section 105 of Indian Evidence Act,
that has to be proved by the accused persons in trial as required under law. In
support of his contention, Ld. PP cited following judgments :
1. Partap Vs. The Stat of Uttar Pradesh, (1976) 2 SCC 798 ;
2. S.K. Sundaram (Suo Motu Contempt Petition (Crl.) No. 5/2000), (2001)
2 SCC 171.
Regarding Spl. Act, Ld. PP placed reliance upon M. Natarajan Vs.
State by Insp. Of Police, SPE, CBI, ACB, Chennai, (2008) 8 SCC 413.
CONCLUSION
5.0 The jurisdiction to be exercised at the stage of charge is well settled.
As far as the jurisdiction at the stage of charge is concerned, that is very well
26
// 27 //
settled. At the stage of charge, the court is only required to see the prima facie
case and it cannot go into the meticulous examination of the facts nor can it
determine the probative value of statement of witnesses. However, it is also a
settled proposition that at the framing of charge, the court has to apply its judicial
mind for consideration whether or not there is a ground for presuming the
commission of the offence by the accused. The order framing the charges does
substantially affect the person's liberty and it cannot be said that the court must
automatically frame the charge merely on the asking of the prosecution.
It is also a settled proposition that where two views are possible and
evidence produced give rise to some suspicion but not grave suspicion, it would
be justified to discharge the accused. Reference can be made to Union of India
Vs. Prafulla Kumar Samal, 1979 AIR (SC) 366. In this case, the Apex court has
laid down that - the test to determine a prima facie case would naturally depend
upon the facts of each case and it is difficult to lay down a rule of universal
application. By and large however, if two views are equally possible and the
Judge is satisfied that the evidence produced before him while giving rise to
some suspicion but not grave suspicion against the accused, he will be fully
within his right to discharge the accused. There has to be strong suspicion and
prima facie case in order to frame the charge against the accused persons. In
Dilawar Balu Kurane Vs. State of Maharashtra, 2002 (1) JCC 172, it has been
inter alia held that where the materials placed before the court disclose grave
suspicion against the accused which has not been properly explained, the court
will be fully justified in framing a charge. It has further been held that if two views
27
// 28 //
are equally possible and the judge is satisfied that the evidence produced before
him while giving rise to some suspicion but not grave suspicion against the
accused, he will be fully justified to discharge the accused. The court is required
to consider the broad probabilities of the case, the total effect of the evidence and
documents produced before the court. It is not required for the court, at the stage
of charge to make a roving enquiry into the pros and cons of the matter and
weigh the evidence as if he was conducting a trial.
It is a settled proposition that at the stage of charge, the court is
only required to see prima facie case. The court cannot meticulously appreciate
the evidence of record nor can it go into the probative value of the statement of
witnesses.
5.1 In State of Bihar Vs. Ramesh Singh, 1977 SCC (Cri.) 533, while
considering the scope of Sections 227 and 228 of the Code, it was held that at
the stage of framing of charge, it is not obligatory for the judge to consider in any
detail and weigh in a sensitive balance whether the facts, if proved, would be
incompatible with the innocence of the accused or not. At that stage, the court is
not to see whether there is sufficient ground for conviction of the accused or
whether the trial is sure to end in his conviction. Strong suspicion, at the initial
stage of framing of charge, is sufficient to frame the charge and in that event it is
not open to say that there is no sufficient ground for proceeding against the
accused.
In State by CBI Vs. S. Bangarappa, 2000 (10) SRJ 276, the
28
// 29 //
charge sheet was filed by CBI against S. Bangarappa one time Chief Minister of
Karnataka State alleging that he had amassed wealth grossly disproportionate to
his known source of income during a check period when he held public offices
either as Minister or Chief Minister. The offence u/S.13(2) of PC Act was pitted
against him r/w S. 13(1)(e) thereof on the ground that he was in possession of
pecuniary resources and assets so disproportionate that he could not
satisfactorily account for them. The High Court of Karnataka quashed the
proceedings and CBI approached the Supreme Court. It is pertinent to mention
here that Ld. Spl. Judge had passed a detailed order holding that there is a prima
facie case against the accused to frame charge u/S.13 r/w S.13(1)(e) of the PC
Act. The court after taking into account the law laid down in Kanti Badra Shah
Vs. State of West Bengal, AIR 2000 SC 522 inter alia held that time and again it
has been pointed out that at the time of charge, the court should not enter upon a
process of evaluating the evidence by deciding its worth or credibility. The limited
exercise during that stage is to find out whether the materials offered by the
prosecution to be adduced as evidence are sufficient for the court to proceed
further. It was further held that prosecution has to establish that the pecuniary
assets acquired by the public servant are disproportionately larger than his known
sources of income and then it is for the public servant to account for such excess.
The offence becomes complete on the failure of the public servant to account or
explain such excess. It does not mean that the Court could not frame charge until
the public servant fails to explain the excess or surplus pointed out to be the
wealth or assets of the public servant concerned. This exercise can be completed
29
// 30 //
only in the trial.
The court while considering the question of charge has to take a
pragmatic approach. The court cannot go beyond the scope of jurisdiction as
conferred upon it by the Cr.P.C. The scope of jurisdiction at the stage of framing
of charge is very well defined by the Superior courts in various cases from time to
time. It is a settled proposition that the court cannot meticulously examine the
facts nor can it examine the probative value of witnesses. The court has to see
only prima facie case. But at the same time, the court cannot act as a mouthpiece
of the prosecution. The court is required to see whether on the basis of material
on record, there is sufficient prima facie case to frame the charge.
In Union of India v. Prafulla Kumar Samal and Anr., 1979
Cri.L.J. 154, the Supreme Court has laid down principles to be followed by a
Court of Sessions while considering the question of framing of charge under
Section 227 Cr.P.C. :
1) That the Judge while considering the question of framing
the charges under Section 227 of the Code has the
undoubted power to sift and weigh the evidence for the
limited purpose of finding out whether or not a prima facie
case against the accused has been made out;
2) Where the material placed before the Court disclose grave
suspicion against the accused which has not been properly
explained the Court will be fully justified in framing a charge
and proceeding with the trial.
3) The test to determine a prima facie case would naturally
depend upon the facts of each case and it is difficult to lay
30
// 31 //
down a rule of universal application. By and large however if
two views are equally possible and the Judge is satisfied
that the evidence produced before him while giving rise to
some suspicion but not grave suspicion against the
accused, he will be fully within his right to discharge the
accused.
4) That in exercising his jurisdiction under Section 227 of the
Code the Judge which under the present Code is a senior
and experienced Court cannot act merely as a PostOffice
or a mouth piece of the prosecution, but has to consider
the broad probabilities of the case, the total effect of the
evidence and the documents produced before the Court,
any basic infirmities appearing in the case and so on. This
however does not mean that the Judge should make a
roving enquiry into the pros and cons of the matter and
weigh the evidence as if he was conducting a trial.
It is pertinent to mention here that it is a settled preposition that at
the stage of charge, the broad test to be applied is whether material on record, if
unrebutted, makes a conviction reasonably possible.
Section 227 of the Code of Criminal Procedure provides as under:
"If upon consideration the record of the case and the
documents submitted therewith, and after hearing, the
submissions of the accused and the prosecution in this
behalf, the judge considers that there is not sufficient
ground for proceeding against the accused, he shall
discharge the accused and record his reasons for so
doing."
If section 227 Cr.P.C and 228 Cr.P.C are read together, it is clear
31
// 32 //
that the charge can be framed against the accused persons only if there is a
ground for presuming that the accused has committed an offence. It is a settled
proposition that while exercising jurisdiction u/s 227 Cr.P.C, the Court cannot act
merely as a Post Office or a mouth piece of the prosecution, but has to consider
the broad probabilities of the case and the total effect of the evidence.
As I have discussed above, the Apex Court has also laid down time
and again that court can not act merely as a mouthpiece of the prosecution and
the charges cannot be framed against the accused persons merely at the asking
of the prosecution. In Pooan Lal & others vs State 2008 (4) JCC 2353
Hon'ble High Court while dealing in revision petition against framing of charge
interalia held that:
" when both views are equally possible and the
evidence as produced on record by the prosecution raises
a suspicion but not grave suspicion against the accused
persons, the petitioners are entitled to be discharged".
In Yogesh @ Sachin Jagdish Joshi v/s State of Maharashtra
2008 (2) Criminal Court Cases 868 SC it was inter alia held as under:
"Chapter XVIII of the Code lays down the procedure
for trial before the Court of Sessions, pursuant to an order of
commitment under section 209 of the Code. Section 227
contemplates the circumstances whereunder there could be
a discharge of an accused at a stage anterior in point of time
of framing of charge under section 228. It provides that
upon consideration of the record of the case , the
documents submitted with the police report and after
hearing the accused and the prosecution, the court is
32
// 33 //
expected, nay bound to decide whether there is "sufficient
ground" to proceed against the accused and as a
consequence thereof either discharge the accused or
proceed to frame charge against him.
It is trite that the words "not sufficient grounds for
proceeding against the accused" appearing in section
postulate exercise of judicial mind on the part of the Judge
to the facts of the case in order to determine whether a case
for trial has been made out by the prosecution. However, in
assessing this fact, the Judge has the power to sift and
weigh the material for limited purpose of finding out whether
or not a prima facie case against the accused has been
made out. The test to determine a prima facie case depends
upon the facts of each case and in this regard, it is neither
feasible nor desirable to lay down a rule of universal
application . By and large, however, if two views are equally
possible and the Judge is satisfied that the evidence
produced before him gives rise to suspicion only as
distinguished from grave suspicion, he will be fully within his
right to discharge the accused. At this stage, he is not to
see as to whether trial will end in conviction or not. The
broad test to be applied is whether material on record, if
unrebutted, makes a conviction reasonably possible.
It is also pertinent to mention here that it has also been held time
and again that at the stage of charge, the court is not required to go into the
details of investigation and at this stage mini trial is not desirable. Reference can
be made to Indu Jain v. State of M.P & Ors. 2009(1) JCC 246.
33
// 34 //
6.0 Ld. Counsel for the accused persons have prominently argued that
no offence under Prevention of Corruption Act (in short "POCA"), 1988 made out,
as there is no allegation of any pecuniary advantage. It has further been
submitted that there is no evidence of conspiracy on record.
In Runu Ghosh Vs. CBI, Crl. A. No. 482/2002 decided on
21.12.2011, Division Bench of Hon'ble High Court dealt with the question whether
mensrea is included in Section 13(1)(d)(ii) or (iii) of PC Act 1988. After dealing the
facts and arguments of the Ld. Counsel for the appellants in detail, the Hon'ble
High Court inter alia held as under :
"Being an enactment meant to stamp out corruption, containing several
stringent provisions, including presumptions which the court can draw,
as well as curtailing normally available remedies, during the trial, to
ensure that the guilty are brought to book, the Act had to be necessarily
given a purpose or objective based interpretation, having regard to its
express words. The courts cannot adopt a doctrinaire approach, by
insisting that proof of intent, where the law does not mandate it, is
required, as that would result in limiting the scope, of the concerned
provision, if not altogether defeating it. In a similar vein, reliance was
placed on the judgments reported as Dineshchandra Jamnadas Gandhi
v State of Gujarat 1989 (1) SCC 420 and Radhey Shyam Khemka v
State of Bihar 1993 (3) SCC 54, Y.S. Parmar v Sri. Hira Sikngh Paul
1959 Supp (1) SCR 213 and Gopaldas Udhavdas Ahuja v Union of India
2004 (7) SCC 33. "
It was further held that :
"70. There is no doubt that Section 13 (1) (d) (iii) differs from other
parts of the Act, not only in structure, but also in substance. The use of
terms such as "habitually accepts" "agrees to accept" "attempts"
"consideration which he knows to be inadequate" "dishonestly or
fraudulently misappropriates.." (property "entrusted" to him or "allows
34
// 35 //
any other person so to do"); "corrupt or illegal" "abusing his position" are
clear pointers to Parliamentary intention that mens rea is essential to be
proved in relation to the offences provided for under Section 13 (1) (a) to
(d) (i) and (ii). Section 13 (1) (d) (iii) contains no such words, which point
to criminal intent. There is substance in the Appellants' arguments that
the Supreme Court had previously interpreted Section 5 (1) (d) so as to
mean the existence of criminal motive (dishonest intent). This was stated
in Narayanan Nambyar's case (supra) as follows:
"The gist of the offence under this clause is, that a public officer
abusing his position as a public servant obtains for himself or for any
other person any valuable thing or pecuniary advantage. "Abuse" means
misuse i.e. using his position for something for which it is not intended.
That abuse may be by corrupt or illegal means or otherwise than those
means. The word "otherwise" has wide connotation and if no limitation is
placed on it, the words "corrupt", "illegal", and "otherwise" mentioned in
the clause become surplus age, for on that construction every abuse of
position is gathered by the clause. So some limitation will have to be put
on that word and that limitation is that it takes colour from the preceding
words along with which it appears in the clause, that is to say something
savouring of dishonest act on his part...."
Similarly, the other cases cited, i.e. S.P. Bhatnagar ("whether the
accused abused their position and acted dishonestly or with a corrupt or
oblique motive") Abdulla Mohammed (supra); A. Wati Ao; C.K.
Damodaran Nair; M. Mohiuddin and R. Balakrishna Pillai (supra) support
this view. In the last decision, it was held that the offence requires
intention, and the offence comprehended an "element of mental state
would be necessary to do a conscious act to get the required result of
pecuniary advantage or to obtain any valuable thing, even if it is for
someone else.."
71. The question is, whether this setting compels the court to hold that
mens rea is, like the other provisions, a necessary prerequisite or pre
condition which the prosecution has to establish, from the conduct of a
public servant. It would also be relevant here to mention that Section 13
(1) (e) appears to be in line with Section 13 (1) (d) (iii) in as much as
there is no pointer to criminal intent. That provision declares that a public
35
// 36 //
servant in possession of pecuniary resources or property which he
cannot satisfactorily account, or which are disproportionate to his known
sources of income is guilty of criminal misconduct. Here, the sources of
income may or may not be connected with the public servant‟s duties;
the emphasis is on inability to satisfactorily account, or that the wealth or
assets held are disproportionate to the servant‟s known sources of
income. If the ingredients of the provision are satisfied, it is not
necessary to prove mens rea. Section 13 (1) (e) enacts that a public
servant is guilty of criminal misconduct:
"(e) if he or any person on his behalf, is in possession or has, at any time
during the period of his office, been in possession for which the public
servant cannot satisfactorily account, of pecuniary resources or property
disproportionate to his known sources of income.
The ingredients which the prosecution has to prove in relation to this
offence, (which is in pari materia with Section 5 (1) (e) of the 1947 Act,
were spelt out in M. Krishna Reddy v State Deputy Superintendent of
Police 1992 (4) SCC 45 as follows:
"To substantiate a charge under Section 5(1)(e) of the Act, the
prosecution must prove the following ingredients, namely, (1) the
prosecution must establish that the accused is a public servant, (2) the
nature and extent of the pecuniary resources or property which were
found in his possession (3) it must be proved as to what were his known
sources of income, i.e. known to the prosecution and (4) it must prove,
quite objectively, that such resources or property found in possession of
the accused were disproportionate to his known sources of income..."
It is clear therefore, that mens rea or criminal intent does not have to be
proved in the case of a charge under Section 13 (1) (e); it is enough for
the prosecution to establish the four ingredients of the offence. As
noticed earlier, the setting of this provision too needs to be taken into
account, along with the legislative history (of Section 5 of the earlier Act,
with its amendments, and the new Section 13 (1) (d) recast in a totally
different manner) -it appears immediately after another offence of
criminal misconduct (Section 13 (1) (d) (iii)) that does not textually allude
36
// 37 //
to or require intent, or mens rea.
72. A multitude of precedents was relied upon by Counsel on either
side, to deal with the question. The Supreme Court, noticing most of the
earlier decisions, on the issue, and also the approach adopted by Courts
in England, said, in Nathulal v. State of M.P., AIR 1966 SC 43 that:
"....it is a sound rule of construction adopted in England and also
accepted in India to construe a statutory provision creating an offence in
conformity with the common law rather than against it unless the statute
expressly or by necessary implication excluded mens rea. The mere fact
that the object of the statute is to promote welfare activities or to
eradicate a grave social evil is by itself not decisive of the question
whether the element of guilty mind is excluded from the ingredients of an
offence. Mens rea by necessary implication may be excluded from a
statute only where it is absolutely clear that the implementation of the
object of the statute would otherwise be defeated. The nature of the
mens rea that would be implied in a statute creating an offence depends
on the object of the Act and the provisions thereof: see Srinivas Mall
Bairoliya v. KingEmperor 1947 ILR (26) Pat 460 (PC), Ravula
Hariprasada Rao v. State 1951 SCR 322 and Sarjoo Prasad v. State of
Uttar Pradesh 1961 (3) SCR 324. Most of the relevant English decisions
on the subject were referred to in the judgment of this Court in State of
Maharashtra v. Mayer Hans George AIR 1965 SC 722. How to disprove
mens rea has been succinctly stated in Halsbury's Laws of England, 3rd
Edn., Vol. 10, at p. 283, thus:
"When the existence of a particular intent or state of mind is a necessary
ingredient of the offence, and prima facie proof of the existence of the
intent or state of mind has been given by the prosecution, the defendant
may excuse himself by disproving the existence in him of any guilty intent
or state of mind, for example, by showing that he was justified in doing
the act with which he is charged, or that he did it accidentally, or in
ignorance, or that he had an honest belief in the existence of facts
which, if they had really existed would have made the act an innocent
one. The existence of reasonable grounds for a belief is evidence of the
honesty of that belief."
37
// 38 //
One key element to construing a statute is the object it wishes to
advance, and the mischief it wishes to address itself to. In this regard, it
would be useful to recollect the five judge decision in R.S. Nayak v. A.R.
Antulay 1984 (2) SCC 183 where the Supreme Court commented on the
object of the 1947 Act:
"The 1947 Act was enacted, as its long title shows, to make more
effective provision for the prevention of bribery and corruption.
Indisputably, therefore, the provisions of the Act must receive such
construction at the hands of the court as would advance the object and
purpose underlying the Act and at any rate not defeat it. If the words of
the statute are clear and unambiguous, it is the plainest duty of the court
to give effect to the natural meaning of the words used in the
provision..."
Now, the absence of any words or terms in Section 13 (1) (d) (iii) cannot
drive the Court to hold that proof of criminal intention is a sine qua non
for conviction of an accused. This is one instance where the object of the
enactment, the purpose which it seeks to achieve, and the prevailing
social evil which is sought to be erased become important. In this
context, the need for such purposive approach, rather than adopting a
"liberal" approach, based on the doctrine that every offence carries
within it the presumption that mens rea is a necessary ingredient, was
emphasized in his inimitable style by Krishna Iyer, J, in Murlidhar
Meghraj Loya v. State of Maharashtra, (1976) 3 SCC 684: the Supreme
Court observed:
"It is trite that the social mission of Food Laws should inform the
interpretative process so that the legal blow may fall on every adulterator.
Any narrow and pedantic, literal and lexical construction likely to leave
loopholes for this dangerous criminal tribe to sneak out of the meshes of
law should be discouraged. For the new criminal jurisprudence must
depart from the old canons, which make indulgent presumptions and
favoured constructions benefiting accused persons and defeating
criminal statutes calculated to protect the public health and the nation's
wealth."
38
// 39 //
More than a decade later, similar views were echoed - this time by
Venkatachalaiah, J in Dineshchandra Jamnadas Gandhi v. State of
Gujarat, (1989) 1 SCC 420:
"In Criminal Law by J.C. Smith & Brian Hogan, (5th Edn.), referring to
offences in their social context the authors say:
"The courts are greatly influenced in their construction of the statute by
the degree of social danger which they believe to be involved in the
offence in question. They take judicial notice of the problems with which
the country is confronted. The greater the degree of social danger, the
more likely is the offence to be interpreted as one of strict liability.
Inflation, drugs, road accidents and pollution are constantly brought to
our attention as pressing evils; and in each case the Judges have at
times invoked strict liability as a protection for society."
73. Having regard to the previous history of the statute, the
amendments to the 1947 Act, its avowed objects and the distinctive
structure which Parliament adopted consciously, under the 1988 Act,
despite being aware of the preexisting law, as well as the decisions of
the Court the conclusion which this Court draws is that mens rea is
inessential to convict an accused for the offence under Section 13 (1) (d)
(iii). It would be sufficient if the prosecution proves that the public servant
"obtains" by his act, pecuniary advantage or valuable thing, to another,
without public interest. The inclusion of public interest, in the opinion of
the Court, tips the scale in favour of a construction which does not
require proof of mens rea. There can be many acts of a public servant,
which result in pecuniary advantage, or obtaining of a valuable thing to
someone else; typically these may relate to payment of royalty, grant of
license or concessions, issuance of permits, authorizations, etc. Yet,
such grants, concessions, or other forms of advantages to third parties
would not criminalize the public servant‟s actions, so long as they have
an element of public interest. They (acts of the public servant) are
outlawed, and become punishable, if they are "without public interest".
74. Having now settled the true interpretation of whether the offence
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// 40 //
under Section 13 (1) (d) (iii) requires proof of mens rea, it would now be
vital to settle what really the prosecution would have to establish to say
that the public servant‟s actions or decisions, which result in a third
party obtaining a pecuniary advantage or valuable thing, without public
interest."
6.1 It is also pertinent to mention here that in this case, Hon'ble High
Court has particularly pointed out that public servants are an entirely different
class, and the level of trust reposed in them by the society is reflected in the high
standards of behaviour and rectitude expected of them, both in the discharge of
their duties, and otherwise. It was further held that if the public servants acts in a
manner that is devoid of public interest, not only would the action become
suspect, the public servant will also be said to have transgressed the bounds of
protection afforded to his decisions, and is then exposed to prosecution. The
Hon'ble High Court specifically held that when a public servant's decision exhibits
complete and manifest disregard to public interest with the corresponding result
of a third party obtaining pecuniary advantage or valuable thing, he is fastened
with responsibility for "criminal misconduct" under Section 13 (1) (d) (iii). It is
relevant to note here the findings of the Hon'ble High Court in Sukhram Vs. CBI,
Crl. A. 536/2002 decided on 21.12.2011, which are as follows :
"79. What then is the behaviour or act which attracts such opprobrium
as to result in criminal responsibility? It is not every act which results in
loss of public interest, or that is contrary to public interest, that is a
prosecutable offence. There can be no doubt that all acts prejudicial to
public interest, can be the subject matter of judicial review. In those cases,
courts consider whether the decision maker transgressed the zone of
reasonableness, or breached the law, in his action. However, it is only
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// 41 //
those acts done with complete and manifest disregard to the norms, and
manifestly injurious to public interest, which were avoidable, but for the
public servant‟s overlooking or disregarding precautions and not heeding
the safeguards he or she was expected to, and which result in pecuniary
advantage to another that are prosecutable under Section 13(1) (d) (iii). In
other words, if the public servant is able to show that he followed all the
safeguards, and exercised all reasonable precautions having regard to the
circumstances, despite which there was loss of public interest, he would
not be guilty of the offence. The provision aims at ensuring efficiency, and
responsible behaviour, as much as it seeks to outlaw irresponsibility in
public servant‟s functioning which would otherwise go unpunished. The
blameworthiness for a completely indefensible act of a public
servant, is to be of such degree that it is something that no
reasonable man would have done, if he were placed in that position,
having regard to all the circumstances. It is not merely a case of
making a wrong choice; the decision should be one such as no one
would have taken.
...
81. As noticed previously, the silence in the statute, about the state of mind, rules out applicability of the mens rea or intent standard, (i.e. the prosecution does not have to prove that the accused intended the consequence, which occurred or was likely to occur). Having regard to the existing law Section 13 (1) (e) (which does not require proof of criminal intent) as well as the strict liability standards prevailing our system of law, therefore, a decision is said to be without public interest, ( if the other requirements of the provision, i.e. Section 13 (1) (d) (iii) are fulfilled) if that action of the public servant is the consequence of his or her manifest failure to observe those reasonable safeguards against detriment to the public interest, which having regard to all circumstances, it was his or her duty to have adopted.
83. The test this Court has indicated is neither doctrinaire, nor vague; it is rooted in the Indian legal system. A public servant acts without public interest, when his decision or action is so unreasonable that no reasonable man, having regard to the entirety of circumstances, would have so acted; it may also be that while deciding or acting as he does, he may not intend the consequence, which ensues, or is 41 // 42 // likely to ensue, but would surely have reasonable foresight that it is a likely one, and should be avoided. To put it differently, the public servant acts without public interest, if his action or decision, is by manifestly failing to exercise reasonable precautions to guard against injury to public interest, which he was bound, at all times to do, resulting in injury to public interest."
7.0 I have gone through the statement of LW1 Sh. KC Aggarwal who also worked as competent authority. In his statement u/S.161 Cr.P.C., Sh. KC Aggarwal stated that A1 SS Rathore did not seem to have examined whether the persons who had sold the land to the declarants filed a return u/S.6 and whether notification u/S.10(1) was issued in respect of the land. Hence, the assessment had been done without ensuring that the title has validly passed from sellers to the declarants. Sh. KC Aggarwal also stated that declarants were taking contradictory stands which should have attracted suspicion of any person with ordinary prudence. The declarants were claiming to have acquired land through sale deeds which mention the land as agricultural whereas they themselves were seeking assessment under Urban Land Ceiling Act indicating thereby that they themselves were treating the land as an agricultural land. The prosecution has also based its case primarily on the ground that in order to give effect to the provisions of ULCR Act, it was just and proper to lift the corporate veil of the different companies and club their holdings alongwith that of their Directors and thereafter, the assessment should have been made. The competent authority allowed the declarants to take undue advantage of legal technicalities by giving the benefit of separate entity to each company. Sh. KC Aggarwal has also pointed 42 // 43 // out in his statement the various misrepresentations in the application filed before the competent authority.
It is also pertinent to mention here that List witness (LW) 48 Smt. Nirmala Gupta, Advocate has stated that as per the procedure, competent authority should have issued a draft statement u/S.8 of ULCRA to the applicants, but in this case no such statement was issued. She also stated that as per the file, the competent authority had issued a notice dated 06.09.95 to M/s. Chavan Rishi, Build Well, Pvt. Ltd. for furnishing any other original document for hearing on 21.09.95 but no such notice was issued to other companies or other persons. Witness stated that it may be possible that competent authority was acquainted with the applicants. This prosecution witness also stated that she was not knowing that any court case regarding title of this case between DDA and Ram Piari is pending when NOCs was applied from competent authority. She stated that if she would have known this fact then she would have mentioned the same in her statement u/S.6(1) of ULCR Act and the competent authority would not have given the NOC to the declarants and companies as the land for which the NOC was required was not legally transferred to them and they were not the owner of this land. It also came in the testimony of this witness that she was not told that any exemption u/S.19(VII) of ULCR Act was earlier granted on this land in the year 1991 and had this fact have been known to her she would have mentioned the same in the statement u/S.6(1) of ULCR Act and exemption would have been withdrawn and other provisions of this act would have been applicable.
This court is of the considered opinion that act of A1 SS Rathore in 43 // 44 // the present case prima facie falls within the purview of S.13(1)(d)(iii) of POCA, 1988.
7.1 The accused persons have also been chargesheeted for offence u/S.120B IPC. The offence of conspiracy has been defined u/S.120A IPC , which reads as under :
"120A. Definition of criminal conspiracy - When two or more persons agree to do, or cause to be done,
1. an illegal act, or
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 such agreement in pursuance thereof.
The elements of a criminal conspiracy have been stated to be :
a) an object to be accomplished ;
b) a plan or scheme embodying means to accomplish that object ;
c) an agreement or understanding between two or more of the accused persons whereby they become definitely committed to cooperate for the accomplishment of the object by the means embodied in the agreement, or by any effectual means ; and
d) in the jurisdiction where the statute required an overt act.
In E.G. Barsay Vs. State of Bombay, AIR 1961 SC 1762, which was later on followed and affirmed in several other cases, it was held that 44 // 45 // evidence of criminal conspiracy is hard to come by. The accused persons entered into a conspiracy are not expected to commit themselves in writing, nor are all conspirators necessarily aware of the entire plan which may be known only to handful.
The plea of the Ld. Counsel for accused persons that offence of cheating is not made out does not bear any force. A3 & A4 in conspiracy with A1 has prima facie furnished false information on the record which resulted into wrongful loss to the government and wrongful gain to the accused persons. 7.2 I have gone through the judgments cited by the Ld. Counsel for the accused persons. Ld. Defence counsels have mainly emphasized upon the facts that in absence of any evidence regarding mensrea on the part of accused persons, charge u/S.13(1)(d) of POCA, 1988 cannot be framed. The perusal of judgment cited by Ld. Defence counsels indicate that most of the judgments cited by Ld. Defence counsels are prior to the amendment of POCA, 1988, after insertion of S.13(1)(d)(iii) of POCA, 1988. I have found authoritative pronouncement of Hon'ble High Court in Sukhram's case (supra), which has left no ambiguity and laid down a clear law that for framing a charge u/S.13(1)(d)(iii), the mensrea is not required. In the circumstances, the judgments cited by Ld. Defence counsel for accused persons on this point are respectfully distinguished on the facts and circumstances of the case. Similarly, the contention of Ld. Defence counsels for accused persons that impugned order was passed by A1 SS Rathore in good faith and in due care, is a matter of trial and no findings can 45 // 46 // be written at this stage.
7.3 The repeal of ULCRA will also not effect the present case as the charges have been proposed to be framed under IPC.
Before parting with, the court must record its appreciation for the able assistance of Ld. Counsels for accused persons and Ld. PP for CBI who during the course of marathon arguments enlightened the court of many legal aspects and cited landmark judgments which helped the court in reaching the conclusions.
8.0 Thus, in the facts and circumstances, in view of the discussions made herein above, I consider that prima facie case u/S.120B IPC r/w S.13(1)
(d)(iii) r/w S.13(2) of POCA, 1988 and S.420 IPC is made out against the accused persons.
A1 SS Rathore is also to be charged for the offence u/S.13(1)(d)
(iii) r/w S.13(2) of POCA, 1988.
Accused persons be also charged for the substantive charge u/S.420 IPC.
Charges be framed accordingly.
Announced in the open court (Dinesh Kumar Sharma)
on 10.05.2013 Spl. Judge (PC Act) : CBI
Saket Courts : New Delhi.
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