Delhi District Court
Cbi vs . Ashok Chaudhary & Ors. on 9 November, 2011
IN THE COURT OF SH.R P PANDEY; SPECIAL JUDGE01 (CBI)
ROHINI COURTS:DELHI
CBI No.25/08
CBI Vs. ASHOK CHAUDHARY & ORS.
(SUMAN CGHS)
Date of filing applications : 25/11/09
Reserved for Order : 02/11/11
Date of Order : 09/11/11
ORDER
By this order I shall dispose of application moved by accused/S.P.Saxena(Accused no.11) under section 173(8) Cr.PC for re investigation in the absence of compliance of statutory provisions of law in the present charge sheet and another application u/s 63(3) of Delhi Cooperative Societies Act, 1972.
2. Reply was filed by CBI and accordingly after completion of pleadings CBI CASE NO.25/08 CBI VS.ASHOK CHAUDHARY & ORS. Page No.1 of 14 qua both the applications of accused S.P.Saxena the same were heard and matter was reserved for order for today.
3. I have heard the accusedapplicant S.P.Saxena in person and Sh.J.S.Wadia, Ld. Special Public Prosecutor for CBI. I have also perused the written arguments filed by accusedapplicant.
4. It has been submitted by accused that he is seeking re investigation/further investigation of the matter u/s 173(8) in the absence of non compliance of the statutory provisions by CBI in filing the charge sheet. He has relied upon Judgment cited as Dr.R.R.Kishore Vs. CBI 2006 VIII AD (Delhi) 545 wherein it was observed by Hon'ble High Court that if illegal investigation is brought to the notice of the trial court at the initial stages then the court ought not to proceed with the trial and be a mute spectator to the illegality and contravention of a mandatory provision but should direct reinvestigation so that the defect in investigation is cured. In the said case it was found by Hon'ble High Court that CBI had contravened the provisions of section 6A (1) of Delhi Special Police Establishment Act , 1946 (for short referred to as DSPE Act)which provides that for carrying out investigation of an employee of central Government of the level of Joint Secretary and above, prior approval of the CBI CASE NO.25/08 CBI VS.ASHOK CHAUDHARY & ORS. Page No.2 of 14 Central Government to conduct such an enquiry or trial is necessary. It is not the case of accusedapplicant S.P.Saxena that he is a public servant of the rank specified under DSPE Act, rather he is a private person and hence he has failed to demonstrate that the provisions of section 6 A (1) of DSPE Act are applicable to him or that the same have been contravened by the CBI.
5. The applicant has submitted that there is a special Act namely Delhi Cooperative Societies Act, 1972 ( in short referred to as DCS Act) which provides procedure for registration of complaint and prosecution for contravention of provisions of the said Act under section 82 & 83 of DCS Act and that section 83(2) of the said Act provides that no prosecution shall be instituted under the Act without previous sanction of the Registrar of Cooperative Society. In this respect it is worthwhile to note that prosecution is not under the provisions of DCS Act hence there is no question of taking previous sanction of the Registrar of Cooperative Society for prosecution in the present matter.
6. Rather I find force in the submissions of Ld.Public Prosecutor for CBI that since in the instant case accused persons including the accused applicant S.P.Saxena were charge sheeted for the commission of offence of criminal conspiracy, impersonation, cheating, forgery for the purpose of CBI CASE NO.25/08 CBI VS.ASHOK CHAUDHARY & ORS. Page No.3 of 14 cheating and using as genuine forged documents knowing it to be forged and criminal misconduct punishable u/s 120B r/w section 419/420/468/471 IPC and section 13(2) r/w Section 13 (1)(d) of Prevention of Corruption Act, 1988 (for short referred to as PC Act) which are no where defined under DCS Act, 1962 nor there is any provision in the said Act which put any bar to proceed under IPC and PC Act, 1988 and hence there is no force in the submission of accused applicant that the prosecution of accused person in this case is barred by the provisions of DCS Act, 1972. Ld.Special Public Prosecutor has relied upon an order of Hon'ble High Court dated 17.09.07 passed in Criminal (M)No. 2784/2007 wherein Hon'ble High Court had observed as under: "Investigation is done by police under Cr.P.C. There is no such thing as investigation under Delhi Cooperative Societies Act. In fact lot of bungling, corruption and registration of fake societies as found and the entire episode was investigated. Therefore, after investigation, the chargesheet had to be filed by CBI in respect of all those crimes, commission of which was revealed. It is also settled law that an act of accused may attract offences under different penal provisions and he can be charged under all such penal provisions".
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7. Thus there is no force in the submissions of accusedapplicant that provisions of DCS Act, 1972 bar applicability of IPC and PC Act.
8. The accused has also relied upon a Judgment of Constitutional Bench in Dhulabhai Vs. State of M.P.& another AIR 1969 SC 78 to submit that statute gives finality to the orders of special tribunals and, therefore, the civil court's jurisdiction must be held to be excluded if there is adequate remedy to do what the civil courts would normally do in a suit.
9. On the basis of this Judgment the accusedapplicant has tried to agitate that Registrar of Cooperative Society is a tribunal and therefore, the jurisdiction of this court is barred by virtue of Judgment of Hon'ble Supreme Court in Dhulabhai's case. In fact such an argument is mischievous because it is not the spirit of Judgment of Hon'ble Supreme Court in Dhulabhai's case to bar the jurisdiction of criminal courts.
10. The accused has relied upon a Judgment of Hon'ble High Court in Sanjay Vs. State 2009 (109) DRJ 594 in which Hon'ble High Court had observed that cognizance of offence can be taken by the Magistrate only on the CBI CASE NO.25/08 CBI VS.ASHOK CHAUDHARY & ORS. Page No.5 of 14 basis of complaint filed by authorized officer. The facts of the above case were materially different and moreover in this case the FIR was registered on the basis of directions passed by Hon'ble High Court. Hence there is no question of any formal complaint by the Hon'ble High Court as the High Court and the Supreme Court, while passing directions under Article 226 or 32 of Constitution of India, do no give any written complaint for registration of a case. Even sanction of the Government under DSPE Act, 1946 is not required where the direction has been given by the court to CBI to conduct the investigation as it is well settled (Sampanth Vs. State of Haryana (1993) 1 SCC 561). In this respect the matter stands finally settled by the Judgment of Constitution bench of Supreme Court in State of West Bengal & Others Vs. Committee for Protection of Democratic Rights CA No.624950/2001 decided on 17.02.10 wherein Hon'ble Supreme Court has observed as under:
44.Thus, having examined the rival contentions in the context of the Constitutional Scheme, we conclude as follows:
(i) The fundamental rights, enshrined in Part III of the Constitution, are inherent and cannot be extinguished by any Constitutional or Statutory provision. Any law that abrogates or abridges such rights CBI CASE NO.25/08 CBI VS.ASHOK CHAUDHARY & ORS. Page No.6 of 14 would be violative of the basic structure doctrine. The actual effect and impact of the law on the rights guaranteed under Part III has to be taken into account in determining whether or not it destroys the basic structure.
(ii) Article 21 of the Constitution in its broad perspective seeks to protect the persons of their lives and personal liberties except according to the procedure established by law. The said Article in its broad application not only takes within its fold enforcement of the rights of an accused but also the rights of the victim. The State has a duty to enforce the human rights of a citizen providing for fair and impartial investigation against any person accused of commission of a cognizable offence, which may include its own officers. In certain situations even a witness to the crime may seek for and shall be granted protection by the State.
(iii) In view of the constitutional scheme and the jurisdiction conferred on this Court under Article 32 and on the High Courts under Article 226 of the Constitution the power of judicial review being an integral part of the basic structure of the Constitution, no Act of Parliament CBI CASE NO.25/08 CBI VS.ASHOK CHAUDHARY & ORS. Page No.7 of 14 can exclude or curtail the powers of the Constitutional Courts with regard to the enforcement of fundamental rights. As a matter of fact, such a power is essential to give practicable content to the objectives of the Constitution embodied in Part III and other parts of the Constitution. Moreover, in a federal constitution , the distribution of legislative powers between the Parliament and the State Legislature involves limitation on legislative powers and, therefore, this requires an authority other than the Parliament to ascertain whether such limitations are transgressed. Judicial review acts as the final arbiter not only to give effect to the distribution of legislative powers between the Parliament and the State Legislatures, it is also necessary to show any transgression by each entity. Therefore, to borrow the words of Lord Steyn, judicial review is justified by combination of "the principles of separation of powers, rule of law, the principle of constitutionality and the reach of judicial review".
(iv) If the federal structure is violated by any legislative action, the Constitution takes care to protect the federal structure by ensuring that Courts act as guardians and interpreters of the Constitution and provide remedy under Articles 32 and 226, whenever there is an CBI CASE NO.25/08 CBI VS.ASHOK CHAUDHARY & ORS. Page No.8 of 14 attempted violation. In the circumstances, any direction by the Supreme Court or the High Court in exercise of power under Article 32 or 226 to uphold the Constitution and maintain the rule of law cannot be termed as violating the federal structure.
(v) Restriction on the Parliament by the Constitution and restriction on the Executive by the Parliament under an enactment, do not amount to restriction on the power of the Judiciary under Article 32 and 226 of the Constitution.
(vi) If in terms of Entry 2 of List II of The Seventh Schedule on the one hand and Entry 2A and Entry 80 of List I on the other, an investigation by another agency is permissible subject to grant of consent by the State concerned, there is no reason as to why, in an exceptional situation, court would be precluded from exercising the same power which the Union could exercise in terms of the provisions of the Statute. In our opinion, exercise of such power by the constitutional courts would not violate the doctrine of separation of powers. In fact, if in such a situation the court fails to grant relief, it would be failing in its constitutional duty.
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(vii) When the Special Police Act itself provides that subject to consent by the State, the CBI can take up investigation in relation to the crime which was otherwise within the jurisdiction of the State Police, the court can also exercise its constitutional power of judicial review and direct the CBI to take up the investigation within the jurisdiction of the State. The power of the High Court under Article 226 of the Constitution cannot be taken away, curtailed or diluted by Section 6 of the Special Police Act. Irrespective of there being any statutory provision acting as a restriction on the powers of the Courts, the restriction imposed by Section 6 of the Special Police Act on the powers of the Union, cannot be read as restriction on the powers of the Constitutional Courts. Therefore, exercise of power of judicial review by the High Court, in our opinion, would not amount to infringement of the either the doctrine of separation of power or the federal structure.
45. In the final analysis, our answer to the question referred is that a direction by the High Court, in exercise of its jurisdiction under Article 226 of the Constitution, to the CBI to investigate a cognizable offence CBI CASE NO.25/08 CBI VS.ASHOK CHAUDHARY & ORS. Page No.10 of 14 alleged to have been committed within the territory of a State without the consent of that State will neither impinge upon the federal structure of the Constitution nor violate the doctrine of separation of power and shall be valid in law. Being the protectors of civil liberties of the citizens, this court and the High Courts have not only the power and jurisdiction but also an obligation to protect the fundamental rights, guaranteed by Part III in general and under Article 21 of the Constitution in particular, zealously and vigilantly.
11. It has been further argued by accusedapplicant that in Hasanbhai Valibhai Qureshi Vs. State of Gujarat & Ors., AIR 2004SC2078, it was held by Hon'ble Supreme Court that if further investigation is warranted in a particular case the hands of the investigating agency or the court should not be tied down on the ground that further investigation may delay the trial, as the ultimate object is to arrive at the truth. I find that this is law laid down by Hon'ble Supreme Court which is applicable to the court and investigating agency but it does not provide that an accused can claim further investigation or demand re investigation in the matter as a matter of right. In this respect I am in agreement CBI CASE NO.25/08 CBI VS.ASHOK CHAUDHARY & ORS. Page No.11 of 14 with the Ld. Special Public Prosecutor for CBI who has relied upon Judgment of Hon'ble Allahabad High Court in Shyam Charan Vs. State of U.P.(1990 UP Cr.R 81) wherein Hon'ble Allahabad High Court has observed that neither the prosecution, i.e. informant nor the accused can claim as a matter of right, a direction from a Court, commanding further investigation by the Investigating Officer under Subsection (8) of Section 173 after a chargesheet was filed after investigation.
12. The accused has also relied upon Judgment of 2000 AIR (SC) 937 ; AIR 1961 SC 1170 ; 2008(2) SCALE 717, 2008 (13) SCALE 71 but I find that none of these authorities are of any help to accusedapplicant.
13. It has been further submitted by accusedapplicant that in one SLP (C) No.7637/2006 dated 04.08.2006 titled as Chinar CGHS Ltd. Vs. DDA & Ors. It was held by Hon'ble Supreme Court that there shall not be any registration of criminal cases without leave of the High Court but this order has been violated by the CBI.
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14. On careful perusal of the above referred order I find that it was specific direction in respect of that particular case i.e. in the case of Chinar CGHS Ltd. and not a general direction in respect of all cases of CGHS in which FIR was registered by CBI on directions of Hon'ble High Court.
15. Thus, I find that there is no merit in the application of accused applicant praying for re investigation into the matter by CBI by virtue of section 173(8) of Cr.PC and I am of the view that the application has been filed only in order to delay the speedy trial of the case as the court has not even been able to proceed with the arguments on charge due to filing of number of such applications by accused persons who are more interested in holding up the proceedings of the case rather than its speedy trial.
16. As regards the application of accusedapplicant S.P.Saxena u/s 63(3) of DCS Act, he has submitted that since Registrar of Cooperative Societies is a Judge under DCS Act and rules, therefore, his order for revival of Suman CGHS cannot be questioned in any other court except the Cooperative Tribunal which could be constituted under order 8 of DCS Act. He has also relied upon Judgment of Constitution of Hon'ble Supreme Court in Dhulabhai's case (Supra). In this respect the issue has already been deleberated while CBI CASE NO.25/08 CBI VS.ASHOK CHAUDHARY & ORS. Page No.13 of 14 discussing his previous application and hence there is no need of adverting to the same issue again and it is sufficient to clarify that in these criminal proceedings accused persons have been charge sheeted for criminal offences committed by them under IPC and PC Act and the court is not sitting over in appeal against the order of revival passed by RCS under DCS Act, 1972. The instant application is also devoid of any merit and same is also liable to be dismissed.
17. Thus, the court has come to the conclusion that both the applications of accusedapplicant are bereft of any merit and have been filed only in order to delay the speedy trial of the case. Both the applications are,therefore, dismissed with costs of Rs.7,000/each on accusedapplicant S.P.Saxena to be deposited by him with DLSA within 15 days.
ANNOUNCED IN THE OPEN (R.P.PANDEY )
COURT ON 09/11/11 SPL.JUDGE CBI(1)
ROHINI COURTS : DELHI
CBI CASE NO.25/08
CBI VS.ASHOK CHAUDHARY & ORS. Page No.14 of 14