Delhi District Court
Present vs . on 5 February, 2007
IN THE COURT OF SHRI GP MITTAL : SPECIAL
JUDGE: DELHI.
Ashok KumarAggarwal.
Versus.
1. Central Bureau of Investigation.
2. Shri Neeraj Kumar, Jt.Director,CBI.
3. Shri Ramneesh, DSP, CBI.
4. Interpol, Singapore.
5. Interpol, Delhi.
RC No. S18/E-0001/99 /SIU-VIII)
CC 26 of 2002.
-.-.-.-.-.
Present: Applicant in person Shri Ram Jethmalani, Senior
advocate alongwith Ms. Lata Krishnamurthy, advocate for
the applicant.
Shri. Dayan Krishnan, advocate Special Counsel
on behalf of Respondents no.1 to 3.
ORDER
1. By virtue of this order, I propose to dispose of the prayer III in the application dated 1.6.2001 preferred by the applicant for filing appropriate complaint U/s 340 Cr.PC and for making a reference to the Hon'ble High Court for taking cognizance of the contempt U/s. 15 of the Contempt of Courts Act 1971. The notice of the application was ordered to be issued only to respondent no 2 and 3 by the then Ld. Special Judge vide his order dated ???. The application came to be decided by the Learned Special Judge, Delhi vide his order dated 14.2.2002. It was held that there was no material before the court to reach to a conclusion even prima feaci that CBI had not acted bonafidely or that the fax message dated 29.12.99 had been procured by it or that the fax message had been fabricated at the instance of the respondents. Feeling aggrieved, the applicant preferred Criminal Appeal No.199 of 2002. The same was disposed off vide order dated 16.12.2005 passed by the Hon'ble High Court. In fact, pursuant to the orders dated 11.11.2005 passed by the Hon'ble Delhi High Court an affidavit of Mr. Rajiv Kumar Chadha, had been filed on behalf of Respondent no.5 and alongwith the affidavit authenticated copies dated 7.12.2005 of Interpol Singapore Communication dated 29.12.99 ; 7.1.2000 and 12.1.2000 had also been filed. One letter dated 7.12.2005 from Interpol Singapore addressed to First Secretary, High Commission, Singapore was also filed. Shri Ram Jethmalani, Learned Senior Counsel on filing of the above mentioned documents was satisfied with regard to the authentication/certification of the documents received by Interpol India from their counterpart of Singapore. The appeal under section 341 Cr.P.C. was therefore not pressed and the appeal was accordingly disposed off so far as the application U/s. 340 Cr.PC was concerned.
2. The Hon'ble Delhi High Court however observed that there was another prayer in Sub Para II of Para 5 for initiating appropriate action under the Contempt of Courts Act against the respondents for misappropriation, suppression and concealment of relevant and essential facts during the course of judicial proceedings. The order dated 14.2.2002 passed by the learned Special Judge had not addressed the said question. The appeal was accordingly disposed off with the directions to the Special Judge to hear the parties on the application dated 1.6.2001 filed by the applicant so far as it related to the prayer for initiating contempt proceedings. That is how the parties are again before this court.
3. The Learned Special Judge in its order dated 14.2.2002 had mentioned in detail the facts of the case leading to the filing of the instant application containing the prayer for initiation of contempt proceedings against the respondents. Since the genuineness of the sending of the communication dated 29.12.99; 7.1.2000 and 12.1.2000 by Interpol Singapore to their counterpart in India is not in dispute, I shall not be going into the facts in detail and shall simply go into the circumstances after 12.1.2000 when the remand application of the applicant came to be considered by the learned Special Judge. I may in brief give the backdrop leading to the filing of the application under consideration of this court.
4. An FIR bearing no. S/8 of 1999 was registered by the CBI on 29.1.99, on the basis of the complaint of one Subhash Chand Barjatya. During investigation, a needle of suspicion was raised against the applicant. The passport of the applicant was seized on 4.3.99. Statement of co-accused Abhishek Verma, who later turned approver implicating the applicant was recorded on 4.12.99. A look out notice was issued against the applicant to the Interpol on 15.12.99 as according to the CBI the applicant had absconded after recording the statement of co-accused Abhishek Verma. The applicant was arrested from Sarahanpur on 23.12.99 where he was staying in the assumed name of Ravi Garg. The applicant was produced before Learned Special Judge on 24.12.99. He was remanded to police custody up to 31.12.99. The bail application of applicant came up for hearing on 4.1.2000, when the communication dated 29.12.99 received from Interpol , Singapore was produced before the Learned Special Judge. According to the communication received from the Interpol, the applicant had visited Singapore from 10.2.99 to 14.2.99 . The bail application of the applicant was dismissed vide order dated 6.1.2000. I would like to extract para 6 of the order hereunder for ready reference:-
"I have carefully considered the submissions made on behalf of respective parties and perused the case diaries. There is prima facie evidence on the record to link the petitioner with the present conspiracy. Co- accused Abhishek Verma in his confessional statement has categorically stated that petitioner has taken Rs.10 lakhs as bribe from him in connection with the above said matter. Moreover, the conduct of the accused during investigation is such that a possibility cannot be ruled out that in the event of release on bail he may abscond from law. So far as plea of bail on the principle of parity is concerned, I am of the view that aforesaid plea is not available to the applicant, firstly because co accused has not been released by the orders of the court; secondly the petitioner accused is a public servant and there is serious allegations against him of having accepted bribe of Rs.10 lakhs from co-accused Abhishek Verma. Besides that, there is evidence on the record to suggest that during investigation petitioner has tried to avoid his arrest and he even absconded and stayed in a hotel at Saharanpur under assumed name to defeat the process of law."
5. It has been urged by Shri Ram Jethmalani, Learned Senior Counsel that the applicant was declined bail mainly on the ground that the applicant could flee from justice as he was in possession of a second passport. He argues that anybody could have got that apprehension if a person is in possession of more than one passport, but since the factum of the communication dated 29.12.99 received from Interpol Singapore was found to be not genuine vide a reply dated 7.1.2000 received from Interpol Singapore by Interpol India and in turn received by the CBI and then second communication dated 12.1.2000 from Interpol Singapore to Interpol Delhi confirming that in fact there existed no entry or exit reflecting the visit of accused herein to Singapore, this fact should have been brought to the notice of learned Special Judge by the concerned CBI Officers at the time the remand application was moved particularly when the accused had submitted an affidavit which was duly treated as sworn affidavit by the learned Special Judge that in fact the information that applicant had visited Singapore from 10th to 14th February was not correct. It has been submitted that the CBI Officers kept a stoic silence till the second bail application dated 25.1.2000 came up for hearing before the Learned Special Judge. The Learned Senior Counsel has taken me through para 2 and para 5 of the second bail application and its reply filed by Dy. S.P. Ramnish of the CBI . It has been specifically stated by the applicant that the paramount consideration which weighed in the mind of the court for refusing bail earlier was that the applicant had visited Singapore from 10.2.99 to 14.2.99 on a duplicate passport, whereas in fact the applicant had not left India throughout the said period and had been provided with a personal security guard round the clock by Delhi Police. It has been urged that in reply to these paragraphs it was not specifically stated by the CBI that the communication received from Interpol Singapore that the applicant had entered Singapore on 10.2.99 till 14.2.99 was not correct. It has been urged that this silence for 15 days after 13.1.2000 would amount to misrepresentation by the CBI Officers and hence they are liable for committing contempt of court. The learned Senior Counsel has referred to Amar Nath Sawan Mal...vs...Joginder Singh and others, AIR 1961 Punjab 18, wherein it was held that making of a false affidavit by Sub Inspector of Police by way of reply to a Writ of Habeas Corpus to the effect that the alleged detenu is not in their custody resulting into dismissal of Writ Petition is an act committed by a police officer to obstruct and impede the administration of justice and is punishable as Contempt of Court. Reliance is placed on Narain Dass.vs.Govt. of M.P. and others, AIR 1974 SC 1252 , where it was held that if a wrong statement is deliberately and willfully made by a party to litigation with a view to obtain a favourable order it would prejudice or interfere with the due course of judicial proceedings and thus amounts to Contempt of Court.
6. On the other hand, it has been submitted by Shri Dayan Krishnan, Learned Special Counsel on behalf of the respondents that while moving the application for extension of judicial remand on 13.1.2000, there is absolutely no averment by the CBI that the applicant is likely to flee the country or that he had traveled to Singapore on a duplicate passport. The Learned Special Counsel has taken me through the application for extension of judicial custody particularly para 7 and 9 of the application where the ground for extension of remand is that the applicant has attempted to influence and intimidate Subhash Chand Barjatya and Abhishek Verma. It had further been stated that the applicant was still pressurising Abhishek Verma to retract his statement U/s. 164 Cr.P.C. It had been further stated in the application that the applicant had not gone on any pilgrimage(as was stated by him in his application for earned leave) and that he had been arrested by the CBI on 23.12.99 from Hotel Taj, Saharanpur, where he was staying under an assume name of Ravi Garg by giving a fake address of Chandigarh.
7. The learned Special Counsel for the Respondents has further submitted while referring to the reply to the application filed by Respondents No.2 and 3 that the affidavit which the applicant claims to have produced at the time of hearing remand application was in fact produced by him after the remand application had been disposed off and the accused had been lodged in the judicial lockup at Tis Hazari courts. It has been submitted that the applicant was again brought from the judicial lock up and without there being presence of any CBI Officer in the court, the affidavit was produced. It has been submitted that while an accused is in judicial custody, the CBI Officer is not competent to accompany him either to the lock up or from lock up to the court unless there is any specific cause for the same. It has been pointed out that Dy.SP Ramneesh , IO of the case was standing outside the court and he was totally unaware as to what transpired between the court and the applicant and how the affidavit was filed.
8. It has been urged that none of the CBI Officer had made any false and misleading statement and thus it cannot be said that respondent no.2 or for that matter Respondent No.3 was guilty of committing contempt of court. It is argued that even otherwise the proof required in the case of Criminal Contempt is not "of preponderance of probabilities", but of "beyond all reasonable doubt ". The Learned Counsel for the Respondents places heavy reliance on Chotu Ram .Vs. Urvashi Gulati and another, (2001) 7 SCC 530, J.R.Prashar Advocate and others. Vs. Prashant Bhushan and others, (2001)6 SCC 735 and Biman Bose. Vs. State of West Bengal and others (2004)13 SCC 95.
9. The Learned Counsel for Respondents points out that though on merits no case of reference for contempt of court is made out, but as per Section 20 of the Contempt of Courts Act 1971, the court is debarred to make any reference after the expiry of one year from the date on which the contempt is alleged to have been committed. It has been urged that the period of one year in the case where the court has taken suo moto action will be the date of issuing a notice and in other cases when the party complaining files an application. The Learned Counsel for the Respondents in support of his contention has referred to Pallav Sheth .V|s. Custodian and others, (2001)7 SCC 541.
10.I have given my thoughtful consideration to the respective contentions raised by the parties.
11.There is no dispute about the proposition of law that forging an application, writ or pleadings or making a statement to mislead the court which may tend to interfere with or tend to obstruct the administration of justice, would amount to contempt. The question for consideration is whether the affidavit was filed by the applicant at the time of hearing of the remand application and whether the CBI Officer / IO had intentionally hidden the information from the court on 13.1.2000 or were the CBI Officers under obligation to inform the court about receipt of the communication dated 12.1.2000 from Interpol Singapore immediately after 12.1.2000 or during reply to the second bail application.
12.I have carefully perused the remand order dated 13.1.2000. It would be fruitful to extract the same hereunder for ready reference :
"Accused Ashok Aggarwal in JC. He is represented by Shri Anil Sharma, advocate. IO Shri Ramneesh, DSP seeks extension of JC Remand of 14 days.
Heard. Investigation is not yet complete. Investigation is at crucial stage. Accused is therefore remanded to JC till 27.1.2000."
Sd/-
Special Judge, 13.1.2000 The order passed on the affidavit is also extracted hereunder.
"Accused is produced before me from JC and he has sworn an affidavit before me."
13.It is therefore manifest that at the time of passing of the remand order there is no mention of the affidavit being filed by the accused and at the time of production of the affidavit there is no mention of the presence of the IO. The explanation thus given by respondent no.2 and 3 in reply to the application dated 1.6.2001 that the applicant had been subsequently brought from the lock up and produced in the court in the absence of the IO is credible being borne out from the record. The plea of the applicant that the affidavit had been filed at the time of the remand application in presence of the CBI Officials is, therefore, not believable.
14.I have already extracted above the order dated 6.1.2000 through which the bail application of the applicant was dismissed mainly on the ground that the accused was a public servant and there were serious allegations against him of having accepted bribe of Rs.10 lacs from co-accused Abhishek Verma and that the applicant had tried to evade his arrest and had even absconded and stayed in a hotel at Saharanpur under assumed name to defeat the process of law. Of course, a contention has also been raised on behalf of CBI that the applicant had visited Singapore on a special visit pass from 10.2.99 to 14.2.99 , but this was not mentioned as a ground to refuse bail by the Learned Special Judge. Of course, while disposing off the second bail application vide order dated 29.1.2000 it had been observed by the Learned Special Judge that the first bail application was dismissed considering various pleas of the prosecution and mainly because of the fact that prosecution showed an Interpol message suggesting that the applicant had visited Singapore on passport no. S-243227 and remained there w.e.f. 10.2.99 till 14.2.99, whereas the passport seized by the CBI did not show any entry regarding this travel to Singapore. This fact thus might have weighed with the Learned Special Judge while dismissing the first bail application on 6.1.2000, but it was not specifically stated so in the order dated 6.1.2000. Thus, in all fairness to the applicant and to apprise the court about an important revelation, it was expected of the IO of the case to have disclosed that the factum of the travel of the applicant to Singapore from 10.2.99 to 14.2.99 has not been confirmed by the Interpol and on the other hand it has been admitted to be a mistake by them. Yet in view of the facts and circumstances as have been narrated by me above, it cannot be said that the non disclosure of this fact was either intentional or was motivated to obstruct the administration of justice or to interfere with the due course of judicial proceedings. In this view of matter, I am of the considered opinion that it cannot be said that Respondents No.2 and 3 had committed any contempt of court for which a reference should be made by this court.
15. The bar of limitation as mentioned in Section 20 also stands in the way of making the reference in view of the authoritative pronouncement and interpretation of Section 20 by the Hon'ble Supreme Court in Pallav Sheth (supra) where it was held that the beginning of the action prescribed for taking cognizance of criminal contempt U/s. 15 would be initiating the proceedings for the contempt and that in the case of contempt on an application moved by a party the limitation of one year will start from the date on which the contempt is alleged to have been committed and the date of moving the application/petition. In this case, the contempt was committed either on 13th of January 2000 or at the most on 27th of January, 2000. The petition for contempt was filed before the Hon'ble Delhi High Court only on 23.5.2001 much beyond the period of one year and the application for contempt cannot be entertained being barred by limitation.
16.The application dated 1.6.2001 praying for reference of the matter to the Hon'ble Delhi High Court taking action under the Contempt of Court Act is hereby dismissed.
Announced in open court.
Dated: 5.2.2007 ( G.P.Mittal )
Special Judge: Delhi.
IN THE COURT OF SHRI G.P.MITTAL : SPECIAL JUDGE: DELHI.
Ashok Kumar Aggarwal...vs...CBI.
RC No. S18/E-0001/99 / CBI / SIU - VIII.
CC No. 26 of 2002.
-.-.-.-.-.
Present:: Applicant in person alongwith Shri Ram Jethmalani, Senior Advocate and Ms. Lata Krishnamurthy, advocate counsels for applicant.
Shri NK Sharma, Special Counsel for the CBI.
ORDER
1. This is an application with the prayer to withdraw the LOC (Look Out Circular) issued by the CBI in December 1999 against the applicant , his wife Mrs. Urvashi Aggarwal and three minor sons Master Rahul Aggarwal, Master Varun Aggarwal and Master Gaurav Aggarwal. It has been submitted that investigation in the case is complete and the CBI has already filed the charge sheet. Thus, no purpose is going to be served with the continuation of the LOC, which has neither been cancelled nor withdrawn by the CBI. It has been submitted that the passport of the applicant and his wife are already relied upon documents filed in the charge sheet , thus this court may direct the CBI to immediately withdraw the LOC issued in December 1999 against the applicant and his family members.
2. The CBI has not filed any reply to this application. The application however has been opposed on the ground that this court has no jurisdiction to entertain this application. It has been submitted by Shri NK Sharma, Learned. Special Counsel for the CBI that as per instructions of Ministry of Home Affairs an LOC is valid for a period of one year, however, if the Originating Agency wants to extend the validity beyond one year, it can ask for extension before the expiry of one year. If no request is made for extension of LOC within the stipulated period of one year the Immigration Officer concerned is authorized to suspend the LOC. The Ld. Special Counsel has taken me through extract of the CBI manual (photo copy placed on record) and has urged that a letter no.16/2004 dated 12.7.2004 was also issued to all the branches of CBI by Shri Ashwani Kumar, Joint Director (P) CBI to take action in accordance with the instructions of the MHA. Shri NK Sharma submits that the applicant could have applied either to the CBI or if he was aggrieved could have filed a writ for canceling the LOC and this court has no jurisdiction to pass the order.
3. In fact after moving this application, the matter came up before my learned predecessor on 4.1.2006. Reply to the application has not been filed despite several opportunities. The Learned Special Prosecutor had made a submission before the court on 4.1.2006 that the CBI had no objection for withdrawal of the Look Out Notice with respect to the three minor children Master Rahul Aggarwal, Master Varun Aggarwal and Master Gaurav Aggarwal. However, he submitted that the CBI has objection to the orders of withdrawal of such notice issued against Ashok Aggarwal, who is facing trial before this court in two cases and Mrs. Urvashi Aggarwal , his wife who is facing trial in one case.
4. Today the simple plea raised is that this court has no jurisdiction to entertain the application as the applicant could have applied to the CBI for review of the LOC. Admittedly notice of the application dated 20.12.2005 has been duly served upon the CBI. Despite several opportunities, the CBI failed to reply the application , rather the CBI gave no objection for withdrawal of the Look Out Notice with respect to the minor children, but resisted the withdrawal in respect of the accused. I would not agree with the Learned Special Counsel for the CBI that this court has no jurisdiction to order withdrawal of LOC. It is the case of the CBI that they are resisting withdrawal only because of the fact that two cases are pending trial against applicant Ashok Aggarwal and one case is pending against his wife Mrs. Urvashi Aggarwal. It is no where the case of the CBI that the accused persons are not observing the terms of the bail or that they have misused the liberty. The passport of the applicant and his wife is in the custody of the CBI. It is stated by the Learned Special Counsel for the CBI the the applicant had been granted permission to go abroad on his application. Thus there cannot be any apprehension that the applicant and his wife will abscond. The CBI is therefore directed to withdraw the LOC issued against the applicant, his wife and three minor children. The application is disposed of accordingly.
Announced in Open Court 05.02.2007 ( G.P.Mittal ) Special Judge, Delhi.