Gujarat High Court
Srinivasan Raman vs State Of Gujarat & on 15 March, 2013
Author: K.M.Thaker
Bench: K.M.Thaker
SRINIVASAN RAMAN....Applicant(s)V/SSTATE OF GUJARAT R/CR.MA/15656/2012 CAV JUDGEMNT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE FIR/ORDER) NO. 15656 of 2012 With CRIMINAL MISC.APPLICATION NO.
15657 of 2012 With CRIMINAL MISC.APPLICATION NO.
15658 of 2012 With CRIMINAL MISC.APPLICATION NO. 6698 of 2012 TO CRIMINAL MISC.APPLICATION NO. 6700 of 2012 FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE K.M.THAKER ============================================================== 1 Whether Reporters of Local Papers may be allowed to see the judgment ?
Yes 2 To be referred to the Reporter or not ?
Yes 3 Whether their Lordships wish to see the fair copy of the judgment ?
No 4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950 or any order made thereunder ?
No 5 Whether it is to be circulated to the civil judge ?
No ============================================================== SRINIVASAN RAMAN....Applicant(s) Versus STATE OF GUJARAT &
1....Respondent(s) ============================================================== Appearance:
MR MANAN A SHAH, ADVOCATE for the Applicant(s) No. 1 MR PREMAL S RACHH, ADVOCATE for the Applicant(s) No. 1 MR YN RAVANI, ADVOCATE for the Respondent(s) No. 2 MS ARCHNA RAVAL, APP for the Respondent(s) No. 1 ============================================================== CORAM:
HONOURABLE MR.JUSTICE K.M.THAKER Date : 15/03/2013 CAV JUDGEMNT
1. The Criminal Misc. Applications Nos.6698 of 2012, 6699 of 2012 and 6700 of 2012 have been taken out by Indian Oil Corporation (hereinafter referred to as the IOC or petitioner Corporation ) under Section 482 of Criminal Procedure Code (hereinafter referred to as the Code) seeking below mentioned relief:
5(a) Quash the impugned charge sheet no.52 in Case nos.10/11, pending before the Ld. Special Judge (CBI Court No.3), Ahmedabad, arising out of FIR/RC no.12(A)/2000-GNR u/s 120-B, 420, 467, 468, 471 IPC and section 13(2) read with 13(1)(d) PC Act read with section 3 of Essential Commodities Act registered at P.S.CBI, Gujarat, qua the petitioner herein;
(b) Quash the impugned cognizance order dated 04.04.11 passed by the Ld. Special Judge (CBI Court No.3), Ahmedabad, in Special Case No.10/11, and proceedings consequent thereto, qua the petitioner herein;
1.1.At the outset it is relevant to mention that out of the above mentioned six petitions the petitioner Corporation has preferred three petitions viz. Misc. Criminal Application Nos. 6698 of 2012, 6699 of 2012 and 6700 of 2012. So far as Misc. Criminal Application No.6698 of 2012 is concerned, it is stated that the said petition is directed against the charge-sheet No. 52 in case No.10 of 2011 pending before learned Special Judge (CBI Court No.3) and it arises from FIR/RC No.12(A)/2000-GNR. Whereas, the second petition being Misc. Criminal Application No.6699 of 2012 is directed against the charge-sheet No. 53 in case No.9 of 2011 pending before learned Special Judge (CBI Court No.3) and it arises from FIR/RC No.12(A)/2000-GNR and so far as third petition being Misc. Criminal Application No.6700 of 2012 is concerned, it is directed against the charge-sheet No. 54 in case No.8 of 2011 pending before learned Special Judge (CBI Court No.3) and it arises from FIR/RC No.12(A)/2000-GNR.
2. The factual background in all three petitions is common, charge-sheets are similar, except that the concerned establishment (with reference to which the alleged irregularities are cited) are different in said three charge-sheets. The learned Senior Counsel for petitioner Corporation and learned counsel for respondent CBI have respectively raised common and similar contentions in respect of all petitions. The relief prayed for in said three petitions are similar. Therefore, all three petitions are decided by present common order.
2.1.The learned counsel for respondent CBI and learned Senior Counsel for petitioner Corporation have made reference of the material available on record of the petition being Criminal Misc. Application No.6698 of 2012 for all practical purposes and they have also stipulated that except the respective charge-sheets other material on record of the petitions is common. Therefore, for purpose of present order also the details mentioned in and material available on record of Criminal Misc. Application No.6698 of 2012 is taken into account.
3. The offence alleged against the petitioner Corporation and some of its officers (one of the officers has preferred three separate but almost similar petitions, which also have been heard together with the petitions filed by IOC) are under Section 13(2) read with Section 13(1)(d) of Prevention of Corruption Act, 1988 and Sections 420, 467, 468, 471 and 120(B) of Indian Penal Code and Section 7 read with Section 3 of Essential Commodities Act, 1955.
4. So far as factual background is concerned, it has emerged from the record that Ministry of Petroleum and Natural Gas, Government of India (hereinafter referred to as the concerned Ministry) had issued guidelines dated 02.01.1981 which, inter alia, dealt with utilization of High Speed Diesel (hereinafter referred to as the HSD) produced at Koyali Refinery.
4.1.It is the case of petitioner Corporation that another set of guidelines came to be issued on 17.03.1988. However, the said guidelines made reference of LSHF HSD, LDO (Light Diesel Oil) and Crude Sludge only and supply of HSD simplicitor was not mentioned in the said guidelines issued in March 1988. It is also claimed by the petitioner that the said guidelines did not require the oil companies or its officials to verify genuineness of requirement of HSD or to ensure bonafide usage of HSD. It is further claimed that in February 1994 fresh guidelines dated 9.2.1994 was issued in supersession of previous guidelines and thereafter again in May 1995 another set of guidelines was issued on 23.05.1995, which was followed by yet another set of guidelines issued on 18.09.1996 and in all those subsequent guidelines reference of HSD was not made/included and the said guidelines did not, according to the petitioner Corporation or its officers, apply to HSD and did not require, according to IOC and its officers, the oil companies or its officers to verify genuineness of requirement of HSD and/or its bonafide usage and/or physical verification of establishment of the user companies.
4.2.It is alleged against the petitioner Corporation and its officers that with aid of forged and fabricated documents, HSD was shown to have been sold to companies which, in reality, were non-existent and paper companies and thereby large scale scam was perpetrated in Gujarat, Maharashtra and Madhya Pradesh. It is also alleged that the sale of HSD to such allegedly non-existent companies also resulted into evasion of Sales Tax or drawl of undue benefit towards Sales Tax and corruption on part of the oil companies (including IOC) and its officers.
4.3.In such background the respondent CBI carried out investigation and upon completion of investigation CBI filed charge-sheets against various oil companies viz. IOC, IBP, HPCL and BPCL as well as against the officers of the said oil companies. The charge-sheets alleged commission of offence under Essential Commodities Act, Prevention of Corruption Act and Indian Penal Code.
4.4.Upon submission of charge-sheet the learned Special Court i.e. CBI Court took cognizance and passed order to issue process. Accordingly, process came to be issued against IOC and its officers whose names are mentioned in the charge-sheets. The charge-sheets also alleged, inter alia, that the conspiracy was hatched to divert HSD, which is restricted item, to open market so as to avail undue benefit including Sales Tax benefit wherein about 46 companies/units in Gujarat, Maharashtra and Madhya Pradesh are found involved.
4.5.At this stage, it would be appropriate to reproduce some of the relevant details mentioned in the FIR.
The Oil Companies viz. I.O.C., I.B.P., I.P.C.L. and B.P.C.L. sell High Speed Diesel to their customers and extend Sales Tax concession in payment of Sales Tax. However, various legal formalities are to be observed to avail this concession. The following are the main Sales Tax concessions extended to the customers:
(1) ...........
(2) ...........
(3) ...........
Inter State transportation of diesel is prohibited if it is to be delivered to the Petrol Pumps. The Petrol Pump owners can lift diesel for the pumps only from the earmarked lifting terminal of the Oil Company within the State and have to pay sales tax at the rate of 18% cum 20%s surcharge. However, inter State transportation of HSD is permissible............
It has been reliably learnt that various private firms in collusion with Oil Companies and Sales Tax officials circumvent the mandatory legal provisions and lift HSD at concessional rate of Sales Tax. It is learnt that many of the private firms procuring HSD are lying closed and not functioning, but such firms in collusion with the officials of the Oil Companies and the officials of Sales Tax Department show themselves to be in running condition and manage to get more and more quota of HSD at a concessional rate of Sales Tax. The Field/Area Officers of the Oil Companies in collusion with the private firms have wrongfully certified the requirements of HSD of these firms. The Sales Tax Officers have also colluded with the private firms and have wrongly issued Eligibility Certificate to these firms, enabling them to lift HSD from the Oil Companies against Form-2. The HSD so lifted by the private firms is actually not used as raw material and is diverted to the Petrol Pumps at a comparatively higher rate.
..............The firms gave false declaration in the Form No.2 that the HSD would be utilized by them as raw material for manufacture of taxable goods and the same would be sold within the State of Gujarat, but actually instead of complying with the said condition, the firms have diverted the HSD to the open market for wrongful gains. It is also alleged that the Field Officers of the Oil Companies were required to verify the working condition of the private firms physically before allotting the quota of HSD. The same has not been done by them. Instead in conspiracy with the private firms they have wrongfully certified the requirement of the firms, enabling the private firms to lift the HSD worth crores of rupees during the past few years. The private firms did not ensure the end-use of the HSD as raw material for manufacturing purposes.
In the aforesaid manner, the acts and omissions of the officials of the Oil Companies, Gujarat Sales Tax Department and the Private Firms thus caused huge revenue loss to the Government and wrongful gain to the private firms which prima facie constitute offences of criminal conspiracy and abuse of official position punishable u/s.120-B, 420 IPC and Sec.13(2)(d) of PC Act, 1988. Hence, this Regular Case is registered and entrusted to Shri J.Meena, Dy. SP, CBI, SPE, Gandhinagar for investigation.
4.6.The said FIR was lodged on 23rd May 2000, whereas, the charge-sheets came to be filed on or around 25.03.2009 and the order to issue process came to be passed on 04.04.2011. The Oil Companies, IOC being one of them, are also referred to as accused in the charge-sheets. Upon feeling aggrieved by the said charge-sheets and order issuing process, IOC has preferred captioned three petitions.
4.7.The petitioner Corporation has challenged the charge-sheets and the order dated 04.04.2011. The relevant part of the charge sheet reads thus:-
6. SUPPLY of HSD TO M/S SUN PHARMA CHEMICALS BY M/S IOCL:-
i) Processing of application and role of accused IOCL Officials:- It is revealed during investigation that M/s Sun Pharma Chemicals had initially requested M/s. IOCL for supply of HSD vide its letter dtd.
26.04.1999. Shri R.Srinivasan has issued Delivery Order on 30.04.1999. During investigations no person could be linked with the aforesaid non-existing firm M/s. Sun Pharma Chemicals.
The IOCL Officials namely S/Shri M.V.Awale, M.D.Kumar, R.Srinivasan and Harsh Sachdev were relevant Officers who were responsible for supplying HSD to M/s. Sun Pharma Chemicals. It is revealed that supplies were initiated to M/s. Sun Pharma Chemicals without any physical verification. Shri R. Srinivasan had issued DO No. 4214, dtd. 30.04.1999 against the application dtd. 26.04.1999 of the firm. After initiation of supplies, Delivery Orders were issued under the signatures of S/Shri R.Srinivasan, M.V.Awale and M.D.Kumar, OICL Officials of Rajkot Divisional Office.
ii) Details of C form issued to M/s. Sun Pharma Chemicals:- M/s. Sun Pharma Chemicals submitted C form Nos. 13962578 and 17X358370. The supplies of HSD from IOCL during the period were made against the said C Forms. As is already mentioned above 3564 KL was released in the name of M/s. Sun Pharma Chemicals from Vashi and 1190 KL was released from Wadala Terminal against form C . Thus it is established that M/s.IOCL sold a quantity of 4754 KL HSD to M/s. Sun Pharma Chemicals in Criminal Conspiracy with each other.
iii) Role of IOCL Officials:- On submission of report by the field officer Shri S.K. Suman that no factory of M/s Sun Pharma Chemicals existed at the spot. Shri R. Srinivasan stated to have visited the spot and found the factory existing. Shri R. Srinivasan also stated that he had issued the Delivery Orders and gave to a person namely Shri Rajubhai of M/s. Sun Pharma Chemicals. Shri R.Srinivasan also stated that while he visited the factory, he found the same Shri Rajubhai Shah available there. He also reported about his visit to his superior Officer Shri Harsh Sachdev and subsequently continued supplies to the subject firm.
.................
During investigation Shri R.Srinivasan was given ample opportunity to identify the said person Shri Rajubhai Shah and the plant of M/s. Sun Pharma Chemicals. Shri R.Srinivasan could not identify any such person and could not furnish any particulars or whereabouts of Shri Rajubhai Shah. Investigation has revealed that subsequently the Field Officer Shri S.K.Suman had submitted his report dtd. 18.07.1999 to the Sr. Divisional Manager, Shri Harsh Sachdev regarding non-existence of M/s. Sun Pharma Chemicals. Shri Harsh Sachdev has marked this report to Shri R.Srinivasan on 19.07.1999. Shri R.Srinivasan also put his remarks dtd. 19.07.1999 wherein he noted of having sent message for stoppage of supplies to Vashi Terminal. Subsequently, Shri R.Srinivasan forwarded a message to TM, Vashi vide No.RDO/C/1300 dtd. 19.07.1999 requesting to stop supplies to M/s. Sun Pharma. It is further revealed that M/s Sun Pharma Chemicals requested IOCL, Rajkot vide its letter dated 24.07.1999 to correct the address of the plant location from 338-341 to 334/2, Liliya Road. This letter contained the administrative office of the firm as Nirmal Complex, 1st floor, Canal Road, Rajkot. It is very surprising that after the report of the Field Officer about non-existence of the firm Shri R.Srinivasan and Shri Harsh Sachdev processed this application. M/s. Sun Pharma Chemicals is mentioned to have submitted photographs as a proof of existence of factory to Shri R.Srinivasan.
During investigation Shri R. Srinivasan took a plea that he had visited the factory on 27.07.1999 and saw the factory of M/s Super Cast Foundry Flux Co. having the signboard of M/s. Sun Pharma Chemicals. It appears that the said visit was planned accordingly and to satisfy the requirement, the signboard was changed for taking photographs. In the light of the omission on the part of IOCL Officials that no other efforts to verify the genuineness of M/s. Sun Pharma Chemicals were made. The local village Talati and factory registration office etc. could have been approached for verification. The Official had relied upon the information and xerox copies of certificates provided by the so-called firm owner Rajubhai Shah. Even no efforts were made to verify the genuineness of the registration certificates of Sales Tax and SSI registration, in a situation wherein the IOCL Official had only reported about non-existence. Shri R. Srinivasan did not make any effort to verify the office address located nearby the IOCL Office at Rajkot i.e. Nirmal Complex, 1st Floor, Canal Road, Rajkot. During investigation, the said address was verified in the presence of 2 independent witness namely Shri K.M.Parmar and Shri M.L.Muchhadia, Sales Tax Inspectors of Rajkot. Investigation has revealed that no office of M/s Sun Pharma Chemicals ever existed at the said address. The said premises belongs to one Shri Hemant Pandya R/o Kalyan Society, Rajkot who has stated that no firm M/s Sun Pharma Chemicals C/o Balaji Metal & Chemicals ever existed or operated from his premises.
Shri Harsh Sachdev.................
Shri Varan Mansukhlal Mavjibhai.................
Investigation has thus proved that accused persons namely (A-1) Shri M.Devendra Kumar, (A-2) Shri Harsh Sachdev, (A-3) Shri R. Srinivasan, (A-4) Shri Mohan Venkantrao Awale, (A-5) Shri Ramji Nanda, (A-6) Shri Devchard P. Chheda and (A-7) M/s. Indian Oil Corporation Ltd. Public Sector Undertaking, Rajkot by way of criminal conspiracy and cheating have caused wrongful loss to the Government exchequer by evading Sales Tax to the tune of Rs.1,21,98,967/- thereby committing offence under Section 120-B r/w 420, 467, 468 and 471 of IPC, Section 7 r/w section 3 of E.C. Act, 1955 & 13(2) r/w 13(1)(d) of PC Act, 1988 and substantive offences thereof. On completion of investigation, investigation reports have been sent to oil companies for obtaining sanction for prosecution u/s 19 of Prevention of Corruption Act against the serving oil company officials. Replies from oil companies are awaited. The aforesaid acts of omission and commission on the part of the accused persons constitute offences punishable under section 120-B, 420, 467, 468 and 471 IPC 13(2) r/w 13(1)(d) of PC Act, 1988 and section 7 r/w section 3 of E.C. Act, 1955 & substantive offence thereof. Hence, this charge sheet is submitted before this Hon ble Court with a request to try the accused persons in accordance with law. (emphasis supplied)
5. The petitioners have claimed, inter alia, that on plain reading of the allegations in charge-sheets, any ingredients of alleged offence are not made out and that the relevant guidelines did not oblige the Oil Companies or its officers to verify the genuineness of requirement or to ensure bonafide usage of HSD and reference of HSD was deleted from their purview.
5.1.The petitions are opposed by respondent. The respondent CBI has filed affidavit opposing the petitions wherein the allegations are denied and contentions are disputed and opposed. It is contended that during investigation sufficient material/evidence making out offence and case for maintaining prosecution has become available.
5.2.It is also contended that the entire process was monitored by High Court and about 110 instances of violation of guidelines or irregularities in sale of HSD have been revealed during investigation. It is also claimed that investigation revealed that private parties lifted and diverted HSD in conspiracy with the accused Oil Companies and their officials with aid of false and fabricated documents. It is claimed that the petitions deserve to be rejected and the prosecution should be allowed to continue.
6. Mr.K.T.S. Tulsi, learned Senior Counsel with Mr.Kanani, learned advocate has appeared for the petitioner Oil Companies and Mr. Ravani, learned counsel has appeared for respondent CBI and Mr. Rachh, learned advocate has appeared for petitioner officer and Ms Archna Raval, learned APP has appeared for respondent No.1 State.
6.1.I have heard learned advocates for petitioner Corporation and the officer and respondent CBI and learned APP and I have also examined the material on record of the petitions.
7. Learned Senior Counsel for petitioner Corporation submitted, inter alia, that respondent CBI has arbitrarily or conveniently ignored the fact that in all guidelines issued after the guidelines dated 02.01.1981, any reference of HSD was not made and actually reference of HSD was deleted in all guidelines however the respondent CBI has considered only first circular i.e. the circular dated 02.01.1981 but has not considered the subsequent circulars whereby the Ministry issued fresh instructions and the said earlier circular was superseded. It is also contended that even otherwise the guidelines did not oblige the Oil Companies or its officials to ensure bonafide usage of HSD or genuineness of its requirements or physical verification of the establishments/units and their manufacturing facilities/plants and that therefore it cannot be even alleged that the petitioner Corporation or its officials did not comply the guidelines.
7.1.Besides other contentions, learned Senior Counsel for IOC emphasized the fact that the impugned charge-sheets have been filed without obtaining requisite sanction from the competent authority as required by law and in absence of proper and due sanction, the proceedings could not have been initiated and that therefore on the said ground alone the proceedings deserve to be quashed. It is further claimed that certain officials of one of the accused Oil Companies viz. BPCL had preferred applications before learned Trial Court and they had prayed for discharge. The said applications were filed in Special Case No.136 of 2004 and came to be allowed by the learned Special Court vide order dated 27.01.2011. It is claimed that the said order and its reasons are relevant and applicable to the case of petitioner Corporation. It is also claimed that one of the main grounds in light of which the learned Trial Court discharged the applicants in said Special Case is want of or absence of sanction, which is applicable to the case of petitioner Corporation as well. It is also claimed that the respondent CBI has accepted the said order, inasmuch as it is not challenged until now and has attained finality. Learned Senior Counsel for IOC also submitted that the case was examined by Chief Vigilance Commission who has confirmed/approved IOC s order (i.e. order by the competent authority) refusing sanction. He also submitted that the departmental proceedings were also initiated and all accused officers have been discharged in departmental proceedings as well.
7.2.Learned Senior Counsel made reference of various documents available on record including the four guidelines, the communication dated 06.11.2000 made by all Oil Companies, the communication/clarification dated 2nd December 2000 by the Ministry to the effect that simplicitor HSD is not included in the purview of the guidelines, the order dated 06.06.2009 by the competent authority whereby sanction came to be refused. He also relied on the documents at page 36, 37, 38 and 70. Learned Senior Counsel also emphasized that although according to the respondent CBI conspiracy was hatched to avail Sales Tax benefit and allegedly such benefits have been availed, Sales Tax Department has not initiated any proceedings which supports IOC s case that any breach of any guideline is not made out and any ingredients of any offence are also not made out. Learned Senior Counsel submitted that the guidelines wherein reference of HSD is not made/included have not been forged and that therefore any case about alleged offence of forgery or cheating against IOC or its officials is not made out. Learned Senior Counsel also emphasized delay in filing charge-sheet and submitted that respondent CBI took 9 years to investigate the case which amounts to violation of Article 21 and gross delay is a good ground to exercise power under Section 482. Learned Senior Counsel also submitted that mere breach of guidelines does not amount to any offence. Learned Senior Counsel appearing for the petitioner Corporation relied on below mentioned decisions:
(1) Radheyshyam Kejriwal v. State of W.B [(2011) 3 SCC 581] (2) V.V.S. Rama Sharma v. State of U.P. [(2009) 7 SCC 234] (3) Pepsi Foods v. Spl. Judicial Magistrate [(1998) 5 SCC 749] (4) Ashok Chaturvedi v. Shitul H. Chanchani [(1998) 7 SCC 698] (5) Dilip S. Dahanukar v. Kotak Mahindra Co.Ltd. & Anr. [(2007)6 SCC 528] (6) Roop Kumar v. Moan Thedani [(2003) 6 SCC 595] (7) Duli Chand v. Jagmender Dass [(1990) 1 SCC 169] (8) Gurnam Singh & Others v. Surjit Singh & Ors. [(1975) 4 SCC 404] (9) Sajjan Singh v. State of Punjab [AIR (1964) SC 464] (10) Alamgir & Anr. v. State of Bihar [AIR (1959) SC 436] (11) Louis Peter Surin v. State of Jharkhand[(2010) 12 SCC 497] (12) Motilal Saraf v. State of J & K & Anr.[(2006) 10 SCC 560] (13) Vakil Prasad Singh v. State of Bihar [(2009) 3 SCC 355]
8. Mr. Ravani, learned counsel appearing for respondent CBI submitted, inter alia, that the allegation against the petitioner Corporation and the accused officers is not only about the instructions related to TEC but the allegations materially and essentially are about conspiracy hatched by the petitioner Corporation and its officers with private establishments/companies and as part of the conspiracy the accused officers and the petitioner Corporation are alleged to have used fake certificates being Inter State Transport Permits, Explosive Licence, Blank C Forms, Form Registration, etc. The conspiracy was hatched with intention to divert the restricted material to open market and to avail sales tax benefits. Learned counsel for respondent CBI submitted that out of total 46 private units alleged to have been involved in the scam, 11 units are from Gujarat, 23 units from Madhya Pradesh and 12 units from Maharashtra. Mr.Ravani, learned counsel for respondent CBI submitted that the relevant period is from 1999 to 2000.
8.1.Learned counsel for respondent CBI submitted that even a plain reading of the charge-sheet would satisfy that the ingredients of alleged offence are made out and that therefore other material placed by the petitioner Corporation cannot be examined at this stage. He submitted that sufficient material to try the accused officers and the petitioner Corporation is available and is placed before the learned CBI Court. Learned counsel for CBI also placed reliance on the documents at page 178, 186, 222, 228, 231, 232 and 237 so as to support the said contention. Learned counsel for respondent CBI also contended that the documents at page 36, 37, 38, 7o are prepared only with a view to escape from investigation by CBI.
8.2.Learned counsel for respondent CBI also claimed that the charge-sheet is challenged after long time and in view of the delay caused in challenging the charge-sheet, the petition may not be entertained.
8.3.Mr. Ravani, learned counsel for respondent CBI also contended that the discretionary jurisdiction under Section 482 of the Code may not be exercised. It is also contended that one of the main allegations and alleged offence is about conspiracy (Section 120B) and since there cannot be any direct evidence for the said offence, it is required to be proved at the trial and that therefore also it would not be proper to terminate the proceedings at initial stage.
8.4.While dealing with the contention on behalf of the petitioners that the submission of charge-sheet and the proceedings are unsustainable for want of sanction by competent authority, learned counsel for respondent CBI submitted that the accused officer had resigned/retired from the service of the Corporation and that therefore sanction was not necessary. Mr.Ravani, learned counsel for respondent CBI also highlighted the discrepancies in the statements of the officers. Learned counsel for respondent CBI relied on below mentioned decisions:
(1) Seeta Hemchandra Shashittal & Anr. V State of Maharashtra & Ors.
[AIR 2001 SC 1246] (2) Imtiyaz Ahmad v St. of U.P. [AIR 2012 SC 642] (3) Satya Narayan Sharma v State of Rajasthan[2001) 8 SCC 607](4)Jagatsinh N. Soda v I.R. Mehta [2003(3)GLR 1849] (5) Mohmed Amin Alias Amin Choteli Rahim Miyan Shaikh & Anr. V CBI [(2008) 15 SCC 49] (6) CBI v K.M.Sharan [(2008) 4 SCC 471] (7) Ajay Kumar Das v State of Jharkhand[(2011) 12 SCC 319] (8) Firozuddin Basheeruddin v St. of Kerala [(2001) 7 SCC 596] (9) Romeshlal Jain v Nagindersingh Rana [(2006) 1 SCC 294]
9. Now, so far as the petitioner accused officer and other three petitions are concerned, it is necessary to mention that other three petitions viz. Misc. Criminal Application Nos. 15656 of 2012, 15657 of 2012 and 15658 of 2012 are filed by an officer of the petitioner Corporation who is one of the accused persons in the same FIRs and charge-sheets in connection with which the petitioner Corporation has filed above mentioned three petitions. So far as Misc. Criminal Application No.15656 of 2012 is concerned, the accused officer has filed the said petition which is directed against the charge-sheet No.53 in case No.9 of 2011 pending before learned Special Judge (CBI Court No.3) and it arises from FIR/RC No.12(A)/2000-GNR. Whereas, Misc. Criminal Application No.15657 of 2012 is concerned, the accused officer has filed the said petition which is directed against the charge-sheet No.52 in case No.10 of 2011 pending before learned Special Judge (CBI Court No.3) and it arises from FIR/RC No.12(A)/2000-GNR and so far as Misc. Criminal Application No.15658 of 2012 is concerned, the accused officer has filed the said petition which is directed against the charge-sheet No.54 in case No.8 of 2011 pending before learned Special Judge (CBI Court No.3) and it arises from FIR/RC No.12(A)/2000-GNR.
9.1.Mr. Rachh, learned advocate has appeared for the accused officer in the said three petitions. Learned advocate for accused officer has submitted that the impugned FIRs in these three petitions filed by the accused officer are similar/identical to the FIRs challenged by IOC and the accused officer also challenges the FIRs. The learned advocate for the accused officer has adopted the submissions made and contentions raised by the learned Senior Counsel for the petitioner Corporation and he has also relied on same documents. Since the factual background in three petitions filed by the accused officer is similar to the petitions filed by Corporation and since the learned advocate for accused officer has adopted submissions by learned Senior Counsel for the Corporation and since the charge-sheets are also almost similar and since respondent s counsel have also raised similar contentions, these three petition by the accused officer are also decided by this common order.
9.2. While adopting submissions by the learned Senior Counsel, the learned counsel for accused officer submitted that it was not the petitioner-officer s responsibility to verify the genuineness of requirement of HSD or to ensure bonafide usage of HSD by the concerned firms. Learned counsel also contended that any case against the petitioner-accused officer is not made out. The learned counsel for the petitioner accused officer also relied on the order passed by the learned trial Court in case of other accused officers whereby the learned trial Court has allowed the discharge application preferred by the said other accused officers. It is contended that the accused officer has been acquitted in the Departmental Proceedings. It is pertinent that the petitioner accused officer has, in his three petitions, also raised a contention the petitioners are not public servant and therefore the charges under Prevention of Corruption Act are not applicable to the petitioner .
10. Before proceeding further, it is relevant to mention that the learned counsel for C.B.I. submitted and clarified that the initiation of investigation by C.B.I. is done in view of the directions by Division Bench of this Court in a Special Criminal Application No.792/2000 which was filed by way of and in nature of Public Interest Litigation wherein it was alleged that inspite of large scale scam resulting into loss to public exchequer and large scale corruption proper investigation in the HSD scam involving officers and employees of Government and Government Undertakings was not conducted and having regard to the said petition the Division Bench had called for reports from the Investigating Officer at regular interval and at different stages and various orders and directions were passed by the Division Bench from time to time.
11. From the impugned charge-sheet/s and the submissions by learned Senior Counsel and the learned Advocate for petitioner Corporation and the officer and by learned APP it has emerged that the complaint and charge-sheet against the petitioners lay out allegations:
(a) about forgery and concocted documents e.g. Inter State Transport Permits, Explosive Licence, Blank C Forms, Firm Registration, etc.,
(b) about diverting the goods in question with help of such forged and fabricated documents, to open market,
(c) causing loss to public exchequer by diverting the goods in question to open market with help of such forged and fabricated documents and gaining sales-tax benefit,
(d) committing breach of provisions under Section 3 of the Essential Commodities Act and/or control order issued under the said provisions,
(e) to hatch conspiracy with private limited/public limited companies and
(f) acting in disregard to or in breach of relevant guidelines.
12. Thus, the allegation about breach of applicable guidelines or acting in dis-regard and violation of the applicable guidelines does not appear to be the only allegation against the petitioners.
13. With the above mentioned facts in backdrop the petitioner Corporation and/or the petitioner accused officer have preferred present petition under Section 482 of the Code which raises the question whether in view of such facts, and when the petitioners have remedy under the Code, these petitions under Section 482 of the Code should be entertained at this stage or the petitioners should approach learned trial Court with and by way of appropriate applications.
14. It is pertinent that although the petitioner Corporation as well as the accused officer have heavily relied on the order passed by learned trial Court in case of certain other accused officers (of other oil companies) whereby the application for discharge came to be allowed and the said other accused officers (of other oil companies) came to be discharged, the petitioner Corporation and the petitioner accused officer in present case have not approached learned trial Court with similar or such other application under the provisions of the Code and instead they have approached this Court directly by invoking provisions under Section 482 of the Code. However, in view of the nature and type of issues (which would require examination of several aspects and relevant material) involved in these petitions and in light of the facts of the case, this Court is of the view that the petitioner should prefer appropriate application before the learned trial Court and invoke remedy available under the provisions of the Code.
14.1.This Court, ordinarily, does not entertain petition under Section 482 for quashing the proceedings in cases where charge-sheet/s are filed and the petitioner has remedy available under the provisions of the Code. Moreover, when other accused persons in same investigation process (though different oil companies) availed the remedy under the Code and preferred appropriate application and invited order (on which the petitioners now rely) there is no strong and convincing reason in view of which these petitioners i.e. IOC and the accused officer should not approach trial Court by taking out appropriate application, more so when charge-sheet is filed and there are several aspects and issues which deserve to be considered, examined and decided first by the learned trial Court in light of the material available on record of the case.
14.2.When question of exercising inherent power arises the Court would ordinarily, first pause and find out whether any specific provision providing remedy which can be invoked/availed by the litigant is prescribed under the Act or the Code, and if the Act or the Code offers provides a remedy then the Court, would ordinarily refrain from exercising inherent power. When other remedy is provided under the Code, then except in rare and compelling circumstances such remedy should be availed by the litigant and quick and easy resort to inherent power is not justified or proper. It is not that such exercise of power is always prohibited and is not available when other remedy is provided under the Code or the Act, but normally inherent power should not encroach upon or infringe or violate and march into the territory reserved or marked for specific/other remedy and inherent power should normally, be exercised sparingly and when other remedy is not available and substantial injustice or apparent abuse of process is caused.
14.3.Hon ble Apex Court has also disapproved exercise of power under Section 482 of the Code when the accused persons have remedy under other provisions of the Code and when charge-sheet is filed.
14.4.This aspect viz. exercising power under Section 482 of the Code when other remedy is available under the provisions of the Code, was considered by the Hon ble Apex Court as early as in 1980 in the decision in the matter between Raj Kapoor v. State [(1980) 1 SCC 43: (AIR 1980 SC
258)], wherein Hon ble Apex Court observed that:
Even so, a general principle pervades this branch of law when a specific provision is made: easy resort to inherent power is not right except under compelling circumstances. Not that there is absence of jurisdiction but that inherent power should not invade areas set apart for specific power under the same Code.
14.5.Thereafter, the aspect was again considered by Hon ble Apex Court in the decision in case between Municipal Corporation of Delhi v. Ram Kishan Rohtagi [(AIR 1983, SC 67] wherein the Hon ble Apex Court observed that:-
6. It may be noticed that Section 482 of the present Code is the ad verbatim copy of Section 561-A of the old Code. This provision confers a separate and independent power on the High Court alone to pass orders ex debito justitiae in cases where grave and substantial injustice has been done or where the process of the Court has been seriously abused. It is not merely a revisional power meant to be exercised against the orders passed by subordinate Courts. It was under this section that in the old Code, the High Courts used to quash the proceedings or expunge uncalled for remarks against witnesses or other persons or subordinate Courts. Thus, the scope, ambit and range of Section 561-A (which is now Section 482) is quite different from the powers conferred by the present Code under the provisions of Section 397. It may be that in some cases there may be overlapping but such cases would be few and far between. It is well settled that the inherent powers under Section 482 of the present Code can be exercised only when no other remedy is available to the litigant and not where a specific remedy is provided by the statute. Further, the power being an extraordinary one, it has to be exercised sparingly. If these considerations are kept in mind, there will be no inconsistency between Section 482 and 397(2) of the present Code. (emphasis supplied) 14.6.Thus, Hon ble Apex Court clarified that the inherent power under Section 482 ought to be exercised in cases where grave and substantial injustice has been done and when any other remedy is not available to the litigant. The said aspect was emphasized by Hon ble Apex Court by further observing that the power ought not be exercised where a specific remedy is provided by the statute and that the power being an extraordinary one, it has to be exercised sparingly.
14.7.Thereafter, recently in 2011 also, in the decision in case of Dharmatma Singh v.
Harminder Singh [(2011) 6 SCC 102], Hon ble Apex Court again observed that:
22. Section 482 of the Cr.P.C. saves the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under the Code or to prevent abuse of the process of any court or otherwise to secure the ends of justice. It has been held by this Court in R. P.Kapur v. State of Punjab [AIR 1960 SC 866] that Section 561-A of the Criminal Procedure Code, 1898 (which corresponds to Section 482 of the Criminal Procedure Code, 1973) saves the inherent power of the High Court to make such orders as may be necessary to give effect to any order under the Code or to prevent abuse of the process of any court or otherwise to secure the ends of justice and such inherent power cannot be exercised in regard to matters specifically covered by the other provisions of the Code and therefore where the Magistrate has not applied his mind under Section 190 of the Cr.P.C. to the merits of the reports and passed order, the High Court ought not to consider a request for quashing the proceedings.
23. In R.P.Kapur..............R. P. Kapur carried an appeal by way of Special Leave to this Court and this Court dismissed the appeal for inter alia the following reasons:6
& In the present case the magistrate before whom the police report has been filed under S.173 of the Code has yet not applied his mind to the merits of the said report and it may be assumed in favour of the appellant that his request for the quashing of the proceedings is not at the present stage covered by any specific provision of the Code. It is well established that the inherent jurisdiction of the High Court can be exercised to quash proceedings in a proper case either to prevent the abuse of the process of any court or otherwise to secure the ends of justice. Ordinarily, criminal proceedings instituted against an accused person must be tried under the provisions of the Code, and the High Court would be reluctant to interfere with the said proceedings at an interlocutory stage...
24. As we have found in the present case that the learned Magistrate had not applied his mind to the merits of the reports filed under Section 173 CrPC, we are of the considered opinion that the exercise of power by the High Court under Section 482 CrPC, was at an interlocutory stage and was not warranted in the facts of this case.
14.8.In case between Jagatsinh N. Soda v. I.R.Mehta [2003 Vol.3 GLR 1849], this Court has observed that:
It is well settled that inherent powers of the High/Court are to be used sparingly, and only when there is no other provision in the Code for redressal of the grievance of the aggrieved person.
15. In this view of the matter this Court is of the opinion that the petitioner can prefer appropriate application under the provisions of the Code before the learned trial Court and at this stage this Court need not entertain present petition.
16. Beside the aforesaid aspect there are other equally important and relevant reasons, which emerge from the facts of this case, in view of which this Court is not inclined to entertain the petitions and the Court is of the view that the petitioner can prefer appropriate application before the learned trial Court and invoke remedy available under the Code so that various relevant aspects can be considered in light of the material available on record. In this context it would be appropriate to take note of the below mentioned aspects.
16.1.So far as the contentions raised by the petitioner Corporation (against the charge-sheets and the criminal cases pending in the trial Special Court) on the ground that ingredients of alleged offence are not made out against the petitioner Corporation and/or the submission that HSD was taken out of the scope of guidelines applicable during the relevant period and/or the contentions by the petitioner Corporation that the guidelines issued by the Ministry did not contain reference of HSD and also did not impose obligation on the petitioners (i.e. Corporation and the petitioner officer) to carry out physical verification or bonafide use etc. are concerned, the scope and effect of the alleged changes in the guidelines and its applicability in the case of the petitioners deserve to be examined by the learned trial Court in appropriate application and in light of the statements recorded during the investigation process and in light of the various circulars issued by the Ministry, as well as in light of the correspondence, clarifications, instructions etc. issued from time to time during the period in question.
16.2.So far as the contention that the allegations about commission of offence under Sections 468, 471, etc. is not made out since the guidelines are not forged; is concerned, on consideration of charge-sheet/s and the allegations, it prima facie appears that the allegations about forgery are not made in connection with the guidelines but they appear to have been made with reference to allegedly forged Inter State Transport Permits, Explosive Licence, Blank C Forms, Firm Registration, etc. said to have been used in diverting HSD to open market. Even this aspect is such which can be properly and effectively considered and examined by learned trial Court in light of the material available on record, while considering appropriate application by the petitioners and it would not be feasible and practicable and proper for this Court to examine the said aspect at this stage in a petition under Section 482 of the Code.
16.3. It would also not be proper for this Court to take any decision with reference to petitioners request to quash the proceedings before the issues such as whether the relevant documents were forged or not or whether the goods were sold by using forged documents or not, are considered and examined by the learned trial Court in light of relevant evidence.
16.4.So far as the issue whether alleged acts constitute offence under provisions of Essential Commodities Act, 1955 or not and whether the allegations in the charge-sheets make out case of alleged offence under provisions of IPC and/or Act of 1988 or not are concerned, the issues are such which can be, and deserve to be, examined along with other issues involved/raised in this case (some of them are mentioned herein above in this order) by the learned trial Court in light of the material available on record and it would not be just or proper for this Court to exercise powers under Section 482 of the Code to quash the entire proceedings before the learned trial Court can examine the aforesaid aspects. Suffice it to say at this stage that the issue as to whether alleged offence under Section 3 of Essential Commodities Act and/or offence under Sections 465, 468 and 471 of IPC are made out or not can be, and deserve to be examined and determined by the learned trial Court in light of the evidence available on record before it in appropriate application and this Court would not be justified in recording any prima facie conclusion on the said aspect at this stage and in present proceedings.
16.5.Similarly, so far as the alleged offence under Section 120-B of IPC is concerned, the said allegation can be established or disproved, only after appropriate, relevant and sufficient evidence becomes available before the Court because ordinarily any direct evidence about conspiracy cannot be available and it can be established only by leading proper, relevant and necessary evidence.
16.6.In this context, it is also relevant and appropriate to mention at this stage that what is alleged by the respondent CBI, as per the charge-sheets, is that there was conspiracy with private companies/undertakings to divert the restricted item i.e. HSD by allegedly using forged and fabricated documents and allegedly many of such companies (who were sold/supplied the material) were not existing i.e. were existing only on paper. According to the respondent CBI the said actions constitute alleged offence under Section 120-B. 16.7. Now, whether material in question was diverted on strength of allegedly forged documents or not, who was involved in creating/forging of such documents etc. are the issues which can be, and deserve to be, examined by the learned trial Court in light of material (various documents, statements of concerned persons etc.) placed on record and after relevant evidence is considered by trial Court and not by this Court in a petition under Section 482 of the Code. Thus, this Court would not be justified, at this stage and in present proceedings, in recording even prima facie conclusion that any ingredient of alleged offence under Section 120-B is, or is not, made out and/or in quashing the charge-sheets and the pending proceedings on such presumption.
17. On plain reading of charge-sheets and the statements recorded by the Investigating Officer it is not possible at this stage to record a conclusion that this is a fit case to quash the proceedings at threshold and before the material available on record is examined by the learned trial Court.
18. It appears that so as to overcome the situation in view of which the Court may decline to exercise powers under Section 482, the petitioners have also raised contention about absence of sanction.
18.1.So far as the petitioner-accused officer in the three petitions is concerned, it is relevant to mention that from perusal of the order passed on the application seeking sanction it prima facie appears that the petitioner accused officer has resigned from the service of petitioner Corporation. On this count the competent authority, in the sanction order, has observed that:
Shri N B Nariani, Ms. Hilda Kumar have already retired from the services of the Corporation. S/Shri R. Srinivasan and G. Srinivas Rao of IOC, N H Rajagopalan of erstwhile IBP have resigned from the services of the Corporation and as such the issue of prosecution against them cannot be decided by any authority of the Corporation (emphasis supplied, the said officer is the petitioner accused officer in the captioned three petitions).
18.2.Thus, it would be appropriate that in light of the material on record particularly the statements recorded by the I.O., the learned trial Court may consider the issue viz. the exact point of time when the petitioner accused officer tendered resignation and ceased to be in employment of IOC and whether the petitioner accused officer can be considered public servant for the purpose of Section 19 of the Act of 1988.
18.3.With reference to the contention raised on ground of sanction, it is also appropriate to mention that so far as Section 19 of the Prevention of Corruption Act is concerned, the petitioner officer himself has contended that he is not a public servant for the purpose of the said Act and he cannot be tried for alleged offence under the said Act.
The petitioner officer has expressly averred in the petition that:
the petitioners are not public servant and therefore the charges under Prevention of Corruption Act are not applicable to the petitioner 18.4.It will not be out of place to mention at this stage that the accused officer/s of petitioner Corporation are employees/officers of an autonomous body viz. Indian Oil Corporation which is a Government Corporation/Company. Therefore it would be a question to be considered by the learned trial Court in light of the relevant evidence as to whether the accused officer employee was an employee not removable from his office except with sanction of Government or not.
18.5.On this count it is relevant to mention, even without entering into the issue whether a juristic or artificial person (i.e. the petitioner Corporation) can raise objection on ground of absence of sanction, that in the facts of the case the contention about sanction deserves to be examined by the learned trial Court in light of the material available on record before it more particularly because in the facts of the case it would be necessary to examine:
(a) as to whether the alleged acts were committed in discharge of official duty or not; and,
(b) as to whether the petitioner officer, being an employee of Government Corporation/Company, can be said to be an employee not removable from his office except with sanction of Government or not; and,
(c) at the time when charge-sheet came to be submitted or even at the time when sanction was applied for, whether the accused officer was in the employment of the petitioner Corporation or he had already retired/resigned from his service.
(d) Learned trial Court can also examine as to whether the stage at which the petitioner officer resigned from service is relevant for considering the contention about absence of sanction or not.
18.6.The aforesaid and such other aspects related to sanction under Section 197 of the Code and/or Section 19 of the Act of 1988 are the issues which can be, and deserve to be, considered by learned trial Court in appropriate application and at appropriate stage in light of the material available on record, rather than by this Court in a petition under Section 482 of the Code and it would not be proper or justified for this Court to quash the entire proceedings at this stage in a petition under Section 482 even before these aspects are properly considered by the learned trial Court in right perspective and in light of the available material.
18.7.The issue, and all aspects, related to sanction will have to be examined from the perspective of Section 19 of the Act of 1988 and Section 197 of the Code.
18.8. This is one more reason which justifies the view that this is not a case where this Court should exercise powers under Section 482 of the Code and quash the proceedings. Instead the facts and circumstances of the case demand that the petitioners may take out appropriate application before the learned trial Court at appropriate stage and present petition may not be entertained and power under Section 482 of the Code may not be exercised.
18.9.In this context it will not be out of place to mention that the issue regarding requirement of sanction in light of Section 197 of the Code can be considered at any stage i.e. not necessarily at the outset when decision to issue process is to be taken by the learned trial Court but it can be examined at a subsequent stage also. In this context reference to the observations in para 8 of the decision i.e. in case between Prabhudas Badaji Pandav v. Faridmiya Huseinmiya Kadari & Anr. [1993 (1) GLH 143] can be made. In the said decision, the Court has observed that:
8. In Pritam Singh, Petitioner v. Delhi Adm. and Another, Respondents, 1987 Cri.L.J. p.872, when an accused who was driving the two-wheeler without a helmet, in contravention of the provisions of the Motor Vehicles Act and the Rules framed thereunder, was stopped by the police officials in uniform on traffic duty,. And when after preparing the challan the officials had refused to let the scooterist to go and had detained him for the purpose of recovering the compensation money and when it was also alleged that the scooterist was man-handled and insulted by the police officials, the learned Single Judge of the Delhi High Court had reached the conclusion that in the above said facts & circumstances of the case the sanction was necessary according to the Ld. Single Judge of the Delhi High Court, because there was a reasonable connection between the alleged acts and discharge of the official duty. In S.B. Saha and Others, Appellants v. M. S. K0char, Respondent, A.I.R. 1979, S.C. p.1841, while examining the provisions contained under Section 197 of the Code of Cri. Procedure (1974) the Supreme Court has made it abundantly clear what the sine qua non for the applicability of the Section 197 is that the offence charged, be it one of commission or omission, must be one which has been committed by the public servant either in his official capacity or under colour of the office held by him. It is also pointed that it is the quality of the Act that is important and if it falls within the scope and range of his official duties, the protection contemplated by Section 197 of the Code would be attracted. In Akhilesh Prasad, Appellant v. Union of Territory of Mizoram, Respondent, AIR 1981, S.C. 806, it has been pointed out that the question of necessity of the sanction has to be determined from stage to stage as the case progresses. This question can be considered at any stage of the proceedings and while considering this question it is not necessary for the Court to confine itself to the allegations only in the complaint and that the court can take into consideration all other materials on record at the time when the question is raised. This decision therefore rendered by the Supreme Court of India says that the question regarding the necessity of sanction can be determined from stage to stage and when such a question is raised and it falls for the consideration of the Court, all the materials on the record at the time when the question is raised can be taken into consideration. Practically the same view has been taken by the Supreme Court of India in Bakshish Singh Brar, Petitioner v. Smt. Gurmej Kaur and Another, Respondents, AIR 1988 S.C. p.257. In that case it was alleged that the grievous injuries were inflicted upon the complainant alongwith offers and as a result of the injuries one of the victim had died. The Trial Court had taken the view that after gathering the materials and some evidence it would be possible to determine whether the accused was acting in the discharge of his duties. The High Court had declined to interfere with the orders of the Trial Court and that the view taken by the High Court came to be confirmed by the Supreme Court. It is, therefore, clear that, in the case, it has been laid down that the question regarding the necessity of the sanction can be considered at a later juncture after gathering the materials and some evidence. Incidentally it requires to be appreciated that in the above said case before the Supreme Court of India the police party headed by the petitioner, including 13 other subordinate police offices had gone to the house or Haveli of one Jitsingh and had raided the same on secret information to the effect that Jitsingh was indulging in illicit liquor and unlicensed arms. There were two FIRs in this respect and, therefore, the police party had raided the house of Jitsingh. There were rival versions involved in the case, but it was alleged that when the raid being effected, something had happened during which the police officials had allegedly inflicted grievous injuries on the person of the complainant party, as a result of which one of the offenders ha died. But in fact remains that the police officers were raiding the house of Jitsingh on secret information to the effect that he was indulging in illicit liquor and unlicensed arms. (emphasis supplied).
18.10.Even in the other cases (i.e. the order passed by the learned trial Court in other cases of officers of other oil companies) the issues were raised before and considering by the learned trial Court and although the petitioners have, so as to justify their request, relied on the said order of the learned trial Court, however, in present case the petitioners did not file appropriate application before learned trial Court and did not avail proper remedy, instead they have chosen to file petition under Section 482.
18.11.Actually, the said order should have guided and obliged the petitioners in present cases to approach learned trial Court with appropriate application rather than taking out present petition under Section 482 of the Code. In view of the observation by Hon ble Apex Court in case of Dharmatma Singh (supra) and the observations by Hon ble Apex Court in case between Raj Kapoor (supra) and also in the decision in case between Joseph Salvaraj A. (supra) and also having regard to the facts, aspects and issues involved in the matter, the Court is of the view that these are the cases wherein it would not be appropriate to exercise power under Section 482 at this stage but the petitioners ought to take out appropriate proceedings before learned trial Court.
19. In light of the facts of present case, it emerges that in present cases the petitioners are not justified in taking out present petitions at this stage i.e. when charge-sheet is filed and remedy is available to the petitioner under other provisions of the Code.
20. Learned Senior Counsel for petitioner Corporation relied on the decision in case between Seeta Hemchandra Shashittal (supra), Moti Lal Saraf (supra) and Vakil Prasad Singh (supra) to contend that the impugned charge-sheets and the proceedings deserve to be quashed also on ground of delay caused by CBI in investigation and filing charge-sheets. In this context it is necessary to recall the factual aspect mentioned at the outset viz. that the investigation commenced in view of or in pursuance of the orders passed by the Division Bench in Public Interest Litigation petition. In light of some of the observations made by the Division Bench in some of the orders passed in the said petition it is claimed by learned counsel for CBI that there was great resistance from the petitioners in the process of investigation and it took several orders and directions by the Court to pave the way for the progress and conclusion of the investigation.
However, this aspect/issue is such which can be appreciated by learned trial Court in light of the material on record of the case before the learned Court. Moreover, this Court is informed that the orders passed in the said petition and some of the directions issued by the Court in the said petition are subject matter of Special Leave Petition pending before the Hon ble Apex Court. In this view of the matter, it appears at this stage that this Court would not be justified in making any observation or taking any final or conclusive view in accepting the petitioners contention of quashing the proceedings and charge-sheets merely on ground of delay in completion of investigation. At this stage it is neither possible for the Court to reach any conclusion as regards the cause for alleged delay in investigation nor would it be proper or justified for this Court to make any observation on this count or to quash the proceedings on ground of delay in investigation.
21. As an upshot of the foregoing discussion and abovementioned reasons, these petitions are not accepted at this stage and they are disposed of.
21.1.It is clarified that it would be open to the petitioners to take out appropriate application including discharge application, as may be maintainable in accordance with law and the provisions under the Code, at appropriate stage and before appropriate Court. If and when any application is taken out learned trial Court will consider the same independently and in accordance with law and having regard to the provisions in the Code and after considering the material available on record and without being influenced by any other order/s.
21.2.It is also clarified that the observations made in present order are only prima facie observations and they do not reflect final views or conclusions of this Court on merits of the case of the petitioners and they are made only for the purpose of dealing with the contentions raised by the petitioners and for purpose of present order and the observations would not stand in way of and/or it would not affect in any manner whatsoever, the proceedings before the learned trial Court and/or the case of the petitioners and their respective contentions as may be available in law.
The petitions are, accordingly, not accepted. The petitions stand disposed of. Notice is discharged. If any ad-interim relief is in operation, it stands vacated.
(K.M.THAKER, J.) Jani 39