Jharkhand High Court
Pankaj Kumar @ Pankaj vs The Union Of India Through C.B.I on 8 March, 2019
Author: Aparesh Kumar Singh
Bench: Aparesh Kumar Singh
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. M. P. No. 986 of 2018
With
Cr. M. P. No. 987 of 2018
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Pankaj Kumar @ Pankaj --- --- Petitioner (in Cr.M.P.No.986/2018) Niraj Kumar @ Neeraj Kumar @ Niraj ---Petitioner (in Cr.M.P.No.987/2018) Versus The Union of India through C.B.I --- --- Respondent (in both cases)
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CORAM : The Hon'ble Mr. Justice Aparesh Kumar Singh
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For the Petitioner : Mr. Rahul Kumar, Adv.
Ms. Apoorva Singh, Adv.
For the C.B.I : Mr. Rajiv Nandan Pd., Adv.
Amicus Curiae : M/s. Ashutosh Anand, Kumar Vaibhav
Nipun Bakshi, Advs.
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11/08.03.2019 Heard learned counsel for the petitioners, learned CBI and
learned Amicus Curiae.
2. Both these petitions are being heard together as they assail the common impugned order dated 9th March 2018 whereunder learned Court of Special Judge-VII, C.B.I. (AHD Scam), Ranchi has arraigned them as accused in exercise of powers under Section 319 Cr.P.C. by taking cognizance under Section 120(B) read with Sections 420, 467, 468, 471 and 477A of the Indian Penal Code. Apart from it coincidently these two petitioners are real brothers sons of Late Dr. Shesh Muni Ram, the then Regional Director, Animal Husbandry Department at Dumka who was an accused in the instant R.C. Case No.45A/96-Pat but died on 17.1.2009 during trial. By the order dated 9th March 2018 passed in R.C. No.45A/96- Pat., learned CBI Court proceeded to pass order of arraignment of several persons in exercise of the power under Section 319 Cr.P.C. all of whom have separately assailed their arraignment in respective Criminal Misc. Petitions. These two petitioners have assailed the order taking cognizance dated 9th March 2018 inter alia both on factual as well as legal grounds briefly narrated hereunder.
3. Before proceeding to deal with the grounds of challenge urged by the petitioners it is appropriate to reproduce the extracts of the impugned order dated 9th March 2018 so far as it concerns the present petitioner :
"Further perusal of records, it transpires that I.O Ajay Kumar Jha accept in para-34 that forge allotment letter seized 2 from the government residence of Dr. Shesh Muni Ram, the then R.D. AHD, Dumka and Pankaj and Niraj, S/o Shesh Muni Ram reside in the same house, it is also disclosed that Shesh Muni Ram open register four firms in the name of son, father and some relatives as M/s. Tridev Enterprises, M/s. Sanjay Kumar, Dumka, M/s. Vishavakarma Agency, Deoghar whereas accused Arun Kumar Singh as domestic servant. And actual money received by Pankaj and Niraj son of Shesh Muni Ram but both are provide protection of Umbrella from CBI side, so after perusal of oral and documentary evidences, court found that prima facie case is made out U/s- 120(B) r/w Sec. 420, 467, 468, 471 and 477A of I.P.C. accordingly cognizance is taken.
O.C. is directed to issue summon against above both accused Pankaj and Niraj, both son of Dr. Shesh Muni Ram (R.D., AHD, Dumka) and for fixed dated 28.03.2018 for appearance of above both accused. And further directed that record separated from original immediately."
4. Learned counsel for the petitioners at the outset submitted that it is not a matter of dispute that these two petitioners are sons of Late Dr. Shesh Muni Ram, the then Regional Director, AHD, Dumka. The instant R.C. Case 45A/96 is in relation to fraudulent withdrawals under AHD at Dumka during the period 1991-92 to 1995-96. Dr. Shesh Muni Ram was posted as Regional Director, AHD, Dumka from 31.01.1991 to 26.06.1994 as would also be evident from the chargesheet enclosed to the supplementary affidavit and the final judgment dated 19th April 2018. The petitioners Pankaj was born on 5th January 1975 and petitioner Niraj was born on 15.08.1979. Evidently petitioner Pankaj was a minor till 04.01.1993 and petitioner Niraj was a minor till 14th August 1997. The learned trial court while dealing the case of Ajay Kumar Jha in the same impugned order has referred to these two petitioners as 'boys' being guided by this fact probably. Apart from that from perusal of the extract of the impugned order quoted above, it would appear that it is the statement made by Ajay Kumar Jha as P.W.197 during trial at paragraph-34 that the learned court has drawn an impression that the Regional Director, AHD, Dumka Dr. Shesh Muni Ram had opened registered firms in the name of his son, father and some relatives and that these two petitioners were residing in his government residence from where forged allotment letters were seized by the CBI. The learned court has referred to the names of the firms as M/s. Tridev Enterprises, M/s. Sanjay Kumar, Dumka 3 and M/s. Vishavakarma Agency, Deoghar. The learned court has also derived an impression that actual money was received by Pankaj and Niraj sons of Shesh Muni Ram to whom umbrella of protection was granted by CBI. These are the whole and sole findings of the learned court which propelled it to arraign these petitioners as an accused under Section 319 Cr.P.C.
5. Learned counsel for the petitioners has tried to dispel the observations of the learned court on facts by referring to the contents of the chargesheet filed by the CBI in the instant case on 10 th October, 2001. The same is enclosed to the supplementary affidavit. The chargesheet also contains a chart starting from page-122 of the supplementary affidavit showing the partners/proprietors of the accused firms with bank accounts. Under the sub-head of Suppliers of Feed and Fodder the name of supplier firm M/s Sanjay Kumar, Dumka is at serial no.1. The second column shows the name of the proprietor Sri Sanjay Kumar Agarwal, Gilanpara Road, Dumka and the last column contains the details of bank account in which it is shown 'Paid in cash'. At page-123 contains the chart of Suppliers of Veterinary Medicines' whereas at serial no.8 in the first column is the name of firm M/s. Vishwakarma Agency, Deoghar whose proprietor is Shri Arun Kumar Singh son of Shri Jugal Kishore Singh, Castair Town, Deoghar and the last column shows the Current Account No.1640 at Uco Bank, Deoghar. At page-124 at serial no.17 is the name of firm M/s Trideo Enterprises, Patna whose proprietor is shown as Shri Sanjay Kumar Agarwal son of Sri Harish Chandra Agarwal, 304, Surya Apartment, Exhibition Road, Patna having Current Account No.1162, Oriental Bank of Commerce, Exhibition Road, Patna. Learned counsel for the petitioner has then drawn the attention of this Court to the detail materials referred to in the chargesheet as against these three firms at page-149, 145 and 141 respectively. Learned counsel for the petitioner has placed the contents of the materials in the chargesheet against these three firms and submits that it does not at all refer to the involvement of these two petitioners. These were the materials available before the CBI at the time of filing of the chargesheet, on consideration whereof CBI did not consider it proper to implicate these two persons as accused. The decision to implicate a person as an accused in the Fodder Scam Cases was taken at the helm of the CBI i.e. the Director, CBI and in case of difference of opinion, 4 on the basis of the opinion of learned Attorney General. This was the mechanism devised by the Apex Court in the case of Union of India Vs. Sushil Kumar Modi reported in (1996) 6 SCC 500. The directions were further clarified by order dated 24.1.1997 as reported in (1997) 4 SCC 770. These directions were again clarified by the Apex Court in the order dated 7th April 1997 as reported in (1998) 8 SCC 664. It is submitted that the orders passed by the Apex Court has also been taken note of by this Court in the judgments passed in the cases of other persons arraigned as an accused by the common impugned order dated 9th March 2018 such as in the case of Ajay Kumar Jha Vrs. State of Jharkhand through CBI (Cr.M.P. No.1010/2018).
6. Learned counsel for the petitioner has placed the statement of the prosecution witness no.197 Ajay Kumar Jha also to dispel the observations gathered by the learned CBI Court against these petitioners. Photo copy of the certified copy of the relevant portion of the deposition of P.W.197 Ajay Kumar Jha has been placed before this Court. At para-34 Ajay Kumar Jha P.W.197 has categorically stated that forged allotment letters were recovered from the Government residence of Dr. Shesh Muni Ram. Pankaj, the elder son of Shesh Muni Ram (one of the petitioners herein) used to stay with him. P.W.197 further states that during course of investigation it was found that Dr. Shesh Muni Ram had got registered 4-5 firms for supply of medicines, machines and other items to the Animal Husbandry Department in the name of his son, father and other relatives. Further at para-35 this witness has stated that the name of father of Dr. Shesh Muni Ram was Shiv Raj Ram. Apart from M/s. Tridev Enterprises, Patna; M/s. Sanjay Kumar, Dumka and M/s. Vishavakarma Agency, Deoghar, other fake firms were also existing. His statements at para-35 and 36 referred to the name of the accused Arun who had stated that the firm Vishwakarma Agency was a partnership firm of Shiv Raj Muni Ram and Dr. Arun Kumar Singh and that Shesh Muni Ram was the main person who used to operate it. Arun was his daily wage employee. At paragraph 36 reference is made to the firm M/s Sanjay Kumar and M/s Trideo Enterprises which were reportedly run by Shesh Muni Ram from his house and from M/s Trideo Enterprises supply of veterinary medicines were made whereas from M/s Sanjay Kumar, Dumka firm transportation of fodder was shown. At para-37 it is further stated that Sanjay 5 Kumar Agarwal used to reside at Patna residence of Dr. Shesh Muni Ram at Surya Apartment and at Ashiyana and Galaxy Apartment Dr. Shesh Muni Ram had his personal office. It is pointed out that this witness has categorically denied the suggestions at the concluding part of para-37 that the business of these two firms were conducted by Dr. Shesh Muni Ram but his sons Pankaj and Niraj used to receive payments of the Animal Husbandry Department.
7. Learned counsel for the petitioner has also drawn the attention of the Court to the seizure list dated 5th December 1996 mentioned at serial 77 at page 31 of the chargesheet relating to seizure made from Shri Pankaj Kumar son of Dr. Shesh Muni Ram. It is submitted that this seizure list denotes the seizure of forged allotment letters from the Government residence of Dr. Shesh Muni Ram which is mentioned at para-34 of the deposition of Ajay Kumar Jha P.W. 197 and also mentioned by the learned court in the impugned order. Learned counsel for the petitioner has made two fold submissions on this count. In the first place it is submitted that the materials reflected from the statements of P.W.197 in his deposition at para-34 to 37 were such materials already before the CBI at the time of filing of the chargesheet. The CBI did not find any such incriminating material to chargesheet these two petitioners who were also apparently minor during the period of the fraudulent transactions. The learned CBI Court while taking cognizance on these materials also did not consider it proper to arraign these two petitioners as an accused in exercise of the powers under Section 193 Cr.P.C. Learned counsel has referred to the conclusion at paragraph-117.1 of Hardeep Singh Vrs. State of Punjab reported in (2014) 3 SCC 92 which answers the Question Nos. (i) and (iii) posed before it. In the second place learned counsel for the petitioner has strongly canvassed that mere statement of P.W.197 that these two petitioners used to obtain payment from Animal Husbandry Department does not in itself constitute evidence in the nature required to exercise the powers under Section 319 Cr.P.C. Reliance is placed on para-117.3 and 117.4 of the case of Hardeep Singh (Supra). He submits that these bare submissions do not stand corroborated by any incriminating evidence brought on record during trial or inquiry nor has it been referred to by the learned court while taking cognizance against these petitioners. As such, even on the face of the statements made by Ajay Kumar Jha P.W.197 the strict test prescribed by the Apex Court in the case of Hardeep Singh (Supra) at para-106 of the report i.e. more than a prima-facie case as exercised at the time of framing of charge, but short of satisfaction to an extent that the evidence, if 6 goes unrebutted, would lead to conviction, have not been satisfied. The Apex Court had clearly opined that in absence of such satisfaction, the court should refrain from exercising power under Section 319 Cr.P.C.
8. Learned counsel for the petitioner has referred to the judgment of this Court dated 1st March 2019 rendered in the case of Ajay Kumar Jha Vs. State of Jharkhand through CBI (Cr.M.P. No.1010/2018). He submits that this Court after consideration of all the factual and legal grounds, has been pleased to quash the order seeking to arraign the petitioner Ajay Kumar Jha who was examined as P.W.197 in the instant R.C. Case No.45A/96 by the learned CBI Court, vide the same impugned order dated 9th March 2018. Learned CBI Court had proceeded to arraign Ajay Kumar Jha as an accused on the basis of an impression that he had granted an umbrella of protection to several persons during investigation and not chargesheeted them. The names of these two petitioners also figure in the discussion of learned trial court as against the said Ajay Kumar Jha. This Court has discussed the observations of the learned court and at para-12 of the judgment opined that the materials referred to by the learned CBI Court were already before the CBI at the time of filing of the chargesheet. Decision to chargesheeet a person or not was taken at the helm of CBI i.e. at the level of the Director, CBI and in case of difference of opinion, on the basis of opinion of learned Attorney General. This Hon'ble Court felt that the learned CBI Court completely fell short of the strict legal standard and the degree of satisfaction required in terms of the Constitution Bench judgment in the case of Hardeep Singh (Supra) while seeking to arraign the petitioner Ajay Kumar Jha as an accused. It is submitted that the observations made by this Court would also cover the case of the present petitioners as the foundational facts and observations of the learned CBI Court flow from the deposition of P.W.197 only and no other material evidence were brought on record during inquiry or trial.
9. Learned counsel for the petitioner while concluding has also raised the additional ground of violation of principle of natural justice since no opportunity to show-cause or hearing was accorded to these petitioners before the order of arraignment was passed against them. He submits that the principle in this regard is well settled in the case of Jogendra Yadav & Ors. Vs. State of Bihar, (2015) 9 SCC 244 para-9. On the basis of these factual and legal grounds, petitioners have prayed for quashing of the impugned order as according to them if the orders are allowed to sustain, it would lead to grave miscarriage of justice.
710. On behalf of the CBI it is submitted that the observations made by the learned court regarding non-implication of the petitioners Pankaj Kumar and Niraj Kumar who were sons of Director Shesh Muni Ram are based on the deposition of P.W.197 but they only disclose the materials which were already before the CBI during investigation, on consideration whereof CBI had chosen not to chargesheet these two boys Pankaj Kumar and Niraj Kumar who were sons of Dr. Shesh Muni Ram. The statement of Ajay Kumar Jha as P.W.197 at para-34 of his deposition referred to the impugned order or even at para-37 do not bring on record any other evidence adduced during trial. The inference drawn by the learned court that Ajay Kumar Jha did not inquire and submit chargesheet against these two boys was also unwarranted. Learned counsel for the CBI has also relied upon the case of Hardeep Singh (supra) where the scope of the power under Section 319 Cr.P.C. has been delineated and explained. It is submitted that the decision to chargesheet or not to chargesheet a person as an accused was taken at the level of the Director, CBI in all the Fodder Scam cases and in case of difference of opinion, on the basis of opinion of the learned Attorney General in the light of the orders passed by the Apex Court in the case of Sushil Kumar Modi (supra) from time to time. While summarizing, it is submitted that the impugned order as against these petitioners have to cross the test of legal scrutiny as prescribed in the case of Hardeep Singh (supra) and also in the case of Jogendra Yadav (supra).
11. Learned Amicus curiae has assisted the Court both on factual and legal grounds. He has also placed a latest judgment of the Apex Court dated 27th February 2019 rendered in Cr. Appeal No.395/2019 (Sunil Kumar Gupta & Ors. Vs. State of Uttar Pradesh & Ors.) which follows the ratio rendered in the case of Hardeep Singh (supra). Learned Amicus Curiae has fairly submitted that observations of the learned CBI Court in the impugned portion do not reflect any evidence which were brought on record during inquiry or trial and were not before the CBI at the time of filing of chargesheet which could lead to a prima- facie opinion which is more than that required at the time of framing of charge, but short of satisfaction to an extent that if it went unrebutted, it could lead to conviction of the petitioners. Learned Amicus Curiae has also referred to the case of Brijendra Singh & Ors. Vs. State of Rajasthan reported in (2017) 7 SCC 706 where the opinion of the Apex Court in the case of Hardeep Singh (supra) has been further explained. He has also placed on record the judgment of the Apex Court rendered in the case of S. Mohammed Ispahani Vs. Yogendra Chandak & 8 Ors. Reported in (2017) 16 SCC 226, in particular para-29 wherein the opinion in the case of Brijendra Singh(supra) have also been quoted.
12. Considered the submissions of the learned counsel for the petitioners, CBI and the learned Amicus Curiae. I have also gone through the impugned order and the materials on record.
13. This Court in exercise of the inherent power under Section 482 Cr.P.C. is required to test whether the impugned order of arraignment of these petitioners is able to meet the test prescribed by the Apex Court in the case of Hardeep Singh (supra) and also consistently followed in the case of Brijendra Singh(supra), S. Mohammed Ispahani (supra) and Sunil Kumar Gupta(supra). It would not be out of place to mention that this Court was called upon to adjudicate similar challenge on behalf of the other persons who have been arraigned as an accused by the learned court of Special Judge-VII, C.B.I. (AHD Scam cases), Ranchi in the instant R.C. Case No.45A/1996-Pat. by the common impugned order dated 9th March 2018. Reference is made to the judgments passed in one or the other cases of Anjani Kumar Singh Vs. State of Jharkhand through C.B.I. (Cr.M.P. No.941/2018); Ajay Kumar Jha Vs. State of Jharkhand through C.B.I. (Cr.M.P. No.1010/2018) both judgments dated 1st March 2019. It would be repetition to reiterate the legal position in this regard as authoritatively laid down by the Constitution Bench judgment of Hardeep Singh (supra).
14. The legal test that has to be applied while exercising the extraordinary and discretionary power under Section 319 Cr.P.C. by a learned court should be one which is more than prima-facie case as exercised at the time of framing of charge, but short of satisfaction to an extent that the evidence, if goes unrebutted, would lead to conviction. In absence of such satisfaction, the court should refrain from exercising power under Section 319 Cr.P.C. [See Hardeep Singh (supra) para-106]. The Apex Court while summarizing its conclusion at para-117.1 in answer to Question no.(i) as to what is the stage at which power under Section 319 Cr.P.C. can be exercised, held that in Dharam Pal case the Constitution Bench has already held that after committal, cognizance of an offence can be taken against a person not named as an accused but against whom materials are available from the papers filed by the Police after completion of the investigation. Such cognizance can be taken under Section 193 Cr.P.C. and the Sessions Judge need not wait till 'evidence' under Section 319 9 Cr.P.C. becomes available for summoning an additional accused. Further, the word 'evidence' used in Section 319 Cr.P.C. has been explained by the Apex Court as meaning such evidence which is adduced during inquiry or trial, though the learned court is not required to wait for the evidence against the accused proposed to be summoned to be tested by cross-examination.
15. This Court finds that the conclusion of the learned court to arraign these petitioners as an accused flows from the statements of Ajay Kumar Jha (P.W.197) made during trial specifically para-34, though learned counsel for the petitioner and CBI have also placed the other succeeding paragraphs 35, 36 and 37 to clarify the things. This Court has also taken note of the reference to the firms M/s Trideo Enterprises, M/s Sanjay Kumar, Dumka and M/s. Vishwakarma Agency purportedly referred to as registered firms in the name of son, father and some relatives of Dr. Shesh Muni Ram. A perusal of the relevant materials on the chargesheet enclosed to the supplementary affidavit, however, shows that the first two firms were owned by the proprietor Sanjay Kumar Agarwal and M/s Vishwakarma Agency, Deoghar was in the name of Arun Kumar Singh. CBI in its chargesheet has while dealing with the material collected during investigation as against these firms made no mention of involvement of these two petitioners who were sons of Late Dr. Shesh Muni Ram. Certain documents/forged allotment letters mentioned at serial no.77 at page-31 of the chargesheet upon which the learned CBI Court took cognizance against several accused persons were already there while cognizance was taken. Learned CBI Court apparently did not find sufficient incriminating materials as against these two petitioners to take cognizance under Section 193 of the Cr.P.C. at the initial stage.
16. It would also be proper to refer to the order passed by the Apex Court in the matter relating to fodder scam cases in the case of Union of India Vs. Sushil Kumar Modi whereunder a mechanism was devised on the question of implication of a person upon conclusion of investigation. In ordinary circumstances such decision was to be taken at the level of Director, CBI but in case of difference of opinion between the officials of the CBI and in particular when the Director, CBI did not approve of implication of a person as an accused, then the matter was to be decided as per the opinion of learned Attorney General. The Apex Court in the order dated 7th April 1997 in the case of Union of India Vrs. Sushil Kumar Modi reported in (1998) 8 SCC 664 further clarified its earlier order and held that if only the Director CBI takes a 10 view that an individual is not to be prosecuted then he cannot close the case and in that event he must refer the matter to the Attorney General for his opinion. In such a case, if the Attorney General is of the opinion that the individual must be prosecuted then the Director, CBI is to promptly act on that opinion and commence the prosecution. If, however, the Attorney General also concurs with the Director, CBI that the individual is not to be prosecuted, then the matter has to be reported to the Court for examination by the Court within the parameters of such a proceeding. This was the legal position so far as the implication of a person as an accused in the fodder scam cases is concerned.
17. CBI did not have reason to prosecute these two petitioners on the materials collected during investigation as apparently it were not incriminating in nature, though these two petitioners were sons of Dr. Shesh Muni Ram, Regional Director, AHD, Dumka who was one of the main perpetrators of the scam. It has also been brought to the Court's notice that proprietors of the firms namely Mr. Sanjay Kumar Agarwal and Mr. Arun Kumar Singh were chargesheeted and have also faced conviction. Dr. Shesh Muni Ram however passed away during pendency of the trial.
18. The deposition of P.W.197 from paragraphs 34 to 37, as also noted above, does not reveal any other incriminating material evidence adduced during inquiry or trial apart from what was already before the CBI at the time of filing of the chargesheet. Learned CBI Court also completely failed to refer to any other evidence as brought on record during inquiry or trial against these petitioners which were of such incriminating nature that could enable it to form a prima-facie opinion which is more than what is required at the time of framing of charge, but short of satisfaction to an extent that if the evidence went unrebutted, it could lead to conviction of these two petitioners. The caution advised by the Hon'ble Apex Court in the case of Brijendra Singh & Ors. (supra) as also reiterated in the case of S. Mohammed Ispahani (supra) in exercise of such extraordinary and discretionary power under Section 319 Cr.P.C. needs no reiteration by this Court. Only where strong and cogent evidence adduced during inquiry or trial occurs against a person from the evidence led before the Court that such a power should be exercised. This power should not be exercised in a casual or cavalier manner. The prima-facie opinion which is required should be based on stronger evidence than mere probability of his complicity. Upon 11 detailed consideration of factual canvass of these cases, this Court is of the opinion that the order passed by the learned CBI Court is not able to meet the strict prescribed test.
19. The impugned order also suffers from clear violation of principles of natural justice since no opportunity to show-cause or hearing was given to these petitioners before they were arraigned as an accused. In the case of Jogendra Yadav (supra) the Apex Court has dealt with the rationale behind necessity of affording such an opportunity before a person is arraigned as an accused under Section 319 Cr.P.C. The person so arraigned does not have an opportunity to seek discharge under Section 227 of the Cr.P.C. like an accused initially chargesheeted. Learned court has failed to adhere to the salient principles of law laid down by the Apex Court in this regard.
20. Under the aforesaid facts and circumstances and as an upshot of the discussions made herein above, this Court is of the opinion that the impugned order of arraignment which entails grave and adverse consequences cannot be sustained in the eye of law or on facts as it suffers from serious infirmities. If it is not set aside, it would lead to grave miscarriage of justice. Accordingly, the impugned orders as against both the petitioners are set aside. The petitions are allowed.
21. Before parting, this Court feels it proper to record its appreciation for the valuable assistance rendered by the learned Amicus Curiae during hearing of these cases. The Secretary, High Court Legal Services Committee shall bear the admissible fee/legal remuneration of the learned Amicus Curiae from the funds of the High Court Legal Services Committee within a time frame.
(Aparesh Kumar Singh, J.) Shamim/