Allahabad High Court
Dr. M.C. Sharma vs Central Bureau Of Investigation on 30 August, 2019
Equivalent citations: AIRONLINE 2019 ALL 1652, (2020) 1 ALLCRIR 103
Author: Ramesh Sinha
Bench: Ramesh Sinha
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Reserved on 2.8.2019 Delivered on 30.8.2019 Court No. - 1 Case :- APPLICATION U/S 482 No. - 7234 of 2019 Applicant :- Dr. M.C. Sharma Opposite Party :- Central Bureau Of Investigation Counsel for Applicant :- Priyanka Midha Counsel for Opposite Party :- Gyan Prakash With Case :- APPLICATION U/S 482 No. - 7720 of 2019 Applicant :- Smt. Aparna Saxena Opposite Party :- Cintral Bureau Of Investigation Counsel for Applicant :- Ram M. Kaushik Counsel for Opposite Party :- Gyan Prakash Hon'ble Ramesh Sinha,J.
1. Both the applications under Section 482 Cr.P.C. have been filed for quashing the impugned order dated 19.12.2018 and the order dated 23.1.2019 passed by the Court of Special Judge, CBI, Ghaziabad District Court in Special Case No.17 of 2016, arising out of Case Crime No. RCDST/2013/ A/0001/STF/New Delhi under Sections 120B, 420 & 471 I.P.C. and Section 13(2) read with 13(1) (d) of Prevention of Corruption Act, 1988, Police Station CBI/STF, New Delhi, District Ghaziabad.
2. Since both the 482 Cr.P.C. applications are arise of the common order, hence, with the consent of learned counsel for the parties, both the 482 Cr.P.C. applications are being decided by a common order.
3. Brief facts of the case are that a First Information Report was lodged in pursuance of the order passed by this Court on 15.11.2011 in Writ Petition No.3611 (MB) of 2011 "Sachchidanand (Sachchey) Vs. State of U.P. And others" on 14.1.2013 which was lodged by the respondent No.1-CBI on the basis of preliminary enquiry No.0532011S0004 (registered on 19.11.2011), wherein three persons, namely, Sri Arun Kumar Saxena, Sri Prashant Saxena and M/s. Aanjaneya Business (India) Pvt. Ltd. along with unknown officials of Government of Uttar Pradesh, NCCF and others were named as accused.
4. The allegations made in the FIR dated 14.1.2013 in nutshell are that the preliminary enquiry revealed that during 2008-09, a programme implementation plan (PIP) was submitted to NRHM, Government of India, New Delhi, wherein it was proposed to take up a Pilot Telemedicine Project in 10 District of U.P. with the support of SGPGI, Lucknow having a proposed estimate of Rs.915.37 lacs, for which an amount of Rs.9.15 Crores was sanctioned for the year 2008-09 and funds were released to the State Health Society (SHS), NHRM in June, 2008 and March, 2009. Further allegation is that the said Telemedicine Project was originally carried out by the Director General, Medical Health (DGMH) but was arbitrarily decided by the then Principal Secretary (Health and Family Affairs) on 21.2.2009 to get the project implemented through the Director General (Medical Education), U.P. (hereinafter referred to as 'DGME) in three medical colleges of the State of U.P., for which Rs.9.15 Crore was transferred to the joint account of DGME and Finance Controller (ME). Further allegation is that DGME arbitrarily awarded the Project to M/s. National Consumer Co-operative Federation Ltd. (NCCF), Lucknow Branch without following the tender Process and without calling for any open tender, thereby violating the guidelines of the Central Government on NRHM. The NCCF got the project implemented through M/s. Aanjaneya Business (India) Pvt. Ltd., their Business Partner, which was formed in June, 2007 with Sri Prashant Saxena and his wife Ms. Aparna Saxena as the Director and did not have any experience in Telemedicine Project and were mainly involved in civil constructions, whereas according to the NCCF guidelines for delegation of powers, it was provided that any new line of business had to be undertaken with the approval of NCCF (HO) and the same was not followed. The further allegation is that M/s. Aanjaneya Business (India) Pvt. Ltd. carried out works in three medical colleges and submitted exorbitant bills to NCCF.
5. The further allegation is that M/s. Aanjaneya Business (India) Pvt. Ltd. in criminal conspiracy with Sri Arun Kumar Saxena, Manager NCCF, claimed exorbitant bills, thereby cheating the government causing a wrongful loss to Government and corresponding wrongful gain to M/s. Aanjaneya Business (India) Pvt. Ltd. and the said Sri Arun Kumar Saxena, the then Manager NCCF and presently Senior Research Engineer (RDSO), Lucknow and Sri Prashant Saxena had common business interest through another Company M/s.Firestone Builder Pvt. Ltd., in which wife of Sri Arun Kumar Saxena, namely, Dr. Indu Saxena was a Director.
6. The CBI after completing the investigation, submitted charge sheet being Charge Sheet No.12 of 2016 on 31.5.2016 for the offence under Sections 120B, 420 & 471 I.P.C. and Section 13(2) read with 13(1) (d) of Prevention of Corruption Act, 1988 against (i) Arun Kumar Saxena, the then Manager, NCCF, (ii) Prashant Saxena, the Director, M/s. Aanjaneya Business India Pvt. Ltd., (iii) Smt. Aparna Saxena, the Director, M/s. Aanjaneya Business (India) Pvt. Ltd., (iv) M/s. Aanjaneya Business (India) Pvt. Ltd. through its Directors, (v) Dr. M.C.Sharma, the present applicant & (vi) Ram Kumar Prasad, the then Joint Secretary.
7. The Special Judge, Anti Corruption (CBI), Ghaziabad took cognizance on 30.8.2016 for the offence in which charge sheet was submitted and summoned the accused persons including the applicant. The applicant and other co-accused persons were granted bail by the competent court. Thereafter, the applicant moved a discharge application before the trial Court on 27.7.2017 and the same was rejected by the trial Court on 19.12.2018 and thereafter the charges were framed against the applicant and co-accused persons on 23.1.2019 by the trial Court for the offence under Sections 120B, 420 & 471 I.P.C. and Section 13(2) read with 13(1) (d) of Prevention of Corruption Act, 1988. Aggrieved by the same, the applicant has preferred the present 482 Cr.P.C. for quashing of the same.
8. Heard Sri Tanveer Ahmad, assisted by Sri Ram M. Kaushik, learned counsel for the applicant, Sri Gyan Prakash, learned Senior Advocate assisted by Sri Sanjay Kumar Yadav, learned counsel for the C.B.I. and perused the material brought on record.
9. So far as applicant-Dr. M.C. Sharma is concerned, it has been argued by learned counsel for the applicant that the charges which have been framed against him by the trial Court is erroneously in disregard of the admitted position of the CBI in terms of the materials, documents and witness statements placed on record along with the charge sheet. He further submitted that the trial Court passed the order framing charge mechanically not taking into consideration the submissions made in the written applications and also the fact that every allegation made against the applicant by the CBI controverted by the witnesses whose statements had been recorded during the course of investigation and placed on record as relied upon the documents. He next submitted that the charges levelled against the applicant stood completely, comprehensively and without any reasonable doubt, negated by the prosecution relied upon documents as well as relied upon statements of various witnesses and hence, the exoneration of the applicant was not based on his individual contrarian defence, but upon a mere perusal and plain reading of the statements recorded under Section 161 Cr.P.C. of witnesses like-Dr. Hari Om Dixit; Chanchal Tiwari; S.K.Mishra; Pradeep Shukla; Harbhajan Singh. He submitted that from the statements of the said witnesses which are relied upon by the documents of the CBI were clearly exonerating the applicant in letter and spirit regarding all the allegations made against him. The learned trial Court thus, failed to appreciate this vital aspect of the matter and erred in framing charge against the applicant on 23.1.2019. Hence, the impugned order framing charge is liable to be quashed by this Court.
10. He next submitted that the CBI has alleged in the charge sheet that the main scheme of NRHM was to connect the rural hospitals, also known as First Referral Units of District Level Hospital with a super specialty institute through the tele- medicine project, but the accused persons through a criminal conspiracy changed this basic plan and implemented the tele-medicine project by connecting medical colleges with SGPGI. He submitted that the said allegation has no basis in view of the statements recorded under Section 161 Cr.P.C. of the witnesses, namely, Dr. Hari Om Dixit who at the relevant time was General Manager Community Process NRHM in SPMU dated 1.3.2013 and 27.6.2013 very clearly indicates that the decision to connect medical colleges with SGPGI was more than a prudent decision instead of connecting FRU/CHC/BPHC to a district level hospital and then to SGPGI. He himself admits that he was present in the review meeting dated 21.2.2009 where the decision was taken. The mission director of NRHM Mr. Chanchal Tiwari was also present in the aforesaid meeting of 21.2.2009 and vide his letter dated 3.3.2009, he endorsed connection of medical colleges with SGPGI through DGME. The aforesaid decision was also fully supported by Pradeep Shukla, the then Principal Secretary, Medical Health. Dr. I.S. Srivastava, the then Director General, Medical Health was also present in the aforesaid meeting dated 21.2.2009 and he fully supported the tangible shift to connect medical colleges with SGPGI through the tele-medicine project which is reflected in the latter dated 24.2.2009 which is a relied upon document filed by the CBI. Moreover, Dr. Hari Om Dixit on 20.4.2009 himself suggested the names of medical colleges which is reflected in the statement dated 28.2.2013 under Section 161 Cr.P.C. of Dr. Suniti Raj Mishra and also by the mechanism of letter dated 4.5.2009 which is relied upon by the CBI, written by DGME to Dr. Hari Om Dixit.
11. He also urged that the allegation made by the CBI against the applicant that he had committed offence of conspiracy, cheating and substantive offences under the Prevention of Corruption Act by being the accessory to NCCF being the implementing agency for the entire tele-medicine project is negated totally by the relied upon documents and relied upon statements of the CBI, which the trial Court has failed to consider. In this regard, he has pointed out the statement of PW1 Dr. Hari Om Dixit who himself endorses and supports selection of NCCF as the agency to implement the tele- medicine project vide his two statements dated 1.3.2013 and 27.6.2013.The NCCF was a nominated agency for implementing various projects for and on behalf of the Department of Medical Education, Government of U.P., fully endorsed vide Government Order dated 12.7.2008, hence, on this count NCCF cannot be stated by any stretch of imagination to be a tainted agency, incapable of implementing the project, for the reason that it is not a case of CBI that even the Government Order dated 12.7.2008 is a project of criminal conspiracy and commission of criminal offences at the end of government officials. Harbhajan Singh (PW-34) himself issued a Government Order being the then Principal Secretary, Medical Education, Government of U.P. dated 30.3.2009 in favour of NCCF to implement the tele-medicine project, which has been supplied and duly received by PW1-Dr. Hari Om Dixit as well as to the office of DGMH. Post 21.2.2009 it was the Principal Secretary, Medical Education, Government of U.P. who is Harbhajan Singh, a cited witness, who himself called Dr. Saroj Kanta Mishra of SGPGI and asked him to lend technical support in the implementation of the tele-medicine project through the agency of NCCF, Dr. Saroj Kanta Mishra vide his statements dated 28.6.2013 and 17.12.2013 had himself endorsed this fact, therefore, on this basis also the selection of NCCF is endorsed as a valid act by all concerned, however, most illegally without any substantive evidence unfounded evidence has been made on the applicant as well as Mr. Ram Kumar Prasad.
12. In support of his argument, learned counsel for the applicant has placed reliance upon the judgments of the Apex Court in the case of Union of India Vs. Prafulla Kumar Samal & Another, reported in (1979) 3 SCC 4, Yogesh Vs. State vs. Maharashtra (2008) 3 SCC 394, Dilawar Balu Kurane Vs. State of Maharashtra, (2002) 2 SCC 135, Central Bureau of Investigation, Hyderabad Vs. K.Narayana Rao (2012) 9 SCC 512 & Naresh Vs. State of Uttar Pradesh (2012) 1 All LJ 202.
13. He next submitted that the learned trial Court also failed to appreciate that post the amendment of the provisions of Prevention of Corruption Act w.e.f. 26.7.2018, there was clear requirement and a consequent obligation that no criminal trial could proceed against the petitioner in view of the fact that no sanction under Section 19 against him had ever been obtained and, therefore, no charge could be framed against him. Moreover, there was no sanction under Section 197 Cr./P.C. available on record against any one, in any case the entire narrative of section 13 having completely changed, it was imperative on part of learned trial Court to follow the dictum of the following judgments:-
I. T. Baray Vs. Nenry A.H. Hoe- (1983) 1 SCC 177;
II. Nemi Chand Vs. State of Rajastjhan-11(2016) CCR 15 (SC), MANU/SC/0506/2016;
III. Ratan Lal Vs. State of Punjab-AIR (1965) SC 444;
IV. Sham Lal Vs.State (1968) Allahabad 392.
14. It is further submitted that the applicant therefore, is entitled to the benefit of rule of beneficial construction to the extent that beneficial construction requires that ex-post-facto law should be applied to reduce the rigorous sentence and applicability of the previous law of the same subject and such a law is not affected by Article 20(1) of the Constitution of India. Moreover, the aforesaid principle is based on a legal maxim, "salus populi est suprema lex" which means that welfare of the people is supreme for law and the aforesaid application of beneficial construction is inspired and guided by the principle of justice, equity and good conscience.
15. It is submitted that the guiding principles of interpretation are explicitly clear and provide a clear path that once there has been an amendment and change in the legal situation and specific to the present case where the provision of Section 13(1) (d) has been obliterated from the statute then in no circumstances would it be just and reasonable if the innocent applicant is subject criminal prosecution under Section 120B read with Section 13(2) r/w 13(1) (d) of Prevention of Corruption Act. Therefore, on this ground alone the impugned orders ought to be quashed and set aside because the learned trial Court has failed to appreciate that the amendment came into force from 26.7.2018, much prior to passing of the impugned orders dated 19.12.2018 and 23.1.2019. It would be pertinent to mention here that this Court in Sham Lal's case clearly opined that with the amendment of the existing law, the previous law would be rendered inchoate and criminal prosecution for the previous law would be unjustified and unreasonable. Moreover, in view of the fact that if a person could not be charged for the amended law as far as the allegation of criminal misconduct is taken into consideration, then he ought not be tried or convicted for the previous law which has been removed, same is also the intent of the legislature.
16. On the other hand, learned counsel for the CBI has opposed the prayer for quashing of the impugned orders passed by the trial Court and has submitted that as the charges have already been framed against the applicant and the trial is in progress, this Court may refrain from interfering in the present 482 Cr.P.C. application for quashing of the impugned orders as the allegations levelled in the FIR and charge sheet has to be tested during the course of trial and because of the act of the applicant and co-accused persons, there has been a huge financial loss to the State Exhequer to the tune of several Crores of rupees. He further submitted that during the course of investigation by the CBI, the applicant, the then Director General, Medical Education (now retired), informed in the said meeting about the nomination of NCCF (a Central Government Agency) for conducting tele-medicine project for DGME, in the light of Government Order dated 12.7.2008 of Government of Uttar Pradesh. Prior to the decision taken by the Executive Committee of NRHM, Prashant Saxena, Director of M/s. Aanjaneya Business India Pvt. Ltd., Lucknow vide his letter dated 24.2.2009 addressed to the Branch Manager, NCCF, Lucknow furnished preliminary cost analysis estimates worth Rs.81.39 Crores for tele-medicine project at 14 Medical Colleges and 74 District Hospitals of U.P. and it is also proposed to create Networking Hub and Video Conferencing for DGME and main Hub at SGPGI, Lucknow.
17. He next argued that in the letter dated 24.2.2009, M/s. Aanjaneya Business India Pvt. Ltd. had mentioned the deliberations of the discussions already held with the applicant Dr. M.C.Sharma, DGME and Training Lucknow, which shows that it was pre-decided on the part of the applicant to dishonestly get the execution of the Tele-medicine project through M/s. Aanjaneya Business India Pvt. Ltd., Lucknow. The investigation has revealed that on the very same day, the aforesaid proposal with slight modification was forwarded to the applicant, the then Director General Medical Education vide letter dated 24.2.2009 purportedly issued under the signature of one P.D.Sharma, the then In-charge Branch Manager, NCCF, Lucknow. However,, P.D.Sharma denied his signature on the said proposal. Further, the signature which establishes that the signature in the proposal was a forged one. DGME further forwarded the above referred proposal to the office of Secretary, ME along with a covering letter No.1149 dated 24.2.2009. The DGME being the executive agency for the project and acting as a Head of the Department did not examine the proposal of NCCF with market prevailing rates and the feasibility of the proposal while referring the approved PIP and dishonestly with criminal intent to extend undue favour to M/s. Aanjaneya Business India Pvt. Ltd. forwarded the bogus proposal of NCCF to the Medical Education Secretariat flouting the existing NRHM Rules and Guidelines wherein only the Executive Committee of NRHM was competent to approve the funds. The applicant was already known to Prashant Saxena as he had been doing for various State funded constructions projects for DGME and similarly, Arun Kumar and Prashant Saxena were in close association as they had common business interest in another company, namely, M/s. Firestone Builders Pvt. Ltd., in which Dr. Indu Saxena wife of Arun Kumar Saxena is the Managing Director. All the State funded projects awarded to Prashant Saxena through NCCF were got executed by him through M/s. Firestone Builders, Lucknow. It was also proposed for release of the proposed funds of Rs.9 Crores in favour of DGME from the accounts of DGMH, Lucknow, so that the same could be released for the nominated agency, i.e. NCCF. He submitted that after thorough investigation, CBI has submitted charge sheet against the applicant and co-accused persons who are facing trial.
18. Learned counsel for the CBI has further submitted that the trial Court has dealt with giving cogent and sound reasons rejecting the arguments of the learned counsel for the applicant with respect to the framing of charge under Section 13(1) (d) of the P.C. Act referring to the provision of Section 6 of the General Clauses Act, 1897.
19. So far as applicant-Smt. Aparna Saxena is concerned, it has been argued by learned counsel for the applicant that she is a housewife who got married to co-accused Prashant Saxena in the year 1989 and as on date the she has a young daughter, namely, Sukriti aged about 3 years. The applicant's husband incorporated a Company for his own business, namely, M/s. Aanjaneya Business (India) Pvt. Ltd. in which the applicant was introduced as a Director for fulfilling the paperwork. The applicant has never been working full time or participating in the day-to-day affairs of said Company. The applicant has never been involved and has not been subjected in any criminal case till date except the criminal case in question.
20. It was further argued that the allegation levelled against the applicant Smt. Arpana Saxena is limited to the extent as has been mentioned in the charge sheet that the applicant purportedly signed the MOU dated 28.10.2009 and a cheque for Rs.10 lacs. Admittedly, there is no allegation whatsoever that the applicant played any active role in the business operation or that she was in connivance with any other co-accused. In addition to the admitted position and limited allegations of the Investigating Officer, key prosecution witnesses, namely, Pankaj Kapoor (PW-50) and Hemant Raja (PW-51) in their statements under Section 161 Cr.P.C. have themselves exonerated the applicant Smt. Aparna Saxena as Pankaj Kapoor in his statement dated 23.12.2014 has stated that although the applicant signed the cheque for Rs. 10 lacs, but she was never involved in the matter and that the only point of contact was Mr. Prashant Saxena. Similarly, Hemant Raja who was the Chartered Accountant for NCCF, expressly mentioned in his statement recorded u/s 161 Cr.P.C. on 22.12.2014 that although MOU dated 28.10.2009 was signed by the applicant, but she was not actively working for the Company. The said witness had not seen her attending any meeting, visiting any of the offices and managing any of the work related to project. He further stated that the applicant signed Rs.10 lacs cheque as an advance payment only in the absence of her husband who used to otherwise handle all the business dealing. He submitted that there appears to be no evidence against the applicant to show that there was any criminal conspiracy between the applicant and her husband Prashant Saxena in the alleged crime, hence, no offence under Section 420, or 420 read with 120-B I.P.C. or 471 read with 120-B I.P.C. or 120-B read with 13(2) read with 13(1) (d) of P.C. Act is made out against the applicant. Moreover, there is no strong suspicion against the applicant and she has been arrayed as an accused only on account of being the Director of the Company and wife of co-accued Prashant Saxena. In support of his argument, learned counsel for the applicant has placed reliance upon the judgment of the Apex Court in the case of Shreya Jha Vs. CBI, ILR (2007) Supp. (2) Delhi 19 and relied upon paragraph nos.7,8,9, 11 & 12 of the said judgment, which is quoted here-in-below:-
"7. The question is regarding the charge under Section 120-B of the IPC. To draw a case under the said section, it must be shown that there was an agreement, link, nexus between the petitioner and the accused. The chargesheet filed by CBI mentions the petitioner Ms. Shreya Jha but once where it states as follows:-
Investigation has revealed that in furtherance of the said criminal conspiracy accused Shreya Jha d/o V.K. Jha r/o B-180, Sector-31, NOIDA, prop. of M/s Anamika Enterprises and M/s Nupur Enterprises aided and abetted the commission of offences as an amount of Rs. 5, 50,000/- and Rs. 39, 95,000/- were transferred in the respective accounts of the above said firm maintained at Canara Bank, Chandni Chowk and Punjab and Sind Bank, Safdarjung Enclave, New Delhi from the said account of M/s Juniper Jewellery Pvt. Ltd. In this way, Shreya Jha was found involved in siphoning of the money at the instance of Smt. Nandita Bakshi and V.K. Jha dishonestly.
8. In Sanjiv Kumar v. State of Himachal Pradesh , the Supreme Court, speaking about what is the essential nature of conspiracy held that the offence under Section 120-B is an agreement between the parties to do a particular act. Association or relation to lead a conspiracy is not enough to establish the intention. It is true that consipracies are products of stealth, and seldom evidenced by direct material; largely it is to be inferred on the circumstances, and attendant facts. Yet, there should be some bedrock facts which can lead to such inferences, even at the charge framing stage. Thus, the sine qua non for a charge to be sustainable under Section 120-B, IPC is the agreement between the parties. Such an essential ingredient is singularly absent; the CBI has been unable to show anything in that regard. I find no infirmity with that approach.
9. The next question is whether the charges framed under Sections 409, 419, 420, 467, 468 and 471 of the Indian Penal Code, 1860 and Sections 13(2) read with 13(1)(d) of the Prevention of Corruption Act, 1988 against the petitioner are sustainable.
11. A fundamental principle of criminal jurisprudence is 'actus non facit reum nisi means sit rea'. In the present case, the respondent CBI has been unable to show a clear case against the petitioner. The circumstances pitted against her are based entirely on her being the daughter of one of the main accused in the alleged fraud, and fraudulent deception, which led to loss to the bank. The role assigned, or attribuited to the petitioner, i.e opening bank accounts which were used by her father to siphon off and misappropriate funds, after opening proprietorship concerns, which were always used by her father, are insufficient to draw an inference of existence of a grave suspicion of such nature as to warrant charges against her. In fact, the chargesheet merely states that the petitioner "at the instance of' Smt. Nandita Bakshi and V.K. Jha was found involved in siphoning of the money." No other link or attendant circumstance, as far as the petitioner's role is shown, or alleged in the chargesheet.
12. In the light of aforementioned observations, no substantiating prima facie case was made out against the petitioner, at least no prima facie case that about the grave suspicion of her involvement was made out. The trial court could not have proceeded to charge the petitioner as it did, on the available materials, and the allegations levelled in the charge sheet. Its order therefore, cannot be sustained."
21. Learned counsel for the CBI has vehemently rebutted the arguments of learned counsel with respect to the applicant-Smt. Aparna Saxena and has submitted that during the course of investigation, it has been established that M/s. Aanjaneya Business (India) Pvt. Ltd. is the beneficiary Company through its Director Prashant Saxena, Smt. Aparna Saxena and the Company through its Directors was found involved in criminal conspiracy, cheating, use of forged documents in order to get undue work of tele-medicine project wherein huge number of electronic equipments were purchased and installed at exorbitant prices causing huge financial loss to the Government Exchequer, as such involvement of the applicant is also established and there are sufficient evidence both oral and documentary on record to prove that the selection of M/s. Aanjaneya Business (India) Pvt. Ltd.was pre-decided by virtue of criminal conspiracy and DGME being the Head of the Department and member of Executive Committee of NRHM instead of getting the proposal approved in NRHM or going for open tender for purchase and installation of equipments straight away gave the work dishonestly in the name of NCCF and even NCCF awarded the project to M/s. Aanjaneya Business (India) Pvt. Ltd. on the basis of forged and bogus quotation process and the motive behind this was conspiracy to earn undue profit margin by way of installing equipment at exorbitant prices avoiding all the financial guidelines and procurement rules. Hence, the accused persons including the applicant conspired with each other and caused huge financial loss to the Government. He further submitted that the investigation revealed that the applicant Smt. Aparna Saxena, wife of Prashant Saxena and one of the Directors of M/s. Aanjaneya Business (India) Pvt. Ltd., who signed the main MoU dated 28.10.2009 with NCCF on behalf of the Company and also signed a cheque of Rs.10 lacs towards advance payment to sub contract the work of M/s. CSPL is also the beneficiary of the wrongful gain, hence, submitted that the trial court has rightly framed charges against the applicant and her trial is also warranted.
22. Having considered the submissions advanced by learned counsel for the parties and perused the material brought on record.
23. After having examined the submissions advanced by learned counsel for the parties and perused the material brought record with respect to the applicant-Dr. M.C.Sharma is concerned, it is apparent that the C.B.I. during the course of investigation has found his involvement in the present case along with other co-accused persons, namely, Prashant Saxena, who is Director, M/s. Aanjaneya Business India Pvt. Ltd. and Arun Kumar who had close association with the co-accused Prashant Saxena had common business interest through another Company, i.e., M/s. Firestone Builder Pvt. Ltd. with whom the applicant was known to Prashant Saxena as Prashant Saxena had been doing various State funded construction project for DGME and all the State funded projects awarded to Prashant Saxena through NCCF were got executed by him through M/s. Firestone Builder Pvt. Ltd.
24. The matter relates to NRHM Scam which runs in several Crores and State Exchequer has been put to loss because of the collusion of the applicant along with the co-accused persons, hence, involvement of the applicant in the present case at this stage cannot be doubted.
25. The contention of the learned counsel for the applicant that the charges which have been framed against the applicant by the trial Court is contrary to what has been stated by the witnesses under Section 161 Cr.P.C. and on that count the impugned order framing charge be set aside, is not sustainable because if there is any error in the charge framed by the trial Court the same cannot be amended and altered at any stage of the trial considering prosecution evidence led during the course of the trial.Thus, it would not be proper for this Court to interfere in the present 482 Cr.P.C. application as the allegations made in the FIR and the evidence collected during the course of investigation by the C.B.I. against the applicant, the prosecution has to be given full opportunity to prove its case by adducing evidence against the applicant and co-accused persons .
26. The Apex Court in catena of decisions has summarized the principles in respect of framing of charge or discharge of accused, which are as follows:-
27. The Apex court in case of State of Karnataka v. L. Muniswamy (1977 (2) SCC 699) has held that at the stage of framing the charge the court has to apply its mind to the question whether or not there is any ground for presuming the commission of offence by the accused. The Court has to see while considering the question of framing the charge as to whether the material brought on record could reasonably connect the accused with the trial. Nothing more is required to be inquired into.
28. In case of Supdt. & Remembrancer Of Legal vs Anil Kumar Bhunja & Ors 1979 SCC (4) 274 the Apex court has observed that it may be remembered that the case was at the stage of framing charges; the prosecution evidence had not yet commenced. The Magistrate had therefore, to consider the above question on a general consideration of the materials placed before him by the investigating police officer. At this stage, as was pointed out by this Court in State of Bihar v. Ramesh Singh, the truth, veracity and effect of the evidence which the prosecutor proposes to adduce are not to be meticulously judged. The standard of test, proof and judgment which is to be applied finally before finding the accused guilty or otherwise, is not exactly to be applied at the stage of Section 227 or 228 of the Code of Criminal Procedure, 1973. At this stage, even a very strong suspicion founded upon materials before the Magistrate, which leads him to form a presumptive opinion as the existence of the factual ingredients constituting the offence alleged; may justify the framing of charge against the accused in respect of the commission of the offence.
29. In State of M.P. Vs. Mohanlal Soni, (2000) 6 SCC 338, the Hon'ble Supreme court held in paragraph 7 as under:
" 7.The crystallised judicial view is that at the stage of framing charge, the court has to prima facie consider whether there is sufficient ground for proceeding against the accused. The court is not required to appreciate evidence to conclude whether the materials produced are sufficient or not for convicting the accused."
30. In case of Kanti Bhadra Shah And Anr vs State Of West Bengal 2000 (1) SCC 722 the Apex court has held that if the trial court decides to frame a charge there is no legal requirement that he should pass an order specifying the reasons as to why he opts to do so. Framing of charge itself is prima facie order that the trial judge has formed the opinion, upon consideration of the police report and other documents and after hearing both sides, that there is ground for presuming that the accused has committed the offence concerned.
31. In Smt. Om Wati & Anr vs State, Through Delhi Admn. & Ors 2001 CR.LJ 1723, the Apex court has observed that we would again remind the High Courts of their statutory obligation to not to interfere at the initial stage of framing the charges merely on hypothesis, imagination and far-fetched reasons which in law amount to interdicting the trial against the accused persons. Unscrupulous litigants should be discouraged from protracting the trial and preventing culmination of the criminal cases by having resort to uncalled for and unjustified litigation under the cloak of technicalities of law.
32. The Apex Court in the case of Palwinder Singh Vs. Balvinder Singh; 2009 (3) SCC 850 has held that the jurisdiction of Sessions Judge at the time of discharge is very limited. In the said judgment it has been held that charges can also be framed on the basis of strong suspicion. Marshaling and appreciation of evidence is not in the domain of the court at that point of time.
33. Hon'ble Supreme Court in Sajjan Kumar Vs. Central Bureau of Investigation, (2010) 9 SCC 368, held as under:
"At the stage of framing of charge under section 228 Cr.P.C. or while considering the discharge petition filed under Section 227, it is not for the Magistrate or the Judge concerned to analyse all the materials including pros and cons, reliability or acceptability, etc. It is at the trial, the Judge concerned has to appreciate their evidentiary value, credibility or otherwise of the statement, veracity of various documents and is free to take a decision one way or the other."
34. The Apex Court in catena of decisions has summarized the principles in respect of framing of charge or discharge of accused and in the case of Sheoraj Singh Ahlawat and others Vs. State of U.P. and another, (2013) 11 SCC 476 has held as under:-
"While framing charges, court is required to evaluate materials and documents on record to decide whether facts emerging therefrom taken at their face value would disclose existence of ingredients constituting the alleged offence. At this stage, the court is not required to go deep into probative value of materials on record. It needs to evaluate whether there is a ground for presuming that accused had committed offence. But it should not evaluate sufficiency of evidence to convict accused. Even if, there is a grave suspicion against the accused and it is not properly explained or court feels that accused might have committed offence, then framing of charge against the accused is justified. It is only for conviction of accused that materials must indicate that accused had committed offence but for framing of charges if materials indicate that accused might have committed offence, then framing of charge is proper. Materials brought on by prosecution must be believed to be true and their probative value cannot be decided at this stage. The accused entitled to urge his contentions only on materials submitted by prosecution. He is not entitled to produce any material at this stage and the court is not required to consider any such material, if submitted. Whether the prima facie case made out depends upon fact and circumstances of each case. If two views are possible and materials indicate mere suspicion, not being grave suspicion, against accused then he may be discharged. The court has to consider broad probabilities of case, total effect of evidence and documents produced before it. The court should not act as mouthpiece of prosecution and it is impermissible to have roving enquiry at the stage of framing of charges."
35. And recently on 01.05.2019 in State By Karnataka Lokayukta Vs. M. R. Hiremath, 2019 SCC online SC 734 has reiterated the said principles holding that at this stage, considering an application for discharge, the Court must proceed on the assumption that the material which has been brought on record by the prosecution is true and evaluate the material in order to determine whether the facts emerging from the material, taken on its face value, disclose the existence of the ingredients necessary to constitute the offence.
In the instant case it cannot be said that no offence has been disclosed against the applicant which may reflect that his trial is unwarranted. The trial court on perusal of the material collected during the course of investigation, came to the conclusion that prima facie a case is made out against the applicant for framing of the charge has rightly rejected.
36. The proposition of law with respect to the cases of the Apex Court relied upon by the applicant with respect to Dr. M.C.Sharma is concerned, is not all disputed. But from perusal of the said case law, it is quite apparent that the Apex Court in the said cases also laid down the proposal that it is to be determined a prima facie case would naturally depends upon the facts of each case and it is difficult to lay down role of universal application where material placed before the Court discloses grave suspicion against the accused which has not been properly explained, the Court would be fully justified in framing charge and proceeding with the trial.
37. In view of the foregoing discussions, so far as the applicant Dr. M.C.Sharma is concerned, I am of the opinion that the impugned orders are based upon relevant consideration and supported by cogent reasons, the same does not suffer from any irregularity, illegality or jurisdictional error, hence no interference is required by this Court. The prayer for quashing the same is hereby refused.
38. The 482 Cr.P.C. application with respect to applicant Dr. M.C. Sharma is accordingly, dismissed. The interim order, if any, stands vacated.
39. As regards applicant-Smt. Aparna Saxena is concerned, it is not disputed by the CBI that she is the wife of co-accused Prashant Saxena and sleeping director of M/s. Aanjaneya Business (India) Pvt. Ltd. and from the statements of the prosecution witnesses, namely, Pankaj Kapoor (PW-50) and Hemant Rja (PW-51) it appears that no doubt the applicant had signed the MOU and also issued a cheque of Rs.10 lacs as advance payment in absence of her husband, but it cannot be said she conspired with her husband and other co-accused persons for committing the crime in question putting a loss to the State Exchequer. There appears to be no evidence against the applicant Smt. Aparna Saxena collected during the course of investigation which may show that she at any point of time was conspired with her husband along with other co-accused persons for being involved in the present offence.
40. The case law which has been relied upon by the learned counsel for the applicant in the case of Shreya Jha (supra), the case of the applicant Smt. Aparna Saxena is squarely covered in view of paragraph nos.11 and 12 of the said judgement. Hence, in view of the same, the impugned order dated 19.12.2018 rejecting discharge application and the order dated 23.1.2019 passed by the Court of Special Judge, CBI, Ghaziabad District Court framing charge are hereby set aside to the extent of applicant Smt. Arpana Saxena.
41. The 482 Cr.P.C. application with respect to applicant Smt. Aparna Saxena stands allowed.
Order Date:30.08.2019 NS