Delhi District Court
State Through Cbi V. Bibianus Toppo & Ors vs Dr. Sukumar on 1 August, 2016
State through CBI v. Bibianus Toppo & Ors.
IN THE COURT OF SH. PAWAN KUMAR JAIN,
SPECIAL JUDGE, CBI-01, NORTH-WEST DISTRICT,
ROHINI COURTS COMPLEX, DELHI
IN THE MATTER OF:
CBI No. : 51/2016 (Old No. 10/12)
CNR No. : DLNW01-000076-2007
FIR No. : RC-4(A)/2005/SCU-V/CBI/SCR-II,
New Delhi
U/Sec: 120B r/w 419/420/468/471 IPC
13(2) r/w 13(1)(d) of PC Act 1988
12(1) (b) of Passport Act 1967
Police Station: CBI/SCR-II/New Delhi
STATE
THROUGH
CENTRAL BUREAU OF INVESTIGATION,
NEW DELHI
VERSUS
CBI No. 51/2016 (old No. 10/12) Page 1 of 156
State through CBI v. Bibianus Toppo & Ors.
1. Bibianus Toppo
S/o Late Joseph Toppo,
R/o H. No. 770, Block No. 11
Baba Kharak Singh Marg,
New Delhi-110001.
..........Accused No. 1
2. Harbhajan Yadav
S/o Late Sultan Singh Yadav,
R/o H. No. 949/1, Gali No. 4,
Ashok Vihar, Gurgaon,
Haryana.
..........Accused No. 2
3. Ram Chander
S/o Sh. Maman Ram,
R/o J-624, Sardar Colony,
Sector 16, Rohini, Delhi-85.
..........Accused No. 3
4. Anil Dhawan
S/o Sh. Madan Lal Dhawan,
R/o 254, DDA Flats, 1st Floor,
New Ranjit Nagar,
New Delhi-8.
..........Accused No. 4
5. Dhiraj Bansal
S/o Sh. J. M. Bansal,
R/o C-1/318, Printer's Apartments,
Sector-13, Rohini, New Delhi.
..........Accused No. 5
CBI No. 51/2016 (old No. 10/12) Page 2 of 156
State through CBI v. Bibianus Toppo & Ors.
6. Hemant Gandhi
S/o Sh. M. S. Gandhi,
R/o H.No. A-708, Kedar Apartments
Sector-9, Rohini, New Delhi.
(Vide order dated 05.05.2016, accused was
declared absconded)
..........Accused No. 6
7. Amit Kumar Khatri
S/o Sh. Lekh Raj Khatri
R/o Flat No. 113, Kadambari Apartments
Sector-9, Rohini, Delhi.
..........Accused No. 7
Date of Institution : 26.03.2012
Date of judgement reserved on : 05.07.2016
Date of pronouncement of judgement : 21.07.2016
Appearance :Sh. Prabhat Kumar, learned Sr. Public
Prosecutor for CBI
Sh. R. Ramachandran, Advocate, counsel for
Bibianus Toppo (A1), Dhiraj Bansal (A5) and
Amit Kumar Khatri (A7)
Sh. Sukhwinder Singh, Advocate, counsel for
Harbhajan Yadav (A2) and Ram Chander (A3)
Sh. Lalit Yadav, Advocate, counsel for Anil
Dhawan (A4)
J U D G E M E N T :-
CBI No. 51/2016 (old No. 10/12) Page 3 of 156State through CBI v. Bibianus Toppo & Ors.
1. Facts in brief as unfolded from the charge-sheet are as under:-
(i) It was alleged that an FIR was registered on the complaint of Mr. R. K. Aggarwal, the then DSP CBI SCR-II, New Delhi wherein it was alleged that during the year 2003-2004, accused S/Sh.
Bibianus Toppo, the then Superintendent (hereinafter, "A1") and Harbhajan Yadav, the then UDC ("A2") who were working in Regional Passport Office (in short RPO), New Delhi, entered into a criminal conspiracy with private persons namely Hemant Gandhi ("A6") and other unknown persons, object of which was to cheat RPO, New Delhi fraudulently and dishonestly. It was alleged that in pursuance of the said conspiracy, four passports in the form of additional passport booklets were got issued in the name of Harbans Lal Suri; one additional passport was got issued in the name of Neha Suri and another additional passport booklet was got issued in the name of Dashrath Suri. It was alleged that though on the additional passport booklets, photograph of different persons were affixed, yet the personal particulars of the above said persons were mentioned on the Passport Application Forms. It was further alleged that at the time of seeking above said additional passport booklets, detail of original passport of Mr. Harbans Lal Suri, Ms. Neha Suri and Mr. Dashrath Suri were used. It was further alleged that the original passport bearing No. B-1792351 dated June 5, 2000 was issued in the name of Harbans Lal Suri whereas the passport bearing No. E-1928694 dated June 12, 2002 was issued in the name of Ms. Neha Suri and passport bearing No. A-8483983 dated December 20, 1999 was issued in the name of Mr. Dashrath Suri.
CBI No. 51/2016 (old No. 10/12) Page 4 of 156State through CBI v. Bibianus Toppo & Ors.
(ii) It was further alleged that an application was moved in the office of RPO, New Delhi for seeking additional passport booklet in the name of Harbans Lal Suri on the ground that pages of previous passport had been full. Alongwith the application, photocopy of original passport bearing No. B-1792351 dated June 5, 2000 was also annexed. It was alleged that during investigation, it was revealed that all pages of previous passports had not been full. It was further alleged that though in the application form, personal particulars of Harbans Lal Suri were mentioned, but the photograph of another person was affixed on the application form. It was alleged that A2 was posted as a counter clerk and it was his duty to cancel the old passport but he had not done so. A2 had taken the application to A1 for fixing the date of delivery of additional passport booklet, accordingly, A1 fixed the date of delivery as February 5, 2004.
(iii) It was further alleged that during investigation it was revealed that the said form was not only filled up by accused Anil Dhawan (A4) but he also signed the form in the name of 'H. Lal' and this fact has been confirmed by GEQD. It was further alleged that in the said matter, HIT was cleared by accused Ram Chander (A3). It was further alleged that A3 did not report that there was variation in the photograph of applicant and the original passport holder. He also failed to point out the variation in the signature of applicant and original passport holder.
(iv) It was alleged that during investigation, it was revealed that on the basis of said application, additional passport bearing No. E-7710049 was issued on February 5, 2004 to the CBI No. 51/2016 (old No. 10/12) Page 5 of 156 State through CBI v. Bibianus Toppo & Ors.
applicant in the name of Harbans Lal Suri, which was received by A4 after putting signature in the passport delivery register in the name of 'H. Lal'.
(v) It was alleged that during investigation, the identity of the person in whose favour the said additional passport booklet was issued in the name of H. Lal was identified as Suraj s/o Baba Mal R/o H. No. 1094, Sector 14, Faridabad. It was alleged that the air ticket for Mr. Suraj was arranged by accused Hemant Gandhi (A6) for Frankfurt.
(vi) It was alleged that during investigation, it was revealed that on August 20, 2004, Amit Kumar Khatri (A7) cousin of A6 accompanied Suraj and his daughter Kristina, who travelled on the forged passports issued in the name of H.Lal and Neha Suri. It was further alleged that additional passport booklets were collected by Amit Kumar Khatri (A7) from Mr. Suraj and his daughter Ms. Kristina at Frankfurt and the same were handed over by A7 to A6 in Delhi.
2. It was alleged that during investigation, it was revealed that another additional passport booklet bearing No. E-7988967 dated March 11, 2004 in the name of H. Lal was got issued fraudulently from RPO, New Delhi with a photograph of different person, but on the personal particulars of Harbans Lal Suri. The application qua the said additional passport booklet was also dealt with by A2 being the counter clerk and A1 being the Superintendent. HIT clearance was also given by A3 in the said application.
(i) It was further alleged that Anil Dhawan (A4) had CBI No. 51/2016 (old No. 10/12) Page 6 of 156 State through CBI v. Bibianus Toppo & Ors.
submitted the application for issuance of the above said additional passport booklet in the name of Harbans Lal Suri on the ground that the pages of previous passport had been full. He also enclosed self attested photocopy of original passport bearing No. B-1792351. The additional passport booklet was sought on Tatkal basis on the ground that the applicant had to attend the wedding of daughter of his friend in Germany on March 13, 2004. This time also the photo of another person was used at the time of seeking additional passport booklet. It was alleged that though as per procedure, photocopy of last additional passport booklet was required to be enclosed, but the applicant had enclosed the photocopy of original passport bearing No. B-1792351. It was alleged that A2 being the counter clerk did not report the discrepancy in the application; rather he accepted the same. It was further alleged that A2 returned the old passport without cancelling the same. It was alleged that A1 ordered to issue the additional passport booklet on March 11, 2004 without ensuring to enclose the photocopy of previous passport booklet. It was further alleged that the HIT clearance was given by A3.
(ii) It was further alleged that during investigation, it was revealed that A4 had filled up the application form. It was further alleged that the said additional passport booklet was collected by A4 and same was delivered to him by A2. At the time of taking the delivery, A4 signed in passport delivery register as H. Lal.
(iii) It was alleged that the identity of the person in whose favour the said additional passport was got issued in the name of Harbans Lal Suri could not be ascertained. But it was revealed that air CBI No. 51/2016 (old No. 10/12) Page 7 of 156 State through CBI v. Bibianus Toppo & Ors.
ticket and visa for that person was arranged by A6 and the said person travelled from Delhi to Frankfurt by Flight No. HY-422 on April 6,2004.
3. It was alleged that third application for seeking additional passport booklet in the name of Harbans Lal Suri was moved in the office of RPO, New Delhi on May 26, 2004 on the ground that the pages of original passport had been full. The applicant also enclosed the photocopy of original passport booklet bearing No. B-1792351 dated June 5, 2000. It was alleged that though the personal particulars of Harbans Lal Suri were mentioned in the passport application form but the photograph of another person was affixed. The said file was also dealt with by A2, A1 and A3 in the same manner as they dealt with earlier applications. Accordingly, third additional passport booklet bearing No. E-8580773 was issued in the name of Harbans Lal Suri on May 28, 2004.
(i) It was further alleged that the application form qua the said applicant was also filled up by A4 and he had also taken the delivery of the said additional passport booklet from A2 after signing in the passport delivery register as 'H.Lal'.
(ii) It was alleged that the said additional passport booklet was recovered at the instance of Hemant Gandhi (A6) from which it was revealed that passport holder did not perform any journey on the said additional passport booklet as no visa was granted to him. The identity of the applicant could not be ascertained.
CBI No. 51/2016 (old No. 10/12) Page 8 of 156State through CBI v. Bibianus Toppo & Ors.
4. It was alleged that on June 9, 2004 another application was moved in the office of RPO, New Delhi for seeking additional passport booklet in the name of Harbans Lal Suri on the ground that pages of previous passport had been full. The personal particulars of applicant in the said application were similar to that of Harbans Lal Suri but the photograph of different person was affixed. This time also applicant had enclosed the photocopy of original passport bearing No. B-1792351.
(i) It was alleged that the said application was also dealt with by A2, A1 and A3 and they adopted the same modus operandi to clear the application, accordingly, the additional passport bearing No. E-8914602 was issued to the applicant in the name of Harbans Lal Suri on June 11, 2004. The delivery of the said additional passport booklet was also taken by A4 from A2 after signing in the passport delivery register as 'H.Lal'.
(ii) It was alleged that during investigation, it was revealed that Dhiraj Bansal (A5) had collected 12 passport size photographs of Davender Singh s/o Dalip from Ashok Kumar @ Bittoo, a travel agent of Batala, Punjab. Davender Singh had also given his original passport bearing No. B-5677702 issued from RPO, Jallandhar to A5 for getting visa of UK. But A5 arranged additional passport booklet for Davender Singh in the name of Harbans Lal Suri by using his photograph and submitted the same in the Visa Facilitation Service of British High Commission, New Delhi. It was alleged that when this fact came to the knowledge of Davender Singh, he did not turn up for interview in the British High Commission, consequently, the said CBI No. 51/2016 (old No. 10/12) Page 9 of 156 State through CBI v. Bibianus Toppo & Ors.
additional passport booklet remained with British High Commission, New Delhi. During investigation, the said passport was collected through MEA, from which it was revealed that the original passport in the name of Harbans Lal Suri bearing No. B-1792531 was also enclosed with this additional passport booklet. But the photograph in the original passport was replaced with the photograph of Davender Singh. However, no journey was performed on the said additional passport booklet.
5. It was further alleged that application for seeking additional passport booklet in the name of Ms. Neha Suri was moved on February 5, 2004 on the ground that pages of previous passport had been full. Along with the application, photocopy of previous passport issued in the name of Ms. Neha Suri bearing No. E-1928694 was annexed. But the photograph of different person was used. It was alleged that the old passport was required to be cancelled before returning it to the applicant. During investigation, the said additional passport booklet was recovered from A6, from which it was revealed that most of the pages were blank and the same was not cancelled by the counter clerk i.e. A2. The order for issuance of additional passport booklet was passed by A1 and in the said case also HIT clearance was given by A3 without pointing out the discrepancy in the photograph of applicant and passport holder.
(i) It was alleged that on the basis of said application, additional passport booklet bearing No. E-7710129 was granted by A1 on February 6, 2004 and same was delivered to the applicant on the same day. During investigation, it was revealed that the delivery of the CBI No. 51/2016 (old No. 10/12) Page 10 of 156 State through CBI v. Bibianus Toppo & Ors.
said additional passport booklet was also taken by A4 after putting signature in the name of Ms. Neha Suri in the passport delivery register.
(ii) It was alleged that during investigation it was revealed that the photograph of Ms. Kristina, daughter of Suraj was affixed while seeking additional passport booklet in the name of Ms. Neha Suri. As already stated that Ms. Kristina travelled Frankfurt alongwith his father Suraj and A7 accompanied them. It was also alleged that A7 had collected the passport from Ms. Kristina and her father and gave the same to A6 in Delhi.
6. It was further alleged that on April 6, 2004, another application for seeking additional passport booklet in the name of Dasrath Suri was moved in the office of RPO, New Delhi on the ground that pages of previous passport had been full. Though the photocopy of original passport bearing No. A-8483983 dated December 20, 1999, which was issued in the name of Dashrath Suri was annexed with the application, yet the photograph of different person was used. It was further alleged that Dashrath Suri was minor when the original passport was issued to him in the year 1999. But in the application form, the photograph of major person was used. It was alleged that the said application form was also dealt with by A2 being the counter clerk but he did not cancel the original passport and this fact was revealed when the original passport was recovered during investigation. It was further alleged that the additional passport booklet bearing No. E8583770 dated April 8, 2004 was also received by A4 after putting signature in the name of Dashrath Suri in the passport CBI No. 51/2016 (old No. 10/12) Page 11 of 156 State through CBI v. Bibianus Toppo & Ors.
delivery register. No journey was performed on the said passport. It was further alleged that the original as well as additional passport booklet were recovered from accused Hament Gandhi (A6).
7. It was alleged that accused persons namely A1 to A7 had entered into a criminal conspiracy with Suraj, Kristina and Harbans Lal Suri, object of which was to obtain additional passport booklets fraudulently on the basis of false and forged documents. It was alleged that Suraj and Ms. Kristina could not be traced out during investigation as it was revealed that they were living somewhere in Germany. Similarly, accused Harbans Lal Suri also could not be traced out as he had left India on October 20, 2000.
8. After completing investigation, chargesheet was filed against A1 to A7 for the offence punishable under Section 120B IPC read with Section 419/420/467/468/471 IPC and Section 13 (2) read with Section 13 (1) (d) of PC Act, 1988 and 12 (1) (b) of Passport Act, 1967 and substantive offences thereto. Name of Suraj, Kristina and Harbans Lal Suri were mentioned in column no. 2.
9. Necessary sanction was also obtained under Section 19 of PC Act in respect of A1, A2 and A3 whereas sanction under Section 15 of Passport Act, 1967 was obtained in respect of A1 to A7 and accused Suraj, Kristina and Harbans Lal Suri.
10. Vide order dated May 29, 2010, Court of Sh. Rajnish Bhatnagar, the then Ld. Special Judge-01 CBI held that prima-facie a case is made out against A1 to A7 for the offence punishable under CBI No. 51/2016 (old No. 10/12) Page 12 of 156 State through CBI v. Bibianus Toppo & Ors.
Section 120B IPC read with Section 419/420/467/468 & 471 IPC and Section 13 (2) read with Section 13 (1) (d) of PC Act, 1988 and 12 (1)
(b) of Passport Act, 1967. It was further held that prima-facie a case is also made out against A1 to A3 for the offence punishable under Section 13 (2) read with Section 13 (1) (d) of PC Act, 1988. It was also held that prima-facie a case is also made out against A4 for the offence punishable under Section 419/420/468/471 IPC. It was further held that prima-facie a case is also made out against A1 for the offence punishable under Section 467 IPC.
(i) Pursuance to the above said order, formal charges were framed against accused persons on July 20, 2010, to which they pleaded not guilty and claimed trial.
11. Vide order dated May 5, 2016, accused Hemant Gandhi (A6) was declared absconded.
12. In order to bring home the guilt of accused persons, prosecution has examined as many as 46 witnesses. For the purpose of discussion and convenience, all the witnesses have been classified in the following categories:-
Witnesses from the office of RPO, New Delhi:-
PW2 Inder Mohan Sabharwal, the then Supdt.
PW3 Mr. Ajai Gautam, official from NIC
PW8 Mr. Birender Singh, causal labour
CBI No. 51/2016 (old No. 10/12) Page 13 of 156
State through CBI v. Bibianus Toppo & Ors.
PW9 Mr. S. P. Kothari, the then Asstt. Supdt.
PW12 Mr. Nand Kishore, the then Asstt.
PW13 Mr. Purshotam Lal, UDC
PW14 Ms. Sushma Bajaj, Asstt.
PW15 Amit Kumar Sharma, the then causal labour
PW16 Mr. Subhash Chander, the then Supdt.
PW17 Mr. M.S. Thapar, UDC
PW18 Mr. Raj Kumar, Passport Granting officer
PW19 Mr. Tara chand Joshi, the then causal labour
PW20 Puran Chand, clerk
PW21 Mr. Suman Kumar Sehgal, Passport Granting
officer
PW22 Mr. Pawan Kumar Gupta, Supdt.
PW23 Mr. Arun Kumar Singh, LDC
PW24 Smt. Saroj Chopra, Asstt.
PW25 Ms. Manorama Sharma, Passport Granting
officer
PW33 Mr. Y. K. Kaushal, Supdt.
PW34 Ms. Asia, Asstt. Passport Officer
PW35 Mr. Jeevan Singh, LDC
PW38 Mr. Raj Singh, Asstt. Passport officer
Police officials:
PW4 ASI Ram Kumar, PS Sector-19, Faridabad
PW30 SI Rakesh Kumar, FRRO
PW31 SI Shiv Dutt Jarmini, PS Rajouri Garden
CBI No. 51/2016 (old No. 10/12) Page 14 of 156
State through CBI v. Bibianus Toppo & Ors.
Public witnesses:
PW1 Mr. Anand Chand Parkash, landlord of
Harbans Lal Suri
PW5 Mr. Pradeep Jain, an agent
PW6 Mr. Mukesh Kumar Gomber
PW26 Mr. Hari Singh
PW27 Mr. Arun Birla, Travel Agent
PW28 Mr. Sanjay Suri
PW32 Mr. Ashok Kumar @ Bittoo, Agent
PW36 Mr. Gurinder Singh Walia, employer of A4
PW37 Mr. Jasvinder Singh @ Pamma, owner of a
dhabha
PW41 Mr. Davender Singh
Witnesses relating to Sanction:-
PW11 Mr. Radha Ranjan Dash, the then Joint
Secretary, CPV (Councillor Passport Visa & Chief Passport officer, Ministry of External Affairs) PW43 Mr. Sharat Sabharwal, then then Additional Secretary (Administration & CPV), Ministry of External Affairs CBI No. 51/2016 (old No. 10/12) Page 15 of 156 State through CBI v. Bibianus Toppo & Ors.
Misc Witnesses:
PW7 Mr. Sunil Kumar, proved the specimen writing of A4 PW10 Mr. Kishan Gupta, official from Adarsh Vidhya Niketen, Sr. Secondary School PW29 Mr. Attar Singh, official from Food & Supply Office, Faridabad PW39 Mr. Som Nath Chatterji, Section Officer from Ministry of External Affairs GEQD witnesses:
PW40 Dr. B. A. Vaid, GEQD, Shimla
CBI Officials:
PW42 Sh. R.K.Aggarwal, complainant, the then
DSP
PW44 Mr. Rajini Ranjan Sahay, Additional SP,
CBI
PW45 Mr. B. S. Kanwar, SP
PW46 Mr. Somraj Thakur, the then Inspector
(Investigating officer)
13. On culmination of prosecution evidence, accused persons were examined under Section 313 Cr.P.C wherein they denied each and every incriminating evidence led by prosecution. All CBI No. 51/2016 (old No. 10/12) Page 16 of 156 State through CBI v. Bibianus Toppo & Ors.
the accused persons except Bibianus Toppo (A1) and Dhiraj Bansal (A5) submitted that they would not lead evidence in their defence.
(a) A1 took the plea that at the relevant time there was no facility in the computer of PIAs to check photographs, signatures and old references of applicants. Even, previous passport files did not use to be sent to PIAs for perusal and inspection and no instrument/device was provided to PIAs to detect forgery in the submitted documents.
(i) It was further submitted that at the relevant time, the procedure for issuance of additional passport booklet was liberalised by the Ministry of External Affairs by issuing various circulars from time to time and it was impressed upon the PIAs to issue additional passport booklets within 3-5 days preferably on the same day. It was submitted that since in the files in question, there was no adverse remark either from HIT/PAC or from any other section of Passport Office, he acted on the files believing his subordinates. It was further submitted that passport could not be issued without the HIT clearance.
(ii) It was further submitted that even prosecution witness PW9 Mr. S. P. Kothari and PW38 Raj Singh supported his version by deposing that the files dealt with by him were complete in all respects and he had acted in routine manner.
(iii) It was further submitted that at the relevant time he was over burdened as at that time he was also looking after the miscellaneous work besides the work of additional passport booklets and he used to deal with around 300 files in a day.
CBI No. 51/2016 (old No. 10/12) Page 17 of 156State through CBI v. Bibianus Toppo & Ors.
(iv) It was further submitted that there is no evidence that he was in conspiracy with the accused persons and this is also established from the fact that on the days when he was on leave or not available, counter clerk used to send the files to the other PIA, who used to deal with the files in his absence in the similar way. It was further submitted that no action had been taken by the CBI against the other PIA/staff who acted in similar manner in other similar files.
(b) A2 took the plea that no instrument was provided to the counter clerk to detect forgery in the documents submitted by the applicants. It was further submitted that applicants did not mention whether it was the first additional passport booklet or second or third or fourth additional passport booklet. It was submitted that being the counter clerk, he had been cheated by the applicants.
(c) A3 took the plea that while he was performing his duty in the HIT Section, his seat was in open space where there was no restriction of entry either for public or RPO officials. It was submitted that some vested interested person might have noted down his password while opening the computer and later on he might have misused the same. It was further submitted that PE number was known to NIC official.
(d) A4 took the plea that CBI falsely implicated him in this case in order to save the main accused G. S. Walia. It was alleged that DSP Mr. R. K. Aggarwal was known to G. S. Walia and he is still in touch with him. It was further submitted that even Mr. G. S. Walia is still providing air tickets to Mr. R. K. Aggarwal.
CBI No. 51/2016 (old No. 10/12) Page 18 of 156State through CBI v. Bibianus Toppo & Ors.
(e) A5 took the plea that he has been falsely implicated in this case and he had not undertaken any passport and visa work as alleged by the CBI.
(f) A7 took the plea that he has been falsely implicated in this case as he had not committed any offence. He further submitted that he had not undertaken any passport or visa work. Nor he booked any ticket in the present matter. It was further submitted that he did not know Harbans Lal Suri, Sh. Dashrath Suri and Ms. Neha Suri or any other applicant. He further submitted that nothing incriminating was recovered from his possession.
14. In order to prove his innocence, A5 examined DW1 Mr. Sameer Vats whereas A1 examined two witnesses namely DW2 Sonu Bhardwaj, Ahlmad of this Court and DW3 Mr. Prince Raushan, Junior Passport Asstt. posted at RPO office, Bhikaji Kama Palace, Delhi.
15. I have heard rival submissions advanced by counsel for both the parties at length, perused the record carefully including the written submissions filed on behalf of A1 and A5 and gave my thoughtful consideration to their contentions.
Contentions relating to accused Anil Dhawan (A4):-
16. Shri Prabhat Kumar, learned Senior Public Prosecutor for CBI raised the following contentions:-
CBI No. 51/2016 (old No. 10/12) Page 19 of 156State through CBI v. Bibianus Toppo & Ors.
(i) That accused Anil Dhawan (A4) was an employee of PW36 Gurinder Singh Walia. It was further submitted that PW36 identified the handwriting of A4 on various documents including application forms that were submitted at the time of seeking additional passport booklets from time to time.
(ii) That PW36 also proved the admitted writing of Anil Dhawan (A4) on some pages of Day Book (Ex.PW36/F) and deposed that the writings mark A1 to A17 are in the handwriting of A4. PW36 also identified the writings of accused Anil Dhawan on the application form of Kanu Priya Gombar and Padmini Malpani which are marked as A18 to A23.
(iii) That in addition to the above, accused Anil Dhawan (A4) had also taken the delivery of six additional passport booklets by making an entry and signing in the passport delivery register in the name of applicants and the said writings are marked as Q1 to Q6. It was urged that the said writings were also identified by PW36 as the writing of A4, thus it was argued that this proves that the additional passport booklets were received by accused Anil Dhawan. It was urged that though no authority was given to him by the applicants, but despite that he had taken the delivery of above said passport booklets after putting the signature of applicants. It was further argued that at the time of taking delivery of additional passport booklets, A4 had also acknowledged the receipt of booklets in the respective passport files.
The said acknowledgments are separately marked as Q9, Q24, Q39, Q55, Q71 and Q87. It was argued that as per the report of GEQD, all the said writings except Q87 were found in the handwriting of A4, CBI No. 51/2016 (old No. 10/12) Page 20 of 156 State through CBI v. Bibianus Toppo & Ors.
which establishes that A4 had taken the delivery of the said passport booklets. It was further argued that during investigation, specimen writings and signatures of A4 had also been taken and the same are marked as S1 to S53. As per the GEQD report, the same were tallied with the questioned writings and signatures.
(iv) That from the deposition of PW36 and GEQD report Ex.PW40/C, it has been established that A4 had not only filled up the forms at the time of obtaining addition passport booklets in fictitious names, but he had also forged the signatures of applicants on the said forms as well as on the supporting documents.
(v) That accused Anil Dhawan (A4) is liable for the offence punishable under Section 419/420/471 IPC and Section 12 (1)
(b) of Passport Act.
17. Mr. Lalit Yadav, Advocate, counsel appearing for the Anil Dhawan (A4) countered the said contentions as under:-
(a) That PW36 admitted in his deposition that a raid was conducted at his premises and numerous incriminating articles were recovered from his premises including various passports and blank letterheads of different companies, but instead of impleading PW36 as an accused, investigating officer in collusion with Mr. R.K. Aggarwal, the then DSP falsely implicated Anil Dhawan (A4) in order to save PW36.
(b) That prosecution has set up a case against Anil Dhawan CBI No. 51/2016 (old No. 10/12) Page 21 of 156 State through CBI v. Bibianus Toppo & Ors.
(A4) that he was an employee of PW36, but during trial prosecution failed to produce any documentary evidence to prove this fact. It was argued that in the absence of any documentary evidence, it can not be said that A4 was an employee of PW36.
(c) That though prosecution has placed strong reliance on the deposition of PW36 wherein he identified certain questioned writings as the writing of Anil Dhawan (A4), but no reliance can be placed on the said piece of evidence as PW36 is not an expert to identify the writing of any person.
(d) That no reliance can be placed on the alleged admitted writing i.e. marked as A1 to A23 because there is no evidence on record that the said writings were ever admitted by accused Anil Dhawan (A4).
(e) That during investigation, investigating officer had not taken any specimen writings of PW36 deliberately and intentionally to favour him. It was argued that had investigating officer taken the specimen writings of PW36, it would have also been matched with some questioned writings.
(f) That since the alleged specimen writings of A4 were not taken with the prior permission of the concerned Illaka Magistrate, no reliance can be place on the said piece of evidence. It was further argued that no conviction can be recorded solely on the uncorroborated statement of GEQD.CBI No. 51/2016 (old No. 10/12) Page 22 of 156
State through CBI v. Bibianus Toppo & Ors.
18. In support of his contentions, learned defence counsel placed reliance on the following citations:-
(i) Malay Kr. Ganguly v/s. Dr. Sukumar Mukherjee & others (2009) 9 Supreme Court Cases 221;
(ii) Sujit Biswas v/s. State of Assam, 2013 (5) LRC 133 (SC);
(iii) State of Maharashtra v/s.
Dnyaneshwar Laxman Rao Wankhede,
(2009) 12 SCR 513;
(iv) State (G.N.C.T) of Delhi v/s. Saqib
Rehman @ Masood & Ors. 2012(3) JCC 2127;
(v) Sapan Haldar & Anr. V/s. State 2012
VIII AD (Delhi) 533 ;
(vi) Sandeep Dixit v/s. State, 2013 I AD
(Delhi) 407;
(vii) Fakhruddin v/s. State of M. P, AIR
1967 SC 1326;
(viii) Ram Chandra v/s. State of U. P, AIR
1957, SC 381;
(ix) Ishwari Parsad Misra v/s Mohammd
Isa, AIR 1963 SC 1728;
(x) Shashi Kumar Banerjee v/s Subhodh
Kumar Banerjee, AIR 1964 SC 529;
(xi) Raghu v/s Rajendra Kumar, 2002 (3)
KLT 945 (Kerala);
(xii) Piara Singh v/s. Jagtar Singh &
others, AIR 1987 P & H 93;
(xiii) Thyseen Stallunjon Gmbh v/s SAIL,
CBI No. 51/2016 (old No. 10/12) Page 23 of 156
State through CBI v. Bibianus Toppo & Ors.
96 (2002) DLT 515;
(xiv) Ameer Mohd. v/s Barket Ali, AIR 2002
Rajasthan 406.
Findings qua accused Anil Dhawan (A4):-
19. First question emerges from the submissions
advanced by counsel for both the parties; whether accused Anil Dhawan (A4) was working with PW36 Mr. G.S. Walia or not? In this regard, the testimony of PW36 Mr. G.S. Walia and PW46 Mr. Somraj Thakur, investigating officer are relevant.
(i) PW36 G.S. Walia in his examination-in-chief deposed that he was running a company in the name and style of M/s Kanu Travel Care Pvt. Ltd. since 1990 and he was one of the directors in the said company. After winding up the said company, he had started a firm in the name and style of M/s Jas Air in the year 2002. He further deposed that accused Anil Dhawan was working in his company M/s Kanu Travel Care Pvt. Ltd. since 1995 and he further testified that A4 continued to work with him in his new firm M/s Jas Air. He also identified A4 correctly in the Court. He further deposed that the duty of A4 was to look after bank transactions; to assist clients for visa and passport and to deliver tickets to clients. He further testified that since he had seen A4 to write and sign while he was working with him, he could recognize his handwritings and signatures. In his cross-
examination, PW36 clarified that he had only one employee i.e. A4 in his firm. He further deposed that he had not furnished any documentary evidence regarding the employment of A4 to the CBI.
CBI No. 51/2016 (old No. 10/12) Page 24 of 156State through CBI v. Bibianus Toppo & Ors.
But mere fact that PW36 did not supply any documentary evidence regarding the employment of A4, in the absence of any contrary evidence, is not sufficient to disbelieve the testimony of PW36.
(ii) In his cross-examination, PW36 deposed that CBI official told him, if A4 could not be arrested, they (CBI) would arrest him. He further deposed that CBI had released him as the files which were shown to him during investigation were in the handwriting of accused Anil Dhawan and he had no concern with the said files.
(iii) No doubt, learned counsel appearing for A4 took the plea that CBI had impleaded A4 at the behest of PW36, but during trial A4 failed to produce any cogent evidence to prove the same. On the contrary from the deposition of PW36, it becomes clear that CBI told PW36 that if A4 could not be arrested, they would arrest him. This shows that there was some relationship between PW36 and A4 and the said relationship has been explained by PW36 in his deposition.
(iv) No doubt, PW46 Somraj Thakur, investigating officer in his cross-examination deposed that he had not taken any document from G.S. Walia about the employment of accused Anil Dhawan. But as already stated that the said lapse on the part of PW46 is not sufficient to discard the testimony of PW36.
(v) No doubt, accused Anil Dhawan in his statement recorded under Section 313 Cr.P.C took the plea that he has been falsely implicated in this case by the CBI at the behest of G.S. Walia, but in his entire statement, he did not explain where he was working, if CBI No. 51/2016 (old No. 10/12) Page 25 of 156 State through CBI v. Bibianus Toppo & Ors.
he was not working with G.S. Walia. Further, there is no explanation how G.S. Walia knew him, if he was not an employee of PW36. In his entire statement, he did not explain the same.
(vi) In the absence of any contrary evidence on record, I do not find any reason to disbelieve the testimony of PW36 wherein he categorically deposed that A4 was his employee since 1995.
20. Second question crops up for adjudication whether the recovered 'Day Book' belonged to M/s Jas Air or not? If yes, from whom the same was recovered. In this regard, the testimony of PW36 Mr. G. S. Walia is relevant.
(i) PW36 Mr. Gurinder Singh Walia in his cross- examination fairly conceded that the Day Book Ex.PW36/F was recovered by the CBI during the raid conducted by CBI at his premises and further admitted that there was no stamp of his firm on the said Day Book and further admitted that the said Day Book was written in the handwriting of several persons including him. He also admitted that such type of Day Books are easily available in the market. He also admitted the search memo Ex.PW36/D1 and deposed that all the documents mentioned therein including Day Book were recovered from his premises by the CBI. From the aforesaid deposition of PW36 Mr. Gurinder Singh Walia, it becomes crystal clear that a raid was conducted by the CBI at his premises and during the said raid, several documents as mentioned in the memo Ex.PW36/D1 including Day Book (Ex.PW36/F) were recovered. Mere fact that no seal of M/s Jas Air is appearing on the said Day Book and the fact that CBI No. 51/2016 (old No. 10/12) Page 26 of 156 State through CBI v. Bibianus Toppo & Ors.
such Day Books are easily available in the market are not itself sufficient to discard the testimony of PW36 Mr. Gurinder Singh Walia to the extent that the recovered Day Book belonged to his firm.
(ii) In view of the above discussion, I do not find any substance in the contention of learned defence counsel that there is no cogent evidence to prove that the Day Book belonged to M/s Jas Air.
21. Third question emerges from the submissions raised by counsel for the parties; whether PW36 is a competent person to identify the handwriting of A4 or not?
(i) As already discussed that A4 was an employee in the firm/company of PW36 since 1995, thus PW36 had sufficient opportunity to see A4 to write and sign. Thus the testimony of PW36 wherein he identified certain handwritings of A4 becomes relevant under Section under Section 47 of Indian Evidence which reads as under:-
47. Opinion as to handwriting, when relevant -
When the Court has to form an opinion as to the person by whom any document was written or signed, the opinion of any person acquainted with the handwriting of the person by whom it is supposed to be written or signed that it was or was not written or signed by that person, is a relevant fact.
Explanation - A person is said to be acquainted with the handwriting of another person when he has seen that person write, or when he has received documents purporting to be written by that person in answer to documents written by himself or under authority and addressed to that person, or when, in CBI No. 51/2016 (old No. 10/12) Page 27 of 156 State through CBI v. Bibianus Toppo & Ors.
the ordinary course of business, documents purporting to be written by that person have been habitually submitted to him.
(emphasis supplied)
22. In view of Section 47 of Indian Evidence Act, I do not find any substance in the contention raised by learned defence counsel that since PW36 is not an expert, no reliance can be placed on his deposition wherein he identified certain writings of Anil Dhawan (A4).
23. Now coming to the next issue how many questioned writings of A4 have been identified by Mr. Gurinder Singh Walia (PW36) during trial?
(i) PW36 in his examination-in-chief identified certain following questioned writings as the writing of accused Anil Dhawan (A4):-
QUESTIONED NAME OF EXHIBITS
WRITINGS DOCUMENTS
Ex.PW3/F and
Q8, Q9, Q11 and Ex.PW13/DA
Q12
Q23A, Q24, Q26, Ex.PW3/Q,
Q27 and Q29 Ex.PW13/DE and
Passport Application Ex.PW13/DF
Registration Form and
CBI No. 51/2016 (old No. 10/12) Page 28 of 156
State through CBI v. Bibianus Toppo & Ors.
Application Form of Misc.
Q38, Q39, Q41, Services on Indian Ex.PW3/N,
Q42, Q44, Q50 to Passport and Request Ex.PW13/DC and
Q52 Letter Ex.PW35/A
Q54, Q57, Q58, Ex.PW3/L and
Q60, Q62, Q63 Ex.PW13/E
and Q64
Q70, Q73, Q74, Ex.PW7/J
Q75 and Q77
Q86, Q89, Q89/1, Ex.PW3/G and
Q90, Q92, Q98 Ex.PW13/DD
and Q99
Q1 Ex.PW36/A
Q2 Ex.PW36/B
Q3 Ex.PW36/C
Passport Delivery Register
Q4 Ex.PW36/D
Q5 Ex.PW34/E
Q6 Ex.PW36/E
(ii) The above questioned writings (Q8, Q9, Q11, Q12,
Q23A, Q24, Q26, Q27, Q29, Q38, Q39, Q41, Q42, Q44, Q54, Q57, CBI No. 51/2016 (old No. 10/12) Page 29 of 156 State through CBI v. Bibianus Toppo & Ors.
Q58, Q60, Q70, Q73, Q74, Q75, Q77, Q86, Q89, Q89/1, Q90, Q92) are the writings in the body portion of the Passport Application Registration Forms and Application Forms for Miscellaneous Services on Indian Passport. The questioned writings (Q50, Q62 and Q98) are the writings in the body portion of the request letters. PW36 identified the said writings as the writings of accused Anil Dhawan. This proves that the said forms were filled up by accused Anil Dhawan and it also establishes that the three request letters were written by accused Anil Dhawan.
(iii) Besides that PW36 also identified the signatures i.e. Q51, Q52, Q63, Q64 and Q99 appearing on the request letters as the writings of accused Anil Dhawan. This further establishes that accused had signed the said request letters in the name of applicant i.e. H. Lal.
(iv) Though CBI has set up a case that accused Anil Dhawan had not only filled up the said forms, but he also signed all the forms in the name of applicants at various places and in the said forms, the said signatures are marked as Q7, Q10, Q13, Q15 to Q22 (Ex.PW3/F), Q23, Q25, Q28, Q30 to Q36 (Ex.PW3/Q), Q37, Q40, Q43, Q45 to Q49 (Ex.PW3/N), Q53, Q56, Q59, Q61, Q65 to Q68 (Ex.PW3/L), Q69, Q72, Q76, Q78 to Q84 (Ex.PW7/J), Q85, Q88, Q91, Q93 to Q97, Q100 (Ex.PW3/G), but in his examination-in-chief, PW36 deposed that he is not sure whether the said questioned signatures were in the handwritings of accused Anil Dhawan or not. This establishes that the testimony of PW36 is not sufficient to prove that A4 had also signed the said forms in the name of applicants.
CBI No. 51/2016 (old No. 10/12) Page 30 of 156State through CBI v. Bibianus Toppo & Ors.
(v) In his cross-examination, PW36 deposed that accused Anil Dhawan had filled up 1-2 forms of his clients in his presence and admitted that the forms in files Ex.PW3/F, Ex.PW3/L, Ex.PW3/N, Ex.PW3/Q, Ex.PW3/G and Ex.PW7/J were not filled up in his presence. No doubt, the said forms were not filled up in his presence, but as already discussed that A4 was working in the employment of PW36 since 1995. Thus PW36 had sufficient opportunity to see A4 to write and sign. Mere fact that the said forms were not filled up in the presence of PW36 is not sufficient to discard the testimony of PW36 wherein he identified the handwritings of A4.
(vi) Further, from the deposition of PW36, it becomes clear that he had only identified body portion of the forms and not signatures of the applicants appearing on the said forms. This shows that the witness is quite fair while deposing in the Court. Had he be dishonest, he would have easily identified the questioned signatures also. In these circumstances, I am of the considered opinion that there is no reason to disbelieve the testimony of PW36 wherein he identified the writings of A4 on the above said forms and request letters. Besides the above, PW36 also identified the writings i.e. Q1 to Q6 appearing on the passport delivery register. The said writings includes the particulars of applicants, additional passport booklet number and the signature of the applicants. No doubt, in his cross-examination, PW36 deposed that the said writings were not written in his presence, but this itself is not sufficient to discard the deposition of PW36. From the deposition of PW36, it becomes clear that it was Anil Dhawan who made the said writings in the passport delivery register at the time of taking delivery of additional passport booklets.
CBI No. 51/2016 (old No. 10/12) Page 31 of 156State through CBI v. Bibianus Toppo & Ors.
(vii) No doubt, in his examination-in-chief, PW36 also identified Q51, Q52, Q63, Q64 and Q99 as the signatures of accused Anil Dhawan. Perusal of the documents reveals that said signatures are appearing on the request letters. Q50 is the body portion of the request letter whereas Q51 and Q52 are the signatures of the applicant H. Lal. Similarly, Q62 is the body portion of the request letter and Q63 and Q64 are the signatures of applicant i.e. H. Lal. Q98 is the body portion of the request letter whereas Q99 is the signature of applicant Darsrath Suri. Indisputably, during his deposition, PW36 failed to identify the signatures of applicant on the Passport Application Registration Form and Application Form of Misc. Services on Indian Passport. No specific reason has been deposed by PW36 on what basis, he had identified the signature of applicants on the said three request letters. There is a possibility that the witness might have identified the same after seeing the body portion of the request letters. In these circumstances, I am of the considered opinion that the testimony of PW36 to the extent wherein he identified the signatures mark Q51, Q52, Q63, Q64 and Q99 on the request letters is not sufficient to prove that the same were signed by accused Anil Dhawan. This proposition gets strength from the deposition of PW36 when he deposed that he is not sure whether the signature mark Q100 is in the handwriting of accused Anil Dhawan. It is pertinent to state that Q99 and Q100 are the signatures of applicant on the same request letter despite that PW36 deposed that he is not sure whether Q100 is in the handwriting of accused Anil Dhawan or not.
24. From the deposition of PW36, it also becomes crystal clear that he also identified certain writings as the writings of A4 from CBI No. 51/2016 (old No. 10/12) Page 32 of 156 State through CBI v. Bibianus Toppo & Ors.
the Day Book. The said writings are marked A1 to A17 and collectively exhibited as PW36/F. Besides that PW36 also identified the certain writings mark A18 to A21 on the passport registration form of Kanu Priya and Mark A22 & A23 on the Immigration Application Form of Padmini Malpani, which are Ex. PW36/G and PW36/H respectively as the writings of A4.
(i) No doubt CBI claimed the above said writings as the admitted writings of A4. In this regard, the testimony of PW46 is relevant. In his cross-examination, PW46 deposed that admitted writings means the writings of a person who writes in ordinary course of his official duties and such writings are considered admitted writings even if the same are not admitted by its author. He further deposed that if the employer or a colleague of such person identified such writings, he would consider such writings as admitted writings of that official. Indisputably, the explanation furnished by PW46 is not convincing because admitted writings is a writing which is admitted by the author of the writing. Mere fact that certain writings is identified by the employer or a colleague of a person does not mean that it becomes the admitted writing. The testimony of such person may be relevant under Section 47 of the Indian Evidence Act as in the instant case, testimony of PW36 is relevant.
(ii) During investigation CBI had also taken the specimen writings of A4 which are marked as S-1 to S53 (Ex. PW7/1) collectively. The said specimen writings were taken in the presence of independent witness named PW7 Sunil Kumar. In his deposition, he categorically deposed that the said specimen writings were taken by CBI No. 51/2016 (old No. 10/12) Page 33 of 156 State through CBI v. Bibianus Toppo & Ors.
the investigating officer in his presence and the same was given by accused Anil Dhawan voluntarily. Though the witness was cross- examined at length, yet nothing could be extracted, which may cast any doubt over his deposition. Thus, it is established that S1 to S53 are specimen writings of A4.
25. Now coming to the Handwriting Expert Report.
(i) The report of GEQD is Ex. PW40/C whereas the reasons in respect of the report are separately exhibited as Ex. PW40/D.
(ii) As per the report Ex. PW40/C Q1 to Q25, Q28 to Q55, Q57 to Q84, Q89, Q92, S1 to S53 and A1 to A23 were written by one and the same person. As already discussed that S1 to S53 is the specimen writings and signatures of accused Anil Dhawan and it has also been established that A1 to A23 are also the writings of A4. This proves that accused Anil Dhawan is the author of above questioned writings.
(iii) As already discussed that the above said questioned writings are on the Passport Application Registration Forms and Application Forms for Miscellaneous Services on Indian Passport in all six files of additional passport booklets, thus in other words prosecution has succeeded to establish that accused Anil Dhawan is the person who had filled up the said forms requesting the RPO to issue the additional passport booklets in the name of applicants as mentioned in the said applications from time to time.
CBI No. 51/2016 (old No. 10/12) Page 34 of 156State through CBI v. Bibianus Toppo & Ors.
(iv) Q7, Q9, Q10, Q13, Q15 to Q22 ( in Passport file Ex. PW3/F); Q23, Q24, Q25, Q28, Q30 to Q36 ( in Passport file Ex. PW3/Q); Q37, Q39, Q40, Q43, Q45 to Q49, Q51 and Q52 (in Passport file Ex. PW3/N) and Q53, Q55, Q59, Q61 to Q63 and Q65 to Q68 (in Passport file Ex. PW3/L) are the signatures of the applicants. It is pertinent to state that in all the above said four files, the additional passport booklets were applied in the name of Harbans Lal Suri and at the above points, the purported applicants had signed in the name of applicants i.e. Harbans Lal Suri.
(v) Q69, Q71, Q72, Q76, Q78 to Q84 (in file Ex. PW7/J) are the signature of the applicant. In the said file, the additional passport booklet was applied in the name of Ms. Neha Suri and it was alleged that she had signed at the above said points.
(vi) As per the GEQD report Ex. PW40/C, the said signatures of the alleged applicants were signed by accused Anil Dhawan. This establishes that accused Anil Dhawan had not only filled up the forms in the name of Harbans Lal Suri and Neha Suri at the time of seeking the additional passport booklets from time to time but he also signed in the name of applicants i.e. Harbans Lal Suri and Neha Suri on the said forms and annexure thereto.
(vii) As per Ex. PW40/C, in the file Ex. PW3/G, Q89 and Q92 are in the handwritings of accused Anil Dhawan. Perusal of the said points reveals that only a portion of Application Form for Miscellaneous Services on Indian Passport was in the handwriting of accused Anil Dhawan whereas the major portion of the form is not in CBI No. 51/2016 (old No. 10/12) Page 35 of 156 State through CBI v. Bibianus Toppo & Ors.
his handwriting. The GEQD report qua other points in the said form is silent. However, from the deposition of PW36, it is established that the said form was also filled up by accused Anil Dhawan.
26. It is pertinent to state that in all the said forms though the personal particulars of applicants namely Harbans Lal Suri, Neha Suri and Dashrath Suri are mentioned but the photo of the applicants is of different persons. It proves that accused Anil Dhawan had not only filled up the said forms in the name of above said applicants in favour of different persons, but he also signed in the name of two applicants namely Harbans Lal Suri and Neha Suri in favour of different persons.
Passport Delivery Register:-
27. As per prosecution version, A4 had also taken the delivery of additional passport booklets and at the time of taking delivery of the said additional passport booklets, A4 had made an entry in the passport delivery register in his own handwritings which are Mark as Q1 to Q6. The relevant pages of additional passport delivery register are Ex. PW36/A to PW36/D, PW34/E and Ex.PW36/E. The said entries are comprising in three columns. In first column, the name of applicant is mentioned, in second column additional passport booklet number is mentioned whereas last column bears the signature of applicants. As per GEQD report Ex. PW40/C, A4 is also the author of Q1 to Q6. Besides that PW36 also testified in his deposition that Q1 to Q6 are in the handwriting of A4. Thus, from the GEQD report Ex. PW40/C and deposition of PW36, it is proved CBI No. 51/2016 (old No. 10/12) Page 36 of 156 State through CBI v. Bibianus Toppo & Ors.
beyond doubt that A4 is the person who had collected the additional passport booklets from RPO, New Delhi by making the entries marked Q1 to Q6 in passport delivery register and signing in the name of applicants.
28. Now coming to testimony of PW40. PW40 is an independent witness and at the relevant time was working as Dy. Government Examiner of Questioned Documents, CFSL Shimla. He is not only an independent witness but also a well experienced person as he deposed that he had more than 38 years experience in the field of documents examination and he had examined thousands of documents independently and deposed before various courts throughout the country. He further deposed that the said questioned documents were also examined independently by Mr. N.C.Sood, Dy. Government Examiner of Questions Documents. Thus, it becomes clear that the questioned writings were not only examined by an independent and experienced examiner i.e. PW40, but simultaneously same were also examined by another equivalent competent examiner. PW40 had recorded his reasons in detail in Ex.PW40/D to arrive at the conclusion as mentioned in Ex. PW40/C. Thus, it can safely be culled out that the conclusions arrived at by PW40 are based on detail reasons as mentioned in Ex.PW40/D.
(i) Though PW40 was cross-examined at length by A4 but nothing has been come out in his cross-examination, which may cast any dent either in his deposition or in his report.
(ii) No doubt, during cross-examination an attempt was CBI No. 51/2016 (old No. 10/12) Page 37 of 156 State through CBI v. Bibianus Toppo & Ors.
made to cause a dent in the report of PW40 by putting a question that handwriting science is not a perfect science. But this suggestion was denied by PW40 by deposing that like any other progressive science, handwriting identification is a perfect science and a definite opinion can be given provided suitable and sufficient data are available. Indisputably, in the instant case not only sufficient number of specimen writings were sent to the GEQD but even numerous questioned writings were also sent. Thus, it can safely be culled out that sufficient and suitable data were provided to the GEQD. Moreover, PW40 in his deposition, nowhere deposed that the provided data were not suitable and sufficient to give any definite opinion.
(iii) Another futile attempt was made to create a doubt over his report by stating that CBI has failed to produce Mr. N.C. Sood in the witness box despite the fact that he is still alive. No doubt, PW40 in his cross-examination admitted that Mr. N.C. Sood is still alive and he had retired from GEQD, Shimla. But to my mind prosecution is not required to bring him in the witness box when PW40 has already proved the report and defence failed to bring anything on record, which may cast any doubt over his report. Moreover, it is settled law that Court has to see the quality and not quantity of evidence. Thus, mere fact that Mr. N.C. Sood was not examined by prosecution is not sufficient to discard the testimony of PW40, which is otherwise trustworthy and admissible. Moreover, if accused thinks that the deposition of Mr. N.C. Sood would help him to prove his innocence, he could have easily called him as a defence witness, but he also failed to examine him. Thus, to my mind, non-examination of Mr. N.C. Sood is not fatal to the prosecution in any manner.
CBI No. 51/2016 (old No. 10/12) Page 38 of 156State through CBI v. Bibianus Toppo & Ors.
29. Learned counsel vigorously argued that no reliance can be placed on the report of PW40 as investigating officer (PW46) had not obtained the permission of the Court before taking the specimen handwritings of accused Anil Dhawan (A4) and in support of his contention, he strongly relied upon Sapan Haldar & another v/s. State (supra).
30. Perusal of the judgment Sapan Haldar & another v/s. State (supra) makes it clear that the fact in issue before the Hon'ble Court was Section 4 & 5 of Identification of Prisoners Act, 1920 and Section 311A Code of Criminal Procedure. After considering the relevant case law, Hon`ble Court arrived at following conclusion:-
(i) Handwriting and signature are not measurements as defined under clause (a) of Section 2 of The Identification of Prisoners Act, 1920. Therefore, Section 4 and Section 5 of The Identification of Prisoners Act, 1920 will not apply to a handwriting sample or a sample signature. Thus, an investigating officer, during investigation, cannot obtain a handwriting sample or a signature sample from a person accused of having committed an offence.
(ii).Prior to June 23, 2006, when Act No. 25 of 2005 was notified, inter-alia, inserting Section 311A in the Code of Criminal Procedure, 1973, even a Magistrate could not direct a person accused to give specimen signatures of handwriting samples. In cases where Magistrates have directed so, the evidence was held to be inadmissible as per the decision of the Supreme Court in Ram Babu Mishra's case (supra). According to Section 73 of the Indian Evidence Act, 1872, only the Court concerned can direct a person appearing before it to submit CBI No. 51/2016 (old No. 10/12) Page 39 of 156 State through CBI v. Bibianus Toppo & Ors.
samples of his handwriting and or signatures for purposes of comparison.
(emphasis supplied)
31. However in the instant case, neither the Section 2 (a), 4 & 5 of identification of Prisoners Act nor Section 311A Cr.P.C are fact in issue before this Court. Indisputably, in the instant case, investigating officer had not taken the specimen handwritings of the accused after obtaining permission either from the Court concerned or from the Court of Metropolitan Magistrate. Rather, specimen handwritings were taken during the investigation. It is pertinent to state that in the judgment Sapan Haldar & another v/s. State (supra), there is nothing which may suggest that investigating officer has no right or jurisdiction to take specimen handwritings of the suspect during investigation for the purpose of finding truth, which is an ultimate object of any investigation.
(i) Though learned counsel appearing for A8 also placed reliance on certain other judgements including Fakhruddin v/s. State of M.P (supra); Ram Chandra v/s. State of UP (supra); Ishwari Pal Mista v/s. Mohd. Isa (supra); Shashi Kumar Banerjee v/s. Subhodh Kumar Banerjee (supra), yet I do not deem it appropriate to discuss all the judgements separately because all the said judgements have been considered by the Apex Court in Murari Lal v/s. State of MP, AIR 1980 SC 531. In the said judgment Apex Court had discussed the entire case law relating to Handwriting Expert Evidence, thus relevant portions of the judgment are reproduced as under:-
CBI No. 51/2016 (old No. 10/12) Page 40 of 156State through CBI v. Bibianus Toppo & Ors.
Para No.2.......... The Station House Officer, P. W. 28, came to the scene, found things in the room strewn about in a peel-smell condition. He seized various articles. One of the articles so seized was a prescription pad Ex. P-9. On pages A to F of Ex. P-9, there were writings of the deceased but on page 6, there was a writing in Hindi in pencil which was as follows:
Translated into English it means: "Though we have passed B. A., we have not secured any employment because there is none to care. This is the consequence. sd/- Balle Singh". ...... Specimen writings Exs. P-41 to P-54 of Murari Lal were obtained. They were sent to a handwriting and finger-print expert P. W. 15 along with the prescription pad Ex. P-9, for his opinion. The expert gave his opinion that the writing in Hindi at page 6 of Ex. P-9 and the specimen writings of Exs. P-41 to P-54 were made by the same person......
3......He further argued that the High Court fell into a grave error in concluding that the writing at page 6 of Ex. P-9 was that of the appellant.
He submitted that the evidence of P. W. 8 who claimed to be familiar with the handwriting of the appellant was wholly unacceptable, that it was not permissible in law to act upon the uncorroborated opinion-evidence of the expert P. W. 15 and that the High Court fell into a serious error in attempting to compare the writing in Ex. P-9 with the admitted writing of the appellant.
4. We will first consider the argument, a Stale argument often heard, particularly in criminal courts, that the opinion-evidence of a handwriting expert should not be acted upon without substantial corroboration. We shall presently point out how the argument cannot be justified on principle or precedent. We begin with the observation that the expert is no accomplice. There is no justification for CBI No. 51/2016 (old No. 10/12) Page 41 of 156 State through CBI v. Bibianus Toppo & Ors.
condemning his opinion evidence to the same class of evidence as that of an accomplice and insist upon corroboration. True, it has occasionally been said on very high authority that it would be hazardous to base a conviction solely on the opinion of a handwriting expert. But, the hazard in accepting the opinion of any expert, handwriting expert or any other kind of expert, is not because experts, in general, are unreliable witnesses - the equality of credibility or incredibility being one which an expert shares with all other witness -, but because all human judgment is fallible and an expert may go wrong because of some defect of observation, some error of premises or honest mistake of conclusion. The more developed and the more perfect a science, the less the chance of an incorrect opinion and the converse if the science is less developed and imperfect. The science of identification of finger-prints has attained near perfection and the risk of an incorrect opinion is practically non-existent. On the other hand, the science of identification of handwriting is not nearly so perfect and the risk is, therefore, higher. But that is a far cry from doubting the opinion of a handwriting expert as an invariable rule and insisting upon substantial corroboration in every case, howsoever the opinion may be backed by the soundest of reasons. It is hardly fair to an expert to view his opinion with an initial suspicion and to treat him as an inferior sort of witness. His opinion has to be tested by the acceptability of the reasons given by him. An expert deposes and not decides. His duty 'is to furnish the judge with the necessary scientific criteria for testing the accuracy of his conclusion, so as to enable the judge to form his own independent judgment by the application of these criteria to the facts proved in evidence'. (Vide Lord President Cooper in Decie v.
Edinburgh Magistrate, 1953 SC 34 quoted by Professor Cross in his Evidence).
5. From the earliest times, courts have received the opinion of experts. As long ago as 1553 it was said in Buckley v. Rice Thomas, CBI No. 51/2016 (old No. 10/12) Page 42 of 156 State through CBI v. Bibianus Toppo & Ors.
(1554) 1 Plowden 118:
"If matters arise in our law which concern other sciences or faculties, we commonly apply for the aid of that science or faculty which it concerns. This is a commendable thing in our law. For thereby it appears that we do not dismiss all other sciences but our own, but we approve of them and encourage them as things worthy of commendation."
6.Expert testimony is made relevant by S. 45 of the Evidence Act and where the Court has to form an opinion upon a point as to identity of handwriting, the opinion of a person 'specially skilled' 'in questions as to identity of handwriting' is expressly made a relevant fact. There is nothing in the Evidence Act, as for example like Illustration (b) to Section 114 which entitles the Court to presume that an accomplice is unworthy of credit, unless he is corroborated in material particulars, which justifies the court in assuming that a handwriting expert's opinion is unworthy of credit unless corroborated. The Evidence Act itself (S. 3) tells us that 'a fact is said to be proved when, after considering the matters before it, the Court either believes it to exist or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists'. It is necessary to occasionally remind ourselves of this interpretation clause in the Evidence Act lest we act on artificial standard of proof not warranted by the provisions of the Act. Further, under S. 114 of the Evidence Act, the Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct, and public and private business, in their relation to facts of the particular case. It is also to be noticed that S. 46 of the Evidence Act makes facts, not otherwise relevant, relevant if they support or are inconsistent with the opinion of experts, when CBI No. 51/2016 (old No. 10/12) Page 43 of 156 State through CBI v. Bibianus Toppo & Ors.
such opinions are relevant. So, corroboration may not invariably be insisted upon before acting on the opinion of a handwriting expert and there need to no initial suspicion. But, on the facts of a particular case, a court may require corroboration of a varying degree. There can be no hard and fast rule, but nothing will justify the rejection of the opinion of an expert supported by unchallenged reasons on the sole ground that it is not corroborated. The approach of a court while dealing with the opinion of a handwriting expert should be to proceed cautiously, probe the reasons for the opinion, consider all other relevant evidence and decide finally to accept or reject it.
7. Apart from principle, let us examine if precedents justify invariable insistence on corroboration. We have referred to Phipson on Evidence, Cross on Evidence, Roscoe on Criminal Evidence, Archibald on Criminal Pleadings, Evidence and Practice and Halsbury's Laws, England but we were unable to find a single sentence hinting at such a rule. We may now refer to some of the decisions of this Court. In Ram Chandra v. U. P. State, AIR 1957 SC 381, Jagannadha Das, J. observed; "It may be that normally it is not safe to treat expert evidence as to handwriting as sufficient basis for conviction" (emphasis ours). 'May' and 'normally' make our point about the absence of an inflexible rule. In Ishwari Prasad Misra v. Mohammad Isa, (1963) 3 SCR 722, Gajendragadkar, J. observed; "Evidence given by expert can never be conclusive, because after all it is opinion evidence", a statement which carries us nowhere on the question now under consideration. Nor, can the statement be disputed because it is not so provided by the Evidence Act and, on the contrary, S. 46 expressly makes opinion evidence challenge- able by facts, otherwise irrelevant. And as Lord President Cooper observed in Davis v.
Edinburgh Magistrate : "The parties have invoked the decision of a judicial tribunal and CBI No. 51/2016 (old No. 10/12) Page 44 of 156 State through CBI v. Bibianus Toppo & Ors.
not an oracular pronouncement by an expert".
8. In Shashi Kumar v. Subodh Kumar, AIR 1964 SC 529, Wanchoo, J., after noticing various features of the opinion of the expert said:
"We do not consider in the circumstances of this case that the evidence of the expert is conclusive and can falsify the evidence of the attesting witnesses and also the circumstances which go to show that this Will must have been signed in 1943 as it purports to be. Besides, it is necessary to observe that expert's evidence as to handwriting is opinion evidence and it can rarely, if ever take the place of substantive evidence. Before acting on such evidence it is usual to see if it is corroborated either by clear direct evidence or by circumstantial evidence. In the present case the probabilities are against the expert's opinion and the direct testimony of the two attesting witnesses which we accept is wholly inconsistent with it".
So, there was acceptable direct testimony which was destructive of the expert's opinion; there were other features also which made the expert's opinion unreliable. The observations regarding corroboration must be read in that context and it is worthy of note that even so the expression used was 'it is usual' and not 'it is necessary'.
9. In Fakhruddin v. State of Madhya Pradesh, AIR 1967 SC 1326 : 1967 Cri LJ 1197, Hidayatullah, J. said:
"Both under S. 45 and S. 47 the evidence is an opinion, in the former by a scientific comparison and in the latter on the basis of familiarity resulting form frequent observations and experience. In either case the Court must satisfy itself by such means as are open that the opinion may be acted upon. One such means open to the Court is to apply its own observation CBI No. 51/2016 (old No. 10/12) Page 45 of 156 State through CBI v. Bibianus Toppo & Ors.
to the admitted or proved writings and to compare them with the disputed one, not to become a handwriting expert but to verify the premises of the expert in the one case and to appraise the value of the opinion in the other case. This comparison depends on an analysis of the characteristics in the admitted or proved writings and the finding of the same characteristics in large measure in the disputed writing. In this way the opinion of the deponent whether expert or other is subjected to scrutiny and although relevant to start with becomes probative. Where an expert's opinion is given, the Court must see for itself and with the assistance of the expert come to its own conclusion whether it can safely be held that the two writings are by the same person. This is not to say that the Court must play the role of an expert but to say that the Court accept the fact proved only when it has satisfied itself on its own observation that it is safe to accept the opinion whether of the expert or other witness".
These observations lend no support to any requirement as to corroboration of expert testimony. On the other hand, the facts show that the Court ultimately did act upon the uncorroborated testimony of the expert though the judges took the precaution of comparing the writing themselves.
10. Finally, we come to Magan Bihari Lal v.
State of Punjab, AIR 1977 SC 1091 upon which Sri R. C. Kohli, learned counsel, placed great reliance. It was said by this Court:
"... but we think it would be extremely hazardous to condemn the appellant merely on the strength of opinion evidence of a handwriting expert. It is now well settled that expert opinion must always be received with great caution and perhaps none so with more caution than the opinion of a handwriting expert. There is a profusion of precedential authority which holds that it is unsafe to base a conviction solely on CBI No. 51/2016 (old No. 10/12) Page 46 of 156 State through CBI v. Bibianus Toppo & Ors.
expert opinion without substantial corroboration. This rule has been universally acted upon and it has almost become a rule of law. It was held by this Court in Ram Chandra v. State of U. P., AIR 1957 SC 381 that it is unsafe to treat expert handwriting opinion as sufficient basis for conviction, but it may be relied upon when supported by other items of internal and external evidence. This Court again pointed out in Iswari Prasad v. Md. Isa, AIR 1963 SC 1728 that expert evidence of handwriting can never be conclusive because it is, after all, opinion evidence, and this view was reiterated in Shashi Kumar v. Subodh Kumar, AIR SC 529 where it was pointed out by this Court that expert's evidence as to handwriting being opinion evidence can rarely, if ever, take the place of substantive evidence and before acting on such evidence, it would be desirable to consider whether it is corroborated either by clear direct evidence or by circumstantial evidence. This Court had again occasion to consider the evidentiary value of expert opinion in regard to handwriting in Fakhruddin v. State of M. P., AIR 1967 SC 1326 and it uttered a note of caution pointing out that it would be risky to found a conviction solely on the evidence of a handwriting expert and before acting upon such evidence, the court must always try to see whether it is corroborated by other evidence, direct or circumstantial."
The above extracted passage, undoubtedly, contains some sweeping general observations. But we do not think that the observations were meant to be observations of general application or as laying down any legal principle. It was plainly intended to be a rule of caution and not a rule of law as is clear from the statement 'it has almost become as rule of law'. 'Almost', we presume, means 'not quite'. It was said by the Court there was a 'profusion of precedential authority' which insisted upon corroboration and reference was made to Ram Chandra v. State of U. P., Ishwari Prasad v. Mohammed Isa, Shashi Kumar v. Subodh Kumar and Fakhruddin v.
CBI No. 51/2016 (old No. 10/12) Page 47 of 156State through CBI v. Bibianus Toppo & Ors.
State of M. P. We have already discussed these cases and observed that none of them supports the proposition that corroboration must invariably be sought before opinion evidence can be accepted. There appears to be some mistake in the last sentence of the above extracted passage because we are unable to find in Fakhruddin v. State of Madhya Pradesh any statement such as the one attributed. In fact, in that case, the learned Judges acted upon the sole testimony of the expert after satisfying themselves about the correctness of the opinion by comparing the writings themselves. We do think that the observations in Magan Bihari Lal v. State of Punjab must be understood as referring to the facts of the particular case.
11. We are firmly of the opinion that there is no rule of law, nor any rule of prudence which has crystallised into a rule of law, that opinion evidence of a handwriting expert must never be acted upon, unless substantially corroborated. But, having due regard to the imperfect nature of the science of identification of handwriting, the approach, as we indicated earlier, should be one of caution. Reasons for the opinion must be carefully probed and examined. All other relevant evidence must be considered. In appropriate cases, corroboration may be sought. In cases where the reasons for the opinion are convincing and there is no reliable evidence throwing a doubt. the uncorroborated testimony of a handwriting expert may be accepted. There cannot be any inflexible rule on a matter which, in the ultimate analysis, is no more than a question of testimonial weight. We have said so much because this is an argument frequently met with in subordinate courts and sentences torn out of context from the judgments of this Court are often flaunted.
12. The argument that the Court should not venture to compare writings itself, as it would CBI No. 51/2016 (old No. 10/12) Page 48 of 156 State through CBI v. Bibianus Toppo & Ors.
thereby assume to itself the role of an expert is entirely without force. Section 73 of the Evidence Act expressly enables the Court to compare disputed writings with admitted or proved writings to ascertain whether a writing is that of the person by whom it purports to have been written. If it is hazardous to do so, as sometimes said, we are afraid it is one of the hazards to which judge and litigant must expose themselves whenever it becomes necessary.
There may be cases where both sides call experts and the voices of science are heard.
There may be cases where neither side calls an expert, being ill able to afford him. In all such cases, it becomes the plain duty of the Court to compare the writings and come to its own conclusion. The duty cannot be avoided by recourse to the statement that the court is no expert. Where there are expert opinions, they will aid the Court. Where there is none, the Court will have to seek guidance from some authoritative textbook and the Court's own experience and knowledge. But discharge it must, its plain duty, with or without expert, with or without other evidence. We may mention that Shashi Kumar v. Subodh Kumar and Fakhruddin v. State of Madhya Pradesh were cases where the Court itself compared the writings.
13. Reverting to the facts of the case before us, Sri Kohli had not a word of criticism to offer against the reasons given by the expert P. W. 15, for his opinion. We have perused the reasons given by the expert as well as his cross-examination. Nothing has been elicited to throw the least doubt on the correctness of the opinion. Both the Sessions Court and the High Court compared the disputed writing at page 6 in Ex. P-9 with the admitted writings and found, in conjunction with the opinion of the expert, that the author was the same person. We are unable to find any ground for disagreeing with the findings.
(emphasis supplied) CBI No. 51/2016 (old No. 10/12) Page 49 of 156 State through CBI v. Bibianus Toppo & Ors.
(ii) The above view was approved by the Apex Court in Alamgir v/s. State (NCT) Delhi in Criminal Appeal No. 202 of 2001 decided on 12.11.2002.
(iii) Though counsel appearing for Anil Dhawan also cited certain other judgements relating to handwritings but in view of the law laid down in Murari Lal v/s. State of MP (supra), I am of the view that no fruitful purpose would be achieved to discuss the said judgements.
(iv) From the evidence adduced by prosecution, it can safely be culled out that prosecution has succeeded to prove the following facts:-
(a) That A4 was an employee of PW9 Mr. G. S.
Walia.
(b) That A4 was working under the supervision of
PW36 for almost eight years and his duties were to deliver tickets to clients; to collect payment; to help clients in getting passports and visa; to make entries in the Day book.
(c) That PW36 had identified certain writings i.e. Q8, Q9, Q11 and Q12 (in the additional passport booklet file Ex. PW3/F); Q23A, Q24, Q26, Q27 and Q29 (in the additional passport booklet file Ex. PW3/Q); Q38, Q39, CBI No. 51/2016 (old No. 10/12) Page 50 of 156 State through CBI v. Bibianus Toppo & Ors.
Q41, Q42, Q44 and Q50 to Q52 (in the additional passport booklet file Ex. PW3/N); Q54, Q57, Q58, Q60, Q63 and Q64 (in the additional passport booklet file Ex. PW3/L); Q70, Q73, Q74, Q74 and Q77 (in the additional passport booklet file Ex.PW7/J); Q86, Q89, Q89/1, Q90, Q92, Q98 and Q99 (in the additional passport booklet file Ex.PW3/G); Q1 to Q4 (Ex.PW36 to PW36/D respectively) and Q5 and Q6 (Ex.PW34/E and Ex.PW36/E respectively).
(i) From the deposition of PW36, it is established beyond doubt A4 had filled up the forms in the name of applicants at the time of obtaining additional passport booklets from time to time. From his deposition it is also established that A4 had also taken the delivery of said passports by making entries marked Q1 to Q6 in the passport delivery register.
(d) That handwriting expert report Ex.PW40/C proves that A4 is the author of Q1 to Q25, Q28 to Q55, Q57 to Q84, Q89 and Q92. In other words handwriting expert report establishes that A4 had not only filled up the forms in name of applicants but he also signed in the name of applicants not only on the forms but also on the supporting documents and he had also taken the delivery of said passports by making entries marked Q1 to Q6 in passport delivery register.
CBI No. 51/2016 (old No. 10/12) Page 51 of 156State through CBI v. Bibianus Toppo & Ors.
(e) That during investigation, investigating officer had taken the specimen writing/signatures of accused Anil Dhawan (A4) S1 to S53 and the same has also been proved by PW7.
(f) That from the testimony of PW36 it is also established that A4 is also the author of A1 to A23.
(g) That from the GEQD report Ex.PW40/C, it has been established that the author of S1 to S53, A1 to A23 and the above said questioned writings are one and same person.
32. Thus from the above, it becomes crystal clear that PW36 not only proved the fact that accused Anil Dhawan (A4) had filled up the passport application registration forms as well as application forms for miscellaneous services on Indian Passport in all six passport files, which were submitted to the office of RPO for obtaining additional passport booklets in the name of Mr. Harbans Lal Suri, Ms. Neha Suri and Mr. Dashrath Suri from time to time with photograph of different persons, but PW40 B.A.Vaid also corroborated the testimony of PW36 and also proves that A4 had signed in the files (except the file of Dashrath Suri) in the name of applicants. Further, during trial no reliable evidence, which may throw any doubt over the conclusion arrived at by PW40, has been produced by the accused. Thus, in the absence of any contrary evidence on record, this Court has no reason to disbelieve the report of PW40 which is not only corroborated by PW36 but also supported by another independent Handwriting Expert CBI No. 51/2016 (old No. 10/12) Page 52 of 156 State through CBI v. Bibianus Toppo & Ors.
i.e. Mr. N.C. Sood.
33. Since, it has been established that the passport application registration forms and applications for miscellaneous services on Indian Passport in all additional passport booklet files, which were submitted before the RPO for obtaining additional passport booklets from time to time, were not only filled up by the accused Anil Dhawan (A4) but he also signed the same in the name of two applicants i.e. Harbans Lal Suri and Neha Suri, thus in terms of Section 106 of Indian Evidence Act, burden is shifted upon A4 to explain under which circumstances he had filled up the said forms/applications and signed in the name of applicants. But during trial, A4 failed to discharge the said burden. In the absence of any contrary evidence on record, this Court has no hesitation to draw a conclusion that A4 had not only filled up the said forms/applications knowingly well that the persons whose photographs are affixed on the said forms/applications were not Mr. Harbans LaL Suri, Ms. Neha Suri and Mr. Dashrath Suri in whose name the said forms/applications had been filled up, but he also signed in the name of first two applicants in the above said files, thus accused Anil Dhawan (A4) is liable for the offence punishable under Section 420 IPC as he dishonestly induced the office of RPO to believe that the persons whose photographs are affixed on the said forms/applications were Mr. Harbans Lal Suri, Ms. Neha Suri and Mr. Dashrath Suri, thus induced RPO to issue additional passport booklets as prayed in said forms/applications.
34. As already discussed that accused Anil Dhawan (A4) had signed in the name of applicants namely Mr. Harbans Lal Suri and CBI No. 51/2016 (old No. 10/12) Page 53 of 156 State through CBI v. Bibianus Toppo & Ors.
Ms. Neha Suri at the time of applying for additional passport booklets in all the files and he also signed in the name of all applicants at the time of taking delivery of two additional passport booklets, thus he had committed forgery as defined under Section 463 IPC. As he did so with an intention to support his claim that the said forms were signed by the applicants Mr. Harbans Lal Suri, Ms. Neha Suri and Mr. Dashrath Suri and the delivery of two additional passports were taken by the applicants themselves with an intention to commit fraud upon RPO, New Delhi by signing in the name of above said applicants, accused Anil Dhawan is also liable for the offence punishable under Section 468 IPC.
35. Since, A4 had also used the said forms in order to obtain additional passport booklets in the name of applicants namely Mr. Harbans Lal Suri, Ms. Neha Suri and Mr. Dashrath Suri knowingly well that the above persons whose photographs were affixed on the said forms were not Mr. Harbans Lal Suri, Ms. Neha Suri and Mr. Dashrath Suri, he is also liable for the offence punishable under Section 471 IPC.
36. Since, it has been established that accused Anil Dhawan (A4) had collected six additional passport booklets by signing in the name of above applicants in the passport delivery register, it proves that he represented himself as applicants at the time of taking the delivery of the additional passport booklets, thus he is also liable for the offence punishable under Section 419 IPC.
37. Since, accused Anil Dhawan (A4) had filled up the CBI No. 51/2016 (old No. 10/12) Page 54 of 156 State through CBI v. Bibianus Toppo & Ors.
passport application registration forms and forms for miscellaneous services in the name of Mr. Harbans Lal Suri, Ms. Neha Suri and Mr. Dashrath Suri with the photographs of different persons and he also signed on the said forms and the fact that he failed to furnish any reasonable explanation under which circumstances he had filled up the said forms/applications in the name of same person with different photographs and signed the said forms in the name of applicants, his above acts are sufficient to draw a conclusion that he had furnished false information qua applicants knowingly or having reasons to believe that the persons whose photographs are affixed on the said forms/applications were not Mr. Harbans Lal Suri, Ms. Neha Suri and Mr. Dashrath Suri. Thus, he facilitated the said persons in obtaining the passport in the form of additional passport booklets in the assumed name of applicants from RPO by furnishing false information, accused Anil Dhawan (A4) is also liable for the offence punishable under Section 12 (1) (b) of Passport Act.
Common Contentions on behalf of A1 to A3:-
38. Learned counsel appearing for the accused persons who were working in RPO, New Delhi at the time of commission of alleged offence vigorously contended that since the passport is not a valuable thing, accused persons cannot be held guilty for the offence punishable under Section 13 (2) of PC Act.
(i) Per contra, learned Sr. Public Prosecutor appearing for CBI refuted the said contention by sagaciously arguing that since passport confers a valuable right over a person, passport is a valuable CBI No. 51/2016 (old No. 10/12) Page 55 of 156 State through CBI v. Bibianus Toppo & Ors.
thing.
39. To deal with the said contention, I deem it appropriate to refer to some of the provisions of Passport Act to ascertain the importance of passport. 'Passport' is defined in Section 2 (b) and 'travel document' is defined under Section 2 (e) of Passport Act and same are read as under:-
Section 2 (b) : "passport" means a passport issued or deemed to have been issued under this Act.
Section 2 (e) : "travel documents" means a travel document issued or deemed to have been issued under this Act.
(i) Significance of 'passport' and 'travel document' is described in Section 3 which reads as under:-
Section 3 : Passport or travel document for departure from India - No person shall depart from, or attempt to depart from India, unless he holds in this behalf a valid passport or travel document.
Explanation - For the purposes of this section -
(a) "passport" includes a passport which having been issued by or under the authority of the Government of a foreign country satisfies the conditions prescribed under the Passport (Entry into India) Act, 1920 (34 of 1920), in respect of the class of passports to which it belongs;
(b) "travel document" includes a travel document which having been issued by or under the authority of Government of a foreign country CBI No. 51/2016 (old No. 10/12) Page 56 of 156 State through CBI v. Bibianus Toppo & Ors.
satisfies the conditions prescribed.
(emphasis supplied)
(ii) From the combined reading of Section 2(b), 2(e) and 3 of the Passport Act, it becomes crystal clear that no person can depart from the territory of India unless he holds a valid passport or travel document issued by the Passport Authority. In other words, passport creates a legal right in favour of a person to depart from the territory of India. Besides that, passport is also a valid document to prove the nationality of a person. It is also a valid document for the identity of a person.
40. Though there is a reference of "valuable thing" in Section 13 (1) (d), yet "valuable thing" is not defined in PC Act.
(i) Question arises whether passport can be considered as "valuable thing" or not?
(ii) Though "valuable security" is defined under Section 30 of IPC, but Penal Code is also silent qua "valuable thing". Section 30 reads as under:-
Section 30 "Valuable security" - The words "valuable security" denote a document which is, or purports to be, a document whereby any legal right is created, extended, transferred, restricted, extinguished or released, or whereby any person acknowledges that he lies under legal liability, or has not a certain legal right.
(emphasis supplied) CBI No. 51/2016 (old No. 10/12) Page 57 of 156 State through CBI v. Bibianus Toppo & Ors.
(iii) Bare perusal of the Section 30 of IPC makes it clear that if a document either creates, extends, transfers, restricts, extinguishes or releases any legal right in favour of any person OR where any person acknowledges any legal liability OR acknowledges that he has no certain legal right, such document shall be called as "valuable security".
(iv) As evident from the provisions of Passport Act that passport authorizes a person to travel beyond the territory of India, thus, passport creates a legal right in favour of its holder to visit abroad subject to fulfillment of other requirements such as visa etc. but no person can depart beyond the territory of India unless he holds a valid passport or travel document. Thus, to my mind, passport is a valuable security.
(v) It can also be said that the "valuable security" is one of the species of "valuable things". All "valuable securities" may be "valuable things" but may not be vice-versa. However, in view of the provisions of Passport Act, it can be safely culled out that passport is a "valuable thing".
41. Next contention raised by learned counsel appearing for A1 to A3 is that since accused persons had acted in good faith while discharging their duties, if they had committed any mistake in discharging their official duties, they cannot be held liable for the penal offences.
(i) Per contra, learned Sr. Public Prosecutor refuted the said CBI No. 51/2016 (old No. 10/12) Page 58 of 156 State through CBI v. Bibianus Toppo & Ors.
contention by arguing sagaciously that since accused persons had not taken due care deliberately while performing their duties, the plea of good faith is not available to them.
42. 'Good Faith' is defined under Section 52 of IPC, which reads as under:-
"Nothing is said to be done or believed in "good faith", which is done or believed without due care or attention."
(i) Thus, before taking the plea of good faith, the person who takes such plea has to show by producing relevant material/evidence on record that he had taken due care and attention. The question whether the above accused persons had taken any such care and attention at the time of dealing with the files in question shall be discussed while discussing their role.
43. Coming to the next contention wherein learned counsel appearing for A1 to A3 vigorously argued that no reliance can be placed on the certificate Ex.PW3/A as PW3 Ajai Gautam was not a competent person to issue the said certificate. It was further argued that the said certificate was not in accordance with law.
(i) Per contra, learned Senior Public Prosecutor appearing for CBI countered the said contention by sagaciously arguing that PW3 was not only a competent person to issue the certificate but certificate was issued in accordance with law, thus there is no reason to disbelieve the deposition of PW3 when he deposed that data were CBI No. 51/2016 (old No. 10/12) Page 59 of 156 State through CBI v. Bibianus Toppo & Ors.
not tempered with.
(ii) PW3 Sh. Ajai Gautam in his examination-in-chief deposed that he was an officer of National Informative Centre (NIC) and he was on deputation to RPO, New Delhi and deposed that his duty was to install and configure the computer/server and provide operational support to the passport office. He further deposed that the annexures Ex.PW2/C to Ex.PW2/N (work done sheets/process sheets) to the letter Ex.PW2/B were generated by him and the same bears his signature. He further deposed that he had issued the certificate under Section 65 B of Indian Evidence Act (Ex.PW3/A) wherein he certified that he had generated the said documents and said documents were true and actual reproduction of the data maintained at Regional Passport Office, New Delhi as electronic record in the ordinary course of business and further testified that same was not tempered with. He further testified that the computer from which the prints out were taken, was properly working. He further testified that the computers/terminals through which the concerned officials worked during the relevant period, were also working properly.
(iii) Since, PW3 Sh. Ajai Gautam was deputed at the office of RPO from NIC and his duty was to look after the installation of computers/servers and provide operational support to the staff of RPO, New Delhi, it can safely be culled out that PW3 was a competent person for the maintenance of computers/servers installed in the office of RPO, New Delhi. It means that he was one of the competent persons to certify that the data were actual reproduction of the electronic record and same were not tempered with and the CBI No. 51/2016 (old No. 10/12) Page 60 of 156 State through CBI v. Bibianus Toppo & Ors.
system from which the above data were fed and the documents generated, were working properly.
(iv) PW3 in his examination-in-chief deposed that about 100 dump terminals, 20-25 computers and 5 scanners were installed in the office of RPO, New Delhi. Since 100 dump terminals were installed in the office of RPO, New Delhi, it can safely be said that dump terminals were provided to officials to feed data. It is pertinent to mention here that in dump terminals, there is no hard disk and data fed through dump terminals were directly saved/stored in the server, to which dump terminals were connected. There is nothing on record which may suggest that the dump terminals or the computers from which the officials of RPO used to feed information as mentioned in the aforesaid documents (Ex. PW2/C to PW2/N) were not working properly or that server was not working properly at the relevant time.
(v) In view of the above discussion, I do not find any reason to disbelieve the deposition of PW3 Sh. Ajai Gautam, who is an independent person. Thus, to my mind the above documents (Ex. PW2/C to PW2/N) are admissible in evidence and I do not find any infirmity or illegality in the certificate issued under Section 65 B of Indian Evidence Act.
44. PW2 Inder Mohan, the then Superintendent in the office of RPO, New Delhi corroborated the testimony of PW3. He also identified his signature on the process/work done sheets Ex.PW2/C to Ex.PW2/N and testified that the same were sent to the CBI vide his letter Ex.PW2/B. CBI No. 51/2016 (old No. 10/12) Page 61 of 156 State through CBI v. Bibianus Toppo & Ors.
45. No doubt, PW2 also deposed that he had no knowledge about the Section 65B of Indian Evidence Act and deposed that he had never issued any such certificate. But his testimony is not helpful to the accused persons in any manner because said certificate was issued by PW3 and not by PW2. As already discussed PW3 categorically deposed that he had issued the said certificate, thus the testimony of PW2 wherein he deposed that he had no knowledge about the compliance of the Section 65B of Indian Evidence Act is not fatal to the prosecution in any manner.
46. Learned counsel appearing for the above accused persons assailed the prosecution case by vehemently arguing that there is no evidence to prove the guilt of accused persons for the offence punishable under Section 13 (2) r/w 13 (1)(d) of PC Act and further sagaciously argued that to prove the charges under Section 13(1)(d) of PC Act, prosecution is duty bound to prove dishonest intention, which is an essential ingredient of Section 13(1)(d) of P.C Act. However, it was urged that during trial prosecution failed to adduce any evidence to prove that accused persons had any dishonest intent when they dealt with the files in question.
(i) Per contra, learned Sr. Public Prosecutor appearing for the CBI countered said contention by sagaciously arguing that though dishonest intention is one of the essential ingredients to prove the guilt of accused persons for the offences under Section 13(1)(d)(i) and (ii), but dishonest intention is not required to prove the guilt of the accused persons for the offence under Section 13(1)(d)(iii) of PC Act.
CBI No. 51/2016 (old No. 10/12) Page 62 of 156State through CBI v. Bibianus Toppo & Ors.
47. From the submissions advanced by counsel for both the parties, short but interesting question emerges whether 'criminal intent' or 'dishonest intention' is pre-requisite ingredient for the offence punishable under Section 13 (2) read with Section 13 (1) (d) of PC Act or not?
(i) Section 13(1) (d) of Prevention of Corruption Act is in following three parts:-
(i) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage; or
(ii) by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or
(iii) while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest;
(emphasis supplied)
(ii) Bare perusal of clause (i) and (ii), makes it clear that dishonest intention is an essential ingredient as held by the Apex Court in C. K. Jaffer Sharief v/s. State, 2012 (11) SCALE 71 and S. K. Kale v/s. State of Maharashtra, AIR 1977 SC 822. But there is nothing in the said judgements, which may show that mens-rea is also an essential ingredient for the offence under clause (iii) of Section 13 (1)(d) of Prevention of Corruption Act, 1988. This issue was raised before the High Court of Delhi in Runu Ghosh v/s. CBI decided by CBI No. 51/2016 (old No. 10/12) Page 63 of 156 State through CBI v. Bibianus Toppo & Ors.
the High Court of Delhi in Criminal Appeal No. 482 of 2002 on December 21, 2011. The relevant portions of the judgement are reproduced as under:-
70. There is no doubt that Section 13 (1) (d) (iii) differs from other parts of the Act, not only in structure, but also in substance. The use of terms such as habitually accepts agrees to accept attempts consideration which he knows to be inadequate dishonestly or fraudulently misappropriates. (property entrusted to him or allows any other person so to do); corrupt or illegal abusing his position are clear pointers to Parliamentary intention that mens rea is essential to be proved in relation to the offences provided for under Section 13 (1) (a) to (d) (i) and (ii). Section 13 (1) (d) (iii) contains no such words, which point to criminal intent. There is substance in the Appellants arguments that the Supreme Court had previously interpreted Section 5 (1) (d) so as to mean the existence of criminal motive (dishonest intent). This was stated in Narayanan Nambyar's case (supra) as follows:
The gist of the offence under this clause is, that a public officer abusing his position as a public servant obtains for himself or for any other person any valuable thing or pecuniary advantage. Abuse means misuse i.e. using his position for something for which it is not intended. That abuse may be by corrupt or illegal means or otherwise than those means. The word otherwise has wide connotation and if no limitation is placed on it, the words corrupt, illegal, and otherwise mentioned in the clause become surplus age, for on that construction every abuse of position is gathered by the clause. So some limitation will have to be put on that word and that limitation is that it takes colour from the preceding words along with which it appears in the clause, that is to say something savouring of dishonest act on his part....CBI No. 51/2016 (old No. 10/12) Page 64 of 156
State through CBI v. Bibianus Toppo & Ors.
Similarly, the other cases cited, i.e. S.P. Bhatnagar (whether the accused abused their position and acted dishonestly or with a corrupt or oblique motive) Abdulla Mohammed (supra); A. Wati Ao; C.K. Damodaran Nair; M. Mohiuddin and R. Balakrishna Pillai (supra) support this view. In the last decision, it was held that the offence requires intention, and the offence comprehended an element of mental state would be necessary to do a conscious act to get the required result of pecuniary advantage or to obtain any valuable thing, even if it is for someone else.
71. The question is, whether this setting compels the court to hold that mens rea is, like the other provisions, a necessary pre-requisite or pre-condition which the prosecution has to establish, from the conduct of a public servant. It would also be relevant here to mention that Section 13 (1) (e) appears to be in line with Section 13 (1) (d) (iii) in as much as there is no pointer to criminal intent. That provision declares that a public servant in possession of pecuniary resources or property which he cannot satisfactorily account, or which are disproportionate to his known sources of income is guilty of criminal misconduct. Here, the sources of income may or may not be connected with the public servants duties; the emphasis is on inability to satisfactorily account, or that the wealth or assets held are disproportionate to the servants known sources of income. If the ingredients of the provision are satisfied, it is not necessary to prove mens-rea. Section 13 (1) (e) enacts that a public servant is guilty of criminal misconduct:
(e) if he or any person on his behalf, is in possession or has, at any time during the period of his office, been in possession for which the public servant cannot satisfactorily account, of pecuniary resources or property disproportionate to his known sources of income.CBI No. 51/2016 (old No. 10/12) Page 65 of 156
State through CBI v. Bibianus Toppo & Ors.
The ingredients which the prosecution has to prove in relation to this offence, (which is in pari materia with Section 5 (1) (e) of the 1947 Act, were spelt out in M. Krishna Reddy v State Deputy Superintendent of Police 1992 (4) SCC 45 as follows:
To substantiate a charge under Section 5(1)(e) of the Act, the prosecution must prove the following ingredients, namely, (1) the prosecution must establish that the accused is a public servant, (2) the nature and extent of the pecuniary resources or property which were found in his possession (3) it must be proved as to what were his known sources of income, i.e. known to the prosecution and (4) it must prove, quite objectively, that such resources or property found in possession of the accused were disproportionate to his known sources of income... It is clear therefore, that mens rea or criminal intent does not have to be proved in the case of a charge under Section 13 (1) (e); it is enough for the prosecution to establish the four ingredients of the offence. As noticed earlier, the setting of this provision too needs to be taken into account, along with the legislative history (of Section 5 of the earlier Act, with its amendments, and the new Section 13 (1) (d) re-cast in a totally different manner) -it appears immediately after another offence of criminal misconduct (Section 13 (1) (d) (iii)) that does not textually allude to or require intent, or mens rea.
..............
..............
..............
24.The distinction between a strict construction and a more free one has disappeared in modern times and now mostly the question is what is true construction of the statute? A passage in CBI No. 51/2016 (old No. 10/12) Page 66 of 156 State through CBI v. Bibianus Toppo & Ors.
Craies on Statute Law, 7th Edn. reads to the following effect:
The distinction between a strict and a liberal construction has almost disappeared with regard to all classes of statutes, so that all statutes, whether penal or not, are now construed by substantially the same rules. ... They are construed now with reference to the true meaning and real intention of the legislature. At p. 532 of the same book, observations of Sedgwick are quoted as under:
The more correct version of the doctrine appears to be that statutes of this class are to be fairly construed and faithfully applied according to the intent of the legislature, without unwarrantable severity on the one hand or unjustifiable lenity on the other, in cases of doubt the courts inclining to mercy
73. Having regard to the previous history of the statute, the amendments to the 1947 Act, its avowed objects and the distinctive structure which Parliament adopted consciously, under the 1988 Act, despite being aware of the pre-existing law, as well as the decisions of the Court- the conclusion which this Court draws is that mens rea is inessential to convict an accused for the offence under Section 13 (1) (d) (iii). It would be sufficient if the prosecution proves that the public servant "obtains" by his act, pecuniary advantage or valuable thing, to another, without public interest. The inclusion of public interest, in the opinion of the Court, tips the scale in favour of a construction which does not require proof of mens rea. There can be many acts of a public servant, which result in pecuniary advantage, or obtaining of a valuable thing to someone else;
typically these may relate to payment of royalty, grant of license or concessions, issuance of permits, authorizations, etc. Yet, such grants, concessions, or other forms of advantages to CBI No. 51/2016 (old No. 10/12) Page 67 of 156 State through CBI v. Bibianus Toppo & Ors.
third parties would not criminalize the public servants actions, so long as they have an element of public interest. They (acts of the public servant) are outlawed, and become punishable, if they are "without public interest".
74. Having now settled the true interpretation of whether the offence under Section 13 (1) (d) (iii) requires proof of mens-rea, it would now be vital to settle what really the prosecution would have to establish to say that the public servants actions or decisions, which result in a third party obtaining a pecuniary advantage or valuable thing, without public interest. The expression "public interest" is known to law; at the same time its meaning is not rigid, and takes colour from the particular statute or policy (Ref.
Srinivasa Co-operative House Building Society v Madam Gurumurthy Sastry 1994 (4) SCC 675).
It might be useful to consider the following formulation of what is public interest, in relation to actions by public officials or agencies or instrumentalities of state, in every sphere of government functioning, given in Shrilekha Vidyarthi (Kumari) v. State of U.P., (1991) 1 SCC 212:
There is an obvious difference in the contracts between private parties and contracts to which the State is a party. Private parties are concerned only with their personal interest whereas the State while exercising its powers and discharging its functions, acts indubitably, as is expected of it, for public good and in public interest. The impact of every State action is also on public interest. This factor alone is sufficient to import at least the minimal requirements of public law obligations and impress with this character the contracts made by the State or its instrumentality. It is a different matter that the scope of judicial review in respect of disputes falling within the domain of contractual obligations may be more limited and in doubtful cases the parties may be relegated to CBI No. 51/2016 (old No. 10/12) Page 68 of 156 State through CBI v. Bibianus Toppo & Ors.
adjudication of their rights by resort to remedies provided for adjudication of purely contractual disputes...To this extent, the obligation is of a public character invariably in every case irrespective of there being any other right or obligation in addition thereto. An additional contractual obligation cannot divest the claimant of the guarantee under Article 14 of non- arbitrariness at the hands of the State in any of its actions. In a later decision, LIC of India v. Consumer Education & Research Centre, (1995) 5 SCC 482, it was held that:
Public authorities or those whose acts bear insignia of public element, action to public duty or obligation are enjoined to act in a manner i.e. fair, just and equitable, after taking objectively all the relevant options into consideration and in a manner that is reasonable, relevant and germane to effectuate the purpose for public good and in general public interest and it must not take any irrelevant or irrational factors into consideration or appear arbitrary in its decision. A recent judgment, has examined the concept, in NOIDA Entrepreneurs Association v. NOIDA, (2011) 6 SCC 508, in the light of provisions of Section 13 (1) (d), though the context of the courts' judgment were directions issued to investigate into action of public servants.
The court held that:
The State or the public authority which holds the property for the public or which has been assigned the duty of grant of largesse, etc. acts as a trustee and, therefore, has to act fairly and reasonably. Every holder of a public office by virtue of which he acts on behalf of the State or public body is ultimately accountable to the people in whom the sovereignty vests. As such, all powers so vested in him are meant to be exercised for public good and promoting the public interest. Every holder of a public office is a CBI No. 51/2016 (old No. 10/12) Page 69 of 156 State through CBI v. Bibianus Toppo & Ors.
trustee.
xxxxxxxxxxxx xxxxxxxxxxxx
41. Power vested by the State in a public authority should be viewed as a trust coupled with duty to be exercised in larger public and social interest. Power is to be exercised strictly adhering to the statutory provisions and fact situation of a case. Public authorities cannot play fast and loose with the powers vested in them. A decision taken in an arbitrary manner contradicts the principle of legitimate expectation. An authority is under a legal obligation to exercise the power reasonably and in good faith to effectuate the purpose for which power stood conferred.
............
............
............
.............
.............
.............
.............
.............
.............
77. The court, as a consequence has to determine the objective criteria by which acts (of public servants) without public interest, are to be judged, if mens rea (to obtain pecuniary advantage or valuable thing to another) is not a necessary ingredient. This exercise is essential because in the absence of mens rea (which has been ruled out) the court has to say what "acts" resulting in someone obtaining pecuniary advantage or valuable thing are "without public interest". Obviously the mere fact that a third party obtains pecuniary advantage, or a valuable thing, is insufficient; a supplier of equipment to public servants or offices, a travel agent who makes bookings for a public agency, a CBI No. 51/2016 (old No. 10/12) Page 70 of 156 State through CBI v. Bibianus Toppo & Ors.
businessman or corporate group granted licenses or clearances, by departments or agencies of the Government, would all stand to benefit. Many of these decisions are in fact, and all are, expected to be in public interest.
Therefore, the kind of behaviour which amounts to an "act" resulting in someone "obtaining pecuniary advantage" or "valuable thing"
"without public interest" needs to be spelt out.
78. In a previous part of this judgment, what constitutes "public interest" and the trust element, which informs every decision of a public servant or agency, was discussed and emphasized. The State in its myriad functions enters into contracts, of various kinds, involves itself in regulation, awards or grants largesse, and holds property. Each action of the State must further the social or economic goals sought to be achieved by the policy. Therefore, when a public servants decision exhibits complete and manifest disregard to public interest with the corresponding result of a third party obtaining pecuniary advantage or valuable thing, he is fastened with responsibility for "criminal misconduct" under Section 13 (1) (d) (iii). There is nothing reprehensible in this interpretation, because the "act" being "without public interest"
is the key, the controlling expression, to this offence. If one contrasts this with "abuse" of office resulting in someone "obtaining"
"pecuniary advantage or valuable thing", it is evident that Section 13 (1)(d) (ii) may or may not entail the act being without public interest. This offence- under Section 13 (1) (d) (iii) advisedly does not require proof of intent, or mens rea, because what Parliament intended was to punish public servants for acts which were without public interest. This kind of offence is similar to those intended to deal with other social evils, such as food and drug adulteration, (offences under Prevention of Food Adulteration Act, Section 13 (1), Drugs and Cosmetics Act; Section 7 (1) Essential Commodities Act, 1955, Section 25, Arms Act, 1959), possession of CBI No. 51/2016 (old No. 10/12) Page 71 of 156 State through CBI v. Bibianus Toppo & Ors.
explosives, air and water pollution, etc.
79. What then is the behaviour or act which attracts such opprobrium as to result in criminal responsibility? It is not every act which results in loss of public interest, or that is contrary to public interest, that is a prosecutable offence. There can be no doubt that all acts prejudicial to public interest, can be the subject matter of judicial review. In those cases, courts consider whether the decision maker transgressed the zone of reasonableness, or breached the law, in his action. However, it is only those acts done with complete and manifest disregard to the norms, and manifestly injurious to public interest, which were avoidable, but for the public servants overlooking or disregarding precautions and not heeding the safeguards he or she was expected to, and which result in pecuniary advantage to another that are prosecutable under Section 13(1) (d) (iii). In other words, if the public servant is able to show that he followed all the safeguards, and exercised all reasonable precautions having regard to the circumstances, despite which there was loss of public interest, he would not be guilty of the offence. The provision aims at ensuring efficiency, and responsible behaviour, as much as it seeks to outlaw irresponsibility in public servants functioning which would otherwise go unpunished. The blameworthiness for a completely indefensible act of a public servant, is to be of such degree that it is something that no reasonable man would have done, if he were placed in that position, having regard to all the circumstances. It is not merely a case of making a wrong choice; the decision should be one such as no one would have taken.
(emphasis supplied)
(iii) From the above judgement, it becomes crystal clear CBI No. 51/2016 (old No. 10/12) Page 72 of 156 State through CBI v. Bibianus Toppo & Ors.
that mens-rea is not required for the offence under Section 13(1) (d)
(iii) of the Prevention of Corruption Act. Prosecution is required only to prove that public servant while holding the office obtains for any person any valuable thing or pecuniary advantage without any public interest.
Circulars issued from time to time:-
48. Since during the course of arguments, counsel for accused persons also referred to various circulars issued by the Ministry of External Affairs to press their contentions that the procedure for issuance of additional passport booklets was substantially liberalized by the Govt. of India, I deem it appropriate to refer the said circulars. First circular in this regard was issued on June 24, 1997, which is Ex. PW2/DH and same is reproduced as under:-
Ministry of External Affairs (CPV Division) No. V.1/401/190 24.6.97 CIRCULAR With the introduction of MSP/MRP passport booklets, the personal particulars of the holder are entered in the inner portion of front and back cover of the passport booklet. It is no longer feasible to attach or seal the additional booklet to the previous old passport.
2. It has, therefore, been decided henceforth CBI No. 51/2016 (old No. 10/12) Page 73 of 156 State through CBI v. Bibianus Toppo & Ors.
that while issuing additional booklet the practice of attaching and sealing the same with the old passport should be discontinued with immediate effect. The old passport should be cancelled and returned to the holder and suitable endorsement regarding old passport made in the new additional booklet. The validity of the additional booklet should be in continuation to the old passport of the holder.
3. In case second additional booklet is issued to the holder, the endorsement in the second additional booklet should carry the details of original passport and first additional booklet so that when asked by the appropriate authority, the holder should produce the same.
(Riva G. Das) Deputy Secretary (PV-I) All PIAs in India & Abroad
(i) The said circular was modified by issuing another circular dated November 25, 1997 (Ex. PW2/DG) wherein it was directed that instead of cancelling the original passport having valid visa, to put a stamp across the first three pages of the used booklet. The relevant portion of said circular reads as under:-
2. In view of the feedback received from our missions abroad, it has been decided to review the earlier decision. Instead of cancelling the original passport having valid visa, it has been decided to put a stamp across the first three pages of the used up booklet which would reads as " extended by the issue of a fresh booklet' CBI No. 51/2016 (old No. 10/12) Page 74 of 156 State through CBI v. Bibianus Toppo & Ors.
3. In the additional booklet, observation would read as:
"Holder has previously travelled on passport No. ........ dated........ issued at ........ which holds valid visas." (the details of the original passport may be included here, where there is a change of name, earlier name may be given).
4. This will be implemented with effect from December 15, 1997, in Missions abroad and with effect from December 1, 1997, in Passport Offices. In case of a subsequent passport booklet, details of the original passport as well as the previous additional booklet may be given.
6. Kindly confirm receipt.
(ii) Vide circular dated March 6, 2002 (Ex. PW2/DF) the condition of fresh police verification qua additional passport booklet and miscellaneous services was dispensed with. The relevant para are para 3 and 4, which read as under:-
3. Regrettably, we are noticing a reluctance among the PIAs to imbibe the spirit of the various people-friendly reforms being introduced by the Ministry. There is need to shake-off old and fossilised thinking and adopt a dynamic, creative and positive approach. For instance, now that the requirement of fresh police verification has been dispensed with for re-issue cases and additional booklets, there is no reason why these services cannot be provided within 3-4 working days when the original passport was issued from the same Passport Office.
4.Please discuss the possibilities with your PIAs CBI No. 51/2016 (old No. 10/12) Page 75 of 156 State through CBI v. Bibianus Toppo & Ors.
and staff and send your report as to what steps have you taken to ensure that the fruits of the reforms reach the general public. I expect your reply by March 15, 2002.
(iii) Vide circular dated May 26, 2003 (Ex. PW2/DE), charges for Tatkal services was dispensed with and it was directed to provide miscellaneous services within maximum 3-5 days without charging any additional fee. The relevant portion of the circular reads as under:-
As it has been decided to render all miscellaneous services on the same day or maximum within 3-5 days, Ministry has decided not to charge any additional fee for rendering miscellaneous services under the tatkal scheme and has therefore deleted sl. no. 23 of the Schedule IV of the Passport Rules, 1980, originally numbered as 35 in Gazette Notification dated 22.05.2000, which had been renumbered as 23 in Gazette Notification dated 28.03.02 at the time of revision of Passport fee last year.
2. It is therefore reiterated that all miscellaneous services should be provided on the same day or maximum within 3-5 days, without charging any additional fee under the tatkal scheme.
3. A revised Gazette Notification dated 23.05.2003 issued by the Ministry to this effect is enclosed.
(iv) Vide circular dated April 29, 2004 (Ex. PW2/DD) all PIAs were authorised to issue additional passport booklets irrespective of the fact whether they had issued original passport or not subject to the clearance of Index/PAC/ check within 3-5 days preferably on same CBI No. 51/2016 (old No. 10/12) Page 76 of 156 State through CBI v. Bibianus Toppo & Ors.
day without charging additional fee. The relevant portion is reproduced as under:-
"In order to avoid any recurrence of such instances in future, which causes undue harassment to the applicants, it has, therefore, been decided to reiterate Ministry's instructions on issue of additional booklet that any PIA in India or abroad shall issue additional booklet to the applicants, irrespective of place of original issue of passport and their residential address, subject to index/PAC check within 3-5 days, preferably same day, without charging any additional fee as specified earlier under the Tatkal scheme, since the same has been discontinued vide Ministry's circular of even number dated 25.5.2003. In case of any doubt, the help of PISON may be taken to ascertain the details of original passport issued by other PIA.
It has been noticed that in the past, whenever revised instructions/circulars were issued by the Ministry, the same were not implemented, either fully or in part, by PIAs and staff of the Passport Offices as the revised instructions/circulars were not brought to their notice or as they were not appropriately briefed to by the Passport Officers concerned. Accordingly, all Passport Officers should ensure that the revised instructions and circulars are circulated amongst the all PIAs and staff and necessary briefing are conducted so that the passport services are rendered to the applicants according to the rules to avoid unnecessary harassment to the applicants.
It is also requested that signatures of all PIAs and staff may be obtained when the instructions/circulars are circulated to them. A copy of the instructions/circulars with the signatures of the PIAs and staff may be forward to Ministry along with the acknowledgement.CBI No. 51/2016 (old No. 10/12) Page 77 of 156
State through CBI v. Bibianus Toppo & Ors.
(v) Vide circular dated July 11, 2002 (Ex. PW2/DB), procedure for valid visa booklet was issued and relevant portion reads as under:-
Procedure for Valid visa Booklet Cases "The passport containing valid visas are accepted at a separate counter No.6 only. The counter clerk at the time of submission of form by the applicant for an additional booklet, checks old passport, scrutinizes the application form and returns the passport to the applicant after retaining the photocopy of the old passport. Thereafter, a computerized receipt in lieu of the fee charges is issued to the applicant. The files are then sent to the Index Section for Index checking who in turn puts their remarks on the files regarding old references. After that file moves for 'Hit' checking; there also, they check the old particulars and except photographs whether the applicant has obtained more than one passport, etc. if the file numbers are in sequence then it is presumed that the hit is clear. The file number of old references are noted in the existing file so as to ensure that no other passport is issued to the applicant. Thereafter, the file moves to the Dealing Assistant for putting up to the PIA for grant order. The PIA, in turn, checks the hit list and index report including any other remarks passed on the file by the Dealing Hand, Indexer and Hit List clerks. No police verification (whether prior or post) would henceforth be required even if there is a charge in address.
Once all these reports are clear, the PIA passes the order on file for issue of an Additional Booklet."CBI No. 51/2016 (old No. 10/12) Page 78 of 156
State through CBI v. Bibianus Toppo & Ors.
(vi) From the combined reading of all the circulars, it becomes abundantly clear that the procedure for issuance of additional passport booklet was liberalised from 1997 to 2004. The stress of Ministry of External Affairs was to minimize the hardship of public at the time of getting additional passport booklet and miscellaneous services. However, simultaneously ample precaution was also taken to ensure that the said procedure be not misused by any unscrupulous person by directing that the additional passport booklets shall be issued subject to clearance of Index/PAC/HIT and in case of any doubt, officials of Passport office shall take the help of PISON to ascertain the details of original passport issued by other PIA. Simultaneously at the time of dealing with the request for additional passport booklet, officials were also required to take the photocopy of previous passport also.
(vii) Further, from the circulars dated June 24, 1997 (Ex.PW2/DH) and November 25, 1997 (Ex.PW2/DG), it also becomes crystal clear that at the time of obtaining the additional passport booklet, officials of RPO are also required to affix a stamp of 'cancellation and returned' on the original/previous additional passport booklet, if any. Simultaneously, they are also required to affix a stamp on the new additional passport booklet as described in circular dated November 25, 1997 (Ex.PW2/DG).
49. Now coming to Rule 2 (iii) of the Passports Rules, 1980 wherein the circumstances under which additional passport can be issued is described. Rule reads as under:-
CBI No. 51/2016 (old No. 10/12) Page 79 of 156State through CBI v. Bibianus Toppo & Ors.
Issuing a fresh passport booklet when the pages in the booklet held are almost exhausted;
(i) Proviso to Rule 5 empowers the Passport Issuing Authority to compel the applicant to furnish additional information, documents or certificate which may be considered necessary by such authority for the disposal of the application. The proviso reads as under:-
Provided further that in the course of any inquiry under sub-section (2) of section 5, a passport authority may require an applicant to furnish such additional information, documents or certificates, as may be considered necessary by such authority for the proper disposal of the application.
(emphasis supplied)
(ii) Bare perusal of above provisions makes it clear that additional passport booklet can be issued when the pages of previous passport booklet are going to be exhausted and passport issuing authority has ample power to ask for further additional information/documents/certificate as may be considered necessary for issuance of such additional passport booklet.
Contentions relating to conspiracy:-
50. Learned counsel appearing for A1 to A3 vehemently contended that there is no iota of admissible evidence on record to prove that the above said accused persons had acted in furtherance of any criminal conspiracy. It was argued that though prosecution has CBI No. 51/2016 (old No. 10/12) Page 80 of 156 State through CBI v. Bibianus Toppo & Ors.
examined as many as 46 witnesses, yet none of them had uttered even a single word about the alleged conspiracy. It was further argued that mere fact that the accused persons had dealt with the files in question while discharging their official duties is not sufficient to prove that they were members of any conspiracy. It was further contended that even no sanction under Section 197 Cr.P.C had been obtained qua penal offences, thus A1 to A3 being the public servants cannot be convicted for penal offences with the aid of Section 120B IPC.
(i) Per contra, learned Public Prosecutor appearing for CBI contended that though there is no direct evidence on record to prove the conspiracy among the accused persons, but the circumstances establish that the above said accused persons were in conspiracy with other accused persons and due to that reason they had not taken due care and precaution while dealing with the files in question. It was further contended that no separate sanction under Section 197 Cr.P.C is required to convict them under penal offences.
(ii) In this regard paras no. 49 to 52 of State of Madhya Pradesh v. Sheetla Sahai (2009) 8 SCC 617 are relevant, accordingly same are reproduced as under:-
49. Criminal conspiracy has been defined in Section 120A of the Indian Penal Code, 1860 to mean:
When two or more persons agree to do, or cause to be done,--
(1) an illegal act, or (2) an act which is not illegal by illegal means, such an agreement is designated a criminal CBI No. 51/2016 (old No. 10/12) Page 81 of 156 State through CBI v. Bibianus Toppo & Ors.
conspiracy:
Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to agreement in pursuance thereof.
Explanation.- It is immaterial whether the illegal act is the ultimate object of such agreement, or is merely incidental to that object.
Section 120 B of the Indian Penal Code provides for punishment for criminal conspiracy.
50. Criminal conspiracy is an independent offence. It is punishable separately. Prosecution, therefore, for the purpose of bringing the charge of criminal conspiracy read with the aforementioned provisions of the Prevention of Corruption Act was required to establish the offence by applying the same legal principles which are otherwise applicable for the purpose of bringing a criminal misconduct on the part of an accused.
51. A criminal conspiracy must be put to action in as much as so long a crime is generated in the mind of an accused, it does not become punishable. What is necessary is not thoughts, which may even be criminal in character, often involuntary, but offence would be said to have been committed thereunder only when that take concrete shape of an agreement to do or cause to be done an illegal act or an act which although not illegal by illegal means and then if nothing further is done the agreement would give rise to a criminal conspiracy.
Its ingredients are:-
(I) an agreement between two or more persons;CBI No. 51/2016 (old No. 10/12) Page 82 of 156
State through CBI v. Bibianus Toppo & Ors.
(ii) an agreement must relate to doing or causing to be done either (a) an illegal act;
(b) an act which is not illegal in itself but is done by illegal means:
What is, therefore, necessary is to show meeting of minds of two or more persons for doing or causing to be done an illegal act or an act by illegal means.
52. While saying so, we are not oblivious of the fact that often conspiracy is hatched in secrecy and by providing the said offence substantial direct evidence may not be possible to be obtained. An offence of criminal conspiracy can also be proved by circumstantial evidence.
In Kehar Singh and Ors. v/s. State (Delhi Administration) MANU/SC/0241/1988; 1988 (3) SCC 609 at 731. this Court has quoted the following passage from Russell on Crimes (12th Edn. Vol.1);
The gist of the offence of conspiracy then lies, not in doing the act, or effecting the purpose for which the conspiracy is formed, nor in attempting to do them, nor in inciting others to do them, but in the forming of the scheme or agreement between the parties.
Agreement is essential. Mere knowledge, or even discussion, of the plan is not, per se enough.
In State (NCT) of Delhi vs. Navjot Sandhu @ Afsan Guru MANU/SC/0465/2005; (2005) 11 SCC 600, this Court stated the law, thus:
101. One more principle which deserves notice is that the cumulative effect of the proved circumstances should be taken into account in determining the guilt of the accused rather than adopting an isolated approach to each of the circumstances. Of CBI No. 51/2016 (old No. 10/12) Page 83 of 156 State through CBI v. Bibianus Toppo & Ors.
course, each one of the circumstances should be proved beyond reasonable doubt.
Lastly, in regard to the appreciation of evidence relating to the conspiracy, the Court must take care to see that the acts or conduct of the parties must be conscious and clear enough to infer their concurrence as to the common design and its execution.
We may also notice that in Ram Narayan Popli vs. CBI MANU/SC/0017/2003: (2003) 3 SCC 641, it was held:-
...Law making conspiracy a crime is designed to curb immoderate power to do mischief which is gained by a combination of the means. The encouragement and support which co-conspirators give to one another rendering enterprises possible which, if left to individual effort, would have been impossible, furnish the ground for visiting conspirators and abettors with condign punishment.....
In Yogesh @ Sachin Jagdish Joshi vs. State of Maharashtra MANU/SC/7528/2008: (2008) 6 SCALE 469, this Court opined:
23. Thus, it is manifest that the meeting of minds of two or more persons for doing an illegal act or an act by illegal means is sine qua non of the criminal conspiracy but it may not be possible to prove the agreement between them by direct proof.
Nevertheless, existence of the conspiracy and its objective can be inferred from the surrounding circumstances and the conduct of the accused. But the incriminating circumstances must form a chain of events from which a conclusion about the guilt of the accused could be drawn, It is well settled that an offence of conspiracy is a substantive offence and CBI No. 51/2016 (old No. 10/12) Page 84 of 156 State through CBI v. Bibianus Toppo & Ors.
renders the mere agreement to commit an offence punishable even if an offence does not take place pursuant to the illegal agreement.
Ex. Facie, there is no material to show that a conspiracy had been hatched by the respondents."
(emphasis supplied)
(i) From the above, it becomes crystal clear that the conspiracy can also be proved by the surrounding circumstances and conduct of the accused persons but the incriminating circumstances must form a chain of events from which conclusion about the guilt of accused persons can be drawn.
51. Now coming to the facts of the case at hand.
(i) Though in order to prove the guilt of accused persons, prosecution has examined as many as 46 witnesses, yet none of them has deposed even a single word about the alleged conspiracy among A1 to A3 on the one hand and the other accused persons on the other hand. No doubt, it is difficult to find out a direct evidence to prove the conspiracy as generally conspiracy is hatched in secrecy and it is settled law that conspiracy can also be proved by circumstantial evidence. But the onus is upon the prosecution to prove such circumstances in accordance with law. But in the instant case, CBI has even failed to produce any such circumstantial evidence to prove that there was any conspiracy between A1 to A3 on the one hand and other accused persons on the other hand. Mere fact that A1 to A3 were working in the same office and they had dealt with the files in CBI No. 51/2016 (old No. 10/12) Page 85 of 156 State through CBI v. Bibianus Toppo & Ors.
question, in the absence of any other evidence, is not sufficient to draw a conclusion that they had hatched any conspiracy either among themselves or with the applicants or with the remaining accused persons. Being the officials posted at RPO, they were otherwise duty bound to deal with the files in question. Mere fact that there are some lapses on their part while dealing with the files itself is not sufficient to establish that they were in conspiracy either among themselves or with the applicants or with the remaining accused persons.
(ii) It is admitted case of CBI that first application was moved for obtaining the additional passport booklet on February 04, 2004 whereas the last application was moved on June 09, 2004. Thus, in order to prove conspiracy, CBI is duty bound to establish that there was a meeting of mind among the accused persons prior to February 04, 2004. But during trial, CBI failed to produce any such evidence. Even there is nothing on record, which may show that the RPO officials i.e. A1 to A3 used to meet with other accused persons or they had any interaction or intimacy with them.
52. During the cross-examination of PW46 Mr. Somraj Thakur, when a question was put to him whether he found any evidence of conspiracy against the accused persons, he deposed that he did not find any direct evidence of conspiracy and clarified that he drew the inference of conspiracy on the basis of role played by the accused persons particularly by A1 to A5. When a question was put to him whether the public servant namely A1 to A3 had obtained any pecuniary gain, he deposed that he did not find any such evidence. When a question was put to him about the modus-operandi of CBI No. 51/2016 (old No. 10/12) Page 86 of 156 State through CBI v. Bibianus Toppo & Ors.
accused persons, he deposed that A4 used to produce the documents before Harbhajan Yadav being the counter clerk, thereafter Harbhajan Yadav used to place the documents before Bibianus Toppo (A1). He further deposed that thereafter, file automatically used to go to Ram Chander (A3) for HIT clearance and he used to give the HIT clearance without checking the record. When a question was put to him whether he found any evidence of any illegal gratification in the above said modus-operandi, he deposed that he did not find any such evidence. Similarly, when a question was put to him what was the modus- operandi of A4 in getting clients who needed passport on the basis of fake identity, he deposed that he could not ascertain the said modus- operandi because the persons who availed the service of A4 could not be traced out. When a question was put to him whether he asked from A4 how much he used to charge from the persons for providing passport on the basis of forged documents, he deposed that he must have asked from A4 but the same is not the part of the record.
(i) From the above deposition of PW46, it can safely be culled out that he did not find any direct evidence about the conspiracy. He had drawn the inference on the basis of role played by them. It is pertinent to state here that A2 was posted as counter clerk and being the counter-clerk, it was his duty to receive the application and to deal with it. Similarly, A1 was posted in the RPO as PIA and being the PIA, it was his duty to take a decision on the application in one way or the other way. Similarly, A3 was posted in HIT section and it was his duty to deal with the files. There is nothing on record which may suggests that there was any meeting of mind either between A4 and A2 or there was any meeting of mind between A1 and A3 on the CBI No. 51/2016 (old No. 10/12) Page 87 of 156 State through CBI v. Bibianus Toppo & Ors.
one hand and A2 on the other hand. Similarly, there is no evidence that there was any meeting of mind between A1 and A3 on the one hand and A4 on the other hand. Mere fact that A1 to A3 had dealt with the files in question is ipso-facto, in the absence of any other cogent evidence, is not sufficient to draw a conclusion that there was any conspiracy among the said persons or that A1 to A3 had acted in pursuance of the any conspiracy.
(ii) From the deposition of PW46, it also becomes clear that A1 to A3 had not obtained any pecuniary gain for their alleged acts. Had they been in conspiracy with A4 or with any other accused person, it is highly improbable that they would assist A4 in getting additional passport booklet in assumed names without taking any illegal consideration or valuable thing. Even PW46 did not depose that A4 was in conspiracy with A2 when he used to approach him at the counter. Further, there is no evidence qua this fact. It is also not clear who told him about the same. Admittedly, PW46 had not even placed the statement of accused persons, which he allegedly recorded during investigation. Admittedly, PW46 had not recorded the disclosure statement of any of the accused persons. In the absence of any cogent evidence, there is no substance in the deposition of PW46 that A4 used to produce the documents before the counter clerk i.e A2 pursuant to any conspiracy.
(iii) It is admitted case of CBI that at the time of obtaining additional passport booklets in the assumed name of Harbans Lal Suri, applicants had filed the photostate copy of passport bearing No. B-1792351, but on all the occasions photograph of passport holder CBI No. 51/2016 (old No. 10/12) Page 88 of 156 State through CBI v. Bibianus Toppo & Ors.
pasted on the photostate copy was of a different person. Similarly, at the time of obtaining additional passport in the assumed name of Neha Suri and Dashrath Suri, though the copy of their previous passports was enclosed but with the photograph of different person. But surprisingly, no investigation was done by the CBI to find out how the applicants used to affix their photograph on the passport after removing the photo of original passport holder. Similarly, no attempt was made to recover any mechanism by which the accused used to affix the photograph of the applicant on the original passport. Investigating officer failed to ascertain the modus-operandi of the accused persons. To unearth the conspiracy among the accused persons, it was the prime duty of investigating officer to ascertain how the accused persons used to affix the photograph of applicants on the original passport and copy thereof. Had there been any such evidence on record, it would help the prosecution to prove conspiracy among the accused persons. But unfortunately, there is no such evidence.
(iv) As already stated to prove the conspiracy, prosecution has to prove meeting of mind among the accused persons. But during trial, CBI failed to adduce any such evidence. Mere fact that A1 to A3 were posted in the same office and they dealt with the files in question while discharging their official duties is ipso-facto not sufficient to prove that they had acted in furtherance of any conspiracy. In the absence of any cogent evidence on record, I am of the considered opinion that CBI has failed to prove the charge of conspiracy, thus accused persons cannot be held liable for the acts of each other, however accused persons shall be liable for their individual acts, if their acts attract commission of any offence.
CBI No. 51/2016 (old No. 10/12) Page 89 of 156State through CBI v. Bibianus Toppo & Ors.
53. Further, it is admitted case of CBI that accused persons had abused their official position while dealing with request letters/applications for issuance of additional passport booklets. In other words, it is admitted case of CBI that there was reasonable nexus between the acts of the accused persons and their official duties. Thus, to my mind sanction under Section 197 Cr.P.C was also required for the penal offences qua public servants. In this regard, reliance is placed on:
(i) State of Madhya Pradesh Vs. Sheetla Sahai and others, (2009) 8 SCC, 617;
(ii) Prof. N. K. Ganguly vs. CBI Criminal Appeal No. 798 of 2015 decided by the Apex Court on November 19, 2015;
(iii) Amrik Singh vs. State of Pepsu, AIR 1955 SC 309.
(iv) R. Balakrishna Pillai vs. State of Kerala & another (1996) 1SCC 478
(i) In the light of foregoing discussion, I am of the considered opinion that CBI failed to prove the charge of conspiracy against the public servants i.e. A1 to A3, accordingly, I hereby acquit them from the charge of conspiracy.
Contentions relating to sanction under Section 19 of PC Act & under Section 15 of Passport Act:-
54. Learned counsel appearing for A1 to A3 vehemently CBI No. 51/2016 (old No. 10/12) Page 90 of 156 State through CBI v. Bibianus Toppo & Ors.
argued that the sanction accorded under Sections 19 of PC Act and 15 of PP Act is defective as sanctioning authority had not applied its mind before according the sanction and the authority had acted in a mechanical manner just by signing on the draft sanction placed before it. It was further argued that sanctioning authority had not considered the relevant material at the time of according the sanction.
55. Per contra, learned Public Prosecutor countered the said contentions by arguing that there is no defect in the sanction.
56. In this regard the testimony of PW11 Mr. Radha Ranjan Dash and PW43 Mr. Sharat Sabharwal are relevant.
(i) PW11 Mr. Radha Ranjan Dash in his examination-in- chief deposed that he was competent to remove the accused persons namely Harbhajan Yadav (A2) and Ram Chander (A3) whereas PW43 deposed that he was competent to remove the accused Bibianus Toppo (A1) and accordingly they accorded the sanction as sought by the CBI. They further testified that before according the sanction, they had gone through the documents/records sent by the CBI. PW11 clarified that the said documents were comprising of statements of prosecution witnesses, copies of documents and the investigating report. Both the witnesses deposed that before according the sanction, they satisfied themselves after going through the record that a case is made out as alleged by the CBI. In their cross-examination, they denied the suggestion that they had accorded the sanction without application of mind. Even PW11 clarified that he had not received any draft sanction from the CBI.
CBI No. 51/2016 (old No. 10/12) Page 91 of 156State through CBI v. Bibianus Toppo & Ors.
(ii) From the deposition of PW11 and PW43, it becomes clear that PW11 was competent to remove A2 and A3 from the service whereas PW43 was competent to remove A1 from the service. From their deposition, it is also clear that at the time of obtaining sanction, investigating agency had sent investigation report along with statement of witnesses and incriminating documents. Both the witnesses categorically deposed that before according the sanction , they had gone through the documents, which shows that they had applied their mind while accorded the sanction.
57. In case Mohd. Iqbal Ahmed Vs State of Andhra Pradesh, 1979 SCC (Crl.) 926, Apex Court held that an order of sanction or valid sanction can be proved by the Sanctioning Authority in two ways either:-
(a) By producing the original sanction which itself contains the facts constituting the offence and the grounds of satisfaction; or
(b) By adducing evidence aliuned to show that the facts were placed before the Sanctioning Authority and the satisfaction arrived at, by it.
(i) In the instant case, prosecution not only examined the persons, who were competent to remove A1 to A4 and accorded the sanction, but prosecution also produced the original sanction order.
Thus, there is no reason to disbelieve the testimony of PW11 and PW43.
(ii) During the cross-examination of PW11 and PW43, an attempt was made to cause a dent in their testimony on the grounds CBI No. 51/2016 (old No. 10/12) Page 92 of 156 State through CBI v. Bibianus Toppo & Ors.
that the investigating agency had not placed entire material before them at the time of seeking sanction or they had not applied their mind or they had accorded sanction at the behest of CBI. But all these suggestions were categorically denied by them.
(iii) It is pertinent to mention here that during the cross- examination of PW11 and PW43, no attempt was made by the defence counsel to call for the original file in order to establish their plea that no material was placed before the sanctioning authority at the time of seeking sanction against the accused persons or that sanction was granted on the basis of draft sanction produced by the CBI or without application of mind.
(iv) Apex Court in the case title State of Maharashtra Vs Mahesh G. Jain, criminal appeal No. 2345 of 2009 decided on May 28, 2013 summed up the Principles and guidelines which are required to be followed to decide the question which inundates the trial Court, challenging the sanction order. Hon'ble Apex Court after appreciating earlier precedents on the subject had culled out the guiding Principles in Para 13 of the judgements, which are reproduced as under:
(a) It is incumbent on the prosecution to prove that valid sanction has been granted by Sanctioning Authority after being satisfied that a case for sanction has been made out.
(b) The Sanction Order may expressly show that the sanctioning authority has perused the material placed before him and after consideration of the circumstances, has granted sanction for prosecution.
(c) The prosecution may prove by adducing CBI No. 51/2016 (old No. 10/12) Page 93 of 156 State through CBI v. Bibianus Toppo & Ors.
the evidence that the material was placed before the Sanctioning Authority and his satisfaction was arrived at, upon perusal of the material placed before him.
(d) Grant of Sanction is only an administrative function and the sanctioning authority is required to prima-facie reach the satisfaction that relevant facts would constitute the offence.
(e) The adequacy of material placed before the Sanctioning Authority cannot be gone into, by the Court, as it does not sit in Appeal over the Sanction Order.
(f) If the sanctioning authority has perused all the material placed before him and some of them have not been proved, that would not vitiate the order of sanction.
(g) The order of sanction is a pre-requisite, as it is intended to provide a safeguard to the public servant against frivolous and vexatious litigants, but simultaneously an order of sanction should not be construed in a pedantic manner and there should not be a hyper technical approach to test its validity.
(v) In Bhagwan Jathya Bhoir Vs State of Maharashtra, 1992 Crl. L. J. 1144 (Bombay), it was held by High Court of Bombay that procedure adopted by the investigating agency in forwarding a draft sanction order to the sanctioning authority after summarising all evidence and requesting him to examine the record and to accord sanction if satisfied, is not improper. Same view was taken by High Court of Madras in K. Nachimuthu Vs State 1994 Crl. L. J. 2760.
(vi) In view of the ongoing discussion, I do not find any merit in the contentions raised by counsel for the accused persons CBI No. 51/2016 (old No. 10/12) Page 94 of 156 State through CBI v. Bibianus Toppo & Ors.
that the sanction accorded under Section 19 of PC Act and 15 of PP Act are defective.
Contentions on behalf of accused Ram Chander (A3):-
58. Learned counsel appearing for A3 vehemently contended that since there is a delay of 10 months in registration of FIR, a reasonable doubt arises over the prosecution case as the said delay remained unexplained during trial.
(i) It was further argued that in terms of Section 224 Cr.P.C charges should have been dropped by the prosecution against the accused as accused had already been convicted in similar matters.
(ii) It was further argued that there is no cogent evidence on record to establish that the facility of checking photographs and signatures of the passport holder was available in the computer provided to A3. It was argued that there is no cogent evidence except the process sheets to establish that A3 had given HIT clearance in three files in question.
(iii) It was further argued that there is every possibility that the P number and Password of A3 had been misused by some unscrupulous person. It was argued that in the absence of any cogent evidence, A3 cannot be held guilty for giving HIT clearance in the files.
(iv) It was further argued that there is no iota of evidence on record to establish that A3 had taken any valuable thing or CBI No. 51/2016 (old No. 10/12) Page 95 of 156 State through CBI v. Bibianus Toppo & Ors.
pecuniary advantage from the applicant or any other person at the time of giving alleged HIT clearance.
(v) In support of his contention, counsel placed reliance on the judgment K.M. Sujith v. State of Kerala, CRL A. No. 1707 of 2005 decided by High Court of Kerala on October 21, 2009.
59. Per contra, learned Sr. Public Prosecutor appearing for the CBI refuted the said contentions by arguing sagaciously that there is no delay in registration of FIR, hence the same is not fatal to the prosecution case in any manner. It was further argued that provisions of Section 224 Cr.P.C are not applicable in the facts and circumstances of the present case.
(i) It was further argued that there are overwhelming evidence on record to establish beyond reasonable doubts that A3 was not only posted in HIT Section at the relevant time but he also dealt with the files in question and he had given HIT clearance without pointing out the dissimilarity in the photograph and signature of the applicants as well as without pointing out that additional passport booklets had been issued in the name of applicant i.e. Harbans Lal Suri earlier. It was further argued that during trial, A3 failed to adduce any evidence to prove the fact that his P number and password were misused by anyone.
Findings qua accused Ram Chander (A3):-
60. It is undisputed fact that the FIR was registered on CBI No. 51/2016 (old No. 10/12) Page 96 of 156 State through CBI v. Bibianus Toppo & Ors.
April 28, 2005 and same is Ex. PW45/A.
(i) Perusal of the FIR reveals that the same was registered on receipt of the complaint Ex. PW42/A from Mr. R. K. Aggarwal, the then DSP. There is nothing on record which may show that any complaint was received prior to April 28, 2005. Mere fact that the complaint was related to the offences committed in past is not sufficient to hold that there was any delay in registration of FIR. Thus, I do not find any substance in the contention of learned defence counsel that there was inordinate delay in registration of FIR and same is fatal to the prosecution case.
61. Now coming to the Section 224 Cr.P.C, which reads as under:-
224. Withdrawal of remaining charges on conviction on one of several charges. When a charge containing more heads than one is framed against the same person, and when a conviction has been had on one or more of them, the complainant, or the officer conducting the prosecution, may, with the consent of the Court, withdraw the remaining charge or charges, or the Court of its own accord may stay the inquiry into, or trial of, such charge or charges and such withdrawal shall have the effect of an acquittal on such charge or charges, unless the conviction be set aside, in which case the said Court (subject to the order of the Court setting aside the conviction) may proceed with the inquiry into, or trial of, the charge or charges so withdrawn.
(i) Bare perusal of Section 224 Cr.P.C makes it clear that the said provision is applicable where accused is facing trial for more CBI No. 51/2016 (old No. 10/12) Page 97 of 156 State through CBI v. Bibianus Toppo & Ors.
than one charges and accused had been held guilty for one or more charges. In such circumstances, the complainant or the prosecution as the case may be with the consent of the Court may withdraw the remaining charges. Since in the present case, accused has not been held guilty, the question of withdrawal of the charges does not arise. Moreover, as per Section 224 Cr.P.C, it is prerogative of complainant or the prosecution to withdraw the charges and accused can not claim as a matter of right to drop the charges. Thus, to my mind, in the facts and circumstances of the case, Section 224 Cr.P.C is not applicable.
62. A3 in his statement recorded under Section 313 Cr.P.C took the plea that though he was working in HIT Section but submitted that his seat in HIT section was in open space where entry of public as well as employees of RPO was free and his P number was known to the NIC staff. A3 took the plea that since public/staff used to be present in the said hall, there is every possibility that unscrupulous person might have noted down his password at the time of opening of the computer and later on that unscrupulous person might have misused the same by giving HIT clearance in the files in question.
(i) From the above, it becomes abundantly clear that accused had taken the plea that in the present case HIT clearance might have been given by some unknown unscrupulous person by misusing his password and P number.
(ii) In order to establish that A3 had given HIT clearance in all the files, prosecution has placed reliance on the process sheets Ex. PW2/E, PW2/F, PW2/G, PW2/H, PW2/L and PW2/N. CBI No. 51/2016 (old No. 10/12) Page 98 of 156 State through CBI v. Bibianus Toppo & Ors.
(iii) As per Ex. PW2/E and Ex. PW2/L, HIT clearance was given by A3 on February 5, 2004 and February 6, 2004 in respect of additional passport booklet bearing no. E-7710049 and E-7710129 issued in the name of Harbans Lal Suri and Neha Suri respectively.
(iv) As per Ex. PW2/F, A3 had given the HIT clearance on March 11, 2004 in respect of the additional passport booklet bearing No. E-7988967 issued in the name of Harbans Lal Suri. Similarly, as per Ex. PW2/N, A3 had given the HIT clearance on April 8, 2004 in respect of the additional passport booklet bearing No. E-8583770 issued in the name of Dashrath Suri.
(v) As per Ex. PW2/G, A3 had given the HIT clearance on May 27, 2004 in respect of additional passport booklet bearing No. E- 8580773 and similarly as per Ex. PW2/H, A3 had given the HIT clearance on June 11, 2004 in respect of additional passport booklet bearing No. E8914602, both issued in the name of Harbans Lal Suri.
(vi) Thus, from the above documents it becomes crystal clear that A3 had given the HIT clearance in respect of all six additional passport booklets which were issued in the name of Harbans Lal Suri, Neha Suri and Dashrath Suri.
(vii) PW3 in his examination-in-chief deposed that the system of HIT clearance was introduced initially in the year 2000 and till July, 2002 there was no facility of checking photographs and signatures in the computers installed in HIT Section. However, the CBI No. 51/2016 (old No. 10/12) Page 99 of 156 State through CBI v. Bibianus Toppo & Ors.
said facility was available in one computer of HIT section since August 2002. He further testified that since April, 2004 the above said facility was provided in all the computers installed in HIT Section. In his cross-examination, he deposed that he did not know in whose PC, the facility of checking of photograph and signature was initially provided in the HIT Section in August 2002. He further deposed that in HIT Section there was a facility to check old passport booklet numbers of the applicant and same was required to be verified by HIT Section. Thus from the testimony of PW3, it becomes crystal clear that facility of checking photograph and signature of the applicant was available in one PC of the HIT Section since August 2002, and the said facility was extended in all the computers of HIT Section since April 2004. It also becomes clear that the officials of the HIT Section were able to compare and verify the detail of the applicant with the old references. It means that if any additional booklet had been issued in the name of applicant, the official posted in HIT Section would come to know about the same and its number, accordingly, he would be in a position to state whether any booklet had been issued in the name of applicant or not. Though PW3 deposed that facility of checking photographs and signatures was available in one PC of the HIT Section. But there is no evidence on record to prove that any such computer was given to A3 or not. It means that prosecution has failed to establish that prior to April 2004, A3 was not in a position to compare the photograph and signature of the applicant with photograph and signature of the original passport holder. But he was in a position to see whether any additional passport booklet had been issued in the name of applicant or not.
CBI No. 51/2016 (old No. 10/12) Page 100 of 156State through CBI v. Bibianus Toppo & Ors.
63. As already discussed that in three files the HIT clearance was given prior to April 2004 i.e. on February 5, 2004 (Ex. PW2/E), March 11, 2004 (Ex.PW2/F) and February 6, 2004 (Ex. PW2/L). In other words, at the time of giving HIT clearance in the said files, A3 was not in a position to compare the photographs and signatures of the applicants with the photograph and signature of original passport holders.
64. In respect of Harbans Lal Suri, A3 had given the HIT clearance first time on February 5, 2004 in respect of additional passport booklet bearing No. E-7710049 (Ex. PW2/E). Since, the personal particulars of the applicant were similar to the personal particulars of the original passport holder and there was no facility in his computer to compare the photograph and signature of the applicant, it can not be said that there was any lapse on the part of A3 while giving HIT clearance in the said file.
(i) However, A3 had also given the HIT clearance in respect of three other additional passport booklets (E-7988967, E- 8580773 and E-8914602) on March 11, 2004, May 27, 2004 and June 11, 2004 respectively, which were issued in the name of Harbans Lal Suri. It means that at that time, A3 was in a position to check that one additional passport booklet bearing No. E-7710049 had already been issued in the name of applicant. Since, in the said files, applicant had not mentioned that he applied for second additional passport booklet; rather, applicant had mentioned that he was applying first time for the additional passport booklet. In these circumstances, it was the duty of A3 to record objection that one additional passport booklet bearing CBI No. 51/2016 (old No. 10/12) Page 101 of 156 State through CBI v. Bibianus Toppo & Ors.
No. E-7710049 had already been issued in the name of applicant at the time of giving the HIT clearance in the second file on March 11, 2004. Similarly, he was also required to record objection at the time of giving HIT clearance in third and fourth file by highlighting that the additional passport booklets had been issued previously in the name of applicant. But he failed to do so.
(ii) From the testimony of PW3, it has been established that since April 2004, the facility of checking photograph and signature was available in all the computers of HIT section. It means that he was in a position to even compare the photograph and signature of the applicant at the time of giving HIT clearance on May 27, 2004 and June 11, 2004. Indisputably, the photograph of the applicant in the aforesaid files was not of the original passport holder but of different persons. Despite that A3 failed to highlight the same.
65. In respect of Neha Suri, A3 had given the HIT clearance on February 6, 2004 when no facility of comparing the photograph and signature was available in his computer. Since the other particulars of the applicant were similar to that of Neha Suri and applicant stated that it was her first additional passport booklet, there was no occasion for A3 to raise any suspicion when he had given the HIT clearance in favour of Ms. Neha Suri.
(i) Though in respect of Dashrath Suri, HIT clearance was given on April 8, 2004, but there is no evidence on record that the facility of comparing photograph and signature of the applicant was available in all the computer of HIT Section on April 8, 2004 or not. No CBI No. 51/2016 (old No. 10/12) Page 102 of 156 State through CBI v. Bibianus Toppo & Ors.
doubt, A3 deposed that the said facility was provided in all computers of HIT Section in April 2004 but he did not disclose the exact date of April. In these circumstances, A3 deserves benefit of doubt as prosecution failed to establish beyond doubt that the said facility was available in all the computers of HIT Section on April 8, 2004. Since, other particulars of the applicant were similar to that of Dashrath, there was no occasion for A3 to raise suspicion.
66. From the above discussion, it becomes clear that A3 was in a position to raise objection in respect of three additional passport booklets issued in the name of Harbans Lal Suri. But despite that A3 did not raise any objection.
67. Now coming to the contention regarding mis-use of password.
(i) It is undisputed fact that HIT clearance was used to be given through computers by the officials posted in HIT Section. It is also undisputed fact that the officials posted in RPO could access the file by using their allotted P number and password. Password always remains in the personal knowledge of an individual employee. Needless to say that it is the duty of an employee not to share his password with anyone. Moreover, in the instant case A3 had not taken any plea that he had shared his password with anyone. If he had shared his password with anyone or same was misused by anyone, onus is shifted upon him under Section 106 of Evidence Act to explain under which circumstances, he had shared his password or under which circumstances his password was misused. But he failed to CBI No. 51/2016 (old No. 10/12) Page 103 of 156 State through CBI v. Bibianus Toppo & Ors.
discharge the said burden. Similarly, he also failed to adduce any evidence to prove the identity of the person who allegedly noted down his 'P' number and password at the time of opening the computer. Further, if he had doubt that the person standing nearly him had noted down his password, he should have changed his password. But A3 even failed to disclose when he came to know that some one might have noted down his password. In the absence of any cogent evidence on record, I do not find any substance in the plea that someone had misused his password.
(ii) Being the official of RPO posted at HIT Section, it was his duty to point out the above discrepancies in the application but he failed to highlight the same. During trial, he failed to give any explanation whatsoever for the above said lapses on his part. In the absence of any cogent evidence on record, it can safely be culled out that he had deliberately not highlighted the above said discrepancies in the applications.
(iii) Since, A3 was posted in HIT Section, he must knew very well that the passport would be issued on the basis of his report. But despite that he failed to raise any objection and failed to highlight the discrepancies as stated above, which was not in the public interest. Admittedly while giving HIT clearance he was acting as public servant and he was holding public office and by his acts, he assisted the applicants to get passport in favour of fictitious persons, which was not in public interest. Accordingly, I am of the view that A3 has committed an offence under Section 13(1) (d) (iii) of PC Act.
CBI No. 51/2016 (old No. 10/12) Page 104 of 156State through CBI v. Bibianus Toppo & Ors.
Common contentions qua Harbhajan Yadav (A2) and Bibianus Toppo (A1) :-
68. Learned counsel appearing for A2 fairly conceded that at the relevant time, A2 was posted as counter clerk but contended that he made recommendations in the files in question for issuance of additional passport booklet in good faith while discharging his official duties. It was further argued that whenever the applicants moved the application for issuance of additional passport, applicants used to place the copy of previous passport and they also produced the original passport for inspection. It was urged that same was checked by A2 and on checking, he found that the photograph affixed on the application form was of the same person in whose favour the original passport was issued as his photograph was also found affixed on the said passport, thus it cannot be said that A2 had committed any offence when he made a recommendation to issue additional passport booklet in favour of the applicants from time to time. It was further contended that no instrument was provided to the counter clerk to check the genuineness of the documents and photocopy thereof produced by the applicants. It was further contended that as per practice and rules, A2 had affixed all requisite stamps at the relevant spaces provided in the forms, thus it cannot be said that he had committed any offence.
69. Similarly, counsel appearing for accused Bibianus Toppo (A1) contended that he had dealt with the files in good faith on the recommendation made by his subordinate i.e. A2. It was argued that since A2 had checked the files thoroughly before putting the same before A1, there was no occasion for A1 to raise any suspicion over CBI No. 51/2016 (old No. 10/12) Page 105 of 156 State through CBI v. Bibianus Toppo & Ors.
the acts of A2. It was argued that since A2 had made the recommendation in all the files for issuance of additional passport booklets and also affixed requisite stamps at the relevant spaces provided in the form, there was no occasion for A1 to raise any suspicion. It was argued that A1 had acted in good faith.
(i) It was further contended that even no instrument was provided to A1 to check the genuineness of the original documents and copies thereof of, which were produced by the applicants at the time of seeking additional passport booklets. It was further contended that since the documents had already been checked by A2, there was no reason for A1 to raise any suspicion over the acts of his subordinate.
(ii) It was further contended that infact applicants had cheated A1 and A2 by seeking additional passport booklets repeatedly on the basis of copy of the same passport.
(iii) It was further contended that though there may be some lapses on the part of counter clerk and PIA as they failed to detect the fraud played by the applicants, but said lapses on their part are not sufficient to prove the criminality as there is no evidence of any dishonest intention against them.
70. Per contra, learned Senior Public Prosecutor appearing for CBI refuted the said contentions by arguing that A2 had made the recommendation for issuance of additional passport booklet in all the files without going through the original passports as he was CBI No. 51/2016 (old No. 10/12) Page 106 of 156 State through CBI v. Bibianus Toppo & Ors.
in conspiracy with the applicants. It was further submitted that the same passport was used for obtaining four additional passports booklets in the name of Harbans Lal Suri, which was not permissible. It was submitted that the original passport could be used only once at the time of obtaining first additional passport booklet, thereafter, applicant was supposed to produce additional passport booklet at the time of obtaining second additional passport booklet and similarly he was supposed to produce second additional passport at the time of obtaining third additional passport booklet and so on. But in the instant case, A2 made the recommendation on the basis of same passport. Similarly, A1 cleared the files without checking it. This shows that they had acted so being the members of conspiracy.
(i) It was further contended that the plea of good faith is not available to either of the accused persons as they acted dishonestly. It was further contended that even no instrument was required to detect the fraud played by the applicants. But they deliberately did not raise any objection as they were members of the conspiracy.
Findings qua accused Harbhajan Yadav (A2) and Bibianus Toppo (A1):-
71. It is undisputed fact that A2 was posted as counter clerk whereas A1 was posted as Passport Issuing Authority being Superintendent at the relevant time. It is also undisputed fact that all the six files relating to additional passport booklets were dealt with by A2 being the counter clerk. It is also undisputed fact that in all the files except one i.e Ex. PW3/J, A1 had passed the promise date and in all CBI No. 51/2016 (old No. 10/12) Page 107 of 156 State through CBI v. Bibianus Toppo & Ors.
the files, A1 had passed the grant order. It is also undisputed fact that in all the files except one i.e. Ex. PW3/Q, A1 had signed the passport. In file Ex. PW3/J, the promise date was given by PW34 Ms. Asia whereas in the file Ex. PW3/Q, the additional passport booklet was signed by Mr. Tej Ram, the then PIA.
(ii) Perusal of the six additional passport booklet files further reveals that at the time of seeking additional passport booklets, applicants had also submitted a request letter wherein they mentioned the reasons for seeking additional passport booklets. Perusal of the said request letters reveals that the applicants sought additional passport booklets on the ground that pages of previous passport had been full and they had to visit abroad urgently.
(iii) Now question arises what was the duty of A2 being the counter clerk and A1 being the PIA at the time of dealing with the applications of the applicants in question.
(iv) Since, the applicants sought additional passport booklets on the ground that pages of previous passport had been full and they had to visit abroad urgently, it was the duty of A2 being the counter clerk and A1 being the PIA to check whether the pages of previous passport had already been full or not.
72. Fortunately, in the present matter, the investigating agency succeeded to recover the original passport bearing No. B- 1792351 issued in the name of Harbans Lal Suri, on the basis of which, four additional passport booklets were issued in favour of CBI No. 51/2016 (old No. 10/12) Page 108 of 156 State through CBI v. Bibianus Toppo & Ors.
different persons in the assumed name and personal particulars of Harbans Lal Suri. Similarly, CBI had also succeeded to recover the original passport bearing No. E-1928694 issued in the name of Ms. Neha Suri, on the basis of which, one additional passport booklet bearing No. E-7710129 was issued. Similarly, CBI had also succeeded to recover the original passport bearing No. A-8483983 in the name of Mr. Dashrath Suri, on the basis of which, additional passport booklet bearing No. E-8583770 was issued.
73. Perusal of the original passport bearing No. B- 1792351 (Ex. PW13/D1) reveals that all the pages except five pages are blank. Similarly, perusal of original passport booklet bearing No. A- 8483983 (Ex. PW8/C) reveals that all the pages except two pages are blank. Similarly, perusal of the original passport booklet bearing No. E- 1928694 (Ex. PW12/B) reveals that all the pages of except two are blank.
74. Now question arises whether any instrument was required to see whether the pages of previous passport had been full in the original passport of the applicants. The answer is certainly in negative. Had A1 and A2 just opened the passport of the applicants, they would have come to know immediately that the substantial pages of the original passport are still blank and unused. This itself was sufficient enough for A1 and A2 to examine the matter minutely, but they preferred not to check the original passport.
75. Perusal of the original passport of Ms. Neha Suri and Mr. Dashrath Suri reveals that photographs of the applicants was CBI No. 51/2016 (old No. 10/12) Page 109 of 156 State through CBI v. Bibianus Toppo & Ors.
affixed on the original passports. On the basis of this, they took the plea that since the photograph of the applicants was affixed on the original passports, there was no occasion for them to raise any doubt and since no instrument was provided to check genuineness of the documents, they failed to detect fraud played by the applicants upon them.
(i) Indisputably, A1 and A2 have been working in the RPO, New Delhi since long, thus by experience they must have attained some expertise while dealing with the original passport. Perusal of the passport reveals that though the original passport bears the photograph of the applicants, but the signature below their photograph is in original. Similarly, the photograph of the applicants is also in original whereas scanned copy of photograph and signature appear on the passport of a person and this fact is further clear from the additional passport booklet issued in the name of said applicants. This itself was sufficient to raise a suspicion or at least to make further inquiry in the matter, but they failed to do so.
76. Further, perusal of the original passport issued in the name of Ms. Neha Suri (Ex. PW12/B) reveals that the particulars of Ms. Neha Suri are filled up in hand with blank ink whereas on the photocopy of the said passport, which was enclosed with the application at the time of seeking additional passport booklet, particulars of Ms. Neha Suri are typed. This further shows that neither A2 nor A1 had even compared the original passport with the photocopy.
CBI No. 51/2016 (old No. 10/12) Page 110 of 156State through CBI v. Bibianus Toppo & Ors.
(i) Similarly, perusal of the original passport bearing No. B-1792351 (Ex. PW13/D1) issued in the name of Harbans Lal Suri reveals that though the photograph of applicant in whose favour the additional passport booklet bearing No. E-8914602 had been issued was affixed, but it is not the scanned copy of his photograph; rather it is original one. Similarly, below his photograph, the signature is appearing in original in blue ink while it should be scanned. This itself was sufficient enough to raise a query or make detail inquiry in the matter but they failed to do so.
(ii) Perusal of the original passport of the above applicants makes it clear that at the time of seeking additional passport booklets, the applicants used to affix their photograph by removing the photograph of the original passport holder and they also put their signatures on the slip pasted below their photograph on the passport and thereafter, the said pages used to be laminated. Thereafter, the photocopy of the said passport used to be annexed along with the application for seeking additional passport booklet in the name of original passport holder with their own photograph. In this manner, the applicant used to get additional passport booklet in fictitious name.
(iii) It is undisputed fact that at the time of issuing the additional passport booklet, it is the duty of Passport Issuing Authority to cancel the original passport and if there is a valid visa in the said passport, the RPO shall affix the stamp "Extended by the issue of a fresh booklet." in terms of circular dated November 25, 1997 (Ex. 2/DG). Perusal of the original passport of Mr. Harbans Lal Suri, Mr. CBI No. 51/2016 (old No. 10/12) Page 111 of 156 State through CBI v. Bibianus Toppo & Ors.
Dashrath Suri and Ms. Neha Suri reveals that no such stamp was affixed on their passport. This further shows that the original passports were not cancelled either by A2 being the counter clerk or by A1 being the PIA at the time of issuing additional passport booklets.
77. From the foregoing discussion, the following facts emerge:-
(a) That the pages of previous passport had not been full as claimed by the applicants at the time of seeking additional passport booklets from time to time.
(b) That the original passports were not cancelled in terms of either circular dated June 24, 1997 (Ex. PW2/DH) or November 25, 1997 (Ex. PW2/DG).
(c) That original signatures were appearing on the passports, which was another clue for A1 and A2 to raise suspicion because the signature should be scanned and not in original.
(d) That the photograph of the applicants should be scanned copy in the original passport but it was not so and this was another clue to raise suspicion or make further CBI No. 51/2016 (old No. 10/12) Page 112 of 156 State through CBI v. Bibianus Toppo & Ors.
inquiry.
(e) No instrument was required to see whether the pages of previous passports had been full or not. Similarly, no scientific instrument was required to see whether the signature of the passport holder was appearing in original on the original passport or it is scanned one because the same is visible with naked eyes. Similarly, no such scientific instrument was required to find out whether the photograph of applicant is in original on the passport produced for inspection or it was a scanned copy.
(i) Thus, I do not find any substance in the plea of A1 and A2 that since no instrument was provided to them to check the genuineness of the document, they could not detect the fraud played by the applicants. Similarly, in the above facts and circumstances, plea of good faith is not available to them because A1 and A2 failed to take due care and attention at the time of dealing with the request of applicants for issuance of additional passport booklet.
Additional contentions raised on behalf of A1: -
78. Learned counsel appearing for A1 astutely contended that since A1 was over burdened, there may be possibility that the above lapses had taken place due to oversight. It was also urged that CBI No. 51/2016 (old No. 10/12) Page 113 of 156 State through CBI v. Bibianus Toppo & Ors.
since there was no wilful wrongful act on the part of A1, A1 cannot be held guilty for the above said lapses. In support of his contention, counsel placed reliance on various judgements namely Sudhdeo Jha Utpel v/s. State of Bihar, AIR 1957 Supreme Court 466; Rajiv Kumar Goyal @ Raj Kumar Goyal Vs State through CBI in Criminal Appeal No. 265 of 2008 decided on August 08, 2014 by the High Court of Delhi and S.P. Bhatnagar etc. vs. State of Maharashtra AIR 1979, SC 826.
79. Per contra, learned Sr. Public Prosecutor appearing for CBI countered the said contentions by arguing that overburdened cannot be taken as an excuse to justify the wrongful criminal act. It was further contended that the above said judgments are not applicable in the facts and circumstances of the present case.
80. As already held that neither A2 nor A1 deemed it appropriate to verify whether the pages of previous passport had been full or not. Similarly, they made no attempt to raise an objection despite the fact that the signature and photograph of the applicants on the original passport was not a scanned copy but it was in original. Further, neither the counter clerk nor PIA had made an attempt to cancel the original passport either in terms of circular dated June 24, 1996 (Ex.PW2/DH) or to put up a stamp on the original passport in terms of circular dated November 25, 1997 (Ex. PW2/DG). It is pertinent to state that during trial, no reasonable explanation has been furnished by A1 and A2 for the above said lapses. It is also pertinent to state that being the PIA, it was the duty of A1 to satisfy himself whether the pages of previous passport had been full or not. But he CBI No. 51/2016 (old No. 10/12) Page 114 of 156 State through CBI v. Bibianus Toppo & Ors.
failed to do so. The plea of A1 that he acted on the recommendation of A2 is not tenable in the facts and circumstances of the case. If the said plea be accepted, it would mean that PIA intends to say that he was not required to check the previous passport before issuing the additional passport booklet, which is not trustworthy and tenable. Similarly, being the PIA, it was the duty of A1 to see whether the counter clerk had cancelled the previous passport or not. But he failed to do so. Similarly, being PIA, it was the duty of A1 to make inquiry how the signatures and photographs of the applicants are appearing in original on the passport while it should be a scanned copy. But he failed to do so. In the facts and circumstances of the case at hand, I am of the considered opinion that there is no substance in the plea of A1 that he failed to detect the fraud as he was overburdened at the relevant time.
81. Now coming to the judgements referred to by the learned defence counsel. Before dealing with the said judgments, it is pertinent to state that a particular judgment is to be read in the context of facts involved therein. Mere fact that in a case, on the basis of peculiar facts and circumstances of that case, work load is considered as one of the relevant facts in favour of the accused is not sufficient to hold that it becomes a universal rule that as and when the accused takes the plea of work load, Court would be bound to pass order in favour of the accused.
(i) To my mind, the judgement Sudhdeo Jha Utpel v/s. State of Bihar, (supra) is not helpful to A1 as the facts of the said case were totally different from the facts of case at hand. The said CBI No. 51/2016 (old No. 10/12) Page 115 of 156 State through CBI v. Bibianus Toppo & Ors.
case relates to the offence punishable under Section 420/193/120B IPC whereas the main allegations against Bibianus Toppo (A1) is for the offence punishable under Section 13(1)(d) of PC Act. The ingredients of Section 420 IPC and 13(1)(d) of PC Act are totally different. Moreover, in the said matter there were sufficient material on record to support the claim of appellant that the company used to pay road tax to the tune of ` 40,000/- and there were several branches of the company, thus it was not feasible for the appellant being the General Manager to know whether any particular vehicle was of road worthy or road tax qua any particular vehicle had been paid or not. On the contrary, in the instant matter Bibianus Toppo (A1) was acting as Passport Issuing Authority, thus it was his responsibility to satisfy himself prior to issuing the passport/additional passport booklets whether the documents submitted by the applicants supports their claim or not.
(ii) Now coming to the judgement title Rajiv Kumar Goyal @ Raj Kumar Goyal Vs State through CBI in Criminal Appeal No. 265 of 2008 decided on August 08, 2014 by the High Court of Delhi. No doubt, in the said judgment, the workload was considered as one of the grounds at the time of acquitting the accused who was a public servant. But it was not the sole ground to acquit the accused. I have perused the said judgement carefully. To my mind, the said judgement is not helpful to the accused in any manner as the facts involved therein were totally different from the facts of the case at hand. In the said matter, the accused was acquitted on multiple grounds including that CBI failed to establish whether the documents from the files were already missing when the appellant had passed the CBI No. 51/2016 (old No. 10/12) Page 116 of 156 State through CBI v. Bibianus Toppo & Ors.
claims in favour of fictitious persons or the documents were removed later on and the same is clear from para 28 which reads as under :-
Para 28 Whether all the papers were in the file or not is the only aspect of the matter in these cases. It may be that in considering the conduct of L.K. Gupta, who had passed the claims, it would have to be shown by the Prosecution that the papers in the file were already missing when he passed the claims. If not, he would have the benefit of doubt since the failure to ensure that the files were kept in a temper proof environment would enable him to take a defence that although the papers were available in the file, they were somehow not found when the CBI was handed over those files. However, there is another aspect of the matter which involves claims being made on behalf of fictitious firms with fictitious consignors and road carriers. There, it does not matter much that some of the papers may have gone missing as long as there is enough evidence on record to show that the claims were made on behalf of fictitious firms with the transporter and consignors also being fictitious.
(emphasis supplied)
(iii) Further, it was observed by the Hon`ble Court that fraud was detected during investigation with the help of forensic evidence, thus it was quite possible that the applicant due to over burden could not realize that Vinod and Sanjay were the same person whereas in the instant case, the facts are totally different.
82. In the present case, fraud could be detected by A1 by just opening the original passport which was allegedly produced by the applicants at the time of seeking additional passport booklets and CBI No. 51/2016 (old No. 10/12) Page 117 of 156 State through CBI v. Bibianus Toppo & Ors.
by applying his mind. Thus, in my view the said judgment is also not helpful to A1 in any manner.
83. Now coming to the case S.P. Bhatnagar etc. State of Maharashtra (supra). It is pertinent to state that the facts involved in the present case were totally different from the facts of the case at hand. Moreover, in the said case work-load was not only a criteria to exonerate the accused from the charges; rather there was evidence on record that no action was taken against other accused persons who also counter signed the bills and there was evidence on record that counter signature on the bills does not means verification of the bills. It only show that there was no reason to doubt the correctness of the figures. Relevant portion is reproduced as under:-
13.Re-5:- the first thing to be borne in mind with regard to the measurement certificates on the running bills is that it is the Assistant Engineer incharge of the work who is responsible for taking measurements of the actual quantities of the work executed by the contractor for entering the same in the measurement book and for recording a certificate that the measurements given in the bill are of the actual work carried out on spot in accordance with the Department's drawings and specifications. It has also to be remembered that A1 had to look after the Corporation's projects and installations all over India and A2 had to look after and supervise a large number of the Corporation's projects under the Western Branch which included installations at Sabarmati, Ahmedabad, Okha and Kandla in Gujarat and Sewri, Wadala and Trombay in Maharashtra and parts of Madhya Pradesh. It cannot also be ignored that according to Ganpati (D.W.3) when a Senior Engineer visits the site, he determines the progress of the work by visual inspection determining visually the CBI No. 51/2016 (old No. 10/12) Page 118 of 156 State through CBI v. Bibianus Toppo & Ors.
approximate quantity of the work done. All this apart, an examination of the running bills (Exhibits 51, 53, 54, 55 and 56) shows that all of them bear the certificates as referred to and reproduced at page 11 of this judgment. It would be noted that whereas first three of these bills bear the counter-signatures of A2, Bill (Ex. 55) bears the countersignatures of K.S.Joshi; Senior Engineer and Bill (Exh.56) bears the counter- signatures of Ramrao, another Senior Engineer, who was absolved in the departmental enquiry. Now the fact that A2 countersigned the first three bills does not appear to be material in view of the following statement made by Ramrao vide Exhibit 107:-
"I had no reason to doubt Shri Vaidya's figures. Countersignatures of a bill as per our prevailing practice is not indicative of verification but only indicates that there is no reason to doubt the correctness of the figures."
(emphasis supplied)
84. On the contrary in the present case, under Passport Rules, A1 being the Passport Issuing Authority was responsible for the issuance of additional passport booklets, thus it was his duty to satisfy himself whether there is any material in support of the claim of applicants. As already discussed that in the instant case, there was no material on record to establish whether the pages of previous passport had been full. On the contrary, there is evidence that there is overwhelming evidence on record to establish that if A1 had opened the original passports that were produced at the time of seeking additional passport booklets, he would have come to know about the fraud played by the applicants, but he did not deem it appropriate even to open the original passports. Thus, to my mind, the said CBI No. 51/2016 (old No. 10/12) Page 119 of 156 State through CBI v. Bibianus Toppo & Ors.
judgment is not helpful to A1 in any manner.
85. Learned counsel appearing for A1 vigorously argued that A1 is entitled for acquittal on the ground of parity as in one file (Ex. PW3/J), the promise date was given by PW34 Ms. Asia on the basis of same material as A1 passed promise date in other five files but CBI did not charge-sheet her in the present matter; rather CBI cited her as a prosecution witness. It was further argued that though in another file Ex. PW3/Q, the passport was signed by Mr. Tej Ram being PIA as A1 had signed in other five files but again CBI did not charg- sheet him as an accused. Nor CBI cited him as a witness.
86. Learned counsel also claimed parity on the basis of acts performed by Ms. Asia, S.P. Kothari Y.K. Kaushal in other matters while dealing with similar matters being the PIAs. It was argued that in the said matters, CBI did not implead them as an accused; rather cited them as prosecution witnesses. It was argued that since the above said persons acted similarly in other similar matters, A1 should also be acquitted on the ground of parity.
87. In support of his contention learned counsel placed reliance on the judgments namely State of Madhya Pradesh v/s. Sheetla Sahai and others, (2009) 8 SCC, 617; L. Chandraiah v/s. State of Andhra Pradesh, 2004 SC 252 and Shanker Mandal vs. State 2001 Cri LJ 3795 (Jharkhand) and S.P. Bhatnagar & others vs. State of Maharashtra (supra).
88. Per contra, counsel appearing for CBI refuted the said CBI No. 51/2016 (old No. 10/12) Page 120 of 156 State through CBI v. Bibianus Toppo & Ors.
contentions on the ground that the plea of parity is not available in the present case as no discrimination had been made by the CBI with A1 qua the other accused persons. It was argued that mere fact that in other matters, CBI had not impleaded some of the PIAs is not sufficient to accept the plea of parity as the entire evidences of the said case are not before this Court. Moreover, this Court is not supposed to decide the present case on the basis of material filed by the CBI in other cases.
89. First question arises whether A1 is entitled for acquittal on the ground of parity qua Ms. Asia and Mr. Tej Ram.
90. Ms. Asia has been examined as PW34. In her cross- examination, she deposed that she had not seen the file at the time of passing the promise order in Ex. PW7/J. This establishes that PW34 had not even go through the file at the time of giving promise date. No doubt, the conduct of PW34 is not appreciable in any manner because being the PIA, it was her duty to see whether pages of previous passport had been full or not at the time of giving the promise date. Similarly, it was also her duty to see whether the previous passport had been cancelled either in terms of circular dated June 24, 1997 (Ex. PW2/DH) or the stamp had been affixed in terms of circular dated November 25, 1995 (Ex. PW2/DH). Similarly, being the PIA, it was also her duty to make inquiry how the signature of passport holder was appearing in original on the passport while it should be scanned. Similarly, it was also her duty being PIA to make inquiry how the original photograph of the applicant was appearing on the passport while it should be scanned copy. But CBI to its wisdom did not deem it CBI No. 51/2016 (old No. 10/12) Page 121 of 156 State through CBI v. Bibianus Toppo & Ors.
appropriate to take any legal action or make recommendation for disciplinary action against PW34. But to my mind, A1 is not entitled for parity mere on the ground that PW34 acted negligently while performing her duty as PIA because it shall mean that if one PIA acted negligently, then other PIAs shall also become entitle to act negligently or in violation of the settled norms. Needless to say that PIA is responsible for the issuance of passport and additional passport booklets. Since, the passport is an important document to prove the nationality and identity of a person besides authorises a person to travel beyond the territory of India, PIA is required to act diligently, cautiously at the time of dealing with the request of applicants for issuance of passport and additional passport booklets. To my mind mere fact that PW34 acted negligently is not a ground to exonerate A1 from the charges despite the fact that it has been established that he had not performed his duty diligently and in accordance with the settled norms.
91. Indisputably, in the file Ex. PW3/Q the additional passport booklet was signed by Tej Ram, who was acting as PIA on that day. Indisputably, in the said file, A1 had not only given the promise date but he also passed the grant order. There is nothing on record which may suggest that at the time of signing the additional passport booklet, PIA is also required to see the previous passport whereas in the said file, A1 had opportunity to see the original passport at the time of giving the promise date or at the time of passing the grant order. Thus, to my mind, A1 is not entitled for parity qua Tej Ram.
CBI No. 51/2016 (old No. 10/12) Page 122 of 156State through CBI v. Bibianus Toppo & Ors.
92. Bibianus Toppo (A1) also claimed parity in respect of PW8, PW15, PW19, PW20 and PW21.
(i). Perusal of their statements reveals that they were working in the RPO, New Delhi as ministerial staff. PW8 Virender Singh was causal labour and he wrote passport number in the files and also put a stamp in files. PW15 Amit Kumar Sharma was also causal labour and his duty was to make entry, tagging the files, scanning, writing of passport number, dispatch etc. He deposed that in the present matters, he had printed the additional passport booklets issued in the name of Harbans Lal Suri and Neha Suri. PW19 Tara Chand was causal labour till 2007 and was posted in detail entry section and deposed that in all the files, he had done the entry work. PW20 Puran Chand joined the RPO as causal labour and thereafter, he became permanent and deposed that he had scanned the files in the present matter. PW21 Suman Kumar Sehgal was posted in the printing section. He had alloted the passport number. No doubt in their cross-examination, said witnesses deposed that if they found any discrepancy in the file, they used to bring the same in the notice of their senior and testified that they had not noticed any discrepancy in the files. On the basis of this statement, it was argued that since the said officials failed to find discrepancy in the files, it can also be presumed that A1 also failed to detect the discrepancy/fraud in the files. But to my mind, there is no substance in the said plea because the above said persons were performed the ministerial jobs while dealing with the files in their respective sections and they were not supposed to go through the file thoroughly as required by A1 being PIA. Further, they had no opportunity to see the original passports to CBI No. 51/2016 (old No. 10/12) Page 123 of 156 State through CBI v. Bibianus Toppo & Ors.
see whether the pages had been full or not; whether original passports bear the photo and signature in original or it was a scanned copy.
93. A1 also claimed parity qua Ms Asia, Savita Nanda, Y. K. Kaushal, S.P.Kothari and U.S. Lingwal for the acts performed by them in other matters i.e. CC No. 8/12, CC No. 25/09 and CC No. 6/12.
94. Admittedly, the above said persons had not dealt with the files in question except Ms. Asia whose role had already been discussed, thus it can not be said that CBI had made any discrimination with A1 qua the above said persons in the present matter. Indisputably, this Court is not supposed to give finding in the present case on the basis of role performed by other PIAs in other matters; rather this Court is supposed to give finding on the basis of evidence adduced by the parties in the present matter.
95. Mere on the ground that in other matters, CBI did not deem it appropriate to prosecute some PIAs who performed similar acts as that of A1, in the present case, is not sufficient to hold that any discrimination had been done by the CBI in the present matter with A1. If in the said matters CBI had committed any discrimination with the accused or adopted pick and choose policy, accused would have a right to raise the issue in the said matters as A1 has raised in the present case qua Ms. Asia in file Ex. PW7/J and qua Tej Ram in file Ex. PW3/Q. But mere fact that CBI did not charge-sheet some of the PIAs in other matters is not sufficient to exonerate A1, in the present case.
CBI No. 51/2016 (old No. 10/12) Page 124 of 156State through CBI v. Bibianus Toppo & Ors.
96. Now coming to the judgements cited by learned defence counsel in support of his contentions.
(i). To my mind the judgement State of Madhya Pradesh v/s. Sheetla Sahai and others, (2009) 8 SCC, 617 and L. Chandraiah v/s. State of Andhra Pradesh, 2004 SC 252 are not applicable in the facts and circumstances of the present case. In both the matters, investigating officer adopted the policy of pick and choose while impleading the accused persons whereas in the present case, no such pick and choose policy has been adopted by the investigating officer.
(ii). Similarly, the facts of Shanker Mandal vs. State (supra) are totally different from the facts of the case at hand. In the said case, accused Shanker Mandal was charge-sheeted on the ground that he took the charge of Assistant Store Keeper and being Asstt. Store Keeper, it was his duty to receive and issue diesel. However, it was found that the stock did not match, accordingly, he was charge- sheeted that he had misappropriated 1,07,885/- litres of diesel. However, during trial, it came on evidence that not only the appellant who used to receive and issue diesel, there were several other persons also who used to receive and issue diesel. Further, there was no order to prove that appellant was made In-charge of the Pump. On the basis of evidence available on record, it was held that it cannot be said that accused was only responsible for receiving and issuing diesel. Since the other persons were not charge-sheeted, accused was also acquitted on the ground that evidence led by prosecution was not sufficient to prove his guilt whereas the facts of the present CBI No. 51/2016 (old No. 10/12) Page 125 of 156 State through CBI v. Bibianus Toppo & Ors.
case are totally different.
(iii). Similarly, in S. P. Bhatnagar (supra) case. The facts were totally different. In the said matter Ramrao also countered signed the bills as done by the appellant but he was not chargesheeted. Similarly, no action was taken against another person namely K. S. Joshi who made wrong endorsement in respect of measurements. On the basis of evidence available on record, it was observed by the Court that it was difficult to understand how the appellant could be treated differently from the above two persons whereas in the instant case the person who made endorsement in favour of applicants i.e. A2 and the person who cleared the HIT i.e. A3 had also been made accused by the CBI. Thus, it cannot be said that CBI had made any discrimination against A1 in the present case.
97. Learned counsel appearing for A1 further contended that since CBI failed to prove the charges of cheating and forgery against A1, A1 cannot be held guilty for the offence punishable under Section 13 (2) of PC Act. In support of his contention, counsel placed reliance on the judgment L. Chandraiah vs. State of A.P (supra). To my mind the observations of the Hon`ble Court in the aforesaid case that since prosecution failed to prove the guilt of accused for the offence punishable under Section 467/471 & 409 IPC, he cannot be held guilty under Prevention of Corruption Act is not helpful to the accused in any manner. Perusal of the judgement reveals that in the said matter the accused who was a public servant was charge- sheeted for the offence punishable under Section 409/467/471 IPC and Section 5(1)(c)(d) read with Section 5(2) of PC Act, 1947. Section CBI No. 51/2016 (old No. 10/12) Page 126 of 156 State through CBI v. Bibianus Toppo & Ors.
5(1)(c) and 5(1)(d) reads as under:-
Section 5(1)(c):-
If he dishonestly or fraudulently misappropriated or otherwise convert for his own use any property entrusted to him or under his control as a public servant or allows any person to do so or;
(d) If he, by corrupt or illegal means, or by otherwise abusing his position as public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage.
98. It was held in the said judgment that since prosecution failed to prove dishonest intention which was an essential ingredient to prove the guilt of accused for the offence punishable under Section 409/467 and 471 IPC, accused cannot be held guilty under Prevention of Corruption Act. However, as already discussed that no dishonest intention is required to prove the guilt of accused for the offence under Section 13 (1) (d) (iii) of PC Act, thus the said judgment is not helpful to the accused in this case.
99. Learned counsel appearing for A1 further vigorously contended that even under clause (iii) of Section 13(1)(d) of PC Act, the word 'Obtains' is used, which reflects that there must be some dishonest intention on the part of public servant. In support of his contention, reliance has been placed on the judgment Subhash Parbat Sonvane vs. State of Gujrat in Crl. Appeal No. 546/2002 decided by Apex court on April 24, 2002. No doubt in the said judgement Hon`ble Court had interpreted the word 'Obtain' but it is CBI No. 51/2016 (old No. 10/12) Page 127 of 156 State through CBI v. Bibianus Toppo & Ors.
nowhere stated that dishonest intention is required to prove the guilt of a person under Section 13(1) (d)(iii) of PC Act. As per the judgment, 'Obtained' means to secure or gain (something) as the result of request or effort. It was further held that in order to convict a person under Section 13(1)(d) there must be evidence on record that accused obtained for himself or for any other person any valuable thing or pecuniary advantage by either corrupt or illegal means or by abusing his position as a public servant or he obtained for any person any valuable thing or pecuniary advantage without any public interest. Since in the instant case, the act of A1 and other public servants relates to clause (iii) to Section 13(1)(d) of PC Act, Court has to give finding that the act of public servants was without any public interest. As already held that passport is a valuable thing and by their respective acts public servants i.e. A1 to A3 had facilitated the applicants and co-accused i.e. Anil Dhawan to obtain passport in favour of fictitious persons, thus one of the conditions is satisfied. In view of the above, I am of the view that the said judgment is also not helpful to the accused in any manner.
100. Learned counsel appearing for the accused further vehemently contended that acts of A1 are not covered by the judgment Runu Ghosh v/s. CBI (supra), as before holding the accused guilty, Court has to look into the circumstances in which A1 had worked. It was argued that since no facility was provided to PIA to detect the fraud and there were frequent instructions from the Ministry of External Affairs in the form of various circulars to issue additional passport booklets on the same day or preferably within 3-5 days and A1 was over burdened at the relevant time and the witnesses CBI No. 51/2016 (old No. 10/12) Page 128 of 156 State through CBI v. Bibianus Toppo & Ors.
particularly PW9 S.P.Kothari and PW38 Raj Singh admitted in their cross-examination that the files put up before A1 were complete in all respects and the fact that other PIAs in other similar matters also acted similarly, thus it cannot be said that there was any fault on the part of A1.
(i) As already discussed that no training or scientific instrument was required to detect the fraud, thus the first circumstance is not sufficient to give any benefit of doubt to the accused. Similarly, though there were instructions from the Ministry of External Affairs in the form of various circulars as discussed above, but these circulars never permitted the Passport Issuing Authority to act in violation of the Rules and Regulations of Passport Act and Passport Rules. By way of said circulars procedure was simplified to minimize the time in issuance of additional passports. However, it was also directed to take precaution to avoid any kind of fraud by directing the PIAs to consult PISON as and when there is any doubt. Thus, the second reason is also not helpful to the accused in any manner. As already discussed that the over burdened cannot be a ground to justify a wilful wrongful act or to act in the gross violation of rules and regulations. So far the fact that in other matters the other PIAs who acted in similar manner were not charge-sheeted by the CBI is not a ground to acquit the accused in the present case as this Court is not supposed to give finding on the basis of charge-sheets filed by the CBI in other cases. Rather, the Court is bound to give finding on the basis of evidence adduced in the instant case.
(ii) As already stated that there is no substance in the plea CBI No. 51/2016 (old No. 10/12) Page 129 of 156 State through CBI v. Bibianus Toppo & Ors.
of parity taken by the accused qua Ms. Asia in file Ex. PW7/J and qua Tej Ram in file Ex. PW3/Q.
101. No doubt, PW9 and PW38 in their cross-examination admitted that the files put up before A1 were complete in all respect. But here the question is not whether files were complete or not. The real question is whether there was anything uncommon in the said files which was sufficient for A1 to raise objection or to make further inquiry. As already stated that answer is in affirmative. Since the pages of previous passports had not been full; and the fact that the previous passports had not cancelled either in terms of circular dated June 24, 1997 or November 25, 1997 and the fact that photographs and signatures of the applicants in the original passports were in original while it should be scanned copy. All these facts were more than sufficient for A1 to detect the fraud or atleast to make further inquiry. But he did not deem it appropriate even to raise any objection and even did not ask from the counter clerk why he had not cancelled the previous passports either in terms of circular dated June 24, 1997 or November 25, 1997.
(i) When a Court question was put to PW9 about the facility, PW9 deposed that all facilities were provided by the department. He further deposed that when a person sought additional passport on the ground that pages of previous passport had been full, in such matters, it is the duty of PIA to satisfy himself that the pages of previous passport had been full. He further deposed that there is nothing in the passport files, which may show that the pages of previous passport had been full.
CBI No. 51/2016 (old No. 10/12) Page 130 of 156State through CBI v. Bibianus Toppo & Ors.
(ii) Similarly, PW38 to the Court question deposed that PIA used to check each and every document enclosed in the file and also used to check the original passport at the time of giving the promise date to satisfy himself whether applicant is required additional passport genuinely or not. To another court question, he deposed that whenever any person would make an attempt to use same passport to obtain second additional passport booklet, PIA would come to know that the said previous passport had already been used to obtain the additional passport booklet because there would be stamp of cancellation in the said previous passport. Thus, from the deposition of PW9 and PW38, it becomes clear that it was the duty of the PIA to check the file thoroughly to ascertain whether the claim of applicants was genuine or not. It means that it was the duty of PIA to check whether the pages of previous passport had been full; whether previous passport had been cancelled in terms of rules and regulations and whether there is anything unusual in the passports produced by the applicants; whether the original photograph and signature were appearing in the passport in place of scanned copy. In the light of the above said discussion, mere fact that PW9 and PW38 deposed that files in question were complete in all respect is not sufficient to draw a conclusion that there was no lapse on the part of A1.
102. Now coming to the next question whether RPO officials including PIA acted in public interest or not?
(i) If it is established that they acted in public interest, they cannot be held liable for their acts, otherwise they shall be liable for CBI No. 51/2016 (old No. 10/12) Page 131 of 156 State through CBI v. Bibianus Toppo & Ors.
their acts.
(ii) No doubt, issuance of additional passport booklets to the previous passport holders is in public interest but issuance of additional passport booklets in the name of fictitious persons cannot be in public interest. Rather, it would be totally against public interest as it may also cause threat to the security of the nation because such fictitious identity proof documents can be mis-used by anti-national elements. As already discussed that while dealing with the files in question, A2 who was working as counter clerk at the relevant time did not check the original passport to verify whether the pages of previous passport had been full or not. He even did not cancel the original passport either in terms of circular dated June 24, 1997 or November 25,1997. Even he did not raise any objection despite the fact that the signature and photograph appearing on the passports, which were produced for inspection, were in original though it should be a scanned copy. Similarly, A1 who was working as PIA also did not check the original passport to verify whether the pages of previous passport had been full or not, on the basis of which, applicants sought additional passport booklet from time to time. A1 also did not raise any objection despite the fact that the previous passport was not cancelled by the counter clerk either in terms of circular dated June 24, 1997 or November 25, 1997. Similarly, he also did not raise any objection despite the fact that the signature and photograph of the applicant were appearing in original on the passports, which were allegedly produced for inspection and cancellation, while the signature and photograph should be a scanned copy on the passports.
CBI No. 51/2016 (old No. 10/12) Page 132 of 156State through CBI v. Bibianus Toppo & Ors.
(i) As already discussed that A3 who was working in HIT Section also failed to point out that additional passport booklets had been issued in the name of Mr. Harbans Lal Suri on the basis of previous passport, copy of which was annexed along with applications. Similarly, he also failed to point out the dissimilarities in the photographs of the applicant while giving the HIT clearance on May 27, 2004 and June 11, 2004 in respect of additional passport booklet bearing No. E-8580773 and E-8914602. Thus, it becomes clear that A1 and A2 did not take reasonable precaution at the time of dealing with the files in question; rather they breached the settled norms and instructions issued from time to time through various circulars, thus their acts were not in public interest when they facilitated the applicants in getting additional passport booklets in fictitious names by clearing files without raising any objection.
103. From the aforesaid discussion, following facts have been established beyond the shadow of all reasonable doubts:-
(a) That accused Harbhajan (A2) was working as counter clerk at the relevant time whereas Bibianus Toppo (A1) was working as Passport Issuing Authority being Superintendent.
(b) That being the counter clerk, A2 had dealt with all six files relating to additional passport booklets wherein different persons requested for additional passport booklet in the CBI No. 51/2016 (old No. 10/12) Page 133 of 156 State through CBI v. Bibianus Toppo & Ors.
name and personal particulars of Harbans Lal Suri, Neha Suri and Dashrath Suri.
(c) That in all the said files the applicants had sought the additional passport booklets on the pretext that pages of previous passport had already been full and they required additional passport booklet to visit abroad urgently.
(d) That along-with the application and request letter, the applicants had also enclosed the photocopy of few pages of previous passport.
(e) That being the counter clerk, A2 and being the Passport Issuing Authority, A1 were duty bound to inspect the original passport to ensure themselves that the pages of previous passport had been full or not.
(f) That from the original passport, it becomes clear that the pages of the original passport had not been full as alleged by the applicants in their request letters. This proves that neither A2 nor A1 had inspected the original passport at the time of dealing with the request of applicants.
(g) That being the counter clerk, it was the CBI No. 51/2016 (old No. 10/12) Page 134 of 156 State through CBI v. Bibianus Toppo & Ors.
duty of A2 to cancel the original passport either in terms of circular dated June 24, 1997 or November 25, 1997. But he failed to do so.
Similarly, A1 being the PIA also did not raise any objection in this regard.
(h) That being the counter clerk and PIA, it was the duty of A2 and A1 to go through the original passport carefully but they failed to do so. Had they gone through the original passports, they would have come to know that the applicants were playing fraud because the signature and photograph of the applicants on the said passport were in original while it should be a scanned copy. This itself was more than sufficient for A2 and A1 to raise suspicion over the claim of applicants but they failed to do so.
(i) That despite the above inherent defects in the applications, A2 being the counter clerk made recommendation in favour of applicants for issuance of additional passport booklet and similarly, A1 being the PIA not only passed the promise date and grant order but he also issued the additional passport booklets in favour of the applicants.
(j) That no scientific instrument or specific CBI No. 51/2016 (old No. 10/12) Page 135 of 156 State through CBI v. Bibianus Toppo & Ors.
training was required to detect the said deficiencies/inherent defects as the same could easily be ascertained with naked eyes by a person of having ordinary intelligence. Since, A1 and A2 were working in RPO since long, they must have acquired some expertise to assess which portion of passport was required to be checked carefully at the time of dealing with such request from the applicants. But they preferred to ignore the said inherent defects without any reasonable explanation.
(k) That it was the duty of A3 to check whether there is any objectionable point in the application or not. Despite that he failed to point out that additional passports had already been issued in the name of Harbans Lal Suri on the basis of photocopy of previous passport, which had been annexed at the time of seeking additional passport booklet in the name of Harbans Lal Suri from time to time. He also failed to point out the dissimilarities in the photograph of Harbans Lal Suri in respect of two additional passport booklets in which he had given the HIT clearance on May 27, 2004 and June 11, 2004 despite the fact that at that time, there was a facility in his computer to compare the photograph of the applicant with the CBI No. 51/2016 (old No. 10/12) Page 136 of 156 State through CBI v. Bibianus Toppo & Ors.
photograph of the original passport holder.
(l) That by their acts A1 to A3 facilitated
the applicants to get additional passport
booklets, which is a valuable thing in fictitious names i.e. Harbans Lal Suri, Neha Suri and Dashrath Suri.
(m) That the acts of A1 to A3 were not in the public interest and they acted without public interest while facilitating the applicants to get additional passport booklet in fictitious names.
104. Indisputably, there is no cogent evidence on record to bring home the guilt of A1 to A3 for the offences described in clause
(i) and (ii) of Section 13 (1) (d) of the Prevention of Corruption Act as prosecution failed to establish that A1 to A3 had any dishonest intention while dealing with the files in question. But it can safely be culled out that the adduced evidences are sufficient to hold that A1 to A3 while holding public office obtained a valuable thing i.e. passport in favour of the fictitious persons through A4, which was not in public interest; rather it was without any public interest. Thus, to my mind, A1 to A3 are liable for the offence punishable under Section 13 (2) read with Clause-(iii) of Section 13 (1)(d) of PC Act.
(i) However, I am of the considered opinion that the adduced evidences are not sufficient to bring home the guilt of A1 to A3 for the offence punishable under Section 12 (1) (b) of Passport Act, CBI No. 51/2016 (old No. 10/12) Page 137 of 156 State through CBI v. Bibianus Toppo & Ors.
1967 as there is nothing on record to show that A1 to A3 had furnished any false information as required under Passport Act, accordingly, I hereby acquit them thereunder.
(ii) In view of the above finding, I do not find any substance in the contention of learned defence counsel that since in the instant case two views are possible, A1 is entitled for acquittal.
105. Though a separate charge has been framed against A1 for the offence punishable under Section 467 IPC on the ground that he had signed the five passports in question which were issued in the name of fictitious persons, but during trial CBI has failed to adduce any evidence to prove that A1 had committed any forgery as defined under Section 463 IPA and 464 IPC at the time of signing the said booklets, thus I hereby acquit A1 from the charges of 467 IPC.
Contentions relating to accused Dheeraj Bansal (A5):-
106. Learned Sr. Public Prosecutor appearing for CBI vigorously argued that A5 had got prepared a forged passport in favour of Mr. Devender Singh s/o Dilip Singh in fictitious name of Harbans Lal Suri on the basis of photograph, which he collected from PW32 Ashok @ Bittoo to whom the same were given by Devender Singh. It was further contended that thereafter, A5 had deposited the passport at the British High Commission for obtaining visa in favour of Devender Singh in the fictitious name of Harbans Lal Suri. It was argued that when Devender Singh came to know about the same, he did not turn up for interview before the British High Commission.
CBI No. 51/2016 (old No. 10/12) Page 138 of 156State through CBI v. Bibianus Toppo & Ors.
107. Per contra, learned counsel appearing for A5 refuted the said contentions by arguing that there is no iota of admissible evidence on record that any such photo was ever given to A5 either by Devernder Singh or by Ashok @ Bitto. It was argued that from the statement of PW41 Devender Singh, PW37 Jasvinder Singh @ Pamma and PW32 Ashok Kumar @ Bittoo, it becomes clear that PW32 was an agent and he had taken huge amount from PW41 for arranging visa in his favour; but surprisingly he admitted in his deposition that he had not given any money to A5. It was argued that from the deposition of above said witnesses, it can safely be culled out that PW32 was involved in the business of arranging visa illegally and for that purpose he used to charge huge money from the gullible persons as in this case, he had charged huge money from PW41. It was contended that but surprisingly CBI has cited Ashok @ Bittoo as a witness while impleaded Dhiraj Bansal as an accused in this case. It was further contended that no reliance can be placed on the deposition of PW32. It was further argued that though CBI has set up a case that some incriminating documents were recovered during the raid allegedly conducted at the premises of A5, but no reliance can be placed on the said raid as it is admitted case of CBI that A5 was not present at the time of said raid. Further, no document bearing the signature of A5 was found in the said raid. Moreover, as per the testimony of PW42, the documents were recovered from a car, which was found parked in the society premises where the house of A5 is located. But during investigation, CBI even failed to connect the said car with A5. Even it is not established that the key of the said car was provided by the family members of A5. Accordingly, it was argued that no reliance can be placed on the documents which were allegedly CBI No. 51/2016 (old No. 10/12) Page 139 of 156 State through CBI v. Bibianus Toppo & Ors.
shown to have been recovered from the house of A5.
Findings qua Dheeraj Bansal (A6):-
108. Perusal of the chargesheet reveals that the allegations against A5 are that A5 had collected 12 passport size photographs of Devender Singh through Ashok @ Bittoo (PW32). It was further alleged that Devender Singh had given his original passport bearing No. B-5677702 (Ex. PW32/A) issued from RPO, Jhalandhar to A5 for arranging visa for him for UK but A5 arranged additional passport booklet by using the said photographs in the name of Harbans Lal Suri and submitted the additional passport booklet in the office of British High Commission, New Delhi for visa.
109. In the light of above, first question emerges whether Devender Singh (PW41) had handed over any such photograph or passport to A5 or not? In this regard, the testimony of PW32, PW37 and PW41 are relevant.
(i). PW41 in his examination-in-chief deposed that he had a passport issued from RPO, Jhalandhar but he had never travelled on the said passport. He further testified that he asked Bittoo to make arrangement to send him to England, accordingly Bittoo i.e. PW32 asked ` 9 lac from him. He further deposed that since his friend Nishan Singh also intended to go to England, Bittoo demanded ` 9 lac from him also. He further testified that he and Nishan Singh had given amount between ` 2 lac to ` 2.50 lac each to Bittoo. It means that PW41 alongwith Nishan Singh had given huge amount between CBI No. 51/2016 (old No. 10/12) Page 140 of 156 State through CBI v. Bibianus Toppo & Ors.
` 4 lac to ` 5 lac to PW32. He further deposed that he had also given his passport and eight photographs to Bittoo. He further deposed that Bittoo told him that visa could not be arranged for him as he was a Sikh, however told him that visa had been arranged for Nishan Singh.
(ii). From the testimony of PW41, it becomes clear that PW41 along with Nishan Singh had given huge amount between ` 4 lac to ` 5 lac to PW32 for making arrangement to send them to England. Further it also becomes clear that PW41 had given his eight photographs and one passport to PW32.
(iii). In his deposition, he further testified that he can identify the photograph which he had given to Bittoo. However, when the photograph appearing on the passport Ex. PW3/M (additional passport booklet bearing No. E-8914602), Passport Ex. PW13/D1 (original passport bearing No. B-1792351) and the passport file Ex. PW3/L shown to the witness, he deposed that he had not given the said photographs to Bittoo. Since, PW41 was not supporting the prosecution case on the point of photographs and on other points, he was got turned hostile and cross-examined at length by learned Public Prosecutor appearing for CBI. But during his cross- examination, nothing could be extracted which may help the CBI to prove the guilt of A5. Infact in his entire testimony, he had not uttered even a single word against A5. On the contrary, from the testimony of PW41, it becomes clear that the photographs of Devender Singh, which were used for obtaining additional passport booklet, were not given by him either to PW32 or A5.
CBI No. 51/2016 (old No. 10/12) Page 141 of 156State through CBI v. Bibianus Toppo & Ors.
(iv). PW 37 Jasvinder Singh @ Pamma is the person at whose dhaba Devender Singh (PW41) met with Bittoo (PW32). In his examination-in-chief, he deposed that talk had taken place between Devender Singh and Ashok Kumar @ Bittoo and further deposed that PW41 Devender Singh agreed to pay a sum of ` 9 lac to PW32 Ashok Kumar @ Bittoo. However, he deposed that he did not know whether the said amount was actually given to PW32 or not. He also did not utter even a single word against A5. Though the witness was cross- examined at length by learned Public Prosecutor but nothing could be extracted during his cross-examination which may help CBI to prove the guilt of A5.
110. Now coming to the testimony of PW32 Ashok Kumar @ Bittoo.
(i). He deposed that Sanjeev Kumar is his relative who introduced him to Dhiraj Bansal and initially he talked with him on phone, thereafter, he visited him at his residence located at Rohini. He came to know that Dhiraj Bansal (A5) was having work of arranging visa for persons who wanted to travel abroad and he used to charge between ` 4 to ` 5 lac for arranging visa. He further testified that thereafter, he asked Pamma (PW37) to tell him if any person is interested to travel abroad and wanted visa support for that purpose. Accordingly, Pamma (PW37) told him the name of Pinka (PW41), who wanted to travel abroad. He further testified that thereafter, Pinka also brought his friend Nishan Singh as he also wanted to travel abroad. He further deposed that A5 asked him to provide the documents relating to the said persons so that he could arrange visa for them. He CBI No. 51/2016 (old No. 10/12) Page 142 of 156 State through CBI v. Bibianus Toppo & Ors.
further testified that A5 asked him to provide their passport, bank account statement, ration card and property documents. He further testified that accordingly, he provided passport and 2-3 photographs of Pinka (PW41) and Nishan Singh to A5 for arranging visa. He further testified that after about one month, A5 informed him on phone that the work of Nishan Singh had been done. He further deposed that since they had not paid any money to A5, question of taking refund from A5 does not arise. He further testified that the passport Ex. PW32/A issued from RPO Jhalandhar in the name of Devender Singh is the same passport which he had handed over to A5. However, he deposed that photograph affixed on the passport Ex. PW13/D1 and PW3/M are not the photographs, which were given to Dhiraj Bansal and testified that he had not given the said photographs to Dhiraj Bansal (A5). He further deposed that though A5 had made a demand of ` 5.50 lac but no money was paid to him. Since, he was not supporting the case, he was got turned hostile and cross-examined at length by learned Public Prosecutor at length. However, during his cross-examination, nothing could be extracted which may help the prosecution in any manner to prove the guilt of A5. In his cross- examination, he reiterated the fact that though he had given the photograph to A5 but the photograph affixed on the passport Ex. PW3/M and PW13/D1 are not the photographs, which he handed over to A5.
111. From the combined reading of the statement of PW32, PW37 and PW41, it becomes clear that photographs affixed on the passport Ex. PW3/M and PW13/D1 and the photograph used in the passport file Ex. PW3/L are not the photographs which were given CBI No. 51/2016 (old No. 10/12) Page 143 of 156 State through CBI v. Bibianus Toppo & Ors.
by PW41 to PW32. It becomes further clear that though PW41 along with Nishan Singh had given ` 4 to ` 5 lac to PW32 for the purpose of arranging visa but PW32 had not given any amount to A5. It further becomes clear that PW32 never told to PW41 and PW37 that he would arrange visa through A5. Since, PW32 had charged huge amount for arranging visa in favour of PW41 and Nishan Singh, it suggests that he had charged the said amount to arrange visa by doing some unlawful and illegal acts otherwise there was no occasion for him to charge such huge amount from them. No doubt, PW32 deposed that A5 had demanded ` 5.50 lac for arranging visa but it is admitted case of PW32 that he had not paid any amount. On the contrary, from the deposition of PW41, it becomes clear that PW32 had charged a sum of ` 9 lac from each of them. Thus, it can safely be culled out that either PW32 was indulging in arranging visa by unlawful means or he was an agent of Dhiraj Bansal (A5). If, it was so, it means he was also in conspiracy with Dhiraj Bansal. But it is not clear on what basis CBI had exonerated PW32 and cited him as a witness. However, the testimony of PW32, PW37 and PW41 are not sufficient in any manner to establish that Dhiraj Bansal had used the said photographs either for obtaining the additional passport booklet Ex. PW3/M or he arranged the visa for PW41.
112. Next allegation against A5 is that he had deposited the additional passport booklet at the office of British High Commission, New Delhi for obtaining visa in favour of PW41 in the fictitious name of Harbans Lal Suri. But during trial, CBI failed to adduce any evidence to prove the said allegation. Though CBI had examined as many as 46 witnesses, yet none has uttered even a CBI No. 51/2016 (old No. 10/12) Page 144 of 156 State through CBI v. Bibianus Toppo & Ors.
single word about the same. Accordingly, I am of the view that CBI miserably failed to establish that A5 had deposited the above said passport booklet in the office of British High Commission for obtaining visa for PW41 in the fictitious name of Harbans Lal Suri.
113. Now coming to the contention relating to alleged search.
(i). Though as per the testimony of PW42 a search was conducted at the premises of A5 on October 15, 2004, but during the course of arguments learned Sr. Public Prosecutor appearing for CBI failed to point out any document allegedly recovered during the said search which may help CBI to prove the guilt of A5 in the present matter. Even in the chargesheet no reliance has been placed on any such document. In these circumstances, no purpose would be achieved to discuss the validity or legality of the said search.
114. In view of the aforesaid discussion, I am of the considered opinion that there is no iota of admissible evidence against accused Dhiraj Bansal (A5), accordingly, I am of the view that CBI has miserably failed to bring home the guilt of A5. Thus, I hereby acquit him from all the charges.
Contentions and finding qua accused Amit Kumar Khatri (A7):-
115. Shri Prabhat Kumar learned Senior Public Prosecutor for CBI contended that the role attributed to A7 is that he accompanied Mr. Suraj and his daughter Kristina who travelled CBI No. 51/2016 (old No. 10/12) Page 145 of 156 State through CBI v. Bibianus Toppo & Ors.
Frankfurt on the fictitious passport issued in the name of Harbans Lal Suri and Neha Suri. It was further alleged that after leaving them in Frankfurt, accused took the passport from Suraj @ Harbans Lal Suri and Kristina @ Neha and came to Delhi and handed over the same to his co-accused Hemant Gandhi. It was alleged that thereafter Hemant Gandhi used the said passports in obtaining additional passport booklets in the name of fictitious persons.
116. Per contra, learned defence counsel for the accused refuted the said contentions by arguing sagaciously that there is no admissible evidence on record to prove the fact that accused Amit Khatri had taken over the passports from the alleged Suraj and Kristina or he handed over the same to Hemant Gandhi. It was further submitted that PW5, who got prepared the additional passport booklet in favour of Kristina @ Neha Suri deposed that he did not know any person by the name of Amit Kumar Khatri.
117. PW5 Pradeep Jain is the person who helped Neha Suri @ Kristina in getting additional passport booklet. Though prosecution has set up a case that Amit Kumar Khatri had helped Kristina in getting the passport in the fictitious name of Neha Suri, but PW5 did not support the prosecution case by deposing that he did not know any person by the name of Amit Kumar Khatri. Though he deposed that Kristina was accompanied with a person to whom he knew as Sirji, but in his cross-examination, he clarified that the said Sirji was not present in the Court. In other word, PW5 failed to identify the accused Amit Kumar Khatri. Except the testimony of PW5, there is no other witness who may prove that A7 had helped Kristina in getting CBI No. 51/2016 (old No. 10/12) Page 146 of 156 State through CBI v. Bibianus Toppo & Ors.
the passport in the name of Neha Suri.
118. The next allegation against accused Amit Kumar Khatri is that he not only accompanied with Suraj and Kristina who travelled on fictitious passport issued in the name of Harbans Lal Suri and Neha Suri respectively but he also took the custody of their passport from them at Frankfurt and thereafter returned to Delhi and handed over the same to his co-accused Hemant Gandhi, who further used the said passports in getting additional passport booklets in favour of fictitious persons. In this regard, the testimony of PW30 and PW31 are relevant.
119. From the testimony of PW30 and PW31, it can safely be culled out that accused Amit Kumar Khatri had travelled to Frankfurt on February 28, 2004 on the basis of passport bearing No. B-3778086 and departure embarkation card bearing No. 103/0652321. It can also safely be culled out that he travelled through Flight No. K-U382 of Kuwait Airways. From the testimony of PW31, it can also safely be called out that on the said flight, Harbans Lal Suri and Neha Suri also travelled. But except that there is no other evidence on record to establish that A7 had taken the custody of passport of Kristina and Suraj or he handed over the same to his co- accused Hemant Gandhi. Mere fact that A7 travelled in the same flight in which Suraj and Kristina travelled in the fictitious name of Harbans Lal Suri and Neha Suri respectively is not sufficient to prove that A7 had any connection either with them or he had taken the custody of their passport at Frankfurt or handed over the same to his co-accused Hemant Gandhi.
CBI No. 51/2016 (old No. 10/12) Page 147 of 156State through CBI v. Bibianus Toppo & Ors.
120. It is admitted case of CBI that in another matter i.e. CC No. 74/08, PW42 had recorded the disclosure statement of accused Hemant Gandhi, certified copy of which is exhibited in this case as Ex.PW42/G. Even in his disclosure statement, Hemant Gandhi nowhere alleged that he had sent A7 to Frankfurt along with Kristina and Suraj or that A7 had taken the custody of their passports at Frankfurt or that A7 had handed over said passports to him. In these circumstances, I am of the considered opinion that in the absence of any cogent evidence on record, the testimony of PW30 and PW31 is not helpful to the prosecution to prove the guilt of A7 in any manner.
121. In the light of the aforesaid discussion, I am of the considered opinion that CBI has failed to prove the guilt of accused A7 miserably, accordingly, I hereby acquit him from all the charges.
CONCLUSION:-
122. Pondering over the ongoing discussion, I am of the considered opinion that:-
(i) Prosecution has succeeded to bring home the guilt of accused Anil Dhawan (A4) for the offence punishable under Section 419/420/468/471 IPC and under Section 12 (1) (b) of Passport Act, 1967 beyond of shadow of all reasonable doubts, accordingly, I hereby hold him CBI No. 51/2016 (old No. 10/12) Page 148 of 156 State through CBI v. Bibianus Toppo & Ors.
guilty thereunder.
(ii) Prosecution has also succeeded to bring home the guilt of accused Bibianus Toppo (A1), Harbhajan Yadav (A2) and Ram Chander (A3) for the offence punishable under Section 13 (2) read with Section 13 (1) (d) (iii) of Prevention of Corruption Act, 1988 beyond the shadow of all reasonable doubts, accordingly, I hereby hold them guilty thereunder.
123. However, prosecution has failed to bring home the guilt of accused persons namely Dhiraj Bansal (A5) and Amit Kumar Khatri (A7) beyond the shadow of all reasonable doubts, accordingly, I hereby acquit them from all the charges.
Announced in the open Court on this 21st day of July, 2016 (PAWAN KUMAR JAIN) Special Judge-01, CBI, North West Rohini Courts, Delhi/sv CBI No. 51/2016 (old No. 10/12) Page 149 of 156 State through CBI v. Bibianus Toppo & Ors.
IN THE COURT OF SH. PAWAN KUMAR JAIN, SPECIAL JUDGE, CBI-01, NORTH-WEST DISTRICT, ROHINI COURTS COMPLEX, DELHI IN THE MATTER OF:
CBI No. : 51/2016 (Old No. 10/12) CNR No. : DLNW01-000076-2007
FIR No. : RC-4(A)/2005/SCU-V/CBI/SCR-II, New Delhi U/Sec: 120B r/w 419/420/468/471 IPC 13(2) r/w 13(1)(d) of PC Act 1988 12(1) (b) of Passport Act 1967 Police Station: CBI/SCR-II/New Delhi STATE THROUGH CENTRAL BUREAU OF INVESTIGATION, NEW DELHI VERSUS CBI No. 51/2016 (old No. 10/12) Page 150 of 156 State through CBI v. Bibianus Toppo & Ors.
1. Bibianus Toppo S/o Late Joseph Toppo, R/o H. No. 770, Block No. 11 Baba Kharak Singh Marg, New Delhi-110001.
..........Convict No. 12. Harbhajan Yadav S/o Late Sultan Singh Yadav, R/o H. No. 949/1, Gali No. 4, Ashok Vihar, Gurgaon, Haryana.
..........Convict No. 23. Ram Chander S/o Sh. Maman Ram, R/o J-624, Sardar Colony, Sector 16, Rohini, Delhi-85.
..........Convict No. 34. Anil Dhawan S/o Sh. Madan Lal Dhawan, R/o 254, DDA Flats, 1st Floor, New Ranjit Nagar, New Delhi-8.
..........Convict No. 4Appearance :Sh. Prabhat Kumar, learned Sr. Public Prosecutor for CBI Sh. R. Ramachandran, Advocate, counsel for Bibianus Toppo (C1) Sh. Sukhwinder Singh, Advocate, counsel for CBI No. 51/2016 (old No. 10/12) Page 151 of 156 State through CBI v. Bibianus Toppo & Ors.
Harbhajan Yadav (C2) and Ram Chander (C3) Sh. Lalit Yadav, Advocate, counsel for Anil Dhawan (C4) ORDER ON THE POINT OF SENTENCE :-
1. Vide separate judgment dated July 21, 2016, convict Bibianus Toppo (C1), Harbhajan Yadav (C2) and Ram Chander (C3) have been held guilty for the offence punishable under Section 13 (2) read with Section 13 (1) (d) (iii) of Prevention of Corruption Act, 1988.
(i) Convict Anil Dhawan (C4) has also been held guilty for the offence punishable under Section 419/420/468/471 IPC and under Section 12 (1) (b) of Passport Act, 1967.
2. Learned counsels appearing for the convicts request for a lenient view on the grounds that they are law abiding citizens and they are sole bread earners of their respective families. They have also been suffering from agony of trial for the last more than eight years.
(i) Besides that counsel appearing for convict Ram Chander submits that convict is a 55 years old man and there is no probability of repeating similar offence by him.
(ii) Similarly, counsel appearing for convict Harbhajan CBI No. 51/2016 (old No. 10/12) Page 152 of 156 State through CBI v. Bibianus Toppo & Ors.
Yadav requests for a lenient view on the ground that convict Harbhajan Yadav is not involved in any other case except passport scam cases and further states that during last 8 years, convict has not been found indulged in any other criminal matter, which shows that convict has reformed himself.
(iii) Learned counsel appearing for convict Bibianus Toppo submits that there is no evidence on record that convict had taken any illegal gratification or any monetary benefit. It is further submitted that convict is aged about 66 years and suffering from various ailments. Convict has only one son, but he is still unemployed, thus convict is the sole bread earner of his family.
(iv) Counsel appearing for convict Anil Dhawan also requests for a lenient view on the ground that convict has been appearing regularly in the Court and there is nothing on record which may suggest that he had committed any other offence after filing the charge-sheets in passport scam cases. It is further submitted that both the kidneys of his father had already been failed, thus he is on regular dialysis for the last three years. It is further submitted that convict is sole bread earner of his family comprising of his old parents and two small school going kids besides his wife.
3. Per contra, counsel appearing for CBI refuted the said contentions by vehemently arguing that the convicts are involved in numerous passport scam cases and due to their acts, passports in the form of additional passport booklets had been issued in favour of fictitious persons. It is further argued that since passport is an CBI No. 51/2016 (old No. 10/12) Page 153 of 156 State through CBI v. Bibianus Toppo & Ors.
important document to prove identity and nationality, such passports could be misused by anti-national elements. It is further submitted that all convicts had also been convicted in other matters such as CC No. 74/2008, CC No. 56/08, CC No. 11/12, CC No. 5/12, CC No. 76/08, CC No. 24/09 , CC No. 7/12 and CC No. 6/12, accordingly, prayer is made for maximum punishment.
4. I have heard rival submissions made by counsel for both the parties, perused the record carefully and gave my thoughtful consideration to their contentions.
5. In view of the aggravating and mitigating factors as highlighted by counsel for both the parties and the fact that prosecution not only failed to establish the charge of conspiracy with the public servants but also failed to prove that public servants had obtained any pecuniary advantage or valuable thing for themselves, I am of the considered opinion that it is not a fit case to impose maximum sentence as prayed by learned Sr. Public Prosecutor for CBI. Simultaneously, in view of the aggravating factors as pointed out by the counsel for CBI, I am also of the opinion that it is also not a fit case to take extreme lenient view as prayed by counsel for the convicts.
6. In view of the aforesaid discussion, I hereby sentence the convict no. 1 to 3 i.e. Bibianus Toppo (C1), Harbhajan Yadav (C2) and Ram Chander (C3) rigorous imprisonment for a period of one year and a fine of ` 20,000/- each in default further simple imprisonment for a period of six months for the offence punishable CBI No. 51/2016 (old No. 10/12) Page 154 of 156 State through CBI v. Bibianus Toppo & Ors.
under Section 13(2) read with Section 13(1) (d) (iii) of Prevention of Corruption Act.
7. I also sentence convict no.4 Anil Dhawan rigorous imprisonment for a period of three years and a fine of ` 20,000/- in default further simple imprisonment for a period of nine months for the offence punishable under Section 420 IPC.
(i) I also sentence convict no.4 Anil Dhawan rigorous imprisonment for a period of two years and a fine of ` 10,000/- in default further simple imprisonment for a period of six months for the offence punishable under Section 419 IPC.
(ii) I also sentence convict no.4 Anil Dhawan rigorous imprisonment for a period of three years and a fine of ` 20,000/- in default further simple imprisonment for a period of nine months for the offence punishable under Section 468 IPC.
(iii) I also sentence convict no.4 Anil Dhawan rigorous imprisonment for a period of two years and a fine of ` 10,000/- in default further simple imprisonment for a period of three months for the offence punishable under Section 471 IPC.
(iv) I also sentence convict no.4 Anil Dhawan rigorous imprisonment for a period of one year and a fine of ` 5,000/- in default further simple imprisonment for a period of three months for the offence punishable under Section 12 (1) (b) of Passport Act, 1967.
CBI No. 51/2016 (old No. 10/12) Page 155 of 156State through CBI v. Bibianus Toppo & Ors.
8. Benefit of Section 428 Cr. P.C, if any, be given to the convicts. All sentences shall run concurrently.
9. Copy of judgment along with order on the point of sentence be given to the convicts/their counsels free of cost.
10. File be consigned to record room.
Announced in the open Court on this 1st day of August, 2016 (PAWAN KUMAR JAIN) Special Judge-01, CBI, North West Rohini Courts, Delhi/sv CBI No. 51/2016 (old No. 10/12) Page 156 of 156