Indian Kanoon - Search engine for Indian Law

Page 891

1. The petitioner, who was a member of Indian Administrative Services (1969 Batch), and retired from the said service on 30.6.2004 on attaining the age of superannuation, has filed this petition under Article 226 of the Constitution of India read with Section 482 Cr.P.C. for issuing a writ/order or direction to quash 30 FIRs, fully detailed in Annexure P-5 to the petition, and any other FIR(s) registered by the respondent/CBI in respect of the revival of the Co-operative Group Housing Societies (in short 'CGHS') during the tenure of the petitioner as Registrar Co-operative Societies, Delhi ('RCS') from March, 2001 to 30th June, 2004 or for deletion of his name from the said FIRs.

4. On 16.11.2005 the CBI filed its final status report and on a consideration of the same, the Division Bench passed an order directing the CBI to act expeditiously in the matter and to see that all the culprits are brought to book in accordance with law. It would appear that even before the passing of the said orders/directions by the Division Bench, the CBI had information to the effect that during the period 1970-1980 or thereafter a seizable number of CGHS were registered several years ago and had become defunct for various reasons; like non-operation, absence of annual data of accounts, non-submission of the membership list and other record to the office of the RCS for verification in accordance with the provisions of the Delhi Co-operative Societies Act, 1972 (hereinafter referred to as 'The Act') and the Rules framed there under. However, after several years a large number of said defunct CGHS have been revived by the office of the RCS, Delhi in criminal conspiracy with certain private persons on the basis of false/forged documents and such fraudulently revived CGHS were later on recommended for allotment of land by the DDA at the pre-determined price. Further inquiries were conducted in that behalf by the S.P., CBI who found that a deep-rooted Page 893 conspiracy was hatched by certain persons with the officers / officials of the office of RCS, Delhi including the petitioner in order to revive such defunct CGHS on the basis of fake and forged documents/record by obtaining/preparing false record and pursuant to the said conspiracy the petitioner ordered the revival of a large number of such societies and recommended for allotment of land to those societies which constituted offences punishable under Section 120-B IPC read with Sections 417/419/420/467/468/471 IPC and Section 13(2) r/w Section 15 and 13(1)(d) of Prevention of Corruption Act, 1988. Accordingly, various FIRs were lodged against the petitioner and several other officers/officials of the RCS viz. Assistant Registrars, Inspectors etc. besides certain private persons who were suspected of the commission of the said offences.

6. The investigation conducted so far has reflected in general a modus operandi in which the said conspiracy was hatched by the petitioner and others and later on realized. The modus operandi being that the petitioner while working as RCS, Delhi in conspiracy with other co-accused persons deliberately made the original records of the Society disappear from the office of RCS and without lodging any complaint with the police or initiating any inquiry about the missing of the said record, got re-constructed the files on the basis of records submitted in his office by his accomplices. No verification of the liquidation order etc. were made from other authorities i.e. DDA, Revenue Department of Govt. of NCT of Delhi, the State Co-operative Bank, wherefrom a verification could be sought. Certain fake documents were entertained and fake reports obtained from the officials of the RCS, Delhi and after making somewhat semblance of sham proceedings on the file, several societies were revived by the petitioner in purporting exercise of his powers under the provisions of Section 63(3) of the Act and thereafter made recommendation to the DDA for allotment of land to such revived societies. In this way the petitioner, being a public servant, has abused his official position in the matter of revival of various Cooperative Group Housing Societies and out of 96 cases registered so far by the CBI, name of the petitioner figures in as many as 66 cases and investigation into the said cases is in progress.

7. I have heard Mr.R.K.Anand, learned senior counsel representing the petitioner and Mr.Harish Gulati, learned counsel representing the respondent/CBI and have bestowed my thoughtful consideration to their respective submissions.

Page 894

8. Though the petition contains several grounds and pleas for quashing the above said FIRs, yet Mr.Anand, learned senior counsel at the hearing of the petition has confined his submissions only to a fewer grounds. In support of his plea for quashing the FIRs, the first and foremost plea put forward by Mr.Anand is that the petitioner is immune from any prosecution for all or any acts done by him in the capacity of RCS because the functions discharged by him are judicial and or quasi judicial in nature and are liable to challenge by way of appeal. The basis of this submission is that the incumbent of the office of RCS while discharging the functions under the Act is to be deemed a 'Judge' within the meaning of Section 19 of IPC and so he enjoys immunity and protection from any prosecution for any action, decision or order passed by him by virtue of the provisions of Section 95 of the Act as well as under the provisions of Judges (Protection) Act, 1985. In this connection Mr.Anand, learned senior counsel submitted that Section 63(1) of the Act empowers the Registrar Cooperative Societies to make an order directing any cooperative societies to be wound up after following a certain procedure and recording requisite satisfaction. According to him, sub-section(3) of Section 63 of the Act further empowers the RCS to cancel an order for winding up of a cooperative society at any time in any case where in his opinion the society should continue to exist. He submitted that assuming for the sake of argument that the act of the Registrar in cancelling the order of winding up and for revival of the defunct societies were passed by him on the basis of fake/forged record, he passed the same in exercise of the said power and such orders of cancellation of winding up of the CGHS and their consequent revival are appeallable within the meaning of Section 76 of the Act, and since no appeal was filed or the order of cancellation of the winding up of the societies challenged at any other forum, the order has attained finality and its legality and validity cannot be questioned in any other proceeding and cannot be subject matter of any inquiry or investigation, least by the police or the CBI.