Delhi District Court
State Through Cbi vs Om Parkash & Others on 18 May, 2015
State through CBI v/s Om Parkash & others
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. 24/2009
ID No. : 02404R0009782008
FIR No. : RC-2(A)/2005/SCU- V/SCR-II/CBI,
New Delhi
U/Sec: 120B r/w 419/420/467/468/471 IPC
13(2) r/w 13(1)(d) of PC Act 1988
12(1) (b) of Passport Act 1967 and
substantive offences thereto
Police Station: CBI/SCU-V/SCR-II/New Delhi
STATE
THROUGH
CENTRAL BUREAU OF INVESTIGATION,
NEW DELHI
VERUS
1. Om Parkash
S/o Late Chet Ram,
R/o H. No. 431, Sector 7,
Urban Estate,
Gurgaon.
..........Accused No.1
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2. Bibianus Toppo
S/o Late Joseph Toppo,
R/o 14 G, Sector 4,
DIZ Area, Raja Bazar,
Gole Market, New Delhi-01
..........Accused No. 2
3. Harbhajan Yadav
S/o Late Sultan Singh Yadav,
R/o H. No. 949/1, Gali No. 4,
Ashok Vihar, Gurgaon,
Haryana.
..........Accused No. 3
4. Ram Chander
S/o Sh. Maman Ram,
R/o J-624, Sardar Colony,
Sector 16, Rohini,
Delhi-85
..........Accused No. 4
5. Sushma Bajaj
W/o Sh. Anil Bajaj,
R/o 1851, Outram Line,
Kingsway Camp, New Delhi-9
..........Accused No. 5
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6. G.D. Joshi
S/o Late K. D. Joshi,
R/o 676, Sector 8, R.K. Puram,
New Delhi
..........Accused No. 6
7. R.S. Rawat
S/o Late Bachan Singh Rawat,
R/o X-258, Sarojni Nagar,
New Delhi - 23
(Proceedings abated due to death
vide order dated 12.12.2014)
..........Accused No. 7
8. Anil Dhawan
S/o Late Madan Lal Dhawan,
R/o 254, DDA Flats, 1st Floor,
New Ranjit Nagar,
New Delhi-8.
..........Accused No. 8
9. Naieem Safi
S/o Sh. Salim Safi,
R/o A-296, DDA Flats,
1st Floor, New Ranjit Nagar,
New Delhi-8.
..........Accused No. 9
10. Kanwaljit Singh @ Raja
S/o Late Ishwar Singh
R/o 120B, 2nd Floor,
Old Gupta Colony,
Model Town, Delhi-9.
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..........Accused No.10
11. R.S. Dagar
S/o Late Layak Ram
R/o RZ-60, Lokesh Park,
Najafgarh,
New Delhi.
..........Accused No.11
Date of Institution : 20.04.2009
Date of judgement reserved on : 15.04.2015
Date of pronouncement of judgement : 05.05.2015
Appearance : Ms. Shashi Vishwakarma, Public Prosecutor
for CBI
Sh. Vipin Sanduja, Advocate, counsel
for accused no.1
Sh. R. Ramachandran, Advocate, counsel for
accused no. 2
Anil Gupta, Advocate, counsel for accused
No.3 & 5
Sh. Sukhvinder Singh, Advocate, counsel
for accused no. 4
Sh. Mritunjay Singh, Advocate, counsel for
accused no. 6
Sh. Ashwani Verma, Advocate, counsel for
accused no. 8, 10 and 11
Sh. Lalit Yadav, Advocate, counsel for
accused no. 9
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J U D G E M E N T :-
1. Facts in brief as unfolded from the charge-sheet are as under:-
(i) That an information was received in the office of CBI that during the period 2000-2004 S/Sh. Om Parkash, PRO (hereinafter, "A1"); Bibianus Toppo, Superintendent ("A2"); P. K. Kapoor, Superintendent (since deceased); Purshottam Lal, UDC; Harbhajan Yadav, UDC ("A3") all employees and working in Regional Passport Office (in short RPO), New Delhi entered into a criminal conspiracy with accused Anil Dhawan ("A8"), Naieem Safi ("A9") and others to cheat the RPO, New Delhi for obtaining various passports in the form of additional passport booklets by using similar personal particulars with different photographs and signatures of the passport holders.
(ii) In pursuance of the above criminal conspiracy, various passports in the form of additional passport booklets had been issued in the name of following persons:-
Sl. Name Father's Name Residential Address No.
(a) Mr. Rajender Mr. Mehar 87/C, Gali No. 4, Kumar Kapoor Chand Kapoor Krishna Nagar, Sarojni Nagar, New Delhi-29.
(b) Mr. Kamal Mr. Madan Lal 1/9619, Rohtas Nagar,
Sharma Shahadra, Delhi
(c) Ms. Rekha Late Mr. Raj F-163, New Usmanpur,
Khanna Kumar Khanna Delhi-53.
(d) Ms. Reena Mr. Janaki Dass 18/D, Pocket-A,
Khanna Dilshad Garden, Delhi
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(e) Mr. Sunil Mr. Agya Ram H. No. 35, Phase-1A,
Kumar Jolly Jolly Shiv Shankar Road,
Om Vihar, Uttam
Nagar, New Delhi-59.
(iii) The present charge-sheet pertains to the additional
passport booklets issued in the name of Mr. Sunil Kumar Jolly s/o Mr. Agya Ram Jolly, R/o H. No. 35, Phase-IA, Shiv Shankar Road, Om Vihar, Uttam Nagar, New Delhi-59.
(iv) It was alleged that Mr. Sunil Kumar Jolly had moved an application for issuance of passport and the said application was processed vide passport file No. A-10385 dated March 25, 1998 and thereafter, passport bearing No. A-5281337 dated May 5, 1998 was issued in his name. However, during investigation, Mr. Sunil Kumar Jolly could not be examined as he had expired on July 28, 2001.
(v) It was alleged that four applications were moved during the period September 24, 2002 to June 25, 2004 for issuance of additional passport booklets in the name and personal particulars of Mr. Sunil Kumar Jolly but with different photographs and signatures on each occasion. On the basis of said applications, four additional passport booklets were issued. Detail of applications, passport files and additional passport booklets are as under:-
S. Date of Passport file Number Additional No application Passport Booklet Number & date
1. 24.09.2002 T-7271 dated E-2465902 dated 24.09.02 (Ex.PW3/A) 25.09.2002
2. 22.05.2003 T-5652 dated E-5133382 dated CBI No. 24/09 Page 6 of 120 State through CBI v/s Om Parkash & others 22.05.03 (Ex. PW3/B) 27.05.2003
3. 28.08.2003 T-10604 dated E-6330965 dated 28.08.03(Ex. PW2/DA) 02.09.2003
4. 25.06.2004 Y-659 dated 25.06.04 E-8917124 dated (Ex. PW3/C) 29.06.2004
(vi) It was alleged that the first additional passport booklet was granted and signed by Om Parkash, RPO (A1) and second and third additional passport booklets were granted and signed by accused P. K. Kapoor, Superintendent (since deceased). The fourth additional passport booklet was granted and signed by Bibianus Toppo (A2).
(vii) It was alleged that during investigation real identity of the persons who actually travelled on the basis of said additional passport booklets in the name of Mr. Sunil Kumar Jolly could not be established.
(viii) It was further alleged that the applications for the issuance of first, second and third additional passport booklets were submitted by Anil Dhawan (A8) and all the passport application registration forms/applications forms for miscellaneous services were filled up by Anil Dhawan in his own handwriting and he had also signed on the said forms/applications as Sunil Kumar Jolly. On the basis of applications moved by Anil Dhawan (A8), first, second and third additional passport booklets as mentioned in the above table were issued in the name of above Sunil Kumar Jolly but with different photographs.
(ix) It was further alleged that second additional passport CBI No. 24/09 Page 7 of 120 State through CBI v/s Om Parkash & others booklet bearing no. E-5133382 was collected and received by accused Anil Dhawan (A8) from the Office of RPO, New Delhi by representing himself as Sunil Kumar Jolly and signing in the name of Sunil Kumar Jolly in the passport delivery register.
(x) It was alleged that accused Naieem Safi (A9) had collected third additional passport booklet as mentioned above from the Office of RPO by representing himself as Sunil Kumar Jolly and signing in the passport delivery register as Sunil Kumar Jolly.
(xi) It was alleged that application qua fourth additional passport booklet was filled up by Kanwaljit Singh @ Raja (A10). The said application was processed by Harbhajan Yadav (A3) and grant order was passed by Bibianus Toppo (A2). On the basis of said application, fourth additional passport booklet was issued.
(xii) It was alleged that accused Sushma Bajaj (A5), who was working as Assistant in the Office of RPO, cleared HIT in the first three additional passport booklets' files without pointing out about the issuance of earlier passport booklets in the name of Sunil Kumar Jolly and without pointing out dissimilarities in the photographs of original passport holders and applicants.
(xiii) It was alleged that accused Ram Chander (A4) had cleared HIT in fourth additional passport booklet file without pointing out the above.
(xiv) It was alleged that in the HIT Section, there was facility in the computer system to check the photographs and signatures of CBI No. 24/09 Page 8 of 120 State through CBI v/s Om Parkash & others earlier passport holders and in case of any dissimilarity, it was the duty of official working in HIT Section to point out the same. It was alleged that accused Sushma Bajaj (A5) and Ram Chander (A4) had not carried out the HIT intentionally and thereby additional passport booklets were issued in favour of fictitious persons.
(xv) It was alleged that from the report of handwriting expert, it was revealed that applications qua first three additional passport booklets were filled up by accused Anil Dhawan whereas application qua fourth additional passport booklet was filled up by accused Kawaljit Singh @ Raja (A10).
(xvi) It was further revealed that first three applications were signed by accused Anil Dhawan in the name of Sunil Kumar Jolly.
(xvii) It was further alleged that from the report of handwriting expert, it has also been revealed that second and third additional passport booklets were received by accused Anil Dhawan (A8) and Naieem Safi (A9) respectively by signing in the passport delivery register in the name of Sunil Kumar Jolly.
(xviii) It was further alleged that accused G. D. Joshi, UDC (A6) had delivered the second and third additional passport booklets whereas accused R. S. Rawat (A7) had delivered the fourth additional passport booklet.
(xix) It was alleged that though physical features of accused Anil Dhawan and Naieem Safi were different from the applicants, but CBI No. 24/09 Page 9 of 120 State through CBI v/s Om Parkash & others despite that accused G. D. Joshi and R. S. Rawat had delivered the additional passport booklets to them even though they did not have any authority letter from the applicants.
(xx) It was alleged that the above accused persons entered into a criminal conspiracy, object of which was to issue passports in the form of additional passport booklets fraudulently from Regional Passport Office, New Delhi. It was alleged that the passport officials abused their official position as public servants and in conspiracy with other accused persons did not ask the applicants to produce previous passport booklets for observation and cancellation and every time the original passport was shown to have been cancelled. It was alleged that the original passport could not be cancelled again and again and it could not be the basis for issuance of several additional passport booklets in the same name.
(xxi) It was alleged that since A1 to A7 and A11 are public servants, sanction qua them under Section 19 of Prevention of Corruption Act 1988 (in short PC Act) was obtained against them. Necessary sanction under Section 15 of Passport Act, 1967 was also obtained against all the accused persons.
(xxii) After completing investigation, challan was filed against the accused persons for the offences punishable under Section 120B read with Section 419/420/467/468/471/474 Indian Penal Code (in short IPC) and under Section 13(2) read with 13(1)(d) of PC Act, 1988 and 12 (1)(b) of PP Act, 1967 and substantive offences thereto.
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2. After complying with the provisions of Section 207 Code of Criminal Procedure (in short Cr. P.C), vide order dated April 7, 2010, learned Predecessor of this Court ordered to frame charges against the accused persons as under:-
Sl. Name of Charges ordered to be
No. Accused framed
1. Accused no. 1 to 7 & 11 Offences under Section 13 (2) read with Section 13(1) (d) of P C Act, 1988.
2. Accused no. 8 to 10 Offences under Section 420 IPC and Section 12(1)(b) of PP Act
3. Accused no. 8 & 9 Section 419/468/471 IPC
4. Accused no. 1 Section 467 IPC
5. Accused no. 2 Section 467 IPC
6. Accused no. 1 to 11 Section 120 B IPC read with Section 419/420/467/468/471 IPC and Section 13(2) read with 3(1) (d) of PC Act and Section 12(1)(b) of PP Act.
3. Accordingly, separate charges were framed against all the accused persons to which they pleaded not guilty and claimed trial.
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4. In order to bring home the guilt of accused persons, prosecution has examined as many as 23 witnesses. For the purpose of discussion and convenience, all witnesses have been classified in the following categories:-
Witnesses relating to accused Anil Dhawan (A8):
PW1 Pradeep Kumar Chawla, Director of
M/s Kanu Travels Care Private Limited.
PW17 Gurinder Singh Walia, Employer of A-8.
PW20 Dr. B.A. Vaid, Handwriting Expert, GEQD,
CFSL, Shimla.
Officials of RPO Office, New Delhi:
PW2 Tara Chand
PW3 Sh. M. S. Thapar
PW4 Ms. Suman Kr. Sehgal
PW5 Sh. Puran Chand
PW6 Sh. I. M. Sahbarwal
PW7 Sh. Ajai Gautam
PW8 Sh. Jeevan Singh
PW9 Sh. Raj Singh
PW10 Sh. Ravi Kant Sharma
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PW11 Sh. Amit Kumar
PW12 Ms. Veena Gupta
PW16 Sh. S. P.Kothari
Witnesses qua Sunil Kumar Jolly:
PW13 Sh. Harinder Pal
PW14 Sh. Sumer Singh
PW15 Sh. Subhash Puri
PW18 Sh. Bhupinder Pal Singh
PW19 Sh. Kartar Singh
Witness qua sanction:
PW21 Sh. R. Swaminathan, the then Joint
Secretary CPV (Councillor PP visa and
Chief PP Officer, Ministry of External
Affairs, New Delhi)
CBI Officials:
PW22 A.K.Tripati, investigating officer
PW23 Sh. R.K.Aggarwal, the then DSP and CBI
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5. On culmination of prosecution evidence, accused
persons were examined under Section 313 Cr.P.C. In their statements, all accused except Bibianus Toppo (A2), G. D. Joshi (A6) and R. S. Rawat (A7) submitted that they did not wish to lead any evidence in their defence. Though A2, A6 and A7 in their respective statements recorded under Section 313 Cr.P.C submitted that they would lead evidence in their defence, yet during trial they failed to lead evidence in their defence, accordingly, defence evidence on their behalf was closed. However, A2 had filed certified copy of one document, which is marked Ex. D1.
(A) Accused No. 1 in his statement recorded under Section 313 Cr. P.C ether denied all the incriminating evidence led by prosecution or expressed his ignorance about the same. It was submitted that he had made endorsement on the file Ex. PW3/A as counter clerk put up the file before him after completing all formalities and further submitted that sanction qua him is defective as PW21 failed to produce any document to show that he had taken the approval from competent authority i.e. Minister of State (External Affairs).
B Accused No.2 in his statement recorded under Section 313 Cr.P.C denied all the incriminating evidence led by prosecution and further submitted:-
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(i) That there were administrative instructions by way of various circulars that the additional passport booklets should be issued to applicants subject to Index/HIT and PAC check within 3-5 days, preferably on the same day. As in the present case, there was no adverse remarks of HIT/PAC or from any other section of RPO, the file was cleared in routine manner.
(ii) That no facility was provided in the computers of PIAs to check/compare photographs, signatures and old references of the applicants and even no instrument was provided to PIAs to detect correctness of the enclosures.
(iii) That he (A2) was overburdened as he was looking after miscellaneous work as well as additional passport booklets services, thus he used to deal with more than 300 files in a day.
(iv) That there is no evidence to prove the conspiracy with the accused persons. It was further urged that in his absence, certain files were dealt with by other PIAs. Had he been in conspiracy with the counter clerk or any other accused, counter clerk would not have sent the files to other PIAs.
(v) That PIAs who acted similar role in other cases were not charge-sheeted by the CBI or if charge-sheeted, they were acquitted.
Even no departmental action was initiated against them.
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(vi) Qua sanction, it was submitted that the sanction is defective as the same had been given without any approval from the competent authority; without application of mind. It was further submitted that he has been falsely implicated in this case.
(C) Accused Harbhajan Yadav (A3) also denied all incriminating evidence led by prosecution and submitted that during relevant time, no facility was provided to the counter clerk in his computer to check photographs, signatures and old references of the applicants. Furthermore, along with the additional passport booklets files, previous passport file of the applicant was not used to be sent for perusal of the counter clerk and he did not have any instrument or machine to detect correctness of the annexures annexed with application/ forms. Counter clerk did not have any instrument to check or verify the documents produced by the applicant.
(i) It was further submitted that the procedure for issuance of additional passport booklets was liberalised by issuing various administrative instructions through various circulars wherein directions were given to PIAs that additional passport booklets should be issued subject to Index/HIT and PAC check within 3-5 days, preferably on the same day and in the instant case, there was no adverse remark from PAC/HIT or from any other section.
(ii) It was further submitted that at the relevant time, he used to work at counter in pre-lunch session and as dealing assistant in post lunch session, thus he was overburdened at the relevant time.
CBI No. 24/09 Page 16 of 120State through CBI v/s Om Parkash & others (D) Accused Ram Chander (A4) and Sushma Bajaj (A5) also either denied all incriminating evidence led by prosecution or expressed their ignorance about the same and further submitted that their 'P' number had been wrongly reflected in the data made available in the file by CBI and officials also failed to protect the data and they also failed to seize the data as well as hard-disk of the computer section. It was further submitted that there was no procedure for sealing or lamination of the photographs and signatures of applicants after verification from HIT Section, thus photographs could be changed at any point of time after HIT clearance. It was further submitted that accused were not dealing with the public persons directly or indirectly at the time of dealing with the file pertaining to passports/additional passport booklets.
(E) Similarly, accused G.D. Joshi (A6) and R.S. Rawat (A7) also denied all incriminating evidence led by prosecution and submitted that they have been falsely implicated in this case and they are innocent.
(F) Accused Anil Dhawan (A8) in his statement recorded under Section 313 Cr.P.C denied each and every allegation levelled by the prosecution and submitted that he has been falsely implicated in this case by the investigating agency to save Mr. G. S.Walia.
(G) Accused Naieem Safi (A9) also either denied incriminating evidence led by prosecution or expressed his ignorance CBI No. 24/09 Page 17 of 120 State through CBI v/s Om Parkash & others about the same and submitted that he has been falsely implicated in this case and all the witnesses are either interested or planted.
(H) Accused Kanwaljit Singh @ Raja (A10) and accused R. S. Dagar (A11) also either denied all incriminating evidence led by prosecution or expressed their ignorance about the same and submitted that they have been falsely implicated in this case.
6. During the pendency of trial, accused R.S. Rawat (A7) had expired, consequently, proceedings qua him were abated on December 12, 2014.
7. I have heard rival submissions advanced by counsel for the parties, perused their written submissions as well as material available on record. Their submissions shall be dealt with in detail at the time of giving findings against the accused persons.
Contentions and findings qua charges for the offences punishable u/s 467/468/471 IPC :
8. Charge was framed for the offence punishable under Section 468 IPC against accused Anil Dhawan (A8) and Naieem Safi (A9) whereas a charge for the offence punishable under Section 467 IPC was framed against accused Om Parkash (A1) and Bibianus Toppo (A2).
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9. Prosecution has set up a case that accused Anil Dhawan (A8) and accused Naieem Safi (A9) had committed the offence punishable under Section 468 IPC as had dishonestly and knowingly forged passport application registration forms, in respect of third additional passport booklet bearing No. E-6330965, file of which is Ex. PW2/DA. As per prosecution version signatures marked as Mark Q277, Q280, Q283, Q285, which are in the name of Sunil Kumar Jolly had been signed by accused Anil Dhawan. Similarly, on the request letter Ex. PW17/B, accused Anil Dhawan also signed in the name of Sunil Kumar Jolly and the signatures are marked as Mark Q288 and Q289. Besides that, it was also alleged that accused Anil Dhawan had received second additional passport booklet bearing No. E- 5133382 from the office of RPO by representing himself as Sunil Kumar Jolly and signing in the delivery register in the name of Sunil Kumar Jolly. His signature in delivery register is marked as mark Q2. At the time of receiving the said additional passport booklet, accused Anil Dhawan also acknowledged the receipt of said additional passport booklet in the file Ex. PW3/B and his signature to that effect is marked as Mark Q262.
(i) It was alleged that since accused Anil Dhawan had signed on the passport application registration form; application form for miscellaneous services and passport delivery register in the name of Sunil Kumar Jolly knowingly well that he was not Sunil Kumar Jolly, thus he had committed forgery.
10. Similarly, prosecution has set up a case against accused Naieem Safi that he had received third additional passport CBI No. 24/09 Page 19 of 120 State through CBI v/s Om Parkash & others booklet bearing No. E6330965 from the office of RPO, New Delhi and at the time of receiving the same, he had signed in passport delivery register, his handwritings qua the same is marked Q5 and simultaneously, he also acknowledged the receipt of passport on application form for miscellaneous services (Ex. PW13/E) and his writings is Marked Q279. It was alleged that accused Naieem Safi had signed in the passport delivery register and application form for miscellaneous services in the name of Sunil Kumar Jolly knowingly well that he was not Sunil Kumar Jolly, thus he is also liable for forgery.
11. Prosecution has also set up a case against accused Om Parkash and Bibianus Toppo that they had signed and issued first additional passport booklet bearing No. E2465902 in favour of fictitious person, thus they are also liable for the offence punishable under Section 467 IPC.
12. Now question arises as to whether above acts of accused persons amount forgery as defined under Section 463 IPC or not?
(i) To prove forgery, prosecution is duty bound to satisfy the ingredients of making of false document as defined under Section 464 IPC, which reads as under:-
464. Making a false document:- A person is said to make a false document or false electronic record:-CBI No. 24/09 Page 20 of 120
State through CBI v/s Om Parkash & others First-Who dishonestly or fraudulently-
(a) makes, signs, seals or executes a document or part of a document;
(b) makes or transmits any electronic record or part of any electronic record;
(c) affixes any electronic signature on any electronic record;
(d) makes any mark denoting the execution of a document or the authenticity of the electronic signature, with the intention of causing it to be believed that such document or part of document, electronic record or electronic signature was made, signed, sealed, executed, transmitted or affixed by or by the authority of a person by whom or by whose authority he knows that it was not made, signed, sealed, executed or affixed; or Secondly- Who, without lawful authority, dishonestly or fraudulently, by cancellation or otherwise, alters a document or an electronic record in any material part thereof, after it has been made, executed or affixed with electronic signature either by himself or by any other person, whether such person be living or dead at the time of such alternation; or Thirdly-Who dishonestly or fraudulently causes any person to sign, seal, execute or alter a document or an electronic record or to affix his electronic signature on any electronic record knowing that such person by reason of unsoundness of mind or intoxication cannot, or that by reason of deception practised upon him, he does not know the contents of the document or electronic record or the nature of the alternation.
Explanation No.1: A man's signature of his own name may amount to forgery.
CBI No. 24/09 Page 21 of 120State through CBI v/s Om Parkash & others Explanation No.2: The making of a false document in the name of a fictitious person, intending it to be believed that the document was made by a real person, or in the name of deceased person, intending it to be believed that the document was made by the person in his lifetime, may amount to forgery.
(emphasis supplied)
(ii) Indisputably, accused Om Parkash and Bibianus Toppo were acting as PIAs and being the PIA, they were otherwise competent to sign and issue additional passport booklet. Thus, mere fact that they had signed and issued the additional passport booklets bearing No. E2465902 is ipso-facto not sufficient to satisfy the essential ingredients of Section 464 IPC. Since A1 and A2 were otherwise competent to sign and issue the said additional passport booklet, thus it cannot be said that they had issued the additional passport booklet with an intention to make others to believe that the said additional passport booklet was issued under the authority of any other person. To my mind, their act even does not fall either of the explanations appended to Section 464 IPC. In the absence of any other cogent evidence on record, I am of the view that there is no scintilla of evidence to bring home the guilt of A1 and A2 for the offence punishable under Section 467 IPC.
13. In order to bring home the guilt of accused Naieem Safi for the offence punishable under Section 468 IPC, prosecution has relied upon the report of handwriting expert in respect of Q5 and Q279. However perusal of the report of handwriting expert (Ex.
CBI No. 24/09 Page 22 of 120State through CBI v/s Om Parkash & others PW20/E) makes it clear that the said report is silent qua Q5. As per prosecution version, accused Naieem Safi had written Q5 in passport delivery register at the time of receiving the third additional passport booklet. Since the report Ex. PW20/E is silent qua Q5, thus prosecution failed to establish that accused Naieem Safi had collected the said additional passport booklet from the office of RPO, New Delhi by putting his signature in passport delivery register in the name of Sunil Kumar Jolly.
(i) No doubt, handwriting expert report (Ex. PW20/E) is positive qua Q279. As per prosecution version, Q279 was written by the accused Naieem Safi on miscellaneous application form at the time of acknowledging the receipt of said additional passport booklet. However, it is pertinent to mention here that Q279 was not identified by any of the witnesses examined by prosecution during trial. In other words, the entire prosecution case is based on the report Ex. PW20/E.
(ii) Perusal of the said report reveals that the finding was given on the basis of only one letter "S'. The relevant portion of the report reads as under:-
"Questioned writings as appeared in Q279 also show characteristic similarities with relevant standard writings. Some of such similarities are:
manner of execution of first character appearing as 'S' with nature and location of its star, its upper and lower curves and its combination with succeeding stroke through a loop together with nature of above loop; combination with succeeding stroke through a loop together with CBI No. 24/09 Page 23 of 120 State through CBI v/s Om Parkash & others nature of above loop; manner of execution of various strokes after the letter appearing as 'S' with their nature of joining with preceding and succeeding stroke together with their relative location; manner of execution of final character with nature of its start, it is curved part and its combination with underscoring; similar manner of execution of underscoring."
14. As per prosecution version, Q279 was compared with specimen writings S1 to S15. However, perusal of the said specimen writings reveals that these are four different set of writings of accused Naieem Safi (A9). S1 to S4 relates to one set; S5 to S8 relates to second set of the writings. S9 to S12 relates to third set of writings and S13 to S15 relates to fourth set of the writings. However, in the reasons Ex. PW20/F, it is not specified, which set of specimen handwritings qua Q279 was examined and finding was given. Moreover, from the reasons Ex. PW20/F, it becomes clear that the finding was given only on the basis of similarity found in respect of only letter i.e. 'S'. Even no finding was given that Q5 and Q279 were written by one and the same person. Indisputably, prosecution has set up a case that Q5 and Q279 were written by accused Naieem Safi but this version is not corroborated by PW20 in his report. This shows that there are some dissimilarities between Q5 and Q279. In this peculiar facts and circumstances of the case, I am of the view that it will not be safe to record conviction on the basis of above finding of PW20.
(i) Prosecution failed to produce any other cogent evidence on record to prove the fact that accused Naieem Safi had either visited the office of RPO on that day or he had received the said additional passport booklet from RPO either by representing himself CBI No. 24/09 Page 24 of 120 State through CBI v/s Om Parkash & others as Sunil Kumar Jolly or signing in the passport delivery register in the name of Sunil Kumar Jolly. In these circumstances, I am of the considered opinion that accused Naieem Safi is entitled for benefit of doubts.
15. In order to bring home the guilt of accused Anil Dhawan for the offence punishable under Section 468 IPC in respect of third additional passport booklet bearing No. E-6330965, prosecution has placed reliance on the signatures (Q277, Q280, Q283, Q285, Q288 and Q289) which were allegedly signed by accused Anil Dhawan on the passport registration form, miscellaneous application and request letter at the time of obtaining third additional passport booklet.
(i) As per prosecution version S16 to S35 are the specimen handwritings of accused Anil Dhawan, which were taken by investigating officer PW22 during investigation. However, the handwriting expert report (Ex. PW20/E) is silent qua the above questioned writings. In other words there is no admissible evidence on record to prove that Q277, Q280, Q283, Q285, Q288 and Q289 were written by accused Anil Dhawan. Even none of the witnesses examined by prosecution had identified the said writings as writings of accused Anil Dhawan.
(ii) In order to prove the guilt of accused Anil Dhawan for the offence punishable under Section 468 IPC, prosecution also placed reliance on Q2, which was allegedly written in passport deliver register and Q262, which was allegedly written by A8 on miscellaneous form Ex. PW13/D at the time of receiving the second additional booklet CBI No. 24/09 Page 25 of 120 State through CBI v/s Om Parkash & others bearing No. E-5133382. No doubt, as per Ex. PW20/E, Q2 and Q262 were written by the person who authored S16 to S35 and A1 to A23. But question arises whether the said piece of evidence is sufficient to record conviction against accused Anil Dhawan for the offence punishable under Section 468 IPC or not?
(iii) It is admitted case of prosecution that accused Anil Dhawan was an employee of PW17 Gurvinder Singh Walia and during trial, he had identified certain writings of accused Anil Dhawan but he did not identify Q2 and Q262 as the writings of accused Anil Dhawan. It is also admitted case of prosecution that at the time of applying for first, second and third additional passport booklet, accused Anil Dhawan had signed at the passport application registration form as well as miscellaneous application forms at various places in the name of Sunil Kumar Jolly and such writings are marked Q243, Q245, Q246, Q249, Q251, Q260, Q262, Q263, Q266, Q268, Q277, Q280, Q283, Q285. But surprisingly, the handwriting expert report Ex. PW20/E is silent qua the said signatures except Q262.
(iv) Further perusal of Q2 reveals that it is in three parts. In first part, name of Sunil Kumar Jolly is written; in second part, additional passport booklet is mentioned and in the third part, signature of Sunil Kumar Jolly is there. Q262 is also in three parts; first part contains the receiving of passport; second part contains the signature of Sunil Kumar Jolly and third part contains the date i.e. July 2, 2003.
(v) Thus, only one part is common in Q2 and Q262 i.e. CBI No. 24/09 Page 26 of 120 State through CBI v/s Om Parkash & others signature of Sunil Kumar Jolly. It is pertinent to state that Q262 appeared on Ex. PW13/D. Admittedly, Q263 also appeared on the said exhibit and prosecution case is that accused Anil Dhawan is also the author of Q263. But surprisingly, handwriting expert report (Ex. PW20/E) is silent qua the said writing.
(vi) No doubt in view of the judgement Murari Lal v/s. State of MP, AIR 1980 SC 531, there is ho hurdle in recording conviction on the sole testimony of handwriting expert. But considering the peculiar facts and circumstances of the case especially that handwriting expert failed to give any finding qua other signatures purportedly to be signed by accused Anil Dhawan, I am of the considered opinion that it would not be safe to record conviction against accused Anil Dhawan on the basis of uncorroborated report qua Q2 and Q262 in Ex. PW20/E, thus in my opinion accused Anil Dhawan is also entitled for benefit of doubt, hence deserves acquittal from the charge of forgery punishable under Section 468 IPC.
16. A separate charge for the offence punishable under Section 419 IPC was also framed against accused Anil Dhawan and Naieem Safi alleging that they had collected second and third additional passport booklets respectively by representing themselves as Sunil Kumar Jolly and in order to prove their guilt, prosecution has relied upon the handwriting expert's report Ex. PW20/E and its reasons Ex. PW20/F in respect of Q2, Q262, Q5 and Q279.
(i) As already held that it would not be safe to record conviction on the basis of uncorroborated report Ex. PW20/E and the CBI No. 24/09 Page 27 of 120 State through CBI v/s Om Parkash & others fact that there is no other admissible evidence on record to prove the fact that the above accused persons had collected the said additional passport booklets from RPO, New Delhi at any point of time by representing themselves as Sunil Kumar Jolly, thus I am of the considered opinion that prosecution has also failed to bring home their guilt for the offence punishable under Section 419 IPC beyond the shadow of all reasonable doubts.
17. A separate charge for the offence punishable under Section 471 IPC had also been framed against accused Anil Dhawan and Naieem Safi alleging that they had used forged additional passport application form and additional booklets in the name of Sunil Kumar Jolly as genuine documents. As already held that prosecution has failed to establish that the signature appearing on the passport application registration forms and miscellaneous application forms were signed either by accused namely Anil Dhawan or Naieem Safi, thus it cannot be said that they had used the said form as forged document because the said documents do not satisfy the essential ingredients of Section 464 IPC.
(i) Though it was alleged that the said accused persons also used additional passport booklets in the name of Sunil Kumar Jolly as genuine document, but during trial prosecution failed to produce any evidence in this regard. CBI even failed to recover any of such additional passport booklets. There is no iota of admissible evidence on record to establish that either of the above accused persons had used any such additional passport booklet at any point of time. In these circumstances, I am of the considered opinion that prosecution CBI No. 24/09 Page 28 of 120 State through CBI v/s Om Parkash & others has also failed to prove the guilt of accused persons for the offence punishable under Section 471 IPC.
Contentions relating to accused G. D. Joshi :
18. Prosecution has set up a case against accused G.D.Joshi that since he had delivered second additional passport booklet bearing No. E-5133382 to accused Anil Dhawan and third additional passport booklet bearing no. E-6330965 to accused Naieem Safi, he was also involved in the alleged conspiracy.
(i) In order to prove the culpability of accused G. D. Joshi, prosecution has placed reliance on the duty roster Ex. PW6/D and Ex. PW2/DB. Besides that prosecution also placed reliance on the deposition of PW22 who deposed that during investigation it was revealed that the person who used to register passport application registration form also used to deliver the prepared passport booklets to the applicants and since in the instant case, applications qua second and third additional passport booklet were registered by accused G.D. Joshi, thus there is a presumption that he had delivered the same to the applicants.
(ii) Perusal of Ex. PW6/D reveals that accused G.D.Joshi had dealt with the file in respect of second additional passport booklet on May 22, 2002 by doing registration of application. Similarly, as per Ex. PW2/DB, G. D. Joshi had dealt with the file in respect of third additional passport booklet on August 28, 2003 by doing registration.
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(iii) It is admitted case of prosecution that second passport booklet was prepared on May 27, 2003 whereas third additional passport booklet was prepared on September 2, 2003 and this fact is established from the document Ex. PW6/D and PW2/DB. However, there is nothing in the said documents that either on May 27, 2003 or on September 2, 2003, the above passport booklets were delivered by accused G. D. Joshi either to accused Anil Dhawan or Naieem Safi. In other words, both the documents Ex. PW6/D and Ex. PW2/DB are totally insufficient to prove the culpability of accused G. D. Joshi.
(iii) Now coming to the deposition of PW22 A. K. Tripathi. When a specific question was asked from PW22 whether any witness told him that accused G. D. Joshi had delivered the passport in this case, PW22 replied that he did not remember but swiftly added that witnesses from RPO Office told him that the official who used to do registration of application for issuance of passport also used to deliver the passport after its preparation. But he failed to disclose who told him this fact. In his cross-examination, he further deposed that he did not enquire about the situation if an official proceeded on leave after doing registration, who would deliver the prepared additional passport booklet in that event. This shows that PW22 had not investigated the matter thoroughly.
(iv) Moreover, there is no substance in the deposition of PW22 that the official who used to do registration was also required to deliver the passport as there is nothing in the document Ex. PW6/D and Ex. PW2/DB. Had it been so it would have been reflected in the computer-sheet Ex. PW6/D and Ex. PW2/DB.
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(v) PW6 in his cross-examination deposed that there is no designated post in the office of RPO to deliver passports. He further clarified that any official in RPO could be deputed to deliver passports under the verbal order of RPO or in-charge of Administration. He further testified that the name of official who delivered the said passport to the applicant is not mentioned in Ex. PW6/D and Ex. PW2/DB. When a question was asked in this regard from PW22, he eluded the same by deposing that he did not know whether there was any designated post in RPO to deliver the passport or not. This further shows that PW22 had not conducted thorough investigation to find out who delivered the prepared passport booklets to the accused persons.
(vi) Surprisingly, PW22 in his cross-examination admitted that as per Ex. PW6/C the application qua first additional passport booklet was registered by Mr. Brij Mohan. If the official who registered the application was supposed to deliver the prepared passport, then Brij Mohan should also have been impleaded as an accused in respect of first additional passport booklet but PW22 admitted in his cross-examination that Mr. Brij Mohan had not been impleaded as an accused in this case. This shows that PW22 had acted arbitrarily while impleading G. D. Joshi as an accused in this case.
(vii) I have perused the testimony of witnesses examined by prosecution, but none of the witnesses deposed that accused G. D. Joshi had delivered the above said additional passport booklets either to accused Anil Dhawan or Naieem Safi.
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(viii) I have also seen the passport delivery register. It is shocking to know that there is nothing in the said register which may suggest who was maintaining the said register. No official used to sign in the said register. All entries made in the register appearing to be made by the persons who collected their respective passports. Even during investigation, no sincere effort was made to know who was on duty on that particular day when the said additional passport booklets were allegedly delivered.
(ix) From the ongoing discussion, it becomes crystal clear that there is no iota of admissible evidence against accused G. D. Joshi, hence I am of the view that CBI has miserably failed to prove the culpability of accused G. D. Joshi, accordingly I hereby acquit him from all the charges.
Contentions relating to R. S. Dagar :
19. Prosecution has set up a case against the accused R. S. Dagar (A11) that during investigation, PW S. P. Kothari informed the investigating officer that he had checked the passport file bearing No. T-7271/2002. But during trial, Mr. S. P. Kothari (PW16) did not utter even a single word against accused R. S. Dagar. Similarly, though PW22 A. K. Tripathi in his examination-in-chief deposed that he had filed the charge-sheet against the accused persons including R. S. Dagar after satisfying himself but in his entire deposition, he failed to attribute any role to accused R. S. Dagar. On specific asking, learned Public Prosecutor also failed to point out any incriminating evidence against accused R. S. Dagar. In these CBI No. 24/09 Page 32 of 120 State through CBI v/s Om Parkash & others circumstances, I am of the considered opinion that there is no scintilla of admissible evidence against accused R. S. Dagar, thus prosecution has miserably failed to connect the accused R. S. Dagar in the conspiracy, hence I hereby acquit him from all the charges.
Contentions and findings qua accused Anil Dhawan (A8) and Kanwaljit Singh @ Raja (A-10):
20. Prosecution has set up a case against both the accused persons that they had filled up passport application registration forms and application forms for miscellaneous services in favour of different applicants in the name of Sunil Kumar Jolly with different photographs. As per prosecution version, accused Anil Dhawan had filled up above forms and applications in respect of first three additional passport booklets whereas accused Kanwaljit Singh @ Raja had filled up form and application in respect of fourth additional passport booklet.
21. Before dealing with the contentions raised by counsel for the parties, it is pertinent to highlight that original passport bearing No. A-5281337 dated May 05, 1998 was issued in the name of Sunil Kumar Jolly s/o Agya Ram Jolly. As per passport file Ex. PW10/A, Sunil Kumar Jolly had moved an application to obtain a passport on March 25, 1998 and after completing all necessary formalities, above said passport was issued in his favour on May 05, 1998. During investigation, it was revealed that the passport holder i.e. Sunil Kumar Jolly had died on July 28, 2001.
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(i) Though during trial, in order to prove the genuineness of passport holder Sunil Kumar Jolly and authenticity of original passport, prosecution had examined several witnesses, yet no purpose would be achieved to analyse their depositions as counsel appearing for the accused persons did not raise any kind of dispute either about the authenticity/genuineness of the original passport or the identity of the passport holder or the death of original passport holder.
22. As per prosecution version, applications for additional passport booklets were moved during the period September 2002 to June 2004. In other words, applications were moved after the death of original passport holder named Sunil Kumar Jolly.
23. Prosecution has also set up a case against accused Anil Dhawan that he was working with PW17 G.S. Walia and in order to prove this fact, prosecution has placed reliance on the deposition of PW1 and PW17. However, counsel appearing for accused Anil Dhawan vehemently contended that no reliance can be placed on their deposition as PW1 deposed that there were two employees in the company but no effort was made to trace out the second employee. Learned defence counsel further contended that accused Anil Dhawan never worked with PW17, thus PW17 was not in a position to identify the handwriting of accused Anil Dhawan.
24. In this regard, deposition of PW1 and PW17 are relevant.
(i) PW17 G.S. Walia in his examination-in-chief deposed CBI No. 24/09 Page 34 of 120 State through CBI v/s Om Parkash & others that he was running a company M/s Kanu Travels Care Pvt. Ltd. since 1991, in which he was one of the directors and testified that Anil Dhawan was his employee. He further deposed that in the year 2002, he had started a partnership firm in the name and style of M/s Jas Air and in the said firm also Anil Dhawan was working and his job was to provide assistance to clients in getting visa; issuance of passport; to deliver tickets to clients; to collect payments from clients; to go to Embassy and Passport Office for getting visa and passports for clients.
(ii) PW1 Mr. Pradeep Kumar Chawla deposed that he was also one of the directors in M/s Kanu Travels Care Pvt. Ltd. and the said company was closed in 2002 and further deposed that in the said company there were two employees; one of them was Anil Dhawan. Thus, PW1 corroborated the testimony of PW17. Since, A8 did not deem it appropriate to cross-examine PW1 Mr. Pradeep Kumar Chawla, thus the testimony of PW1 remained unchallenged during the trial.
(iii) Though A8 had cross-examined PW17 Mr. G. S. Walia at length, yet during his cross-examination, no dispute was raised to the extent that he was not working with him. In other words, the testimony of PW17 to the extent that he was working initially in M/s Kanu Travels Care Pvt. Ltd. and thereafter, in Jas Air remained unrebutted.
(iv) In his statement recorded under Section 313 Cr. P.C, A8 had not denied the fact that he was not working with PW17 at the CBI No. 24/09 Page 35 of 120 State through CBI v/s Om Parkash & others relevant time. On the contrary, he took a plea that he had been made a scape goat by the investigating agency to save Mr. G.S. Walia. During trial, A8 also failed to produce any evidence to show that he was working somewhere else and not in the company/firm of PW17 as deposed by him. In the absence of any contrary evidence on record, I do not find any reason to disbelieve the testimony of PW1 and PW17 to the extent that initially accused Anil Dhawan was working in M/s Kanu Travels Care Pvt. Ltd. till 2002 and when it was closed, he started working in the partnership firm M/s Jas Air in which PW17 was one of the partners.
(v) In these circumstances, I do not find any substance in the contention of learned counsel for A8 that there is no evidence to prove the fact that A8 was an employee of PW17. Since, it has been established that A8 was an employee of PW17, I also do not find any merit in the contention of learned counsel for A8 that since PW22 failed to seize any documentary evidence regarding the employment of A8 and PW22 had not made any inquiry from the premise where the said company/firm was being run to prove the fact that A8 was working in the aforesaid company/firm, no reliance can be placed on the deposition of PW1 and PW17.
25. Next question crop up for adjudication whether the recovered 'Day Book' belonged to M/s Jas Air or not as learned counsel appearing for A8 vehemently contended that there is no evidence on record to prove that the recovered 'Day Book' belonged to his firm.
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(i) In this regard, testimony of PW17 G.S. Walia is relevant. During his deposition, original 'Day Book' was shown to PW17 from CC No. 08/12 and after seeing the same, PW17 deposed that the said 'Day Book' belonged to his firm. He also identified his writing as well as writing of accused Anil Dhawan in the said 'Day Book'. No doubt, in his cross-examination, PW17 deposed that the said 'Day Book' does not bear any official stamp or mark of M/s Jas Air to show that the 'Day Book' pertains to the said firm, but to my mind, the said lapses are insufficient to discard the testimony of PW17, who is one of the partners in the said firm and categorically deposed that the 'Day Book' belonged to his firm and the fact that there is no contrary evidence to this. Thus, this Court has no reason to disbelieve the testimony of PW17 to that extent.
26. Next question emerges for adjudication whether PW17 is a competent person to identify the handwriting of A8 or not as counsel appearing for accused raised an objection that since PW17 did not have any expertise in identification of handwriting, no reliance can be placed on his testimony.
(i) As already held that A8 was one of the employees of PW17, thus he had an opportunity to see A8 to write and sign. From the testimony of PW1 Mr. Pradeep Kumar Chawla and PW17 Mr. G. S. Walia, it also becomes perspicuous that A8 had worked with PW17 for a considerable long time i.e. during 1991 to 2004 as earlier he was working in M/s Kanu Travels Care Pvt. Ltd. and thereafter, in his firm M/s Jas Air. Thus, the testimony of PW17 wherein he identified certain writings of A8 becomes relevant under Section 47 of Indian Evidence CBI No. 24/09 Page 37 of 120 State through CBI v/s Om Parkash & others 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 the ordinary course of business, documents purporting to be written by that person have been habitually submitted to him.
(emphasis supplied)
(ii) In view of Section 47 of Indian Evidence Act, I do not find any substance in the contention raised by learned defence counsel.
27. Now coming to the passport application registration forms and applications form for miscellaneous services in respect of first three additional passport booklets. The file of first three additional passport are exhibited as Ex.PW3/A, Ex.PW3/B and Ex.PW2/DA respectively. According to prosecution version, the passport application registration forms in the said files were filled up by accused Anil Dhawan and his writings are marked Q244, Q261, Q278. Similarly, as per prosecution version, application forms for CBI No. 24/09 Page 38 of 120 State through CBI v/s Om Parkash & others miscellaneous services in the said files were filled up by accused Anil Dhawan and his writing are marked Q247, Q248, Q250, Q264, Q265, Q267, Q281, Q282 and Q284. Similarly, as per prosecution version, request letters submitted along with the said forms and applications are also in the handwriting of accused Anil Dhawan and the relevant portions are marked as Q254, Q274 and Q287.
(i) As per prosecution version, passport application registration form and application forms for miscellaneous services in respect of fourth additional passport booklet, file of which is Ex.PW3/C were filled up by accused Kanwaljit Singh @ Raja (A10). As per prosecution version, Q297 (on the passport application registration form), Q300, Q301 and Q303 (on the application form for miscellaneous services) and Q309 (on the request letter) are in the handwriting of accused Kanwaljit Singh @ Raja.
28. During investigation, investigating officer had taken specimen handwritings of both the accused persons. As per prosecution, S16 to S35 are specimen writings of accused Anil Dhawan whereas S71 to S92 belong to accused Kanwaljit Singh @ Raja. PW22 proved the said specimen writings in his examination-in- chief by categorically deposing that he had taken their specimen writings and the accused persons had given their specimen writings voluntarily. Though PW22 was cross-examined at length, yet his testimony to that extent remained unchallenged. In other words, during trial, accused persons had not challenged their specimen writings.
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29. During investigation, CBI had sent above questioned and specimen writings along with the writings of accused Anil Dhawan bearing on the 'Day Book' and on the form of Kanu Priya Gombar and Padmini Malpani. The said writings are marked A1 to A23 and the same had also been identified by PW17 in his deposition.
30. The above questioned writings/specimen writings were examined by PW20 Dr. B.A. Vaid. His report is Ex.PW20/E and reasons given in respect of his report are Ex.PW20/F. From the report Ex. PW20/E, it becomes clear that Q244, Q247, Q248, Q250, Q254, Q261, Q264, Q265, Q267, Q278, Q281, Q282, Q284, Q287 and S16 to S35 and A1 to A23 have been written by one and the same person. As the specimen writings marked S16 to S35 belonged to accused Anil Dhawan, it means that accused Anil Dhawan was the author of the questioned writings.
31. It is evident from Ex.PW20/E that Q297, Q300, Q301, Q303, Q309 and S71 to S92 have been written by one and the same person. Since, the specimen writings were of accused Kanwaljit Singh @ Raja, it means that accused Kanwaljit Singh @ Raja was the author of the above questioned writings.
32. Now question arises as to whether any reliance can be placed on the deposition of PW20 or not?
(i) PW20 is an independent person and was working as Deputy Government Examiner of questioned documents at CFSL, Shimla at the relevant time. He is not only an independent person but CBI No. 24/09 Page 40 of 120 State through CBI v/s Om Parkash & others also well experienced person as he deposed that he had more than 34 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. Thus, it becomes clear that the questioned writings were not only examined by an independent and experienced examiner but simultaneously, same were also examined by another examiner.
(ii) PW20 Dr. B. A. Vaid in his examination-in-chief proved his report as Ex. PW20/E and also proved the reasons furnished in support of his opinion and same are Ex. PW20/F.
(iii) PW20 had recorded the reasons in Ex.PW20/F to arrive at the conclusion as mentioned in his report Ex.PW20/E. Thus, it can safely be culled out that the conclusions arrived at by PW20 are based on detailed reasons as mentioned in Ex.PW20/F.
(iv) Though PW20 was cross-examined at length by counsel for accused persons but nothing has been come out in his cross-examination which may cast any dent either in his deposition or in his report.
(v) No doubt, an attempt has been made to cause a dent in the report of PW20 by putting a question that handwriting science is not a perfect science but this suggestion was denied by PW20 by deposing that handwriting identification is a perfect science and a definite opinion can be given provided suitable and sufficient data are CBI No. 24/09 Page 41 of 120 State through CBI v/s Om Parkash & others available and he clarified that in the instant case, sufficient and suitable data were provided. 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, PW20 deposed that Mr. N. C. Sood is still alive but prosecution was not required to bring him in the witness box when PW20 had 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 PW20, which is otherwise trustworthy and admissible. Moreover, if accused persons think that the deposition of Mr. N.C. Sood would help them to prove their innocence, they could easily call him as a defence witness, but they 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.
33. PW20 Dr. B.A. Vaid corroborated the testimony of PW17 where he identified questioned writings of accused Anil Dhawan appearing on the passport application registration forms and application forms for miscellaneous services and request letters submitted at the time of obtaining first three additional passport booklets.
(i) Learned counsel vehemently argued that no reliance can be placed on the testimony of PW20 as PW22 had not taken any permission from the Court at the time of taking specimen handwritings CBI No. 24/09 Page 42 of 120 State through CBI v/s Om Parkash & others of Anil Dhawan and in support of his contention, he strongly relied upon judgement Sapan Haldar & another v/s. State 2012 VIII AD (Delhi) 533 and further submitted that conviction can not be recorded on the uncorroborated report of handwriting expert and in support of his contention, he placed reliance on numerous following judgements:-
(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);
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(xii) Piara Singh v/s. Jagtar Singh &
others, AIR 1987 P & H 93;
(xiii) Thyseen Stallunjon Gmbh v/s SAIL, 96 (2002) DLT 515;
(xiv) Ameer Mohd. v/s Barket Ali, AIR 2002 Rajasthan 406.
34. Perusal of the judgement 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 samples of CBI No. 24/09 Page 44 of 120 State through CBI v/s Om Parkash & others his handwriting and or signatures for purposes of comparison.
(emphasis supplied)
35. However, in the instant case, neither the Section 2(a), 4 & 5 of Prisoners Act nor Section 311A Cr. P.C are facts in issue before this Court. Indisputably, in the instant case, investigating officer had not taken the specimen handwritings of accused persons after obtaining permission either from the Court concerned or from the Court of Metropolitan Magistrate. Rather, specimen handwritings were taken during investigation. It is pertinent to state that in the judgement 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 a suspect during investigation for the purpose of finding truth, which is ultimate object of any investigation. Moreover, since in the instant case, specimen writings of accused, namely, Anil Dhawan and Kanwaljit Singh remained unchallenged during trial, thus there is no reason to discard the said specimen writings.
(i) Though learned counsel appearing for A8 also placed reliance on the 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 judgement Apex CBI No. 24/09 Page 45 of 120 State through CBI v/s Om Parkash & others Court had discussed the entire case law relating to Handwriting Expert Evidence, thus relevant portions of the judgment are reproduced as under:-
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 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 CBI No. 24/09 Page 46 of 120 State through CBI v/s Om Parkash & others 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 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).
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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, (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 CBI No. 24/09 Page 48 of 120 State through CBI v/s Om Parkash & others relevant, relevant if they support or are inconsistent with the opinion of experts, when 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 CBI No. 24/09 Page 49 of 120 State through CBI v/s Om Parkash & others tribunal and 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 to the admitted or proved writings and to compare them with the disputed one, not to become a CBI No. 24/09 Page 50 of 120 State through CBI v/s Om Parkash & others 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 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 CBI No. 24/09 Page 51 of 120 State through CBI v/s Om Parkash & others 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. 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.
CBI No. 24/09 Page 52 of 120State through CBI v/s Om Parkash & others 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 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 CBI No. 24/09 Page 53 of 120 State through CBI v/s Om Parkash & others 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)
(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 both the accused CBI No. 24/09 Page 54 of 120 State through CBI v/s Om Parkash & others persons also cited certain other judgements 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, following facts can safely be culled out:-
(a) That A8 was an employee of PW17 Mr.
G. S.Walia since 1991;
(b) That the job of A8 was 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 PW17 had identified certain writings i.e. Q244, Q247, Q248, Q250, Q254, Q261, Q264, Q265, Q267, Q274, Q278, Q281, Q282, Q284, Q287 which are appearing on the passport application registration forms, application forms for miscellaneous services and request letters submitted before the RPO from time to time and deposed that the said questioned writings are in the handwriting of accused Anil Dhawan.
(d) That PW17 also identified certain other writings of Anil Dhawan from the Day Book of M/s Jas Air and same are marked A1 to A17.
(e) That PW17 also identified certain writings of accused Anil Dhawan from the passport application form of Kanu Priya Gombar and Padmini Malpani and same are marked A18 to A23.
(f) That PW22 also proved the specimen writings of accused Anil Dhawan which are marked S15 to S36 and he also proved the specimen writings of accused Kanwal Jeet Singh and same are marked S71 to S92.
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(g) That the said specimen writings remained unchallenged during trial.
(h) That PW20 proved that Q244, Q247, Q248, Q250, Q254, Q261, Q264, Q265, Q267, Q278, Q281, Q282, Q284, Q287 (all appearing on passport application registration forms, application forms for miscellaneous services and request letters) and S16 to S35 and A1 to A23 were written one and the same person. It means that accused Anil Dhawan is author of the said questioned writings.
(i) That PW20 also proved that Q297, Q300, Q301, Q303, Q309 (all appearing on the passport application registration form, application for miscellaneous services and request letter that were submitted at the time of obtaining fourth additional passport) and S71 to S92 have been written by one and the same person, which proves that accused Kanwaljit Singh was the author of the said questioned writings.
36. Thus, from the above, it becomes abundantly clear that not only PW17 proved the fact that Anil Dhawan had filled up the passport application registration forms as well as application forms for miscellaneous services of Indian Passport, which were submitted before the office of RPO for obtaining additional passport booklets in the name of Sunil Kumar Jolly from time to time with different photographs, but PW20 also corroborated the testimony of PW17. Further, during trial, no reliable evidence, which may throw any doubt over the conclusion arrived at by PW20 have been produced by the accused. In the absence of any contrary evidence on record, this Court has no reason to disbelieve the report of PW20 which is not only corroborated by PW17 but also supported by another independent Handwriting Expert Mr. N.C. Sood.
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(i) No doubt, questioned writings in respect of fourth additional passport were not identified by any other witness as identified by PW17 against accused Anil Dhawan, but there is nothing on record which may cause any dent over the report of PW20. In the absence of any material on record against the report Ex.PW20/E and Ex.PW20/F, in view of the law laid down in Murari Lal v/s. State of MP (supra), I do not find any reason to disbelieve the report qua accused Kanwaljit Singh @ Raja also.
37. Since, it has been established that the passport application registration forms and applications for miscellaneous services, which were submitted before the RPO, New Delhi for obtaining additional passport booklets were filled up by accused Anil Dhawan and passport application form and application form for miscellaneous services in respect of fourth additional passport were filled up by accused Kanwaljit Singh @ Raja, thus in terms of Section 106 of Indian Evidence Act, burden is shifted upon the accused persons to explain under which circumstances they had filled up the said forms/applications. But during trial, they 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 accused Anil Dhawan had filled up the said forms/applications in respect of first three additional passport booklets and form/application were filled up by Kanwaljit Singh in respect of fourth additional passport booklet knowingly well that the persons whose photographs are affixed on the said forms/applications were not Sunil Kumar Jolly in whose name the said forms/applications had been filled up, thus accused persons CBI No. 24/09 Page 57 of 120 State through CBI v/s Om Parkash & others namely Anil Dhawan and Kanwaljit Singh @ Raja are liable for the offence punishable under Section 420 IPC as by filling up the said forms/applications in the name of Sunil Kumar Jolly they dishonestly induced the office of RPO to believe that the persons whose photographs are affixed on the said forms/applications were Sunil Kumar Jolly, thus they induced RPO to issue additional passport booklets in favour of fictitious persons.
(i) Since, accused Anil Dhawan and Kanwaljit Singh filled up the passport application registration forms and application forms for miscellaneous services in the name of Sunil Kumar Jolly with different photographs and they failed to furnish reasonable explanation under which circumstances, they had filled up the said forms/applications in the same name but with different photographs, thus their act is sufficient to draw a conclusion that they had furnished false information qua applicants knowingly or having reasons to believe that the persons whose photographs were affixed on the said forms/applications were not Sunil Kumar Jolly, thus they facilitated the said persons in obtaining the passport in form of additional passport booklets from the office of RPO by furnishing false information, thus they are also liable for the offence punishable under Section 12 (1) (b) of Passport Act, 1967.
38. Role of accused Anil Dhawan (A8) and Kanwaljit Singh @ Raja (A10) qua the offence punishable under Prevention Corruption Act and conspiracy shall be dealt with later on.
Contentions and findings qua A1, A2, A3, A4 and A5:
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39. Counsel appearing on behalf of above accused persons vehemently contended that since passport is not a valuable document, thus the above accused cannot be held liable for the offence punishable under Section 13(2) of PC Act.
40. To deal with the said contention, I deem it appropriate to refer 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) and same 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 CBI No. 24/09 Page 59 of 120 State through CBI v/s Om Parkash & others 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 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.
41. Though there is a reference of "valuable thing" in Section 13 (1) (d), yet "valuable thing" has not been 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 CBI No. 24/09 Page 60 of 120 State through CBI v/s Om Parkash & others acknowledges that he lies under legal liability, or has not a certain legal right.
(emphasis supplied)
(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.
(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".
42. During the course of arguments, counsel for accused persons also referred to various circulars issued by Ministry of External Affairs to press their contentions that the procedure for issuance of additional passport booklets was substantially liberalized CBI No. 24/09 Page 61 of 120 State through CBI v/s Om Parkash & others by the Govt. of India, thus I deem it appropriate to refer the said circulars. First circular in this regard 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 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 CBI No. 24/09 Page 62 of 120 State through CBI v/s Om Parkash & others
(i) The said circular was modified by issuing another circular dated November 25, 1997 (Ex. PW6/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'
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. PW6/DF) the CBI No. 24/09 Page 63 of 120 State through CBI v/s Om Parkash & others 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 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, 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.CBI No. 24/09 Page 64 of 120
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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. PW6/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 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 CBI No. 24/09 Page 65 of 120 State through CBI v/s Om Parkash & others 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.
(v) Vide circular (Ex. PW6/DB) dated July 11, 2002, 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' clecking; 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 CBI No. 24/09 Page 66 of 120 State through CBI v/s Om Parkash & others 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."
(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 Ex. PW6/DG and Ex. PW6/DH, it also becomes crystal clear that at the time of obtaining the CBI No. 24/09 Page 67 of 120 State through CBI v/s Om Parkash & others 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 Ex. PW6/DG.
43. 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:-
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)
44. Now coming to the fact of the case in hand. In the instant case four different persons, but all in the same name and particulars of Sunil Kumar Jolly had applied for additional passport booklets CBI No. 24/09 Page 68 of 120 State through CBI v/s Om Parkash & others during the period September 24, 2002 to June 25, 2004. Their applications were dealt with vide additional passport booklet files Ex. PW3/A, Ex. PW3/B, Ex. PW2/DA and PW3/C respectively. At the time of seeking additional passport booklets, all the applicants furnished a separate application along with passport application form for miscellaneous services of Indian Passport, wherein the applicants had disclosed the reason for seeking additional passport booklet. The said applications are separately exhibited as Ex. PW9/B, Ex. PW17/A, Ex. PW17/B and Ex. PW16/DZA.
(i) Perusal of the said applications reveals that in all the applications, applicants had disclosed that they needed fresh additional passport as the pages of previous passport had already been full and they had to visit abroad urgently. Thus, additional passports were sought by the applicants on the ground that the pages of previous passports had already been full.
45. Now question arises what was the duty of officials, who dealt with the said applications?
(i) Since the applicants sought additional passport booklets on the ground that the pages of previous passport held by them had been full, thus it was their paramount duty to check the previous passport to satisfy themselves whether all pages of previous passport had been full or no, on the basis of which, the applicants prayed for additional passport booklets.
(ii) Perusal of the applications for seeking additional CBI No. 24/09 Page 69 of 120 State through CBI v/s Om Parkash & others passport booklets further reveals that the applicants had filed the photostate copy of front and back pages of previous passports. But surprisingly none of the officials including PIAs deemed it appropriate to ask the applicants to furnish the photostate copy of all pages of the previous passport to satisfy themselves whether all pages of previous passports had been full as alleged by the applicants in their respective applications.
46. I have gone through the entire Passport Act, Rules and circulars placed before this Court. But this Court fails to come across any provision/rule/administrative instructions which may prevent the passport officials including counter clerk and PIAs from taking photocopy of entire previous passport. On the contrary, proviso to Rule 5 of Passport Rules 1980 empowers the Passport Issuing Authority to ask the applicant to furnish additional information, document or certificate which may be considered necessary for the disposal of application. Moreover, in the circular Ex. PW6/DB, it was prescribed that old passport shall be returned to the applicant after retaining its photocopy. In other words, the officials while dealing with the above applications were supposed to retain the photocopy of previous passport before returning the same to the applicants.
(i) Since, applicants had not furnished the photostate copy of entire previous passport held by them at the time of seeking additional passport booklet, thus there was no material on record to satisfy the PIAs/other officials that the pages of previous passport had been full, hence onus is shifted upon the officials who dealt with the said applications to show on what basis they satisfied themselves that the CBI No. 24/09 Page 70 of 120 State through CBI v/s Om Parkash & others pages of previous passports held by the applicants had been full. No doubt, the initial burden was on the prosecution, but in the instant case prosecution had discharged the initial burden by proving the request letters Ex. PW9/B, Ex. PW17/A Ex. PW17/B and Ex. PW16/DZA and by producing the photocopy of previous passport which applicants enclosed along with their request letters. Since, the circumstances or facts which impelled the Passport Issuing Authority and other officials to believe the version of applicants are in the special knowledge of the Passport Issuing Authority and other officials, thus in terms of Section 106 of Indian Evidence Act, burden is shifted upon them to show on what basis they arrived at the conclusion that pages of previous passports had been full as alleged by the applicants.
47. Harbhajan Yadav (A3) was the counter clerk. Being the counter clerk, he was one of the persons who dealt with the said applications including request letters. But during trial, he failed to furnish any reasonable explanation on what basis he arrived at the conclusion that the pages of previous passports had been full as mentioned in the request letters. During the arguments, counsel appearing for A3 Harbhajan Yadav made a submission that at the time of seeking the additional passport booklets, applicants had produced the previous passport having photograph of same applicant and accordingly A3 had taken the photocopy of first two and last pages of the previous passport and returned the original passport after making necessary endorsement in terms of circular Ex. PW6/DG. But there is no explanation why he had not asked the applicant to furnish the photocopy of the entire previous passport to satisfy himself that all CBI No. 24/09 Page 71 of 120 State through CBI v/s Om Parkash & others pages of the previous passport had been full. If all the pages of previous passport, which allegedly had been shown to A3 and which allegedly A3 had cancelled and returned to the applicants had been full as mentioned in the request letters of applicants, A3 would have certainly asked the applicants to place the copy of entire passport for the satisfaction of PIAs and other officials but no such attempt was made on the part of A3. In the absence of any cogent evidence on record, I am of the view that there was no occasion for A3 to believe the version of applicants that they needed additional passport booklets on account of fulfilling the entire pages of previous passports.
48. Om Parkash (A1) and Bibianus Toppo (A2) were Passport Issuing Authority as defined in Schedule 1 of Passport Rules 1980. When A1 and A2 were discharging such responsible duties, it was their paramount duty to satisfy themselves whether there is any material on record to corroborate the version of applicants as mentioned in their request letters or not. As already discussed that in the instant case, prosecution has discharged the initial burden, thus in terms of Section 106 of Indian Evidence Act, burden is shifted upon A1 and A2 to explain under which circumstances, they believed the version of applicants that they needed additional passport booklets on account of fulfilling of all pages of previous passports. But during trial, no such evidence has been led by A1 and A2 to discharge the said burden.
49. No doubt a plea has been taken by A1 and A2 that they believed the noting of A3 (counter clerk) that was made on the application forms for miscellaneous services of Indian passport CBI No. 24/09 Page 72 of 120 State through CBI v/s Om Parkash & others wherein he recommended to issue additional passport booklets in favour of the applicants. Admittedly, counter clerk had made the said recommendation in favour of applicants. But question arises; was not it the duty of Passport Issuing Authority to satisfy themselves by going through the file. It is pertinent to state that the Passport files relating to issue of additional passports booklets were not voluminous. Rather, the files contained only four documents namely cash receipt; passport application registration form; application form for miscellaneous services; request letter along with photocopy of first two pages and back pages of previous passport. Thus, it cannot be said that PIAs were not in a position to go through the files being voluminous. It was a matter of just few seconds to see whether there is any material on file to corroborate the version of applicant or not. Moreover, A3 in his noting nowhere certified that the pages of previous passport had been full as mentioned by the applicants in their request letters. But it appears that A1 and A2 did not deem it appropriate to open the file before issuance of additional passport booklets in favour of the applicants.
50. Perusal of the application forms for miscellaneous services of Indian Passport (Ex. PW13/B, Ex.PW13/D, Ex. PW13/E and Ex. PW13/E1) reveals that there is stamp "cancelled and returned old passport No.....". From the evidence adduced, it is established that it was the duty of counter clerk to mention old passport number and he was also supposed to sign below the said stamp. Indisputably, though stamp is affixed on the said application forms, but neither the old passport number is filled up in the available space nor there is any initial of the counter clerk. This shows that there is a lapse on the part CBI No. 24/09 Page 73 of 120 State through CBI v/s Om Parkash & others of counter clerk in this regard. However, during arguments counsel appearing for A3 submitted that since counter clerk had made a specific endorsement in the said application forms in his own handwriting that he had cancelled the old passport and also recommended for issuance of additional passport booklet, it is not relevant if counter clerk did not fill up the passport number and put his signature below the said stamp. No doubt, counter clerk was supposed to mention the old passport number in the space available in the above said stamp and he was also supposed to put his signature, but keeping in view the fact that counter clerk had made a specific endorsement on the said application forms wherein he recommended not only to issue additional passport booklet to the applicants but also certified that he had cancelled and returned the original passports, the lapse on the part of counter clerk is not significant.
(i) No doubt, being the supervisory authority, A1 and A2 were supposed not to encourage such irregularity by their subordinate staff but they failed to stop such irregularity. The purpose of filling up old passport number is to inform the supervising officer including PIAs that the counter clerk had cancelled and returned the particular passport. In the absence of such number, it would not be feasible for the supervising officer including PIAs to know which passport was cancelled and returned by the counter clerk.
(ii) No doubt, the old passport number is also mentioned in column no. 4 of the said application forms but the same was filled up by the applicants and not by the official of RPO office. If the old CBI No. 24/09 Page 74 of 120 State through CBI v/s Om Parkash & others number is not filled up by the counter clerk in the space available in the above said stamp, PIAs would be required to verify the passport number as mentioned in column no. 4 and from the photocopy of the passport annexed along with the application forms, which will be time consuming exercise but surprisingly no effort was made by the PIAs to discontinue this irregularity. However, the said irregularity is not sufficient to draw an inference either against A1, A2 or A3 because it is undisputed fact that A3 had made a specific noting on the application forms to the effect of "old passport cancelled and returned" and also recommended for issuance of additional passport booklets.
51. It is manifested from the request letters (Ex. PW9/B, Ex. PW17/A, Ex. PW17/B and Ex. PW16/DZA) that at the time of seeking additional passport booklets, applicants took the plea that they required additional passport booklets urgently as they had to go to abroad and entire pages of previous passports had already been full. It means that the applicants had valid visa and they required the additional passport booklets on urgent basis as all pages of previous passport had already been full. Thus, in terms of circular Ex. PW6/DG, it was the duty of passport Issuing Authority to make the following endorsement on the additional passport:-
" Holder has previously travelled on passport No. ___ dated _ _ issued at _ _ which holds valid visa." (The details of original passport may be included here, where there is a change of name, earlier name be given.)
(i) The above endorsement could be made by the passport issuing authority only if passport issuing authority had previous CBI No. 24/09 Page 75 of 120 State through CBI v/s Om Parkash & others passport in original or photocopy thereof to check whether applicant had any valid visa or not. As from the evidence adduced by prosecution and the plea taken by A1, A2 and A3 in their statement recorded under Section 313 Cr.P.C, the previous passport in original was returned to the applicants at the counter itself. Since, photocopy of entire passport was not taken from the applicants before issuing additional passport booklets, there was no material before the PIAs to make above endorsement on the fresh additional passport booklets.
Had the previous passport in original been seen or copy thereof be taken on record, passport issuing authority would have come to know immediately that the plea taken by the applicants for issuance of additional passport booklets was false. But the passport issuing authority did not deem it appropriate to do so and even it did not deem it appropriate to comply with the instructions issued by Ministry of External Affairs in its circular Ex.PW6/DG.
52. During arguments, counsel for the accused persons also took the plea that since accused persons had acted in good faith, they cannot be held liable for the penal offences. Now question arises whether in the present facts and circumstances plea of good faith is available to the accused persons or not?
53. '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."CBI No. 24/09 Page 76 of 120
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(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. But in the instant case, A1 and A2 failed to produce any such material on record. Mere fact that counter clerk (A3) made a recommendation in favour of applicants for issuance of additional passport booklet was not sufficient for A1 and A2 either to believe the version of applicant or counter clerk blindly without satisfying themselves whether there is any material in support of their claim/recommendation on the file. It is also pertinent to mention here that even A3 in his noting did not state that the pages of previous passport had been full. Being the PIAs, it was their responsibility to ensure that no unscrupulous person could get passport on the basis of false claim. Simultaneously, it was also their duty to keep a check on their subordinates. Had there been photocopy of entire previous passport showing that all pages of previous passport had been full and proper endorsement had been made on the issued additional passport booklet in terms of circular Ex. PW6/DG, in that situation PIAs (A1 & A2) would have a valid defence of good faith as defined under Section 52 of IPC. But unfortunately, it is not so. In these circumstances, I am of the view that there is no substance in the plea of A1 and A2 that they acted in good faith on the recommendation of A3.
54. Now coming to the duty rosters Ex. PW6/C, Ex. PW6/D, Ex. PW2/DB and Ex. PW5/DA. The said documents are computer generated wherein the name of officials, who dealt with the files relating to the additional passport booklets in question are mentioned. As per the said documents, in first three additional passport booklets' CBI No. 24/09 Page 77 of 120 State through CBI v/s Om Parkash & others files, Hit clearance was given by accused Sushma Bajaj (A5) whereas accused Ram Chander (A4) had given HIT clearance in fourth additional passport booklet file. In the file of first additional passport booklet, accused Om Parkash had passed grant and promise date whereas accused Bibianus Toppo passed such order in fourth additional passport booklet's file. In second and third additional passport booklet's files, such orders were passed by the deceased accused P. K. Kapoor. Since, accused Om Parkash, Bibianus Toppo and Sushma Bajaj had not disputed the fact that they had not dealt with the files in question, the said documents qua them have not much significance. However, counsel for accused Ram Chander raised a dispute qua his role, hence these documents are relevant qua him.
(i) Perusal of the statement recorded under Section 313 Cr. P.C of accused Ram Chander, it becomes clear that he nowhere took a plea that he was not posted in HIT Section at the relevant time nor he produced any evidence in this regard.
(ii) PW7 Sh. Ajai Gautam in his examination-in-chief deposed that he is an officer of National Informative Centre (NIC) and he was on deputation to RPO, New Delhi and his duty was to maintain computers installed in the office of RPO and to render technical support to RPO officials. He further deposed that at that time only 20- 25 computers, 100 dump terminals, 4 scanners, 4 servers and 20 printers were installed in the office of RPO. Since, 100 dump terminals were installed in the office of RPO, it means that the data filed by officials while performing their duties on such terminals used to be stored directly on the server because in dump terminals there used to CBI No. 24/09 Page 78 of 120 State through CBI v/s Om Parkash & others be neither any hard disk nor RAM. He further deposed that the said documents were generated by him at the instructions of Superintendent Administration, RPO and he also issued certificate under Section 65 B of Evidence Act certifying that he had generated the said documents and the same were true and correct and the computer system was properly working from which the said documents were generated and the record was not tempered with. Since, PW7 Sh. Ajai Gautam was deputed at the office of RPO from NIC and his duty was to maintain computers and to provide necessary technical support to RPO officials, thus, PW7 Sh. Ajai Gautam was competent person for the maintenance of computers/servers installed at the office of RPO. It means that he was one of the competent persons to certify that the data was not tempered with and the system from which the above documents were generated was working properly. 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 were not working properly or that the server was not working properly at the relevant time. In these circumstances, there is no reason to disbelieve PW7 Sh. Ajai Gautam, who is an independent person, when he deposed that the computer system was working properly at the relevant time. Thus, to my mind the above documents are admissible in evidence.
(iii) Counsel appearing for A4 and A5 vehemently contended that no reliance can be placed on the said documents as there was every possibility to misuse their 'P' number and password. It is undisputed fact that the file in the RPO can only be accessed by the CBI No. 24/09 Page 79 of 120 State through CBI v/s Om Parkash & others employees of RPO by using their login i.e. 'P' number and password. Password remains in the personal knowledge of an individual employee. It is his/her duty not to share his/her password with anyone. Moreover, in the instant case, A4 and A5 had never taken a plea that they had shared their password with anyone. If they had shared their password with anyone or the same was misused by anyone, onus is shifted upon them in terms of Section 106 of Indian Evidence Act to explain under which circumstances they had shared their password or under which circumstances, their password had been misused, but they failed to discharge their burden. In the absence of any evidence on record, I do not find any substance in the plea that someone had misused their password.
(iv) In the aforesaid documents, not only the name of officials who dealt with the above said files is mentioned, but it also depicted when they had processed the said files. As per Ex. PW6/C, Ex.PW6/D and Ex.PW2/DB, accused Sushma Bajaj had dealt with the first file on September 25, 2002; second file on May 27, 2003 and third file on September 2, 2003 by giving HIT clearance whereas as per Ex. PW5/DA, accused Ram Chander had cleared the HIT in fourth file on June 29, 2004. There is nothing on record which may show that they were not present in the office or they were not posted in HIT Section on the said dates, thus in the absence of any contrary evidence on record there is no reason to disbelieve the official record which was being maintained in ordinary course of business performed by RPO officials and generated and proved by an independent witness.
(v) I also do not find any substance in the plea taken by the CBI No. 24/09 Page 80 of 120 State through CBI v/s Om Parkash & others counsel for A4 and A5 that no reliance can be placed on the deposition of PW7 Sh. Ajai Gautam as he failed to produce copy of his educational qualification. Since, he is working in NIC, a government organization, presumption lies in his favour that he was otherwise competent to perform his duty.
(vi) From the deposition of PW7 Sh. Ajai Gautam and documents Ex. PW6/C, Ex. PW6/D, Ex. PW2/DB and Ex. PW5/DA, it becomes crystal clear that A4 & A5 had dealt with additional passport booklets files in question by giving HIT clearance.
55. Counsel appearing for A4 & A5 vigorously argued that there was no facility in the HIT Section at the relevant time to compare photographs of applicants with the photographs affixed on previous passports. In this regard, the testimony of PW7 Sh. Ajai Gautam is relevant.
(i) PW7 in his examination-in-chief deposed that scanning of photographs and signatures facility was started in the office of RPO in June 2000 and HIT checking without photographs was started in the year 2000 and HIT checking with photographs and signatures was started in August 2002 on one PC only. However, the facility of HIT checking with photographs and signatures was started since April 2004 in all computers.
(ii) As per Ex. PW5/DA, HIT clearance was given in June 2004. Despite that A4 failed to point out discrepancies in photographs of previous passport holder and the applicant whereas there is CBI No. 24/09 Page 81 of 120 State through CBI v/s Om Parkash & others significant difference between the photographs of both the persons.
(iii) Assuming for the sake of arguments that there was no facility of checking photographs in the computer in HIT Section at the relevant time. Was not the duty of officials posted at HIT Section to verify from the previous files physically. There was no restriction to check from the previous files physically. It is pertinent to mention here that as per circular Ex. PW6/DD, additional passport booklet was to be issued subject to clearance of HIT and there is nothing in the said circular which prevents the official posted at HIT section from consulting the previous file, if the requisite facility was not available in his/her computer. On the contrary, it was directed that in case of doubt officials should consult PISON. Thus, the plea taken by A4 & A5 that they were not in a position to compare the photographs of applicants for want of facility is devoid of merit.
(iv) Further the HIT clearance can be given by the HIT section only by entering the name of applicant or by the previous passport number. If any of the details of the applicant would be fed in the computer, in ordinarily course, computer would display all relevant information of the said person. In other words, computer would also display how many additional passport booklets have already been issued in the name of said person. Indisputably, when the applicants moved applications from time to time to seek additional passport booklets, every time they used to file copy of original passport but with different photograph. Had the official posted at HIT section opened the file of applicant Sunil Kumar Jolly, when second and subsequent applications for obtaining additional passport booklet were moved, A4 CBI No. 24/09 Page 82 of 120 State through CBI v/s Om Parkash & others & A5 would have come to know that in the name of said person, additional passport booklets had already been issued. Since, the applicant had filed the copy of original passport, the official posted at HIT section would come to know easily that the applicants were playing fraud with RPO, but the said officials i.e. A4 & A5 preferred to give HIT clearance instead of raising an objection. Thus, in the facts and circumstances of the case, the plea taken by accused Ram Chander and Sushma Bajaj is without any substance.
56. Now coming to the contention relating to work load. To my mind the said contention is devoid of any merit. Work load can not be a ground to justify a wilful wrongful act. As already held that neither A1, A2 nor A3 made any effort to satisfy themselves whether there is any material to substantiate the version of applicant to seek additional passport booklet as there is no material on record to show that all pages of previous passport/booklet had been full as mentioned by the applicants in their request letters.
(i) To my mind, the judgement Sudhdeo Jha Utpel v/s. State of Bihar, AIR 1957 Supreme Court 466 is also not helpful to A1 and A2 as the facts of the said case were totally different from the facts of case in hand. The said case relates to the offence punishable under Section 420/193/120B IPC whereas the main allegations against A1 and A2 are 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 CBI No. 24/09 Page 83 of 120 State through CBI v/s Om Parkash & others 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 A1 and A2 were acting as Passport Issuing Authority, thus it was their responsibility to satisfy themselves 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. I have perused the said judgement carefully. To my mind, the said judgement is not helpful to the accused persons in any manner as the facts involved therein were totally different from the facts of the case in hand. In the said matter, CBI failed to establish whether the documents were already missing when the appellant had passed the 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 CBI No. 24/09 Page 84 of 120 State through CBI v/s Om Parkash & others 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.
(iii) In order to claim parity, counsel for A1 and A2 strongly placed reliance on the judgements 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. But to my mind, the said judgements 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 had been adopted. Mere fact that the investigating agency did not charge- sheet PIAs in other matters, who allegedly played similar role that of A1 and A2 is not sufficient for this Court to hold that in the present matter investigating officer had adopted the policy of pick and choose. Indisputably, those other matters are not before this Court and this Court is not supposed to give any finding in those matters on the basis of evidence led by prosecution in the present matter. If in those matters, investigating officer had adopted pick and choose policy, appropriate action can be taken against the erring investigating officer. But mere fact that in the said matters, investigating agency did not deem it appropriate to file the charge-sheet against PIAs, it is not sufficient to exonerate A1 and A2 in the present matter. Needless to say that the fate of A1 and A2 can be decided only on the basis of evidence available on record in the present matter and not on the CBI No. 24/09 Page 85 of 120 State through CBI v/s Om Parkash & others basis of charge-sheets filed by investigating agency in other alleged similar matters. However, it is pertinent to mention here that in the instant case, though second and third additional passport booklets were issued by Mr. P. K. Kapoor, yet no charge-sheet had been filed against him. But charge-sheet was not filed against him due to any discrimination; rather charge-sheet could not be filed against him as he had died prior to filing of the charge-sheet, thus it can not be said that any discrimination has been made by the investigating officer among the PIAs in the present matter.
57. Learned counsel appearing for the accused persons also assailed the prosecution case on the ground that there is no evidence to prove the guilt of accused persons for the offence punishable under Section 13 (2) of PC Act. It was further argued that accused persons have been charged for the offence under Section 13 (1) (d) of PC Act, for which criminal intent is an essential ingredient, but prosecution failed to adduce any evidence to prove that the accused persons had any criminal intent when they dealt with the files in question.
58. From the submissions advanced by counsel for 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:-
CBI No. 24/09 Page 86 of 120State through CBI v/s Om Parkash & others
(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), it becomes 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 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 CBI No. 24/09 Page 87 of 120 State through CBI v/s Om Parkash & others 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.... 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.CBI No. 24/09 Page 88 of 120
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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.
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 CBI No. 24/09 Page 89 of 120 State through CBI v/s Om Parkash & others 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.
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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 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 CBI No. 24/09 Page 90 of 120 State through CBI v/s Om Parkash & others
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 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 CBI No. 24/09 Page 91 of 120 State through CBI v/s Om Parkash & others 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 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, CBI No. 24/09 Page 92 of 120 State through CBI v/s Om Parkash & others (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 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.
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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 CBI No. 24/09 Page 93 of 120 State through CBI v/s Om Parkash & others 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 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 CBI No. 24/09 Page 94 of 120 State through CBI v/s Om Parkash & others 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 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.
CBI No. 24/09 Page 95 of 120State through CBI v/s Om Parkash & others (emphasis supplied)
(iii) From the above judgement, it becomes crystal clear 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 either for himself or for any person any valuable thing or pecuniary advantage without any public interest.
59. Now question arises whether A1 to A5 had 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 their acts.
(ii) Indisputably, issuing the additional passport booklets in the name of fictitious persons cannot be in public interest. Rather, it would be totally against the public interest as it may also cause threat to the security of the nation because such fictitious documents can be misused by anti-social elements. As already discussed that while dealing with the files in question, A1 to A5 not only failed to take reasonable precaution but they also breached the settled norms and instructions at the time of issuing additional booklets, thus their act was not in the public interest when they dealt with the said files.
(iii) Admittedly, there is no cogent evidence on record to bring home the guilt of A1 to A5 for the offences described in clause (i) CBI No. 24/09 Page 96 of 120 State through CBI v/s Om Parkash & others and (ii) of Section 13 (1) (d) of the Prevention of Corruption Act. But there are sufficient material on record to prove their guilt for the offence described in clause (iii) of Section 13 (1) (d) of the Prevention of Corruption Act.
60. Before dealing with the contentions relating to conspiracy, I deem it appropriate to discuss the contentions relating to sanction. Counsel appearing for accused persons vigorously argued that sanction accorded under Section 19 of PC Act is defective as sanctioning authority had not applied its mind before according sanction and the authority had acted in mechanical manner just by signing on the draft sanction placed before it. It was further argued that sanctioning authority had not considered relevant material at the time of according the sanction. Counsel appearing for A1 and A2 also contended that the sanction was not accorded by competent person qua them. It was further argued that since accused persons have also been charged for penal offences, thus sanction under Section 197 Cr. P.C was also required but no such sanction was obtained. It was argued that in the absence of requisite sanction under Section 197 Cr. P.C, accused persons cannot be held liable for penal offences.
(i) Per contra, learned Public Prosecutor countered the said contentions by arguing that there is no defect in the sanction and if there is any defect, same is not fatal to the prosecution case as in view of sub- Section (3) of 19 of PC Act, the defects are insignificant. It was further contended that since sanction had been obtained under Section 19 of PC Act, there was no requirement to obtain separate sanction under 197 Cr. P.C. CBI No. 24/09 Page 97 of 120 State through CBI v/s Om Parkash & others
61. Now coming to the contentions relating to sanction.
(i) In this regard the testimony of PW21 Sh. R. Swaminathan is relevant.
(ii) PW21 Sh. R. Swaminathan in his examination-in-chief categorically deposed that he also received investigation report and the statement of prosecution witnesses along with the request letter for seeking sanction and further deposed that he had gone through the said report and statement of prosecution witnesses and after satisfying himself, he accorded the sanction under Section 19 of the Prevention of Corruption Act as well as under Section 15 of Passport Act.
(iii) In his examination-in-chief, he also deposed that he was competent to remove A3 (Harbhajan Yadav), A4 (Ram Chander), A5 (Sushma Bajaj) and A6 (G. D. Joshi) A7 (R. S. Rawat) and A11 (R.S. Dagar) from the service but he was not competent to remove A1 and A2 as qua A1 Minister of State in Ministry of External Affair whereas qua A2 Additional Secretary Administration and CPV were competent to remove them from service. He further clarified that due to said reason, he had taken their approval, thereafter, sanction was accorded and sanction order under Section 19 of PC Act is Ex. PW21/A whereas sanction order under Section 15 of the Passport Act is Ex. PW21/B.
(iv) Perusal of sanction order Ex. PW21/A makes it clear CBI No. 24/09 Page 98 of 120 State through CBI v/s Om Parkash & others that sanction order was issued by the order and in the name of President of India, which corroborates the testimony of PW21 that necessary approval was also taken qua A1 and A2 from competent authority.
(v) Though PW21 was thoroughly cross-examined, yet no question was put to him that he had not taken any approval qua A1 and A2 from the competent authority. No doubt, counsel for A2 had put a suggestion that approval of competent authority was not obtained, but the said suggestion was categorically denied, thus the said suggestion has no evidentiary value.
(vi) In case Mohd. Iqbal Ahmed Vs State of Andhra Pradesh, 1979 SCC (Crl.) 926, Apex Court held that an order 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.
(vii) In the instant case, not only PW21 deposed on oath that necessary approval was taken from the competent authority qua A1 and A2 but it is also recited in sanction order Ex.PW21/A, thus there is no reason to disbelieve the deposition of PW21.
(viii) During the cross-examination of PW21, an attempt CBI No. 24/09 Page 99 of 120 State through CBI v/s Om Parkash & others was made to cause a dent in his testimony on the grounds that the investigating agency had not placed entire material before him at the time of seeking sanction; that he had not applied his mind and that he had accorded sanction on the basis of draft sanction placed before him. But all these suggestions were categorically denied.
(ix) It is pertinent to state that during cross-examination of PW21, no attempt was made by the defence counsel to call for the file in order to prove 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 draft sanction produced by the CBI or without application of mind.
(x) Apex Court in case title State of Maharasthra 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. 24/09 Page 100 of 120 State through CBI v/s Om Parkash & others 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.
(xi) 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.
(xii) In view of the ongoing discussion, I do not find any merit in the contentions raised by counsel for the accused persons CBI No. 24/09 Page 101 of 120 State through CBI v/s Om Parkash & others that the sanction accorded under Section 19 of PC Act is defective.
(xiii) Now coming to the judgements cited by counsel for the accused persons namely Mohd. Iqbal Ahmed v/s. Andhra Pradesh AIR 1979 SC 677, State of Goa Vs Babu Thomas 2005 Crl. L. J. 4379 and State, Insp. of Police of Vishakhapatnam v/s.
Surya Sankramkari, 2006 Crl. L.J. 4598. I have perused all the said judgements carefully. On perusal of judgements, I am of the view that same are not helpful to the accused in any manner as the facts involved in said cases were different from the facts of the case in hand. In the said cases, there was nothing on record to show that approval of competent authority was taken before granting the sanction whereas in the instant case there is not only oral but documentary evidence on record to prove the fact that approval of competent authority i.e. Minister of States in Ministry of External Affairs and Additional Secretary Administration and CPV was taken qua A1 and A2 respectively before according the sanction. Thus, to my mind there is no infirmity or illegality in the sanction accorded by PW21.
62. Though I do not find any defect in the sanction accorded under Section 19 of PC Act, yet to my mind, there is no merit in the contention of learned public prosecutor that the defect if any, is curable under sub-section (3) of 19 PC Act. Relevant portion of sub- section 3 of 19 of PC Act read as under:
3. Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974) CBI No. 24/09 Page 102 of 120 State through CBI v/s Om Parkash & others
(a) no finding , sentence or order passed by a special judge shall be reversed or altered by a court in appeal, confirmation or revision on the ground of the absence of, or any error, omission or irregularity in, the sanction required under sub-section (1), unless in the opinion of that court, a failure of justice has in fact been occasioned thereby;
(emphasis supplied)
(i) Bare perusal of Section 19 (3) (a) of PC Act makes it clear that it relates to the appellate/revisional court and not to the trial Court. The finding of Special Court cannot be reversed mere on the ground that there was any error, omission or irregularity in the sanction unless such omission, irregularity, in the opinion of that Court (Appellate/Revisional Court) a failure of justice has in fact been caused. Thus, the contention raised by learned Public Prosecutor is without any substance.
63. Now coming to the next limb of arguments whether separate sanction under 197 Cr.P.C is required or not.
(i) Though counsel appearing for A1 had cited two judgements namely Matajog Dobey Vs H.C. Bhari, AIR 1956 SC 44 and Abdul Wahab Ansari Vs State of Bihar, 2000 Crl. L. J. 4631, yet the said judgements are not helpful to the accused persons as the facts of the case is in hand are totally different. However, the judgement title State of Madhya Pradesh Vs Sheetla Sahai and others (2009) 8 SCC 617 is quite relevant. In the said case also appellant was charge-sheeted for the offence punishable under Section 13 (2) read with Section 13 (1) (d) (ii) and (iii) of PC Act read CBI No. 24/09 Page 103 of 120 State through CBI v/s Om Parkash & others with Section 120 B IPC. Relevant paragraphs for the purpose of our discussion are 60, 61, 62, 63 and 66 reads as under:-
Para 60 This leaves us with the question as to whether an order of sanction was required to be obtained. There exists a distinction between a sanction for prosecution under Section 19 of the Act and Section 197 of the Code of Criminal Procedure. Whereas in terms of Section 19, it would not be necessary to obtain in respect of those who had ceased to be a public servant, Section 197 of the Code of Criminal Procedure requires sanction both for those who were or are public servants.
Para 61 Strong reliance has been placed by Mr. Tulsi on a judgment of this Court in Centre for Public Interest Litigation and Another Vs Union of India and Another [(2005) 8 SCC 202]. In that case, it was held :
"9 The protection given under Section 197 is to protect responsible public servants against the institution of possibly vexatious criminal proceedings for offences alleged to have been committed by them while they are acting or purporting to act as public servants. The policy of the legislature is to afford adequate protection to public servants to ensure that they are not prosecuted for anything done by them in the discharge of their duties without reasonable cause, and if sanction is granted, to confer on the Government, if they choose to exercise it, complete control of the prosecution.
This protection has certain limits and is available only when the alleged act done by the pubic servant is reasonably connected with the discharge of his official duty and is not merely a cloak for doing the objectionable act. If in doing his official duty, he acted in excess of his duty, but there is a reasonable connection between the act and performance of the official duty, the excess will not be a sufficient ground to deprive CBI No. 24/09 Page 104 of 120 State through CBI v/s Om Parkash & others the public servant, but whether it was committed by a public servant acting or purporting to act as such in the discharge of his official capacity. Before Section 197 can be invoked, it must be shown that the official concerned was accused of an offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duties. It is not the duty which requires examination so much as the act, because the official act can be performed both in the discharge of the official duty as well as in dereliction of it. The act must fall within the scope and range of the official duties of the pubic servant concerned. It is the quality of the act which is important and the protection of this section is available if the act falls within the scope and range of his official duty. There cannot be any universal rule to determine whether there is a reasonable connection between the act done and the official duty, nor is it possible to lay down any such rule. One safe and sure test in this regard would be to consider if the omission or neglect on the part of the public servant to commit the act complained of could have made him answerable for a charge of dereliction of his official duty. If the answer to this question is in the affirmative, it may be said that such act was committed by the public servant while acting in the discharge of his official duty and there was every connection with the act complained of and the official duty of the public servant. This aspect makes it clear that the concept of Section 197 does not get immediately attracted on institution of the complaint case.
10. Use of the expression "official duty" implies that the act or omission must have been done by the public servant in the course of his service and that it should have been in discharge of his duty. The section does not extend its protective cover to every act or omission done by a public servant in service but restricts its scope of operation to only those acts or omissions which are done by a public servant in discharge of official duty.CBI No. 24/09 Page 105 of 120
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11. If on facts, therefore, it is prima-facie found that the act or omission for which the accused was charged had reasonable connection with discharge of his duty then it must be held to be official to which applicability of Section 197 of the Code cannot be disputed."Para 62 Were the respondent Nos. 1 to 7
required to act in the matter as a part of official duty? Indisputably, they were required to do so. Be he an Executive Engineer, Superintending Engineer, Chief Engineer-in-Chief, Secretary or Deputy Secretary, matters were placed before them by their subordinate officer. They were required to take action thereupon. They were required to apply their own mind. A decision on their part was required to be taken so as to enable them to oversee supervision and completion of a government project. The Minister having regard to the provisions of the Rules of Executive Business was required to take a decision for and on behalf of the State. Some of the respondents, as noticed hereinafter, were required by their superiors. They were members of the Committee constituted by the authorities, viz., the Minister or the Secretary. At that stage, it was not possible for them to refuse to be a Member of the Committee and / or not to render any opinion at all when they were asked to perform their duties. They were required to do the same, and thus there cannot be any doubt whatsoever that each one of the respondent Nos. 1 to 7 was performing his official duty.
Para 63 For the Purpose of attracting the provisions of Section 197 of the Code of Criminal Procedure, it is not necessary that they must act in their official capacity but even where a public servant purports to act in their official capacity, the same would attract the provisions of Section 197 of the Code of Criminal Procedure. It was so held by this Court in Sankaran Moitra v. Sadhna Das and Another [(2006) 4 SCC 584].
The question came up for consideration before this Court in Matajog Dobey v. H.C. Bhari (AIR CBI No. 24/09 Page 106 of 120 State through CBI v/s Om Parkash & others 1956 SC 44 ; 1955 (2) SCR 925) wherein it was held :
"17 Slightly differing tests have been laid down in the decided cases to ascertain the scope and the meaning of the relevant words occurring in Section 197 of the Code; "any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty". But the difference is only in language and not in the substance.
The offence alleged to have been committed must have something to do, or must be related in some manner with the discharge of official duty. No question of sanction can arise under Section 197, unless the act complained of is an offence; the only point to determine is whether it was committed in the discharge of official duty. There must be a reasonable connection between the act and the official duty. It does not matter even if the act exceeds what is strictly necessary for the discharge the duty, as this question will arise only at a later stage when the trial proceeds on the merits. What we must find out is whether the act and the official duty are so inter-related that one can postulate reasonably that it was done by the accused in the performance of the official duty, though possibly in excess of the needs and requirement of the situation. In Hori Barn singh v. Crown Sulaiman, J. Observes:
"The section cannot be confirmed to only such acts as are done by a public servant directly in pursuance of his pubic office, though in excess of the duty or under mistaken belief as to the existence of such duty. Nor is it necessary to go to the length of saying that the act constituting the offence should be so inseparably connected with the official duty as to form part and parcel of the same transaction."
Para 66 Thus, in this case, sanction for prosecution in terms of Section 197 of the Code of Criminal Procedure was required to be obtained.
CBI No. 24/09 Page 107 of 120State through CBI v/s Om Parkash & others
(ii) In State of Punjab Vs Labh Singh, 2014 SCC online SC 1019, learned Special Judge framed charges against the pubic servants for penal offences punishable under Section 218/409/465/467/120B IPC and under Section 13 (1) (c) read with Section 13 (1) (2) of PC Act. The said order was set-aside by the High Court on the ground that there was no sanction under Section 197 Cr. P.C. Accordingly, State approached the Apex Court. Apex Court set- aside the order of High Court qua the charges framed under Penal Code. Relevant para is 8 and same is reproduced as under:
"Para 8 However as regards charges for the offences punishable under the IPC concerned the High Court was absolutely right in setting aside the order of the Special Judge. Unlike section 19 of the POC Act, the protection under section 197 of Cr. P.C. is available to the concerned public servant even after retirement. Therefore, if the matter was considered by the sanctioning authority and the sanction to prosecute was rejected first on 13.09.2000 and secondly on 24.09.2003, the court could not have taken cognizance insofar as the offences punishable under the Indian Penal Code are concerned . As laid down by this Court in State of Himachal Pradesh v. Nishant Sareen, the recourse in such cases is either to challenge the order of the Sanctioning Authority or to approach it again if there is any fresh material".
(iii) From the above judgements it becomes crystal clear that if the alleged act was done in discharge of official duty, qua penal offences, separate sanction under Section 197 Cr. P.C. shall be CBI No. 24/09 Page 108 of 120 State through CBI v/s Om Parkash & others required.
(iv) Now coming to the facts of the case in hand. As per prosecution version, A1 to A5 were public servants when they allegedly dealt with the applications in questions for issuance of additional passport booklets. It is also admitted case of prosecution that A3 had dealt with the said applications being the counter clerk posted at RPO; while A4 and A5 dealt with the said files while posted in HIT section and A1 and A2 dealt with the said files while posted as PIAs. Thus, it is admitted case of prosecution that all the accused persons had dealt with the applications/files being the public servant. Applying the safe and sure test as propounded by the Apex Court in the Sheetal Sahai (supra) judgement, it can safely be culled out that the omission or neglect on the part of above public servants to commit the act complained of could have been made them answerable for a charge of dereliction of their official duties. Since, the answer to the above test is in affirmative, thus it can safely be culled out that they had committed the above acts while discharging their official duties. Accordingly, in view of the law laid down in State of M.P. Vs Sheetla Sahai (supra), I am of the opinion that the separate sanction for penal offences was also required. Since, prosecution failed to obtain any sanction under Section 197 Cr. P.C, thus I am of the opinion that the above accused persons cannot be held liable for penal offences.
(v) As already held prosecution failed to prove the culpability of A1 and A2 for the offence punishable under Section 467 IPC, since, there is no sanction under Section 197 Cr. P.C, A1 to A5 cannot also be held liable for the offence punishable under Section CBI No. 24/09 Page 109 of 120 State through CBI v/s Om Parkash & others 120 B IPC.
64. Though in view of the above finding, there is no need to discuss conspiracy qua A1 to A5, yet I deem it appropriate to discuss the same.
(i) As per prosecution version, A1 had dealt with the file of first additional passport booklets whereas A2 had dealt with the fourth additional passport booklets' file. Admittedly, the first application was moved in September 24 , 2002 whereas fourth application was moved on June 25, 2004 and there is no evidence whatsoever on record to prove any kind of meeting of mind either between A1 and A2 or with any other accused persons. Mere fact that all above accused were working in the same office is not sufficient to hold that there was any meeting of mind as required under Section 120A IPC.
(ii) Though A3 had dealt with all the applications being the counter clerk but there is nothing on record to show that he had any kind of meeting of mind with the applicants. Similarly, as per prosecution version, A5 had given HIT clearance in first three files where A4 had given clearance in fourth file but there is also no evidence on record either direct or circumstantial to show that there was any meeting of mind between them or with the applicants or with any other accused persons.
(iii) No doubt, it is difficult to find out a direct evidence to prove conspiracy as generally conspiracy is hatched in secrecy. It is also undisputed fact that conspiracy can also be proved by CBI No. 24/09 Page 110 of 120 State through CBI v/s Om Parkash & others circumstantial evidence but in the instant case, CBI has even failed to produce any circumstantial evidence to prove the conspiracy among the accused persons. Mere fact that A1 to A5 were working in the same office and they dealt with the files in question is not sufficient to draw a conclusion that they had hatched any conspiracy. Being the officials posted at RPO, New Delhi, they were otherwise duty bound to deal with the files in question. In the absence of any other cogent evidence, it will not be safe to conclude that they dealt with the files in question pursuant to some conspiracy.
(vii) In view of the above, I am of the considered opinion that prosecution has failed to prove the charges of conspiracy.
CONCLUSION:-
65. 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 (A8) and Kanwaljit Singh @ Raja (A10) for the offence punishable under Section 420 IPC beyond of shadow of all reasonable doubts, accordingly, I hereby hold them guilty thereunder.
(ii) prosecution has also succeeded to bring home the guilt of accused Anil Dhawan (A8) and Kanwaljit Singh @ Raja (A10) for the offence punishable under Section 12 (1) (b) of Passport Act, 1967 beyond the shadow of all reasonable doubts, CBI No. 24/09 Page 111 of 120 State through CBI v/s Om Parkash & others accordingly, I hereby hold them guilty thereunder.
(iii) prosecution has also succeeded to bring home the guilt of accused Om Prakash (A1), Bibianus Toppo (A2), Harbhajan Yadav (A3), Ram Chander (A4) and Sushma Bajaj (A5) for the offence punishable under Section 13 (2) read with Section 13 (1)
(d) (iii) Prevention of Corruption Act, 1988 beyond the shadow of all reasonable doubts, accordingly, I hereby hold them guilty thereunder.
66. However, prosecution has failed to bring home the guilt of accused G.D. Joshi (A6), Naeeim Safi (A9) and R.S. Dagar (A11), accordingly, I hereby acquit them from all the charges.
(i) Qua other charges, prosecution failed to bring home the guilt of accused No. 1 to 5, A8 and A10 beyond the shadow of all reasonable doubts, thus the accused persons qua other charges stand acquitted.
Announced in the open Court on this 05th day of May, 2015 (PAWAN KUMAR JAIN) SPECIAL JUDGE, CBI-01, NORTH-WEST, ROHINI COURTS DELHI/sv CBI No. 24/09 Page 112 of 120 State through CBI v/s Om Parkash & others 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. 24/2009ID No. : 02404R0009782008 FIR No. : RC-2(A)/2005/SCU- V/SCR-II/CBI, New Delhi U/Sec: 120B r/w 419/420/467/468/471 IPC 13(2) r/w 13(1)(d) of PC Act 1988 12(1) (b) of Passport Act 1967 and substantive offences thereto Police Station: CBI/SCU-V/SCR-II/New Delhi STATE THROUGH CENTRAL BUREAU OF INVESTIGATION, NEW DELHI VERUS
1. Om Parkash S/o Late Chet Ram, R/o H. No. 431, Sector 7, Urban Estate, Gurgaon.
..........Convict No.1 CBI No. 24/09 Page 113 of 120 State through CBI v/s Om Parkash & others
2. Bibianus Toppo S/o Late Joseph Toppo, R/o 14 G, Sector 4, DIZ Area, Raja Bazar, Gole Market, New Delhi-01 ..........Convict No. 2
3. Harbhajan Yadav S/o Late Sultan Singh Yadav, R/o H. No. 949/1, Gali No. 4, Ashok Vihar, Gurgaon, Haryana.
..........Convict No. 34. Ram Chander S/o Sh. Maman Ram, R/o J-624, Sardar Colony, Sector 16, Rohini, Delhi-85.
..........Convict No. 45. Sushma Bajaj W/o Sh. Anil Bajaj, R/o 1851, Outram Line, Kingsway Camp, New Delhi-9.
..........Convict No. 56. Anil Dhawan S/o Sh. Madan Lal Dhawan, R/o 254, DDA Flats, 1st Floor, CBI No. 24/09 Page 114 of 120 State through CBI v/s Om Parkash & others New Ranjit Nagar, New Delhi-8.
..........Convict No. 67. Kanwaljit Singh @ Raja S/o Late Ishwar Singh R/o 120B, 2nd Floor, Old Gupta Colony, Model Town, Delhi-9.
..........Convict No.7 Appearance : Ms. Shashi Vishwakarma, Public Prosecutor for CBI Sh. Ashwani Verma, proxy counsel for Sh.
Vipin Sanduja, Advocate, counsel for convict no.1 Sh. R. Ramachandran, Advocate, counsel for convict no. 2 Sh. Anil Gupta, Advocate, counsel for convict No.3 & 5 Sh. Sukhvinder Singh, Advocate, counsel for convict no. 4 Sh. Ashwani Verma, Advocate, counsel for convict no. 6 & 7 ORDER ON THE POINT OF SENTENCE (ORAL):
1. Vide separate judgment dated May 5, 2015, Om Prakash (A1), Bibianus Toppo (A2), Harbhajan Yadav (A3), Ram Chander (A4) and Sushma Bajaj (A5) have been held guilty for the CBI No. 24/09 Page 115 of 120 State through CBI v/s Om Parkash & others offence punishable under Section 13 (2) read with Section 13 (1) (d)
(iii) Prevention of Corruption Act, 1988 whereas Anil Dhawan (A8) and Kanwaljit Singh @ Raja (A10) have also been held guilty for the offence punishable under Section 420 IPC and 12 (1) (b) of Passport Act, 1967.
2. Learned counsel appearing for convicts requests for lenient view on the grounds that they are law abiding citizens and they are sole bread earners of their respective families. They are also suffering from agony of trial for the last more than seven years.
(i) Besides that counsel appearing for convict Ram Chander submits that convict is 54 years old and further states that there is no probability of repeating similar offence by him. It is further submitted that the convict Ram Chander is still serving RPO and presently posted at Lucknow, which shows that department had pardoned the convict for his act.
(ii) Similarly, counsel appearing for convicts Harbhajan Yadav and Sushma Bajaj requests for a lenient view on the ground that convict Harbhajan Yadav and Sushma Bajaj are still working in the RPO. Convict Harbhajan Yadav is presently posted at Chandigarh whereas convict Sushma Bajaj is posted at Delhi, which shows that the department had pardoned them for their act. It is further submitted that convicts are not involved in any other case except passport scam cases and CBI No. 24/09 Page 116 of 120 State through CBI v/s Om Parkash & others further submits that during last 7 years, convicts have not been found indulged in any other criminal matter, which shows that convicts have reformed themselves.
(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 benefits. It is further submitted that convict is aged about 65 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 Om Parkash submits that convict is an old person of 65 years and he is suffering from various ailments. His wife is also suffering from various ailments. It is further submitted that convict has no criminal antecedents and there is no likelihood of indulging in any other criminal matter.
(v) Mr. Ashwani Verma, Advocate, counsel appearing for convict Anil Dhawan and Kanwaljit Singh @ Raja also requests for a lenient view on the ground that convicts have been appearing regularly in the Court and there is nothing on record, which may suggest that they had committed any other offence after filing the charge-sheets in passport scam cases. It is further submitted that both the kidneys of father of the convict Anil Dhawan had already been failed, thus he is on regular dialysis for the last two years. It is further submitted that convict is sole bread CBI No. 24/09 Page 117 of 120 State through CBI v/s Om Parkash & others 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 act, passports in the form of additional passport booklets had been issued in favour of fictitious persons. It is argued that since passport is an important document to prove identity and nationality, thus such passports could be misused by anti-national elements. It is further submitted that the convicts had also been convicted in other matters such as CC No. 74/2008, CC No. 56/08, CC No. 11/12 and CC no. 5/12 and CC No. 76/08, 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 failed to establish the charges of conspiracy and forgery, I am of the considered opinion that it is not a fit case to impose maximum sentence as prayed by learned Public Prosecutor for CBI. Simultaneously, in view of the aggravating factors as pointed out by counsel for CBI, I am also of the CBI No. 24/09 Page 118 of 120 State through CBI v/s Om Parkash & others 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 5 i.e. Om Parkash (convict no.1), Bibianus Toppo (convict no.2), Harbhajan Yadav ( convict no.3), Ram Chander (convict no.4), Sushma Bajaj (convict no.5) rigorous imprisonment for a period of one year and a fine of ` 10,000/- each in default further simple imprisonment for a period of six months for the offence punishable under Section 13(2) read with Section 13(1) (d) (iii) of Prevention of Corruption Act.
(i) I also sentence convict no. 6 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.
(ii) I also sentence convict 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 the Passports Act, 1967.
(iii) I also sentence convict no. 6 Kanwaljit Singh @ Raja rigorous imprisonment for a period of eighteen months CBI No. 24/09 Page 119 of 120 State through CBI v/s Om Parkash & others and a fine of ` 15,000/- in default further simple imprisonment for a period of nine months for the offence punishable under Section 420 IPC.
(iv) I also sentence convict no. 6 Kanwaljit Singh @ Raja 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 the Passports Act, 1967.
7. Benefit of Section 428 Cr.P.C, if any, be given to the convicts. All sentences shall run concurrently.
8. Copy of judgment along with order on the point of sentence be given to the convicts/their counsel free of cost.
9. File be consigned to record room.
Announced in the open Court on 18th day of May, 2015 (PAWAN KUMAR JAIN) Special Judge-01, CBI, North West Rohini Courts, Delhi/sv CBI No. 24/09 Page 120 of 120