The present application is filed with a prayer for quashing the orders dated 18.04.2019, 25.04.2019 and 01.05.2019 passed by Special Judge, CBI-I, Lucknow in the Criminal Case No. 15 of 2007 "CBI vs. Kamal Narayan Mishra and Others" arising out of RC-0062003 S-0014 under Sections 120B r/w Section 420, 468, 471 I.P.C. and Section 3(2) r/w Section 13(1)(d) of the Prevention of Corruption Act, 1998.
2. Learned Senior Counsel, Mr. Anoop Trivedi submitted that the application for discharge was dismissed by the Court below vide order dated 18.04.2019 and vide order dated 25.04.2019 non-bailable warrant was issued against the accused/applicant and vide order dated 01.05.2019 the court below without disposing of the application for declaring the accused /applicant as juvenile.
3. Learned counsel for the applicant submitted that on the written complaint of Shri Vijay Shankar Mishra, Naib Tehsildar (North), Tehsil Sadar, District Allahabad an F.I.R. bearing Case Crime No.361 of 2002, under Sections 419, 420, 466, 467, 468, 470 & 471 I.P.C., Police Station Colonelganj, District Allahabad was registered on 25.09.2002 against the Radhey Mohan Srivastava (the then Lekhpal- presently retired), Kamal Narain Mishra (the then Revenue Inspector- presently retired), Awadh Narain Singh (the then Lekhpal- later on Nayab Tehsildar, Koraon), Jai Narain Singh S/o Triloki Singh, resident of Sohbatiabagh, Allahabad, Krishna Dev S/o Ram Kinkar, Madholal S/o Shiv Tahal, Sohan Lal S/o Changa Singh, Mahesh Ram S/o Ram Dev, Ram Bali Ram S/o Bechan, Nagendra Kumar S/o Bechan, Ram Prasad Singh S/o Mahadev Singh, Shiv Bhushan Singh S/o Chhote Lal Singh, Sunder Singh S/o Kali Prasad, Dhara Singh S/o Ram Sewak Singh, Ramji Lal Singh S/o Mewa Lal, Raja Ram S/o Mewa Lal. In the F.I.R., it is alleged that during the course of Correction Case No. 25/118/76 of 198, S.D.M. Allahabad found that Plot No. 408, Area 9.80 was never recorded in the category of 10-A in the revenue record, but forged and fabricated entry was made and with the intention to grab the government land with the association of the private persons as well as revenue authorities. Investigation was started, in the meantime, the aforesaid Crime Case was referred to the CBI and CBI registered the aforesaid case as F.I.R. No. RC-0062003 S-0014 dated 14.07.2003 and in the most mechanical manner the charge sheet was filed, the applicant filed application under Section 482 Cr.P.C. bearing No.2075 of 2008 challenging the charge sheet and after hearing, the interim protection was given vide order dated 17.06.2008, but later on it was dismissed on 20.04.2008 and the Trial Court was directed that the case be decided expeditiously within three months from the date of communication, then the applicant filed application under Section 482 Cr.P.C. bearing No.7882 of 2018, but it was withdrawn with a liberty to file a fresh Criminal Misc. Application.
4. On 23.01.2019, the applicant filed Criminal Misc. Application No.4203 of 2019 under Section 482 Cr.P.C. and the Hon'ble Court was pleased to dispose of the aforesaid application on 31.01.2019 with the direction that the applicant is permitted to move discharge application within three weeks through counsel before the trial court, and the trial court shall decide the same within a period of three months, from the date of filing of application alongwith certified copy of the order. It was further directed that before filing the discharge application, the applicant shall furnish bond as per Section 88 Cr.P.C. before the learned court below and will appear on each and every date and in case, the applicant fails to appear before the court below, proceedings under Section 229A I.P.C. shall be initiated against him.
5. Learned counsel for the applicant also submitted that on 20.02.2019, in compliance of the order dated 31.01.2019, an application for discharge was preferred by the applicant before the Court of Special Judge C.B.I., Court No.1, Lucknow and the applicant also furnished bond as per Section 88 Cr.P.C. before the court below. He also submitted that against the judgment and order dated 20.04.2018 passed by this Court in Criminal Misc. Application No.2075 of 2008 (supra), a Special Leave Petition (criminal), Diary No.8904 of 2019 was filed on 05.04.2019 before the Hon'ble Supreme Court, which was disposed of by the Hon'ble Supreme Court by refusing to interfere in the order passed by Hon'ble High Court on 20.04.2018 and observed that the applicant shall appear before the trial court on 15.04.2019 at 10:00 a.m. Similarly, all the other accused must also appear before the trial court on 15.04.2019 and further directed that if the applicant does not appear on 15.04.2019, the protection granted earlier by the High Court vide order dated 17.06.2008 (passed by Hon'ble High Court, under which issuance of warrant shall be kept in abeyance with a direction that no coercive steps shall be taken against the present applicant in pending Criminal Case No.15 of 2007) shall come to an end. He further submitted that in compliance of order dated 15.04.2019 passed by the Hon'ble Apex Court, the applicant appeared before the learned court below.
6. Learned counsel for the applicant further submitted that the discharge application of applicant was dismissed by Special Judge C.B.I., Court No.1, Lucknow vide order dated 18.04.2019, thereafter applicant moved an application for exemption of personal appearance on 25.04.2019 due to illness, but the same was rejected and Non-Bailable Warrant was issued, fixing 27.04.2019 for personal appearnace.
7. Learned counsel for the applicant preferred an application on 29.04.2019 with a prayer for declaring the applicant as juvenile and it was obligatory on the court below to decide his aforesaid application for declaring him juvenile.
8. Learned counsel for the applicant further submitted that the learned Special Judge C.B.I., Court No.1 without disposing the application filed on 29.04.2019 had directed the applicant to surrender before the court and move a Bail Application. He further submitted that the applicant was born on 15.12.1961 and his father was working in Indian Railways and his father died on 03.06.1975 and after attaining age of majority on 25.12.2017, the applicant was given compensatory appointment in the Indian Railways. He further submitted that the parentage of father of applicant namely Ram Bali Ram (deceased was nominated as an accused) has wrongly been mentioned as Bechan, whereas the correct name was Shri Pargas and he further submitted that the father of applicant has no brother, however in the F.I.R. goes to show co-accused as Nagendra Kumar S/o Bechan and he further submitted that Original Suit No.403 of 1980 was instituted in the court of Munsif, Allahabad. The name of applicant has been shown as one of the plaintiff in the said suit as plaintiff No.5., in the plaint the age of the applicant has shown to be 20 years and the residence has been shown as Sobahatiya Bagh, Allahabad. It is further stated that on 24.05.1980 i.e. on the date of the presentation of suit, the applicant was merely 18 years and 5 months and he further submitted that that applicant has never filed any suit and he never signed on the memo of plaint, nor he had signed any Vakalatnama or any authority letter for filing the plaint, as during the course of filing of suit he was under training in the Railway Department, Kanpur.
9. Learned counsel for the applicant submitted that Nagar Mahapalika and Allahabad Development Authority filed their written statement and additional written statement thereafter the aforesaid suit was decreed vide judgment and decree dated by 25.08.1992. By the said decree the defendants therein were restrained from changing the nature of Talab situated in Araji No.408/2 and also not to interfere in the possession and occupation of the plaintiffs over the said plot. He further submitted that against the judgment and decree dated 25.08.1992 the defendants preferred a first appeal being first appeal No.781 of 1992 which was finally disposed of vide compromise and decree dated 05.03.1998 passed by the District and Sessions Judge-XI, Allahabad and he made emphasis that the applicant was not involved in any manner either in filing of the suit or in compromise of the first appeal. He has not filed any compromise application nor was present before the court during the proceedings and the applicant has no concern with the land in question and he has never claimed any right, title or interest over the land in question.
10. Learned counsel for the applicant further submitted that in suit No.403 of 1980 a specific issue at serial No.4 was framed in respect of aforesaid Izazatnama; in that suit which was decided in negative i.e. it was found that the Izazatnama, which was Exhibit 7 in the aforesaid suit, was not forged and fabricated.
11. Learned counsel for the applicant further submitted that the applicant obtained a copy of the plaint allegedly filed by Shri Jai Narayan Singh in which the name of applicant is shown as plaintiff No.5 and found that the Original Suit No. 403 of 1980 was sought to be amended by way of amendment application and subsequently vide an order dated 07.05.1985, passed by the court concerned. The plaintiff in Original Suit No.403 of 1980 were allowed to make amendment in the plaint to the effect that one Ram Pratap Singh, Shiv Bhusan Singh, Amar Singh and Ram Bali Ram (father of applicant) obtained an alloted Izazatnama dated 31.11.1962 in respect of land in question and they continue to remain in possession of the land in question and he further submitted that even if it is presumed that any Izazatnama was allegedly procured by the father of the applicant then also no criminal liability can be fastened against the applicant.
12. Learned counsel for the applicant submitted that in the charge sheet submitted by C.B.I., it is alleged that the Izazatnama which was allegedly executed in the year 1962 was found to be not genuine and he further submitted that even if it is assumed that the document which was executed in the year 1962 was not genuine even then no offence was made out against the applicant as the applicant was born on 15.12.1961 and he also submitted that the learned court below failed to consider the case of applicant and rejected the discharge application in the most mechanical manner and without deciding the issue about the juvenility of the applicant at the time of the alleged incident, therefore, the impugned orders are unfounded, illegal and are liable to be quashed.
13. Learned Senior Advocate, Mr. S.B. Pandey, Assistant Solicitor General, assisted by Shri Kazim Ibrahim, Advocate appeared on behalf of CBI and submitted that the accused persons tried to grab the government land by abusing the judicial process. Initially, the F.I.R. was registered on the complaint of Shri Vijay Shankar Misra, Naib Tehsildar, North, Tehsil Sadar, District Allahabad bearing Case Crime No.361 of 2002, under Sections 419, 420, 466, 467, 468, 470 & 471 I.P.C., Police Station Colenelganj, District Allahabad, later on, under the order of Hon'ble High Court, passed in Criminal Writ Petition No.5969 of 2002, the aforesaid investigation was transferred to Director C.B.I., New Delhi, then the case was registered as RC-0062003 S-0014 dated 14.07.2003 on the letter of Deputy Registrar General of Hon'ble High Court of Judicature of Allahabad, U.P. and he further submitted that after investigation the role of applicant was found and the charge sheet was submitted and the applicant filed application under Section 482 Cr.P.C. bearing No.2075 of 2008, challenging the charge sheet filed by the C.B.I. and after hearing, the application was dismissed on 20.04.2018 and the order is appended as annexure No.7 to the application. He further submitted that at the time of dismissing the aforesaid application, the Hon'ble Court was pleased to direct the trial court to decided the trial expeditiously, preferably within three months from the date of communication of this order. He also submitted that the charge sheet was filed on 26.05.2006 as the applicant is trying to avoid the trial, as the trial is pending since the year 2007 of Criminal Case No. 15 of 2007 arising from the aforesaid charge sheet filed by C.B.I.
14. After considering the arguments of the counsel for the parties and going through records, it is evident that F.I.R. as Case Crime No. 361 of 2002, under Sections 419, 420, 466, 467, 468, 470 and 471 I.P.C., P.S. Colonelganj, District Allahabad was registered on 25.09.2002 on the written complaint of Mr. Vijay Shankar Mishra, Naib Tehsildar (North), Tehsil Sadar, District Allahabad with the allegation that Revenue Officers and private persons named in the F.I.R. were colluded and made forged entries in the Revenue records only to give benefit for grabbing the government land valuation of about Rs. 7 Crores and it is also evident that order dated 11.10.2002 was passed by the Hon'ble Allahabad High Court in Criminal Writ Petition No. 5969 of 2002 and order was communicated by the Deputy Registrar of the High Court that the investigation of the aforesaid court case is transferred to Director C.B.I., New Delhi and thereafter, the case was registered by the C.B.I. as F.I.R. No. RC 0062003 S-0014, under Sections 419, 420, 466 467, 468, 470 and 471 I.P.C., P.S. C.B.I./A.C.B./Lucknow, District Luckonw on 14.07.2003 and after investigation C.B.I. submitted the final report/ charge sheet against Shri Kamal Narayan Mishra, Shri Radhe Shyam Dube, Shri Ram Pratap Singh, Shri Krishna Dev Singh, Shri Shiv Bhushan Singh, Shri Amar Singh, Shri Akhilesh Kumar (Applicant), Shri Dhara Singh, Shri Narendra Pratap Singh @ Narendra Singh and court below took cognizance on the charge sheet and registered as Criminal Case No. 15 of 2007, under Section 420, 468, 471 I.P.C. and Section 3 (2) r/w 3(1)(d) P.C. Act and thereafter, the applicant filed application under Section 482 Cr.P.C. bearing No. 2075 of 2008 which was dismissed vide order dated 20.04.2018. It is also evident from the record that feeling aggrieved against the order dated 20.04.2018 Special Leave Petition (Criminal) bearing No. 890 of 2019 (Akhilesh Kumar vs. State of U.P. and Anr.) was filed by the applicant before the Hon'ble Supreme Court which was disposed of on 05.04.2019 by refusing to interfere in the order dated 20.04.2018 passed by Hon'ble High Court in Criminal Case No. 2075 of 2008 and directed the trial court to follow the instructions issued by the High Court and conclude the proceedings as soon as possible and further directed that the petitioner shall appear before the trial court on 15.04.2019 at 10:00 a.m., similarly all the other co-accused appear before the trial court. Thereafter, further proceeding can be taken by the trial court immediately. The relevant para of the order passed by the Hon'ble Supreme Court is as under-
"We do not see any reason to interfere with the order passed by the High Court refusing to interfere in an application preferred under Section 482 CrPC.
While disposing of the matter, the High Court had directed the Trial Court to decide the case as expeditiously as possible and preferably within three months from the order.
The challenge in this Court against the said order is itself delayed by 232 days and according to the petitioner there has not been any progress in the matter before the Trial Court.
We, therefore, direct the Trial Court to follow the direction issued by the High Court and conclude the proceedings as early as possible.
The petitioner shall appear before the Trial Court on 15.04.2019 at 10.00 am. Similarly, all the other accused must also appear before the Trial Court on 15.04.2019 so that further proceedings can be taken up by the Trial Court immediately.
Our attention has been invited to order dated 17.06.2008 passed by the High Court under which issuance of warrant was kept in abeyance with a direction that no coercive measures be taken against the present petitioner in connection with the pending Criminal Case no.15 of 2007.
Let the Trial Court consider the matter on merits and whether any protection needs to be afforded to the present petitioner or other accused.
If the petitioner does not appear before the Trial Court on 15.04.2019, the protection granted earlier by the High Court, needless to say, shall come to an end.
With these observations, the special leave petition is dismissed."
15. It is also evident from the record that the applicant filed another application under Section 482 Cr.P.C. bearing Case No. 7882 of 2018 which was withdrawn on 23.06.2019 and filed another application under Section 482 Cr.P.C. bearing Application No. 4023 of 2019 before the Hon'ble High Court at Allahabad which was disposed of vide order dated 31.06.2019 and the liberty was given to the applicant to move discharge application within three weeks from today through counsel, relevant para of orders passed by Hon'ble High Court in Criminal Misc. Case No. 7882 of 2018 on 23.01.2019 and in Criminal Misc. Case No. 4203 of 2019 on 31.01.2019, under Section 482 Cr.P.C. are being reproduced as under-
Criminal Misc. Case No. 7882 of 2018 "(On C.M.Application No. 9227 of 2019) Learned counsel for the petitioner prays to withdraw the present petition with liberty to file a fresh petition annexing therewith the relevant documents.
Application is allowed and the petition is consigned to record with the aforesaid liberty."
Criminal Misc. Case No. 4203 of 2019 "Heard Shri Anoop Trivedi, learned counsel for the applicant and Shri Gyan Prakash,learned counsel for the C.B.I.
The present 482 Cr.P.C. application has been filed to quash the order dated 3.11.2018 passed by the Additional and Sessions Judge(Prevention of Corruption) CBI Court No. 1, Lucknow in Criminal Case No. 15 of2007 arising out of RC-0062003 S-0014 under section 120-B readwith sections 420, 468, 471 I.P.c. and section 3(2) readwith Section 13(1) (d) of Prevention of Corruption Act, 1988.
Learned counsel for the applicant submits that he has been falsely implicated by the police under the alleged sections.It has been further submitted that during the pendency of the discharge application of the other co-accused, applicant moved an adjournment application which was rejected and non-bailable warrant was issued on 3.11.2007.The applicant has approached this court praying that Non-Bailable Warrant issued against him may be withdrawan.Applicant intends to file discharge application.
Shri Gyan Prakash, learned counsel for the C.B.I. has vehemently opposed the prayer of the applicant and stated that Non-Bailable Warrant was issued in the year 2007.Therefore he approached the Lucknow Bench of this court by way of filing Criminal Miscellaneous Application No. 2075 of 2008 and orders staying coercive measures was passed in his favour.The aforesaid application has been decided vide order dated 20.4.2018 and applicant has been granted liberty to approach the trial court and raise all issues.On 27.10.2018 and 3.11.2018 he did not appeared before the court on the ground of illness,therefore, non-bailable warrants have been issued against him. This case is of the year 2007 and applicant has not yet been obtained bail.
In that view of the matter, applicant is permitted to move discharge application within three weeks from today through counsel before the trial Court and the trial court shall decide the same within a period of three months from the date of filing of application along with certified copy of this order.However before filing the discharge application, applicant shall furnish bond as per section 88 Cr.P.C. before the court below and will appear on each and every date.On failure to appear after release on bond proceedings under section 229-A I.P.C.shall be initiated against him.
Till the discharge application is decided, no coercive measures shall be taken against the applicant.
In the event of failure, on part of the applicant to act as directed above, the Court below may adopt coercive measures against him to ensure his presence.
With the aforesaid direction,the application is disposed of."
16. The counsel for petitioner has only argued on the issue that the juvenility of the applicant was not considered by the court below as it is obligatory on the court below to decided the application dated 29.04.2019 (appended as annexure No.14 to the application)
17. After considering the argument of the learned counsel for parties the Court found that there is no illegality in the impugned order passed by the learned court below on 18.04.2019 & 25.04.2019 and consequential order dated 01.05.2019. As a direction was already given by the Hon'ble Supreme Court in the order dated 05.04.2019 in Special Leave Petition (supra) bearing No. 8904 of 2019 that the trial court shall conclude the proceedings as early as possible and the applicant was directed to appear before the court on 15.04.2019, similarly all the other co-accused must also appear before the trial court on the same day so that further proceedings can be taken up by the trial court immediately and the trial court was also directed to consider the matter on merits. In such circumstances, it is evident that the proceeding of trial court is pending since the year 2007 due to successive filing of application by the applicant before this Hon'ble Court since 2008.
18. Accordingly, the applicant is directed to surrender before the court below forthwith, trial court is directed to decide the pending application of the applicant in relation to the declaration of juvenility strictly in accordance with law.
19. Accordingly, the application is disposed of.