These Criminal Revisions under Section 397 read with Section 401 of Criminal Procedure Code (Cr.P.C.). The applications under Section 482 Cr.P.C. have been filed challenging the charge-sheet submitted by the Central Bureau of Investigation (hereinafter referred to as "C.B.I.') and the summoning orders passed by the Special Judge, C.B.I., Ghaziabad in Case Crime No. 152 of 2008, C.B.I. vs. Ashutosh Asthana and others. The case is commonly known as 'Ghaziabad P.F. Scam'.
Before adverting to the merits of the revision petition as well as applications made under Section 482 Cr.P.C. it would be worthwhile to state the facts leading to the present proceedings in short.
On a first information report lodged by the Special Judge and Vigilance Officer, District Court, Ghaziabad on 15th February, 2008, being Case Crime No. 152 of 2008, police investigation was initiated in the matter of fraudulent embezzlement of money in the name of General Provident Fund (G.P.F.) of the employees of District Court, Ghaziabad by Late Ashutosh Asthana, Central Nazir, District Court Ghaziabad and other 82 persons. While the matter was still pending investigation by the police, a Special Leave Petition was filed before the Supreme Court for investigation being transferred to the C.B.I., being Special Leave Petition (c) No. 12981 of 2008. In between three police reports were filed on 14.04.2008, 22.04.2008 and 04.05.2008 before the District Judge, Ghaziabad. The reports were transmitted to the Special Judge, Anti Corruption/E.C. Act for further action. At the relevant time A.K.Singh IV was the Special Judge Anti Corruption/EC Act, Ghaziabad.
The Government of Uttar Pradesh issued a notification dated 10.09. 2008 in exercise of powers under Section 6 of the Delhi Special Police Establishment Act, 1946 for transfer of the above mentioned case to the C.B.I. The Apex Court on 23rd September, 2008 after taking note of the Notification dated 10.09.2008 transferred the investigation in the said case to the C.B.I., inter alia observing that the C.B.I. may file final report or charge-sheet, as the case may be, preferably within the period of three months and the Court, before which the final report or the charge-sheet is filed, was required to take appropriate action thereon in accordance with law.
Accordingly, Case No. RC-I(A) of 2008/CBI/ACB/Ghaziabad was registered on 01st October, 2008 against late Ashutosh Asthana and 82 others. The investigation by the CBI was monitored by the Hon'ble Supreme Court, as is clear from the various orders passed by the Apex Court from time to time (copies of which have been produced before the Court).
An investigation report dated 01.07.2010 was submitted by the C.B.I. on 03rd July, 2010. The report disclosed that during the period 2001 to 2008 Late Ashutosh Asthana along with the Revisionists/Applicants and others (names whereof are not required to be disclosed in detail herein) had fraudulently and dishonestly withdrawn more than six crore of rupees from the District Treasury as G.P.F. withdrawals based on fake/forged documents.
Accordingly, charge-sheet under Section 120-B read with Sections 420, 467, 468 and 471 IPC and Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act was filed against the accused persons in the Court of Special Judge, C.B.I., Ghaziabad on 03rd July, 2010.
In order to keep the record straight it may be mentioned that the C.B.I. made an application before the Apex Court for transfer of the trial proceedings from the Special Judge, C.B.I., Ghaziabad to some other court of competent jurisdiction, preferably at Delhi. This application was considered and rejected by the Supreme Court vide detailed order dated 19th November, 2010. It was observed that there was no merit in the request of the C.B.I. for transfer of the trial from Ghaziabad to any other place. The Trial Court was directed to proceed with the case expeditiously.
On the basis of the material so brought on record in the form of the charge-sheet by the C.B.I., the Special Judge, C.B.I. after due consideration proceeded to pass the order dated 21.12.2010 summoning the revisionists and the applicants along with others.
Shri Satish Trivedi, Senior Advocate opening the submissions in leading Revision No. 132 of 2011 canvassed following grounds for challenging the C.B.I. report and the summoning order :
(A) The Presiding Officer, Shri A.K. Singh IV had recorded the statement of Anokhey Lal, Rameshwar Tiwari, Sachin Goel, Anurag Garg, Ami Chand, Sanjeev Tyagi and Arun Kumar Verma on 29.06.2010 and 30.06.2010 under Section 164 Cr.P.C. and that he has based the summoning order on the said statements only. He is a part of investigation and a witness. He is an interested person and, therefore, he can not act as Trial Judge in the matter in view of Section 479 Cr.P.C. It is contended that the Supreme Court in the case of A.K. Karipak vs. Union of India reported in (1969) 2 ICC 262, has held that no person can be judge of his own cause and even otherwise there would be violation of one of the principles of natural justice i.e. no one can be a Judge of his own cause. A.K. Singh IV has been named as a witness in the report of C.B.I. filed on 03.07.2010.
(B) There is no material evidence filed along with the report of CBI which could justify even prima facie satisfaction being reached qua any offence having been committed by the applicants/revisionists. Therefore, the summoning order is bad. In support of the aforesaid, it is contended that the petitioners have discharged their duties while acting as Judicial Officers of the Court, both on the judicial side as well as on the administrative side. There is no evidence referred to in the charge-sheet by the Central Bureau of Investigation, which can attribute any motive to the plaintiff in deliberately signing the documents which were not in respect of bona fide persons or employees of the judgeship nor any evidence has been brought on record to establish that the money withdrawn from the G.P.F. Account has been utilized by the applicants/revisionists for their personal benefit. It is also stated that in the police reports dated 14.04.2008, dated 24.04.2008 and dated 04.05.2008, the Applicants/Revisionists were not named nor any offence by them was disclosed. The statements recorded on 29.06.2010 and 30.06.2010 were illegally recorded and, therefore, such statements could not be relied for the purposes of forming even a prima facie opinion against the accused.
(C) The investigation done by the CBI under orders of the Apex Court at best can be treated as report after further investigation referable to Section 173 (8) Cr.P.C.. Such report in respect of an offence, cognizance whereof had already been taken was required to be placed before the same Court which had taken the cognizance of the offence at the first instance. Submission of the report before the Special Judge, CBI, Ghaziabad, in the facts of the case was unauthorized resulting in the summoning order being rendered illegal.
(D) The Revisionist was a District Judge at the relevant time and thereafter elevated as Judge, High Court from where he retired. The Revisionist cannot be prosecuted without proper sanction under Section 197 Cr.P.C.. All the acts attributed have been so done in discharge of official duty and in any case at least in purported discharge of official duty. Reliance is placed upon the judgment of the Apex Court in the case of State of U.P. Vs. Sheetala Sahai reported in 2009 (8) SCC, 617.
(E) The report of CBI has been submitted by the Additional Superintendent of Police, C.B.I., Ghaziabad when under the CBI Manual, which have been held to be mandatory by the Apex Court in the case of Shasikant vs. C.B.I. reported in 2000 (1) ACC 630 the report could be submitted the Superintendent of Police CBI only. Such violation of statutory provision render the report illegal and the same could be acted upon. With reference to Section 168 Cr.P.C., it is stated that the Superintendent of Police being the Officer In-charge C.B.I. Police Station, the Additional Superintendent of Police being subordinate to him had to report the result of investigation to the Officer-in-Charge of the Police Station. It is the Superintendent of Police who could have submitted the report in prescribed form known as Charge-Sheet. Therefore, the very basis of the summoning order is bad.
(F) A large number of accused have been named in the report and the summoning order they have been assigned different roles, therefore, joint trial in the facts of this case is not warranted. Reference is made to the judgement of the Hon'ble Supreme Court in the case of Kotteakos vs. U.S. reported in AIR 1966 S.C. 1239.
Shri Gopal Chaturvedi, Senior Advocate appearing in Criminal Revision No. 141/2000 further contended that the notification dated 09th August, 2009 cannot be read in a manner to suggest that the proceedings before the Special Judge (Anti-Corruption)/EC Act, Ghaziabad stood transferred to the Special Judge, C.B.I. Ghaziabad merely on submission of the report by the C.B.I. At least it is not so contemplated under the notification dated 13.08.2009.
Shri Nandit Srivastava, Advocate in Criminal Revision No. 90 of 2011 supported the first issue raised by Satish Trivedi, Senior Advocate qua A.K. Singh being disqualified to act as the Trial Judge in the facts of the case. He submits that revisionist no. 3 in Revision No. 90 of 2011 is still in active service and, therefore, qua him at least it is mandatory that sanction should have been obtained under Section 197 Cr.P.C. and lastly that the investigation was biased. Shri Nandit Srivastava, Advocate has placed reliance in support of his argument upon the Apex Court judgment in the case of Mohd. Yunus Khan vs. State of U.P. and Ors. reported in 2010 (10) SCC 539.
It is explained that in respect of certain employees of Ghaziabad, sanction under Section 197 Cr.P.C., had been obtained in respect of the same offences while in the case of the revisionists/applicants before this Court, such sanction has not been obtained and yet the impugned order has been issued.
Shri V.P. Srivastava, Senior Advocate assisted by Shri Lav Srivastava, Advocate appearing on behalf of the applicant, R.P. Yadav who has filed application no. 2246 of 2011 under Section 482 Cr.P.C. contended that before the Special Judge, C.B.I., an application supported by certain documents was filed requesting for further investigation for free and fair trial which is a right guaranteed under Article 21 of the Constitution of India. These documents had been completely ignored by the CBI while submitting its report. The application has been rejected by the Special Judge, C.B.I. only on the ground that it is not maintainable. This part of the order is illegal inasmuch as the Special Judge has ample power under Section 173 (8) Cr.P.C. to direct further investigation on sufficient material being brought to his knowledge.
He then contended that in view of the judgments of the Hon'ble Supreme Court in the case of R. Balakrishna Pillai vs. State of Kerala reported in 1996 (1) SCC 478 specifically paragraph 6 and in the case of State of Madhya Pradesh vs. Sheetla Sahai and others reported in 2009 (8) SCC 617 paragraph 55, the C.B.I. report on its face value does not disclose any offence so far as the applicant is concerned. He contends that all the acts noticed in report have been so done in discharge of official duties or at least in purported discharge of official duties. Therefore, sanction under Section 197 Cr.P.C. was mandatory before he could be summoned under Sections 120-B, 467, 468, 471 Cr.P.C. In absence of sanction, the summoning order is rendered bad.
Shri Surendra Tiwari, counsel for the applicants in other two applications under Section 482 Cr.P.C. adopted the arguments advanced by other counsels as noted above.
It may be specifically recorded that all the counsels have stated that the arguments advanced by Sri Satish Trivedi, Senior Advocate which have been noted here-in-above, may be taken as the submission on their behalf also.
Shri Anurag Khanna, Counsel for the C.B.I. disputes the correctness of the pleas raised on behalf of the revisionists as well as the applicants.
He at the very outset submitted that the mentioning of name of A.K. Singh, Special Judge, C.B.I. Ghaziabad in the list of witnesses submitted by C.B.I. along with the report before the Special Judge, C.B.I. is only for disclosing the name of the Judicial Officer who had exercised the power on the relevant date under Section 5(2) of the Prevention of Corruption Act. A.K.Singh IV was the Presiding Officer, Special Judge, (Anti-Corruption) EC, Ghaziabad, at the relevant time. He had recorded the statement of Shri Anokhey Lal, Rameshwar Tiwari, Sachin Goel, Anurag Garg, Ami Chand, Sanjeev Tyagi and Arun Kumar Verma on 29.6.2010 and 30.6.2010 in exercise of powers under Section 5(2) of the Prevention of Corruption Act. Such recording of statement by the Judicial Officer in discharge of his judicial functions for the purpose of granting pardon to the persons concerned, can never lead to an inference that the Judicial Officer can be said to have become interested in the trial personally or to have becomea party to the same, so as to attract the provisions of Section 479 Cr.P.C.. He submits that the judgment of the Apex Court in the case of A.K. Karipak vs. Union of India (Supra) relied upon by the applicants/revisionists has no application in the facts of the present case inasmuch as discharge of judicial function by a Judicial Officer will not make him a party to the proceedings nor it can be said that he has become interested in the trial. He points out that in view of the notification dated 09th August, 2009 issued in exercise of power under Section 3 of the Prevention of Corruption Act designating A.K. Singh IV as the Presiding Officer, Special Judge, C.B.I., Ghaziabad, he alone can act upon the report submitted by the C.B.I. and no other Judicial Officer has any legal authority to take any action on such report of C.B.I. He submits that in the facts of the case even if a plea of violation of principle of natural justice could be permitted to be raised the same has to be repelled in view of the doctrine of necessity ,as A.K. Singh IV alone can proceed with the trial of the case in view of Notification dated 09.8.2009.
He points out that cognizance of the offence was taken on the report of the police by the Special Judge, Anti-Corruption/EC Act to be precise on 9.5.2010. It is settled law that cognizance is taken of the offence and not of the offenders. The report submitted by C.B.I. in pursuance to the orders passed by Hon'ble Supreme Court referred to above, in light of the notification dated 09.08.2009 could be considered by the Special Judge, C.B.I. only. Such reports did disclose sufficient material on prima facie basis for the Special Judge, C.B.I. Ghaziabad to summon the applicant/revisionist. In the facts of the present case the summoning order is legally justified.
Shri Anurag Khanna with reference to the stage of the proceedings before the Special Judge, C.B.I. and the scope of revision/application filed under Section 482 Cr.P.C. against the summoning order on the basis of the law laid down by the Apex Court in the case of Sanghi Brothers (Indore) (P) Limited vs. Sanjay Choudhary and Ors. reported in 2008 (10) SCC, 681 contends that the test to be applied at the stage of summoning the accused which is a step before framing of the charge is of prima facie case only. Therefore, the scope of exercise of revisional powers under Section 397 shall be limited to examination of the prima facie satisfaction recorded in the summoning order qua the involvement of the accused who has been so summoned. He also refers to the judgment of the Supreme Court in the case of Associated Cement Co. Ltd. vs. Keshvanand reported in (1998) 1, SCC, 687 for the same proposition. He explains that from the order of the Special Judge, C.B.I. It is clear that specific role has been assigned in the report of C.B.I. to all those who have been summoned and that the Special Judge has taken care to record his prima facie satisfaction qua their involvement on the basis of the material before him. The evidentory value of the material and the explanation to acts alleged by the revisionists/applicants before this Court need not be taken into consideration for examining the legality of the summoning order as such issues must be raised at the first instance while seeking discharge under Section 239 Cr.P.C.
With regard to the non compliance of the provisions of the C.B.I. Manual, Shri Khanna has produced before this Court the notification dated 30.12.2008 issued by the C.B.I., Head Quarters, New Delhi whereunder head of the Branches have been directed to exercise the powers regarding registration/disposal of case as per the C.B.I. Manual, 2005. He submits that head of the branches including one referable to territorial limits of Ghaziabad is the Additional Superintendent of Police who has submitted the report before the Special Judge. He clarifies that any violation of the provisions of the C.B.I. Manual would not in itself render the C.B.I. report bad, it has to be substantiated that because of such violation of the C.B.I. Manual, the report has been rendered a waste paper as the violation of the provision was fatal. Every illegality will not render the report of the C.B.I. invalid. He clarifies that the Additional Superintendent of Police being head of the Branch is the person competent to submit the report even with reference to Section 168 Cr.P.C.
With regard to prior sanction as per Section 197 being obtained in respect of the offence alleged against the applicants/revisionists, Shri Khanna points out that qua an offence under the Prevention of Corruption Act, no sanction is required as has been held by the Apex Court in the case of Prakash Singh Badal vs. State of Punjab reported in (2007) 1, SCC, 01 as well as by the Full Bench of this Court in the case of Neera Yadav vs. C.B.I. (Bharat Sangh) reported in (2006) 1 UPLBEC, 601.
With regard to the offences alleged under the various provisions of the Indian Penal Code, he points out that the Apex Court in the case of R. Bala Krishna Pillai (Supra) and State of M.P. (Supra) has clarified that the issue as to whether the alleged act is referable to discharge of official functions or at least in purported discharge of official functions is an issue of fact to be examined in each case. Such issues of fact can always be agitated by making an appropriate application for discharge under Section 239 Cr.P.C. in a warrant case. He, therefore, submits that this Court may not enter into the aforesaid aspect of the matter any further and leave it open to the revisionists to take recourse to Section 239 Cr.P.C.
With regard to the joint trial he submits that the stage of trial has yet not been reached. It is for the Special Judge, C.B.I., at the appropriate stage, to consider as to whether it is practically fair and just to conduct a joint trial or to direct separation of trial.
With regard to the contention raised by Shri V.P.Srivastava, Senior Advocate qua non consideration of the application made for further investigation, Shri Khanna refers to the judgment of the Hon'ble Supreme Court in the case of C.B.I. vs. Rajesh Gandhi reported in 1997 SC, 93 and submits that an accused has no right to claim investigation by a particular agency.
In reply to the objections raised by Shri Nandit Srivastava, Advocate, he submits that legal position with regard to competence of A.K.Singh-IV to act as a Special Judge, C.B.I. has been explained above and it is not necessary to repeat the submission again. If sanction has been obtained qua some other accused even when it was not necessary, the same will not give a cause to the present revisionist to insist that such sanction should also be obtained before proceeding against them, when under law no such sanction is needed.
I have heard learned counsel for the parties and have gone through the records of the present revisions/applications.
This Court may at the very outset record that the investigation was transferred to C.B.I. under orders of the Apex Court after noticing that the State Government itself has issued a notification for transfer of the investigation to C.B.I. Facts in that regard have already been detailed above. This Court may record that while passing the order dated 19.11.2010, the Apex Court has taken note of the fact that the C.B.I. has already submitted its report before the Special Judge, C.B.I., Ghaziabad and accordingly directed the C.B.I. Court, termed as Trial Court, to proceed with the case expeditiously.
It is no doubt true that the directions issued by the Hon'ble Supreme Court to proceed with the trial would necessarily mean to proceed in accordance with law.
The scope of the present revision and the illegalities pointed out in the summoning order have to be examined by this court within the four corners of the legal principles laid down in the matter of judging the legality or otherwise of the summoning order. It cannot be disputed that the Apex Court has repeatedly held that at the stage of summoning the accused, the Court concerned is only required to arrive at and record its prima facie satisfaction qua the involvement of the accused. This principle follows from the judgment of Sanghi Brothers (supra) where even at the stage of framing of the charge (which is a later stage) the Hon'ble Supreme Court in paragraph 13 has held as follows :
"After analysing the terminology used in the three pairs of sections it was held (in Antulay case) that despite the differences there is no scope for doubt that at the stage at which the court is required to consider the question of framing of charge, the test of a prima facie is to be applied."
Therefore, the contentions raised on behalf of the revisionists and the applicants before this Court have to be examined in the background as to whether there was material for prima facie satisfaction of Trial Court for summoning the accused and as to whether such satisfaction is recorded in the order. The evidentiary value of the evidence and as to whether the same would ultimately lead to conviction or not is not to be considered at this stage nor this Court can enter into the merits of the defence set up by the accused.
It may be repeated that the cognizance of the offence on the basis of the F.I.R. lodged by the Special Judge/Vigilance Officer, District Court, Ghaziabad dated 15.02.2008 was taken by the Special Judge (Anti Corruption) Essential Commodities Act on 09.05.2008. Meaning thereby that a competent Court had taken cognizance of an offence which had been committed and the persons prima facie found to be involved, on the basis of police report submitted, were summoned. Under orders of the Supreme Court, the investigation stood transferred to C.B.I. The C.B.I. submitted its charge-sheet.
A fresh report or a report after further investigation as per Section 173 (8) Cr.P.C. submitted by the C.B.I. has necessarily to be placed before the Special Judge, C.B.I. having territorial jurisdiction over the matter. Under the notification dated 09th August, 2009 A.K. Singh-IV had been designated as Special Judge, C.B.I., Ghaziabad. Therefore, in the facts of the case the C.B.I. report had to be placed before him only and on the date of issuance of the summons it was A.K. Singh-IV alone who could acted upon the report of C.B.I. and to have proceeded in the matter in light of the directions issued by the Supreme Court in its order dated 19th November, 2010.
This Court may now examine the plea raised qua disqualification incurred by A.K. Singh-IV, as he had recorded the statement of person named above while exercising powers under Section 5(2) of the Prevention of Corruption Act and because of his being named as a witness in the charge-sheet filed by the C.B.I. The plea is sought to be support with the help of Section 306 read with Section 479 Cr.P.C., which read as follows:
"306. Tender of pardon to accomplice.- (1) With a view to obtaining the evidence of any person supposed to have been directly or indirectly concerned in or privy to an offence to which this section applies, the Chief Judicial Magistrate or a Metropolitan Magistrate at any stage of the investigation or inquiry into, or the trial of, the offence, and the Magistrate of the first class inquiring into or trying the offence, at any stage of the inquiry or trial, may tender a pardon to such person on condition of his making a full and true disclosure of the whole of the circumstances within his knowledge relative to the offence and to every other person concerned, whether as principal or abettor, in the commission thereof.
(2) This section applies to -
(a) any offence triable exclusively by the Court of Session or by the Court of a Special Judge appointed under the Criminal Law Amendment Act, 1952 (46 of 1952);
(b) any offence punishable with imprisonment which may extend to seven years or with a more severe sentence.
(3) Every Magistrate who tenders a pardon under sub-section (1) shall record-
(a) his reasons for so doing;
(b) whether the tender was or was not accepted by the person to whom it was made, and shall, on application made by the accused, furnish him with a copy of such record free of cost.
(4) Every person accepting a tender of pardon made under sub-section(1)-
(a) shall be examined as a witness in the Court of the Magistrate taking cognizance of the offence and in the subsequent trial, if any;
(b) shall, unless he is already on bail, be detained in custody until the termination of the trial.
(5) Where a person has accepted a tender of pardon made under sub-section (1) and has been examined under sub-section (4), the Magistrate taking cognizance of the offence shall, without making any further inquiry in the case,-
(a) commit it for trial-
(i) to the Court of Session if the offence is triable exclusively by that Court or if the Magistrate taking cognizance is the Chief Judicial Magistrate;
(ii) to a Court of Special Judge appointed under the Criminal Law Amendment Act, 1952 (46 of 1952), if the offence is triable exclusively by that Court;
(b) in any other case, make over the case to the Chief Judicial Magistrate who shall try the case himself."
"479. Case in which Judge or Magistrate is personally interested.- No Judge or Magistrate shall, except with the permission of the Court to which an appeal lies for his Court, try or commit for trial any case to or in which he is a party, or personally interested, and no Judge or Magistrate shall hear an appeal from any judgment or order passed or made by himself."
In my opinion the contention so raised is totally misplaced for two reasons. (a) A. K. Singh-IV had recorded the statement of the persons named above in exercise of powers under Section 5(2) of the Prevention of Corruption Act, which reads as follows:
" Procedure and Power to Special Judge-
A Special Judge may, with a view to obtaining the evidence of any person supposed to have been directly or indirectly concerned in, or privy to, an offence, tender a pardon to such person on condition of his making a full and true disclosure of the whole circumstances within his knowledge relating to the offence and to every other person concerned, whether as principal or abettor, in the commission thereof and any pardon so tendered shall, for the purposes of subsections (1) to (5) of section 308 of the Code of the Criminal Procedure 1973 (2 of 1974) be deemed to have been tendered u/s 307 of that code".
This provision under the Special Act would necessarily exclude the applicability of Section 306 Cr.P.C.. The Prevention of Corruption Act does not in any way debar the Special Judge, who has exercised powers under Section 5(2), to proceed with the trial. Nor the trial under the Special Act can be done by any other Judge, except one appointed as Special Judge under the relevant Act.
(b) Recording of evidence of a person as per Section 5(2) of the Prevention of Corruption Act and tendering of pardon is a judicial function performed by the judicial officer. Such exercise of judicial functions can not lead to a presumption that the Judicial Officer has become personally interested in the trial or has become a party to the case so as to attract the provisions of Section 479 Cr.P.C.. Reference- Ambika Prashad vs. State of U.P. (1992) CRLJ 1478.
It is also worthwhile to notice sub-section (5) of Section 306 Cr.P.C.
Counsel for the revisionists fairly conceded that in a given case statement of persons can be recorded and pardon may be granted by the Chief Judicial Magistrate in exercise of power under Section 306(1). In view of Section 306 (5) it would be mandatory that the case be proceeded with by the Chief Judicial Magistrate himself. Therefore, this Court has no hesitation to record that no absolute bar has been placed on the competence of the Judicial Officer, who tenders pardon, to proceed with the case, if the law requires him to do so.
Although it is not necessary, yet it may be added that under Section 479 also a Judge, who is a party and interested in the trial, can be permitted to act as the judicial officer subject to the leave of the Court having competence to hear the appeal against his order.
What follows is that there is no complete bar under any statutory provision which can be said to have debarred A.K. Singh-IV from proceeding in the matter on the receipt of the C.B.I. report.
As already noticed above, under notification dated 09th August, 2009 A.K. Singh-IV has been nominated as Special Judge, C.B.I. and, therefore, even if he had earlier exercised power with reference to Section 5(2) of the Prevention of Corruption Act, 1988, he alone can proceed with the case on receipt of the C.B.I. Report. The plea of violation of natural justice would, therefore, give way to the doctrine of necessity, as has been explained by the Apex Court in the case of State of U.P. vs. Sheo Shankar Lal Srivastav (2006) 3 SCC page 276.
So far as the second contention raised on behalf of the applicants/revisionist is concerned, suffice is to record that only a prima facie satisfaction has to be arrived at and recorded by the Special Judge, C.B.I. for summoning the accused/applicants. It need not be repeated that cognizance of offence had been taken by the Special Judge, Anti Corruption (E.C. Act) on the Police Report. The report submitted by the C.B.I. was only with reference to the material collected, which in turn disclosed that applicants/revisionists were involved in the offence. Report does disclose the role played by each of the accused/applicants in the matter. The Special Judge has taken into consideration the facts so stated in the report of the C.B.I. and the material collected and produced on record before summoning the revisionists/accused. This Court may record that the material does disclose a prima facie case of involvement of the accused/applicants and a case for they being summoned. At this stage of the proceedings, it cannot be said that the Special Judge has committed any illegality in summoning the applicants/revisionists. This Court may not burden this judgment by specifically referring to the role, which has been assigned to the accused/applicants individually. Relevant facts and material have been noticed in the order of the Special Judge itself.
Evidentiary value of the material need not be examined by this Court at this stage, nor this Court can enter into the merits of the defence of the accused at a stage even before the charges are framed by the Trial Court. The applicants/revisionists still have an opportunity to respond to the summons issued and at the time of appearance before the Special Judge pray for discharge with reference to powers under Section 239 of the Code of Criminal Procedure.
The competence of the Ashok Kumar Singh-IV to proceed with the mater and to summon the accused/applicants flows from the notification dated 13th August, 2009. For ready reference the notification is being quoted herein below:
"mRrj izns'k 'kklu x`g ¼iqfyl½ vuqHkkx&9 la[;k&;w0vks0&[email protected]%&iq0&9&2009&[email protected] y[kuÅ % fnukad % 13 vxLr] 2009 vf/klwpuk izdh.kZ Hkz"Vkpkj fuokj.k vf/kfu;e] 1988 ¼vf/kfu;e la[;k&49 lu~ 1988½ dh /kkjk 3 dh mi /kkjk ¼1½ ds v/khu 'kfDr dk iz;ksx djds] jkT;iky Jh v'kksd dqekj flag&IV, vij ftyk ,oa l= U;k;k/kh'k] xkft;kckn dks izLrj&2 esa mfYyf[kr {ks= ds fy;s mDr vf/kfu;e dh /kkjk&3 dh mi/kkjk ¼1½ esaa mfYyf[kr vijk/kksa ds laca/k esa ftuesa fnYyh fo'ks"k iqfyl vf/k"Bku }kjk ,rn~i'pkr~ fo'ks"k U;k;ky; esa vkjksi&i= izLrqr fd, tk;sa] fopkj.k djus ds fy;s dk;ZHkkj xzg.k djus ds fnukad ls fo'ks"k U;k;k/kh'k fu;qDr djrs gSa vkSj ;g Hkh vkns'k nsrs gS fd vijk/kksa ds ,sls ekeyksa dk ftlesa mDr fnYyh fo'ks"k iqfyl vf/k"Bku }kjk fdlh vU; vf/klwpuk ds v/khu fu;qDr fdlh fo'ks"k U;k;k/kh'k ds le{k vkjksi i= igys gh izLrqr dj fn;s x;s gksa] vkSj ,sls vU; ekeyksa dk Hkh] tks fdlh ,sls fo'ks"k U;k;ky; ds le{k fopkjk/khu jgs gksa] Jh v'kksd dqekj flag&IV }kjk fopkj.k vkSj fuLrkj.k fd;k tk;sxk vkSj fo'ks"k U;k;k/kh'k ds mDr U;k;ky; dks U;k;ky; fo'ks"k U;k;k/kh'k Hkz"Vkpkj fujks/k inkfHkfgr fd;k tk;sxk vkSj mldk eq[;ky; xkft;kckn esa gksxkA 2& fo'ks"k U;k;k/kh'k Hkz"Vkpkj fujks/k ftudk eq[;ky; xkft;kckn esa gksxk] dh vf/kdkfjrk dk {ks=% 1&esjB] 2&eqtQ~Qjuxj] 3&lgkjuiqj] 4&ckxir] 5&xkft;kckn] 6&xkSrecq}uxj] 7&cqyUn'kgj] 8&vkxjk] 9&vyhx<+] 10&eFkqjk] 11&gkFkjl] 12&,Vk] 13&eSuiqjh] 14&fQjkstkckn] 15&eqjknkckn] 16&jkeiqj] 17&fctukSj] 18&T;ksfrckQwysuxjA vkKk ls] egs'k dqekj xqIrk lfpoA la[;k&;w0vks0&58(1)@N%&iq0&9&09 rn~fnukad% izfrfyfi vaxzsth vuqokn dh izfrfyfi lfgr] la;qDr funs'kd] jktdh; eqnz.kky; ,s'kckx] y[kuÅ dks vf/klwpuk dks fnukad& vxLr] 2009 ds vlk/kkj.k xtV ds fo/kk;h ifjf'k"V ds Hkkx&4] [k.M&ß[kß esaa izdk'kukFkZ izsf"krA d`i;k vf/klwpuk dh 30 izfr;ka 'kklu dks Hkh HkstsaA vkKk ls] ¼ckcw yky½ vuq0 lfpoA"
At the very outset it is recorded that there is no challenge to the notification dated 13th August, 2009 before this Court.
From bare reading of the notification it is apparently clear that from the date of issuance of the notification, reports of the CBI are necessarily to be submitted before the named Judicial Officer designated as Special Judge, C.B.I. In the facts of the present case A.K. Singh-IV is the Officer so designated. It is further clear that the cases, which were pending in any Court on the report of the CBI under any Special Act as well as the cases, which were pending before the regular Criminal Courts, in which CBI had submitted its report, within the territorial jurisdiction of C.B.I. Court, Ghaziabad stood transferred to the Court of A. K. Singh-IV, Special Judge, C.B.I. under notification dated 13th August, 2009. This Court has, therefore, no hesitation to record that the report submitted by the CBI along with police report submitted earlier, cognizance whereof was taken by Special Judge (E.C. Act), Ghaziabad, had to be placed before the Special Judge, C.B.I. Ghaziabad. The competence of A.K. Singh-IV, Special Judge, C.B.I. Ghaziabad to proceed on the report of the CBI and to summon the applicants/accused cannot be faulted with. The contention to the contrary of Sri Gopal Chaturvedi Senior Advocate has, therefore, to be rejected.
Sri Anurag Khanna, learned counsel for the C.B.I. has informed the Court that the Additional Superintendent of Police was the Head of the Branch i.e. Anti Corruption Branch, Ghaziabad and it is he, who had submitted the report. The report by the Additional Superintendent of Police as submitted before the CBI Court is, therefore, held to be in accordance with Section 168 Cr.P.C.
The plea that as per C.B.I. Manual the report must have been placed before the S.P., C.B.I. need not detain the Court, inasmuch as while making an application for discharge a plea can be canvassed that such report of the Additional Superintendent of Police is not in inconformity with law and therefore, may not be acted upon. It is for the Special Judge to examine all aspects of the matter. Suffice it is to record that such issues do need examination of facts and notifications applicable on the subject. Summoning order on such ground cannot be said to be vitiated specifically when the issue as to whether the alleged non-compliance of the provisions of the C.B.I. Manual would be fatal to the report of the CBI or not is still to be examined by the Competent Court.
With regard to the issue of joint trial, it has rightly been stated that such stage has yet not been reached and the trial is still to commence. As and when such stage is reached, it shall be open for the accused/applicants to contend that joint trial in the facts of the present case could not be fair and it is for the Special Judge trying the offence to take appropriate decision at that stage of the proceedings.
So far as the challenge to the part of the summoning order, whereby the application of R.P. Yadav for further investigation has been rejected as not maintainable, is concerned, this Court may record that every accused has a right of fair trial guaranteed by Article 21 of the Constitution of India. Therefore, if an accused makes an application supported by documents seeking further investigation, the Special Judge cannot reject the same on the ground that such application was not maintainable. The Special Judge should have considered the application on merits and to have recorded his satisfaction as to whether the material brought on record, by means of the application, justifies exercise of powers under Section 173(8) or not, which has not been done.
It is made clear that this Court is not expressing any final opinion on the merits or otherwise of the application so made by R.P. Yadav. However, the Special Judge is directed to reconsider the application for further investigation and to satisfy himself as to whether in the facts of the case, the material disclosed in the application has any relevance to the trial or not and as to whether any further investigation is required or not. This part of the impugned order is, therefore, segregated and is set aside. The Special Judge is directed to reconsider the application made by R.P. Yadav, for further investigation afresh, in accordance with law.
The findings recorded herein above qua requirement of sanction under Section 197 Cr.P.C. and there being material for summoning the accused are only for arriving at a conclusion as to whether in the facts of the case there was any prima facie case before the Special Judge before passing the summoning orders or not. This judgement on the said issues may be read in that background only.
After the matter was argued on merits, Sri Satish Trivedi, learned Senior Advocate contended that revisionist before this Court was not only the District Judge at the relevant time but was also subsequently appointed as the Judge of the High Court. During his working as District Judge or as the Judge of the High Court, absolutely no complaints were received and he retired gracefully. Therefore, indulgence may be granted by this Court to the revisionist to appear before the Special Judge, C.B.I., Ghaziabad in response to the summons through an advocate only with a further prayer that such appearance through counsel be permitted to continue till the stage of framing of the charge.
Sri Anurag Khanna, learned counsel for the C.B.I. in reply refers to the judgement of the Hon'ble Supreme Court of India in the case of TGN Kumar vs. State of Kerala & others passed in Criminal Appeal No (s). 1854 of 2008 decided on 14th January, 2011.
The Hon'ble Supreme Court of India after considering the provisions of Sections 205 and 331 of the Code of Criminal Procedure has specifically opined that it is the discretion of the Judge issuing summons/ trying the case to dispense with the rigour of personal presence of the accused and to permit them to be represented by a pleader.
Such discretion of the Special Judge may not be usurped by this Court specifically when an application for being represented through an advocate is claimed to have not been made before the Special Judge himself at the first instance till date.
It is further pointed out that an application was made by the revisionist before the Special Judge for being permitted to appear through an advocate on 13th January, 2011 and the application was rejected under an order dated 13th January, 2011. This order has not been subjected to challenge before this Court.
Sri Satish Trivedi, learned Senior Advocate appearing for the revisionist in reply, however, points out that the application for exemption was for a particular date only and not with reference to powers vested under Sections 205 and 331 of the Criminal Procedure Code.
Be that it may this Court records that if the earlier application was for being represented through an advocate till the framing of the charges, the application stands rejected, which order has not been subjected to challenge before this Court. In case such application was for a particular date only, it is still open to the applicants/revisionists to make an appropriate application for they being permitted to appear through an advocate and their personal presence being dispensed with. This Court has no room to doubt that if such applications are made, the same shall be considered and appropriate decision shall be taken thereon in accordance with law by the Special Judge, CBI, Ghaziabad.
In view of the aforesaid all the revisions and applications are dismissed except for the part of the order passed on the application of Sri R.P. Yadav for further investigation. That application be reconsidered by the Special Judge, CBI, Ghaziabad as directed above.
Dated : 28.01.2011 VR