Court No. - 81
Case :- APPLICATION U/S 482 No. - 41139 of 2019 Applicant :- P.K. Jain Opposite Party :- Central Bureau Of Investigation Counsel for Applicant :- Kuldeep Saxena,Vijit Saxena Counsel for Opposite Party :- Sanjay Kumar Yadav
Hon'ble Dinesh Kumar Singh-I,J.
Heard Sri Kuldeep Saxena, learned counsel for the applicant, Sri G.P. Singh, learned A.G.A. appearing for the State and perused the record.
This application under Section 482 Cr.P.C has been moved with a prayer to quash the order dated 17.09.2019 as well as the entire proceedings and the charge-sheet dated 25.03.1992 under section 420 and 120B arising out of FIR No. RC-32(S)/89-DAD dated 29.12.1989 pending in the court of Special Judge, CBI Court No.1, Ghaziabad in Criminal Appeal NO.45 of 2017 and also a prayer is made to stay the proceedings in this case till the disposal of this application.
It is argued by the learned counsel for the applicant that the impugned order dated 17.9.2019 has been passed erroneously by the Special Judge, Prevention of Corruption Act, CBI, Court No.1, Ghaziabad whereby it has rejected the application 29 Kha filed by the accused applicant. In the said application, it was mentioned that consent had not been given under section 6-D of Delhi Special Police Establishment Act, 1946 for investigation to be made by CBI and yet the CBI had proceeded with the matter and charge-sheet has been submitted, which need to be quashed. He had accordingly made a prayer in the said application that this point ought to have been decided by the appellate court as a preliminary issue so as to avoid precious time of the Court from being wasted.
Learned counsel for CBI has argued that this point had already been considered by this Court in Application u/s 482 Cr.P.C. No. 37217 of 2016 vide its order dated 20.09.2018, in which following observation has been made.
"However, in view of the observation made in the previous order dated 20.12.2017, it would be appropriate that in case the concerned appeal was then (20.12.2017) pending then nothing remains to be observed at this juncture in case of pendency of the appeal in question the appellate court shall proceed further in usual course till final disposal. It is upto the appellate court to proceed and dispose of the appeal on merit giving consideration to all claim raised before it by both the sides. However, in case the appeal was not pending on 20.12.2017 but stood disposed of then there is no point considering the submission made by counsel for the applicant."
From the above observation, it is apparent that this Court after having considered this point had directed that the appellate court would decide this matter on merit. In view of the the said observation/order of this Court, the trial court has passed the impugned order and has rejected the application 29 Kha of the applicant.
I have gone through the impugned order in which it has been recorded by the trial court that an appeal has been filed against the judgment and order dated 03.04.2017 passed by the Judicial Magistrate, Ghaziabad in case no. 3021 of 2005 holding the appellant guilty under sections 120B and 420 IPC and convicted him with one year R.I. and Rs.5000/- as fine for the above-mentioned offences. In the application 29 Kha filed from the side of the applicant, it has been mentioned that during trial of the case, an application was given from the side of the accused that if CBI had obtained permission of the State Government under section 6-D of the Delhi Special Police Establishment Act, 1946, the same should be presented before the Court but the said application was dismissed vide order dated 27.9.2016 holding that the matter relates to excise duty, which is matter of the Central Government. Against the said order dated 27.9.2016, the applicant had preferred revision no. 191 of 2016 which too was dismissed on 18.11.2016, against the said order dated 18.11.2016, Application u/s 482 Cr.P.C. No. 37217 of 2016 was preferred before High Court which was decided vide order dated 20.12.2017. During hearing before High Court, the CBI had stated that the appeal had been decided on wrong fact, therefore an application for modification was moved on 20.12.2017 and after having heard both the sides, the order dated 20.9.2018 was passed and relying upon the said order of this Court dated 20.9.2018, the trial court has dismissed the application 29 Kha of the applicant.
I see no infirmity in the impugned order because this point was considered by this Court vide order dated 20.9.2018 and had made observation that the appellate court shall proceed with the matter and decide it on merit. There was no question to decide the said issue as a preliminary issue which is being insisted upon by the learned counsel for the applicant. If the applicant had felt aggrieved e by the order of this Court dated 20.9.2018, he could have approached the higher forum.
In view of the aforesaid, this application deserves to be dismissed and is accordingly dismissed.
Order Date :- 28.11.2019 AU