The instant petition under Section 482 Cr.P.C. has been filed by the applicant - Pratap Singh with a prayer to quash the charge sheet dated 30.6.2020 and the congnizance taking order dated 21.7.2020 as well as all the proceedings of Criminal Case No.13/2020 (State v. Ram Naresh Singh Tomar and others), under Sections 120B, 409, 420,468,471 I.P.C. & Section 13(2) r/w 13(1)(c) & (d) of Prevention of Corruption Act, 1988, P.S. ACB/CBI/Lucknow, pending in the court of Special Judge Anti Corruption CBI, Court No.5, Lucknow, so far as the proceedings relate to the applicant.
Heard Sri Dhirendra Singh Panwar, learned counsel for applicant, Sri Anurag Kumar Singh, learned counsel for Central Bureau of Investigation and perused the record.
Brief facts giving rise to this case as unfolds from the documents available on record are that an FIR was lodged by one B.M.Pandey, Inspector, Khadya Prakoshth, Indira Bhawan, Lucknow, registered as Case Crime No.603/2005, under Sections 120-B, 409,420,466,467,468,471 IPC & Section 13(2) r/w Section 13(1)(d) of the Prevention of Corruption Act, P.S.Kotwali Sadar, District Lakhimpur Kheri against Than Singh and others. On the matter being transferred to CBI/ACB/Lucknow on 31.10.2008 and after investigation, charge sheet under Sections 120-B,409,420,468,471 IPC & Section 13(2) r/w Section 13(1)(d) of the Prevention of Corruption Act, was filed against the instant applicant and other co-accused persons in above penal sections.
By passing the impugned order, the Special Judge vide order dated 21.7.2020 took cognizance of the offence and summoned the applicant along with other co-accused persons under Sections 120-B,409,420,466,467,468,471 IPC & Section 13(2) r/w Section 13(1)(d) of the Prevention of Corruption Act, 1988. The non-bailable warrants were also issued against the applicant vide order dated 27.01.2021.
Learned counsel for applicant confined his submissions only to the point that the Special Court has taken the cognizance of the offences and has issued the summons against the applicants apart from other penal sections, under Sections 409 I.P.C. and Section 13(2) read with 13(1)(d) of Prevention of Corruption Act also and the applicant being a private person (not a Government Servant), the aforesaid penal sections could not be attracted in his case and, therefore, the trial court has committed a manifest illegality and thus all the proceedings pending before the court below as well as the cognizance taking order dated 21.07.2020 being illegal be quashed. He has relied on a judgment passed by the Hon'ble Supreme Court in Ramesh Gelli v. Central Bureau of Investigation, AIR 2016 SC 1063, specifically on para-40 and submits that as the applicant is not a public servant within the meaning of Section 21 of I.P.C., the offence under Section 409 I.P.C. or under relevant sections of the Prevention of Corruption Act could not be invoked against the applicant.
Sri Anurag Kumar Singh, learned counsel for C.B.I. submits that the offence of Section 120-B is an independent offence and for summoning the accused person to face trial the mentioning of penal section is not mandatory, which are required to be specified at the time of framing of charge. He, while relying on a judgment of Hon'ble Supreme Court, namely, State through C.B.I., New Delhi v. Jitendra Kumar Singh, reported in (2014) 11 SCC 724, specifically on para-33 of the report submits that even a non government servant could be prosecuted for hatching a conspiracy or for abetting the offence specified in the Prevention of Corruption Act and similar is the case with regard to Section 409 I.P.C. He while mentioning various sections of Cr.P.C. submits that still the charge has not been framed and the trial has not commenced and thus the applicant could not be aggrieved simply by being summoned by the Special Judge to face trial and if he is having any grievance, he can raise the same at appropriate stage e.g. at the time of framing of the charge and, therefore, the petition is premature as well as no illegality has been committed by the Special Judge while taking the cognizance and summoning the applicant to face trial.
Having heard learned counsel for parties and having perused the record it is evident that the Special Judge has taken the cognizance of the offence and issued the process against the applicant, namely Pratap Singh to face trial under Section 120-B,409,420, 468,471 IPC & Section 13(2) r/w Section 13(1)(d) of the Prevention of Corruption Act, , 1988, by passing the order dated 21.7.2020. The grievance of the applicant, in particular, is that he is not a government servant and, therefore, the Special Judge has committed a manifest illegality in summoning him to face trial amongst others under Sections 120-B, 409 IPC & Section 13(2) r/w Section 13(1)(d) of the Prevention of Corruption Act also.
Perusal of the charge sheet filed by the CBI against the applicant and other co-accused persons would reveal that allegations against the accused persons and others, are to the tune that they have caused huge loss to the government exchequer in the distribution of Public Distribution System (PDS)(food grain) and, therefore, has wrongly gained by way of cheating, forgery, preparing false documents with regard to the Below Poverty Line Scheme sponsored by the Government of India and black marketed the food grain in the open market which was meant for the purpose of distribution to the poor persons. While specifying the modus operandi it is stated in the charge sheet that for the purpose of committing the scam, fictitious/fake Jot-bahis were prepared and payments were made by the agency to the fake farmers and fictitious farmers have got prepared bank drafts in the name of various Kotedars (Fair Price Shopkeepers) for allotment of food grain under BPL scheme and the food grain was lifted from the SFC/SWC/CWC godowns and was dumped in the black market instead of distributing the same to the actual beneficiaries and also that the subsidy provided by the government was also misappropriated. The above scam is alleged to have been committed by the public servants in connivance with the private persons. It is also stated in the charge sheet that instant applicant, namely, Pratap Singh had got prepared the demand drafts through other co-accused persons and he was also running a shop in the name of M/s Jai Bharat Trading Company at Mitauli and has black marketed the food grain received from the Block godown.
It is also revealed during investigation that Shri Chail Bihari, Shri Shyamu, Shri Sarju Prasad and Shri Sunil Kumar, were employees of applicant Pratap Singh and they got prepared the demand drafts on the instructions of Pratap Singh.
Having perused the conclusion of the Investigating Officer, as stated in the charge sheet, it is manifestly clear that the Investigating Officer has reached to a conclusion that the food grain, which was meant to be distributed to the poor persons under BPL scheme, was sold in the open market in pursuance of a conspiracy hatched between the accused persons who are government servants as well as private persons.
Hon'ble Supreme Court in P. Nallammal and Ors. Vs. State Rep. by Inspector of Police , while considering the identical issue opined as under:-
"8. Before dealing with the contention advanced by the appellants we may point out that Section 4 of the P.C. Act confers exclusive jurisdiction to Special Judges appointed under the P.C. Act to try the offences specified in Section 3(1) of the P.C. Act. To understand the exclusivity of such jurisdiction it is advantageous to extract Section 4(1) of the P.C. Act as under:
Notwithstanding anything contained in the CrPC, 1973 (2 of 1974), or in any other law for the time being in force, the offences specified in Sub-section (1) of Section 3 shall be tried by special Judges only.
9. The placement of the monosyllable "only" in the sub-section is such that the very object of the sub-section can be discerned as to emphasize the exclusivity of the jurisdiction of the Special Judges to try all offences enveloped in Section 3(1). That can be further noticed while reading that sub-section. It is as follows:
The Central Government or the State Government may, by notification in the Official Gazette, appoint as many special Judges as may be necessary for such area or areas or for such case or group of cases as may be specified in the notification to try the following offences, namely:
(a) any offence punishable under this Act; and
(b) any conspiracy to commit or any attempt to commit or any abetment of any of the offences specified in Clause(a).
10. Thus, Clause (b) of the sub-section encompasses the offences committed in conspiracy with others or by abetment of "any of the offences" punishable under the P.C. Act. If such conspiracy or abetment of "any of the offences" punishable under the P.C. Act can be tried "only" by the Special Judge, it is inconceivable that the abettor or the conspirator can be delinked from the delinquent public servant for the purpose of trial of the offence. If a non-public servant is also a member of the criminal conspiracy for a public servant to commit any offence under the P.C. Act, or if such non-public servant has abetted any of the offences which the public servant commits, such non-public servant is also liable to be tried along with the public servant before the court of a Special Judge having jurisdiction in the matter."
Hon'ble Supreme Court in MANU/SC/0083/2014, State through CBI New Delhi V Jitender Kumar Singh wherein the accused persons entered into a criminal conspiracy with the officers of the Bank of Maharashtra and, in pursuance to the criminal conspiracy, obtained huge credit facilities to the tune of Rs. 20 crore in favour of M/s. Orson Electronics Limited and M/s. Nihon Electronics Limited, of which one accused was the Managing Director/Director, knowing very well that both the companies were having very low capital and were new and funds obtained from the bank were siphoned off through fictitious firms, observed as under:-
"28. Thus, the scheme of the PC Act makes it quite clear that even a private person who is involved in an offence mentioned in Section 3(1) of the PC Act, is required to be tried only by a Special Judge, and by no other Court. Moreover, it is not necessary that in every offence under the PC Act, a public servant must necessarily be an accused. In other words, the existence of a public servant for facing the trial before the Special Court is not a must and even in his absence, private persons can be tried for PC as well as non-PC offences, depending upon the facts of the case.
29. We, therefore, make it clear that it is not the law that only along with the junction of a public servant in array of parties, the Special Judge can proceed against private persons who have committed offences punishable under the PC Act.
30. Sections 3(1)(a) and (b), it may be noted, deal with only the offences punishable under the PC Act and not any offence punishable under Indian Penal Code or any other law and Section 4(1) of the PC Act makes it more explicit.
31. Section 4(1) of the PC Act has used a non-obstante clause. It says, "notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974) or in any other law for the time being in force, the offences specified in Sub-section (1) of Section 3 shall be tried by special Judges only". Consequentlyween the accused persons who are government servants as well as private persons. , the offences referred to in Section 3(1) cannot be tried by the ordinary criminal court, since jurisdiction has been specifically conferred on a Special Judge appointed under Section 3(1) of the PC Act. Sub-section (2) of Section 4 also makes it clear, which says that every offence specified in Sub-section (1) of Section 3 shall be tried by the special Judge for the area within which it was committed, or, as the case may be, by the special Judge appointed for the case, or, where there are more special Judges than one for such area, by such one of them as may be specified in this behalf by the Central Government. A conjoint reading of Section 3(1) along with Sections 4(1) and (2) would make it amply clear that only the Special Judge has got the jurisdiction to try the offences specified in Sub-section (1) of Section 3 committed by a public servant or a non-public servant, alone or jointly.
32. We may now examine the scope of Sub-section (3) of Section 4 of the PC Act, which indicates that "when trying any case", which means trying any case relating to the offences referred to in Section 3(1)(a) and (b) of the PC Act for which exclusive jurisdiction is conferred on the Special Judge. A Special Judge, while exercising, exclusive jurisdiction, that is, when trying any case relating to offences under Sections 3(1)(a) and (b) of the PC Act, may also try any offence other than the offence specified in Section 3, with which the accused may, under the Code of Criminal Procedure, 1973 be charged at the same trial. An accused, in a given case, may be charged under the Code of Criminal Procedure on an offence being committed under the Indian Penal Code and the offence specified in Section 3 of the PC Act. Criminal cases that can be tried by a Special Judge are under the PC Act and also for the charges under Indian Penal Code or any other legislation. Conspiracy to commit any offence either under the PC Act or under thween the accused persons who are government servants as well as private persons. e Indian Penal Code is a separate offence, has to be separately charged and tried. For example, the conspiracy to commit offence punishable under the PC Act itself is an offence to be tried only by a Special Judge. In Ajay Aggarwal v. Union of India MANU/SC/0265/1993 : (1993) 3 SCC 609, the Court held as follows:
...Conspiracy to commit a crime itself is punishable as a substantive offence and every individual offence committed pursuant to the conspiracy is separate and distinct offence to which individual offenders are liable to punishment, independent of the conspiracy....
33. Reference may also be made to the judgments of this Court in Sanichar Sahni v. State of Bihar MANU/SC/0888/2009 : (2009) 7 SCC 198 and Mohd. Arif v. State (NCT of Delhi) MANU/SC/0919/2011 : (2011) 13 SCC 621."
The Kerala High Court in Prabhu vs. Union of India (UOI), MANU/KE/0027/2003 while dealing with the issue held as under:-
"5. In this case, the accused is alleged to have committed the offences Under Sections 12 and 14(b) of the P.C. Act. Section 12 of the Act lays down that whoever abets any offence punishable under Section 7 or Section 11 of the Act whether or not that offence is committed in consequence of that abetment, shall be liable to punishment. Thus under Section 12 of the Act even if the offence abetted is not committed by the public servant, the person who abetted the offence is liable to punishment. Under Section 14(b) of the Act whoever habitually commits an offence punishable under Section 12 shall be punishable with imprisonment for a term which shall not be less than two years but which may extend to seven years and also be liable to fine. It is true that when an offence abetted is committed the person who abetted the offence and the person who committed the offence can be tried at one trial. Suppose in a case the offence under Section 7 or Section 11 abetted by a non-public servant is not committed by a public servant, the non-public servant can only be prosecuted under Section 12 or Section 14(b) of the Act. In such a situation, if a non-public servant alone cannot be tried before a Special Judge, the guilty person may go unpunished. The lower court relied on the decision of the Supreme Court in P. Nallammal v. State (MANU/SC/0455/1999) to hold that a non-public servant alone cannot be tried before a court of Special Judge. It appears that the court below has misunderstood the decision of the Supreme Court. In Nallammal's case the appellants contended that they are not liable to be prosecuted along with the public servants for the offences under Section 109 of the Penal Code read with Section 13(1)(e) of the P.C. Act. It was contended for the appellants that the offence under Section 13(1)(e) of the P.C. Act is unabettable. The Supreme Court held that if a non-public servant is also a member of the criminal conspiracy for a public servant to commit any offence under P.C. Act, or if such a non-public servant abetted any of the offences which the public servant committed, such non-public servant is also liable to be tried along with the public servant before a Court of Special Judge having jurisdiction in the matter. There is nothing in the decision to indicate that a non-public servant alone cannot be tried for the offences punishable under Sections 12 and 14(b) of the P.C. Act. According to me, the impugned order in this case is clearly illegal and cannot be sustained. A Special Judge has exclusive jurisdiction to try the offences punishable under Sections 12 and 14(b) of the P.C. Act and if any offence under Section 7 or Section 11 of the Act abetted by a non-public servant is not committed by a public servant the non-public servant alone can be tried by a Special Judge for the offence under Sections 12 or 14(b) of the Act."
Bombay High Court in Central Bureau of Investigation v. Sham B. Bhatia, 2009 SCC OnLine Bom 2331 held that "It is, therefore, seen that the criminal cases that can be tried by the Special Judge are for charges under the PC Act and for the charges under the IPC or any other legislation. It can be for the charges under the PC Act and also for abetment to commit those charges. It can be for charges under the PC Act and for conspiracy to commit those offences. This is because entering into a criminal conspiracy is a separate and independent offence under Section 120B of the IPC (Bimbadhar Pradhan v. State of Orissa, AIR 1956 SC 469 at page 474) to which my attention has been drawn by the learned Additional Solicitor General. In that case, it was held that even when the accused is acquitted in respect of charges of criminal breach of trust and falsification of documents, he could have been convicted for the offence of criminal conspiracy to commit the offences of breach of trust and falsification of documents. It was held so because the offence of criminal conspiracy consisted in the very agreement between the two or more persons to commit a criminal offence irrespective of further consideration, whether or not those offences have actually been committed. It was observed that the very fact of conspiracy constitutes the offences and it ismimmaterial whether anything has been done in pursuance of the unlawful agreement.
12. Consequently, it is seen that if there is a conspiracy to commit any offence either under the PC Act or under the IPC, it is a separate offence. The offence for which the conspiracy took place may or may not have been committed. Even then, conspiracy to commit that offence, being a separate offence, can be separately charged and tried. Since under Section 3(b) of the PC Act, 1988, conspiracy to commit any offence punishable under the PC Act, 1988 is itself an offence, it can be separately charged and tried. That can be tried only by the Special Judge who is appointed under Section 3 of the PC Act, 1988. The charge that remains in this case to be tried by the Special Judge is the conspiracy to commit offences punishable under the PC Act not only by the public servants who were the officers/employees of Bank of Maharashtra, but also the private persons (the Respondents herein). To try such offence of conspiracy, the Special Court has been vested with the special jurisdiction. No other Court can try that offence."
The law propounded in Ramesh Gelli (supra), relied on by learned counsel for applicant is pertaining to the simplicitor framing of charge under Section 409 I.P.C. or under Section 13(2) r/w Section 13(1)(d) of the Prevention of Corruption Act, 1988, against a private person and thus there can be no doubt that a non government servant or private servant could not be charged for committing these offences simpliciter. However the position will be different if a private person is charged for hatching a conspiracy or abetting these offences and he could be charged as such with the help of Section 107 or 120B IPC for abetting the crime or for hatching a conspiracy for commission of the same. Thus the applicant could not get any benefit of the above case law relied on by him.
It is therefore amply clear from the facts and circumstances of this case as well as the case laws placed herein before that the offences, committed in conspiracy with others or by abetment with regard to any of the offences punishable under the P.C. Act., can be tried only by the Special Judge. it is inconceivable that the conspirator (Accused applicant) who is accused of hatching a conspiracy with the public servant can be separated from the delinquent public servants for the purpose of trial of the offence, with whom the conspiracy was hatched. If a non-public servant is also a member of the criminal conspiracy with the public servant to commit any offence under the P.C. Act, such non-public servant, in the considered opinion of this Court, is also liable to be charged and tried along with the public servant. It is also evident that trial of the instant case is in its early stages, the charge has also not been framed yet and the applicant, at the stage of framing of charge, would be at liberty to demonstrate before the trial Court that evidence or material is not such, on the basis of which charge under particular section could not be framed and a decision in this regard will have to be taken by the trial Court, but the stage of taking cognizance and issuance of process is certainly not a stage where minute scrutiny of evidence or material is desired.
Hon'ble Supreme Court in State of Haryana and Ors.v. Bhajan Lal and Ors. MANU/SC/0115/1992 : 1992 suppl. (1) SCC 335, had elaborately considered the scope and ambit of Section 482 Code of Criminal Procedure/Article 226 of the Constitution in the context of quashing the criminal proceedings. In paragraph 102, seven categories of cases were enumerated where in power can be exercised Under Article 226/Section 482 Code of Criminal Procedure by the High Court for quashing the criminal Proceedings. Paragraph 102 runs as follows:
"102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power Under Article 226 or the inherent powers Under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.
(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the Accused.
(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers Under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.
(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the Accused.
(4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated Under Section 155(2) of the Code.
(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the Accused.
(6) Where the is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly attended with malafide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the Accused and with a view to spite him due to private and personal grudge."
Thus for the reasons and law enumerated herein before I am of the considered view that the trial Court has not committed any illegality either in taking cognizance of offences or issuing process against the instant accused person in the aforesaid penal sections along with public servants and the application moved by the applicant being devoid of merits is liable to be dismissed and is dismissed accordingly.
At this juncture, learned counsel for applicant submits that he be provided an opportunity to move an appropriate application for discharge before the Special Judge concerned.
Need not to say that the the applicant after obtaining bail, if the same has not been obtained yet, at an appropriate stage may move an application for his discharge and the Special Judge concerned may dispose of the same by providing an opportunity of being heard to the parties in accordance with law.
Order Date :- 25.8.2021 Irfan