Case BriefsTribunals/Commissions/Regulatory Bodies

Central Bureau of Investigation, CBI, Ghaziabad- Shivank Singh, Special Judicial Magistrate (CBI), while rejecting the closure report of the CBI, accepted the protest petition and directed for further investigation in Pravin Chanam murder case. The Court while criticising the shoddy investigation stated,

“…it may be noted that there are many lapses on the part of UP Police which has hauled this case with open ends. This court is in deep pain to note that due to such lapses, the parents and family of the deceased did not even get a chance to see the dead body of the deceased or to perform the last rites of their late son”.

In the pertinent matter, it was alleged in the FIR that Pravish Chanam (deceased) went missing from a concert of an international music band ‘Chain Smokers’, Greater Noida on 08-09-2017, for which a missing complaint was lodged on 09-09-2017. The dead body of the deceased was found and cremated on 13-09-17. It was further alleged that ‘despite desperate pursuance’, the family came to know about the death only after the cremation of his body. The family thus claimed negligence on the part of the police/local authorities and suspected criminal intent with the possibility of organ trafficking, after the post mortem report mentioned a number of injuries. Moreover, it was further submitted that the brother only got to know about the deceased on 14-07-2017, whereas the FIR was lodged on 09-09-2017 itself. Also, it was observed that there was a ‘failure in transmission of information’ regarding the missing report of the deceased from the Police Station to the control room, which could have disseminated the information further.

Interestingly, Dr. G. Khan, Joint Director, FSL, Lucknow had also stated that the post mortem report was not up to the mark, which got later corroborated from the Forensic department of AIIMS, New Delhi.

The CBI mentioned in the closure report that since the death appeared as an accident without any criminal intent, further ruling out the possibility of criminal conspiracy, deserves a closure report to be filed. Subsequently, a protest petition was filed by the family.

The Court took note of several facts, which appeared contrary to each other and while giving due weightage to the most natural witnesses, stated,

“if the most natural witnesses, infront of whom the deceased were on his death bed and was taken to hospital by police have stated there was only one bandage on right leg and one one right arm. It is hard to believe that the injuries on face and forehead, and other injury of around 47 cms on left thigh of the deceased mentioned in post mortem report were not visible to them. Investigation agencies have failed to put forth this point that as to when and how those injuries were made when all of such independent and natural witnesses have stated about the injuries which do not fall in line with the injuries mentioned in Post Mortem Report”.

The Court after considering the statements of the witnesses, evidences, CCTV footages, Post Mortem Report, raised questions on the unavailability of crucial witnesses in the investigation, who could have played a pivotal role. And found it hard to believe that the friends who accompanied the deceased to the concert, who even submitted that they waited for the deceased at the venue, did not meet the Doctor with the ambulance at the same venue.

Therefore, while lambasting the UP Police, the Court exclaimed,

“Keeping in view the abovesaid observations, it can be said that there is something more than what is being portrayed through sketched illustrations. The intention to outwit and hoodwink the court with the almost deluded closure report thus become latently apparent. Thus, in considered view of this court, further investigation is required to be done. Accordingly, the protest petition is allowed, closure report filed by CBI in RC 5 (S)/2019/CBI/SCB/ Lucknow is hereby rejected. CBI is directed to further investigate the case. And said, The shoddy investigation done by UP Police in the present case with sinister potential with regard to human life deserves strong disapproval by this court. Such manner shown by the police strikes a blow at rule of law. Justice V.R. Krishna Iyer had very aptly said, ‘Who will police the Police?’”.

[Phanjoubam Linthoingambi v. C.B.I., RC 5 (S)/2019/CBI/SCB/ Lucknow, decided on 13-10-2021]


Agatha Shukla, Editorial Assistant has reported this brief.

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of Dr. DY Chandrachud*, Vikram Nath and BV Nagarathna, JJ has held that a Preliminary Enquiry is not mandatory in all cases which involve allegations of corruption.

The Court said that in case the information received by the CBI, through a complaint or a “source information”, discloses the commission of a cognizable offence, it can directly register a Regular Case instead of conducting a Preliminary Enquiry, where the officer is satisfied that the information discloses the commission of a cognizable offence.

Holding that the institution of a Preliminary Enquiry in cases of corruption is not made mandatory before the registration of an FIR under the CrPC, Prevention of Corruption Act or even the CBI Manual, the Court said that issuing a direction to that affect will be “tantamount to stepping into the legislative domain.” 

However, it was made clear that holding the aforesaid will not take away from the value of conducting a Preliminary Enquiry in an appropriate case.

“The registration of a Regular Case can have disastrous consequences for the career of an officer, if the allegations ultimately turn out to be false. In a Preliminary Enquiry, the CBI is allowed access to documentary records and speak to persons just as they would in an investigation, which entails that information gathered can be used at the investigation stage as well. Hence, conducting a Preliminary Enquiry would not take away from the ultimate goal of prosecuting accused persons in a timely manner. However, we once again clarify that if the CBI chooses not to hold a Preliminary Enquiry, the accused cannot demand it as a matter of right.”

Important rulings

Lalita Kumari v. Government of Uttar Pradesh, (2014) 2 SCC 1

If the information received discloses the commission of a cognizable offence at the outset, no Preliminary Enquiry would be required. Further, the scope of a Preliminary Enquiry is not to check the veracity of the information received, but only to scrutinize whether it discloses the commission of a cognizable offence.

Union of India v. State of Maharashtra, (2020) 4 SCC 761

The Court reversed the decision of a two Judge Bench in Subhash Kashinath Mahajan v. State of Maharashtra, (2018) 6 SCC 454 [Read more] which had, inter alia, held that “a preliminary enquiry may be conducted by the DSP concerned to find out whether the allegations make out a case under the Scheduled Cases and Scheduled Tribes (Prevention of Atrocities) Act 1989 and that the allegations are not frivolous or motivated”.

The three Judge Bench held that such a direction was impermissible since neither the CrPC nor the Atrocities Act mandate a preliminary inquiry.

“In case a cognizable offence is made out, the FIR has to be outrightly registered, and no preliminary inquiry has to be made (…). The direction would mean that even if a complaint made out a cognizable offence, an FIR would not be registered until the preliminary inquiry is held. In case a preliminary inquiry concludes that allegations are false or motivated, FIR is not to be registered, in such a case how a final report has to be filed in the Court. Direction 79.4 cannot survive for the other reasons as it puts the members of the Scheduled Castes and Scheduled Tribes in a disadvantageous position in the matter of procedure vis-à-vis to the complaints lodged by members of upper caste, for latter no such preliminary investigation is necessary. In that view of the matter it should not be necessary to hold preliminary inquiry for registering an offence under the Atrocities Act, 1989.”

Read more…

Charansingh v. State of Maharashtra,  (2021) 5 SCC 469

An enquiry at pre-FIR stage is held to be permissible and not only permissible but desirable, more particularly in cases where the allegations are of misconduct of corrupt practice acquiring the assets/properties disproportionate to his known sources of income. After the enquiry/enquiry at pre-registration of FIR stage/preliminary enquiry, if, on the basis of the material collected during such enquiry, it is found that the complaint is vexatious and/or there is no substance at all in the complaint, the FIR shall not be lodged.

However, if the material discloses prima facie a commission of the offence alleged, the FIR will be lodged and the criminal proceedings will be put in motion and the further investigation will be carried out in terms of the Code of Criminal Procedure. Therefore, such a preliminary enquiry would be permissible only to ascertain whether cognizable offence is disclosed or not and only thereafter FIR would be registered. Therefore, such a preliminary enquiry would be in the interest of the alleged accused also against whom the complaint is made.

Read more…

[CBI v. Thommandru Hannah Vijayalakshmi, 2021 SCC OnLine SC 923, 08.10.2021]

__________________________________________________________________________________________________

Counsels:

For CBI: Aishwarya Bhati, Additional Solicitor General

For respondents: Senior Advocates Siddharth Luthra and Siddharth Dave


*Judgment by: Justice Dr. DY Chandrachud

Know Thy Judge| Justice Dr. DY Chandrachud

Case BriefsTribunals/Commissions/Regulatory Bodies

Central Bureau of Investigation (CBI): Shivank Singh, Special Judicial Magistrate (CBI), while accepting the closure report questioned the delayed investigation by the premier investigation agency of the country. While accepting closure report, the Court stated,

“It may be noted that the collective and cogent evidence/ material gathered by CBI is enough to settle the fact that the allegations of complainant against her father and 26 other accused could not be substantiated”.

The pertinent matter was filed under Sections 368, 342, 354, 376 (2) and 120B IPC, and was transferred to CBI vide the order of the Supreme Court. The petitioner in the writ had alleged that the ordeal began in 2010, when the father and her family coerced her to join the flesh trade/ prostitution, which she reiterated in her statement under Section 164 CrPC. Later, that the accused persons forcibly dragged her out of the Court and took her to various places within Meerut, then to Ludhiana, Punjab, where the entire period the petitioner was assaulted and raped by her father and his relatives (accomplices).  And, even alleged that, during the period of abduction, Sub-Inspector of Police, Deputy-Inspector-General of Police, and Circle Officer of Police molested her.

The CBI had filed its closure report under Section 173 CrPC as the allegations could not be substantiated. A protest petition against such closure was filed, which was even accepted, but after further investigation, again a closure report was filed.

The Court after considering the closure report by CBI and the facts corroborated by the various substantial statements and ‘Psychological Profiling Reports’ and  Behavorial Analysis Interview of the accused persons, victim and the other names involved, opined that,

“witnesses out of total 95 witnesses examined during first investigation has corroborated the allegations” and “During further examination, CBI has examined 8 witnesses and none of the witnesses have supported the allegations of complainant”.

Strikingly, the Court while accepting the closure report of CBI raised doubts and criticised further the manner in which the delayed investigation was conducted. The Court sternly stated,

“However, before parting, it may be noted that the Ld. Predecessor of this court had ordered for further investigation in this case 20/02/2018. IO has submitted the report of further investigation after more than 3 years in 2021. IO has examined 8 witnesses and has submitted 4 documents along with the report of further investigation. It took more than 3 years to the IO to gather such evidence. Also, out of total 8 witnesses Page No. 3 Misc. Case No. 05/21 Rashmi Behl vs. CBI examined by IO in such further investigation, IO has copy-pasted the statements of witnesses Hina Behl and Hitesh Behl. Many paragraphs of their statements are exactly similar. It is a matter of concern. Also, such delayed investigation is not expected from the premier investigation agency of this country, CBI. A copy of this order be sent to worthy HOB, SC-I, New Delhi to look out in this matter from his own end”.

[Rashmi Behl v. CBI, RC 2 (S)/2015/CBI/SC-I, decided on 05-10-2021]


Agatha Shukla, Editorial Assistant has reported this brief.

Case BriefsTribunals/Commissions/Regulatory Bodies

Central Bureau of Investigation, Ghaziabad (CBI): Shivank Singh, Special Judicial Magistrate (CBI), while acquitting the accused of all the charges gave detailed reasoning for each such offence as alleged by the CBI. The Court after considering the failure to prove the offences based on ‘strong suspicion’ stated that the law was settled on the point, that ‘however strong the suspicion maybe, it cannot take place of proof’, and remarked,

“…with the present evidentiary matrix at hand and the subsisting law, it becomes customarily cardinal to apply germane precepts which has metamorphosed the course of evidentiary value of proof over conjectures”.

In the instant matter it was alleged by the CBI that Prithviraj, accused (A1) prepared a forged letter of the Union of Home Minister with the aide of his uncle Pradeep Kumar Kapil, accused (A2) and Kalpana Sahay, accused (A3) and thereafter used it to get himself transferred from Baghpat to Meerut, UP. It was further stated that out of the 22 witnesses, 7 witnesses had turned hostile. It was submitted by the Prosecution that the spellings in the letter for ‘Government’ and ‘Ministry’ were wrong which rose suspicion to forgery which was later substantiated by the witnesses, according to them. While the defence contended that GEQD report was not clear pertaining to the specimen signatures and no oral testimony of any of the prosecution witness was sufficient to prove that the accused persons were involved in the present case.

The Court after breaking down the ingredients for the offences under IPC and after considering relevant documents, evidences and the testimonies of the witnesses accepted the submission where forgery was alleged. However, on a conjoint reading of the testimonies, concluded that the allegations against the accused could not be proved. The Court stated,

“Though, it is proved that the letter in dispute was not a genuine one but a forged letter but the allegation that the accused Prithviraj had cheated his senior officials by using it cannot be proved. It is also not proved by any of the testimony of prosecution witness or by way of any documentary/ expert evidence that such forged letter was prepared with the aide of accused Pradeep Kumar Kapil and Kalpana Sahay”.

Furthermore was of the opinion that the Prosecution failed to lead evidence as required under Section 417 and 415 IPC. The Court even clarified the offences, the ingredients required under the relevant sections and thus acquitted the three accused under Section 120B read with 417, 468, 471 of IPC.

The Court thus noted, “To avoid verbosity, the precedents set by the Supreme Court should be cohered into, for justice to prevail. With the settled principles of law wherein suspicion cannot take place of proof, irrespective of how well-built it maybe, this court is conscious of this evolved jurisprudence. Therefore, since the CBI has miserably failed to establish the charges, ensuingly mere suspicion cannot stand valid to prove the charges beyond reasonable doubt against all of such accused persons”.[CBI v. Prithviraj, RC 2 (S)/2007/SCU.V/CBI/SCR.II,  decided on 17-09-2021]


Agatha Shukla, Editorial Assistant has reported this brief.

Case BriefsTribunals/Commissions/Regulatory Bodies

Central Bureau of Investigation, Ghaziabad (CBI)-Shivank Singh, Special Judicial Magistrate (CBI) while taking cognizance under Sections 420, 467, 468 & 471 IPC, made a seething remark in the order where it stated,

“This court fails to understand as to why the substantive offence of forgery was not imposed against the accused by the CBI when it is in consonance with their version only”.

In the pertinent matter, it was alleged that Catmoss Retail Ltd. through its Director (A1) and Ashwani Kumar, Director (A2) procured a loan from SIDBI by submitting forged balance sheets, net worth statements, bills and minutes of the board meetings. And further alleged that various shell firms were also opened by A2 in the names of the employees of the company for raising the fund by using the same firms without any valid business and transactions. Resultantly, the CBI charge sheeted A1 under Section 420 IPC and A2 under Sections 420, 468 r/w 109 and 471 IPC.

The Court after considering the purported act, witnesses, documentary evidences and the “dubious” charges framed by the CBI, took cognizance of the offences under Sections 420, 467, 468 & 471 IPC, and was of the opinion, that when the act was of committing forgery, then only abetment to forgery was not sufficient especially when the CBI itself had set the grounds with no contradictions. The Court was of the opinion, “Ld. PP for CBI and IO has failed to reply as to why the offence of abetment for forgery is implicated against the accused and not the substantive offence of forgery. At this stage, prosecution has also not established that as to who was abetted for the offence of forgery”. Therefore, summoned both A1 and A2 under relevant Sections.[CBI  v. Catmoss Retail Ltd., Misc. Case No. 06/21, decided on 14-09-2021]


Agatha Shukla, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Delhi High Court: While addressing a matter of custodial violence in Tihar Jail, Mukta Gupta, J., stated that:

Walls of prison, howsoever high they may be, the foundation of a prison is laid on the Rule of Law ensuring the rights to its inmates enshrined in the Constitution of India.

Present matter was filed by the mother, sister and brother of Ankit Gujjar who lost his life to custodial violence in Tihar Jail.

Background

Ankit Gujjar, an under-trial prisoner was beaten brutally by the officials of Tihar Jail and despite repeated PCR calls and messages neither was any effort made to save Ankit nor complaint lodged nor FIR registered, nor any evidence collected. Rather a counter-affidavit was registered on the complaint of Jail Officials against Ankit.

Petitioners submitted that the deceased was long being harassed by the officials of Tihar Jail as he was unable to meet the regularly increasing demands of money made by them.

Grievance of the petitioners was that despite the fact that from the first PCR call itself the petitioners family was stating that Ankit was beaten because he failed to comply with the demands of money of the Deputy Superintendent Narender Meena and in this relation they have also provided the numbers to which the amounts were transferred, however, the entire investigation as was evident from the proceedings noted in the FIR as also the status report filed was aimed to show that since there was recovery of a mobile phone, charger and knife from the cell of the deceased, he was being transferred and when he refused to be transferred a scuffle took place, ignoring the genesis of the occurrence that there was demand of money from Narender Meena which was not fulfilled due to which Ankit was mercilessly beaten.

Serious Offence

High Court stated that in case the allegations of the petitioners are correct, it is a very serious offence that requires in-depth investigation to unearth the manner in which alleged extortion was carried out in the prison.

Bench directed for that the investigation of case under Sections 302/323/341/34 IPC be transferred to CBI. Further, a status reports to be filed by the SP concerned.

Proper Inquiry on whether medical treatment was provided to Ankit or not

An investigation not only as to who all committed the offence of brutally beating the deceased Ankit resulting in his death has to be carried out, but the role of jail doctors in not providing proper treatment at the right time is also required to be ascertained by a proper inquiry.

“…necessary rules and regulations so that the police is not denied entry in the jail to conduct an enquiry/investigation into the commission of a cognizable offence are also required to be made.”

 Further, the Court added that the present matter calls for immediate remedial actions by the State and Director General, Prison so that unscrupulous officers at the Jail do not take advantage of the knowledge of the non-working of the CCTVs so that they can get away by doing any illegal act/offences.

“A status report will be filed by the Director General( Prisons) indicating the measures taken to streamline the system as regards the CCTV cameras at the Jail and when the same are not working what alternative measures can be taken in the meantime, accountability of the Jail officers and Jail doctors and the mechanism by which immediate entry is provided to the police to the Jail on receipt of an information of a cognizable offence and the remedial steps taken.”

Petition to be listed on 28-10-2021. [Geeta v. State, 2021 SCC OnLine Del 4297, decided on 8-09-2021]


Advocates before the Court:

For the petitioners: Mehmood Pracha, Advocate with Shariq Nisar, Sanawar Choudhary, Yashovardhan Ojha and Jatin Bhatt, Advocates.

For the respondents: R.S. Kundu, Additional Standing Counsel for State/Respondent 1 and with Inspector Jeet Ram, P.S. Hari Nagar.

Anil Soni, CGSC for Union of India/Respondent 3.

Rajesh Kumar, Special P.P. for CBI/Respondent 4

Case BriefsHigh Courts

Kerala High Court: Narayana Pisharadi, J., dismissed the revision petition filed by CBI due to its failure to obtain prior sanction of government before prosecuting public servants.

The Central Bureau of Investigation (CBI) had filed the instant revision petition to assail the order of the Special Judge for CBI Cases, Lakshadweep by which it allowed the applications for discharge filed under Section 239 of the CrPC by accused 4 and 8. The accused were alleged for committing the offences punishable under Sections 7, 12 and 13(1)(d) read with 13(2) of the Prevention of Corruption Act, 1988 and also under Sections 468, 471, 420 and 120B of the Penal Code.

Background

The prosecution case was that the Directorate of Education of the Union Territory of Lakshadweep had directed to supply, free of cost, ready-made uniforms to the school children for the academic year 2005-06. A Uniform Tender Evaluation, Sample Selection and Procurement Committee was formed in this regard. Pursuant to a conspiracy hatched by the members of the committee with one Nagendran, the approver, sub-standard uniforms were purchased, violating the tender conditions and by making false and forged entries on record. Thereby, the accused who were member of the committee were alleged for benefiting with wrongful gain and causing wrongful loss to the Lakshadweep Administration and a criminal case was registered against them.

Decision of Special CBI Court

However, the Special Court had held that prior sanction under Section 197 of CrPC was necessary to prosecute the accused as they were public servant, accordingly, the prosecution against accused 4 and 8 was held bad for want of sanction and the accused were discharged.

Analysis and Decision

As per Section 197(1) of CrPC, when any person who is or was a Judge or Magistrate or a public servant not removable from his office save by or with the sanction of the Government is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction of the Central Government or the State Government.

In Amrik Singh v. State of Pepsu, (1955) 1 SCR 1302, the Supreme Court had held that, “If the acts complained of are so integrally connected with the duties attaching to the office as to be inseparable from them, then sanction under Section 197(1) would be necessary; but if there was no necessary connection between them and the performance of those duties, the official status furnishing only the occasion or opportunity for the acts, then no sanction would be required”. Similarly, in D.Devaraja v. Owais Sabeer Hussain, (2020) 7 SCC 695, after an elaborate discussion of the question, it was held that, “To decide whether sanction is necessary, the test is whether the act is totally unconnected with official duty or whether there is a reasonable connection with the official duty”.

Affirming the reasoning of the Special Court that both the accused did not have expertise in the matter of quality control or checking the standards of stitching or clothes supplied, at the most, they could be blamed only for the omissions in not insisting meetings of the committee. In all probability they might have gone by the certificates issued by the technical member in the committee, hence, they could only be blamed for non feasance, at the most, the Bench stated that the sum and substance of the allegation against accused was that they blindly accepted the certificate issued by Accused 9 without conducting inspection of the uniform materials and consequently, sub-standard materials happened to be purchased.  Hence, the act of accused, who were not experts in the field, in accepting the certificate issued by the technical member of the committee would not take them out of the protection under Section 197(1), which was otherwise available to them.

In the backdrop of above, the Bench held that it was necessary to obtain sanction under Section 197 for prosecution and cognizance of the offences taken against them, without such sanction, was bad in law. Accordingly, the petition was dismissed. [CBI v. Syed Shaikoya, Crl. Rev.Pet No. 509 of 2012, decided on 01-09-2021]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance by:

For the State: ASG P.Vijayakumar

For the Respondents: Advocate Glen Antony, Advocate P.Sanjay and Advocate M.Vanaja

Case BriefsHigh Courts

Punjab and Haryana High Court: Arvind Singh Sangwan, J., came down heavily on State Authorities for discrepancies in investigation of the NDPS cases in the State of Punjab. The Bench stated,

“Even the recent reply by the Joint Commissioner (Drugs) Food and Drugs Administration acknowledged the fact of recovery of 12.00 lacs tablets of ‘TRAMADOL’. Shockingly, in the affidavits, nothing is stated where the recovered stock of 12.00 lacs of TRAMADOL tablets has gone and even no batch number, etc., is given.”

Slamming the State authorities, the Bench added,

“This is a serious lapse and inaction on the part of the Punjab Police as well as the Drug Controller and this clearly reveals that everything is not normal with the investigation of the NDPS cases in the State of Punjab.”

Background

The instant petition was filed praying for grant of regular bail by the petitioner-Sarabjit Singh who was in custody in relation to offences under Sections 20/22/61/85 of the NDPS Act.

Noticeably, a Team headed by two Drug Inspectors, along with one Intelligence Officer of NCB, Special Task Force, and other police officials had visited shop of the petitioner, where he had stocked allopathic drugs. The petitioner had produced RMP certificate, which did not authorize him to practice allopathic modern systems of medicine. During the investigation, the aforesaid drugs were recovered and since some of the drugs were covered under the NDPS Act, the FIR was registered under the NDPS Act.

Observation and Analysis

Noticing that there are increasing number of cases in the State of Punjab, wherein, primarily the carriers of drug are arrested by the police under the NDPS Act, however, the suppliers or source of acquiring drugs in majority cases do not come to fore which lead to acquittal in many cases, the Bench stated, .

“It is worth noticing that on an average out of every 10 cases listed before the Criminal Benches of this Court, 08 are from the State of Punjab and 01 case either from U.T., Chandigarh or State of Haryana.”

In Akash Medical Store v. State of Punjab, 2012 SCC OnLine P&H 13366, the Court had observed,

“All such retailers/stockists who are found to be in possession of habit forming drugs, which are not supported by purchase bills or any such stock of drugs which cannot be traced to their origin of purchase, should straightway lead to a presumption not only of a violation of terms of the license, but also to be a violation of the provisions of N.D.P.S. Act and F.I.R. should be registered but as a safeguard the F.I.R. should be registered only after such a licencee has been given adequate opportunity to produce records upto the appellate authority.”

Emphasizing over the news report published in ‘The Tribune’, that on the direction given by the Court, Amritsar (Rural) police had booked a Sub-Inspector and Assistant Sub-Inspector of Punjab Police under the NDPS Act for unnecessarily searching, detaining and arresting a person of two different Police Stations in Amritsar, the Bench expressed concern over false implication of innocent persons under NDPS Act by the Punjab Police, especially of Amritsar District. Pointing towards the lackadaisical attitude of the authority the Bench stated,

“…(although) there was a huge recovery of 12.00 lacs ‘TRAMADOL’ tablets in the case at hand, surprisingly, the affidavit of the Director Bureau of Investigation, which was filed about 1½ years ago, though, stated that an offence under Section 22/32 of the NDPS Act was made out, no FIR had been registered till date.”

Decision

In view of the above, the investigation was handed over to the Central Bureau of Investigation as the Court opined that it was an exceptional case as Punjab State functionaries for the reason best known to them are intentionally protecting the drug offenders. The official of Punjab Police/office of the Joint Commissioner (Drugs), Food and Drugs Administration, were directed to hand over all the documents to C.B.I., along with the recovered 12.00 lacs ‘TRAMADOL’ tablets. The CBI, was directed to register an FIR and investigate the case. It was made clear that during the investigation, the CBI

  • Shall ensure that the entire contraband recovered from M/s. Ravenbhel Pharmaceuticals Private Limited, is handed over to the CBI and in case, there is any shortage, C.B.I. will investigate whether the same is misused for implicating any innocent person;
  • In case of shortage of recovery in possession of Punjab Police/Drug Department, CBI will prepare an inventory giving batch number, date of manufacture/expiry, name of manufacturer and will check from CFSL/FSL in State of Punjab if the ‘TRAMADOL’ tablets of same batch number are involved in any other FIR in the State to find out false implication of any innocent person by using this stock;
  • In such eventuality, it will also be open to C.B.I. to check record of any Police Station or publish a notice in newspaper giving batch number and name of manufacturer, etc., so as to enable the defence counsels in different FIRs/cases to know about it and to take appropriate recourse before Court of law;
  • To look into the involvement of any public servant under the aid of Section 120-B IPC in delaying the registration of an FIR or any other investigation, which it deem fit.

However, it was clarified that the directions were only with regard to the recovery from Ravenbhel Pharmaceuticals Private Limited. [Sarabjit Singh v. State of Punjab, CRM-M No. 28183 of 2019, decided on 02-08-2021]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance by:

For the Petitioner: N.S. Mahal, Advocate

For the State: Mr Joginder Pal Ratra, DAG, Punjab, Mr C.S. Bakshi, APP, U.T., Chandigarh and Mr Chetan Sharma, AAG, Haryana

For Union of India: Mr Satya Pal Jain, Additional Solicitor General of India with Mr Rajiv Sharma, Advocate for NCB

Case BriefsTribunals/Commissions/Regulatory Bodies

Central Bureau of Investigation, Ghaziabad (CBI): Shivank Singh, Special Judicial Magistrate (CBI) after considering the evidences and the confession made by the authorised representative of the accused, convicted Jagdamba Petroleum India Pvt. Ltd. for the charges under Sections 120B read with 420, 467, 468, 471 and for the substantive offences under Section 420 and 471 of IPC and under Sections 7 & 9 of Essential Commodities Act, 1955.

In the instant matter, the CBI had alleged that Jagdamba Petroleum India (P) Ltd and its directors were a party to a criminal conspiracy during the year 2001 for buying 3472.9 MT of imported Naphtha on high sea sale basis from Adani Exports and Rahul Sales, Chandigarh. It was further alleged that a large quantity was diverted or sold through forged documents wherein the quantity so disbursed to companies were either closed or were non-existent or had paid but did not receive the solvent. The course of events took a turn when the director of the Company died and the proceedings were abated against him but since the proceedings against the Company were not abated, therefore another authorised representative was authorised to represent. The authorised representative so appointed, later moved an application for confession of the crimes, at the stage of prosecution evidence.

The Court after considering all the evidences placed and the confession made, convicted the accused of the offences under Sections 120B read with 420, 467, 468, 471 and for substantive offences under section 420 & 471 of IPC and under Sections 7 & 9 of Essential Commodities Act, 1955.

What was gripping was the fact that while sentencing, the Court gave a miss to the mandatory sentence of imprisonment and fine, giving due priority to the practicality of the situation wherein it becomes impossible to imprison a Company, being a juristic person.[CBI v. Jagdamba Petroleum India Pvt. Ltd., RC- 6 (E)/2003/EOW-II/DLI, decided on 17-08-2021]


Agatha Shukla, Editorial Assistant has reported this brief.

Case BriefsCOVID 19High Courts

Chhattisgarh High Court: Narendra Kumar Vyas, J., rejected bail and dismissed the petition being devoid of merits.

The facts of the case are such that the petitioners are engaged in trading of gold and silver ornaments in shop owned by petitioner 1 situated at Rajnandgaon where search and seizure was conducted upon receiving an intelligence output. The petitioners were thereby arrested by respondent authorities for alleged commission of offence under Section 135 of the Customs Act, 1962 (for short “the Act, 1962”) and was also held to be an offence under provision of the Money Laundering Act, 2002 (for short “the Act, 2002”) by Enforcement Directorate (ED). The petitioners moved an application for grant of interim bail for 90 days before Chief Judicial Magistrate, Raipur as per direction of Supreme Court in the matter of Suo Motu Petition (C) No. 01/2020 in Contagion of Covid 19 Virus in prisons for releasing them for 90 days looking to the present scenario of pandemic Corona (Covid-19) which was rejected. Assailing this, instant writ petition under Article 226 of the Constitution of India for grant of interim bail was filed.

Relevant recommendation made by the High Power Committee on 12.05.2021 reads as under:

“Criteria for release of Under trial prisoners:

“…… The under trial prisoners, who are satisfying the following criteria shall be released:

  1. Under Trial prisoners (UTPs)/ Remand Prisoners (with respect to whom, charge sheet are yet to be filed), who are in custody for 15 days or more, facing trial in a case which prescribes a maximum sentence of 07 years or less;
  2. Under trial prisoners (UTPs), who are senior citizens of 60 or more than 60 years of age and are in custody for three months or more, facing trial in a case which prescribes a maximum sentence of 10 years or less”

“It has further been resolved that following category of UTPs, even if falling in the above criterion should not be considers:-

  1. Those under trial prisoners who are facing trial under Prevention of Corruption Act (PC Act)/ PMLA; and
  2. Case investigated by CBI/ED/NIA/Special Cell, Crime Branch, SFIO, Terror related Cases, Riot cases, cases under Anti-National Activities and Unlawful Activities (Prevention) Act etc.”

The Court observed that as per the submission of the petitioners it is clear that that as per Section 135 (1)(b) of the Act, 1962, the case of the petitioners is squarely covered in clause 3 of recommendation issued by the High Power Committee, which provides that the under trial prisoners (UTPs)/ Remand Prisoners (with respect to whom, charge sheet are yet to be filed), who are in custody for 15 days or more, facing trial in a case which prescribes a maximum sentence of 7 years or less shall be released, whereas it reflects from clause 5 & 6 of the recommendation as mentioned above that person belong to the under trial prisoners category even if following in the above criterion should not be considered for release. The under trial prisoners, who are facing trial under Prevention of Corruption Act/ Prevention of Money Laundering Act, 2002 and cases investigate by CBI/ED/NIA/ Special Cell, Crime Branch, SFIO, Terror related cases, Riot cases, under Anti-National Activities and Unlawful Activities (Prevention) Act etc., are not entitled to be released.

The Court observed that prima facie it is established that the petitioners are habitual offenders and are very much involved in smuggling of gold and silver, which is injurious to economic growth of the nation. Further, the investigation is in a primary stage and may take some time, and since they are big financial resource persons, possibility of influencing the witnesses, cannot be ruled out.

The Court relied on judgment State of Kerala v. Mahesh, Criminal Appeal No. 343 of 2021 wherein it was held:

“37. In Suo Motu Writ Petition (Civil) No.1 of 2020 In Re: Contagion of Covid 19 Virus In Prisons, this Court expressed concern over the possibility of spread of COVID-19 amongst prisoners lodged in overcrowded correctional homes and accordingly issued directions from time to time, directing the authorities concerned to inter alia take steps as directed by this Court, to minimize the risk of spread of COVID amongst the inmates of correctional homes. This Court also directed that a High Powered Committee be constituted by the States and Union Territories to consider release of some prisoners on interim bail or parole during the Pandemic, to prevent overcrowding of prisons.

  1. It appears that the High Court has completely mis- appreciated the object, scope and ambit of the directions issued by this Court from time to time in In Re : Contagion of Covid 19 Virus In Prisons. This Court did not direct release of all under-trial prisoners, irrespective of the severity of the offence. By way of example, this Court directed the States/Union Territories to consider release of prisoners convicted of minor offences with prescribed punishment of seven years or less. The orders of this Court are not to be construed as any direction, or even observation, requiring release of under-trial prisoners charged with murder, and that too, even before investigation is completed and the chargesheet is filed. The Respondent Accused, it is reiterated, is charged with murder in the presence of an eye witness, and the impugned order granting bail was filed even before the chargesheet was filed. The Chargesheet appears to have been filed on 01.01.2021. Moreover, the Respondent Accused had been absconding after the incident.”

The Court thus held “The possibility of the accused /petitioners absconding or otherwise defeating or delaying the course of justice, reasonable apprehension of witnesses being threatened or influenced or of evidence being tempered, therefore, the petitioners are not entitled to get benefit from order of the Supreme Court and the recommendation of the High Power Committee.” [Vijay Baid v, Assistant Director, Director of Revenue Intelligence, 2021 SCC OnLine Chh 1952, decided on 07-07-2021]


Arunima Bose, Editorial Assistant has reported this brief.


Appearances:

For Petitioners: Mr. Shashank Thakur

For Respondent: Mr. Ramakant Mishra

Case BriefsHigh Courts

Punjab and Haryana High Court: Arvind Singh Sangwan, J., stayed the proceedings against former Chief Minister of Haryana–Bhupinder Singh Hooda with regard to Panchkula Land Allotment case.

The instant petition had been file to assail the impugned order passed by the Special Court, CBI, Panchkula registered under Sections 120-B and 420 of IPC, 1860, Sections 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988, vide which while dismissing the application for discharge, charges had been framed against the petitioners.

Factual Fulcrum of the Case

Cancellation of Initial Allotment of the Land

Brief facts of the case were that the petitioner–M/s. Associate Journals Ltd. (AJL) sent a request letter to Sh. Bhajan Lal, the then Chief Minister of Haryana for allotting land to the company for the establishment of an office of National Heralds and Publication of Hindi Newspaper Navjivan. A plot measuring 3360 sq. mts. was allotted to AJL, on the basis of ‘No Profit No Loss’ @ Rs.91 per sq. mts. Later, on 30.10.1992, the plot was resumed by the Estate Officer, HUDA (Haryana Urban Development Authority) , in exercise of powers under Section 17(4) of the HUDA Act, 1977 on the ground that AJL had failed to carry out the construction within the stipulated time as per the terms and conditions of the letter of allotment and an amount of Rs.27300/- was forfeited whereas the balance amount of Rs.1,55,662/- was refunded to AJL through a cheque, which was never encashed by the petitioner – AJL and therefore, the entire allotment amount of the plot remain deposited with HUDA.

Subsequent Allotment made by Former CM-Bhupinder Singh Hooda

Later on, when the Chairman of AJL made few representations to Sh. Bansi Lal, the then Chief Minister for restoration of the plot a noting was recorded to seek opinion of L.R., HUDA which, having been considered as appeal was forwarded to the Town and Country Planning Department and but the same was rejected. In the meantime, the HUDA Act, 1977 was amended on 17-03-2004 and Sub-section (8) to Section 17 was inserted, which provided that an aggrieved person can prefer a revision to the Secretary to Government of Haryana, Town and Country Planning Department. Proviso to Sub-section (8) empowered the Revisional Authority to entertain the revision petition even after expiry of period of limitation if the Revisional Authority would satisfy that aggrieved person was prevented by sufficient cause from filing the revision petition in time. Pursuant to which, AJL again wrote a letter to the petitioner – Bhupinder Singh Hooda, who was the then Chief Minister of Haryana with a request to restore the plot. A recommendation was made by the petitioner – Bhupinder Singh Hooda that the plot be restored to AJL at original price along with interest due upto the date of restoration of allotment and a condition was put that the same should be subject to the condition that the AJL will start the construction in 06 months and complete the same within 02 years, thereafter.

HUDA Authority

The recommendation of the petitioner–Bhupinder Singh Hooda, was placed before HUDA Authority i.e. the competent authority. Though, there were certain objections raised by some of the functionaries to the effect that the plot may be re-allotted either on the market price or by way of advertising and allowing AJL to participate in the same; the petitioner – AJL remained in continuous possession of this plot since 1981 and at no point of time, even during the period of 10 years when the plot was cancelled by the Estate Officer, no action was taken by HUDA for re-possessing the plot and as such, till 2016, the possession was 35 years old. After the revival of the allotment, the petitioner – AJL completed the construction and started its business.

Alleged Act of Corruption

In the backdrop of the above, the State of Haryana registered an FIR dated 05-05-2016 under Sections 409, 420, 120-B IPC and Section 13 of the Prevention of Corruption Act, 1988, alleging illegality and irregularity in the re-allotment of the institutional plot to AJL. Later on, the Government transferred the investigation to CBI and the present FIR No. RC CHG 2017 A0008 was registered. It was stated in the FIR that in view of the opinion of the Town & Country Planning Department the plot could not be re-allotted as the appellate/revisional order had attained finality and it should be allotted at the current market rates as well as in view of the fact that the HUDA and the Financial Commissioner, Town and Country Planning Department, had proposed that an advertisement be floated for re-allotment of the plot by inviting applications wherein the petitioner – AJL can also apply, the action of the Chairman, HUDA in re-allotting the plot to AJL at old rates applicable in the year 1982 was in conspiracy with each other as the period of construction as per the terms and conditions of the letter of allotment has already lapsed.

It is also concluded in the investigation that the accused i.e. the petitioner – Bhupinder Singh Hooda and the petitioner – AJL, in conspiracy with each other had misused the official position in re-allotment of the plot and thereby causing wrongful loss to State Exchequer and wrongful gain to the petitioner – AJL.

Arguments on Behalf of the Petitioner-accused

It was the case of the petitioner–AJL that since 1981, neither any proceedings for taking the possession were initiated by HUDA nor at any subsequent stage, the order of restoration was challenged before the competent Court of law and therefore, the liability, if any, was purely of civil nature as it is a case of allotment/cancellation of allotment and then restoration of allotment. In addition to that following submissions were made by the petitioners in their defence:

  1. That the Trial Court had brushed aside all the arguments raised by the petitioners on the ground that at the stage of framing of charges, only prima facie allegation is to be seen and not the documentary evidence; therefore, the impugned order was based on non-application of judicial mind.
  2. The recommendation for restoration was made in an open and transparent manner as the comments of all the concerned department were sought on the representation made by the petitioner – AJL and the recommendations were placed before the HUDA for approval and consideration. The authority by a full majority as per Section 7 of the Act has taken a decision in its meeting to approve the recommendation dated 28.08.2005.
  3. The objections were raised by the Chief Administrator, HUDA or the Financial Commissioner, Town and Country Planning Department, who were also signatory to the meeting.
  4. That the initial allotment was made on the basis of ‘No Profit No Loss’ and the entire price of the plot was deposited by AJL and despite the fact that while the allotment was cancelled by the Estate Officer, HUDA, the cheque of Rs.1,55,662/- was never encashed by AJL and therefore, the total price of the plot throughout remained with HUDA and thus, no loss was caused to HUDA.
  5. Since AJL throughout remained in possession of the plot for 35 years till registration of FIR and no effort was made by HUDA at any level either to seek the possession of the plot back or subsequent to restoration of allotment, the order was never challenged for a considerable period of 10 years before any competent Court of law.
  6. The AJL in compliance of the restoration of the allotment of plot had also paid interest to the HUDA and the same was accepted without raising any objection much less challenging this restoration order before any Court. Moreover, it was argued that no offence under Section 120-B IPC was made out as there was no allegation of conspiracy prima facie as per the FIR or the charge-sheet.

Stand taken by the Petitioners regarding Corruption Charge

Regarding the allegation of corruption, the petitioners contended that the offence under Section 13(1)(d) stands deleted in view of the amendment in the Prevention of Corruption Act, 1998 through the Prevention of Corruption (Amendment) Act, 2018, and therefore, the charge-sheet prepared on 30-11-2018, could not be filed under Section 13(1)(d) of the Act. It was further submitted that,

“Objection that the restoration of the allotment of plot was made by not adhering to the market price did not prove any ‘mens rea’ on the petitioner as the market price as assessed at the time of allotment of plot throughout remained with HUDA and was never returned back in pursuance to the cancellation of allotment.”

Relying on the decision in C.K. Jaffar Sharief vs State (through CBI)”, (2013) 1 SCC 205, wherein the Supreme Court had held that, “mere error of judgment or transgression of departmental norms, would not ‘ipso facto’ establish dishonest intention.”; the petitioners argued that even the charge under Section 13(1)(d)(ii) read with Section 13(1)(2)(iii) of the Prevention of Corruption Act, was not made out. It was further pointed out before the Court that in order to frame the charge under Sections 13(1)(d)(ii) and 13(1)(d), the Court had to assign specific reason as to how the offence is made out and the same was missing in the order of the Trial Court. Lastly, it was submitted that it was not the case of CBI that either bribe or gratification was paid, therefore, in the absence of any prima facie evidence that the petitioner – Bhupinder Singh Hooda had acted in a manner that he obtained a valuable thing or pecuniary advantage from AJL, the charge under Section 13(1)(d)(ii) and (iii) was not at all made out.

Considering the abovementioned, the Bench stayed the proceedings before the Trial Court and issued a notice to CBI in that regard. The matter is lighted for 11-08-2021 for further hearing.[Bhupinder Singh Hooda v. CBI, CRR-650-649-2021, order dated 01-02-2021]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance before the Court by:

For Bhupinder Singh Hooda: Sr.  Advocate Kapil Sibal with Advocate Pradeep Poonia, Advocate Adit Pujari and Advocate A.S. Cheema

For AJL: Sr. Advocate R.S. Cheema with Advocate Tarannum Cheema and Advocate Sumanjit Kaur

For CBI: Sr. Advocate Sumeet Goel assisted by Advocate Sameer Rathore and Advocate A.K. Ranolia

Case BriefsHigh Courts

Madhya Pradesh High Court: The Division Bench of Mohammad Rafiq, CJ. and Vijay Kumar Shukla, J., heard a petition which was in pursuance to the detailed order passed on 10-01-2014. It was in regard to the creation of the Directorate of Prosecution in terms of Section 25-A of the Code of Criminal Procedure. On 23-08-2017 the Court had disapproved the practice of appointment of Public Prosecutors on a contract basis and categorically held that it cannot be a post for appointment on contract basis as such the post is pivot for the administration of justice.

On 28-08-2019 the Government Advocate was granted a week’s time to seek instructions and apprise the Court of the steps taken by the Government to fill up the posts of Public Prosecutors and Assistant Public Prosecutors. On 29-09-2019 he informed the Court that a Gazette notification had been published in terms of Section 24 sub-section (1) of the Code of Criminal Procedure as of 07-01-2019.

Mr Siddharth R. Gupta, Advocate appearing for the High Court submitted that this matter was pending before this Court for quite some time and the practice of engaging Panel Lawyers to appear before the High Court in criminal matters even without experience of seven years was being wrongly followed and that the State Government should comply the requirement of Section 24(1) and Section 24 (7) of CrPC before authorizing any Advocate to appear as Public Prosecutor before the High Court.

The Court directed the Respondent-State to clarify certain stands,

  • Whether one Public Prosecutor is appointed for each Court in all districts of the State to attend the Criminal matters and if not whether multiple number of Courts are assigned to one available Public Prosecutor and if yes, give the details thereabout?
  • As to how many posts in the cadre of Additional District Prosecution Officers, District Prosecution Officers and Deputy Director (Prosecution) are lying vacant in the State?
  • Whether the promotions may not be granted against the unfilled posts of the quota of promotion in the cadre of the District Prosecution Officers and Deputy Director (Prosecution) to the extent not affected by order of the Hon’ble Supreme Court, with regard to which there is no dispute?
  • Can the State Government not consider appointing Additional District Prosecution Officers/District Prosecution Officers on retainership basis for fixed duration against unfilled posts of Public Prosecutors?
  • Whether a Panel Lawyer may appear in the Court before the High Court in criminal matters like Criminal Appeals, Bail Applications, Criminal Revisions, application for suspension of sentence, MCRCs etc. even without having practice of minimum of seven years and without the consultation with the High Court as required under Section 24(1) of Cr.P.C.?
  • How can appointment on contract basis without recourse to Section 24(4) of Cr.P.C. on the basis of panel proposed by the District Magistrate in consultation with the Sessions Judge particularly when Section 24(5) of Cr.P.C. provides that no person shall be appointed by the State Government as the Public Prosecutor or Additional Public Prosecutor for the district unless his name appears in the panel of names prepared by the District Magistrate under sub-section (4) of Section 24 of Cr.P.C.?

The Central Government was further asked to provide with the details with regard to compliance of Section 24(1) and Section 24(4) of Cr.P.C. as to whether the Advocates who appear on behalf of the agencies like Central Bureau of Investigation, Enforcement Directorate etc. before High Court and courts subordinate thereto, are appointed by process of consultation with the High Court or Sessions Judge, as the case may be, in terms of Section 24(1) and 24(4) of Cr.P.C. respectively.

Matter to be taken up on 26-07-2021.[Gyan Prakash v. Govt. of M.P., 2021 SCC OnLine MP 1211, decided on 22-06-2021]


Suchita Shukla, Editorial Assistant has reported this brief.

Case BriefsSupreme Court

Supreme Court: After accepting the fact that the Narada Scam Case is being heard by a 5-judge bench of the Calcutta High Court, the Central Bureau of Investigation has withdrawn the case filed before the Supreme Court challenging the May 21 order of the High Court that had put the 4 TMC Leaders under House Arrest.

The vacation bench of Vineet Saran and BR Gavai, JJ noted in the order,

“…we have not examined the matter on merit and are not passing any orders or observations on the merits of the case.”

The Narada Scam case relates to a sting operation was conducted by Narada news founder Mathew Samuel for over two years in West Bengal. Samuel had formed a fictitious company named Impex Consultancy Solutions and approached several TMC ministers, MPs and leaders, asking them for favours in return for money. In the 52-hour long footage, several TMC leaders were seen accepting alleged bribes in the form of wads of cash in exchange for extending unofficial favours for the fictitious company.[1]

[Central Bureau of Investigation v. Firhad Hakim, 2021 SCC OnLine SC 399, order dated 25.05.2021]


[1] Explained: What is the Narada bribery case? Here is a recap, by Santanu Chowdhury, Published on May 25, 2021, https://indianexpress.com/article/explained/narada-bribery-case-tmc-7318516/

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[Narada Scam Case] Cal HC| Court gives split verdict in relation to interim bail application; TMC leaders put under house arrest

Case BriefsHigh Courts

Calcutta High Court: The Division Bench of Rajesh Bindal, CJ(A). and Arijit Banerjee, J., was called upon to deal with an extra-ordinary situation where Chief Minister of the State can sit on a dharna outside the office of the Central Bureau of Investigation (‘CBI’) along with her supporters, which had investigated the case and was to present a charge-sheet in court against the accused who are senior party leaders of the party in power in the State, some of them being Ministers. Law Minister of the State was also present in Court where the accused were to be presented along with mob of 2000 to 3000 supporters.

Y.J. Dastoor, Additional Solicitor General of India had submitted that a a letter of request has been sent by the CBI on official e-mail id of the Chief Justice of this Court and the Registrar General pointing out certain glaring facts regarding the manner in which the Chief Minister, Law Minister and other senior Ministers of the Government in the State of West Bengal along with their supporters in thousands were obstructing CBI in discharge of its official duties. A case was registered in terms of the order passed by this Court in WP No. 5243(W) of 2016 under Sections 120B IPC, Sec. 7, 13 (2) r/w 13 (1) (a) & (d) of the P.C. Act 1988 against number of accused. The allegation against them was that they had accepted substantial amount of illegal gratification from Mathew Samuel, a sting operator.

The accused were arrested on 17-05-2021 in the morning and were to be produced in the court of CBI Special Judge (I) Kolkata. Immediately after their arrest, as they are political leaders of the party in power in the State, number of followers gheraoed the CBI office in Nizam Palace area and did not allow the CBI officers to move out of their office to enable them to produce the accused in court. The matter did not end here. The Chief Minister of West Bengal-Smt. Mamta Banerjee also arrived at the spot at 10.50 hours and sat on dharna along with the mob. Unconditional release of the accused was sought from the CBI office itself. It was under these circumstances that the matter was mentioned before this Court immediately in the after-noon today seeking a direction to the State to allow the CBI to discharge its function and enable them to produce the accused in court.

The prayer made by Mr Y.J. Dastoor was treated as filed on the judicial side, before this Bench on the day itself however it was mentioned that proper pleadings shall be brought on record by 19-05-2021.

Mr Kishore Dutta, Advocate General counsel for the respondent submitted that Nizam Palace where the CBI Office was situated, the major part of it is protected by Para Military Forces. Whenever any senior leader of the party is arrested, supporters always collect there. Senior police officers along with 100 police officials were on duty and no untoward incident was allowed to happen. CBI officers were provided full protection by the local police for discharge of their duty and there was no official complaint filed by the CBI with the police about any incident.

The Court observed that the facts of the case were not disputed; it was claimed by Mr Tushar Mehta, Solicitor General of India that the Chief Minister was demanding their unconditional release but the fact that she was present there and some supporters were also there, was not denied by Advocate General. The Court found that the Law Minister remained in the Court complex throughout the day till the arguments were heard. In these facts and circumstances if any order is passed by the Court the same will not have faith and confidence of the people in the system of administration of justice. Confidence of the people in the justice system will be eroded in case such types of incidents are allowed to happen in the matters where political leaders are arrested and are to be produced in the Court. Public trust and confidence in the judicial system is more important, it being the last resort.

The Court opined that the given facts and circumstances were sufficient to take cognizance of the present matter with reference to the request of the Solicitor General of India for examination of the issue regarding transfer of the trial. The Court deemed fit to stay the bail order of the Court below and directed that the accused person shall be treated to be in judicial custody till further orders.

[CBI ACB Kolkata v. Firhad Hakim, 2021 SCC OnLine Cal 1629, decided on 17-05-2021]


Suchita Shukla, Editorial Assistant has put this report together 

For the Petitioner : Mr Tushar Mehta, Solicitor General of India, Mr Y.J. Dastoor, Addl. Solicitor   General of India

For the State Respondents : Mr Kishore Dutta, Advocate General, Mr Abhratosh Majumdar, Addl. Advocate General, Mr Sayan Sinha

Case BriefsHigh Courts

Punjab and Haryana High Court: Rajbir Serawat, J., addressed the controversial case of     regarding three incidents of alleged sacrilege qua Guru Granth Sahib-the Holy Book of Sikhs. The Court was dealing with the incident of Kotkapura firing, wherein the petitioner had sought for quashing of the reports of the Commissions of Inquiry asserting that they have been named in the report without having been granting any opportunity of hearing. The Bench, which while going hard on the manner of investigation, stated,

“What could have been a simple investigation of a crime committed either by the protestors or by the police or by both, have been made to fester and convert itself to a quagmire wherein every concerned person finds himself entrapped.”

Kotkapura Firing

The case relates back to the protest held against the incident of alleged sacrilege; wherein some Saroops (Books) of Guru Granth Sahib went missing from a Gurudwara and two hand written posters containing some sacrilegious contents qua Guru Granth Sahib were found pasted near a Gurudwara. During the process of maintaining the law and order some police persons were seriously injured and one protestor was alleged to have received grievous gunshot injury on thigh and some other persons are alleged to have received minor injuries.

Total 47 police persons got injured at the hands of protestors. The public sentiments got aroused and the issue was further aggravated by the religious leaders. Meanwhile, keeping in view the public outcry for justice and to ensure a fair investigation, the then State Government had referred the all the FIRs related to sacrilege to CBI.

Later on asserting that the earlier report of Justice (Retired) Zora Singh Commission was inconclusive, the incoming State Government set-up another Commission of Inquiry into the incidents of sacrilege, as well as, into the police firing at Kotkapura, by appointing Justice (Retired) Ranjit Singh to head the Commission, which recommended registration of criminal cases against the police persons and some political functionaries.

Withdrawal of Investigation from CBI

Since there was resentment in political circles against handing over the investigation to the CBI, the State Government had put up the matter before the State Legislative Assembly, which passed a resolution calling upon the government to take back the investigation from the CBI. Consequently, the matter was withdrawn from the CBI and the same was handed over to the Punjab Police. A Special Investigation Team (SIT) was constituted for this comprising of 5 officers including Senior IPS Officers. However, allegedly, Sh. Kunwar Vijay Pratap Singh  (respondent 3) tried to exclusively take over the investigation by excluding the other members of the SIT. Hence, allegedly, they wrote letter to DGP raising their protest expressing their dissent qua the investigation being conducted by the respondent 3.

It had been alleged by the petitioner, that the respondent 3 had tried to bulldoze the SIT and be a de-facto boss, despite two IPS officers senior to him being there in the SIT. Allegedly, since the respondent 3 was acting as per the preplanned agenda to further the political plans of the current political dispensation, therefore; subsequently, he was made de-jure head of the SIT by the DGP, Punjab. Reportedly, the respondent 3 did not carry investigation qua FIR No. 192 dated 14-10-2015 which contained the first version of the incident recorded by the police. On the contrary; he exclusively conducted the investigation in FIR No. 129 dated 07-08-2018, which dealt with protestor’s version of the incident.

A Dangerous Mixing of Religion, Politics and Police Administration

Evidently, the respondent 3 had a tendency of misusing his official position and authority in performance of his duties, i.e. to bulldoze and deviate the process, as well as, to make an attempt to over awe the judicial process. Reportedly, when he could not get remand of the petitioner for desired period he went to the extent of alleging that the reason that the CJM granted only two days remand was CJM’s close family linkage with Prakash Singh Badal, the outgoing CM of Punjab while no details of such family linkage was given on record. This mischief was done by the respondent 3 only to pressurize the Courts at Faridkot and to overawe the judicial process. The Bench expressed,

“The respondent 3 is a person who indulges in misuse of his official position to further his designs; makes attempt to over-awe the processes and the authority and who indulges in theatrics and political maneuvering to draw mileage out of it.”

In April 2019 when the Parliamentary Elections were taking place, the respondent 3 gave interview to a TV Channel and named certain political leaders of the party rival to the political dispensation heading the current government; knowing that such an interview at such a juncture would enhance the political prospects for one political party and would damage the political prospects of another political party. For which the Election Commission had debarred him from election duty during that election. Political patronage of the respondent 3 is evident from the fact that the government did not remove him from the investigation despite the orders of the Election Commission (ECI). The political backing of the respondent 3 further becomes clear as the top functionaries of the political party heading the present government, as well as, the CM itself wrote to the ECI for revoking the order passed against the respondent 3.

Investigation Tainted by Political Maneuvering

While recording the selective statements of alleged witnesses, the respondent 3 was conducting only manipulative exercise in the name of investigation; to declare some persons as innocent and to make some persons accused at his whims.

The apprehension of the petitioner(s) that the respondent 3 could not be expected to act fairly and impartially in the conduct of investigation; was found to be reasonable one even as per the standards of an ordinary person of ordinary prudence. Through the misadventures of respondent 3, the SIT already constituted was reduced to one man show, although the respondent 3 was a de-facto sole controller of the investigation even earlier. In any case, no law required the respondent 3 to go to media and to give such interview which had political overtones; qua the investigation and during the election time. The Bench expressed,

All these incidents lend credence to the submission of the petitioner that the respondent 3 was pressurizing him to withdraw the writ petition and to become a witness to implicate the other senior officers of the Police Department and some top political functionaries of the rival political party.”

Was the Firing a Result of Conspiracy Backed by the then CM, Prakash Singh Badal?

During investigation, the respondent 3 had not examined any one of the injured police persons so as to assess the respective assertions of the parties in the FIRs. He had examined only the alleged injured protestors and filed a report; wherein he had declared the firing by the police to be totally ‘unprovoked’ and the protestors to be totally ‘peaceful’.

An allegation was raised by the respondent 3 claiming a conspiracy between the then CM, the then Deputy CM, the then senior police officers and the petitioners on the basis of the call record showing the CM talking to the DGP and the District Administration, as well as, to his political representative in the area. The Court stated that, mere factum of a Chief Minister talking to the District Administration or to the DGP of the State in the times of a situation where the law and order is disturbed, in itself, would not be sufficient to infer his conspiracy to kill or injure anybody through firing by the police upon the protestors, unless there is some other material collected by the investigating officer to establish prior meeting of minds for conspiracy and then directly linking the Chief Minister to such conspiracy.

The Court opined that it rather suggest that the CM was alive to the situation and to his responsibility even in the odd hours. Also, none of the other witnesses was stated to have even remotely suggested that the then CM conspired to kill the protestors by police firing. The Bench further stated that, mustering of police force from various sources of state to control the law and order situation is nothing uncommon. Rather, sensing ill intentions on the part of respondent 3, the Bench said that despite mentioning their names in the charge sheet and recording therein that their conspiracy was established, the respondent 3 did not array the then CM as accused by filing any charge sheet against them which suggest he was waiting for a political horse to be flogged only at an opportune time, whenever the elections are around the corner or when it otherwise suits him.

The integrity of the investigation totally stands demolished because of this manipulation on the part of the respondent 3, as he repeatedly pressed that the police resorted to ‘unprovoked firing’ on ‘peaceful protestors’; despite the fact that the magistrate present on the spot had assessed the situation that had arisen on the spot and had granted permission to use tear gas in the first instance, lathi charge thereafter, and the gun firing at the third stage. As per record, this permission was granted on the basis that the protestors were resorting to large scale violence and destruction of property; and that because of this the situation had gone out of control. Description of Second Inquiry Commission also recorded the protestors to have chased and attacked the police, including with the swords.

Directions by the Court

In view of the above, the fairness of investigation stands vitiated since the investigation conducted by the respondent 3 suffers from malice, irrationality and absurdity. The Bench expressed that in such case the Court is duty bound to step-in to prevent miscarriage of justice, instill confidence in the investigation and also to pre-empt the misuse of the process of the court; by quashing the investigation and the consequent report under section 173 CrPC.

Hence, it was held that the investigation deserves to be conducted by an independent team of senior police officers; by being totally free from all kinds of internal or external extraneous pressures and interference. The matter was disposed of with the following directions:

  • State shall constitute a SIT of three senior IPS officers which shall not include the respondent 3. There shall be no interference from any quarter; internal or external; with this SIT qua the investigation.
  • The SIT shall not report to any State executive or police authority qua the investigation in question but to the Magistrate concerned.
  • The SIT so constituted shall work jointly. All the members of the SIT shall put their signatures on all the proceedings of the investigation as a mark of the fact that they have agreed to the said investigation;
  • Once constituted, that SIT shall not be changed by State except in case of retirement, incapacity or death of the officer concerned;
  • The members of SIT shall not leak any part of the investigation, before filing the final report and shall not interact with media qua any aspect of investigation.

[Gurdeep Singh v. State of Punjab, CWP No. 17459 of 2019, decided on 09-04-2021]


Kamini Sharma, Editorial Assistant has put this report together 

Appearance before the Court by:

Counsel for the Petitioner: R. S. Cheema, Senior Advocate, with K. S. Nalwa, A. S. Cheema and Chakitan V. S. Papta

Counsel for the State: Pankaj Singhal
Counsel for CBI: Sumeet Goel

Case BriefsHigh Courts

Bombay High Court: A Division Bench of Dipankar Datta, CJ. and G.S. Kulkarni, J. has directed the Central Bureau of Investigation (CBI) to conduct a preliminary enquiry into the complaints against the Home Minister of the State of Maharashtra, Anil Deshmukh. The Court’s order came after the former Commissioner of Mumbai Police, Param Bir Singh, and others moved the High Court seeking investigation into allegations of illegal money collection ordered by the Home Minister, Anil Deshmukh. While opining that the information furnished prima facie discloses commission of cognizable offence by Anil Deshmukh, and directing that preliminary inquiry be preferebly concluded within fifteen days, the Court held:

[Anil] Deshmukh is the Home Minister. The police department is under his control and direction. There can be no fair, impartial, unbiased and untainted probe, if the same were entrusted to the State Police Force. As of necessity, the probe has to be entrusted to an independent agency like the CBI.”

  1. Backdrop, Timeline and the Factual Matrix

In February, a vehicle laden with explosives was found parked at Altamount Road, Mumbai, near ‘Antilia’, the residence of Mukesh Ambani, the Chairman and Managing Direcotr of Reliance Industries Ltd. In this matter, on 25-2-2021, an FIR was registered with Gamdevi Police Station, Mumbai, and investigation was handed to the Anti-Terror Squad. Simultaneously, the National Investigation Agency (NIA) started conducting investigation. Soon thereafter, the owner of the vehicle died under mysterious circumstances. During NIA’s investigation, the role of one Sachin Vaze, a police officer attached to the Mumbai Crime Branch came under scanner and he was arrested.

On 17-3-2021, the incumbent Commissioner of Mumbai Police, Param Bir Singh was transferred. On 20-3-2021, Param Bir Singh, in a letter to the Chief Minister of Maharashtra, took exception to statements made against him by the Home Minister wherein he said that there were serious lapses committed by the Commissioner’s office, and Param Bir Singh’s transfer was not on administrative grounds.

In his letter to the Chief Minister, Param Bir Singh made some serious allegations stating that the Home Minister, Anil Deshmukh, had instructed Sachin Vaze to assist in collection of funds for the Home Minister, with a target of accumulating Rs 100 crores a month. As per further allegations, similar instructions were given by Anil Deshmukh to some other officers of the Mumbai Police. It was also alleged that Anil Deshmukh, on several occasions, called officers of the Mumbai Police to instruct them to adopt a specific course of action in police investigations. Param Bir Singh asserted that the Home Minister found his reservations and resistance undesirable and his transfer seem to be for extraneous and vindictive reasons.

On 21-3-2021, Param Bir Singh moved the Supreme Court under Article 32 of the Constitution seeking a writ of mandamus directing the CBI to conduct an impartial and fair investigation into the complaints against Anil Deshmukh, and to quash his transfer order. This writ petition was however withdrawn by Param Bir Singh with a liberty to approach the High Court. Availing such liberty, Param Bir Singh approached the High Court on 24-3-2021, filing a Public Interest Litigation (PIL).

On 21-3-2021 itself, one Dr Jaishri Laxmanrao Patil lodged a complaint with the Malabar Police Station and the Director, Anti-Corruption Bureau of the CBI in the same matter. No action was taken on the complaint, which prompted Dr Patil to file a Criminal Writ Petition in the present matter before the High Court seeking direction to CBI/ED to investigate the matter.

  1. Analysis

2.1. Need for an FIR

There was much debate at the Bar in respect of the omission or failure to furnish information to/lodge a complaint before the police for the same to crystallize into an FIR, which could be investigated. According to the High Court, the issue paled into insignificance in view of the disclosure made by Dr Patil of she having lodged a complaint disclosing commission of cognizable offence on 21-3-2021 and that such complaint was not given the attention that it deserved. Had such disclosure been made at the inception of hearing, much of the early exchanges may not have been necessary at all and could be avoided.

2.2. Maintainability of Param Bir Singh’s PIL

The High Court refused to be drawn into the larger controversy raised by the respondent State on the aspect of maintainability of the PIL filed by Param Bir Singh and another PIL filed by another petitioner (there were a total of three PILs including that of Param Bir Singh and one Criminal Writ Petition of Dr Patil, which were heard together). The controversy, in the Court’s opinion, which was common to the petitions, could be taken care of within a narrow compass by deciding whether, if at all, and to what extent, if any, action on the complaint of Dr Patil should be directed to be taken.

2.3. Maintainability of Dr Patil’s Criminal Writ Petition

The High Court noted that registration of a case is a sine qua non for starting an investigation. The jurisdictional fact for setting the criminal law in motion in the present case was traceable in the Criminal Writ Petition of Dr Patil, who provided a crucial breakthrough by lodging a complaint in the matter.

2.3.1. Writ Petition versus Efficacious Alternate Remedy

The State’s objection to Dr Patil’s Criminal Writ Petition was primarily grounded on existence of an efficacious alternative remedy before the Magistrate under the CrPC, which she had not availed of.

The Court explored the answer to the question: The Criminal Writ Petition of Dr Patil raises an important issue of lack of enforcement of law by the police. Does this per se warrant entertainment of the Criminal Writ Petition?

In the context of the nature of the concern expressed in the Criminal Writ Petition, the Court considered that the restriction to be kept in mind in deciding the question of entertainability is, whether there exists any equally efficacious alternative remedy in a criminal court and even if such a forum of redress is available, should the writ court entertain the writ petition. The Court found answer to this stating that where the facts of any case are such that the remedy provided by the law is found to be inadequate or inefficacious to the judicial mind, a writ petition may be entertained and decided. Provisions in Section 23 of the Police Act, 1861 and the CrPC cast a duty on the police to prevent commission of offence and to bring an offender to justice. Where a person or authority is vested with a duty by specific statutory provisions, to compel such person or authority to perform such duty is certainly within the power and jurisdiction of a writ court.

[T]he courts shall not countenance violation of Constitutional principles by anyone, howsoever high an office he occupies, and hence while acting as the sentinel on the qui vive and being always there as a watch guard of the Constitution to repel any attack on it, the courts would ensure that the democratic values enshrined in the Constitution are respected and the ideals upheld.

On this point, the High Court relied on several decisions of the Supreme Court including, Municipal Council, Ratlam v. Vardichan, (1980) 4 SCC 162; Union of India v. R. Redappa, (1993) 4 SCC 269; and N. Kannadasan v. Ajay Khose, (2009) 7 SCC 1.

While finally deciding this point, the Court held that it is not unknown that despite the existence of a remedy, the remedy against the particular mischief complained of and the redress sought for, at times, might be of no avail. It would be opposed to Constitutional philosophy if relief is refused only on the ground of existence of an alternative remedy, which may not be equally efficacious. Therefore, if a case presented before a writ court appears to it to be extraordinary, which the Criminal Writ Petition of Dr Patil indeed is, there is no bar that could operate for entertaining the same. After all, the rule which requires exhaustion of an alternative remedy is a rule of convenience and discretion, rather than a rule of law.

[I]t is indeed unheard of and unprecedented that a Minister could be so openly accused of wrongdoings and corrupt practices by none other than a senior police officer attracting wide attention from all and sundry.”

2.4.  Cognizable Offence (prima facie)

The High Court perused the complaint of Dr Patil to consider whether it makes out a prima facie case of a cognizable offence. It was clarified that examination of the veracity and/or credibility of the allegations contained therein is not the Court’s task at this stage. Dr Patil annexed to her complaint, a copy of Param Bir Singh’s letter to the Chief Minister.

As per the Court prima facie opinion, the information furnished therein discloses commission of cognizable offences by Anil Deshmukh and should have been acted upon in the manner required by the CrPC, and as judicially interpreted by the Supreme Court in Lalita Kumari v. State of U.P., (2014) 2 SCC 1.

2.5. CBI Investigation

The High Court noted that a CBI inquiry cannot be ordered as a matter of routine or merely because a party makes an allegation. But, if after considering the materials on record, the Court concludes that such materials disclose a prima facie case calling for investigation by the CBI, the Court can make the necessary order. Reliance was placed on Common Cause v. Union of India, (1999) 6 SCC 667 and T.C. Thangaraj v. V. Engammal, (2011) 12 SCC 328, among others. The Court opined that w]hen high officials are likely to be involved and a question of public confidence in the impartial working of the State agencies arises, the writ court in exercise of its jurisdiction under Article 226 of the Constitution is certainly not powerless to order such inquiry and investigation by the CBI.

It was noted by the Court that Dr Patil had submitted her complaint to the Senior Police Inspector of the Malabar Hill Police Station on 21-3-2021; however, except for making an entry in the Inward Register, no action whatsoever, was initiated. The allegations made by Param Bir Singh in his letter dated 20-3-2021, which triggered Dr Patil to lodge the complaint are of a serious nature and against the highest functionary of the Government of Maharashtra, when it comes to the functioning of the police department. Prima facie, the issues are such that the very faith of citizens in the functioning of the police department is at stake. If there is any amount of truth in such allegations, certainly it has a direct effect on the citizens’ confidence in the police machinery in the State. Such allegations, therefore, cannot remain unattended and are required to be looked into in the manner known to law when, prima facie, they indicate commission of a cognizable offence

It is, hence, certainly an issue of credibility of the State machinery, which would stare at the face when confronted with the expectations of the law and when such complaints are received against high ranking public officials. This Court cannot be a mere spectator in these circumstances. There is certainly a legitimate public expectation of a free, fair, honest and impartial inquiry and investigation into such allegations which have surfaced in the public domain.

2.6. Preliminary Inquiry

While holding that to instill public confidence and safeguard the fundamental rights of the citizens, it is necessary that an inquiry and investigation is conducted by an independent agency, the Court also noted the caution in P. Sirajuddin v. State of Madras, (1970) 1 SCC 595, wherein the Supreme Court held that before a public servant is publicly charged with acts of dishonesty which amount to serious misdemeanour or misconduct and a first information is lodged against him, there must be some suitable preliminary enquiry into the allegations by a responsible officer. The means adopted no less than the end to be achieved must be impeccable.

  1. Directions

Concluding the discussion, the High Court ordered the following:

3.1. Although there is no immediate reason to direct registration of an FIR by the CBI based on Dr Patil’s complaint, interest of justice would be sufficiently served if the Director, CBI is directed to initiate a preliminary inquiry into the complaint of Dr Patil which has the letter of Param Bir Singh addressed to the Chief Minister, as an annexure.

3.2. Such preliminary inquiry shall be conducted in accordance with law and concluded as early as possible but preferably within 15 (fifteen) days from receipt of a copy of the instant order.

3.3. Once the preliminary inquiry is complete, the Director, CBI shall be at liberty to decide on the future course of action, also in accordance with law. Should the Director, CBI see no reason to proceed further, Dr Patil shall be duly informed of the same.

3.4. Param Bir Singh shall be at liberty to raise grievances, if any, in regard to transfers and postings of police officers and for enforcement of the directions in Prakash Singh v. Union of India, (2006) 8 SCC 1, before the appropriate forum in accordance with law, if so advised.[Param Bir Singh v. State of Maharashtra, 2021 SCC OnLine Bom 516, dated 05-4-2021]


Advocates who appeared in this case:

Mr. Vikram Nankani, Senior Advocate a/w Dr. Birendra Saraf and Mr. Sharan Jagtiani, Senior Advocates, a/w Mr. Subodh Desai, Mr. Chetan Kapadia, Mr. Sunny Punamiya and Mr. Akshay Bafna, Advocates for Petitioner.

Mr. A.K. Singh and Mr. Piyush Singh, Advocates for Applicant/Intervenor in I.A. St. No. 6356/2021.

Mr. A.A. Kumbhakoni, Advocate General a/w Mr. Deepak Thakare, Public Prosecutor, a/w Mr. Akshay Shinde, “B” Panel Counsel and Mr. Manoj Badgujar, Advocate for State.

Mr. Anil C. Singh, Additional Solicitor General a/w Mr. D.P. Singh, Mr. Amogh Singh and Mr. A.A. Ansari, Advocates for Respondent nos. 2 and 3.

Dr. Jaishri L. Patil, Petitioner-in-person.

Mr. A.A. Kumbhakoni, Advocate General a/w Mr. Deepak Thakare, Public Prosecutor, a/w Mr. Akshay Shinde, “B” Panel Counsel and Mr. Manoj Badgujar, Advocate for State.

Mr. Subhash Jha, Mr. Nilesh Ojha a/w Mr. Samir Vaidya, a/w Mr. Harekrishna Mishra a/w Mr. Siddharth Jha, Mr. Abhishek Mishra a/w Mr. Munish Hemani i/b Law Global for Petitioner.

Mr. A.A. Kumbhakoni, Advocate General a/w Mr. Deepak Thakare, Public Prosecutor, a/w Mr. Akshay Shinde, “B” Panel Counsel and Mr. Manoj Badgujar, Advocate for State.

Mr. Alankar Kirpekar and Mr. Shekhar Bhagat, Advocates i/b Maglegal for petitioner.

Mr. A.A. Kumbhakoni, Advocate General a/w Mr. Deepak Thakare, Public Prosecutor, a/w Mr. Akshay Shinde, “B” Panel Counsel and Mr. Manoj Badgujar, Advocate for State.

Case BriefsTribunals/Commissions/Regulatory Bodies

Central Bureau of Investigation (CBI): The Court of Shivank Singh, Special Judicial Magistrate (CBI) while convicting the accused of the offences under Sections 120B, 420 of Penal Code, 1860 acquitted the accused of the offences under Sections 467, 468, 471 of Penal Code, 1860.

In the present matter, Alishan Khan with Asad Ali (accused in the present matter) were accused of criminal conspiracy with each other for dishonestly and fraudulently availing the benefit of wrongful gains to themselves and subsequently causing wrongful loss to the Department of Customs. In that process, evasion of the payment of customs duty, act of falsely claiming themselves as Manufacturer Exports with the support of forged documentation was carried out. Further the facilities otherwise available to firms were availed, again with forged documents, to waive off the condition to deposit bank guarantee. Subsequently, they again approached the office of Jt. Directorate General of Foreign Trade (DGFT) for issue of an advance import licence for a Cost Insurance and Freight (CIF) value of Rs. 2.02 Crores which was almost 20 times the value of the earlier licence. It was during investigation, that the exports claims so made were also found to be false. Interestingly, the firm or the unit from where they supposedly functioned was also found to be non-existent.

Therefore, the substantial question was of the role of the accused in the entire criminal transaction and involvement in the affairs of the non-existent firm.

The prosecution examined 25 witnesses, and intriguingly, the defence had no witness in support.

The Court while taking note of the testimonies of the witnesses so put forth, arguments advanced and charges levied, considered it appropriate to deal with the provisions of all substantive offences one by one.

While acquitting under Section 467 of IPC, the Court referred to, Sheila Sebastian v. R. Jawaharaj, (2018) 7 SCC 3, wherein it was held that the charge of forgery cannot be imposed on a person who is not the maker of the same. For Section 468 of IPC, the court was firm that use of the forged shipping bills, rent receipts, etc. were not proved beyond reasonable doubt. And further for Section 471 read with 467 of IPC, was of the opinion that, the evidence on record revealed that the accused was the beneficiary of the forged documents “…but it is not established by the prosecution that accused had used the very ‘forged documents’ in question as genuine. Law is settled on this point, that however strong the suspicion maybe, it cannot take place of proof…”.

For conviction under Section 420 of IPC, after a conjoint reading of the testimonies of the witnesses and the corroborating evidences, the Court very firmly stated that, “the prosecution has very clearly manifested Asad Ali’s role in the entire chain of transaction and has proved that it was Asad Ali who had acted upon, manoeuvered and operated the affairs of M/s United Exports sub rosa…”. For Section 120-B, the Court mightily opined that, “…it is settled law that in the case of conspiracy there cannot be any direct evidence. Privacy and secrecy are more characteristics of a conspiracy, than of a loud discussion in an elevated place open to public view…”. “…the circumstances proved before, during and after the concurrence have to be considered to decide about the complicity of the accused…”. “…It would have been difficult for any of the accused, to execute alone such conspiracy or cheating. But with the combined efforts they were able to do the same…”.

Therefore, the Court after considering the entire facts and circumstances, convicted the accused for the offence under Section 120-B of IPC, to undergo rigorous imprisonment of 3 years and pay fine of Rs. 10,000/- and for the offence under Section 420 of IPC, to undergo rigorous imprisonment for 03 years and pay fine of Rs. 10,000/- which shall run concurrently. Also, the accused was entitled to set off under Section 428 of the Criminal Procedure Code, 1973 for the period already undergone in judicial custody, if any.[CBI v. Asad Ali, 5103092/2005 decided on 01-04-2021]

Case BriefsTribunals/Commissions/Regulatory Bodies

Special Court, CBI, Ghaziabad: The Court of Shivank Singh, Special Judicial Magistrate (CBI), issued summons against the builder for the alleged unapproved imaginary construction and the fraud thereafter, the two bogus allottees for cheating the bank, and the two Punjab National Bank (Bank) officials for turning a blind eye, under relevant sections.

In the pertinent ‘infamous case’, the construction company, Shri Balaji Hi-Tech Constructions Pvt. Ltd., had constructed multi-storey residential flats in Ghaziabad. The builder (also the Director) with the allottees cheated the bank, by issuing more than one allotment letter for the same flat to different individuals and issued allotment letters for the non-existent flats on the 16th floor of the building. The housing loan was secured in name of the purported allottees. The bogus allottees, then secured a housing loan for the same ‘imaginary house’.  Interestingly, this was an alleged criminal conspiracy where not only the builder, the allottees but very clearly the Bank officials were also involved.

The Court very categorically acknowledged and took cognizance of each of the issues and individuals involved at various stages of the fraud. Primarily, the Court took note of the fact that the Ghaziabad Development Authority (GDA) approved only one ground floor and 14 upper floors, indicating that the imaginary house was not even approved. Further, the role of the ‘sanctioners’ (Bank Officials) was very prominently highlighted, as the two housing loan proposals of the bogus allottees were processed and recommended by the then Manager and Senior Manager of the Bank. What is captivating is that, “…sanction for prosecution u/s 19 of Prevention of Corruption Act, 1988 was sought from the competent authority in PNB but the same was declined…”. Moving in the same direction, the Court further made a remark, “…The act of processing, recommending and sanctioning the housing loans by the bank officials on non-existent flats is an act which is without any imprimatur…”. While taking cognizance, the Court in the operative part of the order opined that, “no sanction under section 197 CrPC is required for the offences of IPC against them as both of them are not the officials which are removable by the sanction of Government as required by the provision of Section 197 CrPC. K. Ch. Prasad v. J. Vanalatha Devi, (1987) 2 SCC 52 and S.K. Miglani v. NCT of Delhi in Criminal Appeal No. 744 of 2019 were relied on.

The Court took note of the “lapses shown by the Bank Officials” and refused to believe that the fraud could otherwise be committed successfully, had they not turned a blind eye to the verification process while sanctioning.  Therefore, the Builder and the two bogus allottees were summoned for the offences under Sections 120B read with  420,467,468,471 of the Penal Code as well as substantive offences under Sections 420, 467, 468, 471 of the Penal Code. And the ‘sanctioners’ or the Bank officials under Section 120B read with 420, 467, 468, 471 Penal Code and for offences under Section 409 of the Penal Code.[CBI v. Harpreet Singh Saigal, Cri. Misc. Cases/0000352/2021, decided on 15-03-2021]

Case BriefsTribunals/Commissions/Regulatory Bodies

Special Court, CBI, Ghaziabad- The Court of Shivank Singh, Special Judicial Magistrate (CBI), allowed the application where permission to lead secondary evidence was sought for.

In the present matter, the charge sheet along with certain photocopies (made from the original) were lost from the CBI office, with an enquiry pending for the same. The earlier application was dismissed by the same court, since the CBI could not prove the loss of documents, and therefore the present application.

The defence opposed the application by stating that the CBI filed the application with a malafide intention as the agency wants to protect its officials from the misconduct. And that it changed its stance from not traceable to stolen/missing.

The Court was of the opinion that the present application was filed after the registration of an FIR (which was missing in the previous application) of the lost documents, therefore it fulfilled the criteria under Section 65(c), Evidence Act. It further took note of the fact that permission to lead secondary evidence was sought only for the documents on record. It even clearly demarcated the responsibilities of the department and the absolute no correlation with the independent functions of the Court. The Court took the changed circumstances into consideration and further held that the, “…disposal of this application would not amount to review as the earlier application was dismissed by this court on the ground that prosecution has not fulfilled the criteria u/s 65(c) of the Evidence Act…”. And was thus of the opinion that granting the permission would not hamper the interests of justice of the accused.[CBI v. Lokeshwar P. Mathur, Cri. Case/5100004/2014, decided on 09-03-2021]

Case BriefsTribunals/Commissions/Regulatory Bodies

Special Court, CBI, Ghaziabad: Shivank Singh, Special Judicial Magistrate (CBI), rejected the closure report filed by the CBI, stating that the Court was of the view that a prima facie case was made out. And resultantly, took cognizance under Section  120B r/w 302, 201 as well as substantive offences under Sections 302, 201 of the Penal Code, 1860.

In the present case, a first year MBBS student, Neeraj Bhadana, allegedly committed suicide by jumping from the 5th floor of the hostel building on 6-7-2013, in the college premises of Teerthankar Mahaveer University, Moradabad. Subsequently, on 7-7-2013, an FIR was lodged with the local police against unknown persons. On 10-07-2013, a further complaint was lodged by the complainant (father) with the allegations against the administration (with specific names) including the Vice-Chancellor, students/hostel-mates for subjecting the deceased to sexual exploitation. The investigation was initiated by the local police, later it went to the CB CID and thereafter was transferred to CBI on 25-07-2013.

Now the question was on the dubious and mysterious circumstances in which the victim died and the different factual matrix that ensued further.

During investigation some startling revelations were made which not only outright contradicted the different versions but also the narration of the cause.  Thereby, raising questions on the veracity of the doctor who treated the deceased in the emergency ward and had seen the deceased ‘gasping’, alongwith the authorities while the medical evidence and the treatment papers spoke differently.  Notably, the doctors who conducted the post mortem made observations of Ante-mortem injuries, torn hymen, ‘asphyxia as a result of smothering’. The Court took note of the many fallacies, on the basis of which the CBI wanted the closure report be treated as “untraced”. The logic of being “untraced” was also dealt at length in the detailed order.

The findings were made differently for incriminating the students involved and the College authorities. After a conjunctive reading of the material and documents so placed, the Court observed that the “…victim was killed by the way of smothering and was thrown from the building…”. Moreover, the Brain Electrical Oscillation Signature Test (BEOS), and the inconsistent versions of the students were taken note of, contending that they had seen her either falling or heard her voice. While there were enough witnesses recorded by the CBI stating that the deceased was “cold and numb when it fell”. The Court then made pertinent observations based on the witnesses, stating, “Such natural witnesses have no motive to state falsely. The only witness who have said that the victim was gasping was the staff/officials of Teerthankar Mahaveer University”. Further in regards with the College authorities, it was concluded that they “prepared false records under some pressure” and held that “the officials have participated in destruction of evidence. Had it been the involvement of only students in the alleged murder, then in that case, the officials (wardens etc.) would not have participated…”.

The present case was dealt by the Court in profundity, from an abyss to a sky scrapping detail. The Court while perusing the documents and appreciating the evidences, considered the case to be a classic example of “people may lie, but circumstances cannot”. The Court also made a remark on the investigation officer for not recording the legitimate findings in the closure report, “for the reasons, best known to IO” and found it hard to believe why no investigation was done on crucial points, which the Court later enumerated in the detailed summon order. The Court exclaimed, “this Court is constrained to say that the investigation in the present case is bereft of any logic, rationale and bonafide approach”.

The Court thus summoned the students/hostel-mates under Section 120B r/w 302, 201 along with the substantive offences under Sections 302, 201 of the Penal Code, 1860. Accused Vice-Chancellor was summoned under Section 120B r/w 302, 201 of the Penal Code, 1860. And the college authorities were issued summons under Section 120B r/w 302, 201 and the substantive offence under Section 201 of the Penal Code, 1860.[CBI v. Closure report, 6 (S)/2013 SCU. V SC-II CBI, dated 15-02-2021]