CRL.M.C./1974/2014 of KUNAL SINGH Vs C B I

IN THE HIGH COURT OF DELHI AT NEW DELHI

+CRL.M.C. 1974/2014

Date of Decision: June 01[st], 2016

KUNAL SINGH

..... PetitionerThroughMr.P.P.Malhotra,Sr.Adv.withMr.Vineet Malhotra, Adv., Mr.YasirRauf, Adv. & Mr.S. Kaushik, Adv.Mr.Vineet Malhotra, Adv., Mr.YasirRauf, Adv. & Mr.S. Kaushik, Adv.

versus

CORAM:

..... RespondentThroughMs.Sonia Mathur, Standing Counselfor CBI with Mr.Sushil K. Dubey,Adv.&Mr.A.Chauhan,Adv.,Ms.Shreshtha Jain, Adv., Mr.RajulJain, Adv. Ms.Shreya Sinha, Adv,Ms.Ragini Singh, Adv. with Mr.LalitPhullar, Investigating Officer.for CBI with Mr.Sushil K. Dubey,Adv.&Mr.A.Chauhan,Adv.,Ms.Shreshtha Jain, Adv., Mr.RajulJain, Adv. Ms.Shreya Sinha, Adv,Ms.Ragini Singh, Adv. with Mr.LalitPhullar, Investigating Officer.

HON'BLE MR. JUSTICE P.S.TEJI

P.S.TEJI, J.

1.The present petition under Section 482 of the Code ofCriminal Procedure, 1973 (hereinafter shall be referred to as the“Cr.P.C.”) has been filed by the petitioner for quashing of order oncharge dated 21.09.2013 passed by the learned Special judge (PCAct) CBI and framing of charge dated 07.10.2013 in RCNo.2172012/A0005 under Section 120-B IPC and Sections 7, 12 &13(2) read with Section 13(1)(d) of the Prevention of Corruption

Act, 1988 and all the proceedings subsequent thereto.

2.The facts culled out from the record are that the CBI hadfiled charge sheet against the accused/petitioner Kunal Singh andco-accused persons Ratan Singh, Uma Kant, Harish Dhondiyal,S.K. Garg and Anil Kumar Jaiswal.The FIR in question wasregistered on 03.06.2012.At the relevant time, accused KunalSingh was posted as Director (Investigation), Income Tax, Kanpur;accused Ratan Singh was posted as Addl. Director (Investigation),Income Tax, Noida, accused Uma Kant was posted as Asstt.Director (Investigation), Income Tax, Noida; accused HarishDhondiyal was posted as Inspector, Income Tax, Noida; accusedS.K. Garg was the Chairman, accused Pankaj Bajaj (now approver)was Managing Director of M/s Eldeco Group; accused Anil KumarDhanda was CFO of M/s Eldeco Infrastructure & Properties andaccused Anil Kumar Jaiswal was Advocate & Tax Consultant. Itwas alleged that raid was conduted by the Income TaxDepartment at different premises of M/s Eldeco Group ofCompanies in March, 2012 in which various documents wereseized and bank lockers were sealed. Accused Pankaj Bajaj andS.K. Garg contacted accused Anil Kumar Jaiswal, CharteredAccountant to settle the matter with the Income Tax Departmentwho had contacted accused Ratan Singh, Umakant and HarishDhondiyal. Investigation revealed that accused Kunal Singh wasin touch with accused Pankaj Bajaj and he was called by accusedKunal Singh at his residence on 03.06.2012 at 8 p.m. trap waslaid during which accused Pankaj Bajaj had delivered Rs.30 lacs to

accused Kunal Singh and the said amount was recovered from hisresidence.It was further alleged that accused Ratan Singh hadreceived bribe from accused Pankaj Bajaj, but the said money wasnot recovered. It was further alleged that accused Uma Kant hadreceived bribe amount of Rs.12 lacs from accused Pankaj Bajajand sum of Rs.9.7 lacs being part of the bribe money wasrecovered from his residence.Accused Harish Dhondiyal hadreceived bribe amount of Rs.1 lac from accused Pankaj Bajaj outofwhichRs.70,000/-wasrecoveredfromhisresidence.Investigation also revealed that accused S.K. Garg was alsoinvolved in the payment of bribe to the officials of Income TaxDepartment.It was further alleged that accused Anil KumarJaiswal played role in fixing meeting of officers of M/s EldecoGroup with the officers of Income Tax Department.3.After completion of investigation, charge sheet was filed inthe Court.After hearing the arguments on charge, the learnedTrial Judge passed the order on charge on 21.09.2013.On07.10.2013, charge under Section 120-B IPC read with Sections 7,12, 13(2) read with Section 13(1)(d) of the Prevention ofCorruption Act was framed against accused Kunal Singh, RatanSingh, Uma Kant, Harish Dhondiyal, S.K. Garg and Anil KumarJaiswal.Accused Kunal Singh was also charged for substantiveoffences under Section 7 and 13(2) read with Section 13(1)(d) ofthe Prevention of Corruption Act. Feeling aggrieved by the same,the present petition has been preferred by the petitioner.

4.Arguments advanced by the learned Senior Counsel for the

petitioner as well as learned standing counsel for the CBI wereheard at length.

5.Argument advanced by the learned Senior Counsel for thepetitioner is that the petitioner was senior officer of the rank ofJoint Secretary to the Govt. of India.Section 6-A of the DelhiSpecial Police Establishment Act, 1946 (DSPE Act) prohibits themember of DSPE Act to conduct enquiry or investigation againstthe officers of the level of Joint Secretary and above except withthe previous approval of the Central Government.Furtherargument advanced is that the petitioner was having telephonicconversation and meetings with accused Pankaj Bajaj as thepetitioner was instructed by his seniors not to harass him due tomedical condition of his wife. On 31.05.2012, sum of Rs.30 lacswas paid to co-accused Ratan Singh by accused Pankaj Bajaj butno raid was affected on the said date nor any recovery wasaffected. On 03.06.2012, the CBI conducted raid at 14 premises atdifferent locations and at the premises of the accused persons. Theraid was conducted in pre-planned manner and not on the basis ofsource information as indicated in the FIR in question. It is furtherargued that there is no demand of any bribe by the petitioner northere is any evidence of its acceptance. The recovery alleged bythe CBI is planted one. The finger prints on the bag were takenand were sent to CFSL, but no report was filed.On this point,learned counsel for the petitioner has relied upon judgment in thecase of Banarsi Dass v. State of Haryana 2010 (4) SCC 450 inwhich it was observed that to constitute an offence of illegal

gratification, demand of money and its voluntary acceptance by theaccused is sine qua non. It was also observed that mere recoveryof money is not sufficient to constitute an offence of bribery in theabsence of demand and voluntary acceptance. On similar points,judgmentsinthecaseofSurajMalv.State(DelhiAdministration) 1979 (4) SCC 725; C.M. Sharma v. State ofAndhra Pradesh 2010 (15) SCC 1; C.M. Girish Babu v. CBICochin 2009 (3) SCC 779; M.K. Harsharan v. State of Kerala1996 (11) SCC 720; B.Jayraj v. State of Andhra Pradesh (2014)13 SCC 55; B.Satyanarain Murthy v. State of A.P. (2015) 10 SCC152 and C.Sukumaran v. State of Kerala 2015 SCC Online SC 78have been relied upon by the petitioner.

6.Next argument advanced is that it is alleged that accusedRatan Singh demanded money on behalf of the petitioner, but thereis no conversation between accused Pankaj Bajaj and Ratan Singhin this regard. The conversation dated 27.05.2012 shows that thepetitioner was avoiding meeting Pankaj Bajaj. The conversationdated 28.05.2012 between Pankaj Bajaj and Dhirendra Kharefurther shows that there was no demand of money by the petitioneras Pankaj Bajaj told Dhirendra Khare that the petitioner was notmeeting him and was not cooperating with him.Further it isargued that Pankaj Bajaj is the main culprit and CBI in order toshield and protect him, made him an approver in an illegal manner.Confession of Pankaj Bajaj has not been recorded in accordancewith Section 164(4) of Cr.P.C. On this point, judgment in the caseof Dhananjay Reddy v. State of Karnataka 2001 (4) SCC 9 has

been relied upon in which it was observed that an alleged judicialconfession proved to have not been legally recorded cannot beused as extrajudicial confession.

7.Next argument advanced is that the statement of co-accusedis not substantive evidence against other accused and the samecan be used only for lending reassurance to the guilt which is basedon other evidence.On this point,judgments in the case ofKashmira Singh v. State of M.P. 1952 SCR 526 and Param HansYadav v. State of Bihar & Others 1987 (2) SCC 197 have beenrelied upon in which it was observed that confession of co-accused is not substantive evidence against other co-accusedpersons in the same trial.It can only be used for lendingreassurance if there be any other substantive evidence to beutilized.

8.Next argument advanced is that the present case is based oncircumstantial evidence but the chain of circumstances in thepresent case are missing which the prosecution is bound to provefully.In support of this contention, judgments in the case ofMusheer Khan @ Badhshah Khan and Anr. v. State of MadhyaPradesh (2010) 2 SCC 748; Nizam & others v. State of Rajasthan(2016) 1 SCC 550 and Banarsi Dass v. State of Haryana 2010 (4)SCC 450 have been relied upon in which it was observed that theprosecution is bound to prove its case beyond reasonable doubt andthe chain of circumstances must be complete in every aspect in allthe cases where case of the prosecution relies upon circumstantialevidence.

9.Next argument advanced is that at the time of framing thecharge, the Court is required to evaluate the material anddocuments to find out if the facts disclose the existence of all theingredients constituting the alleged offence.In support of thiscontention, judgments in the case of Union of India v. PrafullaKumar Samal and Anr. (1979) 3 SCC 4; Niranjan Singh KaranSingh Punjabi & others v. Jitendra Bhimraj Bijja and others1990 (4) SCC 76; State of Maharashtra v. Priya Sharan Maharajand Ors. (1997) 4 SCC 393; Chitresh Kumar Chopra v. State(Govt. of NCT of Delhi) (2009) 6 SCC 605 and Dilawar BaluKurane v. State of Maharashtra (2002) 2 SCC 135 have beenrelied upon.

10.On the other hand, learned Standing Counsel for CBI hasargued that during March 2012, the Investigation Wing of IncomeTax Department at Kanpur conducted survey on the allegations ofIncome Tax evasion by M/s Eldeco Group and seized variousdocuments and sealed bank lockers at Patna, Agra and Delhi.Accused Anil Kumar Jaiswal contacted accused income taxofficials to seek undue favour.Pankaj Bajaj developed contactswith accused Uma Kant, Ratan Singh and Kunal Singh and heldmeetings with them and an illegal deal was finalized amongstthem.It was decided that Ratan Singh will be given bribe ofRs.30-35 lacs and Kunal Singh will be given bribe of Rs.30 lacsfor undue favours.Pankaj Bajaj had already made payment toRatan Singh on 31.05.2012. On 15.04.2012, Pankaj Bajaj and AnilJaiswal paid bribe of Rs.10 lacs to Umakant at his residence and

bribe of Rs.2 lacs at his office. During search, illegal gratificationof Rs.9.7 lacs was recovered from his residence. Accused RatanSingh had asked Pankaj Bajaj to settle the matter with KunalSingh. Prior information was received by CBI that Pankaj Bajajwould come at the residence of Kunal Singh on 03.06.2012 todeliver bribe.A trap was laid and CBI team recovered bribeamount of Rs.30 lacs from the residence of Kunal Singh.

11.Next argument advanced is that the Constitutional Bench ofHon’ble Apex Court in Dr. Subramanian Swamy v. Director, CBI2014 (6) Scale 146 has held Section 6A of the DSPE Act asunconstitutional and violative of Article 14 of the Constitution ofIndia, thus the petitioner cannot claim the benefit of Section 6A ofthe DSPE Act.It is further argued that CBI Manual does notprohibit registration of regular case instead of preliminary enquiry.In this context, judgment in the case of Lalita Kumari v.Government of U.P. & Ors. 2014 (2) SCC 1 has been relied upon.It is further argued that there is no requirement to obtain sanctionunder Section 197 Cr.P.C. as the sanction was already obtained forthe offences punishable under the P.C. Act and there was no needto obtain sanction for the offences committed under the IndianPenal Code. It is further argued that all the electronic evidencessuch as recording of voice conversation was procured afterfollowing due procedure. It is further argued that Pankaj Bajaj hasturned approver and in his statement, he has narrated the entireconspiracy and statement of Pankaj Bajaj can be appreciated onlywhen he is cross-examined. It is further argued that at the time of

framing the charge, the Court is not required to analyse theevidence relied upon by the prosecution but to see whether there isstrong suspicion or not on the basis of material available.

12.The Senior Counsel for the petitioner has contended that thepetitioner is having protection under Section 6A of the DSPE Act.This contention is not having any force inasmuch as said protectionis no more available to government servant on any designation heis holding. The Hon’ble Apex Court in Dr.Subramanian Swamy’scase (supra) has categorically held the provision of Section 6A ofthe DSPE Act as unconstitutional and violative of Article 14 of theConstitution of India.Relevant para from the judgment isreproduced as under :

“In view of our foregoing discussion, we hold thatSection 6- A(1), which requires approval of theCentral Government to conduct any inquiry orinvestigation into any offence alleged to have beencommitted under the PC Act, 1988 where suchallegation relates to (a) the employees of theCentral Government of the level of Joint Secretaryand above and (b) such officers as are appointedbytheCentralGovernmentincorporationsestablishedbyorunderany CentralAct,governmentcompanies,societiesandlocalauthoritiesownedorcontrolledbytheGovernment, is invalid and violative of Article14 of the Constitution. As necessary corollary,the provision contained in Section 26 (c) of the Act45 of 2003 to that extent is also declared invalid.”Section 6- A(1), which requires approval of theCentral Government to conduct any inquiry orinvestigation into any offence alleged to have beencommitted under the PC Act, 1988 where suchallegation relates to (a) the employees of theCentral Government of the level of Joint Secretaryand above and (b) such officers as are appointedbytheCentralGovernmentincorporationsestablishedbyorunderany CentralAct,governmentcompanies,societiesandlocalauthoritiesownedorcontrolledbytheGovernment, is invalid and violative of Article14 of the Constitution. As necessary corollary,the provision contained in Section 26 (c) of the Act45 of 2003 to that extent is also declared invalid.”

13.In view of the law laid down in the above judgment, noprotection of Section 6A of the DSPE Act is available to

government servant and thus, there is no force in the argumentadvanced on behalf of the petitioner that he was having protectionas per Section 6 of the DSPE Act which prohibits the member ofDSPE Act to conduct enquiry or investigation against the officersof the level of Joint Secretary and above except with the previousapproval of the Central Government.

14.The petitioner has further asserted that there is no evidenceor material on record to show any demand or acceptance of allegedbribe by the petitioner and in the absence of demand andacceptance, the alleged recovery of money is of no consequence.It is also the contention of the petitioner that the recordedconversations do not prove in any manner the demand of bribe bythe petitioner, rather it shows the reluctance of the petitioner tomeet Pankaj Bajaj who has now turned an approver.

15.The conversation dated 26.05.2012 between Pankaj Bajajand S.K. Garg shows that accused Ratan gave assurance of helpingthem.As per the conversation he suggested to give his senior 5more than what was given to him i.e. 25. Then Pankaj agreed togive 30 to the senior of accused Ratan.The conversation dated28.05.2012 between Dhirender Khare and Pankaj Bajaj shows thatKhare told Pankaj that Kunal would meet him.

16.Apart from above conversation, it is alleged against thepetitioner Kunal Singh that he met Pankaj Bajaj in IndiaInternational Centre, Delhi. cumulative effect of the recordedcall details of the accused persons shows that there was criminalconspiracy between the accused persons. It is also alleged against

the petitioner that in furtherance of such conspiracy of showingfavour to M/s Eldeco Group, he accepted bribe amount of Rs.30lacs which was recovered from his residence when raid wasconducted by the CBI. When it has been shown prima facie thataccused persons including the petitioner had been meeting eachother, having telephonic conversations with each other andrecovery of bribe money, strong suspicion is raised against themand it would be sufficient to frame charge against them. So far thecontention regarding admissibility of tape recorded conversationand other connecting factors are concerned, same are findings offact and no comment on the same at this stage can be made. Suchcontentions are to be dealt with only at the time of conclusion oftrial i.e. at the time of passing final judgment by the Trial Court.17.Another plea raised by the petitioner is that the statement ofco-accused Pankaj Bajaj who has now turned an approver cannotbe relied upon and it cannot be used against the petitioner.Thereis no force in this contention of the petitioner inasmuch as it isshown on record that the statement of Pankaj Bajaj has beenrecorded before the learned Magistrate under Section 164 Cr.P.C.The certificate dated 04.10.2012 as required under the law hasbeen given by the learned Magistrate regarding correctness of thestatement made by Pankaj Bajaj. The contention of the petitionerthat the said statement of the approver Pankaj Bajaj is not reliable,cannot be accepted at this stage in view of the fact that it is not thestage to pass the final judgment. It is settled law that at the timeof framing the charge, on the basis of material place before it the

Court has to consider whether there exists strong suspicion or not.The statement of Pankaj Bajaj, who has now turned an approved,also shows prima facie case against the petitioner that hedemanded and accepted bribe of Rs.30 lacs, as alleged by the CBIas well.

18.Learned Senior Counsel for the petitioner further argued thatthe cognizance taken by the Trial Court in the present matter isdefective as no separate sanction was taken for the offences underthe Indian Penal Code. There is no force in this contention of thepetitioner in view of the ratio of the judgment in the case ofHarihar Prasad v. State of Bihar (1972) 3 SCC 89 in which it wasobserved that so far as the offence of criminal conspiracy and theoffences under the Prevention of Corruption Act are concerned, thesame cannot be said to be the part of the duty of public servant,therefore, there is no requirement of sanction under Section 197Cr.P.C.

19.In Romesh Lal Jain v. Naginder Singh Rana & Ors(2006)1 SCC 294, it was observed that :

“The upshot of the aforementioned discussions isthat whereas an order of sanction in terms ofSection 197 Cr. P.C. is required to be obtainedwhen the offence complained against the publicservant is attributable to discharge of his publicduty or has direct nexus therewith, but the samewouldnotbenecessarywhentheoffencecomplained has nothing to do with the same. Aplea relating to want of sanction although desirablyshould be considered at an early stage of theproceedings, but the same would not mean that the

accused cannot take the said plea or the courtcannot consider the same at later stage. Each casehas to be considered on its own facts. Furthermore,there may be cases where the question as towhether the sanction was required to be obtainedor not would not be possible to be determinedunless some evidence is taken, and in such anevent, the said question may have to be consideredeven after the witnesses are examined.”

20.In view of the law laid down in the above mentionedjudgments, in the considered opinion of this Court, no sanctionunder Section 197 Cr.P.C. was required in the present case as theoffences alleged against the petitioner cannot be said to be done inthe discharge of his official duties to claim the protection asprovided under Section 197 Cr.P.C.

21.The Hon’ble Apex Court in the case of Shankara Co-opHousing Society Ltd. v. M. Prabhakar and Ors. AIR 2011 SC2161 observed that :

“The High Court in its writ jurisdiction, will notenquire into complicated questions of fact. TheHigh Court also does not sit in appeal over thedecisionofanauthoritywhoseordersarechallenged in the proceedings. The High Court canonly see whether the authority concerned has actedwith or without jurisdiction. The High Court canalso act when there is an error of law apparent onthe face of the record. The High Court can alsointerfere with such decision where there is no legalevidence before the authority concerned, or wherethe decision of the authority concerned is held tobe perverse, i.e., decision which no reasonableman could have arrived at on the basis of materials

availableonrecord.Whereanenquiry intocomplicated questions of fact is necessary beforethe right of aggrieved party to obtain relief claimedmay be determined, the court may, in appropriatecases, decline to enter upon that enquiry, but thequestion is always one of discretion and not ofjurisdiction of the court which may, in propercase, enter upon decision on questions of factraised by the Petitioner.”

In the case of The State v. Mariya Anton Vijay and Ors.(2015) 9 SCC 294, it was observed that :

“101. S.B. Johari's case (supra) was also casewhere the High Court had quashed the charge atthe instance of accused persons in exercise of itsinherent jurisdiction by appreciating the materialfiled by the prosecution along with charge-sheet.The High Court therein had held that no case wasmade out on the basis of the contents of the chargesheet and the material filed in support thereof as inthe opinion of the High Court, it was insufficient toframe the charge against the accused for theirprosecution for commission of offence punishableUnder Section 5(1)(d) and (2) of the Prevention ofCorruption Act. The accused were accordinglydischarged by the High Court without compellingthem to face the trial on merits.

102. In an appeal filed by the State against theorder of the High Court, this Court allowed theState's appeal, set aside the order of the High Courtand upheld the charge sheet and the charges whichwere framed by the trial court and laid down thelaw which we have reproduced in para 88 above.

103. Coming back to the facts of this case, theHigh Court committed the same error which wascommitted by the High Court in S.B. Johari's case(supra) because in this case also the High Courtwent into the questions of fact, appreciated thematerials produced in support of charge sheet,drawn inference on reading the statements of theaccused, and applied the law, which according tothe High Court, had application to the facts of thecase and then came to conclusion that no primafacie case had been made out against any of theaccused for their prosecution under the Arms Act.This approach of the High Court, in our consideredview while deciding petition Under Section 482 ofthe Code was wholly illegal and erroneous.”

22.In view of the above discussion, contention raised by thelearned Senior Counsel for the petitioner regarding protection ofthe petitioner as per Section 6-A of the DSPE Act; contentionregarding non-holding of preliminary enquiry by the CBI beforeregistration of FIR; contention regarding the manner in which theraid was conducted; contention regarding absence of demand andacceptance of bribe by the petitioner; contention regarding the factthat the alleged conversation attributed no role to the petitioner;contention regarding statement of approver Pankaj Bajaj cannot beused against the petitioner; contention regarding missing chain ofcircumstances in the present case and the contention regarding thefact that despite having no evidence against the petitioner, thecharges have been framed against him by the Trial Courtculminates into non-interference in the order passed by the TrialCourt as the disputed facts cannot be made the basis for quashing,

the order on charge and the charge framed, in petition underSection 482 Cr.P.C. as the same are subject matter of the TrialCourt to be determined on the basis of evidence led by the parties.23.The present petition is accordingly dismissed.

JUNE 01, 2016

(P.S.TEJI)JUDGE