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Kunal Singh Versus Central Bureau of Investigation (CBI)

2016 (6) TMI 340 - DELHI HIGH COURT

Offence of criminal conspiracy and the offences under the Prevention of Corruption Act - requirement of sanction under Section 197 Cr.P.C - charge under Section 120-B IPC and Sections 7, 12 & 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988 - Held that:- No sanction under Section 197 Cr.P.C. was required in the present case as the offences alleged against the petitioner cannot be said to be done in the discharge of his official duties to claim the protection as provided .....

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to the petitioner; contention regarding statement of approver Pankaj Bajaj cannot be used against the petitioner; contention regarding missing chain of circumstances in the present case and the contention regarding the fact that despite having no evidence against the petitioner, the charges have been framed against him by the Trial Court culminates into non-interference in the order passed by the Trial Court as the disputed facts cannot be made the basis for quashing, the order on charge and th .....

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Ms. Shreshtha Jain, Adv., Mr. Rajul Jain, Adv. Ms. Shreya Sinha, Adv, Ms. Ragini Singh, Adv. with Mr. Lalit Phullar, Investigating Officer. P.S.TEJI, J. 1. The present petition under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter shall be referred to as the Cr.P.C. ) has been filed by the petitioner for quashing of order on charge dated 21.09.2013 passed by the learned Special judge (PC Act) CBI and framing of charge dated 07.10.2013 in RC No.2172012/A000 .....

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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 Harish Dhondiyal was posted as Inspector, Income Tax, Noida; accused S.K. Garg was the Chairman, accused Pankaj Bajaj (now approver) was Managing Director of M/s Eldeco Group; accused Anil Kumar Dhanda was CFO of M/s Eldeco Infrastructure & Properties and accused .....

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that accused Kunal Singh was in touch with accused Pankaj Bajaj and he was called by accused Kunal Singh at his residence on 03.06.2012 at 8 p.m. A trap was laid during which accused Pankaj Bajaj had delivered ₹ 30 lacs to accused Kunal Singh and the said amount was recovered from his residence. It was further alleged that accused Ratan Singh had received bribe from accused Pankaj Bajaj, but the said money was not recovered. It was further alleged that accused Uma Kant had received bribe a .....

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a role in fixing meeting of officers of M/s Eldeco Group with the officers of Income Tax Department. 3. After completion of investigation, charge sheet was filed in the Court. After hearing the arguments on charge, the learned Trial Judge passed the order on charge on 21.09.2013. On 07.10.2013, charge under Section 120-B IPC read with Sections 7, 12, 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act was framed against accused Kunal Singh, Ratan Singh, Uma Kant, Har .....

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nsel for the petitioner is that the petitioner was a senior officer of the rank of Joint Secretary to the Govt. of India. Section 6-A of the Delhi Special Police Establishment Act, 1946 (DSPE Act) prohibits the member of DSPE Act to conduct enquiry or investigation against the officers of the level of Joint Secretary and above except with the previous approval of the Central Government. Further argument advanced is that the petitioner was having telephonic conversation and meetings with accused .....

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s indicated in the FIR in question. It is further argued that there is no demand of any bribe by the petitioner nor there is any evidence of its acceptance. The recovery alleged by the CBI is planted one. The finger prints on the bag were taken and were sent to CFSL, but no report was filed. On this point, learned counsel for the petitioner has relied upon judgment in the case of Banarsi Dass v. State of Haryana 2010 (4) SCC 450 in which it was observed that to constitute an offence of illegal g .....

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SCC 720; B.Jayraj v. State of Andhra Pradesh (2014) 13 SCC 55; B.Satyanarain Murthy v. State of A.P. (2015) 10 SCC 152 and C.Sukumaran v. State of Kerala 2015 SCC Online SC 78 have been relied upon by the petitioner. 6. Next argument advanced is that it is alleged that accused Ratan Singh demanded money on behalf of the petitioner, but there is no conversation between accused Pankaj Bajaj and Ratan Singh in this regard. The conversation dated 27.05.2012 shows that the petitioner was a .....

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ion 164(4) of Cr.P.C. On this point, judgment in the case of Dhananjay Reddy v. State of Karnataka 2001 (4) SCC 9 has been relied upon in which it was observed that an alleged judicial confession proved to have not been legally recorded cannot be used as extrajudicial confession. 7. Next argument advanced is that the statement of co-accused is not a substantive evidence against other accused and the same can be used only for lending reassurance to the guilt which is based on other evi .....

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umstantial evidence but the chain of circumstances in the present case are missing which the prosecution is bound to prove fully. In support of this contention, judgments in the case of Musheer Khan @ Badhshah Khan and Anr. v. State of Madhya Pradesh (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 the prosecution is bound to prove its case beyond reasonable doubt .....

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1979) 3 SCC 4; Niranjan Singh Karan Singh Punjabi & others v. Jitendra Bhimraj Bijja and others 1990 (4) SCC 76; State of Maharashtra v. Priya Sharan Maharaj and Ors. (1997) 4 SCC 393; Chitresh Kumar Chopra v. State (Govt. of NCT of Delhi) (2009) 6 SCC 605 and Dilawar Balu Kurane v. State of Maharashtra (2002) 2 SCC 135 have been relied upon. 10. On the other hand, learned Standing Counsel for CBI has argued that during March 2012, the Investigation Wing of Income Tax Department a .....

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and Kunal Singh will be given bribe of ₹ 30 lacs for undue favours. Pankaj Bajaj had already made payment to Ratan Singh on 31.05.2012. On 15.04.2012, Pankaj Bajaj and Anil Jaiswal paid bribe of ₹ 10 lacs to Umakant at his residence and bribe of ₹ 2 lacs at his office. During search, illegal gratification of ₹ 9.7 lacs was recovered from his residence. Accused Ratan Singh had asked Pankaj Bajaj to settle the matter with Kunal Singh. Prior information was received by CBI t .....

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he benefit of Section 6A of the DSPE Act. It is further argued that CBI Manual does not prohibit 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 sanction under Section 197 Cr.P.C. as the sanction was already obtained for the offences punishable under the P.C. Act and there was no .....

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quired to analyse the evidence relied upon by the prosecution but to see whether there is strong suspicion or not on the basis of material available. 12. The Senior Counsel for the petitioner has contended that the petitioner is having protection under Section 6A of the DSPE Act. This contention is not having any force inasmuch as said protection is no more available to a government servant on any designation he is holding. The Hon ble Apex Court in Dr.Subramanian Swamy s c .....

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) the employees of the Central Government of the level of Joint Secretary and above and (b) such officers as are appointed by the Central Government in corporations established by or under any Central Act, government companies, societies and local authorities owned or controlled by the Government, is invalid and violative of Article 14 of the Constitution. As a necessary corollary, the provision contained in Section 26 (c) of the Act 45 of 2003 to that extent is also declared invalid. .....

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:p> 14. The petitioner has further asserted that there is no evidence or material on record to show any demand or acceptance of alleged bribe by the petitioner and in the absence of demand and acceptance, the alleged recovery of money is of no consequence. It is also the contention of the petitioner that the recorded conversations do not prove in any manner the demand of bribe by the petitioner, rather it shows the reluctance of the petitioner to meet Pankaj Bajaj who has now turned a .....

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eged against the petitioner Kunal Singh that he met Pankaj Bajaj in India International Centre, Delhi. A cumulative effect of the recorded call details of the accused persons shows that there was a criminal conspiracy between the accused persons. It is also alleged against the petitioner that in furtherance of such conspiracy of showing favour to M/s Eldeco Group, he accepted bribe amount of ₹ 30 lacs which was recovered from his residence when raid was conducted by the CBI. When it has be .....

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ealt with only at the time of conclusion of trial i.e. at the time of passing final judgment by the Trial Court. 17. Another plea raised by the petitioner is that the statement of co-accused Pankaj Bajaj who has now turned an approver cannot be relied upon and it cannot be used against the petitioner. There is no force in this contention of the petitioner inasmuch as it is shown on record that the statement of Pankaj Bajaj has been recorded before the learned Magistrate under Section .....

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urt has to consider whether there exists strong suspicion or not. The statement of Pankaj Bajaj, who has now turned an approved, also shows a prima facie case against the petitioner that he demanded and accepted bribe of ₹ 30 lacs, as alleged by the CBI as well. 18. Learned Senior Counsel for the petitioner further argued that the cognizance taken by the Trial Court in the present matter is defective as no separate sanction was taken for the offences under the Indian .....

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nder Singh Rana & Ors (2006)1 SCC 294, it was observed that : The upshot of the aforementioned discussions is that whereas an order of sanction in terms of Section 197 Cr. P.C. is required to be obtained when the offence complained against the public servant is attributable to discharge of his public duty or has a direct nexus therewith, but the same would not be necessary when the offence complained has nothing to do with the same. A plea relating to want of sanction although des .....

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r the witnesses are examined. 20. In view of the law laid down in the above mentioned judgments, in the considered opinion of this Court, no sanction under Section 197 Cr.P.C. was required in the present case as the offences alleged against the petitioner cannot be said to be done in the discharge of his official duties to claim the protection as provided under Section 197 Cr.P.C. 21. The Hon ble Apex Court in the case of Shankara Co-op Housing Society Ltd. v. M. Prabhakar .....

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with such decision where there is no legal evidence before the authority concerned, or where the decision of the authority concerned is held to be perverse, i.e., a decision which no reasonable man could have arrived at on the basis of materials available on record. Where an enquiry into complicated questions of fact is necessary before the right of aggrieved party to obtain relief claimed may be determined, the court may, in appropriate cases, decline to enter upon that enquiry, but the questi .....

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prosecution along with charge-sheet. The High Court therein had held that no case was made out on the basis of the contents of the charge sheet and the material filed in support thereof as in the opinion of the High Court, it was insufficient to frame the charge against the accused for their prosecution for commission of offence punishable Under Section 5(1)(d) and (2) of the Prevention of Corruption Act. The accused were accordingly discharged by the High Court without compelling the .....

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