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2013 Supreme(All) 558
ALLAHABAD HIGH COURT
BEFORE : SUNIL HALI, J.
DEVENDRA MOHAN ....Applicant
Versus
C.B.I/EOU-IV/NEW DELHI .....Opposite Party
(Criminal Misc. Application Nos. 43301, 43303, 43521, 43894, 38984, 40999 of 2012 and 1143 of 2013, decided on 19th February, 2013)
Counsel :
Nandit K. Srivastava, Imran Ullah, Manish Goyal, Priyanka Midha, Ram Kaushik, Brijesh Sahai, Virendra Kumar Maurya, Rajiv Gupta, Dileep Kumar and Sudeep Harkauli for the Applicant; N.I. Jafri, G.A. and Anurag Khanna for the Opposite Party.
Headnote:(A) Criminal Procedure Code, 1973—Sections 482, 306, 161, 170 and 306—Evidence Act, 1872—Section 94—Delhi Special Police Establishment Act, 1946—Section 6-A—(Indian) Penal Code, 1860—Sections 120-B, 420, 467, 468 and 471—Prevention of Corruption Act, 1988—Sections 13(2) and 13(1)(d)—Charge-sheet—Cognizance—Quashing of—In present case Division Bench of High Court issued directions to CBI to lodge FIRs and preliminary inquiry in respect of NRHM Scam—Summoning order—Challenging of—Selective investigation conducted by CBI—However, CBI is bound to carry out further investigation—Whether persons named in FIR as accused can be listed as witnesses of prosecution after conclusion of investigation—Under Section 161 I.O. in process of collecting evidence—Whether any body named as accused in FIR or not—It is satisfaction of I.O. to conclude as to who is to be impleaded as accused based upon evidence—Accomplice/approver depend upon nature of evidence—Where there is no accomplice—Section 306 not applicable—No presumption can be drawn at this stage that alleged Funds not procured through bribe—Under Section 6-A approval of Central Government to conduct inquiry/investigation—Necessity of—In present case direction issued by High Court under Article 226 of Constitution cannot be restricted by Section 6-A of Act—Materials adduced in charge-sheet disclosing commission of offence—No interference warranted. [Paras 27, 29, 31, 33, 35, 36, 38, 40 and 46]
(B) Criminal Procedure Code, 1973—Section 482—Inherent power of High Court—Exercising of—To prevent abuse of process of Court—Or otherwise secure ends of justice—This power cannot be exercised with regard to matters specifically covered by other provisions of Code. [Para 17]
(C) Criminal Procedure Code, 1973—Section 482—Inherent jurisdiction—When it is to be exercised—Quashing of proceedings—Where there was a legal bar—Where allegation in FIR/Complaint did not disclose offence—And where no legal evidence adduced in support of charge. [Para 18]
(D) Criminal Procedure Code, 1973—Section 161—Examination of witness—Power of police—I.O. empowered to examine any person who is acquainted with facts of case—No dichotomy at this stage between accused and a witness. [Para 29]
(E) Criminal Procedure Code, 1973—Section 306—Pardon—Tender of—Who can be—Before seeking pardon, person must be accomplice. [Para 33]
(F) Constitution of India, 1950—Article 226—Writ jurisdiction—Statutory bar/requirement—Effect of—Writ jurisdiction of High Court cannot be fettered by statutory requirement of Act. [Para 37]
(G) Criminal Trial—Conspiracy—Essence of—It is fact of combination by agreement. [Para 40]
(H) Prevention of Corruption Act, 1988—Sections 13(1)(d)—Offence thereunder—Essential ingredients—He should be a public servant—He should have used corrupt or illegal means—Or otherwise abused his position—And he should have obtained a valuable things—Or pecuniary advantage for himself or for any other person. [Para 42]
Hon’ble Sunil Hali, J.—Principles of public life are of general application in every democracy and one is expected to bear them in mind while scrutinising the conduct of every holder of a public office. It is trite that the holders of public offices are entrusted with certain powers to be exercised in public interest alone and, therefore, the office is held by them in trust for the people. Any deviation, from the path of rectitude by any of them amounts to a breach of trust and must be severely dealt with instead of being pushed under the carpet. Facts of this case are some how similar where an effort was made to push the matter under the carpet. Therefore, through an intervention of this Court in Writ Petition No. 3611 (MB) of 2011 [P.I.L] Sachchidanand (Sachchey) v. State of U.P. and others, connected with other matters, Central Bureau of Investigation (hereinafter referred to as ‘the CBI’) was directed to hold preliminary enquiry in the matter concerning implementation of the National Rural Health Mission (NRHM) in the State of Uttar Pradesh. Gross abuse and misappropriation of NRHM funds by the State functionaries in a planned and concerted manner was alleged in the petition filed before this Court. This Court in its order dated 15.11.2011 issued the following direction as under :
“We, therefore, direct the Director, CBI to conduct a preliminary enquiry in the matter of execution and implementation of the NRHM and utilization of funds at various levels during such implementation in the entire State of U.P. and register regular case in respect of persons against whom prima facie cognizable offence is made out and proceed in accordance with law. The preliminary enquiry shall be conducted from the period commencing year 2005-06 till date. It is directed that the inquiry be completed within four months. The State Government is directed to hand over and make available all the records as may be required by the CBI and render full support and cooperation to CBI. The Central Government is also directed to render full support as may be asked by the CBI.”
2. In view of above direction issued by this Court FIRs were registered and the preliminary enquiry was conducted by the CBI. After conclusion of the preliminary inquiry prima facie involvement of the accused in the crime was established as a result of which investigation was proceeded with. On the conclusion of the investigation various charge-sheets have been filed before the CBI Court at Ghaziabad. Taking cognisance in the matter process has been issued to summon the accused persons. These summoning orders are subject-matter of challenge before this Court. Following are the details of the applications under Section 482 Cr.P.C., questioning the various charge-sheet, filed by the accused persons before this Court. Three charge-sheets have been filed bearing No. RC 220-2012 E0001, RC 220-2012,E0002 and RC 220-2012 E 0003. The said charge-sheets have been questioned in this Court, details of which are given herein below :
1. Charge-sheet bearing No. RC 220-2012 E001 has been questioned in Application under Section 482 Cr.P.C. No. 38984 of 2012 and 40999 of 2012. There are eight accused named in the charge-sheet filed by CBI and in the supplementary charge-sheet two more accused persons have been incorporated. The aforesaid two applications have been filed by accused Babu Singh Kushwaha and B.N. Srivastava.
2. Charge-sheet bearing No. RC 220-2012 E0002 has been questioned in Application under Section 482 Cr.P.C. No. 43894 of 2012, 43301 of 2012,43303 of 2012 and 1143 of 2013. There are seven accused persons named in this charge-sheet namely Babu Singh Kushwaha, Devendra Mohan, Ravindra Rai, Pradeep Shukla, Naresh Grover, M/s Surgicoin Medequip Pvt Ltd., and R.P. Jaiswal.
3. Charge-sheet bearing No. RC 220-2012 E0003 has been filed in Application under Section 482 Cr.P.C. No. 43521 of 2012. There are four accused persons in the charge-sheet namely S.P. Ram, Saurabh Jain, Sunee
