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2020 Supreme(All) 744
IN THE HIGH COURT OF ALLAHABAD
Suneet Kumar, J.
S.K. Srivastava, IRS (Retd.) – Applicant
Versus
Central Bureau of Investigation And Ors. – Opposite Parties
Application U/S 482 No. - 13226 of 2020
Decided On : 04-11-2020
Advocate Appeared:
For the Applicant : Shashi Dhar Shukla
For the Opposite Party : Ravi Prakash, Sanjay Kumar Yadav, Sanjeev Kumar Pandey, A.S.G.I.
Headnote:
Code of Criminal Procedure, 1973 – Section 482 – Penal Code, 1860 – Sections 120, 420 – Prevention of Corruption Act, 1988 – Section 7 – Charge-sheet – Quashment of – By the instant application filed under Section 482 of Code of Criminal Procedure applicant seeks the reliefs to set aside & quash the order of learned Special Judge, Anti Corruption, CBI, Ghaziabad by which the cognizance has been taken by the Court in the matter of CBI RC 1202019A0004 filed by the CBI – To also set aside & quash the Charge-sheet dated 14.2.2020 under Section 120B & 420 IPC, 1860 r.w. Section 7 of the Prevention of Corruption Act, 1988 & which has been forwarded by I.O., ACB, CBI, Ghaziabad in CBIRC1202019A0004 – To grant Ad-interim ex-parte stay of proceedings in CBI RC No. 1202019A0004 dated 4.7.2019 u/s 120B & 420IPC,1860 & Section 7 of P.C. Act, 1988 & to further grant Ad-interim Ex-parte stay on all the consequential proceedings initiated or bring initiated based upon CBIRC No.1202019A0004 dated 4.7.2019 & Charge sheet – To summon the records of the Trial Court of the present case – Held, Criminal conspiracy postulates an agreement between two or more persons to do or cause to be done an illegal act or an act which is not illegal, by illegal means. – It differs from the other offences in that mere agreement is made an offence even if no step is taken to carry out the agreement. – A conspiracy from its very nature is generally hatched in secret. – It is, therefore, extremely rare that direct evidence in proof of conspiracy can be forthcoming. – But like other offences criminal conspiracy can be proved by circumstantial evidence. – In deed, in most cases proof of conspiracy is largely inferential though the inference must be founded on solid facts, surrounding circumstances and antecedent and subsequent conduct, amongst other factors, constituting relevant material. – The agreement of understanding may be proved by necessary implication to do an unlawful act by unlawful means. – It is settled principle of law that at the stage of framing of charge, in proceedings under Section 482 Cr.P.C., it is not open for the Court to enter into the sufficiency of the evidence in order to appreciate the documents and the statements in support of the charge. – It is not a case where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. – Further, the criminal proceedings is not manifestly attended with mala fide and/or the proceedings maliciously instituted with an ulterior motive against the applicant merely performing appellate power in the backdrop of the allegations and evidences. – It is well established proposition of law that a criminal prosecution, if otherwise justifiable and based upon adequate evidence does not suffer on account of mala fide or vendetta of the complainant. – Court is of the opinion that there is prima facie evidence in support of the charges. – The submission of the learned counsel for the applicant that the criminal prosecution does not constitute the ingredients of the offence against the applicant, lacks substance. – Petition Dismissed
JUDGMENT :
Order on Application Nos. Nil of 2020 filed under Chapter XXII Rule 1 of High Court Rules
During the course of argument the said applications has not been pressed by learned counsel for the applicant, accordingly, the applications are dismissed as not pressed.
Order on Application under Section 482 Cr.P.C.
1. On the matter being taken up, Shri Ravi Prakash, learned counsel appearing for Central Bureau of Investigation (for short ‘C.B.I.’) submits that baseless and derogatory allegations have been made in the petition, as well as, in the rejoinder affidavit filed by the applicant against several persons including him.
2. It is urged that the allegations taken on face value are scandalous and contemptuous. It is submitted that contempt proceedings be initiated against the applicant.
3. On specific query, learned counsel submits that no application for drawing contempt proceedings against the applicant has been filed, but submits that the Court suo moto take notice of the scandalous pleadings.
4. Be that as it may, the Court is not inclined to enter into the controversy without there being a formal application to that effect. However, disposal of the instant petition would not preclude the learned counsel for the C.B.I. or any other aggrieved person from raising the issue and seeking remedy in an appropriate proceedings in accordance with law. The matter is kept open.
5. By the instant application filed under Section 482 of Code of Criminal Procedure (for short ‘Cr.P.C.’), the applicant seeks the following reliefs:
“(i). To set aside & quash the order dated 14.2.2020 of learned Special Judge, Anti Corruption, CBI, Ghaziabad by which the cognizance has been taken by the Court in the matter of CBI RC 1202019A0004 dated 4.7.2019 filed by the CBI.
(ii). To also set aside & quash the Charge-sheet dated 14.2.2020 under Section 120B & 420 IPC, 1860 r.w. Section 7 of the Prevention of Corruption Act, 1988 & which has been forwarded by I.O., ACB, CBI, Ghaziabad in CBIRC1202019A0004 dated 4.7.2019.
(iii). To grant Ad-interim ex-parte stay of proceedings in CBI RC No. 1202019A0004 dated 4.7.2019 u/s 120B & 420IPC,1860 & Section 7 of P.C. Act, 1988 & to further grant Ad-interim Ex-parte stay on all the consequential proceedings initiated or bring initiated based upon CBIRC No.1202019A0004 dated 4.7.2019 & Charge sheet.
(iv). To summon the records of the Trial Court of the present case.”
6. The applicant/accused is challenging the charge-sheet, cognizance order and the consequential proceeding arising there from.
7. The facts, for the purposes of the case, briefly stated, is that the C.B.I. registered a regular case on the written complaint of Director General of Income Tax (Vigilance) on directions of the Commissioner, Central Vigilance Commission, New Delhi, dated July 2019. The allegation against the applicant, a (compulsory) retired official while posted as Commissioner Income Tax (Appeals) (for short ‘CIT(A)-I’), with additional charge of CIT(A)-II Noida, during December 2018 to 11 June 2019, indulged in acts of omission and commission adverse to the interest of revenue. It is further alleged that the orders passed by the applicant in the capacity of an appellate authority were antedated i.e. after his retirement on 11 June 2019. The orders were uploaded on the ITBA system after demitting office. The investigation further reveals falsification of records; it is further alleged that during this period 13 appeals was decided by the applicant in conspiracy with co-accused Anil Kumar (Chartered Accountant), which were beyond the jurisdiction of CIT(A) Noida. These appeals fall within the jurisdiction of CIT(A) Ghaizabad. It is alleged that the appellate orders were procured orders for extraneous consideration. The applicant never held the charge of CIT(A) Ghaziabad during the period September 2018 to 11 June 2019.
8. Learned counsel appearing for the applicant submits that applicant being a quasi judicial authority, exercising appellate jurisdic
