Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2021 Supreme(All) 328

IN THE HIGH COURT OF ALLAHABAD
Dinesh Kumar Singh, J.
M/S Fertico Marketing And Investment Pvt., Ltd., And Ors.- Appellant
Vs.
C.B.I.,Anti Corruption Branch Lucknow And Anr.- Respondent
U/S 482/378/407 No. -4253 of 2012, U/S 482/378/407 No. -4251 of 2012-4252 of 2012 -4250 of 2012 -4446 of 2012 -4553 of 2012 -4554 of 2012 -4555 of 2012 -4556 of 2012 -4682 of 2012 -4683 of 2012 -4684 of 2012 -4852 of 2012 -4904 of 2012 -5013 of 2012 -5014 of 2012-5015 of 2012 -5016 of 2012 -614 of 2013 -615 of 2013 -616 of 2013 -617 of 2013 -618 of 2013
Decided On : 17-03-2021

Advocates Appeared:
For The Appellant : Gaurav Gupta, Himanshu Hemant Gupta, Nandit K. Srivastava,Yasovardhan Swaroop
For The Respondent: Birshwar Nath,Anurag Kumar Singh,S.B.Pandey

Point of Law: Criminal conspiracy – Quash of Criminal Proceedings - Exercise of power vested in it under Section 482 of Cr.P.C. Such exercise of power, besides doing justice to accused, would save precious court time, which would otherwise be wasted in holding such a trial (as well as, proceedings arising therefrom) specially when, it is clear that same would not conclude in conviction of accused.

Headnote:
Criminal Procedure Code, 1973 - Section 482 – Indian Penal Code, 1860 – Section 120-B - Prevention of Corruption Act, 1988 - Delhi Special Police Establishment Act, 1946 - section 6 - Whether the material relied upon by the accused, would rule out the assertions contained in charges levelled against the accused, i.e., the material is sufficient to reject and overrule the factual assertions contained in the complaint, i.e., the material is such, as would persuade a reasonable person to dismiss and condemn the factual basis of the accusations as false - Whether the material relied upon by the accused, has not been refuted by the prosecution/complainant; and/or the material is such, that it cannot be justifiably refuted by the prosecution/complainant – Whether proceeding with the trial would result in an abuse of process of the court, and would not serve the ends of justice?
Finding of the Court: Those are not good reasons for the High Court to axe down the complaint at the threshold itself. The investigating agency should have had the freedom to go into the whole gamut of the allegations and to reach a conclusion of its own. Pre-emption of such investigation would be justified only in very extreme cases - there is no parity in a closure report filed by CBI in respect of some cases in Jharkhand and, in case against petitioners herein, the CBI has collected sufficient evidence, which would clearly disclose that prima facie, offences have been committed by accused-petitioners in the present case. In Jharkhand, CBI did not find sufficient evidence for committing an offence by accused. In view of Question No. 3 has no relevance as the facts are different. Evidence collected by CBI regarding accused in Jharkhand was not sufficient whereas, as discussed above, there is sufficient evidence available against accused-petitioners, which would clearly constitute prima facie, offences committed by them. So far as the Question No. 4 is concerned, the CBI has not found involvement of officials of the NCL in commission of offence with the petitioners. The offence of criminal conspiracy under Section 120-B IPC is against the petitioners and DIC officials, who issued forged and fabricated certificates regarding status of the factory requirement of coal by the petitioners. Therefore, there is no substance in the submission of the counsel for the petitioners that offence of criminal conspiracy between the petitioners and officials of the NCL is not made out.
Result: Petitions dismissed

JUDGMENT :

Dinesh Kumar Singh, J.

1. This is second round before this Court after theses cases have been remitted back by the Supreme Court vide judgment and order dated 17th November, 2020 passed in Criminal Appeal Nos. 760-764 of 2020 and, other connected criminal appeals, for decision by this Court on three questions, which were framed vide order dated 24.02.2015, but not dealt with by this Court in its final judgment and order dated 14th August, 2019 passed in these cases, which was challenged before the Supreme Court in the afore-mentioned criminal appeals.

2. This Court did not deal with the three questions in its judgment dated 14.08.2019 as the learned counsels, appearing for the petitioners herein, at the time of final arguments pressed only first question. Be that as it may, since the Supreme Court has remitted back the matters to this Court for decision on Question Nos. 2, 3 and 4, this Court has proceeded to hear the arguments of the learned counsels, representing the petitioners as well as the learned counsel, representing the Central Bureau of Investigation.

3. Vide order dated 24th February, 2015 Hon'ble Vishnu Chandra Gupta (since retired) had framed the following four questions for determination:-

"Q.No.1. Whether the investigation conducted by the CBI in these bunch of cases are illegal and without jurisdiction for non-compliance of section 6 of DSPE Act? If so, its effect? Q.No. 2. Whether the cases are overwhelmingly and predominantingly of civil nature as purely based on breach of contract (FSA) and the criminal prosecutions are liable to be quashed?

Q. No. 3. Whether CBI did not follow doctrine of parity in filing the criminal prosecutions against the petitioners? If so, its effect?

Q. No. 4. Whether in absence of Officer/official of NCL, charge of Criminal conspiracy under section 120-B IPC could be made out?"

4. Hon'ble Judge was not in agreement with the view taken by another Single Bench in its judgment in the case of Sriniwas Dwivedi Versus The State of U.P. through S.P., CBI/ACB, Lucknow in a petition under Section 482 CrPC, being Petition No.3830 of 2013, decided on 9th September, 2013 on the issue of consent by the State Government, permitting the investigation under the Delhi Special Police Establishment Act, 1946 (for short 'DSPEA') and, therefore, referred the following two questions for decision by the Division Bench:-

"1. Whether investigation of such cases having involvement of Public servant under control of State Government of U.P. as well as private individuals for offences punishable under the Prevention of Corruption Act, 1988 (49 of 1988), and attempts, abetments and conspiracies in relation to all or any of the offence or offences mentioned above and any other offence or offences committed in the course of the transaction and arising out of the same facts under the G.O. of State Government Dated 15.6.1989 can be investigated by CBI assuming suo moto jurisdiction under section 6 of DSPE Act without the previous permission or consent of State Government?

2. Whether total non compliance / absence of previous consent of State Government under section 6 of DSPE Act could be cured by grant of prosecution sanction under section 197 Cr.P.C. of under section 19 of P.C. Act by State Government or competent authority?"

5. The Division Bench vide its judgment and order dated 6th July, 2015 answered the reference in following manner:-

"Our answer therefore to question no.1 is that since the question as framed proceeds on an erroneous premise of facts available in the case, the same is answered by holding that the Government Order dated 15.6.l989 permits investigation and it was not a case of assuming suo motu jurisdiction by the CBI to investigate on the facts of the present case. The second question framed by the learned Single Judge is returned unanswered in view of the fact that the affidavit of the State Government had not been invited by the learned Single Judge before proceeding to raise a doubt an

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2021 Supreme(All) 328

Cases Referred (18)