Research › Search › Judgment

Allahabad High Court · body

2011 DIGILAW 1627 (ALL)

RAM SHANKER SINGH v. STATE OF U. P.

2011-07-08

DILIP GUPTA, SUNIL AMBWANI

body2011
JUDGMENT By the Court.—These two Criminal Revisions have been filed for setting aside the orders dated 28th June, 2010 passed by the Special Judicial Magistrate (CBI), Ghaziabad in Criminal Case No. 235 of 2010 (CBI v. Ram Shanker Singh and others) taking cognizance of the offences under Section 120-B read with Sections 201, 420, 477-A of Indian Penal Code and Section 65 of the Information Technology Act, 2000 after rejecting the objections filed by the Revisionists. The Revisionists have also sought the quashing of the orders dated 28th July, 2010/3rd September, 2010 by which bailable warrants have been issued against the Revisionists as they did not appear before the Court despite service of summons. 2. It is pursuant to the directions issued by the Division Bench of the High Court on 4th October, 2005 in Writ Petition No. 48287 of 2005 Deepak Sharma v. State of U.P. and others, 2005(4) ESC 2333 (All)(DB) connected with Writ Petition No. 50418 of 2005 filed by (Manav Sewa Samiti and others) that the CBI initiated the investigation. The dispute in the two writ petitions referred to above was in connection with the advertisement issued by ‘New Okhla Industrial Development Authority (hereinafter referred to as the “NOIDA”) inviting applications for allotment of residential plots for the General Category applicants and for the Prescribed Reserved Category applicants in the ‘’Residential Plots Scheme 2004(1)’ (hereinafter referred to as the Scheme). While Writ Petition No. 48287 of 2005 was filed by Deepak Sharma for a direction upon NOIDA to execute the lease deed in his favour on the basis of the draw of lots held on 2nd July, 2005 and for quashing the order dated 4th July, 2005 by which the draw of lots held on 2nd July, 2005 was cancelled, Writ Petition No. 50418 of 2005 was filed by Manav Seva Samiti and 26 others for prohibiting NOIDA from approving the draw of lots held on 2nd July, 2005 and for causing an investigation to be done by a suitable agency to determine the liability of individual officers and for holding a fresh draw of lots. 3. 3. We, therefore, consider it appropriate to reproduce the observations and directions issued by the Division Bench in the aforesaid writ petition on 4th October, 2005 which are : “For all the reasons stated above we are of the clear opinion that the assignment of work to UPDESCO was a mala fide exercise of power by the Chairman-cum-Executive Officer, NOIDA. This sole illegality is grave enough to cancel the draw of lots. At this stage we would like to comment on the conduct of the Officials of NOIDA in the context of the records produced before us. By the order dated 11th July 2005 we had directed NOIDA to produce the relevant records including the records relating to correspondence with the agencies responsible for draw of lots and the list of successful allotees. On 19th July 2005 certain records were produced by NOIDA including the file titled “Allotment of Residential Plots Scheme 2003(1)” and the papers containing the list of successful allotees. A perusal of the aforesaid file shows that the note sheets from pages 1 to 57 relate to the 2003(1) Scheme and the documents from page No. 1 to 275 also relate to 2003(1) Scheme. The file also reveals that the note sheets from page No. 59 to 103 relate to the Scheme in dispute namely 2004(1) Scheme and the papers from page No. 276 to 421 also relate to the Scheme 2004(1). We are surprised that the file relating to Residential Plot Scheme 2003(1) should contain note sheets and papers relating to the 2004(1) Scheme and our suspicion came true when the counter-affidavit was filed by NOIDA in the Second Petition. In this counter-affidavit there are note sheets containing page Nos. 27 to 36 relating to 2004(1) Scheme which have been annexed as Annexure CA-3. Similarly Annexure CA-4 contains note sheets from pages 37 to 39. It is, therefore, clear that even though these note sheets relate to 2004(1) Scheme they were not produced by NOIDA on 19th July 2005 inspite of our specific order dated 11th July 2005. The note sheet pages from 104 to 109 are, however, contained in a separate file titled “Residential Plot Scheme 2004(1). It is, therefore, clear that even though these note sheets relate to 2004(1) Scheme they were not produced by NOIDA on 19th July 2005 inspite of our specific order dated 11th July 2005. The note sheet pages from 104 to 109 are, however, contained in a separate file titled “Residential Plot Scheme 2004(1). It is only when we were examining the records, after the orders had been reserved on 19.9.2005 that these facts came to light and so on 23.9.2005 we directed the learned counsel appearing for NOIDA to produce the file relating to 2004(1) Scheme and also make available the information mentioned in the order. The file relating to 2004(1) Scheme was produced by the learned counsel only on 27.9.2005. We feel that this file was deliberately kept away from us since it also contained notes and correspondence relating to the two extensions of the last date for submission of forms and it only when we subsequently passed the order on 4.8.2005 that they filed the counter-affidavit annexing certain documents from the said file to explain the reason for granting the two extensions. It appears that prior to 4.8.2005 NOIDA wanted to conceal facts about the two extensions. We, therefore, have no hesitation in putting on record that the officials of NOIDA have not been fair to the Court and they deliberately withheld the records inspite of the specific order of the Court. We also do not have any hesitation in stating that the officials of NOIDA have been very evasive in their reply to the specific query contained in our order dated 23.9.2005 about the letter dated 13.4.2005 submitted by TCS on 15.4.2005 in response to the letter dated 5.4.2005 sent by NOIDA. We have considered this aspect earlier but we repeat that they have deliberately withheld the answer to the query and have, therefore, impliedly accepted the receipt of the letter sent by TCS. Such conduct of the officials of NOIDA is reprehensible and deserves to be deprecated. This is a serious matter and we propose to deal with it with equal seriousness. A public authority must not act in a manner which casts a shadow on its credibility. Such conduct of the officials of NOIDA is reprehensible and deserves to be deprecated. This is a serious matter and we propose to deal with it with equal seriousness. A public authority must not act in a manner which casts a shadow on its credibility. The manner in which NOIDA has proceeded compels us to ponder whether there are other files also which contain notes/documents because there is at least one letter of TCS which has not been produced by NOIDA inspite of our specific order. ......................... Thus, in view of the fact that the draw could be manipulated by using simple queries including change of font and the fact that NOIDA itself has admitted that there was a change in font and flaw in the software, we have no reason to doubt that the draw itself was manipulated. However, to determine whether such manipulation was done by UPDESCO at the behest of NOIDA officials or on its own, a detailed investigation is required to be done. We, therefore, propose to pass appropriate orders in this regard for the conduct of such an enquiry. We have upheld the decision taken by NOIDA to cancel the draw of lots. The entire process leading to the draw of lots stinks and is a complete farce. It has shocked our conscience to come across such a systematic fraud. It is indeed ironical that the holders of public office in whom the public reposes sacred faith and who are expected to rise to the occasion and respond by adopting a fair procedure have chosen to abuse the position held by them. It is the public that has suffered on account of the oppressive and capricious acts of these public officers. .................................. The interest of justice, therefore, demands that the officers found indulging in such acts be proceeded against and dealt with sternly so that it may serve as a lesson to others. It is our bounden duty under the Constitution to ensure that the justice system does not become ‘’soft, supine and spineless’. .................................. The interest of justice, therefore, demands that the officers found indulging in such acts be proceeded against and dealt with sternly so that it may serve as a lesson to others. It is our bounden duty under the Constitution to ensure that the justice system does not become ‘’soft, supine and spineless’. We are satisfied from the materials available on record that there is a prima facie case calling for an investigation and looking to the peculiar facts and circumstances of the case, the nature of the inquiry to be done and the mighty people who are alleged to be involved, we are of the opinion that the matter should be referred to investigation by the Central Bureau of Investigation (CBI) at Delhi. The CBI shall conduct the investigation to find out the officials/employees of NOIDA, UPDESCO and the State Government responsible for manipulation in the draw of lots held by NOIDA on 2nd July, 2005 for the aforesaid Scheme and the names of such persons/beneficiaries at whose behest and directions they have resorted to such manipulation. An investigation is also required to be carried out to ascertain whether NOIDA officials had produced the entire records relating to the Scheme before this Court and if not what are the other records so that this Court may suitably punish such officials for committing contempt. ...................... The Court cannot be a mute spectator where fraud and manipulation of such a high magnitude has been practiced. It is, therefore, a fit case where, in order to find out the guilty persons responsible for fraud and manipulation in the draw of lots and in order to restore the confidence of the public in the matter of draw of lots, we consider it necessary to issue the following directions for holding the fresh draw of lots and for investigation by CBI and they are : FOR HOLDING FRESH DRAW OF LOTS : .................................. FOR INVESTIGATION BY CBI : (1) The CBI shall conduct an investigation to find out the officials/employees of NOIDA, UPDESCO and the State Government responsible for manipulation in the draw of lots held by NOIDA on 2nd July, 2005 for its ‘’Residential Plot Scheme 2004 (1)’ and the names of such persons/beneficiaries at whose behest and direction the manipulation was done. We request the Director, CBI to get the investigation carried out under the supervision of a responsible Senior Officer. We request the Director, CBI to get the investigation carried out under the supervision of a responsible Senior Officer. The investigation must be initiated at the earliest as otherwise vital evidence, oral and documentary would run the risk of being obliterated. The report may be submitted to this Court within three months. (2) The CBI shall also conduct an investigation to ascertain whether the NOIDA officials had produced before the Court the entire records relating to the aforesaid Scheme pursuant to the order dated 11th July, 2005 and if not, then the details of such records shall be submitted to this Court. This report may be submitted within six weeks. (3) The entire records produced before this Court by the learned counsel for NOIDA and the learned counsel for TCS, shall be kept in a sealed cover with the Registrar General of this Court to be handed over to the CBI. (4) Sri H.S. Hajela, learned counsel for CBI has undertaken to communicate the orders passed by us today to CBI for necessary action. The efforts made by us are a step towards cleansing the public administration. It is indeed a herculean task but we do hope that this small step would make great strides in the days to come. We have already held that Writ Petition No. 48287 of 2005 is devoid of all merits and accordingly it has to be dismissed. However, we are inclined to keep this petition pending only for the purposes of issuing appropriate orders after the preliminary report is submitted by the CBI in respect of the documents produced by the NOIDA officials and the report on the basis of the investigation regarding manipulation in the draw of lots. However, Writ Petition No. 50418 of 2005 is disposed of. Let Writ Petition No. 48287 of 2005 be listed before us on 21.11.2005 for passing further appropriate orders.” (emphasis supplied) 4. NOIDA filed Special Leave Petition Nos. 21612 and 21613 of 2005 against the aforesaid judgment in which leave was granted and an interim order was passed. The Special Leave Petitions were thereafter numbered as Civil Appeal Nos. 6794-6795 of 2005. Deepak Sharma also filed Special Leave Petitions in which leave was also granted and they were subsequently numbered as Civil Appeal Nos. 6800-6801 of 2005. A number of other Special Leave Petitions including that by UPDESCO (which was subsequently numbered as Civil Appeal Nos. The Special Leave Petitions were thereafter numbered as Civil Appeal Nos. 6794-6795 of 2005. Deepak Sharma also filed Special Leave Petitions in which leave was also granted and they were subsequently numbered as Civil Appeal Nos. 6800-6801 of 2005. A number of other Special Leave Petitions including that by UPDESCO (which was subsequently numbered as Civil Appeal Nos. 6802 and 6803 of 2005) were also filed against the judgment and order dated 4th October, 2005 and leave was granted. 5. The Appeals filed by NOIDA were disposed of as not pressed by the Supreme Court by the judgment and order dated 22nd November, 2007 with a direction that the appellant-NOIDA shall implement the directions of the High Court. The order is quoted below : “These appeals have been preferred by the New Okhla Industrial Development Authority (NOIDA) being aggrieved by the judgment and order dated 4/10/2005. At the outset, Mr. K.P. Pathak, learned ASG appearing for the appellant contended that after application of mind and after careful consideration of the directions issued by the High Court, the appellant has taken a decision to implement the directions of the High Court. Accordingly, learned ASG contended that he has received instructions not to press these appeals. On this submission, the appeals are disposed of as not pressed with a direction that the appellant shall implement the directions of the High Court.” 6. The Appeals filed by Deepak Sharma were also dismissed by the Supreme Court by the judgment and order dated 22nd November, 2007 as they were devoid of merit. 7. The Civil Appeals filed by UPDESCO and the other Civil Appeals were also dismissed on merits by the judgment and order dated 22nd November, 2007. 8. After the dismissal of the matters pending in the Supreme Court, the CBI registered a case RC 1(A)/2008/ACU.IX/New Delhi on 7.1.2008 under Sections 120-B, 420, 167, 477A, 13(1) (d) read with Section 13(2) of the Prevention of Corruption Act, 1988 and Section 65 of the Information and Technology Act, 2000 against unknown officials/employees of NOIDA, Uttar Pradesh Development System Corporation (UPDESCO), UP State Government Servants and others and the investigation was started. Immediately after registration of the said case, searches Under Section 93 Cr. P C as well as under Section 165 Cr. P C were conducted at 21 residential/office premises of the suspects located at Lucknow, Meerut, Ghaziabad and Noida. Immediately after registration of the said case, searches Under Section 93 Cr. P C as well as under Section 165 Cr. P C were conducted at 21 residential/office premises of the suspects located at Lucknow, Meerut, Ghaziabad and Noida. During the searches, documents including computers, CD’s and Pen Drives suspected to be related to this case were seized. 9. It transpires that thereafter Writ Petition No. 3274 of 2008 was filed on 15th January, 2008 by Dappled Paper Industries (P) Ltd. and others v. State of U.P. and others, for a direction upon NOIDA to hold the draw of lots pursuant to the directions contained in the judgment and Deepak Sharma v. State of U.P. and others, 2005(4) ESC 2333 (All)(DB). 10. On 6th February, 2008 the Bench hearing this petition directed the petition to be listed before the same Bench which decided the earlier writ petition. The matter was subsequently assigned to this Bench by the Hon’ble Senior Judge on 16th July, 2008. 11. The CBI thereafter submitted preliminary reports dated 28th January, 2008 and 1st September, 2008 before the High Court. In its report dated 28th January, 2008 the CBI pointed out that the investigation was in progress and at this stage it was not possible to conclude whether all the documents relating to the aforesaid Scheme were produced before the High Court. In its report dated 1st September, 2008 the CBI, after referring to the searches carried out, mentioned : “5. During investigation, the documents produced by Noida Authority before Hon’ble High Court of Allahabad have been collected. The list of document/article collected is annexed as Annexure-A. 6. During searches, CBI has also seized various documents related to this case from O/o Noida Authority of which are mentioned in Annexure-B. The details of documents produced by Noida during hearing of the writ petitions related to this case are shown in Annexure-B. 7. During the investigation, the relevant documents related to this case have also been collected from TATA consultancy and UPDESCO including the photocopy of TCS letter dated 13/04/2005 received by Noida on 15/04/2005. 8. During investigation 64 witnesses have been examined so far. The source code of the software prepared by UPDESCO is being examined minutely with the assistance of experts to find out how manipulation was done in preparation of results.” 12. 8. During investigation 64 witnesses have been examined so far. The source code of the software prepared by UPDESCO is being examined minutely with the assistance of experts to find out how manipulation was done in preparation of results.” 12. Alongwith the said report, the list of documents/articles collected from the office of the Registrar General of the High Court was annexed as Annexure-A while the list of documents seized from the Administrative Office NOIDA was annexed as Annexure-B. The description of the documents and whether they were produced before the High Court was also mentioned. 13. The following orders were passed by the Court on 17th October, 2008, 23rd October, 2008 and 7th November, 2008 in Writ Petition No. 3274 of 2008 : Order dated 17th October, 2008 Put up on Thursday i.e. 23.10.2008 at 02.00 PM. The Registrar General will make two reports filed by the C.B.I. in the matter on 28.1.2008 and 3.9.2008 available to the Court on that date. Learned counsel appearing for NOIDA will provide the details of the plots giving sector number and plot number which were advertised for allotment earlier. He will also provide the reasons for which the entire plots of Sector-43 and 117 plots of Sector-44 and Sector-50 are no longer available for allotment and the reasons for which new plots from Sector-99 have been added for allotment. He will also provide information with regard to discrepancy and the scrutiny of the reserved category list which was not provided to the Committee and the list of the general category on the applications collected by the times. These lists were required to be provided to the Committee on 10.10.2008 and 3.10.2008. The Committee had directed the NOIDA to supply the list by 20.10.2008. The directions given by the Committee to provide these lists by 20.10.2008 are expected to be complied with by the NOIDA by 20.10.2008. We therefore direct that these lists should also be provided to the Court on Thursday i.e. 23.10.2008. The applications filed by Shri Arvind Verma will be considered on 21.11.2008. The matter shall be listed on 21.11.2008 also at 02.00 PM. Shri G.S. Hajela appearing for C.B.I has prayed for copy of the Writ Petition No. 3274 of 2008 and the applications filed by Shri Arvind Verma to be provided to him. The applications filed by Shri Arvind Verma will be considered on 21.11.2008. The matter shall be listed on 21.11.2008 also at 02.00 PM. Shri G.S. Hajela appearing for C.B.I has prayed for copy of the Writ Petition No. 3274 of 2008 and the applications filed by Shri Arvind Verma to be provided to him. Let the office provide copy of the writ petition and the applications filed by Shri Arvind Verma to Shri G.S. Hajela by Monday. A copy of the order be given to Shri G.S. Hajela, learned counsel for C.B.I; counsel for NOIDA and learned Standing Counsel by Monday. Order dated 23rd October, 2008 Shri G.K. Arora, Addl. Advocate General appears for State of U.P. Shri Ramendra Pratap Singh appears for Noida. Shri Ramendra Pratap Singh has filed second supplementary affidavit giving the details of the plots, which were excluded/ are not available or have been included in the draw, which is going to take place in first week of November, 2008. He has also given details of these plots and has placed on record the compact disk. The affidavit was filed in Court today. Learned counsel for the petitioner scrutinised the details given in the affidavit and gave a reply. It is reported that draw of lots is scheduled on 5th to 8th November, 2008. We have summoned the report submitted by CBI dated 28.1.2008 and 1.9.2008 from the Registrar General. The first report has not been made available. The Registrar General will trace it out and make it available to the Court, whenever the matter is listed again. The report dated 1.9.2008 shall be kept back and sealed cover alongwith copy of the report dated 28.1.2008 supplied by Shri G.S. Hajela. The compact disk filed today shall also be kept in sealed cover with the Registrar General to be made available, whenever required by the Court. List on 7th November, 2008 to be taken up at 2.00 p.m. A copy of the order be given to Shri G.S. Hajela. Order dated 7th November, 2008 Present Shri G.K. Arora, Addl. Advocate General for State of U.P.; Shri Ramendra Pratap Singh for NOIDA and Shri G.S. Hajela for CBI. A IIIrd Supplementary Counter-affidavit of Shri Satish Juyal, Office Superintendent, Residential Plots Department, Administrative Office, Sector-6, NOIDA, has been filed today on behalf of respondent Nos. Order dated 7th November, 2008 Present Shri G.K. Arora, Addl. Advocate General for State of U.P.; Shri Ramendra Pratap Singh for NOIDA and Shri G.S. Hajela for CBI. A IIIrd Supplementary Counter-affidavit of Shri Satish Juyal, Office Superintendent, Residential Plots Department, Administrative Office, Sector-6, NOIDA, has been filed today on behalf of respondent Nos. 2 and 3, enclosing therewith the seniority-wise list of various categories of the applicants for allotment. It is stated that the draw of lots is in progress and will be completed by tomorrow. Shri G.S. Hajela had prayed for six month’s time in the last report of CBI dated 1.9.2008 to complete the investigation. The CBI is requested to expedite the matter. On the next day, the NOIDA will submit a comparative list of the persons, who were successful in the last draw and that those who have been successful in the present draw alongwith the plot numbers. The NOIDA will also place on record the terms and conditions and the restrictions which are imposed by the NOIDA on the resale of the allotted plots. List on 5.12.2008 to be taken at 02.00 PM. The CBI reports will be resealed and placed in the custody of the Registrar General. A copy of the order be given to Shri G.S. Hajela.” (emphasis supplied) 14. This Writ Petition No. 3274 of 2008 was eventually dismissed on 23rd January, 2009 as having become infructuous as the relief claimed in the writ petition was for holding of draw of lots and the draw of lots had taken place on 31st March, 2007. 15. It is thereafter that the CBI submitted the report before the Court of Judicial Magistrate, First Class, (CBI) Ghaziabad under Section 173(2) Cr. P.C. for prosecution of Ram Shanker Singh, Manager (System) UPDESCO (Applicant in Criminal Revision No. 3527 of 2010) and Alok Singh Chauhan (Applicant in Criminal Revision No. 3765 of 2010) under Section 120-B of the Indian Penal Code, read with Sections 201, 420, 477-A of the Indian Penal Code and Section 65 of the Information Technology Act, 2000. Paragraphs 32 to 36 of the said report are reproduced below : “32. Investigation revealed that Shri R.S. Singh, was issued an official laptop (Compaq Presario make 1715 AP model, Serial Number P148KDKR0012) on 7.2.2002. This laptop remained in possession of Shri R.S. Singh till 11.1.2008, when it was seized from his house during search. Paragraphs 32 to 36 of the said report are reproduced below : “32. Investigation revealed that Shri R.S. Singh, was issued an official laptop (Compaq Presario make 1715 AP model, Serial Number P148KDKR0012) on 7.2.2002. This laptop remained in possession of Shri R.S. Singh till 11.1.2008, when it was seized from his house during search. The UPDESCO vide letter dt. 27.10.2008 mention that the above mentioned laptop (which was in possession of Shri R.S. Singh) was used for conducting the draw. 33. The APFSL report dated 8.10.2009 indicated that they have examined one Laptop (M231/08) Compaq Presario make 1715 AP model (Serial Number P148KDKR0012), which has been claimed by Shri R.S. Singh & Shri A.S. Chauhan as being the same laptop which was used to conduct mock draw and final draw on 1.7.05 and 2.7.05. The forensic report by APFSL showed that this computer system was not in use during the period 1000 hrs. to 1400 hrs on 2.7.05. This however has to be seen in context of various iteration tables listed at para 31, above, according to which the iteration on this system were conducted between 10:29 hrs to 11:33 hrs on 2.7.05. This is not possible as these entries for time and date are supposed to be system generated, as according to APFSL report, the laptop which was handed over to investigation authority was not in use between 1000 hrs to 1400 hrs on 2.7.05, which is the time when actual draw took place. Thus it is clear that Shri R.S. Singh and Shri Alok Singh Chauhan, who were responsible for conducting draw and who conducted the draw and in whose possession the laptop remained, manipulated the data and created false evidence regarding use of computer. The evidence also established that the false entries were made in the various tables related to the iterations of the draw in the data base on the Laptop. The above also shows that actual computer resource, which was used to print the so called list of successful candidates after conducting so called draw on 2.7.2005 between 10.29 hrs to 11.33 hrs, was destroyed and replaced with the computer resource, which was not even in use during this time period. There was immediate public outcry after the draw, resulting into cancellation of draw after two days on 4.7.2005. There was immediate public outcry after the draw, resulting into cancellation of draw after two days on 4.7.2005. Hon’ble High Court of Allahabad also ordered for registration of a criminal case and investigation by CBI on 4.10.2005, thereby clearly indicating that prima facie there was sufficient material to indicate commission of criminal offence. The above clearly shows that this manipulation of Computer Resource by creation of false entries and destruction of material has been clearly done to shield the persons who were responsible for manipulation of draw. 34. During investigation certain short comings/irregularities have been found against the officials of NOIDA Development Authority and UPDESCO and initiation of regular departmental action for imposition of major penalty is being recommended against Shri Suresh Chand Pabreja, Shri N.P. Jaiswal, both of NOIDA development authority, Shri Deosharan Pathik and Shri R.S. Singh, both of UPDESCO & Shri G.K. Batra, the then MD of UP Electronic Corporation, Lucknow. 35. In view of the facts and circumstances as discussed above, a prima facie case is established against Sh. Rama Shankar Singh and Sh. Alok Singh Chauhan under Section. 120-B IPC read with 201 IPC read with 420 and 477A IPC and Section 65 of Information Technology Act, 2000 and substantive offences thereof. 36. Prosecution has witnesses and documents to prove the case against the accused. Prosecution craves leave for submission of additional documents and list of witnesses as and when required. In the above circumstances, it is, therefore, prayed that this Hon’ble Court may be pleased to take cognizance of the offences and try the accused persons according to law.” 16. It is stated by the Revisionists that on coming to know of the submission of the report by the CBI before the Special Judicial Magistrate, CBI, Ghaziabad, they raised objections about the legality of the report. Objection was also taken by Ram Shanker Singh that there was no sanction for his prosecution under Section 197(1) (b) of the Criminal Procedure Code. The CBI Court, however, rejected the objections holding that at the time of taking cognizance, the Revisionists did not have any locus to raise the objections. The Court, accordingly, took cognizance of the offences under Section 190(1)(b) Cr. P.C. treating the report submitted by the CBI to be under Section 173(2) Cr. The CBI Court, however, rejected the objections holding that at the time of taking cognizance, the Revisionists did not have any locus to raise the objections. The Court, accordingly, took cognizance of the offences under Section 190(1)(b) Cr. P.C. treating the report submitted by the CBI to be under Section 173(2) Cr. P.C. and issued summons to the Revisionists for appearance on 28th July, 2010 and as the Revisionists did not appear before the Court, bailable warrants were issued. 17. These two Criminal Revisions have been filed by Ram Shanker Singh and Alok Singh Chauhan for quashing these orders. 18. On 8th September, 2010, the following interim order was passed in Criminal Revision No. 3527 of 2010 filed by Ram Shanker Singh : “Supplementary affidavit filed on behalf of the revisionist is taken on record. Heard Sri Dileep Kumar, learned counsel for the revisionist and Sri N.I. Jafri, learned counsel for the C.B.I. and the learned A.G.A. for the opposite party No. 1 and perused the record. It appears that in this case the C.B.I. has filed a charge sheet against the revisionist and one more person and the learned Special Judicial Magistrate, C.B.I., Ghaziabad has taken cognizance of the offences disclosed in the charge sheet and has accordingly issued processes against them. The order dated 28.6.2010 passed by the Special Judicial Magistrate, C.B.I., Ghaziabad has been impugned in this revision. The submission of the learned counsel for the revisionist is that the investigation of the matter was being monitored by a Division Bench of this Court in writ petition No. 48287 of 2005. By the order dated 14.10.2005, the Division Bench had required the C.B.I. to submit a preliminary report before the Bench but the C.B.I. without submitting any report before the Division Bench filed the charge sheet before the concerned Magistrate. In view of the aforesaid, it seems to be just and expedient to connect and dispose of this revision alongwith the writ petition No. 48287 of 2005. List before the appropriate Bench alongwith the writ petition No. 48287 of 2005 on 16.9.2010 after nomination by Hon’ble The Chief Justice. Till the next date of listing the non-bailable warrant issued against the revisionist Ram Shankar Singh shall be kept in abeyance. (emphasis supplied) 19. List before the appropriate Bench alongwith the writ petition No. 48287 of 2005 on 16.9.2010 after nomination by Hon’ble The Chief Justice. Till the next date of listing the non-bailable warrant issued against the revisionist Ram Shankar Singh shall be kept in abeyance. (emphasis supplied) 19. In Criminal Revision No. 3765 of 2010 filed by Alok Singh Chauhan, the following order was passed on 8th September, 2010 : “Connect with Cr. Revision No. 3527 of 2010, Rama Shanker Singh v. State of U.P.. Put up on 16.9.2010. Till 16.9.2010 no coercive process shall be issued against the revisionist in Cr. Case No. 235 of 2010, C.B.I. v. Ram Shankar Singh and others, under Sections 120-B read with Sections 201, 420, 477-A, IPC and Section 65 IT, Act, 2000, pending in the Court of Special Judicial Magistrate, (C.B.I) Ghaziabad.” 20. These two Criminal Revisions were thereafter nominated to this Division Bench on 26th October, 2010, by Hon’ble the Chief Justice. 21. Sri Satish Trivedi, learned Senior Counsel appearing for the Revisionists made the following submissions : (1) The CBI submitted the report to the CBI Court under Section 173(2) of the Code of Criminal Procedure without filing it before the Division Bench of the High Court as was required to be done in terms of the directions issued by the Division Bench of the High Court on 4th October, 2005 in Writ Petition No. 48287 of 2005. The action of the CBI, therefore, in submitting the report directly to the CBI Court is in gross defiance of the judgment and order of the Division Bench of the Court and the CBI Court could not have taken cognizance of the offences on the basis of the said report. In support of this contention, reliance is placed on the decision of the Supreme Court in Criminal Appeal No. 602 of 2011 (Ashok Kumar Todi v. Kishwar Jahan and others) decided on 1st March, 2011 and on the decision of the Supreme Court in M.C. Mehta (Taj Corridor Scam) v. Union of India and others, (2007) 1 SCC 110 . (2) Criminal proceedings could not have been initiated against Ram Shanker Singh (Applicant in Criminal Revision No. 3527 of 2010) who is a public servant within the mining of Section 21(Twelfth)(b) of the Indian Penal Code without prior sanction of the State Government as is required under Section 197 Cr. (2) Criminal proceedings could not have been initiated against Ram Shanker Singh (Applicant in Criminal Revision No. 3527 of 2010) who is a public servant within the mining of Section 21(Twelfth)(b) of the Indian Penal Code without prior sanction of the State Government as is required under Section 197 Cr. P.C. as he is holding the post of the Manager (System) in U.P. Development Systems Corporation Limited, which is a Government Undertaking registered under the provisions of Section 617 of the Companies Act, 1956. In support of this contention, learned Senior Counsel has relied upon the decisions of the Supreme Court in Mohd. Hadi Raja v. State of Bihar and another, 1998 (5) SCC 91 ; Abdul Wahab Ansari v. State of Bihar and others, (2001) SCC (Cri) 18 and Shankaran Moitra v. Sadhna Das and another, (2006) 2 SCC (Cri) 358. (3) The CBI Court had taken cognizance of the offences in a mechanical manner in the absence of any direct or cogent evidence merely on the basis of the report submitted by the CBI. 22. Sri N.I. Jafri, learned counsel appearing for the opposite parties, however, made the following submissions : (1) The directions issued by the Division Bench of the High Court on 4th October, 2005 in Writ Petition No. 48287 of 2005 were complied with as the preliminary reports dated 28th January, 2008 and 1st September, 2008 were submitted by the CBI to the Division Bench as is clear from the orders dated 17th October, 2008 and 23rd October, 2008 passed by the Division Bench in Writ Petition No. 3274 of 2010. On 7th November, 2008, the Division Bench also directed, in view of the request made by the CBI for completion of the investigation in six months, to expedite the matter. The CBI was, therefore, not required to seek any approval of the Division Bench of the High Court before submission of the report to the CBI Court under Section 173 (2) of the Code of Criminal Procedure. (2) Sanction of the Government under Section 197 Cr.P.C. was not required to be taken in the case of Ram Shanker Singh. (3) The Revisionists had no right of raising any objections at the time of submission of the report by the CBI to the CBI Court under Section 173 (2) Cr. P.C. The Revisionists can, if so advised, move the CBI Court for their discharge. (3) The Revisionists had no right of raising any objections at the time of submission of the report by the CBI to the CBI Court under Section 173 (2) Cr. P.C. The Revisionists can, if so advised, move the CBI Court for their discharge. The submission of the Revisionists that the CBI took cognizance of the offence in a mechanical manner merely on the basis of the report submitted by the CBI was, therefore, rightly rejected by the CBI Court as they had no locus to raise the objection at that stage. 23. We have considered the submissions advanced by learned counsel for the parties. 24. The first submission of learned Senior Counsel for the Revisionists is about non-compliance of the directions of the Division Bench of the High Court issued on 4th October, 2005 in Writ Petition No. 48287 of 2005. 25. The report was submitted by the CBI to the CBI Court under Section 173(2) Cr.P.C. Sub-sections (1) and (2) of Section 173 Cr. P.C. are as follows : “173. Report of police officer on completion of investigation.—(1) Every investigation under this Chapter shall be completed without unnecessary delay. (2) (i) As soon as it is completed, the officer in charge of the police station shall forward to a Magistrate empowered to take cognizance of the offence on a police report, a report in the form prescribed by the State Government, stating— (a) the names of the parties; (b) the nature of the information; (c) the names of the persons who appear to be acquainted with the circumstances of the case; (d) whether any offence appears to have been committed and, if so, by whom; (e) whether the accused has been arrested; (f) whether he has been released on his bond and, if so, whether with or without sureties; (g) whether he has been forwarded in custody under Section 170. (ii) The officer shall also communicate, in such manner as may be prescribed by the State Government, the action taken by him, to the person, if any, by whom the information relating to the commission of the offence was first given.” 26. (ii) The officer shall also communicate, in such manner as may be prescribed by the State Government, the action taken by him, to the person, if any, by whom the information relating to the commission of the offence was first given.” 26. The Division Bench of the High Court in the aforesaid Writ Petition No. 48287 of 2005 noticed that the officials of NOIDA had deliberately withheld records from the Court inspite of the specific order of the Court and that in order to determine whether manipulation was done in the draw of lots by UPDESCO at the behest of NOIDA officials or on its own, a detailed investigation was required to be done. It is for this reason that the Court referred the matter for investigation by the CBI. The Court, however, even after dismissing the writ petition, ordered that the petition may be placed before the Bench for the purposes of issuing appropriate orders after the preliminary reports were submitted by the CBI in respect of the documents produced by NOIDA officials and the investigation regarding manipulation in the draw of lots. The Court was conscious of the fact that the investigation was required to be initiated at the earliest as otherwise vital evidence, oral and documentary would run the risk of being obliterated. It is for this purpose that the Court directed that the preliminary report should be submitted before the Court by the CBI within three months. The preliminary reports were infact submitted by the CBI on 28th January, 2008 and 1st September, 2008 after the matters pending in the Supreme Court were dismissed on 22nd November, 2007 and it is after the examination of these preliminary reports that the Division Bench directed the CBI to conclude the investigation. The Revisionists are, therefore, not justified in contending that the preliminary reports were not placed by the CBI before the Division Bench of the High Court. It may be that the order was passed by the Division Bench in Writ Petition No. 3274 of 2008 but Writ Petition No. 48287 of 2005 was listed alongwith Writ Petition No. 3274 of 2008 in terms of the order dated 17th January, 2008 passed by the Court in Writ Petition No. 3274 of 2008 and perusal of the reports indicate that they were filed by the CBI in Writ Petition No. 48287 of 2005. There is, therefore, no merit in the contention of learned Senior Counsel for the Revisionists that as the directions issued by the Division Bench in Writ Petition No. 48287 of 2005 were not complied with by the CBI, the order passed by the CBI Court taking cognizance of the offences deserves to be set aside. 27. In this connection it is also the submission of learned Senior Counsel for the Revisionists that as the Division Bench of the High Court had directed for investigation by the CBI, the report should not have been submitted by the CBI before the CBI Court without obtaining specific direction from the Division Bench of the High Court. 28. This submission also cannot be accepted. The High Court had ordered for investigation by the CBI and once the report was prepared it was required to be submitted before the CBI Court in terms of Section 173(2) Cr. P.C. and this is what was done by the CBI. The direction of the Division Bench of the High Court was only to place the preliminary report before it and there was no direction that the report subsequently prepared could be filed by the CBI before the Court under Section 173(2) Cr. P.C. only after obtaining orders from the High Court. 29. The second submission of learned Senior Counsel for the Revisionist-Ram Shanker Singh is that sanction of the Government under Section 197 of the Code of Criminal Procedure was not obtained before taking cognizance. 30. In order to appreciate this submission, it will be necessary to refer to the provisions of Section 197(1) of the Code of Criminal Procedure, which is as follows: “197. 30. In order to appreciate this submission, it will be necessary to refer to the provisions of Section 197(1) of the Code of Criminal Procedure, which is as follows: “197. Prosecution of Judges and Public Servants.—(1) When any person who is or was a Judge or Magistrate or a public servant not removable from his office save by or with the sanction of the Government is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction- (a) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of the Union, of the Central Government; (b) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of a State, of the State Government: Provided that where the alleged offence was committed by a person referred to in Clause (b) during the period while a Proclamation issued under Clause (1) of Article 356 of the Constitution was in force in a State, clause (b) will apply as if for the expression, “State Government” occurring there, the expression “Central Government” were substituted.” 31. It is, therefore, clear that where a public servant not removable from his office save by or with the sanction of the State Government is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction of the State Government. 32. Ram Shanker Singh was at that relevant time holding the post of Manager (System) in the U.P. Development System Corporation Limited which is Government Undertaking registered under the provisions of Section 617 of the Companies Act, 1956. Even if it is assumed that he was a public servant, then too in order to take the benefit of Section 197(2) Cr. P.C., it was obligatory for him to establish that he was a public servant not removable from his office save by or with the sanction of the State Government. Even if it is assumed that he was a public servant, then too in order to take the benefit of Section 197(2) Cr. P.C., it was obligatory for him to establish that he was a public servant not removable from his office save by or with the sanction of the State Government. In this connection, reliance has been placed by learned Senior Counsel for the Revisionist-Ram Shanker Singh on the communication dated 21st March, 1975 sent by the Chief Secretary to all the District Magistrates of the State. This communication does not help the Revisionist as it merely reiterates what has been stated in Section 21 (Twelfth) (b) of the Indian Penal Code. It has not been stated in the affidavit accompanying the Criminal Revision that the said Revisionist could be removed from his office save by or with the sanction of the State Government. 33. The Supreme Court in Mohd. Hadi Raja (supra), while examining the provisions of Section 197(2) Cr. P.C., held that even if the officers are public servants, still they must satisfy the other conditions mentioned in Section 197 Cr. P.C. It was also observed that the protection by way of sanction under Section 197 Cr. P.C. is not available to the officers of public undertakings even if such public undertakings are ‘State’ within the meaning of Article 12 of the Constitution. The relevant observations are as follows : “1. The common question of law that arises in all these matters is whether the provisions of sanction under Section 197 of the Code of Criminal procedure, 1973 are applicable for prosecuting officers of the public sector undertakings or the Government Companies when on account of deep and pervasive control of finance and administration of such undertakings and Government companies, they are held as State within the meaning of Article 12 of the Constitution of India? 2. ............. ................For the purpose of requirement of sanction under Section 197 of the Code of Criminal Procedure, the accused will not only be a public servant but he will be such public servant who cannot be removed from his office except by or with the sanction of the Government. 2. ............. ................For the purpose of requirement of sanction under Section 197 of the Code of Criminal Procedure, the accused will not only be a public servant but he will be such public servant who cannot be removed from his office except by or with the sanction of the Government. Further, the accused will not only be a public servant of above description but the offence alleged to have been committed by such officer must have been committed while such public servant had been acting or purporting to act in the discharge of his official duties. 4. ...............The question for decision is that even if in a given case, the concerned officer of the public sector undertaking or the Government company being State under Article 12 of the Construction is removable from office by or with the sanction of the Government and such officer is alleged to have committed an offence by his action which can be construed as action taken while acting or purporting to act in the discharge of his official duties, whether for prosecuting such officer, sanction under Section 197 of the Code of Criminal Procedure is warranted or not. .................... 20. Although the instrumentality or agency with a corporate veil, for all intents and purposes may be held to be a third arm of the Government and such instrumentality discharges the duties and functions which the State intends to do as indicated in Ajay Hasia ‘s case (supra), such instrumentality or agency is none the less juridical person having a separate legal entity. Therefore, such instrumentality must be held to have an independent status distinct from the State and cannot be treated as a Government department for all purposes. Therefore, even if an officer of such instrumentality or agency takes or receives, keeps or expands any property or executes any contract, such acts even though in ultimate analysis may be held to have been done in the interest of the State, such action cannot be construed, as of rule, an action of the Government by its employees or by an authority empowered by the Government. It may be indicated here that it is not necessary that persons falling under any of the descriptions given in various clauses under Section 21 of I.P.C. need to be appointed by the Government. It may be indicated here that it is not necessary that persons falling under any of the descriptions given in various clauses under Section 21 of I.P.C. need to be appointed by the Government. If such person falls under any of the descriptions as contained in various clauses of Section 21 of the Indian Penal Code, such person must be held to be a public servant. Explanation 1 of Section 21 indicates that persons falling under any of the above descriptions are public servants whether appointed by the Government or not. Explanation 2 indicates that wherever the words public servant occur, they shall be understood of every person who is in actual possession of the situation of a public servant, whatever legal defect there may be in his right to hold that situation. Sub-clause (b) of clause twelve of Section 21 expressly makes the officers of local authority and corporation established by or under a Central, Provincial or State Act or a Government owned company as defined in Section 617 of the Companies Act 1956, public servants. But protection under Section 197 Cr. P.C. is not available to a public servant unless other condition indicated in that Section are fulfilled. 21. It is be noted that though through the contrivance or mechanism of corporate structure, some of the public undertakings are performing the functions which are intended to be performed by the State, ex facie, such instrumentality or agency being a juridical person has an independent status and the action taken by them, however important the same may be in the interest of the State cannot be held to be an action taken by or on behalf of the Government as such within the meaning of Section 197 Cr. P.C. .............. 24. It is also to be indicated here that in 1973, the concept of instrumentality or agency of State was quite distinct. The interest of the State in such instrumentality or agency was well known. Even then, the legislature, in its wisdom, did not think it necessary to expressly include the officers of such instrumentality or the Government company for affording protection by way of sanction under Section 197 Cr. P.C. 25. It will be appropriate to notice that whenever there was felt need to include other functionaries within the definition of public servant, they have been declared to be ‘public servants’ under several special and local acts. P.C. 25. It will be appropriate to notice that whenever there was felt need to include other functionaries within the definition of public servant, they have been declared to be ‘public servants’ under several special and local acts. If the legislature had intended to include officers of instrumentality or agency for bringing such officers under the protective umbrella of Section 197 Cr. P.C., it would have done so expressly. 26. Therefore, it will not be just and proper to bring such persons within the ambit of Section 197 by liberally construing the provisions of Section 197. Such exercise of liberal construction will not be confined to the permissible limit of interpretation of a statute by a Court of law but will amount to legislation by Court. 27. Therefore, in our considered opinion, the protection by way of sanction under Section 197 of the Code of Criminal Procedure is not applicable to the officers of Government Companies or the public undertakings even when such public undertakings are ‘State‘ within the meaning of Article 12 of the Constitution on account of deep and pervasive control of the Government. .............” (emphasis supplied) 34. Observations to the same effect were also made by the Supreme Court in K. Ch. Prasad v. Smt. J. Vanalatha Devi and others, AIR 1987 SC 722 , wherein it was observed : “4. It was contended by the learned counsel that after nationalisation as the banks are nationalised the appellant will fall within the definition of public servant and therefore Section 197 will be attracted. It was also contended that although the appellant is removable by an authority which is not Government but the authority has been empowered under the regulations and these regulations have been framed with the sanction of the Government and under these circumstances therefore the view taken by the Courts below is not correct. 5. .............. 6. It is very clear from this provision that this Section is attracted only in cases where the public servant is such who is not removable from his office save by or with the sanction of the Government. It is not disputed that the appellant is not holding a post where he could not be removed from service except by or with the sanction of the Government. It is not disputed that the appellant is not holding a post where he could not be removed from service except by or with the sanction of the Government. In this view of the matter even if it is held that appellant is a public servant still provisions of Section 197 are not attracted at all. 7. It was contended by the learned counsel that the competent authority who can remove the appellant from service derives his power under regulations and these regulations ultimately derive their authority from the Act of Parliament and therefore it was contended that the regulations are framed with the approval of the Central Government but it does not mean that the appellant cannot be removed from his service by anyone except the Government or with the sanction of the Government. Under these circumstances on plain reading of Section 197 the view taken by the Courts below could not be said to be erroneous. We therefore see no reason to entertain this appeal. It is therefore dismissed.” (emphasis supplied) 35. In Afzalur Rahman and others v. Emperor, AIR 1943 FC 18, the Federal Court had also observed : “2. We deal first with the objection Under Section 197, Criminal P.C. Taking it that the appellants have been accused of an offence alleged to have been committed by them while acting or purporting to act in the discharge of their official duty, the question for determination is whether they are persons not removable from office save by or with the sanction of the Provincial Government. It is not disputed that according to the statutory rules and notifications set out in the judgment of the High Court, the police officers before us can be dismissed by the Deputy Inspector-General of Police and the Excise Sub-Inspector by the Excise Commissioner. But the appellants contend that such dismissal by a subordinate officer like the Deputy Inspector-General or the Excise Commissioner must be treated as an act of the Provincial Government itself, because the Deputy Inspector-General in the one case and the Excise Commissioner in the other case only act on behalf of the Provincial Government under powers delegated to them. But the appellants contend that such dismissal by a subordinate officer like the Deputy Inspector-General or the Excise Commissioner must be treated as an act of the Provincial Government itself, because the Deputy Inspector-General in the one case and the Excise Commissioner in the other case only act on behalf of the Provincial Government under powers delegated to them. In this view, they invoke the principle embodied in the maxim qui facit per alium facit per se and contend that as the subordinate authorities can dismiss them only as agents of the Provincial Government, they must be deemed to be removable only by or with the sanction of the Provincial Government, within the meaning of Section 197, Criminal P.C.......................... ............. 4. Rules of the kind above referred to have all along provided that certain class of officers can be dismissed only by or with the sanction of the Local Government and it is to this class of officers that the Legislature must have intended to limit the protection given by Section 197, Criminal P.C.................” (emphasis supplied) In Romesh Lal Jain v. Naginder Singh Rana and others, AIR 2006 SC 336, the Supreme Court also observed : 16. “......................Evidently, the requirement of obtaining a sanction under Section 197 Cr. P.C. from the State in relation to the Respondent who at the material time was a Sub Inspector of Police might not have arisen if the notification issued by the State in this behalf on or about 5.5.1983 is read in proper context, which is as under: “No. 3124-211 (1)-83/7773 - In exercise of the powers conferred by sub-section (3) of Section 197 Code of Criminal Procedure, 1973 (Central Act 2 of 1974), the Governor of Punjab is pleased that the provisions of sub-section (2) of the said Section shall apply to serving police officials of all ranks of the Punjab Police force charged with the maintenance of Public Order.” 17. The expression ‘public order’ has a distinct connotation. Investigation into the offence under the Essential Commodities Act may not be equated with the maintenance of public order as is commonly understood. The expression ‘public order’ has a distinct connotation. Investigation into the offence under the Essential Commodities Act may not be equated with the maintenance of public order as is commonly understood. The activities of a single individual giving rise to irregularities of maintenance of books of accounts as regard an essential commodity or resorting to the black marketing, unless a volatile situation arises therefrom, cannot lead to disturbance of public peace, safety and tranquility, which are essential requisites of a ‘public order’. 18. The said notification is, therefore, has no application in the facts and circumstances of the case and consequently it has to be held that no sanction by the State in terms of Section 197 Cr. P.C. was necessary as the Respondent could be removed from service by the Deputy Inspector General of Police and not by or with the sanction of the Government.” 36. In view of the provisions of Section 197(1) Cr. P.C. and the law laid down in the aforesaid decisions of the Supreme Court, it is not possible to accept the second submission of learned Senior Counsel for the Revisionists. 37. The third submission of learned Senior Counsel for the Revisionists is that the CBI Court took cognizance of the offences in a mechanical manner without any application of mind. It is the submission of learned counsel for the opposite party that the Revisionists had no right of raising any objections at the time of submission of report to the CBI Court by the CBI. 38. In Mathura Prasad and others v. State of U.P. and another, 2007 (1) ALJ 55, a Division Bench of the Court, relying upon the decision of the Supreme Court in Union of India v. W.N. Chaddha, AIR 1993 SC 1082 and the Full Bench decision of this Court in Ranjit Singh v. State of U.P., 2000 ALJ 898, held that an accused is not entitled for an opportunity of hearing at pre-cognizance stage and the Magistrate is not required under the law to hear an accused at pre-cognizance stage. This is precisely what the CBI Court has observed while rejecting the objections filed by the Revisionists. It is for this reason that the third submission advanced by learned Senior Counsel for the Revisionists that the CBI Court took cognizance of the offences in a mechanical manner is not required to be examined at this stage. 39. This is precisely what the CBI Court has observed while rejecting the objections filed by the Revisionists. It is for this reason that the third submission advanced by learned Senior Counsel for the Revisionists that the CBI Court took cognizance of the offences in a mechanical manner is not required to be examined at this stage. 39. There is, therefore, no merit in any of the contention advanced by learned Senior Counsel for the Revisionists. 40. The Criminal Revisions are, accordingly, dismissed. Interim orders stand vacated. —————