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2014 DIGILAW 1265 (HP)

Dilesh Kumar v. Central Bureau of Investigation

2014-09-15

SANJAY KAROL

body2014
Judgment : Sanjay Karol, J (oral) On 22.04.2010 a complaint came to be lodged with the Superintendent of Police, State Vigilance and Anti Corruption Bureau, Dharamshala, District Kangra. In crux, a grievance was made out that Rajesh Thakur, Director, Thakur College of Education, Kangra, H.P., sought job at Government College, Dhaliara (H.P.) on the basis of false/forged certificates of Magadh University Bodh Gaya. Also his family members obtained forged certificates from the Bihar Intermediate Education Council Patna, used again for seeking employment with the Government of Himachal Pradesh. On the asking of the original complainant, this Court vide judgment dated 03.05.2012 in CWP No.6453 of 2010, titled as V.P. Alhuwalia Versus State of H.P. & others, directed the investigation to be conducted by the Central Bureau of Investigation. Accordingly regular case FIR No.RC0962012S0007 dated 06.06.2012 was registered with the Central Bureau of Investigation, Shimla Branch. With the completion of investigation, final report dated 15.05.2013 was presented before the Court of Chief Judicial Magistrate, Shimla-cum-Special Judicial Magistrate, CBI, Shimla naming the present petitioner Dilesh Kumar to be one of the accused persons. Allegedly he is the kingpin and issued/procured fake and forged degrees and certificates in favour of gullible persons of the State. On 24.10.2013, Court of Chief Judicial Magistrate, Shimla, in an application filed under Section 306 of the Code of Criminal Procedure, 1973 (hereinafter referred to as Cr.P.C.), for grant of tender of pardon, passed order(s) in favour of applicants, accused Mohd. Mazahar and Lal Bihari Singh (Annexures P-3 and P-4). Applicants were examined on oath by the concerned Magistrate at the time of grant of tender of pardon. 2. Subsequently on 25.10.2013, supplementary final report was filed by the Investigating Agency, specially recording grant of tender of pardon in favour of accused Mohd. Mazahar and Lal Bihari Singh. It appears that perhaps this fact escaped attention of the Court and as such on 29.10.2013, the concerned Court also took cognizance, amongst others, against them. As such, cognizance against all eleven accused persons was erroneously taken, which mistake was subsequently rectified with the passing of order dated 12.11.2013, when names of the approvers (Mohd. Mazahar and Lal Bihari Singh) were deleted from the column of accused persons who were then added as witnesses in the column of witnesses. Noticeably there was no challenge to this order. Mazahar and Lal Bihari Singh) were deleted from the column of accused persons who were then added as witnesses in the column of witnesses. Noticeably there was no challenge to this order. Also propriety and legality of such order is not a subject matter of challenge in these proceedings. 3. Present petitioner, who was arrested in connection with the case, applied for regular bail, which prayer was not only turned down by this Court, but also by Hon’ble the Supreme Court of India vide order dated 07.02.2014, when trial was expedited with a direction to be concluded within a period of nine months. 4. It is also not in dispute that subsequent to filing of the present petition dated 24.06.2014, statements of Mohd. Mazahar and Lal Bihari Singh stand recorded as witnesses during trial, with adequate opportunity afforded to all the accused persons, including the present petitioner, for cross-examining them. Undisputedly, pursuant to directions issued by Hon’ble the Supreme Court of India, out of 147 witnesses, 48 witnesses already stand examined. 5. Now petitioner is seeking quashing of proceedings in the following terms:- “It is, therefore, most respectfully and humbly prayed that this petition may very kindly be allowed and the impugned proceedings in case RC No.096012S0007, dated 06.06.2012 titled as CBI versus Rajesh Thakur & others for offences under Sections 420, 467, 468, 471 read with 120-B of the Indian Penal Code, pending before the Learned Chief Judicial Magistrate Shimla, now fixed for remaining prosecution witnesses w.e.f. 02.07.2014 to 08.07.2014, may kindly be quashed as the entire proceedings stands vitiated, after calling for the record of the Trial Court case, in the interest of justice and fair play. In case Hon’ble Court is of the view that the provisions of S. 397 Cr.PC. are not attracted, the provisions of S. 482 Cr.P.C. may be involved.” 6. Mr. K.S. Thakur, learned counsel for the petitioner, has urged that (1) Under Section 306(5) (a) (i) Cr.P.C. when cognizance is taken by the Chief Judicial Magistrate, case has to be committed for trial to the Court of Sessions, irrespective of the fact whether it is triable as a warrant trial or a Sessions trial. (2) Under sub clause (a) of Section 306(4) Cr.P.C. at the time of taking cognizance by the Court below, both the approvers were required to be examined with an opportunity afforded to the accused, for cross-examination. (2) Under sub clause (a) of Section 306(4) Cr.P.C. at the time of taking cognizance by the Court below, both the approvers were required to be examined with an opportunity afforded to the accused, for cross-examination. This was not done in the present case. Thus according to the learned counsel trial stands vitiated. In support, he refers to decision reported in Bawa Faqir Singh Versus Emperor, AIR 1938 Privy Council 266; Suresh Chandra Bahri Versus State of Bihar, AIR 1994 SC 2420 and Sitaram Sao alias Mungeri Versus State of Jharkhand, (2007) 12 SCC 630 . 7. Mr. Sandeep Sharma, learned Senior counsel appearing on behalf of Central Bureau of Investigation, vehemently opposed the petition and invited my attention to the decision in Dilip Sudhakar Pendse & another Versus Central Bureau of Investigation, (2013) 9 SCC 391 . 8. For the sake of ready reference and better appreciation, provisions of Section 306 Cr.P.C. are reproduced as under:- “306. Tender of pardon to accomplice. – (1) With a view to obtaining the evidence of any person supposed to have been directly or indirectly concerned in or privy to an offence to which this section applies, the Chief Judicial Magistrate or a Metropolitan Magistrate at any stage of the investigation or inquiry into, or the trial of, the offence, and the Magistrate of the first class inquiring into or trying the offence, at any stage of the inquiry or trial, may tender a pardon to such person on condition of his making a full and true disclosure of the whole of the circumstances within his knowledge relative to the offence and to every other person concerned, whether as principal or abettor, in the commission thereof. (2) This section applies to – (a) any offence triable exclusively by the Court of Session or by the Court of a Special Judge appointed under the Criminal Law Amendment Act, 1952 (46 of 1952). (b) any offence punishable with imprisonment which may extended seven years or with a more severe sentence. (3) Every Magistrate who tenders a pardon under sub-section (1) shall record- (a) his reasons for so doing; (b) whether the tender was or was not accepted by the person to whom it was made, and shall, on application made by the accused, furnish him with a copy of such record free of cost. (3) Every Magistrate who tenders a pardon under sub-section (1) shall record- (a) his reasons for so doing; (b) whether the tender was or was not accepted by the person to whom it was made, and shall, on application made by the accused, furnish him with a copy of such record free of cost. (4) Every person accepting a tender of pardon made under sub-section (1) – (5) Where a person has accepted a tender of pardon made under sub-section (1) and has been examined under sub-section (4), the (a) shall be examined as a witness in the Court of the magistrate taking cognizance of the offence and in the subsequent trial, if any; (b) shall, unless he is already on bail, be detained in custody until the termination of the trial. Magistrate taking cognizance of the offence shall, without making any further inquiry in the case, – (a) commit it for trial – (i) to the Court of Session if the offence is triable exclusively by the Court or if the Magistrate taking cognizance is the Chief Judicial Magistrate; (ii) to a Court of Special Judge appointed under the Criminal Law Amendment Act, 1952 (46 of 1952), if the offence is triable exclusively by the Court; (b) in any other case, make over the case to the Chief Judicial Magistrate who shall try the case himself.” (Emphasis supplied) 9. Dealing with the first contention, it be only observed that in the present case, only the Chief Judicial Magistrate, Shimla is the concerned designated Court to hear and try matters arising out of investigation conducted by the Central Bureau of Investigation. Thus Mr. Sandeep Sharma, learned Senior counsel is right in contending that in the given facts and circumstances, relevant provisions applicable are sub-Section 5(b) of Section 306 Cr.P.C, for in the instant case, Chief Judicial Magistrate, being the designated Court alone had the jurisdiction to conduct the trial. Neither the matter was triable by the Court of Sessions nor was cognizance taken by any Magistrate. In the instant case question of committal does not arise. The apex Court in Dilip Sudhakar (supra) has also dealt with the issue holding that :- “12. Mr. Rakesh K. Khanna, learned Additional Solicitor General appearing for the respondent, on the other hand, contended that under subsection (5)(a)(i) two options were available. In the instant case question of committal does not arise. The apex Court in Dilip Sudhakar (supra) has also dealt with the issue holding that :- “12. Mr. Rakesh K. Khanna, learned Additional Solicitor General appearing for the respondent, on the other hand, contended that under subsection (5)(a)(i) two options were available. He submitted that the matter has to be committed to the Court of Sessions undisputedly if the offence was triable exclusively by that court. He, however, maintained that even if the matter was not exclusively triable by the Court of Session, it could still be committed to that court, if the cognizance is taken by the Chief Metropolitan Magistrate. In the facts of the present case, the charges which are leveled against the appellants are all triable by the Magistrate’s court, and there is no dispute about that, the cognizance is taken by the Additional Chief Magistrate and not by the Chief Metropolitan Magistrate. That being so, it is not possible to accept this submission of Mr. Khanna.” (Emphasis supplied) 10. In view of the aforesaid discussion, ratio of law laid down in Bawa Faqir (supra) and Suresh Chandra (supra) is inapplicable in given facts and circumstances. 11. Coming to the second point, it be only observed that accused Mohd. Mazahar and Lal Bihari Singh were granted tender of pardon on 24.10.2013 and at that time both of them were examined on oath by the concerned Court. Subsequently during trial, these persons stand examined as witnesses and opportunity afforded to all the accused for cross-examining them. Provisions of sub-section 4 of Section 306 Cr.P.C. are unambiguously clear. The requirement being that a person accepting tender of pardon be examined as a witness, first by the Court taking cognizance of the offence and then during trial. In the instant case, initially Court taking cognizance had examined these persons and their statements recorded on oath. Also during trial these persons stand examined as witnesses with adequate opportunity afforded to the accused to cross-examine them. Thus there is no procedural illegality committed by the Court below, vitiating the trial in any manner. 12. The decision rendered in Sitaram Sao (supra), in the given facts and circumstances, is squarely inapplicable. Also during trial these persons stand examined as witnesses with adequate opportunity afforded to the accused to cross-examine them. Thus there is no procedural illegality committed by the Court below, vitiating the trial in any manner. 12. The decision rendered in Sitaram Sao (supra), in the given facts and circumstances, is squarely inapplicable. There the Court was dealing with the case where accused stood convicted on the basis of testimony of an accomplice in whose favour no formal order of pardon was passed by the concerned Court. In an appeal, the High Court remanded the matter back, when such defect was cured by passing of order of pardon and examination of such approver with opportunity afforded to the accused to cross-examine. It is in this backdrop, contentions raised by the convicts in para 14, were answered in para 23 of the said report, wherein Court held that the stage of examining the approver comes only after grant of pardon whereafter he is examined as a witness in the presence of the accused and also cross-examined. 13. In view of the aforesaid discussion, I do not find any favour with the submissions so made at the Bar on behalf of present accused and as such, present petition, devoid of merit, is dismissed. Pending application(s), if any, also stand disposed of.