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2015 DIGILAW 896 (MP)

VINOD KUMAR v. CENTRAL BUREAU OF INVESTIGATION

2015-08-26

G.S.SOLANKI, SHANTANU KEMKAR

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JUDGMENT : 1. Shri Ajay Mishra, Senior Counsel with Shri M. R. Khan, Advocate for the petitioners. Shri J. K. Jain, Advocate for the respondent. 2. Heard finally with the consent of the learned counsel for the parties. 3. This Criminal Revision has been filed by the petitioners being aggrieved by order dated 14-8-2015 passed by Special Judge, CBI, Bhopal in Special Case No. 09/2005 whereby prayer made by the petitioners to examine the proposed defence witnesses has been rejected. 4. The petitioners are facing trial before the trial Court for the offences punishable under sections 13(1)(d) read with section 13(2) of the Prevention of Corruption Act, 1988 and sections 120-B, 420, 467, 468 and 471 of the Indian Penal Code. 5. It is not in dispute that the petitioners previously filed Criminal Revision No. 1570/2015 before this Court being aggrieved by order dated 8-7-2015 passed by Special Judge, CBI, Bhopal in Special Case No. 09/2005, which was dismissed as withdrawn vide order dated 20-7-2015 with liberty to the petitioners to file a fresh application giving all details about the relevancy of the witnesses to whom, they want to examine as defence witnesses. It was further observed by this Court that in case the trial Court finds that calling of the witnesses would be necessary, it shall call the witnesses by way of summons at the first instance and the trial Court shall not be influenced by its earlier order dated 8-7-2015. 6. In compliance of the order dated 20-7-2015, the petitioners filed a fresh list of witnesses (P-12) with the details of relevancy of the witnesses. The trial Court after hearing both the parties has dismissed the aforesaid application, hence this revision. 7. Learned counsel for the petitioners has vehemently argued that the trial Court has committed illegality in passing the impugned order. The trial Court has dismissed the application only on the ground that since the petitioners had an occasion to cross-examine the prosecution witnesses and if they do not examine him on the point of procedure adopted in the department concerned, then permission to examine the witnesses on procedure adopted by the department cannot be granted. The trial Court has dismissed the application only on the ground that since the petitioners had an occasion to cross-examine the prosecution witnesses and if they do not examine him on the point of procedure adopted in the department concerned, then permission to examine the witnesses on procedure adopted by the department cannot be granted. It is further submitted that in this way, the petitioners have been deprived of from adducing the evidence in their defence, therefore, the order passed by the trial Court is not sustainable in the eye of law and same deserves to be set aside. 8. Learned counsel appearing on behalf of the respondent/CBI has justified and supported the order passed by the trial Court. 9. We have gone through the impugned order and other material on record. It reveals from the perusal of the impugned order that the trial Court has not dissuaded the petitioners to adduce the witnesses in their defence, on the contrary, witnesses Anand Aiyer, Dr. Smt. Gazala Ali Khan, Mahesh Rawat and Sharad Kumar Yadav of the department have already been examined as defence witnesses. 10. As far as fresh application filed by the petitioners along with the details of relevancy of witnesses, is concerned, it is true that the petitioners filed such application (P-12) with details of relevancy of witnesses but the trial Court has assigned the reason in the impugned order that the petitioners are intended to call the witnesses to prove the procedure of the office for which the petitioners have already made extensive cross-examination of the witnesses who passed the order of sanction of prosecution. 11. It is well established principle of law that competency of sanctioning authority along with his application of mind at the time of passing the sanctioning order can be challenged in his cross-examination itself. Further, now it is for the trial Court to evaluate the testimony of such witnesses at the time of passing the judgment. It is not necessary for the Court to allow the petitioners to adduce the evidence in regard to competency of sanctioning authority as well as on the fact that how he applied his mind at the time of passing the sanctioning order that can be evaluated from the text of order itself. 12. It is not necessary for the Court to allow the petitioners to adduce the evidence in regard to competency of sanctioning authority as well as on the fact that how he applied his mind at the time of passing the sanctioning order that can be evaluated from the text of order itself. 12. It reveals from conjoint reading of section 243(1) of the Criminal Procedure Code with section 22 of the Prevention of Corruption Act that section 22 was enacted with the intention to achieve expeditiousness of trial in the cases pertaining to corruption because trial for the offences relating to corruption must be accelerated to curtail the growing corruption among the public servants, which has been a major cause for demoralization of the society, therefore, generally in trial under Prevention of Corruption Act, list of defence witnesses is called before entering the accused in his defence. By this procedure, the Special Court has occasion to see the list of witnesses and list of documents to be adduced in evidence of defence side. Further, if on perusal of such list, the trial Court feels that examination of witnesses shown in the such list is unnecessary to prove defence plea and calling of such witnesses would only result in procrastination, he may refuse to call such witnesses, which shows that intention of legislation to enact section 22 of the Prevention of Corruption Act was to save the time of trial Court, which would be expended in examination of many witnesses in defence. 13. We have perused the list of witnesses filed by the petitioners before the trial Court along with the impugned order wherein it has been mentioned that four witnesses of defence have already been examined by the petitioners. So far as other witnesses are concerned, they have been proposed for proving the procedural aspect of the department. Some witnesses have been proposed to show that some circulars of the department were not having the effect as rules. Such legal point can be raised before the trial Court during the arguments. Some witnesses have been proposed to show that sanctioning authority has not applied its mind at the time of passing the sanctioning order. 14. Some witnesses have been proposed to show that some circulars of the department were not having the effect as rules. Such legal point can be raised before the trial Court during the arguments. Some witnesses have been proposed to show that sanctioning authority has not applied its mind at the time of passing the sanctioning order. 14. As discussed hereinabove, at the time of passing the sanctioning order, the sanctioning authority should apply his mind on the basis of material placed before him and it is on record that the sanctioning authority has already been extensively cross-examined on that aspect, now it is for the trial Court to go through text of order of sanction at the time of passing of final judgment. It appears that the petitioners have filed long list of defence witnesses in order to delay the trial and if trial Court after application of mind, has dismissed the application by placing reliance on Arivazhagan vs. State, AIR 2000 SC 1198 , in our considered opinion, the trial Court has not committed any illegality in passing the impugned order. 15. Consequently, we do not find any ground to make interference in the impugned order under the revisional jurisdiction of this Court. The revision is hereby dismissed.