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2019 DIGILAW 529 (JHR)

Anil Dikshit v. State Of Jharkhand Through C B I

2019-02-21

B.B.MANGALMURTI

body2019
JUDGMENT B.B. Mangalmurti, J. - Instant application has been filed for quashing of the order dated 16.07.2018 passed by Shree A.K. Mishra, learned Special Judge, C.B.I., Ranchi in connection with R.C. Case No.12(A)/2014-R and C.B.I. may be directed to supply all the documents as sought by the petitioner in his application dated 07.07.2018 filed under Section 91 of the Code of Criminal Procedure. 2. The prosecution case, as mentioned in the F.I.R., in short, is that an information has been received from a reliable source that Shri Darlando Thanmi Khathing, the then Vice Chancellor, Central University of Jharkhand (CUJ), Ranchi, Jharkhand, Narendra Pal Garg, OSD (Project), Central University of Jharkhand, Ranchi, Jharkhand entered into a criminal conspiracy with the Proprietors/Directors of four private firm viz. M/s Anil Associates, New Delhi, M/s Space Ace, Gurgaon, M/s Gray Parikh Architects Pvt. Ltd., Ahmedabad, M/s Sandeep Shikre Architects & Associates, Mumbai, Maharastra and other unknown during the period 2010 to 2014 and committed the offences of cheating/forgery, using forged/fake documents as genuine and criminal misconduct and in pursuance thereof by abusing their official position caused a wrongful gain of Rs. 1,92,08,774/- (Approx) to the above mentioned private firms and corresponding wrongful loss to the Central University of Jharkhand, Ranchi in the matter of award of consultancy work for preparation of master plan and comprehensive architectural building designing and engineering design for the permanent campus of Central University of Jharkhand, Ranchi on the basis of bogus/fake documents and by making fraudulent payments to the said firms. On the basis of said report, prosecution case has been instituted bearing RC No.12(A)/2014-R dated 31.10.2014 under Sections 120B, 420, 468 and 471 of the Indian Penal Code and Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act against six persons including this petitioner. C.B.I. submitted charge sheet against four persons including the petitioner and rest of the two namely M/s Gray Parikh Architects Pvt. Ltd. and M/s Sandeep Shikre Architects & Associates were not named in the charge-sheet. 3. Learned counsel appearing on behalf of the petitioner submitted that petitioner is an Architect by profession and several architect firms including the firm of this petitioner were invited by the University for the design of proposed buildings of Central University of Jharkhand. 3. Learned counsel appearing on behalf of the petitioner submitted that petitioner is an Architect by profession and several architect firms including the firm of this petitioner were invited by the University for the design of proposed buildings of Central University of Jharkhand. The firm of the petitioner M/s Anil Associates also participated and rendered its services to the University for its proposed design of Hostel Building and Academic Block. It is further submitted that copies of the police papers were supplied to the petitioner but some of the document supplied to the petitioner were incomplete and not legible and as such the petitioner moved an application dated 31.01.2018 for supply of compete and legible copies of the charge-sheet and other documents but despite several directions by the learned trial court, the C.B.I. did not supply the complete documents. The petitioner moved an application under Section 91 of the Code of Criminal Procedure seeking direction to the respondent to supply certain un-relied documents which were deliberately withheld by the C.B.I. It is further submitted that despite several orders by the court below, the C.B.I. did not comply and supplied the papers to this petitioner. These documents were such which have direct bearing on the case and it is required for preparing his defence but were deliberately withheld and not supplied to this petitioner. 4. Learned counsel further submitted that the list of documents required for preparation of defence by this petitioner was sought as follows :- (a) Photocopy of all seizure memo seized by the I.O. from various departments. (b) Photocopy of daily diary register and F.I.R. register maintained in the office of S.P., C.B.I./H.O.B., A.C.B., Ranchi for the month of October/November, 2014. (c) Photocopy of letter dispatch register relating to month of October/November, 2014. (d) Photocopy of source information report of case number R.C.12A/2014-R and its verification report. (e) Photocopy of all the documents seized by the I.O. but relied upon in the charge sheet. (f) Photocopy of minutes of 8th to 14th building committee. (g) Videograph/photograph of evaluation committee meeting for finalization of master plan dated 16.12.2011 and 17.12.2011 and 21.01.2012. (h) Photocopy of expression of interest and technical bid as submitted by the applicant. (e) Photocopy of all the documents seized by the I.O. but relied upon in the charge sheet. (f) Photocopy of minutes of 8th to 14th building committee. (g) Videograph/photograph of evaluation committee meeting for finalization of master plan dated 16.12.2011 and 17.12.2011 and 21.01.2012. (h) Photocopy of expression of interest and technical bid as submitted by the applicant. (i) Appointment file of M/s Grey Parikh Architects Pvt. Ltd. and M/s Sandeep Shirke Architects & Associates Pvt. Ltd. Learned counsel also submitted that for preparation of defence these documents are necessary as it would establish that no case is made out against the petitioner. The C.B.I. has adopted the policy of pick and choose and the documents showing innocence of the petitioner were deliberately withheld, so investigation done by the C.B.I. is not fair in the eye of law. Those documents are purposely withheld by the C.B.I. as the case of prosecution will be completely wiped out, and will demonstrate that no prima facie case is made out against the petitioner. He relied on a decision rendered in case of Ashutosh Verma Versus C.B.I. reported in , (2015) 1 AD(Del) 708 and Rukmani Narvekar Versus Vijaya Satardekar & Others reported in , (2009) AIR SC 1013. 5. Learned counsel for the C.B.I. submitted that on the direction of the court below all the documents were supplied to the petitioner as mentioned in his list. The un-relied documents were also supplied to the accused as per the direction of the court below dated 04.06.2018 and 18.06.2018 from the office of C.B.I. and some of the voluminous documents were also inspected by the accused on earlier dates. Therefore, the court below has recorded that the compliance have been made and un-relied documents have also supplied to the accused. 6. Considering the above submission of the parties as well as on perusal of the papers attached with this application and the proposition laid down by the Hon''ble Apex Court, it would appear that the accused is entitled to receive all the connecting papers by which the prosecution is relying as well as the papers which were not relied by the prosecution. For the sake of convenience Sections 91 and 207 of the Code of Criminal Procedure are quoted hereinbelow :- 91. For the sake of convenience Sections 91 and 207 of the Code of Criminal Procedure are quoted hereinbelow :- 91. Summons to produce document or other thing (1) Whenever any Court or any officer in charge of a police station considers that the production of any document or other thing is necessary or desirable for the purposes of any investigation, inquiry, trial or other proceeding under this Code by or before such Court or officer, such Court may issue a summons, or such officer a written order, to the person in whose possession or power such document or thing is believed to be, requiring him to attend and produce it, or to produce it, at the time and place stated in the summons or order. 207. Supply to the accused of copy of police report and other documentsIn any case where the proceeding has been instituted on a police report, the Magistrate shall without delay furnish to the accused, free of cost, a copy of each of the following:- (i) the police report; (ii) the first information report recorded under section 154; (iii) the statements recorded under sub-section (3) of section 161 of all persons whom the prosecution proposes to examine as its witnesses, excluding therefrom any part in regard to which a request for such exclusion has been made by the police officer under sub-section (6) of section 173; (iv) the confessions and statements, if any, recorded under section 164; (v) any other document or relevant extract thereof forwarded to the Magistrate with the police report under sub-section (5) of section 173: Provided that the Magistrate may, after perusing any such part of a statement as is referred to in clause (iii) and considering the reasons given by the police officer for the request, direct that a copy of that part of the statement or of such portion thereof as the Magistrate thinks proper, shall be furnished to the accused: Provided further that if the Magistrate is satisfied that any document referred to in clause (v) is voluminous, he shall, instead of furnishing the accused with a copy thereof, direct that he will only be allowed to inspect it either personally or through pleader in Court. 7. The decision of Ashutosh Verma Versus C.B.I. (supra) the Hon''ble Court has held as under :- 14. 7. The decision of Ashutosh Verma Versus C.B.I. (supra) the Hon''ble Court has held as under :- 14. A bare reading of provisions contained in Section 207 of Cr.P.C. shows that it is the obligation of the Magistrate to see that all the documents which are necessary for the accused for proper conduct of his defence, are furnished to him well before the trial. 19. It is settled rule of law that impartial and fair opportunity in a trial are Constitutional as well as human right. It is an undeniable duty of the Court to ensure that nothing causes a threat to such a right. It is the right of an accused to adduce evidence in order to raise defence failing which it may tantamount to jeopardizing the right to fair trial. Justice can only be ensured if the rules of procedure that have been designed are diligently adhered to. No court shall allow breach of these principles. Furthermore, incompletely adduced evidence would lead to incomplete defence, which may result in incorrect or incomplete answers consequently strengthening the prosecution case against the accused. In the case of Rukmani Narvekar Versus Vijaya Satardekar (supra) the Hon''ble Supreme Court has held :- 28. We have carefully perused the decision of this Court in the State of Orissa vs. Debendra Nath Padhi (supra). Though the observations in paragraph 16 of the said decision seems to support the view canvassed by Shri Rohatgi, it may be also pointed out that in paragraph 29 of the same decision it has been observed that the width of the powers of the High Court under Section 482 of Cr.P.C and Article 226 of the Constitution is unlimited whereunder in the interests of justice the High Court can make such orders as may be necessary to prevent abuse of the process of the court or otherwise to secure the ends of justice within the parameters laid down in Bhajan Lal''s case (supra). Thus we have to reconcile paragraphs 16 and 23 of the decision in State of Orissa vs. Debendra Nath Padhi (supra). We should also keep in mind that it is well settled that a judgment of the Court has not to be treated as a Euclid formula vide Dr. Rajbir Singh Dalai vs. Chaudhari Devi Lal University, Sirsa and Anr. , (2008) 8 JT 621 (SC). We should also keep in mind that it is well settled that a judgment of the Court has not to be treated as a Euclid formula vide Dr. Rajbir Singh Dalai vs. Chaudhari Devi Lal University, Sirsa and Anr. , (2008) 8 JT 621 (SC). As observed by this Court in Bharat Petroleum Corporation Ltd. and Anr. vs. N. R. Vairamani and Anr. , (2004) AIR SC 4778, observations of Courts are neither to be read as Euclid''s formula nor as provisions of the statute. Thus in our opinion while it is true that ordinarily defence material cannot be looked into by the Court while framing of the charge in view of D. N. Padhi''s case (supra), there may be some very rare and exceptional cases where some defence material when shown to the trial court would convincingly demonstrate that the prosecution version is totally absurd or preposterous, and in such very rare cases the defence material can be looked into by the Court at the time of framing of the charges or taking cognizance. 29. In our opinion, therefore, it cannot be said as an absolute proposition that under no circumstances can the Court look into the material produced by the defence at the time of framing of the charges, though this should be done in very rare cases, i.e. where the defence produces some material which convincingly demonstrates that the whole prosecution case is totally absurd or totally concocted. We agree with Shri Lalit that in some very rare cases the Court is justified in looking into the material produced by the defence at the time of framing of the charges, if such material convincingly establishes that the whole prosecution version is totally absurd, preposterous or concocted. 30. However, in this case it cannot be said that the evidence in the Civil Suit which was produced by the defence before the trial court established convincingly that the prosecution case is totally absurd or preposterous. In our opinion this is a matter which has to be looked into by the trial Court. 8. In this case the prosecution on the order of the court below have delivered the documents to the petitioner and the court below in its impugned order have recorded that all the documents as prayed by the petitioner and mentioned in his list in his petition, have been supplied to him. 8. In this case the prosecution on the order of the court below have delivered the documents to the petitioner and the court below in its impugned order have recorded that all the documents as prayed by the petitioner and mentioned in his list in his petition, have been supplied to him. It further appears the un-relied documents has also been received by this accused on the direction of court below vide its order dated 04.06.2018 and 18.06.2018 from the office of C.B.I. and some of the voluminous documents were also inspected by the accused. Therefore, it could not be shown to this Court that the documents as sought for were not supplied to the accused/petitioner. 9. In this circumstances, no case is made out for interference, hence, it is dismissed. 10. Let a copy of this order be transmitted to the court concerned.