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Himachal Pradesh High Court · body

2020 DIGILAW 77 (HP)

Amrish Jolly v. Central Bureau Of Investigation

2020-01-06

VIVEK SINGH THAKUR

body2020
JUDGMENT Vivek Singh Thakur, J. - By means of instant petition, petitioner Amrish Jolly has assailed lodging of FIR No. RC0962017A0003, dated 19.4.2017 (Annexure P-1), registered against him, under Section 120-B IPC and Section 7 and 13(2) read with Section 13(1)(d) of Prevention of Corruption Act (herein after referred to as the PC Act in short) by Central Bureau of Investigation (CBI), Shimla, launching of prosecution against him by filing final report (Annexure P-2), dated 30.12.2017 in consonance thereto, on completion of investigation; and also framing of charges by learned Special Judge, CBI, Shimla, vide order dated 21.11.2018 (Annexure P-3) against him, on the basis of final report (Annexure P-2). 2. It is case of respondent-CBI that on 17.4.2017, complainant Ved Pal Jangra had submitted a complaint in the office of Superintendent of Police, CBI, Shimla, wherein it was alleged that petitioner was demanding 10% commission out of the amount released in favour of firm of complainant for execution or certain work in the area of Cantonment Board, Subathu, before identifying the site for completion of remaining work allotted to the firm of complainant. This complaint was marked to Inspector of Police, CBI, Shimla Branch for verification, whereupon Inspector of Police had contacted complainant Ved Pal Jangra and had managed to record the conversation of complainant Ved Pal Jangra and petitioner on two occasions, leading to the conclusion that petitioner was demanding commission, to be collected through co-accused Hans Raj, from the complainant Ved Pal Jangra, whereupon Inspector of Police had recommended registration of regular case under Section 7 of the PC Act against petitioner and in consequence thereto FIR No. RC0962017A0003, dated 19.4.2017 was registered in Police Station CBI, Shimla and after joining two independent witnesses, a trap was laid, wherein petitioner was apprehended red handed and on completion of investigation, challan/final report (Annexure P-2) was submitted before the Special Judge, CBI, Shimla, who, after going through the record, had framed charges against petitioner vide order dated 21.11.2018 (Annexure P-3). 3. It is undisputed fact that petitioner has been working as Junior Engineer in Cantonment Board Subathu (herein after referred to as Cantonment Board). 3. It is undisputed fact that petitioner has been working as Junior Engineer in Cantonment Board Subathu (herein after referred to as Cantonment Board). Grievance of the petitioner is that he is not a Central Government employee and, therefore, irrespective of extension of power and jurisdiction of CBI, with consent of Government of Himachal Pradesh, to the whole of State of Himachal Pradesh for investigation of offences under the PC Act, the CBI was not having any power and jurisdiction to register FIR against him and to launch criminal proceedings by filing final report in pursuance thereto and further that despite raising this issue, learned Special Judge, after rejecting plea of the petitioner, vide order dated 21.11.2018, ordered to frame charge against petitioner whereby for failing to consider the said plea in right perspective, he has committed illegality by rejecting the plea of petitioner. 4. Mr.B.C. Negi, learned Senior Advocate, for the petitioner, referring decision of learned Single Judge of this High Court, dated 9.1.2013, passed in CWP No. 1040 of 2011, titled as Amrish Jolly Vs. Union of India and others , preferred by petitioner, has pointed out that conditions of service of petitioner are regulated under the Cantonment Fund Servants Rules, 1937 and referring Section 11 and other provisions of the Cantonments Act, 2006 it is canvassed that Cantonment Board is an independent body corporate, having perpetual succession and a common seal with power to acquire and hold property both movable and immovable and to contract and having right to sue and to be sued by the said name, and as per Section 10 of the Cantonments Act , every Board shall be deemed to be a municipality under clause (e) of Article 243P of the Constitution of India. Referring provisions of Chapter V of the Cantonments Act, 2006, dealing with Taxes and Fees, it is contended that as per provisions of Sections 66 to 74, Board has power of impose, collect and utilize the taxes and fees for the purposes of Cantonments Act and the Cantonment Board has been empowered to impose property taxes, tax on trades, professions callings and employments and in addition to the taxes, the Cantonment Board can also impose any tax, which under any enactment for the time being in force may be imposed in any municipality of the State, in which the cantonment is situated. Inviting attention of this Court to Chapter VI, dealing with Cantonment Funds and Property of Cantonment Board, it is pointed out that there is provision for forming of a cantonment fund and cantonment development fund for every cantonment and custody of these funds has been assigned to the Cantonment Board and being an independent entity, Section 121 of the Cantonments Act also empowers a Cantonment Board to borrow money from any other Cantonment Board by passing a resolution for that and, therefore, it is argued that the identity of Board, independent of Central Government, is undoubted. 5. To substantiate the plea of independent identity of Cantonment Board, on the basis of above referred provisions of Cantonments Act, reliance has also been put on the judgment passed by the Apex Court in Union of India and others Vs. Shri R.C. Jain and others, reported in (1981) 2 SCC 308 . 6. Referring office memorandum of Ministry of Defence, Government of India vide letter No. 25/63/C/L&C/67, dated 28.10.1967, issued with reference to Rule 1 of Cantonment Fund Servants Rules, 1937 , it is argued that Ministry of defence has already clarified that the Cantonment Fund Servants are not Central Government servants and therefore, they are not governed as a rule by the order/instruction issued by the Ministry of Defence, from time to time for the defence civilian employees, unless they are extended to the Cantonment Board employees with the prior approval of the Ministry of Defence. In this regard a judgment of the Apex Court in General Officer Commanding-in-chief and another Vs. Dr. Subhash Chandra Yadav and another, reported in (1988) 2 SCC 351 , has also been referred, wherein it is held that Cantonment Boards are statutory and autonomous body, controlled entirely by the Cantonments Act and each Cantonment Board is an independent body functioning within its limited jurisdiction and the Board is the appointing authority of the employees and the service under Cantonment Board is not centralized service nor is it a service at the State level. 7. To negate the power of jurisdiction of CBI to investigate under the PC Act against an employee of Cantonment Board, reliance has also been placed on the judgment dated 21.9.2016 passed by High Court of Uttarakhand at Nainital in Writ Petition (Criminal) No. 411 of 2015, titled as Randhir Singh Vs. 7. To negate the power of jurisdiction of CBI to investigate under the PC Act against an employee of Cantonment Board, reliance has also been placed on the judgment dated 21.9.2016 passed by High Court of Uttarakhand at Nainital in Writ Petition (Criminal) No. 411 of 2015, titled as Randhir Singh Vs. Central Bureau of Investigation & others , wherein FIR lodged by the CBI against an employee of a school in Cantonment Board, Dehradun was quashed with clarification that CBI can investigate into the matter, but only with concurrence with of State Government, if it is so advised. 8. Lastly, referring judgments of the Apex Court in State of Bihar Vs. Ramesh Singh, reported in (1977) 4 SCC 39 ; Union of India Vs. Prafulla Kumar Samal and another, reported in (1979) 3 SCC 4 ; Supdt. And Remembrance of Legal Affairs, West Bengal Vs. Anil Kumar Bhunja and others, reported in (1979) 4 SCC 274 and Vinay Tyagi Vs. Irshad Ali alias Deepak and others, reported in (2013) 5 SCC 762 , it is contended that learned Special Judge has failed to consider the fact that lodging of FIR as well as filing of final report by CBI to initiate Criminal Proceedings against petitioner, was not permissible under law for want of power and jurisdiction of CBI to investigate against the petitioner and learned Special Judge has wrongly presumed extension of power and jurisdiction of CBI to investigate the matter and as registration of FIR and launching of prosecution was without any empowerment and jurisdiction, learned Special Judge had no reason to form an opinion that the petitioner has committed an offence, because registration of FIR and filing of final report without any power and jurisdiction is nullity. 9. Mr.Anshul Bansal, Advocate, learned counsel for CBI has vehemently opposed the plea taken by the petitioner by contending that petitioner was an employee of Cantonment Board, on the date of commission of offence reported by the complainant to CBI and the Cantonment Board is under control of Central Government and, therefore, CBI has power and jurisdiction to investigate the present case against the petitioner on the basis of complaint dated 17.4.2017 filed by complainant. He has pointed out that as per Section 2(b) of the Cantonments Act , the 'Board' means a Cantonment Board constituted under this Act and Section 2(y) of the Act defines the 'Government', in relation to Cantonments Act, as Central Government and Section 24 of the Act provides appointment of Chief Executive Officer, by the Central Government or by a person authorized by the Central Government, for every Cantonment and the employees of Board work under the Chief Executive Officer of the Cantonment Board. He further submits that according to Section 36 of the Cantonments Act , every member of the Board shall be deemed to be public servant within the meaning of Section 21 of Indian Penal Code and Section 2(c) of the PC Act as also provided in Section 38 of the Cantonments Act that cantonment employees, permanent or temporary of a Board, shall be deemed to be a public servant within the meaning of Section 21 of the Indian Penal Code and Section 2(c) of the PC Act. 10. To substantiate the plea that petitioner is a Central Government employee, learned counsel for the respondent-CBI has referred letter dated 25.2.2019 (Annexure R-1), wherein an information has been supplied by Chief Executive Officer of Cantonment Board, Subathu that funds issued by the Central Government, in the shape of grant-in-aid, in favour of Cantonment Board, Subathu, are used for payment of pay and allowances to Cantonment Board employees, pension and other essential amenities and during period from January 1989 till date, the said funds have been utilized for the said purposes. To establish power and jurisdiction of CBI, to investigate the matter, notification dated 2.8.2019 (Annexure R-2), issued by the Government of Himachal Pradesh (Vigilance Department), notifying the consent of Himachal Pradesh Government to extend the power and jurisdiction of CBI to investigate the offence under the PC Act against the officials and officers of Central Government Departments and other Central Institutions, located in territory of Himachal Pradesh, has been referred along with order dated 3.8.1989 (Annexure R-3) passed by Government of India, Ministry of Personnel, P.G. and Pensions, Department of Personnel and Training, whereby for the consent of State Government of Himachal Pradesh power and jurisdiction of CBI was extended to whole of State of Himachal Pradesh for investigating of offences under the PC Act. 11. 11. Learned counsel for respondent-CBI relying upon the information, placed on record as Annexure RA-1 filed with counter affidavit dated 18.6.2019, received from Directorate of Defence Estate in light of Cantonments Act, 1924, Cantonments Act, 2006 and Cantonment Funds Servants Rules, 1937, has contended that Cantonment Board is a Central Government institution and therefore, CBI has power and jurisdiction to investigate the case against employees of Cantonment Board, who commits crime under the PC Act. 12. As per Section 2(c) of the PC Act, any person in service or pay of Government, any person in the service or pay of a local authority, any person in the service or pay of a corporation established by or under a Central, Provincial or State Act, or an authority or a body owned or controlled or aided by the Government or a Government Company as defined in Section 617 of the Companies Act, 1956 , is also included in the definition of 'public servant'. 13. Undisputedly, petitioner is an employee of Cantonment Board, which is a local authority as provided under Section 10 of the Cantonments Act and defined under clause (e) of Article 243 P of Constitution of India. Section 11 of the Cantonments Act provides that every Cantonment Board shall be a body corporate, then being employees of a body corporate established under the Cantonments Act, enacted by the Central Government, such employee also comes under the definition of 'public servant' for the purpose of PC Act. 14. The Cantonments Act is a Central Government enactment and Section 3 of the said Act defines 'Cantonments' as a place or places along with boundaries in which any part of the Forces is quartered or which, being in the vicinity of any such place or places, is or are required for the service of such Forces, declared by the Central Government by a notification in the Official Gazette, to be a cantonment for the purposes of this Act and Section 4 of the Act empowers the Central Government to alter the limits of the cantonments and Sections 6 and 7 provide that balance cantonment fund, cantonment development fund or other property of the Cantonment area which ceased to be a cantonment or ceased to be included in a cantonment, vests in the Central Government. Section 12 of the Cantonments Act provides constitution of four categories of Cantonment Board and in all these categories, Officer Commanding the station or any other Officer under direction of the Central Government, shall be ex officio member of the Cantonment Board along with other members including military officer and under Section 13 , Central Government is empowered to vary the constitution of Board in special circumstances and Section 19 of the Cantonments Act provides that Officer commanding the station or other military officer in his place shall be the President of the Board in all categories of the cantonment. Section 24 of the Cantonments Act provides appointment of Chief Executive Officer for every cantonment by Central Government or by the member authorized by the Central Government. Section 57 of the Cantonments Act empowers Central Government to review any decision or order of the Board or General Officer Commanding- in-Chief, the Command, and pass such order thereon as it may be deemed fit. As per Section 10 of the Cantonments Act, every Board is to be deemed municipality for the purposes of receiving grant and allocation or implementing the Central Government schemes of social welfare, public health, hygiene, safety, water supply, sanitation, urban renewal and education. 15. No doubt, Chapter V of the Cantonments Act empowers the Board to impose taxes for the purposes of Cantonments Act, but only with the previous sanction of the Central Government. 16. Above referred provisions are some of those provisions of Cantonments Act, which are sufficient to establish that Cantonment Board is an independent body corporate constituted by the Central Government, deemed to be a municipality under clause (e) of Article 243P of the Constitution. On perusal of entire scheme of Cantonments Act, and also from the documents placed on record, it is evident that Cantonment Boards are institutions under control of Central Government, established and incorporated under Sections 10 and 11 of the Cantonments Act, which is a Central Act, therefore, employees of Board are the persons belonging to an institution concerning affairs of Central Government. 17. 17. Undisputedly, as observed in Shri R.C. Jains case supra, Cantonment Board enjoys a considerable degree of autonomy and is an independent body Corporate and acts as a municipality for the area of cantonment for certain purposes, but despite that it is subjected to control of Central Government and an institution performing the functions, which are concerning affairs of Central Government. 18. CBI has been established under The Delhi Special Police Establishment Act, 1946 (for short the DSPE Act), wherein Section 3 provides that Central Government may by notification in the Official Gazette, specify the offences or classes of offences which are to be investigated by the DSPE/CBI and Section 5 of the DSPE Act empowers the State to extend the powers and jurisdiction of DSPE/CBI to other areas including in the State, but with rider, as provided under Section 6 of the DSPE Act , that such extension of power and jurisdiction in any area in a State, shall not be without the consent of Government of that State. 19. With respect to State of Himachal Pradesh, Government has already notified the consent for extension of power and jurisdiction of DSPE/CBI to make investigation in respect of offences under the PC Act against the officials/officers of Centre Government Departments and other Central Institutions located in territory of Himachal Pradesh and in sequel thereto Central Government exercising the powers under Section 5 read with Section 6 of the DSPE Act has extended the power and jurisdiction of DSPE/CBI to State of Himachal Pradesh (Annexures R-1 and R-2). 20. Cantonment Board, Subathu is situated in State of Himachal Pradesh, which is an institution controlled by and concerning the affairs of Central Government and petitioner is an employee of the said Institution. Therefore, CBI is having power and jurisdiction to register a case against him under the PC Act and on conclusion of investigation, to file final report in the Court and the learned Special Judge has committed no mistake by rejecting the plea of the petitioner that CBI was not having power and jurisdiction to investigate the case against him. 21. Therefore, CBI is having power and jurisdiction to register a case against him under the PC Act and on conclusion of investigation, to file final report in the Court and the learned Special Judge has committed no mistake by rejecting the plea of the petitioner that CBI was not having power and jurisdiction to investigate the case against him. 21. From the aforesaid discussion, it is evident that pronouncements of the Apex Court in Ramesh Singh, Prafulla Kumar Samal and Anil Kumar Bhunja cases supra , re-iterating the tests and consideration to be applied by the Court at the stage of deciding the matter under Section 227 or Section 228 of Cr.P.C., by stating that at that stage Court is not to see whether there is sufficient ground for conviction of the accused or whether trial is sure to end in his conviction, but at that initial stage, if there is a strong suspicion which leads the Court to think that there is a ground to presume that accused has committed an offence, then Court has to frame the charges for commission of that offence and such presumption of guilt of accused is only for the purpose of deciding prima facie whether the Court should proceed with the trial or not and further that in case the evidence proposed to be adduced by the prosecution to prove guilt of the accused, even if, fully accepted before it is challenged in cross-examination or rebutted by the defence evidence, cannot show that accused has committed the offence, then there will be no sufficient ground for proceeding with the trial. In present case, from the material on record, it cannot be said that ex facie, there is no sufficient ground to presume the commission of offence by the petitioner. Therefore, framing of charges by learned Special Judge is neither illegal nor erroneous. The presumption of learned Special Judge is in consonance of ratio of law laid down by the apex Court in Vinay Tyagis case supra. 22 Observations of the Apex Court in Subhash Chandra Yadavs case supra that service in Cantonment Board is neither centralized service nor is it a service at the State level, is with reference to the context therein. 22 Observations of the Apex Court in Subhash Chandra Yadavs case supra that service in Cantonment Board is neither centralized service nor is it a service at the State level, is with reference to the context therein. In that case the employee was transferred from one Cantonment Board to another, whereupon it was held by the Apex Court that Central Government has power to frame rules about the transfer of servants of the Cantonment Board within the region in respect of which the said Board has jurisdiction, i.e. that an employee could be transferred from one hospital of a Cantonment Board to another hospital under the same Board, but the Cantonment Act does not authorize the Central Government to frame rules of transfer from one Cantonment Board to another. Therefore, ratio of law in that case is not applicable in present case, as the observation of the Apex Court was in different context. 23. In Randhir Singhs case supra, High Court of Uttrakhand had quashed the FIR and Criminal Proceedings against the petitioner therein, who was serving in Cantonment Girls Inter College. No doubt petitioner therein was an employee in the College in the Cantonment, but in that case was established on record that the said College was under complete control of State of Uttrakhand and petitioner therein was not found to be an employee of an organization under control of Central Government, rather College was established under the U.P. Act 1921 and thereafter, on creation of State of Uttrakhand, said institution was being run under the School Education Act, 2006 by the State of Uttrakhand and there was an affidavit on record, filed on behalf of State of Uttrakhand, in that case that the said College was under complete control of State Government, as a fully Government grant-in-aid institution, vide Government Notification dated 20.9.1995 and not only the syllabus of the school and the examination of the institution were being maintained by the School Education and Examination Board, Ramnagar, but payments of salary to the staff and teachers were also being provided under Section 52(1) of the School Education Act, 2006 on the basis of grant-in-aid. Therefore, on facts, judgment of Uttrakhand High Court in Randhir Singhs case is not applicable in present case. 24. Therefore, on facts, judgment of Uttrakhand High Court in Randhir Singhs case is not applicable in present case. 24. Before, parting, it is also clarified that existence of power and jurisdiction of CBI to the State of Himachal Pradesh with respect to investigate against Officers/officials of Central Government or institutions concerning affairs of Central Government, does not mean that jurisdiction of State Police to investigate such matters, has been excluded. There is concurrent and coextensive power and jurisdiction of CBI as well as State Police in such matters, however, to avoid any conflict and duplication of efforts, an administrative arrangement has been arrived at by the CBI with the State Police Forces, which has been incorporated in Chapter 1 of Central Bureau of Investigation (Crime), Manual, 2005, especially in clauses 1.10 to 1.15 thereof, and this issue has been dealt with by this Court in Cr.MMO No. 307 of 2016, titled as Sudha Gupta Vs. State of H.P., decided on 4.1.2020 in detail, wherein after referring pronouncements of the Apex Court, it has also been observed that illegal or defective investigation is not fatal for the prosecution in case other plausible evidence is available on record with respect to commission of offence and for illegal, irregular, defective or faulty investigation no prejudice has been caused to the accused. 25. For the forgoing observations, I find no merit in the petition and the same is dismissed, in aforesaid terms, along with pending application, if any.