Crl. Misc.A 3314/2006 in WP(Crl.) 938/2001 Page 1 of 27 * IN THE HIGH COURT OF DELHI AT NEW DELHI + Crl. Misc. Application no. 3314/2006 in W.P(Crl) No.938/2001 % Date of Decision: 16.04.2010 Ashok Kumar Aggarwal …. Petitioner Through Mr. Ashok Bhasin Sr. Advocate with Mr.Aman Vachher, Mr.Yashraj Singh Deora and Mr.Ashutosh Dubey, Advocates Versus Union of India & Ors …. Respondents Through Mr.Pankaj Gupta, Advocate for the respondent No.1/UOI. Mr.Gopal Subramanium, Solicitor General of India with Mr.Dayan Krishnan, Advocate for the CBI. Mr.Amit Sharma, APP for the State. CORAM: HON’BLE MR. JUSTICE ANIL KUMAR 1. Whether reporters of Local papers may be allowed to see the judgment? YES 2. To be referred to the reporter or not? NO 3. Whether the judgment should be reported in the Digest? NO ANIL KUMAR, J. * 1. This is a petition under Section 482 of The Code of Criminal Procedure, 1973 for necessary directions for taking appropriate action against respondent no. 5 under the provisions of Section 340 of the Code of Criminal Procedure, 1973 for making false statement and committing perjury by filing false affidavit. Crl. Misc.A 3314/2006 in WP(Crl.) 938/2001 Page 2 of 27 2. The petitioner had filed a petition before a Division Bench of this Court under Article 226 of the Constitution of India read with Section 482 of the Code of Criminal Procedure, 1973 for issuance of a writ, order or direction in the nature of mandamus or any other writ or proper order directing the Union of India through its Secretary, Ministry of Home Affairs (respondent no. 1) and Director, CBI (respondent no. 2) to transfer investigation in cases R.C. No. SI8/E0001/99, dated 29th January, 1999 and SI9/E0006/99, dated 7th December, 1999 from respondents no. 3 to 5 to some other high ranking officials of the agency. In the said petition the petitioners had contended that respondents 3 to 5 were conducting the investigation against him unfairly and improperly and were transgressing all limits to abuse the investigative powers. According to the petitioner the investigation was being done in malafide manner. The petitioner asserted that it was never his intention that the matter be not investigated, however, he wanted that it should be handed over to impartial and senior officers of CBI. According to him the present application pertains to RCS SI9/E0006/99 dated 7.12.1999. 3. It is pertinent to notice that a case was registered on 29th January, 1999 on the basis of a written complaint of Mr.Abhijit Chakraverty, Additional Director, Enforcement Directorate, New Delhi Crl. Misc.A 3314/2006 in WP(Crl.) 938/2001 Page 3 of 27 under Sections 120B read with Sections 193, 467 & 471 of Indian Penal Code against unknown officers of Delhi zone of Enforcement Directorate on the ground that Sh.Subhash Chand Barjatya was framed in a FERA case on the basis of a forged fax message purportedly from the Swiss Bank Corporation, Zurich, Switzerland which reflected a transaction of US $ 1,50,000/- from the account of Royalle Foundation, Zurich, Switzerland. It was alleged that Sh.Barjatya was illegally detained and the file related to Sh.Barjatya was created by back dating the entries after the searches. 4. The petitioner is an IRS officer of 1985 batch, had worked as Deputy Director, Delhi zone, Enforcement Directorate, New Delhi during the relevant period and he was transferred out on 31st December, 1998 and posted as Deputy Secretary, Department of Revenue, Ministry of Finance, New Delhi (awaiting posting). The investigation had revealed that on 25th December, 1997 the petitioner and Sh.Abhishek Verma (another person) had allegedly conspired to frame Sh.Barjatya in a FERA case and on the advice of the petitioner, the debt advice of Swiss Bank Corporation was allegedly forged and transmitted on the fax machine of Mr.Barjatya. The allegation in the circumstances against the petitioner is that by abusing his official position as a public servant he got the forged fax recovered from the fax machine of Sh.Subhash Crl. Misc.A 3314/2006 in WP(Crl.) 938/2001 Page 4 of 27 Barjatya by organizing search on 1st January, 1998 which was also used to detain Sh.Barjatya illegally from 1st January, 1998 till the evening of 2nd January, 1998. The allegation against the petitioner is also that he demanded and accepted an illegal gratification of Rs.10 lakhs from the co-accused Sh.Abhishek Verma. 5. The allegation against the petitioner is also that at his instance the file relating to Barjatya was created by back dating the entries in the file and his role was that of a main accused, who is a senior officer and while holding a position in law enforcement, had abused his official position as public servant by demanding and accepting illegal gratification. The co-accused in his confessional statement before the Magistrate under Section 164 of the Criminal Procedure Code corroborated with the documentary evidence. The petitioner appeared before the Investigating Officers till the co-accused confessed to the crime on 2nd December, 1999. Thereafter, petitioner is alleged to have gone underground and submitted an application to his department for sanction of his earned leave and remained underground without awaiting the sanction of his leave. Being a senior officer, he had knowledge about the manner and means which are employed by the investigating agencies for locating an absconder. Therefore, with grave Crl. Misc.A 3314/2006 in WP(Crl.) 938/2001 Page 5 of 27 difficulty he was arrested from a hotel on 23rd December, 1999 where he was living under an assumed name of `Ravi Garg‟. 6. The allegation against the petitioner is also that he tried to intimidate Sh.Barjatya in January, 1999 to withdraw his complaint against him and also intimidated co-accused Abhishek Verma. According to the respondents, the case of the petitioner is a case of exemplary corruption in high places and high handedness of a senior Government official in illegally framing a person in a criminal case. 7. Though the allegation of the respondent is that the petitioner was arrested from a hotel where he was living under the assumed name of Ravi Garg, however, petitioner alleged in the writ petition filed by him that the respondent Nos.4 & 5 had arrested him and his younger brother on 19th December, 2000. Petitioner alleged that his arrest before review of his suspension reflects malafide. The petitioner also alleged that investigating officer of petitioner in RC No.SIU 8/E0001/99 dated 29th January, 1999 is respondent No.4 whereas respondent No.5 is the Investigating Officer in RC No.SIU9/E0006/99 dated 7th December, 1999 and these respondents are hand in glove with respondent No.3 who is bent upon to implicate the petitioner by planting the evidence. It was alleged that the said respondents were forging documents to Crl. Misc.A 3314/2006 in WP(Crl.) 938/2001 Page 6 of 27 implicate the petitioner in false cases and were exercising the investigative power in a malafide manner. It was also contended that he had reasonable apprehensions that he would not get a fair deal from the above said officers of CBI and, therefore, the investigation should be transferred to some other high ranking official of the CBI. Petitioner, therefore, prayed for transferring investigation of cases from respondent Nos.3 to 5 to some other high ranking officials and to provide security to him for protection of his fundamental rights. 8. During the course of the hearing, on being pointed out by the CBI counsel that the Investigating Officers had completed the investigation report, this Court had passed an order dated 4th April, 2002 directing the competent authority of CBI to file an affidavit to show the investigation status in the two RCSs. In response to the above said order, affidavits were filed on behalf of respondent no. 2, by respondents no. 4 and 5, dated 5th April, 2002, wherein it was stated that the Director, CBI had passed appropriate orders in RC S18 1999E 0006 and had forwarded the matter to Revenue Secretary and other concerned authorities for requisite orders/action, and in RC S19 1999 0006 the Joint Director was presently seized of the matter and it was yet to be submitted to the Director, CBI for necessary investigation. In view of the above mentioned affidavits this Court disposed of the Crl. Misc.A 3314/2006 in WP(Crl.) 938/2001 Page 7 of 27 petition by an order dated 9th April, 2002. The relevant part said order is as under- “…… By Court order dated 4.4.2002, competent authority of CBI was directed to file an affidavit to show the investigation status in two RCs. In response, two affidavits have been filed on behalf of R-2 disclosing that Director, CBI had passed appropriate orders in RCS 18/99 and had forwarded the matter to Revenue Secretary and other concerned authorities for requisite orders/action. In the other case, RCS-19, however, the Joint Director was presently seized of the matter and it was yet to be submitted to Director, CBI for necessary investigation. In view of this position, both sides agree to the disposal of this petition by the following order:- “Revenue Secretary and/or other concerned authorities who are seized of RCS 18/99 are directed to examine and consider the record of investigation fairly and objectively taking in regard all relevant factors and circumstances and then pass appropriate orders under law within two months from receipt of this order. Director CBI is also directed to examine the investigation record of RCS 19/99 and to consider all relevant aspects and factors in the light of petitioner‟s complaints and then to pass appropriate orders under law in the matter within two months from receipt of this order.” Sd/- (B.A.KHAN) JUDGE Sd/- (V.S.AGGARWAL) APRIL 09,2002 JUDGE” Crl. Misc.A 3314/2006 in WP(Crl.) 938/2001 Page 8 of 27 9. Pursuant to the order dated 9th April, 2002 when the matter was pending consideration before the Joint Director, the Director CBI duly examined the investigation record in terms of the direction of this Court. It was opined by the Director CBI that the investigation had been done objectively and impartially. He also directed to send the report of the Superintendent of Police to the competent Authority for seeking sanction for prosecution and that the letter of Rogatory should be pursued diligently. Pursuant to this, sanction was granted and charge sheet was filed by the CBI against the petitioner on 5th December, 2002 and cognizance was taken on 10th January, 2003. 10. The present petition under Section 482 of The Code of Criminal Procedure, 1973 for necessary directions for taking appropriate action against respondent no. 5 under the provisions of Section 340 of the Code of Criminal Procedure, 1973 for making false statement and committing perjury by filing false affidavit was filed on 3rd April. 2006. The petitioner has alleged that respondent no. 5 had intentionally misled this Court by making a false statement on 4th April, 2002 that the investigation in the case, FIR No. SI9/E0006/1999, had been completed by him and by filing a false affidavit dated 5th April, 2002 to the same effect. It is contended that in the affidavit respondent no. 5 had specifically stated that the Final report Part I in the said RC was Crl. Misc.A 3314/2006 in WP(Crl.) 938/2001 Page 9 of 27 submitted by him to the Superintendent of Police SIU-IX Branch of CBI on 11.01.2002 and on 11.01.2002 itself, the Supdt. Of Police SIU-IX marked the file to the concerned Law Officer for submitting Report and the said concerned Law Officer submitted the Report to the Supdt. of Police on 25.01.2002. Thereafter, the Supdt. Of Police submitted his comments to Dy. Inspector General of Police on 10.03.2002 and thereafter, Dy. Inspector General of Police marked the file to the Dy. Legal Adviser for his comments on 01.03.2002 who submitted his comments to Dy. Inspector General of Police on 11.03.2002 and thereafter, the Dy. Inspector General of Police submitted his comments to the Joint Director on 22.03.2002 whereafter, the matter was pending scrutiny with the Joint Director and after receipt of the file, the same was to be forwarded to the concerned Ministry, Chief Vigilance Commissioner and the parent department of the petitioner for further necessary action. 11. The petitioner has contended that even though respondent no. 5 had averred in his affidavit dated 5th April, 2002 that the investigation in the case FIR No. S19/E0006/1999 is complete and the final report has been filed by him, it is apparent from the charge sheet filed on 5th December, 2002 that respondent no. 5 has recorded the statements of 13 witnesses, i.e. PWs 276 to 278 and PWs 340 to 349 after filing the Crl. Misc.A 3314/2006 in WP(Crl.) 938/2001 Page 10 of 27 above said affidavit and getting the writ petition disposed off. It is further contended that respondent no. 5 had made the statement on 4th April, 2002 and filed the affidavit on 5th April, 2002 with the sole intention of frustrating the grievance made by the petitioner for transferring of the investigation from the hands of respondent no. 5 and this tantamount to misleading the Court by making false statement and by giving false affidavit. According to the petitioner, the affidavit dated 5th April, 2002 does not state anywhere that any further investigation was required and this creates an impression that investigation was complete and no further investigation was required. According to him, the order dated 9th April, 2002 clearly reflects that an impression had been created that no further investigation was required. The present application was filed on petitioner coming to know in July, 2005 when all the documents were finally made available to the petitioner. It is also contended that if the approval of the director of CBI was given on 23.4.2002, the investigation by Respondent No. 5 after that date was illegal. The Respondent No. 5 has recorded the statements of 13 witnesses from 10.5.2002 to 16.10.2002. The plea of the petitioner is also that no names or particulars of senior officers have been given at whose instance further investigation was done after 23.4.2002. In the circumstances, it is stated that an offence under section 195 has been made out and reliance has been placed on Pritish Vs State of Crl. Misc.A 3314/2006 in WP(Crl.) 938/2001 Page 11 of 27 Maharashtra, (2002) 1 SCC 253 at para 16. The learned counsel for the petitioner has also relied on K.Karunakaran v. T.V. Eachara Warrier & Anr., (1978) 1 SCC 18, Iqbal Singh Marwah Vs Meenakshi Marwah, (2005) 4 SCC 370; Dhanajay Sharma v. State of Haryana & Ors., (1995) 3 SCC 757 and In Re. Bineet Kumar Singh, (2001) 5 SCC 501 in support of his contentions. Reliance has also been placed on Mahila Vinod Kumari Vs State of MP, (200) 8 SCC 34 and (2000) 2 SCC 367 referring to Murry & Co Vs Ashok Kr. Newatia 12. The respondents have contested the petition contending that the present petition has been filed by the petitioner much after the charge- sheet was filed against the petitioner and after cognizance has been taken. It is asserted that the present petition is merely an afterthought and is a part of a series of petitions/applications filed by the petitioner against the investigation officers in order to harass and intimidate them. It is averred that respondent no. 5 in his affidavit dated 5th April, 2002 had clearly stated that he had submitted Final Report Part-I as per the CBI manual and that the same was pending scrutiny with the Joint Director, CBI on the date of filing of the affidavit. The respondents disclosed that as per CBI Crime Manual a final report Part I is prepared setting out in detail the result of the enquiries made and the recommendation of the deputy of the action to be taken. Though this Crl. Misc.A 3314/2006 in WP(Crl.) 938/2001 Page 12 of 27 final report Part I is submitted on completion of investigation, however, it is to be submitted to the superior officers and the law officers of CBI for the assessment of the merits and demerits of the case and to facilitate the passing of final orders thereon by the competent authority. On scrutiny of the final report part I by independent law officers, the comments are given in a prescribed format of a report called “Final Report Part II”. For giving comments in a prescribed format the law officer is required to examine case diaries, statements of witnesses as well as material documents, articles etc and they have to consider the opinions and suggestions of the investigating officer as also the relevant facts. The affidavit filed by Sh.Ramnish, Investigating Officer of case RC S18 1999 E 0001 dated 5th April, 2002 reveals that on 13th April, 2000 the legal advisor had marked the file to additional advisor of legal division of CBI for its comments who had given the comments on 12th May, 2000. The legal advisor had made observation for obtaining further evidence in the case while submitting the comments to the Special Director on 16th May, 2000 and it was only thereafter, supplementary final report part I was submitted on 8th September, 2001. 13. Pursuant to the direction dated 4th April, 2002 a detailed affidavit was filed dated 5th April, 2002 explaining the mode and method by Crl. Misc.A 3314/2006 in WP(Crl.) 938/2001 Page 13 of 27 which FR-I was prepared stipulating that FR-I was submitted on 11.1.2002 to SP who had marked it to the law officer for submission of his report which is described as FR-II. On submission of FR-II by the law officer on 25.1.2002, SP made her comments and referred to the Dy. Inspector General of Police on 1.3.2002 who marked the file to the Deputy Legal advisor for his comments. Deputy Legal Advisor submitted his comments on 11.3.2002 to the DIG who submitted it to the Joint Director on 22.3.2002 and therefore, on the date of filing the affidavit it was pointed out that the matter was pending with the Joint Director. 14. During the hearing, the file with confidential noting was shown to the Court and later on even confidentiality about the movement of the file was waived. The respondents have disclosed that on 8th April, 2002, the Joint Director gave detailed comments and on 23rd April, 2002 pursuant to the order dated 9th April, 2002, the Director, CBI, gave due consideration to file and made detailed comments and direction was given to complete the loose ends. Charge Sheet was filed on 5th December, 2002. According to the respondents there was no prohibition to examine more witness after the order dated 9th April, 2002 was passed more so because the statement of only those persons who had already been mentioned earlier were recorded. Crl. Misc.A 3314/2006 in WP(Crl.) 938/2001 Page 14 of 27 15. According to the respondents, the application of the petitioner is a part of the design to jeopardize prosecution against him for possessing disproportionate assets to the tune of Rs.12,04,46,938.78 which are 7615.45% of his known sources of income. The respondents gave the details of all the witnesses including PW 276, Rajender Kumar Goenka whose name had figured in the statement of PW 107 which was recorded on 3.4.2001; PW 277, Pawan Kumar Jindal; PW 278, Rajesh Kumar Jindal; PW 340, Sardar Saranjit Singh; PW 341, Amarjit Singh Aneja; PW 342, Bijender Jain; PW 343, Chand Narain Dhar; PW 344 Sanjeev Kumar Gupta; PW 345, Devi Lal Rajan; PW 346, Dharam Pal Bansal; PW 347, Sandeep Goel; PW 348, Sunil Kansal and PW 349, Parmod Goel and why these witnesses were examined after disposal of the writ petition where it was agreed that the case was presently seized with the Joint Director and that the CBI director should examine the matter in the light of the complaint of the petitioner and then to pass appropriate orders. 16. The respondents also contended that the present petition is a disguised contempt petition. According to respondents the petition is belated and is not maintainable. The learned counsel for the Crl. Misc.A 3314/2006 in WP(Crl.) 938/2001 Page 15 of 27 respondents also contended that section 340 of the Criminal Procedure Code could be invoked only where there is a definite finding that there is an impact on the administration of justice. It is stated that Respondent No. 5 has not made any false deposition on affidavit so as to entail any consequences for perjury. The petition has been filed with a view to pressurize and intimidate the investigating officers. According to respondents application is a part of the design of the petitioner to jeopardize the prosecution against him. Disclosure of fact that FR-I was pending before the joint director was indicative of that there could be some loose ends which could be tied up according to directions by the senior officers. The Court had directed the Director of CBI to examine the investigation record and consider all relevant aspects and factors in the light of petitioners grievances and then to pass appropriate orders. The order was passed by the Director on the 23rd April, 2002 which order was not challenged by the petitioner and present petition was filed four years after that in 2006. The statements recorded after the order of Director were only to the extent of tying the loose ends. Charge sheet was filed on 5.12.202 and cognizance was taken on 10th January, 2003. The charge sheet would show that the petitioner had connived with the family members and chartered accountants and laundered his ill gotten wealth in the companies owned and operated by his family members in the form of share capital. It is further asserted that investigation has Crl. Misc.A 3314/2006 in WP(Crl.) 938/2001 Page 16 of 27 revealed that the shareholders were bogus and they had merely provided entry cheques after taking cash and commission. The petitioner is also alleged to have opened eight fictitious accounts of non existing persons. The respondents also gave the detailed reasons for recording various statements after the disposal of the writ petition in order to tie up the loose ends. 17. The learned counsel for the parties have cited various judgments during protracted arguments. It may not be necessary to deal with them in detail as they have been given in peculiar facts and circumstances of those cases. The ratio of any decision must be understood in the background of the facts of that case. What is of the essence in a decision is its ratio and not every observation found therein nor what logically follows from the various observations made in it. It must be remembered that a decision is only an authority for what it actually decides. It is well settled that a little difference in facts or additional facts may make a lot of difference in the precedential value of a decision. In Bhavnagar University v. Palitana Sugar Mills Pvt Ltd (2003) 2 SCC 111 (vide para 59), the Supreme had observed:- " It is well settled that a little difference in facts or additional facts may make a lot of difference in the precedential value of a decision." Crl. Misc.A 3314/2006 in WP(Crl.) 938/2001 Page 17 of 27 In P.S.Rao Vs State, JT 2002 (3) SC 1, the Supreme Court had held as under: ". There is always a peril in treating the words of judgment as though they are words in a legislative enactment and it is to be remembered that judicial utterances are made in setting of the facts of a particular case. Circumstantial flexibility, one additional or different fact may make a world of difference between conclusion in two cases. The Supreme Court in Bharat Petroleum Corporation Ltd and Anr. v. N.R.Vairamani and Anr. (AIR 2004 SC 778) had also held that a decision cannot be relied on without considering the factual situation. In the same judgment the Supreme Court also observed:- " Court should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. Observations of Courts are neither to be read as Euclid's theorems nor as provisions of the statute and that too