CRL.REV.P. 834/2005 & CRL.REV.P. 848-49/2005 Page 1 of 32 14. * IN THE HIGH COURT OF DELHI AT NEW DELHI + CRL.REV.P. 834/2005 Judgment delivered on : September 3rd , 2009 M.M. Singh ..... Petitioner Through : Mr. Sandeep Sethi, Sr. Adv. with Mr. Santosh Mishra, Adv. versus STATE through CBI ..... Respondent Through : Mr. Harish Gulati and Mr. A. Malhotra, Advs. [2] CRL.REV.P. 848-49/2005 R.P. Singh & Another ..... Petitioners Through : Mr. Sandeep Sethi, Sr. Adv. with Mr. Santosh Mishra, Adv. versus STATE through CBI ..... Respondent Through : Mr. Harish Gulati and Mr. A. Malhotra, Advs. CORAM: HON'BLE MR. JUSTICE G.S.SISTANI 1. Whether reporters of local papers may be allowed to see the Judgment ? Yes 2. To be referred to the Reporter or not? Yes 3. Whether the Judgment should be reported in the Digest? Yes G.S.SISTANI, J. 1. Both the petitions are directed against a common order dated 17.8.20005 and order of charge dated 29.8.2005, passed by the learned Special Judge in FIR No.RC-4(A)/98/ACU VIII, under Section 109 of the Indian Penal Code 1860, and Section 13(2) read with Section 13(1)(e)of the Prevention of Corruption Act. Both the petitions were argued together and with the consent of counsel for the parties, the same are being disposed of by this CRL.REV.P. 834/2005 & CRL.REV.P. 848-49/2005 Page 2 of 32 common order. 2. The necessary facts for the disposal of the present petitions are that: a case was registered against the petitioners under Section 13(2) read with Section 13 (1)(e) of the Prevention of Corruption Act. It was alleged that Shri M.M.Singh (petitioner in Crl.Rev.P.No.834/2005), while working as Senior Deputy Director (Quality), corporate office of Steel Authority of India Ltd. has amassed assets worth over Rs.98.0 lacs during the period of January, 1990 to December, 1995, and the same are disproportionate to his known sources of income. During the course of investigation, Shri R.P.Singh and Shri Sharat Chandra Singh (petitioners in Crl.Rev.P.No.848-49/2005), father and brother (respectively) of Shri M.M.Singh, were also made accused persons, as according to the investigating officer, movable and immovable properties had also been bought in their names. It was alleged that the total income during the check period of the petitioner (Shri M.M.Singh) and other individuals from salary, agricultural land, pensions and from other investments, came to Rs.59,17,820.63. The total expenditure of the petitioner and other members of the family was calculated as Rs.2,76,045/-. The assets both movable and immovable have been shown as amounting to Rs.1,28,63,942.58/-. Accordingly, assets disproportionate to the income have been calculated to the tune of Rs.72,22,166.95/0. Learned trial Court in pursuance of the charge-sheet filed by the CBI, initiated proceedings against the accused persons. And simultaneously, a departmental enquiry was initiated against the CRL.REV.P. 834/2005 & CRL.REV.P. 848-49/2005 Page 3 of 32 petitioner (Shri M.M.Singh). Vide order dated 17.8.20005, the learned Special Judge of the criminal Court, held that a prima facie case was made out against the three accused persons (petitioners herein) and vide order dated 29.8.2005 charges were framed against the three accused persons. 3. It is contended by learned senior counsel for the petitioners that an exhaustive inquiry was conducted by the Investigating officer in the departmental inquiry and the investigating officer in the CBI had also appeared as a management witness. After a detailed inquiry, Disciplinary Authority vide order dated 2.7.2004 exonerated the petitioner (Shri M.M.Singh) of the charges. It is submitted that the impugned order dated 17.8.2005 and order on charge dated 29.8.2005 are perverse and suffer from non- application of mind and irregularities. It is contended that while framing charges against the petitioners, learned trial court has failed to consider or appreciate the settled proposition of law that framing of charge is a very serious matter and should not be done lightly or as a matter of course. 4. It is next contended by learned senior counsel for the petitioners that the trial court may frame charge only in the discerning few cases where on the basis of the material adduced by the prosecution there arises in the opinion of the trial court ―grave suspicion‖ of the complicity of the accused. The trial court can only determine the grave suspicion on the basis of the material on record and by application of mind. The court is duty bound to scrutinize the material on record and then to determine whether or not there is a strong possibility of conviction of the accused at CRL.REV.P. 834/2005 & CRL.REV.P. 848-49/2005 Page 4 of 32 the conclusion of trial. It is contended that in this case, the trial court has failed to apply its mind and without appreciating the material on record, has framed the charges. It is contended that the trial court fell in serious error in routinely clubbing the assets of all the accused persons and then arriving at the conclusion of disproportionate assets. 5. Learned senior counsel for the petitioners has strongly urged before this Court that the trial court failed to appreciate in the right perspective the exoneration of petitioner (Shri M.M.Singh) by the inquiry officer in the departmental proceedings. It is stated that the trial court has erred in discharging the report of the inquiry officer on the plea that the charges framed in the departmental proceedings are different from the charges framed in the criminal prosecution. He further submits that the trial court has failed to appreciate the essence of the finding of the inquiry officer and it is not enough that the charges are simply compared. Result of the finding of the inquiry officer would show that he has gone into and adjudicated the matter for purchase of assets by the petitioners vis-a-vis, the income and assets in the hands of all other accused. Therefore, the said finding has substantial bearing in determining whether or not charges are to framed against the petitioners. 6. It is strongly urged that the standard of proof required in departmental proceedings which are of civil nature, is far lower than the standard required in criminal proceedings. The standard of proof in departmental proceedings is preponderance of possibilities, while in criminal prosecution it is 'beyond CRL.REV.P. 834/2005 & CRL.REV.P. 848-49/2005 Page 5 of 32 reasonable doubt'. It is trite law that finding of a civil proceedings is binding on the criminal proceedings and not vice– versa. In support of his plea learned counsel has relied upon the decision in the case of P.S. Rajya Vs. State of Bihar, reported at (1996) 9 SCC 1, in which the question that came up for consideration before the Apex Court was whether it was justified in prosecuting the appellant under section 5(2) read with section 5(i)(e) of the Prevention of Corruption Act, 1947, notwithstanding the fact that on identical charges, the appellant had been exonerated in the departmental proceedings. It will be useful to reproduce relevant paragraphs: ―17. At the outset we may point out that the learned Counsel for the respondent could not but accept the position that the standard of proof required to establish the guilt in a criminal case is far higher than the standard of proof required to establish the guilt in the departmental proceedings. He also accepted that in the present case, the charge in the departmental proceedings and in the criminal proceedings is one and the same. He did not dispute the findings rendered in the departmental proceedings and the ultimate result of it. On these premises, if we proceed further then there is no difficulty in accepting the case of the appellant. For if the charge which is identical could not be established in a departmental proceedings and in view of the admitted discrepancies in the reports submitted by the valuers one wonders what is there further to proceed against the appellant in criminal proceedings. In this context, we can usefully extract certain relevant portions from the report of the Central Vigilance Commission on this aspect. ―Neither the prosecution nor the defence has produced the author of various reports to confirm the valuation. The documents cited in the list of documents is a report signed by two engineers namely S/Sh. S.N. Jha and D.N. Mukherjee whereas the document brought on record (Ex. S-20) has been signed by three engineers. There is also difference in the estimated value of the property in the statement of imputation and the report. The document at Ex. S- 20 has been signed by three engineers and the property has been valued at Rs. 4,85,000 for the CRL.REV.P. 834/2005 & CRL.REV.P. 848-49/2005 Page 6 of 32 ground floor and Rs. 2,55,600 for the second floor. A total of this comes to Rs. 7,40,900 which is totally different from the figure of Rs. 7,69,800 indicated in the statement of imputation. None of the engineers who prepared the valuation report though cited as prosecution witnesses appeared during the course of enquiry. This supports the defence argument that the authenticity of this document is in serious doubts. It is a fact that the Income Tax Authorities got this property evaluated by S/Sh. S.N. Jha and Vasudev and as per this report at pages 50 to 63 they estimated the properly at Rs. 4,57,600 including the cost of land Rs. 1,82,000 for ground and manezaine floor plus Rs. 2,55,600 for first floor and Rs. 20,000 for cost of land). Thus both the engineers who prepared the valuation report for income tax purposes also prepared the report for the CBI and there is no indication in the subsequent report as to why there is a difference in the value of the properly. A perusal of these two reports reveals that there is difference in the specification of the work. The valuation report prepared by Sh. S.N. Jha for ground floor for income tax purposes clearly states that the structure was having "RCC Pillars at places, brick work in cement mortar, RCC lintal, 60 cm walls, 9 inch floor height, 17.6, 8.00, 8.00 inch" but in the report for CBI which was also prepared by him the description is "RCC framed structure open warranted on three sides in the ground floor. Similarly, for the first floor it is written in the report as "partly framed structure and partly load being walls, floor heights 3.20 mm. Further Sh. S.N. Jha on page 54 of Ex. D-l had adopted a rate of Rs. 290 per sq. mtr. for ground floor and adding for extra height he had estimated ground floor including mezzanine floor at Rs. 2,02,600. But for the report at Ex. S-20 the rate has been raised to 365 per sq. mtr. There is no explanation for this increase of rate by Rs. 75 per mtr. It is also observed that for the updating of the cost of index 5-% was added to the rate of Rs. 290/as per page 55 of Ex. D-1 by Sh. S.N. Jha but this has been raised to 97% as an escalation to the cost of index in Ex. S-20 without explaining or giving the reasons therefore. It is surprising that same set of engineers have adopted different standard for evaluating the same properly at different occasions. Obviously, either of the report is false and it was for the prosecution to suitably explain it. In the absence of it the only inference to be drawn is that report at Ex-S-20 is not authentic. Since the same set of engineers have done the evaluation earlier and if subsequently they felt that there was some error in the earlier report, they should have explained CRL.REV.P. 834/2005 & CRL.REV.P. 848-49/2005 Page 7 of 32 detailed reasons either in the report itself or during the course of enquiry. Therefore, Ex. S-20 is not reliable. 23. Even though all these facts including the Report of the Central Vigilance Commission were brought to the notice of the High Court, unfortunately, the High Court took a view that the issues raised had to be gone into in the final proceedings and the Report of the Central Vigilance Commission, exonerating the appellant of the same charge in departmental proceedings would not conclude the criminal case against the appellant. We have already held that for the reasons given, on the peculiar facts of this case, the criminal proceedings initialed against the appellant cannot be pursued. Therefore, we do not agree with the view taken by the High Court as stated above. These are the reasons for our order dated 27.3.1996 for allowing the appeal and quashing the impugned criminal proceedings and giving consequential reliefs.‖ 7. It is next submitted that there is also no meeting of minds between the parties, to commit the criminal offence inasmuch as, the father and brother are self-earning members. Father of the petitioner is stated to be a retired school teacher and is getting a pension of Rs.2000/- per month. The brother is doing cultivation on the ancestral agricultural land, which would show that they had their own source of income and all the transactions were from their bank account. Both the father and the brother are income-tax assesses and had filed their income- tax returns separately. The father and brother have declared their income through VDIS Scheme in the year 1997, before the Registration of the case. It is submitted that once the father and the brother have satisfactorily explained that income was derived by them through agricultural resource as well as the fact that the father of the petitioner (Shri M.M.Singh) is a retired school teacher, and has an independent source of income and CRL.REV.P. 834/2005 & CRL.REV.P. 848-49/2005 Page 8 of 32 since there is no material on record to connect the father and brother of the petitioner to the alleged offence, the petitioners should be acquitted from the charges framed. In support of his contention, learned counsel for the petitioners has placed reliance on the case of DSP, Chennai, Vs. K. Inbasagaran reported at (2006) 1 SCC 420 wherein the accused was acquitted since in his part, he had satisfactorily established that the monies and assets recovered belonged to his wife, which she had amassed from the business run by her and there was no evidence that the assets belonged to the accused. 8. Per contra, present petitions are opposed by learned counsel for the CBI on the ground that the material on record amply points out the culpability of the petitioners. Learned counsel for the CBI submits that during the course of investigation, it was found that the father of the accused was a retired teacher and was also looking after the agricultural land and the brother was unemployed and after completing his Ph.D. in Maithily language, he was assisting his father in agriculture and the number of movable and immovable properties purchased in their names were beyond their probable income. Investigation also revealed that all the three persons entered into a conspiracy and the petitioner (Shri M.M.Singh) being a public servant purchased the properties in the name of his father and brother. As per the CBI, the petitioner had drawn a net salary of Rs.3,25,821/- during the check period. The agricultural income from all the properties was to the tune of Rs.13,85,070/- i.e. Rs.2,30,845/- per year. The total income of the accused during the check period was CRL.REV.P. 834/2005 & CRL.REV.P. 848-49/2005 Page 9 of 32 Rs.59,17,820.63. The total expenditure incurred by the petitioner during the check period was Rs.2,76,045/-. The petitioners had movable assets amounting to Rs.1,10,32,267.10/-. This figure has been derived after deducting the bank balances in the beginning of check period which was Rs.1,16,139.29. The petitioners had immovable assets amounting to Rs.18,31,675.48. It is submitted that during the investigation, the Investigating Officer had also collected the evidence about the income of each member of the family and the income from the land and properties of the family. It was found that the brother had no particular source of income and he was only assisting his father in agricultural activities. The father was a pensioner and was getting pension of Rs.2,000/- per month. He submits that in view of the fact that the family members in whose name huge assets are found, are dependent on the petitioner and they have no sufficient income to acquire the properties, all these factors and circumstance clearly show a conspiracy between the petitioners and other accused persons. Learned counsel relies upon the case of Nallamal Vs. State of Tamil Nadu, reported at 1999 (Crl.) Journal, 3967, wherein it has been laid down that even a non-public servant can be prosecuted for an offence of disproportionate assets if he abets the said offence by a public servant and keeps the property in his name, shielding the public servant from the clutches of law. It is further submitted that in this case, all the petitioners are residing in the same house and they have a common ration card, which itself would lead to a strong circumstance to infer meeting CRL.REV.P. 834/2005 & CRL.REV.P. 848-49/2005 Page 10 of 32 of minds and an agreement to commit the offence. Learned counsel also submits that Chandra Shekhar (CW-3) has revealed that all of the investment of the petitioner (Shri M.M.Singh) and his family members were made by him, using the demand draft sent by the petitioner (Shri M.M.Singh), the main accused. Even otherwise, the father and brother have no sufficient income and they were dependent on the petitioner (Shri M.M.Singh). Various bank accounts in Delhi were opened by the brother and father of the main accused while they are stated to be residing at Bihar. Purchase of flats had also been made by them in Delhi where the petitioner is residing. Learned counsel submits that the order passed by the learned trial court shows application of mind and there is no infirmity in the same. Counsel further relies upon the case of State through SPE & CBI A.P. Vs. M. Krishna Mohan & Anr. reported at AIR 2008 SC 368, para 33 of which reads as under: ―In a case of this nature where departmental proceeding was initiated only as against respondent no.2, the enquiry officer did not have the benefit to consider all the materials which could be brought on record by the Department in the light of the investigation made by a specilized investigating agency, the evidence of experts and deposition of witnesses to show that forgery of document has been committed by forging thumb impression and handwriting, we are of the opinion that exoneration of respondent no.2 in the departmental proceedings cannot lead to the conclusion that he was not guilty of commission of the offences wherefor he was charged.‖ 9. Mr.Sethi, submits that the case of State through SPE (supra) is not applicable to the facts of this case as in the aforesaid matter the investigation had not even commenced by the CBI, CRL.REV.P. 834/2005 & CRL.REV.P. 848-49/2005 Page 11 of 32 while in this case, the Inspector of the CBI had appeared as a witness and had made a statement. 10. I have heard learned counsel for the parties and carefully scrutinized the material on record. At the forefront and before analyzing the rival contentions of the parties, it would be apt to recall that a Court exercising revisional jurisdiction cannot go into intricate details as regards the merits of a matter and may interfere only when there is any illegality or material irregularity or impropriety in the order passed by the lower court. A revisional court cannot act as a court of appeal and reappraise the merits of the case. Thus this court is to consider whether the trial Court applied the law with regard to framing of charge to the facts of this case and if there is any infirmity in the impugned order. 11. The law with regard to framing of charge is well-settled. In the case of Union of India Vs. Prafulla Kumar Samal, (1979) 3 SCC 4, the Apex Court laid down broad contours on the point of framing of charge. The same are reproduced as under: ―10. Thus, on a consideration of the authorities mentioned above, the following principles emerge: (1) That the Judge while considering the question of framing the charges under Section 227 of the Code has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out. (2) Where the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained the Court will be fully justified in framing a charge and proceeding with the trial. CRL.REV.P. 834/2005 & CRL.REV.P. 848-49/2005 Page 12 of 32 (3) The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. By and large however if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused. (4) That in exercising his jurisdiction under Section 227 of the Code the Judge which under the present Code is a senior and experienced court cannot act merely as a Post Office or a mouthpiece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court, any basic infirmities appearing in the case and so on. This however does not mean that the Judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial. 12. Similar opinion was expressed in the case of State of Orissa Vs. Debendra Nath Padhi, (2005) 1 SCC 568, wherein the Apex Court held: “6. At the stage of framing charge, the trial court is required to consider whether there are sufficient grounds to proceed against the accused. Section 227 of the Code provides for the eventuality when the accused shall be discharged. If not discharged, the charge against the accused is required to be framed under Section 228. These two sections read as under: Section 227 CrPC ―227. Discharge.—If, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing.‖ Section 228 CrPC ―228. Framing of charge.—(1) If, after such consideration and hearing as aforesaid, the Judge is of opinion that there is ground for presuming that the accused has committed an offence which— CRL.REV.P. 834/2005 & CRL.REV.P. 848-49/2005 Page 13 of 32 (a) is not exclusively triable by the Court of Session, he may, frame a charge against the accused and, by order, transfer the case for trial to the Chief Judicial Magistrate, and thereupon the Chief Judicial Magistrate shall try the offence in accordance with the procedure for the trial of warrant cases instituted on a police report; (b) is exclusively triable by the court, he shall frame in writing a charge against the accused. (2) Where the Judge frames any charge under clause (b) of sub-section (1), the charge shall be read and explained to the accused, and the accused shall be asked whether he pleads guilty of the offence charged or claims to be tried.‖ 7. Similarly, in respect of warrant cases triable by Magistrates, instituted on a police report, Sections 239 and 240 of the Code are the relevant statutory provisions. Section 239 requires the Magistrate to consider ―the police report and the documents sent with it under Section 173‖ and, if necessary, examine the accused and after giving the accused an opportunity of being heard, if the Magistrate considers the charge against the accused to be groundless, the accused is liable to be discharged by recording reasons thereof. 8.