CWP No. 19927 of 2008 [1] IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH CWP No. 19927 of 2008 Date of Decision: 02.12.2008 Ajit Singh Dahiya ..Petitioner versus Director C.B.I. and others ..Respondents CORAM: HON'BLE MR. JUSTICE T.S.THAKUR,CHIEF JUSTICE HON'BLE MR. JUSTICE JASBIR SINGH 1.Whether Reporters of local papers may be allowed to see the judgment ? 2. Whether to be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest? Present : Chouhan Satvinder Singh Sisodia, Advocate for the petitioner ***** T.S.Thakur, C.J. (Oral) This petition has been filed in public interest. It prays for a mandamus directing respondent No.1 Central Bureau of Investigation to register a case against respondents No.2 to 20, who happen to be serving Officers in the Indian Army, for offences punishable under the Prevention of Corruption Act. The petitioner's case as set out in the writ petition is that he served in the Ordnance Corps of the Army till the year 1999 as a Clerk. He appears to have sought voluntarily release from the Army and got himself registered as a Contractor for supply of different items including consumable to different establishments in the Army. In the course of his CWP No. 19927 of 2008 [2] career as a registered contractor, he claims to have secured contracts for supply of different items required by the Army by offering bribe in the form of commission to Army Officers handling allotments of the said contracts. Some of these officers have been arrayed as respondents No. 2 to 20 to this writ petition. It is noteworthy that while respondents No.2 to 9 are Brigadiers serving in different formations in the Indian Army, respondents No. 10 to 19 are serving as Colonels, Respondent No. 20 is a Major. When this petition came up before us on 25.11.2008, learned counsel for the petitioner was directed to file an affidavit enumerating the contracts which the petitioner had secured for supply of various goods to the Army, the amount which he had allegedly paid towards bribe in connection with the said contracts and the names of the officers to whom such bribes were paid. The petitioner has pursuant to the said direction today filed an affidavit. In para No.2 of the said affidavit, the petitioner has stated that the real motive behind doing business with the Indian Army was to bring the corrupt officers working in the Army to book by exposing them to the rigors of law. The affidavit goes on to give details of the commission/bribe which the petitioner claims to have paid to different officers on different dates. The details are noteworthy to the extent that the commission/bribe has been paid to Col. Krishan Kumar eight times between July, 2004 to April, 2006. The petitioner alleges that out of the amount paid to Col. Krishan Kumar, 5% of the total was to go to Brig. Arjun Roy while the rest was to be taken by the remaining officers associated with the process of allotment of contracts and supply of the goods. Similarly, details about the payments allegedly made to other officers like Col. Sanjay Sethi, Col. Rakesh Walia, Col. M.K.Chaudhary, Col. K.K.Nathani, Col. S.S.Johal, Lt. Col.Sukhvir, CWP No. 19927 of 2008 [3] Lt. Col. M.K.Sharma, Lt. Col. K.Bhardwaj, Capt. Pargeet Dahasand and Col. B.S.Mavi are also given in the additional affidavit. The affidavit further states that the payments were made to the officers named in the petition as respondents on the same footing. The affidavit goes on to state that the deponent was forced to make payments as some times the payments due to the deponent were stopped and some other times the tenders were not accepted unless and until the payments were made to the officers mentioned above. The petitioner makes a self righteous assertion to allege that if his intention was to do business with the army and earn money, he could have continued doing so. He was, however, exposing the racket to bring the corruption prevailing in the Army to light. The affidavit also states that for a period of eight years i.e. from 1999 to 2006, the petitioner did a business of about Rs. 20,000,00/-, out of which a commission of Rs. 8,07,000/- went to the pockets of the officers mentioned in the affidavit. What is significant is that according to the petitioner, the corruption was prevailing not only in the regions where the petitioner was doing business but was spread over the rest of the country also. According to the estimate of the petitioner, the government is on account of prevailing corrupt system losing about Rs. 1700 Crores approximately every year. The affidavit also refers to a letter marked Annexure P-5 addressed to the Chief Justice of India who is said to have directed the CBI to register an FIR against four Officers mentioned in the same on the administrative side. The C.B.I. has accordingly registered an FIR under Sections 120-B, 420,467,468,471 IPC read with Sections 13(i)(d) and 13(2) of the Prevention of Corruption Act, 1988. A copy of the FIR has also been enclosed as Annexure P-6. CWP No. 19927 of 2008 [4] We have heard learned counsel for the petitioner at considerable length and perused the record. Apart from the fact that we seriously doubt the bonafides of the petitioner in approaching this Court in a public interest litigation, we find that the petitioner had even earlier filed Criminal Misc. No. M-52724 of 2007 for intervention of this Court in connection with a representation which the petitioner had made to the Director of the Central Bureau of Investigation. The said application was disposed by A.N.Jindal. J. by an order dated 28.8.2008 with a direction to the Director, C.B.I. to decide the representation of the petitioner within one month by a speaking order. The C.B.I. has pursuant to the said direction passed an order dated 27.9.2008, by which it has, on the basis of investigation conducted into the allegations made by the petitioner, come to a conclusion that the allegations remain unsubstantiated and do not, therefore, call for any criminal action against anyone in the Army. The Central Bureau of Investigation has also recorded that no material has been produced by the petitioner before it in support of any of his allegation. Liberty has, all the same, been reserved for the petitioner to furnish any further and specific material or information with regard to any of the allegations relating to the CBI for taking further action on the same. The relevant portion of the order passed by the Central Bureau of Investigation reads as under:- “3(i) The supply orders enclosed with the complaint are addressed to M/s R.K.Trading Co. ,3329/1, 9 Cross Road, Ambala Cantt, whose proprietor is the complainant Shri Ajit Singh Dahiya himself. On being asked as to why was it that the supply orders are in the name of his firm, the CWP No. 19927 of 2008 [5] complainant Shri Dahiya stated that it was a fact that he had obtained some supply orders from the officer-in-charge of supply orders, that he had supplied the materials at inflated rates but his intention was merely to expose the malpractice's rampant in Army. The complainant Shri Dahiya did business with the Army in 2003, 2004 and 2005 but he made the complaint in 2007. 3(ii) The items involved in the supply order made by Col. Krishan Kumar, C.O., 11 INF DOU, C/o 560, APO are of unverifiable nature. When the complainant Shri Dahiya was asked to inform the ways and means through which the difference of price/cost (Market cost and supply order cost) could be ascertained for the items mentioned in his supply order such as trouser polyester, trouser polyester cotton, he informed that it being an old matter pertaining to the year 2005, it would not be possible to ascertain the user of those clothes and thus determining the difference of cost based on its quality was impossible and in all probability, these clothes would have been worn out. The standard or quality of such items is also not available. 3(iii) Supply order and bills in respect of Dehradun, Merrut and Mathura Divisional Ordnance Units were scrutinized at the office of the Controller of Defence Account, Central Command, Merrut and the market rates of various items were also verified. These verifications did not substantiate the allegations due to the following reasons:- CWP No. 19927 of 2008 [6] a) There is no difference in prices of items such as fuel cartridge. b) For small items like bulbs, separator fuel water, the price difference was found to be marginal. c) Many items have been supplied at a much lower rate than the market price. d) Since brands have not been indicated in the supply orders and corresponding bills, it was difficult to arrive at any conclusion regarding original spares and the parts supplied by the supplier because of big price difference between branded and non-branded items. e) No supply orders/bills relating to purchase of tyres by the DOUS could be found but as indicated in the complaint, the prices were verified from the open market and it was found that there was not much difference in the prices as alleged by the complainant. Tyres and Tubes are contrary procured items which are purchased by the Army Hqrs through DGS&D rate contract in bulk. Local purchases are made only when there is an emergent requirement. f) The complainant has not indicated any specific instance of supply at higher rate. The copies of the Supply Orders enclosed by him could not be authenticated by CDA authorities since according to CWP No. 19927 of 2008 [7] them, though supply orders were placed on him, he had not supplied the items and hence the bills were not raised and they were not forwarded by DOUS to the CDA. iv) During verifications, the complainant Shri Dahiya was contracted but he could to provide any further material/specific information or documents. 4. Thus, the allegations mentioned in the complaint have not been substantiated and no material has come forth warranting criminal action. However, if the complainant has any further specific material or information with regard to any of the allegations related to corruption, he was welcome to share the same with CBI for taking further action on merits.” (emphasis supplied). Learned counsel for the petitioner strenuously argued that the petitioner was not associated with the preliminary enquiry and investigation, if any, conducted by the CBI. He submits that the CBI ought to have given the petitioner an opportunity to establish the veracity of his allegations and to provide necessary evidence that would make out a case for registration of an FIR. He further urged that the very fact that the petitioner had not filed any complaint in the year 2003, 2004 or 2005, against those, who were demanding and receiving bribe/commission from him, was not enough to suspect the petitioner's intention. He urged that petitioner could at any stage disclose the racket and demand action against CWP No. 19927 of 2008 [8] those involved in the same. He submits that if the petitioner intended only to make money, he could have continued to do so by getting benefit of the allotments made in his favour by corrupt officers after receiving bribe/commission. His intention behind filing of this petition is, therefore, totally honest and above board. We have given our careful consideration to the submissions made at the bar but find the line of reasoning advanced by the learned counsel for the petitioner wholly unacceptable. If the petitioner's intention really was to expose those in the Army indulging in corruption, one could understand that upon payment of the amount of bribe in the year 2003 itself, the petitioner would take steps to have the officers concerned caught red handed while receiving the bribe. The petitioner does not obviously do so. He slept over the matter and went on receiving contracts one after the other. According to his own admission, he illegally procured contracts for supply of goods not only in the year 2004, but in subsequent years also. He claims to have given bribe to a large number of officers not once but on different occasions for obtaining favours from them. His conscience did not obviously revolt against the racket in the year 2003 as it is alleged to have in the year 2007. He did not approach the C.B.I. or any other authority to expose those indulging in corruption. Even for the year 2005 the petitioner continued to indulge in giving bribe to the Army Officers for obtaining contracts for supply of goods. Having thus acted in a manner that have soiled his own hands it is difficult to accept that the petitioner is an honest and public spirited person who is interested in nothing exposing but corruption in the Army. The true reason behind filing of this petition appears to be different. As a contractor the petitioner appears to have failed CWP No. 19927 of 2008 [9] to bag any contracts for sometime past. It is admitted that he has no contracts presently in hand. This has turned him against the system from which he has been benefitting. We are afraid the process of law cannot be abused by him by filing the present writ petition allegedly in public interest. Even assuming that petitioner's representation to the CBI made out a case for examination, yet the CBI has done so and found no merit in the petitioner's allegations. The order passed by the CBI in compliance with the direction issued by this Court in Crl.Misc. No.52724-M of 2007 filed by the petitioner specifically noticed that the allegations made against the officers of the Army remain unsubstantiated by any material. Even before us, the petitioner has not placed any material whatsoever to suggest that he had in deed made any payment to any Army officer as alleged by him towards bribe/commission. All that was argued on behalf of the petitioner was that the petitioner was not given an opportunity to produce such material. We fail to appreciate that if the petitioner does not produce any material before the CBI nor even before this Court, how can he make any grievance against denial of an opportunity to produce the said material. Be that as it may, the CBI has in specific words ordered that if the petitioner has any specific material or information with regard to any of the allegations concerning corruption within the Army, he is welcome to share the same with it in which event the CBI would evaluate the said information and taken such action as may be warranted by law against those guilty. The petitioner has, in the light of the said observation made in the order passed by the Director, no real reason to make any grievance in this writ petition. This writ petition is in the light of above, an utter abuse of the process of law and is accordingly dismissed with costs assessed at Rs.10000/- which CWP No. 19927 of 2008 [10] shall be deposited in the Punjab and Haryana High Court Legal Services Committee within four weeks, failing which steps be initiated for recovery of the said amount. (T.S.THAKUR) CHIEF JUSTICE (JASBIR SINGH) JUDGE 02.12.2008 'ravinder'