IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Misc. No. M-3374 of 2010 Date of decision : 3.3.2010 RC Powaria …. Petitioner Versus CBI, Sector-30A, Chandigarh …. Respondent Present: Dr. Surya Parkash, Advocate for the petitioner. **** S.S. SARON, J. This petition has been filed under Section 482 of the Code of Criminal Procedure (“CrPC” – for short) for quashing the order dated 21.10.2009 (Annexure P1) passed by the learned Special Judge, Central Bureau of Investigation (“CBI” – for short), Ambala. FIR was registered by the CBI on 20.2.2002 alleging commission of offences under Sections 420, 467, 468, 471 and 120-B Indian Penal Code (“IPC” – for short), under Section 13(2) read with Section 13(i)(d) of the Prevention of Corruption Act, 1988 (“PC Act” – for short) and under Section 30 of the Arms Act, 1959. The petitioner along with six others is an accused in the said case. The case of the prosecution is that the petitioner while working as SDM, Gurgaon during the year 1997-98 entered into a criminal conspiracy with one Ved Parkash Gupta, then working as an Arms Licensing Clerk in the office of SDM, Gurgaon; RN Sharma, Arms Dealer of Crl. Misc. No. M-3374 of 2010 [2] Delhi and other accused persons. It is alleged that in pursuance of the said criminal conspiracy, seven forged arms licences were got prepared by the accused persons. They had in furtherance of their criminal conspiracy extended the purchase period renewed/issued duplicate copies of arms licences; in order to conceal their illegal acts, the accused neither called for NOC from the DM Office, Gurgaon nor sought police verification reports before issuance of duplicate copies of the arms licences. Besides, when the arms licences were received in the office of SDM Gurgaon for extension of purchase period or for renewal or for issuance of duplicate copies, a new number of the SDM Office was allotted to the forged arms licences to give it legal sanctity. The said forged arms licences, their renewal and issuances of duplicate copies were for monetary considerations by the accused persons. After completion of investigation, the CBI filed its charge-report (challan) on 21.1.2004 in the Court of the learned Special Judge, CBI, Delhi alleging commission of offences under Section 120-B, read with Sections 420, 465, 467, 468, 471 IPC, under Section 13(2) read with Section 13(i) (d) of the PC Act and Section 30 of the Arms Act. After filing the charge-report (challan), the case was fixed for arguments on charge on 29.3.2005 and 30.3.2005. It was thereafter adjourned on various dates. Thereafter on 11.10.2006 an application (Annexure P2) was submitted by one Sunil Kumar accused for grant of pardon, which was fixed for consideration by the Court on 30.10.2006. The counsel for the accused submitted that they wanted to contest the application (Annexure P2) filed by Sunil Kumar aforesaid. The learned Public Prosecutor objected to the same on the ground that a co-accused has Crl. Misc. No. M-3374 of 2010 [3] no locus standi to do so. The reply dated 3.1.2007 (Annexure P4) was filed by the CBI. On 3.1.2007, the learned Special Judge passed an order (Annexure P3) directing the learned Metropolitan Magistrate to record the statement of said Sunil Kumar under Section 164 CrPC and thereafter his application seeking pardon shall be considered. The CBI filed an application dated 7.2.2007 (Annexure P5) seeking clarification of the order dated 3.1.2007 (Annexure P3). It was submitted that with the filing of the charge-sheet the cognizance of the offences had been taken and copies given to the accused and the stage of investigation and inquiry was over. Therefore, the proceedings for tendering pardon were to be governed by the provisions of Section 307 CrPC. As such it was necessary to clarify the provisions of CrPC or PC Act under which the statement of Sunil Kumar is to be recorded by the learned Metropolitan Magistrate, Patiala House New Delhi in the process of making him an approver in the case. On the said order, learned Special Judge, CBI on 8.2.2007 (Annexure P6) clarified the order dated 3.1.2007 to the extent that the statement of Sunil Kumar would be recorded by the learned Metropolitan Magistrate, New Delhi under the provisions of CrPC. Sunil Kumar got his statement recorded under Section 164 CrPC which was recorded by the learned Metropolitan Magistrate, New Delhi on 15.2.2007 (Annexure P7). After hearing Sunil Kumar and the CBI, the learned Special Judge, CBI, New Delhi in terms of order dated 7.5.2007 granted pardon to Sunil Kumar. The petitioner aggrieved against the order dated 7.5.2007 passed by the learned Special Judge, CBI, Patiala House Court, New Delhi filed Crl. Misc. No. 2191 of 2007 before the Delhi High Court assailing the same. Crl. Misc. No. M-3374 of 2010 [4] During the pendency of the said petition, the Delhi High Court while allowing another CRM No.964 of 2008 titled RC Powaria v. CBI held that the learned Special Judge, CBI, Delhi had no territorial jurisdiction to try the case. It was held that the main offence of renewal of licences on the basis of forged and fake licences and by the abuse of official position by a public servant took place at Gurgaon and only because a part of the criminal conspiracy was hatched at Delhi would not give the Courts at Delhi jurisdiction to try the case. It was held that given the averments in the charge-sheet, the Court at Delhi had no jurisdiction to try the case. The case was to be tried by the Court at Ambala. The said petition i.e. CRM No.964 of 2008 was allowed on 18.3.2009 and the order dated 29.2.2008 passed by the learned Special Judge CBI, Delhi which was impugned was set aside. On the same date CRM No.2191 of 2007 whereby the order dated 7.5.2007 passed by the learned Special Judge, CBI Delhi granting pardon to Sunil Kumar was assailed, was dismissed as withdrawn vide order dated 18.3.2009 (Annexure P8). The copy of the order dated 29.2.2008 passed by the learned Special Judge, CBI, Delhi has not been placed on record from which it could be ascertained as to what is the nature of the order that had been set aside. In any case, when the matter was placed before the learned Special Judge, CBI Delhi on 12.5.2009 it was ordered that the file be put up before the learned Special Judge, CBI, Ambala on 26.5.2009. The case was taken up by the learned Special Judge, CBI, Ambala and the same was fixed for framing charges on 6.8.2009. On the said date, the petitioner submitted an application for summoning Sunil Kumar as an accused as he had been wrongly and Crl. Misc. No. M-3374 of 2010 [5] illegally declared as an approver by the learned, Special Judge, CBI, Delhi. The learned Special Judge, CBI, Ambala after considering the matter vide impugned order dated 21.10.2009 (Annexure P1) dismissed the same. It was held that the question whether Sunil Kumar could be said to be an accused or not, was a matter for the prosecution or the Court to consider and the accused had got no right to direct the prosecution or dictate to the Court that a particular person should be summoned as an accused. Learned counsel for the petitioner has submitted that once the order has been passed by the Delhi High Court on 18.3.2009 holding that the learned Special Judge, CBI Delhi had no jurisdiction then all proceedings including that of tendering pardon to Sunil Kumar accused stand nullified. It is submitted that any act done by a Court without jurisdiction is a nullity. In support of the said contention, learned counsel cites Harpal Singh v. State of Punjab, (2007) 13 SCC 387. It is also contended that the learned Special Judge, Delhi had ordered the recording of the statement of Sunil Kumar accused under Section 164 CrPC after the charge report (challan) had been filed for the purpose of declaring him an approver. In fact the same could be done only during the investigation. It is further submitted that the said procedure is against the procedure established by law. In support of the said contention, learned counsel cites Ram Singh v. State, AIR 1959 Allahabad 518. I have given my thoughtful consideration to the contentions of the learned counsel appearing for the petitioner. It may be noticed that the learned Special Judge, CBI, Ambala vide impugned order dated 21.10.2009 (Annexure P1) has disposed of an Crl. Misc. No. M-3374 of 2010 [6] application filed by the petitioner whereby he sought summoning of Sunil Kumar as an accused in the case. The said application has been placed on record as Annexure P9 (Colly). A perusal of the said application shows that a prayer has been made that accused Sunil Kumar may be summoned to face trial in the present case in the interest of the case. There is no prayer in the said application for declaring the proceedings regarding grant of pardon to Sunil Kumar to be illegal. Even in the present petition, the order dated 7.5.2007 granting pardon by the learned Special Judge, CBI has not placed on record. It may be noticed that the petitioner has placed on record a petition (Annexure P9 - colly) i.e. CRM No. 2191 of 2007 filed by him before the High Court of Delhi at New Delhi under Article 227 of the Constitution read with Section 482 CrPC arising out of the order dated 7.5.2007 passed by the learned Special Judge, CBI, Patiala House Courts, New Delhi whereby pardon was granted to Sunil Kumar. The said petition was dismissed as withdrawn vide order dated 18.3.2009 (Annexure P8) by the Delhi High Court at New Delhi. The said order records that the learned counsel for the petitioner had sought leave to withdraw the petition with liberty to urge the points as raised therein at the appropriate stage in accordance with law. The petition was dismissed as withdrawn with liberty as prayed for. It is not shown by the petitioner as to whether he has earlier raised the contention that in consequence of the order dated 18.3.2009 passed by the Delhi High Court holding that the learned Special Judge, CBI Delhi had no jurisdiction to entertain the case, the entire proceedings stand nullified. It has also not been urged in the application (Annexure P9 colly.) filed before the learned Court below Crl. Misc. No. M-3374 of 2010 [7] that the learned Special Judge could not have ordered the recording of statement under Section 164 CrPC after the charge-report (challan) had been filed. The specific prayer made by the petitioner in his application dated 6.8.2009 (Annexure P9 colly.) before the learned Special Judge, CBI at Ambala is that accused Sunil Kumar who had wrongly and illegally been declared as an approver vide order dated 7.5.2007 passed by the learned Special Judge, CBI, Patiala House Courts, New Delhi be summoned as the said Court had no territorial jurisdiction to declare him as such. The copy of the order dated 7.5.2007 passed by the learned Special Judge, Patiala House Courts, New Delhi has not been placed on record. Even the complete copy of the order dated 18.3.2009 (Annexure P8) passed by the Delhi High Court, New Delhi has not been placed on record and only an extract i.e. paras 11 to 14 of the same are reproduced in the order dated 21.10.2009 (Annexure P1) passed by the learned Special Judge, Ambala. In the present petition the prayer of the petitioner is as follows:- “In the facts and circumstances stated above and in the interest of justice, it is most respectfully prayed that this Hon’ble Court may pleased to quash the order dated 21.10.2009 (Annexure P1) passed by the learned Special Judge, CBI, Ambala.” There is indeed no prayer in the present petition for declaring Sunil Kumar as approver to be illegal; besides, there is no prayer for quashing the procedure regarding the recording of Crl. Misc. No. M-3374 of 2010 [8] statement under Section 164 CrPC after challan had been filed. The learned Special Judge, CBI, Ambala has considered and disposed of the application of the petitioner dated 6.8.2009 (Annexure P9 colly.) by holding that it is for the Court or the prosecution to consider whether Sunil Kumar should be summoned as an accused or not. The said finding is in consonance with the provisions of Section 319 CrPC regarding summoning of an additional accused. It may be noticed that the point in issue before the learned Special Judge, Ambala and now raised before this Court are entirely different. The question that was raised before the learned Special Judge, Ambala was whether a co-accused could request the Court to summon another person as an accused to face trial. This indeed was the only point before the Court of the learned Special Judge CBI at Ambala. In fact the Delhi High Court had vide order dated 18.3.2009 (Annexure P8) in the petition (Annexure P9) i.e. CRM No.2191 of 2007 filed under Articles 227 of the Constitution of India read with Section 482 CrPC arising out of the order dated 7.5.2007 passed by the learned Special Judge, Patiala House Courts, New Delhi in Criminal case No. 136 of 2006, allowed the learned counsel for the petitioner to withdraw the petition with liberty to urge the points raised therein at the appropriate stage in accordance with law. It is not shown that the points as raised in the said petition that has been withdrawn were raised before the learned Special Judge, CBI, Ambala or in the present petition by making a specific prayer in that regard. Therefore, in view of the limited controversy which has been considered and decided by the learned Special Judge, Ambala as to whether Sunil Kumar could be summoned as an accused on an application filed by Crl. Misc. No. M-3374 of 2010 [9] the petitioner who is a co-accused having been considered and decided would not warrant interference by this Court. The petitioner, if so advised, may avail his remedies in accordance with law by making a proper application in this regard and filing necessary documents in support of his claim. However, without the necessary particulars and necessary orders on record, it would be improper for this Court to embark upon an inquiry on the basis of contentions as raised. Therefore, the judgments in the case of Harpal Singh v. State of Punjab (Supra) and Ram Singh v. State (Supra) referred to by the learned counsel for the petitioner are in-applicable to the facts of the present case. As such, keeping in view the fact that the matter has been left open to the petitioner to raise his contentions as made herein in accordance with law, the same are not liable to be gone into at this stage. It is, therefore, held that the impugned order dated 21.10.2009 (Annexure P1) passed by the learned Special Judge, CBI Ambala is just and proper. Accordingly, the Crl. Misc. petition is dismissed. (S.S. SARON) JUDGE March 3, 2010 amit