HIGH COURT OF MADHYA PRADESH : JABALPUR ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- Present : Hon. Shri Justice R.C. Mishra Hon. Smt. Justice Vimla Jain --------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- MISCELLANEOUS ISCELLANEOUS C CRIMINAL RIMINAL C CASE ASE N NO.3187/2008 .3187/2008 (1) Ashok Kumar Jain, aged about 48 years, son of Sheel Chand Jain (2) Smt. Sunita Jain, wife of Ashok Kumar Jain, Both Resident of M-4 BDA Complex, Near Mata Mandir, Bhopal (3) Rajeev Jain, son of Sheel Chand Jain, Resident of Sonal House Club Road, Distt. Vidisha …Petitioners vs. (1) Central Bureau of Investigation, through its Supdt. of Police, Anweshan Bhawan, Char Imli, Bhopal. (2) Umed Singh Raghuwanshi, son of Gangaram Raghuwanshi, Resident of Behlot Road, Kalabag, Ganjbasoda, Vidisha. (3) Raj Kumar Sen, son of Ramesh Prasad Sen, Resident of 29/12 Old Subhash Nagar, Bhopal (4) Ramesh Chandra Parashar, Resident of E-5/135, Arera Colony, Bhopal (5) Pradeep Chaturvedi, son of S.S. Chaturvedi, Resident of Umrao Singh Bagicha, Near Railway Station, Ganjbasoda, Vidisha. (6) Syed Sajid Aslam, son of S.S.M. Aslam, Resident of H. No.3, Ahata Rustoom Khan, Shyamla Hills, Bhopal. (7) Nanulal Ahirwar, son of Sonitram, Resident of behind Usha Company, Near Sagar Puliya, Sagar Road, Distt. Vidisha …Respondents ----------------------------------------------------------------------------------------------------------------------------------------------------------- Shri Ajay Mishra, Sr. Adv. with Shri Mukesh Sahu, Adv. for petitioners. Shri Vikram Singh, Standing Counsel for respondent no.1-CBI. SPECIAL LEAVE PETITION PREFERRED AGAINST THE ORDER AND REGISTERED AS SLP(CRI.) NO.8958/11 HAS BEEN DISMISSED BY THE APEX COURT ON 18.11.2011. Reported in ILR [2011] M.P. 2629 :: 2 :: & CRIMINAL RIMINAL R REVISION EVISION N NO.554/2007 .554/2007 (1) Ashok Kumar Jain, aged about 48 years, son of Sheel Chand Jain (1) Smt. Sunita Jain, wife of Ashok Kumar Jain, Both Resident of M-4 BDA Complex, Near Mata Mandir, Bhopal (2) Rajeev Jain, son of Sheel Chand Jain, Resident of Sonal House Club Road, Distt. Vidisha …Petitioners vs. (1) Central Bureau of Investigation, through its Supdt. Of Police, Anweshan Bhawan, Char Imli, Bhopal. (2) Umed Singh Raghuwanshi, son of Gangaram Raghuwanshi, Resident of Behlot Road, Kalabag, Ganjbasoda, Vidisha. (3) Raj Kumar Sen, son of Ramesh Prasad Sen, Resident of 29/12 Old Subhash Nagar, Bhopal (4) Ramesh Chandra Parashar, Resident of E-5/135, Arera Colony, Bhopal (1) Pradeep Chaturvedi, son of S.S. Chaturvedi, Resident of Umrao Singh Bagicha, Near Railway Station, Ganjbasoda, Vidisha. (2) Syed Sajid Aslam, son of S.S.M. Aslam, Resident of H. No.3, Ahata Rustoom Khan, Shyamla Hills, Bhopal (1) Ashok Kumar Jain, son of Babulal Jain, Resident of Malviya Park, Vidisha (2) Nanulal Ahirwar, son of Sonitram, Resident of behind Usha Company, Near Sagar Puliya, Sagar Road, Distt. Vidisha …Respondents ----------------------------------------------------------------------------------------------------- Shri Ajay Mishra, Senior Counsel with Shri Mukesh Sahu, Advocate, for the petitioner. Shri Vikram Singh, Standing Counsel for the respondent-CBI. M.Cr.C. No.3187/08 & Cr.R. Nos.554/07, 836/08 and 1098/08 :: 3 :: & CRIMINAL RIMINAL R REVISION EVISION N NO.836/2008 .836/2008 Ashok Kumar Jain, son of late Babulal Jain, aged about 57 years, Income Tax Advocate, Resident of opp. Malviya Garden, Vidisha … Petitioner vs. CBI/ACB Bhopal … Respondent ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- Shri Vijay Nayak, Adv. for the petitioner. Shri Vikram Singh, Standing Counsel for the respondent-CBI. & CRIMINAL RIMINAL R REVISION EVISION N NO.1098/2008 .1098/2008 (1) Umed Singh Raghuwanshi, son of Gangaram Raghuwanshi, Resident of Behlot Road, Kalabag, Ganjbasoda, Vidisha. (2) Raj Kumar Sen, son of Ramesh Prasad Sen, Resident of 29/12 Old Subhash Nagar, Bhopal (3) Ramesh Chandra Parashar, Resident of E-5/135, Arera Colony, Bhopal (3) Pradeep Chaturvedi, son of S.S. Chaturvedi, Resident of Umrao Singh Bagicha, Near Railway Station, Ganjbasoda, Vidisha. (1) Syed Sajid Aslam, son of S.S.M. Aslam, Resident of H. No.3, Ahata Rustoom Khan, Shyamla Hills, Bhopal …Petitioners vs. (1) Central Bureau of Investigation, through its Supdt. Of Police, Char Imli, Bhopal. (2) Ashok Kumar Jain, aged about 48 years, son of Sheel Chand Jain (3) Smt. Sunita Jain, wife of Ashok Kumar Jain, Both Resident of M-4 BDA Complex, Near Mata Mandir, Bhopal (4) Rajeev Jain, son of Sheel Chand Jain, Resident of Sonal House Club Road, Distt. Vidisha (5) Nanulal Ahirwar, son of Sonitram, Resident of behind Usha Company, Near Sagar Puliya, Sagar Road, Distt. Vidisha … Respondents Shri Ajay Mishra, Senior Counsel with Shri Mukesh Sahu, Advocate Adv. for the petitioner. M.Cr.C. No.3187/08 & Cr.R. Nos.554/07, 836/08 and 1098/08 :: 4 :: Shri Vikram Singh, Standing Counsel for the respondent-CBI. Date of Hearing : 3/2/2011 (M.Cr.C. No.3187/08) Date of Hearing : 4/2/2011 (Cri. Revision Nos.554/07, 836/08 & 1098/09) Date of Order : 11.05.2011 O R D E R As per : R.C. Mishra, J. These petitions are interrelated, as arisen from the same proceedings pending as Special Case No.8/06 before Special Judge [under the Prevention of Corruption Act, 1988 (hereinafter referred to as the ‘1988 Act’), for CBI cases], Bhopal. 2. MCrC No.3187/2008 is a petition, under Section 482 of the Code of Criminal Procedure (for short ‘the Code’), for having the order-dated 22.09.2007, rejecting the objection as to competence of M.V. Surti, the Deputy Superintendent of Police (CBI), Bhopal to investigate into the matter as well as the petitioners’ prayer for taking into consideration the documents furnished by them at the stage of framing of charge nullified and also for quashing the charge-sheet as against the petitioner namely Ashok Kumar, son of Sheel Chand Jain [for brevity ‘Ashok(S)’], his wife Sunita Jain and brother Rajeev Jain. 3. The revision registered as Criminal Revision No.554/2007 is directed against a common order-dated 17.02.2007 passed by the Special Judge, rejecting the applications, under Section 91 of the Code, moved by the revisionists as well as by co-accused Nanulal Ahirwar and R.C. Parashar. 4. The revision numbered as Criminal Revision No.836/2008 has been preferred against the order-dated 18.03.2008 whereby charges of the offences punishable under Section 13(1)(e) read with S.13(2) M.Cr.C. No.3187/08 & Cr.R. Nos.554/07, 836/08 and 1098/08 :: 5 :: read with 201 of the IPC and 120B read with 201, 465 and 471 of the IPC were framed against the revisionist namely Ashok Kumar Jain, son of Babulal Jain [hereinafter referred to as 'Ashok(B)'], an Income-Tax Practitioner. 5. The subject-matter of Criminal Revision No.1098/2008 is the order-dated 15.02.2008 whereby not only the application filed by Ashok(S), Sunita, Rajeev and R.C. Parashar for recalling the order- dated 22.09.2007 was rejected but it was also concluded that a prima facie case was made out against Ashok(S) to justify framing of charges of the offences punishable under Sections 120-B read with 465 and 471 of the IPC and Section 13(1)(e) read with 13(2) of the Act whereas the other accused were liable to be charged with the offences punishable under Sections 120-B read with 465, 471 and 201 of the IPC and Section 109 read with 13(1)(e) read with 13(2) of the Act. 6. Background facts may be summed up thus - (1) During the check period from 01.04.1999 to 20.05.2004, Ashok(S) had remained posted as Branch Manager of Vidisha Branch and the Bhopal City Branch Office IV of the United India Insurance Company Limited. (2) On 20.05.2004, upon complaint made by one Mohd. Sajid, a trap was arranged by M.V. Surti, the Deputy Superintendent of Police (CBI) to apprehend Ashok(S) red- handed while accepting bribe of Rs.20,000/-. The trap proceedings were organized. He also conducted search in Ashok(S)’s residence i.e. MIG-4 located in New BDA Complex, Bhopal and recorded the details of the properties seized in a list (Annexure ‘P-1’). (3) On 02.05.2005, M.V. Surti registered yet another case against Ashok(S) in respect of offence punishable under Section 13(1)(e) read with 13(2) of the Act on the ground that M.Cr.C. No.3187/08 & Cr.R. Nos.554/07, 836/08 and 1098/08 :: 6 :: during the check period, he had acquired properties and pecuniary resources in his name and also in the name of his family members disproportionate to his known sources of income to the extent of Rs.11,43,071/-. Investigation further revealed that explanations furnished by Ashok(S) with regard to various sources of income were found to be false or unacceptable. To illustrate, - (a) The plea that an amount of Rs.2,86,000/- was received by Sunita Jain as an advance towards consideration under a sale agreement from Umed Singh Raghuwanshi, the proposed purchaser of a plot located in Behlot Road, Ganjbasoda, was unacceptable due to the following reasons – (i) He had not given prior intimation to the insurance company, as required under the Conduct Rules, either regarding sale of the plot or as to receipt of an amount of Rs.2,86,000/- as advance. (ii) Non-judicial stamp of Rs.50/-, whereon the sale agreement purported to have been executed on 07.04.2004, was not sold by the stamp vendor Rajkumar Sen on that day. (iii) Rajkumar Sen, in order to prove sale of the stamp on the aforesaid date to Umed Singh Raghuwanshi, had made false entries in the corresponding register suggesting that on that day, he had sold two stamps (a) one in the denomination of Rs.10/- to Obaidulla Khan, Manager of M/s Bhopal Carrier Service and Zaheer Uddin, the proprietor of the firm and (b) another in the denomination of Rs.50/- to Umed Singh Raghuwanshi whereas on verification, it M.Cr.C. No.3187/08 & Cr.R. Nos.554/07, 836/08 and 1098/08 :: 7 :: was found that only one stamp in the denomination of Rs.50/- was sold by him to Obaidulla Khan and Zaheer Uddin. (iv) Umed Singh Raghuwanshi claimed to be an agriculturist by profession but it was found that he was not filing income-tax returns despite being engaged in the business of sale of tractors also. As such, the amount of Rs.2,86,000/- was not declared by him to the income-tax department. Further, being a financially sound person, he could have easily arranged Rs.1,25,000/- for payment to Smt. Sunita as the balance amount of consideration. Moreover, he had not lodged any FIR or filed a Civil Suit for recovery of the amount of Rs.2,86,000/- said to have been paid by him to Sunita as advance. (v) The ante-dated sale-agreement purported to have been executed on 07.04.2004 was attested by Pradeep Chaturvedi and S.S. Aslam and was notarized by R.C. Parashar. (4) Claim of Rs.2,03,000/- as salary drawn by Sunita Jain while being in the employment of Rajeev Jain, an agent of the Insurance Company, was also found to be false and the income tax returns submitted by Rajeev Jain were found to be fictitious for the following reasons - (i) By virtue of rider placed by Rule 14(1) of the General Insurance (Conduct, Discipline & Appeal) Rules, 1975, Rajeev Jain could not act as an insurance agent. (ii) In the initial records, Ashok(S) had declared that his wife Smt. Sunita Jain was unemployed. (iii) In the Bank accounts opened during the period from 1999-2004, Smt. Sunita Jain had declared herself M.Cr.C. No.3187/08 & Cr.R. Nos.554/07, 836/08 and 1098/08 :: 8 :: to be a house wife and left the column pertaining to occupation blank. (iv) There was no evidence to substantiate that Smt. Sunita Jain was employed by Rajeev Jain. (v) During the check period, only an amount of Rs.88,000/- was deposited by Rajeev Jain and there was no record as to payment of an amount of Rs.2,03,000/- as salary amount to Sunita Jain. (vi) As Sunita did not file any income tax return, the amount of Rs.2,03,000/- remained undeclared. (vii) Rajeev Jain was residing at Vidisha whereas Sunita was living with her husband at Bhopal since April, 2000. Thus, the assertion that Rajeev had employed Sunita was inherently improbable. (5) Income tax returns submitted by Rajeev Jain were found to be false whereas the enclosures were found to be annexed subsequently. Further, rough drafts of the false documents which were allegedly substituted for the originals enclosure with the help of Nanulal Ahirwar posted as Daftari and the record keeper in the Income-Tax Office at Vidisha, were found to have been authored by Ashok(B). 7. In the light of these facts, Sunita, Rajeev, Ashok(B) and Nanulal (who had not challenged the order framing charges against him) were arraigned as accused and further investigation revealed involvement of other persons namely Umed Singh Raghuwanshi, Raj Kumar Sen, Ramesh Chandra Parashar, Pradeep Chaturvedi, Sayed Sajid Aslam, the revisionist in Criminal Revision No.1098/2008 in the offences. Ultimate outcome of the investigation indicated that Ashok(S) was not able to satisfactorily account for the disproportionate assets to the extent of Rs.6,73,602/-. Accordingly, charge-sheet was filed against him, his wife Sunita, brother Rajeev and seven other accused named above before the Special Court. M.Cr.C. No.3187/08 & Cr.R. Nos.554/07, 836/08 and 1098/08 :: 9 :: MCrC No.3187/2008 8. According to the petitioners namely Ashok(S), Sunita and Rajeev, - in view of the restriction imposed by second proviso to Section 17 of the Act, M.V. Surti, being the Deputy Superintendent of Police (for short ‘DSP’), was not authorized even to register the case under Section 13(1)(e). However, he not only recorded the FIR but also conducted investigation without the order of the police officer not below the rank of Superintendent of Police, as contemplated in the proviso. In such a situation, an application was moved on 26.03.2007 for their discharge on the ground of incompetence of the Investigating Officer. No reply was filed on behalf of the CBI despite availing of several opportunities. Ultimately, learned trial Judge rejected their application vide order- dated 22.9.2007. Since the order was passed even without affording them an opportunity of being heard, they submitted an application on 08.07.2008 for recalling the order but this application was also dismissed for the reasons assigned in the order-dated 15.02.2008. 9. Learned Senior Counsel appearing on behalf of the petitioners except Ashok(B) has strenuously contended that continuance of the prosecution founded on unauthorized and illegal investigation, is an abuse of the process of the Court in view of the following facts - (i) M.V. Surti, the DSP, who recorded the FIR, had authorised himself to conduct the investigation despite the express bar contained in the second proviso. (ii) The trial Court had taken cognizance of the offences ignoring the fact that the charge sheet was not based on a legal and valid investigation. M.Cr.C. No.3187/08 & Cr.R. Nos.554/07, 836/08 and 1098/08 :: 10 :: This apart, legality and propriety of the order-dated 22.09.2007, have been challenged on the ground that it contained a wrong fact as to hearing of the arguments despite the fact that a number of adjournments were sought and granted on the ground of non-availability of Shri Meena, Public Prosecutor In-charge of the case, whose son was reportedly indisposed. In response, learned Standing Counsel for the CBI has submitted that on 02.02.2005, M.V. Surti had validly registered the case as In-charge Superintendent of Police, CBI Bhopal. Attention has also been invited to the contents of fax message suggesting that on that day, Superintendent of Police, CBI Bhubaneshwar was looking after overall supervision of the working of the officials of CBI posted at Bhopal. 10. Learned Senior Counsel still contended that no document authorizing M.V. Surti to investigate the case was placed on record either along with the charge sheet or with the replies to the applications dated 05.05.2007 and 23.06.2007. Reference has also been made to the guidelines contained in Rule 7.11 of the CBI Crime Manual-2005, which defines powers of Deputy Superintendent of Police in the following terms - The Superintendent of Police will investigate/enquire into the cases which are allotted to him. In Branches where there is no Additional SP, one of the Deputy Superintendents of Police will assist the Superintendent of Police in supervision of the work relating to administration, establishment/accounts. In this respect he will perform such functions and duties as are allotted to him by the Superintendent of Police. He may be designated Dy. SP (Hqrs) and will hold charge of the Branch in the absence of the SP from the Headquarters. 11. With reference to the argument that M.V. Surti was authorized by way of an oral order, learned Senior Counsel referred to the decision of the Apex Court in State Inspector of Police v. Surya M.Cr.C. No.3187/08 & Cr.R. Nos.554/07, 836/08 and 1098/08 :: 11 :: Sankaram Karri (2006) 7 SCC 172 wherein it was held that issuance of oral direction for investigation is not contemplated under the Act. 12. In the light of the rival contentions, the following questions arise for consideration in the petition (MCrC No.3187/2008) under Section 482 of the Code - “Whether in the official capacity of DSP, M.V. Surti was not competent either to register the offence under Section 13(1)(e) read with 13(2) of the Act or to investigate the same in absence of an authorization by the competent authority ? If so, what would be the effect on the consequent proceedings” ? 13. Before proceeding further, it would be necessary to advert to the provisions of Section 17 of the 1988 Act, which is couched in the following terms : - 17. Persons authorised to investigate - Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), no police officer below the rank - (a) in the case of the Delhi Special Police Establishment, of an Inspector of Police. (b) in the metropolitan areas of Bombay, Calcutta, Madras and Ahmedabad and in any other metropolitan area notified as such under sub-section (1) of section 8 of the Code of Criminal Procedure, 1973 (2 of 1974), of an Assistant Commissioner of Police; (c) elsewhere, of a Deputy Superintendent of Police or a police officer of equivalent rank, shall investigate any offence punishable under this Act without the order of a Metropolitan Magistrate or a Magistrate of the first class, as the case may be, or make any arrest therefor without a warrant: Provided that if a police officer not below the rank of an Inspector of Police is authorised by the State Government in this behalf by general or special order, he may also investigate any such offence without the order of a Metropolitan Magistrate or a Magistrate of the first class, as the case may be, or make arrest therefor without a warrant: M.Cr.C. No.3187/08 & Cr.R. Nos.554/07, 836/08 and 1098/08 :: 12 :: Provided further that an offence referred to in clause (e) of sub- section (1) of section 13 shall not be investigated without the order of a police officer not below the rank of a Superintendent of Police. (Emphasis supplied) 14. A bare perusal of the FIR recorded on 2.2.2005 would reveal that the scriber M.V. Surti, while writing his designation as S.P. (presumably in-charge) had entrusted the investigation to himself in the capacity of DSP. 15. Learned Senior Counsel has strenuously contended that the entire proceedings before the Special Judge were illegal and void ab initio, inasmuch as the investigation forming basis thereof had been conducted without obtaining the necessary order of the Superintendent of Police, under the second proviso to S.17 of the 1988 Act. According to him, since the illegality in the course of investigation was brought to the notice of the trial Court at the stage of the charge only, it ought to have directed fresh investigation by an officer authorized by the Superintendent of Police. To buttress the contention, he has placed reliance on the following observations made by the Apex Court in H.N. Rishbud v. State of Delhi AIR 1955 SC 196, with reference to Section 5(4) and proviso to Section 3 of the Prevention of Corruption Act, 1947 (which correspond to the first proviso to Section 17 (supra) and Section 5-A, which corresponds to the main part of Section 17 - “We are, therefore, clearly, also, of the opinion that where the cognizance of the case has in fact been taken and the case has proceeded to termination, the invalidity of the precedent investigation does not vitiate the result, unless miscarriage of justice has been caused thereby. .. It does not follow, however, that the invalidity of the investigation is to be completely ignored by the Court during trial. When the breach of such a mandatory provision is brought to the knowledge of the Court at a sufficiently early stage, the Court, while not declining cognizance, will have to take the necessary steps to get the illegality cured and the defect rectified, by ordering such reinvestigation as the circumstances of M.Cr.C. No.3187/08 & Cr.R. Nos.554/07, 836/08 and 1098/08 :: 13 :: an individual case may call for… When the attention of the Court is called to such an illegality at a very early stage it would not be fair to the accused not to obviate the prejudice that may have been caused thereby, by appropriate orders, at that stage but to leave him to the ultimate remedy of waiting till the conclusion of the trial and of discharging the somewhat difficult burden under section 537, Cr. P. C. of making out that such an error has in fact occasioned a failure of justice. Reference has also been made to the decision of Supreme Court in State of M.P. v. Mubarak Ali AIR 1959 SC 707, upholding this Court’s order directing re-investigation to rectify the defects and cure the illegality of the investigation in view of the fact that the objection was taken before commencement of the trial. Learned Senior Counsel has cited the following decisions of other High Courts to the same effect - (i) State of Karnataka v. B. Narayan Reddy 2002 Cr.L.J. 845 (ii) Mukteshwar Prasad Singh v. State of Jharkhand 2007 Cr.L.J (NOC) 425 He has also relied upon a single Bench decision of this Court in State of M.P. v. Dr. Devendra Singh 2002 CriLJ 4368, wherein the order of the trial Judge quashing the part of investigation conducted by the unauthorized police officers with liberty to re-investigate in accordance with law was set aside and the trial Court was directed to proceed with the trial excluding the statements of three witnesses recorded by such officers. 16. To fortify the argument that, in absence of authorization by the S.P., M.V. Surti was not entitled to register or investigate into the offence under Section 13(1)(e) of the Act, our attention is invited to the following precedents - (i) U mesh Kumar Choubey v. State of M.P. 2000 Cr.L.J. 1760 M.Cr.C. No.3187/08 & Cr.R. Nos.554/07, 836/08 and 1098/08 :: 14 :: (ii) H. S. Gotla v. State of Karnataka 2001 Cr.L.J. 2695 (iii) Girija Shankar Shukla v. SDO Harda 1973 MPLJ 411 17. In the last mentioned case, a Full Bench of this Court had to resolve the conflict of opinions expressed by two Division Benches regarding the meaning of the expression “holding current charge of the duties”. After referring to the various decisions of the English and Indian Courts, it proceeded to approve the view taken by a Division Bench in Ramratan v. State of M.P. AIR 1964 M.P. 114 to the following effect - “A person appointed permanently or to officiate on a post holds that rank whereas a person who is placed only “in current charge of duties of a post” does not hold that rank. Accordingly, those functions or powers of the post, which depend on the rank, cannot be discharged by a person who is placed only in current charge of the duties of that post”. 18. In the case of H.S. Gotla, the DSP had registered the case as In-charge Superintendent of Police at the relevant point of time and exercising his power as in-charge Superintendent of Police permitted himself by an order of sanction for investigation into the matter. While holding that rank of the Deputy Superintendent of Police had remained unchanged, learned single Judge proceeded to quash registration of the case as well as continuation of investigation for want of order of an Officer not below the rank of Superintendent of Police to conduct the investigation, as contemplated in the second proviso to Section 17 of the 1988 Act. However, liberty was granted to the State to initiate fresh proceedings by following the due procedure of law. 19. In U mesh Kumar ’s case, objection as to incompetence of a DSP to investigate the offence under S.13(1)(e) without any order of M.Cr.C. No.3187/08 & Cr.R. Nos.554/07, 836/08