BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED :
25. 03.2015 CORAM THE HONOURABLE MR.JUSTICE M.SATHYANARAYANAN Crl.O.P.(MD)No.23293 of 2014 1.S.Vaikundarajan 2.S.Jegadeesan ... Petitioners/ A-6 & A-7 Vs. 1.The Deputy Inspector General of Police, Central Bureau of Investigation, Anti-Corruption Bureau, Chennai. (Cr.No.MA1 2012 A055 2.The Superintendent of Police, Central Bureau of Investigation, Anti-Corruption Bureau, Chennai. ... Respondents/ Respondents Prayer Petition filed under Section 482 of the Code of Criminal Procedure, to call for the entire records pertaining to the case in F.I.R.No.RC MA12012 A0055on the file of the Deputy Inspector General of Police, Central Bureau of Investigation, Anti-Corruption Bureau, Chennai and quash the same. For Petitioners : Mr.K.Subramanian, Senior Counsel for Mr.R.Anand For Respondents : Mr.G.R.Swaminathan, Special Public Prosecutor for CBI cases * * * * * Date of reserving the Order :
18. 03.2015 Date of delivering the Order :
25. 03.2015 :
ORDERThe petitioners are arrayed as A-6 and A-7 in the F.I.R.No.RC MA1 2012 A0055 dated 24.12.2012. In the said F.I.R, seven persons are arrayed as accused. A-1 is an I.A.S. officer, who belongs to West Bengal cadre and at present, working as Secretary of Information Technology Department, State of West Bengal. A-2 is the brother of A-1 and was working as Manager, Scale-II, Syndicate Bank, Regional Branch, Armenian Street, Chennai. A-3 is the wife of A-1. A-4 is the wife of A-2. A-5 is the mother of A-1 and A-2.
2. The contents of the F.I.R would disclose the following facts:
2. 1. A-1 is a public servant and an officer belongs to All India Service of West Bengal cadre of 1992 batch and he joined V.O.C. Port Trust, Tuticorin, on deputation to the Ministry of Shipping and Transport, Union of India, as Deputy Chairman on 30.04.2007 and later became the Acting Chairman of the said Port Trust from 06.01.2011 onwards till his repatriation to the parent cadre, namely, West Bengal cadre, on 30.04.2012 and at present, he is the Secretary of the Information Technology Department, State of West Bengal. 2.2. A-2 is the elder brother of A-1 and originally, he joined as a Clerk in the services of Syndicate Bank and by virtue of promotion, at present, working as Manager, Scale-II, Syndicate Bank, Regional Office, Armenian Street, Chennai. 2.3. A-1 and A-2 hail from a middle class family from Kariapatti village near Madurai. A-2 and his wife - A-4 are residing in a house bearing No.619, 40th Street, Phase-II, Suthuvachari, Vellore-9, along with his mother, namely, A.Janaki (A-5) and A-2 declared his mother as his dependent. A-3 and A-4 are house wives. A-5, mother of A-1 and A-2, do not have any independent sources of income and in spite of the said fact, a considerable number of assets were found to have been acquired by A-1 in the names of the above said accused. 2.4. In the name of A-5, a flat admeasuring 2626 sq. ft. at Greenways Road, Narayanasamy Garden, 3rd and 4th Lanes, R.A.Puram, Chennai ?. 28, was purchased and registered as Document No.747/2011 on the file of the Office of Sub Registrar, Mylapore, for a sale consideration of Rs.80,00,000/-. 2.5. In the name of A-3, wife of A-1, a flat bearing No.402 admeasuring 1740 sq. ft. Byrasandra village, Sir C.V.Raman Nagar, Krishnarajapuram Hobli, Bangalore East, was purchased by means of a registered Document No.1342/2011- 12, at a cost of Rs.35,00,000/-. 2.6. Two flats admeasuring 3247 sq. ft. and 1850 sq. ft. respectively, situated at Velachery, Chennai, were purchased in the name of A-5 and the payments for the same have been made by M/s.PS Srijan Realties in her name. 2.7. The firms, namely, St.John Freight Ltd., and Indev Logistic Ltd., who are engaged in the business with V.O.C. Port Trust, Tuticorin, had deposited cash payments into the accounts of A-5 and A-2 respectively, when A-1 was holding the post of Deputy Chairman/Acting Chairman. 2.8. As per the reliable information, huge cash transactions to the tune of Rs.7.5 crores were also transferred into the bank account of A-2 and A-5 held by them in ICICI Bank, Kancheepuram Branch, between August 2010 and November 2011, from the account of M/s.V.V.Minerals, Tuticorin, represented by the petitioners/A-6 and A-7, who are having the business transactions with V.O.C. Port Trust, while A-1 was at the helm of affairs. 2.9. According to the respondent/CBI, during the check period between 30.04.2007 and 30.04.2012, A-1 was in possession of pecuniary resources and assets disproportionate to his known sources of income in his name and in the names of his close relatives and others to the tune of Rs.8,23,93,501/-, which comes to 690.93% and the mode of calculation is given below: Sl.No.Description Value 1 Assets at the beginning of the check period ?. 'A' 6,166,539 2 Assets at the end of the check period ?. 'B' 96,985,040 3 Total income during the check period ?. 'C' 11,925,000 4 Expenditure during the check period 'D' 3,500,000 5 Assets acquired during the check period (B-A) 90,818,501 6 Likely savings during the check period (C-D) 8,425,000 7 Disproportionate Assets 82,393,501 % of Disproportionate Assets 690.93% 2.10. Thus, it is the case of the respondent/CBI, the above said acts of the accused, prima facie disclose the commission of the offences punishable under Section 120-B I.P.C. read with Sections 13(2) read with 13(1)(e) of the Prevention of Corruption Act, 1988 (in short 'PC Act') and the investigation has been entrusted to Mr.L.S.Padma Kumar, Additional Superintendent of Police, CBI, ACB, Chennai, for investigation and permission as required under Section 6A of the Delhi Special Police Establishment Act, for registration of a regular case against A-1 was also obtained from the Joint Secretary (S) & Chief Vigilance Officer, Ministry of Shipping, New Delhi, vide proceedings dated 19.11.2012. The Investigating Officer has also been authorised under Sections 17 and 18 of the PC Act, to conduct the investigation and necessary proceedings were also issued in that regard. 2.11. The petitioners herein who are arrayed as A-6 and A-7, apprehending arrest at the hands of the respondent/CBI, filed Crl.O.P(MD)No.19357 of 2014 praying for anticipatory bail on the file of this Court and it was dismissed on 07.11.2014. Thereafter, the petitioners herein/A-6 and A-7 had filed Crl.O.P(MD)Nos.23176 and 23177 of 2014 respectively, praying for anticipatory bail and those petitions were strongly opposed by the respondent/CBI. During the course of hearing of the said petitions, elaborate arguments have been advanced on behalf of the petitioners as well as the respondent/CBI and the learned Judge (Honourable Mr.Justice P.N.Prakash), after considering the factual aspects and legal position, has allowed the said petitions filed for anticipatory bail, subject to certain conditions and it is relevant to extract hereunder paragraphs 30 and 31 of the said order:
"0. In the result, these Criminal Original Petitions are allowed. Accordingly, the petitioners are ordered to be released on bail in the event of arrest or on their appearance, within a period of fifteen days from the date of receipt of a copy of this order, before the learned Special Court for CBI Cases, Madurai, on condition that each of the petitioner shall execute a bond for a sum of Rs.5,00,000/- (Rupees Five Lakhs only) with two sureties each for a like sum to the satisfaction of the respondent police or the police officer who intends to arrest or to satisfaction of the learned Magistrate concerned and on further condition that: [a]. the petitioners shall report before the respondent police twice a day daily at 10:30 in the morning and 06:30 in the evening for a period of four weeks and thereafter as and when required for interrogation. [b]. the petitioners shall not tamper with evidence or witness either during investigation or trial. [c]. the petitioners shall not abscond either during investigation or trial. [d]. On breach of any of the aforesaid conditions, the learned Magistrate/Trial Court is entitled to take appropriate action against the petitioners in accordance with law as if the conditions have been imposed and the petitioners released on bail by the learned Magistrate/Trial Court himself as laid down by the Hon'ble Supreme Court in P.K.Shaji vs. State of Kerala [(2005) AIR SCW5560.
31. I am aware that while deciding bail petitions, the Court should not conduct roving enquiry into materials collected during investigation and should not give any finding that would cause prejudice to the prosecution case. Since these are second anticipatory bail petitions, I felt it is imperative to pass a detailed order with reasons, for, reasons are the soul of judicial pronouncement and there are subject to review by Superior Courts. Whatever that has been observed in this order is only for the limited purpose of deciding these petitions for anticipatory bail and shall not in any way affect the ongoing prosecution."
2.12. The petitioners had filed this petition praying for quashment of the F.I.R registered against them or in the alternative, as pleaded by the learned Senior Counsel appearing for them, to discontinue further proceedings or investigation, insofar as against them.
3. Mr.K.Subramanian, learned Senior Counsel assisted by Mr.R.Anand, learned Counsel for the petitioners, made the following submissions:
3. 1. The petitioners/A-6 and A-7 are partners of M/s.V.V.Minerals and are engaged in beach sand mining and after processing it, exported the said commodity through V.O.C. Port Trust, Tuticorin, to various foreign countries and thereby, contributed to the coffers of Union of India by way of foreign exchange and simply because, A-1 happened to be the Deputy Chairman/Acting Chairman at the relevant point of time, nothing can be attributed against them as they have merely done their business operation through the said Port Trust in a lawful manner. 3.2. It is further submitted by the learned Senior Counsel appearing for the petitioners that on 25.11.2008, an agreement of sale came into being between the petitioners herein as the party of first part and A-5, mother of A-1 as the party of second part, wherein the petitioners had agreed to purchase the vacant lands/sites at Karisalkulam village and S.Kallupatti village, for a sale consideration of Rs.8,25,00,000/-. Time for the performance of the contract was fixed on or before 31.12.2011 and one of the conditions of the agreement of sale is that since the lands have been classified as agricultural lands, the party of second part/A-5 shall take necessary steps to convert the same for industrial use and default clauses have also been incorporated in the event of the respective parties failed to adhere to their obligations. 3.3. An arbitration clause has also been provided in the said agreement and the said clause stipulates that both the parties can agree and appoint an Arbitrator and in the event of difference of opinion, necessary application is to be filed under the provisions of the Arbitration and Conciliation Act, 1996, for appointment of an Arbitrator through the Court and the decision of the Arbitrator is final and the seat of the Arbitration shall be within 'Tirunelveli District'. 3.4. It is the submission of the learned Senior Counsel appearing for the petitioners that though the amounts have been paid towards the sale consideration, the party of second part was unable to perform her part of the obligation, which necessitated the petitioners to seek for appointment of an Arbitrator and it was consented to by the party of second part/A-5 and accordingly, Mr.M.Mohammed Essath Ali, District and Sessions Judge (Retired), belonged to Tamil Nadu Higher Judicial Service, was appointed as the Sole Arbitrator and the claim petition was filed praying for directing the party of second part/A-5 to pay a sum of Rs.8,25,00,000/- along with interest at the rate of 8% per annum from the date of receipt of each and every payment made to her, the cost of arbitration and other reliefs, which the Arbitrator may deem fit and award. 3.5. A counter affidavit was also filed by the respondent/opposite party/A-5 and the Sole Arbitrator, on consideration of the pleadings and other materials placed before it, has passed an award dated 02.08.2012, in favour of the petitioners herein/A-6 and A-7, directing the respondent therein/opposite party/A-5 to pay a sum of Rs.8,91,00,880/-, within two months from the date of the award, with costs. 3.6. Since the respondent/opposite party/A-5 did not comply with the terms of the award, execution was levied against the opposite party/A-5 in E.P.No.50 of 2012 on the file of the District Court No.II, Kancheepuram, praying for attachment of the amount in the joint Savings Bank Account of the opposite party/A-5 and her son, namely, A-2 - Jeyaraman, in ICICI Bank, Kancheepuram Branch. 3.7. The District Court No.II, Kancheepuram, vide order dated 20.09.2013, has passed the interim order of attachment and it was also subsequently made absolute on 17.02.2014. 3.8. It is the primordial submission of the learned Senior Counsel appearing for the petitioners that genuineness of this transaction is now under scanner, as according to the respondent/CBI, it is a smoke screen so as to enable A-1 to sell the lands which were purchased in the name of his mother and the value of the lands would not worth that much and there is no necessity for the petitioners to purchase the said lands at an exorbitant price and therefore, the said fact is nothing but to help A-1 with a corresponding gain to them in respect of their business which is being carried on through V.O.C. Port Trust, Tuticorin. 3.9. It is the vehement and forceful submission of the learned Senior Counsel appearing for the petitioners that as per the impugned F.I.R., the check period is between 30.04.2007 and 30.04.2012 and though the agreement of sale came into being on 25.11.2008, an inference cannot be drawn as to the suspicious nature of the said transaction between the petitioners/A-6 and A-7 and A-5, mother of A-1 for the reason that if any willing vendor is agreed to sell the lands and the intended purchaser is interested in purchasing the lands, subject to mutual acceptance, the transaction can be entered into and the said agreement of sale is one such transaction. In fact, the terms have also been reduced into writing and payments have been made towards sale consideration in installments and since the party of second part to the agreement/A-5 was not in a position to perform his part of obligation, the arbitration clause was invoked and claim was made before the Arbitrator, who after adjudication, has passed a speaking award on 02.08.2012, which was also put into execution and hence, there is nothing suspicious in the said transaction. 3.10. The learned Senior Counsel appearing for the petitioners would further contend that initially, the respondent/CBI has registered an F.I.R in RC MA1 2011 A0034 on 30.08.2011 against Mr.Shankar Rao, the then Chief Engineer, Mr.R.Thyagarajan, the then Executive Engineer, M/s.Darthi Dredging and Infrastructure Ltd., Hyderabad, represented by Mr.Kantha Rao, and unknown public servants of Tuticorin Port Trust for the alleged commission of the offences under Section 120-B read with Section 420 I.P.C and Sections 13(2) read with 13(1)(d) of the PC Act, alleging that some irregularities or illegalities took place with regard to the construction of multipurpose berth No.9 to cater 10.7 m draught and during the investigation of the case, the name of A-1 has also been cropped up. 3.11. The learned Senior Counsel appearing for the petitioners has drawn the attention of this Court to the F.I.R and would submit that the respondent/CBI, after investigation, has filed the closure report in R.C.S.No.3 of 2013, on the file of the II Additional District and Sessions Judge for CBI Cases, Madurai, stating among other things that during the course of the investigation, the culpability of A-1 herein, namely, Mr.A.Subbiah, I.A.S., Mr.C.J.Rao, Mr.C.Balakrishnan and Mr.S.Natarajan, had come to light and they were arraigned as accused and after investigation, nothing incriminating has surfaced on the part of the accused as the decision to sanction bills and additional work was undertaken by multi-member tender committee and heads of various Departments and ultimately, came to the conclusion that the evidence on record is not adequate to launch the prosecution against the accused beyond any reasonable doubt and at present, no fresh evidence has come forth as of now and accordingly, prayed for closure of the said F.I.R. The said Court, vide order dated 06.07.2013, has accepted the closure report and passed the order. 3.12. It is contended by the learned Senior Counsel appearing for the petitioners that on each and every occasion, the respondent/CBI is bent upon in picking some holes in the acts of A-1 and though they are having powers to enquire, register a case and conduct the investigation for the commission of the cognizable offence, they cannot harass the petitioners/A-6 and A-7, who are well known businessmen in the locality and thereby, tarnishing their image alleging corruption. 3.13. It is also the submission of the learned Senior Counsel appearing for the petitioners that no law prohibits any person to have a lawful transaction with the family member of a public servant and the agreement of sale, dated 25.11.2008, entered into between the petitioners/A-6 and A-7, and A-5, mother of A-1, is one such transaction and there is nothing to suspect the genuineness of the said transaction as the subsequent legal proceedings in the form of arbitration and the order passed in the execution proceedings, would vouch the same. 3.14. The learned Senior Counsel appearing for the petitioners has drawn the attention of this Court to the order dated 07.01.2015, passed in Crl.O.P(MD)Nos.23176 and 23177 of 2014 and would submit that the respondent/CBI opposing the prayer made by the petitioners to grant anticipatory bail, strongly made exhaustive and elaborate submissions, by inviting the attention of the learned Judge to various documents collected during the investigation and left with no other option, the learned Judge had given the findings holding that abetment to commit the offence has not been made out even as per the case of the CBI and only conspiracy charge alone was made and ultimately, granted the anticipatory bail, subject to certain conditions and though the said order came to be passed in the petitions filed for anticipatory bail, the findings have been given on the merits of the case projected by the respondent/CBI and it may be taken note of by this Court while adjudicating this petition. 3.15. The learned Senior Counsel appearing for the petitioners made a submission that the definitions of 'bribe' and 'bribery' given in Black's Law Dictionary, Sixth Edition, read that the offering, giving, receiving, or soliciting of something of value for the purpose of influencing the action of an official in the discharge of his or her public or legal duties and it is his submission that though the investigation is going on for nearly three years, no materials worth of substance, have been collected/detected to show that A-1 in his capacity as the Deputy Chairman/Acting Chairman of V.O.C. Port Trust, Tuticorin, has gone out of the way and obliged to the petitioners and hence, it cannot be said that they have abetted the commission of the offences or conspired to commit the offences. 3.16. The learned Senior Counsel appearing for the petitioners, on a legal plea, would submit that the offence of conspiracy has not all been made and the present prosecution against the petitioners herein, is purely an abuse of process of law, which may ultimately result in miscarriage of justice and in support of his submissions, placed reliance upon the following decisions: (i) Leo Roy v. Superintendent, District Jail reported in AIR1958SUPREME COURT119 (ii) V.C.Shukla v. State (Delhi Administration) reported in (1980) 2 Supreme Court Cases 665. (iii) K.S.Narayanan and others v. S.Gopinathan reported in 1982 Cr.L.J.
1611. (iv) Kehar Singh v. State (Delhi Administration) reported in (1988) 3 Supreme Court Cases 609. (v) Sharad Yadav v. Union of India reported in 1999 (51) DRJ - 371. (vi) State of Kerala v. P.Sugathan reported in (2000) 8 Supreme Court Cases 203. (vii) Mahesh Joshi v. State reported in 2002 Cri.L.J.
97 (Kar). (viii) Central Bureau of Investigation, Hyderabad v. K.Narayana Rao reported in 2012 (6) CTC569 3.17. In sum and substance, it is the submission of the learned Senior Counsel appearing for the petitioners that though the investigation is going on for the past three years, no head-way made in the investigation and the respondent/CBI is unable to unearth any materials connecting the petitioners herein/A-6 and A-7 with the commission of the criminal act and the proceedings against them in the form of the impugned F.I.R is purely an abuse of process of law and hence, prays for quashment of the same insofar as they are concerned.
4. Per contra, Mr.G.R.Swaminathan, learned Special Public Prosecutor for CBI cases, has invited the attention of this Court to the impugned F.I.R, counter affidavit, reply to the counter affidavit filed by the petitioners and rejoinder to the reply filed by the respondent/CBI and made the following submissions:
4. 1. The agreement of sale dated 25.11.2008 entered into between the petitioners and the mother of A-1, namely, A-5, is nothing but a sham document as the sale consideration fixed was extremely high considering the nature of the properties which are situated far away from the place of business of the petitioners and the said transaction is nothing but a smoke screen to pay the illegal gratification and get the benefit or advantage through the illegal means and in this regard, the services of the mother of A-1/A-5 have been utilised, as one of the conditions of agreement of sale stipulates that the lands which are classified as agricultural lands have to be re-classified as industrial zone and the party of second part shall take necessary steps before completing the sale and admittedly, not even one step has been taken in that regard and in spite of it, the amounts were continued to be remitted and endorsements have also been made in the said agreement of sale. 4.2. The arbitration claim has been made with a view to give a semblance of legality and the claim petition was filed on 17.07.2012 and in the counter filed by the opposite party/A-5, the claim has been virtually conceded and the award itself came to be passed without any loss of time within a fortnight on 02.08.2012 and the execution was levied on 18.11.2012 and an interim order of attachment came to be passed on 20.09.2013 and it was made absolute on 17.02.2014 and it is not made known by the petitioners as to what had happened after the said order of attachment and they have also not gone for getting the order of interim measure restraining or forbearing the opposite party/A-5 from alienating the properties which normally they should have done and it also creates a suspicion about the manner in which the legal proceedings were conducted. 4.3. Earlier F.I.R is concerned, all exports pertain to the firm, namely, M/s.V.V.Minerals, in which, the petitioners/A-6 and A-7 are partners, were carried out by M/s.Raja Agencies, as their Custom House Agent and one of the partners, namely, D.Gnanaraj is also one of the partners of M/s.Indian Ports Terminal, Tuticorin, which participated in the tender for construction of shallow draught berth for handling the construction materials at Tuticorin Port Trust and A-1 in his capacity as the Acting Chairman, has scrutinised the bids and it is also the one of the important materials evidencing close proximity between the petitioners and A-1. 4.4. Insofar as the closure of the earlier F.I.R is concerned, the closure report as well as the order accepting the closure report, make it very clear that at present, no fresh evidence has come to light and in that context only, the prayer has been made to close the earlier F.I.R and as and when fresh materials are unearthed, the prosecution may also be revived and hence, it cannot be cited as a ground to quash the present F.I.R. 4.5. The reasons given in the order granting anticipatory bail, dated 07.01.2015, in Crl.O.P(MD)Nos.23176 and 23177 of 2014, cannot be construed as findings on the merits of the prosecution case for the reason that the allegations and counter allegations were considered and the learned Judge thought fit to grant anticipatory bail to the petitioners herein and it is a well settled position of law that the observations made in the order granting bail or anticipatory bail, cannot affect the investigation and the learned Judge in the order also made it very clear that the observations made, were only for the limited purpose of deciding the petitions for anticipatory bail and shall not in any way affect the ongoing prosecution and therefore, the point urged in this regard, deserves outright rejection. 4.6. In respect of the commission of the cognizable offence, no time limit can be prescribed for completion of investigation and in the case on hand, the crime has been committed in a scientific manner and that the concerned official, namely, A-1 continues to be in service as the Secretary of the Information Technology Department, State of West Bengal and the materials are being collected and hence, the delay in completing the investigation cannot be a ground to quash the prosecution at the threshold. Therefore, the learned Special Public Prosecutor for CBI cases, prays for the dismissal of this petition.
5. This Court paid it's best attention to the submissions made by the learned Senior Counsel appearing for the petitioners/A-6 and A-7 and the learned Special Public Prosecutor for CBI cases and carefully scanned through the materials placed and the decisions relied on, before it.
6. This Court, at the outset, makes it very clear that the investigation is in midway and hence, is refraining from commenting upon the materials placed before this Court on behalf of the petitioners in the typed set of documents. Any findings given on the materials, may affect the prosecution as well as the accused and hence, this Court is dealing with the merits of the legal plea put forth by the learned Senior Counsel appearing for the petitioners and the learned Special Public Prosecutor for CBI cases.
7. The learned Senior Counsel appearing for the petitioners placed heavy reliance upon the order dated 07.01.2015, passed in Crl.O.P(MD)Nos.23176 and 23177 of 2014, in and by which, the petitioners were granted anticipatory bail by this Court (Honourable Mr.Justice P.N.Prakash).
8. In Gurbaksh Singh Sibia v. State of Punjab reported in AIR1978P&H1:
1978. CrLJ20 it has been held that there is nothing in this Section (Section 438 Cr.P.C.) or it's legislative history which could give the least indication that the provision was intended to override the legitimate process of investigation into serious crime.
9. At the time of considering the application for bail, the High Court or Supreme Court cannot comment upon the nature of the evidence at the stage of granting bail as any expression of opinion by the High Court or Supreme Court would undoubtedly affect the trial. [Narayan Ghosh v. State of Orissa reported in (2008) 3 SCC693: AIR2008SC1159 10. No doubt, the learned Judge while enlarging the petitioners on bail in the event of arrest, vide order dated 07.01.2015, made in Crl.O.P(MD)Nos.23176 and 23177 of 2014, had made some observations in paragraphs 17, 18, 19, 21, 22 and 23. Since elaborate arguments have been advanced before the learned Judge by the learned Senior Counsel appearing for the petitioners and the learned Special Public Prosecutor for CBI cases, by inviting the attention to various materials, the learned Judge was constrained to make some observations touching upon the merits of the prosecution case as per the version given in the F.I.R.
11. The ratio laid down in the above cited decision makes it very clear that either this Court or the Honourable Supreme Court cannot comment upon the nature of the evidence at the stage of considering the bail application as it may affect the trial.
12. The learned Judge in paragraph 31 of the said order, made it very clear that the observations made is only for the limited purpose of deciding the petitions for anticipatory bail and shall not in any way affect the ongoing prosecution. Therefore, the petitioners cannot take advantage or rely on the observations made in the above said order to buttress the point that the impugned F.I.R as against them, is liable to be quashed.
13. It is the submission of the learned Senior Counsel appearing for the petitioners that while advancing the arguments before the learned Judge, at the time of hearing the petitions for anticipatory bail, the prosecution has virtually conceded that no offence of abetment took place, but, pressed the point that the petitioners/A-6 and A-7 conspired with the other accused and hence, they are liable to face the prosecution.
14. As regards the commission of the offence of conspiracy, the following propositions/principles emerge from the decisions relied on by the learned Senior Counsel appearing for the petitioners/A-6 and A-7:
14. 1. The offence of a conspiracy to commit a crime is a different offence from the crime that is the object of the conspiracy because the conspiracy precedes the commission of the crime and is complete before the crime is attempted or completed, equally the crime attempted or completed does not require the element of conspiracy as one of its ingredients and they are, therefore, quite separate offences. 14.2. In order to prove a criminal conspiracy which is punishable under Section 120-B there must be direct or circumstantial evidence to show that there was an agreement between two or more persons to commit an offence. This clearly envisages that there must be a meeting of minds resulting in an ultimate decision taken by the conspirators regarding the commission of an offence. 14.3. Merely levelling a charge of conspiracy, without mentioning how, where, when and which of the conspirators hatched the conspiracy and for what purpose, or circumstances warranting an inference of existence of a conspiracy, is not enough to bring persons to face the trial in a criminal Court. 14.4. The ingredient of offence of conspiracy is an agreement between two or more persons to do an illegal act and it may or may not be done in pursuance of agreement, but the very agreement is an offence and is punishable. Generally, a conspiracy is hatched in secrecy and it may be difficult to adduce direct evidence of the same. It is, however, essential that the offence of conspiracy requires some kind of physical manifestation of agreement. The express agreement, however, need not be proved. Nor actual meeting of two persons is necessary. Nor it is necessary to prove the actual words of communication. The evidence as to transmission of thoughts sharing the unlawful design may be sufficient. 14.5. Admission of accused accepting receipt of money as political donation, would not lead to the commission of offence of criminal conspiracy or criminal intent has been proved. [Sharad Yadav v. Union of India reported in 1999 (51) DRJ - 371. Also known as Jain Diaries/Hawala case]. 14.6. Where the factum of conspiracy is sought to be inferred from circumstances, the prosecution has to show that the circumstances give rise to a conclusive or irresistible inference of an agreement between two or more persons to commit an offence and as in all other criminal offences, the prosecution has to discharge its onus of proving the case against the accused beyond reasonable doubt. The circumstances in a case, when taken together on their face value, should indicate the meeting of the minds between the conspirators for the intended object of committing an illegal act or an act which is not illegal, by illegal means. A few bits here and a few bits there on which the prosecution relies cannot be held to be adequate for connecting the accused with the commission of the crime of criminal conspiracy. It has to be shown that all means adopted and illegal acts done were in furtherance of the object of conspiracy hatched. During its subsistence whenever any one of the conspirators does an act or series of acts, he would be held guilty under Section 120-B I.P.C. 14.7. The offence of conspiracy cannot be deemed to have been established on mere suspicion and surmises or inference, which are not supported by cogent and acceptable evidence. 14.8. At the stage of considering the petition for discharge, there was no bar to consider the material on record in the case on hand which was collected during the course of the investigation and produced before the Court and particularly, in view of the directions given. There cannot be any difficulty in accepting the above said propositions laid down by the Honourable Supreme Court in a catena of decisions, but, in almost all the decisions cited by the learned Senior Counsel appearing for the petitioners, the materials were available in the form of charge sheet and documents and thus, the materials were taken into consideration in arriving at findings either to quash the proceedings or to dismiss the challenge made to those proceedings.
15. In the case on hand, the investigation is in midway and no doubt, it is pending from the year 2012 onwards, but the fact remains that the prime accused who is an I.A.S officer, is still in service as the Secretary of the Information Technology Department, State of West Bengal and most of it are in the form of documents and it would definitely take time to collect the same.
16. It is also a well settled position of law that no time limit can be fixed for completion of the investigation in respect of a cognizable offence as it may affect either the prosecution or the accused.
17. It is not as if all the F.I.Rs., would result in filing of a positive final reports and even in this proceedings, it has been brought to the knowledge of this Court that earlier F.I.R registered by the respondent/CBI on 30.08.2011 was closed and final report was also accepted by the jurisdictional Court on 06.07.2013 and therefore, it cannot be said that the prosecution is tainted with mala fides.
18. The scope of Section 482 Cr.P.C., came up for consideration in very many decisions rendered by the Honourable Supreme Court and it is relevant to refer to the following decisions:
18. 1. In Rupan Deol Bajaj v. Kanwar Pal Singh Gill reported in (1995) 6 Supreme Court Cases 194, the F.I.R registered against the respondent, namely, K.P.S.Gill, the Director General of Police, Punjab, came to be quashed and challenging the same, the persons aggrieved preferred the Criminal Appeal before the Honourable Supreme Court. The Honourable Supreme Court has taken into consideration the decision in State of Haryana v. Bhajan Lal reported in 1992 Supp (1) SCC335and more particularly, to categories (1), (3) and (5), which are as follows: (1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. (3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. and held that the allegations contained in the F.I.R constitute the offence for which the respondent/accused have been charged and allowed the appeals and thereby, set aside the order of the High Court quashing the F.I.R. It is relevant to extract paragraph 23, hereunder:
"3. We are constrained to say that in making the above observations the High Court has flagrantly disregarded - unwittingly we presume - the settled principle of law that at the stage of quashing an FIR or complaint the High Court is not justified in embarking upon an enquiry as to the probability, reliability or genuineness of the allegations made therein. Of course as has been pointed out in Bhajan Lal's case [1992 Supp (1) SCC335:
1992. SCC (Cri) 426]. an FIR or a complaint may be quashed if the allegations made therein are so absurd and inherently improbable that no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused but the High Court has not recorded such a finding, obviously because on the allegations in the FIR it was not possible to do so. For the reasons aforesaid we must hold that the High Court has committed a gross error of law in quashing the FIR and the complaint. Accordingly, we set aside the impugned judgment and dismiss the petition filed by Mr. Gill in the High Court under Section 482 CrPC. " (emphasis supplied.) 18.2. In T.Vengama Naidu v. T.Dora Swamy Naidu reported in (2008) 2 Supreme Court Cases (Cri) 231, the order of the Andhra Pradesh High Court quashing the F.I.R was put to challenge before the Honourable Supreme Court which allowed the appeal and in paragraph 8, it has been observed as follows: "8. A glance at the FIR suggests that there were serious allegations against both the accused, respondents 1 and 2 herein inasmuch as it was specifically alleged that in spite of the revocation of the General Power of Attorney and in spite of a specific notice to that effect by the complainant to the first respondent, the first respondent went on dishonestly to execute the sale deed in favour of his own daughter on the basis of the said revoked General Power of Attorney. It is alleged against the first respondent that he had no right over the property and yet he had executed a document in favour of the second respondent without any authority with an intention to cause loss to the complainant and to cheat him. It was alleged against the second respondent that she was well aware that the first respondent was not competent to sell the property so as to defraud and cheat the complainant and, therefore, she also was liable to be punished under Sections 464, 423, 420 read with Section 34 IPC. It was not for the learned Judge at the stage of investigation to examine the nature of the transaction and further to examine as to whether any offence was actually committed by the accused persons or not. At that stage the only inquiry which could have been made was as to whether the complaint or the FIR did contain allegations of any offence. Whether those offences were made out, even prima facie, could not have been examined at that stage as the investigation was pending then. We, therefore, do not agree with the learned Single Judge that the FIR was liable to be quashed. We also do not agree with the learned Judge that there are no ingredients of the offences complained of in the FIR and this was a civil dispute. However, we do not wish to go deeper into that question. Our prima facie examination satisfies us that there were ingredients of offences complained of and, therefore, at that stage the High Court could not have quashed the FIR as well as the investigation. The appeal, therefore, has to be allowed, setting aside the order of the learned Single Judge. " (emphasis added.) 18.3. In Devendra v. State of U.P. reported in (2009) 3 Supreme Court Cases (Cri) 461, the Honourable Supreme Court found that the dispute is purely of civil in nature and no offence has been made out from the allegations in the F.I.R and therefore, initiation of criminal proceedings under Sections 420, 467, 468 and 469 I.P.C, is not justified and quashed the proceedings. The Honourable Supreme Court in the said decision has also placed reliance upon the decision in Kamaladevi Agarwal v. State of W.B. reported in (2002) 1 SCC555 wherein it has been held that 'Criminal prosecution cannot be thwarted at the initial stage merely because civil proceedings are also pending..... This Court has consistently held that the revisional or inherent powers of quashing the proceedings at the initial stage should be exercised sparingly and only where the allegations made in the complaint or the FIR, even if taken it at the face value and accepted in entirety, do not prima facie disclose the commission of an offence. Disputed and controversial facts cannot be made the basis for the exercise of the jurisdiction.' The decision in R.Kalyani v. Janak C.Mehta reported in (2009) 1 SCC516 was also considered in the said decision, wherein the propositions of law have been considered, thus:
"5. Propositions of law which emerge from the said decisions are : (1) The High Court ordinarily would not exercise its inherent jurisdiction to quash a criminal proceeding and, in particular, a first information report unless the allegations contained therein, even if given face value and taken to be correct in their entirety, disclosed no cognizable offence. (2) For the said purpose, the Court, save and except in very exceptional circumstances, would not look to any document relied upon by the defence. (3) Such a power should be exercised very sparingly. If the allegations made in the FIR disclose commission of an offence, the court shall not go beyond the same and pass an order in favour of the accused to hold absence of any mens rea or actus reus. ***** ***** 16. It is furthermore well known that no hard and fast rule can be laid down. Each case has to be considered on its own merits. The Court, while exercising its inherent jurisdiction, although would not interfere with a genuine complaint keeping in view the purport and object for which the provisions of Sections 482 and 483 of the Code of Criminal Procedure had been introduced by the Parliament but would not hesitate to exercise its jurisdiction in appropriate cases. One of the paramount duties of the Superior Courts is to see that a person who is apparently innocent is not subjected to persecution and humiliation on the basis of a false and wholly untenable complaint."
(emphasis given) 18.4. In M.N.Ojha v. Alok Kumar Srivastav reported in 2009 (11) SCALE573 it has been held that 'Normally, the High Court would not intervene in the criminal proceedings at the preliminary stage/when the investigation/enquiry is pending. Interference by the High Court in exercise of its jurisdiction under Section 482 of Code of Criminal Procedure can only be where a clear case for such interference is made out. Frequent and uncalled for interference even at the preliminary stage by the High Court may result in causing obstruction in progress of the inquiry in a criminal case which may not be in the public interest. ........ where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no fair-minded and informed observer can ever reach a just and proper conclusion as to the existence of sufficient grounds for proceeding. ........ That statutory power has to be exercised sparingly, with circumspection and in the rarest of rare cases.'. 18.5. In State of Maharashtra v. Arun Gulab Gawali reported in 2010 (8) SCALE542 the power of quashing the criminal proceedings, came up for consideration and it has been held that 'The power of quashing criminal proceedings has to be exercised very sparingly and with circumspection and that too in the rarest of rare cases and the Court cannot be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of allegations made in the F.I.R./Complaint, unless the allegations are so patently absurd and inherently improbable so that no prudent person can ever reach such a conclusion. The extraordinary and inherent powers of the Court do not confer an arbitrary jurisdiction on the Court to act according to its whims or caprice. However, the Court, under its inherent powers, can neither intervene at an uncalled for stage nor it can `soft-pedal the course of justice' at a crucial stage of investigation/ proceedings. The provisions of Articles 226, 227 of the Constitution of India and Section 482 of the Code of Criminal Procedure, 1973 (hereinafter called as 'Cr.P.C.') are a device to advance justice and not to frustrate it. The power of judicial review is discretionary, however, it must be exercised to prevent the miscarriage of justice and for correcting some grave errors and to ensure that esteem of administration of justice remains clean and pure. However, there are no limits of power of the Court, but the more the power, the more due care and caution is to be exercised in invoking these powers. ......... The High Court proceeded on the perception that as the complainant himself was not supporting the complaint, he would not support the case of the prosecution and there would be no chance of conviction, thus the trial itself would be a futile exercise. Quashing of FIR/Complaint on such a ground cannot be held to be justified in law.' 19. The ratio laid down in the above cited decisions is that in exercise of powers under Section 482 Cr.P.C. it is not permissible for the High Court to appreciate the evidence as it can only evaluate the material documents on record to the extent of its prima facie satisfaction about the existence of sufficient ground for proceeding against the accused and the Court cannot look into materials, the acceptability of which is essentially a matter for trial. Any document filed along with the petition labelled as evidence without being tested and proved, cannot be examined.
20. In State of Bihar v. P.P.Sharma reported in 1992 Supp (1) SCC222: AIR1991SC1260 the quashing of charge sheet under Section 482 Cr.P.C., came up for consideration and in paragraph 68, it has been held as follows:
"8. .... Quashing the charge-sheet even before cognizance is taken by a criminal court amounts to 'killing a stillborn child'. Till the criminal court takes cognizance of the offence there is no criminal proceedings pending. I am not allowing the appeals on the ground that alternative remedies provided by the Code as a bar. It may be relevant in an appropriate case. My view is that entertaining the writ petitions against charge-sheet and considering the matter on merit in the guise of prima facie evidence to stand an accused for trial amounts to pre-trial of a criminal trial ..... It is not to suggest that under no circumstances a writ petition should be entertained. .... The charge-sheet and the evidence placed in support thereof form the base to take or refuse to take cognizance by the competent court. It is not the case that no offence has been made out in the charge-sheets and the first information report."
(emphasis supplied.) 21. In the light of the above cited decisions, this Court is of the view that this Court, at this stage, in exercise of it's powers under Section 482 Cr.P.C. cannot weigh the correctness or sufficiency of evidence of the documents relied on by the petitioners in the typed set of documents to arrive at a conclusion that no offence has been made out as per the F.I.R.
22. Investigation should not be shut down at the threshold and it is the material collected during the investigation and the evidence let in before the Court, which decide the fate of the accused persons.
23. The contents of the F.I.R prima facie disclose that there are materials exist to substantiate the role/complexity played by the petitioners/A-6 and A-7 and only a full-fledged investigation would unearth the materials and therefore, it is not safe or wise to quash the F.I.R as prayed for by the petitioners.
24. It is not as if the petitioners are left with no other remedy and if the respondent/CBI, ultimately, finds that there are enough materials available to implicate the petitioners/A-6 and A-7 for having abetted the commission of the offence of conspiracy and under the PC Act and files the charge sheet, it is always open to them to challenge the same in the manner known to law.
25. This Court is of the view that it is premature at this stage to consider the defence put forth by the petitioners/A-6 and A-7 and it is always open to them to produce the materials in support of their defence to the respondent/CBI who may also take into consideration the same before filing the final report.
26. This Court, in the light of the facts placed before it and taking into consideration the ratio laid down in various decisions of the Honourable Supreme Court cited above, is of the considered opinion that this petition lacks merit and deserves dismissal.
27. Accordingly, this Criminal Original Petition is dismissed. It is made clear that the observations made hereinabove are only for the purpose of disposal of this petition and it is open to the respondent/CBI to file the final report based on the quality of materials collected during the investigation. Index :Yes 25.03.2015 Internet:Yes rsb To 1.The Deputy Inspector General of Police, Central Bureau of Investigation, Anti-Corruption Bureau, Chennai. 2.The Superintendent of Police, Central Bureau of Investigation, Anti-Corruption Bureau, Chennai. 3.The Special Public Prosecutor for CBI cases, Madurai Bench of Madras High Court, Madurai. M.SATHYANARAYANAN,J.
rsb PRE-DELIVERY
ORDERMADE IN Crl.O.P.(MD)No.23293 of 2014 25.03.2015