Rakesh Mittal vs Central Bureau Of Investigation & Ors

Lok Pal Singh, J

1) This criminal revision has been preferred against the order dated 19.07.2018 passed by Special Judge, Anti-Corruption, C.B.I., Dehradun in C.B.I. Case No.3 of 2006, C.B.I. vs. P.D. Raturi, whereby the application (paper no.475b) moved by the revisionist u/s 311 of Cr.P.C, to recall and re-examine the witness PW1 Mr. S.K. Das and the application (paper no.464b) moved by the revisionist u/s 319 of Cr.P.C. to summon respondent nos. 2, 3 and 4, as accused persons, have been dismissed.

2) Facts, in brief, are that CBI/SPF/Dehradun registered FIR No.RC0072003A0018 under Section 120-B, 420, 467, 471 and 477 of The Indian Penal Code, 1860 (for short, IPC) as well as u/s 13(2) r/w 13(1)(d) of Prevention of Corruption Act, 1988 against the revisionist and some others, on the basis of written complaint dated 18.11.2003 moved by Mr. O.P. Tiwari, the then under Secretary, Department of Home Affairs, Government of Uttaranchal, Dehradun. The gravamen of the allegations are that in order to recruit 253 Sub Inspector in the Civil Police/Intelligence/PAC of Uttaranchal Police, the State Government had set up an Interview Board by its order dated 22.07.2002 with the DGP/ADG, Police Uttaranchal as Chairman, 3 officers of IG/DIG level as members and representatives of the District Magistrate of Nainital and Dehradun. The final results of the selection examination were declared on 06.10.2002. On 20.09.2003, it was informed by DGP Uttaranchal to the Government that there are certain discrepancies in the marks of the written examination of seven candidates. On a prima facie comparison of the marks secured by the candidates (as per the records of the Uttaranchal Police and the marks obtained by the Department from the IIT, Roorkee), it was found that seven candidates having the Roll Nos.11422, 11424, 11427, 31883, 30270, 30838 and 31542, who had qualified in the final examination, were shown as having received 479, 484, 494, 548, 439, 394, 444 marks in the written examination whereas they were actually awarded 472, 474, 488, 448, 424, 374, 424 marks respectively by the IIT Roorkee. Out of these seven candidates, two candidates had been awarded odd marks viz. 479 and 439 which was not possible, because every written question carried 2 marks each and there was no provision for negative marking. The matter was investigated and on completion of investigation, charge-sheet was filed by the CBI against the revisionist Rakesh Mittal, the then Additional Director General of Police Uttaranchal and respondent no.5 Prem Dutt Raturi, the then Director General of Police, after requisite sanction for prosecution. During trial, revisionist filed application u/s 319 Cr.P.C before the trial court on 02.01.2018, stating that the C.B.I. has mentioned the name of respondent no.2-Mr. Alok Bihari Lal, then Inspector General of Police (Karmik), Uttaranchal as a witness in this case. But, the evidence collected by the CBI and the witnesses (PW1 to PW10) deposed before the learned trial court clearly point out that tempering in the marks of some candidates in floppy containing the written marks of all the short listed candidates was done by respondent no.2 with the help of his trusted person namely Mr. G.C. Pant, the then State Radio Officer, Uttaranchal (respondent no.4 herein) and the motive of the crime of respondent no.2 was to cook up a criminal case for implicating the revisionist (who was senior to respondent no.2 and would retire at the same time i.e. 31.12.2011, as respondent no.2) so that he would be appointed Director General of Police, Uttaranchal. It is also contended that respondent no.2 did this crime with immunity with the association of respondent no.5 Mr. P.D. Raturi, the then DGP, Uttaranchal and respondent no.3 Mr. Surjit Kumar Das, the then Principal Secretary (Home), Uttaranchal. Reply/objections were submitted by the C.B.I. against the application. On the application, trial court fixed 28.02.2018 for the arguments of the respective parties. On 28.02.2018, revisionist moved another application u/s 311 of Cr.P.C., thereby praying to recall and re-examine Mr. S.K. Das, PW-1. Learned trial court, after hearing the parties, rejected the application moved u/s 311 of Cr.P.C. on the ground that no specific questions have been mentioned in the application, regarding which the applicant seeks to get the witness PW1 recalled and re-examined, and further that the application has been filed with the delay of three years wherefor no explanation has been given. On the application moved u/s 319 of Cr.P.C., the trial court observed that prima facie from the material available on record and the evidence adduced before the court, no complicity of either Mr. S.K. Das, Mr. A.B. Lal or Mr. G.C. Pant, comes out in connection with the commission of the offence in the present matter. Both the altered and unaltered data was found in the laptop of the revisionist himself. Accordingly, application u/s 319 of Cr.P.C. was also dismissed.

3) Heard learned counsel for the parties and perused the entire record.

4) Having considered the explanation given in the application moved by the revisionist under Section 311 Cr.P.C. to recall and re-examine PW1 Mr. S.K. Das, as neither the question is suggested nor explained why the said witness is required to be recalled and re-examined, I do not find any good ground to interfere in the order passed by the trial court rejecting the application filed under Section 311 Cr.P.C. and the order passed by the trial court on the application (paper no. 475b) is hereby affirmed.

5) At the very onset, Mr. Rakesh Thapliyal, Special Counsel appearing for the C.B.I. would raise preliminary objection regarding maintainability of application moved by the revisionist u/s 319 of Cr.P.C. He would submit that the application filed u/s 319 of Cr.P.C. at the behest of the revisionist, who is an accused in the case, is not maintainable. To buttress his submission, learned counsel would place reliance on the judgment of Hon'ble Apex Court rendered in the case of Jogendra Yadav & others Vs State of Bihar & another, (2015) 9 SCC 244.

6) Learned Special Counsel for the CBI has also placed reliance on the Judgment rendered by Hon'ble Apex Court in Chiraqdalvi Mohammed Abdul Azeem Ahmed Vs State of U.P., 1997 OnLine AP 455, as also a judgment of the High Court of Delhi in Mohan Wahi Vs State, 1982 Crl. L.J. 2040 (Delhi).

7) Having considered the ratio of the judgments (supra) and on a careful reading of Section 319 Cr.P.C., to my mind power vests in the court are discretionary in nature and the same may be exercised suo motu as it does not require any application either by the prosecution or any other person. It is held that an application filed by the accused under Section 319 Cr.P.C. is maintainable.

8) This plea has been raised first time in revision, whereof the said plea was not taken before the trial court that the application filed by an accused under Section 319 Cr.P.C. is not maintainable. Since the legal plea of maintainability of an application filed by an accused under Section 319 Cr.P.C. has been challenged thus, it is obvious for this Court to decide the maintainability of application in the revision. Therefore, it is held that the accused can also invoke the power of the court by filing such an application. The application filed by the accused to summon the person against whom the evidence has arrived during trial that he has committed an offence, is maintainable.

9) On merits, learned counsel for the respondents has placed reliance on the following judgments in support of his contention:

i) 2007 (14) SCC 783, Paul Varghese Vs State of Kerala and others

ii) 2011 (2) SCC 532, Kalyan Kumar Gogoi Vs Ashutosh Agnihotri

iii) 2014 (3) SCC 92, Hardeep Singh Vs State of Punjab

iv) 2014 (3) SCC 306, Dharampal and others Vs State of Haryana

v) 2016 (12) SCC 394, Hardei Vs State of U.P

vi) (2017) 16 SCC 226, Yogendra Chandak Vs S. Mohammed Ispahani

vii) 2019 SCC Online SC 703, Sukhpal Singh Khaira Vs State of Punjab

viii) 2019 (4) SCC 556, Sunil Kumar Gupta Vs State of U.P.

10) It is pertinent to note here that the entire examination was supervised by Mr. A.B. Lal and Mr. G.C. Pant, as they were in regular touch with the examination conducting body, i.e., IIT Roorkee. The floopy was received by Mr. A.B. Lal and Mr. G.C. Pant from IIT Roorkee on 19.04.2002 and the same remained in the custody of Mr. A.B. Lal till 23.07.2002. The floppy was handed over by Mr. A.B. Lal to the revisionist on 24.07.2002.

11) Having heard learned counsel for the parties and having gone through the material available on record, this Court is of the considered opinion that the application (paper no. 475b) moved under Section 311 Cr.P.C. by the revisionist has been rightly dismissed by the trial judge after recording the findings in conformity with the law propounded by the Hon'ble Apex Court in the case of Ratan Lal Vs Prehlad Jatt & others, (2017) 9 SCC 340, wherein it has been held that recall of the witness already examined is not a matter of course and discretion vested in the court in this regard has to be exercised judicially to prevent failure of justice.

12) In Hardeep Singh Vs State of Punjab, (2014) 3 SCC 92, initially the reference was made by a two Judges bench vide order dated 07.11.2008 and subsequently on coming to the conclusion that there are contradictory views of two benches of the Hon'ble Apex Court, the reference was desired to be resolved by a three Judges bench and to resolve the reference made in the said case the three Judges bench was constituted. Following questions were framed to be answered by the three Judges bench:

(i) What is the stage at which power under Section 319 CrPC can be exercised?

(ii) Whether the word "evidence" used in Section 319(1) CrPC could only mean evidence tested by cross-examination or the court can exercise the power under the said provision even on the basis of the statement made in the examination-in-chief of the witness concerned?

(iii) Whether the word "evidence" used in Section 319(1) CrPC has been used in a comprehensive sense and includes the evidence collected during investigation or the word "evidence" is limited to the evidence recorded during trial?

(iv) What is the nature of the satisfaction required to invoke the power under Section 319 CrPC to arraign an accused? Whether the power under Section 319(1) CrPC can be exercised only if the court is satisfied that the accused summoned will in all likelihood be convicted?

(v) Does the power under Section 319 CrPC extend to persons not named in the FIR or named in the FIR but not charged or who have been discharged?

13) The three Judges bench in the judgment (supra) has answered all the questions and resolved that the provisions of Section 319 Cr.P.C. could be invoked at any stage and the trial court need not to wait till all the witnesses are cross-examined. Hon'ble Supreme Court has further observed that the nature of the satisfaction required to invoke the power under Section 319 Cr.P.C. to arraign an accused if the Court is satisfied that the accused summoned will be in all likelihood be convicted. Therefore, the application can be entertained by the trial court at any stage. So far as the summoning of an accused is concerned, the court itself has to satisfy that there is sufficient evidence to summon an accused to be tried. The Hon'ble Apex Court while observing in regard to the satisfaction of the trial court held that there should be likelihood to convict an accused, meaning thereby, that there should be evidence on record to show the involvement of the person in the crime being summoned. The degree of evidence is to be on higher side.

14) The ratio of the judgment (supra) is that summoning an accused in exercise of powers under Section 319 Cr.P.C. is a serious issue. Thus, discretionary powers should not be exercised by the trial Judge in cryptic and routine manner as summoning of a person to face a criminal trial would impeach the reputation of that person in the society. However, a person against whom evidence is available, should not be let free and summons be issued to make such person to face criminal trial.

15) A perusal of the allegations made in the FIR, the charge sheet submitted by the CBI and the evidence recorded during trial would reveal that initially the revisionist was named along with unnamed police officers and other unknown persons. After completion of investigation, charge sheet was submitted against the revisionist and Mr. P.D. Raturi. A perusal of evidence available on record would reveal that there was no authorization to Mr. A.B. Lal and Mr. G.C. Pant to receive the floppy from the IIT Roorkee (written examination conducting body). Both of them, on their own, received the unsealed floppy from the IIT Roorkee as admitted by PW-23 Professor D.D. Das (Retd.) of IIT Roorkee. Said Professor has also averred that Police Headquarters was requested to depute an officer in whose presence OMR answer sheet envelope be opened. The Police Headquarters has appointed Mr. G.C. Pant for the said purposes and the sealed envelopes were opened in his presence. The scanning was done through M/s Methodex Co. Ltd., Delhi. M/s Methodex Co. Ltd. after scanning the result, the scanner was attached with computer which was compiled later on and the data was secured in the hard disc which could be taken away from the hard disc of the computer. The scanning process was continued till 12 and 13th April, 2002. Mr. A.B. Lal was called on 19.04.2002 so that the candidates be shortlisted as per the reservation policy which was not earlier provided to the examination conducting body and thereafter the list was prepared. The copy of the final result of selected candidates was prepared in ascending order, but in the night at 08:30 to 09:00 P.M., the CD Writer rendered faulty, therefore, the data could not be copies. Two floppy data was copies and sealed by cello tape and handed over to Mr. A.B. Lal in presence of Mr. G.C. Pant. It is further averred that Mr. A.B. Lal was requested to take the hard copy, but he denied the same. Despite the fact that the floppy was handed over to Mr. A.B. Lal, the record was retained by IIT Roorkee.

16) Perusal of the statement of PW-23 D.D. Das and the statement of Mr. A.B. Lal would reveal that the floppy as obtained by Mr. A.B. Lal in presence of Mr. G.C. Pant remained with Mr. A.B. Lal till 23.07.2002. It was handed over to the revisionist on 23.07.2002. The evidence available on record would reveal that the floppy was opened on 19.04.2002 when it was with Mr. A.B. Lal at 08:51 P.M. It would be apt to note here that Mr. A.B. Lal and Mr. G.C. Pant said to be authorized by the Director General of Police to receive the floppy from the IIT Roorkee, but there is no evidence available on record showing that ever Mr. A.B. Lal and Mr. G.C. Pant were authorized to receive the floppy from IIT, Roorkee. Evidence would further show that Mr. A.B. Lal and Mr. G.C. Pant have obtained the floppy in unsealed manner. Statement of PW3 Mr. D.D. Das again creates a doubt in the working and giving the unsealed floppy to Mr. A.B. Lal. However, PW-23 has tried to make out a case that the C.D. Writer became faulty and the data could not be copied. The laptop wherein data was copied on 19.04.2002 remained with Mr. G.C. Pant and it was never handed over to the revisionist. The place of keeping the computers and laptop was accessible to all. The computer and laptop were neither sealed nor were kept under lock and key.

17) Prima facie, it appears that since unsealed copy of floppy was taken by Mr. A.B. Lal from IIT Roorkee and he did not take care to ensure the fact that it involves a serious consequences of tempering it, the serious doubt again creates in the working of Mr. A.B. Lal and Mr. G.C. Pant as they have received the floppy without any authorization letter and subsequently on 23.07.2002 handed over the floppy to the revisionist. As the revisionist has then risen to the position of Director General of Police, Mr. P.D. Raturi declared the results.

18) From the close scrutiny of evidence brought on record, the complicity of Mr. A.B. Lal, and Mr. G.C. Pant (respondent nos. 2 and 4 herein) in the matter cannot be ruled out and there is sufficient evidence available on record to summon them though they are prosecution witnesses. However, this Court does not find the complicity of Mr. S.K. Das (respondent no. 3 herein) in the matter and order dismissing the application against him is affirmed. The finding recorded by the trial court that altered and unaltered data was found in the laptop of revisionist is not based on any evidence on record. Further, a perusal of material brought on record would reveal that the manner of taking the floppy, keeping the same with himself by Mr. A.B. Lal and Mr. G.C. Pant for a considerable period upto 23.07.2002 and handing over the floppy to the revisionist on 23.07.2002 as it was accessed on 19.04.2002 between 08:51 P.M. to 09:00 P.M. and again the laptop, wherein floppy was accessed remained with Mr. G.C. Pant. The complicity of respondent nos. 2 and 4 cannot be ruled out and, prima facie, it appears that they have been saved by the Investigating Agency whereof they should have been charge sheeted by the Investigating Agency.

19) On a perusal of the evidence available on record, this Court is of the firm opinion that the application (paper no. 464b) moved by the revisionist ought to have been allowed by the trial court to summon respondent nos. 2 and 4, as an accused, but the trial court in a cursory and casual manner recorded a finding that it is an attempt of the accused-revisionist to delay the hearing of the trial, which cannot be said to be just and proper reasoning. The same is unsustainable in the eyes of law. It may be an attempt of revisionist to delay the trial, but to bring home the guilt of the culprits and in the interest of justice, the trial court should have invoked its powers under Section 319 Cr.P.C., which the trial court has failed to do. It appears that the trial court recorded its findings without scrutinizing the evidence properly only being influenced by the reason that the revisionist is trying to delay the hearing of the case. The trial court should not have influenced itself by the said observation while taking decision on the application and the decision ought to have been taken on proper scrutiny of the evidence available on record, in view of the ratio laid down by the Hon'ble Apex Court in the judgments (supra). The trial court misconstrued the provisions contained in Section 319 Cr.P.C. Since, the evidence has not been scrutinized properly and application has been dismissed, the finding recorded by the trial court in rejecting the application under Section 319 Cr.P.C. is unsustainable. The same is liable to the set aside and accordingly set aside.

20) In view of the foregoing discussion, the criminal revision is partly allowed. The order passed by the trial court rejecting application (application no. 475b) moved by the revisionist under Section 311 Cr.P.C. is hereby affirmed. However, the impugned order passed by the trial court on application (paper no. 464b) under Section 319 Cr.P.C. is hereby quashed. The matter is remanded back to the trial court to decide the application (paper no. 464b) moved by the revisionist under Section 319 Cr.P.C. afresh, in accordance with law, after giving opportunity of hearing to the revisionist as well as to respondents herein. It is made clear that any observations made by this Court in arriving to the conclusions aforesaid will not influence the trial court in taking independent decision on the application under Section 319 Cr.P.C.