Sanjay Dalmia vs State of U.P. and Others

D.C. Srivastava, J.—These two petitions u/s 482 of the Code of Criminal Procedure, arising out of the same charge-sheet having identical prayer can be disposed of by a common judgment.

The brief facts are that one Uma Shanker Sitani filed a Criminal Writ Petition No. 325 of 1994 in the Supreme Court of India. Both the Petitioners were not parties in the said writ petition. On 5.5.1995 a direction was issued by the Supreme Court, as contained in Annexure 1 of the Criminal Misc. Application of Sanjay Dalmia and in pursuance of this direction, first information report was registered by C.B.I. and the case was investigated. The first information report was registered on 16.5.1995. In the said first information report, Rakesh Kumar Singh Chauhan, the Petitioner in the other case, who was the then Sub-Inspector of police station Sahibabad, district Ghaziabad was named as an accused, besides S.R. Yadav, Inspector of Police S. H. O., police station Sahibabad, S.I. Mahendra Pal Singh of police station Sahibabad, constable Subhash Chandra Yadav of police station Sahibabad and other unknown persons, besides the Petitioner Sanjay Dalmia. After investigating the case, C.B.I. submitted a charge-sheet against the two Petitioners on 24.7.1996. In the said charge-sheet, it was found that the allegations against Inspector Sewak Ram Yadav, S. I. Mahendrapal Singh and constable Subhash Chandra Yadav could not be substantiated as nothing incriminating was found against them. Consequently, charge-sheet was not submitted against them. Inspector Dhruva Lal Yadav died during the course of investigation, hence no charge-sheet was submitted against him. The charge-sheet was filed in the Court of Special Magistrate (C.B.I.), Dehradun, who considered the charge-sheet and the material on which the charge-sheet was submitted and ultimately through order Annexure 4 took cognizance against the two Petitioners under Sections 120B, 193, 211, 218, 419, 469, 500, 468 and 420, I.P.C. and issued non-bailable warrant of arrest against the Petitioners.

The Petitioner Sanjay Dalmia has challenged the order of the learned Magistrate and also the charge-sheet on the ground that the evidence disclosed against him in the charge-sheet is hardly sufficient for proceeding against him. In Paragraph 8 of the affidavit, the grounds mentioned against him in the charge-sheet, numbering three, have been enumerated. It is also said that Sanjay Dalmia, one of the Petitioners was never interrogated by the Investigating Officer of C.B.I. and that he never entered any criminal conspiracy and that the charge-sheet has been submitted only to tarnish his image.

The contention of the other Petitioner Rakesh Kumar Singh Chauhan has been that he discharged his duties as Investigating Officer honestly and that he did not commit any offence nor did he enter in any conspiracy, as alleged against him.

In the counter-affidavit, the Investigating Officer of C.B.I. has mentioned that sufficient evidence was collected against the two Petitioners and that Petitioner Sanjay Dalmia was interrogated on two dates, namely, 2.8.1995 and 3.11.1995 in the office of S. P., C.B.I., New Delhi by the Investigating Officer along with a team of Officers.

Learned Counsel for the parties were heard at length and the material on record was carefully examined. Sri Girdhan Nath, learned Counsel representing C.B.I. argued that since only non-bailable warrant has been issued and charges have not been framed, hence no interference u/s 482 of the Code of Criminal Procedure is called for. He cited number of authorities in support of his contention that in such matters, quashing of charge-sheet in exercise of jurisdiction u/s 482 of the Code of Criminal Procedure is not justified.

In State of T.N. Vs. Thirukkural Perumal, , it was held that power of quashing a first information report and criminal proceedings should be exercised sparingly by the Courts. It was further held that the Court is not justified in embarking upon an enquiry as to the genuineness of the allegations made in the first information report or complaint on the basis of evidence collected during investigation. Such evidence is yet to be produced before the trial court.

In Radhey Shyam v. Kunj Behari and Ors. with Radhey Shyam Vs. Kunj Behari and Others, , the investigation was conducted by the civil police. It was thereafter handed over to C.I.D. because of unsatisfactory investigation by the police. The High Court quashed the charge on the ground of inadequacy of evidence. This order was set aside and it was ordered that due consideration to the fact that investigation was handed over to C.I.D. was not given by the High Court.

InState of Bihar and Anr. v. K.J.D. Singh 1994 SCC 63, it was held by the Supreme Court that power of High Court to quash proceedings should not be arbitrarily exercised to cut short normal process of a criminal trial except in exceptional cases. It was further held that it is not permissible to quash proceedings or appreciate evidence at the stage when the trial had not even commenced.

In State of U.P. v. O.P. Sharma 1996 AWC 919, it was held that the High Court should be loathe to interfere at the threshold to thwart the prosecution exercising its inherent power u/s 482, Code of Criminal Procedure and allow the law to take its own course.

In Mrs. Supal Deol Bajaj and Anr. v. Kanwar Pal Singh Gill and Anr. with Mrs. Rupan Deol Bajaj and another Vs. Kanwar Pal Singh Gill and another, , where there was sufficient material for taking cognizance of the offences, the Supreme Court held that the High Court was not justified in embarking upon an enquiry as to the probability, reliability or genuineness of the allegations made in the first information report.

It is difficult to accept the contention that since non-bailable warrant has been issued against the Petitioners and charges have not been framed, the petition u/s 482 of the Code of Criminal Procedure cannot be entertained. Admittedly, charge-sheet has been submitted by C.B.I. and on the basis of the charge-sheet, cognizance has been taken by the Special Magistrate (C.B.I.), who after considering the material on record, took cognizance and directed that non-bailable warrant of arrest be issued against the two Petitioners. Consequently, it has to be seen whether charge-sheet was submitted without any evidence and whether it was mala fide action on which cognizance has been taken by the learned Magistrate without applying his mind to the material on record.

The order Annexure 4 shows that the learned Magistrate while taking cognizance against the Petitioners did apply his mind to the material on record. It was not a cryptic order which was passed by the learned Magistrate. Consequently, it cannot be said that the order of the learned Magistrate required interference.

It is also not one of those cases where first information report was lodged under some malice by third parties. On the other hand, the first information report was registered under the direction of the Supreme Court. Criminal Writ Petition No. 325 of 1994 was filed by Uma Shankar Sitani against Commissioner of Police, Delhi and others before the Supreme Court. The order dated 7th March, 1995 passed by the Supreme Court in the said petition reveals that on 30th July, 1994 a report was said to have been lodged by one Sarvjeet Chauhan at police station Sahibabad, district Ghaziabad wherein certain allegations were made against Uma Shankar Sitani. On the basis of the said report, Criminal Case No. 656 of 1994 under Sections 504 and 506, I.P.C. was registered against Uma Shankar Sitani at the said police station. Till 12th September, 1994, nothing was done in the investigation of the case. On 12th September, 1994, R.K. Singh, Sub-Inspector recorded the statement of the complainant of that case. On 16th September, 1994, non-bailable warrant was issued for the arrest of Uma Shankar Sitani by the Chief Judicial Magistrate, Ghaziabad. On the basis of the said non-bailable warrant, a police party from police station, Sahibabad, headed by R.K. Singh, Sub-Inspector of Police went to the house of Uma Shankar Sitani on 5th October, 1994 to arrest him. Uma Shankar Sitani was not at his house, hence he could not be arrested. It was alleged in the writ petition that all these steps were taken at the instance of Sanjay Dalmia on account of business rivalry. The Supreme Court entertained a doubt about the existence of the complainant, Sarvjeet Chauhan, hence by order dated 5.1.1995, the Commissioner of Police, Delhi, was directed to inform the Supreme Court whether there was any house whose address was given by Sarvjeet Chauhan and also to produce Sarvjeet Chauhan before the Court. In pursuance of the said direction, information was given on affidavit before the Supreme Court that no such address of Sarvjeet Chauhan was found or that he was residing there. The Supreme Court found that the report lodged" at police station Sahibabad giving rise to Case No. 656 of 1994 was by a non-existent person and the complaint was a false complaint. Certain other documents were also produced before the Supreme Court indicating that false case was registered at the instance of Sanjay Dalmia with a view to arrest Uma Shanker Sitani and harass him. Consequently, the Supreme Court directed the Director of C.B.I. to nominate a senior officer to investigate into the circumstances under which the Criminal Case No. 656 of 1994 was registered under Sections 504 and 506, I.P.C. at police station Sahibabad and the person or persons responsible for having the said case registered against Uma Shankar Sitani in order to have him arrested in connection with the said case. The report was to be submitted by 30th April, 1995.

After considering the letter dated 11th May, 1995 of Joint Director (C.B.I.), the Supreme Court found that it appears that certain police personnel at police station Sahibabad, U.P., as well as at police station N.I.I., Faridabad, Haryana have registered and investigated false cases against Uma Shankar Sitani and that the complainants in both the cases were non-existent. The report of C.B.I. further shows that there was strong suspicion that the complainant''s allegation against Shri Sanjay Dalmia is not without basis. It is upon this consideration that the Supreme Court directed the C.B.I. to register cases against the persons who have been prima facie found to be involved in registering those false cases and after completing the investigation, take the necessary steps in accordance with law for the prosecution of the persons found to be involved. It is in pursuance of the above direction that the case was investigated and charge-sheet was submitted. After submission of charge-sheet and obtaining sanction to prosecute R.K. Singh Chauhan, the other Petitioner, the writ petition was finally disposed of by the Supreme Court.

It was thus a case investigated under the direction of the Supreme Court.

The learned Counsel for the Petitioner Shri V.C. Tiwari and Shri G.S. Chaturvedi vehemently contended that there is no evidence against the Petitioner Sanjay Dalmia for entering into conspiracy with police officials in getting the false cases registered and investigated. Special reference was made to the recitals in the charge-sheet. It was contended that even if the entire prosecution version is accepted, the first circumstantial evidence that there was business rivalry between Uma Shankar Sitani and Sanjay Dalmia will not lead to the conclusion of conspiracy. It was further argued that the next evidence that during the course of discussion between Shri J.P. Meena, the then Incharge S. P. Police, police station Sainik Farm, New Delhi and Shri R.K. Singh Chauhan, the then S. I. police station Sahibabad, Shri R.K. Singh Chauhan told that he was investigating/enquiring the case on the complaint of Sanjay Dalmia, which was pending in the Court of Chief Judicial Magistrate, Ghaziabad, will be no evidence because at the most, it is the statement of co-accused, which cannot be used against Sanjay Dalmia. It was further contended that the third evidence of Smt. Leela Sitani, wife of Uma Shankar Sitani that she received a threatening telephonic call from Sanjay Dalmia on 5th October, 1994 that he will not spare her husband also does not complete the link in the chain of circumstantial evidence. It was thus contended that besides this, there was no evidence against Sanjay Dalmia and if on such inadmissible and insufficient evidence cognizance has been taken against Sanjay Dalmia, it amounts to an abuse of the process of law, hence the charge-sheet has to be quashed.

After careful scrutiny of the material on record, it is difficult to hold that it is a case of no evidence or no material or ground for proceeding against the Petitioner.

u/s 204(1), Code of Criminal Procedure, if in the opinion of a Magistrate taking cognizance of an offence there is sufficient ground for proceeding and the case appears to be a summons case, he shall issue summons for the attendance of the accused, and if it is a warrant case, he may issue a warrant or, if he thinks fit, a summons for appearance of the accused. Thus while issuing process u/s 204, Code of Criminal Procedure, the Magistrate should be satisfied that there is sufficient ground for proceeding against the accused. The word ''sufficient ground'' means existence of prima facie case, which is made out against the accused by the evidence of witnesses entitled to a reasonable degree of credit and not the sufficient ground or evidence for the purposes of conviction of the accused. Sufficiency of ground used in this section, therefore, means there is some ground in the nature of sufficient ground upon which proceedings can be initiated against the accused. Sufficiency of ground for proceeding, as observed earlier, is different from sufficiency of ground or evidence for conviction of the accused. If after trial, sufficient evidence is not found against the accused, he may be entitled to acquittal, but if there is prima facie case against the accused, he can be proceeded with.

The examination of charge-sheet (Annexure 3) and other materials would reveal that there is some evidence which constitutes sufficient ground for proceeding against the Petitioner Sanjay Dalmia. Likewise there is evidence for proceeding against the other Petitioner R.K. Singh Chauhan.

So far as the material against Sanjay Dalmia is concerned, it has been disclosed in the charge-sheet and also in the counter-affidavit of the Investigating Officer, who investigated the case, under the direction of the Supreme Court.

It is now clear from the material on record that Sarvajeet Chauhan is a non-existent person. He did not exist nor did he reside at the address given in his first information report. He could not be traced by the Investigating Officer of C.B.I. The first information report lodged by him was also found to be false not only by C.B.I. but this was also found to be false in the opinion of the Supreme Court in the order dated 5th May, 1995. The proceedings initiated on the basis of such false complaint by non-existent person were investigated by Sub-Inspector R.K. Sharma of police station Sahibabad. Subsequently, it was handed over to S. I. R.K. Singh Chauhan, the other Petitioner under the instruction of Dhruva Lal Yadav. Dhruva Lal Yadav expired during the pendency of C.B.I. investigation.

The C.B.I. investigation reveals that the Petitioner Sanjay Dalmia and Uma Shankar Sitani were closely related to each other and the latter was earlier associated with M/s. Golden Tobacco Company, one of the Dalmia Group of Companies, as a distributor. After some time, Sitani disassociated himself with Sanjay Dalmia and he started his own business of tobacco, production of cigarette and his business flourished tremendously, which caused annoyance to Sanjay Dalmia. The business rivalry between Sanjay Dalmia and Sitani took a bitter shape, due to which Sanjay Dalmia got registered a false case against Sitani in order to arrest and harass him. This evidence, therefore, furnishes motive for the alleged conspiracy. Direct evidence of conspiracy is difficult to collect. However, some attempt was made to collect direct evidence also which is in the nature of statement of Uma Shankar Sitani. He was interrogated by the C.B.I. Investigating Officer.

Besides this, Uma Shankar Sitani gave direct evidence during investigation by C.B.I. that false case against him was got registered by Sanjay Dalmia on account of business rivalry. He has to be tested in the examination-in-chief as well as in cross-examination to find out to what extent he is a reliable witness. As such, at this stage it cannot be said that there is no evidence against Sanjay Dalmia.

The next evidence is the statement of Smt. Leela Sitani, wife of Uma Shanker Sitani. She gave statement that on 5th October, 1994 Sahibabad police headed by S.I. R.K. Singh Chauhan searched her house with a view to arrest her husband. Since her husband was away, he could not be arrested. She received a threatening telephonic call in the midnight on 5th October, 1994 from Sanjay Dalmia. On telephone, she heard that he would not spare her husband. A written report was lodged by her with police post Sainik Farm, New Delhi about this telephonic call. It was contended that this evidence is inadmissible. However, admissibility of such evidence can be decided only when Smt. Leela Sitani is examined and cross-examined. Abruptly, it cannot be said that this is no evidence against the Petitioner Sanjay Dalmia.

The statement of other Petitioner R.K. Singh Chauhan, before Shri J.P. Meena, Incharge Sub-Inspector of Police, Police Post Sainik Farm, New Delhi at the time of executing warrant of arrest against Shri Sitani that he was enquiring the case on the complaint of Sanjay Dalmia which was pending in the Court of Chief Judicial Magistrate, Ghaziabad may be the statement of co-accused. However, other circumstances have also to be taken into account. The other circumstances emerging from the record are that no complaint or case was pending before the Chief Judicial Magistrate, Ghaziabad, but non-bailable warrant was somehow obtained from him under his signature. This matter also came to the notice of the Supreme Court and it was directed that C.J.M., Ghaziabad should inspect the record from the Registry of the Supreme Court and file affidavit whether non-bailable warrant was signed by him and if so, under what circumstances specially when no case was pending in his Court. The order of the Supreme Court dated 10th February, 1995 can be referred.

Shri G.S. Chaturvedi argued that Special Magistrate, Dehradun could not have taken cognizance of the offences under Sections 504 and 506, I.P.C. inasmuch as in that case, there was different complainant, namely, wife of Uma Shankar Sitani, the time and place of occurrence was also different and it was within the territorial jurisdiction of Delhi Courts, hence cognizance of the aforesaid two offences by Dehradun Court is bad in the eyes of law. This argument has no legs to stand because in the charge-sheet there is no mention of Sections 504 and 506, I.P.C. against the Petitioners. In the summoning order of learned Special Magistrate (C.B.I.), Dehradun also there is no mention of these two sections. Consequently, the plea of jurisdiction cannot dislodge the charge-sheet or the jurisdiction of Special Court at Dehradun.

There was thus sufficient ground before the learned Magistrate for taking cognizance. It is still open to the Petitioner Sanjay Dalmia to appear before the learned Magistrate and after receiving the copies of documents mentioned in the charge-sheet and also copies of statements of the witnesses interrogated during investigation, object and submit that no case is made out against him or there is no evidence against him. At this stage, in these circumstances, it cannot be said without examination of the entire material collected by C.B.I. during investigation that there was no ground for proceeding against the Petitioner. Consequently, it would be futile exercise to discuss at this stage what offences are made out against the Petitioner Sanjay Dalmia. It is for the trial court, after considering the submissions of the two sides, to take a decision on this point as to whether any offence is made out against the Petitioner Sanjay Dalmia and if so, what offences are made out or that no offence at all is made out against the Petitioner.

The counter-affidavit of the Investigating Officer (C.B.I.) has also been examined. In Paragraph 10 of the counter-affidavit, it is mentioned that during investigation it was found that there was business rivalry between Sanjay Dalmia and Uma Shankar Sitani; that First Information Report No. 656 of 1994 was registered in pursuance of conspiracy amongst Sanjay Dalmia, R.K. Singh Chauhan and Dhruva Lal Yadav in order to harass Uma Shankar Sitani and his family members. Reference of telephonic call in the nature of threat received by Smt. Leela Sitani on 5th October, 1994, a date on which attempt was made by R.K. Singh Chauhan to arrest Uma Shankar Sitani has also been made. A report about this threat was lodged at the concerned police station. It is also mentioned that the attempt of R.K. Singh Chauhan was mala fide in arresting and harassing Uma Shankar Sitani in pursuance of conspiracy between him, late Dhruva Lal and Sanjay Dalmia. Consequently, the prayer of the Petitioner Sanjay Dalmia for quashing the charge-sheet and the summoning order cannot be granted. Likewise there is no reason for staying any more the proceedings before the Special Magistrate (C.B.I.) in Case No. 192 of 1996 under the aforesaid sections.

The last prayer in the petition is to stay the arrest of the Petitioner. Interim order to this effect was already passed by this Court earlier.

Strong exception is being taken to the deposition of C.B.I. Investigating Officer Ram Chandra who is Deputy S. P., C.B.I. contained in Paragraph 16 of his counter-affidavit. Relevant portion is quoted below:

It is further stated that this Hon''ble Court is expected to refrain from passing any order staying the arrest of the Petitioner during the pendency of the instant petition.

The Investigating Officer was directed to file counter-affidavit and not to dictate his terms upon this Court that it should refrain from passing any order staying the arrest. This is highly objectionable on his part.

It seems that the learned Magistrate was also swayed away by such request from the side of the C.B.I. He lost sight of the provisions of Section 204(1)(b) of the Code of Criminal Procedure. It provides that the Magistrate in a warrant case may issue a warrant or if he thinks fit, a summons for causing the accused to be brought or to appear at a certain time before such Magistrate. Two options were given to the Magistrate, one was to issue warrant and the other was to issue summons. The Petitioner Sanjay Dalmia is not a hardened criminal. The first information report was lodged under Sections 504 and 506, I.P.C. It was found to be false. There is no apprehension that the Petitioner Sanjay Dalmia shall abscond or shall not appear before the Court. Issuing non-bailable warrant against him in these circumstances amounts to abuse of the process of law. Summons could have been issued as an alternative provided u/s 204(1)(b) of the Code of Criminal Procedure. The order issuing non-bailable warrant by the learned Magistrate has, therefore, to be quashed.

The petition of Sanjay Dalmia for quashing the charge-sheet and the summoning order fails. However, the order of the learned Magistrate issuing non-bailable warrant against Sanjay Dalmia is quashed. The Petitioner Sanjay Dalmia is directed to appear before the Special Magistrate (C.B.I.), Dehradun within two weeks from today and on his appearance before the Special Magistrate, the Special Magistrate shall accept bail bonds and surety bonds to his satisfaction from Sanjay Dalmia under the aforesaid sections in which cognizance has been taken and till bail bonds and surety bonds are accepted, the Petitioner Sanjay Dalmia shall not be arrested in pursuance of non-bailable warrant issued against him nor it shall be insisted that the bail application should be moved by him. His personal appearance before the learned Magistrate shall be treated as surrender and bail bonds and security bonds shall be accepted from him without sending him to Jail.

So far as the other Petitioner R.K. Singh Chauhan is concerned, the material on record furnished sufficient ground for proceeding against him and the cognizance taken by the learned Magistrate cannot be said to be illegal. The charge-sheet and the counter-affidavit of the Investigating Officer Ram Chandra indicate that there is evidence of criminal conspiracy between R.K. Singh Chauhan, the Petitioner and Dhruva Lal Yadav, S. H. O., so also the other Petitioner Sanjay Dalmia. The first information report was lodged by fictitious person, who could not be traced out. The investigation proceeded, which was entrusted to R.K. Sharma, S.I. and then under the instruction of Dhruva Lal Yadav, S.H.O. (New Delhi), it was given to the Petitioner R.K. Singh Chauhan, R.K. Singh Chauhan investigated the case. During C.B.I. investigation, it was found that he allegedly recorded the statement of Sarvajeet Chauhan, the informant, inspected the scene of occurrence and also recorded the statements of the witnesses Daljeet Singh and Shri Krishna, in his case diary. When C.B.I., Investigating Officer contacted Daljeet Singh, he denied to have given any statement to the Petitioner R.K. Singh Chauhan. Shri Krishna, the other witness, inspite of the best efforts could not be contacted at the address given in the case diary. It was further found during investigation that R.K. Singh Chauhan along with S.H.O. Dhruva Lal Yadav had visited the residence of Prakash Singh in July, 1994 and had shown him a person and instructed him to identify the said person as Sarvjeet Chauhan, in case of any enquiry. He also obtained non-bailable warrant of arrest on 16th September, 1994 from C.J.M., Ghaziabad against Uma Shankar Sitani by misrepresenting the facts. He attempted to arrest Uma Shankar Sitani on the strength of this warrant on 25.9.1994 and 5.10.1994. Since the case was still under his investigation and nothing was sent to C.J.M., Ghaziabad, it is a strong circumstance indicating interestedness of this Petitioner in obtaining non-bailable warrant of arrest. This matter also received attention of the Supreme Court, as pointed out, while discussing the petition of Sanjay Dalmia, in the order dated 10th February, 1995. There is another evidence ; that for executing the said non-bailable warrant of arrest against Uma Shankar Sitani, he contacted Shri J.P. Meena, the then Incharge Sub-Inspector of Police, Police Post Sainik Farm, New Delhi and told that he was enquiring the case on the complaint of Sanjay Dalmia, pending in the Court of C. J. M., Ghaziabad. As a matter of fact, no such complaint was pending in the Court of C.J.M. Ghaziabad at that time. This statement was recorded in the General Diary of the Police by Shri J.P. Meena. Evidence has also been collected against R.K. Singh Chauhan for fabricating and manufacturing false record and Case Diaries showing that he had recorded the statements of Ashok Kumar, Prakash Singh and Daljeet Singh. The Supreme Court also took notice of this conduct of the Petitioner. R.K. Singh Chauhan and directed him to indicate how he came to know about the other two alleged eye-witnesses, namely, Ashok Kumar and Prakash Singh, whose statements are said to have been recorded, although their names have not been disclosed in the first information report. The order dated 10th February, 1995 of the Supreme Court can again be referred.

In view of the above discussion, it is again difficult to hold that there is no sufficient ground for proceeding against the Petitioner R.K. Singh Chauhan.

In his petition R.K. Singh Chauhan has not made any prayer for quashing the summoning order or for quashing the charge-sheet. On the other hand, the first prayer is to release him on executing personal bond. On grounds of parity with the direction given in the petition of Sanjay Dalmia, this prayer cannot be accepted. However, if he appears before the Special Magistrate (C.B.I.), Dehradun, within two weeks from today and applies for acceptance of personal bond and surety bonds, the learned Magistrate shall accept the same to his satisfaction and till then, he will not be arrested in pursuance of non-bailable warrant issued against him. He too shall not be sent to jail.

The second prayer is for staying the summoning order. For the reasons given above while discussing the petition of Sanjay Dalmia, I do not find any good ground for quashing the summoning order, hence there is no ground for staying the summoning order.

The third prayer is for staying the execution of warrant. Suitable directions have been give above on this score and no further directions are needed.

With the aforesaid observations, the two petitions are disposed of.