State of U.P. vs Mulayam Singh Yadav and Others

N.K. Mehrotra, J.—This is a criminal revision against the order dated 28.5.1997 passed by the Sessions Judge, Lucknow in Criminal Case No. 7 of 1995, State Atiq Ahmad and others withdrawing the order dated 9.8.1995 passed by the Sessions Judge/Special Judge, Lucknow taking cognizance against the opposite parties and 55 others summoning them as accused under Sections 147, 148, 149, 504, 506, 323, 365, 368, 427, 342, 452, 353, 109, 467, 468, 471, 420, 387 and 120B of Indian Penal Code, Section 13(1)(d) of Prevention of Corruption Act and Section 7 of Criminal Law Amendment Act.

In the impugned order the learned Sessions Judge, Lucknow has recorded a finding that no case is made out against the opposite parties either u/s 13(1)(d) of Prevention of Corruption Act or read with Section 120B of the Indian Penal Code and since it was a joint charge-sheet under the offences under the Indian Penal Code, Criminal Law Amendment Act and under the Prevention of Corruption Act, the learned Sessions Judge being Special Judge under Prevention of Corruption Act has refused to take cognizance under the Prevention of Corruption Act and has returned the charge-sheet for presentation to the Magistrate for taking cognizance under the other offences under Indian Penal Code and Criminal Law Amendment Act. This order of the learned Sessions Judge has been challenged in this revision.

The brief facts of the case are that in the State of U. P. there was a Government of Samajwadi Party headed by Shri Mulayam Singh Yadav, the opposite party No. 1 and the Bahujan Samaj Party jointly. On 1.6.1995 Ms. Mayawati, the leader of Bahujan Samaj Party had decided to withdraw the support from Samajwadi Party to form its own Government with the support of Bhartiya Janta Party. The Government headed by Shri Mulayam Singh Yadav has become in minority as a result of withdrawal of its support by Bahujan Samaj Party. It is alleged that on 1.6.1995 at about 7 p.m., the opposite party No. 1 Shri Mulayam Singh Yadav called the accused opposite party No. 6 Raj Bahadur to form a separate group of M.L.As. and the opposite party No. 1 Shri Mulayam Singh Yadav had told that it would be his job to arrange and make available M.L.As. for this purpose, no matter what amount had to be spent for this purpose. It is further alleged that it was told to Shri Raj Bahadur that if the M.L.As. did not agree to take the money, he would get them lifted forcibly. It was also decided in the said meeting that the messages be sent to faithful supporters in various districts to reach to Samajwadi Party''s office at Lucknow on 2.6.1995 and for this purpose telephonic messages were also sent to various places. It is alleged that on 2.6.1995 in pursuance of the common object 300-400 Samajwadi Party M.L.As., workers and office bearers and others under the leadership of co-accused Rakesh Singh Rana and Umakant Yadav and others constituted an unlawful assembly at State Guest House where Ms. Mayawati was staying occupying Suit Nos. 1 and 2. The accused-persons unlawfully proceeded towards Suit Nos. 1 and 2 by using criminal force and abducted Bahujan Samaj Party''s M.L.As. Akshaybar Bharti, Samai Ram, Ram Achal Rajbhar, Rajendra Kumar and Jagar Nath Chaudhary. These five abducted M.L.As. were taken to 5, Vikramaditya Marg, the residence of opposite party No. 1 and they were produced before him who along with other accused and opposite parties asked the abducted M.L.As. to defect in consideration of money offered to them and when they did not agree, they were threatened with their lives. It is alleged that the opposite parties Dhani Ram Verma and Raj Bahadur at that time in the presence of other opposite parties, etc. forced these abducted M.L.As. to sign a document and still 3-4 M.L.As. were short. On this opposite party No. 1 Shri Mulayam Singh Yadav spoke to someone on telephone as to what are they doing, 3-4 M.L.As. were still short. It is further alleged that the document on which the signature of five abducted M.L.As. were forcibly obtained was in the form of a letter addressed to opposite party Dhani Ram Verma and it was to the effect that 25 M.L.As. belonging to Bahujan Samaj Party had formed a separate group. On this letter four other M.L.As. had signed.

The letters/ informations/ representations sent to His Excellency the Governor and others with regard to this incident were registered as first information reports as and when they reached to the police. The Station House Officer, Police Station Hazratganj, Lucknow had also got registered F.I.R. Ultimately, the matter was referred to C.B.C.I.D. and after investigation the charge-sheet was filed in the court of Sessions Judge, Lucknow against the opposite parties under Sections 120B, 467, 468, 471, 420 and 387 of the Indian Penal Code and Section 13(1)(d) of Prevention of Corruption Act. The then Sessions Judge/Special Judge Shri J. C. Mishra took the cognizance against the opposite parties and others. The opposite parties and others filed Criminal Revison Nos. 202 of 1995, 235 of 1995, and Criminal Misc. Case No. 468 of 1995 against the order dated 9.8.1995 by which the Special Judge had taken cognizance. The aforesaid criminal revisions and criminal misc. case were decided by this Court on 29.9.1995 with the direction that the revisionist/ Petitioner may raise the relevant objection in regard to jurisdiction before the learned Sessions Judge within three weeks with effect from 29.9.1995. The opposite parties and other accused persons filed objections before the learned Sessions Judge contending therein that:

(i) Cognizance of the case by the court of Sessions/Special Judge was wholly illegal in respect of those 55 accused against whom charge-sheet for the offences other than the offences under Prevention of Corruption Act was filed as the offences were cognizable by the Magistrate and the court of Sessions could proceed only in the committal of the case to the court of Sessions and also no case under the provisions of Prevention of Corruption Act was made out against them.

(ii) The charge-sheet did not make out or disclose with regard to the allegations of obtaining of any valuable thing or pecuniary advantage to make out the offence u/s 13(1)(d) of Prevention of Corruption Act.

(iii) The allegation that the opposite parties made a preparation to engineer a defection in a political party was not an offence under Prevention of Corruption Act. The opposite parties Uma Kant Yadav, Mohd. Arshad Khan, Sangram Singh, Shiv Pal Singh Yadav and Dr. Mohsin Khan were not public servants and the cognizance of any offence under the provisions of Prevention of Corruption Act could not be taken against any of them. The impleadment of the opposite party No. 1 as accused in this case was fabricated and was with ulterior political design and to malign him.

The learned Sessions Judge/ Special Judge under Prevention of Corruption Act by passing the impugned order has held that:

The evidence given by few M.L.As. that they were forced to sign is partisan, and is a result of deep rooted party rivalry. It is not improbable that M.L.As. initially willingly signed but later resiled in the changed circumstances of change in power equations.

....

The signatures which have been given to form separate Raj Bahadur group cannot be said to be involuntarily or forged and it is apparent that they (M.L.As.) changed their stand only due to installation of Mayawati Government.

The learned Sessions Judge has further held that the statement of witness Ishtiyaq Ansari was an after-thought version. After examining the evidence on record, the learned Sessions Judge has held that no case under any section of Prevention of Corruption Act is made out and has directed to return the charge-sheet with regard to the offence under Indian Penal Code read with the provisions under Criminal Law Amendment Act.

The impugned order has been challenged on the ground that the learned Sessions Judge misdirected himself by entering into the reliability and truthfulness of the evidence clearly with a view to find the factors eliminating the chances of conviction of the opposite parties at trial. It is also contended that the Sessions Judge ignored that taking cognizance did not involve any formal action but the act of taking cognizance occurs as soon as a court as such applied his mind to the suspected commission of offence. It is further contended that the learned Sessions Judge has erred in not leaving this matter for appropriate forum at the time of trial and he has committed gross error by misinterpreting the evidence for passing the impugned order. The learned Sessions Judge has erred in not holding the letter as a valuable thing, on which the signatures of abducted M.L.As. were illegally obtained and which was found containing at least forged signatures of three M.L.As. It has also been contended that the learned Sessions Judge has wrongly given protection to the Speaker Shri Dhani Ram Verma under Article 212 of the Constitution of India and has omitted to consider that a private person can also be prosecuted along with public servant under Prevention of Corruption Act.

I have heard Shri Ashwani Kumar Singh, learned Government Advocate for the revisionist State and Shri G. K. Mehrotra as well as the Vivek Shrotiya learned Counsel for the opposite parties and perused the evidence relied on by the prosecution. Both the parties have submitted arguments in writing also.

The charge-sheet on which the objections were filed by the accused-applicant relates to the charges under various sections of the Indian Penal Code, S.C./S.T. Act, Prevention of Corruption Act and Criminal Law Amendment Act. There are 67 named accused including the revisionists. The charge-sheet was filed before the Special Judge (Sessions Judge) under Prevention of Corruption Act. It was a joint charge-sheet under various provisions of the aforesaid Acts. The learned Special Judge has recalled the order of cognizance after allowing the objection of the accused-applicant on the ground that the evidence collected by the investigating agency on four F.I. Rs. lodged by different persons does not make out any case u/s 13(1)(d) of the Prevention of Corruption Act. For the other offences the learned Special Judge has returned the charge-sheet to the Investigating Agency for filing it before the competent Magistrate having jurisdiction in the matter because the learned Special Judge could not proceed unless the case is committed to the court of sessions. The impugned order has been passed by the Special Judge under Prevention of Corruption Act.

The first report of this case which was lodged at 8.45 p.m. on 3.6.1995 is based on the letter by Ishtiyaq Ansari to the Governor in which he has alleged that Arshad Khan a rebel M.L.A. of Bahujan Samaj Party (hereinafter referred to B.S.P.) had come to him and asked him to join Samajwadi Party with an offer of ministerial post and Rs. 50 lac. It is also mentioned that at the same time Ram Lotan Patel, an M.L.A. of his party was also present there and this offer was refused.

The second report is also a letter dated 1.6.1995 addressed to the Governor by Shri Mewa Lal Verma an M.L.A. The report was lodged at 8.50 p.m. on 3.6.1995. In this report, it is mentioned that on 1.6.1995 at about 11.45 p.m., he was carried to Vikramaditya Marg by the men of Shri Mulayam Singh Yadav and efforts were made to make him take side with Shri Mulayam Singh Yadav with an offer of ministerial post and money. It was also stated in the report that he has refused the offer and he should be provided security.

The third report had been lodged by he Inspector Incharge Kotwali Hazratganj, Shri Atar Singh Yadav on 3.6.1995 at about 11.30 p.m. in which it has been mentioned that on 2.6.1995 after getting message in the control room at 11.00 a.m., he reached the State Guest House and found that the women belonging to Samajwadi Party were raising slogans to release captive M.L.As. of B.S.P.. It is also stated that how the police made an attempt to rescue Shri Mewa Lal, M.L.A. belonging to B.S.P.

The fourth report was registered on 4.6.1995 at 16.35 p.m. It was lodged by Shri Barkhoo Ram Verma and other M.L.As. of B.S.P. The letter was addressed to His Excellency the Governor. The relevant allegation in this report is that five M.L.As. of B.S.P. have been forcibly carried away by the Samajwadi Party members after indulging in ''marpit''. They made complaints against Shri O. P. Singh the Senior Superintendent of Police, Lucknow and asked for security.

The learned Special Judge after discussing the contents of these four reports has drawn a conclusion that it is clear from these reports that except naming of Arshad Khan a rebel M.L.A. of B.S.P., the complainant-informant had not named anyone indulging in giving threats, hurling abuse, giving temptation, indulging in marpit and kidnapping of the complainant or any M.L.A of B.S.P. or any other M.L.A. and there are allegations against the then Senior Superintendent of Police, Lucknow, Shri O. P. Singh.

Since, the impugned order relates to discharge of the accused under the Prevention of Corruption Act only, I am not discussing the evidence referred by the Special Judge with regard to the incident at State Guest House making out the offence under the Indian Penal Code and S.C./S.T. Act against certain accused.

The learned Special Judge has referred the case set up in the charge-sheet for the purpose of the offences under Prevention of Corruption Act. The learned Special Judge recorded a finding that none of the F.I. Rs. disclosed any offence under Prevention of Corruption Act and under Indian Penal Code against accused Nos. 56 to 63 and 65 to 67. The learned Special Judge also mentioned in the impugned order that the allegations in the F.I.R. lodged by Shri Ishtiyaq Ansari, M.L.A. is not against accused Nos. 57 to 63 and 65 to 67. Similar is the position in the second F.I.R. that no allegation has been made by Shri Mewa Ram Verma against accused Nos. 56 to 67. The third report also does not contain any allegation against these accused by name. The fourth report lodged by Shri Barkhoo Ram Verma is against O. P. Singh.

After perusal of these reports, there is nothing to interfere in the observations of the learned Special Judge in the impugned order. The learned Special Judge has referred that Ishtiyaq Ansari, M.L.A. who had lodged the F.I.R. was interrogated u/s 161 of the Code of Criminal Procedure on 7.6.1995 and he has not supported his version u/s 161 of the Code of Criminal Procedure with regard to the incident which is narrated in the F.I.R. The learned Special Judge has noticed that in the case diary there is statement of Ram Lotan, M.L.A. He has stated about an offer of Rs. 50 lac and the ministerial berth offered by Shri Arshad Khan by taking the name of Shri Mulayam Singh Yada Another informant Shri Mewa Lal has also given the statement during investigation that he was given temptation of State Ministry and money but in his affidavit dated 8.6.1995, he has not stated anything to support his F.I.R. The statement of Ishtiyaq Ansari was again recorded in the investigation of second report and in the second statement he has told that Arshad Khan had told him that Shri Mulayam Singh Yadav was prepared to offer Rs. 50 lac and ministerial post and they should go and talk to him. The learned Special Judge has referred the statement of Ishtiyaq Ansari and has drawn a conclusion that the statement of Ishtiyaq Ansari cannot connect the involvement of Shri Mulayam Singh Yadav even if, it is accepted for the purpose of taking cognizance. After discussing the evidence of Ishtiyaq Ansari and other witnesses and the contents of the charge-sheet and the F.I.R., the learned Special Judge has recorded a finding that the offer of money by Shri Arshad Khan cannot in any way be connected to constitute even an offence of attempt and abetment of Shri Mulayam Singh Yadav under the provisions of Prevention of Corruption Act. He has recorded a finding after seeing the evidence of rebel M.L.As. that they appeared to be interested to implicate their political opponent in the crime.

The learned Special Judge has further discussed the statement of other witnesses Akshaibar Bharti, Ram Achal Rajbhar and Samai Ram about the temptation of money for joining the defector group and he has referred that Samai Ram does not support on the point of temptation given by Shri Mulayam Singh Yadav or anybodyelse. The learned Special Judge has referred that these witnesses have stated about their signatures under threats on some paper but they have not stated about the temptation of money. He has specifically referred that Ishtiyaq Ansari has stated about offer made by Mohd. Arshad on behalf of Mulayam Singh Yadav but not any straightaway offer by Shri Mulayam Singh Yada The learned Special Judge has found that the statement of Ram Lotan Patel is improbable. What has been stated by the witness Ram Lotan Patel u/s 161, Cr. P.C. does not constitute any offence under Prevention of Corruption Act because he has stated about the offer of Rs. 50 lac and ministerial berth for defection. The learned Special Judge has also discussed that there is evidences against accused Nos. 56 to 67 showing their active participation by entering into conspiracy to abduct and to make an attempt to bribe the M.L.As. of B.S.P. and on their refusal to force them to make their signatures on a letter to show as they have separated themselves from their parent organization and were with co-accused Raj Bahadur. After seeing the evidence referred, I agree with the finding of the learned Special Judge that even if, all these evidences regarding conspiracy is taken to be true, it was done to save the Government by adopting corrupt and illegal means by abusing their position. I do not find any illegality in the finding recorded by the learned Special Judge that it does not constitute any offence u/s 13(1)(d) of Prevention of Corruption Act.

Section 13(1)(d) of Prevention of Corruption Act is as follows:

....

(d) if he.--

(i) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantages ; or

(ii) by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage ; or

(iii) while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest.

In order to frame a charge u/s 13(1)(d) of Prevention of Corruption Act there must be evidence to prove:

(i) That the accused is a public servant.

(ii) That the accused obtained any valuable things or pecuniary advantage for himself or for any other person.

(iii) It has been done by corrupt or illegal means.

The learned Special Judge has recorded a finding that there is no evidence to establish either of the three things. There is no evidence that the alleged valuable thing, i.e., the letter with alleged forged signatures of the M.L.As. to the Speaker was a result of any illegal gratification given or attempted. The learned Sessions Judge has also pointed out that Shri Arshad Khan was a rebel B.S.P., M.L.A. and he has no connection with the accused Nos. 55 to 63 and 65 to 67 and there is no evidence that he acted at the behest of alleged conspirators. The evidence of conspiracy involving Speaker is also lacking. The learned Special Judge has also observed that the Speaker cannot be forced to disclose anything as he has been accused in the offence. The learned Sessions Judge has also recorded a finding that the Speaker has constitutional protection under the provisions of Article 212(2) and 10th Schedule of Constitution and the same protection is extended beyond the walls of the House of Legislature while he is acting in the capacity of the Speaker of the House.

The learned Special Judge has given a reference of Supreme Court decision in R. S. Nayak A. R. Antuley, AIR 1984 SC 684, in which it has been held that the M.L.As. are not public servant.

The learned Special Judge has discussed the evidence of Safdar Raza Khan and Sheo Ram Singh Kushwaha on the allegation of conspiracy and has found that their statements are contradictory to each other in respect of offer of money and ministerial berth from Shri Mulayam Singh Yada The learned Special Judge has also referred that there is no evidence that the conspiracy was to offer sums to the tune of Rs. 50 lac and also ministerial berth for those who deserted B.S.P.

In the impugned judgment, there is a reference of affidavits of certain witnesses taken by the Investigating Officer during investigation and it has been held that the affidavits being signed statement given to the police are hit by Section 162 of the Code of Criminal Procedure and cannot be read in evidence. The Special Judge has also found that Rajendra Kumar, M.L.A., Narthupur Mau, Akshaibar Bharti, M.L.A. Ghosi, Mau, Samai Ram, M.L.A., Sarai Mir Azamgarh and Jagarnath Chaudhari, M.L.A., Kerakat, Jaunpur have not stated about offer of money and ministerial berth as has been reported by Ishtiyaq Ansari. After discussing their evidence, the learned Special Judge has held that the evidence of these witnesses is not such from which it could be inferred that there was a conspiracy to kidnap and bribe. It has also been held that the signatures which have been given to form separate Raj Bahadur group cannot be said to be involuntary or forced and it is apparent that they changed their stand only due to installation of Mayawati Government. Therefore, on the basis of the changed statements the cognizance cannot be taken.

After discussing the aforesaid evidence, the learned Special Judge held that self-contradictory evidence collected by the Investigating Agency when taken as a whole lead to infer that actually there is no evidence which if, taken unchallenged may go to constitute offence u/s 13(1)(d) of Prevention of Corruption Act and Section 120B of the Indian Penal Code and it is not possible to infer the charge of conspiracy of such type of evidence.

After seeing the evidence referred to in the impugned judgment and the findings recorded on the basis of the evidence in the case diary, there remains nothing to interfere in he impugned judgment. I find that the facts set out in the charge-sheet are such that even if, the allegations against accused Nos. 56 to 67 of the charge-sheet are taken to be correct, the same do not make out an offence u/s 13(1)(d) of Prevention of Corruption Act.

"Valuable thing" for commission of a crime, may mean money wares, merchandise or chattels but does not include the signature of an instrument which cannot under any circumstances affect he signer. There is no case of prosecution that Shri Mulayam Singh Yadav or any other accused opposite party obtained any valuable thing or the pecuniary advantage to do some favour to any person by illegal or corrupt means. At the most, it can be said that some M.L.As. who were desiring to change party had offered ministerial berth and money on behalf of Shri Mulayam Singh Yadav for defection of his other colleagues of that party from that party to another and there was an attempt for split in B.S.P. which ultimately could not be successful.

The allegations in the charge-sheet do not disclose obtaining of any valuable thing or pecuniary advantage which are essential ingredients of the offence u/s 13(1)(d) of Prevention of Corruption Act. I do not find any allegation in the charge-sheet that the alleged acts of getting a signed letter, etc. were done to obtain any valuable thing or pecuniary advantage for accused Nos. 56 to 67. The allegations are such which give impression that these accused, made preparation to engineer a defection in a political party (B.S.P.). Such an act of preparation for engineering defection is not an offence under Prevention of Corruption Act or any other law. There is nothing on the record which may point out that the accused Nos. 56 to 67 of the charge-sheet committed any offence as public servant. Alluring or offering inducement by M.L.A. who is not a public servant to leave his parental political party and support another party does not fall within the mischief of any of the clauses of Section 13(1)(d) of Prevention of Corruption Act.

Even the provisions of 10th Schedule of the Constitution itself validate the change of party if, the number of defector is one-third of the total number of the elected M.L.A. of other party. A perusal of the provision under Xth Schedule of the Constitution makes it clear that in case of defection by M.L.A. from one political party to another political party, the consequence is that the defector is disqualified to become member of the House of Legislature for which he was elected as member of that political party. But if he defects under a ''split'', he will not be disqualified. It means that defection if covered under the definition of ''split'' is legal under the Constitution. There is no restriction in making an attempt for split of a political party. It is not an offence if attempt of split fails or succeeds.

The purpose behind the provisions u/s 13 of Prevention of Corruption Act is to punish those who take bribe or who offer bribe or who after taking valuable thing or pecuniary advantage misuse their official position as public servant but it does not include the offer for division of any political party. I notice that in the charge-sheet the allegation against Shri Mulayam Singh Yadav is that if the Governor gives 8 days'' time to establish my majority I will do so anyhow. If, in the event of adverse (Visham) circumstances, it is not possible to give time then, Raj Bahadur Ji..... you should break the B.S.P. and form separate groups as 15-16 M.L.As. are already with you and arrangement for rest of M.L.As. is his job. It is immaterial as to how much money is spent to achieve this object. If, the M.L.As. do not succumb of their allurement, then I will have to abduct them.

It is clear, that Raj Bahadur was asked to break B.S.P. only if, the Governor did not give 8 days'' time to establish the majority. The directions given were contingent on the decision of the Governor. Even if, all these evidences to this effect are assumed to be correct, the stage would be only one of preparation to commit the offence and which is not punishable under the Prevention of Corruption Act. The alleged letter on which it is said that the signatures were obtained by force or were forged did not split the B.S.P. nor by any means it is a valuable thing or any pecuniary advantage.

The charge under Prevention of Corruption Act can only be invoked against a person who himself is a public servant and who conspired or attempted or abeted the commission of the offence under Prevention of Corruption Act. It cannot be extended to include persons who are not public servant. I would like to mention specifically that there is no allegation against Shri Mulayam Singh Yadav even regarding this letter nor there is any allegation of conspiracy or abetment against him. What the other M.L.As. did by taking the name of Shri Mulayam Singh Yadav, it is their responsibility and if, it is taken to be true that some M.L.As. had gone to offer bribe, it does not mean that there was any conspiracy.

By an overall assessment of the evidence collected during investigation, at the most, it appears that it was an attempt for the split in B.S.P. As said above, the attempt for a ''split'' of a political party is not an offence, therefore, there can be no question of conspiracy. ''The offence of conspiracy is said to have been committed when two or more conspirators agree or caused to be done an act which is itself an offence and in which case any overt act need be established. Therefore, if the attempt to split is not illegal and when there is no evidence at all that either Shri Mulayam Singh Yadav or any of the opposite parties at the time of holding the post of public servant either directly offered or paid any valuable thing or themselves obtained any pecuniary advantage, it cannot be said that the evidence collected, if go unrebutted will establish a charge of criminal conspiracy.

In view of the above, after examining the record of the court of the Special Judge/Sessions Judge, I find no illegality or impropriety or incorrectness in the findings recorded by the learned Sessions Judge in passing the impugned order. Therefore, the revision is hereby dismissed.