Delhi High Court
Brij Pal Singh vs C.B.I. on 4 October, 2024
Author: Amit Sharma
Bench: Amit Sharma
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 19thJuly, 2024
Pronounced on: 4th October, 2024
+ CRL.A. 657/2012 & CRL.M.(BAIL) 1118/2012
G P SHARMA ..... Appellant
Through: Mr. Siddharth Aggarwal, Sr. Adv. with
Mr. Krishna Multani, Advocate.
Versus
CBI ..... Respondent
Through: Mr. Atul Guleria, SPP for CBI with Ms.
Rupali Wadhwa, Mr. Bohit Sharma, Ms.
Parul Yadav & Mr. Surender Sharma,
Advocates.
+ CRL.A. 663/2012 & CRL.M.(BAIL) 1093/2012
BRIJ PAL SINGH ..... Appellant
Through: Mr. Arvind K. Nigam, Senior Advocate
with Mr. Samrat Nigam, Mr. Rajneesh &
Ms. Arpita Rawat, Advocates.
versus
C.B.I. ..... Respondent
Through: Mr. Atul Guleria, SPP for CBI with Ms.
Rupali Wadhwa, Mr. Bohit Sharma, Ms.
Parul Yadav & Mr. Surender Sharma,
Advocates.
Signature Not Verified
Digitally Signed By:BHASKAR
SINGH RAWAT Page 1 of 48
Signing Date:08.10.2024
14:05:32 CRL.A. 657/2012 and Connected Appeals
+ CRL.A. 724/2012
AJAY VERMA ..... Appellant
Through: Mr. Ajay Verma, Advocate.
versus
CENTRAL BUREAU OF INVESTIGATION ..... Respondent
Through: Mr. Atul Guleria, SPP for CBI with Ms.
Rupali Wadhwa, Mr. Bohit Sharma, Ms.
Parul Yadav & Mr. Surender Sharma,
Advocates.
+ CRL.A. 735/2012
AJAY KUMAR JAIN ..... Appellant
Through: Mr. M.P.Singh, Ms. Manju Lata Singh,
Mr. Ghanshyam Sharma, Mr.Deepak
Daima and Mr.Inder Kumar Rawat,
Advocates.
versus
STATE THR. CBI ..... Respondent
Through: Mr. Atul Guleria, SPP for CBI with Ms.
Rupali Wadhwa, Mr. Bohit Sharma, Ms.
Parul Yadav & Mr. Surender Sharma,
Advocates.
+ CRL.A. 658/2012 & CRL.M.(BAIL) 1119/2012, 222/2022
P K SHARMA ..... Appellant
Through: Mr. Arvind K. Nigam, Senior Advocate
with Mr. Samrat Nigam, Mr. Rajneesh &
Ms. Arpita Rawat, Advocates.
versus
CENTRAL BUREAU OF INVESTIGATION ..... Respondent
Signature Not Verified
Digitally Signed By:BHASKAR
SINGH RAWAT Page 2 of 48
Signing Date:08.10.2024
14:05:32 CRL.A. 657/2012 and Connected Appeals
Through: Mr. Atul Guleria, SPP for CBI with Ms.
Rupali Wadhwa, Mr. Bohit Sharma, Ms.
Parul Yadav & Mr. Surender Sharma,
Advocates.
+ CRL.A. 664/2012 & CRL.M.(BAIL) 1125/2012, 210/2022
ANIL KUMAR ..... Appellant
Through: Mr. Arvind K. Nigam, Senior Advocate
with Mr. Samrat Nigam, Mr. Rajneesh &
Ms. Arpita Rawat, Advocates.
versus
CBI ..... Respondent
Through: Mr. Atul Guleria, SPP for CBI with Ms.
Rupali Wadhwa, Mr. Bohit Sharma, Ms.
Parul Yadav & Mr. Surender Sharma,
Advs.
+ CRL.A. 668/2012 & CRL.M.(BAIL) 1122/2012, 211/2022
S S ARYA ..... Appellant
Through: Mr. Arvind K. Nigam, Senior Advocate
with Mr. Samrat Nigam, Mr. Rajneesh &
Ms. Arpita Rawat, Advocates.
versus
CBI ..... Respondent
Through: Mr. Atul Guleria, SPP for CBI with Ms.
Rupali Wadhwa, Mr. Bohit Sharma, Ms.
Parul Yadav & Mr. Surender Sharma,
Advocates.
+ CRL.A. 667/2012 & CRL.M.(BAIL) 1120/2012
RAMKESH MEENA ..... Appellant
Signature Not Verified
Digitally Signed By:BHASKAR
SINGH RAWAT Page 3 of 48
Signing Date:08.10.2024
14:05:32 CRL.A. 657/2012 and Connected Appeals
Through: Mr. Pramod Kumar Dubey, Senior
Advocate with Ms. Pinky Dubey, M Mr.
Satyam Sharma, Mr. Prince Kumar, Ms.
Adkita, Ms.Amrita Vatsa, Ms. Ritvika
Paswal, Mr. Ayush Sachan & Mr. Shivam,
Advocates.
versus
CENTRAL BUREAU OF INVESTIGATION ..... Respondent
Through: Mr. Atul Guleria, SPP for CBI with Ms.
Rupali Wadhwa, Mr. Bohit Sharma, Ms.
Parul Yadav & Mr. Surender Sharma,
Advocates.
+ CRL.A. 670/2012 & CRL.M.(BAIL) 1123/2012
ARUN KUMAR SHARMA ..... Appellant
Through: Mr. Ashwin Vaish and Mr.Vinod Pandey,
Advocates.
versus
CENTRAL BUREAU OF INVESTIGATION ..... Respondent
Through: Mr. Atul Guleria, SPP for CBI with Ms.
Rupali Wadhwa, Mr. Bohit Sharma, Ms.
Parul Yadav & Mr. Surender Sharma,
Advocates.
+ CRL.A. 722/2012
SUBHASH CHAND ..... Appellant
Through: Mr. Subhash Chain, Advocate.
versus
CENTRAL BUREAU OF INVESTIGATION ..... Respondent
Through: Mr. Atul Guleria, SPP for CBI with Ms.
Rupali Wadhwa, Mr. Bohit Sharma, Ms.
Signature Not Verified
Digitally Signed By:BHASKAR
SINGH RAWAT Page 4 of 48
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Parul Yadav & Mr. Surender Sharma,
Advocates.
+ CRL.A. 723/2012
DEEPAK GOEL ..... Appellant
Through: Mr. Deepak Goel, Advocate.
versus
CENTRAL BUREAU OF INVESTIGATION ..... Respondent
Through: Mr. Atul Guleria, SPP for CBI with Ms.
Rupali Wadhwa, Mr. Bohit Sharma, Ms.
Parul Yadav & Mr. Surender Sharma,
Advocates.
CORAM:
HON'BLE MR. JUSTICE AMIT SHARMA
JUDGMENT
AMIT SHARMA, J.
1. The present appeals under Section 374 of the Code of Criminal Procedure,
1973, (for short, ‘CrPC’) have been filed assailing the impugned judgment of
conviction dated 17.05.2012 and order on sentence dated 22.05.2012, passed by
Sh. P.S. Teji, learned Additional Sessions Judge-cum-Special Judge (CBI),
Karkardooma Courts, Delhi, whereby, the Appellants have been convicted in AC
No. 12/2006, arising out of FIR No. RC-4(A)/05-ACU-VIII, under Sections
120B read with Sections 420, 468 and 471 of the Indian Penal Code, 1860, (for
short, ‘IPC’), and Sections 13(2) read with Section 13(1)(d) and Section 15
(added subsequently, while framing of charge) of the Prevention of Corruption
Act, 1988, (for short, ‘PC Act’), registered by CBI.
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2. For sake of convenience, the details of the Appellants/Convicts in the
present batch of appeals have been set forth as follows: –
Criminal Name of the Convicted for Quantum of Sentence Awarded
Appeal Appellants/Convicts Offences to the Appellants/Convicts
Number Punishable under
(CRL.A.) Sections
657/2012 G.P. Sharma arrayed • For 120B IPC, RI for 3 years
as Junior Engineer of with fine of Rs. 25,000/-
MCD each, in default, SI for 6
(Accused No. 5) • 120B, 420 read months;
Hereinafter referred with 511 of the • For 420/511 IPC, RI for 3
to as 'J.E./A-5' IPC years with fine of Rs.
• 420 read with 25,000/- each, in default, SI
663/2012 Brij Pal Singh 120B of the IPC for 6 months;
arrayed as Executive • 15 read with • For 120B IPC, RI for 3 years
Engineer of MCD 13(1)(d) read with fine of Rs. 25,000/-
(Accused No. 1) with 13(2) of PC each, in default, SI for 6
Hereinafter referred Act months;
to as 'E.E./A-1' • 13(2) read with • For 420 IPC, RI for 3 years
664/2012 Anil Kumar arrayed 13(1)(d) of PC with fine of Rs. 25,000/-
as Assistant Engineer Act each, in default, SI for 6
of MCD months;
(Accused No. 2) • For S. 15 read with S.
Hereinafter referred 13(1)(d) r/w 13(2) PC Act, RI
to as 'A.E./A-2' for 2 years with fine of Rs.
25,000/- each, in default, SI
for 6 months;
Signature Not Verified
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• For S. 13(1)(d) r/w 13(2) PC
Act, RI for 2 years with fine
of Rs. 25,000/- each, in
default, SI for 6 months;
735/2012 Ajay Kumar Jain @
A.K. Jain arrayed as
Junior Engineer of
MCD
(Accused No. 8)
Hereinafter referred
to as 'J.E./A-8' • For S. 15 read with S.
658/2012 P.K. Sharma arrayed 13(1)(d) r/w 13(2) PC Act, RI
as Assistant Engineer for 2 years with fine of Rs.
of MCD • 15 read with 25,000/- each, in default, SI
(Accused No. 3) 13(1)(d) read for 6 months;
Hereinafter referred with 13(2) of PC • For 120B IPC, RI for 3 years
to as 'A.E./A-3' Act with fine of Rs. 25,000/-
668/2012 S.S. Arya arrayed as • 120B, 420 read each, in default, SI for 6
Assistant Engineer of with 511 of the months;
MCD IPC • For 420/511 IPC, RI for 3
(Accused No. 4) years with fine of Rs.
Hereinafter referred 25,000/- each, in default, SI
to as 'A.E./A-4' for 6 months;
667/2012 Ramkesh Meena
arrayed as Junior
Engineer of MCD
(Accused No. 6)
Signature Not Verified
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Hereinafter referred
to as 'J.E./A-6'
670/2012 Arun Kumar Sharma
arrayed as Junior
Engineer of MCD
(Accused No. 7)
Hereinafter referred
to as 'J.E./A-7'
724/2012 Ajay Verma arrayed
as Proprietor of M/s
A.S. Constructions
(Private
Contractor/Accused
No. 11) • For 120B IPC, RI for 3 years
Hereinafter referred with fine of Rs. 25,000/-
to as 'Private • 120B, 420 read each, in default, SI for 6
Contractor/A-11' with 511 of the months;
722/2012 Subhash Chand IPC • For 420/511 IPC, RI for 3
arrayed as Proprietor years with fine of Rs.
of M/s Subhash 25,000/- each, in default, SI
Brothers (Private for 6 months;
Contractor/Accused
No. 10)
Hereinafter referred
to as 'Private
Contractor/ A-10'
Signature Not Verified
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SINGH RAWAT Page 8 of 48
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723/2012 Deepak Goel arrayed • For 120B IPC, RI for 3 years
as Proprietor of M/s with fine of Rs. 25,000/-
Darshan each, in default, SI for 6
Construction (Private • 420 read with months;
Contractor/Accused 120B of the IPC • For 420 IPC, RI for 3 years
No. 9) with fine of Rs. 25,000/-
Hereinafter referred each, in default, SI for 6
to as 'Private months.
Contractor/A-9'
BRIEF BACKGROUND
3. The present appeals arise out of the following facts: –
i. On 01.02.2005, an information was received, based on which, the FIR in
the present case had been registered, wherein it was stated that various
Divisions of the Municipal Corporation of Delhi (for short, ‘MCD’) in
Delhi during the years 2003 and 2004, installed signboards at various
traffic junctions and, to indicate area names, road names etc.
ii. Vide MCD Office Order No. D/218A/EE(P)III/2003 dated 16.01.2003, it
was provided that these signboards are to be made with very high
intensity micro prismatic retro-reflective sheets so that they will be
visible to the road users, whether motor vehicle drivers or pedestrians,
even during night and other low light conditions.
iii. The concerned Zones and Divisions of MCD were authorized to float
Notice Inviting Tenders (for short, ‘NITs’) so as to get these signboards
installed for the benefit of the general public, however, in contrast toSignature Not Verified
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this, it was alleged that the concerned Executive Engineers (E.E.) and
other staff of various Divisions of MCD had entered into a criminal
conspiracy with contractors and had installed the signboards which
were not of actual retro-reflective sheets.
iv. The Planning Department of the MCD, as per its aforesaid Office Order
dated 16.01.2003, had also provided that the quality of these retro-
reflective signboards of the MCD were to be as per the specifications
ASTM-4956-01 TYPE-IX at the rate of Rs. 12,387.60 per sq. meter.
The said specifications were also appended with the Schedule to the
NITs and provided as under: –
“Providing and fixing retro reflective sign board with very high
intensity retro-reflective sheeting as per ASTM D-4956-01 type
IX made out of 2 mm thick alu. sheet posted on M.S. Angle
40x40x4 mm for back support face to face to be covered fully
with the blue base very high intensity retro reflective sheeting
and subject matter cut out of transport over lay fine hoard to be
mounted on two channels”
v. It was alleged that E.E./A-1 and his predecessor, Sh. RK Sharma, who
was holding office till 19.02.2004, had entered into criminal conspiracy
with the unknown private contractors of MCD with a common object to
cheat the MCD and committed criminal misconduct in awarding tenders
to some unknown contractors during the years 2003 and 2004 for
providing and fixing the retro-reflective signboards in the municipal
jurisdiction limits of Division-XXII of the MCD.
vi. It was further alleged that the unknown contractors were acting in
conspiracy with E.E./A-1, Sh. RK Sharma, A.E./A-3 and otherSignature Not Verified
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unknown Junior Engineers of different wards of Division-XXII of MCD
and have knowingly fabricated and installed inferior quality signboards
which cost only about Rs. 3,000/- per sq. meter, at several places within
the jurisdiction of Division-XXII of MCD which was in violation of the
aforesaid specifications provided by MCD itself.
vii. It was further disclosed that the boards of inferior and sub-standard
quality were manufactured by Sh. Anil Kumar Bhutani of M/s Anil
Engineering Works for unknown contractors.
viii. Therefore, the unknown contractors have fraudulently claimed payments
running into lakhs of rupees by tendering false bills showing that the
work has been executed as per the aforesaid specifications of MCD and
had, while acting in connivance with the E.E.(s) and A.E.(s) of
Division-XXII and other unknown J.E.(s) of the MCD, without
submitting the mandatory warranty certificates to the MCD had caused
huge loss to MCD and Government Exchequer.
ix. On the basis of the aforesaid information, FIR bearing No. RC-4(A)/05-
ACU-VIII was registered with CBI for the offences punishable under
Section 120B read with Sections 420, 468 and 471 of the IPC and
Section 13(2) read with Section 13(1)(d) of the PC Act.
REVELATIONS IN INVESTIGATION AND FINAL REPORT
4. After a thorough investigation respondent/CBI submitted a final report in
the present case which comprised as under: –
i. It was alleged that the accused officials of MCD, Division-XXII of
Shahdara, North Zone, entered into a criminal conspiracy with privateSignature Not Verified
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contractors with an object to cheat the government exchequer whereby
the accused contractors had knowingly installed fabricated signboards
with inferior quality of sheets which costs only Rs. 3,000/- per sq. meter
and accused engineers of MCD had accepted those inferior quality of
signboards and had processed and passed the bills for payment to
accused contractors causing huge wrongful loss to MCD and
corresponding gain to themselves.
ii. During the investigation, it was noted that there are various types of
retro-reflective sheets available in the market which are selected
according to user’s requirement and grading/specification of these
sheets, in accordance with coefficient of retro-reflection in it, as
recognized by “American Society for Testing of Materials” (ASTM) are
also followed in India. It was also noted that Engineering Grade of sheet
is of inferior quality and High Intensity Grade (HIG) which is non-
micro prismatic known as ‘Type-III’ are of high quality. Out of these
micro-prismatic grade sheets (Very High Intensity Grade) which starts
from Type-IV, Type-IX sheets have Very High Intensity Retro
Reflectivity as per ASTM 4956-01, as noted hereinabove, and is
suitable to be installed at short road distances on highways, airports etc.,
for signing purposes. Type-IX sheet is the costliest sheet in the market
as per the pricing standards and there is a vast difference amongst their
prices, however, the difference in quality is only with respect to their
retro reflectivity.
Signature Not Verified
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iii. As per the aforesaid Office Order of MCD, it was directed that only
Type-IX sheets are to be used for installation purposes. However, in the
investigation, it was revealed that signboards of inferior and
substandard quality were installed by the contractors to whom work
orders were issued.
iv. In pursuance of the authorization given to the Executive Engineers by
MCD, NITs were floated by them and 6 work orders were issued to the
private contractors for the installation of signboards comprising of Very
High Intensity Retro-reflective Micro-prismatic sheet, ASTM-4956-01,
Type-IX sheet. The modus operandi followed by the Officials of MCD
and private contractors are similar in each case. The details and roles of
the appellants including the Officials of MCD and the private
contractors to whom the Work Orders were issued for the installation of
signboards consisting of the above noted specifications are
demonstrated in the following chronological manner in Work Order
wise sequence.
Work Order Nos. 172 (Ex. PW-5/E) & 261 (Ex. PW-5/D), Dated
04.08.2003 & 11.09.2003
v. Sh. RK Sharma had floated NITs and issued these work orders in favour
of Private Contractor/A-10, proprietor of M/s Subhash Brothers. Private
Contractor/A-10 had fabricated and installed inferior quality of
signboards which were of HIG sheet instead of Type-IX sheet from M/s
Super Art, Paharganj, New Delhi (fabricator). The said fabricator hadSignature Not Verified
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confirmed that Private Contractor/A-10 had asked for HIG sheets and
not Type-IX sheets and had paid him accordingly.
vi. J.E./A-6 under whose supervision private contractor/A-10 completed the
work, made false entries in his Measurement Book No. 7036. J.E./A-6,
after conducting 100% test check at the spot, had appended a false
certificate to the effect that the sheets installed by Private Contractor/A-
10 are of Type-IX sheet. A.E./A-2, who had also conducted a test
check, had also signed on the same Measurement Book thereby falsely
certifying that the work executed by Private Contractor/A-10 was as per
the NIT specifications.
vii. Thereafter, E.E./A-1 gave false certificate to the effect that the
signboards installed are as per the specifications and subsequently,
passed the bills of Rs. 1,53,706/- and Rs. 1,53,736/- respectively, in
favour of Private Contractor/A-10. However, the payment of those bills
was not made to Private Contractor/A-10. Therefore, E.E./A-1, A.E./A-
2, J.E./A-6 and Private Contractor/A-10 attempted to cheat the MCD/
Govt. Exchequer by accepting signboards of inferior quality.
Work Order No. 213 (Ex. PW-5/B), Dated 18.08.2003 & Order Nos. 308
(Ex. PW-5/C) & 309 (Ex. PW-5/A) Dated 26.09.2003
viii. Sh. RK Sharma again floated NITs and issued these work orders in
favour of Private Contractor/A-11, proprietor of M/s A.S. Constructions
Co., New Delhi. Private Contractor/A-11 fabricated and installed
inferior quality of signboards which were of HIG sheet instead of Type-
IX sheet from Sh. Ashok Kumar Sharma, PW-10 (fabricator). The said
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fabricator had confirmed that Private Contractor/A-11 had asked for
HIG sheets and not Type-IX sheets and had paid him accordingly.
ix. J.E./A-8 under whose supervision, Private Contractor/A-11 completed
the work, made false entries in his Measurement Book No. 1122.
J.E./A-8, after conducting 100% test check at the spot, had appended a
false certificate to the effect that the sheets installed by Private
Contractor/A-10 are of Type-IX sheet. A.E./A-4, who had also
conducted a test check, had also signed on the same Measurement Book
thereby falsely certifying that the work executed by Private
Contractor/A-11 was as per the NIT specifications.
x. Thereafter, E.E./A-1 gave false certificate to the effect that the
signboards installed are as per the specifications and subsequently,
passed the bill of Rs. 1,11,457 in favour of Private Contractor/A-11 in
relation to Work Order No. 213. However, the payment of that bill was
not made to Private Contractor/A-11 as the same was pending due to
non-availability of funds with MCD.
xi. Similarly, in relation to Work Order Nos. 308 and 309, J.E./A-7 under
whose supervision Private Contractor/A-11 completed the work, made
false entries in his Measurement Book No. 1807. J.E./A-7, after
conducting 100% test check at the spot, had appended a false certificate
to the effect that the sheets installed by Private Contractor/A-11 are of
Type-IX sheet. A.E./A-3, who had also conducted a test check, had also
signed on the same Measurement Book thereby falsely certifying that
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the work executed by Private Contractor/A-11 was as per the NIT
specifications.
xii. Thereafter, E.E./A-1 gave false certificate to the effect that the
signboards installed are as per the specifications and subsequently,
passed the bills of Rs. 1,03,813/- and Rs. 1,05,454/- respectively, in
favour of Private Contractor/A-11 with regard to Work Order Nos. 308
and 309. However, the payment of those bills was not made to Private
Contractor/A-11 as they are pending for payment. Therefore, E.E./A-1,
A.E./A-4, A.E./A-3, J.E./A-8, J.E./A-7 and Private Contractor/A-11
attempted to cheat and cause wrongful loss to the MCD/ Govt.
Exchequer by accepting signboards of inferior quality thereby accruing
corresponding gain to the accused contractor.
Work Order No. 552 (Ex. PW-12/A), Dated 17.03.2004
xiii. E.E./A-1 had floated NITs and issued these work orders in favour of
Private Contractor/A-9, proprietor of M/s Darshan Constructions.
Private Contractor/A-9 had fabricated and installed inferior quality of
signboards which were of HIG sheet instead of Type-IX sheet from Sh.
Ashok Kumar Sharma (fabricator). The said fabricator had confirmed
that Private Contractor/A-10 had asked for HIG sheets and not Type-IX
sheets and had paid him accordingly.
xiv. J.E./A-5 under whose supervision Private Contractor/A-10 completed the
work, made false entries in his Measurement Book No. 1953. J.E./A-5,
after making an abstract of this work in Measurement Book and
conducting 100% test check at the spot, had appended a false certificate
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to the effect that the sheets installed by Private Contractor/A-9 are of
Type-IX sheet. A.E./A-2, who had also conducted a test check, had also
signed on the same Measurement Book thereby falsely certifying that
the work executed by Private Contractor/A-9 was as per the NIT
specifications.
xv. Thereafter, E.E./A-1, after conducting a test check, gave false certificates
to the effect that the signboards installed are as per the specifications
and subsequently, passed the bills for payment of Rs. 1,41,850, in
favour of Private Contractor/A-9. The payment of the said bill was
made to Private Contractor/A-9 vide Cheque No. 809434 dated
30.08.2004 and hence, E.E./A-1, A.E./A-2, J.E./A-5 and Private
Contractor/A-9 cheated the MCD/Govt. Exchequer by accepting
signboards of inferior quality and making payment to Private
Contractor/A-9 for the substandard work done by him thereby causing
wrongful loss to the exchequer of MCD and corresponding gain to
themselves.
5. Based on the aforesaid facts and material evidences which were collected
during investigation to substantiate the commission of offences punishable under
Section 120B read with Sections 420, 511 of the IPC and Section 15 read with
Section 13(1)(d) of the PC Act, chargesheet was filed on 06.01.2006 before the
learned Special Court against the present appellants, in these batch of appeals,
arraying them as accused Nos. A-1 to A-11, as noted hereinabove, for causing
wrongful loss to the exchequer of MCD.
Signature Not Verified
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6. The sanction for prosecution, in terms of Section 19 of the PC Act, of the
appellants who were the Officials of MCD was applied for and sanction orders,
Ex. PW-19/A to Ex. PW-19/H; all dated 11.09.2006, were obtained from the
Commissioner of MCD, Sh. Ashok Kumar (PW-19).
7. The prosecution had cited as many as 26 witnesses in the chargesheet and
out of these, only 19 witnesses were examined during the course of the trial.
After the conclusion of prosecution evidence, all the incriminating materials and
evidence were put to the appellants and thereby, they have taken their respective
defences. The appellants had also led defence evidence in order to dispel the case
of the prosecution and prove their innocence and examined 5 witnesses to
substantiate their defence namely, DW-l Sh. V.K. Goel, DW-2 Shiv Kumar
Thapa, DW-3 Sh. A.K. Verma, DW- Sh. Madan Singh Mehra and DW-5 Sh.
M.S. Rao.
8. The learned Trial Court rejected the defence taken by the appellants and
convicted and sentenced them accordingly as noted hereinabove. Hence, the
present appeals challenging the impugned judgment of conviction and order on
sentence passed by the learned Special Court has been filed by the appellants.
SUBMISSIONS ON BEHALF OF THE APPELLANTS
9. Learned Senior Counsels have advanced arguments on behalf of E.E./A-1;
A.E./A-2; A.E./A-3; A.E./A-4; J.E./A-5; J.E./A-6 and learned Counsels have
advanced arguments on behalf of J.E./A-7; J.E./A-8, Private Contractor/A-9;
Private Contractor/A-10 and Private Contractor/A-11.
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9.1 Arguments advanced on behalf of E.E./A-1 are as follows: -
Invalidity Of Sanction for Prosecution
a) Learned Senior Counsel for E.E./A-1 has submitted that the latter is a
Group ‘A’ employee of the MCD and the competent authority, as per the Delhi
Municipal Corporation Act, 1957, (for short, ‘DMC Act’) to grant sanction for
prosecution, in terms of Section 19 of the PC Act, against him is the Corporation
itself and not the Commissioner of MCD. However, in the present case the
sanction for prosecution of the E.E./A-1 (Ex. PW-19/A) has been granted by
PW-19, who was the Commissioner of MCD at that relevant point in time, which
is contrary to the law laid down by a Coordinate Bench of this Court in G.S.
Matharaoo v. CBI, 2012 SCC OnLine Del 480. It is also the case of the
appellant that the competency of the competent authority to grant sanction for his
prosecution strikes at root of the matter thereby causing prejudice to the
Appellant and leading to miscarriage of justice in the instant case.
Non-Application Of Mind By Competent Authority
b) Learned Senior Counsel further submitted that the manner in which the
sanction for prosecution has been obtained does not also inspire confidence in
the present case as the same has been granted without due application of mind. It
is pointed out that it is an admitted case of CBI that only the report of SP, draft
order of sanction and a copy of FIR were sent to the competent authority at the
time of seeking of sanction order. The statements of witnesses, documents which
were collected during the investigation and the report of CRRI, Ex. PW-7/E, was
not sent to the competent authority, PW-19. Attention of this Court has also been
drawn to the testimony of PW-19, wherein, it is recorded that the latter had
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accorded sanction for prosecution without perusing the aforesaid documents as
the same were not presented by CBI to him.
c) Learned Senior Counsel has also drawn the attention of this Court to the
fact that the CBI had registered 6 cases on 01.02.2005 against 45 MCD Officials
with respect to the same subject matter pertaining to 6 divisions of MCD and the
contents of the FIRs in those cases are also the same. Sanction orders for
prosecution of all 45 MCD Officials were sought and all of them were issued on
11.09.2006, which is the same date on which sanction orders in the present cases
have been issued. Interestingly, the contents of all the 45 sanction orders are the
same and it is a matter of record that the proceedings against the 37 MCD
Officials in other RCs, except for the MCD Officials in the present RC, have
been dropped since the sanction in prosecution were found invalid. It is the case
of the present Appellant that his case is also at par with the other 37 MCD
Officials who have since been discharged by the learned Special Judge as the
sanction for prosecution in those cases have been found invalid.
The details of the said cases are as under: –
(i) CBI v. Sudhir Mehta and others (RC No. 2(A)/05) in CBI/40/2016
decided vide order dated 25.05.2017;
(ii) CBI v. Anil Tyagi and others (RC No. 3(A)/05) in CBI/42/2016
decided vide order dated 11.07.2017;
(iii) CBI v. R.B. Bansal and others (RC No. 1(A)/05) in CBI/43/2016
decided vide order dated 03.08.2017;
(iv) CBI v. R.P. Kohli and others (RC No. 3(A)/05) in CBI/45/2016
decided vide order dated 18.08.2017;
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(v) CBI v. M. S. Rana and others (RC No. 2(A)/05) in CBI/44/2016
decided vide order dated 13.07.2017.
d) Reliance has been placed on the judgment of CBI v. Ashok Kumar
Aggarwal, (2014) 14 SCC 295, and Mansuklal Vithaldas Chauhan v. State of
Gujarat, (1997) 7 SCC 622, to contend that the grant of sanction for
prosecution in the present cases are invalid.
Faulty Inspection Of The Installed Signboards
e) Learned Senior Counsel has further contended that the inspection of the
retro reflective signboards was made in a mechanical manner without following
any scientific methodology and their testing was done in the bright daylight. To
support this contention, attention of this Court has been drawn to the testimony
of PW-7, scientific expert, who has admitted that the testing was not done at the
laboratory of Central Road Research Institute (CRRI) under the requisite light,
temperature, and humidity. It is further submitted that CRRI has not adopted the
norms of ASTM at the time of inspection of the signboards. It is also the case of
the Appellant that CRRI does not possess the testing facilities of the retro
reflective sheets and as PW-7 has admitted that there is no provision in CRRI to
distinguish the retro reflective sheets from micro prismatic grade Type IV and
Type X sheets.
f) It is also submitted that perusal of the report, Ex. PW-7/E, which has
invariably been relied on by the learned Trial Court for convicting the Appellant
as well as the other MCD Officials, would show that the same has not been
signed by any person. It is also the case of the Appellant that no training was
imparted to the MCD Officials so as to enable them to distinguish between theSignature Not Verified
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normal engineering grade sheets and retro reflective sheets. It is also the case of
the Appellant that the report of CRRI is inconclusive and the maker of the said
report has not been examined before the learned Trial Court. It has also been
argued that the signboards installed were to be tested by the contractor itself after
a period of 2 years however, testing in the present case has been done even prior
to the said stipulated period.
g) It has also been argued that CRRI is not an expert body under Section
293(4)(g) of the CrPC and therefore, the learned Special Judge has erred in
relying upon the report of CRRI while passing the impugned judgment of
conviction. It is also pointed out that no notification to the effect has been placed
on record or tendered before the learned Trial Court which could show that the
concerned Official from CRRI, who has signed the report, is a Government
Scientific Expert.
False Certifications & Entries in Measurement Book
h) Learned Senior Counsel submitted that in the contract executed between
the MCD and the private contractors there were no special terms and conditions
for installation of retro reflective micro prismatic sheets as also in the NITs
floated by the MCD and the whole work orders were based on general terms and
conditions for such contracts, therefore, the Appellant cannot be held
responsible, in case, the alleged sheets were not installed by the private
contractors as per the specifications.
i) It is also the case of the Appellant that perusal of the certificates would
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signboards or Type IX sheets. The certificates issued were in consonance with
the requirements of the NIT and the CPWD manuals.
j) He has further submitted that E.E./A-1 was not the person who had
certified the quality or had done inspection of specifications of the installed
signboards; instead, he had merely forwarded the same on the basis of the
certificates given by Assistant Engineers and Junior Engineers and the same
cannot be attributed to having intention to cheat.
k) He has further submitted that the learned Trial Court has failed to
appreciate the fact that E.E./A-1 had assumed the charge of Office of Executive
Engineer of Division XXII only on 19.02.2004 whereas all the work orders,
except Work Order No. 552 dated 17.03.2004, were floated and issued during
the tenure of his predecessor, Sh. RK Sharma. It is also pointed out that the said
sole work order was also awarded on the basis of tender which was already
awarded to the contractor.
No Loss to State Exchequer
l) It has also been argued that the payment has only been made in one work
order and for the remaining 5 work orders, the same is still pending and
therefore, it would be wrong to say that any loss had been caused to the State
Exchequer.
Arguments on behalf of A.E./A-2, A.E./A-3 and A.E./A-4
9.2 Arguments on behalf of A.E./A-2, A.E./A-3, A.E./A-4 are similar to that
of E.E./A-1, apart from the sub-para (a), (j) and (k) of para 9.1, and no additional
arguments have been advanced by the learned Senior Counsel for these
Appellants.
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9.3 Arguments advanced on behalf of J.E./A-5 are as follows: -
a) Learned Senior Counsel for J.E./A-5 has submitted that the latter was not
responsible or had competency to check for the quality of the material supplied
and the special conditions which have been relied on by the prosecution. He has
further submitted that special conditions which were required for the installation
of retro reflective Type IX sheets were not appended with the NITs and the
contracts which were executed by the MCD. It is also the case of the Appellant
that the latter was not consulted or briefed in the preparation of the Office Order
dated 16.01.2003.
b) Learned Senior Counsel has drawn the attention of this Court to the
testimony of PW-10, Ashok Kumar, who is purportedly alleged to have
fabricated the signboards for the contractors and submitted that the said witness
has resiled from his statement and having any knowledge regarding any such
fabrication of the signboards for any of the contractors. It has been argued that
apart from the said testimony there is nothing on record to show that J.E./A-5
knew or was involved in the fabrication of the installed signboards.
c) He has further submitted that the responsibility of a Junior Engineer is
only meant to check the quantity of materials which were supplied by the
contractor and not the quality. It is also the case of the Appellant that the
Measurement Book was used to check the mathematical calculations and the
quality of the work is not mentioned in the said Book by the Junior Engineer as
the same is mentioned in the interim or final bills. Attention of this Court has
been drawn towards the certification in Measurement Book No. 1953 dated
31.03.2004 and it is submitted that the same does not constitute certification
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regarding the quality of the signboards, however, those certifications were made
regarding the quantity of the material and the same is also acknowledged by the
Private Contractor/A-9.
d) Besides these arguments, other arguments regarding the non-application of
mind while granting sanction for prosecution, inconclusive report of CRRI and
allegations qua false certifications and entries in the Measurement Book and bills
are similar to that of accused/Appellant, A-1 to A-4.
9.4 Arguments advanced on behalf of J.E./A-6 are as follows: –
a) Learned Senior Counsel for J.E./A-6 has submitted that the MCD was not
equipped with equipment which could help in the ascertainment of the quality of
the signboards installed. He has further submitted that the method of ascertaining
the quality of retro reflective sheets is not mentioned in the NITs or Work Orders
or the contract executed between MCD and private contractors. It is also the case
of the Appellant that it was not mentioned in the contract that only Type-IX
sheets are to be used for the purpose of installation in the Work Orders issued by
the MCD.
b) It has also been argued that the samples which were used for testing the
quality of the signboards were drawn randomly out of the installed signboards.
c) Other arguments advanced on behalf of J.E./A-6 are similar, as noted
hereinabove, to the cases of the other co-convicts, therefore, the same have not
been repeated for the sake of brevity.
9.5 Learned counsel appearing for J.E./A-7 and J.E./A-8 have also advanced
similar arguments to that of J.E./A-5 and have adopted the arguments advanced
on behalf of E.E./A-1, to the limited extent, as noted hereinabove.
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Arguments on behalf of Private Contractors/A-9 to A-11
9.6 Learned counsels for the Private Contractors has made the following
submissions: –
a) Learned counsels for the private contractors have submitted that the retro
reflective board is a Non-Delhi Schedule Rate Items (Non-DSR) in terms of the
CPWD Manuals and Specifications however, rate of the same is not available in
the Schedule of the CPWD. The rates of the same were analysed and issued by
the Planning Department of MCD which is determined based on the prevailing
market rates. It is further submitted that NITs included the estimate of all the
items; however, the special terms and conditions with respect to the Non-DSR
items including the retro reflective micro prismatic Type IX sheet was not there
in the NITs issued by the MCD.
b) Attention of the Court has been drawn towards the testimony of Sh. RK
Sharma, who was erstwhile Executive Engineer, wherein he had admitted that in
the NITs floated during his tenure specifications regarding the Type IX sheets
were not there.
c) Besides these aforesaid arguments, learned counsel for the Private
Contractors have adopted the arguments advanced by the learned Senior
Counsels for E.E./A-1 and other A.E.(s) and J.E.(s) to the extent that the same
are applicable to them.
SUBMISSIONS ON BEHALF OF THE CBI/RESPONDENT
10. Learned SPP for the CBI has advanced arguments which are common
against the cases of all the Appellants and the same are as follows: –
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Description of Sheets to be Installed
a) Learned SPP for the CBI has submitted that the identity and classification
of the sheets which have been installed in pursuance of the Work Orders issued
is of essence in the present case as the schedule of work appended to the NITs
specifically provides that the sheets which were directed to be used for
installation of the signboards are to be micro prismatic grade sheets of Type IX
and as per the standards of ASTM 4956-01. Attention of this Court has been
drawn towards the para 4 of the chargesheet, wherein, the description and
distinguishing features of the various kinds of engineering sheets have been
mentioned and the same has also been placed on record as Ex. PW-3/A. It is also
submitted that the specific conditions were also circulated with the circular in
question i.e., Ex. PW-1/C.
Specifications and Quality of Material to be Used
b) Learned SPP for the CBI has further submitted that perusal of the NITs
and especially the schedule attached to it clearly shows that the quality of
signboards was to be of Type-IX sheet as per the ASTM 4956-01 standard. He
further submitted that the Measurement Book also shows that the A.E.(s) and
J.E.(s) have given certification to the extent that the signboards which have been
installed were as per the said standards. However, to the contrary, the expert
report (Ex. PW-7/E) of CRRI shows that the installed signboards were not of
micro prismatic sheet Type IX.
c) It is also the case of CBI that ample evidence has been placed on the
record to substantiate the report of CRRI and the same has been rendered after
due testing of the signboards installed by the private contractors. It is also
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submitted that it is not the case of the convicts that there was any confusion
regarding the quality and category of sheets which were directed to be installed
as per the Work Orders issued to the private contractors.
Certifications by the MCD Officials
d) Learned SPP for the CBI has also submitted that the concerned MCD
Officials have certified that the materials used were as per the NIT conditions
and specifications as the same can be manifestly seen from the entries of the
Measurement Book and bills which have been raised by the private contractors.
However, the report of CRRI shows otherwise. It is the case of the prosecution
that the installed signboards were not in conformity with the specifications
provided by the MCD vide Office Order dated 16.01.2003 and were of inferior
quality standards. It is further submitted that the Measurement Books were not
only used for physical quantity checks but also for the quality of the material
used in the installation purposes.
Expert Witness and Report of CRRI
e) Learned SPP for CBI submitted that under Section 293 of the CrPC the
report issued by the expert enumerated therein, can be relied upon as evidence
without calling the said expert as witness. However, in the present case, the
expert from CRRI who had rendered the report has been examined before the
learned Trial Court, therefore, his evidence is relevant under Section 45 of the
Indian Evidence Act, 1872, (for short, ‘IEA’). It is the case of the prosecution
that, as per ASTM, it is not mandatory that the quality or testing of the sheets can
only be done in a laboratory.
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f) It is also submitted that the testing in the present case was done with the
help of reflectometer R-4500 and the signboards which were installed by the
private contractors had failed to pass the test of retro reflectivity. It is also argued
that there is no restriction as such that the testing of the signboards cannot be
done before 2 years of their installation or execution of work.
g) The report of the CRRI clearly demonstrates that the private contractors
had used ASTM 4956-04 instead of ASTM 4956-01 sheets. Learned SPP for
CBI has submitted that even though the test was conducted in the bright daylight
still the same cannot be construed as a sole factor to disregard the report of the
expert as the tests were conducted with the aid of the reflectometer.
h) Regarding the difference in the timing of the panchnamas i.e., Ex. PW-
7/A to Ex. PW-7/D, it is submitted that the minor contradiction in stating the
time of the panchnama does not make a major difference at all as the inspection
and testing were not done by a single person alone. It consisted of a team of CBI
Officials, Expert, MCD persons. It is also pointed out that none of the witnesses
were confronted with the variation in timings of the panchnamas.
Sanction Order for Prosecution
i) Regarding the challenge of the convicts in respect of sanction order, it is
submitted that the same has been an afterthought and it also does not find
mention in the memo of appeal.
j) It is further submitted that the sanction for prosecution of the present
Appellants has been passed after due application of mind. It is the case of CBI
that the grant for sanction for prosecution is an administrative function and while
examining the sanction, the Court is not exercising powers of Appellate Court
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over such sanction order. It is also argued that the application of mind does not
mean that the sanctioning authority should examine every detail to decide the
veracity of the allegations made against the proposed accused at that relevant
stage.
k) Learned SPP for CBI has also submitted that the learned Trial Court after
examining material available on record has upheld the sanction order of
prosecution and the same cannot now be challenged in view of the bar under
Section 19(3) of the PC Act. It is also submitted that the sanctioning authority, in
view of the incriminating evidence placed before it, was satisfied that a prima
facie case against the Appellants is made out and had granted the sanction for
prosecution after getting clarifications of certain queries from CBI. It is further
submitted that the sufficiency of the material placed before the sanctioning
authority cannot be questioned by the Appellants at this stage of the case.
11. The case of the Respondent/CBI against the respective Appellants are
as follows: –
11.1 Role of E.E./A-1
a) E.E./A-1 was working as Executive Engineer in Division XXII and was
bestowed with the duty to check the quality of the signboards installed by the
private contractors and passing bills of payment. It is the case of the prosecution
that E.E./A-1 was the person who had after inspection of the work executed by
the private contractors had made endorsement/entry in the Measurement Book
that the same were in consonance with the standards provided in the NITs floated
by MCD. All the requisite documents pertaining to the certificate of
test/warranty had been obtained by the private contractors from E.E./A-1.
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Validity of Sanction for Prosecution
b) Regarding the invalidity of the sanction order for prosecution against
E.E./A-1, it is submitted that though he was working as Executive Engineer in
the said Division of the MCD at the time of commission of the offences, he was
a Group ‘A’ employee of lower category and was appointed by Commissioner of
MCD. It is further submitted that the said post of lower category of Group ‘A’
employee does fall under the category of higher officers as provided under
Section 89 of the DMC Act. It is also pointed out that as per Section 59(d) of the
DMC Act, Commissioner of MCD was the appointing as well as the Disciplinary
authority of E.E./A-1 and therefore, the sanction for prosecution granted by the
PW-19 was valid sanction as it was accorded by the competent authority.
c) It is also pointed out that the Hon’ble Supreme Court vide Order dated
09.11.2012 passed in SLP Crl. 7932-7933/2012 had confined the applicability
of G.S. Matharoo’s case (supra) only to the parties of that case, therefore, the
law laid down by this Court in G.S. Matharoo (supra) does apply to the facts of
the present case. It is also pointed out that the said SLPs had also been dismissed
by the Hon’ble Supreme Court vide Order dated 26.08.2014.
d) With respect to the accused MCD Officials against whom proceedings
were dropped by the CBI pursuant to the orders passed by the learned Special
Judge, as noted hereinabove (supra sub-para (c) para 9.1), it is submitted that
the present MCD Officials who have been convicted by the learned Trial Court
cannot seek parity with those who were discharged as those MCD Officials had
assailed the sanction orders qua them during the pendency of the trial however,
the present MCD Officials, except E.E./A-1, never chose to avail such remedies.
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It is also pointed out that it is only at the request of E.E./A-1 his challenge qua
the sanction order was decided alongwith the main case after the hearing of the
same.
11.2 Role of A.E./A-2; A.E./A-3; A.E./A-4
a) Besides the submissions which have been recorded hereinabove, similar
arguments have been made by learned SPP for CBI against these A.E.(s). Their
role in the present case is that they after conducting a test check of the work,
executed which they were supervising, had signed, or made endorsements in
their respective Measurement Books to the effect that signboards installed by the
private contractors had been in consonance with the specifications mentioned in
the schedule to the NITs floated by the MCD. The case of the CBI against them
is that the said certification made by these A.E.(s) was made falsely and
deliberately as they were acting in furtherance of their conspiracy to cheat and
cause loss to the State Exchequer.
b) The submissions regarding the non-application of mind to the grant of
sanction for prosecution against these Appellants are also same except regarding
the invalidity of the sanction order which has specifically been assailed by
E.E./A-1.
c) These MCD Officials have also not challenged the sanction order during
the pendency of the trial before the learned Trial Court hence, they are also not
liable to be treated at par with those Officials in other RCs against whom
proceedings were dropped pursuant to order passed by the learned Special Judge.
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11.3 Role of J.E./A-5; J.E./A-6; J.E./A-7; J.E./A-8
a) The role of these J.E.s are also similar as they have given false certificates
and made endorsement in the Measurement Book to the effect that work
executed by the private contractors under their respective supervision, as noted
above, was as per the specifications mentioned in the NITs even though the
signboards which were installed were of inferior quality.
b) Rest of the submissions with regard to these J.E.s have been noted above
and are similar to that of A.E.s.
11.4 Role of Private Contractors/A-9 to A-11
a) While acting in conspiracy with the MCD Officials, the private contractors
had raised bills of payment in respect of their work executed in pursuance of the
Work Orders issued in their favour on the basis of the false certifications and
endorsements given by the MCD Officials.
b) In Work Order No. 552, Private Contractor/A-9 had received the payment
via encashment of cheque for the bill raised by him thereby causing loss of Rs.
1,41,850 to the State Exchequer. However, in the rest of the Work Orders,
payment for the bills raised by the private were not made owing to the reasons,
as noted above. Hence, an attempt to cheat was made by the Private
Contractors/A-10 and A-11, in connivance with the MCD Officials to cause loss
to the State Exchequer.
ANALYSIS AND FINDINGS
12. The primary contention on behalf of the MCD Officials, being E.E./A-1,
A.E./A-2, A.E./A-3, A.E./A-4, J.E./A-5, J.E./A-6, J.E./A-7, J.E./A-8, is that the
sanction for prosecution as required under Section 19 of the PC Act, 1988 read
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with Section 197 of the Cr.P.C, 1973 is invalid. The sanction for prosecution in
the present appeals was granted by PW-19, who at the relevant time was
Commissioner in the MCD. It is pointed out that the CBI had registered 6 RCs
on 01.02.2005 against the 45 officials of MCD with respect to the same subject
matter pertaining to 6 divisions of MCD. Accordingly, CBI sought sanction for
prosecution against 45 officials of MCD from PW-19 together. It is further come
on record, all the sanctions orders with respect to the said 45 officials of MCD,
i.e., the aforesaid appellants and 37 other MCD Officials in the related 5 other
matters were issued on the same date i.e., on 11.09.2006. The sanction orders in
the present appeals have been placed on record as PW-19/A to PW-19/H. It has
come on record that contents of all the 45 sanction orders are same.
Consequently, CBI filed 6 chargesheets before the ld. Special Judges, CBI. It
was pointed out that sanction order with respect to the similarly placed Officials
of MCD has since been declared invalid by respective learned Special Judges in
all the other 5 cases. The list of such cases is reproduced as under: –
(i) CBI v. Sudhir Mehta and others (RC No. 2(A)/05) in CBI/40/2016
decided vide order dated 25.05.2017;
(ii) CBI v. Anil Tyagi and others (RC No. 3(A)/05) in CBI/42/2016
decided vide order dated 11.07.2017;
(iii) CBI v. R.B. Bansal and others (RC No. 1(A)/05) in CBI/43/2016
decided vide order dated 03.08.2017;
(iv) CBI v. R.P. Kohli and others (RC No. 3(A)/05) in CBI/45/2016
decided vide order dated 18.08.2017;
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(v) CBI v. M. S. Rana and others (RC No. 2(A)/05) in CBI/44/2016
decided vide order dated 13.07.2017.
13. The aforementioned sanction orders have been declared invalid by the
respective learned Special Judges primarily on the ground that the same were
passed without due application of mind, and therefore, unsustainable in law.
Reason for such a finding in the aforesaid orders passed by respective learned
Special Judges was that the SP report which was sent to the Sanctioning
Authority was not accompanied by any documents collected during the
investigation by the CBI, and more significantly, the report from the CRRI was
also not appended with the said report sent for seeking sanction for prosecution
against MCD Officials. It was noted that at the time of sending of the SP Report,
the report from CRRI was awaited.
14. It was further noted that the sanctioning order was, thus, passed without
having perused the statement of witnesses or any document collected by the CBI
during investigation as well as without the report of CRRI on which the entire
prosecution case is based upon. It was further observed that when clarification
was sought by the Director, Vigilance, MCD, the reply given by CBI was in
aggressive tone, and thus, there was indirect pressure to accord sanction for the
prosecution at the earliest on the grounds of delay.
15. As noted hereinabove, the sanction orders in the aforesaid RCs as well as
the present sanction orders were issued on the same date and contents of the
same are identical. In the present case, IO/PW-18, in his cross-examination as
recorded on 22.03.2012, has stated that, “It is correct that before grant of
sanction by the Commissioner, CRRI report was not available” (page 10 of
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cross-examination of PW-18) and PW-19, Sanctioning Authority, Commissioner
of MCD, during his cross-examination as recorded on 20.03.2012, has stated that
“As it is an old case, I do not remember if I had written a letter to the SP, CBI
for seeking some clarifications. I do not remember if the report form CRRI was
not received by the time I granted sanction. I do not remember if I had made a
mention of CRRI report in my order or not.” (page 4 of cross-examination of
PW-19). Thus, in the present case as well, the circumstances in which the
sanction orders were passed are similar to the aforesaid cases wherein identical
sanction orders have been declared invalid. Findings with respect to the said
sanction orders has not been challenged by the CBI and the same has now
attained finality. The submission on behalf of the CBI that the present issue was
not raised before the learned Trial Court and the same was also not been taken in
the present appeal, is not tenable as the issue is legal in nature and goes to the
very root of the matter. However, it is not denied that the sanction orders which
have been declared invalid were issued on the same date and were identical. It is
also not in dispute that the sanction orders in the present case was also issued in
similar circumstances as mentioned hereinabove. In these circumstances, the
contention of the CBI that the Appellants herein had to show that failure of
justice had occasioned on account of defect in sanction for prosecution in terms
of Section 19(3) of the PC Act is not tenable. In these circumstances, when the
Appellants are identically placed with the 37 other Officials of MCD in 5 other
cases, wherein, they have been discharged on account of invalid sanction order,
the aforesaid stand of the CBI cannot be accepted. In addition, it is also pertinent
to note that CRRI report which was filed along with chargesheet and placed on
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record by CBI was unsigned and also, records the fact that it is difficult to
confirm the type of micro prismatic grade sheet i.e., from Type IV to Type X.
This was a relevant material which should have been placed before the
Sanctioning Authority. Therefore, the orders granting sanction, i.e., Ex. PW-
19/A to Ex. PW-19-H, in view of non-application of mind are held to be invalid,
and therefore, cannot be sustained.
16. The Hon’ble Supreme Court in State of Karnataka v. Ameerjan, (2007)
11 SCC 273, while dealing with interpretation and/or application of the
provisions of Section 19 of PC Act, has held and observed as under: –
“9. We agree that an order of sanction should not be construed in a pedantic
manner. But, it is also well settled that the purpose for which an order of
sanction is required to be passed should always be borne in mind.
Ordinarily, the sanctioning authority is the best person to judge as to
whether the public servant concerned should receive the protection under
the Act by refusing to accord sanction for his prosecution or not.
10. For the aforementioned purpose, indisputably, application of mind on
the part of the sanctioning authority is imperative. The order granting
sanction must be demonstrative of the fact that there had been proper
application of mind on the part of the sanctioning authority. We have
noticed hereinbefore that the sanctioning authority had purported to pass the
order of sanction solely on the basis of the report made by the Inspector
General of Police, Karnataka Lokayukta. Even the said report has not been
brought on record. Thus, whether in the said report, either in the body
thereof or by annexing therewith the relevant documents, IG Police,
Karnataka Lokayukta had placed on record the materials collected on
investigation of the matter which would prima facie establish existence of
evidence in regard to the commission of the offence by the public servant
concerned is not evident. Ordinarily, before passing an order of sanction, the
entire records containing the materials collected against the accused should
be placed before the sanctioning authority. In the event, the order of
sanction does not indicate application of mind as (sic to) the materials
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same may be produced before the court to show that such materials had in
fact been produced.”
17. The Hon’ble Supreme Court in Mohd. Iqbal Ahmed v. State of Andhra
Pradesh, (1979) 4 SCC 172, wherein sanction order against the Appellant
therein was challenged regarding the application of mind by the Sanctioning
Authority based on the material placed before it, has held and observed as under:
–
“3. A perusal of the resolution of the Sanctioning Authority clearly shows
that no facts on the basis of which the prosecution was to be sanctioned
against the appellant are muntioned in the sanction nor does this document
contain any ground on which the satisfaction of the Sanctioning Authority
was based and its mind applied. This document merely mentions that the
sanction has been given on the basis of a note of tlie Commissioner,
Municipal Corporation which appears to have been placed before the
Committee. It is obvious, therefore, tliat this note, if any, must have come
into existence either on March 31, 1969 or at any date prior to this. The
prosecution could have proved the facts constituting the offence which were
placed before the Sanctioning Authority by producing the note at the trial.
But nu such thing has been done. What the prosecution did was merely to
examine two witnesses PWs 2 and 7. PW 2 has produced the order
implementing the Resolution of the Sanctioning Authority which is Ex. P10
and is dated April 21, 1969, that is to say after the sanction was given. This
document no doubt contains the facts constituting the offence but that does
not solve the legal issues that arise in this case. It is incumbent on the
prosecution to prove that a valid sanction has been granted by the
Sanctioning Authority after it was satisfied that a case for sanction has been
made out constituting the offence. This should be done in two ways; either
(1) by producing the original sanction which itself contains the facts
constituting the offence and the grounds of satisfaction and (2) by adducing
evidence aliunde to show that the facts placed before the Sanctioning
Authority and the satisfaction arrived at by it. It is well settled that any case
instituted without a proper sanction must fail because this being a manifest
difficulty in the prosecution, the entire proceedings are rendered void ab
initio. In the instant case no evidence has been led either primary orSignature Not Verified
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secondary to prove as to what were the contents of the note mentioned in
Ex. PI 6 which was placed before the Sanctioning Authority. The evidence
of PW 2 or PW 7 is wholly irrelevant because they were not in a position to
say as to what were the contents of the note which formed the subject-matter
of the sanction by the Standing Committee of the Corporation. The note
referred to above was the only primary evidence for this purpose. Mr Rao
vehemently argued that although the resolution, Ex. PI 6 does not mention
the facts, the Court should presume the facts on the basis of the evidence
given by PW 2 and the order implementing sanction which mentions these
facts. This argument is wholly untenable because what the Court has to
18. The Hon’ble Supreme Court in State of Karnataka Through CBI v. C.
Nagarajswamy, (2005) 8 SCC 370, while dealing with interpretation of Section
300 of the CrPC vis-à-vis whether the sanction for prosecution accorded for the
prosecution of the accused therein was a valid sanction and can the challenge to
same can be brought to Court’s notice at a later stage, has held and observed as
under: –
“15. Grant of proper sanction by a competent authority is a sine qua non for
taking cognizance of the offence. It is desirable that the question as regards
sanction may be determined at an early stage. (See Ashok Sahu v. Gokul
Saikia [1990 Supp SCC 41 : 1990 SCC (Cri) 611] and Birendra K.
Singh v. State of Bihar [(2000) 8 SCC 498 : 2001 SCC (Cri) 17 : JT (2000)
8 SC 248] .)
16. But, even if a cognizance of the offence is taken erroneously and the
same comes to the court’s notice at a later stage a finding to that effect is
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appellate court. (See B. Saha v. M.S. Kochar [(1979) 4 SCC 177 : 1979 SCC
(Cri) 939] SCC para 13 and K. Kalimuthu v. State [(2005) 4 SCC 512 : 2005
SCC (Cri) 1291] .)”
19. The other issue with respect to the sanction order is that PW-19 was not
the competent authority to grant sanction for prosecution in the present case for
E.E./A-1/Brij Pal Singh, who was the Executive Engineer of the MCD. In RC
No. 3A/05-ACU-VIII, learned Special Judge had discharged the public servant,
therein, on account of the fact that the Sanctioning Authority was not competent
to grant sanction for prosecution and the same was challenged by the CBI before
this Court in CRL.REV. 501/2022, which was dismissed vide a judgment dated
14.09.2017, wherein the learned Single Judge of this Court observed and held as
under: –
“16. It would be necessary to refer to the provisions of Section 465 of
the Cr.P.C. also which deals with the effect of any error, omission or
irregularity in grant of sanction on the prosecution.
“465. Finding or sentence when reversible by reason of error,
omission or irregularity.-
(1) Subject to the provisions hereinbefore contained, no finding,
sentence or order passed by a Court of competent jurisdiction shall be
reversed or altered by a Court of appeal, confirmation or revision on
account of any error, omission or irregularity in the complaint,
summons, warrant, proclamation, order, judgment or other proceedings
before or during trial or in any inquiry or other proceedings under this
Code, or any error, or irregularity in any sanction for the prosecution,
unless in the opinion of that Court, a failure of justice has in fact been
occasioned thereby. (2) In determining whether any error, omission or
irregularity in any proceeding under this Code, or any error, or
irregularity in any sanction for the prosecution has occasioned a failure
of justice, the Court shall have regard to the fact whether the objection
could and should have been raised at an earlier stage in the
proceedings.”
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17. A bare reading of Section 19(1) of the PC Act makes it clear that a court
will have the competence to take cognizance of any offence punishable
under Sections 7, 10, 11, 13 and 15 against public servants when previous
sanction of the competent authority has been accorded. The terms are
absolute and brooks of no dispute. What has been prohibited is that a court
of appeal, confirmation or revision shall not reverse or alter the findings of
the Special Judge on the ground of error, omission or irregularity in the
sanction unless in the opinion of that court, a failure of justice has been
occasioned, and while coming to such opinion, such court shall have regard
to the fact whether such objection ought to have been raised at any earlier
stage in the proceedings.
18. The Supreme Court in Nanjappa v. State of Karnataka (2015) 8
SCALE 171 has held as follows:
“16. Having said that there are two aspects which we must
immediately advert to. The first relates to the effect of sub-section (3)
to Section 19, which starts with a nonobstante clause. Also relevant to
the same aspect would be Section 465 of the Cr.P.C. which we have
extracted earlier. It was argued on behalf of the State with considerable
tenacity worthy of a better cause, that in terms of Section 19(3), any
error, omission or irregularity in the order sanctioning prosecution of
an accused was of no consequence so long as there was no failure of
justice resulting from such error, omission or irregularity. It was
contended that in terms of explanation to Section 4, “error includes
competence of the authority to grant sanction”. The argument is on the
face of it attractive but does not, in our opinion, stand closer scrutiny.
A careful reading of sub-section (3) to Section 19 would show that the
same interdicts reversal or alteration of any finding, sentence or order
passed by a Special Judge, on the ground that the sanction order
suffers from an error, omission or irregularity, unless of course the
court before whom such finding, sentence or order is challenged in
appeal or revision is of the opinion that a failure of justice has occurred
by reason of such error, omission or irregularity. Sub-section (3), in
other words, simply forbids interference with an order passed by
Special Judge in appeal, confirmation or revisional proceedings on the
ground that the sanction is bad save and except, in cases where the
appellate or revisional court finds that failure of justice has occurred
by such invalidity. What is noteworthy is that sub-section(3) has noSignature Not Verified
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application to proceedings before the Special Judge, who is free to
pass an order discharging the accused, if he is of the opinion that a
valid order sanctioning prosecution of the accused had not been
produced as required under Section 19(1). Sub-section (3), in our
opinion, postulates a prohibition against a higher court reversing an
order passed by the Special Judge on the ground of any defect,
omission or irregularity in the order of sanction. It does not forbid a
Special Judge from passing an order at whatever stage of the
proceedings holding that the prosecution is not maintainable for want
of a valid order sanctioning the same. The language employed in sub-
section (3) is, in our opinion, clear and unambiguous. This is, in our
opinion, sufficiently evident even from the language employed in sub-
section (4) according to which the appellate or the revisional Court
shall, while examining whether the error, omission or irregularity in
the sanction had occasioned in any failure of justice, have regard to the
fact whether the objection could and should have been raised at an
early stage. Suffice it to say, that a conjoint reading of sub- sections
19(3) and (4) leaves no manner of doubt that the said provisions
envisage a challenge to the validity of the order of sanction or the
validity of the proceedings including finding, sentence or order passed
by the Special Judge in appeal or revision before a higher Court and
not before the Special Judge trying the accused. The rationale
underlying the provision obviously is that if the trial has proceeded to
conclusion and resulted in a finding or sentence, the same should not
be lightly interfered with by the appellate or the revisional court
simply because there was some omission, error or irregularity in the
order sanctioning prosecution under Section 19(1). Failure of justice is,
what the appellate or revisional Court would in such cases look for.
And while examining whether any such failure had indeed taken place,
the Court concerned would also keep in mind whether the objection
touching the error, omission or irregularity in the sanction could or
should have been raised at an earlier stage of the proceedings meaning
thereby whether the same could and should have been raised at the
trial stage instead of being urged in appeal or revision”.
(emphasis provided by the court)
19. The argument of Mr. Narender Mann, learned Special Public Prosecutor
that the judgment delivered in Nanjappa (supra) is per incuriam as it does
not take into account the judgments delivered in State of Bihar and Others
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v. Rajmangal Ram 2014 (4) SCALE 338, Prakash Singh Badal and Anr.
v. State of Punjab and Ors. (2007) 1 SCC 1, State of Madhya Pradesh v.
Virender Kumar Tripathi 2009 (7) SCR etc. is not correct. The issues
involved in the aforesaid cases were different. In State of Bihar v.
Rajmangal Ram (supra), sanction for prosecution as against the accused
persons was granted by the law department of the State and not by the
parent department, to which those accused persons belonged. The accused
person preferred a writ petition before the High Court of Patna, challenging
the maintainability of criminal proceedings on the ground that the sanction
was invalid. The High Court interdicted the prosecution on the aforesaid
ground. The question, therefore, before the Supreme Court of India in
Rajmangal Ram (supra) was whether criminal prosecution could be
interfered with by the High Court at the instance of an accused who had
sought mid-course relief from the criminal charges leveled against him on
grounds of defects/omissions or errors in the order granting sanction to
prosecute including errors of jurisdiction to grant sanction. The Supreme
Court of India, on going through the provisions of Section 19 PC Act read
with Section 465 Cr.P.C., answered the aforesaid question in the negative
while saying so, the Supreme Court took note of the decisions in Prakash
Singh Badal and Virender Kumar Tripathi (supra). Thus, what was the
challenge before the Supreme Court was the order of the High Court
whereby the prosecution against the accused was interdicted mid way. In the
present case, the trial court/special court only has dropped the proceedings
on the grounds of incompetence of the authority granting sanction to
prosecute.
20. In Prakash Singh Badal (supra), the question which had arisen for
consideration before the Supreme Court was as to whether an order of
sanction is required to be passed in terms of Section 197 of the Cr.P.C. in
relation to an accused who has ceased to be a public servant. It was in that
context that a question had arisen as to whether the act alleged to be
performed under the colour of office is for the benefit of the officer or for
his own pleasure. In the context of the question as to whether the public
servant concerned should receive continuous protection, it was opined:
(SCC Page 25 para 29 herein)
“29. The effect of sub-sections (3) and (4) of Section 19 of the Act are
of considerable significance. In sub-section (3) the stress is on “failure
of justice” and that too “in the opinion of the court”. In sub-section (4),
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the “failure of justice” is relatable to error, omission or irregularity in
the sanction. Therefore, mere error, omission or irregularity in sanction
is (sic not) considered fatal unless it has resulted in failure of justice or
has been occasioned thereby. Section 19(1) is a matter of procedure
and does not go to the root of jurisdiction as observed in para 95 of
Narasimha Rao case. Subsection (3)(c) of Section 19 reduces the
rigour of prohibition. In Section 6(2) of the old Act [Section 19(2) of
the Act] question relates to doubt about authority to grant sanction and
not whether sanction is necessary.”
21. Similarly, in other cases referred by the learned counsel for the
petitioner/CBI, the issues were different.
22. The mandate of Sections 3 and 4 of Section 19 is required to be
exercised by the superior courts as has held in Nanjappa (supra)”
20. Learned SPP for the CBI has submitted that the judgment relied upon by
learned Special Judge was of G. S Matharaoo (supra) which was challenged
before the Hon’ble Supreme Court, and the same was dismissed vide order dated
26.08.2014 in SLP Criminal Nos. 7932-7933/2012, however, the Hon’ble
Supreme Court noted that the all the questions of law were kept open. The
aforesaid fact was brought to the knowledge of the learned Single Judge of this
Court, while disposing of the aforesaid Criminal Revision Petition filed by the
CBI, against the orders of discharge. It is again not in dispute that the aforesaid
order has been passed with respect to the similar sanction order passed by PW-19
in the aforesaid RC. It is also not in dispute that the E.E./A-1 is similarly placed
with the Respondent in the aforesaid petition, i.e., Rajinder Prakash Kohli. In
view of the above, sanction order for prosecution in respect of E.E./A-1, Brij Pal
Singh, is set aside on this ground as well.
21. So far as the other grounds in the appeals are concerned, it is relevant to
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Special Judge vide order dated 20.02.2009 had noted the fact that retro reflective
micro prismatic Grade sheets Type IX” was to be used for the sign boards. The
main thrust of the case of the prosecution is based on the CRRI report Ex. PW-
7/E (colly). The said report towards its end records as under: –
“As per ASTMD-4956-04 the range of micro prismatic grade sheet varies
from Type IV to Type X and It is difficult to confirm the type so values
were not compared with the standard value.”
22. It is further noted that Ex. PW-7/E is otherwise an undated and unsigned
document and the same is sought to be proved through PW-7, Dr. Surendra
Mohan. The submission on behalf of learned Counsels for the Appellants is that
the said document would not be covered under Section 293 of the Cr.P.C. as no
notification or copy thereof has been placed on record or produced during the
course of trial proving that the person who submitted the report had been notified
as a government scientific expert under Section 293(4)(g) of the Cr.P.C.
23. In response to the same, learned SPP for the CBI submits that the said
report can be admissible under Section 45 of the IEA which is for the purposes
of producing expert opinion. Various other grounds have been taken to dispute
the authenticity of the said report inasmuch as, vide panchnama dated
13.04.2005 (from 12:30 P.M. to 05:30 P.M.) (Ex. PW-7/D), it has come on
record that 8 sign boards at different locations were examined in the span of 5
hours in the absence of the Investigating Officer, IO/PW-18.
24. As per the case of the prosecution, panchnamas being Ex. PW-7/A, Ex.
PW-7/B, Ex. PW-7/C and Ex. PW-7/D were prepared on 01.04.2005,
04.04.2005, 05.04.2005 and 13.04.2005 respectively. It has emerged through the
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testimony of PW-7 that on the basis of the signboards examined as per these
panchnamas, he had given his expert report (PW-7/E). The prosecution has
examined PW-11, Vipin Chaudhary, the then, Telecom Technical Assistant in
the office of SDO(P), Yamuna Vihar at Brij Puri, and PW-13, Prem Chand,
retired Head Clerk as independent witnesses to these panchnamas. PW-11 was a
signatory to panchnama, Ex. PW-7/A and has admitted his signatures at the said
memo. PW-13 was signatory to Ex. PW-7/B and Ex. PW-7/D and has admitted
his signatures at said memos. However, PW-13, in his cross-examination, has
stated that nothing was seized in his presence and all the paper work was done
whilst sitting in the MCD Office of Division-XXII, Bhajan Pura. He has further
stated that he had signed the said panchnama documents on the asking of XEN,
Naresh Gupta, and the said documents were not read over to him. The said XEN,
Naresh Gupta, was neither cited as witness nor examined by prosecution before
the learned Trial Court. It is pertinent to note that one of the signatories to
panchnama, Ex. PW-7/A, Sh. Om Prakash (UDC,
Accounts clerk in Division XXII of MCD) was examined as PW-9 by the
prosecution before the learned Trial Court, however, he has not stated anything
regarding the said panchnama. Besides these prosecution witnesses, other
independent witnesses who were signatories to the aforesaid panchnamas, were
cited as witnesses alongwith chargesheet however, they were subsequently
dropped and were not examined by the prosecution during the course of trial. In
view of the inconsistencies in the testimonies of the aforesaid independent
witnesses, as noted hereinabove, regarding the examination of the installed
signboards and preparation of panchnamas, reliance cannot be placed on them.
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25. PW-7 has neither produced the recorded reading of the Recto-
reflectometer R4500 nor any tabulated sheets of observations of the said reading
which obtained on the field were placed on record. Finally, it was admitted by
PW-7 that CRRI does not possess testing facilities to distinguish the category of
retro reflective micro prismatic grade sheet Type IV and Type X sheets. As
noted hereinbefore, the entire case of prosecution is that installed retro reflective
micro prismatic grade sheet were not of Type IX. The fact that this could not
have been tested by the CRRI itself creates a doubt in the present report.
26. The other witness sought to be examined by the prosecution was PW-10,
Ashok Kumar Sharma, who in his statement under Section 161 of the Cr.P.C.
had stated that he was fabricator of sign board in respect of M/s A.S.
Constructions of Private Contractor/A-11 and that he had used only HIG sheets
and not Type IX micro prismatic sheets but the said witness was examined as
PW-10 and had not supported the case of the prosecution at all in this regard.
Apart from the aforesaid evidence, the prosecution relied on certain work orders
and the bills raised in the present matter, the same need not be gone into on
account of the fact that the prosecution case with respect to the fact that micro
prismatic grade sheet Type IX were not used has not been proved beyond
reasonable doubt. It is also pertinent to note in the 6 work orders which are
subject matter of the present appeals, payment was made with respect to only 1
work order which is Ex. PW-12/A and the payment with respect to the remaining
5 work orders have not been made by the MCD.
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27. In view of the aforesaid discussion, this Court is of the considered opinion
that the prosecution has also not been able to prove the case beyond reasonable
doubt qua the appellants.
28. Therefore, the judgment of conviction dated 17.05.2012 and order on
sentence dated 22.05.2012 are set aside. Appellants stand acquitted.
29. The appeals are allowed and disposed of accordingly.
30. Bail bonds stand discharged.
31. Copy of this judgment be communicated to the concerned Jail
Superintendent for necessary information and compliance.
32. Judgment be uploaded on the website of this Court forthwith.
AMIT SHARMA
JUDGE
OCTOBER 04, 2024/bsr
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