Kunj Bihari Sharma v. Central Bureau of Investigation

petitioner, as being the TDM/BSNL, Udhampur, Mr. Jasbir Singh, DE(Plg) BSNL, Udhampur, a businessman Atul Saxena-Prop. M/s Sai Telematics, Ghaziabad and unknown persons have committed culpable acts of omission and commission, an FIR no. R00042011A0001 dated 24.02.2011 came to be registered by the Police Station Central Bureau of Investigation (CBI)/Anti-Corruption Bureau (ACB), Jammu for alleged commission of offences under section 120-B read with section 420 & 471 Ranbir Penal Code and section 5(2) read with section 5(1)(d) of the J&K Prevention of Corruption Act, Svt., 2006. 3 CRMC No. 305/2013

This FIR resulted in an investigation culminating in presentation of a final police report no. 01 of 2012 dated 29.06.2012 thereby booking the petitioner as being public servant and co- accused Mukul Saxena for alleged commission of offences under section 120-B read with section 420 & 471 Ranbir Penal Code and section 5(2) read with section 5(1)(d) of the J&K Prevention of Corruption Act, Svt., 2006.

The gravamen of the said police report no. 01 of 2012 against the petitioner and the co-accused Mukul Saxena came out to be that at the prompting of the co-accused Mukul Saxena, whose brother Atul Saxena, a proprietor of M/s Sai Telematics, Govind Puram, Ghaziabad and originally named as co-accused in the FIR, the petitioner crafted a file process for generating demand for procurement of 08 number of PLTs acting whereupon the co- accused Mukul Saxena supplied the said 08 number of PLTs @ Rs.24,900/- per piece as against market rate of Rs.1,700/- per piece exclusive of taxes and, therefore, in this doing a wrongful loss was caused to the BSNL and corresponding a wrongful gain to M/s Sai Telematics, Ghaziabad, the firm of co-accused Mukul Saxena’s brother Atul Saxena.

Thus, said FIR named co-accused Jasbir Singh, DE(Plg.) in TDM BSNL Udhampur and Atul Saxena, Prop. of M/s Sai 4 CRMC No. 305/2013 Telematics, were let off in the final police report no. 01 of 2012 by the respondent and while booking the petitioner as well as said Mukul Saxena for alleged commission of offences under section 120-B read with section 420 & 471 Ranbir Penal Code and section 5(2) read with section 5(1)(d) of the J&K Prevention of Corruption Act, Svt., 2006.

The alleged course of action related to procurement and purchase of said 08 number of PLTs is of year 2010 at which point of time the petitioner was posted as Telecom District Manager TDM BSNL, Udhampur and by the time the final police report came to be laid before the Special Judge Anti-Corruption (CBI Cases), Jammu the petitioner was posted as Director, TEC, O/O Sr. DDG, Janpath, New Delhi.

On the basis of the police report so laid, the trial court of learned Special Judge Anti-Corruption (CBI Cases), Jammu came to hold, vide its order dated 13.09.2013, that a case is made out for charging the petitioner and the co-accused Mukul Saxena for alleged acts of commission and omission on their part amounting to commission of offences under section 120-B read with section 420 & 471 Ranbir Penal Code and section 5(2) read with section 5(1)(d) of the J&K Prevention of Corruption Act, Svt., 2006. 5 CRMC No. 305/2013

Before proceeding further, a mention is warranted here that section 120-B read with section 420 & 471 of the Ranbir Penal Code are akin to section 120-B, 420 & 471 of Indian Penal Code,

1860. Likewise, section 5 of the Jammu & Kashmir Prevention of Corruption Act, Svt., 2006 constituting offence of criminal misconduct on the part of a public servant is akin to section 7 of the Prevention of Corruption Act, 1988. Both the Ranbir Penal Code and the Jammu & Kashmir Prevention of Corruption Act, Svt. 2006 are now repealed laws upon coming into operation of the Jammu & Kashmir Re-organization Act, 2019, but for the purposes of this case the continuation of the said two laws is obtaining and so is the Jammu & Kashmir Criminal Procedure Code, Svt., 1989 governing the trial of the present case as well as the maintainability of the present petition.

Under the Jammu & Kashmir Code of Criminal Procedure, Svt., 1989 section 221 (akin to section 211 of the Code of Criminal Procedure, 1973) envisages that charge means stating the offence with which the accused is charged and which in the scheme of section 221(section 211) is meant to be equivalent to a statement that every legal condition required by law to constitute the offence charged is found fulfilled in the particular case. Legal condition required by law to constitute the offence charged as intended in terms of the aforesaid section surely means requisite state of facts 6 CRMC No. 305/2013 generating the requisite legal condition/s so as to constitute the offence charged.

Keeping in view the aforesaid intent-wise and content-wise relevance of charge framing in a criminal case under the Code of Criminal Procedure, this Court needs to examine as to what is the state of facts constituting the legal condition brought out by Central Bureau of Investigation (CBI) as an Investigation Authority to put up the petitioner as an accused in the case for alleged commission of offences under section 120-B read with section 420 & 471 Ranbir Penal Code and section 5(2) read with section 5(1)(d) of the J&K Prevention of Corruption Act, Svt., 2006.

A reading of the police report, text and context wise, in its factual perspective comes out with a narrative as set out herein next para. i. On 25.03.2010, Mr. B.N. Koul, SDE BSNL, Katra generates and sends a requisition for the purchase of three items i.e., 08 PLTs, GD Tube Holders & IPM Tester. In reference to this requisition for said three kinds of items, Mr. B. Rajeshwara Rao, JTO O/o TDM BSNL, Udhampur solicited separate requisition for each of three kinds of items as a result whereof two separate requisitions both dated 25.03.2010 for PLTs 7 CRMC No. 305/2013 (08 numbers) & GD Tube Holders (1000 numbers) came to be forwarded to the office of TDM BSNL Udhampur. ii. In relation the said requisition related to 8 PLTs, three purported quotations came forward from three Public Sector Undertakings (PSUs) which are :- a. Quotation from M/s Intelligent Communication Systems India Limited (ICSIL), New Delhi quoting rate of Rs.24,900/- per PLT, b. Quotation from Kendriya Bhandar, Ghaziabad quoting rate of Rs.25,499/- per PLT & c. Quotation from Uttar Pradesh Upbhokta Senkari Sangh Limited (UPUSS), Agra quoting rate of Rs.25,999/- per PLT. iii. The aforesaid three quotations came to be received in the office of Mr. Jasbir Singh, DE(Plg.) BSNL, Udhampur, who further instructed Mr. B. Rajeshwara Rao, JTO to process the said quotations. iv. From the office end of Mr. B. Rajeshwara Rao, the file came to be put up to Tara Chand, the Account Officer BSNL, Udhampur to recommend the purchase of 08 PLTs and the file was, accordingly, recommended and forwarded to the TDM Udhampur for approval which 8 CRMC No. 305/2013 came to be granted by the petitioner wherefrom the file was marked to the Planning Section whereat Mr. Jasbir Singh DE(Plg.) directed Mr. B. Rajeshwara Rao, JTO to prepare the purchase order in favour of PSU M/s Intelligent Communication Systems India Limited (ICSIL), New Delhi which had quoted rate of Rs.24,900/- per PLT for 08 number of PLTs totaling Rs.1,99,200/-. v. The purchase order so issued upon the signature of Mr. Jasbir Singh, DE(Plg.) BSNL, Udhampur was handed over to co-accused Mukul Saxena, who came to deliver 08 number of PLTs to Mr. Bodh Raj, Store Keeper vide M/s Intelligent Communication Systems India Limited (ICSIL), New Delhi Invoice No. 335 dated

02.08.2010 for an amount of Rs.1,99,200/- and M/s Intelligent Communication Systems India Limited (ICSIL), New Delhi’s delivery challan no. 3945 dated

02.08.2010 on account of supply of said 08 number of PLTs. vi. Upon delivery of said PLTs, the file process for making of payment towards M/s Intelligent Communication Systems India Limited (ICSIL), New Delhi was carried out by the Planning Section at the end of Mr. B. 9 CRMC No. 305/2013 Rajeshwara Rao, JTO TDM BSNL, Mr. Jasbir Singh, Mr. DE(Plg) BSNL and Mr. Tara Chand, Account Officer BSNL, Udhampur to which the petitioner accorded his approval which resulted in payment of Rs.1,99,200/- in favour of M/s Intelligent Communication Systems India Limited (ICSIL), New Delhi vide cheque no. 194383 dated 06.08.2010 of Punjab National Bank, Udhampur which came to be encashed by M/s Intelligent Communication Systems India Limited (ICSIL), New Delhi against its account no.3082002100027962 with the Punjab National Bank, Navyug Market Branch, Ghaziabad, from where an amount of Rs.1,72,359/- to be transferred the account no.

588101010050021 of M/s Sai Telematics, Ghaziabad maintained in the Union Bank of India, Govindpuram, Ghaziabad on 03.08.2010. vii. The two quotations referable to M/s Kendriya Bandar, Ghaziabad and M/s Uttar Pradesh Upbhokta Senkari Sangh Limited (UPUSS), Agra were found to be forged whereas approved quotation of M/s Intelligent Communication Systems India Limited (ICSIL), New Delhi dated 05.07.2010 was a genuine one as the same was approved by Mr. A.K. Duggal, the Managing 10 CRMC No. 305/2013 Director of M/s Intelligent Communication Systems India Limited (ICSIL), New Delhi. viii. M/s Intelligent Communication Systems India Limited (ICSIL), New Delhi is a public sector undertaking in which Government’s share holding is 76% (36% by Telecommunication Consultants India Limited (TCIL) wholly owned by Ministry of Communication and Information Technology, Govt. of India and 40% owned by Delhi State Industrial & Infrastructure Development Corporation (DSIIDC, wholly owned by Delhi Government).

M/s Intelligent Communication Systems India Limited (ICSIL), New Delhi is a 1987 incorporated public sector undertaking under the Telecom Commission engaged in activities through MOUs with vendors for trading in goods and other services on a back to back basis, to avoid financial cost and to bind vendors for all terms and conditions of the contract. M/s Intelligent Communication Systems India Limited (ICSIL), New Delhi has a memorandum of understanding (MoU) with its selected vendors as per which price competitiveness, technical completeness, acceptance, testing/inspection of material by client, certificate of acceptance/quality assurance etc. is the responsibility 11 CRMC No. 305/2013 of the selected vendor/s and payments received from the client in favour of M/s Intelligent Communication Systems India Limited (ICSIL), New Delhi is then made by ICSIL to vendor/s.

The aforesaid is the bare component of the case in which the respondent –Central Bureau of Investigation (CBI) has lend a narrative to portray and say that only two persons i.e. the petitioner and the co-accused Mukul Saxena engineered each and every aspect of the file process so as to be found culpable for their alleged acts of omission and commission in which none of the other characters, originally referred as involved in the case, in the form of PSU M/s Intelligent Communication Systems India Limited (ICSIL), New Delhi submitting its quotation and invoice for a price of. Rs.24,900/- per PLT duly approved by its Managing Director, Mr. M. A. Duggal, and even receiving payment in its favour by a cheque from the office of TDM BSNL, Udhampur, Mr. Jasbir Singh, DE(Plg.) BSNL, Udhampur, Mr. B. Rajeshwara Rao, JTO BSNL Udhampur, Mr. Tara Chand, Account Officer and M/s Sai Telematics, Ghaziabad, the firm of Mr. Atul Saxena, the brother of the co- accused Mukul Saxena, were not in any state of complicity and/or culpability for constituting and completing the alleged course of events amounting to offences under section 120-B read with section 420, 471 Ranbir Penal Code and section 5(2) read with section 12 CRMC No. 305/2013 5(1)(d) of the J&K Prevention of Corruption Act, Svt., 2006 in the purchase of 08 number of PLTs by the TDM BSNL, Udhampur from the M/s Intelligent Communication Systems India Limited (ICSIL), New Delhi @ Rs.24,900/- per PLT when as per Central Bureau of Investigation (CBI) the rate of PLT per piece in the market was @ Rs. 1,700/- excluding taxes.

A police report under section 173 of the Code of Criminal Procedure in the eyes of law is meant to be a statement of facts based upon and drawn from the investigation commenced and conducted with respect to the alleged commission of offence/s. It is a police report begotten under section 173 Cr.P.C. which is taken cognizance of by a Magistrate under section 190 or by the Court of Session under section 193 Cr. P.C.

The truthfulness or falsity of the facts set out and stated in a given police report may not admit of bearing a forensic & probing scrutiny from a criminal court at the stage of framing of charge against an accused person booked vide a given police report but the fullness of facts cannot afford to suffer miss and/or absence in investigation and in the police report for enabling and persuading a criminal court to consider charging of an accused person for facing and suffering trial before arriving at the conviction or acquittal judgement quo accused person. A police report which has a 13 CRMC No. 305/2013 deficient/edited/truncated/ distorted/factual seeming statement creating an illusion and impression of complicity of the named accused persons in the alleged acts of omission and commission amounting to offence, cannot escape and shall not be allowed to escape judicial scrutiny at the charge framing stage itself at the hands of a criminal court. Thus, charge framing stage in any given criminal case, be it a warrant case trial or sessions trial, is of plank importance and not of a passing performance by a criminal court.

Investigation in a criminal case means collection of evidentiary facts upon suturing of which a prima facie narrative of commission of an offence is not only set out but also the manner of complicity of the accused persons made out. The Hon’ble Supreme Court of India in the case of “Sanjay Kumar Rai Vs State of Uttar Pradesh and another” 2021 AIR (SC) 2351 has recognized the principle that discharge is a valuable right provided to an accused in a criminal case and that a criminal court is not to act as a mere post-office in the matter of conducting trial of a criminal case. The Court has to spare consideration to broad probabilities, total effect of evidence and documents produced and basic infirmities appearing in the case and so on at the charge framing stage.

Present case when examined, through its police report and the documents therewith, in the light of the aforesaid legal 14 CRMC No. 305/2013 conception, this Court finds that the case propagated by the investigating agency is a presentation of facts with all loose ends not borne out of investigation but imagination at the end of the investigating authority. A case which bears its genesis that the petitioner along with Jasbir Singh, DE(Plg), Udhampur, a businessman Atul Saxena, Prop. M/s Sai Telematics, Ghaziabad and other unknown persons are allegedly involved in the commission of the offence relatable to the purchase of eight number of PLTs ends up in investigation with ouster of Mr. A.K. Duggal, the Managing Director of M/s Intelligent Communication Systems India Limited (ICSIL), New Delhi, Mr. Jasbir Singh DE(Plg.) BSNL, Udhampur, Mr. B. Rajeshwara Rao, JTO, Mr. Tara Chand, Account Officer, BSNL Udhampur and Mr. Atul Saxena, Prof. M/s Sai Telematics, Ghaziabad is nothing but broad statement of elementary infirmities of the investigation. The investigating authority intends and invites a belief from a court of law that BSNL officials, namely, Mr. Jasbir Singh, DE(Plg.), Mr. B. Rajeshwara Rao, JTO & Mr. Tara Chand, Account Officer were at liberty to compromise their duty and integrity in the matter of processing of the file to the extent of entertaining forged two quotations just at the asking of the petitioner, the invoicing approved by none other than Mr. A.K. Duggal, the Managing Director of a public sector undertaking which being M/s Intelligent Communication Systems India Limited (ICSIL), 15 CRMC No. 305/2013 New Delhi and payment of invoice value made to M/s Intelligent Communication Systems India Limited (ICSIL), New Delhi and the beneficiary-M/s Sai Telematics Ghaziabad through its proprietor Mr. Atul Saxena, all of them to be reckoned not as a part of the plot thereby leaving only two persons i.e. the petitioner and co-accused Mukul Saxena to bear the onus of being the wrongdoers and suffer the criminal trial.

Assuming for the argument’s sake that the fact may not admit of a dispute or denial that the market value of the PLT was lesser than that for which the quotation came to be submitted by M/s Intelligent Communication Systems India Limited (ICSIL), New Delhi but the fact which is of importance is that M/s Intelligent Communication Systems India Limited (ICSIL), New Delhi is a public undertaking which is literally owned by the Govt., and when this PSU through its Managing Director, Mr. A. K. Duggal issues an invoice showing value of the product at a particular price and then even receives the payment from its purchaser of said item then where is the scope found by the respondent of any culpable act of omission or commission on the part of the petitioner as being TDM BSNL in approving the purchase of 8 PLTs even if he had omitted, by reference to his post and duty, to go for a competitive bidding. 16 CRMC No. 305/2013

This stark factual aspect of the case has suffered no application of investigation and introspection at the end of the investigating authority resulting in presentation of police report with less facticity and more fictionality. Thus, by framing of charge acting upon said police report, the trial court has acted with a mechanical mindset as if following the diction and dictation of the police report when the police report cited facts fall deficient of sustaining the accusation against the petitioner in particular.

In view of the aforesaid, this Court, therefore, allows this revision petition thereby quashing the impugned charge framing order dated 13.09.2013 passed by the Special Judge, Anti- Corruption (CBI Cases), Jammu against the petitioner and consequently hold the petitioner entitled to discharge in the said case and thus, an order to said effect be passed by the Special Judge, Anti-Corruption (CBI Cases), Jammu. Announced. JAMMU 18.12.2023 Muneesh (RAHUL BHARTI) JUDGE Whether the order is speaking : Whether the order is reportable : Yes Yes