New Delhi, Oct 8 (SocialNews.XYZ) The Delhi High Court has directed the initiation of criminal complaint proceedings against six CBI officers for allegedly placing a materially false statement before the court regarding correspondence with the administrative ministry in connection with a proposed challenge to the discharge of an IRS officer in a disproportionate assets case.
A single-judge Bench of Justice Madhu Jain passed the direction while allowing a criminal appeal filed by Ashok Kumar Aggarwal, an Indian Revenue Service (IRS) officer, against the order of the Special Judge (PC Act), Rouse Avenue Courts, which had declined to initiate proceedings under Section 340 of the CrPC against the concerned CBI officers.
The High Court directed the Special Judge to make a written complaint against Sushil Dewan, Vineet Vinayak, Amit Kumar, Raman Tyagi, Prem Kumar Gautam and Md. Azad for the alleged commission of offences punishable under Section 191 read with Section 193 of the IPC and Section 209 IPC.
The complaint has been directed to be transmitted to the concerned jurisdictional Magistrate within four weeks of receipt of the judgment.
The case arose from the CBI's prosecution of Aggarwal in a disproportionate assets case under the Prevention of Corruption Act. The prosecution was based on a sanction order passed on November 26, 2002.
The Delhi High Court, in January 2016, had held the sanction invalid, following which the Special Judge discharged Aggarwal in March 2016. The CBI thereafter considered challenging the judgment before the Supreme Court. A legal opinion rendered by the Ministry of Law and Justice on June 8, 2016, had stated that there appeared to be no reasonable ground to pursue the matter before a higher forum.
The opinion was communicated to the CBI through the Department of Personnel and Training (DoPT) on July 1, 2016. Aggarwal subsequently sought the release of documents seized during the investigation.
In its reply filed on August 2, 2016, the CBI opposed the release of certain documents, stating that "correspondence with the administrative Ministry with respect to further legal action in the matter is underway".
The Special Judge subsequently directed the CBI to file a "clear-cut reply" disclosing whether any appeal or revision had been filed or was pending.
Aggarwal subsequently moved an application under Section 340 of the CrPC on August 8, 2016, alleging that the statement was factually incorrect, as there was no actual correspondence with the administrative ministry at that stage and the CBI had already received the Ministry of Law and Justice’s opinion against pursuing the matter before a higher forum.
The High Court found that on August 8 itself, the CBI forwarded a proposal to the DoPT seeking reconsideration of the matter and further legal opinion.
In an additional reply filed on August 9, the CBI stated that it had, in principle, decided to challenge the January 2016 judgment and that the proposal had been forwarded to the DoPT on August 8.
It further found that the successive drafts of the CBI’s reply were significant. The second draft expressly stated that the DoPT had turned down the CBI’s proposal to file a special leave petition (SLP) before the Supreme Court, but that statement was deleted and replaced with a handwritten assertion that correspondence with the administrative ministry was underway.
"This concerned alteration changed the very factual position sought to be presented before the Court," the High Court observed.
The High Court, prima facie, attributed the handwritten alteration to then CBI HoZ (Head of Zone) Vineet Vinayak and found that Sushil Dewan subsequently incorporated the alteration into the final reply filed before the court below.
It also observed that the contemporaneous record showed different degrees of involvement of the other officers, including Prem Kumar Gautam, Amit Kumar, Md Azad and Raman Tyagi, in preparing, vetting, processing and approving the reply.
The High Court rejected the CBI's contention that its statement was merely an incorrect assertion rather than a false one, observing that an internal proposal awaiting approval could not be represented as correspondence already underway with the administrative ministry.
"The CBI was entitled to seek reconsideration, obtain another opinion and pursue such remedy as was available in law. However, its right to do so did not permit an internal proposal awaiting approval to be represented as a correspondence already underway with the Ministry," the High Court said.
It also disagreed with the reasoning that the CBI's subsequent reply filed on August 9, 2016, had corrected the earlier statement.
It observed that the additional reply itself recorded that the proposal was forwarded to the DoPT only on August 8, thereby distinguishing between internal consideration and actual transmission of the proposal. "Thus, even when both replies are read together, the inconsistency between the assertion made in the reply dated 02.08.2016 and the factual position as on that very date remains unexplained," the High Court said.
It also rejected the view that no action was warranted because Aggarwal's application for the release of documents had initially been allowed and he had suffered no prejudice. Referring to a Supreme Court judgment, the High Court said that expediency under Section 340 CrPC has to be assessed with reference to the impact of the alleged offence on the administration of justice, and not merely the injury suffered by an individual litigant.
"The subsequent institution of an SLP and the order dated 21.01.2019 setting aside certain directions for return of documents must be considered in their proper context," the High Court said, adding that those developments could not retrospectively establish that correspondence with the administrative ministry was underway on August 2, 2016.
The High Court held that the disputed assertion was material because it was used to justify the continued retention of documents seized from Aggarwal and was capable of influencing the court's decision on his application.
It further held that the successive drafts, file notings and the officers' participation provided a reasonable foundation for allegations under Section 191 read with Section 193 IPC and Section 209 IPC.
“The threshold for directing a complaint under Section 340 of CrPC is therefore satisfied,” Justice Jain said, setting aside the Special Judge’s order and allowing Aggarwal’s application.
It directed that the complaint be placed before the Chief Judicial Magistrate (Central), Tis Hazari Courts, where an earlier court complaint against Sushil Dewan had been adjourned sine die.
The concerned Magistrate was directed to proceed independently and ensure that parallel proceedings concerning the same allegations are not instituted.
The High Court clarified that the competent court would decide the matter independently on the material placed before it and would not be influenced by the observations made in its judgment for the purpose of directing the complaint.
Source: IANS
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