MOHAN LAL RATHI Vs. CENTRAL BUREAU OF INVESTIGATION

JUDGEMENT

(1.) Heard Sri Dileep Kumar, Senior Advocate appearing on behalf of the applicant and Sri Gyan Prakash, learned counsel for the CBI.

(2.) By means of the present application under Section 482 Cr.P.C., the applicant has sought quashing of the order dated 3.7.2018 passed by the learned Special Judge, PC Act, C.B.I. Ghaziabad, in Criminal Case No. 13 of 2017 (Special Case no. 08 of 2017) CBI vs. Yadav Singh & Others, arising out of FIR No. RC-D.S.T.-2015-A-0003 under Section 109 r/w 120-B IPC alongwith Section 13(2) read with Section 13(1) (e) of Prevention of Corruption Act, 1988 (to be preferred from here onwards in short as 'PC Act') and direction for release of the applicant from custody and in the alternative, it is also prayed that the applicant be released on bail on such terms and condition as may be deemed proper by this court.

(3.) The case of the applicant as narrated in the affidavit filed in support of the said application is that the applicant is the registered Chartered Accountant practicing since 1993 and had a firm of his own under the name and style "DSM & Associates". Since the beginning of his career, he has unblemished career and has no criminal history. He has been regularly involved in work of auditing and has also been a tax consultant and financial adviser to reputed undertakings, including government and non-government undertakings, since the lodging of FIR no. RC-DST-2015-A-0003 which was registered against one Yadav Singh (former Chief Engineer), Noida under Section 109 IPC along with Section 13(2) r/w 13(1) (e) of PC Act, pursuant to the directions of this court dated 16.7.2015 in M.B. No. 12396 of 2014, he has cooperated with the investigation on various dates mentioned in the affidavit. During investigation, the respondent (Investigating Agency) persuaded him to be an approver and promised to make him a prosecution witness against the main accused as the allegation of the prosecution was that he was the person who filed Income Tax Returns of the accused Yadav Singh and his family members for a number of years, being their Chartered Accountant. In pursuance to that he was produced on 29.11.2016 before the concerned Magistrate, New Delhi for recording his statement under Section 164 Cr.P.C. to make him an approver and he, accordingly, made a full, complete and truthful disclosure of the facts to the satisfaction of the Investigating Authority as was required for rendering a pardon under Section 306 IPC. Later on, the respondent filed a chargesheet against the accused persons wherein the name of the present applicant appeared as one of the accused under Sections 120-B, 109 I.P.C. and Section 13(2) r/w 13(1) (e) of PC Act. Thereafter, the learned Court below took cognizance on the said chargesheet vide order dated 13.10.2017 and issued summons to the applicant and other accused in the aforementioned Criminal Case no. 13 of 2017 and Special Case no. 8 of 2017. Thereafter the applicant filed an application under Section 306 Cr.P.C. before the trial court praying for grant of pardon in the said case on 6.11.2017 on which, the respondent had no objection. Meanwhile, the applicant filed an application under Section 482 Cr.P.C. bearing no. 39204 of 2017 praying therein for direction to be issued that no coercive action be taken against him till disposal of the said application. The provision of Section 306 Cr.P.C. not being applicable in this case for grant of pardon, the prayer was required to be made to him under Section 307 Cr.P.C. for the same. This fact was not brought to the notice of the Hon'ble Court, as a result of which, the application which was erroneously filed by the applicant under Section 306 Cr.P.C. was dismissed as withdrawn vide order dated 27.11.2017 as Section 307 Cr.P.C. was applicable. Thereafter, the matter was listed before the trial court on 12.12.2017 wherein the application was moved for treating the application for pardon moved by the applicant to have been moved under Section 307 but vide order dated 12.12.2017, the same was dismissed, against which an application under Section 482 Cr.P.C. bearing no. 42914 of 2017 was preferred praying to get the said order dated 12.12.2017, set-aside and for order to be issued to the trial court to grant pardon in view of Section 307 Cr.P.C. The said petition, however, was dismissed vide order dated 22.12.2017, against which S.L.P. (Crl.) No. 808 of 2018 was preferred. In the meantime, the matter was listed before the trial court on 11.01.2018, wherein the applicant could not appear on account of medical condition and sought exemption from personal appearance, but the trial court issued N.B.W. against the applicant and adjourned the case till 20.02.2018. On 10.02.2018, his SLP (Cri.) No. 808/2018 came to be heard and the applicant was directed to appear before the trial court on 20.2.2018 for getting his application decided under Section 306/307 Cr.P.C. Pursuant to the said order the trial court dismissed the said application erroneously and took the applicant into custody and adjourned the matter till 14.03.2018. Thereafter, in February, 2018, the applicant filed an application under Section 482 Cr.P.C. bearing no. 7585 of 2018 before this Court challenging the order of trial court dated 20.2.2018 dismissing the prayer of the applicant seeking tender of pardon, which was allowed by this Court vide order dated 14.5.2018 and the impugned order dated 20.2.2018 of the trial court was set aside and the matter was remanded to the trial court to decide afresh the application seeking tender of pardon within a span of one month. Thereafter, in pursuance of the above order, the applicant moved an application before the trial court on 16.5.2018 alongwith the certified copy of the order of this Court dated 14.5.2018, expressing his willingness to make statement under Section 164 Cr.P.C. and again on 30.5.2018, his statement under Section 164 Cr.P.C. was recorded by the learned Special Judge, In-charge, in which the applicant made entire true and fair disclosure as per his knowledge in regard to the facts and circumstances of this case. Thereafter, on 25.6.2018, the learned trial court allowed the application of the applicant granting him pardon after making observation that the applicant was not the main accused and that he had not committed any offence and that he was involved in the transactions only at the behest of the main accused, Yadav Singh. It was further observed that he had made full and true disclosure and therefore, in terms of various judgments of the Hon'ble Apex Court, he deserved to be granted pardon. Thereafter, on 27.6.2018, an application was moved for his release from custody merely as a consequential relief, in view of order dated 25.6.2018, against which CBI/respondent filed no objection but even then the trial court erroneously dismissed the said application on the ground that if the applicant was released from custody, he was likely to come under influence of other accused and might not make true, full and fair disclosure with regard to the facts of the case. Hence the present application has been moved for aforementioned directions.