MOHAN LAL RATHI Vs. CENTRAL BUREAU OF INVESTIGATION

JUDGEMENT

(1.) Heard Sri Dileep Kumar & Sri Tanveer Ahmed Mir assisted by Sri Dhruv Gupta, learned counsel for the applicant and Sri Gyan Prakash, learned counsel for the C.B.I.

(2.) The inherent power of this court has been invoked by the applicant seeking quashing and setting aside of the impugned order dated 20/02/2018 passed by the learned special Judge, Anti-Corruption, CBI, Ghaziabad whereby the application No. 511 kha read with 503 Kha praying for tendering pardon and for being declared an approver have been rejected in criminal case No. 13 of 2017 (especially case No. 08/2017), CBI vs Yadav Singh under section 109 read with 120-B IPC along with Section 13 (2) read with 13 (1) (e) of the Prevention of Corruption Act, 1988.

(3.) In application No. 503 kha it was prayed that the CBI had filed charge sheet against him in the aforesaid case being RC No. DST/2015/A/003 under sections 109 read with 120 - B IPC and Section 13 (2) read with 13 (1) (e) of the Prevention of Corruption Act, 1988 showing him as an accused no. 11, he being Chartered Accountant of accused No. 1 namely, Yadav Singh and his family members. He had made certain entries in the books whereby he converted unaccounted money of the accused into accounted one and facilitated accused in purchasing both movable and immovable assets. The CBI had called him at Delhi to join investigation and with complete sincerity and honesty he participated in the same and made about 100 visits for answering their queries and made full disclosures. Therefore it was prayed that he should be declared an approver in the matter after being granted pardon and further his statement under section 164 Cr. P.C. should be directed to be recorded. The other application 115 kha was moved by him in which it was stated that the above-mentioned case was listed for appearance of the accused persons which was registered by CBI under directions of Lucknow Bench of this court in miscellaneous Bench No. 12396 of 2014 passed on 16/07/2015, vide which CBI was directed to conduct an investigation into the allegations of corruption and amassing of unaccounted money by co-accused Yadav Singh and others, which culminated in filing of charge- sheet on 15/03/2016, wherein the applicant was not made an accused. The court took cognizance of the offences and summoned the accused to face trial, however CBI mentioned that supplementary charge sheet was pending which would be filed as and when the investigation would be completed in this regard in respect of the pending aspect of the matter. The applicant joined the investigation since the year 2015 and during investigation by CBI, his statement was recorded under sections 164 Cr. P.C. on 29/11/2016 before the court of Shri Pankaj Sharma, learned MM Patiala House District courts, New Delhi. The intention of the investigating authorities was to make the applicant approver and it had no objection to grant him pardon. The investigating authority filed supplementary charge sheet on 26/09/2017 before the court wherein he was made an accused. The court took cognizance qua the applicant on the supplementary charge sheet and issued summons on 13/10/2017: The applicant thereafter filed an application under sections 306 Cr. P.C. before the court seeking grant of pardon and for becoming an approver in the matter which is pending adjudication, the contents whereof shall be treated as part and parcel of the present application to avoid repetition and for the sake of brevity. The CBI filed its objection in reply to the said application on 14/11/2017 wherein it contended that it had no objection. Meanwhile an application under Section 482 Cr. P.C. bearing No. 39204/2017 was preferred by the applicant before High Court on 27/11/2017, which was dismissed as withdrawn, in which prayer was made not to take coercive action against the applicant till disposal of his application under sections 306 Cr. P.C. The said Section was not applicable in his case as it fell under section 307 Cr.P.C., hence the applicant had to move the present application with a prayer to treat the previous application filed by him under sections 306 Cr. P.C. to be an application under sections 307 Cr. P.C. It is further mentioned that he placed reliance upon six judgements of the Hon'ble Supreme Court, in which it was held that in case of filing of charge- sheet before the special designated Judge, there is no stage of committal, as the Special Judge is empowered to take cognizance of offences under sections 4 of the P.C. Act, as such Section 307 Cr. P.C. would be applicable and not sections 306, which is applicable only before magisterial court prior to the committal stage. Further it is mentioned that Section 5 of the PC Act empowers the Special Judge to grant pardon and the language used therein is that Section 307 Cr. P.C. would be applicable. It was by inadvertence and purely on legal advice that earlier an application under 306 Cr. P.C. was moved erroneously which could not be brought to the notice of the High Court.