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Sharad Lahoti and another v. Central Bureau of Investigation, Acb Ghaziabad and another

Allahabad HC8 Aug 2018A482/22439/2018

Case brief

AI extract

What is this about?

BJH quashed impugned orders rejecting a final report in a corruption case. The court held that the trial court violated General Rules (Criminal) by passing orders without considering the case diary and investigation materials, directing the CBI to produce these documents and remanding the matter for fresh orders. Several connected Section 482 applications were disposed of together.

What did the court decide?

Impugned orders dated 16.5.2018, 15.6.2018, and 25.6.2018 were quashed; matter remanded to trial court for fresh order after CBI produces case diary.

Sharad Lahoti and another Vs Central Bureau of… — Quashing and FIR | Allahabad HC (2018)

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Court No. - 1

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Case :- APPLICATION U/S 482 No. - 22439 of 2018

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Applicant :- Sharad Lahoti And Another Opposite Party :- Central Bureau Of Investigation, Acb Ghaziabad And Another Counsel for Applicant :- Krishna Mohan Garg Counsel for Opposite Party :- Gyan Prakash,Gautam Kumar Mishra,Gautam Kumar Mishra

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Connected with

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Case :- APPLICATION U/S 482 No. - 22629 of 2018 Applicant :- Vikas Joshi Opposite Party :- C.B.I Ghaziabad And Another Counsel for Applicant :- Ramesh Kumar Pandey Counsel for Opposite Party :- Gyan Prakash,Gautam Kumar Mishra And

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Case :- APPLICATION U/S 482 No. - 22635 of 2018

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Applicant :- Ratan Yadav Opposite Party :- C.B.I. Ghaziabad And Another Counsel for Applicant :- Tripurari Sharan Shukla,Ramesh Kumar Pandey Counsel for Opposite Party :- Gyan Prakash,Gautam Kumar Mishra

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And

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Case :- APPLICATION U/S 482 No. - 23144 of 2018 Applicant :- Shiban Krishen Razdan Opposite Party :- Central Bureau Of Investigation And Another Counsel for Applicant :- Kamlesh Kumar,Kaustubh Srivastava Counsel for Opposite Party :- Gyan Prakash

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And

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Case :- APPLICATION U/S 482 No. - 23152 of 2018 Applicant :- Chaman Rawal @ C. Rawal Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Kamlesh Kumar,Kaustubh Srivastava Counsel for Opposite Party :- Gyan Prakash

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And Case :- APPLICATION U/S 482 No. - 23155 of 2018 Applicant :- B. Ravi Opposite Party :- Central Bureau Of Investigation And Another Counsel for Applicant :- Kamlesh Kumar,Devesh Kumar Shukla,Kaustubh Srivastava Counsel for Opposite Party :- Gyan Prakash

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And

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Case :- APPLICATION U/S 482 No. - 23166 of 2018 Applicant :- Paulpandi Aravindhan Opposite Party :- Central Bureau Of Investigationi, Acb, Ghaziabad And

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Another

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Counsel for Applicant :- Kamlesh Kumar,Devesh Kumar Shukla,Kaustubh Srivastava Counsel for Opposite Party :- Gyan Prakash

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And

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Case :- APPLICATION U/S 482 No. - 23625 of 2018 Applicant :- Yash Paul Mahajan Opposite Party :- C.B.I / A.C.B, Ghaziabad And Another Counsel for Applicant :- Manoj Kumar Verma Counsel for Opposite Party :- Gyan Prakash

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Hon'ble Ramesh Sinha,J. Hon'ble Dinesh Kumar Singh-I,J.

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Counter-affidavit filed by the applicants to the affidavit filed by the C.B.I. is taken on record.

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Heard Sri Krishna Mohan Garg, learned counsel for the applicants in Crl. Misc. 482 Cr.P.C. Application No. 22439 of 2018 and all the other learned counsel appearing in other connected 482 Cr.P.C. applications, Sri Om Shankar, Advocate holding brief of Sri Gautam Kumar Mishra, learned counsel for the Opposite Party No.2 and Sri Gyan Prakash, learned counsel for the C.B.I.

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In all the aforesaid applications, the applicants have sought quashing of the orders dated 16.5.2018, 15.6.2018 and 25.6.2018 passed by the Learned Special Judge Anti Corruption (C.B.I.) Court no.1 Ghaziabad, in criminal Misc. Case no. 1 of 2013, C.B.I. vs. Chaman Rawal and others (presently special case no. 01 of 2018) under Sections 120B, 420 IPC and Section 13(2) read with Section 13(1)(d) Prevention of Corruption Act, 1988, Police Station C.B.I., ACB Ghaziabad, and further quashing of the proceedings of above Special Case arising out of F.I.R. no. RC-1202012A007 dated 30 July, 2012 and final report filed under Section 173 Cr.P.C. No. 15 dated 31.12.2012, vide order dated 16.5.2018 closure report has been rejected and cognizance has been taken against the applicants under the aforementioned sections and vide order dated 15.6.2018 the accused has been directed to appear in court personally and vide order dated 25.6.2018 the application of the accused for being permitted to appear through counsel has been rejected as NBW was already issued against them.

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All the aforesaid 482 Cr.P.C. applications arise out of common impugned orders, hence the same are heard together and are being decided by this common judgment and order.

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Sri Krishna Mohan Garg, learned counsel for the applicant at the very outset has been vehemently argued that though after

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the submission of final report/closure report in the matter under Section 169 Cr.P.C. filed by the C.B.I., a protest petition was filed by the respondent bank, Opposite Party no.2 but learned court below without perusing the case diary and material documents collected during the course of investigation has rejected the final/closure report and has summoned the petitioner. He has drawn attention of the Court towards the pleadings made in para nos. 11, 15 and 27 of Crl. Misc. 482 Cr.P.C. Application No. 22439 of 2018 in which he specifically pleaded the said averments in reply to which an affidavit has also been filed by counsel for the C.B.I. and in para nos. 10, 11 and 12 of the said affidavit, it is stated by the counsel for the C.B.I. that on 12.01.2018 and 22.1.2018, the Investigating Officer, Promod Kumar had attended the trial court along with the case diary and record and after perusing the same, the impugned order has been passed by the learned Magistrate to which the counsel of the applicant has again responded by drawing attention of the Court towards page no.22 of the counter-affidavit, wherein an application has been shown to have been filed by the C.B.I., photocopy of the certified copy of which, has been annexed, wherein the Investigating Officer on 12.01.2018 had submitted that the case diary and related documents are in possession of another official and could not be made available to him hence, time may be granted to make available the said document. Further he has also produced the certified copy of the General Index of the present case, in which there appears to be no endorsement made regarding case diary of the present case which has been brought on record by the Investigating Officer. He demonstrated from the other documents annexed with the affidavit and counter-affidavit that the case diary was not available on record before the trial court while allowing the protest petition. He argued that the case diary and other relevant papers collected during the course of investigation have never been filed before the learned court below. In this regard he has also drawn the attention of the Court towards Rule 22 of Chapter IV of General Rules (Criminal), which is reproduced herein below:-

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" 22. Order-Sheet- Upon the institution of a case an order-sheet in the prescribed form (Part IX, no. 10) shall be opened. Upon it shall be recorded (i) every routine order passed by the court in the case; (ii) a note of every other order passed, including every order regarding a document produced before the court; and (iii) a note of the date of each hearing and the proceedings on that date. An order the reason for which require to be recorded at length, shall not be written on the order-sheet, but only a note of the order and of the date on which it was made, shall be entered on it. Every entry upon the order-sheet, shall be made at the earliest opportunity and shall be signed by the presiding officer."

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He has also drawn the attention of the Court towards Rule 23 of

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the General Rules (Criminal) and on the basis of which he argued that the impugned order is ex-facie, illegal, arbitrary, unwarranted in law and liability to be quashed by this Court.

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Learned counsel for the applicants has further relied upon the judgment of the Hon'ble Apex Court rendered in Union of India vs. Rajasthan High Court and others (2017) 2 SCC 599 , para no.13 of which is quoted herein below:-

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"13. A suo moto exercise of the nature embarked upon by the High Court encroaches upon the domain of the executive. In a democracy based on the rule of law, government is accountable to the legislature and, through it, to the people. The powers under Article 226 are wide – wide enough to reach out to injustice wherever it may originate. These powers have been construed liberally and have been applied expansively where human rights have been violated. But, the notion of injustice is relatable to justice under the law. Justice should not be made to depend upon the individual perception of a decision maker on where a balance or solution should lie. Judges are expected to apply standards which are objective and well defined by law and founded upon constitutional principle. When they do so, judges walk the path on a road well-travelled. When judicial creativity leads judges to roads less travelled, in search of justice, they have yet to remain firmly rooted in law and the Constitution. The distinction between what lies within and what lies outside the power of judicial review is necessary to preserve the sanctity of judicial power. Judicial power is respected and adhered to in a system based on the rule of law precisely for its nuanced and restrained exercise. If these restraints are not maintained the court as an institution would invite a justifiable criticism of encroaching upon a terrain on which it singularly lacks expertise and which is entrusted for governance to the legislative and executive arms of government. Judgments are enforced, above all, because of the belief which society and arms of governance of a democratic society hold in the sanctity of the judicial process. This sanctity is based on institutional prestige. Institutional authority is established over long years, by a steadfast commitment to a calibrated exercise of judicial power. Fear of consequences is one reason why citizens obey the law as well as judicial decisions. But there are far stronger reasons why they do so and the foundation for that must be carefully preserved. That is the rationale for the principle that judicial review is confined to cases where there is a breach of law or of the Constitution. The judgment of the Rajasthan High Court is an example of a matter where the court should not have entered."

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In view of the above, the order dated 16.5.2018 taking cognizance, all the consequential orders referred above in the aforementioned case against the applicants challenged in the aforementioned 482 Cr.P.C. applications are quashed and the matter is remanded to the trial court who shall pass a fresh order on the protest petition of the Opposite Party no. 2 after considering the case diary and other material documents collected during the course of investigation. C.B.I. is further directed to produce the case diary and other relevant documents before the court concerned within one week from the production of certified copy of this order.

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The trial court is directed to pass an appropriate order within one week thereafter in accordance with law.

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With the aforesaid observations, Crl. Misc. 482 Cr.P.C. Application No. 22439 of 2018 and all the connected 482 Cr.P.C. applications are stand disposed of accordingly.

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The parties are directed to file a copy of this order before the Trial Court within one week.

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R.G. is directed to send a copy of this order to Court concerned forthwith for its compliance.

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(Dinesh Kumar Singh-I, J.) (Ramesh Sinha, J.)

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Order Date :- 8.8.2018 JK Yadav

Sharad Lahoti and another v. Central Bureau of Investigation, Acb Ghaziabad and another

Case brief

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Sharad Lahoti and another v. Central Bureau of Investigation, Acb Ghaziabad and another

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