Dismissed

Animesh Verma and 2 Others v. C.B.I.

Allahabad HC6 Oct 2023A482/17042/2023

Case brief

AI extract

What is this about?

In an application under Section 482 CrPC challenging the trial court’s refusal to reject a delayed further investigation report or direct fresh inquiry, the High Court dismissed the appeal. It held that mere delay and non-compliance with proforma were not material errors. The shareholders’ alleged failure to examine higher officials or the lethality of the investigation did not justify interferenc

What did the court decide?

The application under Section 482 CrPC was dismissed; no direction was given for further investigation.

Animesh Verma and 2 Others Vs C.B.I. — Criminal Trial and Appeal | Allahabad HC (2023)

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Reserved on: 26.9.2023

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Delivered on: 06.10.2023 Neutral Citation No. - 2023:AHC:192840

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Court No. - 78

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Case :- APPLICATION U/S 482 No. - 17042 of 2023

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Applicant :- Animesh Verma And 2 Others Opposite Party :- C.B.I. Counsel for Applicant :- Swapnil Sinha,Kartikeya Bhargava Counsel for Opposite Party :- Sanjay Kumar Yadav

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Hon'ble Raj Beer Singh,J.

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1. This application under Section 482/483 CrPC has been filed against the order dated 06.03.2023, passed by learned Special Judge, Anti Corruption (CBI), Court No. 2, Ghaziabad, in Special Case No. 01/2016, Case Crime No. RC1202014A0004 under Section 120-B, 201, 477-A IPC and Section 13(2) r/w 13(1)(d) Prevention of Corruption Act. It is further prayed that a direction for further investigation be made regarding role played by the senior officers of BDFP, Mathura and that the learned Special Judge, Anti Corruption (CBI), Court No. 2, Ghaziabad, be directed to thoroughly consider the report submitted by the Central Bureau of Investigation (hereinafter referred as CBI) pursuant to the order dated 22.10.2016 and to pass appropriate order.

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2. Heard learned counsel for the applicants and Shri Gyan Prakash, learned Senior Advocate/Deputy Solicitor General of India, assisted by Shri Sanjay Kumar Yadav, learned counsel for C.B.I.

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3. Perusal of record shows that this case was registered by the CBI against applicant No. 1 Animesh Verma, applicant No. 2 Ashok Kumar Yadav and one Avdhesh Kumar and some unknown persons for offences under Section 120-B, 409, 201 IPC and Section 13(2) r/w Section 13(1)(c) & (d) Prevention of Corruption Act. As per persecution version, the accused persons including applicants, have committed offence of criminal conspiracy, cheating, breach of trust by public servants, disappearance of evidence, falsification of computer accounts and criminal misconduct and thereby, they caused loss to Indian Oil Corporation Limited (IOCL) to the

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tune of Rs. 87,31,537.29/-. After investigation, charge-sheet was submitted against accused Animesh Verma, Ashok Kumar Yadav, Avdhesh Kumar, Kitab Singh, Ballo, Amritlal, Hari Singh, Suresh Chand Agrawal and Santosh Kumar. It appears that after framing of charges while the trial of the case was in progress, an application was moved on behalf of the accused/applicant No. 1 Animesh Verma, alleging that by order dated 22.10.2016, the trial court has made direction for further investigation regarding involvement of higher officials of BDFP, Mathura but in compliance of the said order, no report has been submitted by the CBI in the court, whereas, a period of five years has passed. It was also alleged in the application that the applicant/accused No. 1 Animesh Verma is facing six other cases and thus, before proceeding further in the trial, it is necessary that all necessary facts are brought before the court and thus, the report be called from the CBI regarding compliance of order dated 22.10.2016. It appears that against that application, CBI filed objections and one report dated 28.09.2017 was also filed in compliance of order dated 22.10.2016. Perusal of record further shows that the applicant/accused No. 1 Animesh Verma has filed counter objections vide paper No. 860-Kha, alleging that the report of further investigation has not been submitted in the prescribed proforma and that further investigation has not been conducted in accordance with law. It was alleged that the CBI was trying to save the higher officials of Bitumen Drum Filling Plant (BDFP), Mathura. The CBI did not investigate the role of higher officials of IOCL by considering Operation Manual of IOCL. Several other points were also raised and it was alleged that further investigation has not been conducted in accordance with law and rules and that the higher officials of BDFP, Mathura have deliberately not been made accused. The compliance of order dated 22.10.2016 is not in letter and spirit of the order. It was prayed in the said cross objection that the compliance report dated 28.09.2017 be rejected and the CBI be further directed to submit a fresh report and to inquire the involvement of higher officials of BDFP, Mathura and till then, the examination of witnesses be stopped.

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4. It appears that the trial court considered the facts of the matter and after hearing the parties, disposed of the application and objection of applicant/accused vide impugned order dated 06.03.2023 and the prayer of applicant/accused No. 1 Animesh Verma to reject the compliance report of order dated 22.10.2016 (report of further investigation) and to make a direction for further investigation, was refused. The prayer for stopping the proceedings of the trial was also refused.

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5. Learned counsel for the applicants submitted that the impugned order is against the facts and law and thus, liable to be set aside. Applicant No. 1 Animesh Verma was a probationary officer and he was under training and applicant No. 2 Ashok Kumar Yadav was working as Account Officer-II, which is non-executive clerical post. The CBI did not conduct investigation in a fair manner and charge-sheet under Section 173(2) CrPC was submitted without examining the role of accused persons. By order dated 22.10.2016, the trial court has directed the CBI to make further investigation with regard to conspiracy angle and involvement of any other higher officers of BDFP, Mathura, specially the In-charge of BDFP, Mathura but the CBI did not conduct further investigation in accordance with law and rules. For a period of 5 years, the CBI did not submit any report regarding compliance of the said order 22.10.2016. After filing of application by the applicant/accused, the above stated report dated 28.09.2017 was filed by the CBI. Referring to facts of the matter, it was submitted that the CBI did not examine the role and responsibility of the In-charge of BDFP and other higher officials of BDFP and their role was not examined as per the manual. The involvement of higher officials of BDFP was to be considered in reference to the roles and duties as per the manual but CBI has not done the same. Further, the alleged report was not submitted in the proforma prescribed for submission of report under Section 173(8) CrPC.

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6. Referring to facts of the matter and the averments in the affidavit filed in support of application under Section 482 CrPC, it was submitted that the CBI must be directed to conduct fresh further investigation in compliance of order dated 22.10.2016 in accordance with law. Certain case laws were also

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referred in the affidavit. Learned counsel for the applicant has also placed reliance upon the case of Ram Lal Narang and Ors vs. State (Delhi Administration) MANU/SC/0216/1979. It was submitted that in view of above stated facts, the impugned order is liable to be set aside and that a direction must be made to the CBI to conduct further investigation regarding the role played by Senior Officers of BDFP, Mathura and the direction may be issued to the learned trial court to consider the report submitted by the CBI pursuant to the order dated 22.10.2016, thoroughly and to pass appropriate order and to stay the proceedings of the trial.

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7. Shri Gyan Prakash, learned Senior Advocate/Deputy Solicitor General of India, appearing for CBI has opposed the application and submitted that there is no illegality or perversity in the impugned order. The trial of the case is at advanced stage and that 39 prosecution witnesses have already been examined. The applicant/accused wants to delay the proceedings of the trial. During investigation, it was found that accused Animesh Verma, the then Operation Officer/In-charge, Supply and Distribution Department of Bitumen Drum Filling Plant (BDFP), Mathura, while functioning as public servant entered into conspiracy with accused Ashok Kumar Yadav, the then Accounts Office-II, BDFP, Avdhesh Kumar, the then Accounts Officer-II, BDFP and in collusion with other unknown persons, by abusing their official position as public servants, they misappropriated 77.338 MT bulk bitumen by un-authorisedly removing the bulk bitumen in 4 tank trucks from the lawful custody of IOCL and thereby, caused loss to the tune of Rs. 32.89 Lacs to IOCL and corresponding gain for themselves. After removing the bulk bitumen, the delivery details were deleted from computerized record in order to disappear the evidence. It was further submitted that during investigation, it was also found that apart from four tank trucks, 7 more tank trucks were filled with bulk bitumen from BDFP, Mathura between 15.02.2013 to 19.02.2013 and regarding filling of said 11 tank trucks, delivery data was deleted from computer record by accused/applicant Animesh Verma and Ashok Kumar Yadav by using their unique user ID. In pursuance of the said conspiracy, accused Animesh Verma in collusion with accused Ashok Kumar Yadav, Avdhesh Kumar, Kitab Singh, Ballo, Security

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Guard Hari Singh and holders of total 11 trucks, evaded total 229.590 MT bulk bitumen from BDFP, Mathura and thereby caused a loss of Rs. 87,31,537.29/- to IOCL, a Government of India undertaking.

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8. Learned Additional Solicitor General further submitted that after thorough investigation, applicants and co- accused persons were charge-sheeted. In compliance of order of the trial court regarding further investigation, Shri Nawal Marwaha has conducted further investigation and the report dated 28.09.2017 was submitted regarding compliance of that order. In further investigation, it was found that there is no documentary evidence against the Navin Chandra to show his involvement in the conspiracy.

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9. It is further submitted that the further investigation has been conducted in accordance with law and rules. The accused has no right to say that in which manner further investigation has to be conducted. The accused cannot claim that in further investigation, a particular document has to be seized or that any person has to be made accused. The order of the trial court regarding further investigation, has been complied with in letter and spirit and appropriate report has been filed in the trial court.

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10. Learned Additional Solicitor General has referred case of Satish Kumar Nyalchand Shah Vs. State of Gujrat AIROnline 2020 SC 270 and submitted that applicants/accused have even no locus standi to seek further investigation in the matter. Referring to facts of the matter, it was submitted that there is no illegality or perversity in the impugned order and the instant application under Section 482 CrPC is liable to be dismissed.

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11. I have considered the rival submissions and perused the record.

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12. Perusal of record shows that as per prosecution version, applicants and other accused persons, while working in IOCL, have indulged in criminal conspiracy, cheating, breach of trust, disappearance of evidence, falsification of computer accounts and criminal misconduct and caused loss to IOCL. After investigation, the applicants and co-accused persons were chargesheeted. It appears that the trial court has passed an order dated 22.10.2016 for further investigation regarding role of higher officials of BDFP, Mathura

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but no report of further investigation was submitted for several years. The applicant No. 1 has moved an application before the trial court that in compliance of order dated 22.10.2016, the report of further investigation be called. The CBI has filed objections against that application and that the report dated 28.09.2017 of further investigation, was also filed in the trial court. The applicant No. 1 has raised several objections including that further investigation has not been conducted in accordance with law and that the role of higher officials of IOCL was not investigated as per operation manual of IOCL and in fact, CBI was trying to save the higher officials of BDFP. The said objections did not find any favour by the trial court and were rejected by the impugned order dated 06.03.2023. It is apparent that the report of further investigation has already been filed before the trial court in compliance of order dated 22.10.2016. Though, the said report was filed with long delay but mere long delay in filing the report of further investigation cannot be termed such a material fact so as to invoke inherent powers in order to interfere in the impugned order dated 06.03.2023. The applicants are accused in the said case and they have no locus to say that in what manner the investigation or further investigation has to be conducted by the CBI. Similarly, they cannot raise the objection that in further investigation, the role of higher officials of BDFP, Mathura has not been investigated in accordance with law or that In-charge of BDFP, Mathura or any other higher official of BDFP, Mathura must be made an accused. Investigation in an exclusive job of investigating agency and even the courts have no right to interfere in the investigation.

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13. In case of Ram Lal Narang and Ors vs. State (supra), relied by learned counsel for the applicants, the Hon’ble Apex Court has held as under:

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“Anyone acquainted with the day today working of the criminal courts will be alive to the practical necessity of the police possessing the power to make further investigation and submit a supplemental report. It is in the interests of both the prosecution and the defence that the police should have such power. It is easy to visualise a case where fresh material may come to light which would implicate persons not previously accused or absolve persons already accused. When it comes to the notice of the investigating agency that a person already accused of an offence has a good alibi, is it not the duty of that agency to investigate the genuineness of the plea of alibi and submit a report to the Magistrate ? After all the investigating agency has greater resources at its command than a private individual. Similarly, where the involvement of persons who are not already accused comes to the notice of the investigating agency, the investigating agency cannot keep quiet and refuse to

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investigate the fresh information. It is their duty to investigate and submit a report to the Magistrate upon the involvement of the other persons. In either case, it is for the Magistrate to decide upon his future course of action depending upon the stage at which the case is before him. If he has already taken cognizance of the offence, but has not proceeded with the enquiry or trial, he may direct the issue of process to persons freshly discovered to be involved and deal with all the accused, in a single enquiry or trial. If the case of which he has previously taken cognizance has already proceeded to some extent, he may take fresh cognizance of the offence disclosed against the newly involved accused and proceed with the case as a separate case. What action a Magistrate is to take in accordance with the provisions of the Code of Criminal Procedure in such situations is a matter best left to the discretion of the Magistrate. The criticism that a further investigation by the police would trench upon the proceedings before the Court is really not of very great substance, since whatever the police may do, the final discretion in regard to further action is with the Magistrate. That the final word is with the Magistrate is sufficient safeguard against any excessive use or abuse of the power of the police to make further investigation. We should not, however, be understood to say that the police should ignore the pendency of a proceeding before a Court and investigate every fresh fact that comes to light as if no cognizance had been taken by the Court of any offence. We think that in the interests of the independence of the magistracy and the judiciary, in the interests of the purity of the administration of criminal justice and in the interests of the comity of the various agencies and institutions entrusted with different stages of such administration, it would ordinarily be desirable that the police should inform the Court and seek formal permission to make further investigation when fresh facts come to light.”

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14. In the above referred case law, Hon’ble Apex Court reiterated the power of police to make further investigation under Section 173(8) CrPC even after the Court has taken cognizance of the case. It was held that further investigation is not altogether ruled out merely because cognizance of the case has been taken by the Court. The issue involved in the above referred case was quite different from the present case. There is no such observation of the Hon’ble Apex Court in the aforesaid case, which may support the contentions of learned counsel for the applicants in the instant case that CBI did not make further investigation in accordance with law or that it did not investigate the role of higher officials of BDFP, Mathura. Perusal of impugned order shows that the trial court has considered the relevant facts and position of law and that the objections raised on behalf of the applicants/ accused, were rejected by a reasoned order. So far this contention is concerned that the report of further investigation has not been filed in the prescribed proforma, this irregularity also cannot be termed such a substantial so as to require any interference in the impugned order. In this connection, it would be pertinent to mention that further investigation is in continuation of previous investigation and further investigation is restricted to discovery of further oral and documentary evidence. In the instant matter, in further investigation, no material evidence could be collected. In view of

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these facts and circumstances, the mere alleged irregularity that the report of further investigation has not been filed in a prescribed proforma, is of no consequence.

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15. Considering the entire facts of the matter and the law applicable to the issue, there is no such material illegality or perversity in the impugned order so as to require any interference by invoking jurisdiction under Section 482 CrPC. Similarly, no case is made out for any further investigation or for any direction to the trial court. The instant application lacks merit and thus, liable to be dismissed.

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16. The application under Section 482 CrPC is hereby dismissed .

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17. Interim order, if any, stands vacated.

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Order Date :- 06.10.2023 Suraj

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Digitally signed by :- SURAJ YADAV High Court of Judicature at Allahabad

Animesh Verma and 2 Others v. C.B.I.

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Animesh Verma and 2 Others v. C.B.I.

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