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Saturday, May 10, 2014

Complaint - Section 195(1)(b)(i) and Section 195(1)(b)(iii) of the Code of Criminal Procedure and sought punishment of the accused persons under Section 120-B of the Indian Penal Code (IPC) read with Sections 193/196/420 thereof and independently under Section 193 of the IPC.- Creating a Fake Judgment and order and getting benefits under the same - When challenged by interested persons before Apex court - Fraud played by accused came to light - Apex court order for CBI enquiry - in the meanwhile concerned High court Officer with out obtaining permission from the High court filed criminal complaint before the Magistrate of CBI court - court issued summons to the accused - one of the accused being an Advocate filed discharged petition as the complaint was not filed with permission and with out sanction - Magistrate court dismissed the same - High court allowed the appeal - Apex court held that when the complainant himself lack authority to lodge a complaint , taking cognizance of the case on invalid complaint and proceeding further does not arise due to lack of Jurisdiction and as such sanction for prosecution not necessary and further more not arised = Central Bureau of Investigation , Lucknow, U.P. …..Appellant Versus Indra Bhushan Singh & Ors. …Respondents = 2014 ( May.Part) http://judis.nic.in/supremecourt/filename=41500

Complaint - Section  195(1)(b)(i)  and  Section 195(1)(b)(iii) of the Code of Criminal Procedure and  sought  punishment  of the accused persons under Section 120-B of the Indian Penal Code (IPC)  read with Sections 193/196/420 thereof and independently  under  Section  193  of the IPC.- Creating a Fake Judgment and order and getting benefits under the same - When challenged by interested persons before Apex court - Fraud played by accused came to light - Apex court order for CBI enquiry - in the meanwhile concerned High court Officer with out obtaining permission from the High court filed criminal complaint before the Magistrate of CBI court - court issued summons to the accused - one of the accused being an Advocate filed discharged petition as the complaint was not filed with permission and with out sanction - Magistrate court dismissed the same - High court allowed the appeal - Apex court held that when the complainant himself lack authority to lodge a complaint , taking cognizance of the case on invalid complaint and proceeding further does not arise due to lack of Jurisdiction and as such sanction for prosecution not necessary and further more not arised =

2014 ( May.Part) http://judis.nic.in/supremecourt/filename=41500
RANJANA PRAKASH DESAI, MADAN B. LOKUR

                                                                  REPORTABLE
                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION
                       CRIMINAL APPEAL NO. 876 OF 2002

Central Bureau of Investigation    , Lucknow, U.P.       …..Appellant

                                    Versus

Indra Bhushan Singh & Ors.
…Respondents

                                    With

                       CRIMINAL APPEAL NO.877 OF 2002


                               J U D G M E N T

Madan B. Lokur, J.

1.       The three questions before us are: (i) whether the complaint  filed
against the respondents under Section 195(1)(b)  of  the  Code  of  Criminal
Procedure, 1973 was authorized by the Allahabad High Court; (ii) whether  it
was necessary to obtain a sanction from the Allahabad High Court for  filing
the  complaint  against  the  respondents,  and  (iii)  if  a  sanction  was
necessary, whether it was in -fact  obtained.  In  our  opinion,  the  first
question must be answered in the  negative.  Consequently,  the  second  and
third questions do not arise or are, at best, academic in  nature  and  need
not be answered. As such, the orders under appeal call for no  interference.

The facts
2.       On 25th May, 1990 a learned Single  Judge  of  the  Allahabad  High
Court  is  said  to  have  dealt  with  Writ  Petition  No.  5267  of   1990
(purportedly filed by Dr. Sheetal Nandwani)  and  passed  an  order  to  the
effect that the competitive examinations scheduled to be held on  27th  May,
1990 for  admission  in  post-graduate  medical  courses  in  State  medical
colleges ought not to be held. Instead, admissions should  be  made  on  the
basis of marks obtained by the candidates in the MBBS  course  as  has  been
done in MDS courses. With this brief order the writ petition was allowed.
3.       In compliance with  the  order  dated  25th  May,  1990  the  State
Government  cancelled  the  scheduled  competitive  examinations  in   seven
medical colleges in Uttar Pradesh and a direction issued to grant  admission
on the basis of MBBS results.
4.       For reasons that are not relevant, the medical  college  in  Meerut
was not informed of the cancellation.  Therefore,  Dr.  Rahul  -Verma,  like
several others, participated in the examination  held  on  27th  May,  1990.
However, unlike others he filed Writ  Petition  No.  5548  of  1990  in  the
Lucknow Bench of the Allahabad  High  Court  in  which  he  sought  and  was
granted, on 4th June, 1990 the same relief as Dr. Sheetal  Nandwani  on  the
basis of the order dated 25th May, 1990. He was represented in the  case  by
his lawyer Indra Bhushan Singh. Dr. Rahul Verma is one  of  the  respondents
in Criminal  Appeal  No.877  of  2002  while  Indra  Bhushan  Singh  is  the
respondent in Criminal Appeal No.876 of 2002.
5.       The order dated 25th May, 1990 was challenged  in  this  Court  and
the result of the petition  is  reported  as  U.P.  Junior  Doctors’  Action
Committee v. Dr. B. Sheetal Nandwani and Others.[1]
6.       This Court found that no writ petition bearing  no.  5267  of  1990
was filed by Dr. Sheetal Nandwani  and  obviously  therefore  no  order  was
passed on 25th May, 1990 in the said case. It  was  found  that  the  entire
proceedings were fabricated and fake  and  this  Court  was  satisfied  that
there was deep rooted conspiracy  which  resulted  in  the  purported  order
dated 25th May, 1990. Consequently, this Court passed appropriate orders  in
the case and also directed that -the entire matter be  investigated  by  the
CBI which was required to identify the persons behind the deep rooted  fraud
and bring them to book without any delay. It was observed  that  the  purity
of the judicial  stream  should  not  be  permitted  to  be  polluted  by  a
clandestine move such as the one that was the subject matter  of  discussion
and citizens should not be misled by the actions of conspirators.
7.       Pursuant to the directions given by this Court to  investigate  the
conspiracy, the CBI searched the premises of Dr. Rahul  Verma  and  found  a
copy of  the  order  dated  25th  May,  1990.   The  CBI  also  carried  out
investigations with regard to the role of Indra Bhushan  Singh  and  others.
We were informed by  the  learned  Additional  Solicitor  General  that  the
persons responsible for the fraud leading to the order dated 25th May,  1990
have not yet been identified although about 24 years have gone by.
8.       Be that as it may, on 26th August, 1991 a complaint  was  filed  by
Shri H.D. Kandpal, Deputy Registrar (Administration),  Lucknow Bench of  the
Allahabad High Court in the Court of the Special Judicial  Magistrate  (CBI)
in Lucknow against Dr. Rahul Verma and Indra Bhushan  Singh.  The  complaint
was  filed  under  the  provisions  -of  Section  195(1)(b)(i)  and  Section
195(1)(b)(iii) of the Code of Criminal Procedure and  sought  punishment  of
the accused persons under Section 120-B of the Indian Penal Code (IPC)  read
with Sections 193/196/420 thereof and independently  under  Section  193  of
the IPC.
9.       The complaint gives the background facts leading to its filing  and
goes on to state, inter alia, that after he had  filed  the  writ  petition,
but before it was presented to the court, Dr. Rahul Verma  substituted  four
pages in the writ petition as filed.  In these pages, a  reference  is  made
to the purported order dated 25th May,  1990  and  two  of  the  pages  were
signed by Indra Bhushan Singh. During the hearing of the  writ  petition  on
4th June, 1990 a photocopy of the purported order dated 25th May,  1990  was
filed in court by Indra Bhushan Singh. On the basis of  this  writ  petition
with the interpolated or substituted pages and  the  purported  order  dated
25th May, 1990 filed during the course of hearing, a  learned  Single  Judge
of the Allahabad High Court, Lucknow Bench passed orders on 4th  June,  1990
directing the State Government to  act  in  accordance  with  the  purported
order dated 25th  May,  1990.   The  complaint  states,  however,  that  the
signature of Dr. Rahul Verma -on the vakalatnama filed along with  the  writ
petition could not be confirmed.  In  the  complaint,  it  was  prayed  that
cognizance of offences committed by Dr. Rahul Verma and Indra Bhushan  Singh
under Section 120-B read with Sections 193, 196, and  420  of  the  IPC  and
Section 193 of the IPC be taken and the accused persons, that is, Dr.  Rahul
Verma and Indra Bhushan Singh be summoned to face  trial  for  the  offences
said to have been committed by them.
10.      The complaint, as originally filed on 26th  August,  1991  did  not
mention that H.D. Kandpal had the authority to file  it  on  behalf  of  the
Allahabad High Court. But a  paragraph  was  subsequently  inserted  in  the
complaint to the effect that H.D. Kandpal had  the  authority  to  file  the
complaint on behalf of the Lucknow Bench of the Allahabad High Court.
11.      Be that as it may, the Magistrate took cognizance of the  complaint
and issued summons to Dr. Rahul Verma and Indra Bhushan Singh.
12.      At this stage, it is worth mentioning that pursuant to  the  orders
passed by this Court in the case filed by the  U.P.  Junior  Doctors  Action
Committee, the CBI submitted to this Court a  “Self  Contained  Note”  dated
27th August, 1991 under cover of a letter -dated 28th August, 1991 in  which
it was stated, inter alia, that “A statutory complaint under  provisions  of
Section 195(1)(b) of Cr. P. C. is being obtained  from  competent  authority
(sic) of Allahabad High Court for  prosecuting  Dr.  Rahul  Verma  and  I.B.
Singh Advocate.” In other words,  Kandpal  had  no  authority  to  file  the
complaint on 26th August, 1991 as claimed by him since on 28th August,  1991
the necessary sanction was “being obtained”.   It  is  on  this  basis  that
learned counsel for the accused persons submitted that a  paragraph  to  the
effect that Kandpal was authorized to file the  complaint  was  inserted  in
the complaint subsequently and illegally.
13.      Subsequent to the Magistrate taking cognizance  of  the  complaint,
Indra Bhushan Singh moved an  application  for  being  discharged  from  the
prosecution of the case.  Apart from contesting the matter  on  its  merits,
in the sense that no case was made out for proceeding  with  the  complaint,
one of the grounds taken by him was to the effect  that  the  complaint  was
filed without due authorization. By an  order  dated  2nd  April,  1999  the
Magistrate rejected the application on merits, but did  not  advert  to  the
issue regarding authorization (in favour of Kandpal) to file the  complaint.
-
This led Indra Bhushan Singh to file Criminal Case No.1875 of  1999  in  the
Allahabad High Court and that was allowed by the order  under  appeal  dated
4th February, 2000.
Decision of the High Court
14.      In the High Court, three submissions were  advanced  on  behalf  of
Indra Bhushan Singh.  It  was  contended,  firstly,  that  before  filing  a
complaint, the High Court ought to have conducted an inquiry as mandated  by
Section 340 of the Code of Criminal Procedure. The High Court, in the  order
under appeal, decided this issue in his favour  and  held  that  an  inquiry
ought to have been conducted before the complaint was filed. We  express  no
opinion on this issue and leave it open for adjudication in  an  appropriate
case. Secondly, it  was  argued  that  the  Allahabad  High  Court  had  not
authorized Kandpal to file the complaint.  In this regard, it was held:
           “A perusal of the  original  complaint  itself  shows  that  the
           complaint was once type then again at internal page  7  a  fresh
           para was added at the bottom with fresh  typewriter  with  fresh
           ribbon that the complainant is authorized to file this complaint
           on behalf of the Hon’ble High Court, Lucknow Bench, Lucknow.  On
           this typing initial has been made by  Sri  Kandpal.  Apparently,
           the complaint shows that Sri Kandpal has got some  authority  on
           behalf of High Court. The  petitioner  alleged  that  there  was
           absolutely no such authority. On  9.6.1999also,  the  petitioner
           had argued that there was no order of the High court to file the
           complaint against Indra Bhushan Singh and the -
           present argument was also advanced that there is no  such  order
           in writing on record to show any such authority.  In  the  Lower
           Court also this point was raised that there is no order  of  the
           High Court authorizing Sri Kandpal for filing such  a  complaint
           against Indra Bhushan Singh. The prosecution was granted several
           dates but record was not produced. Such a plea was also taken in
           the application for discharge dated 9.12.1995 in  para  15.  The
           entire record of the  High  Court  was  summoned  and  both  the
           counsels for the parties, namely, Sri Amarendra Nath  Singh  and
           Sri D.R. Azad went through the  entire  records  to  search  out
           whether Sri Kandpal has been authorized to file  complaint.  Sri
           Azad searched out the entire records of the case but  could  not
           find any such direction of the Court passed by  the  High  Court
           authorizing  Sri  Kandpal  to  file  the  complaint.  Thus,  the
           complaint filed by Sri Kandpal is without any authority  and  is
           to be quashed merely on this ground.”


Thirdly, it was contended on the merits of the allegations made, that  there
was no case for proceeding against  Indra  Bhushan  Singh.  The  High  Court
decided this issue also in favour of Indra Bhushan Singh.  In  our  opinion,
it is not necessary to go into the merits of the  case  since  it  is  quite
clear that the complaint deserves to be quashed  on  the  sole  ground  that
Kandpal was not authorized to file it.
15.      Following the order passed by the High Court, Dr. Rahul Verma  also
moved an application for being discharged from the  prosecution  and  by  an
order dated 7th April, 2001 the  Magistrate  accepted  the  application  and
closed the case against him. The order -
passed by the Magistrate is the subject matter of appeal in Criminal  Appeal
No.877 of 2002 and it is based on the order dated 4th February, 2000  passed
by the High Court in the case of Indra Bhushan Singh.
Proceedings in this court and conclusion
16.      Before us, learned Additional Solicitor General sought  to  contend
that it was not necessary to obtain  the  sanction  of  the  Allahabad  High
Court to prosecute Dr. Rahul  Verma  and  Indra  Bhushan  Singh.  He  placed
reliance on Iqbal Singh Marwah v.  Meenakshi  Marwah.[2]   In  our  opinion,
this question will arise only if the complaint filed by Kandpal against  Dr.
Rahul Verma and Indra Bhushan Singh was  an  authorized  complaint.  If  the
complaint was filed without any authority conferred on  Kandpal,  it  is  no
complaint at all,  and  that  would  make  the  requirement  of  a  sanction
completely irrelevant.
17.      Therefore, it is essential to first answer  the  primary  question,
that is, whether or not the complaint filed by  Kandpal  against  Dr.  Rahul
Verma and Indra Bhushan Singh was at all authorized. Realizing this  as  the
primary issue, this Court passed an order on -
28th October, 2009 to the effect that the Allahabad High Court  is  required
to be impleaded as a party respondent “for an  effective  hearing  of  these
appeals, and to do  complete  justice  between  the  parties.”  Accordingly,
notice was issued to the Allahabad High Court.
18.      In response to the notice issued by this Court, an affidavit  dated
28th January, 2010 was filed on behalf of the  Allahabad  High  Court.   The
affidavit reads as follows:-
           “I, Shamsher Chandra aged about 52 years son of Late Ram  Sundar
           Tripathi   presently   posted   as    Officer-On-Special    Duty
           (Litigation), High Court, Allahabad,  the  deponent  herein,  do
           hereby solemnly affirm and state as under:

                            1. That, the deponent is at  present  posted  as
                               Officer-On-Special  Duty  (Litigation),  High
                               Court,  Allahabad,  and  as  such  is   fully
                               conversant with the facts  and  circumstances
                               of the instant case and is competent and duly
                               authorized to swear the instant affidavit.

                            2. That, it is stated that no authorization  was
                               given by the High Court  for  filing  of  the
                               complaint dated 26.08.1991 before the Special
                               Judicial Magistrate, C.B.I., Lucknow, by  the
                               Deputy  Registrar  (Administration)  of   the
                               Lucknow Bench of the High  Court,  Allahabad.
                               As such, no record  in  relation  thereto  is
                               available or existent.

                            3. That, a fact finding enquiry in the matter of
                               the alleged authorization to the then  Deputy
                               Registrar  (Administration)  of  the  Lucknow
                               Bench  of  the  High  Court,  Allahabad   was
                               initiated by the Allahabad High Court and the
                               enquiry has now been  concluded  and  it  has
                               been reported that Sri H.D. Kandpal, the then
                               -

                            4.  Deputy  Registrar  (Administration)  of  the
                               Lucknow Bench of the High  Court,  Allahabad;
                               who had  retired  from  service  on  November
                               1992,  was  responsible   for   lodging   the
                               complaint dated 26.08.1991 before the Special
                               Judicial Magistrate, C.B.I., Lucknow  without
                               any sanction/approval of the  High  Court  of
                               Judicature at Allahabad.  A true copy of  the
                               fact finding Enquiry Report dated  14.12.2009
                               and its supplementary report dated 22.12.2009
                               of the Enquiry Officer in  the  same  enquiry
                               are being annexed herewith and is  marked  as
                               Annexure-1 (colly) to this affidavit.”

19.      It is quite clear from the affidavit filed by  the  Allahabad  High
Court that Kandpal had filed the complaint against Dr.Rahul Verma and  Indra
Bhushan Singh without any authority conferred on  him  by  the  High  Court.
This is now beyond question.
20.      Since the complaint by Kandpal was filed without any authority,  in
our opinion, the Magistrate  could  not  have  taken  cognizance  of  it  or
proceeded with the matter. He lacked the jurisdiction to do so  since  there
was no valid complaint before him.
21.      In view of the factual position as stated on  affidavit  on  behalf
of the Allahabad High Court,  the  other  questions  urged  by  the  learned
Additional Solicitor General do not arise. They  would  certainly  arise  if
the complaint had been a valid complaint, which it was not.
-
22.      Under these circumstances, in view of the categorical stand of  the
Allahabad High Court that no sanction or authorization was given to  Kandpal
to file a complaint against Dr. Rahul Verma or Indra  Bhushan  Singh,  there
is no merit in these appeals and they are accordingly dismissed.
                                                             ……………………………………J
                                               (Ranjana Prakash Desai)


                                                             ……………………………………J
                                                         (Madan B. Lokur)
New Delhi;
May 2, 2014
-----------------------
[1]

         [2] (1990) 4 SCC 633



[3]

         [4] (2005) 4 SCC 370




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