Decided on August 20,2007



A.K.SIKRI, J. - (1.) We are concerned, in the present petition, with the validity and propriety of order dated 7.9.2001 passed by the Special Judge, Tis Hazari, Delhi, in the proceedings initiated by the Central Bureau of Investigation (for short, 'CBI') and pending before him under Section 120-B read with Sections 193/467/471/342 of the Indian Penal Code (hereinafter referred to as 'IPC'). Two persons who are arraigned as accused persons in these proceedings are Mr. Ashok Kumar Aggarwal and Mr. Abhishek Verma. The respondent No.2 had moved a petition on 18.7.2000 seeking his pardon. CBI, namely the prosecution, had no objection for grant of pardon to the respondent No.2. The petitioner herein, who is the co-accused in the said proceedings, however, strenuously opposed the said application. The Special Judge, after hearing the parties, passed the impugned order dated 7.9.2001 allowing the application and tendering pardon to the respondent No.2. Feeling aggrieved and visibly upset by this order, the effect of which is to proceed against the petitioner alone, the instant petition is filed by the petitioner challenging this order.
(2.) In the first instance, let me take note of the facts, in brief, which led to the filing of the aforesaid case impleading the two accused persons.
(3.) The petitioner is an officer who belongs to Indian Revenue Service. At relevant time, i.e. in November 1996, he was posted as Deputy Director of Enforcement (Delhi Zone). As per the First Information Report (FIR) dated 29.1.1999 lodged by Mr. Abhijit Chakraborty, Additional Director, Enforcement Directorate, New Delhi with the Delhi Special Police SIU-VIII Branch, New Delhi, against unknown officers of Delhi Zone, Enforcement Directorate, New Delhi, a letter was received from the Enforcement Directorate in which four instances of misconduct were mentioned. Three of them pertain to administrative misconduct whereas the fourth instance, prima facie, reveal commission of a criminal offence. Accordingly, a DO letter was sent to the Enforcement Directorate requesting that a formal written complaint giving brief facts connected with the alleged fabrication of evidence may be given to the CBI. In response to the same, Mr. Abhijit Chakraborty gave written complaint dated 25.1.1999. As per this complaint, the Delhi Zonal office of the Enforcement Directorate conducted a search on 1.1.1998 at the office and residential premises of one Mr. Subhash Chander Bharjatya at G-51, Lajpat Nagar-III, New Delhi and his business premises consisting three shops at Hotel Maurya Sheraton, New Delhi. The Investigating Officer of the case was Mr. J.P. Kujur, Enforcement Officer. The then Assistant Director was Mr. Ravinder Nath (Retd.) and the then Deputy In-charge of the Delhi Zonal office was Mr. Ashok Kumar Aggarwal (since transferred). During the search the officers of the Enforcement Directorate seized a FAX message (debit advice) from one of the shops of Mr. Bharjatya purportedly from Swiss Bank Corporation, Zurich, Switzerland which reflected a debit of US$ 150,000 from the account of Royalle Foundation, Zurich, Switzerland in favour of one Mr. S.K. Kapoor, holder of account No. 002-9-608080, Hong Kong and Shanghai Banking Corporation (HSBC), head office at Hong Kong, as per the advice of the customer i.e. Royalle Foundation. Mr. Bharjatya filed a complaint dated 4.1.1998 alleging that the said FAX message was a forgery and was planted in his premises during the course of search in order to frame him and further that he and his employee were illegally detained on the night of 1.1.1998 and were threatened and manhandled. Enquiries were held into this complaint which indicated that the file related to the search action against Mr. Bharjatya was created by backdating the entries to 23.12.1997. Mr. Bharjatya was arrested on 28.1.1998 on the basis of the above-mentioned FAX message. Later, in the month of March 1998, Mr. Bharjatya submitted to the Enforcement Directorate a letter obtained by Mr. M. Kapur, his Chartered Accountant, from Mr. Eric Huggenberger, Attorney of Swiss Bank Corporation, Zurich, Switzerland, confirming that the above said FAX message was a forged document and was never issued by the said Bank. In these circumstances, in the complaint it was alleged that these facts prima facie pointed out to a criminal conspiracy hatched by the officers of the Delhi Zonal Office, Enforcement Directorate, to create a forged document and not only used it as a genuine document but also create false evidence to implicate Mr. Bharjatya. On the basis of this complaint, case under Section 120-B read with Sections 193/467/471/342 IPC was registered and it was entrusted to an officer of the CBI for investigation.;

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