- (1.) This appeal has been preferred against the impugned judgment and final order dated 16.4.2010 passed by the High Court of Delhi at New Delhi in Criminal Miscellaneous Application No. 3314 of 2006 in Writ Petition (Crl.) No. 938 of 2001, by which the application filed by the appellant to proceed against respondent no. 5 under Section 340 read with Section 195(1)(b) of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'Cr.P.C.') has been dismissed.
(2.) Facts and circumstances giving rise to this appeal are that: A. The appellant had filed Writ Petition (Criminal) No. 938 of 2001 before the High Court of Delhi seeking transfer of investigation from respondent nos. 3, 4 and 5 to any other senior officer of Central Bureau of Investigation (hereinafter to referred as 'CBI'), as the said respondents had been abusing their investigating powers and adopted unfair and improper means in RC No. S19/E0006/99 dated 7.12.1999. B. The court made order dated 4.4.2002, on the submission of counsel for the respondent No. 5 that the investigation report had been finalised in the said RC case and no further investigation was required to be done, directed the competent authority of the CBI to file an affidavit in this regard by 5th April, 2002. C. An affidavit was filed by respondent No. 5 on 5.4.2002, being investigating officer, wherein it had been stated that the investigation was complete and that no further investigation was required to be done and a final report Part-1 (FR-1) was submitted by him on 11.1.2002 to the Superintendent of Police (in short 'SP'). D. However, coming to know that certain witnesses had been examined by the CBI subsequent thereto, the appellant preferred an application under Section 340 r/w 195(1)(b) Cr.P.C., which has been dismissed by the High Court vide impugned judgment and order. Hence, this appeal.
(3.) Shri Ram Jethmalani, learned senior counsel appearing on behalf of the appellant, has submitted that not only a statement was made, but even an affidavit had been filed by respondent no. 5 before the High Court that the investigation was complete and an investigative report had been finalised by him and no further investigation was required. Therefore, if further witnesses had been examined and certain evidence had been collected, it is evident that the statement so given and affidavit filed by respondent no. 5 was just to mislead the court and therefore, the court ought to have proceeded against him allowing the application filed by the appellant.;