M.K.Mittal - (1.) -This writ petition has been filed for setting aside the order dated 27.1.2007, passed by Special Judicial Magistrate (C.B.I.) Ghaziabad in Special Case No. 1250 of 2003, C.B.I. v. Anoop Sarin, under Sections 420, 120B, 467, 468 and 471, I.P.C., whereby the learned Magistrate allowed the application filed by public prosecutor of C.B.I. for summoning Vijay Jyoti and S. K. Ojha as witnesses in the case, and the order dated 10.3.2008, passed by Addl. Sessions Judge/Special Judge (C.B.I.), Prevention of Corruption Act, Ghaziabad in Criminal Revision No. 119 of 2007, Anoop Sarin v. C.B.I., Dehradoon, whereby the learned Judge dismissed the revision.
(2.) I have heard Sri Ravindra Nath Rai, learned counsel for the petitioner and G. S. Hajela, learned counsel for the opposite party and perused the material on record. The brief facts are that an F.I.R. was registered against the petitioner and three others on 7.3.1994 and it was alleged that Anoop Kumar Sarin, partner and proprietor of M/s. Hope Graph Ltd. and M/s Fransa Corporation Pvt. Ltd., had caused wrongful loss to State Bank of India, Main Branch Navyug Market, Ghaziabad. After investigation charge-sheet was submitted against Anoop Kumar Sarin and he was sent for trial. In the charge-sheet the names of S. K. Ojha and Vijay Jyoti were also mentioned as accused. They were not sent for trial because their department had not accorded sanction under Section 19 of the Prevention of Corruption Act, 1988, to prosecute them. During the trial the learned public prosecutor on behalf of the C.B.I., moved an application to examine Vijay Jyoti and S. K. Ojha as witnesses in the case. It may be mentioned that the list of witnesses annexed with the charge-sheet also shows that Vijay Jyoti and S. K. Ojha are the witnesses and their names find mention at serial Nos. 21 and 22 of this list.
(3.) THIS application was opposed by the accused on the ground that these two persons were also found to be involved in the commission of crime and therefore, they could not be examined as witnesses, as they were the co-accused. The learned Magistrate held that since sanction was not given by their department, they have not been implicated as accused and therefore, they could be examined in the matter as witnesses. Feeling aggrieved by the order passed by the learned Magistrate, a revision was preferred but the plea as taken by the petitioner did not find favour with the revisional Judge and revision was also dismissed. Hence, this writ petition. Learned counsel for the petitioner has contended that these two persons sought to be examined as witnesses are accused alongwith the petitioner as charge-sheet was also submitted against them and they being the co-accused, they could not be examined by the prosecution as witness. The learned counsel for the petitioner also cited the case of Soma Chakravarty v. State through C.B.I., 2007 Cr LJ 3257 : 2007 (3) ACR 2823 (SC), and contended that on the principle of 'doctrine of parity' these two persons are also accused and could not be examined. Against this the learned counsel for Central Bureau of Investigation has contended that although the names of these two persons have been mentioned in the charge-sheet but they were not sent for trial as no sanction was accorded by their department to prosecute them and therefore, they stand on different footing and cannot be treated as accused for the purpose of this case and doctrine of parity is not applicable.;