MAJ. GEN. V. K. SHARMA Vs. C.B.I.

JUDGEMENT

(1.) In the instant criminal revision, the petitioner inter alia seeks quashing of order dated 31.03.2015 read with order dated 01.04.2015 passed by the court of learned Special Judge Anti Corruption (CBI Cases), Jammu whereby charges under Section 161 RPC and 5(2) read with Section 5(1)(d) of the J&K Prevention of Corruption Act Samvat 2006, have been framed.

(2.) Brief facts of the case are that the petitioner had served the Indian Army and has retired on attaining the age of superannuation as Major General on 30 April 2014. The petitioner had at his credit outstanding service career and his service remained commendable throughout and he has earned various medals and awarded Vashist Seva Medal (VSM) on 26 Jan 2009 for distinguishes services. It is further stated that while serving as Major General, Army Service Corps (ASC) Northern Command, Udhampur, the petitioner came to be wrongly and falsely implicated in a highly vexatious case.

(3.) The facts of this case which led to holding of Court of Enquiry under the Army Act , registration of F1R, holding of investigation and finally presentation of criminal challan against him, are as under :- "That complainant Inder Singh proprietor Bee Ess Transport Company was registered with the Supply and Transport Branch Headquarters Northern Command as "B" Class contractor for load carrier, water Brower, tipper and JCB since 21.12.2007 though he had earlier been registered for contract upto capacity of 1.80 Crore since 31.01.2003. On the basis of some complaint filed by Manjit Singh and Harjeet Singh with regard to sale/transfer of one of the vehicles by the complainant, the petitioner in his capacity as Major General ASC, after holding a thorough probe with regard to these allegations alleged against the complainant and after affording full opportunity of being heard to the complainant, de-registered the firm of the complainant as contractor from the rolls of ASC on 25 June 2010. That the complainant Inder Singh feeling aggrieved of de-Registration of his firm, approached this Hon'ble court through the medium of writ petition OWP No.1312/2010 and OWP No. 145/2012 assailing the orders pertaining to de-registration of his firm and non-issuance of tenders to him, which writ petitions are still pending consideration before this Hon'ble court. That the complainant due to de-registration of his firm entertained hostility, grudge, bias and wreck, vengeance false, concocted and vexatious complaint against the petitioner in collusion with the army officials, before the GOC Northern Command Udhampur alleging that the petitioner is resorting to malpractices on the ground that the petitioner is not issuing tender notice for the year 2012-13 to him which he admittedly never applied for. That subsequent to filing of first complaint dated 04.05.2012, the complainant filed yet another complaint dated 09.06.2012 before the GOC-in-C NC HQ. ln the said complaint it was alleged that the complainant had already written one letter dated 4th May 2012 against the petitioner for harassment made to him and alleged demand of money for reinstating his firm. It needs mention that in the earlier complaint dated 04.05.2012 there was no mention of demand of any money by the petitioner. The complainant further proceeded to mention in this complaint dated 09.06.2012 that he visited the office of the petitioner on 14.05.2012 for the relief so that he can work alleged to have asked some money and the petitioner is alleged to have asked him to come to his office with some money and the petitioner will reinstate his firm after 1st week of June. It was further alleged in the said complaint that on 09.06.2012 (Saturday), the complainant on the alleged directions of the petitioner, visited his office and is alleged to have given a packed of money and thereafter filed the complaint dated 9.6.2012 before the GOC NC Hq annexing with photocopy of some 500/-currency notes alleged to have been given by the complainant to the petitioner. That it is pertinent to mention at this stage that all the firms which were registered with ASC Northern Command were to re-register due to change of parameters and policy by the Government of India, Ministry of Defence w. e. f. 30.03.2012 and all the registered firms were required to get themselves registered afresh under the new policy being (MR-83/131). As per the records available in ASC Northern Command, Udhampur the complainant had never applied afresh for registration of his firm, therefore, there was no occasion for the petitioner to even assure him of registration of his firm. Even otherwise, after the firm of the complainant was de- registered on 25.06.2010, the same firm under rules cannot be re- registered prior to 24.06.2012 i.e., within a period of two years (MR- 98/13). It is further stated that the GOC Northern Command upon receipt of the said complaint dated 09.06.2012 constituted a team of Lt. General B. S. Pama (COS) and Col. A.S.Sehgal Deputy Provost Marshal for carrying out check/search of the office of the petitioner. Conspicuously it is a mystery, which remained unsolved uptill now that as to how the said complaint reached to the GOC Northern Command notwithstanding the fact that in such a big organization, the said complaint has not been diarized anywhere in the entire Sectt of GOC. Another suspicion which came to fold is that the complainant is alleged to have visited the office of the petitioner on 09.06.2012, the complaint was made on 09.06.201 and the said complaint travelled to the GOC on 11. 06. 2012. In the Northern Command, every person desirous of visiting any office, proper Gate-Pass is issued and proper entry of the said person is recorded in the registers maintained at different gates and mobiles are deposited at the gate. The complainant had visited many a times the HQ Northern Command and his name stood duly entered in the relevant entry registers, but for 09.06.2012, there is no record with regard to visit of the complainant to the Hq Northern Command where the office of Major General was located besides various other offices including the office of GOC Northern Command. It is further contended that the petitioner was under transfer during the period the complainant started filing complaints against him, therefore, the petitioner otherwise also, was not in a position to pass any effective orders being under transfer. Otherwise also there was no occasion for registration of the firm of the complainant due to pendency of the writ petitions filed by him before this Hon'ble Court and the complainant had not at all applied for registration of his Firm. On 11.06.2012, when the team constituted by the GOC alongwith the petitioner visited the office of Major General ASC, from which post the petitioner was under transfer and his reliever was also present in the office room, the same was inspected. From the drawers of the table, a brown cover envelope containing Rs. 5000 was alleged to have been recovered. Besides, this Rs. 35000 from briefcase and Rs. 1430/- alongwith two canceled Railway reservation tickets were alleged to have been recovered. It is further stated that during the inspection and recovery, no independent witness was associated. Even the reliever of the petitioner who was present in the office chambers of Major General ASC was also not associated rather he was asked to leave the room during the course of inspection and recovery. No seizure memo on spot was prepared as is the requirement of basic law nor any inventory of the seized article was prepared in presence of any independent witness as also in presence of the petitioner. It is further averred that thereafter on the report submitted by the Team of officers constituted by GOC, Court of Inquiry was ordered against the petitioner, which held the proceedings and after recording the statements of the witnesses projected, nothing was proved against the petitioner regarding the complaint of the complainant dated 09.06.2012 and thereafter the GOC HQ NC came to the conclusion that the case be handed over to the CBI for conducting investigation. On the basis of these findings of Court of Inquiry, an FIR No. 0042013A0002 dated 27.04.2013 for commission offences under section 161 RPC and 5 (2) read with Section 5 (1) (d) of J & K Prevention of Corruption Act Samvat 2006 was registered against the petitioner. The respondent after registration of FIR which was registered after the alleged incident which occurred in the year 2012, proceeded with the investigation by completely relying upon the data and evidence which was part of the Court of Inquiry and no independent and impartial investigation in the matter was conducted by the respondent, On completion of so called investigation which was totally a sham exercise and prima facie illegal and which was not liable to be conducted by the CBI at that juncture, a criminal challan titled CBI vs. Maj. Gen. V. K. Sharma came to be presented before the Court of Ld. Special Judge Anti Corruption (CBI Cases), Jammu. On presentation of the challan, the Court of Ld. Special Judge Anti Corruption (CBI Cases), Jammu not only entertained the same but also proceeded to commence trial in the case. The arguments on framing of charge were heard on 19. 03. 2015 and finally vide order impugned dated 31.03.2015, charges under section 161 RPC and 5 (2) read with Section 5 (1) (d) of the J&K Prevention of Corruption Act Samvat 2006 have been framed against the petitioner."