copies of the same be supplied to the accused persons on 4.4.2012.
(Vinod Kumar)
Spl. JudgeII,
CBI, Rohini
24.3.2012
IN THE COURT OF SH. VINOD KUMAR
SPECIAL JUDGEII
(P. C. ACT, CBI), ROHINI, DELHI
CC No. 37/2010
CBI VsVidyaDhar etc.
24.3.2012
ORDER
1. By this order I shall dispose of an application moved by Sh. DurgaDuttPradhan (A38), who has been cited as accused no. 38 in the present case in which 62 persons were alleged to be involved in selection of JBT teachers on the basis of forged lists prepared by or at the instance of these 62 accused persons.
2. This application has been moved under Section 319 CrPC wherein it is submitted that the real offenders, in the present case, have been screened by CBI and therefore these offenders namely Sh. Vishnu Bhagwan IAS the then PS to CM Haryana, Sh. SanjeevKaushal IAS the then Additional PS to CM Haryana, Sh. PremPrashant IAS the then FCEL Haryana and Sh. P. K. Mahapatra IAS, the then Director Secondary Education may be summoned as accused persons. It is argued by applicant that these persons were actively involved in the fraud in JBT selections but also in selections of C & V teachers, who were recruited by Directorate of Secondary Education headed by Sh. P. K. Mahapartra IAS.
3. The applicant has drawn my attention to the testimony of Sh. PremPrashant IAS (PW16) where he states that Sh. Vishnu Bhagwan had attended a meeting in which Sh. VidyaDhar (A1), Sh. Sher Singh Badshami (A2) and others were present and itwas stated by Sh. Vishnu Bhagwan PS to CM that it was notlegal or ethical to change or replace the interview lists. It isargued that Sh. Vishnu Bhagwan was the Principal Secretary toSh. Om PrakashChautala (A4) the Chief Minister of Haryanaand was also privy and party to the conspiracy of fabricating theforged award lists in the matter of selection of JBT teachers.The presence of Sh. Vishnu Bhagwan in the meeting wherediscussions about changing the award lists took place itself issufficient evidence to show that he was fully involved in thepresent conspiracy and therefore he is liable to be summoned asaccused under Section 319 CrPC.
4. I have perused the testimony of PW16 Sh. PremPrashant.In his testimony there is only a passing reference to Sh. VishnuBhagwan being present in the meeting in which issue ofchanging the award lists was raised. In fact in his examinationin chief he has stated that such meeting was attended by himand probably by Sh. Vishnu Bhagwan. In his cross examinationby Sh. DurgaDuttPradhan, i.e. the present applicant, Sh. PremPrashant (PW16) had clarified that he is not absolutely sure asto whether Sh. Vishnu Bhagwan was present in the said meetingand therefore he had used the word “probably” for the presenceof Sh. Vishnu Bhagwan in the said meeting.
5. In view of such a vague evidence about the presence of Sh.Vishnu Bhagwan in the meeting, it would not be in interest ofjustice to summon him as an accused. Simply by his holding thepost of PS to Chief Minister, he does not become privy to theoffence. It is pertinent to note that no other witnesses hadtestified about the presence of Sh. Vishnu Bhagwan in the abovestated meeting. Hence the prayer of the applicant Sh. DurgaDuttPradhan (A38) for summoning Sh. Vishnu Bhagwan asaccused under Section 319 CrPC cannot be accepted.
6. The applicant has also prayed that Sh. SanjeevKaushal,Sh. PremPrashant and Sh. P. K. Mahapatra may be summonedas accused persons because they were actively participating inthe two meetings called for the purpose of replacing the awardlists of the candidates, who were being considered for theselections for the post of JBT teachers. It is pertinent to notethat Sh. SanjeevKaushal has been examined by the prosecutionas PW1, Sh. PremPrashant has been examined as PW16 and Sh.P. K. Mahapatra has been examined as PW26. Therefore thelegal question before this court would be as to whether thepersons, who have been examined as witnesses in the courtcan be summoned as accused in exercise of the powersunder Section 319 CrPC?
7. This question was answered by Hon'ble Supreme Court inState (Delhi Administration) VsJagjit Singh 1989 AIR(SC)589 as under:
Therefore, a witness is legally bound toanswer any question which is relevant tothe matter in issue even if the answer toSuch question is likely to criminate himdirectly or indirectly. Proviso to Section132 expressly provides that such answer which a witness is compelled to give shallnot subject him to any arrest orprosecution nor the same can be provedagainst him in any criminal proceedingexcept a prosecution for giving falseevidence by such answer. The provisionsof proviso to Section 132 of the IndianEvidence Act clearly protect a witness frombeing prosecuted on the basis of theanswers given by him in a criminalproceeding which tend to criminate himdirectly or indirectly. In view of thisprovision, the apprehension of therespondent that his evidence as approverwill be used against him in the other fourcriminal cases where he figures as anaccused is without any basis. On theother hand, he is absolutely protectedfrom criminal prosecution on the basis ofthe evidence to be given by him whenexamined by the prosecution as anapprover in the said case. This submissionof the respondent is, therefore, nottenable. It is pertinent to refer in thisconnection the decision of this court inLaxmipatChoraria and Ors. v. State ofMaharashtra, 1968(2) SCR 626wherein it has been observed byHidayatullah, J as he then was that:“......
Under s. 132 a witness shall not be excusedfrom answering any question as to any matterrelevant to the matter in issue in any criminalproceeding (among others) upon the ground thatthe answer to such question will incriminate ormay tend directly or indirectly to expose him to apenalty or forfeiture of any kind. The safeguard tothis compulsion is that no such answer which thewitness is compelled to give exposes him to anyarrest or prosecution or can be proved againsthim in any criminal proceeding except aprosecution for giving false evidence by suchanswer.”
8. In M.P. GangadharanVs State 1989 Cr.L.J. 2455, thesame question was directly under consideration of Hon'ble HighCourt of Kerala. In the said case, the accused had examined awitness as DW1.However, the trial court had summoned DW1u/s 319(1) CrPC as an accused. The question before the Hon'bleKerala High Court was as to whether a witness gets theprotection of Section 132 of the Evidence Act. Hon'ble KeralaHigh Court relied upon AIR 1989 SC 589 (supra) and held thata witness on oath is under a compulsion to testify and thereforehe cannot be summoned u/s 319 CrPC because he is entitled tothe protection contained in proviso to Section 132 of the IndianEvidence Act. The Hon'ble Kerala High Court while referring toMunicipal Corporation of Delhi vs Ram KishanRohtagi 1983CrLJ 159 also held that the powers u/s 319 CrPC should beused very sparingly because it is an extra ordinary power whichshould be used only in compelling circumstances.
9. In view of the legal position discussed above, thesewitnesses namely PW1, PW16 and PW26 are protected from theprosecution under Section 132 of the Indian Evidence Act.
10. Accordingly I do not find any compelling reasons tosummon these accused persons as accused under Section 319CrPC. The application is accordingly dismissed.
Announced in the open
court on 24.3.2012.
(Vinod Kumar)
Spl. JudgeII,
CBI, Rohini
24.3.2012
IN THE COURT OF SH. VINOD KUMAR
SPECIAL JUDGEII
(P. C. ACT, CBI), ROHINI, DELHI
CC No. 37/2010
CBI VsVidyaDhar etc.
24.3.2012
ORDER
1. By this order I shall dispose of an application moved bySh. Narain Singh Ruhil (A29) praying that the undeservingselected JBT teachers may be summoned as accused underSection 319 CrPC.
2. The prosecution has strongly opposed this application.
3. In order to understand the submissions of the parties, it isnecessary to state in brief the controversy in question.
4. Accused Sh. Sanjeev Kumar (A3) was posted as DirectorPrimary Education Haryana and was responsible forappointment of 3206 JBT teachers. At that time, Sh. OmPrakashChautala (A4) was the Chief Minister of Haryana.Later on a few criminal cases were filed by Government ofHaryana against Sh. Sanjeev Kumar (A3). Sh. Sanjeev Kumar(A3) filed a Writ Petition (Crl.) No. 93 of 2003 in Hon'bleSupreme Court of India, where he alleged that he waspressurized to replace the actual award lists vide which theselections were made and to substitute the same with the forgedlists sent to him. Sh. Sanjeev Kumar (A3) alleged in the petitionthat since he refused to buckle under the pressure, various falsecases were filed against him.
5. During the hearing before Hon'ble Supreme Court, Sh.Sanjeev Kumar (A3) produced a set of awards lists, which heclaimed to be the forged lists. His stand was that he remainedhonest despite a great pressure and implemented the actualaward lists for the purpose of giving appointments to the JBTteachers and refused to give effect to the lists produced by himin Hon'ble Supreme Court. However he had to pay the price forbeing honest.
6 In view of this stand of Sh. Sanjeev Kumar (A3) and thedirections of the Hon'ble Supreme Court, CBI seized these awardlists, which are collectively being referred to as “Supreme Courtlists”.
7 CBI started the investigations and concluded that the“Supreme Court lists” were not the forged lists as claimed by Sh.Sanjeev Kumar rather the same were the actual lists, which wereprepared by the selection committees. CBI also reached to theconclusion that Sh. Sanjeev Kumar in connivance with the otheraccused persons including Sh. Om PrakashChautala and theChair Persons and the Members of the District Level SelectionCommittees had replaced the original lists (i.e. the SupremeCourt lists) with the forged lists, on the basis of which theselection of 3206 JBT teachers had taken place. During the trialbefore this court, these award lists upon which the teacherswere selected is being collectively referred to as “Directoratelists”.
8. Therefore the controversy before this court is as to whichset of lists are genuine. Whether the “Supreme Court awardlists” are the genuine lists as claimed by CBI or whether the“Directorate lists” are the genuine lists as claimed by accused Sh.Sanjeev Kumar.
9. It is necessary to mention here that it is not in dispute thatinitially the selections were to be made by Haryana StaffSelection Commission but vide a cabinet decision, thesevacancies were taken out from the purview of the saidcommission and District Level Selection Committees in 18Districts were constituted for interviewing the candidates for thepost of JBT teachers. In the present case the Chair Persons andthe Members of such District Level Selection Committees havebeen impleaded as accused persons as A6 to A62. It was doneso because generally both the set of lists i.e. Supreme Court listsand Directorate lists had been signed by the ChairPersons/Members of the District Level Section Committees. Thepresent applicant Sh. NarainSinghRuhil (A29) was theChairman of the District Level Selection Committees of District
Karnal.
10. It is argued by Ld. Counsel for this applicant that till datemore than 60 witnesses have been examined and it is apparentfrom the deposition of the prosecution witnesses thatundeserving candidates were selected on the basis of Directoratelists, which are forged documents. It is submitted that in thismanner, candidates selected on the basis of such forged lists arethe actual beneficiaries of the offences committed in this case. Itis argued that the main motive of changing the lists withchanged interview marks to particular candidates is to providethe pecuniary benefits to those undeserving candidates, whowould not have been selected, had the “Supreme Court lists”,which were the actual lists, been implemented. Ld. Counsel hasdrawn my attention to the testimony of PW63 Sh. R. N. Azad,the Investigating Officer, who has stated that the selection ofJBT teachers were bogus selections. He has also drawn myattention to para 59 of the charge sheet, which states that Sh.Sanjeev Kumar (A3) got another set of award lists preparedthrough A6 to A62 and the candidates of their choices wereselected “as a part of conspiracy”. It is argued that there isenough evidence on record to show that the candidates selectedon the basis of the forged lists were in conspiracy with A1 to A5that is why these accused persons got a new set of award listsprepared.
11. On the other hand, Sh. I. D. Vaid, Ld. Special PublicProsecutor has strongly opposed this application stating that nowitness has testified before this court about the complicity ofthose selected candidates in the present case. Therefore theyshould not be summoned.
12. I have perused the records and I am of the opinion that ifthe “Directorate lists” are forged then the submissions of Ld.Defence Counsel would naturally have substance. However, ifthe Directorate lists are found to be the genuine as claimed bySh. Sanjeev Kumar (A3), in that case the selections of all thecandidates would be legal selection. The hotly contestedquestion before this court is as to which set of the award lists isthe genuine and which ones are the forged lists. It would not beprudent to summon such a large number of JBT teachers simplybecause the prosecution has taken a particular stand about thegenuineness or forgery of the award lists. This question goes tothe root of the case and this has to be decided at the stage offinal arguments. Issuing summons to these JBT teachers wouldnot only amount to prejudging the entire issue but also maycause lot of harassment to these teachers, in case ultimately theDirectorate lists are found to be the genuine lists. In these circumstances I am not inclined to allow this application.
Application is accordingly dismissed.
Announced in the open
court on 24.3.2012.
(Vinod Kumar)
Spl. JudgeII,
CBI, Rohini
24.3.2012
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