# Dr. M.C. Sharma v. Central Bureau of Investigation

- **Citation:** (2019) 4 ILRA 101
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-08-30
- **Case number:** Crl. Misc. Application (U/S 482 Cr. P.C.) No. 7234 of 2019
- **Bench:** Ramesh Sinha
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dr-m-c-sharma-v-central-bureau-of-investigation-44910
- **Pages:** 14

## Headnote

A. Criminal Law - Code of Criminal
Procedure, 1973 - Discharge - Any error
in the charge framed by the trial Court
can be amended and altered at any stage
of the trial considering prosecution
evidence led during the course of the
trial- It would not be proper for this
Court to interfere in the present 482
Cr.P.C. application as the allegations
made in the FIR and the evidence
collected
during
the
course
of
investigation by the C.B.I. against the
applicant, the prosecution has to be
given full opportunity to prove its case
by
adducing
evidence
against
the
applicant and co-accused persons- A
prima facie case would naturally depend
upon the facts of each case and it is
difficult to lay down role of universal
application where material placed before
the Court discloses grave suspicion
against the accused which has not been
properly explained, the Court would be
fully justified in framing charge and
proceeding with the trial.

For
applicant
Smt.
Aparna
Saxena-Not
disputed by CBI that she is the wife of coaccused and sleeping director - No evidence
against the applicant Smt. Aparna Saxena
collected during the course of investigation
showing that she conspired with her husband
along with other co-accused putting the State
Exchequer to a loss. The case of the applicant
Smt. Aparna Saxena is squarely covered by
paragraph nos.11 and 12 of the judgement of
Shreya Jha Vs. CBI, ILR (2007) Supp. (2) Delhi

## Text

_Characters 0–39,835 of 45,729. This is a partial read: ask again with offset=39835 for what follows._

4 All. Dr. M.C. Sharma Vs. Central Bureau of Investigation
101
Hon'ble Supreme Court reported in 2009
(3) ADJ 322 (SC) Lal Kamlendra
Pratap Singh Vs. State of U.P. Till then
no coercive measures shall be taken
against the applicants.

10. With the aforesaid directions,
this application is finally disposed of.
----------

(2019)12 ILR A101

ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 30.08.2019

BEFORE
THE HON'BLE RAMESH SINHA, J.

Crl. Misc. Application (U/S 482 Cr. P.C.) No.
7234 of 2019
connected with
 Crl. Misc. Application (U/S 482 Cr. P.C.) No.
7220 of 2019

Dr. M.C. Sharma ...Applicant
Versus
Central Bureau of Investigation
 ...Opposite Party

Counsel for the Applicant:
Priyanka Midha, Sri Ram M. Kaushik, Sri
Tanveer Ahmad

Counsel for the Opposite Party:
Sri Gyan Praksh, Sri Sanjay Kumar Yadav
A. Criminal Law - Code of Criminal
Procedure, 1973 - Discharge - Any error
in the charge framed by the trial Court
can be amended and altered at any stage
of the trial considering prosecution
evidence led during the course of the
trial- It would not be proper for this
Court to interfere in the present 482
Cr.P.C. application as the allegations
made in the FIR and the evidence
collected
during
the
course
of
investigation by the C.B.I. against the
applicant, the prosecution has to be
given full opportunity to prove its case
by
adducing
evidence
against
the
applicant and co-accused persons- A
prima facie case would naturally depend
upon the facts of each case and it is
difficult to lay down role of universal
application where material placed before
the Court discloses grave suspicion
against the accused which has not been
properly explained, the Court would be
fully justified in framing charge and
proceeding with the trial.

For
applicant
Smt.
Aparna
Saxena-Not
disputed by CBI that she is the wife of coaccused and sleeping director - No evidence
against the applicant Smt. Aparna Saxena
collected during the course of investigation
showing that she conspired with her husband
along with other co-accused putting the State
Exchequer to a loss. The case of the applicant
Smt. Aparna Saxena is squarely covered by
paragraph nos.11 and 12 of the judgement of
Shreya Jha Vs. CBI, ILR (2007) Supp. (2) Delhi
19.

Application u/s 482 of Cr.Pc of Dr.
M.C.Sharma rejected.

Criminal Application u/s 482 Cr.Pc of
Smt. Aparna Saxena allowed. (E-3)

List of cases cited: -

1. U.O.I Vs. Prafulla Kumar Samal & Anr,
(1979) 3 SCC 4,

2. Yogesh Vs. St.of Maha. (2008) 3 SCC 394,

3. Dilawar Balu Kurane Vs. St. of Maha.,
(2002) 2 SCC 135,

4. C.B.I, Hyderabad Vs. K.Narayana Rao
(2012) 9 SCC 512

5. Naresh Vs. St. of U. P (2012) 1 All LJ 202.

6. T. Baray Vs. Nenry A.H. Hoe- (1983) 1 SCC
177
7. Nemi Chand Vs. St. of Raj.-11(2016) CCR
15 (SC), MANU/SC/0506/2016

8. Ratan Lal Vs. St. of Punj.-AIR (1965) SC
444
102 INDIAN LAW REPORTS ALLAHABAD SERIES
9. Sham Lal Vs.State (1968) Allahabad 392

10. Shreya Jha Vs. CBI, ILR (2007) Supp. (2)
Delhi 19

11. St. of Kar. v. L. Muniswamy (1977 (2) SCC
699)
12. Supdt. & Remembrancer Of Legal vs Anil
Kumar Bhunja & Ors 1979 SCC (4) 274

13. M.P. Vs. Mohanlal Soni, (2000) 6 SCC 338

14. Kanti Bhadra Shah & Anr vs St. Of W. B.,
2000 (1) SCC 722

15. Smt. Om Wati & Anr vs St., Thru Delhi
Admn. & Ors 2001 CR.LJ 1723

16. Palwinder Singh Vs. Balvinder Singh; 2009
(3) SCC 850

17. Sajjan Kumar Vs. Central Bureau of
Investigation, (2010) 9 SCC 368

18. Sheoraj Singh Ahlawat and others Vs.
State of U.P. and another, (2013) 11 SCC 476

19. State By Karnataka Lokayukta Vs. M. R.
Hiremath, 2019 SCC

(Delivered by Hon'ble Ramesh Sinha, J.)

1. Both the applications under
Section 482 Cr.P.C. have been filed for
quashing the impugned order dated
19.12.2018 and the order dated 23.1.2019
passed by the Court of Special Judge,
CBI, Ghaziabad District Court in Special
Case No.17 of 2016, arising out of Case
Crime
No.
RCDST/2013/
A/0001/STF/New Delhi under Sections
120B, 420 & 471 I.P.C. and Section 13(2)
read with 13(1) (d) of Prevention of
Corruption Act, 1988, Police Station
CBI/STF, New Delhi, District Ghaziabad.

2. Since both the 482 Cr.P.C.
applications are arise of the common
order, hence, with the consent of learned
counsel for the parties, both the 482
Cr.P.C. applications are being decided by
a common order.

3. Brief facts of the case are that a
First Information Report was lodged in
pursuance of the order passed by this
Court on 15.11.2011 in Writ Petition
No.3611 (MB) of 2011 "Sachchidanand
(Sachchey) Vs. State of U.P. And others"
on 14.1.2013 which was lodged by the
respondent No.1-CBI on the basis of
preliminary enquiry No.0532011S0004
(registered on 19.11.2011), wherein three
persons, namely, Sri Arun Kumar Saxena,
Sri Prashant Saxena and M/s. Aanjaneya
Business (India) Pvt. Ltd. along with
unknown officials of Government of Uttar
Pradesh, NCCF and others were named as
accused.

4. The allegations made in the FIR
dated 14.1.2013 in nutshell are that the
preliminary enquiry revealed that during
2008-09, a programme implementation
plan (PIP) was submitted to NRHM,
Government of India, New Delhi, wherein
it was proposed to take up a Pilot
Telemedicine Project in 10 District of
U.P. with the support of SGPGI,
Lucknow having a proposed estimate of
Rs.915.37 lacs, for which an amount of
Rs.9.15 Crores was sanctioned for the
year 2008-09 and funds were released to
the State Health Society (SHS), NHRM in
June, 2008 and March, 2009. Further
allegation is that the said Telemedicine
Project was originally carried out by the
Director
General,
Medical
Health
(DGMH) but was arbitrarily decided by
the then Principal Secretary (Health and
Family Affairs) on 21.2.2009 to get the
project implemented through the Director
General
(Medical
Education),
U.P.
(hereinafter referred to as 'DGME) in
4 All. Dr. M.C. Sharma Vs. Central Bureau of Investigation
103
three medical colleges of the State of
U.P., for which Rs.9.15 Crore was
transferred to the joint account of DGME
and Finance Controller (ME). Further
allegation is that DGME arbitrarily
awarded the Project to M/s. National
Consumer Co-operative Federation Ltd.
(NCCF),
Lucknow
Branch
without
following the tender Process and without
calling for any open tender, thereby
violating the guidelines of the Central
Government on NRHM. The NCCF got
the project implemented through M/s.
Aanjaneya Business (India) Pvt. Ltd.,
their Business Partner, which was formed
in June, 2007 with Sri Prashant Saxena
and his wife Ms. Aparna Saxena as the
Director and did not have any experience
in Telemedicine Project and were mainly
involved in civil constructions, whereas
according to the NCCF guidelines for
delegation of powers, it was provided that
any new line of business had to be
undertaken with the approval of NCCF
(HO) and the same was not followed. The
further allegation is that M/s. Aanjaneya
Business (India) Pvt. Ltd. carried out
works in three medical colleges and
submitted exorbitant bills to NCCF.

5. The further allegation is that M/s.
Aanjaneya Business (India) Pvt. Ltd. in
criminal conspiracy with Sri Arun Kumar
Saxena,
Manager
NCCF,
claimed
exorbitant bills, thereby cheating the
government causing a wrongful loss to
Government and corresponding wrongful
gain to M/s. Aanjaneya Business (India)
Pvt. Ltd. and the said Sri Arun Kumar
Saxena, the then Manager NCCF and
presently
Senior
Research
Engineer
(RDSO), Lucknow and Sri Prashant
Saxena had common business interest
through another Company M/s.Firestone
Builder Pvt. Ltd., in which wife of Sri
Arun Kumar Saxena, namely, Dr. Indu
Saxena was a Director.

6. The CBI after completing the
investigation, submitted charge sheet
being Charge Sheet No.12 of 2016 on
31.5.2016 for the offence under Sections
120B, 420 & 471 I.P.C. and Section 13(2)
read with 13(1) (d) of Prevention of
Corruption Act, 1988 against (i) Arun
Kumar Saxena, the then Manager, NCCF,
(ii) Prashant Saxena, the Director, M/s.
Aanjaneya Business India Pvt. Ltd., (iii)
Smt. Aparna Saxena, the Director, M/s.
Aanjaneya Business (India) Pvt. Ltd., (iv)
M/s. Aanjaneya Business (India) Pvt. Ltd.
through
its
Directors,
(v)
Dr.
M.C.Sharma, the present applicant &
(vi) Ram Kumar Prasad, the then Joint
Secretary.

7.

The
Special
Judge,
Anti
Corruption
(CBI),
Ghaziabad
took
cognizance on 30.8.2016 for the offence
in which charge sheet was submitted and
summoned the accused persons including
the applicant. The applicant and other coaccused persons were granted bail by the
competent court. Thereafter, the applicant
moved a discharge application before the
trial Court on 27.7.2017 and the same was
rejected by the trial Court on 19.12.2018
and thereafter the charges were framed
against the applicant and co-accused
persons on 23.1.2019 by the trial Court
for the offence under Sections 120B, 420
& 471 I.P.C. and Section 13(2) read with
13(1) (d) of Prevention of Corruption Act,
1988. Aggrieved by the same, the
applicant has preferred the present 482
Cr.P.C. for quashing of the same.

8. Heard Sri Tanveer Ahmad,
assisted by Sri Ram M. Kaushik, learned
counsel for the applicant, Sri Gyan
104 INDIAN LAW REPORTS ALLAHABAD SERIES
Prakash, learned Senior Advocate assisted
by Sri Sanjay Kumar Yadav, learned
counsel for the C.B.I. and perused the
material brought on record.

9. So far as applicant-Dr. M.C.
Sharma is concerned, it has been argued
by learned counsel for the applicant that
the charges which have been framed
against him by the trial Court is
erroneously in disregard of the admitted
position of the CBI in terms of the
materials,
documents
and
witness
statements placed on record along with
the charge sheet. He further submitted
that the trial Court passed the order
framing charge mechanically not taking
into consideration the submissions made
in the written applications and also the
fact that every allegation made against the
applicant by the CBI controverted by the
witnesses whose statements had been
recorded
during
the
course
of
investigation and placed on record as
relied upon the documents. He next
submitted that the charges levelled against
the
applicant
stood
completely,
comprehensively
and
without
any
reasonable
doubt,
negated
by
the
prosecution relied upon documents as
well as relied upon statements of various
witnesses and hence, the exoneration of
the applicant was not based on his
individual contrarian defence, but upon a
mere perusal and plain reading of the
statements recorded under Section 161
Cr.P.C. of witnesses like-Dr. Hari Om
Dixit; Chanchal Tiwari; S.K.Mishra;
Pradeep Shukla; Harbhajan Singh. He
submitted that from the statements of the
said witnesses which are relied upon by
the documents of the CBI were clearly
exonerating the applicant in letter and
spirit regarding all the allegations made
against him. The learned trial Court thus,
failed to appreciate this vital aspect of the
matter and erred in framing charge against
the applicant on 23.1.2019. Hence, the
impugned order framing charge is liable
to be quashed by this Court.

10. He next submitted that the CBI
has alleged in the charge sheet that the
main scheme of NRHM was to connect
the rural hospitals, also known as First
Referral Units of District Level Hospital
with a super specialty institute through the
tele- medicine project, but the accused
persons through a criminal conspiracy
changed this basic plan and implemented
the tele-medicine project by connecting
medical
colleges
with
SGPGI.
He
submitted that the said allegation has no
basis in view of the statements recorded
under Section 161 Cr.P.C. of the
witnesses, namely, Dr. Hari Om Dixit
who at the relevant time was General
Manager Community Process NRHM in
SPMU dated 1.3.2013 and 27.6.2013 very
clearly indicates that the decision to
connect medical colleges with SGPGI
was more than a prudent decision instead
of connecting FRU/CHC/BPHC to a
district level hospital and then to SGPGI.
He himself admits that he was present in
the review meeting dated 21.2.2009
where the decision was taken. The
mission director of NRHM Mr. Chanchal
Tiwari was also present in the aforesaid
meeting of 21.2.2009 and vide his letter
dated 3.3.2009, he endorsed connection of
medical colleges with SGPGI through
DGME. The aforesaid decision was also
fully supported by Pradeep Shukla, the
then Principal Secretary, Medical Health.
Dr. I.S. Srivastava, the then Director
General, Medical Health was also present
in the aforesaid meeting dated 21.2.2009
and he fully supported the tangible shift to
connect medical colleges with SGPGI
4 All. Dr. M.C. Sharma Vs. Central Bureau of Investigation
105
through the tele-medicine project which is
reflected in the latter dated 24.2.2009
which is a relied upon document filed by
the CBI. Moreover, Dr. Hari Om Dixit on
20.4.2009 himself suggested the names of
medical colleges which is reflected in the
statement dated 28.2.2013 under Section
161 Cr.P.C. of Dr. Suniti Raj Mishra and
also by the mechanism of letter dated
4.5.2009 which is relied upon by the CBI,
written by DGME to Dr. Hari Om Dixit.

11. He also urged that the allegation
made by the CBI against the applicant
that he had committed offence of
conspiracy, cheating and substantive
offences
under
the
Prevention
of
Corruption Act by being the accessory to
NCCF being the implementing agency for
the entire tele-medicine project is negated
totally by the relied upon documents and
relied upon statements of the CBI, which
the trial Court has failed to consider. In
this regard, he has pointed out the
statement of PW1 Dr. Hari Om Dixit who
himself endorses and supports selection of
NCCF as the agency to implement the
tele- medicine project vide his two
statements
dated
1.3.2013
and
27.6.2013.The NCCF was a nominated
agency for implementing various projects
for and on behalf of the Department of
Medical Education, Government of U.P.,
fully endorsed vide Government Order
dated 12.7.2008, hence, on this count
NCCF cannot be stated by any stretch of
imagination to be a tainted agency,
incapable of implementing the project, for
the reason that it is not a case of CBI that
even
the
Government
Order
dated
12.7.2008 is a project of criminal
conspiracy and commission of criminal
offences at the end of government
officials.
Harbhajan
Singh
(PW-34)
himself issued a Government Order being
the then Principal Secretary, Medical
Education, Government of U.P. dated
30.3.2009
in
favour
of
NCCF
to
implement the tele-medicine project,
which has been supplied and duly
received by PW1-Dr. Hari Om Dixit as
well as to the office of DGMH. Post
21.2.2009 it was the Principal Secretary,
Medical Education, Government of U.P.
who is Harbhajan Singh, a cited witness,
who himself called Dr. Saroj Kanta
Mishra of SGPGI and asked him to lend
technical support in the implementation of
the tele-medicine project through the
agency of NCCF, Dr. Saroj Kanta Mishra
vide his statements dated 28.6.2013 and
17.12.2013 had himself endorsed this fact,
therefore, on this basis also the selection
of NCCF is endorsed as a valid act by all
concerned,
however,
most
illegally
without
any
substantive
evidence
unfounded evidence has been made on the
applicant as well as Mr. Ram Kumar
Prasad.

12. In support of his argument,
learned counsel for the applicant has
placed reliance upon the judgments of the
Apex Court in the case of Union of India
Vs. Prafulla Kumar Samal & Another,
reported in (1979) 3 SCC 4, Yogesh Vs.
State vs. Maharashtra (2008) 3 SCC 394,
Dilawar Balu Kurane Vs. State of
Maharashtra, (2002) 2 SCC 135, Central
Bureau of Investigation, Hyderabad Vs.
K.Narayana Rao (2012) 9 SCC 512 &
Naresh Vs. State of Uttar Pradesh (2012)
1 All LJ 202.

13. He next submitted that the
learned
trial
Court
also
failed
to
appreciate that post the amendment of the
provisions of Prevention of Corruption
Act w.e.f. 26.7.2018, there was clear
106 INDIAN LAW REPORTS ALLAHABAD SERIES
requirement and a consequent obligation
that no criminal trial could proceed
against the petitioner in view of the fact
that no sanction under Section 19 against
him
had
ever been
obtained and,
therefore, no charge could be framed
against him. Moreover, there was no
sanction under Section 197 Cr./P.C.
available on record against any one, in
any case the entire narrative of section 13
having completely changed, it
was
imperative on part of learned trial Court
to follow the dictum of the following
judgments:-

I. T. Baray Vs. Nenry A.H.
Hoe- (1983) 1 SCC 177;

II. Nemi Chand Vs. State of
Rajastjhan-11(2016)
CCR
15
(SC),
MANU/SC/0506/2016;

III. Ratan Lal Vs. State of
Punjab-AIR (1965) SC 444;

IV. Sham Lal Vs.State (1968)
Allahabad 392.

14. It is further submitted that the
applicant therefore, is entitled to the
benefit of rule of beneficial construction
to the extent that beneficial construction
requires that ex-post-facto law should be
applied to reduce the rigorous sentence
and applicability of the previous law of
the same subject and such a law is not
affected
by
Article
20(1)
of
the
Constitution of India. Moreover, the
aforesaid principle is based on a legal
maxim, "salus populi est suprema lex"
which means that welfare of the people is
supreme for law and the aforesaid
application of beneficial construction is
inspired and guided by the principle of
justice, equity and good conscience.
15. It is submitted that the guiding
principles of interpretation are explicitly
clear and provide a clear path that once
there has been an amendment and change
in the legal situation and specific to the
present case where the provision of
Section 13(1) (d) has been obliterated
from the statute then in no circumstances
would it be just and reasonable if the
innocent applicant is subject criminal
prosecution under Section 120B read with
Section 13(2) r/w 13(1) (d) of Prevention
of Corruption Act. Therefore, on this
ground alone the impugned orders ought
to be quashed and set aside because the
learned trial Court has failed to appreciate
that the amendment came into force from
26.7.2018, much prior to passing of the
impugned orders dated 19.12.2018 and
23.1.2019. It would be pertinent to
mention here that this Court in Sham Lal's
case
clearly
opined
that
with
the
amendment of the existing law, the
previous law would be rendered inchoate
and criminal prosecution for the previous
law
would
be
unjustified
and
unreasonable. Moreover, in view of the
fact that if a person could not be charged
for the amended law as far as the
allegation of criminal misconduct is taken
into consideration, then he ought not be
tried or convicted for the previous law
which has been removed, same is also the
intent of the legislature.

16. On the other hand, learned
counsel for the CBI has opposed the
prayer for quashing of the impugned
orders passed by the trial Court and has
submitted that as the charges have already
been framed against the applicant and the
trial is in progress, this Court may refrain
from interfering in the present 482
Cr.P.C. application for quashing of the
impugned orders as the allegations
4 All. Dr. M.C. Sharma Vs. Central Bureau of Investigation
107
levelled in the FIR and charge sheet has to
be tested during the course of trial and
because of the act of the applicant and coaccused persons, there has been a huge
financial loss to the State Exhequer to the
tune of several Crores of rupees. He
further submitted that during the course of
investigation by the CBI, the applicant,
the then Director General, Medical
Education (now retired), informed in the
said meeting about the nomination of
NCCF (a Central Government Agency)
for conducting tele-medicine project for
DGME, in the light of Government Order
dated 12.7.2008 of Government of Uttar
Pradesh. Prior to the decision taken by the
Executive Committee of NRHM, Prashant
Saxena, Director of M/s. Aanjaneya
Business India Pvt. Ltd., Lucknow vide
his letter dated 24.2.2009 addressed to the
Branch
Manager,
NCCF,
Lucknow
furnished
preliminary
cost
analysis
estimates worth Rs.81.39 Crores for telemedicine project at 14 Medical Colleges
and 74 District Hospitals of U.P. and it is
also proposed to create Networking Hub
and Video Conferencing for DGME and
main Hub at SGPGI, Lucknow.

17. He next argued that in the letter
dated
24.2.2009,
M/s.
Aanjaneya
Business India Pvt. Ltd. had mentioned
the deliberations of the discussions
already held with the applicant Dr.
M.C.Sharma,
DGME
and
Training
Lucknow, which shows that it was predecided on the part of the applicant to
dishonestly get the execution of the Telemedicine project through M/s. Aanjaneya
Business India Pvt. Ltd., Lucknow. The
investigation has revealed that on the very
same day, the aforesaid proposal with
slight modification was forwarded to the
applicant, the then Director General
Medical Education vide letter dated
24.2.2009 purportedly issued under the
signature of one P.D.Sharma, the then Incharge
Branch
Manager,
NCCF,
Lucknow. However,, P.D.Sharma denied
his signature on the said proposal.
Further, the signature which establishes
that the signature in the proposal was a
forged one. DGME further forwarded the
above referred proposal to the office of
Secretary, ME along with a covering
letter No.1149 dated 24.2.2009. The
DGME being the executive agency for the
project and acting as a Head of the
Department did not examine the proposal
of NCCF with market prevailing rates and
the feasibility of the proposal while
referring
the
approved
PIP
and
dishonestly with criminal intent to extend
undue favour to M/s. Aanjaneya Business
India Pvt. Ltd. forwarded the bogus
proposal of NCCF to the Medical
Education Secretariat flouting the existing
NRHM Rules and Guidelines wherein
only the Executive Committee of NRHM
was competent to approve the funds. The
applicant was already known to Prashant
Saxena as he had been doing for various
State funded constructions projects for
DGME and similarly, Arun Kumar and
Prashant Saxena were in close association
as they had common business interest in
another company, namely, M/s. Firestone
Builders Pvt. Ltd., in which Dr. Indu
Saxena wife of Arun Kumar Saxena is the
Managing Director. All the State funded
projects awarded to Prashant Saxena
through NCCF were got executed by him
through
M/s.
Firestone
Builders,
Lucknow. It was also proposed for release
of the proposed funds of Rs.9 Crores in
favour of DGME from the accounts of
DGMH, Lucknow, so that the same could
be released for the nominated agency, i.e.
NCCF. He submitted that after thorough
investigation, CBI has submitted charge
108 INDIAN LAW REPORTS ALLAHABAD SERIES
sheet against the applicant and co-accused
persons who are facing trial.

18. Learned counsel for the CBI has
further submitted that the trial Court has
dealt with giving cogent and sound
reasons rejecting the arguments of the
learned counsel for the applicant with
respect to the framing of charge under
Section 13(1) (d) of the P.C. Act referring
to the provision of Section 6 of the
General Clauses Act, 1897.

19. So far as applicant-Smt. Aparna
Saxena is concerned, it has been argued
by learned counsel for the applicant that
she is a housewife who got married to coaccused Prashant Saxena in the year 1989
and as on date the she has a young
daughter, namely, Sukriti aged about 3
years.
The
applicant's
husband
incorporated a Company for his own
business,
namely,
M/s.
Aanjaneya
Business (India) Pvt. Ltd. in which the
applicant was introduced as a Director for
fulfilling the paperwork. The applicant
has never been working full time or
participating in the day-to-day affairs of
said Company. The applicant has never
been involved and has not been subjected
in any criminal case till date except the
criminal case in question.

20. It was further argued that the
allegation levelled against the applicant
Smt. Arpana Saxena is limited to the
extent as has been mentioned in the
charge
sheet
that
the
applicant
purportedly signed the MOU dated
28.10.2009 and a cheque for Rs.10 lacs.
Admittedly,
there
is
no
allegation
whatsoever that the applicant played any
active role in the business operation or
that she was in connivance with any other
co-accused. In addition to the admitted
position and limited allegations of the
Investigating Officer, key prosecution
witnesses, namely, Pankaj Kapoor (PW50) and Hemant Raja (PW-51) in their
statements under Section 161 Cr.P.C.
have themselves exonerated the applicant
Smt. Aparna Saxena as Pankaj Kapoor in
his statement dated 23.12.2014 has stated
that although the applicant signed the
cheque for Rs. 10 lacs, but she was never
involved in the matter and that the only
point of contact was Mr. Prashant Saxena.
Similarly, Hemant Raja who was the
Chartered
Accountant
for
NCCF,
expressly mentioned in his statement
recorded u/s 161 Cr.P.C. on 22.12.2014
that although MOU dated 28.10.2009 was
signed by the applicant, but she was not
actively working for the Company. The
said witness had not seen her attending
any meeting, visiting any of the offices
and managing any of the work related to
project. He further stated that the
applicant signed Rs.10 lacs cheque as an
advance payment only in the absence of
her husband who used to otherwise handle
all the business dealing. He submitted that
there appears to be no evidence against
the applicant to show that there was any
criminal conspiracy between the applicant
and her husband Prashant Saxena in the
alleged crime, hence, no offence under
Section 420, or 420 read with 120-B
I.P.C. or 471 read with 120-B I.P.C. or
120-B read with 13(2) read with 13(1) (d)
of P.C. Act is made out against the
applicant. Moreover, there is no strong
suspicion against the applicant and she
has been arrayed as an accused only on
account of being the Director of the
Company and wife of co-accued Prashant
Saxena. In support of his argument,
learned counsel for the applicant has
placed reliance upon the judgment of the
Apex Court in the case of Shreya Jha Vs.
4 All. Dr. M.C. Sharma Vs. Central Bureau of Investigation
109
CBI, ILR (2007) Supp. (2) Delhi 19 and
relied upon paragraph nos.7,8,9, 11 & 12
of the said judgment, which is quoted
here-in-below:-

"7. The question is regarding
the charge under Section 120-B of the
IPC. To draw a case under the said
section, it must be shown that there was
an agreement, link, nexus between the
petitioner
and
the
accused.
The
chargesheet filed by CBI mentions the
petitioner Ms. Shreya Jha but once where
it states as follows:-

Investigation has revealed that
in furtherance of the said criminal
conspiracy accused Shreya Jha d/o V.K.
Jha r/o B-180, Sector-31, NOIDA, prop.
of M/s Anamika Enterprises and M/s
Nupur Enterprises aided and abetted the
commission of offences as an amount of
Rs. 5, 50,000/- and Rs. 39, 95,000/- were
transferred in the respective accounts of
the above said firm maintained at Canara
Bank, Chandni Chowk and Punjab and
Sind Bank, Safdarjung Enclave, New
Delhi from the said account of M/s
Juniper Jewellery Pvt. Ltd. In this way,
Shreya Jha was found involved in
siphoning of the money at the instance of
Smt. Nandita Bakshi and V.K. Jha
dishonestly.

8. In Sanjiv Kumar v. State of
Himachal Pradesh , the Supreme Court,
speaking about what is the essential
nature of conspiracy held that the offence
under Section 120-B is an agreement
between the parties to do a particular act.
Association
or
relation
to lead
a
conspiracy is not enough to establish the
intention. It is true that consipracies are
products of stealth, and seldom evidenced
by direct material; largely it is to be
inferred on the circumstances, and
attendant facts. Yet, there should be some
bedrock facts which can lead to such
inferences, even at the charge framing
stage. Thus, the sine qua non for a charge
to be sustainable under Section 120-B,
IPC is the agreement between the parties.
Such an essential ingredient is singularly
absent; the CBI has been unable to show
anything in that regard. I find no infirmity
with that approach.

9. The next question is whether
the charges framed under Sections 409,
419, 420, 467, 468 and 471 of the Indian
Penal Code, 1860 and Sections 13(2)
read with 13(1)(d) of the Prevention of
Corruption
Act,
1988
against
the
petitioner are sustainable.

 11. A fundamental principle of
criminal jurisprudence is 'actus non facit
reum nisi means sit rea'. In the present
case, the respondent CBI has been unable
to show a clear case against the
petitioner.
The
circumstances
pitted
against her are based entirely on her
being the daughter of one of the main
accused in the alleged fraud, and
fraudulent deception, which led to loss to
the bank. The role assigned, or attribuited
to the petitioner, i.e opening bank
accounts which were used by her father to
siphon off and misappropriate funds, after
opening proprietorship concerns, which
were always used by her father, are
insufficient to draw an inference of
existence of a grave suspicion of such
nature as to warrant charges against her.
In fact, the chargesheet merely states that
the petitioner "at the instance of' Smt.
Nandita Bakshi and V.K. Jha was found
involved in siphoning of the money." No
other link or attendant circumstance, as
far as the petitioner's role is shown, or
alleged in the chargesheet.

12.
In
the
light
of
aforementioned
observations,
no
110 INDIAN LAW REPORTS ALLAHABAD SERIES
substantiating prima facie case was made
out against the petitioner, at least no
prima facie case that about the grave
suspicion of her involvement was made
out. The trial court could not have
proceeded to charge the petitioner as it
did, on the available materials, and the
allegations levelled in the charge sheet.
Its order therefore, cannot be sustained."

21. Learned counsel for the CBI has
vehemently rebutted the arguments of
learned counsel with respect to the
applicant-Smt. Aparna Saxena and has
submitted that during the course of
investigation, it has been established that
M/s. Aanjaneya Business (India) Pvt. Ltd.
is the beneficiary Company through its
Director Prashant Saxena, Smt. Aparna
Saxena and the Company through its
Directors was found involved in criminal
conspiracy, cheating, use of forged
documents in order to get undue work of
tele-medicine
project
wherein
huge
number of electronic equipments were
purchased and installed at exorbitant
prices causing huge financial loss to the
Government
Exchequer,
as
such
involvement of the applicant is also
established and there are sufficient
evidence both oral and documentary on
record to prove that the selection of M/s.
Aanjaneya Business (India) Pvt. Ltd.was
pre-decided
by
virtue
of
criminal
conspiracy and DGME being the Head of
the Department and member of Executive
Committee of NRHM instead of getting
the proposal approved in NRHM or going
for open tender for purchase and
installation of equipments straight away
gave the work dishonestly in the name of
NCCF and even NCCF awarded the
project to M/s. Aanjaneya Business
(India) Pvt. Ltd. on the basis of forged
and bogus quotation process and the
motive behind this was conspiracy to earn
undue profit margin by way of installing
equipment at exorbitant prices avoiding
all
the
financial
guidelines
and
procurement rules. Hence, the accused
persons including the applicant conspired
with each other and caused huge financial
loss to the Government. He further
submitted that the investigation revealed
that the applicant Smt. Aparna Saxena,
wife of Prashant Saxena and one of the
Directors of M/s. Aanjaneya Business
(India) Pvt. Ltd., who signed the main
MoU dated 28.10.2009 with NCCF on
behalf of the Company and also signed a
cheque of Rs.10 lacs towards advance
payment to sub contract the work of M/s.
CSPL is also the beneficiary of the
wrongful gain, hence, submitted that the
trial court has rightly framed charges
against the applicant and her trial is also
warranted.

22.

Having
considered
the
submissions advanced by learned counsel
for the parties and perused the material
brought on record.

23. After having examined the
submissions advanced by learned counsel
for the parties and perused the material
brought record with respect to the
applicant-Dr. M.C.Sharma is concerned, it
is apparent that the C.B.I. during the
course of investigation has found his
involvement in the present case along
with other co-accused persons, namely,
Prashant Saxena, who is Director, M/s.
Aanjaneya Business India Pvt. Ltd. and
Arun Kumar who had close association
with the co-accused Prashant Saxena had
common business interest through another
Company, i.e., M/s. Firestone Builder Pvt.
Ltd. with whom the applicant was known
to Prashant Saxena as Prashant Saxena
4 All. Dr. M.C. Sharma Vs. Central Bureau of Investigation
111
had been doing various State funded
construction project for DGME and all the
State funded projects awarded to Prashant
Saxena through NCCF were got executed by
him through M/s. Firestone Builder Pvt. Ltd.

24. The matter relates to NRHM Scam
which runs in several Crores and State
Exchequer has been put to loss because of the
collusion of the applicant along with the coaccused persons, hence, involvement of the
applicant in the present case at this stage
cannot be doubted.

25. The contention of the learned
counsel for the applicant that the charges
which have been framed against the
applicant by the trial Court is contrary to
what has been stated by the witnesses
under Section 161 Cr.P.C. and on that
count the impugned order framing charge
be set aside, is not sustainable because if
there is any error in the charge framed by
the trial Court the same cannot be
amended and altered at any stage of the
trial considering prosecution evidence led
during the course of the trial.Thus, it
would not be proper for this Court to
interfere in the present 482 Cr.P.C.
application as the allegations made in the
FIR and the evidence collected during the
course of investigation by the C.B.I.
against the applicant, the prosecution has
to be given full opportunity to prove its
case by adducing evidence against the
applicant and co-accused persons .

26. The Apex Court in catena of
decisions has summarized the principles
in respect of framing of charge or
discharge of accused, which are as
follows:-

27. The Apex court in case of State
of Karnataka v. L. Muniswamy (1977 (2)
SCC 699) has held that at the stage of
framing the charge the court has to apply
its mind to the question whether or not
there is any ground for presuming the
commission of offence by the accused.
The Court has to see while considering
the question of framing the charge as to
whether the material brought on record
could reasonably connect the accused
with the trial. Nothing more is required to
be inquired into.

28.

In
case
of
Supdt.
&
Remembrancer Of Legal vs Anil Kumar
Bhunja & Ors 1979 SCC (4) 274 the
Apex court has observed that it may be
remembered that the case was at the stage
of framing charges; the prosecution
evidence had not yet commenced. The
Magistrate had therefore, to consider the
above question on a general consideration
of the materials placed before him by the
investigating police officer. At this stage,
as was pointed out by this Court in State
of Bihar v. Ramesh Singh, the truth,
veracity and effect of the evidence which
the prosecutor proposes to adduce are not
to be meticulously judged. The standard
of test, proof and judgment which is to be
applied finally before finding the accused
guilty or otherwise, is not exactly to be
applied at the stage of Section 227 or 228
of the Code of Criminal Procedure, 1973.
At this stage, even a very strong suspicion
founded
upon
materials
before
the
Magistrate, which leads him to form a
presumptive opinion as the existence of
the factual ingredients constituting the
offence alleged; may justify the framing
of charge against the accused in respect of
the commission of the offence.

29. In State of M.P. Vs. Mohanlal
Soni, (2000) 6 SCC 338, the Hon'ble
112 INDIAN LAW REPORTS ALLAHABAD SERIES
Supreme court held in paragraph 7 as
under:

" 7.The crystallised judicial
view is that at the stage of framing
charge, the court has to prima facie
consider whether there is sufficient
ground
for
proceeding
against
the
accused. The court is not required to
appreciate evidence to conclude whether
the materials produced are sufficient or
not for convicting the accused."

30. In case of Kanti Bhadra Shah
And Anr vs State Of West Bengal 2000
(1) SCC 722 the Apex court has held that
if the trial court decides to frame a charge
there is no legal requirement that he
should pass an order specifying the
reasons as to why he opts to do so.
Framing of charge itself is prima facie
order that the trial judge has formed the
opinion, upon consideration of the police
report and other documents and after
hearing both sides, that there is ground for
presuming that the accused has committed
the offence concerned.

31. In Smt. Om Wati & Anr vs
State, Through Delhi Admn. & Ors 2001
CR.LJ 1723, the Apex court has observed
that we would again remind the High
Courts of their statutory obligation to not
to interfere at the initial stage of framing
the
charges
merely
on
hypothesis,
imagination
and
far-fetched
reasons
which in law amount to interdicting the
trial
against
the
accused
persons.
Unscrupulous
litigants
should
be
discouraged from protracting the trial and
preventing culmination of the criminal
cases by having resort to uncalled for and
unjustified litigation under the cloak of
technicalities of law.

32. The Apex Court in the case of
Palwinder Singh Vs. Balvinder Singh;
2009 (3) SCC 850 has held that the
jurisdiction of Sessions Judge at the time
of discharge is very limited. In the said
judgment it has been held that charges can
also be framed on the basis of strong
suspicion. Marshaling and appreciation of
evidence is not in the domain of the court
at that point of time.

33. Hon'ble Supreme Court in
Sajjan Kumar Vs. Central Bureau of
Investigation, (2010) 9 SCC 368, held as
under:

"At the stage of framing of charge
under section 228 Cr.P.C. or while
considering the discharge petition filed
under Section 227, it is not for the
Magistrate or the Judge concerned to
analyse all the materials including pros
and cons, reliability or acceptability, etc.
It is at the trial, the Judge concerned has
to appreciate their evidentiary value,
credibility or otherwise of the statement,
veracity of various documents and is free
to take a decision one way or the other."

34. The Apex Court in catena of
decisions has summarized the principles
in respect of framing of charge or
discharge of accused and in the case of
Sheoraj Singh Ahlawat and others Vs.
State of U.P. and another, (2013) 11
SCC 476 has held as under:-

"While framing charges, court
is required to evaluate materials and
documents on record to decide whether
facts emerging therefrom taken at their
face value would disclose existence of
ingredients
constituting
the
alleged
offence. At this stage, the court is not
required to go deep into probative value
of materials on record. It needs to
4 All. Dr. M.C. Sharma Vs. Central Bureau of Investigation
113
evaluate whether there is a ground for
presuming that accused had committed
offence. But it should not evaluate
sufficiency of evidence to convict accused.
Even if, there is a grave suspicion against
the accused and it is not properly
explained or court feels that accused
might have committed offence, then
framing of charge against the accused is
justified.