# S.K. Srivastava, IRS(Retd.) v. C.B.I. & Ors

- **Citation:** (2020) 12 ILRA 200
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-11-04
- **Case number:** Application U/S 482 No. 13226 of 2020
- **Bench:** Suneet Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/s-k-srivastava-irs-retd-v-c-b-i-ors-45457
- **Pages:** 7

## Headnote

Criminal Law - Indian Penal Code, 1860-
Section 120B - Section 34- Section 109-
Distinction between- The most important
ingredient
of
the
offence
"criminal
conspiracy" is the agreement between
two or more persons to do an illegal act or
an act not illegal by illegal means -
Section 34 embodies the joint liability in
doing a criminal act, the essence of the act
being the existence of common intention,
participation in the commission of the
offence in furtherance of the common
intention invites its application. On the
other hand Section 109 may be attracted
even if the abettor is not present when
the offence abetted is committed provided
that he has instigated the commission of
the offence or has engaged one or more
persons in a conspiracy to commit an
offence and pursuant to that conspiracy
some act or illegal omission takes place or
has intentionally aided the commission of
an offence by an act or illegal omission.

Where Section 34 talks about joint liability in
doing a criminal act with meeting of minds with
a common intention, Section 109 makes out an
offence of conspiracy where there is abetment ,
intentional aid or instigation to do the offence
and the presence of the abettor is not necessary
at the time of commission of the offence.

Criminal
Law
-
Code
of
Criminal
Procedure, 1973- Section 482- It is settled
principle of law that at the stage of
framing of charge, in proceedings under
Section 482 Cr.P.C., it is not open for the
Court to enter into the sufficiency of the
evidence in order to appreciate the
documents and the statements in support
of the charge- It is not a case where the
uncontroverted allegations made in the
FIR
or
complaint
and
the
evidence
collected in support of the same do not
disclose the commission of any offence
and make out a case against the accused.
Further, the criminal proceedings is not
manifestly attended with mala fide and/or
the proceedings maliciously instituted
with an ulterior motive against the
applicant merely performing appellate
power in the backdrop of the allegations
and evidences. It is well established
proposition
of
law
that
a
criminal
prosecution, if otherwise justifiable and
based upon adequate evidence does not
suffer on account of mala fide or vendetta
of the complainant. The evidence and the
surrounding circumstances taken on face
12 All. S.K. Srivastava, IRS (Retd.) Vs. C.B.I. & Ors.
201
value constitute commission of the offence
under Section 120B, 420 IPC and Section 7
of Prevention of Corruption Act, 1988,
against the applicant and co-accused.

The Court cannot appreciate the evidence and
go into the factual aspects at the stage of
framing charge u/s 482 Cr.Pc and it is to be
seen only whether the commission of the
offence is made out or not on the basis of the
uncontroverted allegations made in the FIR and
the evidence collected during the course of the
investigation and as to whether the criminal
proceedings are manifestly instituted with
malafides and vendetta.

Criminal Application rejected. ( Para 22,
24, 25, 26) (E-3)

Case Law / Judgements relied upon:-

## Text

200 INDIAN LAW REPORTS ALLAHABAD SERIES
Cr.P.C. It is well settled law that under Section
311 Cr.P.C. cannot be invoked mere to fill up
lacuna of the case but to fair and just decision
of the case.

18. In the end, I do not find any illegality
in
the
impugned order
requiring
any
interference by this Court in exercise of
inherent power under Section 482 Cr.P.C. and
consequently, the prayer for quashing the
impugned order dated 24.02.2020 passed by
Additional Sessions Judge, Court No.3,
Saharanpur in S.T. No.605 of 2015, Crime
No.169 of 2014 filed under Sections 147, 148,
149, 302, 120-B I.P.C., Police Station Kotwali,
District Saharanpur is refused.

19. The present 482 Application lacks
merit and is accordingly, dismissed.
----------
(2020)12ILR A200
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 04.11.2020

BEFORE

THE HON'BLE SUNEET KUMAR, J.

Application U/S 482 No. 13226 of 2020

S.K. Srivastava, IRS(Retd.) ...Applicant
Versus
C.B.I. & Ors. ...Respondents

Counsel for the Applicant:
Sri Shashi Dhar Shukla

Counsel for the Opp. Parties:
A.S.G.I., Sri Ravi Prakash, Sri Sanjay Kumar
Yadav, Sanjeev Kumar Pandey

Criminal Law - Indian Penal Code, 1860-
Section 120B - Section 34- Section 109-
Distinction between- The most important
ingredient
of
the
offence
"criminal
conspiracy" is the agreement between
two or more persons to do an illegal act or
an act not illegal by illegal means -
Section 34 embodies the joint liability in
doing a criminal act, the essence of the act
being the existence of common intention,
participation in the commission of the
offence in furtherance of the common
intention invites its application. On the
other hand Section 109 may be attracted
even if the abettor is not present when
the offence abetted is committed provided
that he has instigated the commission of
the offence or has engaged one or more
persons in a conspiracy to commit an
offence and pursuant to that conspiracy
some act or illegal omission takes place or
has intentionally aided the commission of
an offence by an act or illegal omission.

Where Section 34 talks about joint liability in
doing a criminal act with meeting of minds with
a common intention, Section 109 makes out an
offence of conspiracy where there is abetment ,
intentional aid or instigation to do the offence
and the presence of the abettor is not necessary
at the time of commission of the offence.

Criminal
Law
-
Code
of
Criminal
Procedure, 1973- Section 482- It is settled
principle of law that at the stage of
framing of charge, in proceedings under
Section 482 Cr.P.C., it is not open for the
Court to enter into the sufficiency of the
evidence in order to appreciate the
documents and the statements in support
of the charge- It is not a case where the
uncontroverted allegations made in the
FIR
or
complaint
and
the
evidence
collected in support of the same do not
disclose the commission of any offence
and make out a case against the accused.
Further, the criminal proceedings is not
manifestly attended with mala fide and/or
the proceedings maliciously instituted
with an ulterior motive against the
applicant merely performing appellate
power in the backdrop of the allegations
and evidences. It is well established
proposition
of
law
that
a
criminal
prosecution, if otherwise justifiable and
based upon adequate evidence does not
suffer on account of mala fide or vendetta
of the complainant. The evidence and the
surrounding circumstances taken on face
12 All. S.K. Srivastava, IRS (Retd.) Vs. C.B.I. & Ors.
201
value constitute commission of the offence
under Section 120B, 420 IPC and Section 7
of Prevention of Corruption Act, 1988,
against the applicant and co-accused.

The Court cannot appreciate the evidence and
go into the factual aspects at the stage of
framing charge u/s 482 Cr.Pc and it is to be
seen only whether the commission of the
offence is made out or not on the basis of the
uncontroverted allegations made in the FIR and
the evidence collected during the course of the
investigation and as to whether the criminal
proceedings are manifestly instituted with
malafides and vendetta.

Criminal Application rejected. ( Para 22,
24, 25, 26) (E-3)

Case Law / Judgements relied upon:-

1. Anil Mahajan Vs Bhor Industries Ltd. & ors.
(2005) 10 SCC 228

2. Kehar Singh Vs State (Delhi Administration),
(1988) 3 SCC 609

3. Noor Mohammad Mohd. Yusuf Momin Vs St.
of Maha., 1971 AIR 885

4. Mohd. Akbar Dar Vs St. of J & K, AIR 1981 SC
1548

5. Radhey Shyam Vs Kunj Behari & ors. AIR
1990 SC 121

6. St. of Har. & ors. Vs Ch. Bhajan Lal & ors.
1992 AIR 604

(Delivered by Hon'ble Suneet Kumar, J.)

Order on Application Nos. Nil of
2020 filed under Chapter XXII Rule 1 of
High Court Rules

During the course of argument the said
applications has not been pressed by
learned
counsel
for
the
applicant,
accordingly, the applications are dismissed
as not pressed.

Order on Application under Section
482 Cr.P.C.

1. On the matter being taken up, Shri
Ravi Prakash, learned counsel appearing
for Central Bureau of Investigation (for
short ''C.B.I.') submits that baseless and
derogatory allegations have been made in
the petition, as well as, in the rejoinder
affidavit filed by the applicant against
several persons including him.

2. It is urged that the allegations taken
on
face
value
are
scandalous
and
contemptuous. It is submitted that contempt
proceedings
be
initiated
against
the
applicant.

3. On specific query, learned counsel
submits that no application for drawing
contempt proceedings against the applicant
has been filed, but submits that the Court
suo moto take notice of the scandalous
pleadings.

4. Be that as it may, the Court is not
inclined to enter into the controversy
without there being a formal application to
that effect. However, disposal of the instant
petition would not preclude the learned
counsel for the C.B.I. or any other
aggrieved person from raising the issue and
seeking
remedy
in
an
appropriate
proceedings in accordance with law. The
matter is kept open.

5. By the instant application filed
under Section 482 of Code of Criminal
Procedure
(for
short
''Cr.P.C.'),
the
applicant seeks the following reliefs:

"i. To set aside & quash the order
dated 14.2.2020 of learned Special Judge,
Anti Corruption, CBII, Ghaziabad by which
202 INDIAN LAW REPORTS ALLAHABAD SERIES
the cognizance has been taken by the Court
in the matter of CBI RC 1202019A0004
dated 4.7.2019 filed by the CBI.

ii. To also set aside & quash the
Chargesheet dated 14.2.2020 under Section
120B & 420 IPC, 1860 r.w. Section 7 of the
Prevention of Corruption Act, 1988 &
which has been forwarded by I.O., ACB,
CBI, Ghaziabad in CBI RC1202019A0004
dated 4.7.2019.

iii. To grant Ad-interim ex-parte
stay of proceedings in CBI RC No.
1202019A0004 dated 4.7.2019 u/s 120B &
420 IPC, 1860 & Section 7 of P.C. Act,
1988 & to further grant Ad-interim Exparte stay on all the consequential
proceedings initiated or bring initiated
based upon CBI RC No. 1202019A0004
dated 4.7.2019 & Chargesheet.

iv. To summon the records of the
Trial Court of the present case."

6.

The
applicant/accused
is
challenging the charge-sheet, cognizance
order and the consequential proceedings
arising therefrom.

7. The facts, for the purposes of the
case, briefly stated, is that the C.B.I.
registered a regular case on the written
complaint of Director General of Income
Tax (Vigilance) on directions of the
Commissioner,
Central
Vigilance
Commission, New Delhi, dated 1 July
2019. The allegation against the applicant,
a (compulsory) retired official while posted
as Commissioner Income Tax (Appeals)
(for short ''CIT(A)-I'), with additional
charge
of
CIT(A)-II
Noida,
during
December 2018 to 11 June 2019, indulged
in acts of omission and commission
adverse to the interest of revenue. It is
further alleged that the orders passed by the
applicant in the capacity of an appellate
authority were antedated i.e. after his
retirement on 11 June 2019. The orders
were uploaded on the ITBA system after
demitting office. The investigation further
reveals falsification of records; it is further
alleged that during this period 13 appeals
was decided by the applicant in conspiracy
with co-accused Anil Kumar (Chartered
Accountant), which were beyond the
jurisdiction of CIT(A) Noida. These
appeals fall within the jurisdiction of
CIT(A) Ghaizabad. It is alleged that the
appellate orders were procured orders for
extraneous consideration. The applicant
never held the charge of CIT(A) Ghaziabad
during the period September 2018 to 11
June 2019.

8. Learned counsel appearing for the
applicant submits that applicant being a
quasi
judicial
authority,
exercising
appellate jurisdiction, under the statutory
provisions was competent to decide the
appeals, both on the subject matter and
jurisdiction; there is no evidence on record
to show that the orders passed in the
appeals were procured for extraneous
considerations; proper notice was given to
the assessees in all the appeals, the notices
have been brought on record; the appeals
were decided on merit after due notice to
the concerned official of the department.
The learned counsel has drawn the
attention of the Court to various orders and
circulars of the department in particular
circulars dated 30 December 2019 and 31
December 2019 to submit that applicant
had jurisdiction to hear and decide the
alleged appeals. It is further urged that
allegation of calling for records and
deciding the appeals is not borne out from
the material or any evidence. The appeals
were filed through the e-filing system.

9. It is further urged by learned
counsel for the applicant that it is a case of
12 All. S.K. Srivastava, IRS (Retd.) Vs. C.B.I. & Ors.
203
malicious
prosecution
to
harass
the
applicant; taking the allegations and
evidence on face value, the ingredients of
the offence against the applicant is not
made out. He submits that the proceeding is
liable to be quashed being abuse of the
process of the Court.

10. In rebuttal, learned counsel
appearing for the CBI submits that the
ingredients of the offence of cheating,
criminal conspiracy and under Section 7 of
the Prevention of Corruption Act, 1988, is
made out; he further submits that exercise
of inherent power of the Court under
Section 482 Cr.P.C. is limited, the Court
would not enter into the merit or consider
the defence being raised by the applicant; it
is urged that only a, prima facie, case
linking the applicant to the offence has to
be examined at the stage of framing of
charge.

11. I have heard Shri V.P. Srivastava,
learned Senior Counsel, assisted by Shri
Shashi Dhar Shukla, learned counsel for the
applicant and Shri Ravi Prakash, learned
counsel appearing for the C.B.I. and
perused the record.

12. In nutshell, allegation against the
applicant is that by virtue of his position as
appellate authority he dishonestly and
fraudulently adjudicated 13 appeals outside
his jurisdiction conspiring with the coaccused, thereby, causing wrongful loss at
Rs. 7.26 crores to the revenue. The
assessment orders in all the appeals was
passed by the concerned Income Tax
Officer of Ghaziabad. The aggrieved
assessees were required to file the appeals
within
the
jurisdiction
of
CIT(A)
Ghaziabad,
however,
co-accused Anil
Kumar (Chartered Accountant) though
being fully aware of this fact filed the
appeals at CIT Noida. It is alleged that coaccused Anil Kumar entered into criminal
conspiracy during the relevant period with
the applicant to get the appeals decided,
including his and his wife's appeal, thereby,
causing
loss
to
the
revenue
and
corresponding wrongful gain to the accused
persons.

13. It is further alleged that the
dishonest intention is reflected from the
evidence in support of the charge that the
order-sheet and other records pertaining to
the appeals were not maintained, the date
of submission of the appeals, the date of
last hearing and date of final order and the
nature of order passed thereon was not
indicated. It is further asserted on the
strength of evidence that applicant with
dishonest intention did not sent the
mandatory
notice/intimation
to
the
concerned
Assessing
Officer
in
the
prescribed form (ITNS-51) enclosing the
appeal memo. Without receipt of ITNS-51
duly filled by the concerned Assessing
Officer and returned to the CIT appeals, the
appeals could not have been heard, neither
date could have been fixed for hearing. It is
further alleged that the applicant in
capacity of appellate authority did not
requisition the assessment records from the
Assessing Officer.

14. It is further alleged that the
applicant
framed/manufactured
false/incorrect records with an intent to
cheat the department to give an impression
that hearing had taken place in at least 6 out
of 13 appeals. In some of the appeals (viz.
assessee Sanjay Mittal), the notice for
hearing was sent by speed post on 30
January 2018 fixing 7 January 2019 for
hearing. The record of the post office
Moradnagar shows that the speed post was
served on 3 January 2019. However, the
204 INDIAN LAW REPORTS ALLAHABAD SERIES
orders on the said appeal came to be passed
on 31 December 2018. It is alleged that
acknowledgement slip was not sent with
the notice. The appeal of the assessee
Sanjay Mittal came to be allowed and
disposed of in his favour which was done
dishonestly by the applicant. Tax liability at
Rs. 67,82,836/- was allowed in favour of
the assessee and against the revenue.

15. Further, it is alleged that the
circulars of the Central Board of Direct
Taxes, New Delhi, was not complied by the
applicant by not issuing the appellate
orders within 15 days of the order by
registered
post
or
through
service/circulation without requiring the
assessee/appellant to file an application in
that regard. The date of hearing was
deliberately not mentioned in the ordersheets of any of the 13 appeals, thereby,
giving an opportunity to the applicant to
antedate such orders, which were uploaded
after demitting office. It is alleged that in
the 13 appeals applicant caused wrongful
loss at Rs. 7.26 crores to the revenue and
commensurate
wrongful
gain
to
the
assessee, co-accused and himself.

16. The record further reveals that
during course of investigation on search of
the residential premises of the applicant on 5
July 2019 Indian currency at Rs. 16,44,970/-
was found from the possession of the
applicant which is alleged to be part of the
undue financial gain obtained by the accused.

17.

The
allegations
and
the
material/evidence placed on record, taken
on face value, prima facie, make out the
ingredients of the offence of criminal
conspiracy, cheating and abuse of his
position as public servant obtaining undue
advantage for wrongful gains and causing
wrongful loss to the revenue.

18. The investigation further reveals the
circumstances and chain of events pointing
towards the dishonest conspiracy. In respect
of all 13 appeals no assessment records or
miscellaneous records for the assessment year
2015-16 and earlier years were ever called by
the applicant at any stage of hearing. It is
further revealed during investigation that the
appellate orders were typed by a private
typist Shri Amar Kumar Das and his wife
Smt. Nalni Parva Das who are not employees
of the department. Further, one of the typist is
class 9th pass and having no knowledge of
English
language
nor
of
computer,
laptop/desktop. The bills raised by the typist
were processed on the directions of the
applicant.

19.

In
nutshell,
the
acts
of
commission and omission on the part of the
applicant in respect of the appeals is that
the applicant in connivance with coaccused
Anil
Kumar,
(Chartered
Accountant)/assessee
entertained
and
adjudicated the appeals without having
jurisdiction; no order-sheet and other
records indicating the date of submission of
appeal, date of hearings, date of final order
and nature of final order in respect of
appeals was prepared; the applicant without
mandatory intimation to the Assessing
Officer and without receipt of ITNS-51,
duly filled by the Assessing Officer, the
appeals were heard; the assessment records
pertaining
to
the
appeals
was
not
summoned from the concerned Assessing
Officers; false and manufactured records
was created in respect of the appeals to
indicate the hearing and disposal of the
appeal of the assessees noted therein; some
of the appeals has been shown to have been
allowed and disposed of in favour of the
assessee when it was not at the hearing
stage; appellate orders are antedated having
passed after the applicant demitting office.
12 All. S.K. Srivastava, IRS (Retd.) Vs. C.B.I. & Ors.
205

20. In Anil Mahajan vs. Bhor
Industries Ltd. And others 2005 (10)
SCC 228, the Supreme Court observed as
under:

"The substance of the complaint
is to be seen. Mere use of the expression
"cheating" in the complaint is of no
consequence."

21. The evidence and the material
brought on record, prima facie, establishes
that applicant abusing his position as
Commissioner
(Appeals)
entered
into
criminal conspiracy with co-accused Anil
Kumar (Chartered Accountant) as a public
servant, obtained undue advantage for
extraneous considerations, committed acts
of commission and omission with mala fide
intentions thereby causing wrongful loss to
the department and wrongful gain to the
assessees and himself. The evidence and
the surrounding circumstances taken on
face value constitute commission of the
offence under Section 120B, 420 IPC and
Section 7 of Prevention of Corruption Act,
1988, against the applicant and co-accused.

22. Section 120B I.P.C. deals with the
punishment for criminal conspiracy. The
offence of "criminal conspiracy" is defined
under Section 120A I.P.C. The most
important
ingredient
of
the
offence
"criminal conspiracy" is the agreement
between two or more persons to do an
illegal act or an act not illegal by illegal
means. (Refer: Kehar Singh Vs. State
(Delhi Administration), (1988) 3 SCC
609). The offence of conspiracy
is
complete when two or more conspirators
have agreed to do or cause to be done an
act which is itself an offence, in which case
no overt act need be established. In Noor
Mohammad Mohd. Yusuf Momin Vs.
State of Maharashtra, 1971 AIR 885, the
Supreme Court considered and laid down
the distinction between Section 34, Section
109 and Section 120B I.P.C. Section 34
embodies the joint liability in doing a
criminal act, the essence of the act being
the
existence
of
common
intention,
participation in the commission of the
offence in furtherance of the common
intention invites its application. On the
other hand Section 109 may be attracted
even if the abettor is not present when the
offence abetted is committed provided that
he has instigated the commission of the
offence or has engaged one or more
persons in a conspiracy to commit an
offence and pursuant to that conspiracy
some act or illegal omission takes place or
has intentionally aided the commission of
an offence by an act or illegal omission.

23. Turning to charge under Section
120B I.P.C., criminal conspiracy postulates an
agreement between two or more persons to do
or cause to be done an illegal act or an act
which is not illegal, by illegal means. It differs
from the other offences in that mere agreement
is made an offence even if no step is taken to
carry out the agreement. A conspiracy from its
very nature is generally hatched in secret. It is,
therefore, extremely rare that direct evidence in
proof of conspiracy can be forthcoming. But
like other offences criminal conspiracy can be
proved by circumstantial evidence. In deed, in
most cases proof of conspiracy is largely
inferential though the inference must be
founded
on
solid
facts,
surrounding
circumstances and antecedent and subsequent
conduct, amongst other factors, constituting
relevant
material.
The
agreement
of
understanding may be proved by necessary
implication to do an unlawful act by unlawful
means.

24. It is settled principle of law that at
the stage of framing of charge, in
206 INDIAN LAW REPORTS ALLAHABAD SERIES
proceedings under Section 482 Cr.P.C., it is
not open for the Court to enter into the
sufficiency of the evidence in order to
appreciate
the
documents
and
the
statements in support of the charge. (Vide
Mohd. Akbar Dar vs. State of Jammu &
Kashmir, AIR 1981 SC 1548 & Radhey
Shyam vs. Kunj Behari & others AIR
1990 SC 121)

25. It is not a case where the
uncontroverted allegations made in the FIR or
complaint and the evidence collected in support of
the same do not disclose the commission of any
offence and make out a case against the accused.
Further, the criminal proceedings is not manifestly
attended with mala fide and/or the proceedings
maliciously instituted with an ulterior motive
against the applicant merely performing appellate
power in the backdrop of the allegations and
evidences.

26. It is well established proposition of
law that a criminal prosecution, if otherwise
justifiable and based upon adequate evidence
does not suffer on account of mala fide or
vendetta of the complainant. (Refer: State of
Haryana and others vs. Ch. Bhajan Lal and
others 1992 AIR 604)

27. Having regard to the facts and
circumstances and the material placed on
record, I am of the opinion that there is prima
facie evidence in support of the charges. The
submission of the learned counsel for the
applicant that the criminal prosecution does not
constitute the ingredients of the offence against
the applicant, lacks substance.

28. Learned counsel for the applicant
failed to point out any illegality, infirmity
or jurisdictional error in the impugned
order.

29. The petition being devoid of merit
is, accordingly, dismissed.

30. Learned trial court to proceed in
accordance with law without being influenced
by any observations made in the order.
----------
(2020)12ILR A206
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 01.12.2020

BEFORE

THE HON'BLE RAVI NATH TILHARI, J.

Application U/S 482 No. 14973 of 2020

Rajesh Kumar & Ors. ...Applicants
Versus
State of U.P. & Anr. ...Opp. Parties

Counsel for the Applicants:
Sri Sharique Ahmed

Counsel for the Opp. Parties:
A.G.A., Sri Ashish Dubey, Sri Rakesh
Dubey, Sri Saiyad Iqbal Ahmed

Criminal Law - Code of Criminal Procedure,
1973-
Section
482-
Inherent
power
possessed by the High Court is of wide
plenitude, with no statutory restrictions. The
limitations imposed on exercise of such
power are the self imposed restrictions. Any
provision of the Code cannot limit or affect
the inherent powers of the High Court. But,
this power, being extraordinary, is required
to be exercised sparingly, carefully, with
caution, and circumspection and only when
such exercise is justified by the tests
specifically laid down in Section 482 Cr.P.C.

No provisions of the Cr.Pc restrict the inherent
powers of the High Court but the said powers
are to be exercised sparingly and with caution
for securing the ends of justice and for
preventing the abuse of the Court.

Criminal Law- Code of Criminal Procedure,
1973- Section 482- Section 320- Section
320 Cr.P.C. does not come in the way of
exercise of inherent power of the High
Court
for
quashment
of
criminal