The Delhi High Court has directed registration of a criminal complaint against six CBI officers for making a false statement before the court regarding correspondence with the administrative Ministry.

Justice Madhu Jain said that there was a reasonable foundation in the contemporaneous record for the allegations levelled under Section 191, Section 193 and Section 290 of IPC against the concerned officers.

“….an inquiry into the aforesaid alleged offences is expedient in the interests of justice. A further preliminary inquiry is unnecessary for forming that opinion, since the successive drafts, the relevant file-notings and the signed reply [cumulatively the contemporaneous record] have already been examined,” the Court said.

Justice Jain was dealing with an appeal filed by IRS officer Ashok Kumar Aggarwal against an order of the Special Judge which had declined to proceed under Section 340 of CrPC over the alleged false statement made by the CBI in its reply.

The Court directed the Special Judge to make a written complaint against officers namely Sushil Dewan, Vineet Vinayak, Amit Kumar, Raman Tyagi, Prem Kumar Gautam and Md. Azad for the alleged offences.

The Court directed that the complaint be transmitted within four weeks and placed before the Chief Judicial Magistrate (Central), Tis Hazari.

The case arose from a CBI reply dated August 2, 2016, filed in proceedings concerning the release of documents seized from Aggarwal.

In the reply, the CBI stated that correspondence with the administrative Ministry regarding further legal action was “underway” and that the documents might be required for further legal proceedings.

Aggarwal subsequently moved an application under Section 340 of CrPC, alleging that the statement was false since no such correspondence with the Ministry was underway at that point.

Examining the contemporaneous file notings and drafts of the CBI's reply, the Court noted that a recommendation dated July 19, 2016 had recorded that the Department of Personnel and Training (DoPT) had turned down the proposal for filing a Special Leave Petition and suggested seeking reconsideration or a higher legal opinion.

The Court further noted that the draft reply initially reflected the said position but in a subsequent draft, the statement that the DoPT had turned down the SLP proposal was deleted and replaced by a handwritten insertion stating that correspondence with the administrative Ministry was underway.

“This concerned alteration changed the very factual position sought to be presented before the Court,” the Court observed.

Further, it found that the record clearly established that there was no actual correspondence between the CBI and DoPT as on August 02, 2016. It noted that what existed at that stage was an internal process concerning a proposal to seek reconsideration or further legal opinion.

“The CBI was entitled to seek reconsideration, obtain another opinion and pursue such remedy as was available in law. However, its right to do so did not permit an internal proposal awaiting approval to be represented as a correspondence already underway with the Ministry,” the Court said.

It thus found a prima facie basis to examine the role of all six officers involved in the preparation, processing and approval of the reply.

“The respective acts of preparing, altering, vetting, processing, approving and filing the reply, read with the knowledge disclosed by the preceding drafts and file-notings, furnish a reasonable basis for the prima facie inference that the concerned officers participated in advancing a claim which was known to be inconsistent with the existing position. These circumstances disclose substantially more than the mere failure of a party to establish a contention. They prima facie attract Section 209 IPC against all the concerned officers, subject to proof of their respective knowledge, intention and participation before the competent Magistrate,” the Court said.

Justice Jain held that the material on record was sufficient to form the requisite prima facie opinion for initiating a complaint and that no further preliminary inquiry was necessary.

Accordingly, the Court set aside the Special Judge's order and allowed Aggarwal's Section 340 of CrPC application.

The Magistrate has been directed to revive the earlier court complaint proceedings and proceed independently.

“The learned Chief Judicial Magistrate shall pass appropriate orders regarding its revival and proceed further in accordance with law, while ensuring that parallel proceedings concerning the same allegations are not instituted,” the Court said.