394. If in the aforesaid circumstances the constitution and working of Screening Committee is seen and visualized then it emerges out as an irresistible conclusion that the Screening Committee was though constituted as a large broad based inter-departmental committee but in its actual functioning it was working as a conglomeration of various small Screening Committees. Thus in its actual working whenever discussion qua any given coal block used to take place in the Screening Committee then applications of only those companies who had applied for the allocation of said coal block used to be considered. Officers of MOC however used to participate in the discussion qua every coal block and also qua each of the applicant companies being the representatives of Nodal Ministry. On the other hand representatives of only such State Governments used to participate in the discussion in whose states either the given coal block under discussion was situated or the applicant companies being considered were proposing to have their end use project in their state. Similarly representative of any Administrative Ministry used to participate in the discussion only qua such companies who were either already engaged or were proposing to engage in an end use product relating to the said Administrative Ministry. It is important to understand the aforesaid working of Screening Committee since it will help in better understanding the claim raised by Ld. Counsels for accused persons that the decisions made in the Screening CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 291 of 350 Committee were unanimous in nature as while signing the recommendation sheets the various members of Screening Committee did not raise any objection. However from the aforesaid nature of working of Screening Committee it becomes crystal clear that in the discussion which took place in the Screening Committee meeting held on 03.07.2008 qua any given coal block and while considering applications of various applicant companies who had applied for the said coal block under discussion only members of such smaller Screening Committee would have participated and none else. Thus representative of Ministry of Steel could have given his opinion or views only qua such companies who were either having any existing sponge iron or steel plant or were proposing to establish any such plant. Similarly representative of DIPP could have given his views/comments only qua such companies who were either having any existing cement plant or were proposing to establish any such cement plant. Similarly as Thesgora-B/Rudrapuri coal block was situated in the state of Madhya Pradesh so the representative of the state of Madhya Pradesh would have been interested in the discussion qua each of the applicant companies who were seeking allocation of Thesgora-B/Rudrapuri coal block situated in their state. The representative of all other State Governments would be interested in the discussion only if any, of the applicant company seeking allocation of Thesgora-B/Rudrapuri coal block was either having any existing end use project or is proposing to establish its end use project in their state. Thus other members of the Screening Committee would have no concern with any such discussion for they CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 292 of 350 were neither having any information about the applicant companies or about their proposed end use project nor any information qua the coal block under discussion for it was not situated in their state. Admittedly applications of all such companies were not even sent to them by MOC.
395. Thus if in the light of these circumstances the signing of various recommendation sheets are seen at the end of the meeting held on 03.07.2008 then it is found that all the members of the Screening Committee present have signed recommendation sheets qua each of the coal blocks irrespective of the fact whether the said coal block was situated in their state or not or the companies recommended for allocation were having any existing end use project or were proposing to establish their end use project in their state or not. Similarly representative of all Administrative Ministries signed the recommendation sheets irrespective of the fact as to whether the recommended companies were either engaged or were proposing to engage in any end use product relating to their Ministry or not. Thus the factum of signing of said recommendation sheets can at the most signify that such a decision was taken in the Screening Committee meeting on that day but in no way the signing of said recommendation sheets by all members present can signify that the said decisions were unanimous in nature. It is in these circumstances only that the contention that none of the Screening Committee members while signing the recommendation sheets did not raise any objection needs to be seen and appreciated.
CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 293 of 350
396. In this regard it would be now worthwhile to refer to the deposition of PW-11 S.K. Mishra who as Secretary Mineral Resources Department, Government of Madhya Pradesh had attended Screening Committee meeting held on 03.07.2008. He stated that when he went to attend the Screening Committee meeting then he was carrying alongwith him copy of the recommendation which was earlier sent by Government of Madhya Pradesh to MOC qua various coal blocks situated in the state. He denied that at that time he was carrying the entire file of Government of Madhya Pradesh with him. He further stated that during the course of Screening Committee meeting various coal blocks were taken up for discussion in seriatum. He however stated that at the time of discussion qua Thesgora-B coal block he reiterated recommendation of Government of Madhya Pradesh as was made in favour of M/s BLA Power Ltd. but stated that after discussion as was evident from para 10 of the minutes of the meeting it was decided that the recommendation of state Government of Madhya Pradesh can not be accepted. He also stated that discussion qua Thesgora-B coal block took place between him and MOC officers i.e. H.C. Gupta, Secretary Coal, K.S. Kropha, Joint Secretary Coal and K.C. Samria, Director, MOC. He however claimed ignorance as to whether representative of the Administrative Ministry participated in the discussion or not. He also stated that while he signed the attendance sheet at the beginning of the meeting but later on when the recommendation of the meeting were finalised then he signed the recommendation sheets only as a token of participating in the CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 294 of 350 meeting. However in his cross-examination he denied the suggestion that during the Screening Committee meeting the net-worth of various applicant companies or status of end use project or the techno economic feasibility report or the financial status of the applicant companies was discussed. He also claimed ignorance as to whether any comprehensive appraisal of applicant companies was sent to Screening Committee by the Administrative Ministries or not as he stated that no such document was supplied to him. He also denied the suggestion that the decision of the Screening Committee was unanimous. In his cross-examination this witness also denied the suggestion that he was competent to take any decision in the Screening Committee meeting either on behalf of his department or on behalf of Government of Madhya Pradesh as he stated that he was deputed only to communicate the decision i.e. recommendation already made by Government of Madhya Pradesh. He also denied having given any merit list of various applicant companies to the Screening Committee on the basis of any points assigned to them by Government of Madhya Pradesh. He also specifically stated that the final decision of the Screening Committee qua Thesgora-B coal block was not with his consent. He also denied that he did not record any objections in the recommendation sheet while putting his signatures over there only because the decision of the Screening Committee was unanimous.
397. At this stage, I would like to mention that it is the claim of the accused persons that PW-11 S.K. Mishra had come to attend the CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 295 of 350 Screening Committee meeting on 03.07.2008 carrying alongwith him the entire file of Government of Madhya Pradesh wherein detailed chart assigning different marks to various applicant companies was available. It is also their claim that as Thesgora-B/Rudrapuri coal block was reserved for non-power sector companies and M/s BLA Power Ltd. was proposing to establish a power project so it could not have been recommended for the said coal block and accordingly the next two best placed companies as per the chart available in the file of Government of Madhya Pradesh i.e. M/s Revati Cement Pvt. Ltd. and A-1 M/s KSSPL were recommended jointly for Thesgora- B/Rudrapuri coal block. Though as already mentioned PW-11 S.K. Mishra has categorically denied the suggestion that while coming to attend the Screening Committee meeting he was carrying alongwith him the entire file of Government of Madhya Pradesh but even if it is presumed for the sake of arguments that PW-11 S.K. Mishra was indeed carrying the entire file with him then also the minutes of 36th Screening Committee meeting Ex. PW 13/L (colly) are completely silent as to the reasons for which M/s BLA Power Ltd. was not recommended or as to why M/s Revati Cement Pvt. Ltd. or A-1 M/s KSSPL were recommended. The minutes are also silent that status of next two most suitable companies was ascertained not only as per the criteria adopted by State Government of Madhya Pradesh but also from the file of Government of Madhya Pradesh as was available with PW-11 S.K. Mishra. It is not in dispute that the application of M/s BLA Power Ltd. was sent to Government of Madhya Pradesh for its views/comments by MOC only. It is also not in dispute that M/s BLA CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 296 of 350 Power Ltd. appeared before 36th Screening Committee which was constituted to screen proposals of non-power sector companies only. It is also not in dispute that M/s BLA Power Ltd. also made a presentation before the Screening Committee. Though the circumstances in which M/s BLA Power Ltd. came to be invited for presentation before 36th Screening Committee meeting are also not beyond the shadows of suspicion. There is on record a letter written by M/s BLA Power Ltd. dated 10.10.2007 Ex. PW 13/O (At page 153 in D-9) addressed to A-6 K.C. Samria. In the said letter M/s BLA Power Ltd. had requested A-6 K.C. Samria while making a reference to a meeting which its Managing Director Sh. Anup Aggarwalla had with A-6 K.C. Samria on 08.10.2007, that their application may be sent to Ministry of Power for their views. There is however also available on record, one typed note dated 08.10.2007 (available at page 152 in D-9). In the note it is stated that from out of 38 coal blocks earmarked by Ministry of Coal for allocation, 15 have been specifically earmarked for power sector.  As regard other 19 coal blocks it was stated that they were earmarked for "other". It was thus stated that it would be proper for MOC to allot these 19 blocks to power generating companies also as they were not specifically earmarked for any category of end users. Though it is not ascertainable from the said note as to who prepared it but the said note was marked by A-6 K.C. Samria to Under Secretary, CA-I, Section (PW-13 V.S. Rana) on 08.10.2007 itself with an endorsement as follows:
CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 297 of 350 "If this is true than we need to send these applications to MOP for their comments."
398. Though the notings in the MOC file shows that a proposal thereafter mooted for sending application of such companies to Ministry of Power was turned down by the then Minister of State for Coal, Sh. Dasari Narayan Rao after both A-4 H.C. Gupta and A-5 K.S. Kropha proposed that these coal blocks reserved for "other" shall be considered only for companies engaged in such end use other than power. However despite such a refusal by Minister of State for Coal admittedly M/s BLA Power Ltd. was invited to make a presentation before 36th Screening Committee and its representative i.e. Sh. Anup Aggarwalla, Managing Director did appear to make presentation before the 36th Screening Committee.
399. Thus the circumstances in which M/s BLA Power Ltd. came to be invited for making presentation before the 36th Screening Committee which was constituted to consider applications of only such companies who were not engaged in generation of power is also a strong indicator not only of the casual manner in which the coal block allocation process was handled in MOC but also raises fingers of suspicion upon the conduct of MOC officers in handling of the entire coal block allocation process.
400. Be that as it may, the fact remains that the application of M/s BLA Power Ltd. was sent to Government of Madhya Pradesh by MOC and after considering various factors, Government of Madhya Pradesh recommended the said company for allocation of Thesgora-
CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 298 of 350 B/Rudrapuri coal block. The company M/s BLA Power Ltd. was thereafter also invited by MOC to appear before 36th Screening Committee and to make a presentation and submit a feedback form and the company duly complied with the same. Thus in these circumstances even if the claim of MOC officers that since M/s BLA Power Ltd. was proposing to establish a power project and Thesgora-B/Rudrapuri coal block was reserved for non-power sector companies so it could not have been recommended for the said coal block is accepted as a true and correct reason then also the least which could have been done was to mention these very reasons in the minutes of the meeting. It could have been explained in the minutes itself as to under what circumstances the application of M/s BLA Power Ltd. was sent to Government of Madhya Pradesh or under what circumstances the said company was invited to make presentation before the Screening Committee even though 36th Screening Committee was considering the applications qua only such coal blocks as were reserved for non-power sector companies. Similarly if as per the claim of accused MOC officers, the merits of next two best placed companies i.e. M/s Revati Cement Pvt. Ltd. and A-1 M/s KSSPL were pointed out by PW-11 S. K. Mishra only then again for reasons best known to the accused persons minutes Ex. PW 13/L (colly) are completely silent in this regard. In fact the minutes of 36th Screening Committee as have been reproduced above are so casual and cryptic in nature in as much as nothing is ascertainable as to on what factors any given applicant company as compared to other applicant companies was recommended for CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 299 of 350 allocation of any given coal block by the Screening Committee. It is also not ascertainable from the minutes as to whether the methodology adopted by Government of Madhya Pradesh in assigning various points to different applicant companies as referred to in their files was also considered or not by the Screening Committee members or only the final points as were assigned to various applicant companies were only considered. It is also not ascertainable from the minutes as to in what manner the various factors which were to govern the inter-se priority of the applicant companies and as were mentioned in the guidelines governing allocation of coal blocks issued by MOC were considered.
401. Apart from the aforesaid circumstances, it will be also worthwhile to mention that in the minutes of meeting held on 11.05.2007, it was decided that CMPDIL will carry out an exercise to identify the applicant companies that have minimum net-worth of 20% of the investment required for projected capacity of end use projects. In fact from the draft minutes Ex. DW 12/PX-7 of the said meeting it is clear that Secretary Coal (i.e. A-4 H.C. Gupta) had himself suggested that 20% of the investment required for projected capacities of end use plants may be accepted as a bench mark criteria for first point of scrutiny. However irrespective of the fact as to whether A-4 H.C. Gupta so proposed or not (since in the final approved minutes Ex. PW 13/DX-16 it is not mentioned that this suggestion was proposed by Secretary, Coal, H.C. Gupta) the fact remains that in the meeting held on 11.05.2007 CMPDIL was directed to prepare a chart so as to CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 300 of 350 identify the applicant companies that were having minimum net-worth of 20% of the investment required for projected capacity of end use project. Once again the minutes of 36th Screening Committee Ex. PW 13/L (colly) are completely silent as to whether any such chart was prepared and submitted by CMPDIL or not and if submitted then whether the same was taken into consideration or not. As regard application Ex. PW 1/F (colly) (D-10) of A-1 M/s KSSPL it is clearly evident that for its ultimate capacity of 0.6 MTPA the total proposed investment was stated as Rs. 600 crores. Thus even if the highly inflated claim of A-1 M/s KSSPL regarding its net-worth as on 31.03.2006 i.e. Rs. 64.75 crores is considered then also the company was well short of having 20% minimum net-worth of the investment required for the proposed ultimate capacity of its end use project. Even the highly inflated figure of net-worth of the company was only about 11% of the proposed investment figure of Rs. 600 crores as mentioned in the application itself.
402. I am still not on the issue that the actual net-worth of A-1 M/s KSSPL as already discussed in the earlier part of judgment was much below Rs. 64.75 crores. What is however important to note is that even the said wrongly mentioned figure did not fulfill the criteria as decided by Screening Committee in its meeting held on 11.05.2007 for the first stage of scrutiny.
403. However even if it is argued that CMPDIL was merely asked to prepare a chart and the said criteria was never followed by Screening Committee then in those circumstances it was imperative CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 301 of 350 that if such a fact was mentioned in the initial meeting held on 11.05.2007 wherein all the members of Screening Committee except the State Government representatives were present then a reference ought to have been made in the final minutes Ex. PW 13/L (colly) as to whether such a criteria is being followed or not coupled with reasons for the said decision.
404. The aforesaid various aspects of the entire coal block allocation process are being simply highlighted by referring to various documents which stand conclusively proved on record beside also from the deposition of prosecution witnesses and that of defence witnesses only with a view to show that neither the minutes of meetings of 36th Screening Committee which was admittedly an inter-departmental body were drawn up in accordance with para 54 (4) (c) of Manual of Office Procedure nor they speak of any reason whatsoever for the decision taken during the meeting. Nothing is ascertainable from the minutes as to what factors prevailed with the Screening Committee in recommending one company for allocation of any given coal block as compared to other applicant companies who were also interested in the allocation of said coal block in their favour. Moreover as earlier mentioned the minutes Ex. PW 13/L (colly) are completely silent as to whether the recommendation of Screening Committee were unanimous or were by way of broad consensus. Thus in the overall facts and circumstances as discussed above it can not be presumed that the final recommendations of 36th Screening Committee were unanimous in nature.
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405. At this stage I also deem it appropriate to mention that while this Court has neither got any jurisdiction nor any intention to review the policy laid down by the government of the day which may govern the process of allocation of captive coal blocks to private applicant companies as the same is the exclusive prerogative of the government and lies within their exclusive jurisdiction. It is for the government only to decide as to on what factors or in what manner the Nationalised natural resources of the country will be better distributed and to whom the same shall be allocated. However the important issue to be taken care of is that once a policy has been laid down by the Government in this regard and the executive branch of the Government is directed to implement the same then it can never be claimed that such action of the executive wing can not be subjected to judicial scrutiny. While every action of the executive can be the subject matter of judicial scrutiny unless specifically barred by statute or law framed in this regard but the Court does raise question marks over any such decision so taken by the executive wing if it is found that the same is ultra vires to the guidelines or policy as may be decided by the Government. Thus if such a decision is per-se illegal or is dehors the guidelines or policy laid down governing exercise of such discretion then the Courts of law will be well within their jurisdiction to carry out judicial scrutiny of any such decision or the process of arriving at any such decision. It is in fact this very exercise which was undertaken by Hon'ble Supreme Court vide its detailed order dated 25.08.2014 passed in the case Manohar Lal Sharma case (Supra), consequently resulting in cancellation of all CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 303 of 350 such coal blocks allocated by all the 36 Screening Committees of MOC. Hon'ble Supreme Court made detailed observations about the working of all 36 Screening Committees and the minutes recorded by them. Similar observations were recorded by Hon'ble Supreme Court as regard the minutes of 36th Screening Committee also. The same read as under:
"149. In the 36th meeting, which was held on 07.12.2007-08.12.2007, 07.02.2008-08.02.2008 and 03.07.2008, the Screening Committee considered allocation of 23 coal blocks earmarked for non-power sector. For these 23 coal blocks earmarked for non-power sector, 674 applications were submitted by 184 companies for allocation. Some companies had applied for more than one block and some had submitted more than one application for single block for different end use plants located at different locations. The geological reserve of 23 blocks## was noted by the Screening Committee. The minutes of the 36th meeting show that the Committee decided to recommend blocks earmarked for pig iron (coking coal) jointly to two or more than two companies and nineteen blocks earmarked for other end- uses/non-cooking coal were recommended for allocation to single companies as well as jointly to two or more companies. The minutes of 36 th meeting do not contain the particulars showing consideration of each application. There is no assessment of comparative merits of the applicants who were selected for recommendation. The minutes do not disclose how and in what manner the selected companies meet the norms fixed for inter se priority. Many of the selected companies were neither recommended by the State Government nor by the Administrative Ministry. Some of them were recommended by the State Government but not recommended by the Administrative Ministry while one of them was not recommended by the State Government but recommended by the Administrative Ministry. For Rajhara North (Central & Eastern) coal block, Vini Iron & Steel Udyog Ltd. had no recommendation by the State Government or by the Administrative Ministry. Similarly, for Thesgora-B/Rudrapuri coal block, Revati Cement P. Ltd. did not have recommendation either from the State Government or from the Administrative Ministry. As regards Tandsi-III and Tandsi-III (Extn.), Mideast Integrated Steels Ltd. did not have recommendation from the CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 304 of 350 State Government. Similarly, as regards Thesgora-B/Rudrapuri, Kamal Sponge Steel & Power Limited had no recommendation from the State Government. As regards Moira Madhujore coal block, Ramswarup Lohh Udyog Ltd. had no recommendation from the Administrative Ministry.
150. From the above discussion, it is clear that 21 coal blocks stood allocated to private companies in pursuance of Screening Committee's recommendations during the period from the 1 st meeting held on 14.07.1993 till the 21 st meeting held on 19.08.2003. For the period from 04.11.2003 (22 nd meeting) to 18.10.2005 (30th meeting) in pursuance of Screening Committee's recommendations, 26 coal blocks stood allocated to private companies. Following 32nd meeting held on 29.06.2006/30.06.2006 till the 34 th meeting on 07.09.2006/08.09.2006, in pursuance of the recommendations made by the Screening Committee, two coking coal blocks were allocated to private companies and twelve non-coking coal blocks were allocated to private companies. In pursuance of the recommendations made by the Screening Committee in 35 th and 36th meetings, 33 coal blocks were allocated to private companies. Some of the coal block allocations made to the private companies have been de-allocated from time to time. For consideration of legality and validity of allocations made to such companies, it is not necessary to deal with de-allocation aspect. It needs no emphasis that assuming that the Central Government had power of allocation of coal blocks yet such power should have been exercised in a fair, transparent and non- arbitrary manner. However, the allocation of coal blocks to the private companies pursuant to the recommendations made by the Screening Committee in 36 meetings suffers from diverse infirmities and flaws which may be summarized as follows: 1st Meeting to 21st Meeting
1.. . . . .
. . . . .
2.
3.
4.
5.
6.
CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 305 of 350
7. . . . . .
. . . . .
8.
9.
11.
12.
13.
14.
15.
16.
17.
18.
20.
21. . . . . .
22. The minutes of the 36th meeting do not contain the particulars showing consideration of each application for allocation of 23 coal blocks earmarked for non-power sector. There is nothing in the minutes to indicate how and in what manner the selected companies meet the norms fixed for inter se priority. Many of the selected companies were neither recommended by the State Government nor by the Administrative Ministry. Some of them were recommended by the State Government but not recommended by the Administrative Ministry while one of them was not recommended by the State Government but recommended by the Administrative Ministry. Many companies which had failed to secure allocations earlier yet they were recommended. The Screening Committee failed to consider CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 306 of 350 capability and capacity of the applicant in implementing the projects.
151. The entire exercise of allocation through Screening Committee route thus appears to suffer from the vice of arbitrariness and not following any objective criteria in determining as to who is to be selected or who is not to be selected. There is no evaluation of merit and no inter se comparison of the applicants. No chart of evaluation was prepared. The determination of the Screening Committee is apparently subjective as the minutes of the Screening Committee meetings do not show that selection was made after proper assessment. The project preparedness, track record etc., of the applicant company were not objectively kept in view."
(Emphasis supplied by me)
406. Though it was argued by Ld. Counsels for the accused persons that the observations made by Hon'ble Supreme court in the said order dated 25.08.2014 can not be referred to by this Court in the present proceedings as Hon'ble Supreme court in the said matter never dealt with the issue of criminality of the persons involved and had only discussed the manner in which various coal blocks were allocated to different applicant companies in contravention of MMDR Act, 1957 and CMN Act 1973. In this regard it would be suffice to state that the aforesaid observations of Hon'ble Supreme Court either qua the importance of coal towards industrial development of the country or as regard nature of minutes recorded by 36th Screening Committee meeting or even as regard the lack of objectivity and transparency in the working of Screening Committee are being referred to only show that the conclusions arrived at by this Court on the basis of evidence led in the present trial coupled with documents which stands conclusively proved on record, are not based on presumptions much less on conjectures and surmises. It is only the CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 307 of 350 process of Screening Committee which was analysed and discussed by Hon'ble Supreme Court which is being referred to over here. No conclusion is however being drawn as regard the criminality of the persons involved on the basis of any such observations of Hon'ble Supreme Court as were made in the said order dated 25.08.2014.
407. Thus from the aforesaid discussion it is clear that the manner in which the Screening Committee functioned or dealt with the issue of allocation of various coal blocks and as is reflected from the minutes Ex. PW 13/L (colly), the recommendations even qua Thesgora-B/Rudrapuri coal block in favour of A-1 M/s KSSPL were not based on any objective or transparent criteria. No such elements are discernible either from the minutes of 36th Screening Committee meetings or from the files of MOC. In fact Ld. Counsels for the accused persons are now trying to present various reasons for the decision taken by them and are now calling upon this Court to read all such reasons as inherent in the said minutes and that too after carrying out a detailed comparative analysis of applications of various applicant companies who had applied for allocation of Thesgora- B/Rudrapuri coal block including that of A-1 M/s KSSPL. In this regard I may once again state that to carry out such a comparative analysis now is primarily based on a misconception. As already discussed at length and demonstrated that the application of A-1 M/s KSSPL was bound to be rejected at the initial stage itself being incomplete and thus it ought not to have been sent either to Administrative Ministry i.e Ministry of Steel or to State Government of CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 308 of 350 Madhya Pradesh much less placed before the Screening Committee. Had MOC officers been vigilant enough then the question of considering application of A-1 M/s KSSPL for allocation of any coal block much less Thesgora-B/Rudrapuri coal block would not have arisen at all. This Court thus does not find any necessity to undertake any such comparative analysis of applications of various applicant companies who had applied for Thesgora-B/Rudrapuri coal block. Even otherwise as already mentioned such a comparative analysis with reasons thereof ought to have been mentioned in the minutes Ex. PW 13/L (colly) itself. It can not be stated by anyone that reasons would have been disclosed later on to all such authorities who would have questioned the correctness of their decision. As already mentioned the minutes in themselves are cryptic in nature and does not disclose any reasons which prevailed with the Screening Committee in making recommendation for any given coal block in favour of any company much less in favour of A-1 M/s KSSPL.
408. It is for this reason only that in the earlier part of my judgment also I have observed that on account of such nature of acts of omission and commission directly attributable to accused MOC officers, the application of A-1 M/s KSSPL despite being incomplete came to be placed before the Screening Committee and the same was not only considered but was even recommended for allocation of a coal block. It is in this light the claim made by A-4 H.C. Gupta and A-5 K.S. Kropha that irrespective of the applications being complete or not, all the applications were to be placed before Screening CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 309 of 350 Committee, needs to be seen and appreciated. The said claim as earlier also stated is clearly an attempt to cover up their initial acts of omission and commission in not ensuring that the applications were duly checked for their eligibility and completeness in accordance with the guidelines issued by MOC or in ensuring that such applications which were not complete in terms of the guidelines issued by MOC ought to have been rejected and should not have been placed before the Screening Committee.
409. Thus at the cost of repetition, it may be stated that the various acts of omission and commission as are attributable to the accused MOC officers clearly show that they so acted consciously and deliberately as part of a well designed scheme of things. In fact the subsequent conduct of MOC officers while sending recommendation of Screening Committee to Prime Minister as Minister of Coal and thereafter at post-approval stage i.e. after the recommendations of Screening Committee were approved by Prime Minister as Minister of Coal further supports the aforesaid conclusion.
(H) Checking of applications post-approval of recommendations of Screening Committee by Prime Minister as Minster of Coal.
410. It was pointed by Ld. Counsels for the accused persons that in the order dated 13.10.2014, this Court while disagreeing with the final conclusion arrived at by the CBI to close the case observed that even in the selection of Lower Divisional Clerks in Government of India where number of applicants is usually too large, the scrutiny or CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 310 of 350 verification of their testimonials/certificates may not be though carried out at the initial stage i.e. before permitting them to appear in the written examination but certainly at a subsequent stage when the selection process is over but prior to issuance of appointment letters, the testimonials/certificates of the selected/short listed candidates are checked. The purpose is only to ensure that no candidate may get appointment on the basis of fictitious documents and at least their claims as made in their application be cross-checked and verified from their certificates. It was however submitted by Ld. Counsels for the accused persons that the said analogy as is sought to be drawn by this Court does not apply to the facts and circumstances of the present case. It was submitted that admittedly MOC had issued specific guidelines governing allocation of captive coal blocks and the said guidelines were completely silent about any such scrutiny or checking of applications post approval of recommendation of Screening Committee by the Prime Minister as Minister of Coal. It was thus submitted that introduction of any such criteria now at this stage of the matter is certainly not permissible under the law and no liability in this regard can be now fixed upon the accused persons.
411. Though on the face of it the submissions made by Ld. Counsels for the accused MOC officers appears to be attractive and well founded but if the overall facts and circumstances of the case are seen coupled with the manner in which the guidelines have been tweaked or not followed at all by accused MOC officers then it will be found that the analogy sought to be drawn by this Court at the initial CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 311 of 350 stage itself while rejecting the closure report filed by CBI applies with full force to the facts and circumstances of the present case. The reasons are ample and clear.
412. Admittedly the purpose of checking the applications for their eligibility and completeness as mentioned in the guidelines was only to ensure that application of no such company which is either not eligible or whose application is not complete is considered by MOC much less by the Administrative Ministries or the State Governments or the Screening Committee. The intention was clear and apparent that all such applications should be rejected at the initial stage of the process itself. It is in these circumstances the reasons adduced by the accused persons on account of which checking of applications could not be carried out need to be appreciated. It was submitted that as the applications were too many i.e. more than 1400 applications and there was acute shortage of staff in CA-I, Section and also due to lack of technical knowledge of the matters, CA-I, Section could not carry out the checking of the applications which were even otherwise voluminous in nature. Apart from such an explanation coming on record from the mouth of PW-13 V.S. Rana, it also now stands well proved that the present three accused persons who were senior officers of MOC i.e. A-4 H.C. Gupta, A-5 K.S. Kropha and A-6 K.C. Samria were well aware of the process which was undertaken qua the applications in MOC till 11.05.2007. As already discussed the three accused MOC officers can not now claim that they were not aware of the manner in which the applications were dealt with in CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 312 of 350 MOC. The guidelines as were issued by MOC governing allocation of captive coal blocks were also admittedly to the knowledge of all the three accused MOC officers. Thus even though it was to the knowledge of the three accused MOC officers that the guidelines issued by MOC governing allocation of coal blocks have not been followed in as much as the applications have not been checked for their eligibility and completeness but they still also did not initiate any action at that stage to ensure compliance with the guidelines titled "Processing of Application". It is in these circumstances it becomes important to note that in the guidelines itself it was stated that after the Screening Committee would make its recommendation then on the basis of recommendation of the Screening Committee, Ministry of Coal will determine the allotment. However while forwarding the file to Prime Minister as Minister of Coal for approval of the recommendation of the Screening Committee, it was no where mentioned by any of the MOC officers much less by A-4 H.C. Gupta that the applications have not been checked for their eligibility and completeness. There was thus no reason in the facts and circumstances of the case for the Prime Minister as Minister of Coal to presume that the guidelines issued have not been complied with. It is not only apparent from the record but it is certainly permissible to draw a presumption in the overall facts and circumstances of the case that Prime Minister as Minister of Coal proceeded to consider the recommendation of the Screening Committee on the assumption that the applications must have been checked in MOC for their eligibility and completeness or that the guidelines must have been CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 313 of 350 duly followed even by the Screening Committee. Thus if in the aforesaid facts and circumstances, the contention of Ld. Counsels for the accused persons is considered that the guidelines were silent as regard post approval checking or scrutiny of the applications for their eligibility and completeness then it will be worth mentioning that the MOC officers have all through the coal block allocation process have rather chosen to act as per their own whims and fancies and even beyond the purview of guidelines. A clear example of such an act on their part was in calling upon each of the applicant company for a presentation before the Screening Committee and to also ask them to submit a feedback form titled "Latest Status of End Use Project".
413. Before proceeding further, I may state as a mark of caution that I am not questioning the justification for such a decision of MOC in calling upon the companies to make a presentation before the Screening Committee or to submit a feedback form titled "Latest Status of End Use Project" as the same may be a step to ensure better appreciation of claims made by applicant companies or to ensure more objectivity and transparency in the matter. However the issue which is under consideration now is whether the guidelines issued by MOC provided for any such mechanism for calling upon the applicant companies to make presentation before the Screening Committee and to also submit a feedback form titled "Latest Status of End Use Project" or not. The answer in this regard is a clear "NO". In fact the minutes Ex. PW 13/DX-16 of meeting held on 11.05.2007 itself shows such a concern on the part of MOC officers. The MOC CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 314 of 350 officers as members of Screening Committee were conscious of this fact that the guidelines issued by MOC were completely silent as regard any provision of making presentation by applicant companies or submission of any feedback form. It is primarily for this reason only that the 36th Screening Committee even proceeded to consider applications of those companies which had not appeared before the Screening Committee to make any presentation or to submit any feedback form. (The issue as to whether the application of A-1 M/s KSSPL could have been considered by the Screening Committee even when the company as per its own claim had not made any presentation before the Screening Committee or no feedback form was submitted by it shall be separately dealt with by me).
414. Thus in view of my aforesaid discussion, it is clear that the guidelines issued by MOC were though the guiding factors as per which the allocation of captive coal blocks was to be made by MOC but MOC officers certainly deviated from the said guidelines as and when deemed necessary by them. Thus it was in these circumstances observed by this Court that applications of the few selected companies who were finally recommended by the Screening Committee for allocation of various coal blocks and which recommendations were approved by Minister of Coal could have been checked at least before the issuance of allocation letters in order to ensure that the applications of such companies were complete or that they were eligible for allocation of a captive coal block. Thus in my considered opinion the checking of applications CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 315 of 350 even at the stage of post-approval of recommendation of Screening Committee by Prime Minister as Minister of Coal for their eligibility and completeness would have not only ensured a greater degree of objectivity and transparency in the entire coal block allocation process but it would have also ensured that the important Nationalised natural resources of the country i.e. coal does not go into the hands of any ineligible company or a company whose application was incomplete in terms of the guidelines issued by MOC governing allocation of coal blocks.
415. At this stage, I may also mention that by suggesting the aforesaid course of action which any reasonable and prudent person who is saddled with responsibility to protect larger public interest in the allocation of important Nationalised natural resources of the country would have taken. I am not at all laying down any new methodology or policy directions which ought to have governed the allocation of captive coal blocks. It is only that if the MOC officers found complying with the guidelines issued by MOC governing allocation of captive coal blocks a difficult preposition at the initial stage of the process and if they were acting bonafide and in good faith then keeping in mind the important nature of task being performed by them the checking of applications for their eligibility and completeness as was required to be carried out at the initial stage itself could have been done at least prior to issuance of allocation letters to the selected companies. Thus this Court is not trying to introduce any new guidelines in the already issued guidelines of MOC CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 316 of 350 but the methodology as stated above would have not only facilitated due compliance with the guidelines issued by MOC but would have also taken care of various other constraints such as shortage of staff etc. in complying with the guidelines at the initial stage itself. Moreover as mentioned above the MOC officers introduced various other steps in the process of allocation of coal blocks and which steps were certainly not provided for in the guidelines.
416. Thus once again it can not be stated or believed that due to inefficiency or incompetence of the accused MOC officers the applications could not be checked for eligibility and completeness. The overall facts and circumstances are rather strongly suggestive or indicative of existence of malafide intention on the part of accused MOC officers in procuring/obtaining allocation of a captive coal block in favour of A-1 M/s KSSPL by abusing their position and the said act has also been done by them with complete disregard to public interest much less without public interest.
(I) Circumstances in which recommendation for allocation of Thesgora-B/Rudrapuri coal block was made in favour of A-1 M/s KSSPL by 36th Screening Committee.
417. As regard the proceedings of 36th Screening Committee meeting wherein the recommendations were made for Thesgora- B/Rudrapuri coal block in favour of A-1 M/s KSSPL, it will be pertinent to mention that as per A-1 M/s KSSPL, A-2 Pawan Kumar Ahluwalia and A-3 Amit Goyal, no presentation was made before the Screening Committee on 08.12.2007 and also no feedback form was submitted CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 317 of 350 on behalf of A-1 M/s KSSPL to the Screening Committee. The minutes of 36th Screening Committee though mentions that some companies were not able to present their case due to delay in receipt of notice. Names of four such companies who so represented to MOC are M/s Shanno Business, M/s Shanti GD Ispat, M/s Special Blasts Limited and M/s Eastern Steel and Power Limited. The said four companies however sent their respective updated information to MOC. The said information so submitted by the said four companies was accordingly placed before the Screening Committee for consideration. The minutes however in para 6 also states that some of the companies did not appear for presentation despite notices issued to them through individual letters as well as through MOC website. However the applications of such companies were also considered by the Screening Committee as per the information submitted by them in their application forms. In para 13 and 14 of the minutes Ex. PW 13/L (colly) the various factors which were taken into consideration by the Screening Committee in arriving at its decision are mentioned as follows:
"13. The Screening Committee, thereafter, deliberated at length over the information furnished by the applicant companies in the application forms, during the presentations and subsequently. The Committee also took into consideration the views/'comments of Ministry of Steel, Department of Industrial Policy and Promotion, State Governments concerned, guidelines laid down for allocation of coal blocks, and other factors as mentioned in paragraphs 8 to 12 above, as regards inter-se distribution of shares among the joint allocattees, it was decided by the Committee that capacity of end-use projects shall be determined as follows:
i) The capacity indicated in the application form;
ii) The capacity indicated in the MoU entered into between CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 318 of 350 the applicant company and the State Govt. concerned, wherever applicable;
iii) The realistic capacity addition likely to materialize by the year 2010, as assessed by the nodal Ministry/Department concerned;
Whichever is the lowest.
14. Based on the data furnished by the applicants, and the feedback received from the State Governments, the Ministry of Steel and Department of Industrial Policy and Promotion, the Committee assessed the applications having regard to matters such as techno-economic feasibility of end-use project, status of preparedness to set up the end-use project, past track record in execution of projects, financial and technical capabilities of applicant companies, recommendations of the State Governments and the Administrative Ministries concerned etc. the Screening Committee, accordingly decided to recommend for allocation of coal blocks in the manner as follows:"
S. State Name of Geological Tentative Mine Name of End Use Location Share No. the Block Reserves Extractable Capacity Company Plant Reserves Capacity (in MTPA) 1 2 3 4 5 6 7 8 9 10 BLOCKS EARMARKED FOR PIG IRON (Coking coal) 1 2 3...
BLOCKS EARMARKED FOR OTHER END USES - NON COKING COAL 1 2
3....
418. Moreover various notings in the files of MOC shows that the applications of all such companies who did not appear to make presentation before the Screening Committee were also considered as it was observed by the senior officers of MOC that making of presentations and submission of feedback forms was not a mandatory requirement as per the guidelines issued by MOC governing allocation of captive coal blocks.
CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 319 of 350
419. Though one may say that since the guidelines issued by MOC did not provide for any mechanism whereby each applicant company was to be called upon to make a presentation before the Screening Committee or to submit any feedback form titled "Latest Status of End Use Project" but as earlier also mentioned the said exercise was decided upon by MOC officers in consultation with other members of Screening Committee so as to have latest update on the information furnished by the applicant companies in their respective application forms. Since considerable period had elapsed from the time the applications were invited by MOC so it was thought just and appropriate that applicant companies may be permitted to submit latest status of their end use projects.
420. Thus as earlier also mentioned the intention to adopt such a practice was to achieve the ultimate goal of screening the applications in an objective and transparent manner. The final aim being to ensure that the important Nationalised natural resources of the country i.e coal are distributed or allocated in an objective and transparent manner lest the same may go into the hands of any unscrupulous company.
421. Thus if in the light of aforesaid objectives the proceedings of 36th Screening Committee and especially as were held in its meeting held on 03.07.2008 which stands reflected from the minutes Ex. PW 13/L (colly) are seen then it is found that for reasons best known to the MOC officers who finally prepared the minutes in MOC, not only the ultimate objectives which were to be achieved were lost CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 320 of 350 somewhere but even the process of reaching those objectives became hazy and shrouded with grave shadows of doubts. A perusal of the minutes of the meeting held on 11.05.2007 Ex. PW 13/DX-16 (colly) clearly shows that one of the concern of MOC officers as well as representatives of other members of Screening Committee present was to filter out non-serious applicants. It was mentioned in the said minutes that if the non-serious applicants are filtered out then the same would ensure more objective and critical evaluation of the competent applicants. It is however entirely a different matter that later on it was decided that instead of filtering out non-serious applicants at the initial stage by laying down certain bench mark criteria in conformity with the broad parameters indicated in the guidelines, it would be advisable that all applicants be called for personal hearing. The purpose of referring to the aforesaid minutes of meeting held on 11.05.2007 repeatedly is to emphasise that though all applicant companies were decided to be called upon for making a presentation before the Screening Committee in order to avoid any legal challenge to the process at a later stage by any such applicant company who may not be called for making presentation before the Screening Committee but the ultimate objective to filter out non- serious applicants still remained to be achieved.
422. Thus if in the light of aforesaid objective to be achieved and the process adopted for achieving the said objective, the minutes of 36th Screening Committee Ex. PW 13/L (colly) are seen then it is found that applications of all such applicant companies who chose to CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 321 of 350 appear before the Screening Committee and made presentation before it while also submitting the feedback form titled "Latest Status of End Use Project" was considered alongwith applications of all such other companies who despite service of notice chose not to make any presentation before the Screening Committee and also did not submit any feedback form titled "Latest Status of End Use Project". What could have been a better criteria then this to filter out non-serious applicants. Even if the process of calling upon the applicant companies to make a presentation before the Screening Committee and to submit a feedback form titled "Latest Status of End Use Plant" is not read into the guidelines issued by MOC governing allocation of coal blocks then also a right to give personal hearing to each of the applicant companies by the Screening Committee has to be read as inbuilt in the entire process of allocation of captive coal blocks. It needs to be hammered repeatedly that the matter being dealt with by MOC and the Screening Committee was allocation of important Nationalised natural resources of the country i.e. coal which was crucial for the infrastructural development of the country. It need not be emphasised that during such process the Screening Committee keeping in view the principles of natural justice thought it appropriate to give personal hearing to all the applicant companies even though the said procedure was alien to the guidelines. The said principles of natural justice are thus to be necessarily read as inbuilt or inherent in the guidelines itself. However on the other hand, the proceedings of 36th Screening Committee meeting shows that a company which as per its own claim did not make any presentation and also did not CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 322 of 350 submit any feedback form clarifying the latest status of its end use project was not only considered by the Screening Committee but was even recommended for allocation of a captive coal block. It is the claim of A-3 Amit Goyal himself that he had gone to Screening Committee meeting venue only at the insistence of A-2 Pawan Kumar Ahluwalia in order to answer any query, if raised, by the Screening Committee members regarding the audited balance sheets which he was carrying with him. It is also his case and not disputed even by A- 2 Pawan Kumar Ahluwalia that due to certain unavoidable circumstances A-2 Pawan Kumar Ahluwalia could not appear before the Screening Committee and thus A-3 Amit Goyal who was not even an employee of the company A-1 M/s KSSPL but was only its Statutory Auditor entered the meeting hall and just informed about the inability of A-2 Pawan Kumar Ahluwalia in not being able to appear before the Screening Committee.
423. Strangely enough the accused MOC officers have though stated that if some representative of A-1 M/s KSSPL had appeared before the Screening Committee and his attendance has been marked in the attendance sheets kept at the meeting venue then he must have made the presentation. However neither the records of MOC nor the minutes of 36th Screening Committee Ex. PW 13/L (colly), states as to which of the applicant companies did not appear to make presentation or to submit feedback form. The minutes are completely silent as to whether anyone appeared on behalf of A-1 M/s KSSPL or expressed his inability to make any presentation as the CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 323 of 350 authorised representative of the company could not appear due to certain unavoidable circumstances.
424. Be that as it may, as no record of any presentation, if made by A-1 M/s KSSPL or feedback form, if submitted to the Screening Committee is available and the accused persons themselves are also claiming that neither any presentation was made nor any feedback form was submitted on behalf of A-1 M/s KSSPL to 36th Screening Committee so I proceed to consider the matter further with the assumption that no presentation was made on behalf of A-1 M/s KSSPL and no feedback form was even submitted on behalf of the company. Thus in these circumstances it becomes important to note that if such a company can not be classified as a non-serious applicant company then which other kind of company, the Screening Committee was looking for to classify them as non-serious applicants. It is a classic example of an applicant company which neither made any presentation before the Screening Committee nor it submitted any feedback form despite notice having been served upon it. It is also not the case like the four other companies whose names find mention in para 7 of the minutes Ex. PW 13/L (colly) who had subsequently sent their representations to MOC and the same were circulated to all the members of the Screening Committee for their information by MOC. Thus we have an applicant company like A-1 M/s KSSPL which admittedly as per the claim of accused persons neither made any presentation before the Screening Committee nor submitted any feedback form and even subsequent thereto did not try CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 324 of 350 to send its presentation and feedback form to MOC at a later stage so that it could be circulated to all the Screening Committee members but still the application of said company was not only considered by the Screening Committee but was also recommended for allocation of a captive coal block.
425. At this stage, it will be important to mention that in para 13 of the minutes, the Screening Committee in determining the capacity of end use projects took into consideration the following factors:
(i) The capacity indicated in the application form.
(ii) The capacity indicated in the MoU entered into between the applicant company and the State Govt. concerned, wherever applicable;
(iii) The realistic capacity addition likely to materialize by the year 2010, as assessed by the nodal Ministry/Department concerned.
426. Similarly in para 14, it is stated that the Screening Committee assessed the applications having regard to matters such as techno- economic feasibility of end-use project, status of preparedness to set up the end-use project, past track record in execution of projects, financial and technical capabilities of applicant companies, recommendations of the State Governments and the Administrative Ministries concerned etc.
427. Thus even if the aforesaid factors were considered by the Screening Committee then it is found that in the absence of no presentation having been made by A-1 M/s KSSPL and no feedback form having been submitted, the realistic capacity addition likely to CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 325 of 350 materialize by the year 2010 of A-1 M/s KSSPL in the light of capacity indicated in the application form or claims made in this regard in the application form could not have been assessed by the Screening Committee in an objective and transparent manner.
428. As earlier discussed, one of the likely reason for not making presentation before the Screening Committee and non-submission of feedback form by A-1 M/s KSSPL was that in its initial application form Ex. PW 1/F (colly) (D-10), it was claimed that by the year 2007, the total production capacity of sponge iron of the company shall be 0.3 MTPA. Thus if the company was to make presentation on 08.12.2007 i.e. just 23 days before the end of year 2007 and to also submit the latest status of its end use project then it would have been required to explain the delay in attaining the milestones as indicated in its application. The record as discussed above further shows that even in the year 2012 the installed capacity of sponge iron of A-1 M/s KSSPL was not more than 87000 tonnes per annum. Thus if the company A-1 M/s KSSPL and A-2 Pawan Kumar Ahluwalia had made its presentation before the Screening Committee or submitted the feedback form titled "Latest Status of End Use Project" then it would have either repeated the misrepresentations made in the application form regarding net-worth of the company and also as regard production capacity of sponge iron or in the alternative any correction if made in the said claims would have affected its chances of seeking allocation of a captive coal block as status/stage level of progress made and state of preparedness of the projects coupled with track CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 326 of 350 record and financial strength of the company were relevant factors for the Screening Committee to arrive at inter-se priority from amongst various applicant companies.
429. Moreover the minutes are completely silent as to in what manner the interse priority of various applicant companies were assessed or considered by the Screening Committee. Admittedly no such interse priority chart or interse merit chart was prepared or supplied to the members of the Screening Committee. The argument that if all such things would have been mentioned in the minutes then the minutes would have run into hundreds of pages, in my considered opinion is not even worth considering especially keeping in view the importance of matter being dealt with by the Screening Committee. The minutes as mentioned above are not only silent about the discussion which took place in the Screening Committee meeting but they does not even mention the factors on the basis of which any such interse priority or interse merit of the applicant companies was arrived at.
430. Thus from the aforesaid circumstances, it is clear that there was no criteria followed by 36th Screening Committee much less a discernible criteria followed by it in making its recommendation for allocation of Thesgora-B/Rudrapuri coal block in favour of A-1 M/s KSSPL. The manner in which A-1 M/s KSSPL has been recommended for allocation of a coal block despite its application being incomplete and it having not appeared before the Screening Committee to make any presentation or to submit feedback form CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 327 of 350 clearly shows as to how much arbitrary was the functioning of Screening Committee. I have also clearly discussed at length that the decision in the Screening Committee qua Thesgora-B/Rudrapuri coal block was primarily that of chairman i.e. A-4 H.C. Gupta. PW-11 S.K. Mishra has clearly stated that the final decision was not with his consent. It has also been shown that the mere signing of final recommendation sheets was not indicative of any unanimity amongst the Screening Committee members towards the final recommendations. The same were merely indicative of the fact that such decisions were finally taken by the Screening Committee on that day. Moreover in the overall scheme of things in which the entire matter of allocation of captive coal blocks was handled by MOC it is clearly evident that once the Screening Committee meetings were over than there was nothing left either for the concerned State Governments or for the Administrative Ministries to express their resentment or to raise any objections to the final recommendations of the Screening Committee. In fact the record also shows that the final minutes of 36th Screening Committee were subsequently prepared and finalised in MOC. All the three accused MOC officers were associated in the preparation, finalisation and approval of the said minutes. It is also not disputed that the said minutes were never sent to various members of Screening Committee for confirmation before they were sent to Prime Minister as Minister of Coal for approval. The recommendation of 36th Screening Committee thus came to be approved by Prime Minister as Minister of Coal. The said approval with certain observations of Prime Minister as Minister of Coal qua CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 328 of 350 some coal blocks [The said observations did not pertain either to Thesgora-B/Rudrapuri coal block or to company M/s KSSPL] were conveyed to MOC vide PMO note dated 21.07.2008 Ex. P-11. Thereafter the various notings in the files of MOC i.e Ex. PW 13/D (colly) (D-6A) clearly shows that MOC proceeded ahead to issue option/offer letters to joint allocattee companies and allocation letters to single allocatee companies. The fact however remains that no attention in the meantime was given to ensure that the final minutes, if not draft minutes, are sent to various members of Screening Committee. The option/offer letter was issued to A-1 M/s KSSPL and M/s Revati Cement Pvt. Ltd. on 05.08.2008. The purpose of referring to the aforesaid proceedings is only to highlight that there was in fact no occasion for either the State Governments or to the Administrative Ministries subsequent to the Screening Committee meeting held on 03.07.2008 to raise any objection. They could not have even known that the views expressed by them or difference of opinion as stated by them during the Screening Committee meeting will not find mention in the minutes.
431. Thus if in the light of aforesaid circumstances, coupled with the actual manner in which Screening Committee functioned as small Committees concerned with individual coal blocks then it is clearly apparent that it was primarily the decision of accused MOC officers led by A-4 H.C. Gupta. PW-11 S.K. Mishra clearly stated that in the discussion which took place qua Thesgora-B/Rudrapuri coal block in the Screening Committee he and the three MOC officers i.e. A-4 H.C.
CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 329 of 350 Gupta, A-5 K.S. Kropha and A-6 K.C. Samria only participated. He however claimed inability to recall as to whether representative of Administrative Ministry participated in the discussion or not. He also stated that the final decision was not unanimous as it was not with his consent. It has also been already discussed at length that the minutes Ex. PW 13/L (colly) of 36th Screening Committee are also completely silent as to whether the final recommendations were with unanimity of all members present or not. It has also been discussed that while sending the file containing recommendations of Screening Committee to Prime Minister as Minister of Coal for approval nothing was mentioned that the guidelines issued by MOC governing allocation of coal blocks have not been followed even though the said fact was to the knowledge of accused MOC officers. It has also been discussed that even subsequent to approval of recommendation of Screening Committee by Prime Minister as Minister of Coal no effort was still made by accused MOC officers to ensure that at least the applications of selected companies which were only 47 in number are checked for their completeness and eligibility. It has also been discussed at length that the task of checking the applications of only selected companies would have been much easier then to check the applications of about 674 companies which were considered by 36th Screening Committee.
432. Thus from the overall facts and circumstances of the case, as discussed above it stands proved beyond shadows of all reasonable doubts that the three accused MOC officers acted in pursuance to a CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 330 of 350 well-designed scheme of things in which they did not ensure that the applications are checked for eligibility and completeness in terms of the guidelines so that applications which are not complete or are not eligible are rejected and are thus not placed before the Screening Committee. The intention was to keep the field open so that in the Screening Committee they may exercise the discretion vested in them in favour of any applicant company they may choose to. Again during the Screening Committee meeting also it was not disclosed to the other members of Screening Committee that the applications have not been checked for eligibility and completeness in MOC. No efforts were even made during the Screening Committee meeting to ensure that the guidelines regarding deciding of inter-se priority from amongst competing applicants are complied with. They also with-held all these aspects of non-compliance with the guidelines from Prime Minister as Minister of Coal knowing fully well that he as Minister of Coal and thereby incharge Ministry of Coal will proceed to approve allocation of various coal blocks on the basis of recommendation of Screening Committee only.
433. At this stage it will be apt to refer to Halsbury's Laws of England, (Fourth Edition) 11 (1) Criminal Law, Evidence and Procedure which talks about omission as under:
"Undoubtedly the criminal law imposes no obligation on person to act so as to prevent the occurrence of harm or wrongdoing.
Save in exceptional circumstances omission to act in a particular way will give rise to criminal liability only where a duty so to act arises at common law or is imposed by statute. Where a person, with the requisite mens rea, by his conduct brings CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 331 of 350 about the actus reus of a crime, he commits that crime, and conduct in this sense includes acts of omission as well as commission. It is unnecessary to characterise the act immediately causing harm as one of commission or omission if that act forms part of a course of conduct undertaken by a person. If the course of conduct is such that other persons, or possibly the property of other persons, are harmed by its performance, the accused will be criminally liable in respect of his acts, whether they are of commission or omission."
434. Thus the various acts of omission and commission as committed by the accused MOC officers clearly shows that they were acting in cahoot with A-1 M/s KSSPL and A-2 Pawan Kumar Ahluwalia in order to procure allocation of Thesgora-B/Rudrapuri coal block in favour of A-1 M/s KSSPL. They clearly used their position as public servant in a manner in which it was not intended to be used. As earlier also mentioned no direct evidence is usually available to prove meeting of minds or existence of any agreement amongst the accused persons so as to prove the charge of criminal conspiracy but the same has to be ascertained from the attending circumstances which stands proved on record. From the broad principles governing the law of conspiracy as summarized by Hon'ble Screening Committee in the Nalini Case (Supra) as reproduced above, it is clear that the MOC officers clearly acted in order to favour A-1 M/s KSSPL so as to obtain allocation of captive coal block in its favour. It is on account of these factors only that in the earlier part of my judgment I had observed that the applications were so submitted by A-1 M/s KSSPL under the signatures of A-2 Pawan Kumar Ahluwalia that submission of application was a mere formality as they were sure to obtain allocation of a captive coal block. Similarly accused MOC CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 332 of 350 officers left no stone unturned in helping A-1 M/s KSSPL in procuring allocation of a captive coal block from MOC, Government of India. In order to assist the private parties so involved the accused MOC officers clearly helped them at every stage of the entire coal block allocation process in procuring allocation of a captive coal block. Thus the offence of criminal conspiracy i.e. u/s 120-B IPC is clearly made out against the three accused MOC persons alongwith as against A-1 M/s KSSPL and A-2 Pawan Kumar Ahluwalia.
435. At this stage I would also like to deal with one other submission of Ld. Senior Advocate Sh. Mohit Mathur for A-4 H.C. Gupta that the guidelines issued by Ministry of Coal under the title "Processing of Application" merely provided for checking of applications for their completeness and eligibility but this Court has rather called upon the accused MOC Officers to explain as to why scrutiny of the applications was not undertaken in Ministry of Coal so as to check whether the applications were complete and whether the applicant companies were eligible for allocation of a captive coal block or not. It was submitted by Ld. senior Advocate that the word "scrutiny" connotes a much broader sphere then mere "checking" of applications.
436. At the outset, I may however state that certainly the guidelines issued by Ministry of Coal governing allocation of captive coal blocks mentions about checking of applications for their eligibility and completeness only before copies thereof were sent to Administrative Ministry/State Government or to CMPDIL. However CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 333 of 350 not only during the course of trial the words "checking" and "scrutiny" have been interchangeably used by the Court but even the accused persons themselves also while cross-examining the prosecution witnesses or while leading their defence evidence so used the words. The important question which however arises is whether while using the words "checking" and "scrutiny" interchangeably, the role of MOC officers or their area of work or their role and responsibility have not been sought to be increased from what was required to be done for checking of applications to what may be required for scrutiny of applications as claimed by Ld. senior Advocate. Accused persons have also all through faced the trial after understanding that they have been charged for not ensuring compliance with guidelines i.e. as to why applications were not checked for their completeness and eligibility in terms of the guidelines issued by MOC governing allocation of coal blocks. Also nothing has been asserted at all as to in what manner the accused persons have been prejudiced during the course of trial by use of words "scrutiny" and "checking" of applications interchangeably.
CONCLUSION
437. Thus moving ahead it is in the light of aforesaid circumstances it needs to be examined as to ingredients of which of the offences for which charges have been framed against all the accused persons stands proved.
CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 334 of 350 Section 420 IPC and Section 120-B IPC as against A-1 M/s KSSPL, A-2 Pawan Kumar Ahluwalia and A-3 Amit Goyal.
438. It has already been discussed at length and concluded that ingredients of the offence of cheating i.e. u/s 420 IPC stands proved beyond shadows of all reasonable doubts against A-1 M/s KSSPL and A-2 Pawan Kumar Ahluwalia. It has also been already discussed and concluded that both A-1 M/s KSSPL and A-2 Pawan Kumar Ahluwalia hatched a criminal conspiracy to cheat MOC, Government of India, so as to induce it to allot a captive coal block in favour of A-1 M/s KSSPL. Charge for the offences u/s 120-B IPC, 420 IPC and for the offence u/s 120-B/420 IPC thus clearly stands proved against A-1 M/s KSSPL and A-2 Pawan Kumar Ahluwalia beyond shadows of all reasonable doubts. Both the accused persons accordingly stand convicted for the said offences.
439. However as against A-3 Amit Goyal also it has been already mentioned that even though his conduct does not appears to be beyond doubt but in my considered opinion the circumstances so proved on record by the prosecution are not so conclusive as may point unerringly towards the guilt of the accused only. In other words it can not be stated that the circumstances proved against him are not explainable on a hypothesis which may be consistent with the innocence of the accused. A-3 Amit Goyal is accordingly acquitted of the offence u/s 420 IPC as well as of the offence u/s 120-B IPC and also for all other charges framed against him.
CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 335 of 350 Section 409 IPC and Section 13 (1) (c) P.C. Act, 1988 as against A-4 H.C. Gupta
440. As regard A-4 H.C. Gupta, who was Secretary Coal as well as Chairman Screening Committee, I may state that though in his dual capacity as above he was controlling the affairs of both MOC as well as Screening Committee but it can not be stated that he was exercising any dominion over the coal blocks to be allocated by MOC. Undoubtedly in terms of the guidelines issued by MOC governing allocation of coal blocks A-4 H.C. Gupta and other MOC officers were well aware that based on the recommendations of the Screening Committee, the MOC will allocate coal blocks and as discussed above while forwarding the recommendations of Screening Committee to Prime Minister as Minister of Coal, it was no where disclosed by the accused MOC officers that the guidelines either qua checking of applications for their eligibility and completeness in MOC or qua ascertaining interse priority of applicant companies in Screening Committee have not been followed. They thus certainly exploited this situation by abusing their offices as already discussed above at length in order to procure allocation of Thesgora- B/Rudrapuri coal block in favour of A-1 M/s KSSPL by also withholding all material information regarding non-compliance with the guidelines from Prime Minister as Minister of Coal.
However the prosecution has been unable to prove that A-4 H.C. Gupta was exercising any dominion/control over the said coal blocks or that the said nationalised natural resources of the CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 336 of 350 country were entrusted to him in any manner. Certainly A-4 H.C. Gupta alongwith A-5 K.S. Kropha and A-6 K.C. Samria were playing major roles in the coal block allocation process and by their acts of omission and commission they did assist A-1 M/s KSSPL and A-2 Pawan Kumar Ahluwalia in procuring allocation of Thesgora- B/Rudrapuri coal block from MOC, Government of India on the basis of false claims/misrepresentations and submitting incomplete application which was liable to be rejected at the initial stage itself. However as the basic essential ingredient of the offence of criminal breach of trust by a public servant i.e. of section 409 IPC or that of the offence of criminal misconduct by a public servant u/s 13 (1) (c) P.C. Act, 1988, that the public servant concerned must have been either entrusted with the property in question or he must be having dominion/control over the property in question does not stand proved as regard A-4 H.C. Gupta vis-a-vis the coal blocks to be allocated by MOC, Government of India so the issue whether the other ingredients of the two offences stand proved or not need not be gone through. Accordingly charge for the offence u/s 409 IPC and offence u/s 13 (1)
(c) P.C. Act, 1988 does not stand proved against A-4 H.C. Gupta.
Accordingly A-4 H.C. Gupta is acquitted of the offence u/s 409 IPC and of the offence u/s 13 (1) (c) P.C. Act, 1988.
Section 13 (1) (d) P.C. Act, 1988
441. Before proceeding to analyse the charge for the offence u/s 13 (1) (d) P.C. Act, 1988 as framed against the three accused MOC officers, it will be pertinent to first have a glance over the said section.
CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 337 of 350 Section 13 (1) (d) P.C. Act 1988 read as under:
"13. Criminal misconduct by a public servant.-- (1) A public servant is said to commit the offence of criminal misconduct,-
(a)......
(b)......
(c)......
(d) if he,-
(i) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage; or
(ii) by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or
(iii) While holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest;
or
(e)......."
442. Apparently offence u/s 13 (1) (d) (i) P.C. Act, 1988, shall stand attracted only if it is proved by the prosecution that the public servant involved committed the offence of criminal misconduct by using any illegal or corrupt means. However neither there is any allegation of prosecution nor any such evidence available on record which may show that any of the three MOC officers obtained allocation of Thesgora-B/Rudrapuri coal block in favour of A-1 M/s KSSPL by any corrupt or illegal means as have been contemplated in section 13 (1)
(d) (i) P.C. Act, 1988. There could have been number of reasons to accused MOC officers for so acting in favour of A-1 M/s KSSPL but the same must be exclusively to the knowledge of accused persons only and this Court in the absence of any evidence led on record in this regard can not draw any presumption much less on conjectures CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 338 of 350 and surmises.
443. However as regard 13 (1) (d) (ii) P.C. Act, 1988, prosecution is required to prove only that in order to obtain either for himself or for any other person any valuable thing or pecuniary advantage, the public servant abused his position. Thus as is evident from my aforesaid discussion, it is clear that the three accused MOC officers clearly abused their position as public servant in order to obtain for A- 1 M/s KSSPL allocation of Thesgora-B/Rudrapuri coal block. The circumstances of the case as discussed above clearly shows the existence of malafide intention on the part of accused MOC officers in not ensuring compliance with the guidelines issued by MOC governing allocation of coal blocks. It also stands conclusively proved that the accused MOC officers deliberately ignored compliance with the guidelines so that none of the applications stand rejected either on account of being incomplete or on account of the fact that the applicant company was not eligible. The aforesaid non-compliance with the guidelines clearly paved the way for them to exercise their discretion in the Screening Committee in favour of any company which they may choose to. Again during the Screening Committee meeting also it has been conclusively proved that the final recommendation in favour of A-1 M/s KSSPL qua allocation of Thesgora-B/Rudrapuri coal block was not unanimous in nature. It is thus clear that the accused MOC officers used their position as officers of MOC in a manner in which it was not intended to.
CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 339 of 350
444. Thus from the overall facts and circumstances as discussed above it is crystal clear that the accused MOC officers i.e. A-4 H.C. Gupta, A-5 K.S. Kropha and A-6 K.C. Samria abused their position as public servants in order to obtain allocation of Thesgora-B/Rudrapuri coal block in favour of A-1 M/s KSSPL. They are thus clearly guilty of committing the offence u/s 13 (1)
(d) (ii) as punishable u/s 13 (2) P.C. Act, 1988 and accordingly stands convicted thereunder.
445. As regard offence u/s 13 (1) (d) (iii) P.C. Act 1988 not much discussion is required as it is clear that the accused MOC officers acted with complete disregard to public interest in obtaining allocation of Thesgora-B/Rudrapuri coal block in favour of A-1 M/s KSSPL much less without any public interest. As a mark of caution, I may mention over here that while considering as to whether the offence u/s 13 (1)
(d) (iii) P.C. Act 1988 is made out or not against the three accused MOC officers the issue of there being requirement of any mens rea or guilty intention on the part of accused public servants ceases to have any significance as the guilty intention of the accused MOC officers in the entire matter stands well proved beyond shadows of all reasonable doubts.
446. Certainly neither it has been argued nor it can be said that in the process of allocation of captive coal blocks no public interest was involved. Thus on account of manifest disregard to the guidelines governing allocation of captive coal blocks and that too with malafide intention by abusing their position as a public servant the accused CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 340 of 350 MOC officers completely acted without public interest so involved. Thus offence u/s 13 (1) (d) (iii) P.C. Act 1988 r/w Section 13 (2) P.C. Act, 1988 is also clearly made out against the three accused MOC officers beside offence u/s 13 (1) (d) (ii) P.C. Act, 1988 as already mentioned. The three accused MOC officers thus stands convicted for.
Section 120-B IPC r/w sections 420/409 IPC and Section 13(1)
(c)/13(1)(d) of Prevention of Corruption Act, 1988.
447. In view of my aforesaid discussion, when A-4 H.C. Gupta has already been acquitted of the substantive offence u/s 409 IPC and section 13(1) (c) Prevention of Corruption Act, 1988 so the charge for the offence u/s 120B IPC r/w section 409 IPC and 13(1) (c) of Prevention of Corruption Act, 1988 also does not hold ground against all the accused persons.
448. At the same time, as A-4 H.C. Gupta, A-5 K.S. Kropha and A-6 K.C. Samaria have been held guilty of the offences u/s 13 (1) (d)
(ii) and 13(1) (d) (iii) Prevention of Corruption Act, 1988, and accused company A-1 M/s KSSPL and A-2 Pawan Kumar Ahluwalia have been held guilty of the offence u/s 420 IPC so all the accused persons i.e. A-1 M/s KSSPL, A-2 Pawan Kumar Ahluwalia, A-4 H.C. Gupta, A-5 K.S. Kropha and A-6 K.C. Samria also stands convicted for the offences u/s 120B IPC r/w section 420 IPC and section 13 (1) (d) (ii)/ 13 (1) (d) (iii) Prevention of Corruption Act, 1988.
CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 341 of 350 Sanction u/s 197 Cr. PC.
449. Before parting away with the present judgment, I may also mention that Ld. Counsel for the accused MOC Officers had vehemently argued that since all the acts as have been attributed to the accused MOC Officers in the entire coal block allocation process were done in the discharge of their official duties so cognizance of the offences u/s 409 IPC and section 120-B IPC against them was clearly bad in law.
450. However, before proceeding to discuss the aforesaid issue, I may mention that I had consciously not dealt with the present issue at an earlier stage of the judgment as I first intended to examine as to which offence(s) under IPC the prosecution may succeed in proving against the accused persons. However as now charge for the offence u/s 409 IPC does not stands proved against A-4 H.C. Gupta so the issue of grant of sanction u/s 197 Cr. PC qua the said offence need not be gone into. We are thus left only with the offence of criminal conspiracy i.e. u/s 120-B IPC as against the three Ministry of Coal Officers for whom it has been argued that sanction for prosecution u/s 197 Cr. PC is a sine qua non for taking cognizance. In this regard I may mention that the present issue can be viewed from two different stand points. Firstly, as discussed above the various acts of omission and commission as were committed by the accused public servants cannot be stated to have been committed by them while acting or purporting to act in the discharge of their official duties. In fact it was their position as public servant which provided them an occasion to CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 342 of 350 enter into a criminal conspiracy with the private parties involved but it cannot be stated that they so acted either in the discharge of their official duties or in the purported discharge of their official duties. Moreover, in the case Rajib Ranjan & Ors vs R. Vijay Kumar, (2015) 1 SCC 513 and Inspector of Police & Anr. Vs Battenapatla Venkata Ratnam &Anr., C.A. No. 129 of 2013 (SC), it has been categorically held by Hon'ble Supreme Court that when a public servant enters into a criminal conspiracy or indulges in criminal misconduct, such misdemeanour on his part is not to be treated as an act in discharge of his official duties and therefore, provisions of Section 197 Cr. PC will not be attracted. Reference in this regard can also be had to K. Satwant Singh vs State of Punjab, 1960 (2) SCR 89; Amrik Singh vs State of Pepsu, 1955 (1)SCR 1302 and Om Prakash Gupta vs State of U.P., 1957 SCR 423.
451. There is, however, yet another aspect of the present matter. Since the role attributed to the accused public servants in the entire criminal conspiracy is clearly traceable to the offences u/s 13 (1) (d)
(ii)/13 (1) (d) (iii) P.C. Act, 1988 so for any conspiracy to commit any such offence under Prevention of Corruption Act, 1988, no sanction u/s 197 Cr. PC can be held to be required. Certainly, for a substantive offence thereof under Prevention of Corruption Act, 1988, sanction u/s 19 Prevention of Corruption Act, 1988 is required. Admittedly, the said sanction u/s 19 of Prevention of Corruption Act, 1988 is available on record as against A-5 K.S. Kropha and A-6 K.C. Samaria. The said sanction order also states that the competent sanctioning authority CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 343 of 350 has accorded the sanction for prosecution of the two accused public servants for the offence u/s 13(1)(d) Prevention of Corruption Act, 1988 and for any other offences punishable under other provisions of law in respect of the said acts. Further as A-4 H.C. Gupta has since retired from Government service so no sanction u/s 19 PC Act, 1988 was required for taking cognizance of the offences under Prevention of Corruption Act,1988 against him. Consequently no sanction u/s 197 Cr. PC is even required for the offence of criminal conspiracy to commit any offence under Prevention of Corruption Act, 1988 qua him or the other accused MOC officers.
452. Ld. Counsels for the public servants while relying upon the case N. K. Ganguly Vs. CBI (2015) SCC On-line SC 1205 however strongly argued that for the acts allegedly committed by the accused public servants no cognizance of the offences under IPC can be taken without a prior sanction u/s 197 Cr.PC. However, I may observe that in the N. K. Ganguly case (Supra), Hon'ble Supreme Court has primarily reiterated the basic principle of law that for an act which is alleged to have been committed in discharge of official duty by accused the previous sanction u/s 197 Cr PC is a pre-requisite condition. However with utmost respect I may state that the said principle is not applicable to the facts and circumstances of the present case in as much as the various acts of omission and commission committed by the public servants and as discussed in the present judgement can not be said to have been committed by the accused MOC officers in the discharge of their official duties. As CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 344 of 350 already discussed above the facts of the present case clearly show that A-4 H.C. Gupta, A-5 K.S. Kropha and A-6 K.C. Samria entered into a criminal conspiracy with company A-1 M/s KSSPL and its director A-2 Pawan Kumar Ahluwalia so as to procure allotment of a coal block in favour of A-1 M/s KSSPL. Thus the said acts of entering into a criminal conspiracy to commit offence of criminal misconduct as defined under Prevention of Corruption Act, 1988 cannot be deemed to have been done in discharge of their official duty by the accused MOC officers. It is altogether a different matter that the position of the accused persons either as Secretary, Coal and as Chairman, Screening Committee or as Joint Secretary MOC and Member Convener Screening Committee or as Dy. Secretary/Director CA-I Section, Ministry of Coal provided them an opportunity to so enter into a criminal conspiracy with the private persons. However, I may again reiterate that the acts as stands proved against the accused public servants i.e. A-4 H. C. Gupta, A-5 K.S. Kropha and A-6 K.C. Samria are such that if questioned they cannot claim that they were acting in the discharge of their official duties.
453. Thus, in view of my aforesaid discussion, it is clear that there is no requirement of sanction u/s 197 Cr. PC in the present matter.
454. The final conclusion as drawn by me herein above qua various charges as framed against different accused persons may be now summarized as follows:
CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 345 of 350 CHARGES FRAMED S. Name of (I) (II) Final Decision No accused Charges Common to all Charges separately framed 1 M/s Kamal (i) 120-B IPC 420 IPC Convicted for the Sponge Steel offence u/s 120-B & Power Ltd., (ii) u/s 120-B IPC r/w Sec. IPC; 420 IPC; 120-
(through AR 409/420 IPC and Section B IPC r/w 420 IPC Ankit Gandhi) 13 (1) (c) and 13 (1) (d) P.C. and section 13(1) Act, 1988 (d)(ii)/13(1)(d)(iii) P.C. Act, 1988. Acquitted for the offence u/s 120-B IPC r/w S. 409 IPC and Section 13 (1) (c) P.C. Act, 1988 2 Pawan Kumar (i) 120-B IPC 420 IPC Convicted for the Ahluwalia. offence u/s (ii) u/s 120-B IPC r/w Sec. 120-B IPC; 420 409/420 IPC and Section IPC; 120B r/w 420 13 (1) (c) and 13 (1) (d) P.C. IPC and section Act, 1988 13(1)(d)(ii)/13(1)(d) (iii) P.C. Act, 1988. Acquitted for the offence u/s 120-B IPC r/w S. 409 IPC and Section 13 (1) (c) P.C. Act, 1988 3 Amit Goyal. (i)120-B IPC 420 IPC Acquitted for all offences (ii) u/s 120-B IPC r/w Sec. 409/420 IPC and Section 13 (1) (c) and 13 (1) (d) P.C. Act, 1988 4 H.C. Gupta. (i) 120-B IPC (i) Sec. 409 Convicted for the IPC offence u/s 120-B (ii) u/s 120-B IPC r/w Sec. IPC; section 13(1) 409/420 IPC and Section (ii) 13 (1) (d)(ii) and 13(1)(d) 13 (1) (c) and 13 (1) (d) P.C. (c) / 13 (iii) P.C. Act, 1988; Act, 1988 (1) (d) P.C. 120B r/w 420 IPC Act, 1988 and section 13(1) (d)(ii)/13(1)(d)(iii) CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 346 of 350 P.C. Act, 1988. Acquitted for the offences u/s 409 IPC and section 13(1)(c) P.C. Act, 1988. 5 Kuljit Singh (i) 120-B IPC 13 (1) (d) Convicted for the Kropha. P.C. Act, offence u/s 120B (ii) u/s 120-B IPC r/w Sec. 1988 IPC; section 13(1) 409/420 IPC and Section (d)(ii) and 13(1)(d) 13 (1) (c) and 13 (1) (d) P.C. (iii) P.C. Act, 1988; Act, 1988 120-B r/w 420 IPC and section 13(1) (d)(ii)/13(1)(d)(iii) P.C. Act, 1988. Acquitted for the offences u/s 409 IPC and section 13(1)(c) P.C. Act, 1988. 6 Kailash (i) 120-B IPC 13 (1) (d) Convicted for the Chand P.C. Act, offence u/s 120-B Samaria. (ii) u/s 120-B IPC r/w Sec. 1988 IPC; section 13(1) 409/420 IPC and Section (d)(ii) and 13(1)(d) 13 (1) (c) and 13 (1) (d) P.C. (iii) P.C. Act, Act, 1988 1988;120B r/w 420 IPC and section 13(1)(d)(ii)/13(1)(d) (iii) P.C. Act, 1988. Acquitted for the offences u/s 409 IPC and section 13(1)(c) P.C. Act, 1988. ANNOUNCED IN THE OPEN COURT (BHARAT PARASHAR) TODAY ON 19.05.2017 SPECIAL JUDGE, (PC ACT) CBI-07, NEW DELHI DISTRICT PATIALA HOUSE COURTS NEW DELHI CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 347 of 350 CC No. 04/14
RC No. 219 2012 E 0016, Branch : CBI/EO-I/New Delhi CBI vs M/s Kamal Sponge Steel & Power Ltd.
U/s 120-B, r/w Sec. 409/420 IPC, & S. 13(1)(c)/13(1)(d) P.C. Act, 1988.
19/05/2017.
Present: Ld. DLA Sh. V.K. Sharma, Ld. Senior PP Sh. A.P.
Singh, Ld. Senior PP Sh. Sanjay Kumar and Advocate Ms. Tarannum Cheema for CBI alongwith IO Dy. SP Sanjay Dubey.
Sh. Ankit Gandhi, AR of accused no. 1 company M/s KSSPL is present in person.
Accused P.K. Ahluwalia (A-2), Amit Goyal (A-3), H.C. Gupta (A-4), K.S. Kropha (A-5) and K.C.
Samria (A-6) are present in person.
Sh. Pawan Narang, Ld. Counsel for A-1 and A-2.
Sh. Sushil Bajaj, Ld. Counsel for A-3.
Sh. B.S. Mathur, Ld. Counsel for A-4 and A-5.
Sh. Vikram Singh, Ld. Counsel for A-6.
Vide my separate judgment of today's date, accused company M/s KSSPL (A-1), Pawan Kumar Ahluwalia (A-2), H.C. Gupta (A-4), K.S. Kropha (A-5) and K.C. Samria (A-6) have been convicted for the offence u/s 120B IPC.
Accused company M/s KSSPL (A-1) and Pawan Kumar Ahluwalia (A-2) have also been convicted for the offence u/s 420 IPC.
CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 348 of 350 Accused H.C. Gupta (A-4) has also been convicted for the offences u/s 13(1)(d)(ii) and 13(1)(d)(iii) of Prevention of Corruption Act, 1988. However, he has been acquitted for the offences u/s 409 IPC and section 13(1)(c) of Prevention of Corruption Act, 1988.
Accused K.S. Kropha (A-5) and K.C. Samria (A-6) have also been convicted for the offences u/s 13(1)(d)(ii) and 13(1)(d)(iii) of Prevention of Corruption Act, 1988.
All the five accused persons i.e. accused company M/s KSSPL (A-1), Pawan Kumar Ahluwalia (A-2), H.C. Gupta (A-4), K.S. Kropha (A-5) and K.C. Samria (A-6) also stands convicted for the offences u/s 120B IPC r/w section 420 IPC and section 13(1)(d)
(ii)/13(1)(d)(iii) of Prevention of Corruption Act, 1988.
Accused Amit Goyal (A-3) is, however, acquitted of all charges. He has been directed to furnish a personal bond in the sum of Rs. 1,00,000/- with one surety in the like amount u/s 437A Cr. PC and he has been directed to appear before the higher Court as and when such Court issues notice in respect of any appeal or petition filed against the judgment of this Court.
Bail bond u/s 437A Cr. PC has been furnished and accepted.
At this stage, Ld. Counsel Sh. B.S. Mathur for convict H.C. Gupta and convict K.S. Kropha and Ld. Counsel Sh. Pawan Narang for convict company M/s KSSPL and convict Pawan Kumar Ahluwalia and Ld. Counsel Sh. Vikram Singh for convict K.C. Samria have submitted that they intend to address arguments on the point of sentence today itself. It was, however, told to them that if they wish to CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 349 of 350 argue on the point of sentence on some other day then the matter can be adjourned but Ld. Counsels stated that they wish to argue today itself. Accordingly, arguments on the point of sentence have been heard as were addressed by Ld. Counsels for all the convict persons and by Ld. DLA for prosecution.
Put up for orders on the point of sentence on 22/05/2017 at 02.15 pm. (Bharat Parashar) Special Judge (PC Act) CBI-07, New Delhi District, Patiala House Courts, 19/05/2017.
CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 350 of 350