IN THE COURT OF SH. BHARAT PARASHAR, SPECIAL JUDGE (PC …

IN THE COURT OF SH. BHARAT PARASHAR, SPECIAL JUDGE (PC ACT) (CBI), ROUSE AVENUE COURT COMPLEX

NEW DELHI

CNR NO. DLCT11-001136-2019Case No. CBI/291/2019RC No. 221 2014 E 0002Branch : CBI/EO-III/New DelhiCBI Vs. M/s. Castron Technologies Ltd. & Ors. U/s. 120-B IPC; 379/34 IPC; 409 IPC, 420 IPC; Section 13 (1) (c) and Section 13 (1) (d) P.C. Act, 1988 and also 120-B IPC r/w Section 409/420 IPC and Section 13 (1) (c)/13(1)(d) P.C. Act, 1988.

In re:

Central Bureau of Investigation (CBI)

Vs.

(1) M/s Castron Technologies Ltd.Registered office: Lal Bunglow, Nag Nagar, Dhaiya, Dhanbad, Jharkhand

(2) Mahendra Kumar Agarwalla S/o Late Sh. Banwari Lal AgarwallaLal Bunglow, Nag Nagar, Dhaiya, Dhanbad, Jharkhand-826004

(3) M/s Castron Mining Ltd.

R/o Registered office 504, Diamond Prestige, 41-A,Acharya Jagdish Chandra Bose Road,Kolkata (West Bengal) – 700014

CBI Vs. M/s. Castron Technologies Ltd. & Ors. (Order on Sentence dated 26.10.2020) Page No. 1 of 28

(4) Dilip Ray S/o Sh. H.K. RayR/o Permanent Address:Mayfair Hotel, Jaidev Vihar,Bhubaneshwar, Odisha Present Address:117, Hauz Khas Enclave,New Delhi.

(5) Pradip Kumar BanerjeeS/o Late Sh. Tulsi Das BanerjeeR/o D-42, DG(S) Apartment,Plot No. 6, Sector – 22, Dwarka, New Delhi - 110075

(6) Nitya Nand Gautam S/o Late Sh. Hari Prakash GautamR/o F-1/12, Model Town-1,Delhi-110009Present Address:D-8, 2nd Floor, Greater Kailash Enclave-2,New Delhi - 110048

APPEARANCES

Present : Ld. Senior Advocate, Sh. R.S. Cheema, Special P.P., alongwith Ld. Senior P.P. Sh. A.P. Singh, Ld. DLA Sh. V. K. Sharma, Ld. DLA Sh. Sanjay Kumar, and Ld. Advocate Ms. Tarannum Cheema for CBI.

Ld. Counsel Sh. Ajay Gaggar for A-1 M/s CTL, Ld. Counsel Sh. P.K. Dubey for A-2 Mahendra Kumar Agarwalla, Ld. Counsels Sh. Siddharth Aggarwal and Sh. Kumar Vaibhav for A-3 M/s CML, Ld. Senior Advocate Sh. Ashok Parija, Ld. Counsels Sh. Manu Sharma and Sh. Balaji Subramaniam for A-4 Dilip Ray, Ld. Counsel Sh. K.K. Patra for A-5 P.K. Banerjee and Ld. CounselSh. Avijit Mani Tripathi for A-6 N.N. Gautam.


ORDE R ON SENTENCE

1. Vide my separate judgment dated 06.10.2020, all the six accused

persons i.e. A-1 M/s. Castron Technologies Ltd., A-2 Mahendra Kumar

Agarwalla, A-3 M/s Castron Mining Ltd., A-4 Dilip Ray, A-5 Pradip Kumar

Banerjee and A-6 Nitya Nand Gautam have been convicted for various

offences as under:

S.No

Name of accused Final Decision

1 A-1 M/s Castron Technologies Ltd. (M/s CTL)

Convicted for the offence u/s 120-B IPC; 420IPC; 379/34 IPC; 120-B IPC r/w S. 409/420 IPCand Section 13 (1) (c)/13(1)(d) P.C. Act, 1988.

2 A-2 Mahendra Kumar Agarwalla Convicted for the offence u/s 120-B IPC; 420IPC; 379/34 IPC; 120-B r/w S. 409/420 IPC andSection 13 (1) (c)/13(1)(d) P.C. Act, 1988

3 A-3 M/s Castron Mining Ltd. (M/s CML)

Convicted for the offence u/s 379/34 IPC

4 A-4 Dilip Ray Convicted for the offence u/s 120-B IPC; 409IPC; Section 13 (1) (c) and Section 13 (1) (d)P.C. Act,1988 and Section 120-B r/w 409/420IPC; Section 13 (1) (c) and Section 13 (1) (d)P.C. Act, 1988.

5 A-5 Pradip Kumar Banerjee Convicted for the offence u/s 120-B IPC;Section 13 (1) (d) P.C. Act, 1988 and Section120-B r/w 409/420 IPC and Section 13(1)(c)/13(1)(d) P.C. Act, 1988.

6 A-6 Nitya Nand Gautam Convicted for the offence u/s 120-B IPC;Section 13 (1) (d) P.C. Act, 1988 and Section120-B r/w 409/420 IPC and Section 13(1)(c)/13(1)(d) P.C. Act, 1988.

2. Before adverting further it will be worthwhile to mention that vide

order sheet dated 14.10.2020 certain clerical errors which had


inadvertently cropped up in the Judgment dated 06.10.2020 were

corrected u/s 362 Cr.PC. For a ready reference the said order-sheet read

as under:

Order Sheet 14.10.2020

“CNR NO. DLCT11-001136-2019Case No. CBI/291/2019RC No. 221 2014 E 0002, Branch : CBI/EO-III/New DelhiCBI Vs. M/s. Castron Technologies Ltd. & Ors. U/s. 120-B IPC; 379/34 IPC; 409 IPC, 420 IPC; Section 13 (1) (c) and Section 13 (1) (d) P.C. Act, 1988 and also 120-B IPC r/w Section 409/420 IPC and Section 13 (1) (c)/13(1)(d) P.C. Act, 1988.

14.10.2020

Matter taken up today in compliance of Office Order No. PowerGaz/RADC/2020/E-15009-15097 dated 26.09.2020 and also in continuation toorders No.819-903/DJ/RADC/2020 dated 16.05.2020, No. E1792-1876/DJ/RADC/2020 dated 22.05.2020, No. E-2574-2639/DJ/RADC/2020dated 29.05.2020, No. E-3943-4029/DJ/RADC/2020 dated 13.06.2020, No. E-4121-4205/DJ/RADC/2020 dated 15.06.2020 and No.Power/Gaz./RADC/2020/E-5577-5661 Dated 29.06.2020,Power/Gaz./RADC/2020/E-6836-6919 Dated 14.07.2020,Power/Gaz./RADC/2020/E-7784-7871 dated 30.07.2020,Power/Gaz./RADC/2020

/E-8959-9029 dated 16.08.2020 and No. E-10559-10644/PowerGaz/RADC/2020 dated 28.08.2020 of Ld. District & Sessions Judge-Cum-Spl.Judge (PC ACT) (CBI) Rouse Avenue District Court, New Delhi.

The present matter is being taken up today through video conferencingas regular functioning of the Courts at District Courts has been suspendedsince 23.03.2020 vide office orders of Hon'ble High Court of Delhi bearingNos. 373/Estt./E1/DHC dated 23.03.2020, No.159/RG/DHC/2020 dated25.03.2020, No.R-77/RG/DHC/2020 dated 15.04.2020, No. R-159/RG/DHC/2020 dated 02.05.2020, No. R-235/RG/DHC/2020 dated16.05.2020, R-305 /RG/DHC/2020 dated 21.05.2020, No.1347/DHC/2020dated 29.05.2020, No.17/DHC/2020 dated 13.06.2020, No.22/DHC/2020dated 29.06.2020, No. 24/DHC/2020 dated 13.07.2020, No. 26 /DHC/2020dated 30.07.2020, No. 322/RG/DHC/2020 Dated: 15.08.2020 and417/RG/DHC/2020 dated 27.08.2020 and pursuant to the letter dated20.09.2020 of Ld. Registrar General, Hon'ble High of Delhi, New Delhi.

The hearing of the present matter is being taken up viaCisco WebEx Platform in the presence (onscreen) of:

Present: Ld. Senior P.P. Sh. A.P. Singh, Ld. DLA Sh. V.K. Sharma,


Ld. DLA Sh. Sanjay Kumar and Advocate Ms. Tarannum Cheema for CBI along with IO Pawan Kumar Kaushik.Sh. Shashi Bhushan, Authorized Representative of convict company M/s Castron Technologies Ltd., is present.

Ld. Counsels Sh. Ajay Gaggar and Ms. Vineeta Rathore for convict company M/s Castron Technologies Ltd.Convict Mahendra Kumar Agarwalla is present.Ld. Counsels Sh. P.K. Dubey and Sh. Anurag Andley for convict Mahendra Kumar Agarwalla. Sh. Vinay Gupta, Authorized Representative of convict company i.e. M/s Castron Mining Ltd. is present.Ld. Counsels Sh. Siddharth Aggarwal and Sh. Kumar Vaibhav for convict company M/s Castron Mining Ltd.Convict Dilip Ray is present.Ld. Senior Advocate Sh. Ashok Parija along with Ld. Counsels Sh. Manu Sharma and Sh. Balaji Subramaniam for Convict Dilip Ray.Convict P.K. Banerjee is present.Ld. Counsel Sh. K.K. Patra for Convict P.K. Banerjee.Convict Nitya Nand Gautam is present.Ld. Counsel Sh. Avijit Mani Tripathi for Convict Nitya Nand Gautam.

Ld. Senior P.P. Sh. A.P. Singh has pointed out that in thejudgement dated 06.10.2020 certain clerical errors have cropped up in asmuch as the name of A-2 Mahendra Kumar Agarwalla (M.K. Agarwalla) hasbeen inadvertently mentioned at certain places as “A-2 Mahesh KumarAgarwalla”. Various such instances so pointed out by Ld. Sr. P. P. Sh. A.P.Singh are as under:

S.No. Page No. Para No. Line No.

1 360 Sub para to Para 430 4th Line and 10th Line

2 363 432 11th line

3 368 438 2nd and 3rd line

4 370 440 4th line

5 387 469 2nd line

Heard. Perused.

The submissions made by Ld. Senior P.P. Sh. A.P. Singh arecertainly correct in as much as while referring to A-2 Mahendra KumarAgarwalla (M.K. Agarwalla) certain clerical errors have cropped up andinadvertently he has been referred to as “A-2 Mahesh Kumar Agarwalla”.Since at all such places accused has also been referred to as “A-2” and therewas no other accused person facing trial in the present case who was alsoknown by the initials “M.K. Agarwalla” so clearly no confusion or prejudice hasbeen caused on account of aforesaid clerical error to anyone.


It has also come to the notice of the Court that in the last line ofpara No. 312 at page No. 275 of the judgement while referring to the factumof taking judicial notice of certain facts mentioned in para 312, instead ofreferring to Section 57 of Indian Evidence Act, 1872, inadvertently “Section57 Cr.PC” has been mentioned. The original para No. 312 of the Judgementread as under:

“312. However, before proceeding further, it will be important to pointout an important event which had taken place during those days.Admittedly on 13.04.99 the then Central Government in power hadlost the vote of confidence in Parliament. Accordingly, as per the pastpractice the Hon'ble President of India asked the same Governmentto act as a Care-taker Government. Necessary notification dated26.04.99 towards dissolving the Lok Sabha was also issued by theHon'ble President of India. Subsequently Election Commission ofIndia also issued a Press note dated 11.07.99 announcing theschedule for holding General elections to elect a new Lok Sabha. Italso stated that consequent to the announcement of general electionsthrough the said Press note, the Model Code of Conduct for theguidance of political parties and candidates comes into operation withimmediate effect in the entire country. (Certainly judicial notice of allsuch facts can be taken by the court u/s 57 Cr.PC)”

Accordingly under Section 362 Cr.PC, the aforesaid clericalerrors are hereby corrected and it is directed that at all such places in thejudgment dated 06.10.2020 where A-2 Mahendra Kumar Agarwalla (M.K.Agarwalla) has been referred to as “A-2 Mahesh Kumar Aggarwalla” same beread as “A-2 Mahendra Kumar Agarwalla”.

It is also directed that para No. 312 at page No. 275 of thejudgement dated 06.10.2020 after necessary correction be read as under:

“312. However, before proceeding further, it will be important to pointout an important event which had taken place during those days.Admittedly on 13.04.99 the then Central Government in power hadlost the vote of confidence in Parliament. Accordingly, as per the pastpractice the Hon'ble President of India asked the same Governmentto act as a Care-taker Government. Necessary notification dated26.04.99 towards dissolving the Lok Sabha was also issued by theHon'ble President of India. Subsequently Election Commission ofIndia also issued a Press note dated 11.07.99 announcing theschedule for holding General elections to elect a new Lok Sabha. Italso stated that consequent to the announcement of generalelections through the said Press note, the Model Code of Conduct forthe guidance of political parties and candidates comes into operationwith immediate effect in the entire country. (Certainly judicial noticeof all such facts can be taken by the court u/s 57 of IndianEvidence Act, 1872)”

The following applications/affidavits have been received on theofficial E-mail ID of the Court from Ld. Sr.PP and Ld. Counsels for the convictpersons to supplement the oral arguments on the point of sentence. 1. LIST OF CASE LAW ON BEHALF OF PROSECUTION SENT BY LD. Sr. P.P.


SH. A.P. SINGH. 2. AFFIDAVIT DATED 13.10.2020 & MEDICAL DOCUMENTS ON BEHALF OFCONVICT MAHENDRA KUMAR AGARWALLA.3. WRITTEN SUBMISSIONS BEHALF OF CONVICT COMPANY M/SCASTRON MINING LTD. UNDER SECTION 248(2) Cr.P.C. ON THE ASPECTOF SENTENCING.4. WRITTEN SUBMISSIONS ON BEHALF OF CONVICT DILIP RAY ON THEPOINT OF SENTENCING U/S 314 Cr. PC ALONGWITH SUPPORTED CASELAW.5. APPLICATION DATED 13.10.2020 ON BEHALF OF CONVICT P.K. BANERJISEEKING LENIENCY IN SENTENCE.6. WRITTEN SUBMISSIONS/ARGUMENTS ON BEHALF OF CONVICT N.N.GAUTAM ON SENTENCE.

Arguments on the point of sentence as addressed by Ld. Sr. P.P. Sh.A.P. Singh as well as Ld. Counsel Sh. Ajay Gaggar for convict company M/sCTL, Ld. Counsel Sh. P.K. Dubey for convict Mahendra Kumar Agarwalla, Ld.Counsel Sh. Siddharth Aggarwal for convict company M/s CML, Ld. Sr.Advocate Sh. Ashok Parija and Ld. Counsel Sh. Manu Sharma for convictDilip Ray, Ld. Counsel Sh. K.K. Patra for convict P.K. Banerjee and by Ld.Counsel Sh. Avijit Mani Tripathi for convict N.N. Gautam have been heard atlength. Ld. Counsel Sh. P.K. Dubey further submitted that as his client is residingat Dhalya, Dhanbad, Jharkhand so he needs few days time to travel to Delhiin order to attend the physical hearing on the date of pronouncement of orderon sentence. Ld. Counsel Sh. Manu Sharma for convict Dilip Ray also submitted that hisclient is also at present residing at Siliguri, West Bengal and he too requiresfew days time to travel to Delhi to attend the physical hearing on the date ofpronouncement of order on sentence. Heard. As prayed matter is now posted to 26.10.2020 i.e. the date on whichthe undersigned is to conduct physical hearing as per roster issued byLd. District & Sessions Judge-Cum-Spl. Judge (PC ACT) (CBI) RouseAvenue District Court, New Delhi. A copy of order is being retained, to be placed in the judicial file as andwhen normal functioning of the courts is resumed. The present order has been dictated on phone to Steno Hukam Chand.

(Bharat Parashar) Special Judge, (PC Act) (CBI), Court No. 608 Rouse Avenue District Court

New Delhi 14.10.2020”


3. I have heard Ld. Sr. P.P. Sh. A. P. Singh for prosecution, Ld.

Counsel Sh. Ajay Gaggar for convict company M/s CTL, Ld. Counsel Sh.

P.K. Dubey for convict Mahendra Kumar Agarwalla, Ld. Counsel Sh.

Siddharth Aggarwal for convict company M/s CML, Ld. Senior Advocate

Sh. Ashok Parija and Ld. Counsel Sh. Manu Sharma for convict Dilip

Ray, Ld. Counsel Sh. K.K. Patra for convict P.K. Banerjee and Ld.

Counsel Sh. Avijit Mani Tripathi for convict N.N. Gautam on the point of

sentence.

4. Ld. Sr. P.P. Sh. A. P. Singh while emphasizing the gravity of the

offence committed by the convict persons and its effect on the society

being of the highest magnitude strongly prayed for imposition of

maximum punishment. The loss caused to the exchequer on account of

such allocation of captive coal blocks to unscrupulous persons was

stated to be immense.

5. It was further submitted by Ld. Sr. P.P. that such white collar

criminals should be dealt with a stern hand by imposing maximum

punishment as provided under the law and also that the substantive

period of sentence for various offences should also be directed to run

consecutively. Ld. Sr. P.P. also prayed for imposition of a heavy fine upon

the convict persons. It was also submitted that imposing meager

sentences or taking too sympathetic view will be result-wise counter

productive in the long run and against societal interests which needs to

be also cared for and strengthened by a string of deterrence inbuilt in the

sentencing system. It was submitted that Higher Courts have always

taken a strict view whenever public servants are found involved in acts of


misdemeanor.

6. In support of his submissions Ld. Sr. P.P. Sh. A. P. Singh, relied

upon the following case law:

S.No.

Case title Citation

1 CBI Vs. Ram Narain Poply & Ors. (2003 CrLJ 4801) SC2. Rekha Sharma Vs. CBI 2015 SCC Online Del 77963. Shanti Lal Meena Vs. State of

NCT of Delhi, CBI (2015) 6 SCC 185

4. State Of Himachal Pradesh vsNirmala Devi

2017 Crl. L. J. 2886 SupremeCourt of India

5. State of Madhya Pradesh Vs.Pappu @ Ajay

(S.L.P. (Crl.) No.1166 of 2006),Supreme Court of India

6. Dhananjoy Chatterjee Vs. Stateof W.B.

1994 SCC (Crl. ) 358,Supreme Court of India

7. State of Karnataka Vs.Sharanappa BasugondaAregonda

2002 Crl. L.J 2020 (SC)

8 State of Karnataka Vs. Krishna@ Raju

1987 Crl. L.J. 776 (SC)

9 State of MP Vs. Saleem 2005 Crl. L.J. 3435 (SC),Supreme Court of India

10 Siddarama and Others Vs. Stateof Karnataka

2006 IV AD (Crl) (SC) 78,Supreme Court of India

11 Ankush Maruti Shinde and othersVs. State of Maharashtra

(Criminal Appeal Nos. 881-882of 2009) (Arising out of SLP(Crl.) Nos.8457-58 of 2008)(decided on 30.04.2009),Supreme Court of India

12 State of Himachal Pradesh VsNirmala Devi

2017 Crl.L.J. 2886, theSupreme Court of India

13 N. Ramamurthy Vs. State byCentral Bureau of Investigation,ACB, Bengaluru

(2019) 14 SCC 198

7. As regard convict company M/s CTL, it was submitted by Ld.

Counsel Sh. Ajay Gaggar that the company has always been involved in

manufacturing of sponge iron and other related activities and thus the


allocation of coal block was being sought for captive use only.

A lenient view was thus prayed for.

8. As regard convict Mahendra Kumar Agarwalla, it was submitted by

Ld. Counsel Sh. P.K. Dubey that he is an old person aged about 75

years and is suffering from co-morbidity. It was also submitted that wife

of convict is also an aged lady and is also suffering from serious heart

disease and requires constant medical attention. An affidavit dated

13.10.2020 in support of all these submissions has also been placed on

record alongwith all the necessary supporting medical documents. It has

also been submitted that the two children of convict are residing at

Mumbai whereas convict alongwith his wife is living alone in Jharkhand.

It has also been submitted that the conduct of convict during the course

of trial has completely remained above board and even no adjournment

was sought on his behalf or any effort was ever made to linger on the

trial. It was also submitted that during the course of entire trial convict

has maintained a consistent stand of defence. It has also been submitted

that though convict is facing trial in one other case in Jharkhand but has

never been convicted in any case.


9. As regard convict company M/s CML, it was submitted by Ld.

Counsel Sh. Siddharth Aggarwal that as per the admitted case of the

prosecution almost the entire extracted coal was still available at the spot

where the same was kept after extracting from the mine. The small

amount of coal found to be missing was in fact withered away due to

environmental conditions or was stolen away. It was further submitted


that admittedly when the lease deed of the mine in question was

surrendered back to the Government then the entire extracted coal was

also duly returned back to the Government. It was thus submitted that no

loss was caused to any one on account of said acts of extracting coal. A

lenient view was thus prayed, stating that company was admittedly not

involved in procuring allocation of coal block by any means much less by

adopting any illegal means.

In support of his oral arguments Ld. Counsel Sh. Siddharth

Aggarwal also submitted written submissions alongwith various

supporting documents.

10. As regard convict Dilip Ray, it was submitted by Ld. Counsel Sh.

Manu Sharma that convict is aged about 68 years and that his son is

suffering from severe medical problems on account of which he is

permanently confined to wheel chair and that his condition thus requires

regular presence of his father to help him. It was also submitted that

convict has been facing the ordeal of initial preliminary enquiry instituted

by CBI and subsequently the trial of the present case for the past about 8

years and that during the course of proceedings his conduct has

remained completely above board. It was also submitted that there has

been no allegation that convict ever misused the liberty of bail or

permission to travel abroad granted to him at any point of time during the

course of entire trial. It was also submitted that the present incident

pertains to the year 1999 and since than much water has flown and at

the most the act of the convict can amount to an error of judgment. It was

also submitted that the convict has already suffered extreme mental


agony and irreparable damage to his political career. It was also

submitted that convict has no previous criminal record.

A lenient view was thus prayed to be taken so that convict

may avail of his right to file appeal from outside the jail itself.

11. Ld Sr. Advocate Sh. Ashok Parija also prayed for a lenient view on

behalf of convict Dilip Ray, stating that his conduct has remained

completely above board during the course of entire trial.

12. In support of his submissions, Ld. Counsel Sh. Manu Sharma for

convict Dilip Ray also submitted written submissions beside placing

reliance upon the following case law:

S.No. Case title Citation

1 Yerukula Peddanna Vs. State 2013 SCC OnlineKar 2118

2 Ramashraya Chakravarti Vs. State ofMadhya Pradesh

(1976) 1 SCC 281

3 K. Balu Vs. State rep by TheInspector of Police, The SpecialPolice Establishment, Central Bureauof Investigation/Anti-CorruptionBureau, Chennai.

Crl. A. Nos. 400,527 & 561 of1999

4 Jan Mohamad Vs. State of Haryana (2019) 3 SCC 201

5 Antony Cardoza Vs. State of Kerala (2014) 16 SCC787

13. As regard convict P.K. Banerjee, it was submitted by Ld. Counsel

Sh. K.K. Patra that convict is aged about 80 years and is suffering from

co-morbidity which require his regular visits to hospital. It was also

submitted that his wife is also aged about 73 years and has got both her

knees replaced and she is thus unable to perform even her daily chores


without the help of convict. It was further submitted that the two children

of convict are residing abroad and there is no one else in the family to

look after the convict and his wife. It was also submitted that convict had

a glorious career of about 40 years as a public servant and in recognition

of the same he was even awarded 'Padamshree' by Government of

India. It has also been submitted that convict even remained Chairman

of Air India and has been director of various PSUs during his long public

service life. It was also submitted that during the course of trial the

conduct of convict has remained completely above board. It was also

submitted that convict has no previous criminal record.


In support of his submissions Ld. Counsel Sh. K.K. Patra also

submitted an application dated 13.10.2020 alongwith supporting medical

documents of the convict and his wife seeking leniency in sentence.

14. As regard convict N.N. Gautam, it was submitted by Ld. Counsel

Sh. Avijit Mani Tripathi that convict is also aged about 80 years and is

having co-morbidity for which he requires constant medical attention. It

was also submitted that there is no one else to look after the wife of

convict in his absence as son of convict is living separately. It has been

also submitted that on account of the vast experience of convict in the

field of mining technology, he was selected to various prestigious posts

during the course of his career and in recognition of the same he has

been also awarded by a number of authorities/organisations. It was also

submitted that due to the present pandemic situation even Hon'ble

Supreme Court has advised Hon'ble High Courts to constitute a


high-powered committee so as to ensure that the convicts and other

under trial prisoners are released from jail so as to prevent spread of

Covid-19 amongst the prisoners. It was also submitted that the conduct

of convict during the course of trial has remained completely above

board and that he never misused the liberty of bail granted by this Court

to him. It was also submitted that convict has no previous criminal record.


15. In support of his submissions Ld. Counsel Sh. Avijit Mani Tripathi

also submitted written submissions alongwith supporting medical

documents beside placing reliance upon the following case law:

S.No. Case title Citation

1 Mohammad Giasuddin Vs. State ofA.P.

(1977) 3 SCC 287

2 Ramashraya Chakravarti Vs. State ofMadhya Pradesh

(1976) 1 SCC 281

3 Suo-Motu Writ (Civil) No. 1 of 2020 in Re: Contagion ofCOVID 19 Virusin Prisons.

16. I have carefully perused the record.

17. While dealing with the issue of arbitrary allocation of coal blocks to

various private companies, Hon'ble Supreme Court in its order dated

25.08.2014 in the case Manohar Lal Sharma Vs. The Principal

Secretary & Ors., writ petition (Crl.) No. 120 of 2012, made the

following observations highlighting the importance of coal in the industrial

development of the nation:


"Coal is king and paramount Lord of industry is an old sayingin the industrial world. Industrial greatness has been built upon coal by many countries. In India, coal is the mostimportant indigenous energy resource and remains thedominant fuel for power generation and many industrialapplications. A number of major industrial sectors includingiron and steel production depend on coal as a source ofenergy. The cement industry is also a major coal user. Coal’spotential as a feed-stock for producing liquid transport fuelsis huge in India. Coal can help significant economic growth.India’s energy future and prosperity are integrally dependentupon mining and using its most abundant, affordable anddependent energy supply – which is coal. Coal is extremelyimportant element in the industrial life of developing India. Inpower, iron and steel, coal is used as an input and in cement,coal is used both as fuel and an input. It is no exaggerationthat coal is regarded by many as the black diamond."

18. It is in the light of aforesaid observations about the importance of

coal as an important element in the industrial life of developing India that

the crucial issue of arriving at a just proportion between punishment and

offence needs to be looked into.

19. Though on the face of it, the arguments of Ld. Counsels for the

convict companies that no loss was caused to any one in the present

matter since almost the entire amount of extracted coal was surrendered

back to the Government while surrendering back the lease deed, seems

to be attractive. However non-availability of sufficient raw material such

as coal has in fact resulted in the lack of infrastructural/industrial

development of the country. Had coal block been allocated to a

deserving applicant company after following the due process of law and

the company would have proceeded to extract coal so as to use it

captively in its end use project then it would have certainly added to the

infrastructural/industrial development of the country. However, without


elaborating further as to the causes and effects of non-availability of coal,

it will be suffice to state that arbitrary allocation of coal blocks as has

been seen in the present matter to unscrupulous persons who never

intended to establish any end use project in itself has caused huge loss

to the nation which is difficult to be computable in monetary terms.

20. Coming now to the important issue of deciding as to what shall be

a just sentence of punishment in the present matter, it will be pertinent to

mention that unlike cases involving bodily harm, the present case

involves commission of white collar crimes and that too by people

occupying high places in the society. "White collar criminals" have come

to be defined as "a person of the upper socio-economic class who

violates the criminal law in the course of his occupational or professional

activities". Such "white collar crimes" are in fact more dangerous to the

society than ordinary crimes, firstly, because the financial losses are

much higher, and, secondly because of the damages inflicted on public

morale. The average loss from ordinary crimes such as burglaries,

robberies and larcenies etc. may run into few thousand rupees only but

the loss which the "white collar crimes" may cause run not only in lacs

but in crores of rupees. However it is also true that to find criminality in

such acts committed by "white collar criminals" is often a difficult task

primarily because they are committed after much deliberations and

planning undertaken by well trained minds having a higher status in the

society.

21. Moreover the criminal behaviour of such "white collar criminals"

which may include businessman, industrialists, entrepreneurs, traders,


politicians, bureaucrats or well qualified professionals can not be simply

explained on the basis of various theories developed to explain

causation of traditional crimes such as poverty or lack of infrastructural

facilities or recreational facilities or feeble mindness or emotional

instability. On the other hand such persons are not only capable but are

also emotionally balanced and in no sense pathological. The only reason

which may however explain such behaviour of "white collar criminals" is

their greed or lust to acquire maximum material resources in the name of

their business, taking benefit of open competition, economy and

individual freedom. In fact white collar crimes are a peculiar feature of an

acquisitive and affluent society and even though our society can not be

strictly termed as an affluent society but it is certainly becoming

acquisitive.

22. In the case titled CBI Vs. Ram Narain Poply & Others (2003

Cr.LJ 4801), Hon'ble Supreme Court observed as under:

“382. The cause of the community deserves bettertreatment at the hands of the Court in the discharge of itsjudicial functions. The Community or the State is not apersona non grata whose cause may be treated with disdain.The entire community is aggrieved if economic offenderswho ruin the economy of the state are not brought to book.A murder may be committed in the heat of moment uponpassions being aroused. An economic offence is committedwith cool calculation and deliberate design with an eye onpersonal profit regardless of the consequence to theCommunity. A disregard for the interest of the communitycan be manifested only at the cost of forfeiting the trust andfaith of the community in the system to administer justice inan even handed manner without fear of criticism from thequarters which view white collar crimes with a permissiveeye unmindful of the damage; done to the National Economyand National Interest, as was aptly stated in State of Gujarat


V. Mohanlal Jitamalji Prowal and another (AIR 1987 1321).

383. Unfortunately in the last few years the country hasseen an alarming rise in white collar crimes which hasaffected the fibre of the country’s economic structure. Thesecases are nothing but private gain at the cost of public, andlead to economic disaster.”

23. In Rekha Sharma Vs. CBI 2015 SCC Online Del 7796 while

discussing on the issue of corruption, it was observed by Hon'ble High

Court of Delhi as under:

“488. The Supreme Court in its decision reported as (2013) 11SCC 401, Jasvir Kaur v. State of Punjab expressed concernon the absence of a sentencing policy in the country and,therefore cautioned the Courts to calibrate the punishment withdue care and upon taking into account the relevant attendingcircumstances. The Supreme Court quoted with approval theluminous observations of English Judge Henry Alfred McCardiewhich are reproduced hitherto-fore:

“…Trying a man is easy, as easy as falling off a log,compared with deciding what to do with him when hehas been found guilty.”

489. Chapter 19 of the Delhi High Court Rules deals withsentencing of offenders and throws insights on this aspect.

"1. The award of suitable sentence depends on a variety ofconsiderations – The determination of appropriate punishmentafter the conviction of an offender is often a question of greatdifficulty and always requires careful consideration. The lawprescribes the nature and the limit of the punishment permissiblefor an offence, but the Court has to determine in each case asentence suited to the offence and the offender. The maximumpunishment prescribed by the law for any offence is intended forthe gravest of its kind and it is rarely necessary in practice to goup to the maximum. The measure of punishment in anyparticular instance depends upon a variety of considerationssuch as the motive for the crime, its gravity, the character of theoffender, his age, antecedents and other extenuating oraggravating circumstances, such as sudden temptation,previous convictions, and so forth, which have all to be carefully


weighed by the Court in passing the sentence.

490 . . . . .

. . . . . . . . . .

491. It is submitted that the authors of the present crime wereessentially public servants; who were duty bound to preserveand uphold the dignity of law. Some had even been administered'oath' in terms of the Constitution of India. Yet they chose toflagrantly violate the law, betraying the trust reposed in them bythe citizens and the Constitution. The very nature of the presentcrime, its magnitude, ramifications, designed manner ofexecution and the deleterious impact on the society at large,warrants a strict view, lest, justice be rendered sterile.”492 . . . . .

. . . . . . . . . .

“Today, corruption in our country not only poses agrave danger to the concept of constitutionalgovernance, it also threatens the very foundation of theIndian democracy and the Rule of Law. The magnitudeof corruption in our public life is incompatible with theconcept of a socialist secular democratic republic. Itcannot be disputed that where corruption begins allrights end. Corruption devalues human rights, chokesdevelopment and undermines justice, liberty, equality,fraternity which are the core values in our Preambularvision. Therefore, the duty of the court is that any anti-corruption law has to be interpreted and worked out insuch a fashion as to strengthen the fight againstcorruption.””

24. It is in the aforesaid background that the Court has to determine as

to what should be the appropriate punishment to be awarded to the

present convict persons. However for a Judge the determination and

imposition of a proper sentence of punishment poses the most difficult

question and casts an onerous duty upon him of arriving at a just


proportion between the crime committed and the punishment sought to

be inflicted. Thus while the punishment should not be disproportionately

excessive but at the same time an offender cannot be allowed to be

treated with leniency solely on the ground of discretion vested in a Court.

The real requisite is to weigh the circumstances in which the crime has

been committed and other concomitant factors. Thus while a Court

imposing sentence, has to keep in view the various complex matters in

mind but to structure a methodology relating to sentencing is difficult to

conceive of. The Legislature in its wisdom has conferred discretion upon

the Judge who is however guided by certain rational parameters and

more importantly in the light of factual scenario of the case in hand. Thus

the duty so casted upon the Court becomes a complex one and same

has to be performed with due reverence for Rule of Law and the

collective conscience on one hand and the doctrine of proportionality,

principle of reformation and other concomitant factors on the other. The

task may be onerous but the same has to be done with total empirical

rationality sans any kind of personal philosophy or personal experience

or any personal notions.

25. In Shyam Narain v. State (NCT of Delhi) (2013) 7 SCC 77, while

discussing the principles of sentencing, it was observed by Hon'ble

Supreme Court as under:

“Primarily it is to be borne in mind that sentencing forany offence has a social goal. Sentence is to beimposed regard being had to the nature of the offenceand the manner in which the offence has beencommitted. The fundamental purpose of imposition ofsentence is based on the principle that the accusedmust realize that the crime committed by him has not


only created a dent in his life but also a concavity inthe social fabric. The purpose of just punishment isdesigned so that the individuals in the society whichultimately constitute the collective do not suffer timeand again for such crimes, for it serves as a deterrent.The Court observed, true it is, on certain occasions,opportunities may be granted to the convict forreforming himself but it is equally true that theprinciple of proportionality between an offencecommitted and the penalty imposed are to be kept inview. It has been further opined that while carrying outthis complex exercise, it is obligatory on the part of thecourt to see the impact of the offence on the societyas a whole and its ramifications on the immediatecollective as well as its repercussions on the victim.”

26. In Guru Basavaraj v. State of Karnataka (2012) 8 SCC 734, the

Hon'ble Supreme Court while discussing about the sentencing policy,

observed as under:

"33. There can hardly be any cavil that there has to bea proportion between the crime and the punishment. Itis the duty of the court to see that appropriatesentence is imposed regard being had to thecommission of the crime and its impact on the socialorder. The cry of the collective for justice whichincludes adequate punishment cannot be lightlyignored."

27. While discussing about the principles which governs the exercise of

discretion so vested in the Court in the matter of imposition of

appropriate sentence, Hon'ble Supreme Court in the case State of

Madhya Pradesh v. Najab Khan and Ors. (2013) 9 SCC 509 observed

as under:

“33. It is seemly to state here that though the question ofsentence is a matter of discretion, yet the said discretioncannot be used by a court of law in a fanciful and whimsicalmanner. Very strong reasons on consideration of the relevantfactors have to form the fulcrum for lenient use of the said


discretion. It is because the ringing of poignant and inimitableexpression, in a way, the warning of Benjamin N. Cardozo inThe Nature of the Judicial Process........ "The Judge even when he is free, is still not wholly free. He is notto innovate at pleasure. He is not a knight errant roaming at will inpursuit of his own ideal of beauty or of goodness. He is to draw hisinspiration from consecrated principles. He is not to yield tospasmodic sentiment, to vague and unregulated benevolence. Heis to exercise a discretion informed by tradition, methodized byanalogy, disciplined by system, and subordinated to the primordialnecessity of order in social life'."

34. In this regard, we may usefully quote a passage fromRamji Dayawala and Sons (P.) Ltd. v. Invest Import, AIR1981 SC 2085: "when it is said that a matter is within the discretion of thecourt it is to be exercised according to well establishedjudicial principles, according to reason and fair play, and notaccording to whim and caprice. 'Discretion', said LordMansfield in R. v. Wilkes ((1770) 98 ER 327), 'when appliedto a court of justice, means sound discretion guided by law. Itmust be governed by rule, not by humour; it must not bearbitrary, vague, and fanciful, but legal and regular' (seeCraies on Statute Law, 6th Edn., p.273).

28. In the case Shailesh Jasvantbhai & Anr vs State Of Gujarat &

Ors., (2006) 2 SCC 359, the Hon'ble Supreme Court further observed as

under:

“The law regulates social interests, arbitrates conflictingclaims and demands. Security of persons and property ofthe people is an essential function of the State. It could beachieved through instrumentality of criminal law.Undoubtedly, there is a cross cultural conflict where livinglaw must find answer to the new challenges and the courtsare required to mould the sentencing system to meet thechallenges. The contagion of lawlessness would underminesocial order and lay it in ruins. Protection of society andstamping out criminal proclivity must be the object of lawwhich must be achieved by imposing appropriate sentence.Therefore, law as a corner-stone of the edifice of "order"should meet the challenges confronting the society.Friedman in his "Law in Changing Society" stated that,"State of criminal law continues to be - as it should be - a


decisive reflection of social consciousness of society".Therefore, in operating the sentencing system, law shouldadopt the corrective machinery or the deterrence based onfactual matrix. By deft modulation sentencing process bestern where it should be, and tempered with mercy where itwarrants to be. The facts and given circumstances in eachcase, the nature of the crime, the manner in which it wasplanned and committed, the motive for commission of thecrime, the conduct of the accused, the nature of weaponsused and all other attending circumstances are relevantfacts which would enter into the area of consideration.”

29. Thus the various judgments of the higher courts of the land and

various jurists have tried to provide certain rules to this moral arithmetic.

“It has been stated that the punishment sought to be inflictedfor any given offence should be such that the evil of thepunishment must be made to exceed the advantage of theoffence. The more deficient in certainty a punishment is, the severerit should be. The greater an offence is, the greater reason there is tohazard a severe punishment for the chance of preventing it,and Same punishment for the same offence ought not to beinflicted upon all delinquents. It is necessary to pay someregard to the circumstances which affect sensibility.”

30. However before proceeding further, I may state that keeping in

view the peculiar nature of facts and circumstances of the present case

coupled with the gravity of offence, though none of the convict persons

deserve to be extended the benefit of probation but even otherwise as

the offence u/s 409 IPC is punishable with imprisonment up to life, so the

provisions of Probation of Offenders Act do not apply.

31. Thus in the light of aforesaid well settled principles governing the

exercise of discretion vested in this Court in awarding a just and


appropriate punishment upon each of the six convict persons, I keeping

in view the overall facts and circumstances of the case coupled with the

submissions made on their behalf, am of the considered opinion that the

interest of justice would be suitably met if the six convict persons are

sentenced as under:

(I) Convict Company M/s CTL

(i) For the offence of Section 120-B IPC and Section 120-B IPC

r/w S. 409/420 IPC and Section 13 (1) (c)/13(1)(d) P.C. Act, 1988

convict company M/s CTL is sentenced to pay a fine of Rs. 25 lacs

(Rupees Twenty Five Lacs).

(ii) For the offence u/s 420 IPC, convict company M/s CTL is

sentenced to pay a fine of Rs. 25 lacs (Rupees Twenty Five Lacs).

(ii) For the offence u/s 379/34 IPC, convict company M/s CTL is

sentenced to pay a fine of Rs. 10 lacs (Rupees Ten Lacs).

32. In case of failure to pay the fine amounts as above, necessary

action for realization of fine be initiated against the company as per law.

(II) Convict Mahendra Kumar Agarwalla

(i) For the offence u/s 120-B IPC and Section 120-B IPC r/w S.

409/420 IPC and Section 13 (1) (c)/13(1)(d) P.C. Act, 1988 convict

Mahendra Kumar Agarwalla is sentenced to rigorous imprisonment

for a period of three (3) years and to pay a fine of Rs. 25 lacs

(Rupees Twenty five lacs). In default of payment of fine convict

Mahendra Kumar Agarwalla shall further undergo simple


imprisonment for a period of six (6) months.

(ii) For the offence u/s 420 IPC, convict Mahendra Kumar Agarwalla

is sentenced to rigorous imprisonment for a period of three (3)

years and to pay a fine of Rs. 25 lacs (Rupees Twenty Five Lacs). In

default of payment of fine convict Mahendra Kumar Agarwalla shall

further undergo simple imprisonment for a period of six (6) months.

(iii) For the offence u/s 379/34 IPC, convict Mahendra Kumar

Agarwalla is sentenced to rigorous imprisonment for a period of

two (2) years and to pay a fine of Rs. 10 lacs (Rupees Ten Lacs). In

default of payment of fine convict Mahendra Kumar Agarwalla shall

further undergo simple imprisonment for a period of four (4)

months.

(III) Convict company M/s CML

For the offence u/s 379/34 IPC, convict company M/s CML is

sentenced to pay a fine of Rs. 10 Lacs (Rupees Ten Lacs).

In case of failure to pay the fine amounts as above, necessary

action for realization of fine be initiated against the company as per law.

(IV) Convict Dilip Ray

(i) For the offence u/s 120-B IPC and Section 120-B IPC r/w S.


Dilip Ray is sentenced to rigorous imprisonment for a period of

three (3) years and to pay a fine of Rs. 2.5 Lacs (Rupees Two Lacs

Fifty Thousand). In default of payment of fine convict Dilip Ray shall

further undergo simple imprisonment for a period of three (3)


months.

(ii) For the offence u/s 409 IPC, convict Dilip Ray is sentenced to

rigorous imprisonment for a period of three (3) years and to pay a

fine of Rs. 2.5 Lacs (Rupees Two Lacs Fifty Thousand). In default of

payment of fine convict Dilip Ray shall further undergo simple

imprisonment for a period of three (3) months.

(iii) For the offence u/s 13 (1) (c) P.C. Act, 1988, convict Dilip Ray is

sentenced to rigorous imprisonment for a period of three (3) years

and to pay a fine of Rs. 2.5 Lacs (Rupees Two Lacs Fifty Thousand).

In default of payment of fine convict Dilip Ray shall further undergo

simple imprisonment for a period of three (3) months.

(iv) For the offence u/s 13 (1) (d) P.C. Act, 1988, convict Dilip Ray is

sentenced to rigorous imprisonment for a period of three (3) years

and to pay a fine of Rs. 2.5 Lacs (Rupees Two Lacs Fifty Thousand).

In default of payment of fine convict Dilip Ray shall further undergo

simple imprisonment for a period of three (3) months.

(V) Convict P.K. Banerjee

(i) For the offence of Section 120-B IPC and Section 120-B IPC r/w S.

409/420 IPC and Section 13 (1) (c)/13(1)(d) P.C. Act, 1988 convict P.K.

Banerjee is sentenced to rigorous imprisonment for a period of

three (3) years and to pay a fine of Rs. 1,00,000/- (Rupees One

Lakh). In default of payment of fine convict P.K. Banerjee shall

further undergo simple imprisonment for a period of two (2)

months.


(ii) For the offence u/s 13 (1) (d) P.C. Act, 1988, convict P.K.

Banerjee is sentenced to rigorous imprisonment for a period of

three (3) years and to pay a fine of Rs. 1,00,000/- (Rupees One

Lakh). In default of payment of fine convict P.K. Banerjee shall

further undergo simple imprisonment for a period of two (2)

months.

(VI) Convict Nitya Nand Gautam

(i) For the offence of Section 120-B IPC and Section 120-B IPC r/w S.


Nitya Nand Gautam is sentenced to rigorous imprisonment for a

period of three (3) years and to pay a fine of Rs. 1,00,000/- (Rupees

One Lakh). In default of payment of fine convict Nitya Nand Gautam

shall further undergo simple imprisonment for a period of two (2)

months.

(ii) For the offence u/s 13 (1) (d) P.C. Act, 1988, convict Nitya Nand

Gautam is sentenced to rigorous imprisonment for a period of three

(3) years and to pay a fine of Rs. 1,00,000/- (Rupees One Lakh). In

default of payment of fine convict Nitya Nand Gautam shall further

undergo simple imprisonment for a period of two (2) months.

33. It is however directed that the substantive period of imprisonment

of each of the four convict persons shall run concurrently. They shall also

get benefit of Section 428 Cr.PC.

34. A copy of this order be given free of cost to all the convict persons.

35. All the convict persons have been apprised that if they desire to file


an appeal against the judgment, then they can take assistance of Ld.

Secretary, Delhi High Court Legal Services Committee, Room No. 34,

Lawyers Chamber Block, New Delhi for further assistance.

36. File be consigned to Record Room.

ANNOUNCED IN THE OPEN COURT (BHARAT PARASHAR)TODAY ON 26.10.2020 SPECIAL JUDGE, CBI (PC ACT) ROUSE AVENUE COURT COMPLEX

NEW DELHI


IN THE COURT OF SH. BHARAT PARASHAR, SPECIAL JUDGE (PC …

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