Ashok Kumar Aggarwal vs Sushil Dewan & Ors.

Madhu Jain, J.

The present criminal appeal has been preferred under Section 380 of the Bharatiya Nagarik Suraksha Sanhita, 2023 [hereinafter referred to as ‘BNSS’] [Corresponding with Section 341 of the Code of Criminal Procedure, 1973] [hereinafter referred to as ‘CrPC’] against the order dated 25.10.2025 passed by the learned Special Judge (PC Act), CBI-02, Rouse Avenue Courts, New Delhi, in Misc. DJ ASJ No. 194/2025, whereby the appellant's application under Section 340 of CrPC [Corresponding with Section 379 of BNSS] seeking initiation of proceedings in respect of the statements contained in the reply dated 02.08.2016 filed by the Central Bureau of Investigation [hereinafter referred to as ‘CBI’], was dismissed.

The appellant, an officer of the Indian Revenue Service [hereinafter referred to as ‘IRS’], was prosecuted by the CBI in RC No. S-19 E/0006/1999 for the offence punishable under Section 13(2), read with Section 13(1)(e), of the Prevention of Corruption Act, 1988 [hereinafter referred to as ‘PC Act’]. The prosecution in this case rested on the allegation that he had acquired assets disproportionate to his known sources of income. The charge-sheet, proceeded on the basis of a sanction order dated 26.11.2002.

Vide a common judgment dated 13.01.2016 in Criminal Revision Petition No. 338 of 2014 and a connected writ petition, a Coordinate Bench of this Court held the sanction that was given for prosecuting the appellant vide order dated 26.11.2002 to be invalid. Pursuant thereto, the learned Special Judge discharged the appellant vide an order dated 10.03.2016.

The CBI thereafter examined the question of challenging the said judgment dated 13.01.2016 before the Supreme Court of India. On a reference made by the CBI regarding the proposed challenge, the Ministry of Law and Justice [hereinafter referred to as ‘MoLJ’] rendered an opinion dated 08.06.2016 that there appeared to be no reasonable ground to agitate the matter further before a higher forum. The relevant portion of the aforesaid opinion of MoLJ is as under:

The Department of Personnel and Training [hereinafter referred to as ‘DoPT’] communicated the said opinion to the CBI by a letter dated 01.07.2016.

On 08.07.2016, the appellant applied to the learned Special Judge for release of documents that were seized during the investigation. The application covered the documents relied upon by the prosecution, the unrelied-upon documents and the documents stated to belong to other persons or public authorities.

On 02.08.2016, the CBI filed a reply signed by Sushil Dewan and although the CBI expressed no objection to the return of the unrelied-upon documents, it opposed the release of the other remaining documents. The reply stated, inter alia, that the correspondence with the administrative Ministry with respect to further legal action in the matter is “underway” and that it would not be prudent to return the seized documents as they might be required in further legal proceedings. As the crux of the present appeal revolves around the aforesaid reply, this Court considers it apposite to reproduce the relevant portions of the same herein:

Finding that the reply did not disclose the precise status of the proposed challenge, the learned Special Judge directed the CBI to file a “clear cut reply” and to state whether any appeal or revision had been filed or was pending or not. The matter was thereafter adjourned to 09.08.2016.

Before the additional reply of CBI was filed, the appellant moved an application on 08.08.2016 under Section 340 of CrPC wherein he alleged, that the concerned statement made by the CBI that “correspondence with the administrative Ministry with respect to further legal action in the matter is underway” in the reply dated 02.08.2016 was factually incorrect as no actual correspondence with the administrative Ministry was then under way and that the opinion of MoLJ with respect to the concerned proposed challenge dated 08.06.2016 had not been disclosed in the said reply. On that basis, he sought initiation of proceedings against respondent No. 1 and the other officers who had authorised the filing of the said reply.

On the very same day, the CBI forwarded a proposal to the DoPT seeking reconsideration of the matter and the opinion of senior law officers with respect to the proposed challenge to the judgment dated 13.01.2016. On 09.08.2016, the CBI filed an additional reply explaining that it had, in principle, decided to challenge the judgment dated 13.01.2016 and that the proposal for such had been forwarded to the DoPT on 08.08.2016. The CBI thereafter filed a reply dated 17.08.2016 opposing the application under Section 340 CrPC.

Vide an order dated 17.08.2016, the learned Special Judge allowed the application for release of the documents, whereafter, the CBI challenged these release directions before this Court in Criminal Miscellaneous Case No. 3816 of 2016. In the meantime, it also instituted SLP (Crl.) No. 10112 of 2016 against the judgment dated 13.01.2016, in which the Supreme Court issued notice on 16.12.2016. Vide an order dated 21.01.2019, a Coordinate Bench of this Court set aside the directions passed for release of the documents described in Annexures A, C, D and E to the application dated 08.07.2016, while leaving it open to the appellant to renew the request after the decision in the special leave petition [hereinafter referred to as ‘SLP’] is made.

In the first round of proceedings under Section 340 of CrPC, the learned Special Judge, vide the order dated 29.05.2018, recorded a prima facie opinion that respondent No. 1 had made dishonest and false averments in the reply dated 02.08.2016 and had thereby committed offences under Sections 191 and 209 of the Indian Penal Code, 1860 [hereinafter referred to as ‘IPC’]. A formal complaint was consequently directed to be instituted before the Chief Metropolitan Magistrate [CMM] as a result of which, the complaint was instituted on 01.06.2018, and cognizance in it was taken on the next day i.e. 02.06.2018. The relevant portion of the said orders are reproduced hereinbelow:

Respondent No. 1 thereafter challenged the orders dated 29.05.2018 and 02.06.2018 in Criminal Appeal No. 867 of 2018 before a Coordinate Bench of this Court. In the course of proceedings in the aforesaid preferred criminal appeal, on 29.05.2024, the CBI was directed to produce the relevant correspondence and file-notings in a sealed cover, after the production and examination of which, the Court noticed, that officers other than respondent No. 1 had also been involved in the preparation and filing of the concerned reply dated 02.08.2016. So without expressing any opinion on the merits of the case, this Court on 11.07.2024 set aside the order dated 29.05.2018 passed by the learned Special Judge to enable him to pass a fresh order after considering CBI’s record and examining the role of the other involved officers as well. The relevant portion of the same is as under:

[Emphasis supplied]

Consequently, on 18.09.2024, the complaint proceedings before the CJM were adjourned sine die, with liberty to revive them subject to a fresh order under Section 340 of CrPC.

Following the remand, the CBI placed the relevant administrative record before the learned Special Judge along with an affidavit dated 23.11.2024. The appellant was permitted to inspect the file-notings, the draft and the vetted and final versions of the replies.

Upon considering this material, the learned Special Judge passed the impugned order dated 25.10.2025 wherein he recorded, that respondent No. 1 had initially prepared a draft which did not oppose the application for release of documents and that a later draft expressly referred to the DoPT having declined the CBI's proposal to file an SLP. The learned Special Judge further recorded, that handwritten alterations to that draft introduced the statement that correspondence with the administrative Ministry was under way.

The impugned order further stated that the final reply was prepared by Sushil Dewan, vetted by Special Public Prosecutor Md. Azad, routed through Superintendent of Police Raman Tyagi and Head of Branch Amit Kumar, and approved by Head of Zone Vineet Vinayak on 01.08.2016. The learned Special Judge identified these officers, in addition to respondent No. 1, as having been instrumental in the preparation and filing of the reply dated 02.08.2016. The learned Special Judge found that, as on 02.08.2016, no correspondence concerning the proposed SLP was under way between the CBI and the DoPT and that what was actually pending was an internal process of deliberation within the CBI. Accordingly, the learned Special Judge held that the reply dated 02.08.2016 conveyed an incorrect impression.

The Court however, concluded, that the concerned statement resulted from an imprecise choice of words rather than a deliberate attempt to mislead the Court, and further recorded that the CBI had corrected its mistake at the first available opportunity by filing the additional reply dated 09.08.2016. Having regard to the absence of prejudice to the appellant, the fact that the application for release of documents had initially been allowed, and the lapse of time, the learned Special Judge held that it was not expedient in the interest of justice to initiate proceedings against any serving or former officer of the CBI and dismissed the application filed by the appellant under Section 340 CrPC.

The aforesaid observations are reflected in the following portions of the impugned order:

(underlined for emphasis)

Aggrieved by the aforesaid, the appellant has preferred the present criminal appeal.

Learned senior counsel appearing on behalf of the appellant submitted that, following the judgment of this Court dated 13.01.2016, the appellant sought release of the documents that were seized from him during investigation. It was further submitted that in its reply dated 02.08.2016, the CBI stated that correspondence with the administrative Ministry concerning further legal action to be taken with respect to the said judgment was “underway”, when in reality no such correspondence was underway as the MoLJ had already advised in their legal opinion that was rendered, against pursuing the matter before a higher forum.

The learned senior counsel drew the attention of this Court towards the impugned order, in which the learned Special Judge found that the CBI at the concerned time was engaged in internal deliberation about seeking further legal opinion, and that this could not be equated with correspondence with an external administrative authority. It was submitted, that this particular factual finding had not been challenged or disputed by the CBI at any stage. He further submits that CBI’s additional reply dated 09.08.2016, filed after the appellant’s application under Section 340 CrPC on 08.08.2016, could not make the earlier statement accurate or correct averments, which were deliberately falsified.

Learned senior counsel further submitted that the order dated 29.05.2018 had directed the filing/institution of a complaint under Section 340 CrPC before the court of the learned Magistrate after it had found that respondent no. 1 had prima facie deliberately made false averments in the reply dated 02.08.2016. According to him, the remand ordered by this Court on 11.07.2024 was for the purposes of examination of the role of other officers involved in preparing and approving of the concerned reply and that the learned Special Judge in his impugned order, having identified those officers, ought not to have declined action by treating the absence of prejudice to the appellant as being decisive in nature.

Learned senior counsel further referred to the draft reply reproduced in the impugned order, to submit that the concerned officer had originally recorded that the opinion rendered by MoLJ had been received and that when the draft was placed before the higher officer, that concerned relevant portion was specifically struck out and the language was changed.

It is further submitted that the question under Section 340 CrPC was whether a statement known to be false was made in proceedings before the Court and was capable of affecting the administration of justice. It was submitted that the fact that the Court was ultimately not misled, or that the appellant’s application for release of documents was initially allowed, did not answer that question. Reliance in this regard was placed on the decisions of the Supreme Court in R. Karuppan, Advocate, Suo Motu Proceedings against In re, (2001) 5 SCC 289, Mahila Vinod Kumari v. State of M.P., (2008) 8 SCC 34 and Dhananjay Sharma v. State of Haryana, (1995) 3 SCC 757.

Learned SPP appearing for the CBI on the other hand supported the impugned order by submitting that it was for the Court concerned to determine whether any action under Section 340 CrPC was expedient or not. That the learned Special Judge had considered the record and found that the Court had not been misled by CBI’s reply dated 02.08.2016.

Learned SPP submitted that the opinion of the MoLJ was advisory and that the CBI was under no obligation to disclose a legal opinion received by it. Referring to CBI’s file notings, the learned SPP submitted that reconsideration of the proposed challenge and the obtaining of further opinion were under consideration within the CBI by July 2016. He further submitted that the reply was incorrect rather than false, that the Court had not been misled, and that the question of misleading the Court or committing perjury did not arise.

Learned SPP further relied upon the additional reply dated 09.08.2016 filed by CBI before the learned Special Judge and the fact that the appellant’s application for release of documents had been allowed in its entirety by the Trial Court, even though that order was subsequently reversed by the higher forum. He submitted that the CBI corrected its mistake at the first available opportunity, that neither the Court nor the appellant suffered prejudice in the adjudication of that application, and that the learned Special Judge was therefore justified in declining to initiate proceedings under Section 340 CrPC.

Learned senior counsel for the appellant in rebuttal submitted that the issue was not merely whether the CBI was obliged to disclose the Ministry’s opinion or not. It was submitted that the objection was to CBI’s affirmative statement that correspondence with the Ministry was “underway” when even, as has also been recorded in the impugned order, only internal consideration was taking place. It was reiterated that the absence of actual prejudice or an adverse order against the appellant was not the test for rejecting the application under Section 340 CrPC.

This Court has heard the learned senior counsel appearing on behalf of the appellant as well as the learned SPP appearing for the CBI, and has also perused the material placed on record.

The controversy in the present appeal is whether the statement contained in CBI’s reply dated 02.08.2016, when considered with the contemporaneous official record and the concerned officers role in its preparation and filing, prima facie discloses the commission of offences referred to in Section 195(1)(b) of CrPC which in the present case are Sections 191 read with 193 of IPC and Section 209 IPC, and further, whether it is expedient in the interests of justice to direct the making of a complaint under Section 340 of CrPC with respect to such offences.

At the outset, it is necessary to distinguish the formation of an opinion under Section 340 CrPC that an offence has been committed, from the adjudication of guilt in the prosecution of it that may follow. The Court must be satisfied, on the basis of the material placed on record before it, that an offence falling within or referred to in Section 195(1)(b) of CrPC appears to have been committed in, or in relation to the proceedings before it. The Court must further consider, independently, whether an inquiry by the competent Magistrate into that offence is expedient in the interests of justice, as a complaint does not follow as a matter of course from every incorrect or contradictory statement.

In K. Karunakaran v. T.V. Eachara Warrier, (1978) 1 SCC 18, the Apex Court held that, irrespective of what happened in the principal proceedings, the Court must examine whether the material placed before it discloses a prima facie case which has a reasonable likelihood of establishing the specified alleged offence, and whether action with respect to such is expedient in the interests of justice or not.

In Pritish v. State of Maharashtra, (2002) 1 SCC 253, it was further clarified that the preliminary inquiry contemplated under Section 340 of CrPC is directed to the question of expediency only and is not a trial to determine the guilt of the accused person. It was also stated that it is not mandatory for the Court to conduct this preliminary enquiry and that the opinion required to be formed, can be formed, even without conducting such a preliminary enquiry. It was further observed, that the concerned Court is not mandated to make a complaint even if it has formed a prima facie opinion that an offence that is alleged has been committed. But also, that if it does decide to make a complaint, it is necessary for it to establish that it is expedient in the interests of justice to make such a complaint.

In Iqbal Singh Marwah v. Meenakshi Marwah, (2005) 4 SCC 370, the Constitution Bench of the Supreme Court explained, that expediency is ordinarily assessed with reference to the effect of the alleged offence upon the administration of justice, rather than the magnitude of the injury suffered by an individual litigant. Consequently, the absence of an adverse order against the applicant, though relevant to the overall assessment, cannot by itself be treated as sufficient to decline action where a material falsehood has prima facie been knowingly placed before the Court.

The principles discussed above require this Court to consider whether the contemporaneous record furnishes a prima facie basis for treating the assertion in the reply dated 02.08.2016 as a deliberate falsehood on a matter of substance as the reply filed by the CBI was capable of influencing the Court’s decision in the application filed by the appellant. The aforesaid principles also require this Court to separately consider, whether an inquiry into such deliberate falsehood which if prima facie established, is expedient in the interests of justice or not.

Before proceeding further, it is necessary to clarify the scope of the order dated 11.07.2024. The Coordinate Bench did not set aside the order dated 29.05.2018 on merits. The matter was remanded because the CBI’s record had become available and disclosed the involvement of other officers whose roles had not been examined earlier. The earlier order was set aside only to enable the learned Special Judge to consider that record and examine the roles of those officers as well. The Coordinate Bench did not hold that the prima facie findings against respondent No. 1 were erroneous or that the allegations against him were unfounded. The remand, therefore, cannot be treated as an exoneration of respondent No. 1. After examining the record and the roles of the other officers, the learned Special Judge dismissed the application under Section 340 CrPC. The correctness of that dismissal falls for consideration in the present appeal.

The finding recorded in the impugned order that, as on 02.08.2016, no correspondence was under way between CBI and the DoPT is borne out by a bare perusal of the contemporaneous record placed before this court. The opinion rendered by the MoLJ dated 08.06.2016 had already been communicated to the CBI through the DoPT by a letter dated 01.07.2016, and what remained pending was an internal proposal to seek reconsideration and further legal opinion. The successive drafts show, that the disputed statement was not merely an imprecise description of that internal process. Draft 2 expressly stated that the DoPT had turned down the proposal for filing an SLP. That statement as can be clearly seen was deleted and was replaced by a handwritten assertion that correspondence with the administrative Ministry was under way when it is clear that at the time no such correspondence was underway. This concerned alteration changed the very factual position sought to be presented before the Court.

It is clear that Sushil Dewan prepared the successive drafts, incorporated the handwritten alteration into Draft 3, prepared the final reply and filed it under his signature. Since he had himself prepared the earlier draft recording the DoPT’s decision, his subsequent incorporation and adoption of the altered statement prima facie indicate knowledge of the correct position.

The contemporaneous record also places Vineet Vinayak in a direct and material role. His noting dated 19.07.2016 shows awareness that the DoPT had already communicated its decision and that reconsideration was only being proposed. The impugned order further prima facie attributes to him the handwritten deletion of the correct position from Draft 2 and the introduction of the assertion that correspondence with the Ministry was under way. His subsequent approval of the final reply on 01.08.2016 prima facie indicates conscious adoption of the altered statement.

Prem Kumar Gautam’s recommendation dated 19.07.2016 expressly recorded that the DoPT had turned down the proposal for filing an SLP. He dealt with Drafts 1 and 2, obtained their vetting from Md. Azad and forwarded the matter to Amit Kumar. Amit Kumar’s own noting also referred to the DoPT’s communication and proposed that reconsideration be sought. His subsequent routing of Draft 2 and the final reply for approval shows that both officers were aware of the actual position and participated in the decision-making process which preceded the filing of the reply.

Md. Azad vetted Draft 2, which disclosed the DoPT’s decision, and subsequently vetted the final reply containing the altered statement. His participation at both stages prima facie shows familiarity with the change in the position presented before the Court. On the other hand, Raman Tyagi dealt with the final reply, obtained its vetting and forwarded it to Amit Kumar.

The contemporaneous record thus discloses different degrees of involvement. Sushil Dewan prepared, incorporated and filed the altered statement, Vineet Vinayak is prima facie connected with its handwritten introduction and final approval, Prem Kumar Gautam, Amit Kumar and Md. Azad possessed knowledge of the earlier position and participated in processing the draft whereas Raman Tyagi’s recorded role is related to processing the final reply.

CBI’s contention that the opinion of the MoLJ was advisory, also does not resolve the controversy. The CBI was entitled to seek reconsideration, obtain another opinion and pursue such remedy as was available in law. However, its right to do so did not permit an internal proposal awaiting approval to be represented as a correspondence already underway with the Ministry. The present finding is founded upon the affirmative factual statement made in Court, its inconsistency with the contemporaneous record, and the demonstrated knowledge of that record. It does not rest merely upon the non-disclosure of a legal opinion.

The disputed statement in itself is a matter of substance as it formed part of the explanation that was offered for retaining documents after the appellant’s discharge and was expressly connected with the request that they should not be returned because they might be required in further proceedings. Whether a challenge had been initiated, whether a proposal had actually been forwarded, or whether the matter remained at the stage of internal consideration were all facts that were relevant to the Court’s assessment of that request. So the statement was therefore, capable of influencing the decision on the very application filed by the appellant before the Court of the learned Special Judge.

The additional reply dated 09.08.2016 is required to be read in conjunction with the earlier reply of the CBI dated 02.08.2016. It records that an in-principle decision had been taken within the CBI and that the proposal was forwarded to the DoPT only on 08.08.2016, thereby drawing a clear distinction between internal consideration and the actual transmission of the proposal. Thus, even when both replies are read together, the inconsistency between the assertion made in the reply dated 02.08.2016 and the factual position as on that very date remains unexplained.

This Court even if accepts, that the additional reply was filed by the CBI in compliance with the earlier direction of the learned Special Judge to file a clear cut reply, it does not explain, why a draft acknowledging the DoPT’s decision was altered so as to state that correspondence with the ministry was underway.

There is a further difficulty with treating the additional reply as an unqualified correction of an inadvertent mistake. In its reply dated 17.08.2016 to the application under Section 340 CrPC filed by the appellant, the CBI continued to maintain that there had been no misstatement and that its earlier assertion was correct because the proposal was being processed internally. That explanation has also itself been rejected by the learned Special Judge in the impugned order. The later clarification is a relevant circumstance, but it cannot be given the effect of conclusively negativing the inference arises from the drafting record.

The learned Special Judge placed considerable reliance on the fact that the appellant’s application for release of documents was initially allowed and that the Court was not ultimately misled by the reply dated 02.08.2016. The reasoning of the learned Special Judge that no injustice was caused to the appellant since his application had been initially allowed runs contrary to the principle laid down by the Supreme Court in Iqbal Singh Marwah v. Meenakshi Marwah [Supra], that expediency under Section 340 of CrPC is to be judged by the effect or impact of the alleged offence upon the administration of justice and not by the magnitude of injury suffered by an individual litigant. It remained necessary to consider whether the incorrect assertion was prima facie made with knowledge of the true position and whether an inquiry into its use in the judicial proceeding was expedient in the interests of justice.

The subsequent institution of an SLP and the order dated 21.01.2019 setting aside certain directions for return of documents must be considered in their proper context. Those developments only bear upon the availability and outcome of further legal proceedings. They do not retrospectively establish that correspondence with the Ministry was underway on 02.08.2016. The truth of the statement made on that date must be assessed with reference to the position that existed at that particular time.

Section 191 IPC applies where a person, legally bound to state the truth, makes a statement which he knows or believes to be false or does not believe to be true, while Section 193 IPC prescribes the punishment for intentionally giving false evidence in a judicial proceeding. In Perumal v. Janaki, (2014) 5 SCC 377, the Supreme Court explained that the inquiry must address both the legal obligation to state the truth and the maker’s knowledge or belief concerning the statement.

In Sanjeev Kumar Mittal v. State, 2010 SCC OnLine Del 4006, a Coordinate Bench of this Court held that a knowingly false averment in a pleading required by law to be verified may attract Section 191 IPC upon its filing, even if its maker does not enter the witness box. Applying that principle, the inquiry at this stage cannot be confined merely to the officer who signed the reply, where the record prima facie shows that other officers knowingly participated in making, adopting or causing the statement to be placed before the Court.

In view of the individual roles discussed in the impugned order, the successive drafts and file-notings, considered cumulatively, prima facie indicate that each concerned officer, to the extent attributed to him, participated in the preparation, alteration, vetting, processing, approval or filing of the reply dated 02.08.2016 with knowledge of the actual position. The difference in the nature and degree of their respective participation does not warrant the exclusion of any officer at the stage of directing a complaint, their precise knowledge and culpability are matters for determination by the competent Court.

Since the altered assertion was material to the relief sought from the Court, the contemporaneous record provides a reasonable foundation for the allegations under Section 191 read with Section 193 IPC against all the concerned officers.

Now section 209 of IPC on the other hand concerns itself with the making, fraudulently, dishonestly, or with intent to injure or annoy any person, of a claim in a Court of law which the maker knows to be false. In HS Bedi v. National Highway Authority of India, 2016 SCC OnLine Del 432, a Coordinate Bench of this Court explained that a claim includes the factual basis upon which a party seeks an outcome from the Court and may also arise in a reply or defence. The provision is also not confined to the party instituting the concerned proceedings.

In the present case, the assertion concerning ongoing correspondence was used as a factual ground to oppose the appellant’s request and to seek continued retention of his documents. The respective acts of preparing, altering, vetting, processing, approving and filing the reply, read with the knowledge disclosed by the preceding drafts and file-notings, furnish a reasonable basis for the prima facie inference that the concerned officers participated in advancing a claim which was known to be inconsistent with the existing position. These circumstances disclose substantially more than the mere failure of a party to establish a contention. They prima facie attract Section 209 IPC against all the concerned officers, subject to proof of their respective knowledge, intention and participation before the competent Magistrate.

The decisions of the concerned respective Coordinate Benches of this Court in Walmark Holdings Ltd. v. Fortis Healthcare Ltd., 2026 SCC OnLine Del 679 and Deepika Prashar v. Suman Singh Virk, 2024 SCC OnLine Del 6893 [upheld by a Division Bench of this Court in Suman Singh Virk v. Deepika Prashar, 2025 SCC OnLine Del 5492] also illustrate the application of the aforesaid principles where the record supplies a concrete basis for alleging a conscious falsehood. Their facts are distinct but they do not dispense with the requirement of establishing the ingredients of the offences alleged. And at the same time, they reinforce the need to assess the demonstrated conduct and the documentary material, rather than to treat a subsequent explanation or change of stand as an automatic answer to the earlier statement.

The learned Special Judge also relied on the lapse of nearly a decade in declining to direct a complaint under Section 340 of CrPC. That circumstance must be considered in the procedural history of the case as the appellant moved the concerned application on 08.08.2016, shortly after the reply filed by CBI dated 02.08.2016. The order dated 29.05.2018 passed by the learned Special Judge directing the institution of a complaint under Section 340 of CrPC remained under challenge until a Coordinate Bench of this Court set it aside and remanded the matter back on 11.07.2024 which led to the application being decided afresh in 2025, which further led to the present impugned order dated 25.10.2025 which is the subject matter of the present proceedings. The allegation was, therefore, raised promptly and has remained the subject of judicial proceedings throughout. Further, the relevant material is principally documentary, comprising preserved official drafts, file notings and court filings. The impugned order identifies no loss of any such material that would render a fair inquiry into the allegations against the concerned officers impracticable. In these circumstances, the passage of time does not, by itself, outweigh the reasons for directing a complaint under Section 340 CrPC.

On the separate question of expediency, this Court has considered the nature of the assertion made by the CBI in its reply dated 02.08.2016, its relevance to the relief sought by the appellant in the proceedings in which the aforesaid reply was filed, the official record demonstrating how it was introduced, prima facie inferences regarding the concerned officers’ knowledge of it and participation therein, insufficiency of the explanation given later and the history of the proceedings. The concerned statement was made on behalf of the prosecuting agency concerning a matter within its own knowledge and was relied upon to secure an order against the appellant’s request. Courts must be able to assess such representations on a truthful account of the existing position. A deliberate substitution of that account with a materially false claim directly affects the fairness of the adjudicatory process. The justification for further proceedings accordingly extends beyond the appellant’s individual grievance.

The threshold for directing a complaint under Section 340 of CrPC is therefore satisfied. There is a reasonable foundation in the contemporaneous record for the allegations levelled under Section 191 read with 193 of IPC and Section 209 of IPC against the concerned officers, and this Court is of the opinion that an inquiry into the aforesaid alleged offences is expedient in the interests of justice. A further preliminary inquiry is unnecessary for forming that opinion, since the successive drafts, the relevant file-notings and the signed reply [cumulatively the contemporaneous record] have already been examined.

The learned Special Judge, therefore, erred in treating the disputed statement as an imprecise choice of words and in placing determinative reliance upon the additional reply dated 09.08.2016, the absence of actual prejudice to the appellant and the passage of time. These considerations do not displace the prima facie inference arising from the successive drafts, the relevant file-notings and the concerned officers participation in preparing and filing the reply dated 02.08.2016. The material provides a reasonable foundation for the allegations under Section 191 read with Section 193 IPC and Section 209 IPC, and an inquiry into these alleged offences is thereby, expedient in the interests of justice.

Accordingly, the impugned order dated 25.10.2025 passed by the learned Special Judge (PC Act), CBI-02, Rouse Avenue Courts, New Delhi, in Misc. DJ ASJ No. 194/2025 is set aside.

The appellant’s application under Section 340 CrPC filed before the learned Special Judge is therefore, allowed by this Court in exercise of its Appellate jurisdiction. The learned Special Judge is hereby directed to make a complaint in writing against Sushil Dewan, Vineet Vinayak, Amit Kumar, Raman Tyagi, Prem Kumar Gautam and Md. Azad for the alleged commission of offences punishable under Section 191 read with Section 193 IPC and Section 209 IPC, and to transmit the same to the concerned jurisdictional Magistrate within a period of four weeks from the date of receipt of this judgment.

Since Court Complaint No. 5/2018, titled “Court Complaint v. Sushil Dewan”, was adjourned sine die with liberty to revive it upon the passing of a fresh order under Section 340 CrPC, the complaint directed via this judgment shall be placed before the Court of the learned Chief Judicial Magistrate (Central), Tis Hazari Courts, Delhi, in the said proceedings. The learned Chief Judicial Magistrate shall pass appropriate orders regarding its revival and proceed further in accordance with law, while ensuring that parallel proceedings concerning the same allegations are not instituted.

The concerned competent Court shall proceed independently, on the basis of the material placed on record before it, without being influenced by any observation made herein for the purposes of directing the complaint.

The present criminal appeal therefore, stands allowed and is thereby, disposed of.

Pending application[s], if any, also stand[s] disposed of.

Interim order[s], if any, also stand[s] vacated.

A copy of this judgment be sent to the Court of the concerned learned Special Judge who shall while directing a complaint under Section 340 CrPC forward a copy of this judgment to the concerned learned Magistrate along with the complaint.

The judgment be uploaded on the website forthwith.