THE Ghaziabad District Court Provident Fund scam, which came to light in January 2008, points to the possible involvement of several District and High Court judges and a Supreme Court judge. The scam involves the fraudulent withdrawal of P.F. advances amounting to Rs.7 crore from the Ghaziabad district treasury between 2001 and 2007 in the name of Class III and IV employees of the District Court. The investigation into the case has made tardy progress, and it is in this context that the mysterious death, on October 17, of the principal accused, Ashutosh Asthana, at the Dasna jail in Ghaziabad, has to be seen.
The absence of witness protection measures too went against Asthana, for he was also the key witness, having given a confessional statement on April 28, 2008, to the magistrate. In it he alleged the involvement of 36 sitting and retired judicial officers, including High Court judges (some of whom have since retired) and a sitting Supreme Court judge. As the Central Nazir (treasury officer), Asthana prepared notes that were the basis on which district judges sanctioned payments. Specifically, he said in his statement that he withdrew money illegally from the GPF on the instructions of seven successive district judges, whom he named, and that a number of other sitting and retired judicial officers, whom also he named, were the beneficiaries of his largesse.
In his statement, Asthana said a large part of the funds withdrawn from the treasury as P.F. advances were used for purchasing household articles such as air-conditioners, mobile phones, refrigerators and furniture.
Asthana also produced before the investigating officers as well as the media, a large number of documents that showed the purchase of these items from various dealers in Ghaziabad and their transport to the residences of many of the judicial officers.
The scam was first brought to the notice of the Allahabad High Court by Rama Jain, Vigilance Officer of the Ghaziabad District Court. The High Court, on the basis of her statement and the findings of the committee it had set up, ordered the registration of a first information report (FIR).
It was registered against Asthana and 82 others. The FIR stated that Asthana, in collusion with 39 outsiders, 13 Class III and 30 Class IV employees of the court, had withdrawn crores of rupees from the employees P.F. His modus operandi was to show the outsiders and Class III employees as Class IV employees, withdraw P.F. advances in their names, deposit the cheques so received into the bank accounts of the fictitious Class III and Class IV employees and then withdraw from them.
The Ghaziabad police investigated the role of non-judicial officers among the accused and arrested more than 60 employees of the District Court. Those arrested included Asthana, his wife Sushma Asthana, his mother-in-law Savitri, and daughter Chanchal. Chanchal was discharged after the police claimed that her arrest was a case of mistaken identity.
The police could not interrogate the judicial officers because the Supreme Court had in a case in 1991 barred them from doing so without the permission of the Chief Justice of India (CJI).
The Ghaziabad Senior Superintendent of Police (SSP) wrote to the CJI seeking his permission to interrogate the judicial officers concerned. The Registrar General of the Supreme Court, under the CJIs direction, wrote to the Ghaziabad SSP to submit the questions that were proposed to be asked to each of these judges, along with the evidence against them. The SSP complied with this instruction.
Concerned that enormous pressure was being brought to bear on the State police, the Ghaziabad Bar Association petitioned the Allahabad High Court seeking a transfer of the case to the Central Bureau of Investigation (CBI).
When the High Court rejected the petition, Nahar Singh Yadav, an advocate, filed an appeal, in the form of a Special Leave Petition (SLP), in the Supreme Court. The SLP estimated the loss to the public exchequer from this scam at approximately Rs.23 crore.
Transparency International (India) also filed a petition in the Supreme Court seeking an independent probe into the case, in which it charged the Registrar General of the court with placing fetters on police investigations into the role of judicial officers and made him a respondent. The insinuation by the T.Is counsel, Shanti Bhushan, in the petition that this was done on the direction of the CJI made the Chief Justice of India, K.G. Balakrishnan, recuse himself from the Bench hearing the case. Soon, another Bench, headed by Justice B.N. Agrawal, began to hear the case. However, Justice Agrawal, too, recused himself from the case after angry exchanges between the Bench and the T.I.s counsel on August 7 last year.
A three-judge Bench headed by Justice Arijit Pasayat (now retired) and comprising Justices V.S. Sirpurkar and G.S. Singhvi then began to hear the case. On September 23, 2008, it directed the CBI to investigate the scam and submit periodical status reports to it. The direction came after the Uttar Pradesh government conveyed to the court that its police were unable to openly, impartially and freely interrogate the judges whose involvement had been alleged.
The CBI has submitted four status reports so far to the court. After perusing the reports, the Bench directed that they be kept in sealed covers by its Registry. In an order on March 27, 2009, the Bench mentioned that the CBI had examined several judicial officers. The Bench asked the then Solicitor-General, G.E. Vahanvati (now Attorney General), to file a report as to whether any adverse material had surfaced during the inquiry. This report, filed on March 31, also remains under wraps.
In his interlocutory application filed before the court on September 4, Nahar Singh Yadav deplored the fact that the CBI, in spite of submitting four status reports to the Supreme Court, had not so far filed any FIR or charge sheet against any judicial officers (some of whom had retired) whose names had been indicated on page 48 of his SLP and who had occupied the office of District Judge, Ghaziabad, at the relevant periods. The petitioner brought to the notice of the court that Rama Jain had been transferred to Sultanpur, which is more than 500 kilometres from Ghaziabad.
The irony of the complainant being transferred to a faraway place, while many of the accused judicial officers continued to serve in Ghaziabad and other places of their choice, was not lost on observers. The Supreme Court is rightly concerned about a possible trial by the media if the results of the investigation are made public before it is completed. However, the petitioners wanted access to the CBIs reports on the investigation as the matter involved misappropriation of public funds and manipulation of government accounts.
Nahar Singh Yadav, through his senior counsel, Anil Divan, urged the court to transfer the case from the Special Judge, CBI, Ghaziabad, to a CBI court in New Delhi or any other place and to constitute a Special Investigation Team (SIT) for the case under a retired police officer who has a high reputation for integrity.
The Supreme Court Bench comprising Justices D.K. Jain, V.S. Sirpurkar and G.S. Singhvi, on October 20, rejected a plea from T.I.s counsel for a SIT to probe Asthanas death. It said that as a judicial probe had already been announced, a parallel inquiry would be superfluous.
When counsel Prashant Bhushan said people would not have faith in the inquiry by a judicial magistrate because of the alleged involvement of judges, and suggested a probe by a SIT headed by a person of unimpeachable integrity, the court said it would await the report of the judicial magistrate within the next eight weeks before proceeding further. The Bench directed the Uttar Pradesh government to hand over the viscera samples taken from Asthanas body to the CBI for examination at the All India Institute of Medical Sciences (AIIMS), New Delhi. The viscera test is likely to establish how Asthana died.
The Bench also directed the State government to provide adequate protection to the witnesses and the accused in the case. But the State police appear to be at a loss to determine the degree of protection to be given to each person as the CBI is the investigating authority.
Unfortunately, the CBI cannot share this information with the State police without clear instructions from the Supreme Court. Therefore, the security of other key witnesses and accused in this case appears to be in peril.
The death of Asthana even before the trial started has raised doubts about the effectiveness of prosecution. Had he been alive the reliability of his confession recorded before a magistrate under Section 164 of the Criminal Procedure Code could have been tested and he could have been cross-examined by the co-accused. But the absence of this possibility cannot lessen the evidentiary value of his confession, which was voluntary, true and trustworthy.
The magistrate who recorded Asthanas confession told him that he was not required to give the statement under Section 164 of the CrPC and that his statement could be used as evidence against him. Still he went ahead and made the confession. Since the magistrate followed proper procedure for recording the confession, a trial court is likely to treat this as reliable evidence and compare it with the rest of the evidence in the light of the circumstances and probabilities of the case.
A huge responsibility, therefore, devolves on the investigators to marshal corroboratory evidence against the other accused and use Asthanas judicial confession as an aid to sustain their conviction.
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