2014 (5) TMI 1007 - HC - Indian Laws

Violation of Section 6(A) of the DSPE Act, 1946 - offence falling under the Prevention of Corruption Act, 1988 - The allegations as set out in the FIR were that a reliable source had informed that Hemant Gandhi is having close contacts with the Petitioner, Lallan Ojha and other officials of the Central Excise for obtaining illegal gratification by corrupt and illegal means from the businessmen - Held that - on 2nd January, 2012 transfer of bribe money had to take place though the exact time and place was not known, however it was contemplated shortly and thus the CBI was required to act with due dispatch and hence at that stage it could not have and was not required to comply with Section 6(A)(1) DSPE Act - After registration, verification may be entrusted to an officer other than who has submitted the SIR. As far as possible, the requisition of records/documents should be avoided during verification of SIRs. In case, it is absolutely necessary to do so, the requisition must go to the concerned Vigilance Officer under the signatures of the SP after obtaining permission from the DIG concerned. It must be ensured that no record/documents are requisitioned before the Competent Authority has passed orders for registration of an SIR. If a case is required to be registered under the Prevention of Corruption Act 1988 against an officer of the rank of Joint Secretary and above or a Government appointee in the Central Public Sector Undertakings, prior permission of the Government should be taken before enquiry/investigation as required under Section 6A of the DSPE Act except the case under Section 7 of the PC Act wherein the registration is followed by immediate arrest of the accused. In case, involvement of another Government servant of the above-mentioned rank(s) is revealed during the course of investigation, a fresh permission as required under Section 6A of the DSPE Act, which should be obtained at the earliest. The permission so obtained should form an integral part of the FIR or the Case Diary, as the case may be. After the registration of FIR another source information was received that the money had been transacted and Rs. 3 lakhs was delivered to the driver of Lallan Ojha. Thus immediately a raid was conducted. The two co-accused Lallan Ojha and Hemant Gandhi were arrested and their disclosure statements recorded. From the car of Lallan Ojha Rs. 2,95,000/- and other incriminating documents were recovered. Raids were conducted at the house and office of the Petitioner. All these actions of the CBI fall within the ambit of investigation not only against co-accused Lallan Ojha and Hemant Gandhi but also against the Petitioner, as in a case of conspiracy the acts of co-accused committed in furtherance of the common object are attributable to the co-accused. Thus, to state that investigation qua the Petitioner started only after his arrest would be incorrect as all the acts performed by the CBI after the registration of FIR were part of investigation qua the Petitioner as well. Since investigation had already commenced against the Petitioner, Clause (d) of Guideline 13.9 of the CBI Crime Manual has no application to the facts of the present case. - Decided against Appellant.

Summary

Issues Involved:
1. Applicability of Section 6(A) of the Delhi Special Police Establishment Act, 1946 (DSPE Act) regarding the necessity of prior approval for investigation.
2. Urgency and applicability of Section 6(A)(2) of the DSPE Act.
3. Compliance with CBI Crime Manual guidelines.
4. Validity of investigation and subsequent proceedings.

Issue-wise Detailed Analysis:

1. Applicability of Section 6(A) of the DSPE Act:
The Petitioner contended that as a Joint Secretary level officer, no enquiry or investigation could be initiated against him under the Prevention of Corruption Act, 1988 without prior approval from the Central Government as mandated by Section 6(A) of the DSPE Act. The Petitioner argued that the investigation, charge-sheet, and subsequent judicial proceedings were in gross violation of this provision. The Petitioner relied on precedents such as Dr. R.R. Kishore v. CBI and H.M. Caire v. Union of India to support his claim that prior approval is mandatory and that subsequent ratification does not suffice.

2. Urgency and Applicability of Section 6(A)(2) of the DSPE Act:
The CBI argued that the case fell under Section 6(A)(2) of the DSPE Act, which allows for investigation without prior approval in cases involving the arrest of a person on the spot for accepting or attempting to accept illegal gratification. The CBI claimed that due to the urgency of laying a trap to catch the accused red-handed, prior approval was not necessary. The Court noted that on 2nd January 2012, the transfer of bribe money was imminent, necessitating immediate action by the CBI. The Court found that the urgency of the situation justified the invocation of Section 6(A)(2) and that the CBI could not have waited for prior approval before conducting the raid.

3. Compliance with CBI Crime Manual Guidelines:
The Petitioner argued that the CBI failed to comply with its own Crime Manual guidelines, particularly Clause 13.9(d), which mandates obtaining permission under Section 6(A) of the DSPE Act if the involvement of a Joint Secretary level officer becomes apparent during the course of investigation. The CBI countered that the Petitioner was named as accused No. 1 in the FIR from the outset, and hence, his involvement was known from the beginning. The Court agreed with the CBI, stating that since the Petitioner was named in the FIR, the investigation against him commenced immediately upon registration of the FIR, and Clause 13.9(d) did not apply.

4. Validity of Investigation and Subsequent Proceedings:
The Court examined whether the investigation and subsequent proceedings were valid in the absence of prior approval. The Court noted that the investigation started with the registration of the FIR based on source information and subsequent actions, including raids and arrests, were part of the investigation against the Petitioner. The Court held that the investigation was valid under Section 6(A)(2) due to the urgency and the immediate need to act on the information received. The Court dismissed the petition and application, finding no illegality in the investigation or the impugned orders.

Conclusion:
The Court concluded that the investigation and subsequent proceedings were valid under Section 6(A)(2) of the DSPE Act due to the urgency of the situation. The CBI's actions were justified, and the guidelines of the CBI Crime Manual were not violated. The petition and application were dismissed.