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TMI Blog2014 (5) TMI 1007X X X X Extracts X X X X X X X X Extracts X X X X ..... im for an offence falling under the Prevention of Corruption Act, 1988 (in short the PC Act) without the previous approval of the Central Government. In the above-mentioned case not only enquiry and investigation were initiated which culminated into filing of a charge-sheet and taking of the cognizance thereon in gross violation of Section 6(A) of the DSPE Act, 1946. This Court in Dr. R.R. Kishore v. CBI - 2007 (142) DLT 702 quashed the investigation committed in breach of the mandatory provision of Section 6(A) of the DSPE Act and directed the Respondent to reinvestigate the matter in case approval under Section 6(A) of the DSPE Act was granted by the Central Government. Despite the fact that the Petitioner brought to the notice of the CBI, even prior to his arrest, that the approval under Section 6(A) of the DSPE Act was mandatory, the CBI in complete violation of the DSPE Act and the decision of this Court continued with the investigation and filed the charge-sheet. Even if the contention of the CBI was to be accepted that the time was short and they had to lay a trap to catch a public servant red-handed as per the CBI Crime Manual, the CBI could have taken the necessary approva ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of India and Ors. - 2008 (Suppl) GLT 446. Reliance is also placed on Krishan Murari Lal Sehgal v. State of Punjab - (1997) 2 SCC 587 wherein the Hon'ble Supreme Court held that previous approval does not mean subsequent ratification and H.M. Caire v. Union of India and Ors. - 2008 (Suppl) GLT 446 wherein the Guwahati High Court quashed the investigation conducted by the Respondent CBI being in derogation of mandate of Section 6(A) of the DSPE Act. 3. Learned counsel for the CBI adverting to the facts states that in the above-mentioned FIR registered on 2nd January, 2012 the Petitioner was named as accused No. 1. Since immediate trap was to be laid, the approval as required under Section 6(A)(1) of the DSPE Act was not essential, and the case falls under sub-section (2). The Appellant and his co-accused were to accept the illegal gratification in the office however the Appellant did not reach the office rather got himself admitted in the hospital. Raids were conducted on the house and the office of the Petitioner on the said date and since the Petitioner was hospitalized, he was not immediately arrested. The transaction did take place and the money was recovered from the car ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Petitioner Hemant Gandhi. It was further learnt that Hemant Gandhi was in regular touch with Dilip Aggarwal and Anand Aggarwal and had received from them a huge amount of money as part of the illegal gratification along with a cheque of Rs. 20 lakhs issued by Anand Aggarwal as security for the remaining amount on 30th December, 2011. On the request of Dilip Aggarwal, Hemant Gandhi spoke to Lallan Ojha and the Petitioner for reducing the amount of illegal gratification. Both the public servants asked Hemant Gandhi to meet them in their office located at ITO New Delhi on 2nd January, 2012. Lallan Ojha also asked Hemant Gandhi to bring Rs. 3 lakhs as his share out of the amount of illegal gratification obtained as above from Dilip Aggarwal on behalf of Central Excise officials. It was reliably learnt that Rs. 3 lakhs was to be delivered to Lallan Ojha at ITO office on 2nd January, 2012. Since the information disclosed the commission of the offences noted above, the abovementioned FIR was registered and in the FIR itself it was noted that though the Petitioner was holding office of a public servant equivalent to Joint Secretary but in view of the provisions of Section 6(2) of the DS ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etitioner therein over the phone which conversation was allegedly recorded. During the conversation, the Petitioner therein agreed to accept a certain sum of money in the evening of 16th December, 2004 and thus the concerned Inspector proceeded with the pre-trap formalities and conducted the trap. Shri Handa met the Petitioner therein on 14th December, 2004 and the Petitioner therein informed him that the members of the appropriate authority had become corrupt, were demanding Rs. 20,000/- each and therefore the Petitioner demanded a sum of Rs. 80,000/- from Shri Handa in two-three days. The complainant also alleged that the Petitioner therein acceded to the complainant's request of paying the same in two installments. It is thus apparent that there was no urgency as no time for acceptance of illegal gratification was fixed and the same was fixed on the telephone after registration of FIR when the complainant was made to talk to the Petitioner therein on the telephone which conversation was allegedly recorded. It is in this light this Court held that Section 6(A)(1) of DSPE Act is mandatory in nature and in the said case the question of applicability of Section 6(A)(2) of DSPE Act d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... registration of FIR as per the Respondent. As per the status report and learned counsel for the CBI alter registration of FIR another source information revealed that Rs. 3 lakhs were delivered by Hemant Gandhi to Lallan Ojha through his personal driver and were kept in car No. DL-4C AD 4421 AVEO Chevrolet (Black colour) of Lallan Ojha parked in the back side parking of Central Revenue Building, ITO New Delhi. In pursuance of the said information, a team of CBI officers/officials including two independent witnesses reached C.R. Building where Lallan Ojha was apprehended and Rs. 2,96,500/- were recovered from the dicky of his car parked in the back side parking of C.R. Building. Dilip Kumar Yadav, the driver of Lallan Ojha confirmed that this packet was delivered to him by unknown person at the instance of Lallan Ojha. The proceedings continued and Lallan Ojha was formally arrested. Lallan Ojha disclosed the involvement of Hemant Gandhi and the Petitioner. Thus another team of officials was sent to arrest Hemant Gandhi at Punjabi Bagh who was arrested at 2.20 PM from his office. Simultaneously another team of officers raided the Petitioner's house and office at 4.00 and 7.00 PM resp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 8.30 However, if the Source Information Report is likely to result in laying a trap to catch a public servant red handed or where surprise check becomes necessary and the time available is short, the SP may after keeping the Competent Authority informed take further steps and submit the file subsequently for regular approval. 8.33 After verification, the Verifying Officer should submit his detailed report, wherein it should be specified whether the allegations of the SIR have been substantiated or not. The Verifying Officer should invariably mention whether the subject matter of the SIR has already been looked into by the department or its Vigilance Wing and the action taken thereon. He would also make specific recommendation whether the matter may be closed, referred to the department, or a Regular Case or Preliminary Enquiry could be registered for open probe. In case, the recommendation is for registration of a Regular Case, the names of the individuals against whom the case could be registered m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arned counsel for the Respondent contends that in the present case the investigation qua the Petitioner started immediately on registration of FIR as the Petitioner's involvement was known from the source information itself and he was named in the FIR as accused No. 1. Unfortunately on the raids being conducted on that date the Petitioner could not be arrested as he had avoided the same by getting admitted in the hospital and in such an eventuality guideline 13.9(d) has no application. Having read Clause (d) of guideline 13.9 it is apparent that the same would have application in a case where not at the outset but during the course of a search/investigation/inquiry, the involvement of an officer of the level of Joint Secretary and above becomes apparent. In the case in hand, the Petitioner was named as accused No. 1 on the day one and hence it cannot be said that his involvement came to be revealed later on and thus before arrest compliance of Section 6(A)(1) of the DSPE Act ought to have been made. In the present case admittedly no enquiry was conducted prior to the registration of FIR and on registration of FIR the investigation commenced. In H.N. Rishbud v. State of Delhi - (200 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by a Magistrate), it is useful to consider what "investigation" under the Code comprises. Investigation usually starts on information relating to the commission of an offence given to an officer in charge of a police station and recorded under Section 154 of the Code. If from information so received or otherwise, the officer in charge of the police station has reason to suspect the commission of an offence, he or some other subordinate officer deputed by him, has to proceed to the spot to investigate the facts and circumstances of the case and if necessary to take measures for the discovery and arrest of the offender. Thus investigation primarily consists in the ascertainment of the facts and circumstances of the case. By definition, it includes "all the proceedings under the Code for the collection of evidence conducted by a police officer". For the above purposes, the investigating officer is given the power to require before himself the attendance of any person appearing to be acquainted with the circumstances of the case. He has also the authority to examine such person orally either by himself or by a duly authorised deputy. The officer examining any person in the course of in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich may consist of (a) the examination of various persons (including the accused) and the reduction of their statements into writing, if the officer thinks fit, (b) the search of places or seizure of things considered necessary for the investigation and to be produced at the trial, and (5) Formation of the opinion as to whether on the material collected there is a case to place the accused before a Magistrate for trial and if so taking the necessary steps for the same by the filing of a charge-sheet under Section 173. The scheme of the Code also shows that while it is permissible for an officer in charge of a police station to depute some subordinate officer to conduct some of these steps in the investigation, the responsibility for every one of these steps is that of the person in the situation of the officer in charge of the police station, it having been clearly provided in Section 168 that when a subordinate officer makes an investigation he should report the result to the officer in charge of the police station. It is also clear that the final step in the investigation, viz. the formation of the opinion as to whether or not there is a case to place the accused on trial is to b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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