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TMI Blog2019 (1) TMI 1665X X X X Extracts X X X X X X X X Extracts X X X X ..... spondent No. 3 in Item Nos. 1 and 2. Mr. Sunil Fernandes, Ms. Nupur Kumar, Ms. Priyanka Indra Sharma and Mr. Arnav Vidyarthi, Advocates for the Intervenor. Mr. Shashwat Singh, Ms. Harshal Gupta and Ms. Devyani Gupta, Advocates. ORDER 1. W.P. (Crl.) 3248/2018 shall be treated as the lead case and unless stated otherwise, the expression petitioner shall mean the petitioner in this case. Respondent no. 2 is the Director, CBI, Respondent no. 3 is a Joint Director in the CBI, Respondent no. 4 is the UOI. The petitioner seeks quashing of FIR No. RC 13(A)/2018/AC-III dated 15.10.2018 (in short FIR/RC 2018) registered by the CBI. It is impugned on the ground that it falls foul of the statutory bar under Section 17A of the Prevention of Corruption Act, (in short PC Act). The said provision of law reads as under: "...17.A. Persons authorised to investigate. - Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), no police officer below the rank, - (a) In the case of the Delhi Special Police Establishment, of an Inspector of Police; (b) In the metropolitan areas of Bombay, Calcutta, Madras and Ahmedabad and in any other metropolitan area notified ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of Rs. 2 crores would be payable at the time of filing of the Chargesheet in the case and a clean chit would be managed for Sana. The complaint further states that upon inquiries made by him about the CBI Officer, with whom Somesh has spoken over the phone, the latter showed him a Display Profile (DP) on his Whatsapp contact, a picture indicating that that was the officer/person with whom he had spoken and who had assured favours to him in lieu of the payment of Rs. 5 crores. The said picture was of a person in police uniform. Somesh identified the said person as the petitioner in WP(Crl.) No. 3248/2018. Sana claims that later he cross-checked the photograph from the internet (Google website) and found that the photograph of the petitioner was the same as shown to him by Somesh. He states that in the belief that he would be able to get rid of the harassment and mental agony faced by him and his family, he arranged the payment of an amount of Rs. 1 crore to an identified person in Dubai and later paid an amount of Rs. 1.90 crores on 13.12.2017 at 9.25 p.m. to an identified person in Delhi. Sana further states that he subsequently heard a live conversation in a telephone call from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m the Government of India before registration of the FIR and (ii) that it is actuated by malice of respondent no.2 against the petitioner. 7. Section 4 of the Delhi Special Police Establishment Act, 1946 (DSPE Act) provides for the scheme of superintendence and administration of special police establishment. It reads as follows: "4. Superintendence and administration of special police establishment. - (1) The superintendence of the Delhi Special Police Establishment insofar as it relates to investigation of offences alleged to have been committed under the Prevention of Corruption Act, 1988 (49 of 1988), shall vest in the Commission. (2) Save as otherwise provided in sub-section (1), the superintendence of the said police establishment in all other matters shall vest in the Central Government. (3) The administration of the said police establishment shall vest in an officer appointed in this behalf by the Central Government (hereinafter referred to as the Director) who shall exercise in respect of that police establishment such of the powers exercisable by an Inspector-General of Police in respect of the police force in a State as the Central Government may specify in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 12. The learned counsel for respondent No.3 reiterates the basic argument on behalf of the CBI: i.e. no sanction would be required in cases where the conduct of the public servant is not in the discharge of official duties. He refers to the dicta of the Supreme Court in Subramanian Swamy vs. CBI, (2014) 8 SCC 682, which has struck down section 6A of the Delhi Special Police Establishment Act, 1946 (DSPE), which is pari materia with section 17A of the PC Act. It is stated that the constitutionality of section 17A of the Act too has been challenged and notice has been issued by the Supreme Court on 26.11.2018. 13. Mr. M.A. Niyazi, the learned counsel for Respondent no. 3 further argues that the sanction would be requisite only when the alleged offence is relatable to a recommendation made or a decision taken by a public servant in the discharge of his official duties; whereas, in the present case, no recommendation or decision was taken by the public servant. Instead the public servant is alleged to have been involved in coercion, extortion and/or demand of illegal gratification during his investigation in RC 2017. 14. He further contends that section 17A of the Act seeks to p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the complainant. He further submits that it would be extremely easy for the Investigating Agency to circumvent rigours of section 17A by not seeking permission of the Union of India or the relevant State Government or the Competent Authority, merely on the plea that the action of the public servant is not in the discharge of his official functions or duties; that the registration of FIR and initiation of investigation against the petitioner is steeped in mala fides, because the petitioner had earlier written a letter to the Cabinet Secretary on 24.08.2018 apropos certain irregularities by respondents No. 2 and 3. The said letter was referred to the CVC. According to the petitioner, he had sent a Note on 20.09.2018 to respondent No.2 seeking approval for custodial interrogation of four persons. On 24.09.2018, respondent No.2 sought further information and opinion of the Director of Prosecution (DOP) of the CBI, before a decision could be taken. The petitioner contends that the reference of the case to the DOP was neither necessary nor permissible in law. 17. The petitioner further submits that a letter was issued by the CVC to the CBI, directing, inter alia that a case should not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egal gratification. In the present case, no demand is alleged to have been made by the petitioner nor is there a proof that the said monies paid by the complainant to a third person ever reached the petitioner; that the allegations against the petitioner are as nebulous as can be. In support of his contentions he has referred to the judgment of the Supreme Court in the case of Dashrath Singh Chauhan vs. Central Bureau of Investigation, 2018(13) SCALE 705, which held that "32). Since in order to attract the rigors of Section 7, 13(2) read 13(1)(d) of PC Act, the prosecution was under a legal obligation to prove the twin requirements of "demand and acceptance of bribe money by the accused", the proving of one alone but not the other was not sufficient. The appellant is, therefore, entitled for acquittal from the charges framed against him under the PC Act too. (See para 8 of M.K. Harshan vs. State of Kerala, (1996) 11 SCC 720)" 19. It argued that, therefore, RC 2018 could not be registered, but it having registered cannot be for anything but actuated by malafides. 20. Mr. Dayan Krishnan, the learned Senior Counsel for Devinder Kumar, the petitioner in W.P. (Crl.) 3247/2018 adop ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hermore, since the complainant himself admitted to having paid the bribes earlier, his conduct and his allegations would be suspect. Reference is made to the judgement of the Supreme Court in Lalita Kumari vs. Govt. of U.P. & Ors., (2014) 2 SCC 1, which held inter alia:- "79) Besides, learned senior counsel relied on the special procedures prescribed under the CBI manual to be read into Section 154. It is true that the concept of "preliminary 69 Page 70 inquiry" is contained in Chapter IX of the Crime Manual of the CBI. However, this Crime Manual is not a statute and has not been enacted by the legislature. It is a set of administrative orders issued for internal guidance of the CBI officers. It cannot supersede the Code. Moreover, in the absence of any indication to the contrary in the Code itself, the provisions of the CBI Crime Manual cannot be relied upon to import the concept of holding of preliminary inquiry in the scheme of the Code of Criminal Procedure. At this juncture, it is also pertinent to submit that the CBI is constituted under a Special Act, namely, the Delhi Special Police Establishment Act, 1946 and it derive its power to investigate from this Act." 22. Respo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dering the aforesaid records and legal advice that the FIR/RC 2017 was approved as per law and due procedure. He submits that the allegation of bias or malice or malifide against him are baseless. It is argued that sanction under section 19 of the PC Act can be obtained even after the initiation of the investigation. 24. Mr. Amit Sibal, the learned Senior Advocate for respondent No.2 submits that in cases involving payment and acceptance of bribe, section 17A of the Act does not provide protection to a public servant. He submits that section 197 Cr.P.C. is of much wider amplitude, but even that section does not provide protection to public servants against whom allegations of the present kind are made; that seeking or accepting bribe while in the discharge of official duty has not only been severely criticised but strongly castigated in various judicial pronouncements. He refers to the judgment of the Supreme Court in the case of Sankaran Moitra vs. Sadhna Das & Anr., (2006) 4 SCC 584, wherein it was held inter alia:- "45. So far as the provisions of the Section 197 are concerned, they came up for judicial interpretation in several cases. One of the leading cases which has been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... but a dereliction of it. What is necessary is that the offence must be in respect of an act done or purported to be done in execution of duty, that is, in the discharge of an official duty. It must purport to be done in the official capacity with which he pretends to be clothed at the time, that is to say under the cloak of an ostensibly official act, though of course, the offence would really amount to a breach of duty. An act cannot purport to be done in execution of duty unless the offender professes to be acting in pursuance of his official duty and means to convey to the mind of another, the impression that he is so acting." 47. It was, however, stated- "The section is not intended to apply to acts done purely in a private capacity by a public servant. It must have been ostensibly done by him in his official capacity in execution of his duty, which would not necessarily be the case merely because it was done at a time when he held such office, nor even necessarily because he was engaged in his official business at the time. For instance, if a public servant accepts as a reward a bribe in his office while actually engaged in some official work, he is not accepting it even ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... statement before the Magistrate would have to be read sequentially, which would show that the reference to the "concerned Director" (sic) would be the petitioner. Furthermore, the said complainant has re-iterated the same statement under section 164 Cr.P.C in RC 2018. He submits that reference to the letter of the petitioner of 24.08.2018 is misleading because the apprehensions expressed therein are primarily apropos the petitioner‟s ACR being spoiled by R-2; but the ACR had already been signed and uploaded on respondent no. 2‟s site on 10.07.2018. He submits that reference to Youth Bar Association of India (supra), is mis-directed because para 11.3 provides supply of certified copy of the FIR to the accused within two working days. The relevant para reads as under:- " 11.3 Once the First Information Report is forwarded by the police station to the concerned Magistrate or any Special Judge, on an application being filed for certified copy on behalf of the accused, the same shall be given by the Court concerned within two working days. The aforesaid direction has nothing to do with the statutory mandate inhered under Section 207 of the Cr.P.C." 29. In his counter af ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his earlier statement recorded on 4.10.2018 and complaint given on 15.10.2018. 8. The allegations levelled in the complaint, which has resulted in the FIR/RC dated 15.10.2018 are of very serious nature which require thorough investigation as it discloses various factual averments which includes particulars of several persons, various mobile numbers, and travel details. The above said particulars/materials mentioned in the FIR are required to be thoroughly examined and investigated to bring out the truth." 30. R-2 further argues that the learned Special Judge/Trial Court has recorded, inter alia, that there was creation of false evidence by the petitioner-Devinder Kumar; searches were conducted by the CBI at the office chamber and residential premises of the accused and number of documents have been seized during these searches; that the accused has tried to create false evidence during investigation in RC 2017 and has refused to cooperate in the investigation; that the learned Trial Court recorded the submission of the Special Public Prosecutor of the CBI, alongwith Investigating Officer DSP Ajay Kumar Bassi. Respondent no. 1, the CBI too concurs. It is argued that in cases w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bar engrafted in any of the provisions of the Code or the Act concerned (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the Act concerned, providing efficacious redress for the grievance of the aggrieved party. (7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge. 29. The ratio of Bhajan Lal's case has been consistently followed in the subsequent judgments. In M/s Zandu Pharmaceutical Works Ltd. V. Mohd. Sharaful Haque (supra), this Court referred to a large number of precedents on the subject and observed: "11.........the powers possessed by the High Court under Section 482 of the Code are very wide and the very plenitude of the power requires great caution in its exercise. Court must be careful to see that its decision in exercise of this power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution. The High Court b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this Court set aside the order of the Patna High Court and quashed the summons issued by the First Class Judicial Magistrate in Complaint Case No.1613) of 2002 on the ground that the same was barred by limitation prescribed under Section 468 (2) Cr.P.C. 30. In Ramesh Chand Sinhas case (supra) this Court quashed the decision of the Chief Judicial Magistrate, Patna to take cognizance of the offence allegedly committed by the appellants by observing that the same was barred by time and there were no valid grounds to extend the period of limitation by invoking Section 473 Cr.P.C. 31. A careful reading of the above noted judgments makes it clear that the High Court should be extremely cautious and slow to interfere with the investigation and/or trial of criminal cases and should not stall the investigation and/or prosecution except when it is convinced beyond any manner of doubt that the FIR does not disclose commission of any offence or that the allegations contained in the FIR do not constitute any cognizable offence or that the prosecution is barred by law or the High Court is convinced that it is necessary to interfere to prevent abuse of the process of the court. In dealing w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... formation is to be tested at the time of appreciation of evidence by the court. He also relies upon the judgment of the Supreme Court in the case of Tilly Gifford vs. Michael Floyd Eshwar & Anr. (2018) 11 SCC 205, which holds that the exercise of jurisdiction under section 482 Cr.P.C. has to be sparingly exercised except in circumstances where the case is so glaring that FIR could not have been registered or it is tainted by clear mala fides, the criminal investigation should not be foreclosed by a court of law. It held inter alia:- "3. A perusal of the order of the High Court released on 21.05.2015 would indicate that the High Court has gone far beyond the contours of its power and jurisdiction under Section 482 Cr.P.C. to quash a criminal proceeding, the extent of such jurisdiction having been dealt with by this Court in numerous pronouncements over the last half century. Time and again, it has been emphasized by this Court that the power under Section 482 Cr.P.C. would not permit the High Court to go into disputed questions of fact or to appreciate the defence of the accused. The power to interdict a criminal proceeding at the stage of investigation is even more rare. Broadly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he impugned order, we do not consider it prudent to come to one conclusion or the other with regard to the said findings. However the findings of the inquiry would clearly indicate that a large volume of material facts surrounding the lodging of the F.I.R. and its authenticity needs to be investigated and the truth unravelled. But this is what has been interdicted by the High Court. In the above situation, we find ourselves unable to agree with the view taken by the High Court. On the contrary, we are of the opinion that the F.I.R. in question should be fully investigated in accordance with law and thereafter further legal consequences as may be warranted should be allowed to take effect. We order accordingly and direct the completion of the investigation within sixty days from today, whereafter steps in accordance with law will follow." (emphasis supplied) 32. With reference to the above, the learned ASG submits that there are no allegations of mala fides apropos the investigations being presently carried out by a new Investigating Officer; that even in Tilly Gifford‟s (supra), the allegation was that the forged documents had formed the basis of the registration of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ifically mentioned. The said section does not necessarily cover the element of threat and coercion as alleged by the complainant in the present case. According to the Illustration to Explanation (i) of section 7 of the PC Act, a person would be guilty of offence under the said section if he asks a public servant to give him an amount of five thousand rupees to process his routine ration card application on time. The nature of the offence contemplated under section 7 of PC Act is different. The complexion or nature of a case depends on its essential ingredients - the facts. If the allegations are over-whelming by under the IPC, then the case will be so construed. 36. Sana has complained that despite his having paid over Rs. 3 crores, he was repeatedly called for investigation by the Investigating Officer; when he complained about the same to Manoj, the latter informed him that all this was happening due to non-payment of balance amount i.e. Rs. 2 crores. Taking the statement of the complainant on face value an element of coercion and threat can be gleaned. The complainant refers to communication through telephone calls, Whatsapp messages and transaction of monies through persons bo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tions or duties. However, when the act of a public servant is ex-facie criminal or constitutes an offence, prior approval of the Government would not be necessary. 37. The complainant -Sana has alleged coercion, threat and extortion of money, albeit for an offence under Section 7 of the PC Act as well, but such acts by a public servant cannot be said to be in the discharge of his official function or duties. Therefore, in the present case, the approval under Section 17A of the Act would not be necessary. 38. Whether the petitioners/ public servants were at all involved in the offence would be known only after a thorough inquiry by the investigating agency. No doubt, registration of the FIR and the corollary investigation would be a cause for much concern, stress and embarrassment for any honest public servant and others related to him. Nevertheless, where a cognizable offence is made out, the law must take its course. For the sake of public servant and indeed for all concerned, it is best that the investigations are conducted expeditiously and the integrity of the public servant which comes under a cloud because of the investigation is either restored or determined as per law. N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or recording of statement of the complainant on 04.10.2018 under section 164 Cr.P.C. cannot be stated to be illegal. The petitioners‟ contention that once the statement was recorded under Section 164 Cr.P.C. the CBI ought not to have waited for the Sana‟s complaint of 15.10.2018 for registration of RC 2018, too is untenable. 41. The petitioner further argues that the registration of the FIR on the basis of the complaint of Sana dated 15.10.2018 is barred by Section 162 of the Cr.P.C. It is argued that Sana‟s statement of 04.10.2018 had not been reduced in an FIR, instead his subsequent statement, the complaint has been registered as the FIR and the same falls foul of section 162 of the Cr.P.C. It is argued that a combined reading of sections 154, 156 and 162 of the Cr.P.C. would reveal that only first statement/complaint has to be recorded into an FIR and no subsequent statement can be recorded in the FIR. The petitioner relies upon various judgments in this regard being: (i) Andhra Pradesh vs Punati Ramulu & Ors. 1994 Supp (1) SCC 590 para 5: ".... 5. According to the evidence of PW 22, Circle Inspector, he had received information of the incident from poli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CBI to lay a trap in the case, especially because they had six days till 10.01.2018, when the sum of Rs .25 lacs is stated to have been paid by Sana to some person: this payment being in continuation of and being a part of the alleged payments of Rs. 3 crores. The court finds the said argument untenable because setting up of a trap is not mandatory for an investigating agency. It is always open for the agency to take appropriate and prudent steps on the basis of such information as may have come to it. Whether a trap is to be laid is a call for the agency to take. The statement dated 04.10.2018 was about what was happening in the investigation of RC 2017, whereas the subsequent alleged payment of Rs. 25 lacs on 10.10.2018 was an additional fact which was disclosed to the CBI in the complaint of 15.10.2018. The Court is of the view that Sana‟s complaint dated 15.10.2018, which largely reiterates the substance of the statement made on 04.10.2018, the matter would require to be investigated. The statement recorded on 04.10.2018 was regarding the conduct of the Investigating Officer in the 2017 FIR to a Court, whereas the complaint dated 15.10.2018 is the first information to a p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le difficulty, the time can be extended up to forty-eight hours. The said 48 hours can be extended maximum up to 72 hours and it is only relatable o connectivity problems due to geographical location. ... 11.6 The word "sensitive" apart from the other aspects which may be thought of being sensitive by the competent authority as stated hereinbefore would also include concept of privacy regard being had to the nature of the FIR. The examples given with regard to the sensitive cases are absolutely illustrative and are not exhaustive. ...." 46. The CBI considers the case to be of a sensitive nature, hence it chose not to upload it and supplied a copy of the same to the Trial Court on 17.10.2018. 47. The petitioners‟ letter dated 24.08.2018 written to the Cabinet Secretary complains about what he considered a concerted malicious campaign against him by the Director, CBI and a Jt. Director of the Enforcement Directorate, to tarnish his image by unverified and unsubstantiated information being leaked to the media etc. He complained that this was with the intention to demoralise him and harass him and the Director CBI was out to spoil his annual performance appraisal rep ..... X X X X Extracts X X X X X X X X Extracts X X X X
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