2019 (1) TMI 1665 - HC - Customs

Court dismisses petition to quash FIR, orders CBI probe completion in 10 weeks. Emphasizes equality, presumption of innocence.

DEVENDER KUMAR, RAKESH ASTHANA, MANOJ PRASAD Versus Versus CENTRAL BUREAU OF INVESTIGATION & ORS

The court dismissed the petitions seeking to quash the FIR, directing the CBI to conclude investigations within ten weeks. Emphasizing the need for ... Prior sanction/ permission from the Government of India before registration of the FIR - Statutory bar under Section 17A of the Prevention of Corruption Act - Illegal gratification/bribe - What has been alleged by the complainant is that he was coerced, intimated and lured to part with certain monies for promise of providing him relief from repeatedly being called for investigation by the investigating officer Mr. Devinder Kumar in RC 2017 and finally to be let off the hook. HELD THAT:- Section 7 of PC Act, stipulates that any public servant who obtain or accepts or attempts to obtain from any person an undue advantage with intention to perform or cause performance of public duty improperly or dishonestly or to cause the forbearance to perform such duty either by himself or by another public servant would have committed an offence under the said section. Even the act of a public servant to perform to such improper or dishonest public duty, including for a reward, is a punishable offence under the said section. In the aforesaid section, the element of threat or coercion is not specifically 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. 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 - Nothing much turns upon the fact that the FIR has been registered under the repealed section 13(1)(d) of the PC Act as well; the said section would be redundant. Nevertheless section 120B IPC and Section 7, 7A and 13(2) of the PC Act along with other provisions of the IPC which have been subsequently added to the FIR/RC 2018 would continue. Recording of statements - HELD THAT:- The appointment of the additional IO for 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. The grounds of malafides of Respondent no.2 in registering the FIR: RC 2018, are not made out. Nor can the allegations against the petitioner be conclusively ruled out at this stage - Petition dismissed. Issues Involved:1. Quashing of FIR No. RC 13(A)/2018/AC-III dated 15.10.2018 by the CBI.2. Applicability of Section 17A of the Prevention of Corruption Act (PC Act).3. Allegations of malice against the petitioner by respondent no. 2.4. Validity of the FIR registration process.5. Appointment of an additional Investigating Officer.6. Delay in uploading the FIR on the CBI website.7. Allegations of bias and malafides by respondent no. 2.Analysis:1. Quashing of FIR No. RC 13(A)/2018/AC-III dated 15.10.2018 by the CBI:The petitioner sought quashing of the FIR on grounds that it fell foul of Section 17A of the PC Act and was actuated by malice. The court noted that the complaint by Mr. Satish Babu Sana alleged harassment, demand for illegal gratification, and extortion by CBI officers. The CBI argued that the complaint disclosed cognizable offences under sections 7, 7A, 13(2), 13(1)(d) of the PC Act and section 120B IPC, necessitating investigation.2. Applicability of Section 17A of the Prevention of Corruption Act (PC Act):The petitioner argued that prior sanction from the Government of India was required under Section 17A of the PC Act before registering the FIR. However, the court held that Section 17A protection is not applicable when the alleged acts are not in the discharge of official functions or duties but involve coercion, extortion, and demand for illegal gratification. The court stated, 'when the act of a public servant is ex-facie criminal or constitutes an offence, prior approval of the Government would not be necessary.'3. Allegations of malice against the petitioner by respondent no. 2:The petitioner alleged that the FIR was registered out of malice by respondent no. 2. The court found no conclusive evidence to support these allegations. It noted that the prudent actions taken by respondent no. 2, including seeking the opinion of the Director of Prosecution, were within the bounds of law and aimed at ensuring thorough investigation.4. Validity of the FIR registration process:The petitioner contended that the FIR was back-dated and documents were fabricated. The court examined the records and found no evidence to support this claim. The court noted that the FIR was registered following due process, and the necessary steps were taken promptly.5. Appointment of an additional Investigating Officer:The petitioner argued that the appointment of an additional Investigating Officer was illegal. The court disagreed, stating that in cases of serious allegations against an Investigating Officer, it is logical for the administrative head to appoint an additional IO to ensure unbiased investigation. The court found the appointment of the additional IO for recording the statement under section 164 Cr.P.C. to be lawful and prudent.6. Delay in uploading the FIR on the CBI website:The petitioner argued that there was a delay in uploading the FIR, violating the law. The court referred to the Supreme Court's directions in Youth Bar Association of India vs. Union of India, which allow for delays in uploading FIRs in sensitive cases. The court found that the CBI's decision not to upload the FIR promptly was justified given the sensitive nature of the case.7. Allegations of bias and malafides by respondent no. 2:The court found no merit in the allegations of bias and malafides against respondent no. 2. It noted that the actions taken by respondent no. 2 were in line with legal requirements and aimed at ensuring a thorough and unbiased investigation.Conclusion:The court dismissed the petitions, finding no grounds to quash the FIR. It directed the CBI to conclude the investigations within ten weeks, emphasizing the need for expeditious resolution to restore or determine the integrity of the public servants involved. The court reiterated the principle that the law treats all equally and presumes innocence until proven guilty.