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TaxTMI 
TaxTMI 
TaxTMI 
2019 (1) TMI 1665
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....hai and Ms. Kirti Jaswal, Advocates for Respondent 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, Calcut....
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....icers through Somesh. An advance of Rs. 3 crores would have to be paid, while the remaining amount 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 De....
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....rounds: (i) that it is in breach of Section 17A of PC Act, which requires prior sanction/ permission from 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 ....
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....rge of their official duties. She further submits that should any reference be made by the CBI, the matter will be promptly looked into. 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 an....
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....l malfeasance by the petitioner would relate to the recommendations or decisions that may be taken regarding the discharge or non-summoning of 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 permiss....
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....ntioned in the FIR, two things would be necessary i.e. the government officer/public servant should have asked for bribe or payment and received the illegal 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 ....
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....nst the later." 21. Mr. Krishnan, submits that the bribe-giver did not intimate the Investigating Agency within seven days of alleged demand or payment of bribe. Furthermore, 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 sub....
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....h concerned: AC-III, CBI. It was examined by the Law Officers of the CBI, including the Deputy Legal Advisor, the Addl. Legal Advisor and the Director of Prosecutions. It is after considering 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 ....
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....offence should be so inseparably connected with the official duty as to form part and parcel of the same transaction. If the act complained of is an offence, it must necessarily be not an execution of duty, 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 nec....
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....tends that it was made at CBI, HQ, Delhi on 1.10.2108 (sic) but oddly on the second page, the complainant ends it with date 01.09.2018, therefore no credence could be given to it against respondent no. 2. He submits that the 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 o....
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....gistered against Moin Akhtar Qureshi and others. The other statement of Sathish Babu Sana was recorded on 20.10.2018 u/s 164 of CrPC in CBI RC 13(A)/2018/AC 3/New Delhi in the Saket Courts in which he reiterated the facts already stated by him in 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 t....
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....e. (5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. (6) Where there is an express legal 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....
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....mportance. It is the material collected during the investigation and evidence led in court which decides the fate of the accused person. The allegations of mala fides against the informant are of no consequence and cannot by themselves be the basis for quashing the proceedings." In the aforementioned judgment, 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 ....
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....ons. It cannot, in any way, encumber the intrinsic powers of the Bureau to investigate a case thoroughly. He relies upon the dicta of the Supreme Court in the case of Lalitha Kumari (supra), which holds, in effect, that in the event of a cognizable offence, an FIR can be registered and investigation would ensue. Credibility of the information 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 pronouncemen....
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....he necessary findings on the core issue i.e. the legal existence of a valid F.I.R. However, taking into account the fact that the inquiry was conducted pursuant to the order of the High Court to unravel the truth surrounding the lodging of the F.I.R. and was not a step in the investigative process which, in any case, has been interdicted by the High Court by the 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 wi....
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....e 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. 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 c....
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.... favour. A public servant cannot be possibly left to be under the constant apprehension that bonafide decisions taken by him/her would be open to enquiry or inquiry or investigation, on the whimsical complaint of a stranger. Section 17A as it reads and the legislative intent in its enactment can only be to protect public servants in the bonafide discharge of official functions 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....
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....inistrative head to appoint an additional IO to record such statement under section 164 Cr.P.C. The prudence of administrative head in not removing or disturbing the investigating officer till the recording of such statement cannot be doubted nor can the serious allegation against the IO be left uninvestigated. In the present circumstances, 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. 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 t....
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....u @ Chinnasami vs Villis Guruswami Naidu AIR 1951 Mad 812 relied upon by the petitioner the Court held that whether a particular information amounts to a FIR or not, is essentially a question of fact. 43. The petitioner contends that respondent no.2 has maliciously got the FIR RC 2018 registered because if Sana‟s statement of 04.10.2018 were the first information then it was always open to the 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 c....
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....l website of the State Government, within twenty-four hours of the registration of the first information report so that the accused or any person connected with the same can download the FIR and file appropriate application before the court as per law for redressal of his grievances. It may be clarified here that in case there is connectivity problems due to geographical location or there is some other unavoidable 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 wri....