Full Judgment Text
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
st
Order reserved on 1 December,2017
th
Order pronounced on 5 December,2017
+ CRL.M.C. 849/2017
BIRENDER SINGH YADAV ..... Petitioner
versus
C B I ..... Respondent
+ CRL.M.C. 930/2017
RAVINDER SINGH ..... Petitioner
versus
CENTRAL BUREAU OF INVESTIGATIO ..... Respondent
+ CRL.M.C. 934/2017
SUSHIL KUMAR JAIN ..... Petitioner
versus
CENTRAL BUREAU OF INVESTIGATION ..... Respondent
+ CRL.M.C. 935/2017
MUKESH KUMAR ..... Petitioner
versus
CENTRAL BUREAU OF INVESTIGATION ..... Respondent
Present: Mr. Sudhir Nandrajog, Senior Advocate, Mr. Manish
Tiwari, Mr.Anil Kumar, Mr. Alok Sharma, Advocates
for the petitioner with petitioner in person in Crl.M.C.
No.849/2017.
Mr. N. Hariharan, Senior Advocate with Mr. A.K.
Mittal & Ms. Rachna Maheshwari, Advocates for the
petitioner in Crl.M.C. Nos.930/2017, 934/2017 &
935/2017.
Mr. Sanjeev Bhandari, Advocate for the CBI.
CORAM:
HON'BLE MS. JUSTICE SANGITA DHINGRA SEHGAL
CRL.M.C. 849/2017 & connected matters Page 1 of 15
Crl.M.A. 19520/2017, 19284/17, 18282/17, 19283/17 (for clarification
and modification of order dated 30.10.2017)
1. The present applications have been filed by the petitioners under
Section 482 The Code of Criminal procedure, 1973 (hereinafter
referred as „Cr. P.C‟) for clarification and modification of the order
dated 30.10.2017, passed by this court.
2. Vide order dated 30.10.2017, this court passed the following
orders:-
“14. Keeping in view the above, it is observed that the
Charges on 10.02.2017 have not been framed against
the petitioners in accordance with the Order-on –
Charge dated 01.02.20147 and this requires to be
settled before the commencement of recording of
evidence. The recording of evidence in these
circumstances would be a futile exercise and will vitiate
the entire proceedings resulting in failure of justice.
Resultantly, the matter is remanded to the Court of
Special Judge, (PC Act), CBI-01, Central District, Tis
Hazari Courts, Delhi.”
3. Mr. Hariharan, learned counsel for the petitioner through his
present application prayed for revival of the present petition to its
original number on the ground that on 01.02.2017 , the then Ld.
Special Judge, CBI passed order-on-charge against the petitioners
under Section 120B r/w Sections 420, 471, 465, 477A of the Indian
Penal Code, 1860 )hereinafter referred as „IPC‟) & Sec. 13(2) r/w
Sec. 13(1)(d)(ii) of the Prevention of Corruption Act, 1988
(hereinafter referred as „P.C.‟) and the substantive offences
thereof; that thereafter on 10.02.2017 , the then Ld. Special Judge
CRL.M.C. 849/2017 & connected matters Page 2 of 15
framed two separate charges vide separate orders i.e. one for
substantive offences punishable under Sections 120-B r/w Sections
420, 471, 465, 477A IPC and another composite charge covered
under Sections 120-B r/w Sections 420, 471, 465, 477A IPC &
Sec. 13(2) r/w Sec. 13(1)(d)(ii) of the P.C. Act, 1988; that
inadvertently only the charges for substantive offences punishable
under Sections 120-B r/w 420, 471, 465, 477-A, IPC were annexed
with the petition and the separate charge covered under Sections
120-B r/w Sections 420, 471, 465, 477A IPC & Sec. 13(2) r/w Sec.
13(1)9(d) of the P.C. Act, 1988 have been filed subsequently with
Crl. M.A. 14616/2017 ( application for early hearing and stay of
proceedings before the trial court). ; that this fact was not pointed
out before this court at the time of addressing arguments on the
main petition and the order dated 30.11.2017, was passed by this
court keeping in view the order dated 10.02.2017, relating to
offences only under the IPC. Hence, the present application.
4. It now emerges on record that on 01.02.2017, order-on-charge was
passed by the learned Special Judge and subsequent to it, two
separate charges were framed on 10.02.2017 instead of one
composite charge in accordance with the order-on-charge dated
01.02.2017. The order dated 10.02.2017 relating to composite
charges was not filed along with the main petition in the lead case
and has been filed subsequently with Crl. M.A. 14616/2017
(application for early hearing and stay of proceedings before the
trial court). In view of the above fact, order dated 30.10.2017 is
recalled and all the petitions are restored to its original numbers.
CRL.M.C. 849/2017 & connected matters Page 3 of 15
5. Applications stands disposed of.
CRL.M.C. 849/2017, CRL.M.C. 930/2017, CRL.M.C. 934/2017,
CRL.M.C. 935/2017
6. Having heard on the main petitions and contentions on behalf of
the parties have been noted by the court in its previous order dated
30.10.2017. The relevant portion of the order dated 30.10.2017, is
stated as under:-
“1.The present petitions have been filed under Section
482 of the Code of Criminal Procedure 1973
(hereinafter referred to as ‘Cr.PC’ ) for setting aside
the Order-on-Charge dated 01.02.2017 and order on
framing of Charges dated 10.02.2017 passed by
Special Judge, Central Bureau of Investigation (01)
(hereinafter referred as „ CBI’ ), The Prevention of
Corruption Act, 1988(hereinafter referred to ‘PC
Act’ ), Tis Hazari Courts, Delhi, under Section 120-B
r/w Sections 420,471, 477A of the Indian Penal
Code,1860 (hereinafter referred as ‘IPC’ ) & Section
13(2) read with Section 13(1)(d) of the PC Act,1988
and substantive offences punishable under Section
420,471 read with Section 465, 477A IPC in case
titled as „CBI Vs Dr Sangita & Ors.‟ in RC No. DAI-
2013-A-0017 dated 25.07.2013 registered by
CBI/ACB/ New Delhi and quashing of consequential
proceedings emanating therefrom and for discharge
of the petitioners.
2.The brief facts of the case as per the prosecution is
that the work regarding dense carpeting of the
internal roads in Sector-7, Pocket-1, Dwarka, Delhi
was allotted to the proprietor R.P. Singhal by MCD
(Project Division), Najafgarh, Delhi. The MCD
officials in order to gain undue advantage, accepted
and processed a forged third party quality check
report which was purported to have been prepared
CRL.M.C. 849/2017 & connected matters Page 4 of 15
by Dr. Sangita, (CRRI). As per CBI, no such report
was sent by CRRI and the original report of CRRI
which showed that the sample failed was received in
EE and was given to the present petitioner Birender
Singh Yadav who acted dishonestly by not processing
the original CRRI Report dated 18.03.2009. The
present petitioners forwarded the running bills of the
work allotted along with forged CRRI report for
undue payment to the contracting firm. The case was
registered against the petitioners but charge sheet
was filed by CBI only against Dr. Sangita and Mr.
R.P.Singhal as sanction was obtained only against
these two accused.
3.Several attempts were made by the CBI, but no
sanction was granted against the petitioners by the
competent authority, however the Special Judge,
CBI-01, Central District, Delhi took cognizance
under Sections 120-B r/w Sections 420,471, 477-A
IPC & Section 13(2) r/w Section 13(1)(d) of the PC
Act and the charges for the substantive offences
punishable u/s 420,471 r/w Sec. 465,477-A IPC
against the petitioners and thereby framed charges
under Section 420,471 r/w Sec. 465,477-A IPC and
issued summons.
4.The counsel for the petitioners contends that the
Trial Court had erred in taking cognizance of
offences punishable under PC as a valid sanction
under Section 19 of the PC Act as well as under
Section 197 Cr.PC was never obtained by CBI from
the competent authority against the petitioners; that
the alleged act of the petitioners were done in their
official capacity and not done in their private
capacity; that obtaining sanction from the competent
authority is a mandate when a public servant is
charged with an offence under Section 7/10/11/13
and 15 of the PC Act; that grant of sanction by the
CRL.M.C. 849/2017 & connected matters Page 5 of 15
competent authority is a condition pre-requisite for
prosecution of a government servant in respect of
any act done in his official capacity; that as the
sanction was not granted on account of refusal by the
competent authority, therefore the court below has
no jurisdiction to try the case in hand; that moreover,
the Special judge has no jurisdiction to try an offence
punishable under the IPC.
5.To substantiate his arguments, learned Senior
Counsel for the petitioners have relied upon
‘Nanjappa vs State of Karnataka CRL.A.
No.1867/2012, Baijnath vs State of MP AIR 1966
SC 220, Prof. N.K. Ganguly vs CBI New Delhi
(2016) 1 SCC (Cri) 478, Amal Kumar Jha vs State
of Chattisgarh CRL.A. No.396/2016, Matajog
Dobey vs H.C. Bhari AIR 1956 SC 44, Prakash
Singh Badal vs Union of India 16 (2007) 1 SCC 1,
State of Himachal Pradesh vs Nishant Sareen
CRL.A. No.2353/2010, R.S. Nayak vs A R Antulay
AIR 1984 SC 684.
6.Per contra, the learned counsel for the CBI
contends that obtaining of the sanction is not a pre-
requisite before taking cognizance by the court, if the
offence is committed under the IPC;that the false
entries are made in the measurement books which
states as “work has been checked by CRRI-III audit
party. Report enclosed”; that despite report dated
18.03.2009, the payment of the second and final bills
were released by the accused persons in connivance
with the contractor; that on review of all the
evidences on record collected while investigation,
clearly proves that the petitioners have conspired
with each other for their wrongful gain; that the
order on charge is a well reasoned order and has no
infirmity.”
CRL.M.C. 849/2017 & connected matters Page 6 of 15
7. During the course of arguments on the main petitions, Mr. Bhandari,
learned counsel for the CBI has conceded that there is no sanction of
competent authority under prevention of corruption act against the
petitioners and the charges should not have been framed under the PC
Act. He drew the attention of the court to the order-on-charge dated
01.02.2017 by referring that similar plea had been raised by the CBI
before the Trial Court which was not acceded and the charges were
also framed under the P.C act without any sanction from the
competent authority. Even the trial court has also observed in its order
on charge dated 01.02.2017, that no sanction of competent authority
under prevention of corruption act to prosecute the petitioners have
been obtained by the CBI. The relevant portion of the order dated
01.02.2017 stated that: “...He has further conceded that the charges
for the offence punishable u/s 13(2) r/w Sec. 13(1)(d) of the P.C. Act,
1988, may not be framed against accused A-3 to A-8, as these accused
were never summoned to fact the trial for the said offence..”
8. It is important at this stage to rummage through Section 19 of the
Prevention of Corruption Act which lays down law with respect to
obtaining of sanction and states that “No court shall take cognisance
of an offence… alleged to have been committed by a public servant
except with the previous sanction.” The said provision ensures that an
honest public servant is not hounded in the performance of his or her
duties by frivolous complaints. Section 19 imposes a bar on the court
to take “cognizance” of an offence till sanction is obtained from the
government. The bar is against the court to take cognisance for the
purposes of trial. The law with regard to obtaining of sanction from a
CRL.M.C. 849/2017 & connected matters Page 7 of 15
competent authority, if a complaint is lodged against a public servants
during his course of employment, alleging offences punishable under
The P.C. Act, is well settled. The apex court has spelt out in various
cases that the court below cannot even take notice of the complaint
against the public servant unless the same was accompanied by a
sanction order, irrespective of whether the court was acting at the pre-
cognizance stage or the post cognizance stage, if the complaint
pertains to a public servant who is alleged to have committed offences
in the discharge of official duties. In Anil Kumar & Ors vs M.K
Aiyappa & Anr reported in (2013) 10 SCC 705, it was observed by the
court as under :-
“....4. Aggrieved by the said order, the first
respondent herein approached the High Court of
Karnataka by filing Writ Petition Nos.13779-13780 of
2013. It was contended before the High Court that
since the appellant is a pubic servant, a complaint
brought against him without being accompanied by a
valid sanction order could not have been entertained
by the Special Court on the allegations of offences
punishable under the Prevention of Corruption Act. It
was submitted that even though the power to order
investigation under Section 156(3) can be exercised
by a Magistrate or the Special Judge at pre-
cognizance stage, yet, the governmental sanction
cannot be dispensed with. It was also contended that
the requirement of a sanction is the pre-requisite even
to present a private complaint in respect of a public
servant concerning the alleged offence said to have
been committed in discharge of his public duty.
CRL.M.C. 849/2017 & connected matters Page 8 of 15
5. The High Court, after hearing the parties, took
the view that the Special Judge could not have taken
notice of the private complaint unless the same was
accompanied by a sanction order, irrespective of
whether the Court was acting at a pre-cognizance
stage or the post- cognizance stage, if the complaint
pertains to a public servant who is alleged to have
committed offences in discharge of his official duties
indicated in various judgments referred to
hereinabove, the Magistrate cannot order
investigation against a public servant while invoking
powers under Section 156(3) Cr.P.C.....
In order that the public servant may not be
unnecessarily harassed on a complaint of an
unscrupulous person, it is obligatory on the part of
the executive authority to protect him….. If the law
requires sanction, and the court proceeds against a
public servant without sanction, the public servant
has a right to raise the issue of jurisdiction as the
entire action may be rendered void ab-initio ....”
In L. Narayan Swamy v. State of Karnataka and Others reported
in (2016) 9 SCC 598 , it was held by the apex court that :
“....(1) Whether an order directing further
investigation under Section 156(3) of the Cr.P.C.
can be passed in relation to public servant in the
absence of valid sanction and contrary to the
judgments of this Court in Anil Kumar & Ors. v.
M.K. Aiyappa & Anr.[1] and Manharibhai
Muljibhai Kakadia and Anr. v. Shaileshbhai
Mohanbhai Patel and Ors ? .... The above view taken
by the High Court is contrary to the judgments of this
Court in Manharibhai Muljibhai Kakadia and Anil
Kumar. In Manharibhai Muljibhai Kakadia, the facts
CRL.M.C. 849/2017 & connected matters Page 9 of 15
were that the respondent filed before the CJM a
criminal complaint alleging that the appellant had, by
doing the acts stated, committed the offences
punishable under Sections
420, 467, 468, 471 and 120-B IPC. ….However, it
was held that even while directing inquiry, the
Magistrate applies his judicial mind on the complaint
and, therefore, it would amount to taking cognizance
of the matter. In this context, the Court explained the
word “cognizance” in the following manner:
“34. The word “cognizance” occurring in various
sections in the Code is a word of wide import. It
embraces within itself all powers and authority in
exercise of jurisdiction and taking of authoritative
notice of the allegations made in the complaint or a
police report or any information received that an
offence has been committed. …..Second judgment in
the case of Anil Kumar referred to above is directly
on the point. In that case, identical question had
fallen for consideration viz. whether sanction
under Section 19 of the P.C. Act is a pre-condition for
ordering investigation against a public servant
under Section 156(3) of Cr.P.C. even at pre-
cognizance stage? Answering the question in the
affirmative, the Court discussed the legal position in
the following manner:
“13. The expression “cognizance” which
appears in Section 197 CrPC came up for
consideration before a three-Judge Bench of
this Court in State of U.P. v. Paras Nath
Singh[(2009) 6 SCC 372 : (2009) 2 SCC (L&S)
200], and this Court expressed the following
view: … And the jurisdiction of a Magistrate to
take cognizance of any offence is provided
by Section 190 of the Code, either on receipt of
a complaint, or upon a police report or upon
information received from any person other
CRL.M.C. 849/2017 & connected matters Page 10 of 15
than a police officer, or upon his knowledge
that such offence has been committed. So far as
public servants are concerned, the cognizance
of any offence, by any court, is barred
by Section 197 of the Code unless sanction is
obtained from the appropriate authority, if the
offence, alleged to have been committed, was in
discharge of the official duty. The section not
only specifies the persons to whom the
protection is afforded but it also specifies the
conditions and circumstances in which it shall
be available and the effect in law if the
conditions are satisfied. The mandatory
character of the protection afforded to a public
servant is brought out by the expression, „no
court shall take cognizance of such offence
except with the previous sanction‟. Use of the
words „no‟ and „shall‟ makes it abundantly
clear that the bar on the exercise of power of
the court to take cognizance of any offence is
absolute and complete. The very cognizance is
barred. That is, the complaint cannot be taken
notice of. According to Black's Law Dictionary
the word „cognizance‟ means „jurisdiction‟ or
„the exercise of jurisdiction‟ or „power to try
and determine causes‟. In common parlance, it
means taking notice of. A court, therefore, is
precluded from entertaining a complaint or
taking notice of it or exercising jurisdiction if
it is in respect of a public servant who is
accused of an offence alleged to have been
committed during discharge of his official
duty. ‟
21. The learned Senior Counsel appearing for the
appellants raised the contention that the requirement
of sanction is only procedural in nature and hence,
directory or else Section 19(3) would be rendered
otiose. We find it under Section 156(3) CrPC. The
CRL.M.C. 849/2017 & connected matters Page 11 of 15
above legal position, as already indicated, has been
clearly spelt out in Paras Nath Singh [(2009) 6 SCC
372 : (2009) 2 SCC difficult to accept that contention.
Sub-section (3) of Section 19 has an object to
achieve, which applies in circumstances where a
Special Judge has already rendered a finding,
sentence or order. In such an event, it shall not be
reversed or altered by a court in appeal,
confirmation or revision on the ground of absence of
sanction. That does not mean that the requirement
to obtain sanction is not a mandatory requirement.
Once it is noticed that there was no previous
sanction, as already indicated in various judgments
referred to hereinabove, the Magistrate cannot order
investigation against a public servant while invoking
powers (L&S) 200] and Subramanian Swamy
[(2012) 3 SCC 64 : (2012) 1 SCC (Cri) 1041 : (2012)
2 SCC (L&S) 666] cases.” Having regard to the ratio
of the aforesaid judgment, we have no hesitation in
answering the question of law, as formulated in para
7 above, in the negative. In other words, we hold that
an order directing further investigation
under Section 156(3 ) of the Cr.P.C. cannot be
passed in the absence of valid sanction….”
9. Perusal of the above records and facts shows that the Trial court
cannot take cognizance, for the offences under the Prevention of
Corruption Act, against a public servant, while in discharge of his
official duty, without obtaining sanction from an appropriate
authority. In the present case, the CBI had filed the chargesheet
against the other two co-accused(s) along with the present
petitioners but the same was returned by the learned Special Judge
to the CBI as no sanction was obtained qua present petitioners,
with the direction to the CBI to obtain necessary sanction from a
CRL.M.C. 849/2017 & connected matters Page 12 of 15
competent authority. Thereafter, the CBI made two attempts to
obtain sanction from the competent authority but the same was
declined by the authority concerned and was forwarded to the CBI
vide letter dated 30.03.2016. Further, while recording the
submissions made by the counsel for the CBI in order-on-charge
dated 01.02.2017, it was categorically stated in paragraph No.21
by the Trial court that “However, he has conceded that during the
investigations, the CBI could not collect any evidence about the
person, who had forged and fabricated the purported CRRI report
dated 30.09.2008 and therefore, no offence u/s 468 IPC is made
out against any of the accused persons, as the identity of the said
accused could not be ascertained, during the investigations. He
has further conceded that the charges for the offence punishable
u/s 13(2) r/w Sec. 13(1)(d) of the PC Act, 1988, may not be framed
against accused A-3 to A-8 as these accused were never summoned
to face the trial for the said offences…” Further, in the same order
dated 01.02.2017 in paragraph No. 64, it has been observed by the
Trial Court that “The above circumstances and the material on
records, therefore, raise a strong suspicion against all the accused
persons, except accused Dr. Sangita (A-) that they had all
conspired together and have committed various offences, as
discussed above, with the common objective of the conspiracy to
cheat the MCD and to cause pecuniary advantage of a total
amount of Rs. 93,96,902/- to themselves or to co-accused R.P.
Singhal, proprietor of M/s R.P. Singhal & Co. and thereby caused
corresponding loss to the MCD/ government exchequer.
CRL.M.C. 849/2017 & connected matters Page 13 of 15
Accordingly, the charges for the offences punishable u/s 120-B r/w
Sections 420, 471, 477-A IPC & Sec. 13(2) r/w Sec. 13(1)(d) of the
P.C. Act, 1988 and the charges for the substantive offences
punishable u/s 420, 471 r/w Sec. 465, 477-A IPC be framed
against the accused R.P. Singhal (A-2); Raghvinder Dabas (A-3);
Jitender Dabas (A-4); Mukesh Kumar(A-5); Birender singh Yadav
(A-6); Sushil Kumar Jain (A-7); and Ravinder Singh (A-8). All the
aforesaid accused are discharged for the offence punishable u/s
468 I.P.C…”
10. Thereafter, surprisingly, two separate charges were framed by the
Trial Court vide its order dated 10.02.2017 i.e. one for substantive
offences punishable under Sections 120-B r/w Sections 420, 471,
465, 477A IPC and another composite charge covered under
Sections 120-B r/w Sections 420, 471, 465, 477A IPC & Sec.
13(2) r/w Sec. 13 (1) (d) of the P.C. Act, 1988.
11. Admittedly, no sanction for the prosecution under the Prevention
of Corruption Act was accorded by the competent authority qua the
petitioners, in the absence of which, no charges under the
Prevention of Corruption Act could have been framed by the Trial
Court. The charges framed for the offences under the Prevention of
Corruption Act against the petitioners being illegal are set aside.
12. Ordered accordingly.
13. All the petitions and pending applications stand disposed of.
CRL.M.C. 849/2017 & connected matters Page 14 of 15
14. Copy of this Order be given dasti under the signatures of the Court
Master.
SANGITA DHINGRA SEHGAL, J
DECEMBER 5, 2017
//gr
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