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Delhi District Court

In " Dharambir Khattar vs . Cbi Decided On 5-5- on 25 September, 2009

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                IN THE COURT OF SH. RAJNISH BHATNAGAR
                  SPECIAL JUDGE 01 CBI : ROHINI : DELHI

CBI No. 29/2008

C.B.I.

Vs.

Maha Nand Sharma Etc.                              ......Accused
(Mahajan Shree CGHS)

ORDER

1. This order shall govern the disposal of an application moved by accused Karamveer Singh U/s 197 Cr.P.C praying for dropping of proceeding against him in the absence of sanction U/s 197 Cr.P.C which according to him was mandatory in his case.

2. The grievance of accused Karamvir Singh is that he being the public servant, the alleged acts being committed by him while performing his official duty, were protected U/s 197 Cr.P.C and as the CBI has failed to take sanction U/s 197 Cr.P.C to prosecute him, the proceedings be dropped against him.

Contd.

3. The Ld. Sr. P.P for CBI has not filed any reply to the said application and had made oral submissions. It is argued by him that the role of criminal conspiracy has been assigned to the accused and he has conspired with other co-accused who are the private persons to obtain the land from the DDA at a concessional rate so he is not entitled to any protection U/s 197 Cr.P.C.

4. Now it is to be seen whether the alleged acts which were committed by the accused were in discharge of his official duties. The allegations against the accused as set out in the charge sheet are as follows : That the accused was working as dealing assistant of RCS. He entered into a criminal conspiracy during the period 1998 to 2005 alongwith other 2 co-accused with the object to cheat DDA in order to get the land fraudulently allotted to Mahajan Shree CGHS Ltd.

5. It is alleged that in the process co-accused Maha Nand Sharma and co-accused Jai Kishan Chhikara Contd.

unauthorizedly claimed themselves as Secretary and President of Mahajan Shree CGHS Ltd and fraudulently obtained the approval of the final list of members on the basis of forged affidavits of promoters members and thereby obtained a letter from the office of RCS Delhi for allotment of land from DDA. It is further alleged that the accused Karamvir the then dealing assistant of RCS office Delhi dishonestly prepared the processing note for approval of final list of members and failed to point out various violation of Rules and Regulations and other acts of omissions and commission while putting up the processing note.

6. It is further alleged that accused Karamvir Singh fraudulently sent a false and incorrect list of members to DDA for allotment of land. Investigation further revealed that on 5-3-1998 the then dealing assistant i.e. accused Karamvir Singh UDC suo moto put up a note mentioning that the elections of the Managing Committee of the society were not held since 16-4-1994 and audit of the society not Contd.

completed and requested for issue of a direction to the society to hold election within a month of receipt of the requisition and accordingly a letter was issued to the society under the signatures of Sh. R.P. Kalra, the then Assistant Registrar.

7. It is further alleged that accused Karamvir Singh without verifying the genuineness of the Secretary and the list of members submitted by the co-accused persons accepted the said list and records and in response to this letter he initiated a note in the RCS file for verification of the society records. Investigation further revealed that in response to this letter accused Maha Nand Sharma visited RCS office on 22-4-1998 and submitted affidavits of members of society, list of members in triplicate and membership forms.

8. It is alleged that on 13-05-1998 accused Karamvir Singh, UDC had put up a detailed favourable note for approval of final list of members of the society mentioning Contd.

details about the affairs of the society pertaining to (i) affidavits of the Secretary of the Society (ii) Position in respect of strength of the society, (iii) Promoter members strength, (iv) Details of 136 enrollments, (V) Details of 126 resignations.

9. Investigation further revealed that accused Karamvir Singh had put up another note on 21-5-1998 giving false and misleading details mentioning that the audit of the society was completed up to 1996-97 and election of the society was held on 30-06-1997 for the year 1997-98 and requested for approval of the list of members. Investigation has revealed that accused Karamvir Singh dishonestly and fraudulently initiated a note which was put up before the Registrar of Co-operative Societies Delhi on 4- 6-1998 mentioning approval of the list. Then Sh. Gopal Dixit, R.C.S. raised queries about election, audit and inspection and accused Karamvir Singh replied the queries vide note dated 5-6-1998.

Contd.

10. It is alleged that when Sh. Gopal Dixit, RCS gave directions to check 10% of the resignation by the Area Inspector by visiting the premises /residence of resigned members, accused Karamvir Singh put up a note mentioning that on record no complaint has been received from the resigned members and there are 126 resignation on record out of which 72 members resigned before 30-6- 1986 i.e prior to cut off date.

11. Investigations have revealed that by putting false and incorrect notes, accused Karamvir Singh conspired with co-accused persons and was instrumental in getting a plot measuring 9000 sq. meters at plot No. 13 sector 23 Dwarka to Mahajan Shree CGHS Ltd.

12. With these allegations against the accused Karamvir Singh, it is to be seen if the alleged acts committed by him were in discharge of his official duty or not and whether protection U/s 197 Cr.P.C as claimed is available to him.

Contd.

13. The law on the subject is as follows :-

In Raghunath Anant, 2008, Cr. L.J. 2054, the Apex Court concluded that it is no part of duty of a public servant while discharging his official duty to enter into a criminal conspiracy or indulge in criminal mis-conduct, application of sanction U/s 197 of Cr.P.C is, therefore, no bar for his prosecution.

In Bakshish Singh's Case, AIR 1983 SC 257, it was observed by the Hon'ble Supreme Court that the Court has to make a balance between the protection granted to the public servants and the safeguard available to the citizens against the excess of public servants. Further more in the matter of protection for the offence of conspiracy, forgery, cheating and bribery, no sanction u/s 197 of the Code is required, since the Apex Court has ruled that it is not the part of the duty of the public servant while discharging his duty, to enter into a criminal conspiracy or indulged in criminal mis-conduct or to commit offence of forgery, Contd.

cheating and bribery.

In " Dharambir Khattar Vs. CBI decided on 5-5- 2009 in Criminal Revision Petition No. 340 of 2008, by the Hon'ble High Court of Delhi, it was observed that :

"The matter can be looked at from another angle as well. The petitioners have been charged with the offence of criminal conspiracy under Section 120 B IPC. Under Section 3 of PCA, the Special Judge is empowered to try not only "any offence punishable under this Code" but under Section 3 (1) (b) "any conspiracy to commit or attempt to commit or any abetment of the offence specified in clause (1)".

Under Section 40 IPC, it has been mentioned that in Chapter VA and in Sections 109, 110 IPC the word "offence" denotes a thing punishable under this Code, or under any special or local law as hereinafter defined." Under Section 41 IPC, a special law has been defined as "a law applicable to a particular subject." Therefore, in terms of Section 40 Contd.

and 41 IPC, the PCA would be a Special Law. The offence under Section 120 B in Chapter VA IPC would therefore also become punishable under the PCA which is a special enactment for that purpose. Once the sanction under Section 19 PCA has been obtained, there is no need to obtain a separate sanction under Section 197 Cr.PC for prosecuting the petitioners for the offence under Section 120 B IPC."

Thus, the Hon'ble High Court in its order dated 5-5- 2009 has categorically observed the offence U/s 120 B in Chapter VA IPC would also become punishable under the Prevention of Corruption Act and hence once sanction U/s 19 of Prevention of Corruption Act has been obtained no sanction U/s 197 Cr.P.C would be required. Similar is the law settled in 'Kaushal Kumar Vs. CBI, 2009 (1) LRC 56, Delhi.

14. The allegations against the accused are that he conveniently ignored the Rules and Regulations, accepted Contd.

forged and fabricated documents by private persons in furtherance of the conspiracy and gave favourable reports to secure the land. So these alleged acts raise strong suspicion against him and looking at his duties he was not actually expected to do what he had actually done and that primafacie cannot be said that he acted in discharge of his official duties.

15. The counsel for the accused has relied upon judgments titled as R. Balakrishnan Pillai, AIR 1996 SC 901; Sankran Moitra Vs. Sadhna Das, AIR 2006 SC 1599; Paul Verghese, JT 2007 (5) SC 525. In the said judgments it is laid down that if the act is in discharge of duty then sanction is required. It is urged by the counsel for the accused that in the cited cases, the allegations were much more serious but still the non-compliance of Section 197 Cr.P.C was considered fatal. However, the later judgments viz. Raghunath Anant, 2008 Cr. L.J. 2054 and even Parkash Singh Badal's case AIR 2007 SC 1274 are to the Contd.

contrary and the decisions of our own Hon'ble High Court in Dharambir Khattar's case (Supra) and in Kaushal Kumar Vs. CBI 2009 (1) ILR 56 Delhi it has been observed that the offences u/s 120 B and also under P.C. Act are not of the nature falling within Section 197 CrP.C. So a public servant who committed offence under the PC Act can be prosecuted with sanction u/s 19 of the PC Act if he continues to be a public servant when court took cognizance, and he cannot seek protection U/s 197, Cr.P.C merely because charge under IPC is included in sanction order.

16. The acts of accused Karamvir Singh, as stated above, primafacie, were beyond the purview of discharge of his official duties and hence he is not entitled to protection U/s 197 Cr.P.C, the application is, therefore, dismissed. (Announced in the open Court on 25-09-2009) (RAJNISH BHATNAGAR) SPECIAL JUDGE 01 CBI ROHINI COURT : DELHI Contd.

Contd.

Contd.

Contd.