Delhi District Court
Malhotra vs Ld. Counsel For The Petitioner ... on 13 April, 2022
IN THE COURT OF MS. NELOFER ABIDA PERVEEN:
ADDL.SESSIONS JUDGE : (CENTRAL)
TIS HAZARI COURTS:DELHI
CNR No. DLCT010012832020
CRL. REV. NO. 82/2020
In the matter of :
Brij Mohan Sehgal,
S/o Late Sh. Rajinder Nath Sehgal,
R/o H. No. 39, 1st Floor, Block B6,
Sector5, Rohini, Delhi110085
Versus
Pankaj Sanghi,
Ex Director of Prosecution, GNCT of Delhi,
1st Floor, Tis Hazari Courts Complex,
Delhi110054
Date of Institution : 29.01.2020
Date of Judgment : 13.04.2022
JUDGMENT
Vide this order, I shall decide the present revision petition U/S 397 read with Section 399 Cr.PC against order dated 14.11.2019 passed by Sh. Abhilash Malhotra,Ld. MM07 (Central), Delhi dismissing the C. R. No.82/2020 page 1 criminal complaint filed by the petitioner under Section 200 CrPC.
1. Ld. Counsel for the Petitioner submitted that as per law, the Prosecutors appointed in the Directorate of Prosecution are deputed to conduct criminal cases on behalf of the State in subordinate courts and unlike employees of other Government Departments, the prosecuting officers are not transferred to any other Department except to Food Safety Department and Police Training College. That the Code of Criminal Procedure, 1973 makes provision regarding the works/duties of prosecuting officers, and as per Section 24 of Cr.P.C., Central Govt. or the State Government may in consultation with the High Court, appoint a Public Prosecutor and may also appoint one or more Addl. Public Prosecutor for conducting in such Court any prosecution, appeal or other proceeding on behalf of Central Govt. or State Govt. as the case may be. That Section 25 of Cr. P.C. provides that the State Govt. shall appoint in every district one or more Assistant Public Prosecutor for conducting prosecutions in the Courts of Magistrates.
C. R. No.82/2020 page 2 That the Prosecuting Officer of Directorate of Prosecution cannot be posted/transferred to any other departments except to Food Safety Department and Police Training College. That the respondent has no power or any authority to make interdepartment posting/transfer of Prosecuting Officer of Directorate of Prosecution. That despite a very clear law on this point, 12 Prosecuting Officers have been illegally transferred/posted to Home Department, Law Ministry, Delhi Women Commission, SIT, Chief Minister's Office by the Director of Prosecution in blatant disregard of the mandates of the legislation and the authority of law. That due to such arbitrary and illegal posting of Prosecuting Officers to other departments, there has been shortage of Prosecuting Officers as against the number of Criminal Courts in Delhi District Courts and thereby administration of criminal justice is suffering. That the opposite party has misused his official position and caused loss to the Department by making transfer/posting of Prosecuting Officers to other Departments without any valid authority of law in a very crucial time when there is shortage of the C. R. No.82/2020 page 3 available prosecutors as against the number of Criminal Courts in Delhi, and has disobeyed the direction of law so as to cause injury to the Directorate of Prosecution and hence committed offences punishable U/S 166/409 IPC r/w Section 44 of IPC. That the opposite party, being entrusted with the power to transfer prosecuting officers of the Department of Prosecution, is dishonestly using/disposing of that power in violation of direction of law prescribing the mode in which such trust is to be discharged by making interdepartment transfer/posting where there is no sanctioned post of prosecuting officers, thereby offending Section 409 of IPC. That the 'Aadhar Enabled Biometric Attendance System' has been procured in the Directorate of Prosecution, Govt. of NCT of Delhi, in clear contravention of the DoPT Notification No. 110013/9/2014 Estt. AIII dated 22.06.2015 as the thrust of the said notification is to replace the manual system of marking of attendance. That the Prosecuting Officer are Gazetted Officers and that there is no manual system of attendance register maintained for them. Hence, there is no question at all to replace the manual system of C. R. No.82/2020 page 4 attendance of Prosecuting Officers. That the duties of Prosecuting Officers are inside the Court to assist the Court in the administration of justice and their work is under the close scrutiny of the concerned Courts where they are posted. The attendance/appearance is marked by the Court itself throughout the proceedings of the cases vide daily order sheets of the Court. Therefore, installation of another system i.e. Aadhar Enabled Biometric Attendance System of marking attendance/appearance of Prosecuting Officers in violation of said DoPT Notification is nothing but the misuse of the State funds by the opposite party. That the Ld. MM in the impugned order has observed that the biometric machine were purchased for the purpose of attendance of prosecuting officers and were returned to the vendor. The same fact has been exposed by the revisionist vide RTI reply dated 27.09.2019. That the biometric machines in question were procured vide GeM Sanction No. GEMS8719117 as per the official position during the tenure of Sh. Panjak Sanghi. The Government e Marketplace Special Purpose Vehicle (GeM SPV) came C. R. No.82/2020 page 5 into existence as Private Limited Company under the Ministry of Commerce incorporated under the Companies Act, 2013 to develop, manage and maintain the GeM Platform. The GeM platform provides an online portal for optimization of Public Expenditure and to achieve the same objective, the Ministry of Finance Department of Expenditure had added the Rule 149 in the General Financial Rules, 2017. That one basic exercise required before any Goods or Services is procured by any Government Entity is a detailed assessment as to needs and feasibility of the Goods or Services being procured. Procuring authorities have responsibility and accountability to ensure professionalism, economy, efficiency, effectiveness and integrity in the procurement process. They must avoid wasteful, dilatory and improper practices. That it is the duty of the controlling authority which includes the Head of the Department to ensure that the expenditure is incurred in public interest. That the Director of Prosecution, Pankaj Sanghi broke all guidelines as to financial propriety in the present case and has made improper use of information available with him.
C. R. No.82/2020 page 6 The biometric machines were supposed to be procured only to replace the manual system of attendance. That infact he acted with criminal negligence with respect to pubic finances at all the stages of procurement of Bio metric machines. The installation of biometric machines is not in consonance with the Section 7 of the Aadhar Act. The mandatory implementation of Aadhar enabled bio metric attendance system directly contravenes the recent decision of Hon'ble Supreme Court of India in Justice K. S. Puttaswamy v. Union of India & Ors. (2019) 1 SCC 1. In view of this judgment, the Aadhar enabled biometric attendance system is entirely outside the scope of which Adhar based authentication may be used. That thus not a case of simple negligence was not simple negligence, rather the procurement process was carried out with dishonest intention for an illegitimate object. That the Director of Prosecution, Pankaj Sanghi has till date not reported any loss to the government to cover up his misadventure of procuring Biometric Machines in violations of the Constitutional Scheme and the various Financial Rules and Regulations. That it remains to C. R. No.82/2020 page 7 answered as to why did the Director of Prosecution, Pankaj Sanghi procure the Biometric Machines in question by misrepresenting and providing wrong information, and what was his interest in this procurement? This is fraud upon the Constitution itself that suggests prima facie dishonest intention in the procurement process. That though the opposite party may be a public servant within the meaning of Section 21 of IPC but sanction under Section 197 CrPC is not required in view of the judgment of Hon'ble Supreme Court in State of Kerala v. V. Padmanadha Nair 1999 (3) SCR
864. Section 197 (1) of the Code is part of the law of procedure and cannot be construed so as to defeat a provision of the substantive law in Section 166 of the IPC. That it is no part of an official duty to commit an offence, and never can be. That the test is whether the public sevant can reasonably be said to have committed the offence by virtue of his office. The Director of Prosecution, Pankaj Sanghi being from law background is endowed with greater responsibility to act in accordance with the laws of the land. He has deliberately shown disregard to C. R. No.82/2020 page 8 the Grundnorm by violating the constitutional scheme which is the root of all law. He is not at all sensitized towards the greater needs of a criminal justice system which is already under heavy pressure of delivery to the masses timely justice, and has deliberately with criminal intent used public finances in violation of the constitutional scheme and the various financial regulations / law which in itself is a fraud upon the Indian Constitution. Petitioner has reproduced extracts from several judicial pronouncements in the written submissions, however, the same were no relied in the course of arguments nor submitted. Petitioner has filed judgment in Delhi Prosecutors Welfare Association (Regd.) v. Rajiv Mehrishi & Anr. Cont. CAS (C ) 224/2016.
2. Written submissions were filed on behalf of the respondent. It is contended for the respondent that the respondent was admittedly a Public Servant and was discharging his public functions, in official course of his duties, still the petitioner has chosen to file the complaint / Revision against the respondent in his personal capacity. That respondent was discharging his C. R. No.82/2020 page 9 public function as public servant, hence, Sanction under Section 197 CrPC of Competent Authority is a pre requisite, but no such sanction has been obtained by the petitioner, without which no prosecution can be initiated. That the petitioner deliberately with ulterior motive has not impleaded the State and Delhi Government as necessary party. That petition deserves to be dismissed as there is no mention as to how the State funds are misused or power has been misused by the respondent, the then Director of Prosecution, GNCT and as such the complaint was rightly dismissed by the Ld Trial Court. That no offence is made out as the respondent has acted in discharge of his official duty, to obey and abide the orders of the Competent / Cadre Controlling Authority, which were not at all against the service norms. The basic grievance or allegations made by the complainant / petitioner against respondent is two folds firstly transfer of 12 prosecuting officers to other Delhi Government departments i.e. Home and Law Department, Govt of NCT of Delhi, Commission of Women, Chief Minister Grievance Redressal Cell and Special Investigation Team C. R. No.82/2020 page 10 etc. That this issue was also raised by the petitioner before Ld. Hon'ble High Court of D elhi vide W. P. (C) No.5015/2019 titled as Brij Mohan Sehgal v. Govt. of NCT of Delhi and the same was dismissed 10.05.2019. That the complaint is an abuse of process of law and filed mala fide. That the son of the Complainant/Revisionist Shri Brij Mohan Sehgal was posted as Assistant Public Prosecutor, in the Directorate of Prosecution, Government of NCT Delhi at Rohini Courts. He got married with another Assistant Public Prosecutor of Directorate of Prosecution, Government of NCT Delhi, who was posted at Karkardooma Courts, Delhi. After few months, a matrimonial dispute arose between them and the daughter in law of petitioner, made a representation to Principal Secretary(Home), GNCT Delhi, regarding demand of Dowry, mental and physical harassment, misbehaviour and misconduct by her husband, the Assistant Public Prosecutor, son of the petitioner and her inlaws. The said representation was sent to the Directorate of Prosecution by Home Department for taking departmental action against the officer, the son of C. R. No.82/2020 page 11 the petitioner. The matter was marked to a Chief Prosecutor for enquiry. But none of the party joined the enquiry on one pretext or the other. That the petitioner also made false, frivolous and baseless allegations against the enquiry officer therefore, on the request of said enquiry officer, the matter was marked to another enquiry officer, who tried to reconcile the dispute between the parties but no fruitful result could be achieved. That the daughter in law of petitioner also requested the Principal Secretary (Home) to change the enquiry officer as she was not satisfied with the second enquiry officer, and desired an independent enquiry to be conducted by Home Department at its end. The said representation was rejected by Home Department. Accordingly, the daughter in law of petitioner was informed and her complaint/representation was sent to police for further necessary action at their end as per directions of Home Department. Then the vigilance officer of the Directorate of Prosecution was appointed as enquiry officer. That the petitioner and his son made several false frivolous and fake complaints against the different officers of the C. R. No.82/2020 page 12 Directorate of Prosecution Le. the First Appellate Authority, under RTI Act, the Chief Prosecutor (first Enquiry officer) and Head of office etc. who were concerned with the enquiry against son of the Revisionist/Complainant, while using derogatory language against them which were dealt with by Home Department, GNCT Delhi and strict orders were passed by it against the son of the petitioner, an APP. That Home Department asked the Directorate of Prosecution to put up a proposal for charge sheeting the son of the Revisionist, APP in view of above misconduct, misbehaviour, insubordination and indiscipline and sought a draft Charge Sheet from Directorate of Prosecution accordingly it was prepared and sent to Home Department. That when the Revisionist Shri Brij Mohan Sehgal had exhausted his energy by making false and frivolous complaints against each and every officer of the Directorate of Prosecution, who were concerned with the enquiry of complaint of her daughter in law, and when he failed to achieve any favourable result, he played this mischief/tactics by filing this false, frivolous and un called C. R. No.82/2020 page 13 for complaint in the court of Learned Metropolitan Magistrate, Tis Hazari Courts against Respondent, Pankaj Sanghi, to threaten and pressurise and the other officers of the Directorate of Prosecution so that no one can raise voice against his son or against him for their illegal acts and conduct. That the Revisionist had filed the false and frivolous complaint against Respondent because the son of the Revisionist, APP was transferred to Police Training College, Jharoda Kalan by the Respondent Shri Pankaj Sanghi, the then Director of Prosecution. That the petitioner as then Director of Prosecution, was performing his public functions under the directions of the Cadre Controlling Authority i.e. the Home Department, GNCT Delhi. That the petitioner filed a false, frivolous, baseless and uncalled for complaint in the court of the Metropolitan Magistrate, Tis Hazari Courts, Delhi to torture, harass, pressurise and defame the Respondent so that the Respondent may call back the son of Complainant/Revisionist, APP to Directorate of Prosecution. That all the above 12 Prosecuting Officers were sent in diverting capacity to the above mentioned C. R. No.82/2020 page 14 departments by the orders of Competent Authority, Le. Home Department, GNCT Delhi at different point of times, even by predecessor Directors, before the promotion of the Respondent as Director of Prosecution and after his retirement, the successor Director of Prosecution are still passing such orders to comply with the directions/orders of Higher/Competent Authority as mentioned above to perform legal work as per requirements / requisitions/directions received from different authorities of Government of NCT of Delhi. That in the month of February 2017, twelve AEBAS were ordered to be purchased through Government E marketing place, as the government had ordered to make all purchases from there, by following all requisite procedure and norms prescribed by the government. On 30.07.2019 a letter was received by the Directorate of Prosecution from the supplier company who supplied the AEBAS machines to the Directorate of Prosecution, to process the payment or release the Machines against above GEM order No. GEMS8719177 dated 12.12.2017. The Supplier was apprised about the above mentioned C. R. No.82/2020 page 15 clarification sought from Home Department, no payment was made to him and in these circumstances the AEBAS Machines were returned to the supplier and an information to this effect was sent to Special Secretary (Home), by the then Director of Prosecution, Sh. S. C. Sharma, Thus no financial transaction was done. The respondent had already retired from services on 31.07.2019. When no financial transaction was done then how any alleged offence is committed. The respondent has filed the copy of the decision in W. P. (C) No. 5015/2019 & CM APPL.22234/2014 titled as Brij Mohan Sehgal v. Govt. of NCT of Delhi decided by Hon'ble High Court of Delhi on 10.05.2019; D. Devaraja v.
Owais Sabber Hussain Crl. Appeal No. 458/2020 decided by Hon'ble Apex Court on 18.06.2020; State of Punjab v. Labh Singh Crl. Appeal no. 2168 of 2010 decided by Hon'ble Apex Court on 17.12.2014; P. K. Chaudhary v. Commander, 48 BRTF (GREF) decided by Hon'ble Supreme Court of India Appeal (Crl.) No.480 of 2008; Krishna Lal Chawla & Ors. v. State of UP & C. R. No.82/2020 page 16 Anr decided by Hon'ble Supreme Court of India on 08.03.2021.
Ld. Addl. PP submitted that the revision petition deserves to be dismissed with cost and that the Hon'ble Supreme Court of India in Kishore Samrite v.
State of MP Review Petition (Criminal) no. 732/2013 for frivolous revision has imposed cost of Rs.5 lac on the petitioner.
3. I have heard the Ld. Counsel for the petitioner and perused the written submissions and the judgments filed alongwith.
4. On the query of the Court, as to what is the particular Criminal act or omission, inviting what nature of penal consequences, Ld. Counsel for petitioner submitted that the respondent had transferred certain Public Prosecutors to certain departments in violation of Law and then when it is put to Ld. Counsel as to in violation of which law, ld. Counsel submitted that the act impugned is in contravention of Sections 24 and 25 of the CrPC. Section 24 CrPC makes provision for appointment of Public Prosecutors for every High Court and in any C. R. No.82/2020 page 17 District. Section 24 CrPC is just an enabling provision, neither any offence is created nor any punishment is prescribed thereunder. The provision does not make any act or omission punishable in any manner. Along same lines, Section 25 calls for the appointment in every District of one or more Assistant Public Prosecutors for conducting prosecution in the court of Magistrates.
5. From the contents of complainant, it emerges that respondent was holding the post of Director of Prosecution, GNCT of Delhi, working in such capacity of the Head of the Department since June, 2015. As per RTI replies obtained at the instance of the petitioner dated 24.11.2018 by the Directorate of Prosecution, GNCT of Delhi, 12 prosecution officers have been transferred / posted as follows :
1. Special Investigation Team - 2;
2. Delhi Commission for Women - 1;
3. Home Department (Govt. of NCT of Delhi) 4;
4. Chief Ministry Grievance Redressal Cell - 2;
5. Delhi Law Ministry - 3.
C. R. No.82/2020 page 18 The petitioner / complainant is aggrieved against the above mentioned 12 transfers. This act of transfer of 12 prosecuting officers to the said departments is challenged as without authority, infringing Section 24 and 25 CrPC, causing injury to the Directorate of Prosecution occasioned from a consequential scarcity of the public prosecutors in Court resulting in delays and inefficiency in the criminal justice delivery system for which the respondent is alleged to have committed offences punishable under Section 166/409/406 IPC.
6. Whoever being public servant knowingly disobeys the directions of the laws as to the way in which he is to conduct himself as such public servant with the intention to cause or knowing that he is thereby likely to cause injury to any person, is rendered liable for punishment under Section 166 IPC. The "person" as per the complainant here is the Directorate of Prosecution / the entire criminal justice dispensation system. I am afraid such is not the purport of law. The exercise of the powers of transfers and posting vested in the Administrative Head of any department is primarily and C. R. No.82/2020 page 19 exclusively an administrative issue. Even if the exercise of such powers on administrative side results in any insufficiency, scarcity and shortage of APP in the Courts, by no stretch of imagination by virtue of incorporation of Section 24 or 25 of CrPC criminal culpability would entail such action punishable under Section 166 IPC. Moreover, the transfers / postings by the competent authority in any establishments in exercise of administrative function is an act directly related to the office held and the discharge of official duties of such Office in the ordinary course and for rendering the officials accountable in any manner for such an act in the discharge of the official duties sanction of the competent authority, is a prerequisite.
7. Culpability is also sought to be imputed for such acts of transfers / postings, under Section 405 IPC.
Section 405 IPC defines the offence of Criminal Breach of trust in the following words: "Criminal breach of trust: Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that C. R. No.82/2020 page 20 property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or willfully suffers any other person so to do, commits "criminal breach of trust".
It is an offence against property, Public Prosecutors under the Directorate of Prosecution by no manner of construction and interpretation can be accepted to be "property" entrusted in the dominion of the Directorate of Prosecution. The reliance on directions passed by Hon'ble the High Court of Delhi in the matter reported as Delhi Prosecutors' Welfare Association (Regd.) v. Rajiv Mehrishi & Anr. (CONT. CAS (C) 224/2016) and W. P. (Crl.) 1549/2009 titled as Court on its own Motion v State dated 11.12.2017 is also misplaced, despite taking note of the shortage of available prosecutors as against number of criminal courts in Delhi, no penal consequences have been ordained for transfer of public prosecutors to other departments besides Courts of law. Moreover, the respondent has filed on record copy of C. R. No.82/2020 page 21 order dated 10.05.2019 passed in W. P. (C) No. 5015/2019 & CM APPL.22234/2014 titled as Brij Mohan Sehgal v.
Govt. of NCT of Delhi by Hon'ble High Court of Delhi, challenging the same transfers / postings which came to be dismissed vide the following order: "1. Petitioner has filed this petition in public interest invoking the writ jurisdiction of this Court and the prayer made in the writ petition reads as under: "a) Issue an appropriate writ / order/direction in the nature of mandamus commanding the respondent to pass necessary orders to withdraw the prosecutors illegally transferred / posted to other departments i.e. Home Department (Govt. of NCT of Delhi), Delhi Law Ministry, Delhi Commission for Women, Chief Minister Grievance Redressal Cell and Special Investigation Team etc. and make their posting in criminal courts;
b) Issue an appropriate writ/order/directions commanding the Respondent to take necessary action against erring officials who made such arbitrary and illegal transfer / posting of prosecuting officers to other departments;
c) Pass such further orders/directions which this Hon'ble Court deem fit and proper in the facts and circumstances of the case and also in the interest of justice, and C. R. No.82/2020 page 22
d) Grant costs of this petition."
2. The grievance raised by the petitioner in the writ petition pertains to transfer of Public Prosecutors to various other Departments of the Government and the petitioner wants that the transfer and posting of prosecuting officers to other Department should be cancelled.
3. The matter pertains to the transfer of officials, namely public prosecutors to various Departments of the Government and in a Public Interest Litigation merely on account of there being shortage of Public Prosecutors, we see no reason to make any indulgence into the matter.
4. The writ petition stands dismissed." The petitioner having remained unsuccessful in the challenge to the transfer / posting has subsequently questioned those very transfers and postings as a criminal act on the part of the respondent.
8. The allegations are too farfetched, bordering on the ludicrous if not downright ridiculous in themselves. Transfers and postings even if made arbitrarily by the Competent Authority would attract no criminal consequences either under Section 166 or under Section 405/409 IPC. What is arbitrary is not necessarily a criminal offence punishable under the IPC. It is only what is made punishable under the Code that is defined C. R. No.82/2020 page 23 as an offence and no person can be held liable for any act or omission except in accordance with law.
9. It is further alleged against the respondent that he had made procurement of Aadhar Enabled Biometric Attendance System for marking attendance of the Public Prosecutors unnecessarily thereby entailing pecuniary loss to the Directorate of Prosecution. It is the own case of the complainant that the procurement is made as per GFR Rules through GeM portal. No financial irregularities in the procurement process are outlined. Even if the policy decision was unnecessary, ending in wasteful expenditure, in the absences of any allegations of financial irregularities the basic ingredients essential to constitute the offence under section 405/409 IPC are not made out. It has not been disputed that following the procurement process that concluded in the year 2017, on the representation of the vendor, the machines were returned to the vendor and no payment was made in consideration thereof.
10. There is no pecuniary loss occasioned from the procurement process which subsequently came to be C. R. No.82/2020 page 24 shelved. It is not that the machines so procured were misappropriated by the respondent by abusing his official capacity or converted to his own use in any manner whatsoever. There is absolutely no ground for an accusation under Section 405/409 IPC against the respondent on the basis of the procurement process initiated in implementation of a policy decision even if the same was absolutely unnecessary. Bad policy decisions do not constitute criminal offence in themselves. The necessity of any particular policy decision, the propriety of any administrative decision, their implementation in the discharge of official functions by the competent authority cannot be assessed and gone into by a criminal Court taking cognizance for commission of offences alleged under Section 405/409 IPC under Section 200 CrPC without allegations of financial irregularities, actual pecuniary loss and gain, not merely some imaginary and remote indirect loss.
11. The facts set forth therefore, do not constitute any criminal offence of which the Ld. Magistrate could have take cognizance in terms of Section 190 (1) (a) CrPC. The Ld. C. R. No.82/2020 page 25 Magistrate was required to have examined the complainant under Section 200 and to have commenced proceedings under chapter XV only where the Magistrate had proceeded to take cognizance of an offence. Where the facts set out in the complaint itself do not constitute any such offence, the Magistrate is not called upon to follow the procedure under chapter XV and examine the complainant under Section
200. The complaint of the petitioner discloses no offence from the facts set out under the complaint, there was nothing for the Magistrate to take cognizance of in accordance with Section 190 (1) (a) CrPC and hence there arose no occasion for the Ld. Magistrate to record the statement of the complainant under Section 200 Cr.PC and for such reasons, I find no error, irregularity, illegality and infirmity in the order impugned.
12. Present Revision Petition accordingly is dismissed. TCR be sent back alongwith copy of this order.
13. Revision Petition be consigned to Record Room. Announced in the open Court on this 13th day of April, 2022 (Neelofer Abida Perveen) Additional Sessions Judge : (Central) Tis Hazari Court:Delhi C. R. No.82/2020 page 26