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This Order Shall Govern The Disposal Of ... vs Cbi Decided On 5-5 on 30 September, 2009

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

CBI No. 63/08
C.B.I.

Vs.

Narayan Diwakar etc.


ORDER

1. This order shall govern the disposal of an application moved by accused NO: 6 P.K. Thirwani U/s 197 Cr.P.C contending therein that he is a public servant as defined u/s 21 of IPC and was performing his official duties in the Office of Registrar of Cooperative Societies. It is further averred that the alleged acts done or purported to have been done by him while performing his duties as covered under the protection of Section 197 Cr.P.C and in the absence of said sanction the proceedings are vitiated and proceedings be dropped against him.

2. Brief facts are that one Uttar Pradeshiya Rajkia CGHS Ltd. was registered on 13.04.71 vide registration NO:

Contd.

19 (H) with 16 promoter members having its registered office at Y-322, Sarojini Nagar. Subsequently the society was offered land measuring 2 acres at Paschim Puri, Delhi on 29.11.75 by DDA and was asked to pay 25 % for some land at the rate of Rs. 45/- per sq. yds. The society thereafter deposited an amount of Rs. 1,08,900/- vide pay order dated 30.08.76 favoring DDA. Earnest money of Rs. 5,000/- was already deposited by it with DDA vide cheque NO: 28333 dated 10.10.75 and the balance 75% of cost of land was required to be deposited latest by 31.07.77. The society requested the office of RCS for amendments of its bye laws so that new members could be enrolled but said request was declined by the RCS and on 14.10.78 the society has its General body meeting under the chairmanship of Shri NK Aggarwal, Honorary Secretary in the presence of 25 members wherein it was decided to approach DDA for refund of money deposited with it.

3. Since RCS had not allowed the amendment of bye Contd.

laws to enable the society to enroll new members, accordingly N.K. Aggarwal took refund of 25% cost of the land deposited with DDA and Shri Ashok Bakshi, the then Dr. Registrar wound up the society vide order dated 24.03.79.

4. One Rajinder Lal as President of the society vide letter dated 01.09.03 approached RCS for revival of the society and also for change of its name to Ujjawal CGHS Ltd. and mentioned the address of the society as 03/45 A, Nirankari Colony, Delhi. This letter was marked by accused Narayan Diwakar RCS to J.S. Sidhu, JR ( East) who in turn marked the same to Ramesh Chandra, the then AR (East). Narinder Kumar dealing assistant put up said request on 19.09.2003 before Assistant Registrar and proposed inspection of the society by appointing Sushil Kumar Sharma and proposal was approved by Narayan Diwakar. It is alleged that Sushil Kumar Sharma submitted a false and forged inspection report. Narinder Kumar recommended for revival of the society and also for approval of 180 members.

Contd.

The file was endorsed to Ramesh Chandra who marked it to Narayan Diwakar.

5. The society was revived by Narayan Diwakar on 03.12.03 and its change of name was also approved. It is alleged against applicant/ accused that he had prepared fake and false audit report for the period 1977-1978 to 2002-2003 which was against the provisions of DCS Act 1972. It is further alleged against him that he dishonestly and fraudulently forged the signatures of Secretary and Treasurer of the society on the audit report and the same has been confirmed by the GEQD.

6. Accused has argued the application and submitted that he is entitled to protection u/s 197 CrPC being a Government servant and the alleged acts were done by him in discharge of official duties.

7. On the other hand Ld. Senior PP did not file any reply to the application but had made oral submissions. It is urged by Ld. Senior PP for CBI that the role assigned to the Contd.

accused is that of a criminal conspiracy and in pursuance to that conspiracy applicant/accused conspired with other co- accused and helped the private persons to obtain land from DDA at concessional rates. So he is not entitled to any protection u/s 197 CrPC. Ld. Senior PP further submitted that sanction u/s 19 P.C. Act has already been accorded by the competent authority.

8. To see if the acts committed by the accused were in discharge of his official duties or not and whether the protection u/s 197 CrPC is available to him or not , for that matter, 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 Contd.

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, 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 Contd.

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 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."

Contd.

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.

9. 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 Contd.

Singh Badal's case AIR 2007 SC 1274 are to the 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.

10. As per the allegations officials of the RCS by conveniently ignoring rules and regulations accepted false and fabricated documents in furtherance of criminal conspiracy and gave favorable reports which entitled the public persons to secure land from the DDA at concessional rates. It is alleged against accused P.K. Thirwani that he prepared false and fabricated audit report and had even Contd.

gone to the extent of dishonestly and fraudulently forging the signatures of secretary and treasurer of the society on the audit report which according to the prosecution has been confirmed by the GEQD.

11. So the alleged acts of accused P. K. Thirwani 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 30-09-2009) (RAJNISH BHATNAGAR) SPECIAL JUDGE 01 CBI ROHINI COURT : DELHI Contd.

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