Delhi District Court
Cc No.13/15; Anti Corruption Forum vs . Santosh Pathak & Ors. Page No. 1 Of 7 on 5 January, 2016
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IN THE COURT OF MS.HEMANI MALHOTRA/SPL.JUDGE
PC ACT/ACB/CENTRAL05/THC/DELHI
Complaint Case No. 13/2015
Under Section 2 (d) Cr.P.C. and
Sections 7, 12 & 13 of POC Act
read with Sec. 120B, 217, 218 & 34 IPC
Case ID No. 02401R0647112015
Anti Corruption Forum (Regd.)
Office at: R35/B/2, Pul Prehladpur,
M.B. Road,
New Delhi
Through its President
Krishan Gopal Gupta
....... Complainant
Versus
1. Santosh Pathak
JE (Building), South Zone,
South Delhi Municipal Corporation,
Green Park, New Delhi
2. Assistant Engineer (Building)
South Zone,
South Delhi Municipal Corporation,
Green Park, New Delhi
3. Arun Kumar
Executive Engineer (Building),
South Zone,
South Delhi Municipal Corporation,
Green Park, New Delhi
4. Junior Engineer
Delhi Jal Board,
Khanpur, M.B. Road,
New Delhi
5. Executive Engineer
Delhi Jal Board,
Khanpur, M.B. Road,
New Delhi
CC No.13/15; Anti Corruption Forum Vs. Santosh Pathak & Ors. Page No. 1 of 7
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6. Assistant Engineer
Delhi Jal Board,
Khanpur, M.B. Road,
New Delhi
7. Dinesh Mohnia
(Vice Chairman/Delhi Jal Board)
Owner of property
bearing No. B14, Shiv Park,
Khanpur, New Delhi
........ Respondents
Date of institution : 28.11.2015
Date of receiving by this Court : 28.11.2015
Date of reservation of judgment : 15.12.2015
Date of pronouncement of judgment : 05.01.2016
ORDER
1. Vide this order I shall dispose off complaint filed u/s 2(d) Cr.P.C. for taking cognizance of offences punishable u/ss 7, 12, 13 of Prevention of Corruption Act (in short "PC Act") against the respondents.
2. Briefly stated facts of the case as alleged in the complaint are that respondent No.7 Dinesh Mohina (Vice Chairman, Delhi Jal Board) is raising unauthorised construction in his property bearing No.B14, Shiv Park, Khanpur, New Delhi in connivance with the government officers of South Zone, South Delhi Municipal Corporation. To facilitate supply of water to the property of respondent No.7, officials of Delhi Jal Board are laying a separate pipeline. In this regard, a complaint dated 08.09.2015 was also made to the Commissioner, South Delhi Municipal Corporation, Dy. Commissioner(South Zone), SDMC and Superintending Engineer (Building)(South Zone), SDMC but to no avail. Since no action was taken by respondent Nos.1 to 6 who are officials of South Delhi Municipal Corporation/Green Park and Delhi Jal Board/Khanpur, M.B.Road, the complainant also filed a CC No.13/15; Anti Corruption Forum Vs. Santosh Pathak & Ors. Page No. 2 of 7 3 writ petition No.9774/2015 before the Hon'ble High Court of Delhi for seeking directions to the SDMC and DCP (South) to demolish the unauthorised construction in the property of respondent No.7. In response to the same, status report was filed by respondent No.3, submitting that after following due process of law, demolition order regarding the unauthorised construction in the property of respondent No.7 has been passed. However, only cosmetic demolition was carried out. Resultantly, respondent No.7 completed the unauthorised construction of the said building upto 6th Floor in connivance with respondent Nos. 1 to 6. Even the officials of BSES Rajdhani Power Ltd. and Delhi Jal Board did not disconnect the electricity and water connection. Thereafter, several complaints were made to various forums but no action was taken. On 23.10.2015, a complaint was also made to Joint C.P. (Anti Corruption Branch) against respondent No.7 regarding his offering money to withdraw writ petition from the Hon'ble High Court. Another complaint dated 18.11.2015 was subsequently made to Joint C.P. (Anti Corruption Branch) against all the respondents for misusing their power and nonaction regarding unauthorised construction on the said property, but in vain.
3. I have heard the representative of complainant Forum on the issue of maintainability of the complaint which has been filed without obtaining sanction u/s 19 of PC Act and have perused the file.
4. To decide the present controversy, it is imperative to reproduce Section 19(1) of The Prevention of Corruption Act, 1988 which provides for Sanction for Prosecution. Section 19(1) envisages that:
"No court shall take cognizance of an offence punishable under sections 7, 10, 11, 13 and 15 alleged to have been committed by a public servant, except with the previous sanction......."
CC No.13/15; Anti Corruption Forum Vs. Santosh Pathak & Ors. Page No. 3 of 7 4 From the bare reading of Section 19(1), it is evident that no court can take cognizance of an offence punishable u/ss 7, 10, 11, 13 and 15 alleged to have been committed by a public servant, except with the previous sanction of the specified competent authority.
5. It was argued by the representative of the complainant Forum that no Sanction is required at the stage of Section 156(3) Cr.P.C., in view of the judgment rendered by the Hon'ble Supreme Court in a case titled as Inspector of Police & Anr. Vs. Battenapatla Venkata Ratnam & Anr., Cri.Apl. No. 129/2013 decided on 13.04.2015, it has been observed that the question of sanction is to be considered at the stage of trial only. It was also argued that when the Magistrate (Spl.Judge in the present case) applies his mind not for the purpose of proceeding under the subsequent sections of Chapter XIV, but for taking action of some other kind, for example ordering investigation u/s 156(3) Cr.P.C., or issuing a search warrant for the purpose of investigation, he cannot be said to have taken cognizance of the offence. Hence, no previous sanction is required to direct investigation u/s 156(3) Cr.P.C.
6. Per contra, it has been argued by learned Addl. PP for the State that since no sanction has been obtained by the complainant forum, the complaint ought to be dismissed.
7. The question "whether any sanction u/s 19 POC Act is required prior to the stage of cognizance such as directing investigation u/s 156(3) Cr.P.C." has been settled by the judgment of the Hon'ble Supreme Court in Anil Kumar & Ors. Vs. M.K. Aiyappa & Anr. reported as (2013) 10 SCC 705. In this case, the appellants filed a private complaint against the first respondent, a public servant, under Section 200 Cr.P.C. alleging commission of offences punishable under Sections 406, 409, 420, 426, 463, 465, 468, 471, 474 read with Section CC No.13/15; Anti Corruption Forum Vs. Santosh Pathak & Ors. Page No. 4 of 7 5 120B IPC, Section 149 IPC and Sections 8, 13(1)(c), 13(1)(d), 13(1)(e), 13(2) read with Section 12 of the Prevention of Corruption Act, 1988 (PC Act). On receipt of this complaint, the Special Judge trying cases under Prevention of corruption Act passed an order referring the matter for investigation to the Deputy Superintendent of Police, Lokayukta, in exercise of his powers under Section 156(3) Cr.P.C. The High Court in a writ petition filed by the first respondent quashed the order passed by the Special Judge as well as the complaint on the ground that the Special Judge could not have taken notice of the private complaint against a public servant unless the same was accompanied by a sanction order under Section 19(1) of the PC Act, irrespective of whether the court was acting at a precognizance stage or the postcognizance stage. Aggrieved by the same, the complainants had preferred appeals in the Supreme Court. While dismissing the appeals, the Hon'ble Supreme Court held as under:
"Where jurisdiction is exercised on a complaint filed in terms of Section 156(3) or Section 200 Cr.P.C., the Magistrate is required to apply his mind, and in such a case, the Special Judge/Magistrate cannot refer the matter under Section 156(3) Cr.P.C. for investigation against a public servant without a valid sanction order under Section 19(1) of the Prevention of Corruption Act, 1988 (PC Act). The application of mind by the Magistrate should be reflected in the order. The mere statement that he has gone through the complaint, documents and heard the complainant, as such, as reflected in the order, will not be sufficient. After going through the complaint, documents and hearing the complainant, what weighed with the Magistrate to order investigation under Section 156(3) Cr.P.C., should be reflected in the order, though a detailed expression of his views is neither required nor warranted.
The Special Judge/Magistrate in the present case, has stated no reasons for ordering investigation...........
The word "cognizance" has a wider connotation and is not merely confined to the stage of taking cognizance of the offence. When a Special Judge under the Prevention of Corruption Act, 1988 refers a complaint for investigation under Section 156(3) Cr.P.C., obviously, he has not taken cognizance of the offence and, therefore, it is a pre cognizance stage and cannot be equated with postcognizance stage. When a Special Judge takes cognizance of the offence on a complaint presented under Section 200 Cr.P.C., the next step to be taken is to follow up under Section 202 Cr.P.C. Consequently, a Special Judge referring the case for investigation under Section 156(3) is at pre cognizance stage.
A Special Judge for Prevention of Corruption is deemed to be a CC No.13/15; Anti Corruption Forum Vs. Santosh Pathak & Ors. Page No. 5 of 7 6 Magistrate under Section 5(4) of the Prevention of Corruption Act, 1988 and, therefore, clothed with all the Magisterial powers provided under the Code of Criminal Procedure. When a private complaint is filed before the Magistrate, he has two options: he may take cognizance of the offence under Section 190 Cr.P.C. proceed further in enquiry or trial. A Magistrate, who is otherwise competent to take cognizance, without taking cognizance under Section 190, may direct an investigation under Section 156(3) Cr.P.C. The Magistrate, who is empowered under Section 190 to take cognizance, alone has the power to refer a private complaint for police investigation under Section 156(3) Cr.P.C............
The submission by the appellants (complainants) that the requirement of sanction is only procedural in nature and hence, directory or else Section 19(3) of the PC Act would be rendered otiose, is difficult to accept. Section 19(3) of the PC Act 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, the Magistrate cannot order investigation against a public servant while invoking powers under Section 156(3) Cr.P.C. Therefore, there is no error in the order passed by the High Court."
8. Hence, it is not only crystal clear but the dictum of the aforesaid judgment (supra) that requirement of Sanction is a condition precedent for directing investigation u/s 156(3) Cr.P.C. for the offences u/ss 7, 12 and 13 of the Prevention of Corruption Act which in the present case has not been obtained by the complainant.
9. So far as the ratio of the judgment of Inspector of Police & Anr.
(supra) is concerned, it is evident that in this judgment, scope of Section 197 Cr.P.C. qua offences u/ss 420, 468, 477A, 120B r/w sec.109 of IPC was discussed, whereas the judgment of Anil Kumar & Anr. (supra) specifically dealt with the issue of previous sanction required u/s 19 of POC Act for the offences punishable under Prevention of Corruption Act. In Dr. Subramaniam Swamy Vs. Dr. Manmohan Singh & Anr. (Civil Appeal No.1193/2012 arising out of SLP (C) No. 27535/2010) decided on 31.01.2012, conclusion arrived at by the Hon'ble Supreme Court in Kalicharan Mahapatra Vs. State of Orissa CC No.13/15; Anti Corruption Forum Vs. Santosh Pathak & Ors. Page No. 6 of 7 7 reported in (1998) 6 SCC 411 was quoted and the same is as follows:
"The sanction contemplated in Section 197 of the Code concerns a public servant who "is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty", whereas the offences contemplated in the PC Act are those which cannot be treated as acts either directly or even purportedly done in the discharge of his official duties. Parliament must have desired to maintain the distinction and hence the wording in the corresponding provision in the former PC Act was materially imported in the new PC Act, 1988 without any change in spite of the change made in Section 197 of the Code."
It was then observed by the Hon'ble Supreme Court in the case of Dr.Subramaniam Swamy (supra) that, "The above passage in Kalicharan (supra) has been quoted with approval subsequently by this Court in Lalu Prasad Vs. State of Bihar reported in 2007 (1) SCC 49 at paragraph 9, pg. 44. In para 10, (Pg.54 of the report), this court held in Lalu Prasad (supra) that Section 197 of the Code and Section 19 of the Act operate in conceptually different fields."
Hence, reference to Section 197 Cr.P.C. and drawing analogy of the said provision to Section 19 of the POC Act is highly misplaced.
10. Thus, in the absence of previous sanction of the specified competent authority, this court cannot take notice of the private complaint against the public servants for commission of offences punishable u/s 7, 12 and 13 of the POC Act. For the reasons stated above, I find no ground to order investigation u/s 156(3) Cr.P.C. or to take cognizance of the present complaint. Complaint is, accordingly, dismissed. File be consigned to Record Room.
Announced and signed in the open Court on 5th January 2016 (HEMANI MALHOTRA) Special Judge(PC Act)(Central)05, Tis Hazari Courts, Delhi CC No.13/15; Anti Corruption Forum Vs. Santosh Pathak & Ors. Page No. 7 of 7