Delhi District Court
By This Order I Shall Dispose Of An ... vs Cbi Decided On 5-5-2009 In on 26 October, 2009
1
IN THE COURT OF SH. RAJNISH BHATNAGAR
SPECIAL JUDGE 01 CBI : ROHINI : DELHI
CBI No. 53/2008
C.B.I.
Vs.
Narayan Diwakar Etc. ......Accused
(Indian Oil Emp. C.G.H.S.)
ORDER
1. By this order I shall dispose of an application moved by accused Yogi Raj U/s 197 Cr.P.C. praying for stay of the proceedings in the absence of sanction U/s 197 Cr.P.C. which according to him was mandatory.
2. Arguments were heard on the said application on 12-10-2009.
3. It is averred in the application that petitioner / accused joined the Government Service in the year 1976 and was transferred to the Office of the Registrar of Co-operative in the year 2000 as Asst. Registrar.
4. The grievance of the petitioner / accused is that he being public servant as defined U/s 21 of PC Act; the alleged acts being the acts committed while performing his official duties, Contd....
2were protected u/s 197 Cr.P.C. and as the prosecution i.e. CBI had failed to obtain requisite sanction to prosecute him; the proceedings be stayed.
5. Reply of the said application had been filed by the CBI.
The Ld. Sr. P.P. for CBI urged that sanction U/s 19 (1) (C) of Prevention of Corruption Act 1988 has already been obtained to which there is no challenge. It is further submitted by the Ld. Sr. P.P. that the protection U/s 197 Cr.P.C is meant for honest employees and not for those who indulge in criminal act.
6. On the other hand, it is urged by counsel for accused that the act complained of has been done by him in the discharge of his official duties and no malafides can be imputed to him. He further urged that no sanction U/s 197 Cr.P.C has been obtained and the sanction obtained by the prosecution U/s 19 of P.C Act would not suffice as he has been charged U/s 120 B IPC.
7. About 100 defunct societies which had gone into liquidation were sought to be revived during the span of 2-3 years and the reason was the benefit which accrued to such old societies in view of the law laid down by the Hon'ble High Court of Contd....
3Delhi that the society should be given preference for the allotment of land on the basis of the date of registration. It is alleged that thereafter the builder mafia started searching for such defunct societies and the builders then tried to revive the defunct societies in connivance with the officials of D.C.S who conveniently ignored rules and regulations.
8. It is alleged against accused Yogi Raj that he was Assistant Registrar in the office of RCS and he agreed to reconstruction of new file of the Society without making any enquiry for the loss of original file. He also accepted the letter for revival of the society by cancelling the winding up order signed in the purported name of Ram Singh, Secretary of the Society, who has been found to be nonexistent person during investigation. He also accepted the photocopies of documents procured by co- accused Gokul Chand Aggarwal in the purported name of said Ram Singh. He also sent the freezed list of members of Indian Oil Employees CGHS Ltd. containing names of nonexistent persons after its revival to DDA for allotment of land to the society.
9. Before proceeding further let me now examine the law on the subject and find out if acts committed by the accused were Contd....
4in discharging of his official duties and if protection U/s 197 Cr.P.C is available to the accused. The relevant 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. The court ruled that the contention of the respondent that for offences U/s 408 and 409 R/w Section 120 B of the Penal Code, sanction U/s 197 Cr.P.C of the code is a condition precedent for launching the prosecution is equally fallacious.
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 Contd....5
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 Harihar Prasad (1972) 3 S.C.C. 89, it was held that "as far as the offence of criminal conspiracy punishable U/s 120 B R/w section 409 of the IPC and also U/s 5 (2) of the Prevention of Corruption Act are concerned, they cannot be said to be of the nature mentioned in section 197 of the Code of Criminal Procedure. ''
9. It is contended by the counsel for the accused that a separate sanction U/s 197 Cr.P.C for prosecuting him for the offence U/s 120 B IPC is required and in the absence of such sanction from the competent authority the proceedings are vitiated. 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 as follows :-
"The matter can be looked at from another angle as well.
Contd....6
The petitioners have been charged with the offence of criminal conspiracy U/s 120 B IPC. U/s 3 of P.C. Act, the Special Judge is empowered to try "not only any offence punishable under this code" but U/s 3 (1) (b) any conspiracy to commit or attempt to commit or any abetment of the offences specified in clause (1)".
Under section 40 IPC, it has been mentioned that in chapter V A and in sections 109, 110 IPC the word "offence" denotes an offence 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". So in terms of sections 40 IPC and 41 IPC, the PC Act would be a special law. Therefore, the offence U/s 120 B IPC in chapter V A IPC would also become punishable under the P.C Act which is the special enactment for that purposes. So once sanction U/s 19 PC Act has been obtained, there is no need to obtain a special sanction U/s 197 Cr.P.C for prosecuting the accused for the offence U/s 120 B IPC.
10. 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 Contd....
7Corruption 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 view has been taken in Kaushal Kumar Vs. CBI 2009 (1) RC 56, Delhi.
11. Ld. Sr. P.P. has also relied upon Prakash Singh Badal Vs. State of Punjab (2007) 1 S.C.C. 1 to contend that the acts attributed to the accused can hardly be termed as part of his administrative duties and the protection U/s 197 Cr.P.C is only meant for honest employees.
12. The counsel for the accused has relied upon R. Bala Krishnan Pillai AIR 1996 S.C. 901; Sau Kran Moitre Vs. Sadhna Das, AIR 2006 S.C. 1599; Paul Verghese J.T. 2007 (5) S.C. 525. The facts in the instant case are very different than the facts in the cited cases. The law laid down is that of the act is in discharge of duty then sanction is required.
13. From the law cited hereinabove, what has been enunciated is that while considering requirements of sanction, as contemplated by section 197 of Cr.P.C, the court has to make a balance between protection granted to the public servant Contd....
8and the safeguard available to the citizens against excess of erring public servants.
14. Thus, the aforesaid acts of accused Yogi Raj by no stretch of imagination can be said to be the acts done by him in the official discharge of his duties or purported to be the acts in the discharge of his official duty.
15. In view of the discussions, hereinabove, I am of the opinion, that the acts of accused Yogi Raj 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 applications moved by him is, therefore dismissed.
(Announced in the open Court on 26-10-2009) (RAJNISH BHATNAGAR) SPECIAL JUDGE 01 CBI ROHINI COURT : DELHI Contd....
9 IN THE COURT OF SH. RAJNISH BHATNAGAR SPECIAL JUDGE 01 CBI : ROHINI : DELHI CBI No. 53/2008 C.B.I. Vs. Narayan Diwakar Etc. ......Accused (Indian Oil Emp. C.G.H.S.) ORDER
1. By this order I shall dispose of an application moved by accused Niranjan Singh U/s 197 Cr.P.C. praying for stay of the proceedings in the absence of sanction U/s 197 Cr.P.C. which according to him was mandatory.
2. Arguments were heard on the said application on 12-10-2009.
3. It is averred in the application that petitioner / accused joined the Government Service in the year 1975 and was transferred to the Office of the Registrar of Co-operative in the year 1999 as Grade II.
4. The grievance of the petitioner / accused is that he being public servant as defined U/s 21 of PC Act; the alleged acts being the acts committed while performing his official duties, Contd....
10were protected u/s 197 Cr.P.C. and as the prosecution i.e. CBI had failed to obtain requisite sanction to prosecute him; the proceedings be stayed.
5. Reply of the said application had been filed by the CBI.
The Ld. Sr. P.P. for CBI urged that sanction U/s 19 (1) (C) of Prevention of Corruption Act 1988 has already been obtained to which there is no challenge. It is further submitted by the Ld. Sr. P.P. that the protection U/s 197 Cr.P.C is meant for honest employees and not for those who indulge in criminal act.
6. On the other hand, it is urged by counsel for accused that the act complained of has been done by him in the discharge of his official duties and no malafides can be imputed to him. He further urged that no sanction U/s 197 Cr.P.C has been obtained and the sanction obtained by the prosecution U/s 19 of P.C Act would not suffice as he has been charged U/s 120 B IPC.
7. About 100 defunct societies which had gone into liquidation were sought to be revived during the span of 2-3 years and the reason was the benefit which accrued to such old societies in view of the law laid down by the Hon'ble High Court of Contd....
11Delhi that the society should be given preference for the allotment of land on the basis of the date of registration. It is alleged that thereafter the builder mafia started searching for such defunct societies and the builders then tried to revive the defunct societies in connivance with the officials of D.C.S who conveniently ignored rules and regulations.
8. It is alleged against accused Niranjan Singh that he was working as Dealing Assistant in the office of Registrar of Co- operative Societies (RCS) and in pursuance to a criminal conspiracy, he initiated the proposal for reconstruction of the file of the society as the original file was missing. He processed the false / forged letter in the purported name of Ram Singh, Secretary of the Society, a nonexistent person and brought on record the false records of the society as submitted by co- accused Gokul Chand Aggarwal and initiated proposal for revival of the society which was agreed to by co-accused Yogi Raj, AR and finally approved by co-accused N. Diwakar, RCS.
9. Before proceeding further let me now examine the law on the subject and find out if acts committed by the accused were in discharging of his official duties and if protection U/s 197 Contd....
12Cr.P.C is available to the accused. The relevant 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. The court ruled that the contention of the respondent that for offences U/s 408 and 409 R/w Section 120 B of the Penal Code, sanction U/s 197 Cr.P.C of the code is a condition precedent for launching the prosecution is equally fallacious.
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 Contd....13
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 Harihar Prasad (1972) 3 S.C.C. 89, it was held that "as far as the offence of criminal conspiracy punishable U/s 120 B R/w section 409 of the IPC and also U/s 5 (2) of the Prevention of Corruption Act are concerned, they cannot be said to be of the nature mentioned in section 197 of the Code of Criminal Procedure. ''
9. It is contended by the counsel for the accused that a separate sanction U/s 197 Cr.P.C for prosecuting him for the offence U/s 120 B IPC is required and in the absence of such sanction from the competent authority the proceedings are vitiated. 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 as follows :-
"The matter can be looked at from another angle as well. The petitioners have been charged with the offence of criminal Contd....14
conspiracy U/s 120 B IPC. U/s 3 of P.C. Act, the Special Judge is empowered to try "not only any offence punishable under this code" but U/s 3 (1) (b) any conspiracy to commit or attempt to commit or any abetment of the offences specified in clause (1)".
Under section 40 IPC, it has been mentioned that in chapter V A and in sections 109, 110 IPC the word "offence" denotes an offence 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". So in terms of sections 40 IPC and 41 IPC, the PC Act would be a special law. Therefore, the offence U/s 120 B IPC in chapter V A IPC would also become punishable under the P.C Act which is the special enactment for that purposes. So once sanction U/s 19 PC Act has been obtained, there is no need to obtain a special sanction U/s 197 Cr.P.C for prosecuting the accused for the offence U/s 120 B IPC.
10. 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 Contd....
15Corruption Act has been obtained no sanction U/s 197 Cr.P.C would be required. Similar view has been taken in Kaushal Kumar Vs. CBI 2009 (1) RC 56, Delhi.
11. Ld. Sr. P.P. has also relied upon Prakash Singh Badal Vs. State of Punjab (2007) 1 S.C.C. 1 to contend that the acts attributed to the accused can hardly be termed as part of his administrative duties and the protection U/s 197 Cr.P.C is only meant for honest employees.
12. The counsel for the accused has relied upon R. Bala Krishnan Pillai AIR 1996 S.C. 901; Sau Kran Moitre Vs. Sadhna Das, AIR 2006 S.C. 1599; Paul Verghese J.T. 2007 (5) S.C. 525. The facts in the instant case are very different than the facts in the cited cases. The law laid down is that of the act is in discharge of duty then sanction is required.
13. From the law cited hereinabove, what has been enunciated is that while considering requirements of sanction, as contemplated by section 197 of Cr.P.C, the court has to make a balance between protection granted to the public servant and the safeguard available to the citizens against excess of Contd....
16erring public servants.
14. Thus, the aforesaid acts of accused Niranjan Singh by no stretch of imagination can be said to be the acts done by him in the official discharge of his duties or purported to be the acts in the discharge of his official duty.
15. In view of the discussions, hereinabove, I am of the opinion, that the acts of accused Niranjan Singh 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 applications moved by him is, therefore dismissed.
(Announced in the open Court on 26-10-2009) (RAJNISH BHATNAGAR) SPECIAL JUDGE 01 CBI ROHINI COURT : DELHI Contd....