Delhi High Court - Orders
S.K. Srivastava vs Central Vigilance Commission & Anr on 13 February, 2023
Author: Mukta Gupta
Bench: Mukta Gupta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Decided on: 13th February, 2023
+ W.P.(CRL) 3493/2019
S.K. SRIVASTAVA ..... Petitioner
Represented by: Petitioner-in-person with Ms. Shubhi
Srivastava, Mr. Prince Kumar and
Ms. Garima, Advs.
versus
CENTRAL VIGILANCE COMMISSION & ANR. ..... Respondent
Represented by: Ms. Tatini Basu, Mr. Kumar
Shashank, Advs. for CVC/R-1.
Mr. Ravi Prakash, CGSC with Mr.
Farman Ali, Mr. Varun Agarwal,
Advs. for CBI/R-2.
CORAM:
HON'BLE MS. JUSTICE MUKTA GUPTA
HON'BLE MS. JUSTICE POONAM A. BAMBA
MUKTA GUPTA, J. (ORAL)
1. The present petition has been filed by the petitioner with the following prayers:
"(i) To set aside & quash the provisions of section 8(1)(d) of the CVC Act, 2003 to the extent being ultra-vires of the Constitution of India & being inconsistent with the law laid down by the Hon'ble Apex Court & also preamble of the CVC act, 2003.
(ii) To set aside & quash the O.M. No. 019/ITX/012-424509 dated 01.07.2019 of the CVC illegally directing the CBI to register the FIR.
(iii) To pass such other & further orders in the facts & circumstances of the given facts/ case that this Hon'ble court may deem fit & proper."Signature Not Verified Digitally Signed By:ANIL KUMAR BHATT W.P.(CRL) 3493/2019 Page 1 of 6 Signing Date:17.02.2023 16:32:46
2. A brief background entailing the filing of the present petition is that an order dated 1st July, 2019 was passed by the CVC being O.M. No. 019/ITX/012-424509 directing the Central Bureau of Investigation (in short CBI) to register regular case. In compliance thereof CBI registered Regular Case RC1202019A0004 dated 4th July, 2019 under Sections 420/468 IPC read with Section 7 of the Prevention of Corruption Act, 1988 (in short PC Act) read with Section 120-B IPC and caused the search at the residence of the petitioner.
3. The petitioner who appears in person states that Section 8(1)(d) of the CVC Act is ultra-vires the Constitution on the ground that it discriminates between two categories of cases, one being where litigants approach the Constitutional Courts i.e. the Hon'ble Supreme Court and High Court seeking directions for registration of FIR, where the accused is heard and only then an order is passed whereas the CVC is authorized to pass directions without hearing the affected person thereby causing discrimination. It is further contended that the words "at the same trial" in Section 8(1)(d) connotes that there is a trial pending and thus in the said trial one or more accused can be also referred for trial.
4. In response to the present petition a short affidavit has been filed by respondent No.2 claiming that the present petition is not maintainable for the reason the petitioner preferred an earlier writ petition being W.P.(Crl) No. 1953/2019 which was dismissed as withdrawn without seeking any liberty to file a fresh writ petition on the same subject matter. It is also claimed by respondent No.2 that after the dismissal of W.P.(Crl) No. 1953/2019, the petitioner approached the Allahabad High Court with a petition under Signature Not Verified Digitally Signed By:ANIL KUMAR BHATT W.P.(CRL) 3493/2019 Page 2 of 6 Signing Date:17.02.2023 16:32:46 Section 482 Cr.P.C. seeking quashing of the above-noted RC which petition has also been dismissed by the Allahabad High Court vide order dated 4th November, 2020.
5. Learned counsel for the respondent No.2/CBI further argues that a provision can be held ultra-vires only on two grounds; firstly the legislative incompetency to enact and secondly being contrary and arbitrary the provisions of the Constitution. He states that the contentions now raised are not fortified from the pleadings.
6. Having gone through the petition we find substance in the argument of learned counsel for the respondent No.2 who states that an earlier writ petition filed on the same ground has been dismissed as withdrawn with no liberty and hence the present petition is not maintainable. The prayers made by the petitioner in the earlier writ petition being W.P.(Crl.) No. 1953/2019 are as under:
"(i) To set aside & quash the provisions of section 8(1)(d) of the CVC Act, 2003 to the extent being inconsistent with the law laid down by the Hon'ble Apex Court & also preamble of the CVC Act, 2003 & the provisions of Section 8(1) of CVC Act, 2003 being ultra-vires the Constitution of India.
(ii) To set aside & quash the O.M. No. 019/ITX/012-424509 dated 01.07.2019 of the CVC illegally directing the CBI to register the FIR.
(iii) To pass such other & further orders in the facts & circumstances of the given facts/ case that this Hon'ble court may deem fit & proper."
7. W.P.(Crl.) No. 1953/2019 was dismissed as withdrawn vide order dated 19th July, 2019 as under:
Signature Not Verified Digitally Signed By:ANIL KUMAR BHATT W.P.(CRL) 3493/2019 Page 3 of 6 Signing Date:17.02.2023 16:32:46"After some arguments, Mr. Kirti Uppal, learned senior counsel for the petitioner wishes to withdraw the present petition with liberty to file appropriate proceedings. With the aforesaid liberty, present petition and applications are disposed of."
8. After withdrawing W.P.(Crl) No. 1953/2019 the petitioner filed a petition before the Allahabad High Court. The prayers in the petition under Section 482 Cr.P.C. before the Allahabad High Court were:
"i. To set aside & quash the order dated 14.2.2020 of learned Special Judge, Anti Corruption, CBI, Ghaziabad by which the cognizance has been taken by the Court in the matter of CBI RC1202019A0004 dated 4.7.2019 filed by the CBI. ii. To also set aside & quash the chargesheet dated 14.2.2020 under Section 120B & 420 IPC, 1860 r.w. Section 7 of the Prevention of Corruption Act, 1988 & which has been forwarded by I.O., ACB, CBI, Ghaziabad in CBI RC1202019A0004 dated 4.7.2019.
iii. To grant Ad-interim ex-parte stay of proceedings in CBI RC No.1202019A0004 dated 4.7.2019 u/S 120B & 420 IPC, 1860 & Section 7 of P.C. Act, 1988 & to further grant Ad- interim Ex-parte stay on all the consequential proceedings initiated or bring initiated based upon CBI RC No.1202019A0004 dated 4.7.2019 & chargesheet. iv. To summon the records of the Trial Court of the present case."
9. A bare perusal of the order in W.P.(Crl.) No. 1593/2019 dated 19th July, 2019 reveals that the prayers seeking quashing of the provisions of Section 8(1)(d) and 8(1) of the CVC Act as also O.M. No. 019/ITX/012- 424509 dated 1st July, 2019 were not accepted by this Court and appropriate legal proceedings for which liberty was granted was availed by the petitioner Signature Not Verified Digitally Signed By:ANIL KUMAR BHATT W.P.(CRL) 3493/2019 Page 4 of 6 Signing Date:17.02.2023 16:32:46 by filing a petition under Section 482 Cr.P.C. before the Allahabad High Court, which petition has been dismissed vide order dated 4 th November, 2020; operative portion whereof reads as under:
"28. Learned counsel for the applicant failed to point out any illegality, infirmity or jurisdictional error in the impugned order.
29. The petition being devoid of merit is, accordingly, dismissed.
30. Leaned trial Court to proceed in accordance with law without being influenced by any observations made in the order."
10. Having withdrawn the earlier writ petition, the petitioner cannot re- agitate the prayers sought in W.P.(Crl.) No. 1953/2019 in the present writ petition by re-phrasing the same in the present writ petition as noted above. Hence, this petition is liable to be dismissed as not maintainable. Even otherwise, the contention of the petitioner who appears in person is that there is a discrimination in so far as in an inquiry under Section 8(1)(d) CVC Act the proposed accused is not heard whereas in a petition filed before the Constitutional Court, the proposed accused is heard. Firstly, there is no such legal requirement that in a petition seeking registration of FIR or investigation thereon, the proposed accused is required to be heard by the Constitutional Court before passing directions. Further, the petitioner cannot claim parity between these two categories; as any person approaching a Constitutional Court cannot be kept at par with the statutory authorities power to implement the provisions of a Statute.
11. In view of the fact that despite having withdrawn the earlier petition, the petitioner has again approached this Court with the same prayers, this Signature Not Verified Digitally Signed By:ANIL KUMAR BHATT W.P.(CRL) 3493/2019 Page 5 of 6 Signing Date:17.02.2023 16:32:46 petition is dismissed with a cost of ₹10,000 to be deposited with the Delhi High Court Legal Services Committee within four weeks.
CRL.M.A.42761/2019 CRL.M.A.42764/2019 CRL.M.A.10039/2020 CRL.M.A.500/2021 CRL.M.A.13910/2021Applications are also dismissed.
CRL.M.A.10068/2020 ( to initiate contempt against P)
1. Notice in this application was issued to the petitioner vide order dated 28th July, 2020 in view of the fact that the petitioner despite having clarified to this Court that he has not made any allegations against Mr. Ravi Prakash, Advocate who is appearing for CBI in the matter against the petitioner but against another Ravi Prakash who is a relative of Mr. Brijesh Thakur resident of Muzaffarpur, Bihar; learned counsel Mr. Ravi Prakash claims that repeatedly in all the replies and applications he is being targeted.
2. List this application for hearing on 21st March, 2023.
3. Order be uploaded on the website of this Court.
(MUKTA GUPTA) JUDGE (POONAM A. BAMBA) JUDGE FEBRUARY 13, 2023 'ga' Signature Not Verified Digitally Signed By:ANIL KUMAR BHATT W.P.(CRL) 3493/2019 Page 6 of 6 Signing Date:17.02.2023 16:32:46