Delhi District Court
Anti Corruption ForumNgo vs . on 17 December, 2015
IN THE COURT OF MS. VRINDA KUMARI:ADDL.
SESSIONS JUDGE /SPECIAL JUDGE: CBI03
(PC ACT) SOUTH DISTRICT: SAKET COURTS:
NEW DELHI
CC No. 04/15
UID No.02406R0226312015
Anti Corruption ForumNGO
#R35/B2, M.B. Road,
Pul Prahladpur, New Delhi
Through its President
Sh. Krishan Gopal .....Complainant
Vs.
1. Ravinder Tomar,
Addl. S.H.O. P.S. Jaitpur,
New Delhi.
2. S.I. Yadram,
P.S. Jaitpur, New Delhi.
3. H.C. Munim,
P.S. Jaitpur, New Delhi.
4. H.C S.P. Tomer,
P.S. Jaitpur, New Delhi.
5. H.C. Matloob,
P.S. Jaitpur, New Delhi.
6. Constable Sanjay,
P.S. Jaitpur, New Delhi.
7. Constable Niranjan,
P.S. Jaitpur, New Delhi.
8. Constable Sikander,
P.S. Jaitpur, New Delhi.
9. Constable Brijpal Malik,
P.S. Jaitpur, New Delhi.
10. Constable Jumma Khan,
P.S. Jaitpur, New Delhi.
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11. Constable Sudhir Tyagi,
P.S. Jaitpur, New Delhi.
12. Constable Rajiv,
P.S. Jaitpur, New Delhi.
13. Constable Chander Shekhar,
P.S. Jaitpur, New Delhi.
14. HC. Shishpal,
P.S. Jaitpur, New Delhi.
15. Purushottam,
P.S. Jaitpur, New Delhi.
16. Mukhtiyar,
P.S. Jaitpur, New Delhi.
17. Bhagwan Singh,
P.S. Jaitpur, New Delhi.
18. Rajender,
P.S. Jaitpur, New Delhi.
19. Bhim Singh,
P.S. Jaitpur, New Delhi.
20. Kumer,
P.S. Jaitpur, New Delhi.
21. Rajesh (Beat No. 3),
P.S. Jaitpur, New Delhi.
22. Haroon,
P.S. Jaitpur, New Delhi.
23. Ripul,
P.S. Jaitpur, New Delhi.
24. Chaman,
P.S. Jaitpur, New Delhi.
25. Supuerintending Engineer,
South East Zone,
Delhi Development Authority,
New Delhi.
26. Executive Engineer,
Land Management Department,
South East Zone, Delhi Development Authority,
New Delhi.
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27. Assistant Engineer,
Land Management Department,
South East Zone, Delhi Development Authority,
New Delhi.
28. Junior Engineer,
Land Management Department,
South East Zone, Delhi Development Authority,
New Delhi.
29. Ranbir Singh, Superintending Engineer,
Building Department, Central Zone,
South Delhi Municipal Corporation,
Lajpat Nagar, New Delhi.
30. Bhushan, Executive Engineer,
Building Department, Central Zone,
South Delhi Municipal Corporation,
Lajpat Nagar, New Delhi.
31. Assistant Engineer, Building Department,
Central Zone, South Delhi Municipal Corporation,
Lajpat Nagar, New Delhi.
32. Junior Engineer, Building Department,
Central Zone, South Delhi Municipal Corporation,
Lajpat Nagar, New Delhi.
......... Accused
Date of filing of complaint : 01.08.2015
Date of allocation : 01.08.2015
Arguments concluded on : 09.12.2015
Date of order : 17.12.2015
Complaint Under Section 2(d) Cr.P.C for committing the
offences punishable U/S 7, 12, 13 of Prevention of
Corruption Act, 1988 read with Sections 120B, 217, 218
and 34 IPC.
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ORDER
1. The grievance of the complainant is in respect of the rampant unauthorized constructions in the areas of Madanpur Khadar Extension and Jaitpur Extension within the restricted area of 300 meters from the edge of Yamuna River falling in Zone 'O' of the Master Plan of Delhi, 2021. It is alleged that these unauthorized constructions despite various restraint orders of the concerned SDM have been going on because of corrupt practices adopted by the respondents. It is alleged that the officers of Delhi Police, Delhi Development Authority and South Delhi Municipal Corporation have been accepting bribes and allowing unauthorized construction to take place.
2. The complaint U/Sec. 2(d) Cr.P.C in this regard has been filed alongwith an application U/Sec 156(3) Cr.P.C for registration of FIR U/Sec 7, 12, 13 of the Prevention of Corruption Act, 1988 r/w Section 120B, 217, 218 and 34 IPC at P.S. Anti Corruption Branch, CBI, New Delhi.
3. I have heard detailed arguments and have perused the records carefully.
4. Respondent no. 1 is Additional SHO P.S. Jaitpur.
Respondent no. 2 is SubInspector. Respondents no. 3 to 5 and 14 are Head Constables and Respondents no. 6 to 13 are Constables of P.S. Jaitpur. It has been orally CC No.04/15 17.12.2015 Page no. 4/9 submitted that respondents no. 15 to 25 are also the constables at P.S. Jaitpur. Respondents no. 25 to 28 are the officers of Land Management Department of Delhi Development Authority, South East Zone and respondents no. 29 to 32 are the officers of Building Department of South Delhi Municipal Corporation.
5. The main issue under consideration at this stage is whether or not previous sanction to prosecute the respondents under the Prevention of Corruption Act, 1988, is required at the precognizance stage. The argument of the complainant is that Section 19 of the PC Act contemplates the requirement of previous sanction at the time of taking cognizance of the offence by the Court and not before that. It has also been argued that the stage of section 156(3) Cr.P.C is a precognizance stage and, therefore, there is no requirement of previous sanction.
6. Section 19(1) of the Prevention of Corruption Act, 1988 provides as follows:
19. Previous sanction necessary for prosecution:
(1) 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:
(a) in the case of a person who is employed in connection with the affairs of the Union and is not removable from his office save by or with CC No.04/15 17.12.2015 Page no. 5/9 the sanction of the Central Government, of that Government;
(b) in the case of a person who is employed in connection with the affairs of a State and is not removable from his office save by or within the sanction of the State Government, of that Government;
(c) in the case of any other person, of the authority competent to remove him from his office.
7. In this regard, reference may be made to Anil Kumar & Ors vs. M.K. Aiyappa & Anr, (2013) 9 SCR 869, wherein Hon'ble Supreme Court of India examined the question whether the requirement of sanction is precondition for ordering the investigation U/S 156(3) Cr.P.C even at a precognizance stage. While examining this issue, Hon'ble Supreme Court of India also referred to Section 19(3) of the Prevention of Corruption Act, which provides as follows:
Section 19(3) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974):
(a) No finding, sentence or order passed by a special judge shall be reversed or altered by a Court in appeal, confirmation or revision on the CC No.04/15 17.12.2015 Page no. 6/9 ground of absence of, or any error, omission or irregularity in the sanction required under sub section(1), unless in the opinion of that Court, a failure of justice has in fact been occasioned thereby;
(b) XXX XXX XXX
(c) XXX XXX XXX
It was held that Subsection (3) of Section 19 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, as already indicated in various judgments referred to hereinabove, the Magistrate cannot order investigation against a public servant while invoking powers under Section 156(3) Cr.P.C.
8. In view of the above mentioned case law and the provisions of law, the present complaint case as well as application U/Sec. 156(3) Cr.P.C filed by the complainant against the respondentpublic servants without prior sanction cannot be taken notice of.
9. To support its argument that no previous sanction is required at this precognizance stage, the complainant has CC No.04/15 17.12.2015 Page no. 7/9 sought to summon certain record by moving an application U/Sec. 91 Cr.P.C wherein it has been averred that the CBI has been registering the cases/FIRs and investigating the same on its own without any prior sanction for investigation. Through this application, the complainant has prayed for summoning the details/records of the FIRs/cases registered by the CBI on its own or on the directions of Hon'ble Courts specifying as to whether prior sanction for FIR/investigation was being obtained from the concerned competent authorities in those cases or not.
10. Section 91 (1) Cr.P.C. provides as follows:
91. Summons to produce document or other thing (1) Whenever any Court or any officer in charge of a police station considers that the production of any document or other thing is necessary or desirable for the purposes of any investigation, inquiry, trial or other proceeding under this Code by or before such Court or officer, such Court may issue a summons, or such officer a written order, to the person in whose possession or power such document or thing is believed to be, requiring him to attend and produce it, or to produce it, at the time and place stated in the summon or order.
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(2) XXX XXX XXX
(3) XXX XXX XXX
11. Perusal of above said provision would show that the necessity and desirability of production of such document sought to be summoned is an essential requirement U/Sec. 91 Cr.P.C. At this stage, not only the prayer of the complainant in the application is vague but production of such document on record is also not necessary. Issue of requirement of previous sanction under the PC Act must be decided in view of the relevant provisions of law as well as case laws. It is also well settled that law does not permit a roving or fishing inquiry. The application U/Sec. 91 Cr.P.C of the complainant, therefore, cannot be allowed.
12. In view of above discussion, for want of previous sanction to prosecute the respondents who are public servants within the meaning of section 2(c) of the Prevention of Corruption Act, 1988, application U/Sec 156(3) Cr.P.C as well as complaint U/Sec. 2(d) of Cr.P.C is dismissed.
PRONOUNCED IN THE OPEN COURT ON THIS 17th DAY OF DECEMBER, 2015.
(Vrinda Kumari)
ASJ/Special Judge (PC Act)
(CBI3), South, Saket Court
New Delhi
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