Delhi District Court
Cbi vs . Narayan Diwakar & Others on 19 April, 2011
IN THE COURT OF SH.R P PANDEY; SPECIAL JUDGE-01 (CBI)
ROHINI COURTS:DELHI
CBI No.17/08
CBI Vs. Narayan Diwakar & Others
(Om CGHS)
Date of filing application : 02.03.09
Reserved for Order : 04.04.11
Date of Order : 19.04.11
ORDER
1. By this order I shall dispose of an application moved by accused/Narayan Diwakar (accused no.1) under section 197 Cr.PC praying for dropping/terminating the proceedings against him in absence of sanction u/s 197 Cr.PC which, according to him, was mandatory.
2. It is stated in the application that CBI Case No.17/08 CBI Vs. Narayan Diwakar & Ors. Page No.1 of 18 accused/Narayan Diwakar was working as Registrar in the office of Registrar of Co-operative Societies (RCS), Delhi when the alleged incident had taken place, which is not a disputed fact.
3. The grievance of the accused is that he being public servant as defined u/s 21 of IPC and the alleged acts being the acts committed while performing his official duties, were protected u/s 197 Cr.PC and as the prosecution i.e CBI had failed to obtain requisite sanction to prosecute him, therefore, the proceedings be dropped/terminated against him.
4. Reply to the said application has been filed by CBI, wherein it is stated that the protection u/s 197 Cr.PC is meant for bonafide public servants and not for those who become party to the conspiracy with other accused persons as it can not be termed as "act in discharge of official duty."
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5. The prosecution case in brief is that the instant RC-S18-2006-E-0010 was registered on 04.12.2006 in CBI, SPE, EOU.IV Branch, New Delhi u/s 120 B of IPC r/w 420,468,471 of IPC and section 13 (1)(d) r/w 13 (2) of P.C.Act, 1988 against applicant/accused Narayan Diwarkar (A.1), the then Registrar Co- operative Societies (RCS), Delhi and others in the matter of unauthorized/illegal revival & allotment of land to Om Cooperative Group Housing Society Ltd.(Om CGHS Ltd.).
6. That after investigation a charge sheet was filed on 19.12.2007 in the court of Special Judge, Patiala House Courts, New Delhi u/s 120-B r/w 419, 420,468,471 IPC and Sec.13(2) r/w 13 (1)(d) of P.C.Act, 1988 and substantive offences thereof against 17 accused persons including the applicant/accused Narayan Diwakar.
7. That investigation has revealed that Om CGHS was registered with the Registrar of Cooperative Societies (RCS), CBI Case No.17/08 CBI Vs. Narayan Diwakar & Ors. Page No.3 of 18 Delhi vide registration No.580(GH) on 05.11.1982 with 64 promoter members and registered address of the society was at 2/27, First Floor, Part-I, Sarai Jullena, Okhla Road, New Delhi. The aforesaid society was put under liquidation on 22.04.1988 by the RCS office. The aforesaid society was got revived on 10.01.2003 on the basis of false and forged documents submitted on behalf of the society in a reconstructed file in RCS office. The false and forged documents used for the purpose of revival of the society include registration certificate and bye laws, membership register, proceeding registers, affidavits and applications for membership showing false enrollment of 51 members to make the total strength of the society to 115. Names and other details of 51 falsely enrolled members were taken from the list of members of one Kohat Cooperative House Building Society Ltd., Pitampura. After revival, a freeze list containing 115 non-bonafide members (64 promoter members + 51 falsely enrolled members) were sent to DDA by RCS office for allotment of land. On the basis of the aforesaid freeze list and recommendation from the CBI Case No.17/08 CBI Vs. Narayan Diwakar & Ors. Page No.4 of 18 RCS office, the society was allotted and given possession of a piece of land measuring 6501.52 sq. mt. By the DDA at Plot No.12, Sector- 19, Dwarka, New Delhi on a much lower price than prevailing in the market. After revival and allotment of land, all the 115 members (whose names were available in the freeze list) were falsely shown to have resigned from membership in a phased manner by forging records and in their place new members were inducted.
8. That investigation has further revealed that the applicant/accused Narayan Diwakar in criminal conspiracy with other co-accused persons and by abusing his official position as public servant had dishonestly and fraudulently revived Om CGHS Ltd. vide order dated 10.01.2003 entirely on the basis of false/forged documents submitted by other co-accused persons. He allowed co- accused Gokul Chand Aggarwal (A.6) to represent and submit false/forged documents under an assumed name of Ashok Kumar, Secretary of the society. The aforesaid society was revived by CBI Case No.17/08 CBI Vs. Narayan Diwakar & Ors. Page No.5 of 18 showing undue haste and without removing the shortcomings mentioned in the liquidation order dated 22.04.1988. Despite knowing the fact that the revival application was submitted after a gap of more 14 years , no verification was got conducted regarding the genuineness of the members and documents of the society by appointing an Inspector as per the provisions of the DCS Act/Rules. The applicant/accused Narayan Diwakar had passed a conditional revival order subject to the condition that the pending audit shall be got completed within two months. However, the applicant/accused fraudulently and dishonestly approved sending the freeze list of 115to DDA without fulfillment of the above condition which facilitated other co-accused persons to get allotment and possession of 6501 Sq.mtr. of land from DDA entirely on the basis of false/forged documents and misrepresentation of facts
9. I have heard arguments advanced by accused Narayan Diwakar (A.1) and Sh.Jai Dev Prasad, ld. Special Public CBI Case No.17/08 CBI Vs. Narayan Diwakar & Ors. Page No.6 of 18 Prosecutor for CBI and perused the record.
10. It has been submitted by accused/applicant that he was working as Registrar of Cooperative Society and thus was a public servant within the meaning of Section 21 of IPC, therefore, sanction for his prosecution u/s 197 Cr.PC should have been obtained by the prosecution before taking cognizance and hence his prosecution is bad in law for want of requisite sanction u/s 197 Cr.PC.
11. The Ld. Special Public Prosecutor for CBI has relied upon Judgment of Hon'ble Supreme Court in S.S.Dhanoa Vs. Municipal Corporation of Delhi & Ors. AIR 1981 S.C.1395 to submit that it was categorically held by Hon'ble Supreme Court a member of the I.A.S. whose services are placed at the disposal of a cooperative society (Super Bazar), registered under the Bombay Co- operative Societies Act, 1925 is not a public servant within the meaning of clause (12) of Section 21 of the Penal Code for the CBI Case No.17/08 CBI Vs. Narayan Diwakar & Ors. Page No.7 of 18 purposes of Section 197 Cr.PC. I find that the facts of Dhanoa's case (supra) are entirely different as in that case Mr.Dhanoa was on deputation with a cooperative society whereas the present accused/applicant was himself a Registrar of Cooperative Society under the Delhi Cooperative Societies Act, 1972 but not a member or officer of a cooperative organization. Like a Registrar of Companies is not a member or office bearer of the Company, so is the position of a Registrar of a Cooperative Society in relation to cooperative organizations/societies.
12. Thus, I do not find force in the submissions of Ld. Special Public Prosecutor that accused Narayan Diwakar was not a public servant u/s 21 of IPC for the purpose of claiming protection of Section 197 Cr.PC.
13. The accused/applicant has also relied upon Judgments of Hon'ble Supreme Court in Raghunath Anant Govilkar CBI Case No.17/08 CBI Vs. Narayan Diwakar & Ors. Page No.8 of 18 Vs. State of Maharashtra & Ors., 2008 (1) RCR (Cri) 1042 to submit that there is no universal rule of application in such matters and each case has to be seen on its merits to find out whether the alleged act was done in performance of official duty. He also relied upon judgment of Hon'ble Supreme Court in State of M.P.Vs. Sheetla Sahai & Ors. 2009 Cri.L.J.4436 and A.Subair Vs. State of Kerala (2009) to submit that there is no allegation of any demand or acceptance of gratification. In this respect it suffice to say that this is not a case of demand and acceptance of gratification but it is a case of criminal misconduct under the provisions of Section 13 (1)(d) of P.C.Act, hence allegation of demand or acceptance of gratification is not required.
14. On the other hand, ld.Public Prosecutor for CBI has submitted that the cognizance in this case was already taken, which can not be re-opened before this court and particularly in view of ratio of law propounded by Hon'ble Supreme Court in Adalat CBI Case No.17/08 CBI Vs. Narayan Diwakar & Ors. Page No.9 of 18 Prasad Vs. Roop Lal Jindal (AIR 2004 SC 4674), wherein it was held that the subordinate courts have no jurisdiction to review their own orders and once cognizance has been taken by the court, the only remedy available to accused is to approach Hon'ble High Court. U/s 482 Cr.PC.
15. On merits, he has submitted that sanction to prosecute a public servant u/s 197 Cr.PC is not required in the facts and circumstances of the case as it was not the part of official duty of accused/applicant to enter into a criminal conspiracy with his other co- accused persons for getting revived the Society on the basis of forged and fabricated documents and report and sending freeze list of 115 members to DDA which facilitated other accused persons to get allotment and possession of 6501 sq.mtrs. of land on the basis of false/forged documents and misrepresentation of facts.
16. He has also relied upon judgment cited as CBI Case No.17/08 CBI Vs. Narayan Diwakar & Ors. Page No.10 of 18 Prakash Singh Badal Vs. State of Punjab, (2007) 1 SCC 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.PC is only meant for honest employees.
17. Answering to a reference, the full bench of Hon'ble Allahabad High Court in Smt.Neera Yadav Vs. CBI (Bharat Singh) 2006(2) RCR (Crl.) 765 after discussing the judicial precedents on the issue, concluded that the offence under the Prevention of Corruption Act, 1988 as well as charge of Criminal Conspiracy, can not be said to constitute acts in discharge of official duty. (Para 127).
18. This well settled position of law has been re- affirmed by Hon'ble Supreme Court in "Raghunath Anant Govilkar Vs. State of Maharashtra & Ors., 2008(1) RCR (Criminal) 1042, as under:-
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That apart, the contention of the respondent that for offences under Sections 406 and 409 read with Section 120-B sanction under Section 197 of the Code is a condition precedent for launching the prosecution is equally fallacious. This court has stated the correct legal position in "Srreekantiah Ranatta Munnipslli Vs. State of Bombay, AIR 1955 SC 287 and Amrik Singh Vs. State of Pepsu, AIR 1955 SC 309" that it is not every offence committed by a public servant which requires sanction for prosecution under Section 197 of the Code, nor even every act done by him while he is actually engaged in the performance of his official duties. Following the above legal position it was held in Harihar Prasad, 1972 (3) SCC 89 as follows:-
"66. The next point was with regard to consent or sanction. There is no doubt that in respect of B P Sinha consent was properly given by the Deputy Commissioner. So consent was also given in respect of N K Banerjee and Harihar Prasad by the Chief Secretary. This is not a case of sanction or consent under Section 196A of the Code of CBI Case No.17/08 CBI Vs. Narayan Diwakar & Ors. Page No.12 of 18 Criminal Procedure. On the question of the applicability of Section 197 of the Code of Criminal Procedure, the principle laid down in two cases, namely, Shreekantiah Ramayya Munipalli Vs. State of Bombay and Amrik Singh Vs. State of Pepsu was as follows:
"It is not every offence committed by a public servant that requires sanction for prosecution under Section 197 (1) of the Criminal Procedure Code; nor even every act done by him while he is actually engaged in the performance of his official duties; but if the act complained of is directly concerned with his official duties so that, if questioned, it could be claimed to have been done by virtue of the office, then sanction would be necessary."
The real question, therefore, is whether the acts complained of in the present case were directly concerned with the official duties of the three public servants. As far as the offence of criminal conspiracy punishable under Section 120-B read with Section 409 of the Indian Penal Code is concerned and also Section 5(2) of the Prevention of Corruption Act, are concerned they can not be said to CBI Case No.17/08 CBI Vs. Narayan Diwakar & Ors. Page No.13 of 18 be of the nature mentioned in Section 197 of the Code of Criminal Procedure. To put it shortly, it is no part of the duty of a public servant, while discharging his official duties, to enter into a criminal conspiracy or to indulge in criminal misconduct. Want of sanction under Section 197 of the Code of Criminal Procedure is, therefore, no bar."
19. In State of M P Vs. Sheetla Sahai & Ors., 2009 Crl.LJ 4436, it was observed by Hon'ble Supreme Court that section do not extend its protective cover to every act or omission done by public servant in service but restricts its scope of operation to only those acts or omissions which are done by the public servant in discharge of the official duty. Thus, where the alleged act done by the public servant is merely a cloak for doing the objectionable act, the protection u/s 197 Cr.PC is not available.
20. Hon'ble Supreme Court in Choudhary Praveen Sultana Vs. State of Bengal & Anr., 2009 Crl. J, 1318 observed that if the office of a public servant is misused for doing things which are CBI Case No.17/08 CBI Vs. Narayan Diwakar & Ors. Page No.14 of 18 not otherwise permitted under the law, such acts can not claim the protection of Section 197 Cr.PC and have to be considered dehors the duties which a public servant is required to discharge or perform. Hence in respect of prosecution for such excesses or misuse of authority no protection can be demanded by the public servant concerned.
21. Thus while considering the requirements of sanction as contemplated by Section 197 Cr.PC, the court has to make the balance between the protection granted to the public servant and the safeguard available to the citizens against the excess of the erring public servants. The aforesaid acts of accused/Narayan Diwakar (A-1) 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 acts in the discharge of his official duties.
22. Under a similar situation where the orders passed CBI Case No.17/08 CBI Vs. Narayan Diwakar & Ors. Page No.15 of 18 by the Special Courts (CBI) were assailed before Hon'ble High Court by filing revision petitions, the Hon'ble High Court, vide order dated 02.02.09, while dismissing the Criminal Revision Petition No.593/08 (also nos.528/08, 556/08, 573/08, 574,08, 575/08, 576/09 and 577/08) observed, as under:-
"9. In the considered view of this Court, there is no merit in each of these petitions. The essential charge against all these petitioners is for the offences of criminal conspiracy under Section 120-B IPC. The judgments referred to by the petitioners do not come to the assistance at all. In Anjani Kumar, it was found that the complaint filed against the Government official was a counter blast to the action taken by him in his official capacity. The facts in the instant case are of course very different. The facts in Sankaran Moitra were also very different. In Bholu Ram the Supreme Court held, after referring to the judgment in Prakash Singh Badal Vs. State of Punjab that "offences punishable under Sections 409, 420, 467, 468, 471 etc. can by no stretch of imagination by their very nature be regarded as having been committed by a public servant while 'acting CBI Case No.17/08 CBI Vs. Narayan Diwakar & Ors. Page No.16 of 18 or purporting to act in discharge of official duty'." It was also pointed out that the question of mens rea could only be decided at the time of trial and that "a point as to need or necessity of sanction can be taken during the conduct of trial or at any stage of the proceedings. Hence, proceedings could not have been quashed on the ground of want of sanction in the present case."
10. In the considered view of this Court the decision of the Supreme Court in Prakash Singh Badal and Bholu Ram is a complete answer to the contentions raised by the petitioners.
23. In view of the above discussion, I am of the opinion that the acts of the accused/Narayan Diwakar were beyond the purview of his official duties and, therefore, he is not entitled to the protection u/s 197 Cr.PC. His application is, therefore, dismissed. However, it is made clear that nothing said herein would have bearing on the merits of the case and if at the end of the trial, it is found that the applicant/accused was in fact performing his official duty only, then CBI Case No.17/08 CBI Vs. Narayan Diwakar & Ors. Page No.17 of 18 the effect of absence of sanction u/s 197 Cr.PC can be considered at that stage.
Announced in the open (R P PANDEY)
Court on 19.04.2010 SPL.JUDGE (CBI)-I
ROHINI COURTS
CBI Case No.17/08
CBI Vs. Narayan Diwakar & Ors. Page No.18 of 18