Delhi District Court
This Order Shall Govern The Disposal Of ... vs Cbi Decided On 5-5-2009 on 6 October, 2009
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IN THE COURT OF SH. RAJNISH BHATNAGAR
SPECIAL JUDGE 01 CBI : ROHINI : DELHI
CBI No. 16/2008
C.B.I.
Vs.
Sushil Kumar Sharma Etc. ......Accused
(N.T.P.C. C.G.H.S.)
ORDER
1. This order shall govern the disposal of an application moved by accused P.K. Thirwani 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 application on 23-09-2009.
3. It is averred in the application that the petitioner joined the Government Service in the year 1973 and was transferred to the Office of the Registrar of Co-operative in the year 2000 as Head Clerk. His grievance is that he being a public servant as defined U/s 21 of PC Act; the alleged acts being the acts committed while performing his official duties, were 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.
Contd....
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4. Ld. Sr. P.P for the CBI had not filed any reply to the said application and straightaway argued on the application. The Ld. Sr. P.P. 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. On the other hand, it is urged by counsel for accused P.K. Thirvani that the act complained of have been done by accused 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.
5. 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 Delhi 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 Contd....
3such 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.
6. It is alleged that in pursuance to a criminal conspiracy the name of accused P.K. Thirvani, Auditor was got approved by Assistant Registrar of RCS for conducting the audit of the society for the period commencing from 1988 to 2002. Accused P.K. Thirwani has shown that he had conducted the audit of the society i.e NTPC Employees CGHS Ltd. from 1.10.2002 to 04.10.2002. It is further alleged that the audit report of Shri P.K. Thirwani mentions location of the office of the society at 183, Andrews Ganj, New Delhi -49, which was never the registered office of the society and thereby violated the DCS Act and DCS Rules thereof. In furtherance of the criminal conspiracy the audit reports thus submitted by accused P.K. Thirwani contained the signatures of so called office bears of society Shri Surender Pratap Singh, Treasurer; Suchil Kumar Sharma, Secretary and A.K. Singh President.
7. It is further alleged that accused P.K. Thirwani, Auditor with a view to confer undue pecuniary advantage to NTPC Contd....
4Employees CGHS Ltd has given a false and fabricated audit report and faciliated the society to get the freeze list approved by RCS and thereafter obtain land from DDA. The audit was conducted without verifying the original records of the society and without the elected members of the society being present.
8. 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 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 Contd....5
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 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 Contd....
6separate 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 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 Contd....
7under 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 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. Ld. 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 Contd....
8the 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 erring public servants.
14. So the acts of accused P.K. Thirvani who being an auditor was duty bound to conduct the fair audit of the society after verifying the documents failed to do so and he rather in connivance with other accused persons submitted a false audit report in respect of the member, office bearers and office as no office and office bearers as shown in the audit report ever represented NTPC Employees CGHS Ltd, which 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 P.K. Thirwani were beyond the Contd....
9purview of discharge of his official duties and hence he is not entitled to protection U/s 197 Cr.P.C. The application moved by the accused is, therefore dismissed.
(Announced in the open Court on 06-10-2009) (RAJNISH BHATNAGAR) SPECIAL JUDGE 01 CBI ROHINI COURT : DELHI Contd....