Delhi District Court
Spl. Judge (Pc Act-Iii) Cbi Courts vs . on 30 October, 2009
1
IN THE COURT OF SHRI YOGESH KHANNA,
SPL. JUDGE (PC ACT-III) CBI COURTS, ROHINI,
DELHI.
CBI/25/08
CBI
Vs.
B.M. Sethi Etc. .......... Accused
(Safdarjung CGHS)
DATE OF INSTITUTION : 13.2.2008
DATE OF ORDER : 30.10.2008
RESERVED FOR ORDER: 20.10.2008
ORDER
I have heard the arguments on application dated 05.10.2009 moved on behalf of accused Karamvir Singh challenging the cognizance taken by this Court in the absence of sanction u/s 197 of CrPC.
2. It is stated that the CBI has not obtained the sanction u/s 197 of CrPC to prosecute the accused and since the sanction u/s 197 CrPC is mandatory, hence, the cognizance taken against accused is bad and the proceedings may kindly be stayed.
3. Ld. PP has argued otherwise.
4. I have perused the charge-sheet and the sanction order wherein the allegations are that Safdarjung CGHS Society was registered on 18.11.1983 vide registration No.917(GH) with the 2 Registrar of Cooperative Societies. However, since the members of the society lost interest in the society so on 06.11.1990 the order for its liquidation was issued by the Dy. Registrar (GH). However, on 01.12.1998 an application by some unknown person was received in the RCS for revival of the society. On 08.1.1999 the applicant was appointed as liquidator. On 18.1.999 co-accused Mahanand Sharma handed over the relevant record of the society for its revival to the applicant Karam Veer Singh. The accused Karam Veer Singh issued the agenda for the special general body meeting on 27.1.1999 to seek the opinion/view of the members for revival of the society. However, the applicant/accused did not conduct any special general body meeting on 27.1.1999 at the registered office of the society to seek the view of the members regarding the proposal for cancellation of the liquidation order dated 06.11.1990 but had written the minutes of the special general body meeting dated 27.1.1999 in the proceeding register of the society in connivance of co-accused Maha Nand Sharma. As per minutes of this meeting dated 27.1.1999 it was resolved that a request be made to the Registrar Cooperative Societies to consider the request for revival of the society and cancellation of the liquidation order. However, investigation revealed that various members who were shown present had denied even being the members of the society or ever present in the special general body meeting dated 27.1.1999 conducted by accused 3 Karamvir Singh as has been mentioned in the proceeding register. Most of the members shown to have been attended the meeting were the relatives of accused Maha Nand Sharma. It is alleged that the society was sought to be revived by the private person in connivance and conspiracy with the officials of RCS, including the present applicant by submitting the false documents, forged affidavits so as to get a land at the prime location at concessional rates from the DDA and thus, causing the loss to the Government. The accused Karamvir Singh is stated to have done his bit by falsely recording that he had convened a special general body meeting and also had falsely prepared the proceeding sheets. The act of accused shows his conspiracy with the other private persons.
5. 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 servants 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.
46. Further in Raghunath Anant, 2008 Cr.L.J. 2054, the Apex Court again 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 CrPC is, therefore, no bar for his prosecution. The Court ruled that the contention of the respondent that for offences u/s 406 and 409 read with Section 120B of the Penal Code, sanction u/s 197 CrPC of the code is a condition precedent for launching the prosecution is equally fallacious.
7. 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 that:
"The matter can be looked at from another angle as well. The petitioners have been charged with the offence of criminal conspiracy under Section 120B IPC. Under Section 3 of PCA, the Special Judge is empowered to try not only "any offence punishable under this Code" but under Section 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 VA and in Sections 109, 110 IPC the word "offence" denotes a thing punishable under this Code, or under any 5 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." Therefore, in terms of Section 40 and 41 IPC, the PCA would be a Special Law. The offence under Section 120B in Chapter VA IPC would therefore also become punishable under the PCA which is a special enactment for that purpose. Once the sanction under Section 19 PCA has been obtained, there is no need to obtain a separate sanction under Section 197 CrPC for prosecuting the petitioners for the offence under Section 120B IPC."
8. In 'Kaushal Kumar Vs. CBI, 2009 (1) ILR 56 Delhi it has been observed that the offences u/s 120B IPC and also under P.C Act are not of the nature falling within Section 197 CrPC. It was further observed that a public servant who committed offence under the PC Act can be prosecuted with sanction u/s 19 of the P.C Act if he continues to be a public servant when court took cognizance, and he cannot seek protection u/s 197, CrPC merely because charge under IPC is included in sanction order.
9. Lastly, in Noor Mohammad vs. CBI Crl. Rev. P.577/2008 vide order dated 02.02.2009, the Hon'ble High Court while uhholding the order of the Ld. Special Judge qua dismissal of the application moved by the accused persons u/s 197 Cr.PC 6 had observed that :
"The apprehension expressed by some of the petitioners that the trial court has foreclosed their submissions on the grant of sanction once and for all is misplaced. As pointed out by the trial court in the order dated 22nd August 2008, if at the end of the trial it is found that any of these petitioners is either guilty for some of the other offences or that they were in fact performing their official duties, then the effect of the absence of sanction can be considered by the trial court at that stage."
10. Thus, the acts of accused Karamvir Singh, including the aspect of conspiracy, prima facie are beyond the purview of discharge of his official duties and hence the accused is not entitled to protection u/s 197 Cr.PC.
Hence, the application of accused Karamvir Singh dated 05.10.2009 u/s 197 CrPC stands dismissed.
Announced in opened court ( YOGESH KHANNA ) on 30.10.2009 Special Judge, CBI-III(PC Act) Rohini, Delhi.