Delhi District Court
7.1984 To 28.4.1995 And Subsequently ... vs . on 24 October, 2009
1
IN THE COURT OF SHRI YOGESH KHANNA, SPL.
JUDGE (PC ACT-III) CBI COURTS, ROHINI, DELHI.
CBI/50/08
CBI
Vs.
Dalbir Singh Etc.
(Belur CGHS) .......... Accused
DATE OF INSTITUTION : 14.7.2008
DATE OF ORDER : 12.10.2009
RESERVED FOR ORDER: 24.10.2009
ORDER
I have heard the arguments on application dated 27.8.2009 moved on behalf of accused R.B. Chauhan u/s 197 of CrPC.
2. Accused R.B. Chauhan has alleged that in the absence of sanction u/s 197 CrPC, the proceedings may be stayed as he was a public servant and has done the acts in discharge of his official duties and hence is entitled to the protection u/s 197 CrPC.
3. To bring home his plea he submits that as per the allegations the criminal conspiracy was entered into between the accused persons with an object to a) get the society registered with the office of Registrar Cooperative Society fraudulently by enrolling the fake members; b) to get the land allotted from the DDA at subsidized rates and c) to get complete control over the 2 society. It is submitted by counsel for the accused that in this case the land was allotted to the society in the year 1998 and its possession was handed over to the society in the year 2000 and whereas the contract for construction was entered into in the year 2001. Hence it is submitted that during this period of 1998 to 2000 the accused R.B. Chauhan never dealt with the file of this society and hence has nothing to do with the criminal conspiracy, as alleged.
4. The perusal of the record shows that the society namely Belur CGHS Ltd was registered vide registration No.1417 in the year 1983. It is alleged that the list of promoter members contained at least four members which were fake and fraudulently shown to be present in the first general body meeting and even their signatures were forged. It is alleged that the society was registered on the basis of mis-representation and fake membership. The forgery in the purported signatures of the fake members was made by accused No.6 J.M. Verma, per GEQD opinion dated 21.11.2007. It is alleged that as the list of enrolled members and resignations were not submitted to the office of RCS for verification and approval despite repeated reminders, so in the year 1998 the society was issued a show cause notice by Shri Gopal Dixit, the then RCS. In compliance of the order of RCS, Shri Ajay Kumar Gupta conducted the elections of the society on 14.2.1999 but the managing committee did not produce the record of the society for verification despite repeated reminders and visits 3 of the RCS officials. The society did not comply with the directions of the then RCS contained in order dated 21.10.1998. Hence a proposal was put up on 06.12.2000 before Shri R.K. Sirivastava the then RCS and he directed to examine the whole issue afresh and re-submit it.
5. It is further alleged that accused Dalbir Singh, accused M.C. Sobti and accused Gopal Bansal, appeared in the office of the RCS on 16.10.2000 and submitted manipulated records of the society relating to enrollment and resignations along other original record.
6. The management of the society submitted resignations from 01.7.1984 to 28.4.1995 and subsequently enrollments from 14.7.1984 to 20.3.1994 to the office of RCS on 14.5.2001 which contained enrollments of 11 bogus members, 24 fake resignations, tampering in the dates of acceptance by the managing committee in 65 instances to accused R.B. Chauhan the then dealing assistant in the office of RCS, New Delhi. However, accused R.B. Chauhan put up a false note in connivance with accused Gopal Bansal at N/P-34 dated 31.10.2003 in the file pertaining to the society that he had test checked the documents including membership register, enrollment applications and resignation letters submitted by the management and found the same to be correct. Thus, accused R.B. Chauhan abused his official position by justifying the fraudulent acts of management 4 of the society. It is alleged that accused R.B. Chauhan and accused S.R. Goel dishonestly and fraudulently got approved the forged and tampered resignations, enrollments of fake members knowing fully well that those were fake and fabricated and caused undue favour to the so called office bearers of the society by abusing their official position as public servants. The list of forged resignations and signatures on resignation letters is given in para No.20 of the charge-sheet. Hence at this stage, it cannot be said that prima facie there are absolutely no allegations of conspiracy against the present applicant.
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.
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 5 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.
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 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 6 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."
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.
Thus, the acts of accused R.B. Chauhan as stated above prima facie were beyond the purview of discharge of his official duties and hence is not entitled to protection u/s 197 CrPC.
Hence, the application of accused R.B. Chauhan dated 27.8.2009 u/s 197 CrPC stands dismissed.
Announced in open court ( YOGESH KHANNA ) on 24.10. 2009 Spl. Judge, CBI-III(PC Act) Rohini, Delhi.