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.55/08
CBI Vs. Narayan Diwakar & Others
(Sea Show CGHS)
Date of filing application : 15.03.10
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 accused/Narayan Diwakar was working as Registrar in the office of Registrar of Co-operative Societies (RCS), Delhi when the alleged CBI Case No.55/08 CBI Vs.Narayan Diwakar Page No.1 of 16 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."
5. The prosecution case in brief is that this case was registered on 04.12.2006 u/s 120 B of IPC r/w 420,468,471 of CBI Case No.55/08 CBI Vs.Narayan Diwakar Page No.2 of 16 IPC and section 13 (1)(d) r/w 13 (2) of P.C.Act, 1988 against Narayan Diwarkar (A.1), V.P.Singh(A.2) , Gopal Bisht (A.3), Gokul Chand Aggarwal(A.4), Ashwani Sharma(A.5), S.P.Saxena(A.18) and other unknown persons with the allegation that Sea Show CGHS was registered in the RCS office on 01.10.1983 vide Registration No.695(GH) having its registered office at 1235, Sector-3, Pushp Vihar, Delhi. The society was put under liquidation on 10.05.1989 by Sh.Hans Raj, the then Dy. Registrar. During the year 2002-03, Gopal Bisht Dealing Assistant(A.3) ; V.P.Singh, Assistant (South Zone)(A.2) in the office of Registrar of Co-operative Societies , Delhi (RCS) and Narayan Diwakar(A.1) , RCS, Delhi (all are public servant) while working and posted as such abused their official positions as public servant and entered into a criminal conspiracy with Gokul Chand Aggarwal(A.3), S.P.Saxena(A.18) , Ashwani Kumar(A.5) (private persons) and some unknown persons in the matter of revival of Sea Show Cooperative Group Housing Society, a defunct/liquidated society on the basis of false/fake documents to get the land alloted to CBI Case No.55/08 CBI Vs.Narayan Diwakar Page No.3 of 16 the society on a much lower price than prevailing in the market for construction of residential flats thereon. In furtherance of the said conspiracy they fraudulently and dishonestly got prepared forged/fake documents, used the same as genuine and thereby got the said society revived from RCS. It is also alleged that RCS officials in collusion with the unknown private persons did not conduct any verification to verify the alleged resignations of members from the society and approved the freeze list of 114 members, knowing fully well that the documents submitted for revival of the society were forged and fabricated documents and using the same as genuine. The society was got allotted a piece of land measuring about 6500 sq. mtrs. at Plot No.14, Sector-19, Dwarka, Phase-I, New Delhi.
6. Thus, after investigation, CBI had filed a chargesheet against him under section 120-B r/w 420,468,471 IPC and section 13 (2) r/w Section 13 (1)(d) of P.C.Act, 1988 and substantive offences thereof.
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7. I have heard arguments of accused Narayan Diwakar (A.1) and Sh.Jai Dev Prasad, ld. Special Public Prosecutor for CBI and perused the record.
8. 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.
9. 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 CBI Case No.55/08 CBI Vs.Narayan Diwakar Page No.5 of 16 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 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.
10. 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.
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11. The accused/applicant has also relied upon Judgments of Hon'ble Supreme Court in Raghunath Anant Govilkar 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.
12. On the other hand, ld.Public Prosecutor for CBI CBI Case No.55/08 CBI Vs.Narayan Diwakar Page No.7 of 16 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 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.
13. 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.
14. He has also relied upon judgment cited as CBI Case No.55/08 CBI Vs.Narayan Diwakar Page No.8 of 16 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.
15. 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).
16. 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.55/08 CBI Vs.Narayan Diwakar Page No.10 of 16 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.55/08 CBI Vs.Narayan Diwakar Page No.11 of 16 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."
17. 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.
18. 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.55/08 CBI Vs.Narayan Diwakar Page No.12 of 16 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.
19. 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.
20. Under a similar situation where the orders passed CBI Case No.55/08 CBI Vs.Narayan Diwakar Page No.13 of 16 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 CBI Case No.55/08 CBI Vs.Narayan Diwakar Page No.14 of 16 having been committed by a public servant while 'acting 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.
21. 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 CBI Case No.55/08 CBI Vs.Narayan Diwakar Page No.15 of 16 the applicant/accused was in fact performing his official duty only, then 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.55/08
CBI Vs.Narayan Diwakar Page No.16 of 16