Delhi District Court
Cbi vs Raj Kumar Tyagi on 21 March, 2024
IN THE COURT OF MS. ANJU BAJAJ CHANDNA
PRINCIPAL DISTRICT & SESSIONS JUDGE-CUM-
SPECIAL JUDGE (PC ACT) CBI ROUSE AVENUE
DISTRICT COURTS, NEW DELHI
CC No. 307/19
CNR No.DLCT11-001176-2019
RC No. 2018/A/0010/CBI/ACB/ND
U/s 7 and 13 (1) (d) r/w Section 13 (2) of P.C. Act, 1988.
CBI vs. Raj Kumar Tyagi
Central Bureau of Investigation
vs
Raj Kumar Tyagi
Date of FIR : 10.03.2018
Date of filing of charge-sheet : 25.06.2018
Arguments concluded on : 04.03.2024
Date of Order : 21.03.2024
Appearances
For prosecution : Sh Praneet Sharma, Ld. Senior Public
Prosecutor for CBI.
For accused : Sh. R. P. Shukla, Ld. Counsel for
accused.
JUDGMENT
CBI vs Raj Kumar Tyagi Page No. 1 of 32
CBI No.307/2019
1. The accused Raj Kumar Tyagi, Sub-Inspector in Delhi Police has been prosecuted for the offence punishable u/s 7 and 13 (1) (d) read with Section (2) of The Prevention of Corruption Act, 1988 for having demanded and accepted the bribe amount.
2. The case was registered on 10.03.2018 on the basis of a written complaint dated 09.03.2018 of Sh. Hari Shankar against Raj Kumar Tyagi, Sub-Inspector, North Avenue Police Station, Delhi. It was alleged in the complaint that the complainant in an e-rickshaw puller which he plies on the road corridor between R. K. Ashram Metro Station and RML Hospital, Delhi. In the morning of 07.03.2018 at around 11.00 a.m., accused Raj Kumar Tyagi, Sub-Inspector, North Avenue Police Station, Delhi met the complainant and said that he would have to collect Rs.15,000/- per month from other e-rickshaw pullers and hand over to him if he and other e-rickshaw pullers wanted to ply their e-rickshaws. It was also alleged in the complaint that Raj Kumar Tyagi asked the complainant to hand over Rs.10,000/- to him by 10th March and the remaining amount of Rs.5,000/- by 20 th March. Since the complainant did not want to pay the bribe, he submitted the complaint with SP, CBI, ACB, Delhi for taking legal action against accused Raj Kumar Tyagi.
3. It is further the case of the prosecution that complaint moved by Hari Shankar s/o Late Hardwari Lal r/o 14C-31, T- Huts, near P & T Colony, Kali Bari Marg, New Delhi was verified by Inspector CMS Negi in the presence of independent witness Sh. Ranvir Singh, Assistant Director-II, Central Water CBI vs Raj Kumar Tyagi Page No. 2 of 32 CBI No.307/2019 Commission, R. K. Puram, New Delhi. During verification, the conversation between the complainant and accused was recorded in a new memory card fitted with Digital Voice Recorder (DVR). The memory card was sealed and marked as Q-1 and DVR was handed over to Inspector Ranvir Singh. Verification confirmed that accused Raj Kumar Tyagi demanded and was ready to accept the bribe amount of Rs.10,000/- from the complainant. A verification memo was prepared in this regard. On the basis of complaint and verification memo, the present case was registered and entrusted to Inspector Raman Kumar Shukla, Inspector, CBI, ACB, Delhi for investigation.
4. A trap team was constituted by Inspector Raman Kumar Shukla, consisting of independent witnesses namely Ranvir Singh, Assistant Director-II, Central Water Commission and Sh.Bharat Kumar Meena, Inspector, GST, I. P. Estate, New Delhi, and the complainant himself and CBI officials. The complaint, verification memo and FIR was read over and explained to all the members. The complainant produced a sum of Rs.10,000/- comprising of 5 numbers of GC Notes of Rs.2,000/- the numbers of which were noted down in the handing over memo. The GC notes were smeared with phenolphthalein powder and demonstration was also given. The said GC Notes were put in the front side shirt pocket of the complainant by the independent witness Bharat Kumar Meena.
CBI vs Raj Kumar Tyagi Page No. 3 of 32 CBI No.307/20195. During pre-trap proceedings, digital voice recorder which was used on 09.03.2018 during verification proceedings was produced by the independent witness and a new blank memory card was placed in it. Introductory voices of both the independent witnesses were recorded. In the meantime, a missed call from mobile number 8010384113 (of accused Raj Kumar Tyagi) on the mobile number 9958137640 (of complainant) was received at about 15.50 hours which could not be picked up by the complainant. Again call was made to accused Raj Kumar Tyagi and conversation was recorded in the memory card through DVR.
6. Independent witness Ranvir Singh was directed to act as a shadow witness and to remain as close as possible to the complainant. Complainant and independent witness Ranvir Singh were directed to give signal by giving a missed call to mobile phone of Raman Kumar Shukla, Inspector/TLO, CBI, ACB, Delhi from their mobile phones and also by rubbing their face by both hands. Pre-trap proceedings were concluded in CBI, ACB, New Delhi on 10.03.2018 at 1800 hours and handing over memo was prepared.
7. Trap team members including independent witnesses and complainant left CBI office and reached police post, North Avenue Police Station near gate no.6, RML Hospital, Delhi. Police post was locked and complainant made a call to accused Raj Kumar Tyagi. The accused informed the complainant that he CBI vs Raj Kumar Tyagi Page No. 4 of 32 CBI No.307/2019 was at Police Naka at Pandit Pant Marg, New Delhi. The call was disconnected. Complainant again called Raj Kumar Tyagi who asked the complainant to visit at Police Naka at Pandit Pant Marg. These conversations were recorded in the memory card through DVR. CBI team along with independent witnesses and complainant reached near Police Naka at Pandit Pant Marg at 19.10 hours. DVR was given to the complainant in switched on mode which was kept in right side pant pocket of the complainant. Complainant and independent witness Ranvir Singh were directed to proceed towards accused Raj Kumar Tyagi. The trap team members along with second independent witness Bharat Kumar Meena took their position nearby.
8. Complainant met accused Raj Kumar Tyagi, who slapped the complainant and took him towards the side nearby a tree and demanded bribe amount. The complainant took out the tainted bribe amount from his left side shirt pocket and handed over the same to the accused which he received with his right hand and then transferred the amount to his left hand. After transaction of bribe amount, the complainant gave pre-decided signal by rubbing his face with both hands. TLO alerted the trap team members and rushed towards accused Raj Kumar Tyagi. The accused was challenged and was caught by TLO. The bribe money was recovered from the accused. Same was got tallied with the memo and they were found to be same currency notes arranged by the complainant. Hand washes of the accused were taken separately and were sealed in bottles.
CBI vs Raj Kumar Tyagi Page No. 5 of 32 CBI No.307/20199. The recovered bribe amount was kept in an envelope and also sealed as trap money. The memory card was taken out from the DVR and sealed with the seal of CBI. The specimen voice of accused was taken in the separate memory card and the same was also sealed in a different packing. The DVR used in trap proceedings was also sealed.
10. The expert opinion about the handwashes and voice recordings were obtained during the investigation. The transcripts of recording conversations were also prepared. CDR details and CAF of mobile phone of complainant and accused were collected. Sanction for prosecution in respect of accused was issued by competent authority under Section 19 of Prevention of Corruption Act 1983.
11. On the basis of the charge-sheet submitted before the court on 09.07.2018, cognizance was taken on 09.07.2018 against the accused.
12. Vide order on charge dated 10.05.2019 charge was framed against the accused for the offences punishable under Section 7 and 13 (1) (d) read with Section 13 (2) of Prevention of Corruption Act 1988 to which accused pleaded not guilty and claimed trial.
13. During the trial, prosecution examined 14 witnesses. The sum and substance of prosecution evidence is as follows:-
CBI vs Raj Kumar Tyagi Page No. 6 of 32 CBI No.307/2019PW-1 V. B. Ramteke, Principal Scientific Officer (Chemistry), CFSL has given the chemical examination report of the handwashes. He proved his report Ex.PW1/A. PW-2 Hari Shankar is the complainant of the present case. He deposed about lodging of the complaint with respect to the demand of bribe and proved the same as Ex.PW2/A. Witness has also proved the verification memo Ex.PW2/B. Witness has supported the version of the prosecution and has further proved handing over memo as Ex.PW2/C, recovery memo as Ex.PW2/D, identification cum transcription memo as Ex.PW2/E, memory cards along with envelopes and the packing from San Disk as Ex.PW2/F (colly) and Ex.PW2/G (colly) and DVR along with two envelopes as Ex.PW2/H (colly). During cross-examination by Ld. Sr. PP for CBI, witness has also proved the FIR as Ex.PW2/I. PW-3 Wasim Mohammad, Nodal Officer with Bharti Airtel has produced and proved the attested copy of CAF (customer application form) in the CBI vs Raj Kumar Tyagi Page No. 7 of 32 CBI No.307/2019 name of Hari Shankar as Ex.PW3/C, CDR of mobile number 9958137640 as Ex.PW3/D. Letter dated 19.04.2018 along with certificate under Section 65 B as Ex.PW3/A and Ex.PW3/B respectively. Witness has also produced the CDR of mobile number 8010384113 and proved as Ex.PW3/H, eKYC as Ex.PW3/G. Letter dated
14.05.2018 along with certificate under Section 65 B as Ex.PW3/E and Ex.PW3/F respectively.
PW-4 Madhur Verma, IPS, proved the sanction order dated 14.06.2018 for prosecution against accused as Ex.PW4/A. PW-5 Bhagwan Sharma deposed that he also plies e-rickshaw on route from R. K. Ashram to RML Hospital. The witness was declared hostile by the prosecution and cross-examination was conducted by the Ld. Sr. PP for CBI. The witness has not supported the prosecution case. The witness has not supported his statement recorded under Section 161 Cr.P.C.
PW-6 Ranvir Singh was working as Assistant Director-2 in Central Water Commission, R. K. Puram, New Delhi in the year 2018. Witness was directed to join the CBI on 09.03.2018 as a witness. Witness has deposed about whole trap CBI vs Raj Kumar Tyagi Page No. 8 of 32 CBI No.307/2019 proceedings conducted in his presence. Witness has proved the site plan as Ex.PW6/A, arrest cum personal search memo as Ex.PW6/B. Witness has also proved the voice identification cum transcription memo bearing his signatures at point X-2. Witness deposed that he has also seen the transcript of Q-1 and Q-2. Witness has proved the cloth wrapper as Ex.PW6/C and Ex.PW6/D respectively. Memory card Ex.Q2 proved as Ex.PW6/F, Memory card Ex.S-1 proved as Ex.PW6/G, DVR proved as Ex.PW6/I. Witness has proved the currency notes as Ex.PW6/X-1 to Ex.PW6/X-5.
PW-7 Bharat Kumar Meena, Inspector, GST attended the CBI office on 10.03.2018. Witness deposed that he was introduced with the complainant. Witness has deposed about pre- trap proceedings and trap proceedings conducted in his presence. He kept the treated currency notes in the pocket of the complainant. He along with CBI team reached at police post, RML Hospital. CBI team apprehended the accused in his presence and he took out currency notes of Rs.2,000/- each from the right side pocket of his pant. The witness was cross examined by Ld. Sr. PP as the witness has not fully supported the story of the prosecution. The witness has not supported his CBI vs Raj Kumar Tyagi Page No. 9 of 32 CBI No.307/2019 statement recorded under Section 161 Cr.P.C. During cross-examination conducted by Ld. Sr. PP, witness deposed that as the complainant was having his back towards him, he cannot confirm whether the accused demanded money from the complainant by his hand gesture. Witness deposed that he could not recollect the complete facts due to lapse of time. He was also cross examined by the Ld. Counsel for accused.
PW-8 S. Ingarasal, Principal Scientific Officer, Photo Division, CFSL prepared four copies of each memory card Q-1, Q-2 and S-1 forwarded by CBI. The letter was received and Director, CFSL marked the letter to him. Witness stated that seals on all the three parcels Q-1, Q-2 and S-1 were intact and were tallying with the specimen seal impression. The witness also seen and proved the memory cards. Witness further stated that after preparing copies of original memory cards, CBI was intimated through letter. The original memory cards along with their packings kept in envelope and were returned in sealed condition.
PW-9 Inspector Gyanender, DIU was posted as SHO PS North Avenue from 17.11.2017 to 02.01.2020. He handed over the true copies of DD No.17B dated 10.03.2018, true copy of DD CBI vs Raj Kumar Tyagi Page No. 10 of 32 CBI No.307/2019 No.19B dated 10.03.2018, true copy of DD No.26B dated 10.03.2018 and true copy of GD No.020A dated 10.03.2018 along with certified copy of biodata of ASI Rajkumar to CBI. He proved the seizure-cum-production memo as Ex.PW9/A and the DDs as Ex.PW9/A1 to Ex.PW9/A5. On 14.05.2018, he identified the voice of ASI Raj Kumar in the recorded conversation at CBI office and proved the voice identification memo as Ex.PW9/B. PW-10 Deepak Kumar Tanwar, Principal Scientific Officer (physics) CFSL is an expert and has examined voice samples of the present case contained in the questioned conversations (Q1 and Q2) as well as specimen conversations (S-1). He has proved his detailed report Ex.PW10/B. He proved the DVR as Ex.PW10/E. PW-11 Dinesh Kumar deposed that on 09.03.2018, he assisted Inspector CMS Negi in carrying out the verification proceedings of the case. Witness has participated in verification proceedings, pre-trap proceedings and post trap proceedings. Witness has proved the handing over memo and recovery memo.
CBI vs Raj Kumar Tyagi Page No. 11 of 32 CBI No.307/2019PW-12 Inspector Raman Kumar Shukla Inspector CBI deposed that investigation of the FIR was entrusted to him as against accused Raj Kumar Tyagi. He was the trap laying officer of the investigation. The witness has deposed about constituting the team and about conducting pre- trap proceedings and further about laying trap upon the accused. The witness has specifically stated that demand of bribe and transaction of bribe was seen by him and other trap team members. The proceedings conducted after laying the trap and various memos and documents prepared during the same have been proved by the witness.
PW-13 Inspector C.M.S Negi Inspector CBI, ACB, Delhi deposed that his SP Gajanan Bairwa introduced him to one Hari Shankar. He arranged the independent witness Ranvir Singh. He got conducted verification proceedings of the complaint and submitted his report. After registration of the case, a trap team was constituted and he was member of the trap team. Witness has deposed about pre-trap, trap and post trap proceedings and also proved the memos in this respect.
CBI vs Raj Kumar Tyagi Page No. 12 of 32 CBI No.307/2019PW-14 Inspector Sabeena Siddiqui was entrusted with the investigation of the case during which she examined the witnesses and recorded their statements. She has collected the documents. The voice identification of the recorded conversations Q1 and Q2 were done and transcripts were prepared. She has sent the handwashes along with glass bottles to the CFSL. The witness has deposed about proceedings conducted by her during the investigation and also about receiving of sanction from competent authority and filing of the charge-sheet.
14. All the above witnesses have been cross-examined on behalf of defence at length.
15. After the closure of prosecution evidence, statement of accused was recorded under Section 313 Cr.P.C during which entire incriminating evidence was put across in question answer form to the accused to which he stated that he was on picket duty at Talkatora Road on 07.03.2018 from 10.00 a.m. to 12.00 noon and denied having raised any demand of bribe from the complainant or having accepted the same. Accused has stated that this was not about the bribe rather the complainant had to pay to him the interest amount along with repayment of loan lent by him and this was to be paid monthly. Only for the amount given as loan by him, there were conversations between him and the complainant. According to the accused, this is a false case. The amount given by CBI vs Raj Kumar Tyagi Page No. 13 of 32 CBI No.307/2019 the complainant to him was installment of the loan amount. It was not the bribe amount as no such demand was ever raised by him. The accused has pleaded innocence and has denied the prosecution case and various proceedings conducted and stated that a false charge-sheet has been filed against him. Accused claims false implication by CBI. Accused has stated that DCP was not the competent authority to accord sanction as in his case Commissioner of Police was the competent authority. The sanction is invalid and defective and therefore cognizance could not have been taken on the same.
16. In his defence, eight witnesses have been examined by the accused as follows:-
DW-1 Ms. Ritika brought the Roznamcha and stated that as per DD No.19B as per which SI Raj Kumar along with Ct. Manoj on 07.03.2018 at about 10.00 a.m. left for bus checking at Talkatora Road on motorcycle no. DL1SY3805 and as per DD No.22 on 07.03.2018 at about 12.35 p.m. SI Raj Kumar came back to the police station North Avenue along with Ct.
Manoj after performing the duty of bus checking at Talkatora Road, New Delhi. She proved the DD No.19B and 22 as Ex.DW1/A and Ex.DW1/B. DW-2 HC Manoj deposed that on 07.03.2018, as per DD No.19B, he along with SI Rajkumar left for bus checking at Talkatora Road from PS North Avenue on CBI vs Raj Kumar Tyagi Page No. 14 of 32 CBI No.307/2019 motorcycle no.DL1SY3805. They checked the bus from 10.00 a.m. till 12.30 p.m and while checking the bus, SHO PS North Avenue also participated and he came to the spot of bus checking at 10.15 a.m. and remained with them upto 11.35 a.m. Witness deposed that he along with SI Raj Kumar further conducted the bus checking after leaving of the SHO.
DW-3 SI Vivek Kaushik brought the attested copy of order no. 9671/CB-II/PHQ dated 27.02.2018 regarding the promotion of the accused from the post of ASI to SI mentioned at serial no.135. He proved the promotion order as Ex.DW3/A. DW-4 HC Ankush Malik deposed that on 10.03.2018 he was performing the picket duty of bus checking at Pandit Pant Marg between 6.00 p.m to 10.00 p.m. He has deposed about arrest of SI Rajkumar by the CBI officials. He deposed that CBI officials handed over to him the keys of the car of SI Raj Kumar and told him to handover the said vehicle to the relatives of SI Raj Kumar.
DW-5 Om Prakash Upadhayay deposed that he has been playing an auto rickshaw since 2007 on the route from gate no.6 RML hospital to R. K. Ashram as he was residing in the same area. He deposed that he knew the complainant Hari Shankar who used to ply e-
CBI vs Raj Kumar Tyagi Page No. 15 of 32 CBI No.307/2019rickshaw on the same route. He also knew accused Raj Kumar since 2017 when he was posted at PS North Avenue. Since he was in need of some money, he requested Hari Shankar to arrange the same and Hari Shankar introduced him to SI Raj Kumar Tyagi who used to give loan on interest and in this way he came to know about SI Raj Kumar Tyagi. SI Raj Kumar Tyagi advanced him a loan of Rs.10,000/- and he returned the same along with interest at the rate of 2% per month. He further deposed that Hari Shankar himself used to lend money to other e-rickshaw pliers. He used to take loan from persons like SI Raj Kumar Tyagi at lower interest rate and used to lend money at higher interest rate.
DW-6 Arun Chauhan deposed that he plies e-rickshaw from gate number 6 RML hospital to R. K. Ashram Metro Station since 2016. He proved the RC and license of e-rickshaw which he has been plying on his route as Ex.DW6/A. He deposed that Hari Shankar used to quarrel with traffic police officials and also used to give loan to other e-rickshaw pliers on interest.
DW-7 HC Chhote Lal deposed that complainant Hari Shankar used to ply e-rickshaw from gate number 6, RML Hospital to R. K. Ashram Metro Station. He know complainant Hari Shankar as he used to park his e-rickshaw and used to create Jam along with other e-
CBI vs Raj Kumar Tyagi Page No. 16 of 32 CBI No.307/2019rickshaw pliers. Hari Shankar used to meet SI Raj Kumar at Police Picket.
DW-8 SI Dhanpat Sharma proved the copy of promotion order dated 27.02.2018 bearing no. 9672- 9771/CB-2/PHQ which was issued under the RTI Act 2005 as Ex.DW8/A and photocopy of the receipt of the said order issued by PIO, PHQ is Ex.DW8/B.
17. I have heard arguments as advanced by Ld. Sr. PP for CBI Sh. Praneet Sharma and by Sh. R. P. Shukla, Ld. defence Counsel and have also examined the record of the case.
18. Ld. Counsel for accused strenuously argued that the sanction contemplated under Section 19 of The Prevention of Corruption Act 1988 has not been legal and valid in the present case and no cognizance should have been taken by the court. The issue of valid sanction goes to the root of the matter and can be raised at any stage of the case. It is further submitted that proceedings against accused are required to be dropped and he deserves to be discharged as sanction granted has not been valid. In the present case, CBI has obtained the prosecution sanction from Deputy Commissioner of Police, New Delhi District, New Delhi while the prosecution sanction can only be accorded by competent authority who was the appointing authority. Referring to the Provisions of Section 19 of the Prevention of Corruption Act and to the Article 311 of the Constitution of India, it is contended that sanction has been granted by the authority, subordinate to the CBI vs Raj Kumar Tyagi Page No. 17 of 32 CBI No.307/2019 appointing authority and therefore, sanction cannot be termed as valid in law. Ld. Counsel further contended that accused was given ad-hoc promotion as Sub-Inspector by the order of Commissioner of Police. The relevant order has been proved as Ex.DW3/A and DW8/A. The sanction for prosecution has been granted by DCP who was junior in rank to the Commissioner of Police, therefore Sanction is in violation of Article 311 of the Constitution of India.
19. On behalf of CBI, it is contended that that under Rule 3 and 4 of Delhi Police (Appointment and Recruitment) Rules 1980 appointing authority in relation to the post of Sub-Inspector would be Deputy Commissioner of Police. Also referring to the Rule 21, it is contended that powers as to removal from service are vested in favour of Deputy Commissioner of Police. It is further argued that this is the final stage of the case and the question of validity of sanction should have been raised at the preliminary stage.
20. I have given due consideration to the submissions made by both sides and the settled legal position in this regard.
21. The first and foremost question that arises in the present case is about the validity of the sanction as provided u/s 19 of The Prevention of Corruption Act, 1988, according to which:-
Previous sanction necessary for
prosecution
(1) No court shall take cognizance of an offence punishable under sections 7, 10, 11, 13 and 15 alleged to have been committed CBI vs Raj Kumar Tyagi Page No. 18 of 32 CBI No.307/2019 by a public servant, except with the previous sanction,-
(a) in the case of a person who is employed, or as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of the Union and is not removable from his office save by or with the sanction of the Central Government, of that Government;
(b) in the case of a person who is employed, or as the case may be, was at the time of commission of the alleged offence employed in connection with the affairs of a State and is not removable from his office save by or with the sanction of the State Government, of that Government;
(c) in the case of any other person, of the authority competent to remove him from his office.
(2) Where for any reason whatsoever any doubt arises as to whether the previous sanction as required under sub-section (1) should be given by the Central Government or the State Government or any other authority, such sanction shall be given by that Government or authority which would have been competent to remove the public servant from his office at the time when the offence was alleged to have been committed.
(3) Notwithstanding anything contained in the code of Criminal Procedure, 1973 (2 of 1974),-
(a) no finding, sentence or order passed by a special Judge shall be reversed or altered by a court in appeal, confirmation or CBI vs Raj Kumar Tyagi Page No. 19 of 32 CBI No.307/2019 revision on the ground of the absence of, or any error, omission or irregularity in, the sanction required under sub-section (1), unless in the opinion of that court, a failure of justice has in fact been occasioned thereby;
(b) no court shall stay the proceedings under this Act on the ground of any error, omission or irregularity in the sanction granted by the authority, unless it is satisfied that such error, omission or irregularity has resulted in a failure of justice;
(c) no court shall stay the proceedings under this Act on any other ground and no court shall exercise the powers of revision in relation to any interlocutory order passed in any inquiry, trial, appeal or other proceedings.
(4) In determining under sub-section (3) whether the absence of, or any error, omission or irregularity in, such sanction has occasioned or resulted in a failure of justice the court shall have regard to the fact whether the objection could and should have been raised at any earlier stage in the proceedings.
Explanation.- For the purposes of this section,-
(a) error includes competency of the authority to grant sanction;
(b) a sanction required for prosecution includes reference to any requirement that the prosecution shall be at the instance of a specified authority or with the sanction of a CBI vs Raj Kumar Tyagi Page No. 20 of 32 CBI No.307/2019 specified person or any requirement of a similar nature.
22. The object of inserting the above mentioned provision has been that where a public servant is prosecuted for an offence which challenges his honestly and integrity, the issue in such a case is not only between the prosecutor and the offender but the state is also vitally concerned in it as it affects the morale of the public services and also the administrative interests of the state. The policy of the legislature is to afford adequate protection to public servants to ensure that they are not prosecuted for anything done by them in the discharge of their official duties without reasonable cause.
23. In the case of Mansukhlal Vithaldas Chauhan vs State of Gujarat, (1997) 7 SCC 622, the hon'ble Supreme Court while considering the issue of grant of sanction by the sanctioning authority observed that sanction is a weapon to ensure discouragement of frivolous and vexatious prosecution and is a safeguard for the innocent but not a shield for the guilty. It is further observed that one of the guiding principle for sanctioning authority would be the public interest. The Court further observed that while referring the matter to sanctioning authority no direction can be given to positively accord the sanction and thereby restricting the discretion vested in the sanctioning authority by law. The hon'ble court further observed that the law vests the discretion to grant sanction or not in the sanctioning authority and the court cannot curtail the exercise of the said discretion. The sanctioning authority has to come to an CBI vs Raj Kumar Tyagi Page No. 21 of 32 CBI No.307/2019 independent conclusion after due application of mind upon considering the entire records of the matter.
24. On examining the provision as well as various judicial pronouncements on the aspect, the settled position that emerges can be summarized as follows:-
(i) grant of appropriate sanction by competent authority is sine qua non for taking of the cognizance against the public servant under The Prevention of Corruption Act;
(ii) the grant or refusal of sanction is a statutory function of the competent authority and the same is independent and absolute discretion of competent authority;
(iii) once the grant of sanction has been declined by the competent authority, the decision could not be revisited without fresh material;
(iv) if opinion to decline or grant sanction was tentative and incomplete, there can be subsequent order positively granting the sanction and
(v) the issue of validity of sanction can be raised at any stage since same is of vital importance.
25. Coming to the present case, to ascertain the validity and legality of the Sanction, the evidence of PW-4 as well as defence evidence appearing on record needs to be considered. PW-4 Madhur Verma was posted as DCP, New Delhi District, at the relevant time and has accorded the sanction vide order dated 14.06.2018.
CBI vs Raj Kumar Tyagi Page No. 22 of 32 CBI No.307/201926. Article 311 Constitution of India provides as under:-
Dismissal, removal or reduction in rank of persons employed in civil capacities under the Union or a State:-
(1) No person who is a member of a civil service of the Union or an all India service or a civil service of a State or holds a civil post under the Union or a State shall be dismissed or removed by a authority subordinate to that by which he was appointed (2) No such person as aforesaid shall be dismissed or removed or reduced in rank except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges Provided that where it is proposed after such inquiry, to impose upon him any such penalty, such penalty may be imposed on the basis of the evidence adduced during such inquiry and it shall not be necessary to give such person any opportunity of making representation on the penalty proposed: Provided further that this clause shall not apply
(a) where a person is dismissed or removed or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge; or
(b) where the authority empowered to dismiss or remove a person or to reduce him in rank is satisfied that for some reason, to be recorded by that authority in writing, it is not reasonably practicable to hold such inquiry; or
(c) where the President or the Governor, as the case may be, is satisfied that in the interest of the security of the State, it is not expedient to hold such inquiry CBI vs Raj Kumar Tyagi Page No. 23 of 32 CBI No.307/2019 (3) If, in respect of any such person as aforesaid, a question arises whether it is reasonably practicable to hold such inquiry as is referred to in clause (2), the decision thereon of the authority empowered to dismiss or remove such person or to reduce him in rank shall be final.
27. The reading of above mentioned provisions make it clear that the removing or disciplinary authority has to be equivalent in rank to the appointing authority. A public servant cannot be removed by the authority subordinate to the one by which he was appointed.
28. Coming to the case in hand, as per notification dated 27.02.2018 (Ex.DW3/A, Ex.DW8/A), Commissioner of Police granted promotion to the accused from the post of Assistant Sub- Inspector to the post of Sub-Inspector. The sanction order dated 14.06.2018 Ex.PW4/A has been granted by the Deputy Commissioner of Police, New Delhi District who has been subordinate to the Commissioner of Police.
29. The judgments relied upon on behalf of accused are clear that until and unless the sanction is valid and is granted by the competent authority, the trial cannot proceed further. The invalid sanction shall be deemed to be non-est in the eyes of law. However, it is open to the prosecution agency to seek fresh sanction for prosecution from the competent authority.
30. The factual scenario which emerges on the record of this case, is that accused was promoted as Sub-Inspector by the CBI vs Raj Kumar Tyagi Page No. 24 of 32 CBI No.307/2019 orders of Commissioner of Police, Delhi. The rules relied upon by CBI relating to appointment and recruitment as well as punishment and appeal as applicable to Delhi Police, empower an officer of the rank of DCP to appoint or remove any officer of the rank of Sub-Inspector. However, fact remains that accused in this case who was ASI was not appointed by an order passed by officer of the rank of DCP, rather undisputedly such order was passed by the Commissioner of Police. Apparently, Deputy Commissioner of Police, New Delhi District was lower in rank to the Commissioner of Police, while according sanction in this case.
31. Now it has to be seen what legal principle would be applicable to such factual situation, especially in view of mandate of Article 311 of Constitution of India. The judgment passed by Division Bench of Delhi High Court in case of Davinder Singh vs. State, ILR (1974) II 400 (DHC) directly addresses issue involved herein. In that case, accused was promoted and appointed as SI by an order passed by DIG, though for his prosecution for offence under PC Act, sanction was accorded by officer of the rank of SP. The court took notice of the fact that even SP under Punjab Police Rules was competent to promote ASI to SI. But the High Court observed that "The irresistible conclusion from the perusal of the notification issued by the Deputy Inspector General of Police is that it was he who appointed Davinder Singh to officiate as Sub Inspector and ordered that he be posted in Hissar District. That being so, Davinder Singh could not be dismissed from the post of the Sub CBI vs Raj Kumar Tyagi Page No. 25 of 32 CBI No.307/2019 Inspector by the Superintendent of Police, being an authority subordinate to the appointing authority, viz. Deputy Inspector General of Police, Ambala Range. No doubt, according to the Police Rule, the Superintendent of Police of a District is competent to appoint a Sub Inspector but what has to be considered in the instant case is the factum of appointment and not the competent authority who could have appointed Davinder Singh to the rank of a Sub Inspector. The competency of authority to order removal or dismissal has to be determined with reference to the requirements of Article 311(1) which postulates that the authority that orders dismissal or removal should not be subordinate in rank to the authority which appointed the civil servant.
32. Same is the legal principle explained in the case of Gopal Bhai Mohanbhai Nagoda v. State of Gujarat, IV (1993) CCR 3288 (DB) wherein it is held as under:-
The competence of the authority to order removal or dismissal will have to be determined with reference to the requirements of Article 311 (1) of the Constitution; and one of the requirements is that the authority that orders the dismissal or removals should not be one subordinate in rank to that by which the civil servant in question was appointed. In the instant case, admittedly, the appellant has been appointed by District Development Officer who CBI vs Raj Kumar Tyagi Page No. 26 of 32 CBI No.307/2019 is the higher authority to Deputy District Development Officer. Where an authority, higher than the one entitled under statutory rules to order an appointment, in fact orders a valid appointment, it is factum of that appointment that controls the scope of the guarantee conferred by Article 311 (1) of the Constitution and, if such a civil servant is dismissed or removed from service by an authority, no doubt, competent under the rules to order the appointment and also to order the dismissal, which, however, is lower in rank than the authority in fact ordered the appointment, such an order would contravene. This is the view taken by Madras High Court in the case of N.Somasundaram v. State of Madras [A.I.R. 1956 Mad. 419]. The Bombay High Court has also considered the question with regard to S.6(1)(c) of Prevention of Corruption Act 1947 and Article 311 of the Constitution of India in Sridhar Mahadeo Dhamorikar vs. State of Maharashtra [1969- IIL.L.J. 499]. The appointment in that case was of a class III employee originally appointed by the Commissioner of Labour of the State of Madhya Pradesh. He was prosecuted for corruption under S.161 of Indian Penal Code and S.5(2) read with Section CBI vs Raj Kumar Tyagi Page No. 27 of 32 CBI No.307/2019
5.(1)(d) of the Prevention of Corruption Act, with the sanction for prosecution given by the Deputy Commissioner of Labour, Nagpur. It was contended that sanction was not given by the competent authority and the entire proceedings were void without jurisdiction.
33. In my opinion, the above mentioned observations of Delhi High Court and Gujarat High Court leave no doubt that even though DCP (New Delhi District) would have been competent to remove accused from the service, but actually he did not appoint him to such posts, rather such orders were passed by the Commissioner of Police. In the result, DCP (New Delhi) could not have validly removed accused from his services on account of mandate of Article 311 of Constitution of India. Thus, inevitable conclusion would be that DCP (New Delhi) was not competent to accord sanction for prosecution against accused in this case. Rather it could be only the Commissioner of Police.
34. Hence, I do find that the sanction for prosecution of accused in this case is vitiated and illegal. The requirement of sanction being accorded by a competent authority is not mere a formality and therefore, cognizance taken on the basis of an illegal sanction becomes bad in the eyes of law.
35. Further, Supreme Court in the case of Nanjappa vs. State of Karnataka (SC) 2015 (4) JJC 2409, observed that "objection against sanction can be raised before the trial court at any CBI vs Raj Kumar Tyagi Page No. 28 of 32 CBI No.307/2019 stage of proceedings and if the trial court finds that sanction from competent authority was not obtained, proper procedure for trial court is to discharge accused rather than deciding case on merit. The trial court should discharge accused relegating parties to a stage where authorities can obtain fresh sanction".
36. I find no merits or force in arguments advanced by Ld. Senior PP for CBI that the question should have been decided at the earliest as the question of sanction is of vital importance and goes to the root of the matter. Even the Apex court held in case of State of Karnataka vs C. Nagarajswamy (2005) 8SCC 370 as follows:-
".... 14. Ordinarily, the question as to whether a proper sanction has been accorded for prosecution of the accused persons or not is a matter which should be dealt with at the stage of taking cognizance. But in a case of this nature where a question is raised as to whether the authority granting the sanction was competent therefore or not, at the stage of final arguments after trial, the same may have to be considered having regard to the terms and conditions of service of the accused for the purpose of determination as to who could remove him from service.
15. Grant of proper sanction by a competent authority is a sine qua non for taking cognizance of the offence. It is desirable that the question as regard sanction may be determined at an early stage. [See Ashok Sahu v. Gokul Saikia and Anr., and Birendra K. Singh v. State of Bihar] .CBI vs Raj Kumar Tyagi Page No. 29 of 32 CBI No.307/2019
16. But, even if a cognizance of the offence is taken erroneously and the same comes to the court's notice at a later stage a finding to that effect is permissible. Even such a plea can be taken for the first time before an appellate court. [See B. Saha and Ors. v. M.S. Kochar, SCC para 13 and K. Kalimuthu v. State ]..... "
37. In my opinion, the accused should not have been put to trial as the sanction was not legal and proper.
38. Having held that sanction is not valid as per law, the next question now arises whether the accused should be discharged or acquitted or whether the court is required to consider the case of prosecution on its merits. It has been the argument of Ld. Counsel for accused that since the sanction order was not proper, the court had no jurisdiction to take cognizance and any judgment passed on the merits of the case would be illegal and inconsequential. On the other hand Ld. Senior PP for CBI argued that after full scale trial and recording of evidence, the court is not competent to discharge the accused and the court is bound to record judgment of conviction or acquittal.
39. The answer to the above said question is found in the Supreme Court pronouncement in the case of State of T.N. vs. M.M Rajendran, (1998) 9 SCC 268 where, it was held as follows:-
"................. It, however, appears to us that if the sanction had not been accorded for which the criminal case could have been initiated against the respondent, there was CBI vs Raj Kumar Tyagi Page No. 30 of 32 CBI No.307/2019 no occasion either for the trial court or for the appeal court to consider the prosecution case on merits. Therefore, the High Court need not have made the finding on merits about the prosecution case. We make it clear that finding made by the courts on the merits of the case will stand expunged and will not be taken into consideration in future. In our view, the High Court should have passed the appropriate order by dropping the proceeding and not entering into the question of merits after it had come to the finding that the proceeding was not maintainable for want of sanction. .........."
40. It is also held by supreme court in the case of C. Nagarajswamy (supra) that:-
"......... 25. In view of the aforementioned authoritative pronouncements, it is not possible to agree with the decision of the High Court that the Trial Court was bound to record either a judgment of conviction or acquittal, even after holding that the sanction was not valid. We have noticed hereinbefore that even if a judgment of conviction or acquittal was recorded, the same would not make any distinction for the purpose of invoking the provisions of Section 300 of the Code as even then, it would be held to have been rendered illegally and without jurisdiction. .............."CBI vs Raj Kumar Tyagi Page No. 31 of 32 CBI No.307/2019
41. In view of the above mentioned judgments, this court is not required to go into the merits of the prosecution case and the present proceedings are liable to be dropped against the accused.
42. In view of the aforesaid discussion, on the point of sanction, accordingly, the present proceedings are dropped against the accused. CBI shall be at liberty to obtain fresh sanction from the competent authority and to file a fresh charge- sheet, if sanction is accorded by the competent authority.
43. Accused is required to furnish bail bond under Section 437A Cr.P.C to the tune of Rs.50,000/- with one surety.
44. File be consigned to the record room.
Digitally signed ANJU by ANJU BAJAJ
CHANDNA
BAJAJ Date:
CHANDNA 2024.03.21
15:58:35 +0530
(Anju Bajaj Chandna)
Principal District & Sessions Judge-
cum-Special Judge (PC Act) (CBI),
Rouse Avenue District Court
New Delhi/21.03.2024
CBI vs Raj Kumar Tyagi Page No. 32 of 32
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