Delhi District Court
Complainant vs . on 26 November, 2016
IN THE COURT OF MS. VRINDA KUMARI:ADDL.
SESSIONS JUDGE /SPECIAL JUDGE: CBI03
(PC ACT) SOUTH DISTRICT: SAKET COURTS:
NEW DELHI
Complaint Case No.09/16
CNR No.: DLST010051262016
Deepak Gupta
s/o Sh. Rameshwar Dass
r/o 3862, Gali Mandir Wali
Pahari Dhiraj, Delhi110006
.........Complainant
Vs.
1. Devender
s/o Late Tek Chand
r/o C49/2, Arjun Nagar
S.J Enclave, New Delhi
2. Ashok Kumar
Late Bilgoo Kumar
r/o 192, Arjun Nagar
near S.J Enclave, New Delhi
3. Sushil Gupta
s/o Sh. Om Parkash
C502, Philips CGHS Ltd.
Plot no.3, Sector23
Dwarka, New Delhi
4. Kuldeep Singh
s/o Pratap Singh
r/o Kishan Garh, Mehrauli
New Delhi 110030
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5. Virender Kumar
s/o Late Jagdish Prasad
r/o Sultanpur Village, Mehrauli
New Delhi 110030
6. Rambir Singh
s/o Late Pyare Lal
r/o 6A, Village Hauz Khas
New Delhi
7. Bimlesh
51A, Arjun Nagar
S.J Enclave, New Delhi
8. Sooraj
51A, Arjun Nagar
S.J Enclave, New Delhi
9. South Delhi Municipal Corporation
(through Executive Engineer, Building Department)
Green Park, New Delhi
....... Respondents
Date of filing of revision : 28.09.2016
Date of allocation : 28.09.2016
Arguments concluded on : 26.11.2016
Date of order : 26.11.2016
Application u/s 156 (3) Cr.PC for registration of FIR against
the respondents u/s 420, 467, 468, 471,120B and under relevant
sections of Indian Penal Code and under provision of
Prevention of Corruption Act and Delhi Municipal
Corporation Act.
ORDER
1. The complainant claims to be the owner of land/property bearing municipal no.51 A, Arjun Nagar, Safdarjung CC No.09/16 26.11.2016 Page no. 2/8 Enclave, New Delhi consisting of various houses occupied by tenants and a Shiv Mandir. In November, 2015, he noticed construction being carried out on a 150 Sq. Yards plot in the above said property by tenants Smt. Bimlesh (respondent no.7) and Sh. Sooraj (respondent no.8). It is alleged that the builder Sh. Devender (respondent no.1) also encroached the vacant land adjoining the tenanted premises let out to respondents no.7 & 8. Upon inquiry, it was revealed that respondents no.7 & 8 have sold the possession to respondent no.1. It is further averred that respondent no.1 carried out abovesaid illegal construction in connivance with respondents no.3, 4, 5 and 6. It is further alleged that respondents no.3 to 6 sold portions of the property in question to respondents no.1 & 2 on the basis of false and forged documents who further illegally sold flats constructed on the same to unsuspecting people. The grievance of the complainant is that despite complaints dated 27.11.2015, 03.12.2015, 14.09.2016 and 18.09.2016 to the Dy. Commissioner, South Delhi Municipal Corporation and to the police authorities, no action was taken. It is submitted that the respondents have not only cheated the complainant but have also raised illegal and unauthorized construction in respect of which respondent no.9 SDMC failed to take any action. The complainant has prayed for directing the CC No.09/16 26.11.2016 Page no. 3/8 concerned police officials of PSSafdarjung Enclave to register an FIR against the respondents under various sections of Indian Penal Code and under relevant provisions of the Prevention of Corruption Act, 1988 and the Delhi Muncipal Corporation Act.
2. I have heard the detailed submissions of the complainant and have perused the record carefully.
3. During the course of arguments, Ld. Counsel for the complainant submitted that his complaint was merely an application u/s 156 (3) Cr.PC and not a complaint u/s 200 Cr.PC since a complaint u/s 200 Cr.PC would require previous sanction u/s 19 of the PC Act, 1988.
4. The issue before this Court is whether the provisions under the Prevention of Corruption Act, 1988 are attracted in the instant case or not. Further, whether or not previous sanction u/s 19 of the PC Act, 1988 is required for passing a direction for registration of FIR u/s 156 (3) Cr.PC in respect of offences under the PC Act, 1988.
5. The perusal of the complaint as well as the annexed documents shows that the allegation against the SDMC is CC No.09/16 26.11.2016 Page no. 4/8 that it did not perform its duty of checking illegal construction in the property of which the complainant claims to be the owner. During the course of arguments, ld. Counsel for the complainant argued that there was a possibility that the abovesaid illegal construction was not checked by SDMC on account of payment of illegal gratification. Such vague allegations devoid of material particulars cannot form the basis of launching a criminal prosecution against public servants. The entire complaint fails to disclose any criminal misconduct as envisaged under the PC Act, 1988 on part of any specific public servant.
6. It is also noted that neither any public servant has been specifically mentioned in the complaint nor any previous sanction u/s 19 of the PC Act is on record. The argument of the complainant is that Section 19 of the PC Act contemplates the requirement of previous sanction at the time of taking cognizance of the offence by the Court and not before that. It has also been argued that the stage of section 156(3) Cr.P.C is a precognizance stage and, therefore, there is no requirement of previous sanction.
7. Section 19(1) of the Prevention of Corruption Act, 1988 provides as follows:
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19. 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 by a public servant, except with the previous sanction:
(a) in the case of a person who is 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 in connection with the affairs of a State and is not removable from his office save by or within 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.
8. In this regard, reference may be made to Anil Kumar & Ors vs. M.K. Aiyappa & Anr, (2013) 9 SCR 869, wherein Hon'ble Supreme Court of India examined the question CC No.09/16 26.11.2016 Page no. 6/8 whether the requirement of sanction is precondition for ordering the investigation U/S 156(3) Cr.P.C even at a pre cognizance stage. While examining this issue, Hon'ble Supreme Court of India also referred to Section 19(3) of the Prevention of Corruption Act, which provides as follows:
Section 19(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 revision on the ground of absence of, or any error, omission or irregularity in the sanction required under subsection(1), unless in the opinion of that Court, a failure of justice has in fact been occasioned thereby;
(b) XXX XXX XXX
(c) XXX XXX XXX
It was held that Subsection (3) of Section 19 has an object to achieve, which applies in circumstances where a Special Judge has already rendered a finding, sentence or order. In such an event, it shall not be reversed or altered by a court in appeal, confirmation or revision on the ground of absence of sanction. That does not mean that the requirement to CC No.09/16 26.11.2016 Page no. 7/8 obtain sanction is not a mandatory requirement. Once it is noticed that there was no previous sanction, as already indicated in various judgments referred to hereinabove, the Magistrate cannot order investigation against a public servant while invoking powers under Section 156(3) Cr.P.C.
9. In view of the above discussion, it is held that not only the complaint under consideration cannot be taken notice of in absence of previous sanction u/s 19 of the PC Act, 1988, the allegations also do not attract the provisions of the Prevention of Corruption Act, 1988. The complaint is, therefore, dismissed.
10. File be consigned to record room.
PRONOUNCED IN THE OPEN COURT ON THIS 26th DAY OF NOVEMER, 2016.
(Vrinda Kumari)
ASJ/Special Judge (PC Act)
(CBI3), South, Saket Court
New Delhi
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