Delhi District Court
S. K. Srivastava vs Sh. P. K. Mishra And Ors. on 29 June, 2012
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IN THE COURT OF MS. NAVITA KUMARI BAGHA : MM, NEW DELHI
CC No.515/1/08
S. K. Srivastava,
S/o Late Sh. B. S. Bhaskar
Permanently
R/o Village & P.O. Neora Gopalpur,
Via Saraiya Factory, Distt.Muzaffarpur,
Bihar843126,
and currently
C/o Shri Vivek Kumar Singh,
Advocate, Lawyers' Chamber No.405,
Patiala House Courts, New Delhi110001
........ Complainant
Versus
1. Sh. P. K. Mishra
S/o not known
at present working as Income Tax Ombudsman for Chandigarh,
C/o Joint Secretary (Admn.), Department of Revenue,
North Block, New Delhi110001,
and also at
CII/63, Tilak Lane, New Delhi110002.
2. Sh. V. K. Bhatia (IRS 74024)
S/o not known
Formerly CIT Delhi III, C.R. Building,
I.P. Estate, New Delhi110002,
At present,
R/o Flat No.20, Type VI, Belvedere Estate,
Kolkata, West Bengal700027.
3. Sh. N. C. Joshi (IRS 78011)
S/o Not known
C/o the DGIT (Vig) and CVO,
Dyal Singh Public Library Building,
1 Deen Dyal Upadhyay Marg, New Delhi110002.
4. Ms. Kiran O. Vasudev
Flat No.203, North Avenue,
CC No.515/1/08
S. K. Srivastava Vs.Sh. P. K. Mishra and Ors.
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New Delhi110001
And also at
C/o The DGIT (BPR), E2, ARA Center,
Jhandewalan Extension, New Delhi110055.
5. Sh. H. L. Dihana (IRS 85063)
S/o Not known
C/o Commissioner of Income Tax Rohtak,
Zila Parishad Building, Rohtak124001,
and also at
30CGHS10, Sunder Apartments,
Paschim Vihar, New Delhi110049
6. Sh. R. K. Gupta (IRS 86002)
S/o Not known
C/o the CCIT, Delhi, C. R. Building,
I.P. Estate, New Delhi110002
and also at
Old MIG Flats, C.R. Apartments,
Prasad Nagar, New Delhi110005
7. Ms. R. Bhama (IRS 86018)
D/o Not known
D18, Gulmohar Park, New Delhi110049,
and also at
C/o the Chief Commissioner of Income Tax, Mumbai,
Aaykar Bhawan, Churchgate, Mumbai.
8. Sri P.C. Pancholi (IRS 93578)
C/o the CCIT Delhi, C.R. Building,
I. P. Estate, New Delhi110002
9. Smt. Sumana Sen (IRS 99005)
D/o not known
R/o Flat No.B 602, The Crescent, F2,
Sector 50, Noida, U.P.
And also at C/o the DGIT (Vig) and CVO CBDT,
Dayal Singh Public Library Building,
CC No.515/1/08
S. K. Srivastava Vs.Sh. P. K. Mishra and Ors.
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1 Deen Dayal Upadhyay Marg,
New Delhi110002
10. Ms. Ashima Neb (IRS 99010)
D/o Late Wing Commander P. K. Neb
Flat No.L 108, Jal Vayu Vihar,
Sector25, Noida, U.P.
And also at
C/o Joint Secretary (FT&TRI),
Central Board of Direct Taxes,
9th Floor, HUDCO Vishala,
Bhikaji Kama Place, New Delhi110067.
............. Accused
Complaint U/Sec.200 Cr.P.C. for initiation of criminal proceedings against the
accused persons U/Sec.167/409/420/499/500/506/511 r.w. Sec.120B IPC
ORDER
1. The present complaint case U/Sec.200 Cr.P.C. was filed by the complainant against the accused persons on 24.12.2007 for prosecuting the accused persons U/Sec.167/409/420/499/500/506/511 r.w. Sec.120B IPC. The brief facts of the case are that the complainant and accused no.1 to 10 are IRS Officers and the accused became inimical against the complainant because he had detected and reported the theft of public money and public revenue in excess of Rs.10,000/ crores and other criminal activities including organized prostitution, etc. committed by the accused persons. Since the complainant had detected and reported, in course of his official duties and official business the corruption and moral depravity of his colleagues and their companions, the accused persons deliberately, willfully and mischievously misused their official position and fabricated false cases against him by manufacturing false and incorrect records and fake and counterfeit evidence to impute against him sexual harassment of accused no.9 & 10 and due to the said imputation of CC No.515/1/08 S. K. Srivastava Vs.Sh. P. K. Mishra and Ors.
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sexual harassment, the complainant was placed under suspension on 30.03.2007 and was issued chargesheet under Service Rules on 26.09.2007.
2. In presummoning evidence, the complainant examined himself as the one and only witness i.e. as CW1 and closed the evidence.
3. I have heard the arguments on the point of summoning from the complainant and his counsel Sh. H.P. Singh and perused the record. The complainant/CW1 has deposed that he is IRS Officer of 1987 batch and was posted in Delhi in 2003 where accused no.2 was his immediate superior who wanted him to do illegal acts like arranging bribes for him, hotel accommodation, free shopping for himself and his family and a good job with a pay package of Rs.1 lac per month or more for his unemployed and under qualified son Mr. Amitabh Bhatia from Samsung group, which he declined to do and consequently the accused no.2 conspired and connived with accused no.4 Ms. Kiran O. Vasudev and accused no.6 Mr. R.K. Gupta to implicate him in false vigilance cases by fabricating false evidence and preparing incorrect, fake, forged and counterfeit records and documents like Refund Approval Register, Statutory Notices, complaints by Taxpayers, etc. He further deposed that these persons further conspired with accused no.1, Mr. P.K. Mishra and conducted an illegal and arbitrary vigilance inspection in his case by fraudulently obtaining the approval of CBDT. He further deposed that the accused no.1 demanded from him a furnished flat in NOIDA which was to be misused for illegal activities like extortion of bribes and organized prostitution. He further deposed that he refused to agree to this illegal demand of accused no.1 and, therefore, the accused no.1 threatened him with suspension and dismissal. He further deposed that in September, 2007, accused no.7 Ms. R. CC No.515/1/08 S. K. Srivastava Vs.Sh. P. K. Mishra and Ors.
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Bhama met him in his office and made certain indecent propositions which he declined and after getting angry over his refusal to accept her demand, she threatened him with dire consequences and thereafter, conspired with accused no.1 and others to fabricate false counterfeit records like Refund Approval Register to issue malicious chargesheet to him, whereas she herself was well aware that there was no such register called Refund Approval Register in IncomeTax Department but despite that she sent fraudulent self contained report Ex.CW1/B on 13.01.2006 to CVC where she accused the complainant of being grossly negligent for improperly maintaining refund approval register and on the basis of that the CVC advised initiation of disciplinary proceedings against the complainant and he was chargesheeted on 04.04.2006. He further deposed that pursuant to the chargesheet dated 03.04.06, he requested for inspection of records and documents relied upon in issuing chargesheet but accused persons got panicked and started visiting senior officers with mischievous tales of sexual harassment of accused no.9 Ms. Sumana Sen and accused no.10 Ms. Ashima Neb by the complainant and visited CVC where they alleged sexual harassment, sexual assault, molestation and even rape by him of accused no.9 & 10 and thereafter, they visited CBDT on 06.06.06 and made similar allegations against him. He further deposed that Smt. Baljeet Matiyani, Member (P) CBDT, directed the accused no.9 & 10 to first lodge the complaint with the police before raising the matter before CBDT but accused persons did not report the matter to the police or any other authority like NCW, DCW, etc. He further deposed that since Smt. Baljeet Matiyani did not agree to their mischievous demand against the complainant, the accused persons on 14.06.06 fabricated mischievous documents Ex.CW1/C, Ex.CW1/D and Ex.CW1/E behind the back of competent authority i.e. Smt. Baljeet Matiyani and tried to get the complainant CC No.515/1/08 S. K. Srivastava Vs.Sh. P. K. Mishra and Ors.
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dismissed from government service under Article 311(2) of the Constitution of India. He further deposed that though the accused no.1 was direct subordinate to Smt. Baljeet Matiyani and was required to route his files through her only, but to further his malafide intent, he did not show the file to Smt. Baljeet Matiyani and sent his file notes Ex.CW1/F to CVC and to the Chairman, CBDT directly, behind the back of Smt. Baljeet Matiyani. He further deposed that the said proposals were rejected by Hon'ble Finance Minister on 25.08.2006 and accused persons were directed not to deal with the case of the complainant but despite that the accused persons again registered a false vigilance case against the complainant by opening the COM FILE No. DGIT(V)/NZ/COM/113/06 through which they again moved an office note for dismissal of the complainant, but the Hon'ble Finance Minister once again rejected the said proposal and ordered for disciplinary action against accused persons. He further deposed that though the Chairman, CBDT i.e. Ms. M. H. Kherawala was required to assign the said file with the order of the Hon'ble Finance Minister to Smt. Baljeet Matiyani but very maliciously she gave the file to Sh. R. Prasad, Member (R&V) who alongwith other accused persons stole the first 12 pages of the file wherein the Hon'ble Finance Minister had ordered for disciplinary action against accused persons and replaced those pages with 11 pages from file F. No. DGIT(V)/NZ/COM/36/06 and one hand written page. He further deposed that in December, 2006, the accused persons for the third time initiated malicious proposal for dismissal of the complainant vide office note Ex.CW1/G. He further deposed that accused no. 3 Sh. N. C. Joshi was neither competent nor authorised nor directed by the government to raise the said note but despite that he raised the said malicious note and fraudulently did not show it to his superior Sh. S. S. Khan, DGIT, Vigilance and wrongly noted on the file that he was on leave whereas Mr. CC No.515/1/08 S. K. Srivastava Vs.Sh. P. K. Mishra and Ors.
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Khan was very much present in the office. He further deposed that the accused no.3 kept the file hidden for about 10 days so that the same could not be seen by Smt. Baljeet Matiyani who was Chairman, CBDT at that time and was retiring on 31.12.2006. He further deposed that Mr. R. R. Singh, Member (R&V) admitted on the file that there was no Vigilance angle in the allegations against the complainant and, therefore, the accused persons should not have dealt with his case but Sh. R. Prasad in collusion with accused persons made the malicious note and recommended his suspension. He further deposed that as the Chairman, CBDT was still not persuaded to push the case, the accused persons more notably accused no.7 Ms. R. Bhama, accused no.9 Ms. Sumana Sen and accused no.10 Ms. Ashima Neb started visiting higher officers and verbally accused him of sexual harassment, molestation, sexual assault and even rape, pursuant to which, the government placed him under suspension on 30.03.2007. He further deposed that in 2005, he was posted as Assistant Director, Inspection and in the course of his official duties, he detected and reported huge theft of public money exceeding Rs.10,000/ crores and out of these cases one case of M/s Green World Corporation had become final before Hon'ble Supreme Court and the loss to revenue was quantified at about Rs.84 crores and in another case of M/s. NDTV Limited, government had accepted inspection note of the complainant and took further action. He further deposed that the accused persons in order to wreak vengeance upon him, have conspired and fabricated fake and counterfeit records and documents. He has further deposed that accused no.1 in concert with others had been indulging in various illegal and immoral activities like engaging professional call girls and taking them with him to various places, impersonating them to be government officers and had also sexually exploited accused no.10 by forcing her to accompany him under incorrect names and CC No.515/1/08 S. K. Srivastava Vs.Sh. P. K. Mishra and Ors.
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stay with him in hotels and guests houses under incorrect relations of married woman while she was unmarried. He has further deposed that accused no.1 had conducted illegal sexual relations with accused no.9 to spare her from consequences of the various illegal acts in case of M/s. NDTV Ltd. which was inspected and detected by the complainant in which accused no.9 had defrauded the exchequer of more than Rs.200 crores. He further deposed that because of his refusal to agree to illegal bribes and other gratifications and his insistence to inspect the records, criminal activities of the accused persons were becoming exposed and to cover up that these accused persons in collusion with certain other government officers and private persons made false cases against him and fabricated fake documents to impute sexual harassment by the complainant of accused no.9 and 10 to get him placed under suspension.
4. Thus the complainant/CW1 has categorically deposed against accused no.1, 2, 3, 4, 6, 7, 9 & 10 that they had become inimical to him as he had detected and reported, in course of his official duties and official business, their corruption and moral depravity and they entered into criminal conspiracy to get him dismissed/terminated from his govt. service and in furtherance of that they prepared false, forged and fabricated documents viz. Ex.CW1/B, Ex.CW1/C, Ex.CW1/D, Ex.CW1/E, Ex.CW1/F & Ex.CW1/G and also defamed him by leveling false allegations of sexual harassment, molestation and even rape against him and got him suspended on the basis of those false allegations. The complainant has submitted that the chargesheet dated 03.04.06 against him has been held to be patently illegal by the Ld. Administrative Tribunal and the order of the Ld. Tribunal has been upheld by the Hon'ble Delhi High Court and suspension of complainant on alleged CC No.515/1/08 S. K. Srivastava Vs.Sh. P. K. Mishra and Ors.
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charges of sexual harassment of accused no.9 & 10 has been held by the Hon'ble Court to be malafide and mischievous. He has further submitted that the government has accepted the Court order and recalled his suspension while giving him all the benefits. It is settled law that at the summoning stage, only the facts provided by the complaint are to be considered without taking into consideration the defences. It has been held by Hon'ble Supreme Court in Anil Kumar Saran Vs. State of Bihar, AIR 1996 SC 204 that at the summoning stage the Court has to appreciate only the facts provided from the point of view of the complainant and the defences are not to be considered at this stage.
5. In view of the abovesaid primafacie a case U/Sec.120B/167/500/34 IPC is found to be disclosed against accused no.1, 2, 3, 4, 6, 7, 9 & 10. Though accused persons are public servant but the sanction U/Sec.197 Cr.P.C. is not required in the present case as their acts of entering into criminal conspiracy to commit offence, framing incorrect documents with intent to cause injury or imputing false allegations of sexual harassment to defame a person, could not be said to be committed by them while acting or purporting to act in discharge of their official duty. A public servant can only be said to act or purport to act in discharge of his official duty, if his act is such as to lie within the scope of his official duty. It is held by Hon'ble Supreme Court in Manohar Nath Kaul Vs. State of Jammu and Kashmir, AIR 1983 SC 610 , "Where a public servant commits the offence of cheating or abets another so to cheat, the offence committed by him is not one while he is acting or purporting to act in the discharge of his official duty, as such offence has no necessary connection between it and the performance of the duties of a public servant, the official status furnishing CC No.515/1/08 S. K. Srivastava Vs.Sh. P. K. Mishra and Ors.
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only the occasion or opportunity for the commission of the offences."
Use of expression, 'official duty' implies that the act or omission must have been done by the public servant in the course of his service and that it should have been in discharge of his duty. The Sec.197 Cr.P.C. does not extend its protective cover to every act or omission done by a public servant in service but restricts its scope of operation to only those acts or omissions which are done by a public servant in discharge of his official duty. A public servant is not entitled to indulge in criminal activities. To that extent the section has to be construed narrowly and in a restricted manner. In the present case also the protective cover of Sec.197 Cr.P.C. could not be extended to accused persons because the abovesaid criminal acts could not be stated to be part of their official duty which they had committed while acting or purporting to act in discharge of their official duty. Hence, no sanction is required to prosecute them in the present case. As held earlier primafacie a case U/Sec.120 B/167/500/34 IPC is disclosed against accused no.1, 2, 3, 4, 6, 7, 9 & 10 and accordingly they be summoned on filing PF&RC for 03.09.12.
(Announced in open
Court on 29.06.2012) (Navita Kumari)
MM, New Delhi.
CC No.515/1/08
S. K. Srivastava Vs.Sh. P. K. Mishra and Ors.
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CC No. 515/1/08
29.06.2012
Present: None.
Vide separate order on the point of summoning, it is held that a prima facie a case U/Sec.120B/167/500/34 IPC is disclosed against accused no.1, 2, 3, 4, 6, 7, 9 & 10. Accordingly they be summoned on filing PF&RC for 03.09.12.
(Navita Kumari) MM(ND)/29.06.12 CC No.515/1/08 S. K. Srivastava Vs.Sh. P. K. Mishra and Ors.