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1. By this petition the Petitioner impugnes the order dated 20th January, 2012 passed by the learned Special Judge dismissing the application of the Petitioner under Section 6(A) of the Delhi Special Police Establishment Act, 1946 (in short the DSPE Act), the orders dated 1st March, 2012 and 13th March, 2013 taking cognizance in respect of charge-sheet and quashing of RC-AC1 2012-A0001 including all investigation and judicial proceedings originating therefrom.

2. Learned counsel for the Petitioner contends that it is the admitted position that the Petitioner is a Joint Secretary level officer of the Central Government and in view of Section 6(A) of the DSPE Act, 1946 no enquiry or investigation could be initiated against him for an offence falling under the Prevention of Corruption Act, 1988 (in short the PC Act) without the previous approval of the Central Government. In the above-mentioned case not only enquiry and investigation were initiated which culminated into filing of a charge-sheet and taking of the cognizance thereon in gross violation of Section 6(A) of the DSPE Act, 1946. This Court in Dr. R.R. Kishore Vs. CBI 142 (2007) DLT 702 quashed the investigation committed in breach of the mandatory provision of Section 6(A) of the DSPE Act and directed the Respondent to reinvestigate the matter in case approval under Section 6(A) of the DSPE Act was granted by the Central Government. Despite the fact that the Petitioner brought to the notice of the CBI, even prior to his arrest, that the approval under Section 6(A) of the DSPE Act was mandatory, the CBI in complete violation of the DSPE Act and the decision of this Court continued with the investigation and filed the charge-sheet. Even if the contention of the CBI was to be accepted that the time was short and they had to lay a trap to catch a public servant red-handed as per the CBI Crime Manual, the CBI could have taken the necessary approval before the arrest of the Petitioner even after start of investigation. The provisions in the CBI Crime Manual have been held to be statutory and imperative as per the decision of the Hon'ble Supreme Court in Vineet Narayan Vs. Union of India (1998) 1 SCC 226. Further at the time of registration of FIR, there was no information available with the CBI or anyone else to predict that they will lay a trap and such trap would be successful or there will be arrest made at the spot while accepting or attempting to accept illegal gratification as the source information did not inform how and at what time the alleged illegal gratification was going to be transferred from co-accused Hemant Gandhi to Lallan Ojha. Further in the present case no arrest was made while accepting or attempting to accept illegal gratification and thus the basic ingredients required for invoking sub-Clause 2 of Section 6(A) DSPE Act were not attracted in the present case. The proceedings conducted by the CBI on 2nd January 2012 in pursuance of RC-AC1 2012-A0001 cannot be termed as trap proceedings involving arrest on the spot while receiving or attempting to receive illegal gratification. Though CBI claims that the entire investigation started on the basis of source information on 2nd January, 2012 and it was not aware of the intercepted conversations till 6th January, 2012, however the same is belied by its own documents which show that on 4th January, 2012 CBI recorded specimen voice samples of accuseds Lallan Ojha, Hemant Gandhi, Dilip Aggarwal along with specimen voice sample of one Rajesh Verma driver of accused Hemant Gandhi and Reena Gandhi wife of accused Hemant Gandhi at CFSL. Reliance is also placed on Ms. Mayawati Vs. Union of India and Ors. (2012) 8 SCC 106 wherein the Hon'ble Supreme Court quashed the second FIR being in violation of the mandatory provisions of Section 5 & 6 of the DSPE Act. Relying upon General Officer Commanding, Rashtriya Rifles Vs. Central Bureau of Investigation and Anr. (2012) 6 SCC 2008 it is contended that if the law requires sanction and the Court proceeds against a public servant without sanction, the public servant has a right to raise the issue of jurisdiction as the entire action may be rendered void ab-initio for want of sanction. Reliance is also placed on Krishan Murari Lal Sehgal Vs. State of Punjab (1997) 2 SCC 587 and H.M. Caire Vs. Union of India and Ors. 2008 (Suppl) GLT 446. Reliance is also placed on Krishan Murari Lal Sehgal Vs. State of Punjab (1997) 2 SCC 587 wherein the Hon'ble Supreme Court held that previous approval does not mean subsequent ratification and H.M. Caire Vs. Union of India and Ors. 2008 (Suppl) GLT 446 wherein the Guwahati High Court quashed the investigation conducted by the Respondent CBI being in derogation of mandate of Section 6(A) of the DSPE Act.

6. Before adverting to the contention of the learned counsel for the Petitioner regarding the judgment of this Court in R.R. Kishore (supra), it would be relevant to note the facts therein. In the said case one Mr. Handa was running a diagnostic centre and was allegedly conducting pre-natal test to determine the sex of the foetus, which could ultimately result in female foetus. The Petitioner therein demanded Rs. 80,000/- from Shri Handa to put his case right which was to be paid in two lots of Rs. 40,000/- each. At that point of time Shri Handa got a complaint registered with the CBI on 16th December, 2004 at 2.00 PM. In the said case no time was given by R.R. Kishore when the complainant therein had to bring the money. Thus, the CBI without prior approval registered the FIR without any preliminary enquiry and proceeded to lay a trap. For the said purpose the complainant therein was made to speak with the Petitioner therein over the phone which conversation was allegedly recorded. During the conversation, the Petitioner therein agreed to accept a certain sum of money in the evening of 16 th December, 2004 and thus the concerned Inspector proceeded with the pre- trap formalities and conducted the trap. Shri Handa met the Petitioner therein on 14th December, 2004 and the Petitioner therein informed him that the members of the appropriate authority had become corrupt, were demanding Rs. 20,000/- each and therefore the Petitioner demanded a sum of Rs. 80,000/- from Shri Handa in two-three days. The complainant also alleged that the Petitioner therein acceded to the complainant's request of paying the same in two installments. It is thus apparent that there was no urgency as no time for acceptance of illegal gratification was fixed and the same was fixed on the telephone after registration of FIR when the complainant was made to talk to the Petitioner therein on the telephone which conversation was allegedly recorded. It is in this light this Court held that Section 6(A)(1) of DSPE Act is mandatory in nature and in the said case the question of applicability of Section 6(A)(2) of DSPE Act did not arise. Thus the reliance of the Petitioner on R.R. Kishore (supra) is misconceived.

7. Whether sub-Section (1) or sub-Section (2) of Section 6(A) of the DSPE Act is applicable will have to be determined on the facts of the case. Section 6(A) of the DSPE Act reads as under:

"6A. Approval of Central Government to conduct inquiry or investigation (1) The Delhi Special Police Establishment shall not conduct any enquiry or investigation into any offence alleged to have been committed under the Prevention of Corruption Act,1988 (49 of 1988) except with the previous approval of the Central Government where such allegation relates to
SEARCHES AND SEIZURES ........
13.9 ........
(d) In case during the course of a search/investigation/enquiry, the involvement of an Officer of the level of Joint Secretary and above becomes apparent, the inquiry/investigation against the latter would be initiated only after obtaining permission u/s 6-A of DSPE Act."

11. Learned counsel for the Petitioner has strenuously relied upon guideline 13.9(d) stating that even after the start of search/ investigation/ enquiry if the involvement of the officer of Joint Secretary level becomes apparent, it is mandated that the enquiry/ investigation against the latter would be initiated only after obtaining permission under Section 6(A) of the DSPE Act. Learned counsel for the Respondent contends that in the present case the investigation qua the Petitioner started immediately on registration of FIR as the Petitioner's involvement was known from the source information itself and he was named in the FIR as accused No.1. Unfortunately on the raids being conducted on that date the Petitioner could not be arrested as he had avoided the same by getting admitted in the hospital and in such an eventuality guideline 13.9(d) has no application. Having read Clause (d) of guideline 13.9 it is apparent that the same would have application in a case where not at the outset but during the course of a search/ investigation/ inquiry, the involvement of an officer of the level of Joint Secretary and above becomes apparent. In the case in hand, the Petitioner was named as accused No.1 on the day one and hence it cannot be said that his involvement came to be revealed later on and thus before arrest compliance of Section 6(A)(1) of the DSPE Act ought to have been made. In the present case admittedly no enquiry was conducted prior to the registration of FIR and on registration of FIR the investigation commenced. In H.N. Rishbud Vs. State of Delhi (2007) 15 SCC 699 the Hon'ble Supreme Court defined investigation as the collection of entire material for the purpose of laying a charge-sheet. It was held: