Delhi High Court
Rajiv Kumar Arora vs Central Bureau Of Investigation on 18 July, 2008
Author: Sudershan Kumar Misra
* THE HIGH COURT OF DELHI AT NEW DELHI
+ Crl. M.C. No.354/2008
Date of Decision : July 18, 2008
Rajiv Kumar Arora ......Petitioner
Through : Mr. Mohit Mathur &
Mr.Vikram S.Panwar,
Advocates
Versus
Central Bureau of
Investigation ......Respondent
Through : Mr. Harish Gulati &
Mr. Anindya Malhotra
Advocates for the CBI
Mr. Salinder Sharma &
Mr.Rajneesh Chaudhary,
Advocates for Dr. Vikas
Rampal
CORAM :
HON'BLE MR. JUSTICE SUDERSHAN KUMAR MISRA
1. Whether Reporters of local papers may be
allowed to see the judgment? Yes.
2. To be referred to the Reporter or not ? Yes.
3. Whether the judgment should be reported
in the Digest ? Yes.
SUDERSHAN KUMAR MISRA, J : (Oral)
1. The scope of this petition lies in narrow compass. Mr.
Mathur who appears for the complainant states that his client
had filed an FIR bearing No. RC-DAI-2007-A-0009, dated
6.2.2007 before CBI whereby he had sought to lay certain
information against two individuals namely, Mr. Mishri Lal and
Dr. Vikas Rampal. Consequent upon the investigation carried
Crl.M.C. No.354/2008 Page 1 of 4
out by CBI, final report under Section 173 Cr.P.C was filed by
the CBI before the Special Judge, CBI, Tis Hazari Courts, Delhi.
As per this report, the CBI had decided to chargesheet only one
of the two individuals against whom the report had been
lodged, namely, Mr. Mishri Lal. As regards Dr. Vikas Rampal,
who was the other person named by the complainant in the
FIR; the CBI had decided not to charge sheet him. On the basis
of this Final Report, the learned Special Judge, Delhi, passed an
order on 2.01.2008 taking cognizance of the offence under
Sections 7 and 13 (2) read with Sections 13 (1) (d) of the
Prevention of Corruption Act and directed summons to be
issued for the appearance of Mishri Lal on 22.01.2008.
2. The grievance of the petitioner, who happens to be the
complainant, is that in passing the impugned order dated 2nd
January, 2008, the aforesaid final report of the CBI under
Section 173 Cr.PC, wherein one of the persons named by the
petitioner in the FIR was not chargesheeted by the CBI, was in
effect accepted by the Special Judge, CBI. He states that since
the effect of that order was that proceedings against Dr. Vikas
Rampal were dropped, the Special Judge ought to have given
an opportunity to the petitioner/ complainant to be heard
before passing the said order. For this proposition, learned
counsel for the petitioner relies squarely on the decision of Full
Bench of the Supreme Court in the case of Bhagwant Singh
Vs. Commissioner of Police and Anr. 1985 SCC (Crl.) 267
where in paragraph 4, it is stated, inter alia, as follows:
"The report may on the other hand state that, in
Crl.M.C. No.354/2008 Page 2 of 4
the opinion of the police, no offence appears to
have been committed and where such a report
has been made, the Magistrate again has an
option to adopt one of three courses : (1) he may
accept the report and drop the proceeding or (2)
he may disagree with the report and taking the
view that there is sufficient ground for proceeding
further, take cognizance of the offence and issue
process or (3) he may direct further investigation
to be made by the police under Sub-section (3) of
Section 156. Where, in either of these two
situations, the Magistrate decides to take
cognizance of the offence and to issue process,
the informant is not prejudicially affected nor is
the injured or in case of death, any relative of the
deceased aggrieved, because cognizance of the
offence is taken by the Magistrate and it is
decided by the Magistrate that the case shall
proceed. But if the Magistrate decides that there
is no sufficient ground for proceeding further and
drops the proceeding or takes the view that
though there is sufficient ground for proceeding
against some, there is no sufficient ground for
proceeding against others mentioned in the First
Information Report, the informant would certainly
be prejudiced because the First Information
Report lodged by him would have failed of its
purpose, wholly or in part.......
We are accordingly of the view that in a case
where the Magistrate to whom a report is
forwarded under sub-section (2) (i) of Section 173
decides not to take cognizance of the offence and
to drop the proceeding or takes the view that
there is no sufficient ground for proceeding
against some of the persons mentioned in the
First Information Report, the Magistrate must give
notice to the informant and provide him an
opportunity to be heard at the time of
consideration of the report."
3. Learned counsel for the CBI, whilst maintaining his
client's position with regard to the aforesaid report under
Section 173 Cr.P.C, nevertheless, does not seriously controvert
the proposition of law laid down in this authority.
4. In that view of the matter, and without going into any
other aspect, the impugned order dated 2.01.2008 is set aside
Crl.M.C. No.354/2008 Page 3 of 4
on the sole ground that since the trial court has decided not to
proceed against one of the two persons named in the FIR,
albiet on the report under Section 173 Cr.PC filed by the CBI
before it; the court ought to have given notice to the informant
and provided him an opportunity to be heard at the time of
consideration of the said report. Needless to say, once the
requisite opportunity has been granted, and after hearing the
informant, it would be open to the Special Judge to take a
decision in the matter on its own merits.
5. Keeping in view the fact that this is a matter which is
being tried by Special Judge, CBI, it is directed that the
requisite opportunity be granted to the informant/petitioner
herein expeditiously. Learned counsel for the petitioner states
that he shall not seek any adjournment in this matter.
Consequently, the impugned order and all the proceeding
pending before the trial court are set aside.
6. Petition is disposed of.
7. Trial Court Record be sent back.
8. Dasti.
Sudershan Kumar Misra, J.
July 18, 2008
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