State Through Central Bureau Of ... vs Inder Kumar Sharma
2009 Latest Caselaw 4718 Del

*        IN THE HIGH COURT OF DELHI AT NEW DELHI

%                    Judgment Reserved on: 17th November ,2009
                    Judgment Delivered on: 19th November, 2009


+               CRL.REV.P.403/2003 & CRL.M.A.717/2003


        STATE THROUGH CENTRAL BUREAU OF INVESTIGATION
                                             ..... Petitioner
                      Through:  Mr.Vikas Pahwa, ASC with
                                Mr. Biswajit Kumar Patra,
                                Mr.Sarthak Nayak, Advocates.
                      Versus

        INDER KUMAR SHARMA                   ..... Respondents
                      Through:        Mr.Manish Vashist &
                                      Mr.Sameer Vashist, Advocates.
CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR

     1. Whether the Reporters of local papers may be allowed to see
        the judgment?

     2. To be referred to the Reporter or not?             Yes

     3. Whether the judgment should be reported in the Digest?
                                                       Yes

INDERMEET KAUR, J.

1. Central Bureau of Investigation (CBI) has impugned the order

dated 31.1.2003 passed by the Special Judge, CBI wherein the non-

applicant Inder Kumar Sharma had been discharged on the ground

of an invalid sanction under Section 197 of the Cr.P.C.

2. Petitioner at the relevant was the Deputy Director (Lands) in

the Delhi Development Authority (DDA). Allegations, in short,

against him are that he i.e. Inder Kumar Sharma along with three

other co-accused namely D.P.Bahuguna, Om Prakash Saklecha and

Satbir Singh Tyagi had conspired with each other during the month

of August 1978 to show the unauthorized possession of co-accused

Om Prakash Saklecha S/o Sh.V.K.Saklecha, the then Chief Minister

of Madhya Pradesh over DDA land i.e. a 150 square yards plot in

Ashok Nagar, Block D, Naiwala Estate. In furtherance of the

common object of this conspiracy the co-accused along with the

present petitioner had manipulated false proceedings, assessed

damages and initiated proceedings for eviction so as to allot a

commercial plot to Om Prakash Saklecha.

3. On 16.8.1978 Sh. Prakash Chand Gupta, Tehsildar posted in

the DDA was summoned in the room of D.P.Bahuguna where

L.K.Joshi and the present petitioner were also present. A slip

containing the name of Saraswati Devi Bolya and Ravinder Kumar

was given to him by Mr.Bahuguna with the direction to get a

complaint prepared showing the unauthorized possession over the

said DDA land by those persons and to initiate eviction proceedings

against them as also to impose damages against them. The

presence of the petitioner in this meeting was the first allegation

levelled against him.

4. The second allegation leveled against him is that on

16.10.1978 Sh.Om Prakash Saklecha had appeared before Estate

Office and produced a power of attorney dated 12.10.1978

purported to have been issued by Sarsawati Devi in his favour

wherein it had been claimed that she was in possession of 150 sq.

yards of land of which 50 sq. yards had been built up and 100

sq.yards of land is vacant; signatures of Saraswati Devi appearing

on this power of attorney were forged by O.P.Saklecha; this power

of attorney was attested by Mr.R.S.Khanna, M.M. Inder Kumar

Sharma the present petitioner had made a false endorsement to

the effect that Saraswati Devi had signed on this power of attorney

in his presence.

5. This was the sum and substance of the allegations which had

been leveled against the present petitioner.

6. The fate of the other three co-accused is as follows :-

Sh.D.P.Bahuguna stands discharged vide a judgment of this

Court reported in 1996 II AD( Delhi) 293 Dwarika Prasad Bahuguna

vs. The State; he has also died. Sh.Satbir Singh Tyagi has also

since died. The present petitioner stood discharged by the

impugned order. O.P.Saklecha was the only person facing trial and

vide judgment dated 31.8.2005 he also stands acquitted.

7. Counsel for the petitioner has drawn the attention of the

Court to the order dated 08.3.1984 passed by the Special Judge.

This was the first round of the litigation vide which the petitioner

stood discharged for an invalid sanction under Section 6 of the

Prevention of Corruption Act, 1988 (hereinafter referred to as 'the

P.C.Act). It had been held that the petitioner being an employee of

the Government of Madhya Pradesh the Sanctioning Authority was

the State Government and not the Central Government; the

sanction qua the petitioner was invalid; he was accordingly

discharged.

8. Supplementary charge sheet dated 11.12.1995 had

thereafter been filed against the petitioner. He had retired from

service on 31.12.1993; in these circumstances the charge sheet

had been filed without a sanction because as per the Department

no sanction for prosecution was required for a retired public

servant.

9. On behalf of the petitioner it is submitted that under Section

197 of the Cr. P.C. a sanction is required for a past government

employee as well; for the offences punishable under the Indian

Penal Code a sanction is pre-requisite for an erstwhile public

servant as well but the supplementary charge sheet had been filed

without the requisite sanction which itself invalidates the charge-

sheet ipso facto. Even otherwise the charge of conspiracy under

Section 120-B of the IPC could not have been proved in the absence

of any other co-accused; a conspiracy has to be between one or

more persons and a single person by himself/herself cannot enter

into a conspiracy; this is evident from the definition of criminal

conspiracy as contained in Section 120 A of the IPC; for this

proposition reliance has been placed upon AIR 1956 SC 33

Topandas vs. State of Bombay. On merits also no case is made out

against the present petitioner as the judgment dated 31.8.2005

while acquitting co-accused O.P.Saklecha had disbelieved the

allegedly forged document i.e. the power of attorney Ex.PW-7/C

purported to have been forged by O.P.Saklecha and verified by the

present petitioner; this document having been disbelieved by the

Court of Special Judge against which no appeal has been preferred

by the department; it is clear that that the same document cannot

be looked into qua the role of the present petitioner. Apart from

this the only other allegation against the petitioner that he had

participated in the meeting on 16.8.1978 which circumstance had

also been disbelieved qua the co-accused and would not have any

bearing qua the role of the present petitioner. The incident relates

to the year 1978 i.e. the more than 31 years old and even on

account of delay this petition is liable to be dismissed. Reliance has

been placed upon JT 2008(8) SC 109 Pankaj Kumar vs. State of

Maharashtra & Ors. to support this submission.

10. Counsel for the CBI has not disputed the factual position as

detailed above. It is not in dispute that out of the four persons who

had been charged sheeted two had died, one i.e. Om Prakash

Saklecha stands acquitted and the present petitioner had stood

discharged vide order dated 31.1.2003 which order has become the

subject-matter of this revision petition. It is also not in dispute that

the disputed document i.e. power of attorney Ex.PW-7/C purported

to have been forged by O.P.Saklecha was not relied upon by the

Special Judge. The Court had disbelieved this document; this was

primarily for the reason that the specimen handwriting of

O.P.Saklecha had been obtained during the course of investigation

by the Investigating Officer without prior permission of the Court; in

view of the judgment of the Supreme Court reported in 1994 5SCC

152 Sukhvinder Singh & Ors. vs. State of Punjab such a specimen

was disregarded. On merits also the power of attorney had been

disbelieved as no witness i.e. either Saraswati Devi, the executant

of the document or Shri R.S.Khanna, M.M. who had identified the

deponent of this power of attorney had been produced by the

prosecution as a witness.

11. This being the scenario, it is clear that the revision petition

filed by the Department also has to meet the same fate. The

acquittal of Om Prakash Saklecha while disbelieving this power of

attorney which is the substantial allegation leveled against the

petitioner where he had fraudulently verified the presence of

Sarsawati Bolya having been disbelieved by the Special Judge and

the matter having attained finality; the CBI not having filed any

appeal against the said order, it is clear that this allegation cannot

be proved by the prosecution against the petitioner as well. The

other allegation of the petitioner having participated in the meeting

dated 18.8.1978 has also to necessarily fall as this meeting was a

pre-requisite which had culminated in the alleged forgery of this

power of attorney. These circumstances have been disbelieved in

the judgment of the Special Judge. In this view of the matter, even

assuming that the order dated 31.1.2003 discharging the petitioner

for an invalid sanction is liable to be set aside, it would have no

purpose as the substance of the allegation against the petitioner

stands disproved. As such it is not necessary to go into either the

question of a valid sanction qua the petitioner or on the impact of

delay as on merits this court feels that in the factual matrix which

has been built up the impugned order dated 31.1.2003 calls for no

interference.

12. Revision petition is accordingly dismissed.

(INDERMEET KAUR) JUDGE 19th November, 2009 nandan