Akhand Pratap Singh vs Cbi
2011 Latest Caselaw 5291 Del

*                  IN THE HIGH COURT OF DELHI AT NEW DELHI

+                           CRL.M.C. 3380/2011


                                       Date of Decision : 01.11.2011

         Akhand Pratap Singh                             ..... Petitioner
                          Through: Mr. U. U. Lalit, Sr. Adv. with
                                   Mr. Harish K. Sharma, Adv.

                       versus

         CBI                                            ..... Respondent

Through: Ms. Sonia Mathur, Adv.

CORAM :

HON'BLE MR. JUSTICE V.K. SHALI

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

2. To be referred to the Reporter or not ?

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

V.K. SHALI, J. (oral)

1. Issue notice.

2. Ms. Sonia Mathur, the learned Counsel accepts notice on behalf

of CBI

3. Rule.

4. With the consent of the parties, I proceed to decide the matter

finally.

5. I have heard the learned senior counsel Mr. U.U. Lalit for the

petitioner and Ms. Sonia Mathur, the learned counsel for the

respondent and have gone through the impugned order.

6. The petitioner has challenged the order dated 24.05.2011, by

virtue of which the learned Special Judge, CBI-II had dismissed

the application of the petitioner for dropping the proceedings

against him on the ground that the question of consent of the

State Government as per Section 6 of the Delhi Special Police

Establishment Act, 1946 stands settled.

7. Brief facts of the case are that a case bearing R.C. No.

2(A)2005/CBI/SPE-ACU-V was registered against the present

petitioner on 19.03.2005 under Section 13(2) read with section

13(1)(e) of the Prevention of Corruption Act, 1988 on the

allegation that the present petitioner, former Chief Secretary of

U.P. and an IAS Officer of Cadre (1967) during the period

01.01.1978 to 31.05.1991, had allegedly amassed assets

disproportionate to the known sources of his income which were

to the tune of `21,45,872/- in the form of movable and

immovable properties in his name and in the name of his family

members and others. It was further alleged in the FIR that the

petitioner had illegally earned vast sums of money during his

service tenure and he was suspected to have laundered the

same in immovable assets in the name of his married daughters,

family members and others through various private limited

companies. Various other allegations were also made which are

not very relevant for the purpose of deciding the present issue.

8. The petitioner had filed a writ petition in Allahabad High Court

praying for quashing of the FIR as well as for grant of bail on

account of the fact that the provisions of Section 438 Cr.P.C. are

not applicable to the State of U.P. One of the pleas which was

raised in the writ petition was that the respondent/CBI could not

have investigated into the matter as there was a lack of consent

required under Section 6 of the Delhi Special Police

Establishment Act, 1946. This plea of the petitioner was negated

by the Allahabad High Court. Feeling aggrieved, the petitioner

had preferred an SLP in the Supreme Court bearing no.

6928/2009.

9. In the meantime, investigations by the CBI culminated into filing

of a charge sheet in the Court of Special judge, Delhi. The

petitioner had filed a petition in the High Court of Delhi seeking

issuance of a writ of mandamus to the respondent to enforce the

provisions of Section of 6 of the Delhi Special Police

Establishment Act, 1946 and further for quashing of all the

actions taken by the respondent no.3/CBI. It was contended

that CBI acted in violation of the specific mandate of law by the

registration of FIR No. 2(A)/2005/CBI/SPE-ACU-V. This writ

petition bearing W.P.(Crl.) No. 1073/2008 was also dismissed by

the learned Single Judge of this Court on 5th March, 2009.

10. Feeling aggrieved by this order also, an SLP was preferred

before the Supreme Court bearing no. 2636/2009 challenging

the order of High Court of Delhi.

11. Both the orders of Allahabad High Court as well as the High

Court of Delhi based on two separate writ petitions were

dismissed by the Supreme Court vide order dated 31.08.2009

with certain liberty having been granted to the petitioner. The

order reads as under:

"Learned senior counsel appearing for the petitioner seeks leave of the Court to withdraw the Special Leave Petitions. Permission granted. The Special Leave Petitions are, accordingly, dismissed as withdrawn. However, the petitioner would be at liberty to raise all the questions available to him in law, in accordance with law at the appropriate stage."

Sd/-

Justice V.S.Sirpurkar Justice Deepak Verma

12. In view of the liberty having been granted, the petitioner filed

an application before the learned Special Judge, Delhi raising the

question of non-grant of consent by the State of U.P. as a

ground for dropping the proceedings against him. It was on the

basis of this application that the impugned order has been

passed from which the petitioner is feeling aggrieved. The

learned Special Judge in the impugned order has observed that

the Special Leave Petition was dismissed by the Apex Court, and

therefore, in such circumstances the order of High Court of Delhi

remains binding upon the Special Court and the issue regarding

the consent of State Government as per Section 6 of the Delhi

Special Police Establishment Act, 1946 stands settled.

13. It was contended by Mr. Lalit, the learned senior counsel for the

petitioner that the conclusion arrived at by the learned Special

Judge is totally erroneous as the question of grant of consent

cannot be treated to have been settled in the light of the fact

that the Apex Court had given the liberty to the petitioner to

raise all such pleas available to him in accordance with law at an

appropriate stage. It was, therefore, submitted by Mr. Lalit, the

learned senior counsel for the petitioner that the liberty having

been given to the petitioner, he was well within his right to raise

the question of non-grant of consent by the State of U.P. before

the learned Special Judge, though the learned Special Judge

might have disagreed with the petitioner regarding the stage at

which it could have been raised, but he could not have observed

that the matter stands concluded by the Apex Court, and

therefore, he is bound by the decision of Delhi High Court.

14. It is contended that in case the impugned order is not set aside,

it will do incalculable harm to the petitioner and it would be

contrary to the directions passed by the Apex Court giving the

liberty to the petitioner, which will be rendered otiose.

15. Ms. Sonia Mathur, the learned counsel for the CBI has contended

that though the opportunity had been granted to the petitioner

but this opportunity was confined to be availed only at the

appropriate stage. It was contended by her that in the instant

case 'at the appropriate stage' would mean a stage when the

parties have adduced their evidence meaning thereby that this

issue could have been raised by him only at the stage of final

arguments.

16. I have carefully considered the submissions raised by the

respective sides. I have also perused the record and the order

passed by the Apex Court.

17. The observation passed by the learned Special Judge that the

question of grant of consent by the State Government stands

settled by the High Court of Delhi and the said finding is binding

on him, is erroneous, in the light of the fact that though the

Special Leave Petition filed by the petitioner in the Apex Court

was withdrawn but what is noticeable is that the Apex Court had

given an liberty to the petitioner to raise all such questions

available to him in law at an appropriate stage which obviously

would include the question of grant or non-grant of consent by

the State of U.P. for registering, prosecuting and filing the

challan against the petitioner, though it was to be done by him

at an appropriate stage. A question may arise as to what is the

appropriate stage. Obviously the appropriate stage in the

present case would be the stage of framing of charge. It has

been held by the Apex Court that if such an opportunity has

been given to a party to raise the plea or to file afresh the writ

petition then such a liberty cannot be curtailed. Reliance in this

regard can be placed on case titled Sarguja Transport Service

Vs. State Transport Appellate Tribunal, M.P. (1987) 1 SCC

5. The only question which remains to be seen is as to whether

the question of dropping the proceedings against the petitioner

for want of consent under Section 6 of the Delhi Special Police

Establishment Act, 1946 was raised at an appropriate stage or

not. In this regard, it is observed that there are various stages

when an accused can come out of the dragnet of the criminal

trial. One of the important stages at which he can come out is

certainly at the stage of framing of charges. In this regard, the

provisions of Section 227 and 228 Cr.P.C. are relevant which are

reproduced as under:

"227. Discharge.-- If, upon consideration of the record of the case and the documents submitted herewith, and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing.

228. Framing of charge.--(1) If, after such consideration and hearing as aforesaid, the Judge is of opinion that there is ground for presuming that the accused has committed an offence which-

(a) Is not exclusively triable by the Court of Session, he may, frame a charge against the accused and, by order, transfer the case for trial to the Chief Judicial Magistrate (or any other Judicial Magistrate of the first class and direct the accused to appear before the Chief Judicial Magistrate, or, as the case may be, the Judicial Magistrate of the first class, on such date as he deems fit, and thereupon such Magistrate) shall try the offence in accordance with the procedure for the trial of warrant- cases instituted on a police report;

(b) is exclusively triable by the court, he shall frame in writing a charge against the accused.

12. Therefore, in my considered opinion, the stage of framing of

charges would have been an appropriate stage for the petitioner

to raise the plea for dropping of proceedings against him. In the

instant case, the petitioner filed an application for dropping the

proceeding against him without permitting the case to arrive at

the stage of the framing of charges. Even if such an application

was filed by the petitioner without their being an appropriate

stage, I feel that only two options were available to the learned

Special Judge either to postpone the decision on the application

till the framing of the charges or to alternatively reject the

application with the observations that the petitioner was free to

file an application raising the question of non-grant of consent at

the stage of framing of charges. On the contrary it seems that

the learned Special Judge had fallen into an error by observing

that by withdrawing the special leave petition in the Apex Court,

the petitioner had foreclosed all his rights to raise such plea and

moreover that his right to raise the plea stood concluded in

terms of the judgment of the High Court of Delhi. I,

accordingly, feel that the impugned order is not sustainable in

the eyes of law and is accordingly set aside with the direction to

the learned Special Judge to consider the application of the

petitioner for dropping the proceedings or in other words

consider the question of the discharge of the accused on the

ground that there was a lack of consent in terms of Section 6 of

the Delhi Special Police Establishment Act, 1946 at the stage of

framing of the charge. Accordingly, the impugned order is not

sustainable and is set aside.

13. Expression of an opinion herein before may not be treated as an

expression on the merits of the case and the question of non-

grant of consent shall be decided by the learned Special Judge

without being influenced in any manner whatsoever by the

observations of this Court.

V.K. SHALI, J NOVEMBER 01, 2011 KP