S M Batra vs Cbi
2012 Latest Caselaw 1399 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

+     W.P.(CRL) 1296/2010

%                                         Reserved on: 17th February, 2012
                                          Decided on: 29th February, 2012

S M BATRA                                           ..... Petitioner
                   Through:    Mr. Harish Salve, Sr. Adv. with Mr. Anadi
                               Chopra, Mr. Ashish Garg, Mr. Kripa Pandit,
                               Mr. Girish, Mr. Surjeet Singh, Advs.
                   versus

CBI                                                    ..... Respondent

Through: Mr. P.K. Sharma, Standing Counsel for CBI.

Coram:

HON'BLE MS. JUSTICE MUKTA GUPTA

1. By this petition the Petitioner seeks setting aside of order dated 21st

August, 2003 directing framing of charge against the Petitioner and other co-

accused under Section 120B IPC read with Section 9 of the Prevention of

Corruption Act, 1988 and the charge framed on 3rd September, 2003.

2. Learned counsel for the Petitioner contends that even taking the

allegations on their face value, there is no allegation that the Petitioner

misused his official position as OSD to the then Governor of the Haryana.

Section 9 of Prevention of Corruption Act, 1988 (in short „PC Act‟) is not

attracted to the facts of the case. Further the allegations against the

Petitioner are on the basis of the statement of O.P. Sahni, who is an

accomplice, and the statement of this witness is primarily hearsay. There is

no other independent evidence. Entire role has been attributed to Anup

Shrivastava, who was close to the family of the then Minister of Urban

Development Smt. Sheila Kaul. The Petitioner was a stranger and was

neither close to the family of Smt. Sheila Kaul nor had any role to play in the

matter. Further there is no evidence on record to show that the Petitioner

was benefited in any manner. The act alleged was not connected with the

office of the Petitioner and thus it can be said to be an act of any other

ordinary person and Section 9, PC Act is not attracted. The necessary

ingredients of Section 9, PC Act involve the exercise of personal influence

over the public servant for doing or forbearing to do an act. From the

evidence on record, there is no allegation of favour or disfavour by the

Petitioner.

3. Learned counsel for the CBI on the other hand contends that OP Sahni

is a prosecution witness. As per OP Sahni, the Petitioner was an

acquaintance as OSD to the Governor of Haryana. In view thereof Anup

Srivastava and the Petitioner came to the Society‟s office where Anup

Shrivatava and the Petitioner stated to them that they will have to give

membership to the family members of Smt. Sheila Kaul and Rs. 5 lakhs in

cash to the accused Rattan Kaul. The co-accused Anup Shrivastava further

stated that they would go to the residence of Smt. Sheila Kaul in the evening

and there money could be paid to Rattan Kaul. Thus, R.P. Gupta and Hawa

Singh decided to pay the money in the interest of society. R.P. Gupta and

his son I.P. Gupta arranged money and then they all went to 9, Moti Lal

Nehru Marg where the Petitioner and Anup Shrivasatv took Hawa Singh,

who was carrying Rs. 5 lakhs in a bag, inside the house and after sometime

Hawa Singh came out and informed that the money had been given to Rattan

Kaul as directed by Anup Shrivastava and that they will have to pay more

money in future. Despite payment, Anup Shrivastava, the Petitioner and

Rattan Kaul failed to get the society‟s work done. According to O.P. Sahni,

deal was struck with Rattan Kaul and S.M. Batra and pursuant to which an

amount of Rs. 10.94 lakhs was paid to Rattan Kaul. Thus, there is ample

evidence on record. At this stage, the Court is only required to see whether

there is prima facie evidence to proceed against the Petitioner. Further there

being no illegality or gross abuse of the process of the Court, the scope of

consideration in the present petition is limited in view of the decision of

Hon‟ble Division Bench of this Court in Anur Kumar Jain vs. CBI, 178

(2011) DLT 501.

4. I have heard learned counsel for the parties.

5. Briefly the prosecution case is that Jagjivan Cooperative Group House

Building Society (in short the „society‟) after acquiring some land in 1989 in

Vasant Kunj had applied to the DDA in 1991 for No Objection Certificate

(NOC) for starting construction of houses. However, the DDA did not issue

the NOC as the land had already been acquired in 1986. In 1993 the Society

represented to the then Minister of State of Urban Development for issuance

of NOC. The State Minister recommended the case on 25 th November, 1993

and sent the file to the Union Urban Development Minister Smt. Sheila Kaul

for her approval, which remained pending till second week of

February,1994. Co-accused R.P. Gupta, I.P. Gupta, Hawa Singh and A.K.

Gupta were office bearers of the society. The Petitioner was working as

OSD to the then Governor of Haryana. Thus R.P. Gupta, who was well

known to the Governor, met him along with O.P. Sahni then treasurer of the

society. According to the witness they used to request the then Governor for

help in getting necessary NOC issued to the society for starting the

construction of houses from DDA and Ministry of Urban Development.

According to O.P. Sahni, Smt. Prem Batra wife of the Petitioner was also

made member of the society. He further stated that sometime during

February, 1994 he was introduced to one Anup Shrivasatava. As per the

witness, who looked at the accounts of the society, he met Anup Shrivastava

at the site office at Vasant Kunj. In February 1994 Anup Shrivastava was

introduced to O.P. Sahni by some executive member whom he did not

recognize. S.M. Batra the Petitioner herein also accompanied Anup

Shrivasatava. At that time R.P. Gupta, Hawa Singh and I.P. Gupta were also

present. During discussion Anup Shrivastava stated that he was very close

to the family of Smt. Sheila Kaul and he could help them in getting the

necessary NOC issued to the society from Smt. Sheila Kaul with whom the

file was at that time pending for decision. Both Anup Srivastava and the

Petitioner stated them that they would have to give membership to the

society of the family member of Smt. Sheila Kaul. Thereafter they told them

to pay Rs. 5 lakhs in cash to Rattan Kaul. Although O.P. Sahni was against

making any payment for getting the NOC issued yet R.P. Gupta and Hawa

Singh decided that in the larger interest of the members of the society, the

payment can be made. Shri R.P. Gupta took upon himself to arrange the

amount through his own sources. Anup Srivastava told them that they could

come to the residence of Smt. Sheila Kaul at 9, Moti lal Nehru Marg in the

evening when the amount can be paid to Rattan Kaul. R.P. Gupta and his

son I.P. Gupta arranged the amount and they along with O.P. Sahni and

Hawa Singh went to 9, Moti Lal Nehru Marg in the evening where Anup

Shrivastav and S.M. Batra took Hawa Singh inside the house along with

Rs.5 lakhs whereas others waited outside. After some time Hawa Singh

returned and told that the bag containing Rs. 5 lakhs had been given to

Rattan Kaul. He further stated that as directed by Anup Shrivastava, they

will have to pay some other amount in near future if they were to get the

NOC for the society. Sometime in April, 1994 R.P. Gupta and Hawa Singh

told that Anup Shrivastava has told them to pay another sum of Rs. 5-6

lakhs. With the assurance of the members of the executive body of the

society they decided to pay the amount by way of demand draft/bankers

cheques. This amount was also arranged by R.P.Gupta from his own sources

and paid to Rattan Kaul by way of demand drafts/banker‟s cheque in the

favour of six persons, that is, Rattan Kaul, Vivek Kaul, Ashish Kaul,

Shantanu Kaul, Manju Madan and Suresh Butani within five-six day.

6. Thus it is apparent that the demand of money to be paid to Rattan Kaul

was made by the Petitioner along with the co-accused. Further at the time

when money was given, the Petitioner was present along with Anup

Shrivastava at the residence of the Minister. The Petitioner and Anup

Shrivastava accompanied Hawa Singh inside the house, who gave the

amount of Rs. 5 lakhs to Rattan Kaul. From the statement of this witness, it

cannot be said that there is no evidence against the Petitioner. Prima facie

there is sufficient evidence on record for framing charge against the

Petitioner.

7. The contention of the Petitioner that Section 9 of the PC Act is not

attracted is fallacious. Section 9 of the PC Act does not apply to public

servant alone. The word "whoever" has not been qualified to be a public

servant in Section 9 as in Section 10, PC Act. Further the alleged person

may accept or agree to accept or agree to obtain, for himself or for any other

person, any gratification whatever, as a motive or reward for inducing, by

the exercise of personal influence, any public servant whether named or

otherwise, to do or to forbear to do any official act or in the exercise of the

official functions of such public servant to show favour or disfavour to any

person. It is thus apparent that the word „whoever‟ does not qualify the

public servant who has to perform or forbear from doing the official act.

Thus „any person‟ who accepts or admits or agrees to accept or attempts to

obtain for himself or any other person would be liable to be prosecuted under

Section 9, PC Act. The Petitioner has been charged for offence under

Section 120B IPC read with Section 9 of the PC Act. From the statement of

the witness on record, it is apparent that the Petitioner was a conspirator in

demand and handing over the money to the son-in-law of the then Minister

for her to perform the official function of granting NOC to the society. I find

neither any illegality in the impugned order nor any abuse of the process of

the Court, warranting interference of this Court in exercise of its writ

jurisdiction.

Petition is dismissed.

(MUKTA GUPTA) JUDGE

FEBRUARY 29, 2012 'vn'