Sheila Kaul Thr. Ms Deepa Kaul vs State Thr. Cbi
2013 Latest Caselaw 841 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI


+    CRL.M.C. 1816/2012 & Crl.M.A. 6432/2012 (stay)

%                                         Reserved on: 31st January, 2013
                                          Decided on: 20th February, 2013

       SHEILA KAUL THR. MS DEEPA KAUL
                                                             ..... Petitioner
                          Through      Ms. Rebecca M. John, Mr. Harsh
                                       Bora, Advs.
                          versus

       STATE THR. CBI
                                                            ..... Respondent

                          Through      Ms. Sonia Mathur, SC for CBI.
Coram:
HON'BLE MS. JUSTICE MUKTA GUPTA

1. By the present petition the Petitioner challenges the order dated 2 nd February, 2012 directing framing of charge against the Petitioner for offences under Section 120B IPC read with Section 7, 8, 9, 10, 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1947 (in short the PC Act) and also the substantive offences under these Sections.

2. Learned counsel for the Petitioner contends that the Petitioner at best used her discretionary power to make out of turn allotments following the rules empowering her to do so. Even if the Petitioner committed any violation of the rules, the same cannot be a subject of criminal investigation as no offence can be said to be made out. There is no material on record to show that any of the witnesses met the Petitioner or that she accepted the bribe. Despite extensive investigation there is no identifiable claimant who

claims that his interest was damaged by the alleged malicious action of the Petitioner. Further the notification dated 21st June, 1997 titled as "The Out of Turn Allotments of Government Residences (Validation) Ordinance, 1997" bars lodging of any suit/ legal proceedings relating to the out of turn allotments instituted prior to the commencement of the Ordinance. Further Rule SR 317 B-25 relied by the prosecution is in the nature of a broad guideline and not a statutory provision. Further the Petitioner in most cases has recorded on the application "may be allotted". Thus, the matter was left to the discretion of the officers concerned to verify the facts and take a decision. Merely because the Petitioner could not control her staff, she cannot be fastened with the criminal liability. When bona-fide mistakes were found out, the Petitioner herself wrote to the Hon'ble Prime Minister stating that she was taking steps to streamline the procedure adopted by the Ministry. Reliance is placed on State of Karnataka Vs. Arun Kumar Aggarwal AIR 2000 SC 411; R. Sai Bharati Vs. J. Jayalalitha JT 2003 (9) SCC 343; Common Cause, A Registered Society Vs. Union of India & Ors. 1991 SCC (Crl) 1196 and Sheila Kaul Vs. Shiv Sagar Tiwari AIR 2002 SC 2868.

3. Learned counsel for the CBI on the other hand contends that the Petitioner as Union Minister for Urban Development committed illegalities during her tenure in connivance with her immediate staff i.e. personal secretary and the personal assistant and made out of turn allotments. The procedure prescribed was not followed as the applications were filed directly to the Petitioner, who allowed the same without being processed by the officers concerned and send the same to the officers for implementation

thereon. Further most of the accommodations allotted were of Type I to IV which allotments were required to be done by the Minister of State and were not in the domain of Union Minister for Urban Development as per the allocation of business rules. During investigation witnesses have been examined who have stated that they paid money to the staff of the Petitioner for out of turn allotment. Since there is seldom direct evidence of conspiracy available, the same has to be inferred from the circumstances attending the case. Though the Petitioner had the discretionary quota of 20%, the Petitioner made 70% out of turn allotments. Absurd reasons were accepted by the Petitioner to justify the out of turn allotments. It is contended that no case for exercise of inherent power is made out and reliance is placed on Amit Kapoor Vs. Ramesh Chander & Anr. 2012 (9) SCALE 58.

4. I have heard learned counsel for the parties. Before adverting to the facts of the case it would be appropriate to consider the scope of interference by this Court. In Amit Kapoor Vs. Ramesh Chander & Anr. (supra) their Lordships while dealing with the issue of interference at the stage of charge in a petition under Section 482 Cr.P.C. held:

"19. Having discussed the scope of jurisdiction under these two provisions, i.e., Section 397 and Section 482 of the Code and the fine line of jurisdictional distinction, now it will be appropriate for us to enlist the principles with reference to which the courts should exercise such jurisdiction. However, it is not only difficult but is inherently impossible to state with precision such principles. At best and upon objective analysis of various judgments of this Court, we are able to cull out some of the principles to be considered for proper exercise of jurisdiction, particularly, with regard to quashing of charge

either in exercise of jurisdiction under Section 397 or Section 482 of the Code or together, as the case may be:

1) Though there are no limits of the powers of the Court under Section 482 of the Code but the more the power, the more due care and caution is to be exercised in invoking these powers. The power of quashing criminal proceedings, particularly, the charge framed in terms of Section 228 of the Code should be exercised very sparingly and with circumspection and that too in the rarest of rare cases.

2) The Court should apply the test as to whether the uncontroverted allegations as made from the record of the case and the documents submitted therewith prima facie establish the offence or not. If the allegations are so patently absurd and inherently improbable that no prudent person can ever reach such a conclusion and where the basic ingredients of a criminal offence are not satisfied then the Court may interfere.

3) The High Court should not unduly interfere. No meticulous examination of the evidence is needed for considering whether the case would end in conviction or not at the stage of framing of charge or quashing of charge.

4) Where the exercise of such power is absolutely essential to prevent patent miscarriage of justice and for correcting some grave error that might be committed by the subordinate courts even in such cases, the High Court should be loathe to interfere, at the threshold, to throttle the prosecution in exercise of its inherent powers.

5) Where there is an express legal bar enacted in any of the provisions of the Code or any specific law in force to the very initiation or institution and continuance of such criminal proceedings, such a bar is intended to provide specific protection to an accused.

6) The Court has a duty to balance the freedom of a person and the right of the complainant or prosecution to investigate and prosecute the offender.

7) The process of the Court cannot be permitted to be used for an oblique or ultimate/ulterior purpose.

8) Where the allegations made and as they appeared from the record and documents annexed therewith to predominantly give rise and constitute a 'civil wrong' with no 'element of criminality' and does not satisfy the basic ingredients of a criminal offence, the Court may be justified in quashing the charge. Even in such cases, the Court would not embark upon the critical analysis of the evidence.

9) Another very significant caution that the courts have to observe is that it cannot examine the facts, evidence and materials on record to determine whether there is sufficient material on the basis of which the case would end in a conviction, the Court is concerned primarily with the allegations taken as a whole whether they will constitute an offence and, if so, is it an abuse of the process of court leading to injustice.

10) It is neither necessary nor is the court called upon to hold a full-fledged enquiry or to appreciate evidence collected by the investigating agencies to find out whether it is a case of acquittal or conviction.

11) Where allegations give rise to a civil claim and also amount to an offence, merely because a civil claim is maintainable, does not mean that a criminal complaint cannot be maintained.

12) In exercise of its jurisdiction under Section 228 and/or under Section 482, the Court cannot take into consideration external materials given by an accused for reaching the conclusion that no offence was disclosed or

that there was possibility of his acquittal. The Court has to consider the record and documents annexed with by the prosecution.

13) Quashing of a charge is an exception to the rule of continuous prosecution. Where the offence is even broadly satisfied, the Court should be more inclined to permit continuation of prosecution rather than its quashing at that initial stage. The Court is not expected to marshal the records with a view to decide admissibility and reliability of the documents or records but is an opinion formed prima facie.

14) Where the charge-sheet, report under Section 173(2) of the Code, suffers from fundamental legal defects, the Court may be well within its jurisdiction to frame a charge.

15) Coupled with any or all of the above, where the Court finds that it would amount to abuse of process of the Code or that interest of justice favours, otherwise it may quash the charge. The power is to be exercised ex debito justitiae, i.e. to do real and substantial justice for administration of which alone, the courts exist.

{Ref. State of West Bengal and Ors. v. Swapan Kumar Guha and Ors.: AIR 1982 SC 949; Madhavrao Jiwaji Rao Scindia and Anr. v. Sambhajirao Chandrojirao Angre and Ors.: AIR 1988 SC 709; Janata Dal v. H.S. Chowdhary and Ors.: AIR 1993 SC 892; Mrs. Rupan Deol Bajaj and Anr. v. Kanwar Pal Singh Gill and Ors.: AIR 1996 SC 309; G. Sagar Suri and Anr. v. State of U.P. and Ors.: AIR 2000 SC 754; Ajay Mitra v. State of M.P.: AIR 2003 SC 1069; M/s. Pepsi Foods Limited and Anr. v. Special Judicial Magistrate and Ors. AIR 1988 SC 128; State of U.P. v. O.P. Sharma: (1996) 7 SCC 705; Ganesh Narayan Hegde v. S. Bangarappa and Ors.: (1995) 4 SCC 41; Zundu Pharmaceutical Works Limited v. Mohd. Sharaful Haque and Ors. [: AIR 2005 SC 9];

M/s. Medchl Chemicals and Pharma (P) Limited v. Biological E. Limited and Ors. AIR 2000 SC 1869; Shakson Belthissor v. State of Kerala and Anr.: (2009) 14 SCC 466; V.V.S. Rama Sharma and Ors. v. State of U.P. and Ors.: (2009) 7 SCC 234; Chunduru Siva Ram Krishna and Anr. v. Peddi Ravindra Babu and Anr.: (2009) 11 SCC 203; Sheo Nandan Paswan v. State of Bihar and Ors. AIR 1987 SC 877; State of Bihar and Anr. v. P.P. Sharma and Anr.: AIR 1991 SC 1260; Lalmuni Devi (Smt.) v. State of Bihar and Ors.: (2001) 2 SCC 17; M. Krishnan v. Vijay Singh and Anr.: (2001) 8 SCC 645; Savita v. State of Rajasthan: (2005) 12 SCC 338; and S.M. Datta v. State of Gujarat and Anr.: (2001) 7 SCC 659}.

5. In the present case there are three basic allegations against the Petitioner i.e. the Petitioner entertained the applications directly instead of them being submitted through normal official channel and ordered allotment on the body of the application itself and the co-accused, who were her personal staff officers, blocked particular accommodation on the application itself. The said allotments were not made under the relevant rules i.e. Allotment of Government Residents (General Pool in Delhi) 1963 and money was transacted with the personal staff of the Petitioner for the out of turn allotments. As many as 39 instances have been cited in this regard in the charge-sheet. In most of the cases, the reasons cited were general in nature and all the applications were addressed directly to the Minister and did not get routed through the proper official channel. Some of the instances in this regard are like case of M.L. Gandhi, who already owned a house and was thus not eligible for Government accommodation. Not only he was allotted a flat but the Petitioner directed allotment of Flat No. B-863, Sarojini Nagar on the application itself. Though protest was made by Shri S.

Patnayak, an officer in the Ministry, however directions were issued to implement the order of the Petitioner. In the case of Anand Kumar Gupta an allotment was made on the application itself though DE-2 form was not attached with the application. Anand Kumar Gupta moved another application on which co-accused Rajan Lala made a note that sanction has already been granted but documents were not traceable, so flat No.18/367, Lodhi Colony be approved. Even Anand Kumar Gupta owned a house and was thus not entitled to allotment. Similarly, an allotment was made to Mrs. Kewlani though she was not entitled to the allotment as her husband already owned a flat. In the case of Rakesh Chetal an application was moved to the Petitioner and an order of allotment was made on the application itself though Rakesh Chetal already owned a house. This application was never processed by the officer concerned and when Shri S. Patnayak objected to the allotment vide note dated 26th May, 1994 the application was resubmitted and the co-accused Rajan S Lala made a note that the factum of Rakesh Chetal owning house was noted and Shri S. Patnayak was directed to issue the sanction. The instances as stated above are a few out of the 39 instances cited in the charge-sheet.

6. No doubt as stated by the learned counsel for the Petitioner mere misuse of the discretionary quota would not be a criminal offence, however when the misconduct is accompanied by the acts of accepting or obtaining or agreeing to accept or attempting to obtain gratification or any valuable thing or any pecuniary advantage for himself or for any other person, the same amounts to be an offence under Section 7, 8, 9, 10, 13(2) read with 13(1)(d) of the PC Act. In the present case statements of witnesses have been

recorded regarding acceptance of illegal gratification by the personal staff of the Petitioner. Further witness Rakesh Gupta has stated about investment of money in different properties by the Petitioner and her personal staff.

7. The reliance of the learned counsel for the Petitioner on Sections 3(1), 3(5) and 4 of "The Out of Turn Allotments of Government Residences (Validation) Ordinance, 1997" is misconceived. Section 3(1) of the Ordinance is a deeming clause that provides every out of turn allotment to have been made by the Central Government in exercise of the powers to relax for making an allotment under Supplementary Rule 317-B-25 of the Allotment of Government Residences (General Pool in Delhi) Rules, 1963. As per clause (2) every out of turn allotment referred to in Sub-Section (1) shall be deemed to have been validly made except those covered under Sub- Section 5. Section 4 of the Ordinance provides for abatement of the suit or legal proceedings pending relating to an out of turn allotment. A combined reading of Sections 3(1), 3(2) & 3(5) and Section 4 does not bar prosecution for conspiracy to misconduct and abuse official position.

8. No illegality or a legal bar having been pointed out, this Court in view of the law laid down by the Hon'ble Supreme Court does not find it to be a fit case for interfering with the impugned order. Petition and application are dismissed.

(MUKTA GUPTA) FEBRUARY 20, 2013 'ga'