Delhi High Court
T Dileep Kumar vs Cbi on 26 September, 2013
Author: Sunil Gaur
$~43
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.M.C. 250/2013 & Crl.M.A.No.853/2013
T DILEEP KUMAR ..... Petitioner
Through: Mr. Vikas Pahwa, Sr. Advocate
with Mr. D.K.Mathur, Advocate
versus
CBI ..... Respondent
Through: Mr. P.K. Sharma, Standing
Counsel for CBI with Mr. A.K.
Singh, Advocate
CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR
ORDER
% 26.09.2013
Petitioner is one of the accused in RC No.
DAI/2007/2007/0011/CBI-ACB/New Delhi u/s 120-B read with Section
420, 468, 471 IPC & Section 13(2) & 13(1)(d) of Prevention of
Corruption Act, 1988, whose application seeking dropping of proceedings
has been dismissed by the trial court vide impugned order of 15 th
December, 2012, which is assailed in this petition.
The factual aspects of this case stand noted in the impugned order.
Suffice it would be to note that when the charge-sheet in this case was
filed, sanction to prosecute petitioner as an accused was still awaited.
Supplementary charge-sheet filed discloses that no sanction for
prosecution of petitioner either from Government of India or from Indian
Nursing Council was required as petitioner had retired from Government
Crl.M.C.250/2013 Page 1
Service on 30th June, 2011. At the relevant time petitioner was working
as Nursing Advisor to Government of India and was also holding the post
of President, Indian Nursing Council, New Delhi.
At the hearing, it was asserted by learned senior counsel for
petitioner that cognizance of the offence without sanction under Section
19 of the Prevention of Corruption Act, 1988 is a nullity as petitioner
continues to be a public servant by virtue of being the President of Indian
Nursing Council. In this regard attention of this Court was drawn to
Section 2(c)(iii) of Prevention of Corruption Act, 1988 and Section 3 of
the Indian Nursing Council Act, 1947 by learned Senior Counsel for
petitioner to assert that petitioner is entitled to protection conferred by
Section 19(1) of the Prevention of Corruption Act, 1988.
According to learned senior counsel for petitioner, impugned order
refusing to drop the proceedings against petitioner for want of sanction
discloses utter non-application of mind as the initial cognizance taken in
the year 2009 is a nullity as by then the sanction for petitioner's
prosecution was still awaited. To assert that in the absence of sanction to
prosecute petitioner, proceedings in this case are vitiated, reliance was
placed upon decisions in Dilawar Singh v. Parvinder Singh 2005 (12)
SCC 709, State of Orissa v. Babu Thomas 2005 (8) SCC 130, Dinesh
Kumar v. Chairman, Airport Authority of India & Anr. 2012 (1) SCC 532
and Prakash Singh Badal v. State of Punjab (2007) 1 SCC 1. Thus,
dropping of proceedings in this FIR case qua petitioner is sought.
Learned Standing Counsel for CBI had supported the impugned
order and had relied upon decisions in State of Kerala v. V.Padmanabhan
Nair AIR 1999 SC 2405, Subramanian Swamy v. Manmohan Singh &
Crl.M.C.250/2013 Page 2
Anr. (2012) 3 SCC 64, Vineet Narain & Ors. v. Union of India & Anr.
(1998) 1 SCC 226 and Ashok Tsherin Bhutia v. State of Sikkim (2011) 4
SCC 402 to contend that failure of justice is relatable term and it cannot
be pre-judged at the stage as to whether any prejudice is suffered by
petitioner-accused and this aspect needs to be urged by petitioner at the
stage of hearing on the point of charge as the charge-sheet in this case has
already been filed.
Upon hearing learned counsel for parties, I find that since the
charge-sheet in this case has been filed and the hearing on the point of
charge is yet to take place, therefore, it would be appropriate if petitioner
urges the pleas taken herein before the trial court to seek discharge. It is
so said because the decisions relied upon were not cited before the trial
court. The question whether petitioner continues to be a public servant
by virtue of being President of Indian Nursing Council is also an aspect
which has not been considered in the impugned order and the same is
required to be dealt with at the stage of hearing on the charge in the light
of Sub-Section 3(a) of Section 19 of Prevention of Corruption Act, 1988
as well as the decisions cited.
In view of the aforesaid, this petition is disposed of with liberty to
petitioner to urge the pleas taken herein before the trial court at the stage
of hearing on the point of charge. Needless to say, trial court shall deal
with the submissions, so advanced, on behalf of petitioner and the case-
law cited and the impugned order will not stand in the way of trial court
to discharge the accused or to direct the prosecution to obtain sanction
under Section 19 of Prevention of Corruption Act, 1988 if it is found that
petitioner still continues to be the public servant. Any observation made
Crl.M.C.250/2013 Page 3
in this order shall not be construed as an expression on merits so that
prejudice is not caused to either side at trial.
The petition and the application stand disposed of accordingly.
(SUNIL GAUR)
Judge
SEPTEMBER 26, 2013
vn
Crl.M.C.250/2013 Page 4
