Delhi High Court
Sanjay Malik vs Cbi on 20 August, 2015
Author: Sunil Gaur
I- R-3 & 4
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Order: August 20, 2015
(i) + W.P.(CRL) 226/2010
BIPIN CHANDER PAUL KAKKAR ..... Petitioner
Through: Mr. P.P. Malhotra, Senior
Advocate, with Vineet Malhotra,
Mr. Neeraj Chaudhari &
Mr. Akshay Chandra, Advocates
versus
CBI ..... Respondent
Through: Mr. Narender Mann, Special
Public Prosecutor, with Mr. Manoj
Pant and Ms. Utkarsha Kohli,
Advocates for respondent-CBI
(ii) + CRL.M.C. 3947/2012 & Crl.M.A. No. 18933/2012
SANJAY MALIK ..... Petitioner
Through: Mr. K.K. Patra, Advocate
versus
CBI ..... Respondent
Through: Ms. Sonia Mathur, Standing
Counsel for CBI with Mr. Sushil
Kumar Dubey, Advocate
CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR
ORDER
% (ORAL)
In the above captioned two petitions, quashing of impugned order
of 14th July, 2008 and RC No.S18/ 2001/E001/CBI for the offences under
W.P. (Crl.) 226/2010 Page 1
Crl.M.C.No. 3947/2012
Section 120-B read with Sections 420/468/471 of IPC and proceedings
emanating there-from is sought on merits as well as on the basis of „No
Objection Certificate‟ of 21st July, 2005.
Since quashing of impugned order and FIR is sought on identical
grounds, therefore, the above captioned two petitions were heard together
and are being disposed of by this common order.
At the hearing, Mr. P.P. Malhotra, learned senior counsel for
petitioners submits that quashing of impugned order and FIR is not only
sought on merits but also on the basis of No Objection Certificate of 21st
July, 2005 issued by State Bank of Bikaner and Jaipur. Learned senior
counsel for petitioners further submits that on a bare reading of FIR in
question, no offence is made out against petitioners and it is a fit case for
exercising jurisdiction under Section 482 of Cr.P.C by this Court.
Learned counsel appearing for respondent-CBI in the above
captioned two petitions inform that the case is now before the trial court
at the final stage.
After hearing both the sides and on perusal of the afore-noted „No
Objection Certificate‟ of 21st July, 2005 and material on record, this
Court finds that the extra ordinary inherent jurisdiction under Section 482
of Cr.P.C. is to be exercised with circumspection and sparingly. On this
aspect, the pertinent observations of the Apex Court in State of Orissa v.
Ujjal Kumar Burdhan (2012) 4 SCC 547 are as under: -
"It is true that the inherent powers vested in the High
Court under Section 482 of the Code are very wide.
Nevertheless, inherent powers do not confer arbitrary
jurisdiction on the High Court to act according to whims or
caprice. This extraordinary power has to be exercised
W.P. (Crl.) 226/2010 Page 2
Crl.M.C.No. 3947/2012
sparingly with circumspection and as far as possible, for
extraordinary cases, where allegations in the complaint or
the first information report, taken on its face value and
accepted in their entirety do not constitute the offence
alleged. It needs little emphasis that unless a case of gross
abuse of power is made out against those in charge of
investigation, the High Court should be loath to interfere."
The pertinent observations of Apex Court in Padal Venkata Rama
Reddy Alias Ramu v. Kovvuri Satyanarayana Reddy & Ors. (2011) 12
SCC 437 on the feasibility of efficacious remedy being available are as
under: -
"It is well settled that the inherent powers under
Section 482 can be exercised only when no other remedy is
available to the litigant and not in a situation where a
specific remedy is provided by the statute. It cannot be used
if it is inconsistent with specific provisions provided under
the Code (vide Kavita v. State and B.S.Joshi v. State of
Haryana). If an effective alternative remedy is available, the
High Court will not exercise its powers under this section,
specifically when the applicant may not have availed of that
remedy."
Applying the afore-noted dictum of the Apex Court to the facts of
instant case, this Court is of the considered opinion that petitioners have
an alternate and efficacious remedy to urge the pleas taken herein before
the trial court at this advanced stage i.e. final stage and so, this Court
refrains from exercising its extra ordinary inherent jurisdiction under
Section 482 of Cr.P.C. to quash the proceedings arising out of RC
No.S18/ 2001/E001/CBI dehors the evidence recorded.
So far as the quashing of RC No.S18/ 2001/E001/CBI on the basis
W.P. (Crl.) 226/2010 Page 3
Crl.M.C.No. 3947/2012
of purported No Objection Certificate of 21st July, 2005 is concerned, I
find that the Communication of 21st July, 2005 from the concerned bank
to the co-accused clearly states that the outstanding dues have been paid
and accepted by the concerned bank without prejudice to the case
pending with CBI. Thus, it becomes clear that in view of Apex Court's
dictum in Narinder Singh v. State of Punjab (2014) 6 SCC 466, the so-
called „No Objection Certificate‟ cannot be relied upon for quashing the
criminal proceedings, which are at the fag-end.
Consequentially, the above captioned two petitions and application
are disposed of without considering the merits of the case while leaving it
open for the trial court to consider it at the final stage.
(SUNIL GAUR)
JUDGE
August 20, 2015
r
W.P. (Crl.) 226/2010 Page 4
Crl.M.C.No. 3947/2012
