Delhi High Court

Vivek Garg vs State on 25 October, 2016

*   IN THE HIGH COURT OF DELHI AT NEW DELHI
                    +      CRL.M.C. No.2713/2016

                                  Date of Decision: 25th October, 2016

    VIVEK GARG                                           ..... Petitioner
                         Through        Mr.Puneet Goyal, Adv.

                         versus

    STATE                                                  ..... Respondent

                         Through        Nemo.


    CORAM:
    HON'BLE MR. JUSTICE P.S.TEJI

    P.S.TEJI, J

1. The present petition under Article 226 & 227 read with

Section 482 of the Code of Criminal Procedure, has been filed by

the petitioner for setting aside the order dated 29th April, 2016,

passed by the learned Special Judge-05, Anti-Corruption, Tis

Hazari, Delhi in case titled as Vivek Garg Vs. Akhilesh Pati

Tripathi, MLA & Others. vide Complaint Case No.14/2015.

2. A thumbnail sketch of the facts of the case is that

Mr.Akhilesh Pati Tripathi, (respondent no.1 before the Trial Court)

contested 2013 & 2015 Delhi Legislative Assembly Elections from

Aam Aadmi Party and became a Member of Legislative Assembly

(MLA) from Model Town constituency Elections 2013 both times

while the unnamed officials of Government of NCT of Delhi and

Election Commission of India (respondent nos.2 & 3 before the

Trial Court). It is alleged that Mr.Akhilesh Pati Tripathi became

an MLA in collusion with the unnamed officials of Election

Commission of India and the officials of the Chief Electoral

Office, DC North Office of Government of NCT of Delhi, by

undervaluing a number of items used in the election campaign and

thereby manipulated the accounts of expenditure incurred in Delhi

Legislative Assembly Election 2013. It is further alleged that the

crime was finally completed in January, 2014 when he submitted

the final forged & fabricated accounts of election expenditure

when the respondent no.1submitted the forged/fabricated accounts

of election expenditure.

3. Learned counsel for the petitioner has contended that Section

78 of the Representation of People Act, 1951 provides that every

candidate has to furnish true account of his election expenses

maintained under Section 77 of the Act with the District Election

Officer within 30 days from the date of declaration of the result of

election. It is stated that maximum expenditure limit for Delhi

Legislative Assembly Elections, 2013 was Rs.14,00,000/-. It is

further stated that Mr.Akhilesh Pati Tripathi was served with a

notice on 9th January, 2014 by the concerned Returning Officer

regarding the mal practice in the election expenditure and that in

the said notice, two primary issues were raised, first on the

procedural aspects of furnishing the accounts and the second on the

manipulation of election expenditure. It is alleged that the

inspection schedule notified by DEO (North) prescribing the dates

on which the contesting candidates were to make available their

day to day accounts in the prescribed manner, was not complied

with by the respondent no.1. It is alleged that on the first date of

inspection of election expenditure i.e. 23rd November, 2013, the

expenditure register was produced for inspection but the same was

not signed either by the candidate or by his election agent. It is

contended that on the second date of inspection i.e. 28th November,

2013, the remarks of the expenditure observer are evident of mala

fide intention. Learned counsel for the petitioner has alleged that

on the second date of inspection i.e. 2nd December, 2013, the

candidate failed to furnish the register for inspection as a result of

which notice was issued by the Returning Officer pursuant whereto

reply was filed by Mr.Akhilesh Pati Tripathi in which he did not

submit that the accounts were maintained on day to day basis; the

reason for not furnishing the expenditure register in the prescribed

manner and the reason for not furnishing the register on day to day

basis. The petitioner has further pointed out the anomalies like

difference between the total expenditure shown by the respondent

no.1 in the expenditure register and the abstract of the expenses

shown by him; pages of the register not signed on the first date of

inspection and the computerized account sheets being pasted one

over the other.

4. The petitioner has further alleged the quantum of the election

expenditure to the effect that in the notice dated 9th January, 2014,

the accused has incurred expenditure of Rs.8,93,650/- over and

above the expenditure shown in his expenditure register. It was

further alleged that the candidate mentioned the rates of various

items on lower side. It was further alleged that despite having

knowledge of the offence committed by the candidate, no action

against him was taken by the election officials.

5. The arguments advanced by counsel for the petitioner is that

sufficient material was placed before the trial court but the same

was ignored and complaint was dismissed. It was wrongly

observed by the Trial Court that the accused was only a contesting

candidate so the Prevention of Corruption Act did not apply on

him. It was also wrongly observed that FIR against the accused

persons cannot be registered without prior sanction. The officials

of the concerned departments were corruptly managed by the MLA

by abusing his official position. No sanction under the PC Act or

under the Cr.P.C. was required as the offences committed were not

the part of official duties of the accused persons.

6. In support of above submissions, pronouncements in the

case of Punjab State Warehousing Corp. Vs. Bhushan Chander

& Anr. (Criminal Appeal No.159 of 2016 decided by Hon'ble the

Apex Court on 29th June, 2016); Maneesh E. Vs. State of Kerala

& Ors. (Crl.M.C. No.7331/2015 decided by High Court of Kerala

on 14th December, 2015); Lallan Chaudhary & Ors. Vs. State of

Bihar & Anr. AIR 2006 SC 3376; Suraj Mandal & Ors. Vs. CBI

(State) 1997 JCC 167 & Lalita Kumari Vs. Govt. Of U.P. & Ors.

AIR 2008 SC 68 have been relied upon.

7. I have heard learned counsel for the parties at length. I have

also carefully gone through each and every allegation levelled by

the petitioner in his petition against the respondents and perused

the available records and judgment.

8. In so far as the allegations against the candidate are

concerned, perusal of the record shows that it was alleged that he

incurred expenditure more than the prescribed limits of

Rs.14,00,000/-. Whether any such expenditure was made by the

candidate or not is not a question to be decided by the Court but

the remedy lies specifically in Rule 89 of the Election Rules. As

per Rule 89 of the Election Rules, if the Election Commission after

conducting an enquiry finds the accounts of election expenses

submitted by a candidate to be incorrect or untrue, it may

disqualify the said candidate.

9. So far as the allegation against the unnamed officials of

Election Commission of India & Govt. Of NCT of Delhi, deputed

with Returning Office 18, is concerned, no specific allegation

against any such officials was made in the complaint. No instance

of showing any favour or disfavour by any of the officials of the

Election Commission or Govt. of NCT of Delhi was alleged in the

complaint. If for the sake of arguments, it is presumed that the

officials did not scrutinize the final account of expenditure

submitted by the candidate and did not take any action against him,

the same does not fall within the meaning of criminal intent and

there does not lie any criminal action against them. Since the

allegations against the officials are alleged to have been committed

during the discharge of their official duty, the submission of the

petitioner that no sanction for lodging prosecution against such

officials was required holds no basis.

10. So far the applicability of Section 156(3) Cr.P.C. is

concerned, as per Section 190 of Cr.PC, when a complaint is

received, the Magistrate is empowered to take cognizance of the

offence disclosed in the complaint. After taking cognizance, the

Magistrate can adopt two methods. Firstly, the Magistrate may

forward the complaint to the police under Section 156(3) Cr.PC,

without taking cognizance, to investigate and file a report.

Secondly, the Magistrate may take the cognizance of the offence

disclosed in the complaint and conduct proceedings under Section

202 of Cr.P.C.

11. In the present case, the Trial Court rejected the complaint

under Section 200 Cr.P.C. as well as application of the petitioner

under Section 156(3) of Cr.PC. In the complaint, the petitioner

made a prayer for issuance of direction to the police to investigate

the matter. In the considered view of this Court, a complainant has

no right or privilege to demand from the Magistrate to refer the

case to the police. It is the discretion of the Magistrate, either he

can forward the complaint to the police for investigation or he

himself can take cognizance and proceed under Section 202 of

Cr.P.C. or dismiss the same being without merit. In the present

case, the Trial Court did not find any substance in the complaint

filed by the petitioner and dismissed the same.

12. In the judgment CBI Vs. R.K. Yadav passed in WP (Crl.)

No.903/2013 decided on 23rd December, 2015 & connected matter

being CBI Vs. Dr.A.S. Narayana Rao in WP (Crl.) No.1540/2014,

this Court observed that no personnel whether from CBI or any

other department, who does not fall within the meaning of the

office-in-charge of a police station can be directed to investigate

any case by the Special Judge, CBI. It was further observed in this

judgment that the Special Judge has all powers under the Code,

which are vested in the Court of original jurisdiction except the one

specifically prohibited. Thus since the jurisdiction under Section

156(3) Cr.P.C. is not specifically denied, the Special Judge has the

jurisdiction to direct registration of FIR under Section 156(3)

Cr.P.C. as a Court of original jurisdiction which the Magistrate

has.

13. However, the moot question in view of the decision of CBI

v. State of Rajasthan (2001) 3 SCC 333 is whether the Special

Judge can direct registration of FIR to CBI and whether the officer

of CBI would be an officer in-charge of Police Station within the

territorial jurisdiction of the Special Judge concerned. Their

Lordships in CBI Vs. State of Rajasthan (supra) held that a

Magistrate under Section 156(3) Cr.P.C. has no jurisdiction to

order CBI to register FIR and investigate thereon. This was the

predicament before the Learned Special Judge. According to him,

since CBI was not a Police Station within its jurisdiction it could

not direct registration of FIR under Section 156(3) Cr.P.C. in view

of the decision of the Hon'ble Supreme Court in CBI Vs. State of

Rajasthan (supra).

14. It was further held by Punjab & Haryana High Court in

Central Bureau of Investigation vs. Harsimranjit Singh & Ors.

CRM-M-6758-2015 decided on 16.09.2015 as under:-

"In view of clear enunciation of law by Hon'ble Supreme Court, judgment of the single bench of Delhi High Court in A.S.Narayana Rao's case (supra) can be of no help to the petitioner. CBI Manual lays down elaborate procedure for conducting the investigation. In considered view of this court, Special Court is created only to conduct trial of cases which have already been investigated by CBI in cases of corruption as well as in special crime...."

15. In CBI through the SP v. State of Gujarat 2007 (6) SCC

156, it was observed that :

"The only point for consideration in this revision is, whether a Special Judge could have directed the CBI to investigation under sec. 156(3) of the Code of Criminal Procedure and report to him about the offences mentioned in the complaint. It is undisputed that a private complaint was filed by the respondent no.2 against the accused. Action was taken by the Special Judge under sec. 156(3) of the Code and he directed the CBI to investigate the matter. The Apex Court in latest pronouncement in Central Bureau of Investigation, Jaipur v. State of Rajasthan 2001 AIR SCW 305 examined conflicting decisions of the Delhi and Rajasthan High Court on one hand & Gujarat and Karnataka High Court on the other hand and found that the view taken by the High Court of Delhi Rajasthan and Delhi

cannot be substantiated. Decisions of Rajasthan and Delhi High Court were overruled by the Apex Court. It was held by the Apex Court that the magisterial power under sec. 156(3) cannot be stretched beyond directing the officer incharge of a police station to conduct the investigation. A Magistrate, therefore, has no power to direct the Central Bureau of Investigation, CBI, to conduct investigation into any offence. It was, further, laid down that sec. 156 of the Code deals with investigation in the cognizable offence. If the power of a Magistrate to order investigation by the CBI in non-cognizable cases cannot be traced in sec. 156, it is not possible to trace such power in any other provision of the Code. What is contained in sub-section (3) of sec. 156 is the power to order the investigation referred to in sub-section (1), because the words "order such an investigation as above- mentioned" in sub-section (3) are unmistakably clear as referring to the other sub-section. Thus, the power is to order an 'officer incharge of a police station' to conduct investigation. From the definition of "police station" and "officer incharge of a police station", it is clear that a place or post declared by the Government as police station must have a police officer incharge of it. The primary responsibility for conducting investigation into offences in cognizable cases vests with such police officer. Sec. 156(3) of the Code empowers a Magistrate to direct such officer incharge of the police station to investigate any cognizable case over which such Magistrate has jurisdiction. In para-15 of this judgment, the Apex Court concluded that 'we, therefore, reiterate that he magisterial power cannot be stretched under the said sub-section beyond directing the officere incharge of a police station to conduct the

investigation'."

16. In S.P., CBI v. Satish 2015 LawSuit (Bom) 1273, it was

observed that:

"After having considered the relevant provisions of the Code, we have no doubt in our mind that the Special Judge, Aurangabad exceeded his jurisdiction in directing investigation under Section 156(3) of the Code by CBI by the impugned order. The learned Special Judge failed in appreciating that CBI is an independent establishment created under the provisions of Delhi Special Police Establishment Act and in view of the provisions of Section 5 and 6 of the said Act, he was not empowered to direct investigation by it. The learned Special Judge further did not appreciate that CBI is not a local police station within his jurisdiction so as to invoke section 156(3) of the Code in directing investigation by it. The impugned order is, therefore, liable to be set aside and the same is accordingly set aside. However, original complainant, i.e. respondent No.1 in the present petition, is at liberty to move again to the Special Court, if he so desires, for appropriate orders for investigation of the offences alleged by him in the said complaint against Respondent Nos.2 to 6 in the present petition. Rule is made absolute in above terms."

17. In the case of State of West Bengal and Ors. v. Committee

for Protection of Democratic Rights, West Bengal and Ors. AIR

2010 SC 1476, it was observed that :

"Before parting with the case, we deem it

necessary to emphasise that despite wide powers conferred by Articles 32 and 226 of the Constitution, while passing any order, the Courts must bear in mind certain self- imposed limitations on the exercise of these Constitutional powers. The very plenitude of the power under the said Articles requires great caution in its exercise. In so far as the question of issuing a direction to the CBI to conduct investigation in a case is concerned, although no inflexible guidelines can be laid down to decide whether or not such power should be exercised but time and again it has been reiterated that such an order is not to be passed as a matter of routine or merely because a party has levelled some allegations against the local police. This extra-ordinary power must be exercised sparingly, cautiously and in exceptional situations where it becomes necessary to provide credibility and instil confidence in investigations or where the incident may have national and international ramifications or where such an order may be necessary for doing complete justice and enforcing the fundamental rights. Otherwise the CBI would be flooded with a large number of cases and with limited resources, may find it difficult to properly investigate even serious cases and in the process lose its credibility and purpose with unsatisfactory investigations."

18. In view of the law laid down in the judgments cited above,

this Court is of the considered opinion that the Special Judge had

no power to direct the CBI to conduct investigation under Section

156(3) of the Cr.P.C. about the offences mentioned in the

complaint. It is undisputed that a private complaint was filed by

the petitioner. The magisterial power under Section 156(3) Cr.P.C.

cannot be exercised directing the officer incharge of a police

station to conduct the investigation. A Special Judge, therefore,

has no power to direct the CBI to conduct investigation into any

offence.

19. In view of the above discussion, this Court does not find any

infirmity, illegality, impropriety or incorrectness in the impugned