Delhi High Court
Chairman Union Public Service ... vs State Of Nct Of Delhi & Ors. on 22 October, 2018
$~25
IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on:- 22nd October, 2018
+ CRL. M.C. 4922/2015 & Crl.M.A. 17628/2015
CHAIRMAN UNION PUBLIC SERVICE
COMMISSION & ANR. ..... Petitioners
Through: Mr. Naresh Kaushik, Mr.
Ravinder Agarwal & Mr.
Gaurav Ahlawat, Advs.
versus
STATE OF NCT OF DELHI & ORS. ..... Respondents
Through: Mr. K.S. Ahuja, APP for the
State.
Ms. Naomi Chandra, Adv. for
R-4 with R-4 in person.
Mr. Deepak Anand, Adv. for R-
6.
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
ORDER (ORAL)
1. The second to sixth respondents had joined together to submit
an application seeking direction for registration of first information
report invoking the jurisdiction of Additional Chief Metropolitan
Magistrate (ACMM), New Delhi under Section 156 (3) of the Code of
Criminal Procedure, 1973 (Cr.P.C.). The said application presented on
21.01.2013 was made over to Metropolitan Magistrate who registered
it as criminal complaint case (CC no. 05/01/2013). She examined the
matter arising out of the said application and, by order dated
28.08.2015, directed the station house officer of police station Tilak
Marg to register an FIR and submit a compliance report observing,
inter alia, that the said respondents (complainants) who were
candidates in the examination conducted by Union Public Service
Commission (UPSC) had been "cheated" by destroying the
"information" that had been sought by them under the Right to
Information Act, 2005 (RTI Act) in terms of directions by various
authorities including Central Information Commissioner (CIC) and
this Court.
2. Aggrieved by the said direction of the Metropolitan Magistrate,
the present petition was filed by the Chairman and Secretary UPSC
invoking the inherent power and jurisdiction of this Court under
Section 482 Cr.P.C., the prime submissions being that the criminal
proceedings which have been taken out are an abuse of the process of
law and that even a direction for investigation under Section 156 (3)
Cr.P.C. is impermissible in that the persons against whom such
investigation is sought are public servants, they being protected by the
provision contained in Section 197 Cr.P.C. in terms of the ruling of
the Supreme Court in Anil Kumar vs. M.K. Aiyappa (2013) 10 SCC
705.
3. The petition is resisted by the private party respondents whose
submissions through counsel have been heard and the record has been
perused.
4. A perusal of the application under Section 156 (3) Cr.P.C.
which was treated as a private complaint on which directions for
registration of FIR have been issued by the Metropolitan Magistrate
would show that the complainants had been candidates for
appointment to the civil services, they having appeared in the
examinations, held annually by UPSC during the period 2006 to 2011.
It appears that these complainants were aggrieved by the evaluation of
their performance at various stages of the process it including
preliminary examination, main written examination and viva voce.
They had sought certain information under the RTI Act which was
denied. They were then constrained to approach the authorities under
the RTI Act and also having invoked the writ jurisdiction to seek
directions from this Court for release of information including
respecting their answer sheets which had been evaluated. It further
appears that some directions were given by the writ court, and also in
appeals filed in wake of such directions. The sum and substance of
the grievance agitated is that the answer sheets were reported to have
been weeded and, therefore, not available. Though it does appear that
the position of UPSC has been that there is a specific Record
Retention Schedule which is in public domain, its copy being
available on its website, the crucial question that arises against this
backdrop is as to whether the weeding out of the answer sheets which
contained the "information" that was sought but rendered not available
can be said to be an act committed with the intention to cheat.
5. A perusal of the averments in the application under Section 156
(3) Cr.P.C. brings out that the complainants have tried to make out a
criminal case on the basis of mere suspicion or surmises, there being
no foundation to the allegations attributing intent to defraud or to
cause wrongful loss. Concededly, the complainants did not seek a
direction from any of the authorities approached by them under the
RTI Act for preservation of the material against the rules governing
the weeding out process. Concededly, there was no inhibition issued
by any of the authorities under the RTI Act or by any court against
weeding out. There are no allegations of any deliberate act on the part
of any specific individual. General allegations levelled against UPSC,
an institution created by the Constitution of India, are per se
preposterous and do not merit any credence. The officers and officials
of UPSC dealing with the subject matter are public servants who have
the protection of law under Section 197 Cr.P.C. From this perspective
as well, the direction by the impugned order could and should not
have been issued [Anil Kumar (supra)].
6. In the above facts and circumstances, the petition is allowed.
The impugned order dated 28.08.2015 passed by the Metropolitan
Magistrate on the file of complaint case 05/01/2013 is set aside.
7. The petition and the application filed therewith are disposed of
in above terms.
R.K.GAUBA, J.
OCTOBER 22, 2018
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