Delhi High Court
Dilip Kaushik vs Central Bureau Of Investigation on 20 September, 2018
$~8
IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 20th September, 2018
+ CRL.M.C. 4470/2015
DILIP KAUSHIK ..... Petitioner
Through: Mr. Dhruv Gupta, Advocate
versus
CENTRAL BUREAU OF INVESTIGATION .... Respondent
Through: Mr. Narender Mann, Special PP
with Mr. Manoj Pant, Adv.
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
ORDER (ORAL)
1. The petitioner is the sole accused in criminal case (CC
No.03/2015) pending on the file of Special Judge (Prevention of
Corruption Act), it having arisen out of the report under Section 173
of the Code of Criminal Procedure, 1973 (Cr.P.C.) submitted by
respondent Central Bureau of Investigation (CBI) upon conclusion of
investigation into the case RC No.10(A)/2010.
2. By order dated 22.08.2015, which is challenged by the petition
at hand under Section 482 Cr.P.C., the trial court found charge made
out and put the petitioner on trial for the offences punishable under
Sections 7 and 13(2) read with Section 13(1)(d) of Prevention of
Corruption Act, 1988 (PC Act), his contention about the invalidity of
the sanction for prosecution under Section 19 of PC Act having been
rejected.
3. It may be mentioned here that the petitioner had earlier raised
the issue of invalidity of sanction by an application seeking discharge
on such count moved on 12.03.2014.The said application was made,
inter alia, with reference to rulings of the Supreme Court reported as
CBI vs. Ashok Kumar Aggarwal, (2014) 14 SCC 295 and Dinesh
Kumar vs. Chairman, Airport Authority of India & Anr., (2012) 1 SCC
53. The application was, however, dismissed by the Special Judge, by
his order dated 23.04.2014, on the basis of opinion that the question of
validity of sanction could not be examined at that stage, even charge
not having been framed. The petitioner had challenged the said order
dated 23.04.2014 by Crl.M.C.2858/2014, which is pending before
another co-ordinate bench in the list of 'Regulars'.
4. Meanwhile, the petitioner moved an application invoking
Section 311 Cr.P.C. before the court of Special Judge seeking
directions for examining the sanctioning authority - Mr. M.S. Sandhu,
Special Commissioner on the issue of validity of sanction, placing
reliance on the decision of this Court reported as Ashok Aggarwal vs.
CBI, 2007 (4) JCC 2829. The Special Judge found merit in the said
request and, thus, directed the sanctioning authority to be called for his
statement to be recorded before framing of charge.
5. In compliance with the aforementioned directions in the order
dated 27.07.2012, the sanctioning authority was summoned as a
witness (CW1) and examined. It is the contention of the petitioner
that the evidence of CW1 brings out facts which vitiate the sanction
for prosecution. He raised this issue with reference to the evidence of
CW1 at the stage when the Special Judge was considering the question
of charge. By order dated 22.08.2015, the Special Judge rejected the
issue of validity of sanction and found prima facie charge to be made
out which was formally framed on 02.09.2015 setting the trial in
motion. It is pointed out that in taking the view on the objection to the
validity of sanction, the Special Judge opted to go by the view taken
by the previous order, i.e. order dated 23.04.2014, and has avoided
any reference to, or consideration of, the arguments based on the
testimony of CW1.
6. The petitioner relies on decision of this court reported as State
vs. Mukesh Kumar Singh, 2018 SCC OnLine Del 8136, to argue that
the issue of validity of sanction having been raised at the earliest point
of time, the evidence of the sanctioning authority also having been
recorded in such context by an order granted by the Special Judge, the
contentions of the petitioner on the subject could not have been side
lined and rather it was incumbent on the part of the Special Judge to
take a decision on such contentions in light of the material placed on
record.
7. During the course of hearing, however, it also came up that in
order to appreciate the deposition of CW1 on the subject of validity or
otherwise of sanction, the version, if any, of the investigating agency
would also need to be kept in mind. The learned Special Public
Prosecutor for CBI agreed that, in this view, it would be appropriate
that the investigating agency examines upfront the investigating
officer, restricted to the subject of steps taken after completion of
investigation for obtaining the sanction for prosecution, leaving the
rest of the testimony to be adduced in later proceedings, this obviously
if the sanction is found to be valid.
8. The learned counsel for the petitioner, against the above
backdrop, submitted that in above view, he is under instructions to
withdraw the present petition, reserving his contentions vis-à-vis
validity of the sanction to be re-agitated before the trial court after the
investigating agency has examined the investigating officer limited to
the above noted aspect, his request being that the trial court may be
directed to take a fresh call by a reasoned order on the issue of
sanction before proceeding further with the trial of the case.
9. Ordered accordingly.
10. The counsel for the petitioner submitted that in view of the
above, the other petition, Crl.M.C.2858/2014 would stand rendered
infructuous and, therefore, he is under instructions and accordingly
hereby undertakes to move appropriate application for the same to be
dismissed as withdrawn. He assures that suitable steps would be taken
in that regard within a week hereof.
11. From the above, it is clear that the CBI would be obliged to
summon and examine the investigating officer ahead of all other
remaining witnesses (unless already examined) and examine him
limited to the questions raised vis-à-vis the validity of sanction for
prosecution, tender him for cross-examination limited to that issue,
reserving its right to examine him further in later proceedings. After
the evidence of the investigating officer restricted to above issue has
been recorded, the Special Judge will hear both sides and pass an
appropriate order dealing with the issue of validity or otherwise of the
sanction for prosecution in accordance with law.
12. The petition is disposed of in above terms.
13. Dasti to both sides under the signature of Court Master.
R.K.GAUBA, J.
SEPTEMBER 20, 2018
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