Delhi High Court
Hamendra Kumar vs Central Bureau Of Investigation on 26 April, 2019
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Order: April 26, 2019
(i) + CRL.REV.P. 307/2017 & CRL.M.A. 6857/2017;
6858/2017 & 2128/2018
HAMENDRA KUMAR ..... Petitioner
Through: Mr. H.S. Phoolka, Senior
Advocate with Mr. Aproov
Malik & Ms. Shilpa Dewan,
Advocates
(ii) CRL.REV.P. 600/2017 & CRL.M.A. 13095/2017
RAJA RAMAN SHANKAR ..... Petitioner
Through: Mr. Harsh K. Sharma,
Ms. Vaibhavi Sharma,
Mr. Rohit Gaur, Mr. Vivek
Punia & Mr. Pulkit Jain,
Advocates
(iii) + CRL.M.C. 1977/2017 & CRL.M.A. 8124/2017
RAJESH WADHWA ..... Petitioner
Through: Mr. D.S. Kohli &
Mr. Raghav M., Advocates
(iv) + CRL.M.C. 3149/2017 & CRL.M.As. 12999/2017 &
13000/2017
MAHENDER KUMAR GUPTA ..... Petitioner
Through: Mr. Tanveer A. Mir,
Advocate
(v) + CRL.M.C. 4048/2017 & Crl.M.As. 16267-16268/2017
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Crl.M.C. 1977/2017
Crl.M.C. 3149/2017
Crl.M.C. 4048/2017
Crl.M.C. 1370/2017
SURAJ PRAKASH ..... Petitioner
Through: Mr. D.S. Kohli &
Mr. Raghav M., Advocates
(vi) + CRL.M.C. 1370/2017 & CRL.M.A. 5522/2017
HAMENDRA KUMAR ..... Petitioner
Through: Mr. H.S. Phoolka, Senior Advocate
with Mr. Aproov Malik &
Ms. Shilpa Dewan, Advocates
Versus
CENTRAL BUREAU OF INVESTIGATION ..... Respondent
Through: Mr. Ripu Daman Bhardwaj,
Special Public Prosecutor
CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR
ORDER
Trial court vide impugned order of 16th August, 2016 has
considered the final reports and other material on record and has taken
cognizance against petitioners for the offences under Section 120B IPC
read with Section 13(1)(d) of the Prevention of Corruption Act, 1988
(henceforth referred to as the "PC Act"). Vide orders of 18th February,
2017 and 18th April, 2017, trial court has considered the issue of sanction
under Section 19 of the PC Act.
In the above captioned six petitions, challenge is to the impugned
order of 16th August, 2016, vide which cognizance for the aforesaid
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Crl.M.C. 4048/2017
Crl.M.C. 1370/2017
offences has been taken and the orders of 18th February and 18th April,
2017, vide which issue of sanction has been considered by the trial court.
Since the above captioned petitions arise out of one RC bearing No. ACI-
2013-A-0004 and the submissions made are overlapping, therefore, with
the consent of learned counsel for the parties, the above captioned
petitions have been heard together and are being disposed of by this
common order.
The challenge to the impugned order of 16th August, 2016 is on the
ground that in RC bearing No. ACI-2013-A-0004 titled as 'CBI Vs
Hamendra Kumar & Ors.', the closure report was filed by CBI on 23rd
September, 2014, which was not accepted by the trial court and further
investigation was directed and thereafter, second closure report was filed
on 28th May, 2015. It is submitted on behalf of petitioners that despite
filing of the closure report, trial court has taken cognizance while ignoring
the contents of the closure report, which do not incriminate petitioners.
Reliance was placed upon Supreme Court's in Mansukhlal Vithaldas
Chauhan Vs. State of Gujarat (1997) 7 SCC 622 and Vasanti Dubey Vs.
State of Madhya Pradesh (2012) 2 SCC 731 in support of above
submissions and to submit that the Courts cannot direct the authorities
afresh to grant sanction under Section 19 of PC Act.
Learned Special Public Prosecutor for respondent-CBI supports the
closure reports filed by the CBI.
Upon hearing and on perusal of impugned order and the material
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on record, I find that in operative paragraph No. 24 of impugned, trial
court has observed as under:-
"In view of the above discussion, it can be said that the
contents of the final reports and the other material placed before
this court are sufficient to take cognizance and proceed further in
the matter against all the above accused persons for the offence
punishable under Section 120B IPC read with Section 13(1)(d) of
the PC Act and also against all the public servant accused for the
substantive offence punishable under Section 13(1)(d) of the PC
Act. However, previous sanctions under Section 19 of the PC Act
are required before this court can formally take cognizance of
the above said offences and can proceed further against the
above public servants made accused in this case as the CBI has
not obtained these sanctions earlier for the apparent reason that
it had filed a final report of closure in this case instead of a
chargesheet. Hence, the CBI/IO is being directed to approach
the concerned competent authorities of the aforesaid
accused/public servants and to place all the relevant material
collected during the investigation before them for obtaining
sanctions under Section 19 of the said Act for their prosecution
in this case".
A bare perusal of impugned orders does not reveal as to what is the
incriminating material on the basis of which cognizance for the offences
in question has been taken against petitioners. Impugned order does take
note of the fact that prior sanction under Section 19 of the PC Act is
required but strangely directs the CBI to approach the competent authority
for obtaining the sanction, without disclosing as to under which provision
of law, such a direction can be issued. In somewhat similar case of
Vasanti Dubey (Supra), Supreme Court has quashed the order refusing to
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accept the closure report, as no reasons were forthcoming for not
accepting the closure report. In the facts of these cases also, I find that
there was no valid justification for the trial court to not to accept the
closure report, as I find that in the closure report it is categorically
recorded that no material has come on record to justify the allegations
levelled against petitioners. It is a matter of record that the first closure
report was not accepted by the trial court in September, 2014 and further
investigation was directed. Even after further investigation, respondent-
CBI had filed the second closure report in May, 2015.
The crux of the case set up in RC bearing No. ACI-2013-A-0004
against petitioners was that petitioners, who are North Delhi Municipal
Development (NDMC) officials, namely -Hamendra Kumar, Deputy
Commissioner; Rajesh Wadhwa, Superintending Engineer; Mahender
Kumar Gupta (Assistant Engineer) and Suraj Prakash (Assistant
Engineer) with co-accused Raja Raman Shankar, Executive Vice
President of Hotel Oberoi Maidens, entered into a criminal conspiracy to
carry out construction on the pretext of 'repair works' in contravention of
provision of clause 23.3(i) of Delhi Building Bye Laws, 1983, which
prohibited any repair work in respect of Heritage Building without advice
of Heritage Conversation Committee. Both the closure reports concluded
that gross abuse of official position by NDMC officials/ petitioners
remains unsubstantiated and the investigation has not disclosed any
violation of orders of ATMCD by petitioners-accused.
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Applying the ratio of Supreme Court's decision in Mansukhlal
Vithaldas Chauhan (Supra) and Vasanti Dubey (Supra) to the facts of
case in hand and upon scrutiny of impugned orders, I find that in the light
of closure reports filed by respondent-CBI, impugned order of 16th
August, 2016 cannot be sustained and is accordingly set aside. As a
consequence thereof, orders of 18th February and 18th April, 2017 also do
not survive for consideration and are hereby set aside.
With the aforesaid directions, these petitions and the applications
are accordingly disposed of.
(SUNIL GAUR)
JUDGE
APRIL 26, 2019
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