Delhi High Court
C.B.I. vs State & Anr. on 14 August, 2019
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Order: August 14, 2019
+ CRL.M.C. 829/2011 & CRL.M.A. 3145/2011
C.B.I. ..... Petitioner
Through: Mr. Ripu Daman Bhardwaj,
Special Public Prosecutor with
DSP Manoj Pathak.
Versus
STATE & ANR. .....Respondents
Through: Mr. M.P. Singh, Additional Public
Prosecutor for State with SI Tej
Ram.
+ CRL.M.C. 2925/2014 & CRL.M.As. 10082/2014 & 13606/2015
SANDEEP MALIK & ANR. .....Petitioners
Through: Ms. Kaadambari & Mr. Navin Kr.
Thakur, Advocates.
Versus
STATE & ANR. .....Respondents
Through: Mr. M.P. Singh, Additional Public
Prosecutor for State with SI Tej
Ram.
Mr. Ripu Daman Bhardwaj,
Special Public Prosecutor for CBI
with DSP Manoj Pathak.
+ CRL.REV.P. 173/2011 & CRL.M.As. 16728/2017 & 20647/2017
BALKRISHAN ..... Petitioner
Through: Mr. Vikas Arora & Ms. Radhika
Arora, Advocates.
CRL.M.C. 829/2011 & connected cases Page 1 of 9
Versus
THE STATE (NCT OF DELHI) THR. CBI .....Respondent
Through: Mr. M.P. Singh, Additional Public
Prosecutor for State with SI Tej
Ram.
Mr. Ripu Daman Bhardwaj,
Special Public Prosecutor for CBI
with DSP Manoj Pathak.
+ CRL.M.C. 5104/2017 & CRL.M.A. 20094/2017
KRISHAN GULIA & ANR. .....Petitioners
Through: Ms. Kaadambari & Mr. Navin Kr.
Thakur, Advocates.
Versus
THE STATE GOVT OF NCT OF DELHI & ANR. ....Respondents
Through: Mr. M.P. Singh, Additional Public
Prosecutor for State with SI Tej
Ram.
Mr. Ripu Daman Bhardwaj,
Special Public Prosecutor for CBI
with DSP Manoj Pathak.
+ CRL.REV.P. 198/2018 & CRL.M.A. 4305/2018
CENTRAL BUREAU OF INVESTIGATION ..... Petitioner
Through: Mr. Ripu Daman Bhardwaj,
Special Public Prosecutor with
DSP Manoj Pathak.
Versus
THE STATE GOVT OF NCT OF DELHI & ANR. ....Respondents
Through: Mr. M.P. Singh, Additional Public
Prosecutor for State with SI Tej
Ram.
CRL.M.C. 829/2011 & connected cases Page 2 of 9
CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR
ORDER
In the above captioned first petition, the challenge is to order of 1st
November, 2010 vide which trial court has refused to club FIR No.
592/02 of Police Station Najafgarh, Delhi and RC No. 4(S)/2003.
Vide impugned order of 14th December, 2010 trial court has
refused to discharge Krishan Gulia & Sandeep Malik as charge against
them already stood framed in Sessions Case No. 06/09 under Sections
307/353/186 of IPC & under Section 25 of Arms Act.
In the above captioned second petition, quashing of FIR 592/2002,
under Sections 186/353/307/34 of IPC r/w Sections 25/27/54 of Arms
Act, registered at Police Station Najafgarh, Delhi is sought and in the
alternate discharge of petitioners-Sandeep Malik & Krishan Gulia is
sought on the basis of final report filed by CBI in R.C. No. 4(S)/2003-
SIU-1, New Delhi.
In the above captioned third petition, prayer is made to re-consider
the sanction aspect before proceeding further in RC No. 4(S)/2003, under
Section 302/364/120-B/218 of IPC, titled as 'CBI Vs. Balkrishan‟. In the
above captioned fourth and fifth petition quashing of order of 6th
September, 2017 is sought.
With the consent of learned counsel for both the sides, the above
captioned petitions have been heard together and are being disposed of by
this common order while treating CRL.REV.P. 173/2011 as lead case.
The factual background of this case as noticed in the trial court's
order of 6th September, 2017 are as under:-
"The case of the prosecution in brief is that, on
17.10.2002, an FIR bearing No. 592/2002 was registered at
PS Najafgarh for the offence under Section 186/353/307 IPC
read with Section 25/27 of Arms Act, on the complaint filed by
Sub-Inspector Bal Krishan (accused herein), who was posted
at Anti Auto Theft Squad, South West District, New Delhi.
The allegations contained in the FIR were that SI Bal
Krishan received a secret information regarding the movement
of a notorious criminal Vivek @ Vicky who remained involved
in as many as seventeen cases of heinous nature. On the basis
of this information a trap was laid with the permission of
superior officers and that on 16.10.2002 when the Maruti car
bearing No. DL 8 CD 5284, in which the accused Vivek @
Vicky and his gang members were travelling, was intercepted
in the area of Jharoda Kalan, Najafgarh, Delhi and the
inmates of the car opened the fire towards the police party.
The police team in which all the accused persons (herein)
were the members also fired in self defence. Due to this cross
firing, two inmates of the car namely, Mandeep S/o Shri
Dayanand, Vivek @ Vicky S/o Shri Prem Raj sustained injury,
who were declared dead in R.T.R.M. Hospital,Jaffarpurkalan,
Delhi. Two other inmates of the car, namely, Krishan Gulia
and Sandeep Malik were apprehended from the spot. As these
two persons were alongwith their two other associates who
died in the Hospital obstructed and assaulted the public
servant to deter the in discharge of their official duty as well
as they also attempted to commit murder of these police
officials by firing towards them, the said FIR under the
relevant provisions of law was registered".
It is matter of record that aforesaid Balkrishan had assailed the
charge-sheet filed by CBI for the afore-referred offences in CRL.REV.P.
173/2011 titled as 'Balkrishan Vs. State NCT of Delhi THR. CBI‟. Vide
this Court's order of 18th May, 2011 trial court was called upon to deal
with the sanction aspect and its consequences on the framing of charge
and till then recording of evidence was to be kept in abeyance. In
compliance of the aforesaid order of 18th May, 2011 trial court vide order
of 6th September, 2017 has concluded as under:-
"Hence, I am of considered opinion that in the present case
filed by the CBI, the cognizance should not have been taken
and the charge, as framed by ld. Predecessor, should not
have been framed and the accused, the police officials are
entitled to be discharged".
In CRL.REV.P. 173/2011 discharge is now sought by petitioner-
Balkrishan on the strength of order of 6th September, 2017, whereas in
CRL.M.C. 5104/2017, Petitioners-Krishan Gulia & Sandeep Malik seek
quashing of the aforesaid order of 6th September, 2017. In CRL.REV.P.
198/2018, CBI has also sought quashing of the aforesaid order of 6th
September, 2017, whereas in CRL.M.C. 829/2011, CBI seeks discharge of
petitioners-Krishan Gulia & Sandeep Malik in CRL.M.C. 2925/2014.
The challenge to impugned order of 6th September, 2017 by CBI
and petitioners-Krishan Gulia & Sandeep Malik is on the ground that CBI
has not concluded in the charge-sheet that Balkrishan and his co-accused
had done the act in discharge of their official duty. It was submitted that
sanction for prosecution of Balkrishan and his co-accused is not required
because they eliminated Vivek @ Vicky in a fake encounter. So, it is
submitted that the compliance of Section 140 of Delhi Police Act and
Section 197 of Cr.P.C. is not required.
It was submitted that decisions relied upon by trial court are of no
assistance in the case in hand. It was further submitted that the CBI case
has been stayed by virtue of order of this Court of 5th March, 2003 and so,
continuance of proceedings arising out of the FIR in question is exercise
in futility and the proceedings emanating therefrom ought to be quashed.
Reliance was placed by petitioner's counsel upon Supreme Court's
decisions in 'Sankaran Moitra Vs. Sadhna Das and Another‟ (2006) 4
SCC 584; 'Satyavir Singh Rathi, Assistant Commissioner of Police and
Others Vs. State Through Central Bureau of Investigation‟ (2011) 6 SCC
1 and „Paul George Vs. State of NCT of Delhi‟ 2008(3) SCALE 614 in
support of above submissions.
The submissions advanced have been duly considered and the
impugned order has been scrutinised in the light of the decisions cited and
thereupon, it transpires that issue of sanction raised goes to the root of the
matter. Trial court in the impugned order has duly considered various
decisions of Supreme Court and this Court and the crux of the impugned
order is as under:-
"48. The expression "institution of prosecution" has to be
understood in the context of scheme of the Act applicable in a
particular case and so far as the criminal proceedings are
concerned, "institution" does not mean filing, presenting or
initiating the proceedings, rather it mean taking cognizance as
per the provision contained in the Code of Criminal
Procedure. The power of the State is performed by an
executive authority authorised in this behalf in terms of the
rule of executive business framed under Article 166 of the
Constitution of India in so far as such a power has to be
exercised in terms of Article 162 of Constitution of India.
Reference can be given of para 24 of the judgment of the
Hon‟ble Apex Court in case titled General Officer
Commanding Vs. CBI reported as AIR 2012 SC 1890. Thus, to
say that if the application of Section 140 D.P. Act is to be
construed so strictly, then it will preclude even the Hon‟ble
Supreme Court and Hon‟ble High Court to pass order for
investigation beyond the period prescribed under Section 140
D.P. Act or it will loose its significance and will be bad in law,
as is the contention raised by the CBI before this court, is
groundless and hence rejected.
49. In view of my said discussion, I am of considered
opinion that sanction under Section 140 D.P. Act was required
in the present CBI case which has not been obtained at all and
period of limitation for obtaining the same has expired long
back.
50. Now, the question arises of non-obtaining of sanction
under Section 140 D.P. Act and its effect on the charge. The
Hon‟ble Supreme Court in the case titled Anjani Kumar Vs.
State of Bihar reported as AIR 2008 SC 1992 has held that in
such a situation, the continuance of proceedings by the
prosecution would amount to abuse of the process of law and
as such, the criminal proceedings in the court of ld. Chief
Judicial Magistrate, Begu Sarai in PS Case No. 63 of 1993 are
quashed. Similarly, Hon‟ble High Court of Delhi in Crl.Misc.
(M) No. 672 of 1995 and Crl.Misc No. 1003/1995 decided on
22.11.2000 titled Kiran Bedi Vs. NCT of Delhi & another has
held that in the absence of any sanction under Section 140
D.P. Act, cognizance could not have been taken because of the
bar created in that provision of law.
51. Hence, I am of considered opinion that in the present case
filed by the CBI, the cognizance should not have been taken
and the charge, as framed by ld. Predecessor, should not have
been framed and the accused, the police officials are entitled
to be discharged".
Reliance placed by learned counsel for Krishan Gulia & Sandeep
Malik and Special Public Prosecutor for CBI upon Supreme Court's
decisions in Satyavir Singh Rathi, Assistant Commissioner of Police and
Others (Supra) & Paul George (Supra) is of no avail, as in the said
decisions Supreme Court's earlier three judge Bench decision in Sankaran
Moitra (Supra) has not been considered.
Three Judge Bench decision in Sankaran Moitra (Supra) succinctly
deals with the sanction aspect and the pertinent observations made therein
are as under:-
"25. The High Court has stated that killing of a person by use
of excessive force could never be performance of duty. It may
be correct so far as it goes. But the question is whether that
act was done in the performance of duty or in purported
performance of duty. If it was done in performance of duty or
purported performance of duty, Section 197(1) of the Code
cannot be bypassed by reasoning that killing a man could
never be done in an official capacity and consequently Section
197(1) of the Code could not be attracted. Such a reasoning
would be against the ratio of the decisions of this Court
referred to earlier. The other reason given by the High Court
that if the High Court were to interfere on the ground of want
of sanction, people will lose faith in the judicial process,
cannot also be a ground to dispense with a statutory
requirement or protection. Public trust in the institution can be
maintained by entertaining causes coming within its
jurisdiction, by performing the duties entrusted to it diligently,
in accordance with law and the established procedure and
without delay. Dispensing with of jurisdictional or statutory
requirements which may ultimately affect the adjudication
itself, will itself result in people losing faith in the system. So,
the reason in that behalf given by the High Court cannot be
sufficient to enable it to get over the jurisdictional requirement
of a sanction under Section 197(1) of the Code of Criminal
Procedure. We are therefore satisfied that the High Court was
in error in holding that sanction under Section 197(1) was not
needed in this case. We hold that such sanction was necessary
and for want of sanction the prosecution must be quashed at
this stage. It is not for us now to answer the submission of
learned counsel for the complainant that this is an eminently
fit case for grant of such sanction".
Applying the afore-noted dictum in Sankaran Moitra (Supra) to the
facts of the instant case, I find that the impugned order does not suffer
from any illegality and infirmity.
In light of the aforesaid reasoning, petitioner-Balkrishan and his co-
accused are hereby discharged in RC No. 4(S)/2003/CBI/SCR-1/N. Delhi,
under Sections 302/364/120-B of IPC. So far as discharge sought by
Krishan Gulia & Sandeep Malik in the FIR case is concerned, I find that
they have been charge-sheeted in FIR No. 592/2002 registered at Police
Station Najafgarh for the offence under Sections 186/353/307 of IPC read
with Sections 25 & 27 of Arms Act and the charge for the aforesaid
offences has been already framed by the trial court. Upon prima-facie
consideration of the merits of the case, I find that CBI has found the
evidence against Krishan Gulia & Sandeep Malik to be insufficient.
In the light of the final report submitted by CBI, continuance of
proceedings in the aforesaid FIR case, would be exercise in futility.
Resultantly, the proceedings emanating from the aforesaid FIR case qua
Krishan Gulia & Sandeep Malik are set at rest.
The above captioned petitions and applications are accordingly
disposed of in the aforesaid terms.
(SUNIL GAUR)
JUDGE
AUGUST 14, 2019
p‟ma
