Delhi High Court
Anil Kumar vs State Thr. Cbi on 22 December, 2021
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Reserved on: 10th December, 2021
Pronounced on: 22nd December, 2021
+ CRL.M.C. 3973/2011 & CRL.M.A. 18337/2021
ANIL KUMAR ..... Petitioner
Through: Mr. Dayan Krishnan, Sr. Advocate
with Mr. Amit Sharma, Advocate
versus
STATE THR. CBI ..... Respondent
Through: Mr. Nikhil Goel, SPP for CBI
CORAM:
HON'BLE MR. JUSTICE CHANDRA DHARI SINGH
JUDGMENT
CHANDRA DHARI SINGH, J.
1. The Petitioner has approached this Court by way of the instant
petition under Section 482 of the Code of Criminal Procedure (hereinafter
referred to as "Code") praying for quashing of First Information Report
dated 10th June 2009 bearing number RC 2(A)/2009/CBI/ ACU- VI/New
Delhi lodged against the Petitioner, the subsequent charge sheet filed in
pursuance thereof, order on charge and all the proceedings arising out of
it. Another Application bearing CRL. M.A. - 18337/2021 has also been
filed before this Court under Section 482 of the Code inter alia seeking
clarification as to application of the interim orders passed on 29 th July
2019 as subsisting and in force.
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2. Before adverting to the submissions made by the learned counsels
for parties, it is essential to highlight the factual background of the instant
matter.
FACTUAL MATRIX
3. The Petitioner was posted as an Assistant Engineer at the
Municipal Corporation of Delhi (hereinafter, referred to as "MCD"),
South Zone from December 2006 till May 2009. The petitioner was
responsible to look after thirteen wards including Ward No. 174,
Chattarpur Extension where the alleged unauthorized construction took
place.
4. In Civil Writ Petition No. 4771 of 1993 titled as Common Cause v.
Union of India, this High Court issued certain directions regarding the
unauthorized construction in Delhi. These directions were also published
in newspapers by Urban Development Department, National Capital
Territory of Delhi on 14th September 1998. The directions issued by the
Hon'ble High Court Delhi are as under:
"We restrain all concerned from carrying out any
construction activities in unauthorised colonies. We
make it clear that not only the person constructing,
namely, the owner of unauthorised construction but
others also who, directly or indirectly, aid and assist
the unauthorised construction particularly, the
Builders, Contractors, Architects, concerned Junior
Engineers and Station House Officers would be
severely dealt with in case unauthorised construction
activity in violation of the Order of this Court is
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noticed. Besides, the officers would also be liable for
departmental action. It will be expected from the
Government to take immediate departmental action
against their officers in case it is found that within the
area of their jurisdiction unauthorised construction
was being undertaken."
5. With reference to the directions of the High Court dated 3rd
November 1993, the Commissioner of MCD had issued Circular No.
D/401/Addl.CM(E)/97 dated 13th November 1997 to curb unauthorized
construction s in Delhi. Relevant portion of the Order is extracted
hereunder:
"The High Court in the matter No.6093/96, 174, 1610,
6476, 6875/97 and 7829/93 & 4889/94 in CWP
No.4771/93 issued certain directions on 3.11.1993.
One of the directions is as under: -
We restrain all concerned from carrying out any
construction activities in unauthorised colonies. We
make it clear that not only the person constructing,
namely, the owner of unauthorised construction but
others also who, directly or indirectly, aid and assist
the unauthorised constructions particularly, the
Builders, Contractors, Architects, concerned Junior
Engineers and Station House Officers would be
severally dealt with in case unauthorised construction
activity in violation of the order of this court is
noticed. Besides the Officers would also be liable for
departmental action. It will be expected from the
Government to take immediate departmental action
against their officers in case it is found that within the
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area of their jurisdiction unauthorised construction
was being undertaken."
2. It is, therefore, impressed upon all D.M.C. and the
staff of the Building Department to keep a strict vigil
on the construction activities in the unauthorized
colonies. Any laxity would be taken very seriously,
and the defaulters would be liable to stem disciplinary
action."
6. The FIR bearing number RC 2(A)/2009/CBI/ACU-VI/New Delhi
was registered by the Central Bureau of Investigation (hereinafter,
referred to as "CBI") on 10th June 2009 in wake of the unauthorized
construction in the South Zone of the MCD. It was alleged in the FIR that
the illegal construction was carried "under the patronage of MCD
officials in collusion with the plot owners by accepting illegal
gratification of Rs. two lakhs per floor." It was further averred in the FIR
that MCD officers were submitting false reports to the monitoring
committee as required under the standing instructions coupled with the
office order dated 20th August 2001 issued by the Commissioner of MCD.
7. It was further stated in the FIR that three buildings on plot
number(s) A-360, B-60 and B-322 respectively were being constructed
without any authorization from the concerned authorities. These plots
were situated in B-Block, Chhatarpur Extension, New Delhi where any
sort of construction was barred.
8. The FIR further averred that the unauthorized construction was
taking place in furtherance of the conspiracy entered into between the
three officers namely the Petitioner/Accused Anil Kumar (Assistant
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Engineer), Shri Sunil Dawar (Assistant Engineer) and Shri Surender
Kumar (Junior Engineer) with the owner/builder for allowing
unauthorized construction after obtaining illegal gratification. Based on
the aforesaid, the FIR was registered under Sections 13(2) and 13(1)(d) of
the Prevention of Corruption Act, 1988 (hereinafter referred to as "PC
Act"), read with Section 120-B of the Indian Penal Code, 1860
(hereinafter referred to as "IPC").
9. In pursuance of the said case, investigation was carried on by the
CBI and upon completion of the same, a charge sheet bearing number
01/2010 for commission of offences under Sections 13(2) and 13(1)(d) of
the PC Act read with Section 120-B of the IPC was filed before the
Special Judge, CBI Cases in the Patiala House Courts, Delhi on 27th
September 2010. The Chargesheet inter alia included the recovery of Rs.
67,38,000 in cash made from the locker of the Petitioner and his relatives.
10. In furtherance of the same, and in view of the recoveries made and
the allegations levelled in the FIR, sanction was granted by the
Commissioner of MCD for prosecution of the Petitioner under Section
19(1)(c) of the PC Act.
11. After detailed consideration, charges were framed by the Learned
Special judge on 12th August 2011. The order on charge states that as per
the order dated 20th August 2001 issued by the Commissioner of MCD, it
was the duty of the present Petitioner to detect unauthorized construction
by carrying out inspection. It was further stated in the order on charge
that the present petitioner by acting in connivance with Surendra Kumar
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(Junior Engineer) submitted false inspection reports in the period of
January-June 2009. Relying upon a decision of the Hon'ble Supreme
Court in Union of India v. Prafulla Kumar Samal AIR 1979 SC 366,
statements of witnesses and recoveries made, the Special Judge held that
in light of the facts and recovery made, a prima facie case has been made
out against the accused and thus the charges were framed under Sections
13(2) and 13(1)(d) of the PC Act read with Section 120-B of the IPC.
12. The Petitioner had approached this Hon'ble Court by way of filing
the instant petition on 11th November 2011. Considering the decision of
this Court in A.K. Ganju v. CBI 2013 SCC OnLine Del 4686, an Interim
Order was passed by this Court on 15th September 2014 directing the Trial
Court to continue with the proceedings however restraining it from
announcing any final decision until further orders by this Court.
SUBMISSIONS
13. Mr. Dayan Krishnan learned senior counsel appearing for the
petitioner has primarily advanced three arguments which form the crux of
the case for the petitioner.
a. Firstly, he contended that the land on which the
alleged illegal construction was being carried on was
under the jurisdiction of Revenue Department,
implying thereby that the Municipal Corporation of
Delhi or its officers have no jurisdiction over the said
land rather the Patwari is the competent authority of
the concerned area. It was thus submitted that the
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present Petitioner has neither the jurisdiction nor any
involvement whatsoever with the unauthorized
construction;
b. Secondly, learned senior counsel vehemently
argued that the Petitioner never signed or generated
any report to be sent to the monitoring committee. On
the same note, he submitted that Petitioner never
granted any permission or approved the construction
that was allegedly illegally ongoing on the said plot of
land. He also submitted that the Petitioner has a
supervisory role while the person responsible for on
field inspection are the executive engineers; and
c. Lastly, it was argued that from the facts and
circumstance of the case, no offense can be said to be
made out under Section 13(1)(d) of the PC Act since
there is no conscious demand and acceptance of the
bribe by the petitioner herein, as required by various
rulings of this Court.
To buttress his arguments, the learned counsel has placed reliance
on judgments of this Court. He referred to paragraph 111 of the judgment
in the case of A.K. Ganju v. CBI 2013 SCC OnLine Del 4686.
14. He also drew the attention of this court to the judgment of the High
Court in Ashwini Kumar Batra v. CBI 2011 SCC OnLine Del 2641,
specifically paragraphs 63 and 68 of the said judgement to contend that
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whenever an unauthorized construction takes place, the Junior Engineer
needs to report to the Assistant Engineer, who is further required to issue
a show cause notice to the person concerned under his signature.
15. Per Contra, learned Standing Counsel on behalf of CBI drew the
attention of the Court to the Office Order dated 20th August 2001, issued
by Commissioner's Office, MCD, New Delhi. As per Standing
Instructions issued vide the Office Order, inspection of unauthorized
construction in respective area is to be carried out by Junior Engineer,
Assistant Engineer and Executive Engineer in 7 days, 15 days, and 30
days respectively. Inspection report mentioning the areas visited and
unauthorized construction detected, if any, were to be sent positively to
the next higher officer in hierarchy. Further as per clause 3 of the Office
order No. PSC/716/2008 dated 12th September 2008 issued by Shri K S
Mehra, Commissioner, MCD, New Delhi the detection of unauthorized
construction at the first level shall be carried out by the Junior Engineers
and Assistant Engineers of the concerned zones under the supervision of
Executive Engineers. Additionally, as per clause 8 of the same Office
Order, JE of each ward of the zone would every month issue a certificate
under his signature certifying that there is no unauthorized construction/or
encroachment of Govt./Municipal land. This certificate should also give
details regarding ongoing unauthorized construction and/or encroachment
and action taken thereof as per provisions of Delhi Municipal Corporation
Act, 1972 (hereinafter referred to as the "DMC Act").
16. Thus, the inspection in the former clause needs to be carried out by
the Junior and Assistant Engineers under the supervision of Executive
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Engineers whereas in the latter clause, Junior Engineer is required to issue
a certificate under his signature detailing the unauthorized construction as
per the provisions of the DMC Act. Based on these clauses, it is submitted
that detection of unauthorized construction and the concerned duties was
an integral part of the duties of the officials of the Municipal Corporation
of Delhi including the Petitioner and hence, it would be wrong to contend
that the Petitioner merely had a supervisory role in the entire exercise.
17. It was also argued by the counsel for the Respondent that the
agricultural land comes under the purview of the Revenue authorities as
long as the land is used for agricultural purposes but once the construction
activities have started, the jurisdiction is conferred with the Municipal
Corporation of Delhi. It is submitted relying on Section 507 of the DMC
Act that revenue authorities were only required to issue certificate for
converting the land from agricultural to commercial purposes however
when the same is not done, the MCD will always have a jurisdiction when
no plan has been approved by it. The Counsel submitted that, hence, the
Petitioner will always have a role to play when an unauthorized
construction takes place on a land, be it agricultural or commercial.
18. It is also brought to the notice of this Court that the Petitioner has
been taking contradictory stands. It is because once the present FIR was
registered, the same division of MCD decided to register an FIR under
Section 332 of the DMC Act. Extending the argument, it is submitted that
if MCD had no jurisdiction on the said property, then how come the
actions were initiated by them subsequently. It has also been argued that
the arguments of Petitioner regarding the jurisdiction have already been
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canvassed before the learned Special judge when the order on charge was
framed and on a prima facie satisfaction, he framed the charges. Further,
the trial has been concluded and the matter is posted for arguments before
the Trial Court. At this stage, it may not be appropriate for this Court to
delve into the merits and scrutiny of evidence while exercising inherent
jurisdiction under Section 482 of the Code. Thus, no interference is
warranted by this Hon'ble Court at this stage.
19. Concluding his arguments, learned Standing Counsel has submitted
that the instant petition ought to be dismissed, for the reasons stated
hereunder:
A) Firstly, the dispute regarding jurisdiction as being raised is
unwarranted since:
a. properties in dispute as shown in FIR falls within the
territorial jurisdiction of MCD;
b. as per Sections 331 and 332 of Chapter XVI of DMC
Act, building regulation regarding erection of building
is applicable on any building, on any site, irrespective
of the land, whether it is agricultural or otherwise; and
c. lodging of the FIR by MCD under Section 332 of the
DMC Act, subsequent to the registration of FIR by
CBI in the same matter regarding unauthorized
construction in pursuance of the Order of the Court in
Common Cause (supra), clearly shows that the MCD
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has the jurisdiction;
B) Secondly, there is ample material on record and substantial
recovery has been made on the basis of which the charges
have been framed and order on charge passed by the learned
Trial Court; and
C) Thirdly, the Trial is at a mature stage posted for final
arguments and the instant petition under Section 482 has
remained pending since 11th November 2011, and no good
grounds are made out for exercise of the Court's jurisdiction
under Section 482.
20. In the course of arguments, learned Standing Counsel on behalf of
CBI made passing reference to a catena of judgments of the Supreme
Court. Specific reliance has been placed on paragraphs 9.1 and 9.2 of
Kaptan Singh v. State of U.P. (2021) 9 SCC 35 dealing with the
restraints on the exercise of Section 482 jurisdiction of the Court.
21. The rival submissions now fall for consideration before this
Hon'ble Court.
ANALYSIS & FINDINGS
22. Heard the counsels for parties and perused the record at length.
23. Before adverting to the analysis of the arguments made and case
laws cited by the parties, to appreciate the case at hand, it is pertinent to
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refer to the law laid down in this context along with a perusal of the
statutory scheme of the Code.
(i) Sanction for Prosecuting Public Servants
24. It is to be noted that the prosecution in the present matter is not of
an ordinary citizen but of a government official involved in discharging
important functions of public importance. Unlike, an ordinary criminal
prosecution, such government officials' prosecution needs to be
sanctioned by the government under Section 197 of the Code. Thus, the
present prosecution has passed an additional layer of scrutiny in the form
of sanction before being prosecuted before the Ld. Special judge. Before
adverting to the sanction order, it is essential to refer to the rationale of
introducing the need for sanctioning for the government officials.
25. In this regard, it is essential to take note of the case of Rakesh
Kumar Mishra v. State of Bihar, (2006) 1 SCC 557, where the Hon'ble
Apex Court examined the legislative intent behind the grant of sanction in
the following words:
"6. The protection given under Section 197 is to
protect responsible public servants against the
institution of possibly vexatious criminal proceedings
for offences alleged to have been committed by them
while they are acting or purporting to act as public
servants. The policy of the legislature is to afford
adequate protection to public servants to ensure that
they are not prosecuted for anything done by them in
the discharge of their official duties without
reasonable cause, and if sanction is granted, to confer
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on the Government, if it chooses to exercise it,
complete control of the prosecution. This protection
has certain limits and is available only when the
alleged act done by the public servant is reasonably
connected with the discharge of his official duty and is
not merely a cloak for doing the objectionable act. If
in doing his official duty, he acted in excess of his
duty, but there is a reasonable connection between the
act and the performance of the official duty, the excess
will not be a sufficient ground to deprive the public
servant from the protection. The question is not as to
the nature of the offence such as whether the alleged
offence contained an element necessarily dependent
upon the offender being a public servant, but whether
it was committed by a public servant acting or
purporting to act as such in the discharge of his
official capacity. Before Section 197 can be invoked, it
must be shown that the official concerned was accused
of an offence alleged to have been committed by him
while acting or purporting to act in the discharge of
his official duties."
26. The present petitioner has passed this muster of sanction under
Section 197 of the Code whereby his superior officer, Mr. K.S. Mehra
after considering the evidence and statements on record held that:
"And whereas the aforesaid acts, omissions and
commissions on the part of Shri Anil Kumar, AE, Shri
Surender Kumar, JE, Jasbir Deswal, Sarabjit Singh,
Wasim Khan and Pavitra Singh constitute offences
punishable u/s,120-B IPC r/w13 (2)r/w 13 (1) (d) of
PC Act, 1988.
Now, therefore, I, K.S. Mehra, Commissioner,
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Municipal Corporation of Delhi being the authority,
competent to remove said Shri Anil Kumar, Asstt.
Engineer, Municipal Corporation of Delhi from his
office, after fully and carefully examining all the facts
and circumstances of the case as well as the material
including the statements of witnesses recorded under
section 161 of Cr.P.C. and the documents placed
before me in regard to the said allegations,
considered that Shri Anil Kumar, Asstt. Engineer
should be prosecuted in the court of law for the said
offences."
(ii) Summoning
27. The veracity of the prima facie case as being alleged against the
petitioner got further strengthened by the subsequent process where the
Court concerned summoned the accused upon its satisfaction and
subsequently went ahead with the framing of charges.
28. The Hon'ble Supreme Court in the case of Pepsi Foods Ltd. v.
Special Judicial Magistrate (1998) 5 SCC 749 has laid down the law
pertaining to material relevant for the purpose of summoning as under:
"28. Summoning of an accused in a criminal case is a
serious matter. Criminal law cannot be set into motion
as a matter of course. It is not that the complainant
has to bring only two witnesses to support his
allegations in the complaint to have the criminal law
set into motion. The order of the Magistrate
summoning the accused must reflect that he has
applied his mind to the facts of the case and the law
applicable thereto. He has to examine the nature of
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allegations made in the complaint and the evidence
both oral and documentary in support thereof and
would that be sufficient for the complainant to succeed
in bringing charge home to the accused. It is not that
the Magistrate is a silent spectator at the time of
recording of preliminary evidence before summoning
of the accused. The Magistrate has to carefully
scrutinise the evidence brought on record and may
even himself put questions to the complainant and his
witnesses to elicit answers to find out the truthfulness
of the allegations or otherwise and then examine if
any offence is prima facie committed by all or any of
the accused."
29. The Hon'ble Supreme Court in the case of Chandra Deo Singh v.
Prokash Chandra Bose AIR 1963 SC 1430 has also highlighted the
purpose of issuance of summons as under:
"7. ...No doubt, one of the objects behind the
provisions of Section 202 CrPC is to enable the
Magistrate to scrutinise carefully the allegations made
in the complaint with a view to prevent a person
named therein as accused from being called upon to
face an obviously frivolous complaint. But there is
also another object behind this provision and it is to
find out what material there is to support the
allegations made in the complaint. It is the bounden
duty of the Magistrate while making an enquiry to
elicit all facts not merely with a view to protect the
interests of an absent accused person, but also with a
view to bring to book a person or persons against
whom grave allegations are made. Whether the
complaint is frivolous or not has, at that stage,
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necessarily to be determined on the basis of the
material placed before him by the complainant..."
30. Thus, the test for issuance of summons essentially involves
determining whether the offense can be said to have been committed
upon a perusal of the material on record. The satisfaction of the authority
for issuing summons does not require a detailed scrutiny but a mere
prima-facie satisfaction of the magistrate concerned.
(iii) Framing of Charges & Order on Charge
31. The Hon'ble Bombay High Court in the case of Samadhan
Baburao Khakare v. State of Maharashtra, 1995 SCC OnLine Bom 72
has highlighted the objective and importance of Charge in criminal trial in
the following words:
"11. The whole purpose and object of framing
charges is to enable the defence to concentrate its
attention on the case that he has to meet, and if the
charge is framed in such a vague manner that the
necessary ingredients of the offence with which the
accused is convicted is not brought out in the charge
then the charge is not only defective but illegal. It is
no doubt that when the accused is charged with a
major offence, he can be convicted of a minor offence.
It is true that what is major offence and what is minor
offence is not defined. The gravity of offence must
depend upon the severity of the punishment that can
be inflicted, but the major and the minor offences must
be cognate offences which have the main ingredients
in common, and a man charged with one offence
which is entirely of a different nature from the offence
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which is proved to have been committed by him,
cannot in the absence of a proper charge be convicted
of that offence, merely on the ground that the facts
proved constitute a minor offence. For example, a
man charged with an offence of murder cannot be
convicted for forgery or misappropriation of funds, or
such offences which do not constitute offences against
person, the reason being that the accused had no
opportunity in such a case to make defence, which
may have been open to him, if he had been charged
with the offence for which he is to be convicted."
32. The Hon'ble Supreme Court in the case of Santosh Kumari v. State
of J&K, (2011) 9 SCC 234 has comprehensively dealt with the question
and purpose of framing of charges as under:
"18. The object of the charge is to give the accused
notice of the matter he is charged with and does not
touch jurisdiction. If, therefore, the necessary
information is conveyed to him in other ways and
there is no prejudice, the framing of the charge is not
invalidated. The essential part of this part of law is
not any technical formula of words but the reality,
whether the matter was explained to the accused and
whether he understood what he was being tried for.
Sections 34, 114 and 149 IPC provide for criminal
liability viewed from different angles as regards
actual participants, accessories and men actuated by
a common object or a common intention; and as
explained by a five-Judge Constitution Bench of this
Court in Willie (William) Slaney v. State of M.P. [AIR
1956 SC 116 : 1956 Cri LJ 291 : (1955) 2 SCR 1140]
SCR at p. 1189, the charge is a rolled-up one
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involving the direct liability and the constructive
liability without specifying who are directly liable and
who are sought to be made constructively liable."
33. The Hon'ble Supreme Court in Main Pal v. State of Haryana,
(2010) 10 SCC 130 observed as follows:
"(i) The object of framing a charge is to enable an
accused to have a clear idea of what he is being tried
for and of the essential facts that he has to meet. The
charge must also contain the particulars of date, time,
place and person against whom the offence was
committed, as are reasonably sufficient to give the
accused notice of the matter with which he is
charged."
Thus, what can be seen from the above extract is the fact that the
object of framing of charge is to make the accused aware about the
defense that is required to be brought in through evidence and witnesses.
34. It is also required to be noted that the charge does not render a
conclusive finding with respect to guilt or innocence of the accused. The
charge is merely an indication to the accused about the offense for which
he is being tried for. In this regard, it is essential to take note of the
following observation of the Hon'ble Supreme Court in Esher Singh v.
State of A.P. (2004) 11 SCC 585, where the Hon'ble Court observed:
"20. Section 2(b) of the Code of Criminal Procedure,
1973 (in short "the Code") defines "charge" as
follows:
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"2. (b) „charge‟ includes any head of charge when the
charge contains more heads than one;"
The Code does not define what a charge is. It is the
precise formulation of the specific accusation made
against a person who is entitled to know its nature at
the earliest stage. A charge is not an accusation made
or information given in the abstract, but an accusation
made against a person in respect of an act committed
or omitted in violation of penal law forbidding or
commanding it. In other words, it is an accusation
made against a person in respect of an offence alleged
to have been committed by him. A charge is
formulated after inquiry as distinguished from the
popular meaning of the word as implying inculpation
of a person for an alleged offence as used in Section
224 IPC."
35. In the instant case, charges were framed by the learned Special
judge on 12th August 2021 after detailed consideration of the material on
record. The order on charge states that as per the order dated 20 th August
2001 issued by the Commissioner of Municipal Corporation of Delhi, it
was the duty of the present Petitioner to detect unauthorized construction
by carrying out inspection. It was further stated in the order on charge that
the present petitioner by acting in connivance with Surendra Kumar
(Junior Engineer) submitted false inspection reports in the period of
January-June 2009.
36. Further, it is pertinent to take note of certain observations made in
the order on charge:
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"16. Prima faciely, there is sufficient evidence on
record to establish that A-1 Anil Kumar remained
posted as Assistant Engineer In MCD, South Zone
from December 2006 to 10.06.2009 and was looking
after Ward No.174 i.e. Chhattarpur Extension which
is supported by documentary evidence D-47, D-57 and
the statement of PW-26. As per office order dated
20.08.2001 issued by Commissioner IMCD, it was the
duty of A-1 Anil Kumar to detect the unauthorized
construction at the first level and to carry out
Inspection of the area under his jurisdiction in every
15 days which is supported by the documentary
evidence and statement of PW-39. There is evidence
on record that he in connivance with A-2 Surender
Kumar who did not submit the inspection report of the
ward concerned during the period from January 2009
to June 2009 and forwarded a false monthly report of
A-Surender Kumar. There is evidence on record that
action was not taken against alleged unauthorized
construction on three plots which supports the
allegations that A-1 Anil Kumar (AE) and A-2
Surender Kumar (JE) allowed the unauthorized
construction by abusing their official position as such
public servants.
17. There is evidence on record that during
investigation cash amounting to Rs. 67 Lacs was
recovered from the locker of A-1 Anil Kumar (AE) and
his family members along with incriminating
documents pertaining to immovable properties which
prima facie corroborates the allegation of corruption
and misuse of official position by A-1 Anil Kumar
(AE). PW9, PW25 and PW 44 have stated that A-1
Anil Kumar and A-2 Surender Kumar were bribed by
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A-5 Jasbeer Singh Deshwal, A-4 Pavltar Singh, A-5
Sarabjit Singh and A-6 Washim Khan.There is
evidence that A-2 Surender Kumar was duty bound to
check the unauthorized construction in his area at first
level and to take action but instead of taking action he
submitted false monthly report showing unauthorized
construction in his area and accepted bribes along
with A-1 Anil Kumar from A-3, A-4, A-5 and A-6 and
thereby abused his official position as such public
servant."
37. Relying upon a decision of the Hon'ble Supreme Court in Union of
India v. Prafulla Kumar Samal AIR 1979 SC 366, statements of
witnesses and recoveries made, the Special Judge held that in light of the
facts and recovery made, a prima facie case has been made out against
the accused and thus the charges were framed under Sections 13(2) and
13(1)(d) of the PC Act read with Section 120-B of the IPC.
38. This court is of the view that in light of the recoveries made and
statement made by the independent witnesses, it cannot be ruled out that
the petitioner has been involved in the commission of Sections 13(2) and
13(1)(d) of the PC Act read with Section 120-B of the IPC. Thus, this
court finds no infirmity, illegality or perversity in the order on charge for
which the inherent powers need to be exercised under Section 482 of the
Code especially when the matter is listed for final arguments.
(iv) Section 482 of the Code
39. The jurisdiction of this Court has been invoked under Section 482
of the Code, which reads as under:
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482. Saving of inherent powers of High Court. -
Nothing in this Code shall be deemed to limit or affect
the inherent powers of the High Court to make such
orders as may be necessary to give effect to any order
under this Code, or to prevent abuse of the process of
any Court or otherwise to secure the ends of justice.
The bare language of the provision unambiguously states that the
inherent powers of the High Court are meant to be exercised (i) to give
effect to any order under the Code (ii) to prevent abuse of the process of
any Court; or (iii) to secure the ends of justice.
40. The aforementioned provision has been referred, analyzed and
interpreted in a catena of judgments of the Hon'ble Supreme Court which
are referred to in the following paragraphs.
41. In the case of Kaptan Singh v. State of U.P., (2021) 9 SCC 35, the
Hon'ble Supreme Court has held that:
9.1 At the outset, it is required to be noted that in the
present case the High Court in exercise of powers
under Section 482 Cr.P.C. has quashed the criminal
proceedings for the offences under Sections 147, 148,
149,406, 329 and 386 of IPC. It is required to be
noted that when the High Court in exercise of powers
under Section 482 Cr.P.C. quashed the criminal
proceedings, by the time the Investigating Officer after
recording the statement of the witnesses, statement of
the complainant and collecting the evidence from the
incident place and after taking statement of the
independent witnesses and even statement of the
accused persons, has filed the charge-sheet before the
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Learned Magistrate for the offences under Sections
147, 148, 149, 406, 329 and386 of IPC and even the
learned Magistrate also took the cognizance. From
the impugned judgment and order passed by the High
Court, it does not appear that the High Court took
into consideration the material collected during the
investigation/inquiry and even the statements
recorded. If the petition under Section 482 Cr.P.C.
was at the stage of FIR in that case the allegations in
the FIR/Complaint only are required to be considered
and whether a cognizable offence is disclosed or not is
required to be considered. However, thereafter when
the statements are recorded, evidence is collected and
the charge-sheet is filed after conclusion of the
investigation/inquiry the matter stands on different
footing and the Court is required to consider the
material/evidence collected during the investigation.
Even at this stage also, as observed and held by this
Court in catena of decisions, the High Court is not
required to go into the merits of the allegations and/or
enter into the merits of the case as if the High Court is
exercising the appellate jurisdiction and/or
conducting the trial. As held by this Court in the case
of Dineshbhai Chandubhai Patel (Supra) in order to
examine as to whether factual contents of FIR disclose
any cognizable offence or not, the High Court cannot
act like the Investigating agency nor can exercise the
powers like an Appellate Court. It is further observed
and held that question is required to be examined
keeping in view, the contents of FIR and prima facie
material, if any, requiring no proof. At such stage, the
High Court cannot appreciate evidence nor can it
draw its own inferences from contents of FIR and
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material relied on. It is further observed it is more so,
when the material relied on is disputed. It is further
observed that in such a situation, it becomes the job of
the Investigating Authority at such stage to probe and
then of the Court to examine questions once the
charge-sheet is filed along with such material as to
how far and to what extent reliance can be placed on
such material.
9.2 In the case of Dhruvaram Murlidhar Sonar
(Supra) after considering the decisions of this Court in
Bhajan Lal (Supra), it is held by this Court that
exercise of powers under Section 482 Cr.P.C. to
quash the proceedings is an exception and not a rule.
It is further observed that inherent jurisdiction under
Section 482 Cr.P.C. though wide is to be exercised
sparingly, carefully and with caution, only when such
exercise is justified by tests specifically laid down in
section itself. It is further observed that appreciation
of evidence is not permissible at the stage of quashing
of proceedings in exercise of powers under Section
482 Cr.P.C. Similar view has been expressed by this
Court in the case of Arvind Khanna (Supra),
Managipet (Supra)and in the case of XYZ (Supra),
referred to hereinabove.
42. In Jitul Jentilal Kotecha v. State of Gujarat and Others, 2021
SCC OnLine SC 1045, the Hon'ble Supreme Court has recently held
that:
27. It is trite law that the High Court must exercise its
inherent powers under Section 482 sparingly and with
circumspection. In the decision in Jugesh Sehgal v.
Shamsher Singh Gogi, this Court has held that,
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"[t]he inherent powers do not confer an arbitrary
jurisdiction on the High Court to act according to
whim or caprice." In Simrikhia v. Dolley Mukherjee,
this Court in another context, while holding that the
High Court cannot exercise its inherent powers to
review its earlier decision in view of Section 362 of
the CrPC, observed that the inherent powers of the
High Court cannot be invoked to sidestep statutory
provisions. This Court held:
"5. ...Section 482 enables the High Court to
make such order as may be necessary to give
effect to any order under the Code or to prevent
abuse of the process of any court or otherwise
to secure the ends of justice. The inherent
powers, however, as much are controlled by
principle and precedent as are its express
powers by statute. If a matter is covered by an
express letter of law, the court cannot give a go-
by to the statutory provisions and instead evolve
a new provision in the garb of inherent
jurisdiction."
31. Recently, in Mahendra KC v. State of Karnataka,
this Court has reiterated the well settled test to be
applied by the High Court for exercise of its powers
under Section 482 for quashing an FIR:
"16...the test to be applied is whether the
allegations in the complaint as they stand,
without adding or detracting from the
complaint, prima facie establish the ingredients
of the offence alleged. At this stage, the High
Court cannot test the veracity of the allegations
nor for that matter can it proceed in the manner
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that a judge conducting a trial would, on the
basis of the evidence collected during the
course of trial."
43. On 11th December 2021, the Hon'ble Supreme Court while
deciding the case of State of Odisha v. Pratima Mohanty (Criminal
Appeal No.s 1455-1456 of 2021) has comprehensively dealt with the
powers and extent of the jurisdiction of the High Court while deciding a
petition under Section 482 of the Code. The Hon'ble Supreme Court has
held as under:
6. As held by this Court in the case of State of
Haryana and Ors. vs Ch. Bhajan Lal and Ors. AIR
1992 SC 604, the powers under Section 482 Cr.P.C.
could be exercised either to prevent an abuse of
process of any court and/or otherwise to secure the
ends of justice. In the said decision this Court had
carved out the exceptions to the general rule that
normally in exercise of powers under Section 482
Cr.P.C. the criminal proceedings/FIR should not be
quashed. Exceptions to the above general rule are
carved out in para 102 in Bhajan Lal (supra) which
reads as under:
"102. In the backdrop of the interpretation of the
various relevant provisions of the Code under
Chapter XIV and of the principles of law
enunciated by this Court in a series of decisions
relating to the exercise of the extraordinary power
under Article 226 or the inherent powers under
Section 482 of the Code which we have extracted
and reproduced above, we give the following
categories of cases by way of illustration wherein
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such power could be exercised either to prevent
abuse of the process of any court or otherwise to
secure the ends of justice, though it may not be
possible to lay down any precise, clearly defined
and sufficiently channelized and inflexible
guidelines or rigid formulae and to give an
exhaustive list of myriad kinds of cases wherein
such power should be exercised.
(1) Where the allegations made in the first
information report or the complaint, even if they
are taken at their face value and accepted in their
entirety do not prima facie constitute any offence
or make out a case against the accused.
(2) Where the allegations in the first information
report and other materials, if any, accompanying
the FIR do not disclose a cognizable offence,
justifying an investigation by police officers under
Section 156(1) of the Code except under an order
of a Magistrate within the purview of
Section155(2) of the Code.
(3) Where the uncontroverted allegations made in
the FIR or complaint and the evidence collected in
support of the same do not disclose the commission
of any offence and make out a case against the
accused.
(4) Where the allegations in the FIR do not
constitute a cognizable offence but constitute only
a non-cognizable offence, no investigation is
permitted by a police officer without an order of a
Magistrate as contemplated under Section 155(2)
of the Code.
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(5) Where the allegations made in the FIR or
complaint are so absurd and inherently
improbable on the basis of which no prudent
person can ever reach a just conclusion that there
is sufficient ground for proceeding against the
accused.
(6) Where there is an express legal bar engrafted
in any of the provisions of the Code or the
concerned Act (under which a criminal proceeding
is instituted) to the institution and continuance of
the proceedings and/or where there is a specific
provision in the Code or the concerned Act,
providing efficacious redress for the grievance of
the aggrieved party.
(7) Where a criminal proceeding is manifestly
attended with mala fide and/or where the
proceeding is maliciously instituted with an
ulterior motive for wreaking vengeance on the
accused and with a view to spite him due to private
and personal grudge."
6.2 It is trite that the power of quashing should be
exercised sparingly and with circumspection and in
rare cases. As per settled proposition of law while
examining an FIR/complaint quashing of which is
sought, the court cannot embark upon any enquiry as
to the reliability or genuineness of allegations made in
the FIR/complaint. Quashing of a complaint/FIR
should be an exception rather than any ordinary rule.
Normally the criminal proceedings should not be
quashed in exercise of powers under Section482
Cr.P.C. when after a thorough investigation the
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chargesheet has been filed. At the stage of discharge
and/or considering the application under Section 482
Cr.P.C. the courts are not required to go into the
merits of the allegations and/or evidence in detail as if
conducing the mini-trial. As held by this Court the
powers under Section482 Cr.P.C. is very wide, but
conferment of wide power requires the court to be
more cautious. It casts an onerous and more diligent
duty on the Court.
44. The position of law that is crystallized, in light of the
aforementioned judgments, is that quashing should be an exception and
the Section 482 jurisdiction for the same should be exercised sparingly,
with circumspection and in rarest of the rare cases. Further, while
examining an FIR for quashing, the court cannot (a) enter into the merits
of the case, (b) embark upon a roving enquiry or (c) conduct a trial as to
the reliability or genuineness of allegations made in the FIR; nor (d) it has
to see the probability of conviction on the basis of evidence on record -
what is required is to be seen that whether there has been an abuse of
process or interests of justice requires the proceedings to be quashed. In
this case, in light of the aforesaid analysis, a case for exercise for Section
482 jurisdiction is not made.
45. The counsel for petitioner has heavily relied on a judgment of the
High Court in A.K. Ganju v. CBI (supra). After having gone through the
ratio of the judgment, and analyzing the case at hand, it is essential to
distinguish the aforementioned judgment for the reasons that firstly, the
facts of the case are not similar to the one at hand; secondly, the criminal
proceedings in the instant case arise out of the directions of this Court in
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Common Cause v. Union of India (supra) qua illegal and unauthorized
construction as contrasted to the facts of the A. K. Ganju case; and
thirdly, in the instant case, the MCD has itself initiated criminal
proceedings by way of lodging of FIR details of which have been
mentioned earlier as well as the sanction for prosecuting the public
servants in question been granted by the superior officer of the petitioner
upon his satisfaction.
46. Upon a perusal of the contentions raised as well as the record,
specifically - the chargesheet, order on charge, and further in light of the
recoveries made during the investigation, this Court neither finds any
force in the arguments made by the learned Counsel for petitioner nor
finds any apparent error in the finding of the Court below, since a prima
facie case is made out against the accused. This court is also of the
opinion in view of the evidence on record that the possibility of offense
under the said sections cannot be ruled out. Thus, the baton is before the
trial court which has to proceed with the final arguments since the trial is
completed to examine the merits of the case as against the nature of
jurisdiction conferred upon this Court under Section 482 of Code.
47. Considering the above, this Court does not deem it fit to interfere
with the order on charge of the Trial Court.
CONCLUSION
48. In view of these facts and circumstances and having perused the
provisions of law, this Court finds no merit in the instant petition, a case
for exercise of Section 482 jurisdiction is not made out and is therefore,
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inclined to dismiss the same. Hence, this Court does not allow the instant
petition as prayed for.
49. Accordingly, the petition and pending applications stand dismissed.
50. The judgment be uploaded on the website forthwith.
(CHANDRA DHARI SINGH)
JUDGE
DECEMBER 22, 2021
dy
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