Delhi High Court
Cbi vs Sachin Garg on 9 March, 2022
$~85
*IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.M.C. 1069/2022 & CRL.M.A.4596/2022
Date of Decision: 09.03.2022
CBI ..... Petitioner
Through: Mr.Nikhil Goel, SPP for CBI with
Mr.Bipin Mishra, Investigating Officer.
versus
SACHIN GARG ..... Respondent
Through:
CORAM:
HON'BLE MS. JUSTICE ANU MALHOTRA
JUDGMENT(ORAL)
CRL.M.A.4597/2022 (Ex.)
1. Exemption allowed subject to all just exceptions.
The application stands disposed of.
CRL.M.C. 1069/2022
2. The petitioner, vide the present petition seeks the setting aside of the
orders dated 13.01.2022 and 07.03.2022 of the Court of the learned Special
Judge, PC Act (CBI-03), Rouse Avenue, District Court, New Delhi in Misc. DJ
ASJ : 90/2021. The impugned orders dated 13.01.2022 and 07.03.2022 indicate
that the respondent to the petition Mr.Sachin Garg has not been a party to the
proceedings which have been impugned and it is submitted on behalf of the CBI
that he is an accused in relation to RC No.219/2021 E0007 registered on
22.09.2021.
Signature
Not Verified
Digitally Signed
By:SUMIT GHAI
Signing
Date:15.03.2022
16:45:22
This file is
digitally signed by
PS to HMJ ANU
3. It is informed on behalf of the CBI in reply to a specific Court query that
the investigation is still in progress and that the said Mr.Sachin Garg has so far
not been arrested.
4. The petitioner is aggrieved by the order dated 13.01.2022 of the learned
Special Judge, PC Act (CBI-03), Rouse Avenue, District Court, New Delhi
which on a perusal thereof is indicated to be on an application under Section 17
of the Prevention of Corruption Act, 1988 (hereinafter referred to as the PC Act,
1988) filed on behalf of the CBI seeking permission to entrust the investigation
of the case RC No.219/2021 E0007 to Sh. T.D. Tripathi, Sub Inspector of
Police, CBI. EO-I, New Delhi, in as much as, vide the said order dated
13.01.2022 whilst there was no adjudication of the prayer made by the
petitioner qua the application under Section 17 of the PC Act, 1988 seeking
permission for entrustment of the investigation of the RC No.219/2021 E0007
to Sh. T.D. Tripathi, Sub Inspector of Police, CBI. EO-I, New Delhi, it had been
observed vide paragraphs 8, 9, 10 & 11 to the effect:-
"8. In view of the above facts, instant application has been moved
seeking permission to entrust the instant case to Sh. T.D. Tripathi,
Sub Inspector of Police, CBI. EO-I, New Delhi for investigation.
9. Various opportunities have been given to the prosecution to
explain the circumstances preceding the present application,
however, no opportunity has been utilized and it is repeated
merely due to occupation of IOs i.e. SSPs, DSPs and Inspectors of
the Branch being pre-occupying with investigation of other cases
entrusted to them and being busy with investigation of Coal Block
Allocation case, no IO of appropriate rank for conducting
investigation is available. The averment as it on its face sounds is
devoid of reasonableness and substance. At the threshold, it be
observed that no material by way of any document to suggest
number of IOs, their names and their being assigned investigation
of which matter is detailed. In a general manner, casually and
Signature carelessly as a matter of right and assertion it is being claimed.
Not Verified
Digitally Signed
By:SUMIT GHAI
Signing
Date:15.03.2022
16:45:22
This file is
digitally signed by
PS to HMJ ANU
Any govt. official who is assigned to any department is expected to
perform the work and it cannot be a ground for taking away the
jurisdiction that he is busy. Furthermore, the responsibility of
equivalent, fair and proper work assignment and distribution of
work is the duty and part of responsibility of the Administrative
Head of the Department. Nowhere any material by way of any
noting/copy etc. to show any application of mind in discharge of
above responsibility is pointed out or is substantiated to suggest
peculiarity of circumstances having been arisen out of exhausting
work load or being beyond control for which he has applied
reasons and despite the same been left helpless. In this
background, the possibilities of the submissions having arisen
from an unscrupulous background cannot be completely
dislodged. It also indicates towards the incompetence of the
concerned partially involved in forming the contents of present
application.
10. In the circumstance above, it is necessary that the Department
Head/In-charge, who in this case is Director, CBI, must be
forwarded a link to give him an opportunity of proper explanation
and also show requisite material declining
investigation/assignment to appropriate of officer rank holder
competent to conduct the investigation and to propose the
investigation being shouldered by an officer of lesser rank. He
may also in the meanwhile submit the requisite material
suggesting the name(s) of the officials/officers under disposal in
the Branch, their assignment and the progress of investigation
having been carried out to such extent necessitating directions
prayed under this application.
11. In view of the aforesaid, let the matter be fixed for
07.03.2022."
5. The application dated 21.10.2021 that the CBI had filed seeking grant of
permission under Section 17 of the PC Act, 1988 to transfer the investigation of
the case to Sh. T.D. Tripathi, Sub Inspector of Police, CBI. EO-I, New Delhi to
investigate the matter in relation to RC No.219/2021 E0007 registered under
sections of the Indian Penal Code, 1860 and the Prevention of Corruption Act,
Signature
Not Verified 1988 made mention inter alia to the effect:-
Digitally Signed
By:SUMIT GHAI
Signing
Date:15.03.2022
16:45:22
This file is
digitally signed by
PS to HMJ ANU
"4. That this case was initially entrusted to Sh. Bipin Kumar
Mishra, Inspector, CBI, EO-I, New Delhi for investigation. Sh.
Bipin Kr. Mishra, Inspector, CBI, EO-I, New Delhi is already
occupied with investigation of another case i.e. RC 219 2019 E
0002 and pairvi of many other cases.
5. That all the other investigating officers viz. Addl. SSP, Dy. SSP,
and Inspectors of this branch are preoccupied with investigation
of other cases entrusted to them. Most of the IOs of this branch
are also investigating Coal block allocation Cases which is being
monitored by the Hon'ble Supreme Court of India.
6. That in view of this, it is proposed to entrust the investigation of
the instant case RC 219 2021 E 0007 to Sh. T.D.Tripathi, Sub-
Inspector of Police, CBI, EO-I, New Delhi for investigation after
obtaining permission from this Hon'ble Court U/s 17 of PC Act,
1988.
7. That Sh. T.D.Tripathi, Sub-Inspector of Police, CBI, EO-I, New
Delhi is an efficient officer of this branch. He has already been
assisting other senior investigating officers in similar bank fraud
cases, he has been working in CBI since 2016 and has experience
to handle such bank fraud cases."
6. It has thus been submitted on behalf of the CBI that all that the CBI
sought vide the said application was that Sh. T.D. Tripathi, Sub Inspector of
Police, CBI. EO-I, New Delhi be allowed to assist the Investigating Officer in
the matter and it is submitted on behalf of the CBI that the import of Section 17
of the PC Act, 1988 which reads as under:-
"Section 17 in The Prevention of Corruption Act, 1988
17. Persons authorised to investigate.--Notwithstanding anything
contained in the Code of Criminal Procedure, 1973 (2 of 1974),
no police officer below the rank,--
(a) in the case of the Delhi Special Police Establishment, of an
Inspector of Police;
Signature
Not Verified
Digitally Signed
By:SUMIT GHAI
Signing
Date:15.03.2022
16:45:22
This file is
digitally signed by
PS to HMJ ANU
(b) in the metropolitan areas of Bombay, Calcutta, Madras and
Ahmedabad and in any other metropolitan area notified as such
under sub-section (1) of section 8 of the Code of Criminal
Procedure, 1973 (2 of 1974), of an Assistant Commissioner of
Police;
(c) elsewhere, of a Deputy Superintendent of Police or a police
officer of equivalent rank, shall investigate any offence punishable
under this Act without the order of a Metropolitan Magistrate or a
Magistrate of the first class, as the case may be, or make any
arrest therefor without a warrant: Provided that if a police officer
not below the rank of an Inspector of Police is authorised by the
State Government in this behalf by general or special order, he
may also investigate any such offence without the order of a
Metropolitan Magistrate or a Magistrate of the first class, as the
case may be, or make arrest therefor without a warrant: Provided
further that an offence referred to in clause (e) of sub-section (1)
of section 13 shall not be investigated without the order of a
police officer not below the rank of a Superintendent of Police.",
in terms of the verdict of this Court in "CENTRAL BUREAU OF
INVESTIGATION Versus M/S BHUSHAN POWER AND STEEL LIMITED
(BPSL) AND ORS." in CRL.M.C.1724/2020, a verdict dated 11.08.2021 with
specific observations in paragraph 11 thereof, which reads to the effect:-
"11. The Trial Court by passing the impugned order not only
failed to appreciate the mandate of Section 17 of the PC Act,
1988 but also failed in its duty to follow the import of above
referred exposition of law. The Special Judge is empowered
under Section 17 of the PC Act, 1988 to permit an officer
below the requisite rank to assist the Investigating Officer in
conducting investigation provided the steps taken by him are
under direct supervision of the Investigation Officer who
remains in control of the investigation and shall be
responsible for all the steps that are taken by the subordinate
officer.",
Signature
Not Verified
Digitally Signed
By:SUMIT GHAI
Signing
Date:15.03.2022
16:45:22
This file is
digitally signed by
PS to HMJ ANU
with reference therein having been made to the verdict of the Hon'ble Supreme
Court in "H.N. Rishbud and Inder Singh v. State of Delhi" AIR 1955 SC 196
with observations in paragraph 6 thereof which reads to the effect:-
"6. It is in the light of this scheme of the Code that the scope of a
provision like Section 5(4) of the Act has to be judged. When
such a statutory provision enjoins that the investigation shall be
made by a police officer of not less than a certain rank, unless
specifically empowered by a Magistrate in that behalf,
notwithstanding anything to the contrary in the Criminal
Procedure Code, it is clearly implicit therein that the
investigation (in the absence of such permission) should be
conducted by the officer of the appropriate rank. This is not to
say that every one of the steps in the investigation has to be done
by him in person or that he cannot take the assistance of
deputies to the extent permitted by the Code to an officer in
charge of a police station conducting an investigation or that he
is bound to go through each of these steps in every case. When
the Legislature has enacted in emphatic terms such a provision
it is clear that it had a definite policy behind it....",
as well as a reference to the observations in the verdict of the Hon'ble Supreme
Court in "Muni Lal v. Delhi Administration" AIR 1971 SC 1525 with
observations in paragraph 16 thereof, which reads to the effect:-
"16. The High Court found irregularity in the investigation on the
basis, as pointed out earlier, that some of the statements are in the
hand writing of Ved Prakash. We are of the view that this was a
wrong approach made by the High Court. It is clear front the
evidence that PW 6 was in complete charge and control of the
investigation and he has never withdrawn from the same at any
stage. He was the officer who was controlling and giving
necessary directions in the course of investigation. Though it is
clearly implicit in Section 5-A that the investigation should be
conducted by the officer of the appropriate rank, we do not think it
is absolutely necessary that every one of the steps in the
investigation has to be done by him in person or that he cannot
Signature take the assistance of his deputies or that he is bound to go
Not Verified
Digitally Signed
By:SUMIT GHAI
Signing
Date:15.03.2022
16:45:22
This file is
digitally signed by
PS to HMJ ANU
through each and everyone of the steps in the investigation in
every case. The above proposition also has been laid down by this
Court in H.N. Rishbud and Inder Singh v. The State of Bihar
1955Cri LJ 526. We are referring to the above aspect to
emphasise that the mere fact that some of the statements have
been written by Ved Prakash to the dictation of PW 6 will not
make the investigation as one not conducted by PW 6. Therefore,
under the circumstances, we are not inclined to agree with the
view of the High Court that there has been any irregularity or
illegality in the conduct of the investigation.",
to contend to the effect that all that the CBI thus sought through the application
dated 21.10.2021 was that Sh. T.D. Tripathi, Sub Inspector of Police, CBI. EO-
I, New Delhi assisted the Investigating Officer in the case and it is only to this
extent the prayer ought to have been read.
7. It is submitted further on behalf of the CBI that the observations in
paragraph 10 of the impugned order dated 13.01.2022 of the learned Special
Judge, PC Act (CBI-03), Rouse Avenue, District Court, New Delhi calling upon
the Director, CBI to give an explanation to show requisite material declining
investigation/assignment to an appropriate officer rankholder competent to
conduct the investigation and to propose the investigation being shouldered by
an officer of lesser rank and also to submit the requisite material suggesting the
name(s) of the officials/officers under disposal in the Branch, their assignment
and the progress of investigation having been carried out to such extent
necessitating directions prayed under the application was not within the domain
of the learned Special Judge, in as much as, the learned Special Judge, PC Act
(CBI-03), Rouse Avenue, District Court, New Delhi does not hold
administrative control over the Director, CBI, which contention is apparently
correct.
Signature
Not Verified
Digitally Signed
By:SUMIT GHAI
Signing
Date:15.03.2022
16:45:22
This file is
digitally signed by
PS to HMJ ANU
8. It is essential to observe that the observations made in the impugned order
dated 13.01.2022 in paragraph 9 to the effect that:-
"....
In this background, the possibilities of the submissions having
arisen from an unscrupulous background cannot be completely
dislodged. It also indicates towards the incompetence of the
concerned partially involved in forming the contents of present
application.",
are also apparently scathing made without material and there ought to have been
exercise of due judicial restraint in making such observations.
9. It was undoubtedly, however, open to the learned Special Judge, PC Act
(CBI-03), Rouse Avenue, District Court, New Delhi to decline the application
under Section 17 of the PC Act, 1988 that had been filed by the petitioner/CBI.
10. The observations in the impugned order dated 13.01.2022 in paragraphs 9
& 10 which read to the effect:-
".....
In this background, the possibilities of the submissions
having arisen from an unscrupulous background cannot be
completely dislodged. It also indicates towards the
incompetence of the concerned partially involved in forming
the contents of present application.
10. In the circumstance above, it is necessary that the
Department Head/In-charge, who in this case is Director,
CBI, must be forwarded a link to give him an opportunity of
proper explanation and also show requisite material
declining investigation/assignment to appropriate officer
rankholder competent to conduct the investigation and to
propose the investigation being shouldered by an officer of
lesser rank. He may also in the meanwhile submit the
requisite material suggesting the name(s) of the
Signature officials/officers under disposal in the Branch, their
Not Verified
Digitally Signed
By:SUMIT GHAI
Signing
Date:15.03.2022
16:45:22
This file is
digitally signed by
PS to HMJ ANU
assignment and the progress of investigation having been
carried out to such extent necessitating directions prayed
under this application.",
are thus, directed to be set aside.
11. As regards the prayer made vide the present petition seeking the setting
aside of the consequential impugned order dated 07.03.2022, whereby, the
prayer made by the applicant/petitioner seeking permission to withdraw the
application dated 16.02.2022 for entrustment of the investigation to Sh. T.D.
Tripathi, Sub Inspector of Police, CBI. EO-I, New Delhi was sought to be
withdrawn, it has been submitted on behalf of the CBI that the proceedings of
the date 07.03.2022 before the learned Special Judge, PC Act (CBI-03), Rouse
Avenue, District Court, New Delhi itself indicate that a statement had been
made by Mr.B.K.Mishra, Inspector which had been recorded separately and it is
informed on behalf of the CBI that that statement that had been made was to the
effect that the investigation of RC No.219/2021 E0007 has since been assigned
to Inspector Sudhir Kumar, EO-1 and that thus, in the circumstances, there was
no prayer left qua invocation of Section 17(a) of the PC Act, 1988, in as much
as, an Investigating Officer of the rank of an Inspector of the EO-1 CBI has
already been entrusted with the investigation of RC No.219/2021 E0007. It has
been submitted on behalf of the petitioner that apart from the factum that the
prayer made by the petitioner seeking to withdraw thus the application dated
16.02.2022 having not been granted, and not disposed of, it was observed vide
paragraph 11 to 35 of the impugned order dated 07.03.2022 thereof to the
effect:-
"11. At the threshold, it be observed that from the aforementioned
proceedings since inception of present application up till now,
following legal questions arise necessitating answer:
Signature
Not Verified
Digitally Signed
By:SUMIT GHAI
Signing
Date:15.03.2022
16:45:22
This file is
digitally signed by
PS to HMJ ANU
(i) Whether the application u/s 17 P.C. Act can be withdrawn by the
prosecution while on the application the prosecution has proceeded
with the arguments and court has made its mind ft1sqr1 by issuance
of directions, as "withdrawal simpliciter?
(ii) While the proceedings are still alive and surviving and directions
in operation, can by application of withdrawal simpliciter the
proceedings be deemed to have been "wiped off' and rendered "non-
est" without an attempt of compliance or explanation i.e. whether the
proceedings can alter the clock
in motion to its inception in disregard of consequent events unfolded
as acts of prosecution ?
(iii) Whether an irregularity can be allowed to remain uncured by
allowing an application of simpliciter withdrawal ?
12. At this stage, it becomes necessary to note the relevant
provision of Section 17 P.C. Act and are highlighted as below :
"17. Persons authorized to investigate-Notwithstanding anything
contained in the Code of Criminal Procedure, 1973 (2 of 1974), no
police officer below the rank-
(a) in the case of the Delhi Special Police Establishment of an
Inspector of Police
(b) in the metropolitan areas of Bombay, Calcutta, Madras and
Ahmedabad and in any other metropolitan area notified as such
under sub-section (1) of section 8 of the Code of Criminal
Procedure, 1973 (2 of 1974), of an Assistant Commissioner of
Police;
(c) elsewhere, of a Deputy Superintendent of Police or a police
officer of equivalent rank shall investigate any offence punishable
under this Act without the order of a Metropolitan Magistrate or a
Magistrate of the first class, as the case may be, or make any arrest
therefor without a warrant:
Provided that if a police officer not below the rank of an
Signature Inspector of Police is authorised by the State Government in this
Not Verified
Digitally Signed
By:SUMIT GHAI
Signing
Date:15.03.2022
16:45:22
This file is
digitally signed by
PS to HMJ ANU
behalf by general or special order, he may also investigate any such
offence without the order of a Metropolitan Magistrate or a
Magistrate of the first class, as the case may be, or make arrest
therefor without a warrant:
Provided further that an offence referred to in clause (e) of
sub-section (1) of section 13 shall not be investigated without the
order of a police officer not below the rank of a Superintendent of
Police."
13. The aforementioned provision is part of the "Special Act", which
without dispute has an overriding effect on the general provisions to
the extent of its applicability, which is time and again reiterated and
upheld beyond which the application of general provisions under
Code of Criminal Procedure is upheld by Hon'ble Supreme Court
and is settled through judgments of A.R. Antuley vs. R.S. Nayak :
AIR 1984 SC 718, Subramanian Swamy Vs. Manmohan Singh :
2012 (3) SCC 64 and Guruduth Prabha & Orc. vs. M.S. Krishna
Bhat & Ors.: (1999) Cri LJ 3909.
14. Further, the relevant provision amplifying and extending the
applicability and scope of general provision is highlighted in
Section 22 of PC Act and again in Section 5 of P.C. Act. The
relevant provisions of Section 22 are also observed as below,
whereas the relevant provisions of Section 5 are also noted below:
"22. The Code of Criminal Procedure, 1973 to apply subject to
certain modifications.-The provisions of the Code of Criminal
Procedure, 1973 (2 of 1974), shall in their application to any
proceeding in relation to an offence punishable under this Act have
effect as, if-
(a) in sub-section (I) of section 243, for the words "The accused
shall then be called upon", the words "The accused shall then be
required to give in writing at once or within such time as the court
may allow, a list of the persons (if any) whom he proposes to
examine as his witnesses and of the documents (if any) on which he
proposes to rely and he shall then be called upon" had been
substituted;
Signature
Not Verified
Digitally Signed
By:SUMIT GHAI
Signing
Date:15.03.2022
16:45:22
This file is
digitally signed by
PS to HMJ ANU
(b) in sub-section (2) of section 309, after the third proviso, the
following proviso had been inserted, namely:-
"Provided also that the proceeding shall not be adjourned or
postponed merely on the ground that an application under section
397 has been made by a party to the proceeding.
(c) after sub-section (2) of section 317, the following sub-section had
been inserted, namely:-
"(3) Notwithstanding anything contained in sub-section (1) or sub-
section (2), the Judge may, if he thinks fit and for reasons to be
recorded by him, proceed with enquiry or trial in the absence of the
accused or his pleader and record the evidence of any witness
subject to the right of the accused to recall the witness for cross-
examination."
(d) in sub-section (1) of section 397, before the Explanation, the
following proviso had been inserted, namely:- "Provided that where
the powers under this section are exercised by a court on an
application made by a party to such proceedings, the court shall not
ordinarily call for the record of the proceedings,-
(a) without giving the other party an opportunity of showing cause
why the record should not be called for; or
(b) if it is satisfied that an examination of the record of the
proceedings may be made from the certified copies.
Section - 5: Procedure and powers of special Judge.- (1) A special
Judge may take cognizance of offences without the accused being
committed to him for trial and, in trying the accused persons, shall
follow the procedure prescribed by the Code of Criminal Procedure,
1973 (2 of 1974), for the trial of warrant cases by Magistrates.
(2) A special Judge may, with a view to obtaining the evidence of
Signature any person supposed to have been directly or indirectly concerned
Not Verified
Digitally Signed
By:SUMIT GHAI
Signing
Date:15.03.2022
16:45:22
This file is
digitally signed by
PS to HMJ ANU
in, or privy to, an offence, tender a pardon to such person on
condition of his making a full and true disclosure of the whole
circumstances within his knowledge relating to the offence and to
every other person concerned, whether as principal or abettor, in the
commission thereof and any pardon so tendered shall, for the
purposes of sub-sections (1) to (5) of section 308 of the Code of
Criminal Procedure, 1973 (2 of 1974), be deemed to have been
tendered under section 307 of that Code.
(3) Save as provided in sub-section(1) or sub-section (2), the
provisions of the Code of Criminal Procedure, 1973 (2 of 1974),
shall, so far as they are not inconsistent with this Act, apply to the
proceedings before a special Judge; and for the purposes of the said
provisions, the Court of the special Judge shall be deemed to be a
Court of Session and the person conducting a prosecution before a
special Judge shall be deemed to be a public prosecutor.
(4) In particular and without prejudice to the generality of the
provisions contained in sub-section (3), the provisions of sections
326 and 475of the Code of Criminal Procedure, 1973 (2 of 1974),
shall,so far as may be, apply to the proceedings before a special
Judge and for the purposes of the said provisions, a special Judge
shall be deemed to be a Magistrate.
(5) A special Judge may pass upon any person convicted by him any
sentence authorised by law for the punishment of the offence of
which such person is convicted.
(6) A special Judge, while trying an offence punishable under this
Act,
shall exercise all the powers and functions exercisable by a District
Judge
under the Criminal Law Amendment Ordinance, 1944 (Ord.38 of
1944).
15. The applicability of none of the aforementioned provisions is in
dispute.
16. While referring to the first question that I have posted in the
present order as whether the present proceedings arising out of
application under Section 17 P.C. Act can be allowed to be
Signature withdrawn ' "simpliciter" ", vide no specific provision to show any
Not Verified
Digitally Signed
By:SUMIT GHAI
Signing
Date:15.03.2022
16:45:22
This file is
digitally signed by
PS to HMJ ANU
such provision is stated from P.C. Act, (moreso, due to above noted
avoidance/assistance appears), in which scenario the only provision
which speaks of only withdrawal of proceedings appears to be
available under the general Code, application of which is discussed
above u/s 321 Cr.P.C. For the benefit, the said provision is also
reproduced below:
"321. Withdrawal from prosecution. - The Public Prosecutor or
Assistant Public Prosecutor in charge of a case may, with the
consent of the Court at any time before the judgment is pronounced,
withdraw from the prosecution of any person either generally or in
respect of any one or more of the offences for which he is tried; and
upon such withdrawal-
(a) If it is made before a charge has been framed, the accused shall
be discharged in respect of such offence or offences;
(b) if it is made after a charge has been framed, or when under this
Code no charge is required he shall be acquitted in respect of such
offence or offences;
Provided that where such offence-
(i) was against any law relating to a matter to which the executive
power of the Union extends, or
(ii) was investigated by the Delhi Special Police Establishment under
the Delhi Special Police Establishment Act, 1946 (25 of 1946), or
(iii) involved the misappropriation or destruction of, or damage to,
any property belonging to the Central Government, or
(iv) was committed by a person in the service of the Central
Government while acting or purporting to act in the discharge of his
official duty, and the prosecutor in charge of the case has not been
appointed by the Central Government he shall not, unless he has
been permitted by the Central Government to do so, move the Court
for its consent to withdraw from the prosecution and the Court shall,
before according consent, direct the Prosecutor to produce before it
the permission granted by the Central Government to withdraw from
the prosecution
17. However, the scope available under the aforementioned
procedure (W/s 321 Cr.P.C.) is only for withdrawal of the
Signature
Not Verified "proceedings" and not an application specifically. Even, if the scope
Digitally Signed
By:SUMIT GHAI
Signing
Date:15.03.2022
16:45:22
This file is
digitally signed by
PS to HMJ ANU
is stretched considerably and it is sought to be presumed for the
advantage of investigating agency and prosecution that the present
application and the orders thereupon may cumulatively form
proceedings, still it falls short on many requisites, necessitating its
consideration therein. Even, the gist, substance and intent of the
provision u/s 321 does not find any "semblance" from the intended
prayer in the application before hand. Hence, so to say, as of now,
no material is specifically available to show that the present
application after having been filed and proceedings having ensued
before the court can be permitted to be withdrawn simpliciter.
18. Whether the withdrawal proceedings will also make surviving
judicial proceedings non-est, non-compliable or deemed to have
been closed and are hence to be disregarded any response, is
another question which needs to be responded by prosecution.
19. Again, I am unable to find any such proposition having been put
forth. It is a settled proposition that when an application for
withdrawal of any proceedings of any nature is made over, it shifts
the position of an applicant to a place where he was i.e. before the
proceedings ensued, started or commenced. However, it is also a
settled law that if during course of proceedings by virtue of the
proceedings on the applications any orders came to be made or any
or an interest is created or any damage is caused the same needs to
be first addressed and met before the proceedings are allowed to
reverse to the earlier position. Moreover, any such plea made
subsequent to the court's application of mind cannot reverse the
stand initially taken by the party (in this case CBI), whereby the
initial position is allowed to be voluntarily abandoned since the
court is also navigated along to secure such distance or purpose
disclosed in the application.
20. Further, the order of 13.01.2022, the necessary inference in
favour of the public at large is created as the courts are custodian of
their interest and rights to seek redressal of an accountability put in
the investigation' by virtue of its engaging the status of public trust.
Again at the cost of repetition, it is observed that in order dated
13.01.2022, it was specifically noted "It also indicates towards the
incompetence of the concerned partially involved in forming the
Signature
Not Verified
contents of present application" on which account the requisite
Digitally Signed
By:SUMIT GHAI
Signing
Date:15.03.2022
16:45:22
This file is
digitally signed by
PS to HMJ ANU
directions were called for showing the application of mind in
discharge of responsibility at the threshold.
21. Though another preposition warranting withdrawal may be
based out of its incompetence to secure end for legal defects or
lacuna in which case again the proceedings may not travel any far
and must end at the commencement. However, none of above is
suggested in this case.
22. In this background, needless to say, that finding, the observation
inconvenient in nature a gap is being sought to be carved to
"wriggle" out of same as a face saving exercise and avoid and
explain the act of responsibility and trust and in this limb of
observation it may be further added that court cannot be allowed to
remain a silent spectator and keep its eyes closed to allow
continuation of lackadaisical approach and irresponsive conduct
leading to irregularities, likely to create advantage in favour of the
opposite party at an appropriate stage and/or at the stage of trial
23. While Id. Sr.PP thrashed the observations of the court and
sought to remind the mandate of the Hon'ble High Court in order of
CBI vs. Bhushan Power and Steel Ltd. [CrI. M.C 1724/2020 (DoD
11.08.2021)] to which I am in humble submission, it was forgotten
that the facts and circumstances of the aforesaid judgment/order are
distinct and disjunct and do not provide premise or stand for the
contents of the present application u/s 17 P.C. Act or of withdrawal.
It be observed that in the aforementioned decision (supra) no
question of withdrawal of an application was pending consideration
and/or any opinion expressed thereupon.
24. Furthermore, the observations of the Hon'ble High Court clearly
show that in the aforementioned case, the advantage for assistance
of an officer subordinate to the rank requisite was sought to be
added.
25. At this stage, relevant law encapsulated in Sri Babu Rao
Chinchanasur vs. The State [CrI. Petition 03/2013.: DoD
13.02.2013)] is reproduced to attain clarity and is referred below :
Signature
Not Verified "Regarding Point No.3:
Digitally Signed
By:SUMIT GHAI
Signing
Date:15.03.2022
16:45:22
This file is
digitally signed by
PS to HMJ ANU
14) Section 17 of the P C Act deals with the officer who are
authorized to investigate the offences punishable under the Act.
Section 17 in its entirety reads as under:
17. Persons authorized to investigate.- Notwithstanding anything
contained in the Code of Criminal Procedure, 1973 (2 of 1974), no
police officer below the rank-
(a) in the case of the Delhi Special Police Establishment, of an
Inspector of Police;
(b) In the metropolitan areas of Bombay, Culcutta, Madras and
Ahmedabad and in any other metropolitan area notified as such
under sub-section (1) of Section 8 of the Code of Criminal
Procedure, 1973 (2 of 1974), of an Assistant Commissioner of
Police;
(c) Elsewhere, of a Deputy Superintendent of Police or a police
officer of equivalent rank, shall investigate any offence punishable
under this Act without the order of a Metropolitan Magistrate or a
Magistrate of the first class, as the case may be, or make any arrest
therefore without a warrant:
Provided that if a police officer not below the rank of an Inspector of
Police is authorized by the State Government in this behalf by
general or special order, he may also investigate any such offence
without the order of a Metropolitan Magistrate or a Magistrate of
the first class, as the case may be, or make arrest therefore without a
warrant:
Provided further that an offence referred to in clause (e) of sub-
section (I) of Section 13 shall not be investigated without the order
of a police officer not below the rank of a Superintendent of Police.
15) Clauses (a) to (c) of Section 17 directs that no police officer
below the rank enumerated therein shall investigate any offence
punishable under the Act without the order of a Metropolitan
Magistrate or a Magistrate of the first class or make any arrest
thereon without any warrant. In otherwards, the police officers
enumerated in Causes (a) to (c) are authorized to investigate any
offence punishable under the Act without an order of the
Metropolitan Magistrate or a Magistrate of the first class and a
Signature police officer below in rank than the one enumerated in Clauses (a)
Not Verified
Digitally Signed
By:SUMIT GHAI
Signing
Date:15.03.2022
16:45:22
This file is
digitally signed by
PS to HMJ ANU
to (c) may investigate any offence punishable under the Act only with
the order of the Metropolitan Magistrate or a Magistrate of the first
class.
16) The first proviso to Section 17 of the P.C. Act empowers any
police officer not below the rank of an Inspector of Police, if
authorized by the State Government in that behalf by a general or a
special order to investigate any such offence without the order of the
Metropolitan Magistrate or a Magistrate of the first class. However,
the 2nd proviso to Section 17 directs that the offence referred to
under Clause (e) of sub-section (1) of Section 13 of the P.C. Act shall
not be investigated without the order of a police officer not below the
rank of a Superintendent of Police. Thus, from the 2nd proviso, it is
clear that an investigation into the offence referred to in Clause (e)
of sub-section (1) of Section 13 of the P.C. Act even by any police
officer enumerated in Clauses (a) to (c) or any Police Officer
authorized in that behalf by the State Government as per the first
proviso, can be undertaken only by an order of the police officer not
below the rank of Superintendent of Police. Thus, the 2nd proviso is
in the nature of additional safe guard for the public servant who are
accused of the offence punishable under Section 13(1)(e) of the P.C.
Act against an investigation by a police officer without the
knowledge and consent of superior police officer not below the rank
of Superintendent of Police. A Superior Police Officer of the rank of
Superintendent of Police or any officer higher in rank is required to
pass an order before an investigation, if any, for such offence is
commenced. It is needless to point-out that, before directing such
investigation, the Superintendent of Police or an officer superior to
him is required to apply his mind to the information and come to an
opinion that the investigation on such allegations is necessary.
17) In the case of State of Haryana and Others Vs. Ch. Bhajan Lal
and Others [AIR 1992 SC 604], the Apex Court while considering
the provisions of Section 5-A of P.C. Act, 1947 which corresponds to
Section 17 of P.C. Act 1988, has held that the said proviso is
mandatory. In the said decision, Their Lordships have observed thus
in Paragraphs- 122 to 124:-
Signature
Not Verified
Digitally Signed
By:SUMIT GHAI
Signing
Date:15.03.2022
16:45:22
This file is
digitally signed by
PS to HMJ ANU
"122. According to Section -A, notwithstanding anything contained
in the Code, no police officer below the rank specified in clauses (a)
to (d) of Section 5-A(I), shall investigate any offences punishable
under Sections 161, 165 or 165-A of the Indian Penal Code or under
Section 5 of the Act without the order of a Presidency Magistrate or
a Magistrate of the First Class as the case may be or make arrest
therefor without a warrant. There are two provisos to that section.
As per the first proviso, if a police officer nor below the rank of an
Inspector of Police is authorized by the State Government, either by
general or special order, he may investigate any such offence
without the order of a Magistrate or make arrest therefore without a
warrant. According to the second proviso, an offence referred to in
clause (e) of Sub-section (I) of Section 5 shall not be investigated
without the order of a police officer not below the rank of a
Superintendent of Police".
123. It means that a police officer not below the rank of an Inspector
of Police authorised by the State Government in terms of the first
proviso can take up the investigation of an offence referred to in
clause (e) of Section 5(1) only on a separate and independent order
of a police officer not below the rank of a Superintendent of Police.
To say in other words, as strict compliance of the second proviso is
an additional legal requirement to that of the first proviso for
conferring a valid authority on a police officer not below the rank of
an Inspector of Police to investigate an offence falling under clause
(e) of Section 5(1) of the Act. This is clearly spelt out from the
expression "further provided" occurring in the second proviso".
124. A conjoint reading of the main provision, Section 5-A(1) and
the two provisos thereto, shows that the investigation by the
designated police officers is the rule and the investigation by an
officer of a lower rank is an exception".
18) In State of Madhya Pradesh-Vs-Ramsingh (2000) 5 SC 88, the
Apex
Court considering the purport of second proviso to Section 17 of
P.C.Act,
1988 has held thus in Paragraph-12:
Signature
Not Verified
Digitally Signed
By:SUMIT GHAI
Signing
Date:15.03.2022
16:45:22
This file is
digitally signed by
PS to HMJ ANU
"Xxx xxx xxx Second proviso provides that where an offence referred
to in clause (e) of sub-section (1) of Section 13 is sought to be
investigated, such an investigation shall not be conducted without
the order of a police officer not below the rank of superintendent of
police xxx xxx xxx."
19) The Apex Court in the case of State Inspector of Police,
Vishakapatnam Vs. Surya Sankaram Karri ((2006) 7 SCC 172] had
an occasion to consider the provisions of Section 17 of the P.C. Act
and it is observed thus in Paragraph-13:-
"13. Provisions of the 1988 Act, no doubt, like the 1947 Act seek to
protect public servant from a vexatious prosecution. Section 17
provides for investigation by a person authorized in this behalf. The
said provision contains a non- obstante clause. It makes
investigation only by police officers of the ranks specified therein to
be imperative in character. The second proviso appended to Section
17 of the Act provides that an offence referred to in clause (e) of sub-
Section (1) of Section 13, shall not be investigated without the order
of a police officer not below the rank of a Superintendent of Police,
Authorization by a Superintendent of Police in favour of an officer so
as to enable him to carry out investigation in terms of section 17 of
the Act is a statutory one. The power to grant such sanction has been
conferred upon the authorities not below the rank of Superintendent
of Police. The proviso uses a negative expression. It also uses the
expression "shall". Ex facie it is mandatory in character xxx xxx xxx
xxx." (Underlining is by me)
20) This Court in the case of State of Karnataka Vs. Narayana Reddy
2002 (2) KLJ 80], after referring to the observations of the Apex
Court in Bajanlal's case extracted above, has observed thus at Para-
8:
"It was next observed in paragraph 125 that in several decisions of
the Supreme Court, SectionI5-A of the Act (Section 5-A(1) of the
1947 Act corresponds to Section 17 of the 1988 Act) is mandatory
and not directory, and the investigation conducted in violation
Signature thereof bears the stamp of illegality, but that illegality committed in
Not Verified
Digitally Signed
By:SUMIT GHAI
Signing
Date:15.03.2022
16:45:22
This file is
digitally signed by
PS to HMJ ANU
course of an investigation does not affect the competence and the
jurisdiction of the Court for trial, and where the cognizance of the
case has in fact been taken and the case is proceeded to termination,
the validity of the proceedings with the preceding investigation does
not vitiate the result unless miscarriage of justice has been caused
thereby, but that, however, in H.N. Rishbud -Vs-State of Delhi and in
Muni Lal -Vs- Delhi Administration, it is held that if any breach of
the said mandatory provision relating to investigation is brought to
the notice of the Court at an early stage of the trial, the Court will
have to consider the nature and extent of the violation and pass
appropriate orders as may be called for to rectify the illegality and
to cure the defects in the investigation.
In the case concerned, the Supreme Court, while maintaining the
first information report and the registration of the case, nevertheless,
quashed the commencement as well as the entire investigation done
till then on the ground that the investigating officer concerned had
not been clothed with legal authority to take up investigation and
proceed with the same within the meaning of Section 5-A(1) of the
1947 Act (corresponding to Section 17 of 1988 Act). The Supreme
Court also gave liberty to the State Government to direct
investigation afresh, through a competent police officer empowered
with valid legal authority in strict compliance with Section 5-A(1) of
1947 Act (corresponding to Section 17 of the 1988 Act) xxx xxx xxx
xxx xxx."
21) From the above it is clear that the provisions of the 2nd proviso
to Section 17 is an additional safe-guard and protection in relation
to the investigation of the offence referred to in Clause (e) of sub-
section (1) of Section 13.
26. Hence, it must in all circumstances be shown that while making
an application under provision of Section 17 due care and caution as
part of expectation raised under the statute are fulfilled by the
agency. It was not the circumstances where the earlier investigating
officer of competent rank had been divested as is shown from the
contents of the present application and to seek "transfer" of
investigation to an officer junior in rank of Sub-Inspector level,
Signature
Not Verified whose credentials are also being sought to be established in para-7
Digitally Signed
By:SUMIT GHAI
Signing
Date:15.03.2022
16:45:22
This file is
digitally signed by
PS to HMJ ANU
of the application ignoring that the efficiency of an officer is not a
premium to service but an under lying requisite for performing
public duty and by claiming an officer efficient he cannot be equated
to be holding the rank requisited under the statute itself as
mandated, to override the provision, itself and creating a lee-way for
making succumb the very intent of the act itself. Needless to say,
even this question is not responded to by either prosecution or
investigating agency.
27. The fact that the present proceedings are arising out of the
alleged fraud of Rs.2,000/- crores of public money suggests the
profoundity of the scope of fraud and enormity of investigation
cannot be bye-passed casually by stating that no officer of suitable
rank is available.
28. In view of the above discussion, when nothing is shown for
withdrawal of the application, can by virtue of statement of
withdrawal as a matter of right, it can be held that the provision
giving rise to a proceeding can also be considered to generate a
right, of its withdrawal or extinguishment.
29. While it is not uncommon for an executive act and/or notification
to be generated and withdrawn by virtue of same provision, the
similarity cannot be drawn or extended to a judicial provision. The
statute makes available a specific provision wherefrom the
withdrawal and/or any right to withdraw is created specifically. It is
amplified by Cr.P.C. itself as apart from Section 321 no other
recourse is available for withdrawal of prosecution lodged. Even in
case of an FIR the same can only be allowed to be quashed under
the specific provision where the courts have to invoke inherent
powers W/s 482 Cr.P.C. Hence, in wake of the above, merely on
claim, it is not possible to create a new right which is not intended to
be created by the Legislation in favour of the prosecuting authority.
30. While it is definely claimed that the proceedings of order dated
13.01.2022 may be deemed to have been wipe of, 1d. Prosecution
again has not supported his submission that any legal provision or
precedent.
Signature
Not Verified 31.Unlike Civil Procedure Code, the Code of Criminal Procedure
Digitally Signed
By:SUMIT GHAI
Signing
Date:15.03.2022
16:45:22
This file is
digitally signed by
PS to HMJ ANU
provides no authority to the courts for any alternation, modification
or review which authority only vests u/s 482 Cr.P.C. with Hon'ble
High Court. By accepting the aforementioned statement of
prosecution, the necessary import of entirely wiping of the order of
13.01.2022 shall tantamount to going back to the root of the
reasoning of its passing which shall tantamount to exercising the
non-available power of its review.
32. Lastly, with the show of defiance and adamant conduct of non-
compliance, it appears that an effort is being made to create a
conflict between the authorities and intentionally statements are
being made on record qua noncompliance to derogate and
undermine the authority of the court of law. Though, there is no
request on behalf of the prosecution and/or IO suggesting non-
availability of the Director due to exigency of work and/or in any
other plausible reason for not joining the link through VC, in order
to avoid a deliberate attempt to carve out a ground of conflict since
none of the institutions, be it investigating agency/prosecution or
courts, are created for self-serving purpose but to protect public
interest, I hereby dispense the non-appearance of Director, CBI for
today, he remains obligated qua compliance which shall be tendered
within two days from today.
33. While sufficient observations have been made on the conduct and
intent of the investigating agency and the prosecution in shielding
each other, which has sufficiently led to acts of undermining the
interest of public involved for which they in fact are in place, I may
also find it necessary to mention that in this attempt the precious
time of the court has also been wasted for a considerable length
from 22nd October onwards. The effort of the investigating agency
clubbed with the prosecution is nothing short of "hide and seek" in
pulling out of scope of courts order which has led them to hurriedly
move the application for withdrawal and hide under its garb. No
reason for hesitation for not granting the requisite details to show
application of mind by the present In-charge and in realm of affairs
is made available on record. Even, today Insp. B.K. Mishra who has
made the statement has callously sought to wriggle out by claiming
that certain IOs were busy in conducting investigation in Post-
Election Violence Case in Kolkata.
Signature
Not Verified
Digitally Signed
By:SUMIT GHAI
Signing
Date:15.03.2022
16:45:22
This file is
digitally signed by
PS to HMJ ANU
34. It is again at the cost of repetition mentioned that such approach
of an institution regarded so high can in fact create advantage in
favour of those likely to face trial and against the common citizenry
and must by curbed in the bud itself.
35. Having made aforementioned observation, I hereby impose cost
of Rs.25,000/- on CBI. Direction is also issued for completing the
proceedings within two days.",
with it having been submitted on behalf of the petitioner that the observations in
the impugned order dated 07.03.2022 were wholly uncalled for and not within
the scope of ambit of the proceedings under Section 17 of the PC Act, 1988
before the learned Special Judge, PC Act (CBI-03), Rouse Avenue, District
Court, New Delhi.
12. Inter alia it is submitted on behalf of the petitioner that there is a
typographical error in paragraph 27 of the impugned order dated 07.03.2022 of
the learned Special Judge observing to the effect that there was a fraud of
Rs.2,000/- crores of public money submitting to the effect that the amount
involved is Rs.19.50 Crores as mentioned in paragraph 13 of the complaint of
the banking fraud dated 05.05.2021 made by the Asset Recovery Branch, New
Delhi of the Central Bank of India to the Head of Zone, BSNF Zone i.e. the
Bank Security and Fraud Zone of the CGO Complex, Lodhi Road, New Delhi.
13. Taking into account the factum that it has already been informed by the
CBI and it is submitted that it was informed at the time of the impugned order
dated 07.03.2022 vide a statement made by Mr.B.K.Mishra before the learned
Special Judge to the effect that the investigation of RC No.219/2021 E0007 had
already since been assigned to Inspector Sudhir Kumar, EO-1, New Delhi, it is
apparent that the questions raised vide para 11 of the impugned order which
read to the effect:-
Signature
Not Verified
Digitally Signed
By:SUMIT GHAI
Signing
Date:15.03.2022
16:45:22
This file is
digitally signed by
PS to HMJ ANU
"....
(i) Whether the application u/s 17 P.C. Act can be withdrawn by
the prosecution while on the application the prosecution has
proceeded with the arguments and court has made its mind
ft1sqr1 by issuance of directions, as "withdrawal simpliciter?
(ii) While the proceedings are still alive and surviving and
directions in operation, can by application of withdrawal
simpliciter the proceedings be deemed to have been "wiped off'
and rendered "non-est" without an attempt of compliance or
explanation i.e. whether the proceedings can alter the clock in
motion to its inception in disregard of consequent events
unfolded as acts of prosecution ?
(iii) Whether an irregularity can be allowed to remain uncured
by allowing an application of simpliciter withdrawal?",
were not requisite to be determined and thus, it is made expressly clear that the
application dated 16.02.2022 filed by the CBI seeking permission to entrust the
investigation to Sh. T.D. Tripathi, Sub Inspector of Police, CBI. EO-I, New
Delhi stands dismissed as withdrawn.
14. In the circumstances, the impugned order dated 07.03.2022 of the learned
Special Judge, PC Act (CBI-03), Rouse Avenue, District Court, New Delhi in
relation to RC No.219/2021 E0007 is set aside.
15. However, on a perusal of the order dated 07.03.2022 and observations in
paragraph 32 thereof to the effect that "Lastly, with the show of defiance and
adamant conduct of noncompliance ..." and observations in paragraph 23 of
the impugned order dated 07.03.2022 to the effect that "While ld. Sr.PP
thrashed the observations of the court and sought to remind the mandate of
the Hon'ble High Court", it is expected that due decorum is maintained by the
CBI before the learned Special Judge, PC Act (CBI-03), Rouse Avenue, District
Signature
Not Verified Court, New Delhi in the matter.
Digitally Signed
By:SUMIT GHAI
Signing
Date:15.03.2022
16:45:22
This file is
digitally signed by
PS to HMJ ANU
16. Copy of this order be sent to the learned Trial Court.
17. The petition is disposed of.
ANU MALHOTRA, J
MARCH 9, 2022/nc
Signature
Not Verified
Digitally Signed
By:SUMIT GHAI
Signing
Date:15.03.2022
16:45:22
This file is
digitally signed by
PS to HMJ ANU
