A P PATHAK Vs. CBI

JUDGEMENT

(1.) By this petition the Petitioner seeks quashing of RC No. DAI-2011-A- 0013 dated 31.08.2011 under Section 13(1)(e) read with Section 13(2) of the Prevention of Corruption Act, 1988 (PC Act) and proceedings pursuant thereto including the investigation, in view of the non-compliance of mandatory provision of Section 6A of the Delhi Special Police Establishment Act (in short the DSPE Act).

(2.) Learned counsel for the Petitioner contends that since the Petitioner was a Joint Secretary level officer it was mandatory on the part of the CBI to have taken the prior approval of the Central Government under Section 6(A)(2) of the DSPE Act before proceeding with the investigation as no trap was to be laid immediately. The approval taken subsequently is of no avail as held by the Supreme Court in State of Kerala Vs. M.S. Mani and Ors., 2001 8 SCC 82. The CBI failed to act in accordance with its manual on the source information which is statutory in nature. The CBI was required to register a preliminary enquiry. In the counter affidavit it is admitted that no preliminary enquiry was registered, thus there was gross violation of guideline 9.1 of the CBI manual. Reliance is placed on P. Sirajuddin Vs. State, 1971 AIR(SC) 520, State of Haryana & Ors. Vs. Ch. Bhajan Lal and Ors., 1992 AIR(SC) 604 and Ripun Bora Vs. State, 2012 1 ILR(Del) 412. The law is well-settled. An illegally collected evidence pursuant to a legally registered FIR can be used as evidence, however if the FIR itself is registered illegally then the entire evidence collected pursuant thereto has to be struck down and cannot be acted upon. Section 6(A) of the DSPE Act raises a complete bar on proceeding against a Joint Secretary level and above officer without the prior approval of the Central Government. The word used in the provision is "shall" showing its mandatory nature. Relying upon Emperor vs. Khwaja Nazir Ahmed, 1945 AIR(PC) 18, Hukam Chand Shyam Lal Vs. Union of India & Ors., 1976 2 SCC 128, Captain Sube Singh and Ors. Vs. Lt. Governor of Delhi and Ors., 2004 6 SCC 440 and J& K Housing Board & Anr. Vs. Kunwar Sanjay Krishan Kaul & Ors., 2011 10 SCC 714 it is contended that if the Statute requires a thing to be done in a particular manner then the same has to be done in that particular manner and not otherwise.

(3.) Learned counsel for the CBI on the other hand contends that in the present case the complaint was sent by the Chief Vigilance Officer of the Petitioner's Department to the Central Vigilance Commission (CVC) which directed the CBI to take proper action on 8th February, 2011. In cases referred by the CVC, the CBI may or may not register the FIR. Guidelines 9.1 and 9.2 of the CBI manual itself state that in a case of misconduct only and not criminal misconduct, the matter should be sent back to the concerned Department. After the receipt of the complaint on 8th February, 2011 the income-tax details of the Petitioner were collected. The Petitioner also made communications wherein he referred himself as Director and never informed that he was a Joint Secretary level officer. Further the official website of the Petitioner's Department was checked where also the Petitioner was not shown to be an officer of the Joint Secretary level and above. Since the CBI was not aware of the position of the Petitioner, the abovementioned FIR was registered on 31st August, 2011 and investigation started thereon. The moment it came to the notice of the investigating officer that the Petitioner was a Joint Secretary level officer, approval from the concerned Department was taken and further investigation was carried thereafter. Reliance is placed on State of Andhra Pradesh Vs. P.V. Narayana, 1971 1 SCC 483 and Dr. M.C. Sulkunte Vs. State of Mysore, 1970 3 SCC 513 to contend that even in case where there is non-compliance of mandatory provision the trial is not vitiated, except when there is grave miscarriage of justice. In the entire petition or the arguments made before this Court, there is no averment that there has been grave miscarriage of justice. Further in view of K. Veeraswami Vs. Union of India and Ors., 1991 3 SCC 655 the aims and objects of the Legislation should be considered while deciding the issue whether the investigation is vitiated or not.