T DILEEP KUMAR Vs. CBI

JUDGEMENT

(1.) Petitioner is one of the accused in RC No. DAI/2007/2007/0011/CBI-ACB/New Delhi u/s 120-B read with Section 420, 468, 471 IPC & Section 13(2) & 13(1)(d) of Prevention of Corruption Act, 1988, whose application seeking dropping of proceedings has been dismissed by the trial court vide impugned order of 15th December, 2012, which is assailed in this petition.

(2.) The factual aspects of this case stand noted in the impugned order. Suffice it would be to note that when the charge-sheet in this case was filed, sanction to prosecute petitioner as an accused was still awaited. Supplementary charge-sheet filed discloses that no sanction for prosecution of petitioner either from Government of India or from Indian Nursing Council was required as petitioner had retired from Government Service on 30th June, 2011. At the relevant time petitioner was working as Nursing Advisor to Government of India and was also holding the post of President, Indian Nursing Council, New Delhi. At the hearing, it was asserted by learned senior counsel for petitioner that cognizance of the offence without sanction under Section 19 of the Prevention of Corruption Act, 1988 is a nullity as petitioner continues to be a public servant by virtue of being the President of Indian Nursing Council. In this regard attention of this Court was drawn to Section 2(c)(iii) of Prevention of Corruption Act, 1988 and Section 3 of the Indian Nursing Council Act, 1947 by learned Senior Counsel for petitioner to assert that petitioner is entitled to protection conferred by Section 19(1) of the Prevention of Corruption Act, 1988. According to learned senior counsel for petitioner, impugned order refusing to drop the proceedings against petitioner for want of sanction discloses utter non-application of mind as the initial cognizance taken in the year 2009 is a nullity as by then the sanction for petitioner's prosecution was still awaited. To assert that in the absence of sanction to prosecute petitioner, proceedings in this case are vitiated, reliance was placed upon decisions in Dilawar Singh v. Parvinder Singh, 2005 12 SCC 709, State of Orissa v. Babu Thomas, 2005 8 SCC 130, Dinesh Kumar v. Chairman, Airport Authority of India & Anr., 2012 1 SCC 532 and Prakash Singh Badal v. State of Punjab, 2007 1 SCC 1. Thus, dropping of proceedings in this FIR case qua petitioner is sought.

(3.) Learned Standing Counsel for CBI had supported the impugned order and had relied upon decisions in State of Kerala v. V.Padmanabhan Nair, 1999 AIR(SC) 2405, Subramanian Swamy v. Manmohan Singh & Anr., 2012 3 SCC 64, Vineet Narain & Ors. v. Union of India & Anr., 1998 1 SCC 226 and Ashok Tsherin Bhutia v. State of Sikkim, 2011 4 SCC 402 to contend that failure of justice is relatable term and it cannot be pre-judged at the stage as to whether any prejudice is suffered by petitioner-accused and this aspect needs to be urged by petitioner at the stage of hearing on the point of charge as the charge-sheet in this case has already been filed. Upon hearing learned counsel for parties, I find that since the charge-sheet in this case has been filed and the hearing on the point of charge is yet to take place, therefore, it would be appropriate if petitioner urges the pleas taken herein before the trial court to seek discharge. It is so said because the decisions relied upon were not cited before the trial court. The question whether petitioner continues to be a public servant by virtue of being President of Indian Nursing Council is also an aspect which has not been considered in the impugned order and the same is required to be dealt with at the stage of hearing on the charge in the light of Sub-Section 3(a) of Section 19 of Prevention of Corruption Act, 1988 as well as the decisions cited.