ANUP KUMAR SRIVASTAVA Vs. STATE

JUDGEMENT

(1.) By this petition the Petitioner impugnes the order dated 20th January, 2012 passed by the learned Special Judge dismissing the application of the Petitioner under Section 6(A) of the Delhi Special Police Establishment Act, 1946 (in short the DSPE Act), the orders dated 1st March, 2012 and 13th March, 2013 taking cognizance in respect of charge-sheet and quashing of RC-AC1 2012-A0001 including all investigation and judicial proceedings originating therefrom.

(2.) Learned counsel for the Petitioner contends that it is the admitted position that the Petitioner is a Joint Secretary level officer of the Central Government and in view of Section 6(A) of the DSPE Act, 1946 no enquiry or investigation could be initiated against him for an offence falling under the Prevention of Corruption Act, 1988 (in short the PC Act) without the previous approval of the Central Government. In the above-mentioned case not only enquiry and investigation were initiated which culminated into filing of a charge-sheet and taking of the cognizance thereon in gross violation of Section 6(A) of the DSPE Act, 1946. This Court in Dr. R.R. Kishore Vs. CBI, 2007 142 DLT 702 quashed the investigation committed in breach of the mandatory provision of Section 6(A) of the DSPE Act and directed the Respondent to reinvestigate the matter in case approval under Section 6(A) of the DSPE Act was granted by the Central Government. Despite the fact that the Petitioner brought to the notice of the CBI, even prior to his arrest, that the approval under Section 6(A) of the DSPE Act was mandatory, the CBI in complete violation of the DSPE Act and the decision of this Court continued with the investigation and filed the charge-sheet. Even if the contention of the CBI was to be accepted that the time was short and they had to lay a trap to catch a public servant red-handed as per the CBI Crime Manual, the CBI could have taken the necessary approval before the arrest of the Petitioner even after start of investigation. The provisions in the CBI Crime Manual have been held to be statutory and imperative as per the decision of the Hon'ble Supreme Court in Vineet Narayan Vs. Union of India, 1998 1 SCC 226. Further at the time of registration of FIR, there was no information available with the CBI or anyone else to predict that they will lay a trap and such trap would be successful or there will be arrest made at the spot while accepting or attempting to accept illegal gratification as the source information did not inform how and at what time the alleged illegal gratification was going to be transferred from co-accused Hemant Gandhi to Lallan Ojha. Further in the present case no arrest was made while accepting or attempting to accept illegal gratification and thus the basic ingredients required for invoking sub-Clause 2 of Section 6(A) DSPE Act were not attracted in the present case. The proceedings conducted by the CBI on 2nd January 2012 in pursuance of RC-AC1 2012-A0001 cannot be termed as trap proceedings involving arrest on the spot while receiving or attempting to receive illegal gratification. Though CBI claims that the entire investigation started on the basis of source information on 2nd January, 2012 and it was not aware of the intercepted conversations till 6th January, 2012, however the same is belied by its own documents which show that on 4th January, 2012 CBI recorded specimen voice samples of accuseds Lallan Ojha, Hemant Gandhi, Dilip Aggarwal along with specimen voice sample of one Rajesh Verma driver of accused Hemant Gandhi and Reena Gandhi wife of accused Hemant Gandhi at CFSL. Reliance is also placed on Ms. Mayawati Vs. Union of India and Ors., 2012 8 SCC 106 wherein the Hon'ble Supreme Court quashed the second FIR being in violation of the mandatory provisions of Section 5 & 6 of the DSPE Act. Relying upon General Officer Commanding, Rashtriya Rifles Vs. Central Bureau of Investigation and Anr., 2012 6 SCC 228 it is contended that if the law requires sanction and the Court proceeds against a public servant without sanction, the public servant has a right to raise the issue of jurisdiction as the entire action may be rendered void ab-initio for want of sanction. Reliance is also placed on Krishan Murari Lal Sehgal Vs. State of Punjab, 1997 2 SCC 587 and H.M. Caire Vs. Union of India and Ors.,2008 Supp1 GauLT 446. Reliance is also placed on Krishan Murari Lal Sehgal Vs. State of Punjab, 1997 2 SCC 587 wherein the Hon'ble Supreme Court held that previous approval does not mean subsequent ratification and H.M. Caire Vs. Union of India and Ors.,2008 Supp1 GLT 446 wherein the Guwahati High Court quashed the investigation conducted by the Respondent CBI being in derogation of mandate of Section 6(A) of the DSPE Act.

(3.) Learned counsel for the CBI adverting to the facts states that in the above-mentioned FIR registered on 2nd January, 2012 the Petitioner was named as accused No.1. Since immediate trap was to be laid, the approval as required under Section 6(A)(1) of the DSPE Act was not essential, and the case falls under Sub-Section 2. The Appellant and his co-accused were to accept the illegal gratification in the office however the Appellant did not reach the office rather got himself admitted in the hospital. Raids were conducted on the house and the office of the Petitioner on the said date and since the Petitioner was hospitalized, he was not immediately arrested. The transaction did take place and the money was recovered from the car of coaccused Lallan Ojha. Two co-accused Lallan Ojha and Hemant Gandhi were arrested on the same date and thus in view of the urgency of the matter, the contentions of the learned counsel for the Petitioner are unfounded. There is no illegality in the impugned order passed by the learned Special Judge holding that the sub-Section 2 which is a non-obstante clause was applicable to the facts of the case and in view thereof, no sanction was required for conducting enquiry or investigation. Reliance is placed on Mr. Manjit Singh Bali Vs. Central Bureau of Investigation CRL. A. Nos. 1913 & 2013 of 2010 decided by the Mumbai High Court on 29th November, 2010 wherein while considering the decision of this Court in R.R. Kishore and it was held that sub-Section 6(A)(1) DSPE Act did not grant a blank protection to an employee of the Central Government of the level of the Joint Secretary and above and distinguished the judgment of this Court in R.R. Kishore stating that in R.R. Kishore there was no arrest to be made on the spot and hence the basic ingredients were missing.