delhi high court

Delhi High Court: A petition was filed under Article 226 of the Constitution of India read with section 482 of Criminal Procedure Code (“CrPC”) challenging the impugned order on charge dated 31-10-2018 and order framing charge dated 04-12-2018 by the Special Judge in CBI case. Tushar Rao Gedela, J., quashed the charges framed against the petitioner under sections 420, 468 and 471 read with 120-B IPC as there is no sanction under section 197 CrPC obtained from the Competent Authority against the petitioner.

Arvind Cooperative Group Housing Society Limited was registered on 31-03-1973 with 53 promoter members, but as the society was not striving towards the purpose for which it was formed, it was wound up and liquidated. Thereafter, the President of Arvind CGHS Limited, Section Officer, Ministry of Defence and Senior Auditor, Registrar Cooperative Societies (RCS) and other unknown persons entered into a criminal conspiracy and in pursuance thereof cheated Govt. of NCT Delhi by committing the offences of impersonation, forgery, cheating, use of forged documents as genuine and by abuse of official position fraudulently got allotted the land in the name of the Society from DDA at a cheaper rate. After completion of the investigation, a report u/s 173 CrPC was filed by Respondent-CBI and a case was registered against A1, A2, A3 and A4 and other unknown persons for the commission of offences u/s 120-B r/w 419, 420, 468, 471 IPC and Section 13(2) read with 13(1)(d) of the PC Act.

The Court noted that a strong suspicion would be sufficient to maintain order on charge, however, the said strong suspicion must be founded on some material, which must be such as can be translated into evidence at the stage of trial. The strong suspicion cannot be pure subjective satisfaction based on the moral notions of the judge that here is the case, where it is possible that the accused has committed the offence. Rather, the said suspicion should be premised on some material which commends itself to the Court as sufficient to entertain the prima facie view that the accused has committed the offence.

On perusal of the entire factual and legal background, the Trial Court and CBI have presumed that the petitioner knew about the order dated 16-05-1979 passed by the Deputy Registrar, RCS, whereby the society was ordered to be liquidated/ wound up. However, it was admitted case of the prosecution too, that the said winding-up order was never a part of the subject file and was traced by the CBI itself only from the file of the society maintained by the DDA. Thus, it is difficult to conclude that the petitioner had conscious knowledge of the order, so any finding of complicity or culpability on the part of the petitioner to have willfully concealed or overlooked such an order was not made out.

The Court further noted that If one were to examine the definition of the words ‘Defunct Society’ as per Rule 2 (viii) of the DCS Rules, 1973, which were prevalent as on the date of alleged offence, it required passing of a formal and written order by the Registrar of Cooperative Societies before any such society could be stated to be defunct. Undoubtedly, no such order exists nor has been brought on record by the CBI. Thus, there is nothing on record to lend credence to the fact that the society in question was a ‘Defunct Society’. Another allegation that was leveled, according to the charge-sheet against the petitioner was that the petitioner had failed to discharge his duties and responsibilities as one of the senior officers in the Office of Registrar of Co-operative Societies to examine and scrutinize the subject files before approving the note to be put up before the then Registrar of Co-operative Societies for his approval of allotment of land to the society. Other than the above allegation, the entire charge-sheet is bereft of any other specific allegation in respect of offences under sections 420, 468 or 471 IPC.

Thus, the question of the petitioner being part of a larger conspiracy along with all the other co-accused persons including other government servants was not made out based on the allegations. It is trite that suspicion, unless found to be grave, shall not entail framing of charges. Placing reliance on A. Srinivasalu v. State, 2023 SCC OnLine SC 900, the Court concluded that the individual against whom the allegations are made, ought to be a ‘Public Servant’ whose appointing authority is the Central Government or the State Government to entitle him to the protection under section 197 CrPC and not to every public servant. In the present case, the petitioner is a DANICS officer, and his appointing authority is the Central/State Government. There is equally no doubt in the mind of the Court that the allegations against the petitioner are of offences in the discharge of his official duties and on application of the principle, it would be imperative for the prosecution to have obtained the sanction under Section 197 CrPC. Thus, the prosecution of the petitioner for the aforesaid offences in the absence of the appropriate sanction under section 197 CrPC would be untenable.

[Rakesh Bhatnagar v CBI, 2023 SCC OnLine Del 7440, decided on 22-11-2023]

Advocates who appeared in this case :

For the Petitioner : Mr. Nikhil Pillai, Mr. Harish Malik, Mr. Kshitij Vaibhav and Mr. Parth Kaushal, Advocates

For the Respondent : Mr. Nikhil Goel, SPP with Mr. Kartik Kaushal and Ms. Siddhi Gupta, Advocates

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