Full Text
HIGH COURT OF DELHI
RAJEEV SAXENA .....Petitioner
Through: Mr. Rajesh Mahajan and Mr. Rayeeb K. Bora, Advocates.
Through: Ms. Shubhi Gupta, APP for the State.
SI Suresh Bhatia, P.S. Timarpur.
JUDGMENT
1. The present petition under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as ‘Cr.P.C.’) has been filed seeking the following prayers: “a. Quashing the FIR No. 631/2005 P.S. Timarpur U/s 167/324/342/506 IPC and section 23 J.J Act and proceeding their under including summoning order dated 29.05.2023 Passed by Sh. Apoorv Gupta MM- 02, Central District Tis Hazari Court Delhi. Pass any other or further order as this Hon’ble Court may deem fit and proper in the facts and circumstances of this case.”
2. The facts relevant for adjudication of the present petition are as follows: • The Petitioner was working as a Superintendent of Bal Nirikshan Grah (hereinafter referred to as ‘observation home’) in 2004-05 and certain Juveniles in Conflict with Law (hereinafter referred to as ‘JCL’) were brought to the said observation home, wherein they alleged harassment and beatings at the hands of the elder juveniles lodged in the home. It is alleged that the present petitioner asked the aforesaid JCLs to withdraw their complaints and give in writing that their complaints were not correct and that they had no problem in the observation home. • In pursuance of the order dated 21.07.2005 passed by the learned Metropolitan Magistrate (hereinafter referred to as the ‘learned MM’), an investigation under Section 156 (3) of the Cr.P.C. was directed and an FIR bearing no. 631/2005 under Sections 167/324/342/506 of the Indian Penal Code, 1860 (hereinafter referred to as the ‘IPC’) and Section 23 of the Juvenile Justice (Care and Protection of Children) Act, 2000 (hereinafter referred to as the ‘JJ Act’) was registered at P.S. Timarpur. • After investigation, a chargesheet dated 02.05.2007 was filed before the concerned Court. • On 27.09.2010, the learned MM passed an order on charge and on 23.11.2010 charges under Sections 167/506 of the IPC and Section 23 of the JJ Act were framed against the present petitioner. • The petitioner preferred a revision petition before the learned Additional Sessions Judge (hereinafter referred to as the ‘learned ASJ’) however, the same was dismissed on the ground of limitation vide order dated 10.08.2011. • On 15.09.2015, a Coordinate Bench of this Court set aside the aforesaid order on charge and the order framing charge qua the present petitioner and directed the learned Trial Court by observing as under:
• Records show that the case was pending before the learned Trial Court for want of sanction. • Thereafter on 29.05.2023, the learned MM passed the following impugned order: “Status report filed. Perused. Taken on record. Copy supplied. Issue summons to accused for NDOH. List for FP on 22.09.2023.”
3. Learned counsel appearing on behalf of the petitioner submits that after passing of the order by learned Coordinate Bench of this Court on 15.09.2015, learned Trial Court had sought status of sanction under Section 197 of the Cr.P.C. and the matter was pending for the same. Attention of this Court was drawn to various ordersheets of the learned Trial Court, wherein it was recorded that the matter was being adjourned for awaiting sanction under Section 197 of the Cr.P.C.. At the time of passing of the impugned order, the learned Trial Court had again asked for an updated status report with regard to the sanction. The status report dated 17.04.2023 authored by SI Kapil Singh, PS Timarpur, Delhi had been placed on record, where again was stated that the sanction under Section 197 of the Cr.P.C. is awaited from the concerned Department despite several reminders. Learned counsel appearing on behalf of the petitioner submits that the latter has been facing the agony of the present FIR since 2005 and despite several reminders no sanction under Section 197 of the Cr.P.C. has been received. It is further pointed out that as per the status report dated 10.11.2023 filed by Insp. Pradeep Kumar, SHO PS Timarpur, in the present petition, it is again stated that despite several reminders to the concerned department no sanction under Section 197 of the Cr.P.C. has been received and the last reminder was sent on 01.11.2023. Learned counsel appearing on behalf of the petitioner further draws attention of this Court to a letter No. F.14/39/2007/HG sent by Home General Branch, GNCTD to the Deputy Commissioner of Police (C&T) Branch, wherein a request for withdrawal of the case against the present petitioner was recommended. It is submitted that the stand of the department was clear that the case against the latter deserves to be withdrawn. The said letter was accompanied by comments from Secretary, Department of Women and Child Development recommending the withdrawal of the FIR against the present petitioner.
4. Attention of this Court is also drawn to Section 67 of the JJ Act, which reads as under:- “67. Protection of action taken in good faith.- No suit or legal proceedings shall lie against the State Government or voluntary organisation running the home or any officer and the staff appointed in pursuance of this Act in respect of anything which is in good faith done or intended to be done in pursuance of this Act or of any rules or order made thereunder.”
5. It is submitted that the acts of the petitioner are therefore protected under the aforesaid provision as well and that the same has not been examined by the learned Trial Court while issuing the impugned order summoning the present petitioner.
6. Learned counsel for the petitioner relies on the following judgments with regard to the prayer for quashing of the FIR on the grounds of inordinate delay: • Abdul Rehman Antulay vs. R.S. Nayak 1 (paragraph 54)- The Constitution Bench has interalia held that fair, just and reasonable procedure implicit in Article 21 of the Constitution creates a right in the accused to be tried speedily. The right to speedy trial flowing from Article 21 encompasses all stages, namely the stage of investigation, inquiry, trial, appeal, revision and re-trial. The inordinate delay in the present case violates the right of the petitioner guaranteed under Article 21 of the Constitution. AIR 1992 SC 1701 • Ramanand Chaudhary vs. State of Bihar[2] (paragraphs 1, 5)- The proceedings against the accused were quashed on account of delay in grant of sanction. In this case, the raid was conducted on 30.03.1979; on 28.01.1985, the Public Prosecutor opined it not to be a fit case for grant of sanction; the Revenue Commissioner refused to grant sanction vide order dated 03.05.1988. Thereafter, DIG (Vigilance) reopened the matter and, by his letter dated 25.08.1989, requested the Revenue Commissioner to reconsider the question of grant of sanction; the latter by his order dated 27.03.1990 granted sanction to prosecute the appellant. The reasons which weighed with the Hon’ble Apex Court to quash the prosecution was that after the raid, no action was taken for 6 years, and the sanction, though granted in the second round, the prosecution was pending for over 13 years. The case of the Petitioner stands on a better footing than Ramanand Chaudhary’s case (supra) in as much as there is no sanction granted in the case of the Petitioner herein even after 19 years since lodgment of the FIR and nearly 20 years from the date of incident, whereas in the cited case, sanction had been granted though after delay and the delay in said case was lesser than case in hand. • Santosh De vs. Archna Guha & Others[3] (paragraphs 4-6)- On 27.03.1978, a preliminary charge sheet was filed u/s 5 Prevention of Corruption Act. On 15.12.1982, the Govt. of Bihar refused to grant sanction for prosecuting the Respondent. Yet, the proceedings were kept pending. In these circumstances, the
1994 Supp (3) SCC 735 Respondent accused approached the High Court by way of a writ petition, which was allowed. Against this order, the State of Bihar approached the Hon’ble Supreme Court. During the pendency of SLP, sanction was accorded on 29.03.1990. Taking into account the delay from 1978 to 1986 and from 1987 till August 1993, following the principles enunciated in A.R. Antulay (supra), the Hon’ble Supreme Court dismissed the appeal by the State of Bihar. • Mahendra Lal Das vs. State of Bihar[4] (paragraphs 4-6, 8)- The FIR in this case was dated 20.5.1988. After four years of investigation, IO submitted a proposal for grant of sanction on 06.01.1992, which remained pending till 2000. After filing of the SLP in 2001, sanction was granted by the Department concerned. Relying upon A.R. Antulay (supra), the Hon’ble Supreme Court held that every citizen has a right to speedy trial of the case pending against him; speedy trial was also considered in the public interest as it serves societal interest as well. Considering the delay of more than 13 years in grant of sanction and the fact that the Respondent- State did not appear satisfied about the merits of the case, the Hon’ble Supreme Court quashed the proceedings against the appellant. In the case in hand, the delay is more than 19 years. Further, the Department of Social Welfare through Secretary has given its comments through letter dated Nil (page 50) enclosed with Letter No. F.14/392007/HG (Annexure P-7 page 49) sent by Home General Branch, GNCTD to the Deputy Commissioner of Police (CNT) Branch that the FIR against the petitioner deserves to be withdrawn.
The case of the Petitioner is thus on a better footing in terms of the time period and on parity with cited case as regards the stand taken by the Department. • Dr. Sarbesh Bhattacharjee vs. State NCT of Delhi[5] (paragraphs 6-7, 12, 14)- This was a case where quashing of three FIRs were sought on the ground of delay. This Court court noted the judgments in A.R. Antulay v. R.S.Nayak (1992) 1 SCC 225, Mahender Lal Das v State of Bihar (2002) 1 SCC 149, Ramanand Chaudhary v. State of Bihar (2002) 1 SCC 153 and Pankaj Kumar v. State of Maharashtra (2008) 16 SCC 117 and quashed the proceedings on the ground of delay.
7. Per contra, learned APP for the State submits that the sanction has been sought and the same is awaited and therefore, as and when sanction is received the same shall be placed before the learned Trial Court in order to prosecute the present petitioner.
8. Heard learned counsel for the parties and perused the record.
9. Hon’ble Supreme Court in Directorate of Enforcement vs. Bibhu Prasad Acharya and Others[6] with regard to sanction under Section 197 of the Cr.P.C. has observed and held as under: “6. Section 197(1) CrPC (which corresponds to Section 218 of Bhartiya Nagrik Suraksha Sanhita, 2023) reads thus: “197. Prosecution of Judges and public servants.—(1) When any person who is or was a Judge or Magistrate or a public servant not removable from his office save by or with the sanction of the Government, is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction— 2023 (1) JCC 39 (Delhi)
(a) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of the Union, of the Central Government; (b) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of a State, of the State Government: [Provided that where the alleged offence was committed by a person referred to in clause (b) during the period while a Proclamation issued under clause (1) of Article 356 of the Constitution was in force in a State, clause (b) will apply as if for the expression “State Government” occurring therein, the expression “Central Government” were substituted.] [Explanation.—For the removal of doubts it is hereby declared that no sanction shall be required in case of a public servant accused of any offence alleged to have been committed under Section 166-A, Section 166-B, Section 354, Section 354-A, Section 354-B, Section 354-C, Section 354-D, Section 370, Section 375, Section 376 [Section 376-A, Section 376-AB, Section 376-C, Section 376-D, Section 376-DA, Section 376-DB] or Section 509 of the Indian Penal Code (45 of 1860).]”
7. The object of Section 197(1) must be considered here. The object is to protect the public servants from prosecutions. It ensures that the public servants are not prosecuted for anything they do in the discharge of their duties. This provision is for the protection of honest and sincere officers. However, the protection is not unqualified. They can be prosecuted with a previous sanction from the appropriate Government.
8. The expression “to have been committed by him while acting or purporting to act in the discharge of his official duty” has been judicially interpreted. A Bench of three Hon'ble Judges of this Court in Centre for Public Interest Litigation v. Union of India [Centre for Public Interest Litigation v. Union of India, (2005) 8 SCC 202: (2006) 1 SCC (Cri) 23], in para 9, observed thus: (SCC pp. 208-09) “9. … This protection has certain limits and is available only when the alleged act done by the public servant is reasonably connected with the discharge of his official duty and is not merely a cloak for doing the objectionable act. If in doing his official duty, he acted in excess of his duty, but there is a reasonable connection between the act and the performance of the official duty, the excess will not be a sufficient ground to deprive the public servant from the protection. The question is not as to the nature of the offence such as whether the alleged offence contained an element necessarily dependent upon the offender being a public servant, but whether it was committed by a public servant acting or purporting to act as such in the discharge of his official capacity. Before Section 197 can be invoked, it must be shown that the official concerned was accused of an offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duties. It is not the duty which requires examination so much as the act, because the official act can be performed both in the discharge of the official duty as well as in dereliction of it. The act must fall within the scope and range of the official duties of the public servant concerned. It is the quality of the act which is important and the protection of this section is available if the act falls within the scope and range of his official duty. There cannot be any universal rule to determine whether there is a reasonable connection between the act done and the official duty, nor is it possible to lay down any such rule. One safe and sure test in this regard would be to consider if the omission or neglect on the part of the public servant to commit the act complained of could have made him answerable for a charge of dereliction of his official duty. If the answer to this question is in the affirmative, it may be said that such act was committed by the public servant while acting in the discharge of his official duty and there was every connection with the act complained of and the official duty of the public servant. This aspect makes it clear that the concept of Section 197 does not get immediately attracted on institution of the complaint case.” (emphasis supplied)
9. In the decision of this Court in Parkash Singh Badal [Parkash Singh Badal v. State of Punjab, (2007) 1 SCC 1: (2007) 1 SCC (Cri) 193], in para 38, this Court held thus: (SCC p. 32) “38. The question relating to the need of sanction under Section 197 of the Code is not necessarily to be considered as soon as the complaint is lodged and on the allegations contained therein. This question may arise at any stage of the proceeding. The question whether sanction is necessary or not may have to be determined from stage to stage.” *** *** ***
14. There are two conditions for applicability of Section 197(1). The first condition is that the accused must be a public servant removable from his office by or with the Government's sanction. The second condition is that the offence alleged to have been committed by the public servant while acting or purporting to act in the discharge of his duty.” (in italics: emphasis in original in bold and underlined: emphasis supplied)
10. In the present case both the aforesaid conditions are squarely applicable and therefore the impugned order dated 29.05.2023 passed by learned MM summoning the present petitioner cannot be sustained in law especially in view of the order passed by the Coordinate Bench of this Court dated 15.09.2015. The sanction under Section 197 of the Cr.P.C. was awaited and therefore, the present petitioner could not have been summoned.
11. FIR in the present case was lodged in the year 2005. The chargesheet without the sanction was filed on 02.05.2007. Charges were framed qua the present petitioner under Sections 167/506 of the IPC and Section 23 of the JJ Act vide order dated 27.09.2010. It is a matter of record that thereafter learned Coordinate Bench of this Court in CRL.M.C. 3337/2011 vide order dated 15.09.2015 had set aside the said order framing charge noting the requirement of sanction under Section 197 of the Cr.P.C.. Thereafter, ordersheet of learned Trial Court dated 21.04.2018 records as under: “Present: Ld. APP for State Accused in person on bail with counsel. The counsel for the accused has submitted that vide order dt. 15.09.15, the Hon'ble High Court of Delhi had set-aside the order of framing of charge against the accused and therefore, at present the matter is at the stage of arguments on the point of charge. Ld. Counsel for the accused submits that in order to ascertain whether sanction u/s 197 Cr.P.C. was ever obtained by the IO or not,the IO in the present case SI Rakesh Kumar should be summoned. Submissions heard. In view of the submissions, Issue notice to the IO SI Rakesh Kumar through the DCP directing him to appear positively on the NDOH as some clarifications from him are required and the present case FIR pertains to the year 2005. Put up on 05.06.2018.”
12. Thereafter the matter was kept pending for arguments on charge and on 31.03.2022 the following order was passed by the learned MM: “Present:- Sh. Rohit Lohat, Ld. APP for the State. Accused alongwith Counsel Sh. Karan Johari. A communication has been received from Addl. DCP, North District, Delhi, seeking some time to file the prosecution sanction u/s 197 Cr.P.C qua the accused Rajeev Saxena. List the matter for awaiting the sanction u/s 197 Cr.P.C (for prosecuting the accused) on 16.07.2022. Ld Counsel for the accused may take photograph of the letter received from Addl. DCP today.”
13. Thereafter the matter was kept pending awaiting the sanction under Section 197 of the Cr.P.C..
14. Vide order dated 29.05.2023 summons were issued despite the fact that no sanction was placed on record. Thus, by the time of filing of the present petition in 2023, the petitioner’s trial had not proceeded any further for want of sanction. The delay in the present case by the prosecution cannot be attributed to the petitioner in any manner.
15. Sanction under Section 197 of the Cr.P.C. is a legal requirement to prosecute the present petitioner being his legal right and it was incumbent on the prosecution to obtain the same before proceeding to prosecute the present petitioner. The sanction in the present case as per the documents annexed with the status report was sought on 23.03.2022 as reflected from the letter sent by Government of NCT of Delhi, Department of Women and Child Development, Vigilance Branch which is reproduced as under:
16. A perusal of the aforesaid record would reflect that despite passing of the order by learned Coordinate Bench of this Court on 15.09.2015, no efforts were made by the prosecution to apply for sanction under Section 197 of the Cr.P.C. As per the documents placed on record, the aforesaid sanction was sought on 23.03.2022.
17. In Ramanand Chaudhury (supra), the Hon’ble Supreme Court quashed the proceedings under the Prevention of Corruption Act, 1947 by observing as under:
18. Similarly, in Santosh De (supra), the Hon’ble Supreme Court held as under:
19. Similarly, in Mahendra Lal Das (supra), the Hon’ble Supreme Court held as under:
1992, the then investigating officer submitted a proposal for granting sanction for prosecution of the appellant but till the time the petition was disposed of by the High Court, no orders were passed on the proposal seeking the grant of sanction. Even in the affidavit filed in this Court on 27-11-2000, it is submitted that: “A fresh letter for sanction of prosecution against accused Mahendra Lal Das was sent by the Vigilance Department to the Deputy Secretary, PHED vide Letter No. SRO 17/88 Vig. 794 CR dated 17-11-2000. Now the matter is under consideration and opinion by the parent Department.” However, during the arguments we were informed that ultimately sanction has been granted after filing of the SLP in this Court.
5. It is true that interference by the court at the investigation stage is not called for. However, it is equally true that the investigating agency cannot be given the latitude of protracting the conclusion of the investigation without any limit of time. This Court in Abdul Rehman Antulay v. R.S. Nayak [(1992) 1 SCC 225: 1992 SCC (Cri) 93] while interpreting the scope of Article 21 of the Constitution held that every citizen has a right to speedy trial of the case pending against him. The speedy trial was considered also in public interest as it serves the social interest also. It is in the interest of all concerned that guilt or innocence of the accused is determined as quickly as possible in the circumstances. The right to speedy trial encompasses all the stages, namely, stage of investigation, enquiry, trial, appeal, revision and retrial. While determining the alleged delay, the court has to decide each case on its facts having regard to all attending circumstances including nature of offence, number of accused and witnesses, the workload of the court concerned, prevailing local conditions etc. Every delay may not be taken as causing prejudice to the accused but the alleged delay has to be considered in the totality of the circumstances and the general conspectus of the case. Inordinate long delay can be taken as a presentive proof of prejudice.
6. In this case the prosecution has miserably failed to explain the delay of more than 13 years by now, in granting the sanction for prosecution of the appellant-accused of possessing disproportionate wealth of about Rs 50,600. The authorities of the respondent State also appear to be not satisfied about the merits of the case and were convinced that despite granting of sanction the trial would be a mere formality and an exercise in futility.
7. In cases of corruption the amount involved is not material but speedy justice is the mandate of the Constitution being in the interests of the accused as well as that of the society. Cases relating to corruption are to be dealt with swiftly, promptly and without delay. As and when delay is found to have been caused during the investigation, inquiry or trial, the appropriate authorities concerned are under an obligation to find out and deal with the persons responsible for such delay. The delay can be attributed either to the connivance of the authorities with the accused or used as a lever to pressurise and harass the accused as is alleged to have been done to the appellant in this case. The appellant has submitted that due to registration of the case and pendency of the investigation he lost his chance of promotion to the post of Chief Engineer. It is common knowledge that promotions are withheld when proceedings with respect to allegations of corruption are pending against the incumbent. The appellant has further alleged that he has been deprived of the love, affection and the society of his children who were residing in a foreign country as on account of the pendency of the investigation he could not afford to leave the country.”
20. In the present case, for the sake of repetition, it is stated that the petitioner was being prosecuted under Section 167 of the IPC which provides for punishment to a “public servant.” Thus, at the time of initiation of the FIR, it was in the knowledge of the respondent that the petitioner being a public servant, sanction under Section 197 of the Cr.P.C. is required. Since registration of the FIR in the year 2005, the sanction for the prosecution was sought in the year 2023. Clearly the aforesaid delay cannot be attributed to the petitioner in any manner. No explanation has come on record as to why the sanction despite the observations made by Coordinate Bench of this Court in order dated 15.09.2015 was sought after 7 years.
21. The delay in the present case since the registration of FIR in 2005 till the filing of the present petition in 2023 comes to be approximately 18 years. Speedy trial guaranteed under Article 21 of the Constitution of India is a significant and valuable right of the petitioner, which has been infringed in the present case. Continuance of the subject FIR no. 631/2005 and consequent proceedings arising therefrom is resulting in abuse of process of Court and in the interest of justice, this Court deems fit to exercise its power under Section 482 of the Cr.P.C..
22. In view of the above, FIR no. 631/2005 under Sections 167/324/342/506 IPC and section 23 JJ Act, registered at P.S. Timarpur and consequent proceedings including the chargesheet and the summoning order dated 29.05.2023 passed by learned MM-02, Central District Tis Hazari Court Delhi are hereby quashed.
23. Petition is allowed and disposed of, alongwith pending application(s), if any.
24. Order be communicated to the learned Trial Court for necessary information and compliance.
25. Order be uploaded on the website of this Court forthwith. AMIT SHARMA, J. APRIL 29, 2025