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Crl.M.C.No.3620/2013 Page 1 HIGH COURT OF DELHI
CRL.M.C.NO.3620/2013
STATE ..... Petitioner
Through: Mr. Siddharth Luthra, Additional Solicitor General with Mr. Pawan Sharma, Standing Counsel (Crl.)
GNCTD with Ms. Supriya Juneja, Mr. Gurmohan Singh Bedi & Mr. Sahil Mongia, Advocates
CRL.M.C.NO.3620/2013
STATE ..... Petitioner
Through: Mr. Siddharth Luthra, Additional Solicitor General with Mr. Pawan Sharma, Standing Counsel (Crl.)
GNCTD with Ms. Supriya Juneja, Mr. Gurmohan Singh Bedi & Mr. Sahil Mongia, Advocates
VERSUS
VIJENDER GUPTA ..... Respondent
Through: Mr. Sanjay Jain, Sr. Advocate with Mr. Ajay Burman, Mr. Ajay Digpaul, Mr. Anil Soni & Mr. Kishan Nautiyal, Advocates
Through: Mr. Sanjay Jain, Sr. Advocate with Mr. Ajay Burman, Mr. Ajay Digpaul, Mr. Anil Soni & Mr. Kishan Nautiyal, Advocates
CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR O R D E R 03.09.2013
Crl.M.A.No.13198/2013 (Exemption)
Allowed subject to all just exceptions.
Crl.M.C.No.3620/2013 & Crl.M.A.No.13197/2013 Quashing of CC No. 14/2013 for the offence under Section
409/420 I.P.C. and under Section 13(1) (c) & (d) of Prevention of
Corruption Act, 1988 as well as order of 8th August, 2013 directing
2013:DHC:4375 Crl.M.C.No.3620/2013 Page 2 registration of FIR against sitting Chief Minister of State of Delhi for the aforesaid offence, is sought in this petition.
At the outset, learned Additional Solicitor General for petitioner-
State had placed reliance upon decisions in Commissioner of Police &
Ors. v. Manoj Sharma & Anr. 2007 (4) JCC 2886, Ajay Raj Sharma v.
State 2001 Cri.L.J.616, Satish Rana v. CBI & Anr. 185 (2011) DLT 200 and Crl.Application No.258/2013 State of Maharashtra v. Shashikant decided by High Court of Bombay (Nagpur Bench) on 2nd July, 2013 to contend that State has locus to defend alleged accused, who is sitting
Chief Minister of State of Delhi. Attention of this Court was drawn by learned Additional Solicitor General to the parameters governing exercise of powers under Section 156(3) of Cr.P.C. as spelt out in Subhkaran
Luharuka & Anr. v. State (Govt. of NCT of Delhi) & Anr. 170 (2010)
DLT 516 and it was vehemently contended that since the President of
India is seized with the recommendations of 22nd May, 2013 made by Lokayukta of Delhi, so, initiation of criminal proceedings on the basis of
Lokayukta’s recommendations is uncalled for. It was asserted by learned
Additional Solicitor General that the complaint (Annexure P-2) of respondent is politically motivated and direction by the trial court to register FIR as respondent-complainant has no access to Government record is unwarranted because respondent-complainant can always have an access to the Government records by invoking Right To Information
Act, 2005. Thus, stay of impugned order during pendency of this petition is sought.
Upon notice, Mr. Sanjay Jain, Sr. Advocate for respondent- complainant had contended that cognizance of the offence has not yet
Crl.M.C.No.3620/2013 Page 3 been taken and only police investigation has been ordered by the trial court, which is well merited and this petition is pre-mature. Attention of this Court was drawn by learned Senior Counsel for respondent- complainant to paragraph No.6.5 of the impugned order and it was submitted that the police is in a better position to investigate, as cognizable offence has been committed by the accused, who happens to be the Chief Minister of State of Delhi and she deserves to be prosecuted for fraudulently and dishonestly misappropriating the Government funds for her own election campaign and for election campaign of Congress
Party during the year 2007. At this stage, learned Additional Solicitor
General interjects and submits that registration of FIR against sitting
Chief Minister of State of Delhi is not only politically motivated but is even belated and since the proceedings arising out of respondent’s complaint under Section 156(3) Cr.P.C. is an abuse of process of Court therefore, while applying the parameters governing exercise of powers under Section 482 Cr.P.C., criminal proceedings arising out of complaint
(Annexure P-2) deserve to be quashed.
Upon preliminary hearing and on perusal of the impugned order as well as complaint (Annexure P-2), this Court prima facie, finds that the direction to register an FIR on the basis of complaint has been issued primarily on the recommendations of 22nd May, 2013 made by Lokayukta of State of Delhi, which have been reproduced in paragraph No.4 of complaint (Annexure P-2). Pertinently, the recommendations of
Lokayukta highlight the irregularities committed in the year 2007-08 in releasing Government advertisements. The sum and substance of the
Crl.M.C.No.3620/2013 Page 4 recommendations of 22nd May, 2013 of the Lokayukta as culled out in paragraph No.4 of the complaint (Annexure P-2) is as under:-
“To administer a caution to the Respondent for being actuated, in publishing and releasing advertisements purporting to be Government advertisements in the year
2007-08, in furtherance of the campaign strategy as revealed in the article titled “Sheila Ki Campaign
Ranniti”, actuated by improper motives and personal interest, thereby misusing her position to obtain gain/favour for herself and her party in violation of the norms of integrity and conduct which out to be followed by a Chief Minister/Minister.
To advice the Respondent to reimburse, either herself or through her party, being beneficiaries, a sum of Rs.11 crores, being approximately 50% of the cost of advertisements in the election year used in the
Government advertisements for party political purposes, or such other sum as the Hon’ble President finds adequate as having been incurred for advancing self and political/party purposes from public funds.”
At first glance, it appears that recommendations of 22nd May, 2013 made by Lokayukta of State of Delhi is a detailed fact-finding report, which is already under consideration of President of India and therefore, access to Government records is really needed through police investigation is a moot question, which can be addressed after both the sides are extensively heard. Whether complaint (Annexure P-2) on the basis of which direction to register an FIR had been issued vide impugned order is belated or is politically motivated is also a question which can be effectively answered after a full-fledged hearing. Propriety demands that
Crl.M.C.No.3620/2013 Page 5 when the President of India is seized of the recommendations of
Lokayukta of State of Delhi on the subject matter in hand, police investigation ought not to be undertaken as it is expected that the
President of India would soon deal with the Lokayukta’s recommendations.
At this stage learned senior counsel for respondent-complainant seeks a week’s time to respond to this petition.
Allowed to do so.
Learned Additional Solicitor General seeks a week’s time thereafter to file rejoinder.
Let it be so done.
On the oral request of learned Additional Solicitor General, Commission of Police, Delhi is impleaded as second respondent.
Amended memo of parties be filed within two days.
Renotify on 19th September, 2013 at the end of board in the category of “After Notice Miscellaneous Matters”.
Till then status quo as of today in respect of FIR in question be maintained.
Copy of this order be given dasti under the signature of Court
Master to both the sides.
Commissioner of Police, Delhi be apprised of this order forthwith.
SUNIL GAUR, J.
SEPTEMBER 03, 2013 vn
Crl.M.A.No.13198/2013 (Exemption)
Allowed subject to all just exceptions.
Crl.M.C.No.3620/2013 & Crl.M.A.No.13197/2013 Quashing of CC No. 14/2013 for the offence under Section
409/420 I.P.C. and under Section 13(1) (c) & (d) of Prevention of
Corruption Act, 1988 as well as order of 8th August, 2013 directing
2013:DHC:4375 Crl.M.C.No.3620/2013 Page 2 registration of FIR against sitting Chief Minister of State of Delhi for the aforesaid offence, is sought in this petition.
At the outset, learned Additional Solicitor General for petitioner-
State had placed reliance upon decisions in Commissioner of Police &
Ors. v. Manoj Sharma & Anr. 2007 (4) JCC 2886, Ajay Raj Sharma v.
State 2001 Cri.L.J.616, Satish Rana v. CBI & Anr. 185 (2011) DLT 200 and Crl.Application No.258/2013 State of Maharashtra v. Shashikant decided by High Court of Bombay (Nagpur Bench) on 2nd July, 2013 to contend that State has locus to defend alleged accused, who is sitting
Chief Minister of State of Delhi. Attention of this Court was drawn by learned Additional Solicitor General to the parameters governing exercise of powers under Section 156(3) of Cr.P.C. as spelt out in Subhkaran
Luharuka & Anr. v. State (Govt. of NCT of Delhi) & Anr. 170 (2010)
DLT 516 and it was vehemently contended that since the President of
India is seized with the recommendations of 22nd May, 2013 made by Lokayukta of Delhi, so, initiation of criminal proceedings on the basis of
Lokayukta’s recommendations is uncalled for. It was asserted by learned
Additional Solicitor General that the complaint (Annexure P-2) of respondent is politically motivated and direction by the trial court to register FIR as respondent-complainant has no access to Government record is unwarranted because respondent-complainant can always have an access to the Government records by invoking Right To Information
Act, 2005. Thus, stay of impugned order during pendency of this petition is sought.
Upon notice, Mr. Sanjay Jain, Sr. Advocate for respondent- complainant had contended that cognizance of the offence has not yet
Crl.M.C.No.3620/2013 Page 3 been taken and only police investigation has been ordered by the trial court, which is well merited and this petition is pre-mature. Attention of this Court was drawn by learned Senior Counsel for respondent- complainant to paragraph No.6.5 of the impugned order and it was submitted that the police is in a better position to investigate, as cognizable offence has been committed by the accused, who happens to be the Chief Minister of State of Delhi and she deserves to be prosecuted for fraudulently and dishonestly misappropriating the Government funds for her own election campaign and for election campaign of Congress
Party during the year 2007. At this stage, learned Additional Solicitor
General interjects and submits that registration of FIR against sitting
Chief Minister of State of Delhi is not only politically motivated but is even belated and since the proceedings arising out of respondent’s complaint under Section 156(3) Cr.P.C. is an abuse of process of Court therefore, while applying the parameters governing exercise of powers under Section 482 Cr.P.C., criminal proceedings arising out of complaint
(Annexure P-2) deserve to be quashed.
Upon preliminary hearing and on perusal of the impugned order as well as complaint (Annexure P-2), this Court prima facie, finds that the direction to register an FIR on the basis of complaint has been issued primarily on the recommendations of 22nd May, 2013 made by Lokayukta of State of Delhi, which have been reproduced in paragraph No.4 of complaint (Annexure P-2). Pertinently, the recommendations of
Lokayukta highlight the irregularities committed in the year 2007-08 in releasing Government advertisements. The sum and substance of the
Crl.M.C.No.3620/2013 Page 4 recommendations of 22nd May, 2013 of the Lokayukta as culled out in paragraph No.4 of the complaint (Annexure P-2) is as under:-
“To administer a caution to the Respondent for being actuated, in publishing and releasing advertisements purporting to be Government advertisements in the year
2007-08, in furtherance of the campaign strategy as revealed in the article titled “Sheila Ki Campaign
Ranniti”, actuated by improper motives and personal interest, thereby misusing her position to obtain gain/favour for herself and her party in violation of the norms of integrity and conduct which out to be followed by a Chief Minister/Minister.
To advice the Respondent to reimburse, either herself or through her party, being beneficiaries, a sum of Rs.11 crores, being approximately 50% of the cost of advertisements in the election year used in the
Government advertisements for party political purposes, or such other sum as the Hon’ble President finds adequate as having been incurred for advancing self and political/party purposes from public funds.”
At first glance, it appears that recommendations of 22nd May, 2013 made by Lokayukta of State of Delhi is a detailed fact-finding report, which is already under consideration of President of India and therefore, access to Government records is really needed through police investigation is a moot question, which can be addressed after both the sides are extensively heard. Whether complaint (Annexure P-2) on the basis of which direction to register an FIR had been issued vide impugned order is belated or is politically motivated is also a question which can be effectively answered after a full-fledged hearing. Propriety demands that
Crl.M.C.No.3620/2013 Page 5 when the President of India is seized of the recommendations of
Lokayukta of State of Delhi on the subject matter in hand, police investigation ought not to be undertaken as it is expected that the
President of India would soon deal with the Lokayukta’s recommendations.
At this stage learned senior counsel for respondent-complainant seeks a week’s time to respond to this petition.
Allowed to do so.
Learned Additional Solicitor General seeks a week’s time thereafter to file rejoinder.
Let it be so done.
On the oral request of learned Additional Solicitor General, Commission of Police, Delhi is impleaded as second respondent.
Amended memo of parties be filed within two days.
Renotify on 19th September, 2013 at the end of board in the category of “After Notice Miscellaneous Matters”.
Till then status quo as of today in respect of FIR in question be maintained.
Copy of this order be given dasti under the signature of Court
Master to both the sides.
Commissioner of Police, Delhi be apprised of this order forthwith.
SUNIL GAUR, J.
SEPTEMBER 03, 2013 vn
JUDGMENT