CBI v. Dev Pal Singh

1. Whether the Reporters of local papers may be allowed to see the judgment?

2. To be referred to Reporter or not?

3. Whether the judgment should be reported in the Digest? SUNIL GAUR, J. (Oral)

1. Petitioner is the Investigating Officer of RC No.AC3/2004 A0004/CBI/ACU-III/New Delhi (CC-09/2007) titled as CBI vs. Dev Pal Singh etc. He had filed charge sheet in this case against six accused persons. Trial court while hearing on the point of charge vide impugned order of 4th October 2008 had found that this case has not been properly 1nvestigated and ordered for further investigation by observing as under:- Cri.Rev.P.No.12/2009 2011:DHC:1963[9]

2. "Investigating officer had neither mentioned the role of the persons, whose names emerged over the record through statements of Ram Chander Sharma, Satyabir Singh, Nanak Chand, Narpal Singh and V.S. Harit in the chargesheet nor he had specified the files in which aforesaid persons gave estimates of red sand stone benches, gave technical sanction to those estimates, after getting it technically checkec' and administrative approval of those rates and thereafter executed agreements with contractors and ultimately released payments to them. It is evident that aforesaid officers, whose names, came over the record through statement of witnesses, namely, Ram Chander Sharma, Satyabir Singh, Nanak Chand, Narpat Singh and V.S. Harit are not absolved of the crime of conspiracy with intent to cheat the Corporation and misconduct of abusing their official position as such public servants to obtain pecuniary advantage in favour of contractors. Consequently, it is evident that the investigating officer had disobeyed directions of law with intent to save aforesaid persons from legal punishment and framed incorrect record. Resultantly, Director, CBI is commanded to get a case registered against the investigating officer for offences punishable under section 217 and 218 of the Penal Code, cause it to be investigated and brought him to the book." Learned counsel for the petitioner is aggrieved by the directions issued by the trial court in the aforesaid paragraph No.54 of the impugned order for registration of a case against the petitioner under Section 217 and 218 of the IPC.

3. Learned counsel for the petitioner ~as drawn c, attention of this Court to a decision render'ed by my esteemed brother Sanjay Kishan Kaul, J., on 26th March, Cri.Rev.P.No.12/2009 Page 2 of[4],_ 2008 in Cri.Rev.P.No.10/2008 titled as Manmohan Sharma vs. State, wherein it has been held that before passing strictures against a police officer, he has to be afforded an opportunity of explaining his conduct.

4. In Manmohan Sharma (supra), what was said is as under:- "The result of the afomsaid is that the direction passed in paragraph 40 of the impugned judgement in the present case fall within the mischief referred to in the aforesaid judgements whereby the learned Additional Sessions Judge as straightway issued a'irections for registration of the FIR against the police officers and proceedings against them without following the mandatory provision of Section 340 Cr. P. C. The direction is, thus, liable to be set aside. I, however, deem it appropriate that in view of the observations made foresaid it would be open to the trial court to consider the matter afresh and take a considered decision whether the matter needs to be referred to the CMMIMM for inquiry under Section 340 Cr.P. C. as also on the aspect whether before issuance of any directions an opportunity ought to be given to the petitioners to explain their stand which may necessitate such an action. The petitions are accordingly allowed."

5. It is no~ in dispute that the trial court in impugned order has afforded no opportunity to the petitioner to explain his conduct, before directing the CBI to register a criminal case against the petitioner under Section 217 and 218 of the IPC. Learned standing counsel for the respondent concedes that in view of the legal position as explained 1n Manmohan Sharma (supra), the petitioner ought to be afforded an opportunity of offering an explanation before the trial court. Cri.Rev.P.No.l2/2009 ) -

6. In the view of the aforesaid position, this revision petition is allowed and the direction issued in paragraph 54 of the impugned order is set aside. Let the trial court afford a hearing to the petitioner in case it chooses to proceed against the petitioner, particularly in view of the Report of further investigation dated 25.2.2009 submitted by the respondent before the trial court.

7. Let the trial Court be apprised of this order to enable it to proceed forthwith in accordance with law.

8. With aforesaid observations, this petition is disposed of. September 16, 2011 pkb Cri.Rev.P.No.12/2009 Page4of[4]