Anil Kumar v. State Thr. CBI

13. Mr. Dayan Krishnan learned senior counsel appearing for the petitioner has primarily advanced three arguments which form the crux of the case for the petitioner. a. Firstly, he contended that the land on which the alleged illegal construction was being carried on was under the jurisdiction of Revenue Department, implying thereby that the Municipal Corporation of Delhi or its officers have no jurisdiction over the said land rather the Patwari is the competent authority of the concerned area. It was thus submitted that the present Petitioner has neither the jurisdiction nor any involvement whatsoever with the unauthorized construction; b. Secondly, learned senior counsel vehemently argued that the Petitioner never signed or generated any report to be sent to the monitoring committee. On the same note, he submitted that Petitioner never granted any permission or approved the construction that was allegedly illegally ongoing on the said plot of land. He also submitted that the Petitioner has a supervisory role while the person responsible for on field inspection are the executive engineers; and c. Lastly, it was argued that from the facts and circumstance of the case, no offense can be said to be made out under Section 13(1)(d) of the PC Act since there is no conscious demand and acceptance of the bribe by the petitioner herein, as required by various rulings of this Court. To buttress his arguments, the learned counsel has placed reliance on judgments of this Court. He referred to paragraph 111 of the judgment in the case of A.K. Ganju v. CBI 2013 SCC OnLine Del 4686.

14. He also drew the attention of this court to the judgment of the High Court in Ashwini Kumar Batra v. CBI 2011 SCC OnLine Del 2641, specifically paragraphs 63 and 68 of the said judgement to contend that whenever an unauthorized construction takes place, the Junior Engineer needs to report to the Assistant Engineer, who is further required to issue a show cause notice to the person concerned under his signature.

15. Per Contra, learned Standing Counsel on behalf of CBI drew the attention of the Court to the Office Order dated 20th August 2001, issued by Commissioner’s Office, MCD, New Delhi. As per Standing Instructions issued vide the Office Order, inspection of unauthorized construction in respective area is to be carried out by Junior Engineer, Assistant Engineer and Executive Engineer in 7 days, 15 days, and 30 days respectively. Inspection report mentioning the areas visited and unauthorized construction detected, if any, were to be sent positively to the next higher officer in hierarchy. Further as per clause 3 of the Office order No. PSC/716/2008 dated 12th September 2008 issued by Shri K S Mehra, Commissioner, MCD, New Delhi the detection of unauthorized construction at the first level shall be carried out by the Junior Engineers and Assistant Engineers of the concerned zones under the supervision of Executive Engineers. Additionally, as per clause 8 of the same Office Order, JE of each ward of the zone would every month issue a certificate under his signature certifying that there is no unauthorized construction/or encroachment of Govt./Municipal land. This certificate should also give details regarding ongoing unauthorized construction and/or encroachment and action taken thereof as per provisions of Delhi Municipal Corporation Act, 1972 (hereinafter referred to as the “DMC Act”).

16. Thus, the inspection in the former clause needs to be carried out by the Junior and Assistant Engineers under the supervision of Executive Engineers whereas in the latter clause, Junior Engineer is required to issue a certificate under his signature detailing the unauthorized construction as per the provisions of the DMC Act. Based on these clauses, it is submitted that detection of unauthorized construction and the concerned duties was an integral part of the duties of the officials of the Municipal Corporation of Delhi including the Petitioner and hence, it would be wrong to contend that the Petitioner merely had a supervisory role in the entire exercise.

17. It was also argued by the counsel for the Respondent that the agricultural land comes under the purview of the Revenue authorities as long as the land is used for agricultural purposes but once the construction activities have started, the jurisdiction is conferred with the Municipal Corporation of Delhi. It is submitted relying on Section 507 of the DMC Act that revenue authorities were only required to issue certificate for converting the land from agricultural to commercial purposes however when the same is not done, the MCD will always have a jurisdiction when no plan has been approved by it. The Counsel submitted that, hence, the Petitioner will always have a role to play when an unauthorized construction takes place on a land, be it agricultural or commercial.

18. It is also brought to the notice of this Court that the Petitioner has been taking contradictory stands. It is because once the present FIR was registered, the same division of MCD decided to register an FIR under Section 332 of the DMC Act. Extending the argument, it is submitted that if MCD had no jurisdiction on the said property, then how come the actions were initiated by them subsequently. It has also been argued that the arguments of Petitioner regarding the jurisdiction have already been canvassed before the learned Special judge when the order on charge was framed and on a prima facie satisfaction, he framed the charges. Further, the trial has been concluded and the matter is posted for arguments before the Trial Court. At this stage, it may not be appropriate for this Court to delve into the merits and scrutiny of evidence while exercising inherent jurisdiction under Section 482 of the Code. Thus, no interference is warranted by this Hon’ble Court at this stage.

19. Concluding his arguments, learned Standing Counsel has submitted that the instant petition ought to be dismissed, for the reasons stated hereunder: A) Firstly, the dispute regarding jurisdiction as being raised is unwarranted since: a. properties in dispute as shown in FIR falls within the territorial jurisdiction of MCD; b. as per Sections 331 and 332 of Chapter XVI of DMC Act, building regulation regarding erection of building is applicable on any building, on any site, irrespective of the land, whether it is agricultural or otherwise; and c. lodging of the FIR by MCD under Section 332 of the DMC Act, subsequent to the registration of FIR by CBI in the same matter regarding unauthorized construction in pursuance of the Order of the Court in Common Cause (supra), clearly shows that the MCD has the jurisdiction; B) Secondly, there is ample material on record and substantial recovery has been made on the basis of which the charges have been framed and order on charge passed by the learned Trial Court; and C) Thirdly, the Trial is at a mature stage posted for final arguments and the instant petition under Section 482 has remained pending since 11th November 2011, and no good grounds are made out for exercise of the Court’s jurisdiction under Section 482.

20. In the course of arguments, learned Standing Counsel on behalf of CBI made passing reference to a catena of judgments of the Supreme Court. Specific reliance has been placed on paragraphs 9.[1] and 9.[2] of Kaptan Singh v. State of U.P. (2021) 9 SCC 35 dealing with the restraints on the exercise of Section 482 jurisdiction of the Court.

21. The rival submissions now fall for consideration before this Hon’ble Court.

ANALYSIS & FINDINGS

22. Heard the counsels for parties and perused the record at length.

23. Before adverting to the analysis of the arguments made and case laws cited by the parties, to appreciate the case at hand, it is pertinent to refer to the law laid down in this context along with a perusal of the statutory scheme of the Code.

(i) Sanction for Prosecuting Public Servants

24. It is to be noted that the prosecution in the present matter is not of an ordinary citizen but of a government official involved in discharging important functions of public importance. Unlike, an ordinary criminal prosecution, such government officials’ prosecution needs to be sanctioned by the government under Section 197 of the Code. Thus, the present prosecution has passed an additional layer of scrutiny in the form of sanction before being prosecuted before the Ld. Special judge. Before adverting to the sanction order, it is essential to refer to the rationale of introducing the need for sanctioning for the government officials.

25. In this regard, it is essential to take note of the case of Rakesh Kumar Mishra v. State of Bihar, (2006) 1 SCC 557, where the Hon’ble Apex Court examined the legislative intent behind the grant of sanction in the following words:

26. The present petitioner has passed this muster of sanction under Section 197 of the Code whereby his superior officer, Mr. K.S. Mehra after considering the evidence and statements on record held that: “And whereas the aforesaid acts, omissions and commissions on the part of Shri Anil Kumar, AE, Shri Surender Kumar, JE, Jasbir Deswal, Sarabjit Singh, Wasim Khan and Pavitra Singh constitute offences punishable u/s,120-B IPC r/w13 (2)r/w 13 (1) (d) of PC Act, 1988. Now, therefore, I, K.S. Mehra, Commissioner, Municipal Corporation of Delhi being the authority, competent to remove said Shri Anil Kumar, Asstt. Engineer, Municipal Corporation of Delhi from his office, after fully and carefully examining all the facts and circumstances of the case as well as the material including the statements of witnesses recorded under section 161 of Cr.P.C. and the documents placed before me in regard to the said allegations, considered that Shri Anil Kumar, Asstt. Engineer should be prosecuted in the court of law for the said offences.”

(ii) Summoning

27. The veracity of the prima facie case as being alleged against the petitioner got further strengthened by the subsequent process where the Court concerned summoned the accused upon its satisfaction and subsequently went ahead with the framing of charges.

28. The Hon’ble Supreme Court in the case of Pepsi Foods Ltd. v. Special Judicial Magistrate (1998) 5 SCC 749 has laid down the law pertaining to material relevant for the purpose of summoning as under:

29. The Hon’ble Supreme Court in the case of Chandra Deo Singh v. Prokash Chandra Bose AIR 1963 SC 1430 has also highlighted the purpose of issuance of summons as under: “7....No doubt, one of the objects behind the provisions of Section 202 CrPC is to enable the Magistrate to scrutinise carefully the allegations made in the complaint with a view to prevent a person named therein as accused from being called upon to face an obviously frivolous complaint. But there is also another object behind this provision and it is to find out what material there is to support the allegations made in the complaint. It is the bounden duty of the Magistrate while making an enquiry to elicit all facts not merely with a view to protect the interests of an absent accused person, but also with a view to bring to book a person or persons against whom grave allegations are made. Whether the complaint is frivolous or not has, at that stage, necessarily to be determined on the basis of the material placed before him by the complainant...”

30. Thus, the test for issuance of summons essentially involves determining whether the offense can be said to have been committed upon a perusal of the material on record. The satisfaction of the authority for issuing summons does not require a detailed scrutiny but a mere prima-facie satisfaction of the magistrate concerned.

(iii) Framing of Charges & Order on Charge

31. The Hon’ble Bombay High Court in the case of Samadhan Baburao Khakare v. State of Maharashtra, 1995 SCC OnLine Bom 72 has highlighted the objective and importance of Charge in criminal trial in the following words:

32. The Hon’ble Supreme Court in the case of Santosh Kumari v. State of J&K, (2011) 9 SCC 234 has comprehensively dealt with the question and purpose of framing of charges as under:

33. The Hon’ble Supreme Court in Main Pal v. State of Haryana,

“(i) The object of framing a charge is to enable an accused to have a clear idea of what he is being tried for and of the essential facts that he has to meet. The charge must also contain the particulars of date, time, place and person against whom the offence was committed, as are reasonably sufficient to give the accused notice of the matter with which he is charged.” Thus, what can be seen from the above extract is the fact that the object of framing of charge is to make the accused aware about the defense that is required to be brought in through evidence and witnesses.

34. It is also required to be noted that the charge does not render a conclusive finding with respect to guilt or innocence of the accused. The charge is merely an indication to the accused about the offense for which he is being tried for. In this regard, it is essential to take note of the following observation of the Hon’ble Supreme Court in Esher Singh v. State of A.P. (2004) 11 SCC 585, where the Hon’ble Court observed:

35. In the instant case, charges were framed by the learned Special judge on 12th August 2021 after detailed consideration of the material on record. The order on charge states that as per the order dated 20th August 2001 issued by the Commissioner of Municipal Corporation of Delhi, it was the duty of the present Petitioner to detect unauthorized construction by carrying out inspection. It was further stated in the order on charge that the present petitioner by acting in connivance with Surendra Kumar (Junior Engineer) submitted false inspection reports in the period of January-June 2009.

36. Further, it is pertinent to take note of certain observations made in the order on charge:

37. Relying upon a decision of the Hon’ble Supreme Court in Union of India v. Prafulla Kumar Samal AIR 1979 SC 366, statements of witnesses and recoveries made, the Special Judge held that in light of the facts and recovery made, a prima facie case has been made out against the accused and thus the charges were framed under Sections 13(2) and 13(1)(d) of the PC Act read with Section 120-B of the IPC.

38. This court is of the view that in light of the recoveries made and statement made by the independent witnesses, it cannot be ruled out that the petitioner has been involved in the commission of Sections 13(2) and 13(1)(d) of the PC Act read with Section 120-B of the IPC. Thus, this court finds no infirmity, illegality or perversity in the order on charge for which the inherent powers need to be exercised under Section 482 of the Code especially when the matter is listed for final arguments.

(iv) Section 482 of the Code

39. The jurisdiction of this Court has been invoked under Section 482 of the Code, which reads as under:

482. Saving of inherent powers of High Court. – Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice. The bare language of the provision unambiguously states that the inherent powers of the High Court are meant to be exercised (i) to give effect to any order under the Code (ii) to prevent abuse of the process of any Court; or (iii) to secure the ends of justice.

40. The aforementioned provision has been referred, analyzed and interpreted in a catena of judgments of the Hon’ble Supreme Court which are referred to in the following paragraphs.

41. In the case of Kaptan Singh v. State of U.P., (2021) 9 SCC 35, the Hon’ble Supreme Court has held that: 9.[1] At the outset, it is required to be noted that in the present case the High Court in exercise of powers under Section 482 Cr.P.C. has quashed the criminal proceedings for the offences under Sections 147, 148, 149,406, 329 and 386 of IPC. It is required to be noted that when the High Court in exercise of powers under Section 482 Cr.P.C. quashed the criminal proceedings, by the time the Investigating Officer after recording the statement of the witnesses, statement of the complainant and collecting the evidence from the incident place and after taking statement of the independent witnesses and even statement of the accused persons, has filed the charge-sheet before the Learned Magistrate for the offences under Sections 147, 148, 149, 406, 329 and386 of IPC and even the learned Magistrate also took the cognizance. From the impugned judgment and order passed by the High Court, it does not appear that the High Court took into consideration the material collected during the investigation/inquiry and even the statements recorded. If the petition under Section 482 Cr.P.C. was at the stage of FIR in that case the allegations in the FIR/Complaint only are required to be considered and whether a cognizable offence is disclosed or not is required to be considered. However, thereafter when the statements are recorded, evidence is collected and the charge-sheet is filed after conclusion of the investigation/inquiry the matter stands on different footing and the Court is required to consider the material/evidence collected during the investigation. Even at this stage also, as observed and held by this Court in catena of decisions, the High Court is not required to go into the merits of the allegations and/or enter into the merits of the case as if the High Court is exercising the appellate jurisdiction and/or conducting the trial. As held by this Court in the case of Dineshbhai Chandubhai Patel (Supra) in order to examine as to whether factual contents of FIR disclose any cognizable offence or not, the High Court cannot act like the Investigating agency nor can exercise the powers like an Appellate Court. It is further observed and held that question is required to be examined keeping in view, the contents of FIR and prima facie material, if any, requiring no proof. At such stage, the High Court cannot appreciate evidence nor can it draw its own inferences from contents of FIR and material relied on. It is further observed it is more so, when the material relied on is disputed. It is further observed that in such a situation, it becomes the job of the Investigating Authority at such stage to probe and then of the Court to examine questions once the charge-sheet is filed along with such material as to how far and to what extent reliance can be placed on such material. 9.[2] In the case of Dhruvaram Murlidhar Sonar (Supra) after considering the decisions of this Court in Bhajan Lal (Supra), it is held by this Court that exercise of powers under Section 482 Cr.P.C. to quash the proceedings is an exception and not a rule. It is further observed that inherent jurisdiction under Section 482 Cr.P.C. though wide is to be exercised sparingly, carefully and with caution, only when such exercise is justified by tests specifically laid down in section itself. It is further observed that appreciation of evidence is not permissible at the stage of quashing of proceedings in exercise of powers under Section 482 Cr.P.C. Similar view has been expressed by this Court in the case of Arvind Khanna (Supra), Managipet (Supra)and in the case of XYZ (Supra), referred to hereinabove.

42. In Jitul Jentilal Kotecha v. State of Gujarat and Others, 2021 SCC OnLine SC 1045, the Hon’ble Supreme Court has recently held that:

27. It is trite law that the High Court must exercise its inherent powers under Section 482 sparingly and with circumspection. In the decision in Jugesh Sehgal v. Shamsher Singh Gogi, this Court has held that, “[t]he inherent powers do not confer an arbitrary jurisdiction on the High Court to act according to whim or caprice.” In Simrikhia v. Dolley Mukherjee, this Court in another context, while holding that the High Court cannot exercise its inherent powers to review its earlier decision in view of Section 362 of the CrPC, observed that the inherent powers of the High Court cannot be invoked to sidestep statutory provisions. This Court held: “5. …Section 482 enables the High Court to make such order as may be necessary to give effect to any order under the Code or to prevent abuse of the process of any court or otherwise to secure the ends of justice. The inherent powers, however, as much are controlled by principle and precedent as are its express powers by statute. If a matter is covered by an express letter of law, the court cannot give a goby to the statutory provisions and instead evolve a new provision in the garb of inherent jurisdiction.”

31. Recently, in Mahendra KC v. State of Karnataka, this Court has reiterated the well settled test to be applied by the High Court for exercise of its powers under Section 482 for quashing an FIR: “16…the test to be applied is whether the allegations in the complaint as they stand, without adding or detracting from the complaint, prima facie establish the ingredients of the offence alleged. At this stage, the High Court cannot test the veracity of the allegations nor for that matter can it proceed in the manner that a judge conducting a trial would, on the basis of the evidence collected during the course of trial.”

43. On 11th December 2021, the Hon’ble Supreme Court while deciding the case of State of Odisha v. Pratima Mohanty (Criminal Appeal No.s 1455-1456 of 2021) has comprehensively dealt with the powers and extent of the jurisdiction of the High Court while deciding a petition under Section 482 of the Code. The Hon’ble Supreme Court has held as under:

6. As held by this Court in the case of State of Haryana and Ors. vs Ch. Bhajan Lal and Ors. AIR 1992 SC 604, the powers under Section 482 Cr.P.C. could be exercised either to prevent an abuse of process of any court and/or otherwise to secure the ends of justice. In the said decision this Court had carved out the exceptions to the general rule that normally in exercise of powers under Section 482 Cr.P.C. the criminal proceedings/FIR should not be quashed. Exceptions to the above general rule are carved out in para 102 in Bhajan Lal (supra) which reads as under:

44. The position of law that is crystallized, in light of the aforementioned judgments, is that quashing should be an exception and the Section 482 jurisdiction for the same should be exercised sparingly, with circumspection and in rarest of the rare cases. Further, while examining an FIR for quashing, the court cannot (a) enter into the merits of the case, (b) embark upon a roving enquiry or (c) conduct a trial as to the reliability or genuineness of allegations made in the FIR; nor (d) it has to see the probability of conviction on the basis of evidence on record – what is required is to be seen that whether there has been an abuse of process or interests of justice requires the proceedings to be quashed. In this case, in light of the aforesaid analysis, a case for exercise for Section 482 jurisdiction is not made.

45. The counsel for petitioner has heavily relied on a judgment of the High Court in A.K. Ganju v. CBI (supra). After having gone through the ratio of the judgment, and analyzing the case at hand, it is essential to distinguish the aforementioned judgment for the reasons that firstly, the facts of the case are not similar to the one at hand; secondly, the criminal proceedings in the instant case arise out of the directions of this Court in Common Cause v. Union of India (supra) qua illegal and unauthorized construction as contrasted to the facts of the A. K. Ganju case; and thirdly, in the instant case, the MCD has itself initiated criminal proceedings by way of lodging of FIR details of which have been mentioned earlier as well as the sanction for prosecuting the public servants in question been granted by the superior officer of the petitioner upon his satisfaction.

46. Upon a perusal of the contentions raised as well as the record, specifically - the chargesheet, order on charge, and further in light of the recoveries made during the investigation, this Court neither finds any force in the arguments made by the learned Counsel for petitioner nor finds any apparent error in the finding of the Court below, since a prima facie case is made out against the accused. This court is also of the opinion in view of the evidence on record that the possibility of offense under the said sections cannot be ruled out. Thus, the baton is before the trial court which has to proceed with the final arguments since the trial is completed to examine the merits of the case as against the nature of jurisdiction conferred upon this Court under Section 482 of Code.

47. Considering the above, this Court does not deem it fit to interfere with the order on charge of the Trial Court.

CONCLUSION

48. In view of these facts and circumstances and having perused the provisions of law, this Court finds no merit in the instant petition, a case for exercise of Section 482 jurisdiction is not made out and is therefore, inclined to dismiss the same. Hence, this Court does not allow the instant petition as prayed for.

49. Accordingly, the petition and pending applications stand dismissed.

50. The judgment be uploaded on the website forthwith.

JUDGE DECEMBER 22, 2021 dy