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2006 Supreme(Del) 1772
High Court Of Delhi
BADAR DURREZ AHMED
R.R.KISHORE - Appellant
Versus
C.B.I. - Respondents
CRL. REV. P. 366 Of 2006
Decided On : 10/05/2006
R.M.TIWARI
Headnote:
BADAR DURREZ AHMED, J, J. ( 1 ) THIS Revision petition is directed against the order dated 30th of april, 2006 passed by the Special Judge, CBI. The petitioner is aggrieved by the fact that his application for discharge was dismissed by the learned special Judge. The petitioner had moved an application seeking discharge in view of the Provisions of Section 6 A (1) of the Delhi Special Police establishment Act, 1946 which provided that the Delhi Special Police establishment shall not conduct any inquiry or investigation into any offence alleged to have been committed under the Prevention of Corruption Act, 1988 except with the previous approval of the Central Government where such allegations, inter alia, relate to the employees of the Central Government of the level of Joint Secretary and above.
Fact of the Case:
The petitioner was the Chief District Medical Officer (CDMO), Government of NCT of delhi and was of the rank of Joint Secretary. It was contended that this provision was clearly applicable. One Mr Handa, a Radiologist, was running runs a diagnostic center. There was an allegation that he was conducting pre-natal tests to determine the sex of the foetus and which could ultimately result in female foeticide. It is alleged that the present petitioner had demanded a certain sum of money from the said Mr Handa to put his case right. It is alleged that the sum of money was demanded on behalf of some other persons including the members of the Advisory committee. The amount of money allegedly demanded was about Rs 80,000/- which was to be paid in two lots of Rs 40,000/- each. At that point of time, the said mr Handa is supposed to have registered a complaint with regard to the alleged demand of bribe. The complaint was registered on 16. 12. 2004 at 2 p. m. in the form of an FIR No. RC DA1 204a-0051/7625. At the end of the said FIR it is indicated as under:-"the above facts prima facie disclose commission of cognizable offence punishable U/s 7 of PC Act, 1988 against Sh. Dr. R. R. Kishore Chief Distt medical Officer (South) Dispensary Building, Begumpur Malviya Nagar, New Delhi. A regular case is therefore registered and entrusted to Sh. Amit Vikram bhardwaj, Inspector, CBI, ACB, New Delhi for investigation. "
Finding of the Court:
The petitioner denies the aforesaid sequence of events. However, his main objection is that no inquiry or investigation into any offence could have been conducted without the previous approval of the Central Government in view of the clear provisions of Section 6a of the Delhi Special Police Establishment act, 1946. He submitted that laying of the trap and events subsequent thereto are all part of investigation. When no investigation could be undertaken in view of section 6a (1) of the Delhi Special Police Establishment Act, 1946, no trap could be laid and the entire investigation was vitiated as there was no prior approval.
Issues: 1. What is the background with regard to Section 6a of the Delhi special Police Establishment Act, 1946" 2. Did the CBI act in contravention of Section 6a (1)" 3. If yes, does it mean that the entire trial consequent upon an illegal investigation is vitiated"
Ratio Decidendi: 1. Section 6a of the DPSE Act is very much in existence and is `in operation`. 2. The investigation initiated at 2 p. m. on 16. 12. 2004 was in violation of the mandatory provisions of Section 6a (1 ). 3. At that stage the question of applicability of Section 6a (2)had not arisen. Therefore, the initiation and conduct of investigation on and from 2 p. m. on 16. 12. 2004 was in contravention of the provisions of Section 6 (A) (1 ). 4. The prior approval was admittedly not obtained. Consequently, the investigation, including the trap proceedings, was illegal. 5. If cognizance is taken on the basis of such an illegal investigation and no objection is taken at the initial stages and the trial proceeds to its conclusion and results in conviction then the same can be set aside only if it has resulted in a miscarriage of justice. 6. However, if the illegal investigation is brought to the notice of the trial Court at the initial stages then the court ought not to proceed with the trial and be a mute spectator to the illegality and contravention of a mandatory provision but should direct reinvestigation so that the defect in investigation is cured.
Final Decision: With these directions this revision petition is disposed of.
BADAR DURREZ AHMED, J, J.
( 1 ) THIS Revision petition is directed against the order dated 30th of april, 2006 passed by the Special Judge, CBI. The petitioner is aggrieved by the fact that his application for discharge was dismissed by the learned special Judge. The petitioner had moved an application seeking discharge in view of the Provisions of Section 6 A (1) of the Delhi Special Police establishment Act, 1946 which provided that the Delhi Special Police establishment shall not conduct any inquiry or investigation into any offence alleged to have been committed under the Prevention of Corruption Act, 1988 except with the previous approval of the Central Government where such allegations, inter alia, relate to the employees of the Central Government of the level of Joint Secretary and above. It is an admitted position that the petitioner was the Chief District Medical Officer (CDMO), Government of NCT of delhi and was of the rank of Joint Secretary. It was contended that this provision was clearly applicable.
( 2 ) ONE Mr Handa, a Radiologist, was running runs a diagnostic center. There was an allegation that he was conducting pre-natal tests to determine the sex of the foetus and which could ultimately result in female foeticide. It is alleged that the present petitioner had demanded a certain sum of money from the said Mr Handa to put his case right. It is alleged that the sum of money was demanded on behalf of some other persons including the members of the Advisory committee. The amount of money allegedly demanded was about Rs 80,000/- which was to be paid in two lots of Rs 40,000/- each. At that point of time, the said mr Handa is supposed to have registered a complaint with regard to the alleged demand of bribe. The complaint was registered on 16. 12. 2004 at 2 p. m. in the form of an FIR No. RC DA1 204a-0051/7625. At the end of the said FIR it is indicated as under:-"the above facts prima facie disclose commission of cognizable offence punishable U/s 7 of PC Act, 1988 against Sh. Dr. R. R. Kishore Chief Distt medical Officer (South) Dispensary Building, Begumpur Malviya Nagar, New Delhi. A regular case is therefore registered and entrusted to Sh. Amit Vikram bhardwaj, Inspector, CBI, ACB, New Delhi for investigation. "
( 3 ) IT transpires that thereafter, a trap was laid and, on the basis of the arrangement, the complainant who was present in the CBI office was asked to speak with the accused/petitioner over the phone, which conversation was allegedly recorded. The conversation revealed that the petitioner had agreed to accept a certain sum of money in the evening of 16. 12. 2004 The currency notes were arranged for an amount of Rs 35,000/ -. The same were treated with the chemical known as phenolpthalien. At the appointed time the said Mr Handa along with the CBI officials reached the residence of the present petitioner. Mr Handa entered the premises alone. He was provided with a digital tape recorder which was pasted onto his body and when he was inside the house of the present petitioner the conversation that went on between the two was also allegedly recorded and heard simultaneously at the CBI Headquarters. When the complainant came out of the house he gave the signal and the raiding party entered the premises and, thereafter, the said currency notes were allegedly found placed in an Almirah inside the petitioner's residence. Allegedly, the hands of the petitioner were washed with sodium carbonate solution which turns pink in colour on interaction with phenolpthalien. This is exactly what is said to have happened. In other words, according to the prosecution the said currency notes were handled by the present petitioner, thereby completing the act of accepting bribe. The fabric of the sofa where the notes were handed over was also similarly washed and the solution was found to turn pink. Therefore, according to the prosecution, the money was clearly handed over by Mr Handa to the present petitioner at his resi
