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2015 Supreme(Del) 773
High Court of Delhi
G.S. SISTANI, J.
Manoj Kumar Agarwal – Petitioner
Versus
CBI & Others – Respondent
W.P.(CRL) No. 1351 of 2013
Decided On : 11-05-2015
For the Petitioner:Pramod Kumar Dubey, Shri Singh, Shruti Srivastava, Shiv Pandey, Akansha Singh, Advocates.
For the Respondents:P.K. Sharma, Standing Counsel, Rakesh Kr. Sharma, Renu Malik, Soni Mehra, R2, Karuna Chhatwal, J. Sukhija, Advocates.
Headnote:
Penal Code, 1860 - Section 109 - Prevention of Corruption Act, 1988 - Section 13(2) R/w 13(1)(e) - Delhi Special Police Establishment Act, 1946 - Section 3, 6, 6A - Accumulation of disproportionate asset - Registration of RC - Sanction - Quashing - Registration of RC against the appellant - Petitioner has sought for quashing Mandatory nature of Section 6 - Jurisdiction of DSPE can only be enlarged vide consent of the concerned State Government - Check period comprises of different postings of the Petitioner within the State of West Bengal as well as the central deputation - On the date of registration of the RC, the Petitioner was on central deputation and was posted as Commissioner and was not subordinate to the Government of West Bengal - RC reveals that a majority of the assets are in Delhi while some are in Gaziabad, NOIDA, Punjab, Mathura - No asset has been located in the State of West Bengal - Majority check period is his tenure in State of West Bengal - Whether consent under section 6 DSPE Act is required - Series of acts pertains to the accumulation of disproportionate assets over a long period of time - Chargesheet has already been filed - Sanction under section 19 of the PC Act has also been granted by the DoPT - Petition is dismissed with liberty to the petitioner to raise all the grounds at the time of framing of charges - Application is dismissed.
1. By the present petition filed under Article 226 read with Article 227 of the Constitution of India, the petitioner seeks a direction to quash RC No. 6(A)/2009 dated 15.12.2009 entitled ‘CBI v. Manoj Kumar Agarwal’under section 109 IPC and section 13(2) read with section 13(1)(e) of the Prevention of Corruption Act, 1988 and all the acts and proceedings emanating therefrom.
2. The brief facts of the case are that the petitioner joined government service as an IAS Probationer on 20.08.1990 and was allotted West Bengal cadre. The Petitioner continued to serve in West Bengal at different positions till 02.10.2003. Thereafter, the Petitioner was selected for central deputation on 03.10.2003 as Deputy Secretary in the Ministry of Personnel, Public Grievances and Pensions. Subsequently from 01.10.2009 till 04.06.2010, the petitioner was posted as Commissioner (L&D) in the Delhi Development Authority by the Central Government. Upon the expiry of his central deputation, the Petitioner rejoined the State of West Bengal and at the time of filing of the present petition, he was posted as Secretary, North Bengal Development Authority with additional charge of MD, West Bengal Highway Development Corporation.
3. At the time when the petitioner was posted as Deputy Secretary, DoPT, a complaint was filed against him to the Central Vigilance Commission on 23.10.2006 alleging acquisition of disproportionate assets by the Petitioner and his wife. The Petitioner was called upon by the DoPT to file his response which was duly filed on 03.09.2007 explaining all his assets and eventually the complaint was closed in February, 2009 with no adverse remarks against the Petitioner; as has been stated by the Petitioner before the Court.
4. Subsequently when the Petitioner was posted as Commissioner (L&D), DDA, Vikas Sadan, New Delhi; a case being RC no.6(A)/2009 was registered against him by the Central Bureau of Investigation (CBI) upon an oral source information under section 109 of the Indian Penal Code and sections 13(2) read with section 13(1)(e) of the Prevention of Corruption Act, 1988, alleging amassing of disproportionate assets. The check period for the alleged offences is from 20.08.1990 to 30.06.2008. Out of a total check period of about 18 years, the petitioner was employed with the State of West Bengal for 13 years, one month and fourteen days, and during the rest of the check period, he was on central deputation, in New Delhi.
5. At the outset, the counsel for the Petitioner has sought for quashing of the present RC having been registered in violation of the provisions of section 6 and 6A of the Delhi Special Police Establishment Act (hereinafter referred to as “DSPE Act”) and also being in violation of the CBI Manual. Though lengthy arguments have been advanced by the counsel for the Petitioner seeking protection under section 6A of the DSPE Act, the said issue is no more res integra since a Five Judge Bench of the Hon’ble Apex Court in its judgment titled as Subramanian Swamy v. CBI reported at (2014)8 SCC 682, has struck down the said section to be constitutionally invalid.
6. As regards section 6 of The Delhi Special Police Establishment (DSPE) Act is concerned, it is submitted by the Counsel for the Petitioner that there is a specific bar on the members of DSPE to exercise powers within the State without the consent of the concerned State Government. The counsel for the Petitioner has drawn the attention of this Court to Circular No. 228/40/88-AVD.II (II) dated 23.08.1990 issued by the Ministry of Personnel, PG & Pensions, DoPT, Government of India whereby the Central Government with the consent of the Government of West Bengal extended the powers and jurisdiction of the members of the DSPE to the whole of the State of West Bengal for investigation of offences under the Prevent of Corruption Act, 1988. Emphasis has been laid upon the proviso to the Circular whereby the notification was made inapplicable in respect of public se
