Point of Law: Prevention of Corruption (Amendment) Act, 2018 does not reveal any intention of destroying the earlier provisions and there is no intention to obliterate the earlier law.

JUDGMENT :

KRISHAN PAHAL, J.

1. Heard Sri Nandit Kumar Srivastava, learned Senior Counsel assisted by Sri Pranjal Krishna, Sri Prashan Ranjan and Sri Aviraj Raj Singh, learned counsels for the applicant and Sri Anurag Kumar Singh, learned counsel for the Central Bureau of Investigation (CBI).

2. By means of the present application, the applicant seeks bail in Criminal Misc. Case No. 2079 of 2021 (CBI vs. Roop Singh Yadav and Others), under Sections 120-B r/w 420, 467, 468, 471 of IPC and Section 13(2) r/w 13(1)(d) of Prevention of Corruption Act, 1988 with substantive offences thereof arisen out of Crime No. RC0062017A0026, registered with CBI, Anti Corruption Branch, Lucknow and pending before the learned Special Judge, Anti Corruption CBI, West, Lucknow.

PROSECUTION STORY

3. In the instant case, the FIR was registered by the CBI on the basis of order dated 17.7.2017 of the Government of U.P. pertaining to the financial irregularities committed with criminal intent in the work of “Gomti River Channelization Project” and “Gomti River Front Development” by the Irrigation Department. The State Government asked for further investigation by the CBI in Case Crime No. 831 of 2017, u/s 409, 420, 467, 468, 471, 34 IPC and Sections 7 & 13 of Prevention of Corruption Act, 1988 (PC Act) against the accused persons. It has also been alleged that on the written complaint of one Ambuj Dwivedi, an FIR was registered by the local police and later on a Judicial Commission headed by Hon'ble Mr. (Retd.) Justice Alok Kumar Singh was ordered to conduct an enquiry under the Commission of Inquiry Act. A comprehensive enquiry report has been submitted to the State Government on 16.5.2017 leading to the present FIR.

4. After investigation, charge-sheet was filed by the CBI on 16.02.2021, u/s 120-B read with 420, 467, 468, 471 IPC and Section 13(2) read with 13(1)(d) of PC Act against the applicant and other co-accused persons and further investigation is still pending pertaining to other development works in the aforesaid project.

RIVAL CONTENTIONS

5. Sri Nandit Srivastava, learned Senior Counsel appearing on behalf of the applicant has submitted that the applicant is the junior most employee in the chain and had simply followed the orders of higher authorities. He was only the Junior Assistant/Clerk in the Irrigation Department. He was arrested on 19.11.2020 and the charge-sheet has been filed on 16.2.2021. Till date cognizance has not been taken in the matter. Learned Senior Counsel has further submitted that charge-sheet was filed without obtaining sanction for prosecution of the applicant as he is a government servant. Compliance of mandatory provisions of Section 17A of the PC Act has not been carried out by the CBI before initiating the criminal prosecution against the applicant in the present case. Sanction for prosecution has been filed in the Court on 15.7.2021 which is after a delay of about five months from the filing of the charge-sheet. There is no allegation of tampering with the evidence against the applicant. The alleged charge-sheet has been filed only to deprive the applicant statutory rights of default bail provided u/s 167 Cr.P.C. There is no prima-facie offence made out against him of being a party in the criminal conspiracy with the main accused, Roop Singh Yadav. The applicant is not named in the FIR.

6. Learned Senior Counsel has relied upon the judgment of Apex Court in the case of Yashwant Sinha and Others vs. Central Bureau of Investigation, 2020 (2) SCC 338 wherein it has been held that no Police Officer is permitted to conduct any enquiry or investigation into any offence committed by a public servant where the offence alleged is relatable to any recommendation made or decision taken by the public servant in discharge of his public functions without previous approval, inter-alia, of the authority competent to remove the public servant from his Office at the time when the offence was alleged to have been committed.

7. Learned Senior