Crl.Rev.P. 208/2005

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IN THE HIGH COURT OF DELHI AT NEW DELHI

Judgment reserved on : November 24, 2010

Judgment delivered on : December 10, 2010

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CRIMINAL REVISION PETITION NO.208/2005 &

CRL.M.A. NO.3408/2005

GULAB TULSIANI

..... PETITIONER

Through: Mr.K.K.Sud, Senior Advocate with

Mr.Dinesh Monga, Advocate.

Versus

STATE(THROUGH CBI)

..... RESPONDENT

Through:

Mr.Vikas Pahwa, Standing Counsel

with Mr.Tarun Verma, Advocate.

CORAM:

HON'BLE MR. JUSTICE AJIT BHARIHOKE

1.Whether Reporters of local papers may

be allowed to see the judgment?

2. To be referred to the Reporter or not ?

3. Whether the judgment should be reported

in Digest ?

AJIT BHARIHOKE, J.

1. Instant Revision Petition is directed against the order dated

16.2.2005 passed by learned Special Judge in FIR R.C.No.40/86-DLI P.S.

SUI/AC Branch CBI whereby learned Special Judge framed charges

under Section 5(2) read with Section 5(1)(d) of the old Prevention of

Corruption Act (for short `P.C. Act’) and Section 161 IPC.

2010:DHC:6013

Crl.Rev.P. 208/2005

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2. Briefly stated, facts relevant for the disposal of this petition are

that the petitioner Gulab Tulsiyani, a judicial officer was charge

sheeted for having demanded and accepted a sum of Rs.2,000/- as

illegal gratification from Shri Ajesh Mittal of M/s Mittal Paint and

Chemicals, Railway Road, Samaepur, Delhi for showing him favour in a

challan case.

3. The petitioner filed a petition under Section 482 Cr.P.C. for

quashing of the charge sheet on the ground that sanction for

prosecution accorded by the Lt. Governor Delhi was invalid. Said

petition was dismissed by Ld. Single Judge of this court vide order

dated 1.12.89, observing that sanction for prosecution was validly

accorded by the Administration of Delhi.

4. Aggrieved by the order of learned Single Judge, petitioner filed

Writ Petition No.174/98 and Crl.Misc. No.1317/98 before the High

Court. Vide order dated 19.05.98, the High Court dismissed the said

writ petition and application as not maintainable in view of the order

passed by Ld. Single Judge on 1.12.89. The High Court, however, made

it clear that irrespective of dismissal of the writ petition, it would be

open to the petitioner to challenge the validity of sanction in view of

the decision of Division Bench of this court in the matter of B.S.

Chaudhary Vs. Lt.Governor & Ors., 1994 (3) CCC 308. In view of

the above observations, the petitioner raised the question of validity

before the trial court and learned Special Judge, vide order dated

2010:DHC:6013

Crl.Rev.P. 208/2005

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30.03.2002, discharged the petitioner, holding the sanction to be

invalid.

5. CBI again filed a charge sheet on 16.11.2002 without obtaining

sanction for prosecution of the petitioner, pleading that in the

intervening period, the petitioner had retired from service, as such no

sanction for his prosecution was required. The petitioner filed an

application challenging the taking of cognizance against him and also

for his discharge on the ground that neither the sanction under Section

6 of the P.C. Act 1947nor the sanction under Section 197 of the Code

of Criminal Procedure (for short `Cr.P.C.’), which is sine qua non for

taking cognizance, was obtained by the prosecution.

6. The learned Special Judge, vide impugned order dated 16.2.2005

rejected the plea of the petitioner, observing that since the act alleged

to have been committed by the petitioner was not done in discharge of

his official duty, sanction under Section 197(1) Cr.P.C was not required.

Learned Special Judge also took the view that since at the time of filing

of the subsequent charge sheet, the petitioner was no more in service,

as per the law laid down by the Supreme Court, sanction for his

prosecution under Section 6 of the P.C. Act was not required. Learned

Special Judge, on consideration of the material placed