TMI Blog2014 (5) TMI 1007X X X X Extracts X X X X X X X X Extracts X X X X ..... ission from the DIG concerned. It must be ensured that no record/documents are requisitioned before the Competent Authority has passed orders for registration of an SIR. If a case is required to be registered under the Prevention of Corruption Act 1988 against an officer of the rank of Joint Secretary and above or a Government appointee in the Central Public Sector Undertakings, prior permission of the Government should be taken before enquiry/investigation as required under Section 6A of the DSPE Act except the case under Section 7 of the PC Act wherein the registration is followed by immediate arrest of the accused. In case, involvement of another Government servant of the above-mentioned rank(s) is revealed during the course of investigation, a fresh permission as required under Section 6A of the DSPE Act, which should be obtained at the earliest. The permission so obtained should form an integral part of the FIR or the Case Diary, as the case may be. After the registration of FIR another source information was received that the money had been transacted and Rs. 3 lakhs was delivered to the driver of Lallan Ojha. Thus immediately a raid was conducted. The two co-accused La ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... BI - 2007 (142) DLT 702 quashed the investigation committed in breach of the mandatory provision of Section 6(A) of the DSPE Act and directed the Respondent to reinvestigate the matter in case approval under Section 6(A) of the DSPE Act was granted by the Central Government. Despite the fact that the Petitioner brought to the notice of the CBI, even prior to his arrest, that the approval under Section 6(A) of the DSPE Act was mandatory, the CBI in complete violation of the DSPE Act and the decision of this Court continued with the investigation and filed the charge-sheet. Even if the contention of the CBI was to be accepted that the time was short and they had to lay a trap to catch a public servant red-handed as per the CBI Crime Manual, the CBI could have taken the necessary approval before the arrest of the Petitioner even after start of investigation. The provisions in the CBI Crime Manual have been held to be statutory and imperative as per the decision of the Hon ble Supreme Court in Vineet Narayan v. Union of India - (1998) 1 SCC 226. Further at the time of registration of FIR, there was no information available with the CBI or anyone else to predict that they will lay a tra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of mandate of Section 6(A) of the DSPE Act. 3. Learned counsel for the CBI adverting to the facts states that in the above-mentioned FIR registered on 2nd January, 2012 the Petitioner was named as accused No. 1. Since immediate trap was to be laid, the approval as required under Section 6(A)(1) of the DSPE Act was not essential, and the case falls under sub-section (2). The Appellant and his co-accused were to accept the illegal gratification in the office however the Appellant did not reach the office rather got himself admitted in the hospital. Raids were conducted on the house and the office of the Petitioner on the said date and since the Petitioner was hospitalized, he was not immediately arrested. The transaction did take place and the money was recovered from the car of co-accused Lallan Ojha. Two co-accused Lallan Ojha and Hemant Gandhi were arrested on the same date and thus in view of the urgency of the matter the contentions of the learned counsel for the Petitioner are unfounded. There is no illegality in the impugned order passed by the learned Special Judge holding that the sub-section (2) which is a non-obstante clause was applicable to the facts of the case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Petitioner for reducing the amount of illegal gratification. Both the public servants asked Hemant Gandhi to meet them in their office located at ITO New Delhi on 2nd January, 2012. Lallan Ojha also asked Hemant Gandhi to bring Rs. 3 lakhs as his share out of the amount of illegal gratification obtained as above from Dilip Aggarwal on behalf of Central Excise officials. It was reliably learnt that Rs. 3 lakhs was to be delivered to Lallan Ojha at ITO office on 2nd January, 2012. Since the information disclosed the commission of the offences noted above, the abovementioned FIR was registered and in the FIR itself it was noted that though the Petitioner was holding office of a public servant equivalent to Joint Secretary but in view of the provisions of Section 6(2) of the DSPE Act, prior permission for conducting investigation against him is not required in this case. 5. Learned counsel for the Petitioner stresses that on the face of allegations in the FIR, since no specific time and place was available, there was no urgency and the invocation of sub-clause 6(2) of the DSPE Act was illegal whereas learned counsel for the Respondent contends that since raid had to be conducte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the appropriate authority had become corrupt, were demanding Rs. 20,000/- each and therefore the Petitioner demanded a sum of Rs. 80,000/- from Shri Handa in two-three days. The complainant also alleged that the Petitioner therein acceded to the complainant s request of paying the same in two installments. It is thus apparent that there was no urgency as no time for acceptance of illegal gratification was fixed and the same was fixed on the telephone after registration of FIR when the complainant was made to talk to the Petitioner therein on the telephone which conversation was allegedly recorded. It is in this light this Court held that Section 6(A)(1) of DSPE Act is mandatory in nature and in the said case the question of applicability of Section 6(A)(2) of DSPE Act did not arise. Thus the reliance of the Petitioner on R.R. Kishore (supra) is misconceived. 7. Whether sub-section (1) or sub-section (2) of Section 6(A) of the DSPE Act is applicable will have to be determined on the facts of the case. Section 6(A) of the DSPE Act reads as under : 6A. Approval of Central Government to conduct inquiry or investigation. - (1) The Delhi Special Police Establishment shall no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ers/officials including two independent witnesses reached C.R. Building where Lallan Ojha was apprehended and Rs. 2,96,500/- were recovered from the dicky of his car parked in the back side parking of C.R. Building. Dilip Kumar Yadav, the driver of Lallan Ojha confirmed that this packet was delivered to him by unknown person at the instance of Lallan Ojha. The proceedings continued and Lallan Ojha was formally arrested. Lallan Ojha disclosed the involvement of Hemant Gandhi and the Petitioner. Thus another team of officials was sent to arrest Hemant Gandhi at Punjabi Bagh who was arrested at 2.20 PM from his office. Simultaneously another team of officers raided the Petitioner s house and office at 4.00 and 7.00 PM respectively, however the Petitioner was not available and later on it was revealed that he was admitted in the hospital. The statement of the driver of the Petitioner was recorded. Since the Petitioner was admitted in hospital he was finally arrested on 13th January, 2012 after he was discharged from the hospital and his application for anticipatory bail was dismissed by this Court on 10th January, 2012. The Petitioner raised this plea of non-compliance of Section 6(A)( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r regular approval. 8.33 After verification, the Verifying Officer should submit his detailed report, wherein it should be specified whether the allegations of the SIR have been substantiated or not. The Verifying Officer should invariably mention whether the subject matter of the SIR has already been looked into by the department or its Vigilance Wing and the action taken thereon. He would also make specific recommendation whether the matter may be closed, referred to the department, or a Regular Case or Preliminary Enquiry could be registered for open probe. In case, the recommendation is for registration of a Regular Case, the names of the individuals against whom the case could be registered must be clearly mentioned. Sections of law under which the case is sought to be registered, should be specified. The provision of Section 6A of DSPE Act may be kept in view while making such recommendations. The SP may, thereafter, analyse the verification report and issue orders if the individual against whom the case is to be registered comes within his competence. In other cases he would record his detailed and specific comments and forward the matter to DIG who may either pass approp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... use (d) of guideline 13.9 it is apparent that the same would have application in a case where not at the outset but during the course of a search/investigation/inquiry, the involvement of an officer of the level of Joint Secretary and above becomes apparent. In the case in hand, the Petitioner was named as accused No. 1 on the day one and hence it cannot be said that his involvement came to be revealed later on and thus before arrest compliance of Section 6(A)(1) of the DSPE Act ought to have been made. In the present case admittedly no enquiry was conducted prior to the registration of FIR and on registration of FIR the investigation commenced. In H.N. Rishbud v. State of Delhi - (2007) 15 SCC 699 the Hon ble Supreme Court defined investigation as the collection of entire material for the purpose of laying a charge-sheet. It was held : 5. To determine the first question it is necessary to consider carefully both the language and scope of the section and the policy underlying it. As has been pointed out by Lord Campbell in Liverpool Borough Bank v. Turner [(1861) 30 LJ Ch 379] , there is no universal rule to aid in determining whether mandatory enactments shall be considered di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... facts and circumstances of the case and if necessary to take measures for the discovery and arrest of the offender. Thus investigation primarily consists in the ascertainment of the facts and circumstances of the case. By definition, it includes all the proceedings under the Code for the collection of evidence conducted by a police officer . For the above purposes, the investigating officer is given the power to require before himself the attendance of any person appearing to be acquainted with the circumstances of the case. He has also the authority to examine such person orally either by himself or by a duly authorised deputy. The officer examining any person in the course of investigation may reduce his statement into writing and such writing is available, in the trial that may follow, for use in the manner provided in this behalf in Section 162. Under Section 155 the officer in charge of a police station has the power of making a search in any place for the seizure of anything believed to be necessary for the purpose of the investigation. The search has to be conducted by such officer in person. A subordinate officer may be deputed by him for the purpose only for reasons to b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r Section 173. The scheme of the Code also shows that while it is permissible for an officer in charge of a police station to depute some subordinate officer to conduct some of these steps in the investigation, the responsibility for every one of these steps is that of the person in the situation of the officer in charge of the police station, it having been clearly provided in Section 168 that when a subordinate officer makes an investigation he should report the result to the officer in charge of the police station. It is also clear that the final step in the investigation, viz. the formation of the opinion as to whether or not there is a case to place the accused on trial is to be that of the officer in charge of the police station. There is no provision permitting delegation thereof but only a provision entitling superior officers to supervise or participate under Section 551. 12. In the case in hand after the registration of FIR another source information was received that the money had been transacted and Rs. 3 lakhs was delivered to the driver of Lallan Ojha. Thus immediately a raid was conducted. The two co-accused Lallan Ojha and Hemant Gandhi were arrested and their di ..... X X X X Extracts X X X X X X X X Extracts X X X X
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