Delhi High Court Adesh Kumar Gupta vs Cbi

 
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Delhi:

IN THE HIGH COURT OF DELHI AT NEW DELHI

Judgment Reserved On: 20.08.2015

Judgment Pronounced On: 02.09.2015

W.P.(CRL)

725/2015

&

CRL.M.A.

Nos.5285/2015,

9819/2015,

10286/2015

ADESH KUMAR GUPTA

..... Petitioner

Through:

Mr. R.N. Mittal, Sr. Advocate with

Mr. K.C. Mittal, Ms. Suman

Chaudhry and Ms. Ruchitra Mittal,

Advocates

versus

CBI

..... Respondent

Through:

Mr. Sanjeev Bhandari, SPP with

Inspector Harish Chandra, ACB/CBI

CORAM:

HON'BLE MR JUSTICE SIDDHARTH MRIDUL

JUDGMENT

SIDDHARTH MRIDUL, J

1. The present writ petition seeks the following prayers:-

(a) In the nature of certiorari quashing the FIR RC No.DAI-2014-A-0040 under section 168 of the Indian Penal Code against the petitioner registered by the respondent at CBI, Anti Corruption Branch (ACB), New Delhi and consequent proceedings arising therefrom.

(b) Quash and set aside the impugned order dated 21.11.2014 passed by the Ld. CMM, (South), Saket Court, New Delhi and the proceedings therefrom.

(c) Pass such other order restraining the respondents, their offices and the IO from taking any further action against the petitioner on the basis of FIR and the impugned order or stay the operation of the impugned FIR and the order dated 21.11.2014.

(d) Pass such other and further order as this Hon‟ble Court may deem fit and proper in the facts and circumstances of this case.

2. The petitioner is an officer belonging to the Indian Telecommunication Services (ITS), 1986 Batch and is presently posted as General Manager, Bharat Sanchar Nigam Limited, Noida, Gautam Budh Nagar, Uttar Pradesh.

3. The facts leading up to the filing of the present petition are encapsulated as under:-

(a) An application dated 21.11.2014 purportedly under section 155 of the Code of Criminal Procedure, 1973 (hereinafter referred to as „the Code‟) was filed before the Court of CMM, Saket Court, New Delhi by one Sh. Nishit Mishra, Superintendent of Police, CBI, ACB, New Delhi. In the said application it was inter alia averred that the petitioner herein who was a public servant had engaged himself in private business, in association with his wife, Ms. Meenakshi Gupta, and promoted a company called M/s Tuhina Fashions Garments Pvt. Ltd. in the year 2005.

Name of the said company was subsequently changed to M/s AMG Infra Developers Pvt. Ltd. in order to enter into the telecom business as well.

(b) It was also alleged that the petitioner promoted another company namely M/s AMG Infocom Pvt. Ltd. and that the said company was used as a supplier of telecom equipments to various telecom companies.

(c) The application further alleged that the petitioner had opened roaming Current Account No.6284015016554 on 22.05.2008 with ICICI Bank, Sector-50, Noida in the name of M/s AMG Infra Developers Pvt. Ltd. under his signatures and in the capacity of a Director of the said company.

(d) It was further alleged that on 16.12.2008, the petitioner was replaced by his son Mr. Vibhor Gupta as the cheque signing authority of the said company M/s AMG Infra Developers Pvt.

Ltd.

(e) Furthermore, it was alleged that on 25.09.2006 a roaming current account No.025305001329 was also opened by the petitioner with ICICI Bank, Sector-61, Noida under his signatures.

(f) It was lastly alleged that the petitioner signed some of the cheques from the said account of M/s AMG Infra Developers Pvt. Ltd. as its authorized signatory between the year 2006 to 2009.

(g) The case of the CBI, therefore, is that the petitioner herein being a public servant was prohibited from indulging in private trade and business and, therefore, prima facie a case under section 168 of the Code was committed.

(h) On the basis of the above allegations, the said application dated 21.11.2014 sought permission to register an FIR in terms of section 155 of the Code.

4. By way of the impugned order dated 21.11.2014, the learned CMM, Saket Courts, New Delhi passed the following order:-

"21.11.2014 Present: Inspector Anand Swaroop on behalf of complainant.

Shri Nishith Mishra, SP, CBI, ACB, New Delhi along with Shri Ratan Deep Singh, Ld. APP.

Heard on the application under section 155 Cr.P.C. seeking permission to investigate the offence under section 168 IPC.

Perused the complaint. The complaint, prima facie, discloses the commission of aforesaid offence and this court is of the opinion that it would be in the interest of justice if the matter is thoroughly investigated to unearth the truth and to fix the culpability of suspect.

In view of the above, the complainant is given permission to investigate into the matter and proceed further in accordance with law.

Copy of this order be given dasti, as prayed for.

(VIVEK KUMAR GULIA) Chief Metropolitan Magistrate (South) Saket Courts, New Delhi/21.11.2014"

5. On 20.11.2014, barely a week after the passing of the impugned order, an FIR bearing RC No.DAI-2014-A-0040 (mistakenly under section 154 CrPC) also impugned herein, was registered at the instance of the said Sh. Nishit Mishra, Superintendent of Police, CBI, ACB, Delhi.

6. Thereafter on 17.12.2014, the CBI submitted an application under section 93 of the Code for issuance of a search warrant of the petitioner‟s premises. The said application was allowed by the learned CMM, Saket Court, New Delhi by way of an order passed on the same date.

7. The present petition has been filed by the petitioner, since he is aggrieved by the order passed by the learned CMM, Saket Court, New Delhi as well as the alleged acts of omission and commission on behalf of the CBI.

8. Assuming arguendo that the facts were as the other side contends, Mr. R.N. Mittal, learned Senior Counsel appearing on behalf of the petitioner urged the following points for the consideration of this Court:-

i) Non-compliance of mandatory provisions of section 155(1) of the Code.

ii) The application and all the proceedings subsequent thereto are not maintainable as being barred by limitation.

iii) The impugned order dated 21.11.2014 betraying lack of application of mind.

iv) The applicant and the investigator in the proceedings impugned herein being the same, the action taken is impermissible in law.

v) Lastly, it was urged that the CBI had overreached the order of this Court dated 13.04.2015 and included the name of the petitioner in the "agreed list", in violation of an injunction restraining them by way of the said order from taking any coercive action.

9. Per contra Mr. Sanjeev Bhandari, learned Standing Counsel appearing on behalf of the CBI would urge that although the FIR impugned herein under section 168 of the IPC was inadvertently registered in the wrong proforma, the said mistake was subsequently corrected by way of an application allowed by the learned CMM, Saket Court, New Delhi. Learned counsel would further urge that the FIR impugned herein was registered after obtaining necessary permission to investigate, as required under section 155 of the Code, from the learned CMM, Saket Court, New Delhi. Counsel appearing on behalf of the CBI would lastly urge that the present proceedings are not barred by time. In this respect reliance is placed on the provisions of section 469(b) of the Code.

10. At this stage, it would be pertinent to note that on a specific query from the Court, counsel for the CBI fairly admitted that the "informant" in the present case was not referred to the concerned Magistrate. In this behalf, counsel would urge that it is not mandatory to disclose the name of the "informant" as per the provisions of the Code and that a Self Contained Note was recorded by the DIG, CBI, which is an internal confidential communication between different units of the CBI. In order to buttress this submission, Mr. Sanjeev Bhandari, learned Standing Counsel appearing on behalf of the CBI invites my attention to the decision in The Public Prosecutor vs. Pocku Syed Ismail and Anr., reported as 1973 Cri LJ 931.

11. I have heard the counsel for the parties and perused...

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