Crl M C 2095/2005 Page 1 of 5 IN THE HIGH COURT OF DELHI AT NEW DELHI Date of decision: January 24, 2008 CRL.M.C. 2095/2005 GHANSHYAM ..... Petitioner Through Mr. Mahendra Singh, Advocate. versus STATE THR. C.B.I. & ORS. ..... Respondents Through Mr. Harish Gulati, Standing counsel for CBI with Mr. Amit Kumar, Advocate. CORAM: HON'BLE DR. JUSTICE S. MURALIDHAR 1. Whether Reporters of local papers may be allowed to see the judgment? Yes 2. To be referred to the Reporter or not? Yes 3. Whether the judgment should be reported in Yes Digest? ORDER : Dr. S. Muralidhar, J. (open court) 1. This petition under Section 482 CrPC seeks the quashing of Sessions Case No. CC/18/2004 in FIR No. RC/32(A)/1990-DLI pending in the Court of Special Judge, Delhi. 2. The Petitioner was employed as a clerk in the Rashtriya Sanskrit Sansthan. A trap was laid on the receipt of information that the Petitioner was accepting bribes. As a result an FIR was registered in which it was mentioned that on 16th August, 1990 the Petitioner had demanded a bribe of Rs.8,000/- from the complainant in order to get him qualified in the Pre Shiksha Shastri Test in which the complainant had appeared on 29th July, 1990. After investigation, the CBI Crl M C 2095/2005 Page 2 of 5 charge sheeted the accused under Sections 7/13(1) (d) of the Prevention of Corruption Act, 1988 („POCA‟). 3. Departmental proceedings were also initiated against the Petitioner and he challenged them by way of Civil Writ Petition No. 1186 of 1992 in this Court. The only ground urged by him before this Court in the said writ petition was that the criminal proceedings and the departmental proceedings could not proceed hand in hand. A statement was made on behalf of the CBI before this Court in the writ proceedings on 9th November, 1993 that it did not propose to prosecute the Petitioner. On the basis of that statement it was observed by this Court that “there is no reason why departmental proceedings cannot commence against the Petitioner.” The writ petition was accordingly dismissed. 4. It transpires that the closure report submitted by the CBI under Sections 173 CrPC on 23rd February, 1996 in the court of Special Judge was not accepted and the Special Judge ordered a further investigation. Thereafter a charge sheet was filed against the Petitioner on 6th July, 2004 under Sections 7 and 13(2) read with Section 13 (1) (d) of the POCA. 5. Consequent upon the order passed by this Court dismissing the writ petition of the Petitioner challenging the departmental proceedings, an order was passed on 4th January, 1995 by the Department imposing a major penalty of removal from service on the Petitioner. The Petitioner has since challenged the removal order by way of a Civil Writ Petition No. 1186 of 1996 which is stated to be pending in this Court. Crl M C 2095/2005 Page 3 of 5 6. The Petitioner filed an application on 17th January, 2005 before the Special Judge in CC No. 18 of 2004 for dropping of the criminal proceedings. It was contended by him before the Special Judge that since the departmental proceedings had resulted in the penalty of removal from service, and the earlier challenge to those proceedings had been negatived by this Court on the statement made by the CBI not to prosecute him, the Petitioner could possibly be again sought to be prosecuted. Negating this contention, the Special Judge by an order dated 1st March, 2005 held that there is no legal bar to prosecute a person for a criminal act while simultaneously proceeding against him in the departmentally. The Special Judge held that the two proceedings were independent of each other. 7. This contention of learned counsel for the Petitioner here is that the previous sanction of the Government under Section 19 POCA was not obtained before prosecuting the Petitioner. In response to a query whether the order framing charge was not challenged by him by a revision petition, learned counsel for the Petitioner informs the Court that a revision petition was indeed filed in this Court but withdrawn by the Petitioner when the Court hearing the Revision Petition observed that he should pursue his remedy in this petition under Section 482 CrPC. 8. Mr. Harish Gulati, learned Standing counsel for the CBI submitted that there was no question of the criminal proceedings not being maintainable simultaneous with the departmental proceedings. He referred to the judgment of the Supreme Court in State v. M. Krishana Mohan 2007(4) C.C.Cases (SC) 140. He further submitted that in view of the judgment of the Supreme Court in Prakash Singh Badal v. State of Punjab (2007) 1 SCC 1 there was no requirement of obtaining sanction if, before filing of the charge sheet, the person concerned is no longer a public servant. Crl M C 2095/2005 Page 4 of 5 9. After completing his arguments learned counsel for the Petitioner sought leave to withdraw this petition stating that he would again like to file a petition challenging the order framing charge. He further submitted that since the trial was almost concluded he would not like to have an order on merits in this petition. 10. This Court does not find the request for withdrawal of the petition to be a reasonable one. This petition is pending since 2005. Moreover learned counsel for the Petitioner was heard at great length in this petition. This Court is, therefore, not prepared to permit the petitioner to withdraw the petition. 11. As regards point concerning the departmental proceedings and criminal proceedings proceeding simultaneously, it has been held in State v. M.Krishana Mohan (supra) by the Supreme Court that the result of the departmental proceedings will not affect the criminal proceedings particularly when, at the time of conclusion of the departmental proceedings, the chargesheet was not even filed. In any event the Petitioner was removed from service on 4th January, 1995 as a result of the departmental proceedings long before the filing of the chargesheet on 6th July, 2004. Therefore, there is no merit in the contention that the criminal proceedings should not continue. 12. As regards the non grant of sanction it is seen that this point was not raised before the learned Special Judge by the Petitioner at the time of seeking discharge. Nevertheless, the point has been examined by this Court and it is found that the law now explained in Prakash Singh Badal (supra) by the Supreme Court is that if at the time of filing of the charge sheet the public servant is no longer in service, there is no need for obtaining sanction. The Petitioner here was removed from Crl M C 2095/2005 Page 5 of 5 service on 4th January, 1995 and the charge sheet has been filed only on 6th July, 2004. The non- grant of sanction is of no consequence to the validity of the trial of the Petitioner. 13. There is no merit in this petition and it is dismissed as such. S. MURALIDHAR, J. JANUARY 24, 2008 dn