CBI: Delhi High Court refuses to quash FIR against Asthana

Rakesh Asthana
Rakesh Asthana
The Delhi High Court today dismissed a petition by Central Bureau of Investigation (CBI) Special Director Rakesh Asthana, seeking the quashing of a first information report (FIR) filed against him by the agency in a bribery case, and called for speedy investigations in the matter.
In his order, Judge Najmi Waziri said the grounds of malafides of then CBI Director Alok Verma in registering the FIR against Asthana were not made out.
"Nor can the allegations against the petitioner be conclusively ruled out at this stage. In view of the above, the petitions are dismissed," he said.
The judge also vacated the interim order dated October 23 granting protection to Asthana against criminal proceedings.
"In the interest of justice, the investigations must come to an end as soon as practicable. In the circumstances, the CBI is directed to conclude the investigations in ten weeks from today," the order said.
Asthana had pleaded for quashing of the FIR against him on the ground that it fell foul of the statutory bar under Section 17A of the Prevention of Corruption (PC) Act which requires prior sanction/permission from the Government of India before registration of the FIR and that it was actuated by malice of Verma against him.
The FIR was registered on the complaint of a businessman Satish Babu (Sana) who was being investigated by the CBI in a case. He alleged harassment by the investigating officer of that case, demand of illegal gratification and extortion by the latter.
He alleged that he was promised, through two persons, Dubai-based brothers Manoj Prasad and Somesh Prasad, that the harassment would cease if he paid a bribe of Rs. 5 crore. He alleged the brothers had made the promise on the basis of a telephone conversation they had in his presence with Asthana. He claimed he had paid Rs. 1 crore to an identified person in Dubai and later Rs. 1.90 crore to another person in Delhi. He was told later that instructions were given by Asthana that his case be looked into. He also alleged that he did not get any relief from the harassment despite paying out nearly Rs 3 crore. When he complained of this to Manoj, he was told that this was happening due to non-payment of the balance amount of Rs. 2 crore.
"Taking the statement of the complainant on face value, an element of coercion and threat can be gleaned. The complainant refers to communication through telephone calls, Whatsapp messages and transaction of monies through persons both outside as well as inside the country, to substantiate his allegation that monies have been extorted from him through threat, on the promise that he will ultimately be let off only when he gives the monies. The web of these conversations, electronic messages and transfer of monies seek to cover or involve the public servants in the alleged transaction. Whether the petitioners are at all complicit, as alleged, would be revealed only in further investigation.
"However, the alleged promise to the complainant to ultimately giving him relief in RC 2017 and/or investigating officer ceasing to call him for further investigations, cannot be said to be in the discharge of official functions or duties of the public servant (Investigating Officer) and other persons mentioned in the FIR. The bar to enquiry or inquiry or investigation under Section 17A of the PC Act is apropos such alleged offence as may be relatable to any recommendation made or decision  taken by a public servant in discharge of his official functions or duties. In the present case there is no recommendation or decision on record by a public ervant in the discharge of his official functions. It was only the discharge of official functions that could have become the subject matter for seeking approval of the employer i.e. the Central Government," the judge said.
"The purpose of Section 17A can be read to be only to provide protection to officers/public servants who discharge their official functions and/or duties with diligence, fairly, in an unbiased manner and to the best of their ability and judgment, without any motive for their personal advantage or favour. A public servant cannot be possibly left to be under the constant apprehension that bonafide decisions taken by him/her would be open to enquiry or inquiry or investigation, on the whimsical complaint of a stranger.
"Section 17A as it reads and the legislative intent in its enactment can only be to protect public servants in the bonafide discharge of official functions or duties. However, when the act of a public servant is ex-facie criminal or constitutes an offence, prior approval of the Government would not be necessary.
"The complainant –Sana has alleged coercion, threat and extortion of money, albeit for an offence under Section 7 of the PC Act as well, but such acts by a public servant cannot be said to be in the discharge of his official function or duties. Therefore, in the present case, the approval under Section 17A of the Act would not be necessary," he said.
"Whether the petitioners/ public servants were at all involved in the offence would be known only after a thorough inquiry by the investigating gency. No doubt, registration of the FIR and the corollary investigation would be a cause for much concern, stress and embarrassment for any honest public servant and others related to him. Nevertheless, where a cognizable offence is made out, the law must take its course. For the sake of public servant and indeed for all concerned, it is best that the investigations are conducted expeditiously and the integrity of the public servant which comes under a cloud because of the investigation is either restored or determined as per law," the order said.
"---it is desirable that the process must come to a conclusion expeditiously. The fair name of a public servant is perhaps his/her most cherished possession and would be guarded most fiercely," it said.

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