Delhi High Court
Swati Maliwal vs State on 20 September, 2024
IN THE HIGH COURT OF DELHI AT NEW DELHI % Judgment delivered on:20.09.2024 + CRL.REV.P. 236/2023, CRL.M.A. 6205/2023 & CRL.M.A. 23810/2023 SWATI MALIWAL ..... Petitioner versus STATE ..... Respondent + CRL.REV.P. 276/2023 & CRL.M.A. 6824/2023 SARIKA CHAUDHARY & ANR. ..... Petitioners versus STATE ..... Respondent Advocates who appeared in this case: For the Petitioners : Ms. Rebecca John, Sr. Advocate with Mr. Chirag Madan, Mr. Harsh Bora, Ms. Ravleen Sabharwal, Mr. Rahul Agarwal, Mr. Pravir Singh, Mr. Nilanjan Dey, Mr. Tushar Yadav, Mr. Zillur Rehman & Ms. Anshuka Baruah, Advocates For the Respondent : Mr. Yoginder Handoo, Special Counsel with Mr. Ashwin Kataria, Mr. Garvit Solanki & Mr. Medha Gaur, Advocates Ms. Rupali Bandhopadhya, ASC for the State with Mr. Abhijeet Kumar, Advocate Mr. Sanjeev Bhandari, ASC for the State Signature Not Verified Digitally Signed By:KAMALDEEP KAUR CRL.REV.P. 236/2023 & CRL.REV.P. 276/2023 Page 1 of 43 Signing Date:20.09.2024 21:03:52 CORAM HON'BLE MR JUSTICE AMIT MAHAJAN JUDGMENT
1. The present petitions are filed under Section 397 read with
Section 482 of the Code of Criminal Procedure, 1973 (‘CrPC’),
challenging the order on charge dated 08.12.2022 (hereafter ‘impugned
order’), in CC No. 107/2019 arising out of FIR No. 15/2016, registered
at ACB, whereby the learned Trial Court had directed for charges to be
framed against the accused persons for the offences under Section 120B
of the Indian Penal Code, 1860 (‘IPC’) read with Sections
13(1)(d)/13(2) of the Prevention of Corruption Act, 1988 (‘PC Act’) as
well as for the substantial offence under Section 13(2) read with Section
13(1)(d)(ii) of the PC Act.
BRIEF FACTS OF THE CASE
2. On 11.08.2016, an undated complaint of Ms. Barkha Shukla
Singh, Ex- MLA, was received in the Anti-Corruption Bureau, Delhi.
The gist of the complaint was that the Government of Delhi had adopted
several untoward and illegal practices to benefit the aids and associates
of Aam Aadmi Party (‘AAP’). It was alleged that the benefits were
financial in nature and were being provided by the exchequer of Delhi
by irregularly engaging the associates of the Party on contract basis. It
was alleged that one such organisation where such appointments were
made was Delhi Commission for Women (hereafter ‘DCW’), where
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several individuals, who are/were associated with AAP, were appointed
without following the due procedure and without any publication of
vacancies and inviting applications. It was alleged that as such,
pecuniary benefits were granted to said individuals by engaging their
service on contract basis.
3. On the complaint, a preliminary inquiry was conducted and
thereafter, the FIR was registered on 19.09.2016, for the offences under
Sections 13(1)(d) of the PC Act and Sections 409/120B of the IPC.
Pursuant to the registration of the FIR, the investigation was conducted
and the chargesheet was filed.
4. During investigation, it was learnt that DCW was reconstituted
and notified on 27.07.2015 by the Government of NCT of Delhi, with
the accused Swati Maliwal as its Chairperson. The other three accused
persons were members in DCW. On investigation, it was found that the
accused persons had made appointments of 87 persons as against the
existing sanctioned posts of 26 in DCW between 06.08.2015 to
01.08.2016, and out of those 87 persons, at least 20 persons were
directly found to be associated with AAP.
5. During investigation, the accused Swati had claimed that 90
appointments were made between 06.08.2015 to 01.08.2016, however,
the investigating agency could only ascertain the appointment of 87
persons and could not find any documentary proof of the remaining
three appointments.
6. It was also alleged that all the appointments were made without
following any procedure, rules and regulations and the General Finance
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Rules (‘GFR’) were flouted while fixing, enhancing and disbursing
remuneration to those appointed persons.
7. Further, allegations were made that one person, namely, Mr.
Prem Prakash Dhal had been appointed as Member Secretary of DCW
without approval of the Lt. Governor without following the prescribed
rules and regulations. It was also alleged that against the budget
estimate of ₹7 crores, a lump sum of ₹6.76 crores was released to DCW
in one go instead of in instalments.
8. It is alleged that no information was provided by DCW to the
Department of Women and Child Development (‘WCD’) regarding the
increase of the strength of the staff, despite the written request and visit
of WCD officials. The DCW, during the investigation, had replied that
it had conducted interviews for the alleged recruitments but no such
record was ever provided. It is alleged that even though the
investigation agency had sought for the details of the interviews
conducted by the DCW for the recruitments made, however, no details
of the same were provided.
9. It is also alleged that no advertisements for any post in DCW
were published apart from the advertisements for the post of legal
counsellors. It is alleged that while the advertisement for legal
counsellors was published on 26.04.2016, however, the legal
counsellors had already been appointed even prior to the same.
10. It is thus the case of the prosecution that there was a lack of
transparency in the appointments and the same were made without
creation of any posts, publication of vacancies or considering the
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academic or extracurricular excellence of the appointed individuals. It
is alleged that apart from the illegal appointments, salaries of those
employees were enhanced arbitrarily and illegally, at the cost of public
money and the government exchequer.
11. The learned Trial Court, in the impugned order, opined that there
was prima facie sufficient material to frame charges against the accused
persons for the offence under Section 120B of the IPC read with
Sections 13(1)(d)/13(2) of the PC Act as well as the offence under
Section 13(2) read with Section 13(1)(d)(ii) of the PC Act. Charges
were framed against the accused persons by a separate formal order on
the same date.
12. Aggrieved by the same, the present petitions were filed by the
petitioners.
SUBMISSIONS ON BEHALF OF THE PETITIONERS
13. Ms. Rebecca M John, learned Senior Counsel appearing on
behalf of the petitioners submitted that the learned Trial Court has
erroneously charged the petitioners without appreciating that the
alleged offences are not made out.
14. She submitted that “Dishonest intention” is an essential
ingredient for attracting an offence under Section 13(1)(d) of the PC
Act and there is no allegation that the accused persons gained any
valuable thing or pecuniary advantage in lieu of the appointments. She
placed reliance on the judgment of C.K. Jaffer Sharief v. State
(Through CBI) : (2013) 1 SCC 205 in this regard.
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15. She further submitted that charge of conspiracy is not made out
against the accused persons as it is settled law that a few bits here and a
few bits there cannot be held adequate to hold accused persons guilty of
criminal conspiracy [Ref. State of Kerala v. P.Sugathan & Anr : 2000
SCC (Cri) 1474].
16. She submitted that the Court cannot act merely as a post office or
a mouthpiece of the prosecution, and has to consider the broad
probabilities of the case [Ref. Dilawar Balu Kurane v. State of
Maharashtra : 2002 (2) SCC 135].
Appointments made by the petitioners suffered from no infirmities
17. She submitted that the allegation in the impugned order qua
creation of 87 posts as against the sanctioned 26 posts is incorrect. She
submitted that the 87 persons were not appointed against any posts, but
were merely appointed on short term emergent basis. She submitted that
the said appointments were done due to exponential increase in the work
carried out by the DCW after the accused Swati Maliwal took charge in
the year 2015. She submitted that no particulars of the rules that have
been allegedly violated have been provided in the separate order dated
08.12.2022 by which the charges were framed.
18. She submitted that the increase in work was due to creation of
Rape Crisis helplines, Crisis Intervention Centres, 181 women’s
helpline etc. She submitted that the petitioner – Swati Maliwal in her
reply provided all the details of work done by DCW to the investigating
agency, due to which, the emergent appointments were made.
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Prosecution has failed to establish nexus between AAP and the
appointees
19. She submitted that the first allegation with respect to the
appointment of 87 persons who were either associated with AAP or
were known to the Petitioner No.1 is unmerited.
20. She submitted that out of 87 appointments the prosecution has
been able to identify only 20 individuals who are allegedly connected
with AAP, wherein apart from one person, namely, Mr.Raj Mangal
Prasad, who is at serial no.1 in the list, there is no evidence that others
are members or have any association with AAP.
21. She submitted that even Mr. Raj Mangal Prasad was highly
qualified for his position, having served as a former chairperson of the
Child Welfare Committee.
22. She submitted that some of the other members, that is, the
members placed at serial nos. 4, 7, 15, 16, 17 and 20, are all lawyers
and some of them are quite eminent in their field and there is no
evidence to suggest that these appointments were due to any association
with AAP.
23. She submitted that for the remaining persons there is nothing on
record apart from the hearsay evidence of some police officials who are
stated to have conducted the verifications.
24. She submitted that all the statements recorded during the course
of investigation do not mention the name from where the said
information is obtained or any details about the verification.
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25. She submitted that the statements are recorded in a mechanical
manner whereby it is stated that the people living nearby have informed
the verification officer that the alleged persons are associated with AAP.
26. She submitted that no membership records have been recovered
by the investigating agency to prove their membership with AAP.
DCW is an autonomous body and empowered to sanction expenses to
meet its functions
27. She submitted that DCW is an autonomous body and is not
answerable or controlled by the Women and Child Welfare Department
of GNCTD (‘WCD’). She submitted that DCW has the powers to make
short-term contractual appointments under Section 11 of the Delhi
Commission for Women Act, 1994 (‘DCW Act’).
28. She submitted that DCW also has the power to spend such sums
as it thinks fit for performing its functions, and Rule VIII of the DCW
Rules of Business, allows it to approve and sanction any expenditure
for its purposes. She had relied on the note dated 01.03.2016 in which
the Deputy Director, WCD had stated the DCW had administrative and
financial powers.
29. She submitted that as per Section 14 of the DCW Act, the annual
report and the audit report are placed before the Delhi Legislative
Assembly and all the expenditures incurred by the DCW are ratified by
the Assembly. She submitted that the expenditure cannot be considered
as illegal due to the multi-layered ratifications incorporated in the DCW
Act and Rules of Business.
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GFRs are executive instructions and cannot be deemed to be binding
30. She submitted that GFRs are not binding and the violation of any
guideline is not a criminal offence. She placed reliance on Shri Manak
Chand Vaidya v. State of Himachal Pradesh : 1975 SCC OnLine HP
12, where it was held that GFR do not carry the force of law.
31. She also placed reliance on the judgement passed by the Hon’ble
Supreme Court in the case of R. Sai Bharathi v. J.Jayalalitha & Ors :
(2004) 2 SCC 9, to contend that a violation of a document that does not
have statutory force and is not enforceable in a court of law, nor has any
sanction or procedure for dealing with a contravention cannot be
construed as a prohibition.
32. She submitted that the only remedy against violation or breach of
non-statutory guidelines will be to bring it before a higher authority and
the same will not confer any right to seek any direction in a Court of
law to seek compliance of such guidelines [Ref. Syndicate Bank v.
Ramachandran Pillai : (2011) 15 SCC 398; G.J. Fernandez v. State
of Mysore : (1967) 3 SCR 636].
Even if there was any infirmity, the same would only warrant
Departmental Proceedings
33. She contended that assuming that procedure was not followed in
appointment, it would only lead to departmental enquiry and in absence
of any specific allegation for cheating or corruption, no criminal
liability can be fastened upon the accused persons.
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34. She placed reliance on the judgment of in Dhananjai Kumar
Pandey v. CBI : 2015 SCC OnLine Bom 5625. It was contended that
the said decision was also affirmed by the Hon’ble Supreme Court.
No particulars of rules, regulations and guidelines which are violated
have been given in the chargesheet and impugned order
35. She submitted that the entire chargesheet, the impugned order as
well as the charges framed are predicated on the assumption that there
has been a violation by the petitioners of the rules, regulations and
guidelines. She submitted that there is not a single rule or any law
mentioned in the entire chargesheet which the petitioners are stated to
be in violation.
36. She further submitted that the GFR rules have not been made part
of the chargesheet and the same can thus not be relied upon by the
prosecution. She stated that the non-application of the mind of the Trial
Court is evident from the same as the charges are to be framed from the
material on record.
37. She relied upon Vinay Tyagi v. Irshad Ali : (2013) 5 SCC 762
to contend that all the documents on which the prosecution proposes to
rely and the statements of witnesses under Section 161 CrPC are
required to accompany the report submitted before the learned Trial
Court unless some part thereof is excluded by the Investigating Officer
in exercise of its powers under Section 173(6) of the CrPC.
38. She also relied on the judgement passed by the Bombay High
Court in the case of State of Maharashtra v. Plethico
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Pharmaceuticals: 1995 SCC OnLine Bom 478 where it was held that
the learned Revisional Court had exceeded its jurisdiction and powers
vested in it by placing reliance on the material which was not placed
before the learned Trial Court.
Appointment of Mr. Prem Prakash Dhal was in accordance with law
39. She submitted that the learned Trial Court has framed no charge
in respect to the allegation that the appointment of Mr. Prem Prakash
Dhal as Member secretary was not in accordance with rules. She placed
reliance on the judgment in PB Desai v. State of Maharashtra : (2012)
2 SCC 648, to contend that the accused is only required to meet the
specific charge framed against him and the prosecutions is not permitted
to go beyond the particular charge.
40. She further submitted that the allegation is completely baseless
and the appointment was made on ad hoc basis to fill up the gap in the
central functioning of the DCW.
41. She submitted that his appointment was made by the Hon’ble
Chief Minister on the basis of the judgment passed by the Constitution
bench of the Hon’ble Supreme Court in Government of NCT of Delhi
v. Union of India : Civil Appeal No. 2357/2017 decided on
11.05.2023, wherein it was held that the GNCTD has the exclusive
legislative and executive powers over the Services except public order,
police and land.
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DCW not responsible for release of amount in one go
42. She submitted that the allegation with respect to the release of
₹6.76 crores as against the ₹7 crores in one go is also without any basis.
She submitted that according to the chargesheet, the release of the
amount is stated to be in violation of guidelines on “Pattern of
Assistance”.
43. She submitted that these guidelines were only draft guidelines
and there is no evidence that they were implemented. She lastly
submitted that the issue of release of funds whether in instalments or in
one go, was never in control of DCW and it had no control as to the
manner in which the funds were released. She submitted that if there is
a violation of any rule, it was done on the end of GNCTD and not DCW.
44. She submitted that in the formal charge framed on the same day
as the impugned order, no charge was framed in regard to the release of
funds to DCW in one go either.
SUBMISSIONS ON BEHALF OF THE PROSECUTION
45. The learned Additional Standing Counsel for the State and the
learned Special Public prosecutor for the State have jointly argued and
vehemently opposed the present petition.
46. The learned Additional Standing Counsel and Special Public
Prosecutor for the State submitted that the learned Trial Court had
rightly appreciated the material on record and opined that the alleged
offences are prima facie made out against the petitioners.
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47. They submitted that the petitioners had arbitrarily and illegally
appointed the persons associated with AAP/ known to accused Swati
and the said persons have benefited out of the recruitments. They relied
upon the judgement passed by the Hon’ble Apex Court in the case of
Neera Yadav v. CBI : (2017) 8 SCC 757, where the Hon’ble Apex
Court held that if any of the three elements as prescribed under Section
13 (1)(d) of PC Act are met, the same would be sufficient to constitute
an offence under the Section 13(1)(d) of PC Act. It was also held that
all the three elements are independent, alternative and disjunctive.
48. They also submitted that the Court in exercise of revisional
jurisdiction has to observe a very significant caution and it cannot
examine the facts, evidence and materials on record to determine that
the case would lead to conviction. It is to be seen whether the
allegations, when taken as a whole, would constitute the offence. They
placed reliance on State of Rajasthan v. Fateh Karan Mehdu : (2017)
3 SCC 198.
Excessive appointments against the sanctioned strength
49. They contended that the accused persons had abused their official
position and had deliberately not followed the procedure as specified
under the GFR and other rules. They submitted that as per the reply of
accused Swati, 90 persons were appointed, however, records were only
available for 87 appointees and no record is available for the remaining
three persons. They further submitted that the persons who were
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appointed were either close associates of the accused Swati or were
closely related to the functionaries of the AAP.
50. They also submitted that as per the official record of DCW that
was received from Mr. Gautam Majumdar, who was working as
Assistant Secretary in DCW, a total of 71 persons were appointed on a
contractual basis between 06.08.2015 to 01.08.2016 in DCW and a total
of 16 persons were appointed for dial 181 service.
51. They submitted that as per the letter bearing No. F.l
(20)/DCW/2003/3154 dated 22.06.2007 provided by the parent
department of DCW, that is, WCD, the sanctioned posts for DCW,
including for contract workers, was only 26, despite which, 87
appointments were made. The said letter records that –
“The A.R. Deptt. has examined the proposal of creation of the posts
in Delhi Commission For Women. The Staff Assessment Committee,
A.R. Deptt. has examined the proposal taking in to consideration,
the existing work load, the committee has agreed to provide 26
additional posts against the demand of 28, out of these 26 posts, 15
posts (2 Sr.P.A.,2 stenographer Gr.C, 2 UDC, 6 LDC and 3 drivers)
may be created and 11 persons i.e (2 Project Coordinators, 5 Legal
Councils, 2 Peon and 2 Safai Karamcharies) may be engaged on
contract basis”.
52. They further submitted that despite multiple requests by the
investigating agency, record regarding the increase of staff strength was
not provided by DCW. It was submitted that the appointments in excess
of the sanctioned strength were arbitrary, bad in law and have been
carried out with an ulterior motive to benefit the associates of AAP.
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Appointees were associated with accused persons and AAP
53. It is alleged that the said appointments were made without
following the proper procedure and the salaries of the said appointees
were also arbitrarily doubled in a very short span of time without any
approvals. The details of some of the appointees as mentioned in the
status report are reproduced hereunder:
i. Mr. Gautam Singh, Research Asstt./ DCW and Mr. Banteshwar
Singh, Personal Asstt/Chairperson DCW were erstwhile
associates of Ms. Swati Maliwal. Both these officials were her
colleagues in the Office of the Chief Minister, GNCT of Delhi
from 2015 onwards. Ms. Swati Maliwal was working the Advisor
to the Chief Minister (Public Grievance), where they were
handling the grievance in Chief Minister’s “JantaSanvad”. The
noting (page no. 22/C concerning Mr. Banteshwar Singh and
page no. 13/C concerning Mr. Gautam Singh) of DCW file,
received during inquiry, includes a letter bearing no. D.O. No.
ADVCMPG/02 dated 15.07.2015 and bearing no. D.O. No.
ADVCMPG/01 dated 15.07.2015, issued by Ms. Swati Maliwal,
in favour of both of the above persons. The commission came in
existence on 27.07.2015 and both of these persons were issued
appointment letters on 06.08.2015 at monthly remuneration of
Rs 25000/- and Rs 22,000/- respectively. They were re-
designated on 06.04.2016 and their salary was whimsically
increased to Rs. 50,000/- and Rs. 40,000 + 5000/- per month
respectively without following any rules/regulation and
transparency.
ii. Sh. Raj Mangal Prasad (Child Right Activist associated with
Arvind Kejriwal) was appointed as Advisor to DCW on the
salary Rs. 1,00,000/- per month, without going through any
transparent procedure for appointment in DCW. It is pertinent
to mention here that Sh. Raj Mangal Prasad is associated with
Aam Admi Party and contested election on the ticket of the
AAP from Vaishali (Bihar) in the Lok Sabha Election, 2014.
iii. Sh. Bhupender Singh was initially appointed as Media Advocacy
officer with the remuneration of 30,000/- per month on
06.04.2016 and his salary was whimsically increased to Rs.
70,000/- per month without following any rules/regulation and
transparency. During verification his address was found fake.
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iv. Ms. Divya Balaji was appointed by this commission as a
consultant with the remuneration between Rs.25,000/- per
month, 30,000/- per month (Notesheet 21-N). On 06.04.2016 her
salary was whimsically increased to Rs. 70,000/- per month
without following any rules/regulation and transparency.
v. Ms. Keshar Praveen was appointed by this commission as a legal
counsellor with the remuneration of Rs. 1,500/- per day. On
06.04.2016 her salary was whimsically increased to Rs. 60,000/-
per month without following any rules /regulation and
transparency.
vi. Ms. Biji Anil was appointed by this commission as a legal
counsellor with the remuneration of Rs. 40,000/- per month. On
06.04.2016 her salary was whimsically increased to Rs. 60,000/-
per month without following any rules /regulation and
transparency.
vii. Ms. Firdos was appointed by this commission as a Coordinator
Mahila Panchayat with the remuneration of Rs. 17,000/- per
month. On 06.04.2016 her salary was whimsically increased to
Rs. 25,000/- per month without following any rules/regulation
and transparency.
viii. Ms. Meena Kumari was appointed by this commission as a
Coordinator with the remuneration of Rs. 17,000/- per month.
On 06.04.2016 her salary was whimsically increased to Rs.
25,000/- per month without following any rules /regulation and
transparency.
ix. Ms. Jyoti Mala Sinha was appointed by this commission as a
Coordinator Help Desk with the remuneration of Rs. 17,000/-
per month. On 06.04.2016 her salary was whimsically increased
to Rs. 25,000/- per month without following any rules/regulation
and transparency.
x. Ms. Madhuri Kashyap was appointed by this commission as a
Coordinator Help Desk with the remuneration of Rs. 15,000/-
per month. On 06.04.2016 her salary was whimsically increased
to Rs. 25,000/- per month without following any rules/regulation
and transparency.
54. It was submitted that the aforesaid appointments were not the
only appointments that were made but at the same time, other
appointments were also made without following any transparent
procedure. It was submitted that the statements of independent
witnesses were also recorded, through field verifications of the
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appointees, and upon scrutiny, most of the appointees were found to be
associated with AAP and Petitioner No.1.
DCW is not an autonomous entity and was required to follow GFR
and other rules and regulations
55. They submitted that the DCW could not have appointed the
appointees without sanction. It was submitted that it is right to contend
that WCD is the parent department of DCW, and the DCW has to
function in accordance with the DCW Act. They further submitted that
in consonance with Section 11 of the DCW Act, it is the function of the
Government to provide grant and staff to the Commission, and
consequently, it is for the Commission to spend such amount as it deems
fit to perform the functions specified under the Act.
56. They submitted that investigation was done regarding whether
DCW is autonomous and information was sought from WCD
department of GNCTD and Finance Department, GNCT of Delhi. It
was found that financial autonomy of every grantee institution is limited
and every grantee institution, given that it is receiving grants from the
government, is bound to follow the provisions of GFR and conditions
of grant-in-aid. Thus, while the DCW has autonomy, the same is within
the GFR, condition of grant-in-aid and DCW Act.
57. They submitted that the said stand was supported by the
statement tendered by Mr. Manoj Kumar, Deputy Secretary-V
(Finance) as well his note sheet, that is, DCW/3444/CP/20l6 dated
09.02.2016. They also relied upon the Office Memorandum dated
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06.09.2011, issued by the Finance Department on “pattern of
assistance” and Grant-in-Aid to Grantee institutions to contend that the
release of grant by itself is not a license to spend money.
58. They submitted that in reference to the letter dated 01.03.2016,
the Deputy Director, WCD, who had given the said letter, replied that
the same does not mention “autonomy” in regards to Section 5(i) of the
DCW Act, which stipulates that the Government shall provide the
Commission with such officers and employees as may be necessary for
the efficient performance of the functions of the DCW.
59. They submitted that while it is argued that GFR has no statutory
force and is a mere executive instruction, however, DCW could not
have used the funds without adhering to the same. They argued that
irrespective of GFR not having statutory force, the compliance of the
same is necessitated as it establishes a crucial and beneficial procedure
ensuing transparency. Reliance was placed on the judgment of the
Hon’ble Apex Court in the case of State of Uttar Pradesh v. Chandra
Mohan Nigam and Others : (1977) 4 SCC 345.
60. They submitted that in Sham Lal and Anr v. Munni Lal and
Ors.: 1971 SCC OnLine P&H 254, the Punjab and Haryana High
Court held that the Court in terms of Section 57(1) of the Indian
Evidence Act, 1872, shall take a judicial notice of all laws in force in
the territory of India and Section 56 of the Indian Evidence Act lays
down that no fact of which the Court will take judicial notice need to be
proved.
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No advertisements were made regarding the vacancies and no proof
of any interviews being conducted
61. They vehemently argued that no advertisements were made
before the alleged recruitment took place and also submitted that though
DCW had stated that interviews were conducted, however, no
information was given to the investigating agency despite pointed
queries as to when and where those interviews were conducted. They
submitted that no list was ever provided by DCW of the details of the
candidates who were present for the interview either.
62. They submitted that the IT Department, GNCTD, in their reply
dated 26.04.2016, also confirmed that advertisements were published
only for the post of legal counsellor on DCW’s website. They submitted
that, however, the legal counsellors were appointed by the DCW prior
to such advertisement.
63. They submitted that in the absence of any record, the reply of the
petitioner Swati Maliwal, is of no relevance who, in writing, had stated
that interviews were conducted for all the recruitments.
64. They submitted that the same clearly shows that the accused
persons had no intention to appoint people in a fair and transparent
manner.
Grant not released in accordance with the relevant guidelines
65. They submitted that ₹6.76 crores were erroneously released to
DCW in one go. They submitted that the funds that were to be released
to DCW had to be in accordance with the guidelines dated 03.05.2012
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issued by the Finance Department, whereby while the release of funds
in itself was not a criminal act, however, the overall conduct of the
accused persons highlight that the DCW was in a hurry to acquire funds
to give benefits to their supporters and the associates of the AAP.
ANALYSIS
66. The law in regard to discharge and framing of charge is provided
in Sections 227 and 228 of the CrPC respectively. For the sake of
convenience, the statutory provisions are reproduced hereunder:
“227. Discharge.
If, upon consideration of the record of the case and the documents
submitted therewith, and after hearing the submissions of the
accused and the prosecution in this behalf, the Judge considers that
there is not sufficient ground for proceeding against the accused, he
shall discharge the accused and record his reasons for so doing.
228. Framing of charge.
(1) If, after such consideration and hearing as aforesaid, the Judge
is of opinion that there is ground for presuming that the accused has
committed an offence which-
(a) is not exclusively triable by the Court of Session, he may, frame
a charge against the accused and, by order, transfer the case for
trial to the Chief Judicial Magistrate, and thereupon the Chief
Judicial Magistrate shall try the offence in accordance with the
procedure for the trial of warrant- cases instituted on a police
report;
(b) is exclusively triable by the Court, he shall frame in writing a
charge against the accused.
(2) Where the Judge frames any charge under clause (b) of
subsection (1), the charge shall be read and explained to the accused
and the accused shall be asked whether he pleads guilty of the
offence charged or claims to be tried.”
67. It is trite law that the Trial Court, while framing charges under
Section 228 of the CrPC, is not required to conduct a mini trial and has
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to merely weigh the material on record to ascertain whether the
ingredients constituting the alleged offence are prima facie made out
against the accused persons. The Hon’ble Apex Court, in the case of
Sajjan Kumar v. CBI : (2010) 9 SCC 368, has culled out the following
principles in regards to the scope of Sections 227 and 228 of the CrPC:
“21. On consideration of the authorities about the scope of Sections
227 and 228 of the Code, the following principles emerge:
(i) The Judge while considering the question of framing the charges
under Section 227 CrPC has the undoubted power to sift and weigh
the evidence for the limited purpose of finding out whether or not a
prima facie case against the accused has been made out. The test to
determine prima facie case would depend upon the facts of each
case.
(ii) Where the materials placed before the court disclose grave
suspicion against the accused which has not been properly
explained, the court will be fully justified in framing a charge and
proceeding with the trial.
(iii) The court cannot act merely as a post office or a mouthpiece
of the prosecution but has to consider the broad probabilities of the
case, the total effect of the evidence and the documents produced
before the court, any basic infirmities, etc. However, at this stage,
there cannot be a roving enquiry into the pros and cons of the
matter and weigh the evidence as if he was conducting a trial.
(iv) If on the basis of the material on record, the court could form
an opinion that the accused might have committed offence, it can
frame the charge, though for conviction the conclusion is required
to be proved beyond reasonable doubt that the accused has
committed the offence.
(v) At the time of framing of the charges, the probative value of the
material on record cannot be gone into but before framing a charge
the court must apply its judicial mind on the material placed on
record and must be satisfied that the commission of offence by the
accused was possible.
(vi) At the stage of Sections 227 and 228, the court is required to
evaluate the material and documents on record with a view to find
out if the facts emerging therefrom taken at their face value disclose
the existence of all the ingredients constituting the alleged offence.
For this limited purpose, sift the evidence as it cannot be expected
even at that initial stage to accept all that the prosecution states as
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gospel truth even if it is opposed to common sense or the broad
probabilities of the case.
(vii) If two views are possible and one of them gives rise to suspicion
only, as distinguished from grave suspicion, the trial Judge will be
empowered to discharge the accused and at this stage, he is not to
see whether the trial will end in conviction or acquittal.
(emphasis supplied)
68. Before delving into the facts of the present case, it is important
to note that it is a settled law that the scope of interference by High
Courts while exercising revisional jurisdiction is limited and ought to
be exercised sparingly, in the interest of justice, so as to not impede the
trial unnecessarily.
69. In the case of Amit Kapoor v. Ramesh Chander : (2012) 9 SCC
460, the Hon’ble Apex Court had noted that while considering the point
of charge, the Court is required to consider the record of the case and
discern whether there are grounds to believe that the accused has
committed the offence. It was noted that the Court has to satisfy itself
as to the existence of elements of the alleged offence. The Hon’ble Apex
Court, adverting to a catena of precedents, had also noted that the test
for quashing an order on charge in exercise of revisional jurisdiction or
inherent jurisdiction is limited to whether the allegations, as made from
the record of the case, taken at their highest, are patently absurd and
whether the basic ingredients of the offence, for which the charge is
framed, are not made out. The relevant portion of the said judgment is
reproduced hereunder:
“17. Framing of a charge is an exercise of jurisdiction by the trial
court in terms of Section 228 of the Code, unless the accused is
discharged under Section 227 of the Code. Under both these
provisions, the court is required to consider the “record of theSignature Not Verified
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case” and documents submitted therewith and, after hearing the
parties, may either discharge the accused or where it appears to the
court and in its opinion there is ground for presuming that the
accused has committed an offence, it shall frame the charge. Once
the facts and ingredients of the section exists, then the court would
be right in presuming that there is ground to proceed against the
accused and frame the charge accordingly. This presumption is not
a presumption of law as such. The satisfaction of the court in
relation to the existence of constituents of an offence and the facts
leading to that offence is a sine qua non for exercise of such
jurisdiction. It may even be weaker than a prima facie case. There
is a fine distinction between the language of Sections 227 and 228
of the Code. Section 227 is the expression of a definite opinion and
judgment of the Court while Section 228 is tentative. Thus, to say
that at the stage of framing of charge, the Court should form an
opinion that the accused is certainly guilty of committing an
offence, is an approach which is impermissible in terms of Section
228 of the Code.
xxx
27. Having discussed the scope of jurisdiction under these two
provisions i.e. Section 397 and Section 482 of the Code and the fine
line of jurisdictional distinction, now it will be appropriate for us to
enlist the principles with reference to which the courts should
exercise such jurisdiction. However, it is not only difficult but is
inherently impossible to state with precision such principles. At best
and upon objective analysis of various judgments of this Court, we
are able to cull out some of the principles to be considered for proper
exercise of jurisdiction, particularly, with regard to quashing of
charge either in exercise of jurisdiction under Section 397 or Section
482 of the Code or together, as the case may be:
27.1. Though there are no limits of the powers of the Court under
Section 482 of the Code but the more the power, the more due care
and caution is to be exercised in invoking these powers. The power
of quashing criminal proceedings, particularly, the charge framed
in terms of Section 228 of the Code should be exercised very
sparingly and with circumspection and that too in the rarest of rare
cases.
27.2. The Court should apply the test as to whether the
uncontroverted allegations as made from the record of the case
and the documents submitted therewith prima facie establish the
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inherently improbable that no prudent person can ever reach such
a conclusion and where the basic ingredients of a criminal offence
are not satisfied then the Court may interfere.
27.3. The High Court should not unduly interfere. No meticulous
examination of the evidence is needed for considering whether the
case would end in conviction or not at the stage of framing of
charge or quashing of charge.
27.4. Where the exercise of such power is absolutely essential to
prevent patent miscarriage of justice and for correcting some grave
error that might be committed by the subordinate courts even in
such cases, the High Court should be loath to interfere, at the
threshold, to throttle the prosecution in exercise of its inherent
powers.
27.8. Where the allegations made and as they appeared from the
record and documents annexed therewith to predominantly give rise
and constitute a “civil wrong” with no “element of criminality” and
does not satisfy the basic ingredients of a criminal offence, the court
may be justified in quashing the charge. Even in such cases, the
court would not embark upon the critical analysis of the evidence.
27.9. Another very significant caution that the courts have to
observe is that it cannot examine the facts, evidence and materials
on record to determine whether there is sufficient material on the
basis of which the case would end in a conviction; the court is
concerned primarily with the allegations taken as a whole whether
they will constitute an offence and, if so, is it an abuse of the
process of court leading to injustice.
27.10. It is neither necessary nor is the court called upon to hold a
full-fledged enquiry or to appreciate evidence collected by the
investigating agencies to find out whether it is a case of acquittal
or conviction.
27.11. Where allegations give rise to a civil claim and also amount
to an offence, merely because a civil claim is maintainable, does not
mean that a criminal complaint cannot be maintained.
27.12. In exercise of its jurisdiction under Section 228 and/or
under Section 482, the Court cannot take into consideration
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acquittal. The Court has to consider the record and documents
annexed therewith by the prosecution.
27.13. Quashing of a charge is an exception to the rule of
continuous prosecution. Where the offence is even broadly
satisfied, the Court should be more inclined to permit continuation
of prosecution rather than its quashing at that initial stage. The
Court is not expected to marshal the records with a view to decide
admissibility and reliability of the documents or records but is an
opinion formed prima facie.
27.14. Where the charge-sheet, report under Section 173(2) of the
Code, suffers from fundamental legal defects, the Court may be
well within its jurisdiction to frame a charge.
27.15. Coupled with any or all of the above, where the Court finds
that it would amount to abuse of process of the Code or that the
interest of justice favours, otherwise it may quash the charge. The
power is to be exercised ex debito justitiae i.e. to do real and
substantial justice for administration of which alone, the courts
exist…”
(emphasis supplied)
70. It is clear that this Court, at this stage, is not required to revaluate
the evidence or hold a mini trial as the same would tantamount to this
Court assuming appellate jurisdiction. Thus, all that has to be seen is
whether the learned Trial Court has adequately appreciated the material
on record and whether the Court could form an opinion that the accused
might have committed the offence on the basis of the material placed
before it.
71. It is the case of the prosecution that the accused persons, in
conspiracy with each other, abused their position as public servants and
obtained pecuniary advantage for the aides and associates of a particular
political party by employing them illegally and arbitrarily against non-
existent posts due to which the said individuals gained the pecuniary
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benefit of salaries and wrongful loss was caused to the Government
exchequer.
72. The learned Trial Court had aptly summarised the allegations
levelled against the accused persons in Paragraph 5 of the impugned
order. The same is reproduced hereunder:
“5. The entire allegations against the accused persons can be
categorised under three heads, viz.,
a) as against 26 sanctioned posts, the accused persons appointed 87
persons in DCW during the impugned tenure, out of whom most of
the persons were acquaintances or party workers or associated with
A1 and AAP;
b) Mr.P. P. Dhal was appointed as MS on 05.04.2016 contrary to
the prescribed Rules & Regulations and without approval of the
competent authority;
c) a sum of Rs. 676 Lakhs were released to DCW against the Budget
Estimate Rs. 700 Lakh in one go, whereas it should have been
disbursed in three instalments.”
73. It was contended by the learned Senior Counsel for the petitioners
that the learned Trial Court, in the charge dated 08.12.2022, has framed
no formal charge in relation to release of the amount of ₹6.76 crores in
one go to DCW instead of in installments or in relation to the
appointment of Mr. P.P. Dhal. It was argued that the accused is only
required to meet the specific charge framed against them.
74. Firstly, it is argued by the petitioners that DCW is an autonomous
body under Sections 9, 10, and 11 of the DCW Act and it has the power
to make short-term appointments and spend funds as it deems fit to
perform its functions. The appointments were not made against any
posts and were contractual in nature. The audit reports were also duly
placed before the Delhi Legislative Assembly. The appointments were
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not made against any posts and instead on short-term emergent basis
due to increase in work.
75. The prosecution has contested the same and argued that DCW is
not an entirely autonomous body and it has to act within the purview of
the GFR, grant-in-aid considerations and DCW Act. They further relied
on the reply by the Deputy Director, WCD to contend that while the
DCW may have financial powers, it has no autonomy in regards to
Section 5(i) of the DCW Act. It was argued that the petitioners had
committed the alleged offences by making excessive appointments
against the sanctioned strength. It was further argued that the Sanction
orders dated 10.06.2016 and 31.03.2015 issued by WCD provide that
the grant in aid institution shall not undertake any activity which entail
additional financial liability for the Government without due approval
of the administrative and finance department, including, creation of
posts, grant of pay scale higher than those of corresponding posts, etc.
76. Reliance has been placed on Sections 9, 10 and 11 of the DCW
Act. Section 9 of the DCW Act provides that the Commission or
committee thereof shall meet at such time as it may think fit and it shall
regulate its own procedure. Section 10 of the DCW Act stipulates the
functions of the Commission. Section 11 of the DCW Act provides that
the Commission may spend the sums paid to it by way of grants from
the Government in such manner as it thinks fit for performing its
functions. The learned Trial Court in the impugned order rejected the
argument of the petitioners and observed that the said sections do not
empower the DCW to create any post or incur any expenditure of
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recurring nature towards the salaries, etc. The learned Trial Court also
appreciated the clauses (i) and (ii) of Section 5 of the DCW Act which
stipulate that it is the Government which is to provide such officers and
employees as may be necessary for the efficient performance of
functions under the DCW Act and that that the salaries and term of
service of such officers or employees shall be as may be prescribed.
77. The DCW Act explicitly provides that the employees and officers
of the Commission are to be provided by the Government and the DCW
itself was seeking sanction of posts vide note dated 28.10.2015.
Moreover, as noted by the learned Trial Court, the letter dated
22.06.2007 through which 26 additional posts were created prima facie
reveals that DCW was not competent to create posts. Out of the
sanctioned posts, some were contractual in nature. Thus, it prima facie
appears that even contractual positions were to be sanctioned by WCD.
It was also noted that the letter dated 22.06.2007 through which 26
additional posts were created prima facie reveals that DCW was not
competent to create posts. In view of the same, in the opinion of this
Court, the learned Trial Cout rightly observed that considering that
DCW had sought sanction of posts, the same created a strong suspicion
that the other recruitments were made arbitrarily.
78. Secondly, it was argued by the petitioners that the GFR were
merely statutory instructions and the same were not binding on the
Commission. It was argued that the breach of non-statutory guidelines
is not enforceable in a Court of law and the only remedy against
violation is to bring it before a higher authority. It was further argued
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that the GFR is not a document that has been relied upon by the
prosecution before the learned Trial Court and the State could not be
permitted to produce documents at his stage when charges have been
framed. While it is stated in the charge dated 08.12.2022 that the
appointments were made “against Rules and Regulations, against
procedure, in contravention of GFR Rules, Office Orders, Office
Memorandum of the Government and Finance Department issued from
time to time and also in contravention of DCW Act 1994”, however, no
particulars of the particular provisions that have been violated are
mentioned.
79. The prosecution has contested the same and argued that the DCW
was bound to follow the provisions of GFR. They have also relied upon
the statement and note of Mr. Manoj Kumar, Deputy Secretary-V
(Finance) in this regard. It was argued that it is sufficient that GFR
establishes a crucial and beneficial procedure and it is immaterial
whether GFR can attain status as statutory instructions. It was argued
that the GFR provides that expenditure from public funds cannot be
incurred without sanction from the competent authority and the same
cannot be incurred for the benefit of any particular person or section of
people. It was also argued that the same provides for an elaborate
mechanism for procurement of services that was not followed in the
present case. It was further argued that the GFR is a public document
and the contents of the same cannot disputed.
80. It is relevant to note that the allegations against the petitioners is
not in regard to simpliciter violation of GFR. The case is that the
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petitioners arbitrarily recruited people that were associated with AAP
or known to them by abusing their positions as public servants, without
advertising the posts, in violation of the GFR, office orders and office
memorandum that were issued from time to time by the Government
and Finance Department to arbitrarily appoint. Insofar as the argument
regarding GFR not being a relied upon document is concerned, the
petitioners have placed reliance on the cases of Vinay Tyagi v. Irshad
Ali (supra) and State of Maharashtra v. Plethico Pharmaceuticals
(supra). In the first case, the Hon’ble Apex Court had made an
observation that it was required that all the documents the prosecution
seeks to rely upon and the statements of witnesses under Section 161 of
the CrPC are to be made part of the chargesheet. In the latter case, the
document in question that had not been made a part of the chargesheet
was the report of the Central Drugs Laboratory, Calcutta. The
judgements relied upon are not relevant in the facts of the present case.
81. In the present case, the document has been contended to have not
been listed as a relied upon document and still finds mention in the
impugned order is the GFR. The same is undisputably a public
document. It is not the case of the petitioners that the prosecution misled
the learned Trial Court with regard to the contents of the GFR and there
were no provisions in the same regarding appointments or expenditure,
but rather, that GFR are not binding to begin with and even if so, GFR
have not been violated.
82. As noted above, the allegations in the present case are not in
regard to the violation of the GFR by itself but that the petitioners
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appointed people known to them and associated with AAP, in excess of
the sanctioned strength, in an opaque manner without advertising the
posts or following any rules and regulations. The petitioners will have
an opportunity during the course of trial to show that GFR was not
violated or that the same is not applicable. The order framing charge
will not be vitiated merely due to a reference of a public document
which is not filed by the prosecution as a relied upon document. The
charges are framed on allegations and grave suspicion that accused
might have committed an offence. Non-support of the allegation with
adequate evidence may accrue to the benefit of defence during the
course of the trial, however, at this stage, the same cannot vitiate the
trial especially when the document in question is a public document.
The learned Trial Court has referred to the same in broad terms while
discussing that it appears that prima facie no procedure at all was
followed to recruit the appointees.
83. Thirdly, it was argued that even if any rules had been violated and
the proper procedure had not been followed, the proper recourse against
the same would be initiation of a Departmental Enquiry. Reliance was
placed on Dhananjai Kumar Pandey v. CBI : 2015 SCC OnLine Bom
5625. In the said case, the Hon’ble High Court of Bombay had explicitly
noted that in the absence of any specific allegation of corruption, no
criminal liability could be fastened on the petitioners therein, and even
if any concession was given to them, the same could only give rise to a
departmental enquiry. In the present case, however, specific allegations
have been made that the accused persons misused their positions to
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recruit and grant pecuniary advantage by nepotism to certain persons
who were associated with a particular political party or known to them.
Thus, the said case is distinguishable on facts.
84. Fourthly, it is argued that the prosecution had only been able to
identify 20 individuals out of the appointed 87 persons that allegedly
had any relation with AAP. It was argued that apart from Mr. Raj
Mangal Prasad (placed at serial no.1), there was no evidence or tangible
material to show that the other appointees had any association with AAP
or that they were the members of the said Party apart from hearsay
evidence of police officials who had done verification. No membership
records were seized and there is no evidence that any enquiry was ever
made either. The allegation, thus, at this stage are only based on random
statements at best. Arguments regarding merit of the appointees were
also made and it was contended that there is no rule against appointment
of AAP members. It was also argued that it is not alleged that the
appointees pocketed the renumeration amount without working.
85. The State has contested that the appointees were associated with
AAP and Petitioner No.1. It was argued that one of the appointees had
contested elections on ticket of AAP (serial number 1), there are
photographs of three of the listed twenty appointees (placed at serial
numbers 9, 10, and 11) campaigning for AAP, two others had worked
under the office of Advisor to Chief Minister (placed at serial numbers
2 and 3) and a few others were found to be workers of AAP or
associated with it as per field verification by police officers. It was
argued that the appointments were made in an opaque manner and the
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salaries of appointees were doubled in a short span without any
approvals. Specific details were also provided in this regard. Reliance
was placed on the statement of Ms. Usha Ganguly under Section 161 of
the CrPC who had served as the Chairperson of DCW from the year
2008 till July, 2015 wherein she had stated that the DCW performs its
functions under the guidance of WCD and the expenses incurred are to
comply with GFR. She also stated that the process being adopted for
appointments under the petitioner Swati was arbitrary and orchestrated
to benefit people associated with AAP.
86. The learned Trial Court has extensively discussed the anomalies
in the process of engaging the appointees and taken note of the lack of
transparency and advertisement for the positions. A few of the cases
discussed by the learned Trial Court are summarized hereunder:
a. The learned Trial Court also observed that the appointments of
Gautam Singh (earlier worked under accused Swati at the office
of Advisor to the Chief Minister), Bhupinder Singh and
Banteshwar Singh (earlier worked under accused Swati at the
office of Advisor to the Chief Minister) were made in an opaque
manner without advertising the vacancies etc. which clearly
reflected nepotism. It was noted that the posts for the said persons
were created on 29.07.2015 even though there were no vacant
posts for these categories as per the letter of Department of Social
Welfare dated 22.06.2007. The resumes of these individuals were
placed before accused Swati on 06.08.2015 who approved them
on the same day. It was noted that these individuals were asked toSignature Not Verified
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furnish their academic certificates on 05.08.2015, however, the
appointment of Bhupinder Singh was confirmed without the same.
Their appointments were thereafter continued as well.
b. Appointment of Chand Ram was also discussed. The learned Trial
Court noted that it was unclear as to how he applied for the post
of Data Entry Operator or why he was considered for the same in
exclusion of others.
c. It was noted that the note dated 02.02.2016 regarding extension of
period of engagement of 7 staff members was approved on
10.02.2016, in which, it was noted that Mr. Prem Sagar Pal is
assisting accused Sarika and he should be compensated for the
same. He was thus belatedly appointed from the prior date of
01.02.2016.
d. The learned Trial Court also took note of the drastic enhancement
in renumeration of the appointees. It was noted that the manner of
appointment coupled with the increase in their renumeration to
almost double the initial amount creates a strong suspicion to
frame charge under Section 13 (1) (d) of the PC Act. The relevant
paragraph is reproduced hereunder:
“Just to mention a few Gautam Singh was appointed as
Research Assistant on 06.08.2015 and his remuneration was
increased to Rs. 50,000/- p.m. from Rs. 25,000/- p.m.
Similarly, Bhupender Singh was appointed as Media
Advocacy Officer on 06.08.2015 and his remuneration was
increased to Rs. 70,000/- p.m. from Rs. 30,000/- p.m.
Similarly, Banteshwar Singh was appointed as PA to A1 on
06.08.2015 and his remuneration was increased to Rs.
40,000/- p.m. from Rs. 22,000/- p.m.”
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87. The learned Trial Court has also extensively discussed the
appointment of Mr. P.P. Dhal as Member Secretary. It was noted that
while his appointment was initially claimed to be on a pro bono basis,
however, his renumeration was fixed within two months. It was
observed that the appointment of Mr. P.P. Dhal was prima facie in
violation of the DCW Act and indicated nepotism.
88. The petitioners have emphasised on the merit of some of the
candidates and contended that the appointees performed their services
and did not take renumeration for no effort, however, it cannot be
denied that the manner of appointment is not transparent. It is not the
case of the prosecution that the offence is made out merely because the
appointees were associated with AAP, but that the appointments were
made without any proper procedure for the same or call for applications.
While the petitioner Swati in her reply had contended that interviews
were conducted to assess the suitability of candidates, no record of the
same was adduced. The IT Department in its reply has stated that the
advertisements were issued only for the posts of legal counsellors,
however, even the legal counsellors had already been appointed prior to
the same. The same raises a question as to the manner in which the
accused persons came to recruit the appointees specifically against
other candidates, if any. Without any opportunity to the public to
compete, the recruitment of the appointees, irrespective of their merit,
gives rise to grave suspicion. The learned Trial Court has rightly noted
that the opaque manner of appointment along with the prior association
of a number of candidates with AAP and petitioner Swati creates
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sufficient suspicion to frame charges. Insofar as the association sought
to be established on the basis of field verifications is concerned, it is
trite law that the testimonies of the police officers cannot be discarded
merely because the same is not corroborated by independent evidence.
The veracity of the statements of the police officers who conducted the
field verifications will be tested during the course of the trial.
89. Fifthly, it is argued that the petitioners have been erroneously
charged under Section 120B of the IPC read with Sections
13(1)(d)/13(2) of the PC Act as well as the offence under Section 13(2)
read with Section 13(1)(d)(ii) of the PC Act. It is argued that there is no
allegation that the petitioners obtained any pecuniary advantage in lieu
of the appointments and the offence as alleged is thus not made out.
90. In view of the aforesaid discussion, it is now to be seen whether
the alleged offences are prima facie made out against the accused
persons when there is no allegation that they gained any direct
pecuniary advantage from the appointments.
91. Sections 13(2) of the PC Act prescribes the punishment for the
offence of criminal misconduct by a public servant while Section
13(1)(d) elaborates as to when it can be said that public servant is
committing criminal misconduct. The relevant portion of Section 13 of
the PC Act reads as under:
“13. Criminal misconduct by a public servant.–(1) A public
servant is said to commit the offence of criminal misconduct–
xxx
(d) if he–
(i) by corrupt or illegal means, obtains for himself or for any other
person any valuable thing or pecuniary advantage; orSignature Not Verified
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(ii) by abusing his position as a public servant, obtains for himself
or for any other person any valuable thing or pecuniary
advantage; or
(iii) while holding office as a public servant, obtains for any person
any valuable thing or pecuniary advantage without any public
interest; or
xxx
(2) Any public servant who commits criminal misconduct shall be
punishable with imprisonment for a term which shall be not less than
one year but which may extend to seven years and shall also be liable
to fine.”
(emphasis supplied)
92. From the above, it is evident that the essential ingredients to
constitute the offence under Section 13(1)(d)(ii) of PC Act is if the
public servant, by abusing his position, obtains any valuable thing or
pecuniary advantage either for :
a. himself; or b. any other person.
93. Thus, Section 13(1)(d)(ii) of the PC Act makes it amply clear that
it is not necessary that the public servant by abusing his position should
only obtain for himself any valuable thing or pecuniary advantage. The
public servant can be said to have committed the offence under Section
13(1)(d)(ii) of the PC Act, even if the said public servant, by abusing
his position, obtains any valuable thing or pecuniary advantage for any
other person (who may not be a public servant). A public servant
causing wrongful loss to the government by benefitting a third party by
favouring a person known to them or to the undue benefit of the people
associated with a particular group or political party would squarely fall
within the definition of Section 13(1)(d) of the PC Act.
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94. In the present case, the allegations are in relation to nepotism by
the petitioners to obtain favourable positions for the appointees who
were known to them or associated with AAP. The learned Trial Court
has rightly placed reliance on the judgment of the Hon’ble Apex Court
in Neera Yadav v. CBI (supra) where it was noted that promoting the
interest of near and dear ones and nepotism, as alleged in the facts of
the case, was also a form of corruption. The relevant portion of the said
judgment is reproduced hereunder:
“2. It is a harsh reality that corruption has become all-pervasive in
the present system of bureaucracy. It is a fact that rich and powerful
try to stall the trial and conviction. However, fortunately, the present
case has risen as an exception.
xxx
16. Section 13 of the PC Act in general lays down that if a public
servant, by corrupt or illegal means or otherwise abusing his
position as a public servant obtains for himself or for any other
person any valuable thing or pecuniary advantage, he would be
guilty of “criminal misconduct”. Sub-section (2) of Section 13
speaks of the punishment for such misconduct. Section 13(1)(d) read
with Section 13(2) of the PC Act lays down the essentials and
punishment respectively for the offence of “criminal misconduct” by
a public servant…
17. A perusal of the above provision makes it clear that if the
elements of any of the three sub-clauses are met, the same would
be sufficient to constitute an offence of “criminal misconduct”
under Section 13(1)(d). Undoubtedly, all the three wings of clause
(d) of Section 13(1) are independent, alternative and disjunctive.
Thus, under Section 13(1)(d)(i), obtaining any valuable thing or
pecuniary advantage by corrupt or illegal means by a public
servant in itself would amount to criminal misconduct. On the
same reasoning “obtaining a valuable thing or pecuniary
advantage” by abusing his official position as a public servant,
either for himself or for any other person would amount to
criminal misconduct.
xxx
54. A particular kind of corruption that has become more rampant
of late is nepotism to promote the interests of those near and dear
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to them. Nepotism is in a sense a greater evil since it involves
dispersal of favours by patrons amongst their arm coterie,
depriving others of a career or office they deserve more. The
practice of promoting the interest of few individuals to the
detriment of many others is wholly reprehensible and deserves to
be condemned.
xxx
59. Every country feels a constant longing for good governance,
righteous use of power and transparency in administration.
Corruption is no longer a moral issue as it is linked with the search
of wholesome governance and the society’s need for reassurance
that the system functions fairly, free from corruption and nepotism.
Corruption has spread its tentacles almost on all the key areas of the
State and it is an impediment to the growth of investment and
development of the country. If the conduct of administrative
authorities is righteous and duties are performed in good faith with
the vigilance and awareness that they are public trustees of people’s
rights, the issue of lack of accountability would themselves fade into
insignificance.”
(emphasis supplied)
95. The petitioners have relied upon the judgments in the cases of
CK Jaffer Sharief v. State : (2013) 1 SCC 205 and K.R.
Purushothaman v. State of Kerala: (2005) 12 SCC 631.
96. The relevant paragraph of CK Jaffer Sharief v. State (supra) is
reproduced hereunder:
“17. It has already been noticed that the appellant besides working
as the Minister of Railways was the head of the two public sector
undertakings in question at the relevant time. It also appears from
the materials on record that the four persons while in London had
assisted the appellant in performing certain tasks connected with the
discharge of duties as a Minister. It is difficult to visualise as to how
in the light of the above facts, demonstrated by the materials
revealed in the course of investigation, the appellant can be
construed to have adopted corrupt or illegal means or to have
abused his position as a public servant to obtain any valuable thing
or pecuniary advantage either for himself or for any of the aforesaid
four persons. If the statements of the witnesses examined underSignature Not Verified
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Section 161 CrPC show that the aforesaid four persons had
performed certain tasks to assist the Minister in the discharge of his
public duties, however insignificant such tasks may have been, no
question of obtaining any pecuniary advantage by any corrupt or
illegal means or by abuse of the position of the appellant as a public
servant can arise. As a Minister it was for the appellant to decide
on the number and identity of the officials and supporting staff
who should accompany him to London if it was anticipated that he
would be required to perform his official duties while in London.
If in the process, the rules or norms applicable were violated or the
decision taken shows an extravagant display of redundance it is
the conduct and action of the appellant which may have been
improper or contrary to departmental norms. But to say that the
same was actuated by a dishonest intention to obtain an undue
pecuniary advantage will not be correct. That dishonest intention
is the gist of the offence under Section 13(1)(d) is implicit in the
words used i.e. corrupt or illegal means and abuse of position as a
public servant. A similar view has also been expressed by this Court
in M. Narayanan Nambiar v. State of Kerala [AIR 1963 SC 1116 :
(1963) 2 Cri LJ 186 : 1963 Supp (2) SCR 724] while considering the
provisions of Section 5 of the 1947 Act.”
(emphasis supplied)
97. The relevant paragraph of K.R. Purushothaman v. State of
Kerala (supra) is reproduced hereunder:
“21. To attract the provisions of Section 13(1)(d) of the Prevention
of Corruption Act, a public servant should obtain for himself or for
any other person any valuable thing or pecuniary advantage by
corrupt or illegal means or by abusing his position as a public
servant. Therefore, for convicting a person under the provisions of
Section 13(1)(d) of the Prevention of Corruption Act, 1988, there
must be evidence on record that the accused has obtained for
himself or for any other person, any valuable thing or pecuniary
advantage by corrupt or illegal means or by abusing his position
as a public servant obtains for himself, or for any person, any
valuable thing, or pecuniary advantage without any public interest.
What we find in the present case is that there is no evidence on
record to prove these facts that the appellant-accused had obtainedSignature Not Verified
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for himself or for any other person any valuable thing or pecuniary
advantage. We may clarify that the charge of conspiracy being not
proved under Section 120-B IPC, the appellant-accused could not
be held responsible for the act done by A-3. The prosecution has
failed to prove that he has obtained for himself or for any other
person any valuable thing or pecuniary advantage. Similarly, we do
not find any evidence on record to convict the appellant-accused
under Sections 403 and 477-A IPC.”
(emphasis supplied)
98. Insofar as CK Jaffer Sharief v. State (supra) is concerned, the
learned Trial Court had adequately noted that the same is
distinguishable on facts. In that case, the issue was in regard to certain
officials accompanying the accused to London. There it was held that it
was up to the accused to choose which officers should accompany him.
In the present case, the issue is in regard to appointment of persons who
were associated with a certain party and/or known to the petitioner.
99. The judgment in the case of K.R. Purushothaman v. State of
Kerala (supra) supports the proposition that it is not necessary that for
constituting the offence, the petitioners needed to obtain any pecuniary
advantage themselves. The allegations as levelled by the prosecution
are also not that the petitioners were appointing the people known to
them to gain any direct advantage themselves, but rather, that by
arbitrarily appointing the said persons, the petitioners sought to obtain
pecuniary advantage by way of renumeration for the said appointed
persons, who were associates and aides of AAP.
100. The very fact that admittedly appointments have been made and
there is material in the chargesheet that persons who have been
appointed without due process and proper assessment against non-
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existent posts and are given renumeration (pecuniary advantage), prima
facie, satisfies the ingredients of Section 13(1)(d)(ii) of the PC Act and
attracts grave suspicion against the accused persons. The allegations are
serious in nature and revolve around alleged nepotism by the accused
persons to promote appointments of people known to them and
associated with AAP. As noted by the Hon’ble Apex Court in the case
of Neera Yadav v. CBI (supra), nepotism is also a type of corruption.
The same can be especially damaging when it is propagated in an
organisation meant to secure the interests of public as it not only
hollows the administrative machinery, but it also damages the trust of
the public in the institution and deprives eligible candidates of a fair
opportunity to secure the appointments. At this stage, in the absence of
any cogent material to suggest that a fair and transparent method was
adopted by the petitioners to recruit the appointees, the learned Trial
Court rightly rejected the claim made by the accused persons that they
did not abuse their position in order to obtain pecuniary advantages for
other persons or that there was no dishonest intention.
101. The learned Trial Court also rightfully rejected the claim of the
accused persons that there was no criminal conspiracy among the
accused persons on the ground that the decisions in the meetings for
appointments were said to be unanimous. It is not denied that the
accused persons were signatories and parties to the various meetings
where the decision for creation of posts, appointments and increasing
renumeration were made. The learned Trial Court noted that none of the
accused persons ever gave any dissenting note regarding the
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appointments or objected to the same. They were part of the arbitrary
unanimous decisions. It was in the light of the aforesaid circumstances
that the learned Trial Court observed its satisfaction that there was a
strong indication that there was a conspiracy between the accused
person.
102. In view of the aforesaid discussion, in the opinion of this Court,
the learned Trial Court after a detailed reasoned order had come to a
prima facie conclusion that there was sufficient material to proceed to
charge the accused.
103. In view of the above, this Court finds no infirmity in the
impugned order.
104. The present petitions are dismissed in the aforesaid observations.
Pending applications also stand disposed of.
105. A copy of this order be placed in both the matters.
AMIT MAHAJAN, J
SEPTEMBER 20, 2024
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