Breaking: Delhi HC refuses to quash FIR against Rakesh Asthana, Devendra Kumar
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Breaking: Delhi HC refuses to quash FIR against Rakesh Asthana, Devendra Kumar

Aditi Singh

The Delhi High Court today refused to quash the FIR lodged against Central Bureau of Investigation (CBI) Special Director Rakesh Asthana in relation to the Moin Qureshi bribery case. DSP Devendra Kumar, who was also implicated in the case, will also be investigated for his role.

The Court today directed the CBI to conclude its investigation into the allegations against Asthana and Kumar within ten weeks.

Additionally, it also recorded that the allegations of mala fides against former CBI Director Alok Verma were not made out.

The Court has also granted the requisite certificate to Asthana and Kumar, under Article 134A of the Constitution of India, to move the Supreme Court in appeal.

While dismissing the petitions, the Court has vacated its interim order directing the Investigating Agency to maintain status-quo in the matter.

The order was pronounced by a Single Judge Bench of Justice Najmi Waziri, who reserved judgment last month after hearing the parties.

The informant in the case, Satish Babu Sana had alleged that Asthana received a bribe of Rs 2 Crore in exchange for a clean chit to Sana in an investigation in the case relating to meat trader Moin Qureshi. It was this allegation made by Sana that led to the registration of the FIR against Asthana by the CBI.

Shortly after the FIR was registered, CBI headquarters was raided and a couple of arrests were made pursuant to the FIR. Thereafter, the Centre sent both the Director and the Special Director of the CBI on leave. The investigating team probing the allegations of bribery against Asthana was also overhauled.

Rakesh Asthana subsequently moved the Delhi High Court to quash the FIR lodged against him.

Senior Advocate Amarendra Sharan, appearing for Asthana, had challenged the FIR on the touchstone of Section 17A of the Prevention of Corruption Act, 1988. Relying upon the recent amendment to the Act, it was argued that in absence of sanction from the Central government under Section 17A of the Act, no enquiry or investigation could have been initiated against him by the Agency.

The CBI, represented through ASG Vikramjit Banerjee, had argued that Section 17A applied only with respect to the commission of an act “in discharge of official functions and duties”. The action of accepting a bribe from a party fell outside its scope and therefore no prior approval from the Central government was mandated, they submitted.

The Centre had distanced itself from the controversy, stating that it has a limited role in the matter, which is only with respect to Section 17A. Additional Solicitor General Maninder Kaur Acharya maintained that the Centre has not received any such request for sanction from the Agency. Had the Centre received such a request, it would have applied its mind and taken an appropriate decision, Acharya had clarified before the Court.

On this point, the Court today held that the purpose of sec 17A is only to provide protection to officers to discharge their duties fairly as a public servant cannot be left under the apprehension at all times. When act of public servant is ex facie criminal, such sanction is however not necessary, the Court stated.

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“, the judgement reads.

Sharan had also alleged that the FIR registered against Asthana was antedated and actuated by malice, and registered without following the due procedure as prescribed in the CBI Manual.

Rejecting the contention, the Court recorded that the allegation that the “FIR has been back-dated and documents have been fabricated to falsely implicate them is not borne out from the records“.

Senior Advocate Dayan Krishnan, appearing for Devendra Kumar, had also objected to the FIR being registered without prior sanction from the Centre.  He assailed the credibility of the whistle-blower in the case, Satish Sana Babu, saying that his allegation should not have been taken on face value. Instead of directly registering an FIR, a preliminary enquiry should have been conducted first, Krishnan had submitted.

Senior Advocate Amit Sibal, appearing for Director Alok Verma, had also defended the FIR and called the allegations of malice “a figment of (Asthana’s) imagination”. Advocate MA Niyazi, appearing for Sharma, also produced “incriminating evidence” against Asthana.

Agreeing with Verma, the Court observed that “the grounds of malafides” on part of Verma in registering the FIR “are not made out“.

Interestingly, the Court has recorded that Sana’s complaint to the Agency has no mention of any direct interaction with Asthana or Devendra Kumar.

Although Sana’s complaint dated 15.10.2018 lists a certain sequence of events and details some facts, it does not mention any direct interaction with the petitioners apropos Rs. 5 crores or any promise of leniency towards him. Sana’s conversations were all along with Somesh and Manoj.

It nonetheless concluded,

..the allegations against the petitioner (cannot) be conclusively ruled out at this stage… 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.”

Read the Judgement:

Rakesh-Asthana-vs-CBI-watermark.pdf
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