No FIR could have been registered without prior sanction from Centre, Rakesh Asthana to Delhi HC

Relying upon the recent amendment to the Prevention of Corruption Act, 1988, Special Director of the Central Bureau of Investigation (CBI) Rakesh Asthana today 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..A single Judge Bench of the Delhi High Court comprising Justice Najmi Waziri was hearing Asthana and CBI Deputy Superintendent of Police Devendra Kumar’s pleas seeking to quash the FIR registered against them by the Agency for allegedly accepting gratification in the Moin Qureshi case..The hearing, which went for over two hours, witnessed submissions made by the two petitioners, the CBI, Director Alok Verma, Joint Director AK Sharma, the Centre, as well as CBI Additional Superintendent of Police SS Gurm..Senior Advocate Amarendra Sharan, appearing for Asthana, asserted that Section 17A of the Act created an absolute embargo on proceeding against a “public officer” till a sanction is obtained from the competent authority. Anything done in “the teeth of this procedure” is absolutely illegal, he argued..Sharan claimed that the registration of the FIR by the Agency was done by “circumventing” the procedure under Section 17A. In the instant case, Section 17A “was deliberately/knowingly given a go-by”, according to the petitioners..The Senior Counsel also informed the Court that the FIR was registered in spite of an advisory by the Central Vigilance Commission (CVC) asking the Agency not to proceed against Asthana without its prior approval..Before Sharan could address the issue of mala fides in registering the FIR, Justice Waziri interjected to state that “it was not required at this stage”. If the contention with respect to Section 17A finds merit with the Court, it would not be necessary to get into the issue of mala fides, the judge said..Interestingly, while making his submissions, Sharan began quoting an excerpt from the CVC Report, but he was stopped mid-way by Justice Waziri..“You are not privy to this report. Even if you have it, you cannot reveal the content in public. We will delete this submission”, Justice Waziri said..Additional Solicitor General Vikramjit Banerjee strongly opposed the objection raised under Section 17A. He argued that the Section applied only with respect to the commission of an act “in discharge of official functions and duties”. The alleged action of accepting bribe from a party would fall outside its scope and therefore, no prior approval from the Central government was mandated, he argued..Replying to this contention, Sharan stated that “to say that Section 17A would not apply, it would make the section otiose.”.With respect to the CVC advisory on not taking any direction against Asthana, Banerjee conceded that neither had he seen this advisory, nor was he sure whether it was specifically with respect to the instant matter or a general one..He claimed that Asthana was bringing “alternate set of facts and allegations” before the Court and the only thing which the Agency needed to see before registering a case was whether the complaint disclosed a cognizable offence or not..He informed the Court that the complaint goes through Agency’s hierarchy, right up to the Director level, before it gets registered. The present FIR, he said, was registered after following due process..On the issue of sanction under Section 17A, Additional Solicitor General Maninder Kaur Acharya informed the Court that the Centre did not receive any such request from the Agency. Had the Centre received such a request, it would have applied its mind to it and given an appropriate decision, she clarified..Advocate MA Niyazi, appearing for appearing for Joint Director AK Sharma, urged the court to “take an organic view of the matter.” He informed the Court that Section 17A was already under challenge before the Supreme Court. Agreeing with the CBI, he argued that there was no embargo on the agency to proceed against Asthana, and that Asthana should not be allowed to “scandalize everything”..Advocate Rahul Sharma, appearing for CBI Director Alok Verma, objected to the allegations of mala fides made by Asthana and called it a “figment of his imagination”..Meanwhile, CBI Additional Superintendent of Police SS Gurm also sought the Court’s permission to be heard in the ongoing litigation. Advocate Sunil Fernandes argued that it was his “incumbent duty to place the relevant facts on record”. Fernandes then went on to say that Asthana’s plea was being heard “with such muted opposition (from CBI)”..His plea was however declined by the Court..“There are two ASGs to assist the Court…You are not even a party to the petition. It is a Court of law. They (referring to CBI) will argue the way they want to…We will hear you when the need arises.”.The Court today also allowed Joint Director AK Sharma to submit the “incriminating evidence” that he has against Asthana, in a sealed cover. A copy of the same was handed over to the CBI in a sealed cover..The matter has been part-heard. It will be taken up next on December 14.