Rajasthan High Court – Jodhpur
Union Of India vs Central Bureau Of Investigation … on 30 May, 2025
Author: Rekha Borana
Bench: Rekha Borana
[2025:RJ-JD:26628]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Revision Petition No. 28/2022
Union of India through Secretary, Department of Investment and
Public Asset Management, Ministry Of Finance, Government of
India Block No. 14 CGO Complex, Lodhi Road, New Delhi-
110003.
----Petitioner
Versus
1. Central Bureau of Investigation through its Director and
Assistant Director Plot No. 5-B, CGO Complex, Lodhi
Road, New Delhi- 110003.
2. Sh. Arun Shourie S/o Hari Dev Shourie, R/o H.No. A-31,
West End Colony, Block A, New Delhi 110021.
3. Sh. Pradip Baijal S/o Lt. L.B. Baijal, R/o 561 ATS Greens,
Sector 93A, Noida Expressway, Noida 201301.
4. Sh. Ashish Guha S/o Lt. Deb Kumar Guha, R/o 23, Poorvi
Marg, Vasant Vihar, New Delhi 110057.
5. Sh. Kantilal Vikamsey S/o Karamsey Vikamsay, R/o 412,
Maker Chambers No. 5 Plot No. 221, Nariman Point,
Mumbai 40002.(deleted vide order dated
30.05.2025)
6. Jyotsana Suri W/o Lt. Sh. Lalit Suri, Chairperson &
Managing Director of M/s Bharat Hotels Ltd., Connaught
Place, Barakhamba Road, New Delhi 110001.
----Respondents
Connected With
S.B. Criminal Revision Petition No. 663/2020
Smt. Jyotsana Suri W/o Late Shri Lalit Suri, Aged about 67
Years, Chairperson and Managing Director, M/s Bharat Hostel
Ltd., Barakhamba Lane, New Delhi.
----Petitioner
Versus
Union Of India through Central Bureau Of Investigation
----Respondent
(Downloaded on 20/06/2025 at 11:02:36 PM)
[2025:RJ-JD:26628] (2 of 38) [CRLR-28/2022]
S.B. Criminal Revision Petition No. 665/2020
Ashish Guha S/o Late Deb Kumar Guha, Aged About 63 Years,
R/o 23, Poorvi Marg, Vasant Vihar, New Delhi 110057
----Petitioner
Versus
Union Of India through Central Bureau Of Investigation
----Respondent
S.B. Criminal Revision Petition No. 667/2020
Arun Shourie S/o Hari Dev Shourie, Aged About 79 Years, By
Caste Brahmin, R/o House No. A-31, West End Colony, Block A,
New Delhi- 110021.
----Petitioner
Versus
Union Of India through CBI
----Respondent
S.B. Criminal Revision Petition No. 669/2020
Kantilal Vikamsey S/o Karamsey Vikamsay, Aged About 73 Years,
R/o 412, Maker Chambers No. 5 Plot No. 221, Nariman Point,
Mumbai 40002.
----Petitioner
Versus
Union Of India through Central Bureau Of Investigation.
----Respondent
S.B. Criminal Misc(Pet.) No. 2993/2020
Pradip Baijal S/o L.B. Baijal, Aged About 77 Years, 561 ATS
Greens, Sector 93A, Noida Express Way, Noida, 201301
----Petitioner
Versus
Union Of India through CBI
----Respondent
For Petitioner(s) : Mr. Tushar Mehta, SGI (VC)
with Mr. Sanjay Jain, ASG (VC)
Mr. Mukesh Rajpurohit(the then ASG)
(Downloaded on 20/06/2025 at 11:02:36 PM)
[2025:RJ-JD:26628] (3 of 38) [CRLR-28/2022]
For Respondent(s) : Mr. S.V. Raju, ASG (VC)
Mr. Ashwini Kumar Sharma (VC)
Mr. P.P. Choudhary, Sr. Advocate
with Mr. Rajendra Kataria
Mr. Sanjeev Sen, Sr. Advocate (VC)
with Mr. Abhimanshu Dhyani (VC)
Mr. A. S. Shekhawat
Mr. Pradeep Shah
Mr. Arun Shourie (VC)
Mr. Vivek Suri (VC)
Mr. Siddharth Agarwal
Mr. Nishant Bora
Mr. Sahil Modi (VC)
Mr. Nishit Shah for
Mr. Muktesh Maheshwari
Mr. Hitesh Jain
Ms. Vandana Bhansali
Mr. Yuvraj Singh
Mr. C.S. Shekhawat
Mr. Aman Chandola (VC)
Mr. Bhushan Singh Sharma
Mr. Sanjeet Purohit with
Ms. Madhu Khatri
Mr. Umesh Vyas
HON'BLE MS. JUSTICE REKHA BORANA
Judgment / Order
30/05/2025
1. The present judgment was pronounced by this Court on
30.05.2025. However, during the course of arguments it was not
pointed out that applications for impleadment by three applicants
are pending and therefore, the Court could not take note of the
same. Even none appeared on behalf of the said applicants. The
fact of the applications being pending, was pointed out by the
Court Master after the pronouncement of the judgment and hence,
this Court deemed it proper to incorporate the order on the said
applications too. Therefore, order on applications for impleadment
(Downloaded on 20/06/2025 at 11:02:36 PM)
[2025:RJ-JD:26628] (4 of 38) [CRLR-28/2022]
was incorporated subsequently vide paras No.7 to 17 in the
present judgment and hence, the judgment is being uploaded on
11.06.2025 after the said incorporation.
2. All the present revision petitions and the criminal misc.
petition arising out of the same impugned orders, are being
decided by this common order/judgment. Facts of S.B. Criminal
Revision Petition No.28/2022; Union of India Vs. Central
Bureau of Investigation and Ors. are narrated for ready
reference.
3. The present revision petition under Section 397 read with
Sections 401 & 482 of Code of Criminal Procedure, 1973 (Cr.P.C.)
has been preferred seeking revision of orders dated 13.08.2019
and 15.09.2020 passed by the Special Judge, CBI, Jodhpur in
Final Report Case No.19/2019 whereby the learned Special Judge
declined to accept the Final Report as filed by the Central Bureau
of Investigation (CBI) and proceeded on to take cognizance
against respondents No.2 to 5 and late husband of respondent
No.6 under Section 120-B read with Section 420 of Indian Penal
Code, 1860 (IPC) and Section 13(2) read with Section 13(1)(d) of
the Prevention of Corruption Act, 1988 (for short ‘the PC Act‘). The
learned Court further proceeded on to issue arrest warrants
against the accused and also directed for seizure of the property
in question. Furthermore, the learned Court appointed Collector,
Udaipur to be the ‘Receiver’ of the seized property.
4. The brief facts of the case are as under :
A. On 13.08.2014, on basis of source information and
preliminary inquiry, an FIR (bearing No.RC JDH 2014 A 0008) was
(Downloaded on 20/06/2025 at 11:02:36 PM)
[2025:RJ-JD:26628] (5 of 38) [CRLR-28/2022]registered by the CBI against respondents No.3 to 5, late husband
of respondent No.6 and other unknown Government
Officers/Officials and private persons for offences under Sections
120-B r.w. Section 420, IPC and Sections 13(2) r.w. Section 13(1)
(d) of the PC Act qua irregularities committed in disinvestment of
M/s Laxmi Vilas Palace Hotel, Udaipur (hereinafter referred to as
‘M/s LVPH’ or ‘the Hotel’). As per the FIR, the Hotel was collusively
disinvested in favour of M/s Bharat Hotels Limited (represented by
respondent No.6) at a throwaway price of Rs.7.52 Crore. It was
alleged that Shri Pradeep Baijal (respondent No.3) being the then
Secretary of Department of Disinvestment, Ministry of Finance,
Government of India abused his official position and entered into a
criminal conspiracy with Shri Ashish Guha (respondent No.4), the
then Managing Director of M/s Lazard India Limited (hereinafter
referred to as ‘the Financial Advisor’); Shri Kantilal Karamsey
Vikamsey (respondent No.5), Director of M/s Kanti Karamsey &
Company (Valuer); authorised representative of M/s Bharat Hotels
Limited (the successful bidder); and caused the sale of the Hotel
to M/s Bharat Hotels Limited at a price of Rs.7.52 Crore, which led
to a loss of about Rs.143.48 Crore to the Government of India and
a corresponding wrongful gain to the accused. The FIR also
contained allegations of wrongful and illegal appointment of
respondent No.4 as the Financial Advisor and respondent No.5 as
the Asset Valuer.
B. A detailed investigation was conducted by the CBI and final
report/closure report dated 16.04.2019 was filed wherein it was
concluded that no material/evidence in the complete process of
(Downloaded on 20/06/2025 at 11:02:36 PM)
[2025:RJ-JD:26628] (6 of 38) [CRLR-28/2022]
disinvestment was found which could make out any offence so as
to initiate prosecution against the accused. The CBI although
concluded that the proper/adequate asset valuation of the Hotel
was not made by respondent No.5-Valuer but parallely also
concluded that no evidence to establish any ulterior motive in
fixing the lower reserve price of the Hotel, was found. The
following findings were recorded by the CBI to conclude that no
criminality in the entire process could be made out:
“(i) It was an open bid and no bidder/party objected with
regard to bidding process.
(ii) The Disinvestment Commission had suggested 03
methods of valuation but didn’t recommended [sic] as to
which method of valuation was to be accepted.
(iii) The Government of India had availed the services of
Expert Financial Advisor who suggested that the DCF
method was an appropriate method of valuation which
was accepted by the Evaluation Committee, Inter-
Ministerial Group, Core Group of Secretaries on
Disinvestment and finally approval was accorded by the
Cabinet Committee on Disinvestment.
(iv) The share purchase agreement categorically
mentioned that the purchaser shall use the hotel property
for hotel and allied operations which in turn restricted the
conversion of the use of the property for any other
purpose.
(v) The instant disinvestment was for transfer of
management and control of hotel business from
Government to the private hand through the sale of
shares held by the Government in M/s LVPH.
(vi) During investigation no irregularity has come to light
quo the appointment of M/s Lazard India Pvt. Ltd. as
Financial Advisor by the Ministerial Task Force.
(Downloaded on 20/06/2025 at 11:02:36 PM)
[2025:RJ-JD:26628] (7 of 38) [CRLR-28/2022]
(vii) No irregularity has come forth quo the selection of
the M/s Kanti Karamsey & Company, Mumbai as Asset
Valuer.
(viii) That M/s Kanti Karamsey & Co. had submitted their
asset valuation report to the Financial Advisor which was
to be kept confidential and used by the Advisor for
determining the value under the liquidation approach.
The business was sold as an ongoing concern and thus
DCF method was adopted. Moreover, it has to be kept in
perspective that at the time of valuation, it was not
finalised that M/s Bharat Hotel would be the eventual
winner of the bid.
(ix) No evidence has come forth to prove association
between the management of M/s Bharat Hotels Ltd., the
Asset Valuer, the Advisor or the Senior public servants.
(x) Investigation points out that the asset of M/s LVPH
was undervalued by the valuer M/s Kanti Karamsey & Co.
But there is absence of any evidence to establish that the
same was done with an ulterior motive to facilitate fixing
of lower reserve price. This reserve price was decided by
the Advisor and Experts selected after a transparent
process. Their recommendation was examined by an
Inter-Ministerial Evaluation Committee, Inter-Ministerial
Group, Core Group of Secretaries on Disinvestment and
finally approved by the Cabinet Committee on
Disinvestment.
(xi) That the circumstance suggests little interest of
market to take over ITDC properties during the relevant
time.
(xii) That TATA Group which owned 10% of the shares of
ITDC was compensated for its equity at exactly the same
rate that the Government received through
disinvestment. It is a reasonable argument that had the
worth of the hotel been Rs.151 crores TATA Group (which
is answerable to its shareholders) would not have
(Downloaded on 20/06/2025 at 11:02:36 PM)
[2025:RJ-JD:26628] (8 of 38) [CRLR-28/2022]
accepted 75 lakhs towards its equity as against Rs.15
crores.
In view of the facts and circumstances of the case,
it is concluded that evidence worth launching prosecution
was not found in the entire process of disinvestment of
M/s Laxmi Vilas Palace Hotel, Udaipur (Raj.). However, it
is found that M/s Kanti Karamsey & Company failed to do
a proper valuation of the asset of M/s LVPH for which
matter is being referred to the Department of Investment
and Public Asset Management, Ministry of Finance,
Government of India, New Delhi.
Therefore, the Final Report as “Closure of the case/
No charge sheet” is being submitted in this Hon’ble Court
for kind perusal and acceptance of the Court.”
C. However, vide order dated 13.08.2019, learned Special
Judge, CBI concluded that prima facie, it was proved that a
criminal conspiracy was hatched by the respondents so as to
cause a willful loss of Rs.244,63,91,000/- to the Government of
India and a wrongful gain to themselves. Therefore, learned Judge
directed for further investigation in the matter by an officer of
Superintendent level.
D. In pursuance to order dated 13.08.2019, further
investigation was conducted by the Deputy Superintendent of
Police, CBI, ACB, Jodhpur and a supplementary final
report/closure report dated 05.06.2020 was filed with the
conclusion that not enough evidence in the entire process of
disinvestment of the Hotel worth launching prosecution, was
found. However, it was concluded that respondent No.5 Company
i.e. the Valuer, did not make a proper valuation of the assets of
the Hotel and for the same, the matter had already been referred
(Downloaded on 20/06/2025 at 11:02:36 PM)
[2025:RJ-JD:26628] (9 of 38) [CRLR-28/2022]
to Department of Disinvestment and Public Asset Management,
Ministry of Finance, New Delhi for taking action at their end.
E. However, learned Special Judge disagreed with the
supplementary closure report as filed by the CBI and proceeded
on to pass order dated 15.09.2020, inter alia,:
(i) Taking cognizance of offences under Section 120-B r.w. Section
420, IPC and Section 13(2) r.w. Section 13(1)(d), PC Act against
Respondent Nos.2-6;
(ii) Issuing process against Respondent Nos.2-6 through warrants
of arrest;
(iii) Attaching the property of the Hotel in terms of Section 18(A)
of the PC Act to be held by the State Government till final disposal
of the matter; and
(iv) Appointing District Collector, Udaipur as receiver of the Hotel
directing him to take possession of the same, submit a list of the
movable and immovable property therein, handover the
management of the Hotel to some other Government of India
organization/undertaking involved in the business of hotel
management and submit quarterly accounts report of the Hotel.
5. At this stage, it is relevant to note that respondent No.2 Shri
Arun Shourie was not a named accused in the FIR but cognizance
against him was also taken by the learned Special Judge and
prosecution against him was also launched vide order dated
15.09.2020.
6. Aggrieved of orders dated 13.08.2019 and 15.09.2020, the
present revision petitions/criminal misc. petition have been
preferred.
(Downloaded on 20/06/2025 at 11:02:36 PM)
[2025:RJ-JD:26628] (10 of 38) [CRLR-28/2022]
7. Before proceeding further, it is relevant to note that
applications for impleadment in the present petitions have been
filed by three applicants -Amba Lal Nayak, Laxmi Lal Choudhary
and Vinod Singh Parihar, the details of which are as under:-
i). CRLR No.663/20 (IA No.2/2020) Amba Lal Nayak
(IA No.3/2020) Laxmi Lal Choudhary
Vinod Singh Parihar
ii). CRLR No.665/20 (IA No.1/2020) Amba Lal Nayak
iii). CRLR No.667/20 (IA No.1/2020) Amba Lal Nayak
iv). CRLR No.669/20 (IA No.1/2020) Amba Lal Nayak
v). CRLMP No.2993/20 (IA No.1/2020) Amba Lal Nayak
(IA No.2/2020) Laxmi Lal Choudhary
Vinod Singh Parihar
8. None appeared on behalf of the above applicants nor have
any arguments been raised on their behalf.
9. The application as filed by Amba Lal Nayak reads as under:-
“The humble applicant, most respectfully submits as
under:-
1. That, the applicant was working in Laxmi Vilas
Hotel, Udaipur and he collected all documents and
made complaint to Central Bureau of Investigation and
sent the relevant documents through fax.
2. That, on the complaint of the petitioner, CBI
conducted preliminary enquiry and thereafter
registered FIR in year 2014.
3. That, CBI also enquired the applicant and
thereafter CBI submitted closure report before Special
Judge, CBI but no notice has been given to applicant.
4. That, since CBI has submitted closure report
hence it will support revision petitioner as such
applicant is necessary party so that he will bring the
true facts before the Hon’ble Court.
5. That, no prejudice will cause to the petitioner if
the applicant is impleaded respondent.
(Downloaded on 20/06/2025 at 11:02:36 PM)
[2025:RJ-JD:26628] (11 of 38) [CRLR-28/2022]
Therefore, in the interest of justice, applicant may
kindly be impleaded as respondent in the aforesaid
revision petition.”
10. A bare perusal of the above averments reflects that
impleadment has been sought by the applicant on the ground that
it is on his complaint that a preliminary enquiry was conducted by
the CBI and the FIR was registered in the year 2014. The CBI
although submitted a closure report before the CBI Court but did
not serve any notice on him i.e. the complainant. Therefore, he
deserves to be impleaded in the present petitions.
11. Similar applications have been filed by two other persons i.e.
Laxmi Lal Choudhary and Vinod Singh Parihar with an averment
that being the ex-employees of M/s. LVPH, they are entitled to be
impleaded as party respondents. In the alternate, they have
prayed to be permitted to intervene in the matters.
12. So far as the applications filed by Amba Lal Nayak are
concerned, this Court is not inclined to entertain the same for the
following reasons:
i). The supplementary Final Report as filed in the present
matter reflects FIR No.RC JDH 2014 A 0008 to have been
registered on a source information. It nowhere reflects the
applicant Amba Lal Nayak to be the complainant. Therefore,
the averment of the applicant that the FIR in question was
registered on his complaint proves to be incorrect on the
face of it.
ii). The applications as filed by the applicant does not
reflect any reason, whatsoever, as to why he is a necessary
or essential party.
(Downloaded on 20/06/2025 at 11:02:36 PM)
[2025:RJ-JD:26628] (12 of 38) [CRLR-28/2022]
iii). As is clear from the record, the said applicant, at the
very inception, filed a PIL petition (D.B. Civil Writ Petition
No.910/2002) before this Court challenging the transfer of
the property of M/s LVPH. While dismissing the said PIL
petition on 04.04.2002, the Court specifically observed as
under:-
“We find that so far as petitioner No.1 is concerned, he
had interestingly pursued the litigation about the
transfer of property in question as its employee and a
member of the hotel workers union of the ITDC, and
that interest can be pursued in an adversary litigation,
not by way of Public Interest Litigation.”
iv). Interestingly, the second PIL petition was again filed
by the applicant being D.B. Civil Writ Petition No.1678/2006
which stood dismissed on 19.07.2006 at a cost of
Rs.5,000/-. The Court while dismissing the petition
specifically observed as under:-
“The fact that the petitioner happened to be an
employee and member of the Hotel Workers Union of
the ITDC has been suppressed in the writ petition. The
petitioner has described himself simply as “a
permanent resident of Udaipur city and a social worker
of the society.”
To sum up, the petitioner has challenged sale of the
hotel after four years and dismissal of the first writ
petition by a speaking order. The ground of challenge
is the same, namely, sale of assets worth for alleged
paltry sum of Rs.7.52 Crores only. The materials which
are the foundation of the petitioner’s case, referred to
above, were available with the petitioner when the
petition came up for final disposal. Above all, bona
fides of the public interest litigation at the instance of
the petitioner having been doubted, we are of the view
that the petitioner ha been pursuing a useless litigation
in the garb of public interest litigation.”
(Downloaded on 20/06/2025 at 11:02:36 PM)
[2025:RJ-JD:26628] (13 of 38) [CRLR-28/2022]
v). What can be concluded from the above facts is that the
present applicant has already approached this Court twice and his
second PIL petition was dismissed at a cost of Rs.5,000/- with a
specific observation that the petitioner had been pursuing a
useless litigation in the garb of public interest litigation. Once the
said finding has been recorded by the Division Bench against the
present applicant, the present applications for impleadment are
nothing but a misconceived attempt on behalf of the applicant.
13. The applications for impleadment as filed by Amba Lal Nayak
are hence, dismissed.
14. So far as the applications filed by the other two applicants
namely, Laxmi Lal Choudhary and Vinod Singh Parihar are
concerned, a bare perusal of the applications reflects that they too
claim themselves to be the ex-employees of M/s. LVPH. In the
applications, it has been averred as under:
“That the applicants do not wish to question the
Disinvestment Policy of the Government of India
but confine their case to the fact that the
property, worth crores of Rupees in the year
2001, was transferred to the petitioner for a
paltry sum of Rs.75 Crores only, whereas, the land
valuation on the basis of regularisation of certain lands
out of the same property in the same area in favour of
Hindustan Zinc Limited was around Rs.75 Crores but
the manner in which disinvestment of Laxmi Vilas
Palace Hotel has been transferred by the I.T.D.C. to
the petitioner-Company, is attributable to corrupt
practices adopted in a well conspired and pre-planned
manner, which is evident from a perusal of the
impugned order. The learned Special Judge, C.B.I.
Court, Jodhpur has passed the impugned order after
considering the material available on record. Since a
public property has been transferred to the petitioner-
Company by way of disinvestment, therefore, the
applicants being the members of the public and ex-
(Downloaded on 20/06/2025 at 11:02:36 PM)
[2025:RJ-JD:26628] (14 of 38) [CRLR-28/2022]
employees of Laxmi Vilas Palace Hotel seek leave of
this Hon’ble Court to be impleaded as party-
respondents or in alternative, to intervene in the
matter for the purpose of advancing submissions that
the impugned order is not only in accordance with law
but also as per the material collected by the C.B.I. and
the commission of offences under Sec.120-B, 420, IPC
and Sec.13(2) read with Sec.13(1)(d) of the
Prevention of Corruption Act, are clearly made out.”
15. The facts as pleaded by Amba Lal Nayak and referred to in
Order dated 04.04.2002 in D.B. Civil Writ (PIL) Petition
No.910/2002 read as under:-
“The petitioners do not challenge disinvestment
policy of the Govt. of India as such. The principal
ground of challenge in this petition is that a
property worth crores of rupees is being
transferred to a private party for paltry sum of
Rs.7.5 crores only whereas the land valuation on the
basis of regularisation of certain lands out of the same
property in the same area in favour of Hindustan Zinc
Limited comes around Rs.47 crores. The regularisation
charges were @ Rs.576/- per sq.ft. whereas the
current price fixed by the State Govt. itself for the
purpose stamp duty on market price the valuation is to
be made @ Rs.1100/- per sq.ft. or Rs.11,000/- per sq.
Mtr. if the land is situated near to road, and @
Rs.875/- per sq.ft. or Rs.8750/- per sq. mtr. if the land
is situated away from the Road in the area in
question.”
16. A bare perusal of the pleadings as made by the present two
applicants in their applications and the pleadings made by Amba
Lal Nayak in his first PIL petition clearly reveals that the same are
ad-verbatim. The petition as filed by Amba Lal Nayak having been
dismissed, the present applications by the applicants on the same
grounds clearly is a misconceived and malafide attempt. Further,
the present applicants too have not been able to portray any
(Downloaded on 20/06/2025 at 11:02:36 PM)
[2025:RJ-JD:26628] (15 of 38) [CRLR-28/2022]
ground as to how they are the necessary and essential parties to
the present litigation.
17. The applications as filed by Laxmi Lal Choudhary and Vinod
Singh Parihar therefore, deserve to be and are hereby dismissed.
18. Proceeding further, this Court deems it appropriate to narrate
the arguments of the counsels in the respective petitions.
19. S.B. Criminal Revision Petition No.663/2020;
Smt. Jyotsana Suri Vs. Union of India
Mr. P.P. Choudhary, learned Senior Counsel appearing for
Smt. Jyotsana Suri made the following submissions:
(i) The learned Special Judge erred in not accepting the closure
report as submitted by the CBI and exceeded his jurisdiction in
observing that the course/method of valuation as adopted was
erroneous. It is not within the domain of the Court to decide as to
which method/policy ought to have been adopted. Policy decision
being a prerogative of the State, it was well within the jurisdiction
of the competent/Core Committee to decide as to which method of
valuation was to be adopted. It is no one’s case that the method
as adopted was not a method recommended by the Disinvestment
Commission. It was definitely one of the four sanctioned methods
as per the recommendations of the Disinvestment Commission
and hence, adoption of one of the four sanctioned methods which
was completely a policy decision of the State, could not have been
said to be illegal by the Court and in concluding so, the Court
definitely exceeded its jurisdiction.
(ii) The present was a global tender wherein the complete
procedure in terms of law was adopted. In all, 60 tenderers
(Downloaded on 20/06/2025 at 11:02:36 PM)
[2025:RJ-JD:26628] (16 of 38) [CRLR-28/2022]participated in the process and the bid of the petitioner Company
being 20% above the reserve price and the highest, was rightly
accepted.
(iii) The learned Court, while exercising its jurisdiction, acted like
a Constitutional Court and while deciding the criminality,
proceeded on to examine the validity of the disinvestment policy.
The said approach and conclusion as arrived by the learned Judge
is even otherwise contrary to the ratio as laid down by the Hon’ble
Apex Court in Balco Employees’ Union (Regd.) Vs. Union of
India & Ors.; (2002) 2 SCC 333.
(iv) Even otherwise, at the relevant point of time, Ms. Jyotsana
Suri, the present petitioner was not even in picture as she was not
holding any office of M/s Bharat Hotels Limited. Therefore, no
offence is made out against her and cognizance against her is
nonest.
(v) The direction for attachment of the property of the Hotel as
issued by the learned Court is also in excess of jurisdiction.
20. With the above submissions, learned Senior Counsel prayed
for setting aside of the orders impugned and for acceptance of the
closure report as filed by the CBI.
21. S.B. Criminal Revision Petition No.667/2020; Mr. Arun
Shourie Vs. Union of India
(i) Petitioner Mr. Arun Shourie appearing in person, at first and
foremost submitted that the learned Special Judge could not have
taken cognizance against him without a prior prosecution sanction
having been obtained in terms of provisions of the PC Act, he
being a retired public servant. He submitted that as per amended
(Downloaded on 20/06/2025 at 11:02:36 PM)
[2025:RJ-JD:26628] (17 of 38) [CRLR-28/2022]
Section 19 of the PC Act, a sanction for prosecution against a
retired public servant is also mandatory and the learned Court
erroneously held that the said sanction was not essential and
wrongly proceeded on to take cognizance against him in total
contravention to the provisions of the PC Act.
(ii) Mr. Pradeep Shah, Counsel for Mr. Shourie, assisted by the
petitioner himself, further submitted as under:
(a) He was neither named in the FIR nor was there an iota of
evidence against him so as to conclude any offence being made
out against him. The CBI, during the course of investigation,
although examined 60 witnesses and took on record 244
documents, none of them could be co-related to him. Even as per
the reply of the CBI, there was no evidence available on record to
impute criminality against him.
(b) As a Minister, his role was just to ensure the proper
implementation of the layers/stages of the disinvestment policy.
The disinvestment policy was a policy approved by the Parliament
which could not have been put to scrutiny by the Court.
(c) It is no one’s case that the procedure as prescribed by the
said policy was not followed in the present matter. Complete
transparency was maintained in the complete process which was
approved by the relevant committees as constituted, at each
layer/stage. The process comprises of 5 layers/stages and at each
stage, a collective decision by a competent committee was taken.
The collective decision of the final/Core committee headed by
Hon’ble the Prime Minister, resulted into the acceptance of the
(Downloaded on 20/06/2025 at 11:02:36 PM)
[2025:RJ-JD:26628] (18 of 38) [CRLR-28/2022]
final bid and hence, he alone could not have been imputed of any
corrupt practice.
(d) So far as the selection of the valuer is concerned, a complete
process is prescribed for the purpose. The said process was strictly
followed whereby total 81 valuers were invited. After the complete
process, the valuer – respondent No.4 was selected and that too,
on basis of the collective decision of the committee. He being one
of the members of the committee, could not have been solely held
responsible for selection of the valuer.
(e) The learned Court, on total assumptions and surmises,
concluded that the proper valuation of the property was not done.
Even the valuation of Rs.252 Crores as concluded by the CBI was
incorrect and based on no material evidence.
(To substantiate his submission, Mr. Shourie referred to the
PILs pertaining to the disinvestment of the present Hotel. In the
first PIL, the valuation was mentioned to be Rs.50 Crores and in
the second PIL, it was mentioned to be Rs.150 Crores).
(f) Even otherwise, calculation of the valuation is a factual
aspect which cannot be gone into by the Courts and as held in
Balco‘s case (supra), the Courts cannot interfere on the premise
that the method of valuation as adopted is incorrect or that some
other method ought to have been adopted.
(g) Further, the valuation method qua an enterprise which is in
a working condition, is totally different. Herein, the Hotel was
although in a working condition, was running on huge losses and
therefore, the Government took a conscious decision to disinvest
in the same.
(Downloaded on 20/06/2025 at 11:02:36 PM)
[2025:RJ-JD:26628] (19 of 38) [CRLR-28/2022]
(h) So far as the finding of the CBI regarding the lesser valuation
of the land is concerned, 8 acres of the land in question was
already leased out to some other company. Further, only 6% of
the land was permitted to be used and even no further
construction was permissible on the said land. To substantiate the
said fact, he referred to two notifications dated 17.01.1999 and
10.12.1999 of the State Government.
Hence, the reasons given by the valuer for lesser valuation
are totally reasonable and correct.
(i) Admittedly, 10% shares of the Hotel in question were held by
TATA Group and had the Hotel been undervalued, TATA Group
would definitely have raised an objection which it did not, which
simply means that the valuation of the Hotel at that point of time
was correctly computed and was not questionable.
(j) All the 12 grounds/reasons as assigned by the CBI to
conclude that no criminality in the complete process was found,
have totally been ignored by the learned Court without any basis
or logic.
22. S.B. Criminal Revision Petition No.665/2020;
Mr. Ashish Guha Vs. Union of India
(i) Mr. Sanjeev Sen, learned Senior Counsel appearing for the
petitioner submitted that the role of M/s Lazard India Private
Limited (advisor) was only advisory and to provide assistance to
the Government to finalize the valuer. However, there was no role
of the advisor in the final selection of the valuer. He, in support of
his submission, referred to the office memorandum of May, 2001
(Downloaded on 20/06/2025 at 11:02:36 PM)
[2025:RJ-JD:26628] (20 of 38) [CRLR-28/2022]
whereby the committee for selection of the valuer was constituted.
The advisor was neither a member of the said committee nor was
it one to make a final selection.
(ii) Learned Senior Counsel further submitted that even
otherwise the agreement was executed between the Government
of India and the Company and no agreement was executed by the
petitioner in his personal capacity. Therefore, only because of he
being the Managing Director of the Company, cannot be held liable
qua any offence, in his personal capacity.
(iii) Learned Senior Counsel submitted that only allegation
against Mr. Ashish Guha is that he played a pivotal role in selection
of the valuer whereas it is clear on record that neither was he a
member of the selection committee nor did he attend any meeting
of the said committee and hence, did not have any role in final
selection of the valuer.
(iv) None of the ingredients of the offences of which the
cognizance has been taken by the learned Court against him, are
found and no offence, as rightly held by the CBI, is made out
against the petitioner.
23. S.B. Criminal Misc. Petition No.2993/2020; Pradip
Baijal Vs. Union of India
Mr. Siddharth Agarwal, learned counsel appearing for
Mr. Pradeep Baijal, Secretary for Department of Disinvestment,
Ministry of Finance at the relevant point of time, raised the
following grounds:
(Downloaded on 20/06/2025 at 11:02:36 PM)
[2025:RJ-JD:26628] (21 of 38) [CRLR-28/2022]
(i) Admittedly, the petitioner was a public servant at the
relevant point of time and hence, in terms of the amended
provision of Section 19 of the PC Act, prosecution sanction was a
mandate before taking cognizance against him. No sanction was
there on record permitting prosecution against the petitioner and
hence, the order of the learned Court taking cognizance against
the petitioner, is bad in the eye of law.
(ii) Vide the order impugned, cognizance of certain offences
under IPC has also been taken by the learned Court whereas
additional layer of sanction in terms of Section 197, Cr.P.C. was
further required before taking cognizance of the said offences
against the petitioner.
(iii) The petitioner was discharging his official duties as one of
the members of the committee as constituted. Neither did he, in
his individual capacity, take any final decision nor was he the sole
person to make a final selection of the valuer. Therefore, no
criminality whatsoever, could be imputed solely against him.
(iv) The learned Court exceeded its jurisdiction in holding that
Discounted Cash Flow (DCF) method as adopted for valuation of
the Hotel, was incorrect and the Asset Valuation Method (AVM)
ought to have been adopted. The said finding of the learned Court
is in total contravention to the ratio as laid down in Balco‘s case
(supra) wherein the Hon’ble Apex Court has held that the
discretion to decide the method of valuation lies totally with the
Government and the same being a policy decision of the
Government, cannot be interfered with by the Courts. In support
of his submission, counsel relied upon the Hon’ble Apex Court
(Downloaded on 20/06/2025 at 11:02:36 PM)
[2025:RJ-JD:26628] (22 of 38) [CRLR-28/2022]judgment in G.L. Sultania v. Securities & Exchange Board of
India; (2007) 5 SCC 133.
(v) The petitioner was not a member of the Valuation Committee
which comprised of Inter Ministerial Group. He was only one of the
members of the Cabinet Committee comprising of Core Group of
Secretaries chaired by Hon’ble the Prime Minister himself. The
decision, if any, was taken by the Valuation Committee and the
Cabinet Committee only approved the recommendations as made
by the Valuation Committee. The petitioner being only one of the
members of the Cabinet Committee, could not have been imputed
for any act so as to constitute any offence.
(vi) It is not comprehensible as to how only two persons out of
all the Committee Members have been accused of the offences
when there is no material available on record to impute any
particular act, action or unlawful gain on their part.
(vii) The learned Court seriously erred in totally ignoring the
grounds/reasons as recorded by the CBI while filing the closure
report. It is only the personal emotions and assumptions of the
learned Judge that has overridden the complete evidence placed
on record by the CBI.
24. With the above submissions, learned counsel prayed for
acceptance of the closure report and setting aside/quashing of the
orders impugned.
25. S.B. Criminal Revision Petition No.28/2022; Union of
India Vs. Central Bureau of Investigation & Ors.
(Downloaded on 20/06/2025 at 11:02:36 PM)
[2025:RJ-JD:26628] (23 of 38) [CRLR-28/2022]
(i) Mr. Tushar Mehta, learned Solicitor General of India assisted
by Mr. Sanjay Jain, learned ASG has put a challenge to the orders
impugned on two aspects: its legality and its correctness.
(ii) On the aspect of legality, he submitted that firstly, the order
is bad as no sanction for prosecution was obtained by the learned
Court before taking cognizance of the offences under the PC Act as
well as IPC. Secondly, unless the ingredients of the offences were
made out from the closure report of the CBI, no cognizance under
Sections 120B r.w. 420, IPC could have been taken.
(iii) On the aspect of correctness, learned Solicitor General
submitted that once a closure report was submitted by the CBI,
the only option available with the learned Court was either to
accept it or to order/direct for further investigation. Learned
Court, at the first instance, directed for further investigation which
was completely within its jurisdiction. However, after extensive
investigation been conducted by the CBI in compliance of order
dated 13.08.2019, when the second/supplementary closure report
was submitted, the option available with the Court was only to see
whether its earlier directions had been followed or not and the
investigation as per its directions had been conducted or not. If
after further investigation, the second/supplementary closure
report was filed, the Court was only required to see whether
ingredients of the offences as alleged were made out or not.
(iv) So far as order impugned dated 05.06.2020 is concerned,
there is not an iota of discussion on the aspect as to whether any
offence was made out or not. The Court did not record any finding
as to which offence (of which the cognizance was taken) was
(Downloaded on 20/06/2025 at 11:02:36 PM)
[2025:RJ-JD:26628] (24 of 38) [CRLR-28/2022]
made out against the accused. The closure report specifically
indicated that no evidence, whatsoever, to make out any offence
against the accused was available on record. Without reaching to
any concrete finding regarding the ingredients of the offences
under Sections 120B or 420, IPC the Court could not have suo
moto proceeded on to take cognizance of the said offences
against the accused. Assumptions and surmises cannot be the sole
reasons to take cognizance against any person without concluding
that the ingredients so as to make out an offence, are available on
record.
(v) Learned SGI further submitted that the order of the learned
Court ought to meet out all three tests of correctness, legality and
propriety. Besides legality and correctness, the order impugned
does not pass the test of propriety too as the observations as
made by the learned Court, by all means, lack propriety.
(vi) Learned SGI further submitted that the State instrumentality
cannot be put to such coercive measures so as to hamper its
functionality. If the State, with due diligence, takes a particular
decision and acts upon the same, totally within its jurisdiction, the
same cannot be subject to judicial review. The approach of
learned Special Judge, if allowed to stand, would lay a huge
impact on future proceedings of disinvestment to be taken up by
the Government. The same would definitely have a nationwide
impact and would definitely hinder the future proceedings of
disinvestment, if any, to be undertaken by the Government.
(Downloaded on 20/06/2025 at 11:02:36 PM)
[2025:RJ-JD:26628] (25 of 38) [CRLR-28/2022]
26. Learned ASG Mr. S.V. Raju appearing for CBI, while
supporting the arguments as raised by learned SGI, raised the
following additional grounds:
(i) As per the amended provision of Section 19 of the PC Act,
prosecution sanction is mandatory even qua a retired public
servant. The finding as recorded by the learned Court to the effect
that no prosecution sanction was required as the offence related
back to a date prior to the amended provision of Section 19
having come into effect, is totally contrary to the settled position
of law. It is the date of cognizance and not the date of offence
which would decide the applicability of the amended provision of
Section 19 of the PC Act. As on the date of taking cognizance by
the Court, the amended provision of Section 19 had come into
effect, the mandate as required vide the said provision qua a
retired public servant, would apply.
27. S.B. Criminal Revision Petition No.669/2020; Kantilal
Vikamsey Vs. Union of India
It has been submitted that Mr. Kantilal Vikamsey expired on
24.08.2021 after filing of the present revision petition and hence,
the proceedings qua him needs to be dropped.
28. Heard learned counsel for the parties and perused the
material available on record.
29. Before proceeding further, it is relevant to note at this stage
itself that as Mr. Kantilal Vikamsey (respondent No.5) expired on
24.08.2021, nothing survives against him. The proceedings
(Downloaded on 20/06/2025 at 11:02:36 PM)
[2025:RJ-JD:26628] (26 of 38) [CRLR-28/2022]
against him can even otherwise not be continued and hence, the
same are dropped.
30. Respondent No.5 Mr. Kantilal Vikamsey having expired on
24.08.2021, his name is directed to be deleted from the array of
respondents in Criminal Revision No.28/2022.
31. One more aspect which deserves to be noted at this stage
itself is that although the CBI, at the primary stage and at the
stage of interim relief opposed the prayers as made by all the
petitioners and supported the orders impugned but during the
course of final arguments, learned Senior counsel appearing for
the CBI specifically took a stand in favour of the petitioners and
prayed for quashing of the orders impugned. Meaning thereby,
there is no opposite party in the present litigation and none of the
counsels/parties have supported the orders impugned. All the
counsels/parties have opposed the orders impugned and prayed
for quashing/setting aside of the same.
32. Coming to the merit, the first issue which arise is – Whether
a prosecution sanction is mandatory for taking cognizance of any
offence under the PC Act against a public servant ?
To find an answer to the said issue, reliance on Hon’ble Apex
Court judgments in the case of Dilawar Singh Vs. Parvinder
Singh;(2005) 12 SCC 709 and Nanjappa Vs. State of
Karnataka;(2015) 14 SCC 186 would be apt. In Nanjappa’s
case (supra), the Hon’ble Apex Court specifically held that in
absence of valid prosecution sanction in terms of Section 19 of the
PC Act, the Trial Court was not competent to take cognizance of
any offence under Sections 7, 10, 11, 13 & 15 of the said Act.
Therein, the Hon’ble Apex Court observed and held as under:
(Downloaded on 20/06/2025 at 11:02:36 PM)
[2025:RJ-JD:26628] (27 of 38) [CRLR-28/2022]
“10. A plain read of Section 19(1) (supra) leaves no
manner of doubt that the same is couched in
mandatory terms and forbids courts from taking
cognizance of any offence punishable under Sections
7, 10, 11, 13 and 15 against public servants except
with the previous sanction of the competent authority
enumerated in Clauses (a), (b) and (c) to Sub-section
(1) of Section 19. The provision contained in Sub-
section (1) would operate in absolute terms but for the
presence of Sub-section (3) to Section 19 to which we
shall presently turn. But before we do so, we wish to
emphasise that the language employed in Sub-
section (1) of Section 19 admits of no
equivocation and operates as a complete and
absolute bar to any court taking cognizance of
any offence punishable under Section 7, 10, 11,
13 and 15 of the Act against a public servant
except with the previous sanction of the
competent authority.”
33. In view of the above settled position of law, it can be safely
concluded that no cognizance of any offence under Section 13(2)
r.w. Section 13(1)(d) of the PC Act can be taken against a public
servant without a previous valid prosecution sanction.
34. After concluding as above, the very next issue then is –
Whether a prosecution sanction is essential in case of a retired
public servant too?
35. The admitted position of law is that as per the unamended
provision of Section 19 of the PC Act, no prosecution sanction was
essential for a retired public servant but, after the amendment in
Section 19 been introduced w.e.f. 26.07.2018, prosecution
(Downloaded on 20/06/2025 at 11:02:36 PM)
[2025:RJ-JD:26628] (28 of 38) [CRLR-28/2022]
sanction is essential before taking cognizance of an offence
punishable under Sections 7, 11, 13 & 15 of the PC Act qua a
retired public servant too.
36. The Allahabad High Court in Anil Kumar Shukla Vs.
Central Bureau of Investigation; 2020 (4) ALJ 562 (decided
on 20.12.2019) while dealing with a similar situation observed
and held as under :
“13. As it is evident from the aforesaid provision that
before amendment there was no such mandatory
provisions for taking previous sanction for prosecuting
the Government Officials after his retirement for the
offence which was alleged to be taken place during his
official discharge of duty but in the amended provision
of section 19(1)(B) of P.C. Act, it clearly provides that
in case of a person who is employed or as the case may
be, was at the time of commission of alleged offence
employed in connection with the affairs of State and is
not removable from his office save by or with the
sanction of the State Government, of that Government,
the sanction is necessary and without previous sanction
no court shall take cognizance of an offence punishable
under Sections 7, 11, 13 & 15 of the Act.”
37. Applying the above ratio to the present matter, the
conclusion which can be drawn is that a prosecution sanction was
essential before taking cognizance of the offence under Section
13(2) r.w. 13(1)(d) of the PC Act against Mr. Pradeep Baijal &
Mr. Arun Shourie who, on the date of taking cognizance, were
although not in office, but were definitely retired public servants.
38. The very next issue then would be – Whether the amended
provision of Section 19 would apply in Mr. Baijal & Mr. Shourie’s
(Downloaded on 20/06/2025 at 11:02:36 PM)
[2025:RJ-JD:26628] (29 of 38) [CRLR-28/2022]
case or they would be governed by the unamended provision of
Section 19 as the alleged offence pertained to the year 2014 i.e.
prior to amended provision of Section 19 having came into effect.
That is to say, what would be the effective date of application of
the amended provision of Section 19 – the date of commission of
offence or the date of taking cognizance of the offence?
39. The above issue is also no more res integra and came up
before various High Courts at different points of time. The Kerala
High Court in the case of S.V. Kalesan Vs. State of Kerala;
Crl.MC.No.5365/2013 (decided on 01.07.2021)
(2021:KER:23488) held that the date relevant for considering
the necessity of sanction is the date on which cognizance is taken.
Therein, the Court held that inspite of retirement of the petitioner
from service, if the Special Judge has to pass a fresh order under
Section 156(3), Cr.P.C., sanction under Section 19 of the PC Act
would be necessary.
40. Similar view was taken by the Madhya Pradesh High Court in
Mahendra Kumar Dubey Vs. Economic Offence Wing,
through its Superintendent of Police; CRR/470/2021
(2021:MPHC-GWL:13288) (decided on 28.10.2021) wherein the
Court held as under:
“17. In the conspectus of above discussion, this Court
is of the considered view that the date of
commission of offence is not the deciding factor
but it is the date of taking cognizance of the
offence in question which decides the
applicability of amended Sec.19 PC Act. Thus, the
Trial Court by taking cognizance of the offence in
question against petitioner without insisting for(Downloaded on 20/06/2025 at 11:02:37 PM)
[2025:RJ-JD:26628] (30 of 38) [CRLR-28/2022]sanction for prosecution from Sanctioning Authority has
committed illegality…”
41. The above judgment of Madhya Pradesh High Court in
Mahendra Kumar Dubey (supra) has been affirmed by Hon’ble
the Apex Court in Mahendra Kumar Dubey Vs. Economic
Offences Wing, Unit Gwalior; Special Leave petition
Criminal Diary No.28462/2022, Special Leave to Appeal Crl.
No.9503/2022 (decided on 10.10.2022). The Hon’ble Apex Court
while affirming order dated 28.10.2021 of Madhya Pradesh High
Court, observed and held as under:-
“Delay condoned.
Having heard learned counsel appearing on behalf of the
petitioner at length and having gone through the
impugned judgment and order passed by the High Court
and even considering the amended Section 19 of the
Prevention of the Corruption Act, 1988 and the
explanation to amended Section 19, upon which the
reliance is placed, we see no reason to interfere with the
impugned judgment and order passed by the High Court.
The Special Leave Petition stands dismissed. However, all
the contentions which may be available to the petitioner
may be considered at the time of trial and shall be dealt
with and considered in accordance with law and on their
own merits. Pending application(s) shall stand disposed
of.”
42. To reach to a conclusion that the amended provision of
Section 19 of the PC Act would have a retrospective effect, this
Court also places reliance upon the Apex Court judgment in
Ramesh Kumar Soni Vs. State of Madhya Pradesh; (2013)
14 SCC 696 wherein the Hon’ble Apex Court specifically held that
(Downloaded on 20/06/2025 at 11:02:37 PM)
[2025:RJ-JD:26628] (31 of 38) [CRLR-28/2022]
a case must be deemed to be instituted only when the Court
competent to take cognizance of the offence alleged therein, does
so. Meaning thereby, after the amended Act/provision having
come into effect, the amended act/provision would be applicable
even on the cases which had not been instituted till the said date
i.e. of which the cognizance had not been taken till the date of the
amended provision having come into effect. The Hon’ble Apex
Court therein observed as under:-
“7.3. The Code of Criminal Procedure does not, however,
provide any definition of “institution of a case”. It is,
however, trite that a case must be deemed to be
instituted only when the court competent to take
cognizance of the offence alleged therein does so.
The cognizance can, in turn, be taken by a Magistrate on
a complaint of facts filed before him which constitute
such an offence. It may also be taken if a police report is
filed before the Magistrate in writing of such facts as
would constitute an offence. The Magistrate may also
take cognizance of an offence on the basis of his
knowledge or suspicion upon receipt of the information
from any person other than a police officer. In the case of
the Sessions Court, such cognizance is taken on
commitment to it by a Magistrate duly empowered in that
behalf. All this implies that the case is instituted in
the Magistrate’s court when the Magistrate takes
cognizance of an offence, in which event the case is
one instituted on a complaint or a police report. The
decision of this Court in Jamuna Singh V. Bhadai Shah,
clearly explains the legal position in this regard.
7.4. To the same effect is the decision of this Court in
Devarapalli Lakshminarayana Reddy v. V. Narayana
Reddy (SCC p.257, para 14) where this Court held that a
case can be said to be instituted in a court only when the
court takes cognizance of the offence alleged therein and
that cognizance can be taken in the manner set out in
clauses (a) to (c) of Section 190(1) Cr.P.C. We may also
refer to the decision of this Court in Kamlapati Trivedi v.
State of W.B. where this Court interpreted the provisions
of Section 190 CrPC and reiterated the legal position set
out in the earlier decisions.
(Downloaded on 20/06/2025 at 11:02:37 PM)
[2025:RJ-JD:26628] (32 of 38) [CRLR-28/2022]
8. Applying the test judicially recognized in the above
pronouncements to the case at hand, we have no
hesitation in holding that no case was pending before the
Magistrate against the appellant as on the date the
Amendment Act came into force. That being so, the
Magistrate on receipt of a charge-sheet which was
tantamount to institution of a case against the appellant
was duty bound to commit the case to the Sessions as
three of the offences with which he was charged were
triable only by the Court of Sessions. The case having
been instituted after the Amendment Act had taken
effect, there was no need to look for any provision
in the Amendment Act for determining whether the
amendment was applicable even to pending
matters as on the date of the amendment no case
had been instituted against the appellant nor was it
pending before any Court to necessitate a search
for any such provision in the Amendment Act. The
Sessions Judge as also the High Court were, in that view,
perfectly justified in holding that the order of committal
passed by the Magistrate was a legally valid order and
the appellant could be tried only by the Court of Sessions
to which the case stood committed.”
43. In view of the above settled position of law, what can be
concluded is that the date of commission of offence is not the
deciding factor for applicability of the amended provision of
Section 19 of the PC Act but it is the date of taking cognizance of
the offence which would be the deciding factor.
44. From the overall analysis of the above issues, this Court
concludes as under:
(i) No cognizance against a public servant of an offence under
Section 13 of the PC Act could have been taken in absence of a
valid prosecution sanction.
(ii) A valid prosecution sanction was essential even qua a retired
public servant if cognizance of any offence under Section 13 of the
PC Act was to be taken by the learned Special Judge.
(Downloaded on 20/06/2025 at 11:02:37 PM)
[2025:RJ-JD:26628] (33 of 38) [CRLR-28/2022]
(iii) It is the date of taking of cognizance of an offence which
would decide the applicability of amended provision of Section 19
of the PC Act and not the date of commission of offence.
45. In the present matter, the cognizance of offence under
Section 13(2) r.w. Section 13(1)(d) of the PC Act had been taken
by the learned Special Judge vide order impugned dated
15.09.2020 which clearly is subsequent to 26.07.2018 i.e. the
date from which the amended provision of Section 19 of the PC
Act came into effect. In the specific opinion of this Court, the
learned Special Judge was under an obligation to keep into
consideration the amended provision of Section 19 of the PC Act.
The same having not been done, the finding of the learned Special
Judge to the effect that the offence been committed prior to
26.07.2018 no prosecution sanction was essential, being contrary
to the settled position of law, deserves to be and is hereby set
aside.
46. Consequently, the order of taking cognizance of offence
under Sections 13(2) r.w. 13(1)(d) of the PC Act against Mr.
Pradeep Baijal and Mr. Arun Shourie being contrary to the settled
position of law deserves to be and is hereby quashed and set
aside.
47. The very next issue which now arise is – Whether cognizance
of offence under Section 120B r.w. Section 420, IPC could also
have been taken by the learned Special Judge against the retired
public servants without a valid prosecution sanction in terms of
Section 197, Cr.P.C.?
(Downloaded on 20/06/2025 at 11:02:37 PM)
[2025:RJ-JD:26628] (34 of 38) [CRLR-28/2022]
48. This Court is not required to delve much into the above issue
in view of the analysis already made in the preceding paras while
dealing with the issue of prosecution sanction in terms of Section
19 of the PC Act. The ratio remains the same. The Hon’ble Apex
Court while dealing with a similar situation in R. Balakrishna
Pillai Vs. State of Kerala and Another ; (1996) 1 SCC 478
observed and held as under:-
“7. In the present case, the appellant is charged with
having entered into a criminal conspiracy with the co-
accused while functioning as a Minister. The criminal
conspiracy alleged is that he sold electricity to an
industry in the State of Karnataka ‘without the consent
of the Government of Kerala which is an illegal act’
under the provisions of the Electricity (Supply) Act,
1948 and the Kerala Electricity Board Rules framed
thereunder. The allegation is that he in pursuance of
the said alleged conspiracy abused his official position
and illegally sold certain units to the private industry in
Bangalore (Karnataka) which profited the private
industry to the tune of Rs.19,58,630.40 or more and it
is, therefore, obvious that the criminal conspiracy
alleged against the appellant is that while functioning as
the Minister for Electricity he without the consent of the
Government of Kerala supplied certain units of
electricity to a private industry in Karnataka.
Obviously, he did this in the discharge of his
duties as a Minister. The allegation is that it was an
illegal act inasmuch as the consent of the Government
of Kerala was not obtained before this arrangement was
entered into and the supply was effected. For that
reason, it is said that he had committed an illegality
and hence he was liable to be punished for criminal
conspiracy under Section 120-B, I.P.C. It is,
therefore, clear from the charge that the act
alleged is directly and reasonably connected with
his official duty as a Minister and would,
therefore, attract the protection of Section 197(1)
of the Act.”
(Downloaded on 20/06/2025 at 11:02:37 PM)
[2025:RJ-JD:26628] (35 of 38) [CRLR-28/2022]
49. The allegations against the retired public servants in the
present matter too are almost akin as in R. Balakrishna Pillai’s
case. The acts alleged against Mr. Pradeep Baijal and Mr. Arun
Shourie are directly connected with their official duties as Minister/
public servant and hence, in view of the ratio laid down in
R. Balakrishna Pillai‘s case, it would definitely attract the
protection of Section 197(1),Cr.P.C.
50. The cognizance of offence under Sections 120-B r.w. 420,
IPC against Mr. Pradeep Baijal and Mr. Arun Shourie without a
valid prosecution sanction is therefore held to be bad and is
hereby quashed and set aside.
51. The order of taking cognizance against two of the petitioners
i.e. Mr. Pradeep Baijal and Mr. Arun Shourie having been set aside,
the issue now would be whether the order taking cognizance
against the other petitioners can be sustained?
52. Section 3 of the PC Act empowers the Special Judge to try
any offence punishable under the said Act. Section 4(3) of the PC
Act further empowers the Special Judge to try any offence other
than an offence specified in Section 3. Meaning thereby, the
Special Judge can try not only an offence punishable under the PC
Act but also any other offence qua which the accused can be
charged at the same trial.
53. Evidently, in the present matter, cognizance has been taken
by the learned Special Judge of offences under Section 13(2) r.w.
Section 13(1)(d) of the PC Act so also under Section 120-B r.w.
Section 420, IPC. Section 13 of the PC Act pertains to the offence
of criminal misconduct by a public servant.
(Downloaded on 20/06/2025 at 11:02:37 PM)
[2025:RJ-JD:26628] (36 of 38) [CRLR-28/2022]
54. Once the order of taking cognizance against the public
servant has been quashed by this Court, evidently the other
petitioners/accused who are/were not the public servants cannot
be tried by the Special Judge under the PC Act. True it is that the
other petitioners can be tried for the offences under Section 120-B
r.w. Section 420, IPC but then, they cannot be tried for the said
offences by the Special Judge while exercising jurisdiction under
the PC Act. The private respondents/petitioners namely Mr. Ashish
Guha, Mr. Kantilal Vikamsey and Smt. Jyotsana Suri not being the
public servants and the order of taking cognizance under Section
13 of the PC Act having been set aside qua the two retired public
servants, the cognizance of offence under Section 120-B r.w.
Section 420, IPC by the Special Judge cannot be sustained against
them being without jurisdiction. The above petitioners can at the
best be tried by a competent Criminal Court for the offences under
IPC but the CBI Court can definitely have no jurisdiction to try
them for any of the offences under IPC after the order of
cognizance against the public servants qua the offences under the
PC Act having been set aside.
55. In view of the above analysis, the order taking cognizance by
the learned Special Judge against Mr. Ashish Guha, Mr. Kantilal
Vikamsey and Smt. Jyotsana Suri being in excess of jurisction, is
hereby quashed and set aside.
56. In view of the above conclusions, this Court is not required
to delve into the issue whether an offence under Section 120-B
r.w. Section 420, IPC was made out against the petitioners or not.
This Court is also not required to delve into the issue whether the
(Downloaded on 20/06/2025 at 11:02:37 PM)
[2025:RJ-JD:26628] (37 of 38) [CRLR-28/2022]
decision of the competent authority as to which method of
valuation is to be adopted, is a subject of judicial review or not. As
this Court has quashed the orders of taking cognizance against all
the petitioners for the reasons as detailed out in the preceding
paras, the two issues aforesaid does not require any consideration
by this Court and are left open to be considered and decided if the
CBI proposes to file a fresh charge-sheet against Mr. Pradeep
Baijal and Mr. Arun Shourie after procuring valid prosecution
sanction or against the other petitioners before a competent
Criminal Court.
57. In view of the above overall analysis and observations,
Criminal Revision Petitions No.28/2022, 663/2020, 665/2020 &
667/2020 so also Criminal Misc. Petition No.2993/2020 are hereby
allowed. Criminal Revision Petition No.669/2020 is disposed of
as having rendered infructuous. Orders impugned dated
13.08.2019 & 15.09.2020 passed by the learned Special Judge,
CBI, Jodhpur are hereby quashed and set aside. Petitioners Mr.
Pradeep Baijal and Mr. Arun Shourie are discharged of offences
under Sections 13(2) r.w. Section 13(1)(d) of the PC Act and
under Section 120-B r.w. Section 420, IPC for want of valid
prosecution sanction. Petitioners Mr. Ashish Guha and Smt.
Jyotsana Suri are discharged of offences under Sections 120-B r.w.
Section 420, IPC and under Section 13(2) r.w. Section 13(1)(d) of
the PC Act for lack of jurisdiction.
58. However, the CBI shall be at liberty to file a fresh charge-
sheet against Mr. Pradeep Baijal and Mr. Arun Shourie after
obtaining valid prosecution sanction and against Mr. Ashish Guha
(Downloaded on 20/06/2025 at 11:02:37 PM)
[2025:RJ-JD:26628] (38 of 38) [CRLR-28/2022]
and Smt. Jyotsana Suri before the competent Criminal Court in
terms of law.
59. Pending applications, if any, also stand disposed of.
(REKHA BORANA),J
Vij/praveen/-
(Downloaded on 20/06/2025 at 11:02:37 PM)
Powered by TCPDF (www.tcpdf.org)