HC refuses to quash FIR against CBI Special Director Rakesh Asthana

New Delhi: In a big setback to CBI Special Director Rakesh Asthana, the Delhi High Court Friday refused to quash the FIR lodged against him on bribery allegations and set a 10-week deadline to complete the investigation.

The court said the allegations against Asthana "cannot be conclusively ruled out" at this stage and vacated its interim order that granted the CBI's No. 2 protection against criminal proceedings which in effect meant there is no bar on his arrest.

Justice Najmi Waziri held that permission for prior sanction from central government to prosecute public servant, Asthana, under Section 17 A of the Prevention of Corruption Act was not required considering the facts of the case.

"A public servant cannot be possibly left to be under the constant apprehension that bona fide decisions taken by him/her would be open to enquiry or inquiry or investigation, on the whimsical complaint of a stranger.

"Section 17A as it reads and the legislative intent in its enactment can only be to protect public servants in the bona fide discharge of official functions or duties. However, when the act of a public servant is ex-facie criminal or constitutes an offence, prior approval of the Government would not be necessary," the court said in the judgement.

Asthana is likely to challenge the high court verdict before the Supreme Court.

The court also refused to quash the FIR lodged against CBI Deputy Superintendent Devender Kumar and alleged middleman Manoj Prasad.

It further said that the allegation of "mala fide" of the then CBI Director Alok Verma has not been made out.

Verma and Asthana were at loggerheads for several months and had levelled charges of corruption against each other. Both of them were divested of their charge and sent on leave on the night of October 23.

Verma was ousted as CBI director by a 3-member high powered committee headed by Prime Minister Narendra Modi in a 2-1 decision Thursday.

The high court gave its verdict Friday while dismissing the petitions filed by Asthana, Kumar and Prasad challenging the FIR lodged against them. Asthana was booked on allegations of criminal conspiracy, corruption and criminal misconduct under the relevant sections of Prevention of Corruption Act.

Hyderabad-based businessman Sana, on whose complaint the FIR against Asthana and others was lodged, had alleged having paid bribe to get relief in a case.

The court said 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.

"The petitions are dismissed. The interim order dated October 23, 2018 stands vacated. In the interest of justice, the investigations must come to an end as soon as practicable. In the circumstances, the CBI is directed to conclude the investigations in ten weeks from today," the court said.

Asthana and Kumar's grievance was that they are senior officers and their integrity cannot be doubted and that they are also a part of the SIT of the CBI and Sana's complaint and the FIR was only to interfere with the investigation in another case.

To this, the court said the law is otherwise and it does not entertain "personalities" and treats all "equally".

"India is country governed by the Rule of Law. An immutable principle of equality is: 'Be you ever so high, the law is above you'. We must constantly remind ourselves of the said principle in the administration of justice," it said.

The court said the law presumes a person to be innocent till proven guilty and the persons concerned would have to bear with the process of law.

"However, it is desirable that the process must come to a conclusion expeditiously. The fair name of a public servant is perhaps his/her most cherished possession and would be guarded most fiercely. Such reputation precedes the social and official interaction of the public servant. It is more than a calling card," it said.

It said whether Asthana and Kumar were at all involved in the offence would be known only after a thorough inquiry by the probe agency.

"No doubt, registration of the FIR and the investigation would be a cause for much concern, stress and embarrassment for any honest public servant and others related to him. Nevertheless, where a cognisable offence is made out, the law must take its course.

"For the sake of public servant and indeed for all concerned, it is best that the investigations are conducted expeditiously and the integrity of the public servant which comes under a cloud because of the investigation is either restored or determined as per law," the court said.

It rejected the contention that the FIR was ante-dated and there was a delay in uploading the FIR on the CBI website.

"The CBI considers the case to be of a sensitive nature, hence it chose not to upload it and supplied a copy of the same to the trial court on October 17,2018," it said.

Sana had also made allegations of corruption, extortion, high-handedness and serious malpractice against Asthana.

Kumar, earlier the investigating officer in a case involving meat exporter Moin Qureshi, was arrested on the allegations of forgery in recording the statement of Sana who had alleged having paid bribe to get relief in the case. He was arrested on October 22 and granted bail on October 31.

Prasad was arrested on October 17, 2018 and he was granted bail on December 18 as the CBI could not file the charge sheet against in the case in the mandatory 60 days.