Delhi HC Directs CBI To Maintain Status Quo On Proceedings Against Rakesh Asthana

The Delhi High Court Monday ordered the CBI to maintain status quo till November 1 on proceedings against its Special Director Rakesh Asthana, who was sent on leave by the government.

A bench of Justice Najmi Waziri questioned the Central Bureau of Investigation (CBI) for not filing reply to pleas of Asthana and another official Devender Kumar, Deputy Superintendent of Police, seeking quashing of FIR lodged against them.

CBI has lodged FIR against Asthana and Kumar in connection with bribery allegations.

The high court also directed the CBI to file reply on the two pleas on or before November 1.

The CBI prosecutor told the high court that delay in filing of reply occurred as the case files have been sent to Central Vigilance Commission (CVC) and sought more time for filing the response.

Kumar, earlier the investigating officer in a case involving meat exporter Moin Qureshi, was arrested on October 22 on the allegations of forgery in recording the statement of businessman Sathish Sana, who had alleged to have paid bribe to get relief in the case.

The high court had on October 23 directed the CBI to maintain status quo on the criminal proceedings initiated against its special director Asthana, who has challenged the FIR lodged against him on bribery allegations.

Background

The internal war within the premier investigative agency escalated last week, with the arrest of CBI DSP Devender Kumar, who, along with Mr. Asthana, has been accused of taking Rs. 3 crores in bribes from businessman Sathish Babu Sana.

Sana was being probed by an SIT led by Mr. Asthana for a suspicious transaction of Rs. 50 lakh with Moin Qureshi, a meat exporter accused in a money-laundering case. During its investigation, the SIT chanced upon evidence of alleged payment of bribe of Rs. 2 crore to Mr. Verma by Sana with the help of a Rajya Sabha member belonging to a regional party.

Mr. Asthana had then forward the allegations to CVC for enquiry. Further, on September 12, a proposal was rooted through the SIT for arrest and custodial interrogation of four persons, including Sana. This proposal was approved by Mr. Asthana on September 20, and was put up before Mr. Verma the same day for appropriate directions.

The petition now points out that “in complete departure from the practice and contrary to procedure prescribed by CBI (Crime) Manual, 2005”, Mr. Verma forwarded the file to the Director of Prosecution for his opinion, instead of noting his reasons for not approving the said proposal.

The proposal reached Mr. Asthana again on October 3. While reiterating the proposal for custodial interrogation, he had then asserted that the file may not be marked to the Director of Prosecution as investigation is at a crucial stage. The petition submits that since October 3, nothing has happened on the file.

On the contrary, a complaint was made by Sana, alleging that Mr. Asthana, through the IO of the case, demanded illegal gratification of Rs. 2 crore for protecting Sana in the investigation.

The petition now questions the intent behind the filing of the FIR, submitting, “The present Petition would disclose the shocking state of affairs and also reveal as to how the highest officer of the premier investigating agency of the Country is trying to falsely implicate the Petitioner, who is the second senior most officer of the Agency, in order to hide his own criminal misconduct of influencing investigations in exchange for money. The Petition would also disclose the clear illegalities committed at the hands of the Respondents.”

It, in fact, alleges that Mr. Verma is “misusing his position to achieve all illegal goals”, submitting, “In the background of the above facts, the present proceedings are not only a shocking portrayal of misuse of the authority which not only undermine the credibility of institution and morale of the force, but also illustrate that the Respondent No. 2 (Mr. Verma) is misusing his position to achieve all illegal goals.

The complainant is a person who is proposed to be arrested by the Petitioner and his Special Investigation Team, he is found to be involved in entering into a conspiracy for slowing down the investigation against him…Now, this person turns back and makes the SIT itself an accused. It is pertinent to note that the Officers of SIT are being prosecuted and this accused person is enjoying the freedom, liberty and protection from the highest officer of the Investigating agency.”

Mr. Asthana further contends that the FIR was registered in violation of Section 17A of the Prevention of Corruption Act, which requires prior sanction for investigating a serving officer. He points out that instead of obtaining sanction from the competent authority, an FIR was registered against him and the premises of the Investigating Officer were raided.

“If the basis used by CBI in registering the present case is adopted in general, then any two persons can register an FIR against any public servant only on the basis of SMS, WhatsApp messages, calls etc exchanged between them,” the petition asserts.

Furthermore, it submits that the FIR has been registered under Section 13(1)(d) of the Prevention of Corruption Act, 1988, which has been deleted through an amendment in July, 2018 and is no more an offence.

It goes on to pose several questions, such as lack of evidence of delivery of payment to Mr. Asthana or any public servant, and the filing of FIR after a complaint accusing Mr. Verma of the same charges. It alleges that the “bald and frivolous allegations of an accused… have been taken as gospel of truth by CBI against its own officers for ulterior motives without there being any material basis”.

Last week, the Alok Verma was divested of powers of CBI Director by the Central Government, acting on the recommendations of CVC following a complaint against him. The charge of Director was given to M Nageshwar Rao. The officers in the team investigating the case against Asthana were also transferred. Verma challenged the Government action before the Supreme Court. On October 26, the CJI led bench of SC directed the CVC to complete the enquiry against Verma within two weeks, under the supervision of retired SC judge Justice A K Patnaik. The SC also restrained Nageshwar Rao from taking any major or policy decisions, and permitted him to carry out only day to day routine functions. All decisions taken by Rao, including transfer and postings of officers, are to be examined by the SC.