Delhi High Court Dismisses Plea Seeking Action Against Former Director Prosecution, Says Transfer Orders Won't Attract Criminal Consequences

The Delhi High Court has observed that the competent authority's decision to order transfers and postings of employees would not attract criminal consequences under the Indian Penal Code.

"The transfers and postings even if thought to be arbitrary by the Competent Authority would not attract criminal consequences under Sections 166, 405 or Section 409 of IPC. An arbitrary act may not necessarily amount to a criminal offence punishable under Indian Penal Code," said the court.

Justice Swarana Kanta Sharma made the observations in her judgment upholding the orders passed by an Additional Sessions Judge and Metropolitan Magistrate in a complaint case filed by Brij Mohan Sehgal, a Public Prosecutor in Delhi's Directorate of Prosecution against former Director of Prosecution, Pankaj Sanghi.

"The criminal offences and criminal acts defined under the IPC or any other law are those offences for which a person can be held liable whether it be an act or an omission. A person can be held guilty or liable to punishment in accordance with the law as per the definition of offences described under IPC or any other law in force," the court said.

Sehgal had filed a complaint case in 2019 alleging that Sanghi had illegally transferred and posted Public Prosecutors in violation of Section 24 and 25 of Cr.P.C. thereby adversely impacting delivery of justice due to their shortage. It was argued that the courts had to adjourn matters including discharging victims and witnesses in rape cases since no public prosecutor was posted in their court.

Stating Sanghi was responsible for financial decisions and overall administrative control over public prosecutors in the national capital, the complaint also accused him of having illegally purchased biometric machines in violation of Rule 4 of Delegation of Financial Power Rules, 1978 (stating that no expenditure shall be incurred except on legitimate objects) and Rule 149 of the General Financial Rules 2017 (calls for detailed assessment before any procurement).

It was Sehgal's case that as per RTI replies received by him in November 2018 from Delhi Government's Directorate of Prosecution, it was revealed that two Public Prosecutors were transferred to special investigation team, one to Delhi Commission for Women, four to GNCTD's Home Department, two to Chief Minister Grievance Redressal Cell and three to Delhi Law Ministry.

It was argued that since a manual system of registering attendance was already being maintained for public prosecutors, there was no necessity to replace the same with "Aadhar Enabled Biometric Attendance System‟ procured by the Directorate of Prosecution.

Sehgal also argued that the ASJ committed an error by not ordering an enquiry or investigation to examine the alleged illegal procurement of biometric system for a consideration of Rs.1,19,283.96 from an entity namely M/s. Coraamandal Electronics Pvt. Ltd.

On the other hand, Sanghi argued that the complaint case was filed on "account of some official dispute between" him and Sehgal. The court was told the son and daughter-in-law of the complainant had a matrimonial dispute; since the woman, who was also an Assistant Public Prosecutor in the department, had filed a complaint against her husband and in-laws, there was a departmental enquiry. Sanghi also argued that the "false complaint" against him was filed as Sehgal's son, who also was an Additional Public Prosecutor, was transferred to Police Training College Zharodkalan by him.

Dismissing the plea, Justice Sharma rejected Sehgal's argument that the transfers or postings will call for criminal culpability under section 405 of IPC which deals with breach of trust. The court said the transfers are related to administrative work and discharge of official duty of an office in the ordinary course of work.

"The offence under Section 405 IPC is an offence against property. Public Prosecutors under the Directorate of Prosecutions cannot be interpreted or be construed to be "property" entrusted in the domain of Directorate of Prosecution," the court said.

It added: "The learned Trial Court has rightly observed that the allegations are far-fetched, being ludicrous in themselves. The transfers and postings even if thought to be arbitrary by the Competent Authority would not attract criminal consequences under Sections 166, 405 or Section 409 of IPC."

The court thus upheld the trial court's finding that there was no criminal offence made out in transfers and postings of the Public Prosecutors to various departments of the Delhi Government as they were made as per directions of the Competent Authority.

On the contention of allegedly arbitrary procurement of "Aadhar Enabled Biometric Attendance System" for marking attendance of the Public Prosecutors causing pecuniary loss to the Directorate of Prosecution, the court said that Sehgal failed to point out financial irregularities in the procurement process to constitute an offence under Sections 405 and 409 of IPC wherein financial irregularity is the basic ingredient.

"The decision to procure the Biometric machines might have been a questionable policy decision and might have been unnecessary to an extent, however, such a policy decision cannot attract or constitute a criminal offence. The propriety of any administrative decision, and its implementation in the discharge of official functions by the Competent Authority cannot be assessed or looked into by a criminal court by taking cognizance for commission of offences alleged under sections 405, 409 IPC and under Section 200 Cr.P.C without there being allegations of financial irregularities, actual pecuniary loss or illegal gain," the court observed.

It added: "A mere imaginary loss cannot constitute an offence under Sections 405 and 409 IPC, neither can it be termed as a financial irregularity. In case, it is held so, it will become very difficult for any administrative authority to have administrative control or take decision in discharge of its official duties."

Title: BRIJ MOHAN SEHGAL v. PANKAJ SANGHI

Citation: 2022 LiveLaw (Del) 1033

Click Here To Read Order