Order 37

Order Details: COPY OF ORDER
Pdf Text: IA No. 02/2025 CBI No.102/2024
CBI Vs. Vikas Rathi
PS CBI/ACB/New Delhi
CNR No.DLCT11-000673-2024
15.01.2026
ORDER
Present: Sh. Surendra Singh, Ld. PP for CBI.
Accused Vikas Rathi in person.
Sh. Sandeep Sharma alongwith Sh. Sachin Baisla, Ld
counsel for accused Vikas Rathi.
1. Vide the present order, I shall dispose of an
application filed on behalf of accused Vikas Rathi for discharge/
dropping of proceedings qua him u/s 19 Prevention of Corruption
Act, 1988 (hereinafter referred as to PC Act) on the ground of
invalidity of sanction.
2. In the application, it is stated that accused Vikas
Rathi was working at the rank of Head Constable on the date of
registration of the present case and that he was appointed at the post
of Head Constable (Functional Rank) by the order of Commissioner
of Delhi Police. It is further stated that the said fact was also
admitted by the sanctioning authority and that on 07.04.2025,
PW-1/Surendra Choudhary that is the Authority that gave sanction
for prosecution qua the said accused, also deposed that the accused
was granted the post of Head Constable (Functional Rank) by the
Commissioner of Police, Delhi. Ld counsel for the accused has
submitted that in Delhi, only Commissioner of Police can promote a
Constable to the rank of Head Constable.
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3. During the course of arguments, Ld counsel for the
accused had relied upon section 19 of PC Act and had argued that as
per the said provision, sanction for prosecution of accused must be
granted by the person competent to remove the public servant from
his office and that the said provision cannot be read in isolation and
has to be read in conjunction with Article 311 of the Constitution
of India. It had further been argued that as per Article 311 of the
Constitution of India, no government servant can be dismissed or
removed by any authority subordinate to that, by which he was
appointed and in the present case, the accused had been promoted
and appointed to the post of Head Constable vide order of
Commissioner of Police, whereas the sanction for prosecution of
accused Vikas Rathi had been obtained from DCP, who is much
subordinate in rank to the Commissioner of Police. It has further
been argued that even the provision of section 21 of Delhi Police
Act is subject to the provision of Article 311 of the Constitution of
India. It has, thus, been urged that the sanction granted in the
present matter to prosecute the accused is invalid.
4. It has also been stated that the objection qua the
validity of sanction can be raised at any stage of trial, Ld counsel for
the accused has relied upon the judgment of Hon’ble Supreme
Court of India titled “Nanjappa Vs. State of Karnataka (2015) 14
SCC in that respect.
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5. Ld counsel for accused has also relied upon
following judgments :
(a) Krishna Kumar Vs Divisional Assistant
Electrical Engineer & Ors (1979) 4 SCC 289.
(b) State Inspector of Police Visakhapatnam Vs
Surya Sankaram Karri 2006 (4) RCR (Criminal)
53 SC.
(c) Ashok Rangshali Vs State of MP 1996 (2)
Crimes 39.
(d) Omkar Chand Parashar Vs The State 1994 (3)
CC Cases 38 (Delhi HC).
(e) Indian Law Reports (1974) II 400 (DHC-DB);
Davinder Singh Vs State.
(f) Gopalbhai Mohanbhai Nagoda Vs. State of
Gujarat IV (1993) CCR 3288 (DB) GHC.
6. It is, therefore, prayed that the proceedings qua
accused Vikas Rathi be dropped and he be discharged for want of
valid sanction.
7. CBI has objected to the present application and has
chosen to file reply to the same. In it’s reply, CBI has stated that
accused Vikas Rathi was appointed as Constable vide offer of
appointment dated 31.12.2009 issued by the office of DCP,
recruitment cell, Delhi. It is further stated that he had been
promoted to the Functional Rank of Head Constable vide order
dated 10.06.2022 issued by DCP/HQ-IV, office of Commissioner
of Police, Delhi. It is further stated on behalf of CBI that sanction
for prosecution of accused Vikas Rathi was granted by the
competent authority i.e. DCP and that the same is valid in the eyes
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of law as DCP is competent to award any punishment to a police
officer of the rank of HC, including removal from service, as per
section 21 of Delhi Police Act 1978.
8. It is further stated that the order dated 10.06.2022
vide which functional rank had been assigned to the accused
expressly mentioned that the same does not constitute ‘substantive
promotion’ and the same is temporary, without change in pay scale
and cannot alter the chain of command for removal.
9. It is, therefore, prayed that the sanction to prosecute
the accused granted by the DCP is valid.
10. Heard. Record Perused.
10.1 In respect of the stage of proceedings, when the
question of validity of sanction can be raised, it has been held in
Nanjappa Vs. State of Karnataka (2015) 14 SCC passed by
Hon’ble Supreme Court of India that :
“22. The statute forbids taking of cognizance by
the court against a public servant except with
the previous sanction of an authority competent
to grant such sanction in terms of clause (a), (b)
and (c) to Section 19(1). The question regarding
validity of such sanction can be raised at any
stage of the proceedings .”
10.2 Thus, the contention raised on behalf of Ld counsel fo
accused has merit and the said objection qua the validity of sanction
can be raised at this stage as well.
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11. In respect of the question regarding the validity of
sanction, perusal of the record shows that the accused had been
assigned ‘functional rank of Head Constable vide order of
Commissioner of Police, Delhi No. 15244-344/Promotion Cell
(Desk-IV)/P.Br./PHQ dated 10.06.2022. The name of accused
Vikas Rathi is mentioned at serial no. 4505 in the said order.
12. The said order is reproduced as under :
‘The Commissioner of Police, Delhi is pleased to
assign Functional Rank of Head Constable to the following
Constables in their respective cadre with immediate effect to cope
with emergent operational requirements of Delhi Police and in
the interest of Government work ’.
13. ‘ There will be no change in existing seniority
structure of any rank. The one who is granted Functional Rank
shall continue to be on the seniority list of his/her substantive rank
as before and will be considered for regular promotion on his/her
turn.’
14. ‘He/she has to perform duties and responsibilities of
the rank granted under this mechanism as well as that of his/her
substantive rank if required by superior officers.’
15. ‘He/she shall retain their belt/range No. of the
substantive rank.’
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16. Thus, from the said order of Commissioner of Police,
Delhi dated 10.06.2022, it is apparent that only for dealing with
operational requirement of Delhi Police, the said accused was
assigned Functional Rank of Head Constable, although, he
remained at his substantive rank of Constable and even his belt
number remained the same and pertained to his substantive rank. It
was only to meet the exigency of State duties that such an order had
been passed and was not meant to change the seniority structure.
17. The offer of appointment of the accused Vikas Rathi
issued by Office of DCP Recruitment Cell : Delhi dated 31.12.2009
has also been placed on record. The said appointment order was
also placed during the testimony of PW-3 WHC Asha dated
21.05.2025.
18. Ld counsel for accused had not disputed the said
document during the course of arguments and had conceded the
same. As per the said offer of appointment, accused Vikas Rathi
was appointed as Constable in Delhi Police under the Delhi Police
Act, 1978. The said appointment was made by the then DCP,
Recruitment Cell :Delhi. As per section 21 of the Delhi Police Act,
1978, DCP is the competent authority to even remove a police
officer of the rank of Head Constable.
19. It had been argued on behalf of the accused that the
sanction was not obtained from the competent authority and was in
fact obtained from a officer who was much lower in rank to the
competent authority i.e. DCP.
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20. It had also been argued on behalf of the accused that
Article 311 of Constitution is not only applicable to ‘permanent
members’ of the service but also is equally applicable to ‘temporary
post’ such as post of Head Constable in the present matter.
21. It is pertinent to mention that section 19 PC Act as well
as section 21 Delhi Police Act have to be read in harmonious
construction with Article 311 of the Constitution. Having said that,
in the present matter the submissions as made above on behalf of the
accused are erroneous and in fact, the sanction was itself given by the
‘competent authority’ which was DCP in the present matter, in terms
of Article 311 of the Constitution and not by the ‘promoting
authority’ which in this case was the Commissioner of Police.
22. Be that as it may, it is a trite law that Article 311 of the
Constitution is in fact applicable to even temporary posts and there is
no doubt that the said provision is even applicable in the present
matter. However, even Article 311 of the Constitution contemplates
that the government servant has to be removed only by ‘competent
authority’ by which was he was appointed. Article 311 of the
Constitution does not contemplate the said authority to be the
‘promoting authority’ and the provision relegates to the initial
appointment that was made by the competent authority.
23. In the peculiar circumstances of the present matter, the
accused was also promoted to the position of the Functional Rank as
an exigency. Having said that, he was appointed by the initial
authority, i.e. DCP whereby he was inducted into Delhi Police and not
by the order of Commissioner of Police.
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24. Therefore, re-conciling the said facts and the aforesaid
provisions, it can be culled out that although he was promoted (for
an exigency) by the order of Commissioner of Police ‘functionally’
to the rank of Head Constable, however, he was substantively
posted as Constable at the relevant time and his appointing
authority remained the same i.e. DCP.
25. Therefore, the contentions raised on behalf of the
accused are misconceived and erroneous and are contrary to
the provisions of Article 311 of the Constitution itself. Thus, the
sanction for prosecution was duly accorded by ‘competent
appointing authority’, who was also competent to remove him
in terms of section 19 PC Act r/w section 21 of Delhi Police Act,
1978 and as contemplated under Article 311 of Constitution.
In view thereof, the application is devoid of any
merits and is hereby dismissed.
Copy of order be given Dasti.
(Manisha Khurana Kakkar)
Special Judge (PC Act) (CBI)-06
RADC/ New Delhi/15.01.2026
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