The Delhi High Court has held in Rakesh Asthana's case that seeking extension of the time set by Court for investigation will not amount to review so as to attract bar under Section 362 of the Code of Criminal Procedure 1973.
While dismissing Asthana's petition to quash the FIR registered against him, the High Court on January 11 had directed the CBI to complete the investigation within 10 weeks.
Since the investigation could not be completed in the time frame given, CBI filed application seeking extension of time to complete the investigation.
This was opposed by counsel of Asthana and other accused on the ground that the extension applications were in effect seeking review of the January 11 judgment. Since review of orders passed in criminal jurisdiction is barred as per Section 362 of CrPC, the applications are not maintainable, they contended.
CBI on the other hand contended that by the present applications, they were not seeking review of the order dated 11th January, 2019 but were seeking permission to give effect to the judgment. Reliance was placed on the Constitution Bench decision in Shivdev Singh & Ors. Vs. State of Punjab & Ors. AIR 1963 SC 1909 where the Supreme Court held that there is nothing in Article 226 of the Constitution to preclude the High Court for exercising power of review which inheres in every Court of plenary jurisdiction to prevent miscarriage of justice or to correct grave and palpable errors committed by it. It was further contended that in the present case no error is being sought to be rectified and only to give effect to the judgment that a proper investigation is carried out further time is required which extension of time is being sought by the CBI.
Justice Mukta Gupta, the single judge who heard the matter, found the applications by CBI to be maintainable.
"the respondent CBI is neither seeking review nor recall of the earlier order but seeking further time to conclude the investigation thereby giving effect to the order dated 11 th January, 2019 passed by this Court", observed Justice Gupta.
The applications were allowed, granting four more months to complete investigation.
The FIR was registered against Asthana, former CBI Special Director and Devender Kumar, CBI DySP on allegation of taking Rs. 3 crores in bribe from businessman Sathish Babu Sana to sabotage a money laundering investigation against meat exporter Moin Qureshi.
They had sought quashing of the FIR primarily on the ground that prior sanction, which was required for even investigation of offences against public servants as per the newly inserted Section 17A of the Prevention of Corruption Act, was not taken before registration of the FIR.
Rejecting this argument, Justice Najmi Waziri held that when the act of a public servant is ex-facie criminal or constitutes an offence, prior approval of the Government as mandated under Section 17A of Prevention of Corruption Act would not be necessary.
The order may be read here.