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Synopsis

The Delhi High Court, dismissed the plea of Swati Maliwal, an Aam Aadmi Party’s Rajya Sabha MP, against formal framing of chargers by the Trial Court. The court agreed with the observations of the trial court, noting that there was sufficient material to prima facie establish her guilt for irregular appointments.  

“The allegations are serious in nature and revolve around alleged nepotism by the accused persons to promote appointments of people known to them and associated with AAP”, the bench of Justice Amit Mahajan held. 

The court further noted, “persons who have been appointed without due process and proper assessment against non-existent posts and are given renumeration (pecuniary advantage), prima facie, satisfies the ingredients of Section 13(1)(d)(ii) of the PC Act and attracts grave suspicion against the accused persons”. 

In August 2016, the Anti-Corruption Bureau received an undated complaint from Barkha Shukla Singh, a former MLA, alleging that the Government had engaged in illegal practices by providing financial advantages through irregular appointments. Specifically, it was claimed that these appointments occurred in the Delhi Commission for Women (DCW) without following proper procedures, such as advertising vacancies or inviting applications.

A preliminary inquiry was conducted, and an FIR was registered on September 19, 2016, under the PC Act and the IPC. During the investigation, it was revealed that the DCW was reconstituted in July 2015, with Swati Maliwal as its Chairperson. It was found that 87 individuals were appointed between August 2015 and August 2016, against the sanctioned posts of 26. The investigation uncovered that these appointments violated established rules and regulations, including the General Financial Rules (GFR), and remuneration was disbursed without proper procedures.

The investigation also revealed that no advertisements, apart from one for legal counselors, were published for recruitment, and even those legal counselors were appointed before the advertisement was issued. The prosecution argued that the appointments lacked transparency, were made without due consideration of qualifications, and salaries were arbitrarily enhanced, resulting in a misuse of public funds.

Senior Advocate Rebecca John, representing Swati Maliwal, argued that the Trial Court had wrongly charged Maliwal, as the alleged offences were not substantiated. It was emphasized that ‘dishonest intention’ was crucial for an offence under Section 13(1)(d) of the PC Act. 

Senior Advocate John emphasized that neither the chargesheet nor the impugned order clearly identified any violated rules, regulations, or guidelines, and the GFR rules were not part of the charge sheet. Regarding the release of ₹6.76 crores to the DCW, Senior Advocate John argued that the DCW had no control over the fund release process, and if any violations occurred, they were on the part of the Delhi government, not the DCW.

Additional Standing Counsels Rupali Bandhopadhya and Sanjeev Bhandari, for the State, contended that Maliwal had arbitrarily appointed individuals associated with the AAP or known to her, benefiting those appointees.

ASC argued that Maliwal had abused her official position by appointing 87 individuals, exceeding the sanctioned posts of 26. They noted that while Swati Maliwal claimed 90 appointments were made, records were found for only 87. They argued that the appointments violated rules, and no record was provided regarding the increase in staff.

Additionally, ASC highlighted that ₹6.76 crores were released to DCW in a lump sum, contrary to guidelines, suggesting that the funds were hurriedly obtained to benefit AAP associates. They argued that this conduct showed a lack of transparency and fairness in the appointments.

“It is trite law that the Trial Court, while framing charges under Section 228 of the CrPC, is not required to conduct a mini trial and has to merely weigh the material on record to ascertain whether the ingredients constituting the alleged offence are prima facie made out against the accused persons”, the court first remarked.

Before addressing the facts of the case, the court highlighted that the established law limits the scope of interference by High Courts during revisional jurisdiction, which should be exercised sparingly to avoid unnecessary disruption to the trial process. 

The court noted the trial court’s order that extensively addressed the irregularities in the appointment process, highlighting the lack of transparency and failure to advertise the positions. These appointments were made without proper advertisement, which indicated nepotism. The posts were created despite no vacancies, and their resumes were approved swiftly without proper verification, including Bhupinder Singh’s appointment without submission of academic certificates.

The appointment of Chand Ram as a Data Entry Operator was also scrutinized, as it was unclear how he applied or why others were excluded. Furthermore, the approval of staff extensions, including Prem Sagar Pal’s delayed appointment, was noted. “It was noted that the manner of appointment coupled with the increase in their renumeration to almost double the initial amount creates a strong suspicion to frame charge under Section 13 (1) (d) of the PC Act”, the court observed. 

The appointment of Mr. P.P. Dhal as Member Secretary was discussed, where his initially pro bono role quickly became remunerated, indicating a violation of the DCW Act and signs of nepotism.

The court noted that the IT Department confirmed that advertisements for legal counselor posts were issued after the appointments were already made. This raised concerns regarding the selection process, as the public was not given an opportunity to apply, fostering suspicion of favoritism.

“The learned Trial Court has rightly noted that the opaque manner of appointment along with the prior association of a number of candidates with AAP and petitioner Swati creates sufficient suspicion to frame charges”, the court highlighted. 

Furthermore, the court noted that liability under Section 13(1)(d)(ii) of the PC Act arises when a public servant abuses their position to obtain any valuable item or pecuniary advantage, either for themselves or for another person. A public servant could still be liable if they caused wrongful loss to the government by favoring a third party, including individuals associated with a particular group or political party.

The court, referring to the facts of the case, noted that the allegations centered on nepotism, where Maliwal was accused of appointing individuals known to them or associated with the AAP to favorable positions. “The very fact that admittedly appointments have been made and there is material in the chargesheet that persons who have been appointed without due process and proper assessment against non-existent posts and are given renumeration (pecuniary advantage), prima facie, satisfies the ingredients of Section 13(1)(d)(ii) of the PC Act and attracts grave suspicion against the accused persons”, the court held. 

The court accepted the trial court’s reasoning to reject Maliwal’s claims that no criminal conspiracy existed, as the decisions related to the creation of posts, appointments, and salary increases were made unanimously. None of the accused objected to these decisions. 

“The learned Trial Court after a detailed reasoned order had come to a prima facie conclusion that there was sufficient material to proceed to charge the accused”, the court concluded. Accordingly, the court dismissed the petition and upheld the impugned order. 

Case Title: Swati Maliwal v State (2024:DHC:7258)