DCP Akbar Pathan has filed an additional affidavit in the Bombay High Court stating that he has been made “victim of state malice” while seeking quashing of the First Information Report (FIR) filed against him at Marine Drive police station in an alleged corruption case.
Builder Shyamsunder Agarwal lodged an FIR at Marine Drive police station on July 21 against two other builders and six police officers, including Pathan and former Mumbai Police Commissioner Parambir Singh, who were probing Agarwal’s alleged nexus with the underworld. According to Agarwal, Pathan demanded Rs 50 lakh and a 2BHK flat at Bhayander for not invoking Maharashtra Control of Organised Crime Act (MCOCA) against him.
Niteen Pradhan, counsel for Pathan, claimed that Pathan has been falsely booked in the case. Besides, the state government deliberately avoided invoking the Prevention of Corruption Act (PC Act) in the alleged case, since it requires mandatory preliminary inquiry, which was not done in this case. Sections 17, 17A and 19 of the PC Act clearly treat public servants as a special class, different from common man, in order to protect them (public servants) from frivolous complaints filed by litigants with ulterior motives.
“State’s act of filing the FIR against the Petitioner (Pathan) being a Public Servant without any preliminary inquiry (as mandated by law) on a complaint received from the First Informant (Agarwal), who has personal grudge against the Petitioner and has criminal antecedents clearly goes to show that the State functionaries have not acted diligently and fairly and, therefore, I am victim of malice in law,” Pathan has claimed in the affidavit.
The offence of criminal extortion under the Indian Penal Code, which is a general law, can be registered against a private person, since this offence is not committed under the guise of public service and not under the duties and power assigned thereto.
His affidavit further states that when a public servant allegedly commits extortion under the cloak of power and duty assigned to him, he is misusing his authority. Hence, the public servant has to be booked under the PC Act, and not IPC.
Admittedly, Pathan is a public servant and the alleged actions do not fall within the definition of ‘extortion’ as defined under Section 383 of IPC. “The State action of deliberately registering the offence under the various provisions of Indian Penal Code and not registering the offence under the Prevention of Corruption Act, is without lawful excuse and to avoid Preliminary Enquiry, as contemplated as a safeguard under Section 17A Prevention of Corruption Act, 1988,” reads the affidavit.
Seeking quashing of the FIR, Pathan states: “The said State action is vitiated by malice in law and the entire FIR filed with oblique objective and a deliberate act, in disregard to the Petitioner’s right as a public servant and, therefore, it needs to be quashed and set aside for this reason alone.”
HC has protected Pathan from being arrested in the case till the next date of hearing on September 24.
