R.P. Kapur & Ors Vs. Sardar Pratap
Singh Kairon & Ors [1960] INSC 184 (28 October 1960)
DAS, S.K.
HIDAYATULLAH, M.
GUPTA, K.C. DAS SHAH, J.C.
AYYANGAR, N. RAJAGOPALA
CITATION: 1961 AIR 1117 1961 SCR (2) 143
CITATOR INFO :
F 1980 SC 326 (12)
ACT:
Criminal Procedure-Investigation of
offences-Investigation by Deputy Superintendent of Police under orders of
Inspector-General of Police Validity Allegations against Chief
Minister--Necessity of affidavit by Chief Minister Code of Criminal Procedure,
1898 (V of 1898), ss. 154, 156, 157 and 551-Constitution of India, Art. 14.
HEADNOTE:
One S sent a complaint against the first
petitioner to the Chief Minister who sent it to the Additional Inspector General
of Police who in his turn sent it to the Deputy Superintendent of Police
C.I.D., with the endorsement " Register a case and investigate personally
". The Deputy Superintendent of Police drew up a first information report.
There were also three other cases instituted
against the petitioners or some of them, which were being investigated into by
the C.I.D. Police officers. The petitioners contended that the respondents had
violated the provisions of ss. 154, 156 and 157 of the Code of Criminal
Procedure and had adopted a procedure unknown to law and had thus singled out
the petitioners for unequal treatment in violation of Art. 14 of the
Constitution.
Held, that the procedure adopted was
authorised by S. 551 of the Code and in the first case the Inspector-General
had power to deal with the complaint and to direct investigation of the same by
the Deputy Superintendent of Police. Even if the reason given for the
Inspector-General making over the investigation to the Deputy Superintendent of
Police that the case was of a technical nature was not correct, it was open to
him to make over the investigation to the Deputy Superintendent of Police in
view of the status of the petitioners. The procedure adopted in the other three
cases was also not illegal, and there was no unequal treatment of the
petitioners in the matter of the institution or investigation of the cases so
as to entitle them to invoke in aid Art. 14 of the Constitution.
H. N. Rishbud and Inder Singh v. The State of
Delhi, [1955] 1 S.C.R. 1150, King Emperor v. Nilkantha, I.L.R. 35 Mad. 247,
Pulin Bihari Ghosh v. The King, I.L.R. [1950] 1 Cal. 124 and Textile Traders
Syndicate Ltd. v. The State of U. P., A.I.R. 1959 All. 337, referred to.
Since allegations were made against the Chief
Minister by the petitioners, he owed a duty to the Court to file an affidavit
stating what the correct position was so far as he remembered it.
ORIGINAL JURISDICTION: Petition No. 59 of
1960.
Petition under Article 32 of the Constitution
of India for enforcement of-Fundamental Rights.
A. S. R. Chari, S. N. Andley, J. B.
Dadachanji, Rameshwar Nath and P. L. Vohra, for the Petitioners.
S. M. Sikri, Advocate-General for the State
of Punjab, H. S. Doabia, Additional Advocate-General for the State of Punjab,
M. S. Punnu, Deputy Advocate-General for the State of Punjab and D. Gupta, for
the Respondents.
1660. October 28. The Judgment of the Court
was delivered by S. K. DAS J.-This is a writ petition. The three petitioners
before us are (1) R. P. Kapur, a member of was serving as a Commissioner in the
State of Punjab, (2) Sheila Kapur, his wife, and (3) Kaushalya Devi, his
mother-in-law.
They have moved this Court under Art. 32 of
the Constitution for the enforcement of their rights under Arts. 14 and 21 of
the Constitution, which rights they say have been violated by the respondents
who are the State of Punjab, Sardar Pratap Singh Kairon, Chief Minister
thereof, and certain officials, police, administrative and magisterial who have
been conducting, or are connected with, the investigation or inquiry into a
number of criminal cases. instituted against the petitioners. We shall refer to
some of these officials later in this judgment in relation to the part which
they have played or are playing in those criminal cases.
Briefly stated the case of the petitioners is
that petitioner no. 1 had the misfortune to incur the wrath of the Chief
Minister of the State. It is alleged that the Chief Minister was annoyed with
petitioner no. 1, because the latter did not show his readiness to give
evidence for the prosecution in a case known as the Karnal Murder Case (later
referred to as the Grewal case) in which one D. S. Grewal, then Superintendent
of Police, Karnal, and some other police officials were, along with others,
accused of some serious offences. That case was transferred by this Court to a
Special 145 Judge, at Delhi, who commenced the trial sometime in May/June 1959.
Petitioner no. 1 was at the time Commissioner of Ambala, and he alleges that he
was told by the Chief Minister that it was proposed to cite the Deputy
Commissioner and the Deputy Inspector-General of Police as prosecution
witnesses in the said case and it would be in the fitness of things that
petitioner no. 1 should also figure as a prosecution witness; to this
suggestion petitioner no. 1 gave a somewhat dubious reply to the effect that
his appearance as a prosecution witness might or might not help the
prosecution. Another reason for the displeasure of the Chief Minister, as
alleged in the petition, related to certain orders which petitioner no. 1 had
passed as Commissioner, Patiala Division, in a revenue case known as the
Sangrur case. We shall presently give more details of that case, but it is
enough to state here that the allegation is that in that case petitioner no. 1
passed certain orders, involving the disposal of properties worth about Rs. 9
lacs, which were adverse to one Surinder Kairon, son of the Chief Minister. It
is stated that as a result of the displeasure which petitioner no. 1 bad
incurred for the two reasons mentioned above, a special procedure was adopted
in the investigation of the criminal cases instituted against the petitioners;
and some new cases were started through the instrumentality of the C. 1. D. Police
with a view to subject the petitioners to harassment and persecution. The
substantial allegation, to quote the language of the petition, is that " a
special procedure or rather a technique has been devised for circumventing the
mandatory provisions of the law (meaning the Code of Criminal Procedure) as regards
the petitioners, two of whom are ladies and who are being dragged about
unnecessarily because they happen to be related to petitioner no. 1". It
is stated that there has been a deliberate departure from the normal and legal
procedure in the matter of institution and investigation of criminal cases
against the petitioners a departure said to be the result of " an evil eye
and unequal hand " which the petitioners allege constitutes 146 a denial
of the right of equal protection of the laws guaranteed to them under Art. 14
of the Constitution. The special procedure or technique of which the
petitioners complain is said to consist of, several items, such as (1)
entertainment of a criminal complaint personally by the Chief Minister; (2)
institution of complaints by the C. 1.
D. police; (3) registration of first information’s
after such complaints ; (4) investigations in advance of the complaints; (5)
investigation by specially chosen (handpicked as learned Counsel for the
petitioners has suggested) C.I.D. officials, not necessarily of high rank, who
have no power to investigate; (6) the arrangement of a special C.I.D. squad to
" unearth something " against the petitioners, etc. In the petition
four criminal cases were referred to as illustrative of the special procedure,
said to be unwarranted by law, adopted against the petitioners, and in a
supplementary petition filed on June 9, 1960, some more cases were referred to.
After we had conveyed to learned Counsel for the petitioners that we could not
consider the supplementary petition which the respondent had no opportunity of
meeting, the supplementary petition was withdrawn. Therefore, we do not propose
to say anything about the cases which are referred to in the supplementary
petition. The four cases mentioned in the original petition are :(1) F.I.R. no.
304 of 1958, given by one M. L. Sethi, referred to hereinafter for brevity as
Sethi's case ;
(2) F.I.R. no. 39 of 1959, instituted on the
complaint of one M. L. Dhingra, called hereinafter as Dhingra's case;
(3) F.I.R. no. 135 of 1959, instituted on the
complaint of the Civil Supply Officer, Karnal, the accused in this case being
the State Orphanage Advisory Board of which petitioner no. I was Vice-President
at the relevant time and Kartar Singh, farm manager of Kaushalya Devi, called
the Orphanage case; and (4) F.I.R. no. 26 of 1960, instituted on the complaint
of Daryao Sing, D.S.P., C.I.D., Karnal, (one of the respondent police
officials) in which there are three 147 accused persons including petitioner
no. 1, called for brevity the Ayurvedic Fund case.
We may say at once that we are not concerned
with the merits of any of the aforesaid cases : that is a question which will
fall for consideration if and when the cases are tried in Court. Therefore,
nothing said in this judgment shall be construed as affecting the merits of the
cases. Two questions have been posed before us in relation to these cases: one
is if in the matter of institution and investigation of these cases a special
procedure unknown to law has been adopted; and the other is if the petitioners
have been singled out for unequal treatment in administering the law relating
to the institution and investigation of criminal cases in the State. The two
questions are in one sense connected, for if a special procedure unknown to law
has been adopted against the petitioners, that by itself will be a denial of
the right of the equal protection of the 'laws. Learned Counsel for the
petitioners has, however, argued the second question somewhat independently of
the first question, and he has submitted that even if the procedure adopted
against the petitioners is warranted by law, it is a departure from the normal
procedure and has been adopted with " an evil eye and unequal hand "
so as to put the petitioners to harassment and persecution. We shall consider
both these questions in relation to the procedure adopted in the four cases
referred to above.
It is necessary to state that the petition
has been contested by the respondents. The Chief Minister has himself made no
affidavit in respect of the allegations made against him ; but affidavits in
reply have been made by the Chief Secretary and the Home Secretary to the
Punjab Government and some of the respondent officials. To these affidavits we
shall advert later in somewhat greater detail.
We shall also have something to say about the
failure of the Chief Minister to make an affidavit. It is enough to state here
that the respondents have seriously contested both the allegations made on
behalf of the petitioners, namely, (1) that a special procedure unknown to law
was 148 adopted against them or (2) that the procedure adopted was motivated by
" an evil eye and unequal hand " so as to persecute and harass the
petitioners. The respondents have said that the procedure adopted was warranted
by law and the employment of the C. 1. D. officials in the investigation of the
cases against the petitioners was due to the special nature of the cases. The
respondents have also contested the correctness of the allegation that petitioner
no. 1 had incurred the displeasure of the Chief Minister on account of the two
reasons stated in the petition. In brief, the claim of the respondents is that
there has been no violation of the rights of the petitioners guaranteed under
Arts. 14 and 21, and there are no grounds for interference by this Court under
Art. 32 of the Constitution. It has been stated on behalf of the respondents
that in the two cases called Setbi's case and Dhingra's case, the petitioners
had moved the High Court without success for quashing the proceedings and in
Sethi's case, an appeal to this Court against the order of the High Court also
proved unsuccessful. It is also pointed out that a petition made by petitioner
no. 1 in the High Court for proceeding by way of contempt of court against the
Chief Minister on some of the allegations now raised or allegations similar in
nature, was dismissed in limine and the learned Advocate-General of the Punjab
has taken us through the order of the High Court in respect of some of the
allegations made.
Having stated the respective cases of the
parties before us, we shall proceed now to a more detailed examination of the
procedure adopted in the four cases instituted against the petitioners. But
before we do so, it is necessary to say a few words about Grewal's case and
Sangrur case which are stated to furnish the reasons why petitioner no. 1
incurred the displeasure of the Chief Minister. It is alleged that in Grewal's
case petitioner no. 1 was asked to give evidence for the prosecution, but he
gave a dubious reply which displeased the Chief Minister. It is worthy of note,
however, that the trial in Grewal's case began in May-June, 1959; Sethi's
complaint was made in 149 December, 1958 and Dhingra's in February, 1959.
Obviously, those two cases could not be the result of any refusal by petitioner
no. 1 to give evidence in Grewal's case. On May 28, 1959, petitioner no. 1
wrote to the Chief Secretary about Sethi's case and Dhingra's case, but no
allegation was made therein against the Chief Minister. What the petitioner
wanted then was that an opportunity should be given to him to explain his
position. On June 9, 1959, petitioner no. 1 again wrote to the Chief Secretary
about the complaints of Sethi and Dhingra-again there was no allegation against
the Chief Minister. On June 29, 1959, petitioner no. 1 filed two petitions in
the Punjab High Court for quashing the proceedings in Sethi's case and
Dhingra's case; in this petition an allegation was made that powerful
influences were operating against the petitioner " to harm him and debar
him officially " and Sethi's case and Dhingra's case were the result of
such influences, but there was no specific mention of Grewal's case and of any
request to the petitioner to give evidence in that case. It was for the first
time on July 20, 1959, when the petition for contempt proceedings was filed
that a specific allegation against the Chief Minister was made in paragraphs 35
to 37 thereof (this is annexure 1 to the present petition). This petition was
dismissed in limine, the High Court saying that it was not prima facie
satisfied that the allegation was made out. We do not think that petitioner no.
1 has been able to advance his case any further in spite of the fact that the
Chief Minister has made no affidavit, a matter to which we shall advert later.
As to the Sangrur case, that was also
referred to in the petition of July 20, 1959, and the High Court did not accept
the allegation of petitioner no. 1. What happened in that case was this. The
late Sardar Mukan Sing of Sangrur left two widows, Sardarni Pritam Kuar and
Sardarni Pavitar Kaur Sardarni Pavitar Kaur had three daughters one of whom was
married to Surinder Singh Kairon, son of the Chief Minister.
The Sangrur estate was in charge of the Court
of Wards, that is, the Financial Commissioner, Punjab. On June 150 19, 1958,
the Court of Wards decided to release the estate after partitioning the
immovable property between the two widows. At one time a question arose as to
whether the immovable properties should be partitioned into five equal shares
for the two widows and three daughters or into two shares only for the two
widows. Sometime before May 6, 1959, it was decided that the partition would be
of two shares only and thereafter a detailed mode of partition was agreed to
between the parties. This is clear from the note of petitioner no. 1 dated May
6, 1959. Thereafter there was no more dispute left, and the case of petitioner
no.1 that he was arrested on July 18, 1959, becausehe dictated an adverse order
some days previously which had been typed but not yet signed does not prima
facie appear to be correct, apart altogether from the question whether
petitioner no. 1 was acting merely as the channel between the Deputy
Commissioner, and the Financial Commissioner, the latter being the only
authority competent to pass final orders in the matter.
We have, therefore, come to the conclusion
that the petitioners have not established what they have alleged, namely, that
R. P. Kapur, one of the petitioners, had incurred the displeasure of the Chief
Minister by reason of what happened in the Grewal case and the Sangrur case.
Whether there were other reasons,
administrative or otherwise, for the displeasure of the Chief 'Minister is a
matter which is not germane to the present case. In the affidavits filed before
us some reference has been made to the past record of R. P. Kapur. We consider
it unnecessary to refer to that record ; firstly , because it is not relevant
to the case before us, and secondly because we think that it is not fair to
refer to the confidential record of an officer unless the circumstances in
which certain adverse remarks were made are known.
We proceed now to consider the four criminal
cases pending against the petitioners or some of them, in relation to the two
points urged: (1) whether in the institution and investigation of these cases a
special procedure unknown to law has been adopted and (2) 151 if the
petitioners have been singled out for unequal treatment in administering the
law relating to the institution and investigation of criminal cases in the
State.
The first two cases, namely, Sethi's case and
Dhingra's case need be dealt with at some length. Sethi's case started on a
complaint which it was said was sent direct to the Chief Minister. Four
material allegations about fraudulent misrepresentation were made in that
complaint. It was alleged that R. P. Kapur had fraudulently misrepresented to
Sethi that a particular piece of land which he had sold to Sethi 'had been
purchased by him at Rs. 10 per square yard;
that he had fraudulently concealed from Sethi
the pendency of certain proceedings before the Land Acquisition Collector,
Delhi, and of the acquisition of the said land under s. 17 of the relevant Act;
that he had made a fraudulent misrepresentation as regards the scheme of
housing with regard to the area in which the land lay.
Though the complaint was dated December 10,
1958, it appears to have been made over to the Additional Inspector General of
Police on December 23, 1958. The Additional Inspector General of Police then
appears to have passed an order to the following effect: " Register"
a case and investigate personally ". This was addressed to Sardar Hardayal
Singh, D. S. P. Thereupon Sardar Hardayal Singh, Deputy Superintendent of
Police, C.I.D., Amritsar, appears to have drawn up a first information report.
The original complaint which Sethi filed has not been produced before us. What
was produced before us was a carbon copy and on that carbon copy was the order
of the Additional Inspector General of Police to which we have already made a
reference. The allegation of the petitioners was that the original complaint
had been sent to the Chief Minister and the Chief Minister had passed certain
orders thereon. On behalf of the petitioners it was suggested that the original
was not produced in order to conceal from the Court the orders which the Chief
Minister had passed thereon. We have stated earlier that the Chief Minister had
filed no affidavit in respect of these allegations. An affidavit has been filed
by A.N. Home Secretary 152 to the Government but obviously he was not in a
position to say anything about the allegations made against the Chief Minister.
We, therefore, proceed on the basis that so far as Sethi's case is concerned, a
complaint was made or sent to the Chief Minister who thereupon sent it to the
Additional Inspector General of Police who in his turn sent it to Sardar
Hardayal Singh, Deputy Superintendent of Police, C. I. D., at Amritsar. The
short question before us is-does this amount to adopting a procedure unknown to
law or even to unequal treatment so as to attract Art. 14 of the Constitution? Learned
Counsel for the petitioners has taken us through the relevant provisions in
Part V, Chapter XIV, of the Code of Criminal Procedure and has submitted that
under s. 154 of the Code every information relating to the commission of a
cognizable offence should be given to an officer in charge of a police station
and under s. 156 any officer in charge of a police station may, without the
order of a Magistrate, investigate any cognizable case which a Court having
jurisdiction over the local area would have power to inquire into or try under
the provisions of Chapter XV relating to the place of inquiry or trial. He has
also referred to s. 157 under which the officer in charge of a police station,
shall forthwith send a report of the first information to a Magistrate
empowered to take cognizance of the offence and shall proceed in person, or
shall depute one of his subordinate officers not being below such rank as the
State Government may, by general or special order, prescribe in this behalf, to
proceed to the spot to investigate the facts and circumstances of the case, and
if necessary to take measures for the discovery and arrest of the offender.
It is contended that the provisions of ss.
154, 156 and 157 of the Code have been violated in the case against the
petitioners; and thus the petitioners have been subjected to a special
procedure unknown to law or, at any rate, to unequal treatment, treatment
different from that of other persons against whom information’s of a cognizable
offence ape made.
We are unable to accept these contentions as
153 correct. First of all, s. 154, Code of Criminal Procedure, does not say that
an information of a cognizable offence can only be made to an officer in charge
of a police station.
That section merely lays down, inter alia,
that every information relating to the commission of a cognizable offence, if
given orally to an officer in charge of a police station, shall be reduced to
writing by him or under his direction, and be read over to the informant; and
every such information shall be signed by the person giving it and the
substance thereof shall be entered in a book to be kept by such officer in such
form as the State Government may prescribe in that behalf. Section 156 gives
power to an officer in charge of a police station to investigate without the
order of a Magistrate any cognizable case which a Court, having jurisdiction in
the local area etc. would have power to inquire into or try; sub-s. (2) of s.
156 lays down that no proceeding of a police officer in any such case shall at
any stage be called in question on the ground that the case was one which such
officer was not empowered under this section to investigate. There has been
some argument before us as to the meaning of the expression " any such
case " occurring in sub-s. (2) of s. 156. As we are not resting our
decision on sub-s. (2) of s. 156, Code of Criminal Procedure, we consider it
unnecessary to embark upon a discussion as to the true scope and effect of
sub-s. (2) of s. 156. Section 157 of the Criminal Procedure Code lays down the
procedure which an officer in charge of a police station must follow where
information of a cognizable offence is made. Now, there is another important
provision in the Code which is of great relevance in this case and must be
read. That provision is contained in s. 551 which is in these terms :
"S. 551. Police officers superior in
rank to an officer in charge of a police station may exercise the same powers,
throughout the local area to which they are appointed, as may be exercised by
such officer within the limits of his station." The Additional Inspector
General of Police to whom 20 154 Sethi's complaint was sent was, without doubt,
a police officer superior in rank to an officer in charge of a police station.
Sardar Hardayal Singh, Deputy Superintendent of Police, C.I.D., Amritsar, was
also an officer superior in rank to an officer in charge of a police station.
Both these officers could, therefore, exercise the powers, throughout the local
area to which they were appointed, as might be exercised by an officer in
charge of a police station within the limits of his police station. It is not disputed
that the jurisdictional area of the Additional Inspector General of Police was
the whole of the State. As to the jurisdictional area of the Deputy
Superintendent of Police, C.I.D., the contention on behalf of the respondent
State is that though he was posted at Amritsar, his jurisdictional area
extended over the whole State. The learned Advocate-General for the respondent
State has drawn our attention to Police Rule 21.28 in the Punjab Police Rules,
1934, Vol. III, issued by and with the authority of the State Government under
ss. 7 and 12 of the Police Act (V of 1861). That rule lays down that the
Criminal Investigation Department has no separate jurisdiction and the Deputy
Inspector General of Police, Criminal Investigation Department, may decide to
take over the control of any particular investigation himself or depute one or
more of his officers to work directly under the control of the Superintendent
of Police of the district. Police Rule 21.32 enumerates some of the cases in
which the assistance of the Criminal Investigation Department may be sought.
Police Rule 25.14 says that the Criminal Investigation Department is able to
obtain expert technical assistance, and in cases where such assistance is
required the assistance of the Criminal Investigation Department may be
obtained. In the affidavit made by Sardar Hardayal Singh, he has stated that he
was entrusted with the investigation of Sethi's case because of its technical
nature and also because his sphere of duty as a Gazetted Officer attached to
the Criminal Investigation Department was the whole of the State in view of the
memorandum no. 9581-H-51/7912 dated October 155 26, 1951. That memorandum shows
that the Deputy Inspector General, C.I.D. and all gazetted officers of the
Criminal Investigation Department have jurisdiction extending over the whole of
the Punjab State. This is also supported by the affidavit made by Shamshere
Singh, Additional Inspector General of Police. Learned Counsel for the
petitioners has pointed out that Sethi's case involved no technical questions
and the ground stated in the affidavits of Shamshere Singh and Sardar Hardayal
Singh is not, therefore, correct. The question before us is not whether the
reason for which the investigation was made over to Sardar Hardayal Singh is
correct or not. The question before us is, whether in making over the
investigation to Sardar Hardayal Singh a special procedure unknown to law was
adopted or the law as to the investigation of cases was administered with an
evil eye or unequal hand. If the police officer concerned thought that the case
should be investigated by the C. 1. D. even though for a reason which does not
appeal to us-it cannot be said that the procedure adopted was illegal. We are
unable to agree with learned Counsel for the petitioners that any of these two
contentions has been made out in the present case. We are satisfied that the
Inspector General of Police, C.I.D. had power to deal with Sethi's complaint
and had further power to direct investigation of the same by Sardar Hardayal
Singh who as a police officer superior in rank to an officer incharge of a
police station could exercise powers of an officer in charge of a police
station in respect of the same. It cannot, therefore, be said that the
procedure adopted was unknown to law. Nor are we satisfied that the procedure
adopted was motivated by any evil purpose, though we are not quite impressed by
the reason given by Shamshere Singh or Sardar Hardayal Singh that Sethi's case
was of a technical nature and, therefore, required the assistance of the C.I.D.
Even if it was not of a technical nature, it was open to the Additional
Inspector General of Police to make over the investigation to a Deputy
Superintendent of Police in view of the status of the petitioners. In paragraph
31 of his affidavit 156 A. N. Kashyap, Home Secretary, has said that the
Inspector General of Police on receiving the complaint from Sethi ordered on
his own the registration of the case without any order or direction from the
Chief Minister. The correctness of this statement has been very seriously
commented on. In the absence of any affidavit from the Chief Minister and of
the original complaint, we have preferred to proceed in this case on the
footing that the Additional Inspector General of Police got the complaint from
the Chief Minister and then passed necessary orders thereon. Even on that
footing we are unable to hold that there has been any violation of legal
procedure or that an unfair discrimination has been made against the
petitioners.
Learned Counsel for the petitioners has
relied on certain observations made by this Court in H. N. Rishbud and Inder
Singh v. The State of Delhi (1). The observations occur at page 1160 of the
report and are to the effect that it is of considerable importance to an
accused person that the evidence collected against him during investigation is
collected under the responsibility of an authorised and competent investigating
officer. These observations were Made in a case where the question that fell
for decision was whether the provisions in s. 5(4) and the proviso to s. 3 of
the Prevention of Corruption Act, 1947 (Act II of 1947) and the corresponding
s. 5A of the Prevention of Corruption (Second Amendment) Act, 1952 (Act LIX of
1952), were mandatory or not. It :was held that they were mandatory and an
investigation conducted in violation thereof was illegal.
It was also held that an illegality committed
in the course of an investigation did not affect the competence and
jurisdiction of the Court for trial; but if any breach of the mandatory provisions
relating to investigation were brought to the notice of the Court at an early
stage of the trial, the Court would have to consider the nature and extent of
the violation and pass appropriate orders for such re. investigation as might
be called for. We do not think that the observations made and the decision are
of any (1) [1955] (1) S.C.R. 1150.
157 assistance to the petitioners. We have
held that there has been no violation of any mandatory provisions as to investigation
in Sethi's case against the petitioners and the investigation procedure
followed is legal. Our attention has been drawn to King Emperor v. Nilkantha
(1).
On a certificate by the Advocate-General, the
case was considered by a Full Bench of the Madras High Court and one of the
questions for decision was-" Is an Inspector of the Criminal Investigation
Department an authority legally competent to investigate the facts within the
meaning of s. 157, Evidence Act ? " The question was answered in the affirmative
by the majority of judges, Abdur Rahim, J. and Sundara Ayyar, J., dissenting.
In the course of the arguments before their Lordships, one of the questions
mooted was whether Inspectors of the Criminal Investigation Department were
appointed to any local area within the purview of s. 551, Code of Criminal
Procedure. Some of the Judges held that the whole Presidency was their local
area;
some held that that was not so. On the
materials before us, we have no hesitation in holding that the Deputy Superintendent
of Police entrusted with the investigation of Sethi's case bad the necessary
authority to hold the investigation. The decision in Pulin Bihari Ghosh v. The
King(1) on which also some reliance has been placed does not appear to us to be
in point: that was a case s. 202 and s.
156(3), Code of Criminal Procedure, and it
was held that proceedings under s. 202 and investigation under rb. 156(3) could
not proceed simultaneously; it was further held that a direction under s.
156(3) could only be made to an officer in charge of a police station. No
question arose there of the exercise of powers under s. 551, Code of Criminal
Procedure, and the decision does not establish what the petitioners are seeking
to establish in the present case.
More in point is the decision in Textile
Traders Syndicate Ltd. v. State of U. P. (3) where it was held that an
Inspector of Police in the Criminal Investigation Department was superior in
rank to that of an (1) I.L.R, 35 Mad. 247. (2) I.L.R. [1950] 1 Cal. 124.
(3) A.I.R. 1959 All. 337.
158 officer in charge of a police station and
under s. 551, Code of Criminal Procedure, he could exercise the powers of an
officer in charge of a police station throughout the State.
Turning now to Dhingra's case, the position
is this.
Admittedly a complaint dated February 27,
1959, was sent to the Chief Minister with a covering letter in which it was
stated that " R. P. Kapur had already started tampering with the evidence
and 1, therefore, request that orders be passed that the Police should take in
hand investigation immediately and collect all material evidence ". The
Chief Minister wrote on this: " Inspector General, Police, is sick. Will
Add1. Inspector General please take immediate action in taking over papers from
Government departments concerned and the papers with Sri Dhingra. Please give a
prima facie report." The Additional Inspector General then made the
following endorsement: " Please take immediate necessary action. Depute
one of your officers to contact Sri Dhingra and get the necessary records from
him.
Immediate action may be taken to take over
the record from the various departments. A case may be registered. I have
informed Chief Secretary and he agrees with this." This was addressed to
the Deputy Inspector General, C.I.D., and the latter wrote-" Case should
be regis. tered and investigated by Bir Singh, D.S.P., under your supervision.
Immediate steps should be taken to get the salient records of Sri
Dhingra." This was addressed to Ujager Singh, Superintendent of Police,
C.I.D. The case was then registered by Sardar Sampuran Singh, Inspector of
Police, Police Station Chandigarh, and the investigation was in charge of
Sardar Bir Singh, Deputy Superintendent of Police, C.I.D.
The legal position as to the institution of
Dhingra's case and its investigation is the same as in Sethi's case. The legal
sanction for both is s. 551, Code of Criminal Procedure, and the reasons which
we have given for holding that the procedure followed in instituting and
investigating Sethi's case is legally valid apply to Dhingra's case also.
On behalf of the 159 petitioners it has been
submitted that the hand of the Chief Minister is no longer concealed in respect
of Dhingra's case. It is pointed out that in 1959, a complaint is made in
respect of offences alleged to have been committed about five years ago in 1954
and the Chief Minister, without any enquiry whatsoever, says " Please give
a prima facie report, " and the same C.I.D. machinery is again set in
rapid motion as in Sethi's case, and this at a time when Sethi's case was kept
" hanging as a sword " over the petitioners. It has been further
submitted that the direction as to the seizure of papers was not justified in
law, as the Chief Minister had no legal power to give such a direction. We do
not think that these submissions establish what the petitioners have to
establish in order to succeed on their writ petition, namely, that in the
institution of Dhingra's case and its investigation, a procedure unknown to law
has been followed or that the petitioners have been singled out for an unfair
and discriminating treatment. We do not know what reasons led the Chief
Minister to make the endorsement on the complaint of Dhingra as he did and why
instead of referring the complaint to the officer in charge of the police
station concerned, a reference was made to the Additional Inspector General or
the Criminal Investigation Department. These are matters within his special
knowledge, and he has chosen to throw no light on them. Shamshere Singh has said
in his affidavit that he dealt with Dhingra's case in exercise of his powers
under s. 551, Code of Criminal Procedure. Sardar Bir Singh has said in his
affidavit that this case was also of a technical nature and so the
investigation was entrusted to him. As we have said in Sethi's case this reason
does not appear to us to be a convincing reason, but the Police officers
concerned may honestly have thought that the case should be investigated by the
Criminal Investigation Department. We are not called upon to express any
opinion on the merits of Dhingra's case, and all that we say now is that the
petitioners have failed to establish either of their two contentions-(1) that
the procedure adopted was illegal, or (2) that the petitioners were unfairly
discriminated against.
160 We go now to the remaining two cases, the
Orphanage Case and the Ayurvedic Fund, case. One was instituted on the
complaint of the Civil Supply Officer, Karnal, and the other on the statement
of Daryao 'Sing, Deputy Superintendent of Police, C. 1. D., Karnal. The
Orphanage case is against the Orphanage Advisory Board of which R. P. Kapur was
the Vice President at the relevant time, and Kartar Sing, farm manager of
Kaushalya Devi. It related to the alleged violation of certain Control Orders
in the matter of a brick kiln. The Ayurvedic Fund case is against R. P. Kapur
and certain other persons, who are not petitioners before us.
It alleged criminal breach of trust etc. in
respect of certain funds in the hands of the persons accused therein.
As we are not deciding these cases on merits,
it is unnecessary to give further details of the allegations made in those
cases.
No specific illegality has been brought to
our notice with regard to the institution of the Orphanage case except some
allegations of high-handedness in the matter of seizure of records of the
Orphanage in spite of the protest of the General Manager of the Orphanage and
some allegations against Choudhuri Ram Singh, who was then Deputy Inspector
General, Ambala Range. These allegations, be they true or not, do not establish
any such illegality as would lead us to quash the investigation.
As to the Ayurvedic Fund case, Daryao Sing
said in his affidavit:
" I say that the Audit Report contained
details of meddling with Orphanage funds and of having made payments to one
Kartar Sing, an employee of the petitioner no.1 and the attorney of Shrimati
Kaushalya Devi. It appears that there was excess and double payment of funds. There
were purchases of timber and wood without calling for any quotations. It
disclosed the issue of Orphanage funds to Madhuban Co-operative Society and
that the materials like cement, iron and steel which were under control were
also used in the construction of private building of Shri Kapur and his family
and the use of such materials went up to 20,000 Rupees." 161 Here again we
do not express any opinion as to the correctness or otherwise of the
allegations made. All that need be said at this stage is that the institution
of the case is not illegal, nor is its investigation vitiated by
discrimination.
It is indeed true that the investigation of
these cases has been entrusted to certain officers of the Criminal
Investigation Department, whether for good reason or not we cannot say. But
that circumstance does not by itself make the investigation bad in law. The
officers can exercise their powers of investigation under s. 551, Code of
Criminal Procedure. Daryao Singh, it may be stated, was an Inspector of the
Criminal Investigation Department at Karnal and became a Deputy Superintendent
of Police, C. I. D., in December, 1959. He also could exercise the powers under
s. 551, Code of Criminal Procedure.
For the reasons given above, we have come to
the conclusion that the petitioners are not entitled to succeed and the writ
petition must be dismissed, in the circumstances of this case there will be no
order for costs.
Before parting with this case we consider it
necessary to make some observations with regard to a matter which has caused us
some anxiety and concern. Serious allegations have been made against the Chief
Minister in this case. He is a party respondent and had notice of the
allegations made. In Sethi's complaint it was alleged that he had passed
certain orders on the original complaint, which was sent to the Additional
Inspector General of Police with those orders. The original complaint was not
made available to us on the ground that it could not be traced. The Additional
Inspector General of Police said in his affidavit that on receiving the
complaint from Sri M. L. Sethi, he ordered the investigation of the case
without any order or direction from the Chief Minister. He did not specifically
say if he received the complaint direct from Sethi or through the Chief
Minister. In Dhingra's case the Chief Minister passed an order which might
either mean that he ordered the 21 162 submission of a prima facie report or
merely directed that a report should be submitted if a prima facie case was
made out. It is not clear why he ordered the seizure of papers before even a
prima facie report was given, in respect of an offence said to have been
committed five years ago. These are all matters on which the Chief Minister
alone was in a position to enlighten us. In view of the allegations made
against him, we consider that the Chief Minister owed a duty to this Court to
file an affidavit stating what the correct position was so far as he remembered
it. We recognise that it may not be possible for a Chief Minister to remember
the circumstances in which a document pass through his hands;
there must be many papers which a Chief
Minister has to deal with in the day to day business of administration. If the
Chief Minister did not remember the circumstances, it would have been easy for
him to say so. If he remembered the circumstances, he could have refuted the
allegations with equal ease. This is not a case where the refutation should
have been left to Secretaries and other officers, who could only speak from the
records and were not in a position to say why the Chief Minister passed certain
orders. The petitioners are obviously suffering from a sense of grievance that
they have not had a fair deal. We have held that there is no legal
justification for that grievance ; but in an executive as well as judicial
administration justice must not only be done but it must appear that justice is
being done. An affidavit from the Chief Minister would have cleared much of the
doubt which in the absence of such an affidavit arose in this case.
Petition dismissed.
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