State of
Haryana & Ors Vs. Ch. Bhajan Lal &
Ors [1990] INSC 365 (21
November 1990)
Pandian,
S.R. (J) Pandian, S.R. (J) Reddy, K. Jayachandra (J)
CITATION:
1992 AIR 604 1990 SCR Supl. (3) 259 1992 SCC Supl. (1) 335 JT 1990 (4) 650 1990
SCALE (2)1066
ACT:
Constitution
of India, 1950: Article 226--Quashing of
criminal proceedings--Circumstances under which power could be
exercised-Guidelines given.
Code
of Criminal Procedure, 1973: Sections 154, 155, 156, 157, 159--Cognizable
offence--Field of investigation--Exclusive domain of investigating
agencies--Court's interference--When justified.
Section
482--Inherent powers of courts--Exercise Of--Circumstances necessitating
quashing of criminal pro- ceedings--Guidelines indicated.
Prevention
of Corruption Act, 1947: Section 5--Investi- gation by designated
officers--Express prohibition of offi- cers below certain rank---Whether
directory or mandatory--Exceptions only on adequate reasons--To be dis-
closed--Authorising such non_designated officers without reasons--Whether legal
and valid--Investigation carried on by such officer--Quashing of.
Words
& Phrases: "Reason to suspect"--Meaning of.
HEAD NOTE:
The
First Respondent was a Minister and subsequently Chief Minister of Haryana State. Later he became Union Minister. On 12.11.1987 a complaint
was presented before the Haryana Chief Minister, wherein serious allegations
were levelled against the First Respondent. The main allegations were that he
accumulated huge properties worth crores of rupees in the names of his family
members, relations and persons close to him by misusing his power and position
and by undervaluing the market price, and all those transactions were benami in
character. According to the complainant, since the accumulation of the
properties by the First Re- spondent, in the shape of buildings, land, shares,
ornaments etc. was far beyond his legal means, an investigation should be
directed against him.
260
The Chief Minister's Secretariat marked the complaint to the Director General
of Police, who in turn endorsed the same to the Superintendent of Police
concerned. On the direction from the Superintendent of Police, the SHO regis- tered
a case under Sections 161 and 165 of Indian Penal Code, 1860 and under section
5(2) of the Prevention of Corruption Act, 1947 and took up the investigation.
Meanwhile,
the First Respondent filed a Writ Petition before the High Court for a
direction to quash the First Information Report and for restraining the
appellants from proceeding further with the investigation. The High Court
quashed the entire criminal proceedings holding that the allegations did not
constitute a cognizable offence for commencing lawful investigation.
Aggrieved
by the judgment of the High Court, the appel- lants preferred the present
appeal by special leave, con- tending that the allegations contained in the
complaint, either individually or collectively, constituted a cogniza- ble
offence warranting the registration of a case as contem- plated under Section
154(1) Cr. P.C., and a thorough inves- tigation in compliance with various
statutory provisions ï7 3 On behalf of the Respondents, it was contended that
on account of the deep rooted political animosity and rivalry entertained by
the then Chief Minister, he used the com- plainant, who was stooge in his
hands, to file the complaint containing false and scurrilous allegations
against the First Respondent and hence the criminal proceedings rightly
deserved to be quashed.
Disposing
of the appeal, this Court,
HELD:
1. The judgment of the High Court quashing the First Information Report is set
aside as not being legally and factually sustainable in law. However, the
commencement as well as the entire investigation, if any, so far done is
quashed on the ground that the third appellant (SHO) is not clothed with valid
legal authority to take up the investiga- tion and proceed with the same within
the meaning of Section 5A(1) of the Prevention of Corruption Act. [319A-C]
2. The
observations made by the High Court are unwar- ranted and the historical
anecdote is out of context and inappropriate. If such a view is to be
judicially accepted and approved, then it will be tantamount to laying down an
alarming proposition that an incoming 261 Government under all circumstances,
should put its seal of approval to all the commissions and omissions of the
outgo- ing Government ignoring even glaring lapses and serious misdeeds and the
deleterious and destructive consequences that may follow therefrom. [318E-F] Krishna Ballabh Sahay & Ors. v.
Commissioner of Enquiry
Anr.,
[1988] 2 SCC 602; State of Punjab v. Gurdial
Singh, [1980] 1 SCR 1071; relied on.
P.V. Jagannath
Rao & Ors. v. State of Orissa &
Ors., [1968] 3 SCR 789; Sheonandan Paswan v. State of Bihar and Ors., [1983] 1 SCC 438 and Sheonandan
Paswan v. State of Bihar & Ors., [1987] 1 SCC 288; referred to.
3.1.
If any information disclosing a cognizable offence is laid before an
officer-in-charge of a police station satisfying the requirements of Section
154(1) of the Crimi- nal Procedure Code, the said police officer has no other
option except to enter the substance thereof in the pre- scribed form, that is
to say, to register a case on the basis of such information. [279G] 3.2. Though
a police officer cannot investigate a non- ï7 3 offence, he can investigate a
non-cognizable offence under the order of a Magistrate having power to try such
non- cognizable case or commit the same for trial within the terms under
Section 155(2) of the Code but subject to Sec- tion 155(3) of the Code.
Further, under the newly introduced Sub-section (4) to Section 155, where a
case relates to two offences to which atleast one is cognizable, the case shall
be deemed to be a cognizable case notwithstanding that the other offences are
non-cognizable and, therefore, under such circumstances the police officers can
investigate such offences with the same powers as he has while investigating a
cognizable offence. [279H; 280A-B]
4. The
core of the Sections 156, 157 and 159 of the Code of Criminal Procedure is that
if a police officer has reason to suspect the commission of a cognizable
offence, he must either proceed with the investigation or cause an investiga- tion
to be proceeded with by his subordinate; that in a case where the police
officer sees no sufficient ground for investigation, he can dispense with the
investigation alto- gether; that the field of investigation of any cognizable
offence is exclusively within the domain of the investiga- tion agencies over
which the Courts cannot have 262 control and have no power to stiffle or
impinge upon the proceedings in the investigation so long as the investiga- tion
proceeds in compliance with the provisions relating to investigation and that
it is only in a case wherein a police officer decides not to investigate an
offence, the concerned Magistrate can intervene and either direct an
investigation or in the alternative, if he thinks fit, he himself can, at once
proceed or depute any Magistrate sub-ordinate to him to proceed to hold a
preliminary inquiry into or otherwise to dispose of the case in the manner
provided in the Code.
[283G-H;
284A-B] State of Bihar and Anr. v. J.A.C. Saldanha and
Ors., [1980] 1 SCC 554; S.N. Sharma v. Bipen Kumar Tiwari and Ors., [1970] 3
SCR 946; Emperor v. Khwaja Nazir Ahmad, AIR 1954 P.C. 18 and Abhinandan v. Dinesh,
[1967] 3 SCR 668; referred to.
5.1.
The expression "reason to suspect the commission of an offence" used
in Section 154(1) Cr. P.C. would mean the sagacity of rationally inferring the
commission of a cogniz- able offence based on the specific articulate facts
men- tioned in the First Information Report as well in the Annex- ures, if any,
enclosed and any attending circumstances which may not amount to proof. In
other words, the meaning of the expression "reason to suspect" has to
be governed and dic- tated by the facts and circumstances of each case and at
ï7 3 in the First Information Report does not arise. [286E-F] 5.2. The
commencement of investigation by a police officer is subject to two conditions,
firstly, the police officer should have reason to suspect the commission of a
cognizable offence as required by Section 157(1) and second- ly, the police
officer should subjectively satisfy himself as to whether there is sufficient
ground for entering on an investigation even before he starts an investigation
into the facts and circumstances of the case as contemplated under clause (b)
of the proviso to Section 157(1) of the Code. [288B-C] Pakala Narayanaswami v.
Emperor, AIR 1939 P.C. 47; Emperor v. Vimlabai Deshpande, AIR 1946 P.C 123; United States v. Cortez, 66 L.Ed. (United States
Supreme Court Reports) page 623; Dallison v. Caffery, [1964] 2 All E.R. 610;
State of Gujarat v. Mohanlal J. Porwal, [1987] 2 SCC
364; Pukhraj v. D.R. Kohli, [1962] Supp. 3 SCR 866; State of West Bengal &
Ors. v. Swapan Kumar Guha & Ors., [1982] 3 SCR 121; referred to. 263
Webster's Third International Dictionary; Corpus Juris Secondum, Vol. 83 pp.
923, 927; Words and Phrases, (Perma- nent Edition 40A) pp. 590, 591; referred
to.
6. The
investigation of an offence is the field exclu- sively reserved for the police
officers whose powers in that field are unfettered so long as the power to
investigate into the cognizable offences is legitimately exercised in strict
compliance with the provisions falling under Chapter XII of the Code and the
Courts are not justified in obliter- ating the track of investigation when the
investigating agencies are well within their legal bounds. A noticeable feature
of the scheme under Chapter XIV of the Code is that a Magistrate is kept in the
picture at all stages of the police investigation but he is not authorised to
interfere with the actual investigation or to direct the police how that
investigation is to be conducted. But if a police officer transgresses the
circumscribed limits and improperly and illegally exercises his investigatory
powers in breach of any statutory provision causing serious prejudice to the
personal liberty and also property of a citizen, then the Court, on being
approached by the person aggrieved for the redress of any grievance has to
consider the nature and extent of the breach and pass appropriate orders as may
be called for without leaving the citizens to the mercy of police echelons
since human dignity is a dear value of our Constitution. No one can demand absolute
immunity even if he is wrong and claim unquestionable right and unlimited
powers exercisable upto unfathomable cosmos. Any recognition of ï7 3 Power'
which no authority on earth can enjoy. [290D-G] Emperor v. Khwaja Nazir Ahmad,
AIR 1945 P.C. 18; R.P. Kapur v. The State of Punjab, [1960] 3 SCR 388; Nandini Satpathy v. P.L. Dani & Anr.,
[1978] 2 SCC 424; S.N. Sharma v. Bipen Kumar Tiwari and Ors., [1970] 3 SCR 946;
Prabhu Dayal Deorath etc. etc. v. The District Magistrate, Kamrup & Ors.,
[1974] 2 SCR 12; State of West Bengal
and Ors. v. Swapan Kumar Guha and Ors., [1982] 3 SCR 121; referred to.
7.1
The view of the High Court that the non-filing of a written statement by a
competent authority of the State Government by way of reply to the averments in
the Writ Petition was serious flaw on the part of the appellants and as such
the averments of Respondent No. 1 should be held as having disproved the entire
crimination alleged in the F.I.R., is neither conceivable nor comprehensible.
[293D]
7.2.
It is true that some of the allegations do suffer from misty 264 vagueness and
lack of particulars. Further, there are no specific averments that either
Respondent No. 1 or his relations and friends had no source of income to
accumulate the properties now standing in their names and that Respond- ent No.
1 showed any favour to them by misusing his official position. [294B-C] These
are all matters which would be examined only during the course of investigation
and thereafter by the court on the material collected and placed before it by
the investigating agencies. The question whether the relations and friends of
Respondent No. 1 have independently purchased the properties out of their own
funds or not, also cannot be decided by the Court at this stage on the denial
statement of Respondent No. 1 alone. [294C-D] State of West Bengal and Ors. v. Swapan Kumar Guha and
Ors., [1982] 3 SCR 121; distinguished.
State
of Bihar and Anr. v. J.A.C. Saldanha and
Ors., [1980] 1 SCC 554; relied on.
8.1.
In the exercise of the extra-ordinary power under Article 226 or the inherent
powers under Section 482 of the Code of Criminal Procedure, the following
categories of cases are given by way of illustration wherein such power could
be exercised either to prevent abuse of the process of any Court or otherwise
to secure the ends of justice, though it may not be possible to lay down any
precise, clearly defined and sufficiently channelised and inflexible guide- ï7
3 myriad kinds of cases wherein such power should be exer- cised:
(a) where
the allegations made in the First Information Report or the complaint, even if
they are taken at their face value and accepted in their entirety do not prima
facie constitute any offence or make out a case against the ac- cused;
(b)
where the allegations in the First Information Report and other materials, if
any, accompanying the F.I.R. do not disclose a cognizable offence, justifying
an investi- gation by police officers under Section 156(1) of the Code except
under an order of a Magistrate within the purview of Section 155(2) of the
Code;
(c) where
the uncontroverted allegations made in the FIR or 'complaint and the evidence
collected in support of the same do not disclose 265 the commission of any
offence and make out a case against the accused;
(d)
where the allegations in the FIR do not constitute a cognizable offence but
constitute only a non-cognizable offence, no investigation is permitted by a
police officer without an order of a Magistrate as contemplated under Section
155(2) of the Code;
(e)
where the allegations made in the FIR or complaint are so absurd and inherently
improbable on the basis of which no prudent person can ever reach a just
conclusion that there is sufficient ground for proceeding against the accused;
(f)
where there is an express legal bar engrafted in any of the provisions of the
Code or the concerned Act (under which a criminal proceeding is instituted) to
the institu- tion and continuance of the proceedings and/or where there is a
specific provision in the Code or the concerned Act, providing efficacious
redress for the grievance of the aggrieved party;
(g) where
a criminal proceeding is manifestly attended with mala fide and/or where the
proceeding is maliciously instituted with an ulterior motive for wreaking
vengeance on the accused and with a view to spite him due to private and
personal grudge. [305D-H; 306A-E]
8.2.
In the instant case, the allegations made in the complaint, do clearly
constitute a cognizable offence justi- ï7 3 on and this case does not call for the
exercise of extraor- dinary or inherent powers of the High Court to quash the
F.I.R. itself. [307B] State of West Bengal v.
S.N. Basak, [1963] 2 SCR 52; distinguished.
R.P. Kapur
v. The State of Punjab, [1960] 3 SCR 388; S.N. Sharma v. Bipen
Kumar Tiwari and Ors., [1970] 3 SCR 946; Hazari Lal Gupta v. Rameshwar Prasad
and Anr. etc., [1972] 1 SCC 452; Jehan Singh v. Delhi Administration, [1974] 3 SCR 794; Amar Nath v. State of Haryana, [1977] 4 SCC 137; Madhu Limaye v.
State of Maharashtra, [1977] 4 SCC 551; Kurukshetra University and Anr. v. State of Haryana and Anr., [1977] 4 SCC 451; State of Bihar and Anr. v. J.A.C. Saldanha and Ors., [1980] 1 SCC 554;
Municipal Corporation of Delhi v. Purshotam Dass Jhunjunwala and
Ors., [1983] 1 SCC 9; State of West Bengal
and Ors. v. Swapan Kumar Guha and Ors., [1982] 3 SCR 121; Smt. Nagawwa v. Veeranna
Shiva- lingappa Konjalgi 266 & Ors., [1976] Supp. SCR 123; Pratibha Rani v.
Suraj Kumar and Anr., [1985] 2 SCC 370; Madhavrao Jiwaji Rao Scindia and Ors.
v. Sambhajirao Chandrojirao Angre and Ors., [1988] 1 SCC 692; State of Bihar v.
Murad Ali Khan and Ors., [1988] 4 SCC 655; Talab Haji Hussain v. Madhukar Purshottam
Mondekar and Anr., [1958] SCR 1226; L.U. Jadhav v. Shankarrao Abasa- heb Pawar,
[1983] 4 SCC 231; J.P. Sharma v. Vinod KumarJain and Ors., [1986] 3 SCC 67;
State of U.P.v.V.R.K. Srivastava and Anr., [1989] 4 SCC 59; Emperor v. Khwaja Nazir
Ahmad, AIR 1945 P.C. 18; referred to.
9.1.
The entire matter is only at a premature stage and the investigation has not
proceeded with except some prelim- inary effort taken on the date of the
registration of the case. The evidence has to be gathered after a thorough
investigation and placed before the Court on the basis of which alone the Court
can come to a conclusion one way or the other on the plea of mala fides. If the
allegations are bereft of truth and made maliciously, the investigation will
say so. At this stage, when there are only allegations and recriminations but
no evidence, this Court cannot anticipate the result of the investigation and
render a finding on the question of mala fides on the materials at present
avail-.
able.
Therefore, it cannot be said that the complaint should be thrown overboard on
the mere unsubstantiated plea of mala fides. Even assuming that the complainant
has laid the complaint only on account of his personal animosity that, by
itself, will not be a ground to discard the complaint con- taining serious
allegations which have to be tested and weighed after the evidence is
collected. [307G-H; 308A-D] ï73 9.2. The dominant purpose of registration of
the case and the intended follow up action are only to investigate the
allegations and present a case before the Court, if sufficient evidence in
support of those allegations are collected but not to make a character
assassination of the person complained against. [308H; 309A] S. Pratap Singh v.
The State of Punjab, [1964] 4 SCR 733; State of Haryana v. Rajindra Sareen,
[1972] 2 SCR 452;
Express
Newspapers Pvt. Ltd. & Ors. v. Union of India & Ors., [1985] Supp. 3
SCR 382; P.V. Jagannath Rao & Ors. v. State of Orissa & Ors., [1968] 3
SCR 789; The King v. Minis- ter of Health, [1929] 1 K.B. 619; Rex v. Brighton
Corpora- tion Ex-parte Shoosmith, 96 L.T. 762; Earl Fitzwilliam's Wentworth
Estate Co. Ltd. v. Minister of Town and Country Planning, [1951] 2 K.B. 284;
referred to.
10.1.
A police officer with whom an investigation of an offence 267 under Section
5(1)(e) of the Prevention of Corruption Act is entrusted should not proceed
with a pre-conceived idea of guilt of that person indicated with such offence
and subject him to any harassment and victimisation, because in case the
allegations of illegal accumulation of wealth are found, during the course of
investigation as baseless, the harm done not only to that person but also to
the office he held will be incalculable and inestimable. [297C-E]
10.2.
In the instant case, the SP seems to have exhibit- ed some over-enthusiasm,
presumably to please 'some one' and had directed the SHO to register the case
and investigate the same even on the very first day of the receipt of the
complaint from the DGP, in whose office the complaint was lying for merely 9
days. This unprecedented over enthusiasm shown by the S.P., without disclosing
the reasons for making an order entrusting the investigation to the SHO who is
not a designated officer under Section 5A(1), really shocks ones' sense of
justice and fair play even though the untest- ed allegations made in the
complaint require a thorough investigation. Still, it is an inexplicable riddle
as to why the S.P. had departed from the normal rule and hastly or- dered the
SHO to investigate the serious allegations, le- velled against a former Chief
Minister and a Minister in the Cabinet of the Central Government on the face of
the regis- tration of the case. However, this conduct of the SP can never serve
as a ground for quashing the FIR. [298C-E] Sirajuddin v. State of Madras,
[1970] 3 SCR 931; The State of Uttar Pradesh v. Bhagwant Kishore Joshi, [1964]
3 SCR 71; relied on. ï73
11.1.
A police officer not below the rank of an Inspec- tor of Police authorised by
the State Government in terms of the First proviso can take up the
investigation of an of- fence referred to in clause (e) of Section 5(1) of the
Prevention of Corruption Act, only on a separate and inde- pendent order of a
police officer not below the rank of a Superintendent of Police. A strict
compliance of the second proviso is an additional legal requirement to that of
the first proviso for conferring a valid authority on a police officer not
below the rank of an Inspector of Police to investigate an offence falling
under clause (e) of Section 5(1) of the Act. This is clearly spelt out from the
expres- sion "further provided" occurring in the second proviso.
Thus,
investigation by the designated Police Officers is the rule and investigation
by an officer of a lower rank is an exception. [311H; 312A-B]
11.2.
The granting of permission under Section 5A of the Preven- 268 tion of
Corruption Act authorising an officer of lower rank to conduct the
investigation is not to be treated by a Magistrate as a mere matter of routine,
but it is an exer- cise of his judicial discretion having regard to the policy
underlying and the order giving the permission should, on the face of it,
disclose the reasons for granting such permission. The Superintendent of Police
or any police officer of higher rank while granting permission to a non-
designated police officer in exercise of his power under the second provision
to Section 5A(1), should satisfy himself that there are good and sufficient
reasons to entrust the investigation with such police officer of a lower rank
and record his reasons for doing so; because the very object of the legislature
in enacting Section 5A is to see that the investigation of offences punishable
under Sections 16 1, 165 or 165A of Indian Penal Code as well as those under
Section 5 of the Act should be done ordinarily by the offi- cers designated in
clauses (a) to (d) of Section 5A(1). The exception should be for adequate
reasons which should be disclosed on the face of the order. Strict compliance
with Section 5A(1) becomes absolutely necessary because it ex- pressly
prohibits police officers below certain ranks, from investigating into offences
under Sections 161, 165 and 165A IPC and under Section 5 of the Act without
orders of Magis- trates specified therein or without the authorisation of the
State Government in this behalf and from effecting arrests for those offences
without a warrant. [314H; 3 15A-D]
11.3.
The main object of Section 5A is to protect the public servant against
harassment and victimisation. Section 5A of the Act is mandatory and not
directory and the inves- ï7 3 illegality but that illegality committed in the
course of an investigation does not affect the competence and the juris-
diction of the Court for trial and where the cognizance of the case has in fact
been taken and the case is proceeded to termination the validity of the
proceedings with the preced- ing investigation does not vitiate the result
unless miscar- riage of justice has been caused thereby. [311C; 312D-E]
11.4.
In the instant case, there is absolutely no rea- son, given by the S.P. in
directing the SHe to investigate and as such the order of the S.P. is directly
in violation of the dictum laid down by this Court in several decisions.
The
third appellant, SHO is not clothed with the requisite legal authority within
the meaning of the second provision of Section 5A(1) of the Act to investigate
the offence under clause (e) of Section 5(1) of the Act. [315E-F] H.N. Rishbud
and Inder Singh v. The State of Delhi, [1955] 1 269 SCR 1150; The State of
Madhya Pradesh v. Mubarak Ali, [1959] Supp. 2 SCR 201; A.C. Sharma v. Delhi
Administration, [1973] 3 SCR 477; A.R. Antulay v. R.S. Nayak, [1984] 2 SCR 914;
Major E.G. Barsay v. The State of Bombay, [1962] 2 SCR 195; Munna Lal v. State of Uttar Pradesh, [1964] 3 SCR 88; S.N. Bose v. State of Bihar, [1968] 3 SCR 563; Muni Lal v. Delhi Administration, [1971] 2 SCC 48; Khandu
Sonu Dhobi & Anr. v. State of Maharashtra, [1972] 3 SCR 510; relied on.
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