Union of India & Ors Vs. Sushil Kumar
Modi & Ors [1997] INSC 68 (24 January 1997)
J.S.
VERMA, K. RAMASWAMY, S.P. BHARUCHA
ACT:
HEAD NOTE:
O R D E
R
Leave
granted.
This
order has to be read in continuation of our order dated November 5, 1996 passed
in Civil Appeal Nos. 14164-65 reported in 1996 (6) SCC 500. These appeals by
special leave are against some portions of the orders dated November 13, 1996 and December 19, 1996 passed by the Patna High Court in the same matter - CWJC
No. 1617 of 1996 with CWJC No. 602 of 1996 - as a sequel thereto. The material
facts need not be reiterated as they are mentioned in our aforesaid order dated
November 5, 1996.
When
the matter was taken up in the Patna High Court subsequent to our aforesaid
order dated November 5,
1996, during the
further proceedings after our order, the High Court has made the two orders
dated November 13, 1996 and December 19, 1996. The learned Attorney General, on behalf of the appellants,
has indicated certain portions of these two orders and contended that they do
not match with our earlier order dated November 5, 1996. It would be appropriate at this
stage to quote those portions of the two orders to which grievance is made by
the learned Attorney General. These are:
In
order dated November
13, 1996:
Portion
`A':
"The
Supreme Court has not laid down the modality of making reference to the
Attorney General in case of difference of opinion.
What
if the Director does not make the reference on his own. According to us, this
can be sorted out by asking the Director, CBI, to submit the complete report(s)
submitted by the Joint Director and/or other investigating officers so that in
the event Court finds that there is difference of opinion, which requires
resolution by the Attorney General, the same may be referred to him."
Portion `B':
"The
aforesaid aspects of the matter as also other aspects, which were briefly
mentioned during the course of hearing today, can be more properly and
effectively discussed in the presence of the Director, CBI, himself. He is also
to be told about the import of the Supreme Court's orders. We are, therefore,
of the opinion that the next hearing should take place in his presence."
In order dated December
19, 1996:
Whole
of para 4, particularly the following:
Portion
`C':
"......the
present case is the only case of its kind in which investigation is being
monitored by the High Court......in the interest of proper and effective
monitoring of the case we think it appropriate to direct that the final report
which is submitted to the CBI Headquarters/Director be submitted in its
original form.......The correct position, which emerges from the order of the
Supreme Court, is that the report of the Joint Director is not to be submitted
to this Court directly, the same has to be sent to the Director,
CBI/Headquarters and then the same is to be filed in this Court. As indicated
above, there is a very thin line of distinction between vetting and editing and
if this authority to vet the report submitted to him is given to the Director,
he may as well edit a part of it. The proper course, no doubt, would be to hold
discussions across the table between the Director, Joint Director and others
whose presence may be considered necessary so that difference, if any, between
them are ironed out and a unanimous report is submitted. However, if such
unanimity is not possible to arrive at, the Director must submit the original
report as submitted to him along with his comments/views so that this Court may
consider that too and issue appropriate directions." In para 5, the
following:
Portion
`D':
"....In
those cases also the conspiracy angle does not appear to have been gone into,
which is so vital for proper investigation into the crimes and in respect of
which judicial finding has been recorded in the main judgment." In para 6,
the following:
Portion
`E':
"In
this connection we would also like to impress upon the Director to consider in
consultation with the Joint Director the desirability of posting/retaining
officers, who do not belong to this State or the state cadre. Keeping in view
the involvement of a very large number of persons of different hue and kind,
chances of their influencing persons having local background cannot be ruled
out....".
In para
8, the following:
Portion
`F':
"...The
reports contain materials which constitute prima facie case against the persons
concerned and it is not persons concerned and it is not understandable as to
why chargesheet cannot be submitted on the basis of the materials referred to
therein..." The learned Attorney General submitted that the above e tracts
of the two orders made by the High Court, in particular, are unwarranted apart
from certain other observations therein which could have been avoided. In reply
Shri Ram Jethmalani submitted that the observations of the High Court have to
be understood in the context as indicating the manner in which the Central
Bureau of Investigation. He submitted that a grievance of this kind by the CBI
does not appear to be appropriate.
At the
outset, we would indicate that the nature of proceedings before the High Court
is somewhat similar to those pending in this Court in Writ Petition (Crl.) Nos.
Ors.,
and Writ Petition (Civil) No. 640 of 1995, Anukul the High Court is required to
proceed with the matter in a similar manner. It has to be borne in mind that
the purpose of these proceedings is essentially to ensure performance of the
statutory duty by the CBI and the other Government agencies in accordance with
law for the proper implementation of the rule of law. To achieve this object a
fair, honest and expeditious investigation into every reasonable accusation
against each and every person reasonably suspected of involvement in the
alleged offences has to be made strictly in accordance with law. The duty of
the Court in such proceedings is, therefore, to ensure that the CBI and other
Government agencies do their duty and do so strictly in conformity with law. In
these proceedings, the Court is not required to go into the merits of the
accusation or even to express any opinion thereon, which is a matter for
consideration by the competent court in which the charge-sheet is filed and the
accused have to face trial. It is, therefore, necessary that not even an
observation relating to the merits of the accusation is made by the Court in these
proceedings lest it prejudice the accused at the trial. The nature of these
proceedings may be described as that of `continuing mandamus' to require
performance of its duty by the CBI and the other concerned Government agencies.
The concerned agencies must bear in mind and, if needed, be reminded of the
caution administered Commissioner, 1968 (1) All. E.R. 763. Indicating the duty
of the Commissioner of Police, Lord Denning stated thus:- "...I have no
hesitation, however, in holding that, like every constable in the land, he
should be, and is, independent of the executive. He is not subject to the
orders of the secretary of State.....I hold it to be the duty of the
Commissioner of Police, as it is of every chief constable, to enforce the law
of the land. He must take steps so to post his men that crimes may be detected;
and that honest citizens may go about their affairs in peace. He must decide
whether or no suspected persons are to be prosecuted; and, if need be, bring
the prosecution or see that it is brought; but in all these things he is not
the servant of anyone, save of the law itself. No Minister of the Crown can
tell him that he must, or must not, keep observation on this place or that; or
that he must, or must not, prosecute this man or that one. Nor can any police
authority tell him so. The responsibility tell him so. The responsibility for
law enforcement lies on him. He is answerable to the law and to the law
alone...." The nature of such a proceeding in a Court of law was also
indicated by Lord Denning, as under:
"A
question may be raised as to the machinery by which he could be compelled to do
his duty. On principle, it seems to me that once a duty exists, there should be
a means of enforcing it. This duty can be enforced, I think, either by action
at the suit of the Attorney- General: or by the prerogative order of
mandamus...".
(Page
769) (emphasis supplied) There can hardly be any doubt that the obligation of
the police in our constitutional scheme is no less.
According
to the Code of Criminal Procedure, the formation of the opinion as to whether
or not there is a case to place the accused for trial is that of the police
officer making the investigation and the final step in the investigation is to
be taken only by the police and by no 1968 SC 117 = 1967 (3) SCR 668). This
must be borne in mind as also that the scope and purpose of a proceeding like
the present is to ensure a proper and faithful performance of its duty by the
police officer by resort to the prerogative writ of mandamus.
To ensure
this aspect, we had directed in our earlier order dated November 5, 1996 that
in case of difference of opinion at any stage during the investigation, the
final decision is not to be taken by the Director, CBI or any other officer but
by the Attorney General on reference being made to him of the difference of
opinion between the concerned officers. This part of our earlier directions was
clear in the context in which it was made and this is to be understood as a
direction to the Director, CBI for compliance in the manner indicated. The High
Court is only required to ensure that the Director, CBI does not close any
investigation based only upon his individual opinion if there be any difference
of opinion between him and the concerned officers in the CBI. Such a matter is
then required to be referred by the Director to the Attorney General for his
opinion, which would govern the further action to be taken therein. The above
quoted portion `A' of the order dated November 13, 1996 of the High Court requires the High
Court to act in the manner herein indicated.
So far
as portion `B', as quoted above, of the order dated November 13, 1996 is
concerned, it is sufficient for us to observe that the High Court would take
into account the fact that the personal presence of the Director, CBI in the
High Court may be required only when it is essential for a purpose which cannot
be served by the presence of the other officers of the CBI who normally
represent the CBI at the hearings in the High Court. In view of the numerous
cases pending in different High Courts, the Director, CBI personally may not be
left with sufficient time from his official duties to appear personally at the
hearings of these matters in the High Courts. However, it is the duty of the
Director, CBI to ensure proper representation on his behalf in the High Court
so that the High Court gets all the assistance needed at the hearings.
The
observations of the High Court contained in the above quoted portion `D' in para
5 and portion `F' in para 8 of its order, do not appear to conform strictly to
the manner of exercise of the monitoring process by the Court.
It is
likely that they may be construed as expression of opinion on the merits of the
case. Portion `C' in para 4 of the High Court's order appears to be
unnecessary. For the purpose of properly monitoring the case in terms of the
order of this Court, keeping in view the nature of this proceeding and the
manner in which the exercise is to be performed to ensure performance of its
duty by the CBI, guidance through the counsel for the CBI could have been given
by the High Court without entering into the merits of any of the accusations.
The
only remaining portion of the High Court's order for consideration is Portion
`E' in para 6. Suffice it to say that the High Court has merely suggested to
the Director, CBI to consider the desirability of not involving any officer of
the Bihar cadre in the investigation but no
such directing has been given. It appears that the High Court intended to
impress upon the Director, CBI the need to consider avoiding any possible
embarrassment to officers of the Bihar
cadre in view of the suspicion of the alleged involvement of several important
persons in the State administration. We do not read the observations to mean
that they cast any aspersion on the officers of the Bihar cadre.
The
learned Attorney General also did not further press this objection since this
observation has to be so construed in the context.
It
appears to us necessary to reiterate that the proceeding before the High Court
in the present case being somewhat similar to the proceedings in Writ Petition
(Crl.) India & Ors., and Writ Petition (Civil) No. 640 of 1995, this Court,
the procedure required to be adopted by the High Court has to be on the same
lines. We also consider it appropriate to draw the attention of the CBI and the
High Court to the orders of this Court made in these matters indicating the
manner of performance of the duty. In Vineet it was said:
"In
this proceeding we are not concerned with the merits of the accusations or the
individuals alleged to be involved, but only with the performance of the legal
duty by the government agencies to fairly, properly and fully investigate into
every such accusation against every person, and to take the logical final
action in accordance with law.
In
case of persons against whom a prima facie case is made out and a charge-sheet
is filed in the competent court, it is that court which will then deal with
that case on merits, in accordance with law." (Page 201) (3) Scale (SP)
15, it was said:
"To
eliminate any impression of bias and avoid erosion of credibility of the
investigations being made by the CBI and any reasonable impression of lack of
fairness and objectivity therein, it is directed that the CBI would not take
any instructions from, report to, or furnish any particulars thereof to any
authority personally interested in or likely to be affected by the outcome of
the investigations into any accusation. This direction applies even in relation
to any authority which exercises administrative control over the CBI by virtue
of the office he holds, without any exception. We may add that this also
accords with that the learned Solicitor General has very fairly submitted
before us about the mode of functioning of the CBI in this matter." 1996
(6) SCC 354, its was said:
"A
note of caution may be appropriate. No occasion should arise for an impression
that the publicity attaching to these matters has tended to dilute the emphasis
on the essentials of jurisprudence including the presumption of innocence of
the accused unless found guilty at the end of the trial. This requirement,
undoubtedly has to be kept in view during the entire trial. It is reiterated,
that any observation made by this Court for the purpose of the proceedings
pending here has no bearing on the merits of the accusation, and is not to
influence the trial in any manner. Care must be taken to ensure that the
credibility of the judicial process is not undermined in any manner."
(Pages 356 - 357) The true purpose and scope of a proceeding of this nature
clearly emerges from the above quoted orders passed in the cases pending in
this Court. Some of the orders are indicated above. The required guidance to
the CBI and other government agencies as well as to the courts' monitoring such
investigations is available from the same. The delicate task of ensuring
implementation of the rule of law by requiring proper performance of its duty
by the CBI and other Government agencies, while taking care to avoid the
likelihood of any prejudice to the accused at the ensuing trial because of any
observation made on the merits of the accusation in the present proceeding. We
have no doubt that all concerned, including the High Court, would bear in mind
this aspect to prevent any reasonable impression of erosion in the credibility
of the judicial process.
We
have no doubt that the CBI and the High Court would proceed further in the
matter as indicated above. There can be no grievance to the CBI or any other
authority if the High Court's order and the proceedings before it are so
understood and continued. We make it clear that the above orders made by the
High Court are to be construed and understood in the manner indicated herein.
These
appeals are disposed of, accordingly.
Back
