Hemant
Dhasmana Vs. Central Bureau of Investigation & Anr [2001] Insc 397 (17 August 2001)
K.T.
Thomas & S.N. Variava Thomas, J.
Leave
granted.
A
complainant, after investigation, was transposed as an accused. Such a prodigy
happened in this case. A trap to catch a big fish (Chief Commissioner of Income
Tax) was orchestrated by the Central Bureau of Investigation (the CBI for
short) with a bewitching bait, but still he did not bite it. But the appellant
says that two sons of the said Chief Commissioner collected the bulky cash
offered to their father. On such a complaint the CBI conducted investigation.
After the investigation the CBI turned against the complainant/appellant and
ordered him to be prosecuted for giving false information with intent to cause
the public servant use his lawful power to the detriment of the public.
However, the final report laid by the CBI was not acceptable to the Special
Judge and he directed further investigation into the matter but the High Court
reversed the said direction by the impugned order.
Appellant
styles himself as a disciple of one Swami Rama, a non-resident Indian, who
founded a Trust by name Himalayan Institute of Medical Sciences at Dehra Dun with high profile public personage
shown as its patrons. The Trust had a lot of income tax problems. Appellant
felt that the then Commissioner of Income Tax, Meerut, was troubling the Trust and its founder with notices
frequently issued. It was in the said context that they approached B.P. Gupta,
Chief Commissioner of Income Tax, Kanpur (the third respondent) for redressal of their grievances.
Appellant
claims to have forwarded a complaint to the DIG of CBI, New Delhi on 6.3.1996,
complaining that at the behest of Respondent No.3 the Trust people including
the appellant contacted Janardhan Gupta (the son of the third respondent) who
demanded Rs. 20 lacs to be paid to his father as bribe and after a lot of
haggling, the amount was reduced to Rs.10 lacs and that the amount should be
paid to the third respondent within two days.
What
happened thereafter, according to the version of the appellant, can be summarised
as follows:
On
8.3.1996, CBI made all preparations for a trap.
The
team of CBI officers reached the house of one Roshan Lal who was the treasurer
of the Trust and waited for the opportune time to hand over the bribe amount to
the third respondent. A micro-cassette supplied by the CBI to the appellant
with which he recorded the conversation between the appellant and Janardhan
Gupta (the fourth respondent) and his father (the third respondent). At the
pre-arranged time a bag containing the cash was handed over to Sudhanshu Gupta,
another son of the third respondent,(he is fifth respondent in this appeal) at
his residence in the presence of the fourth respondent. The signal was then
transmitted to the CBI officers who made a swoop and surrounded the house and
caught the fifth respondent. The bag containing the cash was recovered from
below the bed of the house of the third respondent. The investigation thereupon
was commenced by the CBI.
When
the investigation concluded the CBI filed its final report before the Special
Judge, Anti Corruption (Central) Lucknow. In the final report the case was given a totally reverse picture. The
CBI exonerated the third, fourth and the fifth respondents in full measure and
wanted the court to initiate prosecution proceedings against the appellant for
the offence under Sections 182 and 211 of the Indian Penal Code. The CBI took
the stand in strident tone that the complaint made by the appellant is not only
false but it was aimed at deterring the Income Tax officials from discharging
their functions fearlessly. It was a calculated move to forestall the strong
measures devised against Swami Rama and the Trust founded by him, according to
the CBI.
The
Special Judge on receipt of the aforesaid final report issued notice to the
appellant and after hearing him ordered the CBI to re-investigate the matter.
The operative part of that order is extracted below:
Under
these circumstances perusal of the final report submitted shows that the
investigation of the case was not properly conducted and this final report was
submitted without properly going through the provisions contained in the Cr.P.C.
and Prevention of Corruption Act. It is also necessary to point out that
preliminary investigation was conducted by Sh.V.K. Gupta, DIG (CBI). In my
view, in this situation it would be proper that this case is again investigated
by DIG level officer.
The
final report, not being legitimate is liable to be rejected. The final report
is therefore rejected and the Director CBI, New Delhi is ordered to depute an
officer of the rank of DIG in this matter who would investigate this case
afresh and submit his report.
The
CBI moved the High Court of Allahabad in revision, against the said order of
the Special Judge. The contention of the CBI before the High Court of Allahabad
was that the alleged micro-cassettes of the tape recorded conversation
purported to have made between the appellant and the fourth respondent were
neither attested by any independent witness nor recorded by any officials of
the CBI nor authenticated by it and that it was a self-managed cassette of the
appellant. The learned Single Judge of the High Court who passed the impugned
order expressed like this:
On a consideration
of the entire materials submitted along with the report and made available
before the learned Special Judge, there was no case for any fresh investigation
or for any further investigation. It has been mentioned above that further
investigation could only be ordered when some other evidence was in sight and
was not collected or was left over, and could help the merit of the case.
In the
instant case every relevant material was collected and no material was left
over, and every such material so collected was made the basis of the final
report and thus every material was placed before the Special Judge.
The
High Court deprecated the direction of the Special Judge for specifying an
officer of the DIG rank of the CBI to conduct the investigation. Learned Single
Judge of the High Court upheld the contention of the CBI that an officer of the
rank of DIG is mainly a supervisory officer and the CBI Manual contains the
measures to be adopted for conducting investigation. In the view of the High
Court the order of the Special Judge is clearly against Section 173(8) of the
Code of Criminal Procedure (for short the Code). This is how the High Court has
expressed on that aspect in the final portion of the impugned judgment:
The
Special Judge could have either rejected or could have accepted the final
report under the circumstances of the case after applying his judicial mind and
after recording the basis of his opinion. There was no sense in ordering the
fresh investigation in the circumstances of the case in disregard of provisions
of Section 173(8) of the Code and making the entire investigation a futile
exercise. It was not a case of further investigation. The order is bad in law.
Ultimately
the learned Single Judge, after setting aside the order of the Special Judge,
directed him to consider the materials before him once again and to pass
suitable orders in accordance with law.
Learned
counsel for the appellant contended that the High Court should not have
interfered with the order of the Special Judge, particularly when the said
order did not contain any final conclusion on the report. According to him, all
that the Special Judge said was that further investigation should be conducted.
At any rate, the CBI recovered 10 lakhs of rupees from the house of the third
respondent and hence a further investigation would have only helped the CBI to
know how it reached there and through whom, etc., contended the counsel.
Mr. Altaf
Ahmad, learned Additional Solicitor General, submitted that the conclusion of
the CBI was based on the materials collected by them and that was filtered at
different levels of the organisation of the CBI. The final report was laid only
when the CBI was convinced of the conclusions reached therein.
The
real question is not whether the conclusion reached by the CBI had been
subjected to verification or supervision at different departmental level. Nor
even whether the conclusion is correct. When the final report is laid after
conclusion of the investigation the Court has the power to consider the same
and issue notice to the complainant to be heard in case the conclusions in the
final report are not in concurrence with the allegations made by them. Though
the investigation was conducted by the CBI the provisions under Chapter XII of
the Code would apply to such investigation. The police referred to in the
Chapter, for the purpose of investigation, would apply to the officer/officers
of the Delhi Police Establishment Act.
On
completion of the investigation the report has to be filed by the CBI in the manner
provided in Section 173(2) of the Code, with the exception that the magistrate
referred to in the section would be understood as a Special Judge when the
offence involved are under the Prevention of Corruption Act, 1988.
The
first sub-section to Section 173 says that the investigation shall be completed
without unnecessary delay.
It is
sub-section (2) which contemplates the report on conclusion of the
investigation. It reads thus:
(2)(i)
As soon as it is completed, the officer in charge of the police station shall
forward to a Magistrate empowered to take cognizance of the offence on a police
report, a report in the form prescribed by the State Government, stating-
(a) the
names of the parties;
(b) the
nature of the information;
(c) the
names of the persons who appear to be acquainted with the circumstances of the
case;
(d) whether
any offence appears to have been committed and, if so, by whom;
(e) whether
the accused has been arrested;
(f) whether
he has been released on his bond and, if so, whether with or without sureties;
(g) whether
he has been forwarded in custody under section 170.
(ii)
The officer shall also communicate, in such manner as may be prescribed by the
State Government, the action taken by him, to the person, if any, by whom the information
relating to the commission of the offence was first given.
When
the report is filed under the Sub-section the magistrate (in this case the
Special Judge) has to deal with it by bestowing his judicial consideration. If
the report is to the effect that the allegations in the original complaint were
found true in the investigation, or that some other accused and/or some other
offences were also detected, the Court has to decide whether cognizance of the
offences should be taken or not on the strength of that report. We do not think
that it is necessary for us to vex our mind, in this case, regarding that
aspect when the report points to the offences committed by some persons. But
when the report is against the allegations contained in the complaint and
concluded that no offence has been committed by any person it is open to the
Court to accept the report after hearing the complainant at whose behest the
investigation had commenced. If the Court feels, on a perusal of such a report
that the alleged offences have in fact been committed by some persons the Court
has the power to ignore the contrary conclusions made by the investigating
officer in the final report. Then it is open to the Court to independently
apply its mind to the facts emerging therefrom and can even take cognizance of
the offences which appear to him to have been committed, in exercise of his
power under Section 190(1)(b) of the Code.
The
third option is the one adumbrated in Section 173(8) of the Code. That
sub-section reads thus:
Nothing
in this section shall be deemed to preclude further investigation in respect of
an offence after a report under sub-section (2) has been forwarded to the
Magistrate and, where upon such investigation, the officer in charge of the
police station obtains further evidence, oral or documentary, he shall forward
to the magistrate a further report or reports regarding such evidence in the
form prescribed; and the provisions of sub- sections (2) to (6) shall, as far
as may be, apply in relation to such report or reports as they apply in
relation to a report forwarded under sub-section (2).
Although
the said sub-section does not, in specific terms, mention about the powers of
the Court to order further investigation the power of the police to conduct
further investigation envisaged therein can be triggered into motion at the
instance of the Court. When any such order is passed by a court which has the
jurisdiction to do so it would not be a proper exercise of revisional powers to
interfere therewith because the further investigation would only be for the
ends of justice. After the further investigation, the authority conducting such
investigation can either reach the same conclusion and reiterate it or it can
reach a different conclusion. During such extended investigation the officers
can either act on the same materials or on other materials which may come to
their notice. It is for the investigating agency to exercise its power when it
is put back to that track. If they come to the same conclusion it is of added
advantage to the persons against whom the allegations were made, and if the
allegations are found false again the complainant would be in trouble. So from
any point of view the Special Judges direction would be of advantage for the
ends of justice.
It is too
premature for the High Court to predict that the investigating officer would
not be able to collect any further material at all. That is an area which
should have been left to the investigating officer to survey and recheck.
In Bhagwant
Singh vs. Commissioner of Police and anr. {1985(2) SCC 537} a three-Judge Bench
of this Court has said, though in a slightly different context, that three
options are open to the court on receipt of a report under Section 173(2) of
the Code, when such report states that no offence has been committed by the
persons accused in the complaint. They are:
(1)
The court may accept and drop the proceedings; or
(2)
The court may disagree with the report and take cognizance of the offence and
issue process if it takes the view that there is sufficient ground for
proceeding further; or
(3)
The court may direct further investigation to be made by the police.
Another
three Judge Bench in M/s. India Carat Pvt. Ltd. vs. State of Karnataka and anr. {1989 (2) SCC 132} has
stated thus:
The
position is, therefore, now well settled that upon receipt of a police report
under Section 173(2) a Magistrate is entitled to take cognizance of an offence
under Section 190(1)(b) of the Code even if the police report is to the effect
that no case is made out against the accused. The Magistrate can take into
account the statements of the witnesses examined by the police during the
investigation and take cognizance of the offence complained of and order the
issue of process to the accused.
Section
190(1)(b) does not lay down that a Magistrate can take cognizance of an offence
only if the investigating officer gives an opinion that the investigation has
made out a case against the accused. The Magistrate can ignore the conclusion
arrived at by the investigating officer and independently apply his mind to the
facts emerging from the investigation and take cognizance of the case, if he
thinks fit, in exercise of his powers under Section 190(1)(b) and direct the
issue of process to the accused.
In
Union Public Service Commission vs. S. Papaiah and ors. {1997 (7) SCC 614} a
two Judge Bench considered the scope of Section 173(8) of the Code in extenso. Dr.A.S.
Anand, J (as the learned Chief Justice then was) after extracting Section
173(8) of the Code has observed thus:
The
Magistrate could, thus in exercise of the powers under Section 173(8) Cr.P.C. direct
the CBI to further investigate the case and collect further evidence keeping in
view the objection raised by the appellant to the investigation and the new
report to be submitted by the investigating officer would be governed by
sub-sections (2) to (6) of Section 173 Cr.P.C.
When
the Special Judge has opted to order for a further investigation the High Court
should have stated to the CBI to comply with that direction. Nonetheless, we
are in agreement with the observation of the learned Single Judge of the High
Court that the Special Judge or the magistrate could not direct that a
particular police officer or even an officer of a particular rank should
conduct such further investigation. It is not within the province of the
magistrate while exercising the power under Section 173(8) to specify any
particular officer to conduct such investigation, not even to suggest the rank
of the officer who should conduct such investigation.
In the
result, we allow this appeal and set aside the judgment under challenge.
However, while restoring the order of the Special Judge we make it clear that
the direction made by the Special Judge that further investigation shall be
conducted by an officer of the DIG rank of the CBI, will stand deleted. We make
it abundantly clear that we have not considered the merits of the allegations
made against the respondent or the conclusions reached by the CBI in the report
already laid before a Special Judge. Hence, further investigation as ordered by
the Special Judge can be conducted untrammeled by any of the observations made
by the Special Judge or by us.
J [
K.T. Thomas ] J [ S.N. Variava ] August 17, 2001.
Back
Pages: 1 2