Superintendent
of Police, C.B.I. & Ors Vs. Tapan Kr. Singh [2003] Insc 219 (10 April 2003)
N. Santosh
Hedge & B.P. Singh. B.P. Singh, J.
The
Union of India, Superintendent of Police, Central Bureau of Investigation and
other officers of the said Bureau have come up in appeal against the judgment
and order of the High Court of Judicature at Calcutta dated February 28, 1992
in Criminal Revision No. 1913 of 1990 whereby the High Court while allowing the
revision petition quashed the investigation on the basis of G.D. Entry No. 681
as also the First Information Report recorded on October 20, 1990. It further
quashed R.C.
Case
No. 51 of 1990 under Section 13(2) read with Section 13(1)(e) of the Prevention
of Corruption Act. Consequently it also quashed the search and seizure effected
on October 18, 1990 and directed that the money and
articles seized be returned to the person from whom they were seized.
The
brief facts of the case are as follows :-
On
October 17, 1990 the Superintendent of Police, Central Bureau of Investigation
(S.P.E.) (A.C.B.), Calcutta received information from reliable source on
telephone that respondent, who was then Director (Personnel), Eastern Coal
Fields Limited, was a corrupt officer in the habit of demanding and accepting
illegal gratification, had demanded and accepted a sum of rupees one lakh which
he was carrying with him while going to Nagpur by Gitanjali Express on October
17, 1990. Since the parties have advanced arguments before us on the question
whether the said report could be treated to be an information within the
meaning of Section 154 of the Code of Criminal Prosecution, it is convenient to
reproduce the General Diary Entry No.681 of October 17, 1990 in extenso which
is as follows :- "G.D. Entry No. 681 of 17.10.1990 of C.B.I. S.P.E.,
A.C.B., CALCUTTA 11.30 hours Information received from a reliable source
indicate that Shri Tapan Kumar Singh, Director (Personnel), Eastern Coalifields
Limited, Sanctorai, West Bengal is an out and out corrupt official and is in
habit of demanding and accepting illegal gratifications. Information further
revealed that he demanded and accepted huge cash to the tune of Rs.1 lakh
approximately which he would be carrying with him while going to Nagpur by Geetanjali Express on
17.10.1990. He would be boarding the train at Tata. The matter was discussed
with the DIG, CBI Calcutta and it was decided to verify the information by
intercepting him enroute and to take other follow up actions, if necessary.
Since
there is no time for further verification into the matter. I am leaving for Nagpur for Geetanjali Express today
(17.10.1990) scheduled to start from Howrah at 13.10 hrs. with a team of C.B.I. officers comprising of Inspector,
S.R. Majumdar, Inspector, R.K. Sarkar, Inspector, S.N. Bhattacharjee and
Inspector S.K. Dasgupta, this is as per provision of Section 157 of the Cr.
P.C. Sd/- T.K. Sangyal SP, CBI, SPE, ACB, Calcutta" As would be apparent
from the said G.D. Entry, the Superintendent of Police, C.B.I. discussed the
matter with D.I.G., C.B.I., Calcutta but since there was no time for further
verification into the matter, the Superintendent of Police, C.B.I. decided to
leave for Nagpur by Gitanjali Express with a view to intercept the respondent
and take further necessary action. In the said G.D.
Entry
it is stated that the Superintendent of Police, C.B.I. left with a team of
C.B.I. officers and that the action was taken as per the provisions of Section
157 of the Code of Criminal Procedure.
It is
not in dispute that on October
18, 1990 at 1130 hours
the police party intercepted the respondent at Nagpur Railway Station and
conducted his personal search as well as the search of his belongings as also
the search of his residential flat at Nagpur.
A huge
amount of money was recovered pursuant to such search and the said amount alongwith
other articles was seized. After returning to Calcutta on October
20, 1990 the
Superintendent of Police, C.B.I. lodged a First Information Report alleging
commission of offences punishable under Section 13(2) read with Section 13(1)(e)
of the Prevention of Corruption Act, 1988. On the basis of the said report,
R.C. Case No. 51 of 1990 (Calcutta) was
registered.
The
respondent filed a revision petition before the High Court of Calcutta
challenging the proceeding and sought quashing of the investigation as well as
the General Diary Entry No. 681 of October 17, 1990 and the First Information Report
lodged by the Superintendent of Police, C.B.I. He also prayed for return of the
money and other articles seized from him by the Superintendent of Police,
C.B.I. on October 18,
1990.
Before
the High Court several submissions were urged on behalf of the respondent
seeking quashing of the investigation as well as the G.D. Entry and the First
Information Report.
It was
firstly submitted that the General Diary Entry did not disclose the commission
of any cognizable offence and hence the Superintendent of Police, C.B.I. had no
authority to investigate the allegations made therein under Section 157 of the
Code of criminal Procedure, since he could exercise the power to investigate
only if the information given to the police related to the commission of a
cognizable offence. Secondly it was urged that since the investigation itself
was illegal, the search and seizure made pursuant thereto under Section 165 of
the Code of Criminal Procedure were also illegal. Thirdly it was submitted that
failure of the Superintendent of Police, C.B.I. to record in writing the ground
for his belief that the things necessary for the purpose of investigation might
be found in the place of search, amounted to breach of a mandatory condition
and, therefore, vitiated the search.
The
search was thus illegal and without jurisdiction and, therefore, any recovery
made or articles seized pursuant thereto should be returned to the person from
whom they were recovered. Lastly it was submitted that the information received
prior to investigation must be distinguished from the information collected
during investigation. The latter cannot take the place of First Information
Report. After conducting partial investigation the police officer cannot go
back and record a First Information Report under Section 154 of the Code of
Criminal Procedure Code. Such First Information Report is illegal and no action
can be taken on the basis of such an illegal First Information Report.
On
behalf of the appellants it was contended before the High Court that the G.D.
Entry was not the First Information Report and only the report made on October 20, 1990 was the First Information Report.
The action taken by the Superintendent of Police, C.B.I. after recording the
G.D. Entry and before lodging the formal First Information Report was only in
the nature of a preliminary inquiry before investigation. Secondly the mere
mention of a wrong section in the G.D. Entry did not vitiate the exercise of
powers if such exercise can be traced to a legitimate source. Lastly it was
submitted that even in a preliminary inquiry before initiation of
investigation, search and seizure was permissible.
The
High Court after considering the submissions urged on behalf of the parties
came to the conclusion that the General Diary entry did not disclose the
commission of a cognizable offence and, therefore, investigation pursuant to
such a General Diary Entry was illegal. The First Information Report which was
lodged after investigation was conducted in part was also illegal and
consequently no case could be initiated on the basis of such an illegal First
Information Report. It further held that this was not a case in which a
preliminary inquiry before investigation was justified. In any event, the
Superintendent of Police, C.B.I. did not in fact make any preliminary enquiry
and proceeded to take steps for investigation as was apparent from the G.D.
Entry wherein he stated that he was taking action under Section 157 of the Code
of Criminal Procedure. The submission that a wrong section was mentioned in the
G.D. Entry by him was rejected on the grounds firstly, that a senior officer
like the Superintendent of Police, C.B.I. was not expected to make such a
mistake and secondly, that the State was unable to mention the correct section
which he should have mentioned therein. Moreover, there was no provision in the
Code of Criminal Procedure authorizing a police officer to make a preliminary
enquiry before investigation. The steps taken by the Superintendent of Police,
C.B.I. were the steps which an investigating officer is authorized to take
while investigating a case on the basis of a report disclosing commission of a
cognizable offence, such as apprehension of the accused, collection of
evidence, search and seizure etc. Though it was not disputed that in law, in an
appropriate case, a G.D. Entry may be treated as a First Information Report and
can provide the basis for investigation, in the instant case however, the
Superintendent of Police, C.B.I. lodged a First Information Report two days
later.
The
steps taken by him after recording the G.D. Entry and before lodging the First
Information report on 20.10.1990 were the steps in investigation and not the
steps in a preliminary enquiry prior to initiation of regular investigation.
The
High Court also held that the alleged First Information Report lodged on
20.10.1990 was not a First Information Report in law, as it was recorded after
the investigation had proceeded to some extent, and was therefore covered by
Sections 161 and 162 of the Code.
On the
question whether the G.D. Entry itself disclosed the commission of a cognizable
offence, the Court observed :- "Now let me look into the G.D. Entry on the
basis of which the instant investigation has been started. On a careful
scrutiny of the said G.D. Entry I am of the opinion that the said G.D. Entry
contains some vague allegations and does not disclose the commission of any cognizable
offence. It has been stated that the present petitioner was an out and out
corrupt official and was in the habit of demanding and accepting illegal
gratifications such statement certainly does not disclose the commission of any
offence. It has been further stated that the petitioner demanded and accepted
huge cash to the tune of Rs.1,00,000.
The
statement is equally vague, it has not been stated from whom such huge cash was
demanded and accepted. Nor has it been stated that such demand or acceptance
was made as a motive or reward for doing or forbearing to do any official act
or for showing or for bearing to show in exercise of his official function, favour
or disfavour of any person or for rendering attempting to render any service or
disservice to any person. The information as recorded in G.D.
Entry
No. 681 is extremely (sic) cognizable offence. On such information as recorded
in the said G.D. Entry it cannot be said that the Police Officer reasonably had
reason to suspect the commission of any cognizable offence. As the information
as recorded in G.D. Entry No. 681 on the basis of which the instant
investigation has been started does not disclose the commission of any
cognizable offence and as the police officer cannot, reasonably had any reason
to suspect the commission of a cognizable offence on such held information,
this court in view of the aforesaid decision of the Supreme Court holds that
the investigation on the basis of the said G.D. Entry is unlawful and without
jurisdiction and should, therefore, be quashed".
Lastly,
the High Court held that the search and seizure conducted by the Superintendent
of Police, C.B.I. were not in accordance with law as a mandatory requirement of
Section 165 of the Code was not fulfilled inasmuch as the officer making the
investigation failed to record in writing the grounds for his belief that
anything necessary for the purpose of an investigation into any offence which
he was authorized to investigate may be found in any place and that such thing
could not, in his opinion, be otherwise obtained without undue delay. The
search and seizure was, therefore, illegal and the things recovered in
pursuance of such illegal search must be returned to the person from whom they
were seized.
On
these findings, the High Court allowed the Criminal Revision Petition and
quashed the G.D. Entry, the First Information Report as well as the
investigation, and directed return of the money and articles seized.
The
crucial finding recorded by the High Court is that the facts stated in the G.D.
Entry did not disclose the commission of a cognizable offence, and consequently
the police had no power or jurisdiction to investigate the allegations made
therein. Thus, the investigation undertaken, and the search and seizures made
were illegal and without jurisdiction and deserved to be quashed.
It is
the correctness of this finding which is assailed before us by the appellants.
They contend that the information recorded in the G.D. Entry does disclose the
commission of a cognizable offence. They submitted that even if their
contention, that after recording the G.D. Entry only a preliminary enquiry was
made, is not accepted, they are still entitled to sustain the legality of the
investigation on the basis that the G.D. Entry may be treated as a First
Information Report, since it disclosed the commission of a cognizable offence.
The
parties before us did not dispute the legal position that a G.D. Entry may be
treated as a First Information Report in an appropriate case, where it
discloses the commission of a cognizable offence. If the contention of the
appellants is upheld, the order of the High Court must be set aside because if
there was in law a First Information Report disclosing the commission of a
cognizable offence, the police had the power and jurisdiction to investigate,
and in the process of investigation to conduct search and seizure. It is,
therefore, not necessary for us to consider the authorities cited at the Bar on
the question of validity of the preliminary enquiry and the validity of the
search and seizure.
We
have earlier in this judgment reproduced the G.D. Entry dated 17.10.1990 in extenso.
The facts stated therein are that the respondent was a corrupt official and was
in the habit of accepting illegal gratifications; that he had demanded and
accepted cash to the tune of rupees one lakh approximately, and that he would
be carrying with him the said amount while going to Nagpur by Gitanjali Express
on 17.10.1990.
The
information so recorded does make a categoric assertion that the respondent has
accepted a sum of rupees one lakh by way of illegal gratification, and that he
was carrying the said amount with him while going to Nagpur by Gitanjali
Express on that day.
If
these assertions are accepted on their face value, clearly an offence of
criminal mis-conduct under Section 13 of the Prevention of Corruption Act, 1988
is made out. It cannot be disputed that such offence of criminal mis-conduct is
a cognizable offence having regard to the second item of the last part of
Schedule I of the Code of Criminal Procedure under the head "II
Classification of Offences Against other laws".
The
High Court fell into an error in thinking that the information received by the
police could not be treated as a First Information Report since the allegation
was vague in as much as it was not stated from whom the sum of rupees one lakh
was demanded and accepted. Nor was it stated that such demand or acceptance was
made as motive or reward for doing or forbearing to do any official act, or for
showing or forbearing to show in exercise of his official function, favour or disfavour
to any person or for rendering, attempting to render any service or disservice
to any person. Thus there was no basis for a police officer to suspect the
commission of an offence which he was empowered under section 156 of the Code
to investigate.
It is
well settled that a First Information Report is not an encyclopedia, which must
disclose all facts and details relating to the offence reported. An informant
may lodge a report about the commission of an offence though he may not know
the name of the victim or his assailant. He may not even know how the
occurrence took place. A first informant need not necessarily be an eye witness
so as to be able to disclose in great details all aspects of the offence
committed. What is of significance is that the information given must disclose
the commission of a cognizable offence and the information so lodged must
provide a basis for the police officer to suspect the commission of a cognizable
offence. At this stage it is enough if the police officer on the basis of the
information given suspects the commission of a cognizable offence, and not that
he must be convinced or satisfied that a cognizable offence has been committed.
If he has reasons to suspect, on the basis of information received, that a
cognizable offence may have been committed, he is bound to record the
information and conduct an investigation. At this stage it is also not
necessary for him to satisfy himself about the truthfulness of the information.
It is only after a complete investigation that he may be able to report on the
truthfulness or otherwise of the information. Similarly, even if the
information does not furnish all the details, he must find out those details in
the course of investigation and collect all the necessary evidence. The
information given disclosing the commission of a cognizable offence only sets
in motion the investigative machinery, with a view to collect all necessary
evidence, and thereafter to take action in accordance with law. The true test
is whether the information furnished provides a reason to suspect the
commission of an offence, which the concerned police officer is empowered under
Section 156 of the Code to investigate. If it does, he has no option but to
record the information and proceed to investigate the case either himself or
depute any other competent officer to conduct the investigation. The question
as to whether the report is true, whether it discloses full details regarding
the manner of occurrence, whether the accused is named, and whether there is
sufficient evidence to support the allegations are all matters which are alien
to the consideration of the question whether the report discloses the
commission of a cognizable offence. Even if the information does not give full
details regarding these matters, the investigating officer is not absolved of
his duty to investigate the case and discover the true facts, if he can.
In the
instant case the information received by the Superintendent of Police, C.B.I.
clearly spells out the offence of criminal mis-conduct under Section 13 of the
Prevention of Corruption Act, 1988, inasmuch as there is a clear allegation
that the respondent has demanded and accepted a sum of rupees one lakh by way
of illegal gratification. The allegation is not as vague and bald as the High
Court makes it out to be. There is a further assertion that the respondent is
carrying with him the said sum of rupees one lakh and is to board the Gitanjali
Express going to Nagpur. The allegation certainly gives rise to a suspicion
that a cognizable offence may have been committed by the respondent, which the
Superintendent of Police, C.B.I. was empowered to investigate. Therefore if the
Superintendent of Police, C.B.I. proceeded to intercept the respondent and
investigate the case, he did only that which he was in law obliged to do. His
taking up the investigation, therefore, cannot be faulted.
The
High Court has also quashed the G.D. Entry and the investigation on the ground
that the information did not disclose all the ingredients of the offence, as if
the informant is obliged to reproduce the language of the section, which
defines "criminal misconduct" in the Prevention of Corruption Act. In
our view the law does not require the mentioning of all the ingredients of the
offence in the First Information Report. It is only after a complete
investigation that it may be possible to say whether any offence is made out on
the basis of evidence collected by the investigating agency.
The
High Court also held that before conducting the search and seizure the
mandatory requirement of Section 165 was not fulfilled inasmuch as the
Investigating Officer did not record in writing the grounds for his belief as
required by the said section. It is pre-mature at this stage to consider
whether search and seizure was done in accordance with law as that is a
question which has to be considered by the Court, if the accused is ultimately
put up for trial and he challenges the search and seizure made. Similarly, the
question as to whether the G.D. Entry, or the F.I.R. formally recorded on
October 20, 1990, is the F.I.R. in the case, is a matter which may be similarly
agitated before the Court. Where two informations are recorded and it is
contended before the Court that the one projected by the prosecution as the
F.I.R. is not really the F.I.R. but some other information recorded earlier is
the F.I.R, that is a matter which the Court trying the accused has jurisdiction
to decide. Similarly, the mentioning of a particular Section in the F.I.R is
not by itself conclusive as it is for the Court to frame charges having regard
to the material on record. Even if a wrong Section is mentioned in the F.I.R.,
that does not prevent the Court from framing appropriate charges.
We
are, therefore, of the considered view that the High Court erred in exercising
its revisional jurisdiction to quash the G.D. Entry, the F.I.R. and the
investigation undertaken by the Superintendent of Police, C.B.I in the facts
and circumstances of this case. The High Court also erred in granting relief to
the respondent by directing the return of the seized amount and other articles.
This appeal, therefore, deserves to be allowed and is accordingly allowed. The
judgment and order of the High Court is set aside and the appellants are
directed to proceed with the investigation in accordance with law and
thereafter to take all steps as are required to be taken in law.
Since
we have directed the investigation to continue, the investigating agency should
complete the investigation and thereafter take such action as may be justified
in law. Nothing said in this judgment should be construed as expression of
opinion on the merit of the case. It is for the investigating agency to collect
all necessary evidence and take such steps as may be justified, having regard
to the evidence collected by it. We should not be understood to have expressed
any opinion on the truthfulness or otherwise of the allegations made in the
report on the basis of which the investigation was undertaken. Observations, if
any, have been made only for the purpose of deciding the question as to whether
the investigating agency was justified in taking up the investigation pursuant
to the G.D. Entry No. 681 recorded on the 17th October, 1990. Similarly, any
observation made by the High Court while disposing of the Revision should not
prejudice the case of the parties.
Back