Bureau Of Investigation Vs. Shri Ravi
Shankar Srivastava, Ias And Anr  Insc 487 (10 August 2006)
Pasayat & Altamas Kabir Arijit Pasayat, J.
Bureau of Investigation (in short 'CBI') questions legality of the judgment
rendered by a learned Single Judge of the Rajasthan High Court, Jaipur Bench.
Respondent No.1, a member of Indian Administrative Service filed a petition
under Section 482 of the Code of Criminal Procedure, 1973 (in short 'the Code')
for quashing the FIR registered by the appellant alleging commission of
offences punishable under Sections 120B, 167, 168, 177A of the Indian Penal
Code, 1860 (in short 'IPC') and Sections 13(2) and 13(1) of the Prevention of
Corruption Act, 1988 (in short 'PC Act'). The only ground on which the
respondent no.1 prayed for quashing the FIR is that the CBI had no jurisdiction
to register the FIR under the Delhi Special Police Establishment Act, 1946 (in
short the 'Act'). FIR was registered by Shri Rajiv Sharma, Superintendent of
Police, Jaipur at the Police Station, CBI on the information received through
some sources as in regard to certain advertisements involving criminal
conspiracy resulting in the commission of offences noted above.
no.1 filed the petition before the High Court questioning legality of the
reference to Sections 3, 5 and 6 of the Act, the respondent no.1 took the stand
that the CBI had no jurisdiction to register the case. In substance the stands
necessary by the concerned State for operation of the Act had been withdrawn as
is evident from the letter dated 26.6.1999 of the Special Officer (Home),
Secretary, Department in response to the letter dated 21.11.1989 written by the
Government of India, Department of Personnel and Training, New Delhi.
consent of the
State Government which was given in 1956 was extended in 1989 after the PC Act
was promulgated but subsequently the State Government had not considered it
appropriate to accord consent to extend some provisions of the Act to the whole
of the State of Rajasthan,
consent had been given by the State of Rajasthan in 1956 and extended in 1989, same did not relate to any particular
officer to act in terms of the Act and, therefore, the FIR as lodged had no
validity in the eye of law.
High Court accepted the stands. It held that the consent was earlier given in
1956 and extended in 1989 after the Act was enacted. The same became
inoperative after the State Government refused to accord consent for extending
the same provisions of the Act to the whole of Rajasthan. It was also held that
for the authorized officers to function under the Act it was necessary that the
officers were required to be individually notified and a general notification
would not suffice.
support of the appeal, learned counsel for the appellant submitted that the
High Court has committed patent errors in law. First, prayer of the respondent
no.1 could not have been adjudicated in a petition instituted under Section 482
of the Code. Secondly, the High Court has lost sight of the fact that the
notification issued under Section 5 of the Act had not been rescinded or
revoked at any point of time. Further an inter departmental communication has
been treated as a notification to hold that the State Government had not
extended the notification. The authority of the person who wrote that letter
has not been established. In any event, the same cannot be treated to be one
covered under Article 166 of the Constitution of India, 1950 (in short 'the
there was no specific order required in respect of each officer as has been
held in various decision of this Court.
response, learned counsel for the respondent no.1 submitted that when the
proceeding itself was void ab initio the High Court was justified in quashing
the FIR. Further, there is no material on record to show that the consent which
was given in 1956 and extended in 1989 was intended to be continued.
rival contentions need careful consideration.
of power under Section 482 of the Code in a case of this nature is the
exception and not the rule. The Section does not confer any new powers on the
High Court. It only saves the inherent power which the Court possessed before
the enactment of the Code. It envisages three circumstances under which the
inherent jurisdiction may be exercised, namely,
to give effect
to an order under the Code,
to prevent abuse
of the process of court, and
secure the ends of justice. It is neither possible nor desirable to lay down
any inflexible rule which would govern the exercise of inherent jurisdiction.
No legislative enactment dealing with procedure can provide for all cases that
may possibly arise. Courts, therefore, have inherent powers apart from express
provisions of law which are necessary for proper discharge of functions and
duties imposed upon them by law.
is the doctrine which finds expression in the section which merely recognizes
and preserves inherent powers of the High Courts. All courts, whether civil or
criminal possess, in the absence of any express provision, as inherent in their
constitution, all such powers as are necessary to do the right and to undo a
wrong in course of administration of justice on the principle "quando lex aliquid
alicui concedit, concedere videtur et id sine quo res ipsae esse non potest"
(when the law gives a person anything it gives him that without which it cannot
exist). While exercising powers under the section, the court does not function
as a court of appeal or revision.
jurisdiction under the section though wide has to be exercised sparingly,
carefully and with caution and only when such exercise is justified by the
tests specifically laid down in the section itself. It is to be exercised ex debito
justitiae to do real and substantial justice for the administration of which
alone courts exist. Authority of the court exists for advancement of justice
and if any attempt is made to abuse that authority so as to produce injustice,
the court has power to prevent abuse. It would be an abuse of process of the
court to allow any action which would result in injustice and prevent promotion
of justice. In exercise of the powers court would be justified to quash any
proceeding if it finds that initiation/continuance of it amounts to abuse of
the process of court or quashing of these proceedings would otherwise serve the
ends of justice. When no offence is disclosed by the complaint, the court may
examine the question of fact. When a complaint is sought to be quashed, it is permissible
to look into the materials to assess what the complainant has alleged and
whether any offence is made out even if the allegations are accepted in toto.
P. Kapur v. State of Punjab (AIR 1960 SC 866) this Court
summarized some categories of cases where inherent power can and should be
exercised to quash the proceedings.
manifestly appears that there is a legal bar against the institution or
continuance e.g. want of sanction;
allegations in the first information report or complaint taken at its face
value and accepted in their entirety do not constitute the offence alleged;
allegations constitute an offence, but there is no legal evidence adduced or
the evidence adduced clearly or manifestly fails to prove the charge.
dealing with the last case, it is important to bear in mind the distinction
between a case where there is no legal evidence or where there is evidence
which is clearly inconsistent with the accusations made, and a case where there
is legal evidence which, on appreciation, may or may not support the
accusations. When exercising jurisdiction under Section 482 of the Code, the
High Court would not ordinarily embark upon an enquiry whether the evidence in
question is reliable or not or whether on a reasonable appreciation of it
accusation would not be sustained. That is the function of the trial Judge.
Judicial process should not be an instrument of oppression, or, needless
harassment. Court should be circumspect and judicious in exercising discretion
and should take all relevant facts and circumstances into consideration before
issuing process, lest it would be an instrument in the hands of a private
complainant to unleash vendetta to harass any person needlessly. At the same
time the section is not an instrument handed over to an accused to
short-circuit a prosecution and bring about its sudden death. The scope of
exercise of power under Section 482 of the Code and the categories of cases
where the High Court may exercise its power under it relating to cognizable
offences to prevent abuse of process of any court or otherwise to secure the
ends of justice were set out in some detail by this Court in State of Haryana
v. Bhajan Lal (1992 Supp (1) 335). A note of caution was, however, added that
the power should be exercised sparingly and that too in rarest of rare cases.
The illustrative categories indicated by this Court are as follows:
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 accused.
allegations in the first information report and other materials, if any,
accompanying the FIR do not disclose a cognizable offence, justifying an
investigation 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.
Where the uncontroverted
allegations made in the FIR or complaint and the evidence collected in support
of the same do not disclose the commission of any offence and make out a case
against the accused.
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.
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.
Where there is
an express legal bar engrafted in any of the provisions of the Code or the Act
concerned (under which a criminal proceeding is instituted) to the institution
and continuance of the proceedings and/or where there is a specific provision
in the Code or Act concerned, providing efficacious redress for the grievance
of the aggrieved party.
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."
As noted above, the powers possessed by the High Court under Section 482 of the
Code are very wide and the very plenitude of the power requires great caution
in its exercise.
must be careful to see that its decision in exercise of this power is based on
sound principles. The inherent power should not be exercised to stifle a legitimate
prosecution. The High Court being the highest court of a State should normally
refrain from giving a prima facie decision in a case where the entire facts are
incomplete and hazy, more so when the evidence has not been collected and
produced before the Court and the issues involved, whether factual or legal,
are of magnitude and cannot be seen in their true perspective without
sufficient material. Of course, no hard-and-fast rule can be laid down in
regard to cases in which the High Court will exercise its extraordinary
jurisdiction of quashing the proceeding at any stage. (See: Janata Dal v. H. S.
Chowdhary (1992 (4) SCC 305), and Raghubir Saran (Dr.) v. State of Bihar (AIR 1964 SC 1). It would not be
proper for the High Court to analyse the case of the complainant in the light
of all probabilities in order to determine whether a conviction would be
sustainable and on such premises arrive at a conclusion that the proceedings
are to be quashed. It would be erroneous to assess the material before it and
conclude that the complaint cannot be proceeded with. In a proceeding
instituted on complaint, exercise of the inherent powers to quash the
proceedings is called for only in a case where the complaint does not disclose
any offence or is frivolous, vexatious or oppressive. If the allegations set
out in the complaint do not constitute the offence of which cognizance has been
taken by the Magistrate, it is open to the High Court to quash the same in
exercise of the inherent powers under Section 482 of the Code. It is not,
however, necessary that there should be meticulous analysis of the case before
the trial to find out whether the case would end in conviction or acquittal.
The complaint has to be read as a whole. If it appears that on consideration of
the allegations in the light of the statement made on oath of the complainant
that the ingredients of the offence or offences are disclosed and there is no
material to show that the complaint is mala fide, frivolous or vexatious, in
that event there would be no justification for interference by the High Court.
When an information is lodged at the police station and an offence is
registered, then the mala fides of the informant would be of secondary
the material collected during the investigation and evidence led in court which
decides the fate of the accused person. The allegations of mala fides against
the informant are of no consequence and cannot by themselves be the basis for
quashing the proceedings. (See: Dhanalakshmi v. R. Prasanna Kumar (1990 Supp
SCC 686), State of Bihar v. P. P. Sharma (AIR 1996 SC 309), Rupan Deol Bajaj v.
Kanwar Pal Singh Gill (1995 (6) SCC 194), State of Kerala v. O. C. Kuttan (AIR
1999 SC 1044), State of U.P. v. O. P. Sharma (1996 (7) SCC 705), Rashmi Kumar
v. Mahesh Kumar Bhada (1997 (2) SCC 397), Satvinder Kaur v. State (Govt. of NCT
of Delhi) (AIR 1996 SC 2983), Rajesh Bajaj v. State NCT of Delhi (1999 (3) SCC
259) and in State of Karnataka v. M. Devendrappa and Another (2002 (3) SCC 89).
to the question as to whether specific order in respect of each of the officer,
the position is no longer res integra. In Central Burea of Investigation v. State of Rajasthan and Ors. (1996 (9) SCC 735) it was held as follows:
"On a careful consideration of
the facts and circumstances of the case and submissions made by the learned
Counsel for the parties, it appears to us that under Section 3 of DSPE Act, the
Central Government may, by notification, specify the offences which are to be
investigated by the members of DSPE. It is not disputed that notification under
Section 3 of DSPE Act has been issued by the Central Government specifying the
offences under FERA to be investigated by the members of DSPE. It is also not
in dispute that a notification dated October 26, 1977 by the Government of India,
Ministry of Home Affairs, Department of Personnel and Administrative Reforms,
has been issued in exercise of the powers conferred by Sub-section (1) of
Section 5 read with Section 6 of DSPE Act. By the said notification the Central
Government, with consent of the various State Governments as mentioned in the
said notification including the State Government of Rajasthan, has extended the
powers and jurisdiction of the members of DSPE, inter alia, to the State of
Rajasthan for the investigation of the offences specified in the Schedule to
the said notification. In the schedule under Clause (a), offences punishable
under the FERA and under Clause (b) attempts, abatements and conspiracies in
relation to or in connection with any offence mentioned in Clause (a) and any
other offence committed in the course of the same transaction arising out of
the same facts have been mentioned.
It is, however, to be noted that
under Section 2 of DSPE Act, the Central Government has been empowered to
constitute a special police force to be called the DSPE for the investigation
in any Union Territory of offences notified under Section 3. Under Section 5(1) of
DSPE Act the Central Government may by order extend to any area including
Railway areas in a State, not being Union Territory, the powers and
jurisdiction of the members of the DSPE for the investigation of any of the
offences or classes of offences specified in a notification under Section 3,
Under Section 5(2), when by an order under Sub-section (1), the powers and
jurisdiction of the members of the said police establishment are extended to
any such area, a member thereof may, subject to any order which the Central
Government may make in this behalf, discharge the functions of a police officer
in that area and shall, while so discharging such functions, be deemed to be a
member of a police Force of that area and be vested with the powers, functions
and privileges and be subject to the liabilities of a police officer belonging
to that police force.
It is quite evident that members of
DSPE are members of special police force constituted under Section 2 of DSPE
Act by the Central Government. The question that arises for decision in this
case is whether or not a member of DSPE, which is also a member of special
police force constituted by the Central Government, even if authorised under
Section 3 and Section 5 of DSPE Act to investigate in respect of offences under
FERA in a particular state other than the Union Territory, with the consent of
such State Government, can investigate the offences for violation of FERA, more
so, when the offence is alleged to have been committed outside indian
Territory. It will be apposite at this stage to refer to the provisions of
Sections 3, 4 and 5 of FERA:
3: Classes of Officers of Enforcement - There shall be the following classes of
officers of Enforcement, namely:
Directors of Enforcement;
Directors of Enforcement;
Such other class
of officers of Enforcement as may be appointed for the purposes of this Act.
4 - Appointment and powers of officers of enforcement:
Government may appoint such persons as it thinks fit to be officers of
to the provisions of Sub-section (1), the Central Government may authorise a
Director of Enforcement or an Additional Director of Enforcement or a Deputy
Director of Enforcement or an Assistant Director of Enforcement to appoint
officers of Enforcement below the rank of an Assistant Director of Enforcement.
Subject to such
conditions and limitations as the Central Government may impose, an officer of
Enforcement may exercise the powers and discharged the duties conferred or
imposed on him under this Act.
5 - Entrustment of functions of Director or other officer of Enforcement:
Central Government may, by order and subject to such conditions and limitations
as it thinks fit to impose, authorise any officer of customs or any Central Excise
Officer or any police officer or any other officer of the Central Government or
a State Government to exercise such of the powers and discharge such of the
duties of the Director of Enforcement or any other officer of Enforcement under
this Act as may be specified in the order.
In our view, such notifications
under Sections 3 and 5 of DSPE Act are necessary for the purpose of exercising
powers by a member of DSPE in respect of offence or offences and in respect of
areas outside the Union Territory. It may however be noted here that by a general
notification, members of DSPE may be authorised to exercise power of
investigation in respect of offence or offences and in areas as specified in
the notification under Sections 3 and 5. As already indicated, although
officers of Enforcement Directorate are clothed with the powers and duties to
enforce implementation of the provisions of FERA, the Central Government has
been authorised to impose on other officers including a police officer, power
and authority to discharge such of the duties and functions as may be specified
by it. It is nobody's case that any notification has been issued under FERA authorising
the member of DSPE to discharge the duties and functions of an officer of
Enforcement Directorate. In our view, in the absence of such notification under
FERA, a member of DSPE, despite the aforesaid notifications under Sections 3
and 5 of DSPE Act, cannot be held to be an officer under FERA and therefore is
not competent to investigate into the offences under FERA." Nearly four
decades back the position was succinctly stated by this Court in Major E.G. Barsay
v. State of Bombay (AIR 1961 SC 1762) at para 29 as follows:
was contended before the High Court and it was repeated before us that the
consent should have been given to every individual member of the Special Police
Establishment and that a general consent would not be good consent. We do not
see any force in this argument. Under s. 6 of the Delhi Special Police
Establishment Act, no member of the said Establishment can exercise powers and
jurisdiction in any area in a State without the consent of the Government of
that State. That section does not lay down that every member of the said
Establishment should be specifically authorized to exercise jurisdiction in
that area, though the State Government can do so. When a State Government can
authorize a single officer to exercise the said jurisdiction, we do not see any
legal objection why it could not authorize the entire force operating in that
area belonging to that Establishment to make such investigation. The
authorization filed in this case sufficiently complies with the provisions of
s. 6 of the Delhi Special Police Establishment Act, 1946, and there are no
merits in this contention." Coming to the pivotal stand of respondent
no.1, as has been rightly submitted by leaned counsel for the appellant, there
is no notification revoking the earlier notification. The letter on which great
emphasis has been laid by the respondent no.1 and highlighted by the High
Court, the authority to write the letter has not been indicated. It has also
not been established that the person was authorized to take a decision. In any
event, the same does not meet requirements of Article 166 of the Constitution.
The letter is not even conceptually a notification. High Court was, therefore,
not justified in holding that there was a notification rescinding earlier
High Court was not justified in quashing the proceedings instituted on the
basis of the FIR lodged. The impugned judgment of the High Court is set aside.
The appeal is allowed.