Shashikant
Vs. Central Bureau of Investigation & Others [2006] Insc 752 (7 November 2006)
S.B.
Sinha & Markandey Katju
[Arising
out of S.L.P. (Crl.) No.6426 of 2005] S.B. SINHA, J :
Leave
granted.
This
appeal is directed against a judgment and order dated 12.09.2005 passed by a
learned Single Judge of the Nagpur Bench of the High Court of Judicature at
Bombay High Court in Criminal Writ Petition No.558 of 2005 whereby and whereunder
the writ petition filed by Appellant herein was dismissed.
Appellant
claims himself to be a vigilant employee He made an anonymous complaint to the
Central Bureau of Investigation alleging corrupt practices and financial
irregularities on the part of some officers of his department. First respondent
No.1 stated that on the basis of a source information, a preliminary inquiry
was conducted in which the statements of various officers were recorded.
However, the investigating officer was of the opinion that it was not necessary
to register a First Information Report.
It
recommended for holding of departmental proceedings against the concerned
officers. The said recommendation found favour with the higher officers. The
opinion of the Central Vigilance Commission was also obtained.
It is
stated that pursuant to or in furtherance of the said recommendation, the
Railway Administration initiated departmental proceedings against the concerned
officers, namely, S/Shri Shyam Sunder, U.J. Dave, R.T. Pali and Ganga Prasad Sahu
and imposed different penalties on them. The Railway Board thereafter by
letters dated 06.12.2005 and 22.02.2006 advised the Central Vigilance
Commission as regards imposition of penalties upon the said officers and
closure of cases against them.
Appellant,
however, in the meanwhile, was transferred by an order dated 20.05.2005. He
approached the Central Administrative Tribunal contending that the said order
of transfer was mala fide and being an outcome of his complaint and statements
made in the inquiry conducted by the first respondent. By an order dated
17.08.2005, the application filed by Appellant was dismissed.
A writ
petition was filed by Appellant, inter alia, praying for the following reliefs
:
"(i)
direct the respondent no.1 to reopen the Preliminary Inquiry No.PE/4A/2004 and
submit a report in accordance with law after a detailed inquiry in the matter
to the Competent Court.
(ii) direct
the respondent no.1 to register the inquiries for offences against the
respondent nos. 2 to 4 for excess purchases and commission of fraud to the Nagpur
Municipal Corporation and Amravati Municipal Corporation in terms of octroi
amount of Rs. 34 lakhs and for duping the respondent nos. 6 and 7.
(iii) direct
the respondent no. 1 to register inquiry for offences in respect of excess
purchases of Amla.
(iv) direct
the respondent no.1 to receive the complaints of the petitioner in respect of
all contracts past and present in terms of excess payment in the Nagpur Store
and direct the respondent nos.2 to 5 to provide access to all records &
necessary documents to the petitioner for filing the complaints.
(v) direct
the respondent no. 2 to reconsider the Order dated 20.5.05 passed by the Chief
Personnel Officer (Signal & Telecommunication), Central Railway in view of
the disclosures made by the petitioner and his request for detailed enquiry of
the Store of Nagpur Division of Central Railway.
(vi) pending
the reconsideration of the transfer of the petitioner by the respondent no. 2,
stay the effect & operation of the Order passed by the Chief Personnel
Officer (S & T), a Subordinate of the respondent no. 2 dated 20/5/2005." The High Court dismissed the said writ
petition, opining :
"If
this is an accepted fact, the cognizance of the complaint must have been taken
by the CBI and it is for them to enquire/investigate into the matter. The
presence of the Petitioner at Nagpur for
that purpose is not necessary. The CBI has a national network and they can
reach the Petitioner, if they feel it necessary.
In
respect of the grievance of the Petitioner as to whether the CBI is not doing
their duty, it does not appear to be well founded. As the crux of the matter is
that since the Petitioner is aggrieved by his transfer and having failed before
the CAT, he has invoked the extraordinary criminal jurisdiction of this Court
by filing the present Writ Petition. In our opinion, this is nothing but an
abuse of process of Court." Mr. S.S. Voditel, the learned counsel
appearing on behalf of Appellant, would contend that even in a case where the
Investigating Officer may exercise his option of closing a case, it would be
obligatory on his part to comply with the provisions of Section 157(1)(b) of
the Code of Criminal Procedure (for short, 'the Code'). In support of the said
contention, our attention has been drawn to some decisions of this Court as also
a decision of the Kerala High Court in Velayudhan v. State of Kerala [1998 (1)
Crimes 510].
Mr. Vikas
Singh, the learned Additional Solicitor General, appearing on behalf of
Respondents, on the other hand, would submit that the first respondent having been
constituted in terms of the Section 2 of the Delhi Special Police Establishment
Act, 1946 (for short, 'the said Act') and the Central Government having laid
down the procedures for conducting investigation including the mode and manner
in which the preliminary inquiry should be conducted, (known as CBI Manual),
which received the approval of this Court in Vineet Narain and Others v. Union
of India and Another [(1998) 1 SCC 226], the impugned judgment of the High
Court should not be interfered with.
The
said Act was enacted to make provision for the constitution of a special police
force in Delhi for the investigation of certain offences in the Union
territories for the superintendence and administration of the said force and
for extension to other of the powers and jurisdiction of members of the said
force in regard to the investigation of the said offences. Section 2 empowers
the Central Government to constitute a special force.
Indisputably,
the first respondent has been constituted in terms thereof. Sub section (2) of
Section 2 provides that subject to any orders which the Central Government may
make in this behalf, members of the said police establishment shall have
throughout any Union territory in relation to the investigation of such
offences and arrest of persons concerned in such offences, all the powers,
duties, privileges and liabilities which police officers of that Union
territory have in connection with the investigation of offences committed
therein. The said Act indisputably applies in regard to charges of corruption
made against the employees of Union of India. It is also not disputed that the
C.B.I. Manual was made by the Central Government providing for detailed
procedure as regards the mode and manner in which complaints against public servants
are to be dealt with.
In Vineet
Narain (supra), it was held :
"12.
The CBI Manual based on statutory provisions of the CrPC provides essential
guidelines for the CBIs functioning. It is imperative that the CBI adheres
scrupulously to the provisions in the Manual in relation to its investigative
functions, like raids, seizure and arrests. Any deviation from the established
procedure should be viewed seriously and severe disciplinary action taken
against the officials concerned." CBI Manual provides for a preliminary
inquiry. By reason thereof a distinction has been made between a preliminary
inquiry and a regular case.
A
preliminary inquiry in terms of Para 9.1 of the CBI Manual may be converted
into a regular case as soon as sufficient material becomes available to show
that prima facie there has been commission of a cognizable offence.
Paragraph
9.2 reads as under:
"While
proposing registration of a Preliminary Enquiry pertaining to the abuse of
official position by a public servant in the matter of business/commercial
decision, the important difference between a business risk and a mala fide
conduct should be kept in mind with view to ensure that while corrupt public
servants are suitably dealt with the bona fide business/commercial decisions taken
by public servants in discharge of their duties are not taken up for
unnecessary probe." Paragraph 9.7 reads as under:
"As
soon as it is decided to register a PE, the SP will take action to get the PE
Registration Report prepared, which will invariably be vetted by him and in
case of important enquiries even drafted by him.
Registration
Report of PE should be written in the PE Registration Report Form and not on
the form prescribed for recording First Information Report under Section 154
Cr. PC. Beside the allegations in brief, the complete details of the suspects
involved should be recorded in the PE Registration Report. In respect of the
public servants found involved in the matter, their Group, the Service (IAS,
IRS, IPS etc.), present designation, scale of pay, present pay and date of
superannuation (if available) should also be mentioned in the PE. registration
report.
The
copies of the PE Registration Reports should be sent to the authorities
mentioned in the Annexure 9-A to this chapter." Paragraphs 9.10 and 9.11
provide for collection of documents and recording of statements during
preliminary inquiry, providing for that the statements of witnesses during
preliminary inquiry should be recorded in the same manner as recorded during
investigation of regular cases.
Paragraphs
9.12 to 9.14 provide for the procedures for converting a preliminary inquiry
into a regular case. Indisputably, the provisions of the Code are applicable in
relation to the inquiries.
The
provisions of the said Act indisputably are applicable to the fact of the
present case. The jurisdiction of the first respondent, in this behalf, is not
in question.
Appellant
does not deny or dispute that the first respondent initiated a preliminary
inquiry upon receipt of the complaint. The question which arises for
consideration is as to whether it was obligatory on the part of the first
respondent to lodge a First Information Report and carry out a full- fledged
investigation about the truthfulness or otherwise of the allegations made in
the said anonymous complaint.
Although
ordinarily in terms of Section 154 of the Code, when a report is received
relating to the cognizable offence, a First Information Report should be
lodged, to carry out a preliminary inquiry even under the Code is not unknown.
When
an anonymous complaint is received, no investigating officer would initiate
investigative process immediately thereupon. It may for good reasons carry out
a preliminary enquiry to find out the truth or otherwise of the allegations
contained therein.
A
three-Judge Bench of this Court in The State of Uttar Pradesh v. Bhagwant Kishore
Joshi [1964 (3) SCR 71], referring to the provisions of Section 5A of the
Prevention of Corruption Act, opined :
"...Even
so the said police officer received a detailed information of the offences
alleged to have been committed by the accused with necessary particulars,
proceeded to the spot of the offence, ascertained the relevant facts by going
through the railway records and submitted a report of the said acts. The said
acts constituted an investigation within the meaning of the definition of
investigation under Section 4(1) of the Code of Criminal Procedure as explained
by this Court. The decisions cited by the learned counsel for the State in
support of his contention that there was no investigation in the present case
are rather wide off the mark. In In re Nanumuri Anandayya a Division Bench of
the Madras High Court held that an informal enquiry on the basis of a vague
telegram was not an investigation within the meaning of Section 157 of the Code
of Criminal Procedure. In In re Rangarujulu, Ramaswami, J. of the Madras High
Court described the following three stages a policeman has to pass in a
conspiracy case :
"...hears
something of interest affecting the public security and which puts him on the
alert; makes discreet enquiries, takes soundings and sets up informants and is
in the second stage of qui vive or lookout; and finally gathers sufficient
information enabling him to bite upon something definite and that is the stage
when first information is recorded and when investigation starts." This
graphic description of the stages is only a restatement of the principle that a
vague information or an irresponsible rumour would not in itself constitute
information within the meaning of Section 154 of the Code or the basis for an
investigation under Section 157 thereof. In State of Kerala v. M.J. Samuel a
Full Bench of the Kerala High Court ruled that, it can be stated as a general
principle that it is not every piece of information however vague, indefinite
and unauthenticated it may be that should be recorded as the first information
for the sole reason that such information was the first, in point of time, to
be received by the police regarding the commission of an offence. The Full
Bench also took care to make it clear that whether or not a statement would
constitute the first information report in a case is a question of fact and
would depend upon the circumstances of that case..." Only when a F.I.R. is
lodged, the officer in charge of the police station statutorily liable to
report thereabout to a Magistrate who is empowered to take cognizance in terms
of proviso to Section 157(1) of the Code. Proviso (b) appended thereto empowers
the Investigating Officer not to investigate where it appears to him that there
is no sufficient ground for entering into an investigation. Sub-section (2) of
Section 157 reads as under :
"(2)
In each of the cases mentioned in clauses (a) and (b) of the proviso to
sub-section (1), the officer in charge of the police station shall state in his
report his reasons for not fully complying with the requirements to that
sub-section, and, in the case mentioned in clause (b) of the said proviso, the
officer shall also forthwith notify to the informant, if any, in such manner as
may be prescribed by the State Government, the fact that he will not
investigate the case or cause it to be investigated." The question,
therefore, as to whether an empowered officer who had made investigation or caused
the same to be made in a cognizable offence within the meaning of Section 157
of the Code or had not initiated an investigation on the basis of an
information which would not come within the meaning of Section 154 of the Code
is essentially required to be determined in the fact situation obtaining in
each case.
Yet
again in State of Haryana and Others v. Bhajan Lal and Others
[(1992) Supp. 1 SCC 335], this Court referred to P. Sirajuddin etc. v. State of
Madras etc. [(1970) 1 SCC 595] and Bhagwant Kishore Joshi (supra) in the
following terms :
"77.
In this connection, it will be appropriate to recall the views expressed by Mitter,
J. in P. Sirajuddin v. State of Madras in the following words: (SCC p. 601, para
17) "Before a public servant, whatever be his status, is publicly charged
with acts of dishonesty which amount to serious misdemeanour or misconduct of
the type alleged in this case and a first information is lodged against him,
there must be some suitable preliminary enquiry into the allegations by a
responsible officer. The lodging of such a report against a person specially
one who like the appellant occupied the top position in a department, even if
baseless, would do incalculable harm not only to the officer in particular but
to the department he belonged to, in general .... The means adopted no less
than the end to be achieved must be impeccable."
78. Mudholkar,
J. in a separate judgment in State of Uttar Pradesh v. Bhagwant Kishore Joshi
at p. 86 while agreeing with the conclusion of Subba Rao, J. (as he then was)
has expressed his opinion stating: (SCR pp. 86-87) "In the absence of any
prohibition in the Code, express or implied, I am of opinion that it is open to
a police officer to make preliminary enquiries before registering an offence
and making a full scale investigation into it."" Thus, registration
of a case is a sine qua non for starting investigation [See Mohindro v. State
of Punjab and Others (2001) 9 SCC 581].
Only
an anonymous complaint was made in June 2004. Evidently it was within the
province of the first respondent to commence a preliminary inquiry. The
procedure laid down in the CBI Manual and in particular when it was required to
inquire into the allegation of the corruption on the part of some public
servants, recourse to the provisions of the Manual cannot be said to be unfair.
It did not find any reason to convert the preliminary inquiry into a regular
case. Pursuant to or in furtherance of the recommendation made by the first
respondent, which had received the imprimatur by the Central Vigilance
Commission, departmental proceedings were initiated. The Central Vigilance
Commission advised the Railway Board to initiate minor penalty proceedings
against the delinquent officers by a letter dated 04.08.2005.
It is
not in dispute that Appellant was directed to be transferred on administrative
grounds by an order dated 20.05.2005. The complaint was although made by
Appellant; but it being anonymous his address was not known. It may be true,
initially he having been posted in the store in which the delinquent officers
were also working, his statement had been recorded;
but
when a preliminary inquiry was conducted on the basis of an anonymous complaint
without registering a First Information Report, neither it was necessary to
comply with the provision of the proviso (b) appended to sub- section (1) of
Section 157 of the Code, nor having regard to the fact that the identity of
Appellant was being unknown, the question of complying with the said
provisions, even if it be held that the same was applicable, did not arise.
Strong
reliance has been placed by the learned counsel on a decision of this Court on Hemant
Dhasmana v. Central Bureay of Investigation and Another [(2001) 7 SCC 536],
wherein it was held that when an investigation had been conducted by the
Central Bureau of Investigation, Chapter 12 of the Code would apply. There can
be no dispute as regards the proposition of law laid down therein. But the said
decision cannot be said to have any application whatsoever in the instant case.
In the
decision of the Kerala High Court in Velayudhan (supra), P.K. Balasubramanyan,
J. (as His Lordship then was) opined that on objective assessment on the part
of the officer, if he finds that no investigation into the allegation is
needed, he could certainly act in terms of Section 157 of the Code.
The
said decision, however, will have no application in a case of this nature.
The
First Respondent is a statutory authority. It has a statutory duty to carry out
investigation in accordance with law. Ordinarily, it is not within the province
of the court to direct the investigative agency to carry out investigation in a
particular manner. A writ court ordinarily again would not interfere with the
functioning of an investigative agency. Only in exceptional cases, it may do
so. No such case has been made out by the appellant herein. The nature of
relief prayed for in the writ petition also is beyond the domain of a writ
court save and except, as indicated hereinbefore, an exceptional case is made
out.
Appellant,
inter alia, questioned his order of transfer. He moved the Central
Administrative Tribunal. His Original Application was dismissed.
He in
the writ petition filed before the High Court, inter alia, questioned the order
of Tribunal. However, now it appears that he has filed another writ petition
before the Nagpur Bench of the Bombay High Court, being Writ Petition No.2036
of 2006, wherein notice has been directed to be issued and status quo has been
directed to be maintained by a Division Bench of the said court by an order
dated 03.05.2006. The High Court is required to consider the said writ petition
on its own merit.
So far
as the decision of the first respondent herein, not to register a regular case
so as to take up an investigation into the allegation against the concerned
officers, is concerned, Appellant may have to pursue his own remedy keeping in
view the fact that the first respondent before this Court has furnished the
details of its findings in the preliminary inquiry as also the result of the
departmental proceedings initiated against the delinquent officers.
However,
that part of the order whereby Appellant had been directed to pay a cost of
Rs.5,000/- is set aside. Subject to the observations and directions mentioned
hereinbefore, the appeal is dismissed. However, keeping in view of the peculiar
facts and circumstances of the case, there shall be no order as to costs.
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