State of Orissa &
Ors. Vs. Ujjal Kumar Burdhan
[Criminal Appeal
No.546 of 2012 arising out of S.L.P. (Criminal) No. 5667 of 2008]
J U D G M E N T
D.K. JAIN, J.:
1.
Leave
granted.
2.
This
appeal by special leave, assails the judgment dated 12th February, 2008, rendered
by a learned Single Judge of the High Court of Orissa at Cuttack. By the
impugned order, on a petition under Section 482 of the Code of Criminal Procedure,
1973 (for short "the Code"), the investigation initiated by the Vigilance
Department of the State Government into the allegations of irregularities in the
receipt of excess quota, recycling of rice and distress sale of paddy by one
M/s Haldipada Rice Mill, a proprietary concern of the respondent, has been
quashed.
3.
On
receipt of a complaint, the civil supply department of the State Government initiated
an inquiry against the said concern, relating to the processing of paddy for and
on behalf of the Food Corporation of India. Preliminary inquiry conducted by the
Food and Supply department revealed certain irregularities in the procurement
and milling of paddy by the respondent. A subsequent departmental inquiry recommended
initiation of a proper administrative action against the respondent.
Consequently, the State Government directed the Vigilance Cell of the Police department
to conduct a preliminary inquiry regarding the alleged criminal acts.
4.
In
the meantime, on filing of a Writ Petition, being W.P. No.8315 of 2005, by the
respondent, a Division Bench of the High Court while ordering the issue of the enforcement
certificate to the respondent pending the ongoing inquiry, directed the completion
of the said inquiry within twelve weeks of the receipt of that order. In compliance
with that order, the Civil Supply Department of the State Government issued enforcement
certificate to the respondent.
However, the respondent
filed yet another Writ Petition, being W.P. No.10761 of 2005, inter-alia, praying
for quashing of inquiry proceedings initiated by the State vigilance department
on the ground that an inquiry had already been conducted on the same complaint
by the department concerned. By way of an interim order, the High Court directed
the State Government not to take any coercive action against the respondent till
further orders. As a result thereof, the preliminary inquiry came to a
standstill.
For a similar relief,
respondent filed another petition, being Crl.M.C.No.2808 of 2006 under Section
482 of the Code in which the impugned order has been passed. Aggrieved by the said
order, the State Government as also its two functionaries, viz. Director- cum-Addl.
D.G.P., Vigilance and Dy. Superintendent of Police, Vigilance Cell have
preferred this appeal.
5.
Mr.
Suresh Chandra Tripathy, learned counsel appearing for the appellants submitted
that it is settled law that a preliminary inquiry ought not to be quashed by the
High Court in exercise of its jurisdiction under Section 482 of the Code.
He argued that the High
Court was not at all justified in interfering with the investigation at the
threshold even before the registration of an FIR, particularly when in his report
dated 4th June 2005, the civil supply officer had reported fabrication and forgery
of accounts maintained by the 3 respondent as also violation of the guidelines laid
down in the Food and Procurement Policy for the marketing season 2004-2005.
Referring us to the order
dated 18th July 2005, passed by a Division Bench of the High Court in W.P.(C) No.8315
of 2005, whereby, as aforesaid, a direction was issued for expediting the inquiry,
learned counsel stressed that having observed that if in the inquiry any
irregularity is established, the respondent could be proceeded under the relevant
provisions of law, the High Court committed a serious illegality in law in quashing
the same inquiry/investigation.
6.
Per
contra, Mr. Randhir Jain, learned counsel appearing for the respondent supported
the impugned judgment and submitted that the respondent was being harassed by repeated
investigations on the same set of facts. It was alleged that the inquiry was
ordered at the behest of an Ex- M.L.A. who belonged to the ruling party and
with whom the respondent shared a long history of animosity and antagonism. He
thus, contended that the appeal deserved to be dismissed.
7.
It
is true that the inherent powers vested in the High Court under Section 482 of
the Code are very wide. Nevertheless, inherent powers do not confer arbitrary jurisdiction
on the High Court to act according to whims or caprice. This extra- ordinary power
has to be exercised sparingly with circumspection and as far as possible, for extra-ordinary
cases, where allegations in the complaint or the first information report, taken
on its face value and accepted in their entirety do not constitute the offence
alleged. It needs little emphasis that unless a case of gross abuse of power is
made out against those incharge of investigation, the High Court should be loath
to interfere at the early/premature stage of investigation.
8.
In
State of West Bengal and Ors. Vs. Swapan Kumar Guha and Ors.1, emphasising that
the Court will not normally interfere with an investigation and will permit the
inquiry into the alleged offence, to be completed, this Court highlighted the
necessity of a proper investigation observing thus:
"An
investigation is carried on for the purpose of gathering necessary materials for
establishing and proving an offence which is disclosed. When an offence is
disclosed, a proper investigation in the interests of justice becomes necessary
to 1 (1982) 1 SCC 561: 1982 SCC (Cri) 283: (1982) 3 SCR 121 collect materials
for establishing the offence, and for bringing the offender to book. In the
absence of a proper investigation in a case where an offence is disclosed, the
offender may succeed in escaping from the consequences and the offender may go
unpunished to the detriment of the cause of justice and the society at large.
Justice requires that
a person who commits an offence has to be brought to book and must be punished for
the same. If the court interferes with the proper investigation in a case where
an offence has been disclosed, the offence will go unpunished to the serious
detriment of the welfare of the society and the cause of the justice suffers.
It is on the basis of this principle that the court normally does not interfere
with the investigation of a case where an offence has been disclosed. Whether
an offence has been disclosed or not must necessarily depend on the facts and circumstances
of each particular case.
If on a consideration
of the relevant materials, the court is satisfied that an offence is disclosed,
the court will normally not interfere with the investigation into the offence and
will generally allow the investigation into the offence to be completed for collecting
materials for proving the offence." (emphasis supplied by us)
9.
On
a similar issue under consideration, in Jeffrey J. Diermeier & Anr. Vs. State
of West Bengal & Anr.2, while explaining the scope and ambit of the
inherent powers of the High Court under Section 482 of the Code, one of us (D.K.
Jain, J.) speaking for the Bench, has observed as follows: "20......The section
itself envisages three circumstances under which the inherent jurisdiction may
be exercised, namely, (i) to give 2 (2010) 6 SCC 243 6 effect to an order under
the Code; (ii) to prevent abuse of the process of Court; and (iii) to otherwise
secure the ends of justice.
Nevertheless, it is
neither possible nor desirable to lay down any inflexible rule which would govern
the exercise of inherent jurisdiction of the Court. Undoubtedly, the power
possessed by the High Court under the said provision is very wide but it is not
unlimited. It has to be exercised sparingly, carefully and cautiously, ex debito
justitiae to do real and substantial justice for which alone the court exists.
It needs little emphasis that the inherent jurisdiction does not confer an arbitrary
power on the High Court to act according to whim or caprice. The power exists
to prevent abuse of authority and not to produce injustice."
10.
Bearing
in mind the afore-said legal position with regard to the scope and width of the
power of the High Court under Section 482 of the Code, we are constrained to hold
that in the fact-situation at hand, the impugned decision is clearly indefensible.
In the present case, the S.P., Vigilance Cell, had merely approved the opening
of an inquiry and converted it into a Cell File. The preliminary inquiry was yet
to commence and an FIR was yet to be lodged. In the first instance, the High
Court stayed the preliminary inquiry by an interim order in the Writ Petition,
and then by the impugned judgment quashed the same. It goes without saying that
commencement and completion of an investigation is necessary to test the
veracity of the alleged commission of an offence. Any kind of hindrance or
obstruction of the process of law from taking its normal course, without any
supervening circumstances, in a casual manner, merely on the whims and fancy of
the court tant amounts to miscarriage of justice, which seems to be the case
here.
11.
We
are convinced that the circumstances that have weighed with the High Court, do not
justify the conclusion it has arrived at. The High Court has allowed the petition
under Section 482 of the Code, inter-alia, on the following grounds; firstly, the
enforcement certificate had been issued to the respondent which evidences compliance
with the Rice and Paddy Procurement (Levy) and Restriction on sale and Movement
Order, 1982.
The observation came
to be made by losing sight of the fact that the said enforcement certificate had
been issued pursuant to the order dated 18th July 2005, passed by the High Court
in W.P. (C) No.8315 of 2005. Secondly, two inquires on the same facts had already
been conducted, wherein the respondent had been exonerated. The High Court has committed
a grave error of fact in observing that the respondent had been exonerated in the
two inquiries held previously as both the inquiry reports had in fact concluded
that the respondent had committed serious 8 irregularities and proper action
needs to be initiated against him.
As far as the two previous
inquiries are concerned, it may also be noted that those inquiries were departmental
inquiries and what has been quashed by the impugned judgment is the initiation of
police investigation. Both the inquiries are entirely different in nature;
operate in different fields and have different object and consequences.
12.
Further,
the impugned order also notes that in view of the arbitration agreement between
the agent and the Government, all the alleged violations fell within the
purview of Arbitration and Conciliation Act, 1996 and therefore, the respondent
could not be held liable for any criminal offence. This observation is against the
well settled principle of law that the existence of an arbitration agreement
cannot take the criminal acts out of the jurisdiction of the courts of law. On this
aspect, in S.W. Palanitkar & Ors. Vs. State of Bihar & Anr.3, this
Court has echoed the following views:
"22. Looking to
the complaint and the grievances made by the complainant therein and having regard
to the agreement, it is clear that the dispute and grievances arise out of the said
agreement. Clause 29 of the agreement provides for reference to arbitration in
case of disputes or controversy between the parties and the said 3 (2002) 1 SCC
241 clause is wide enough to cover almost all sorts of disputes arising out of
the agreement. As a matter of fact, it is also brought to our notice that the complainant
issued a notice dated 3-10-1997 to the appellants invoking this arbitration clause
claiming Rs.15 lakhs. It is thereafter the present complaint was filed.
For the alleged
breach of the agreement in relation to commercial transaction, it is open to
the Respondent 2 to proceed against the appellants for his redressal for recovery
of money by way of damages for the loss caused, if any. Merely because there is
an arbitration clause in the agreement, that cannot prevent criminal prosecution
against the accused if an act constituting a criminal offence is made out even prima
facie." (Emphasis supplied)
13.
The
High Court has also adversely commented upon the progress of the preliminary
inquiry and has recorded that no new material has been placed on record by the Vigilance
Cell. This has been recorded without having regard to the fact that the High Court
by another order, dated 5th September 2005, had, by way of an interim order, directed
the State Government not to take any coercive steps against the respondent,
with the result that there was no occasion for the department concerned to
bring to the fore any material to unravel the truth.
It is also pertinent
to note here that the High Court had itself, by order dated 18th July, 2005
directed the completion of inquiry within a set time-frame of twelve weeks, which
was subsequently interjected by an interim order and finally the entire
investigation/inquiry came to be quashed by the impugned judgment. It seems incongruous
that in the first instance the court set into motion the process of law only to
ultimately quash it on the specious plea that it would cause unnecessary
embarrassment to the respondent.
14.
For
all these reasons, in our opinion, High Court's interference with the investigation
was totally unwarranted and therefore, the impugned order cannot be sustained. We,
accordingly, allow the appeal, quash and set aside the impugned judgment and restore
the investigation initiated against the respondent and direct the Vigilance Cell
of the State to proceed with and complete the investigation expeditiously, in
accordance with law.
..............................................J.
(D.K. JAIN,)
.................................................J.
(ANIL R. DAVE, J.)
NEW
DELHI;
MARCH
19, 2012
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