CASE NO.: Appeal (crl.) 1127 of 2006 PETITIONER: Shashikant RESPONDENT: Central Bureau of Investigation & Others DATE OF JUDGMENT: 07/11/2006 BENCH: S.B. Sinha & Markandey Katju JUDGMENT:
J U D G M E N T
[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.