{"id":28699,"date":"2006-11-07T00:00:00","date_gmt":"2006-11-06T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/shashikant-vs-central-bureau-of-investigation-on-7-november-2006"},"modified":"2017-09-22T19:20:26","modified_gmt":"2017-09-22T13:50:26","slug":"shashikant-vs-central-bureau-of-investigation-on-7-november-2006","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/shashikant-vs-central-bureau-of-investigation-on-7-november-2006","title":{"rendered":"Shashikant vs Central Bureau Of Investigation & … on 7 November, 2006"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Shashikant vs Central Bureau Of Investigation & … on 7 November, 2006<\/div>\n
Author: S.B. Sinha<\/div>\n
Bench: S.B. Sinha, Markandey Katju<\/div>\n
           CASE NO.:\nAppeal (crl.)  1127 of 2006\n\nPETITIONER:\nShashikant\n\nRESPONDENT:\nCentral Bureau of Investigation & Others\n\nDATE OF JUDGMENT: 07\/11\/2006\n\nBENCH:\nS.B. Sinha & Markandey Katju\n\nJUDGMENT:\n<\/pre>\n
J U D G M E N T
\n[Arising out of S.L.P. (Crl.) No.6426 of 2005]<\/p>\n
S.B. SINHA, J :\n<\/p>\n
\tLeave granted.\n<\/p>\n
\tThis appeal is directed against a judgment and order dated 12.09.2005
\npassed by a learned Single Judge of the Nagpur Bench of the High Court of
\nJudicature at Bombay High Court in Criminal Writ Petition No.558 of 2005
\nwhereby and whereunder the writ petition filed by Appellant herein was
\ndismissed.\n<\/p>\n
Appellant claims himself to be a vigilant employee   He made an
\nanonymous complaint to the Central Bureau of Investigation alleging corrupt
\npractices and financial irregularities on the part of some officers of his
\ndepartment. First respondent No.1 stated that on the basis of a source
\ninformation,  a preliminary inquiry was conducted in which the statements
\nof various officers were recorded.  However, the investigating officer was of
\nthe opinion that it was not necessary to register a First Information Report.
\nIt recommended for holding of departmental proceedings against the
\nconcerned officers.  The said recommendation found favour with the higher
\nofficers.  The opinion of the Central Vigilance Commission was also
\nobtained.\n<\/p>\n
It is stated that pursuant to or in furtherance of the said
\nrecommendation, the Railway Administration initiated departmental
\nproceedings against the concerned officers, namely, S\/Shri Shyam Sunder,
\nU.J. Dave, R.T. Pali and Ganga Prasad Sahu and imposed different penalties
\non them.  The Railway Board thereafter by letters dated 06.12.2005 and
\n22.02.2006 advised the Central Vigilance Commission as regards imposition
\nof penalties upon the said officers and closure of cases against them.\n<\/p>\n
Appellant, however, in the meanwhile, was transferred by an order
\ndated 20.05.2005.  He approached the Central Administrative Tribunal
\ncontending that the said order of transfer was mala fide and being an
\noutcome of his complaint and statements made in the inquiry conducted by
\nthe first respondent.  By an order dated 17.08.2005, the application filed by
\nAppellant was dismissed.\n<\/p>\n
A writ petition was filed by Appellant, inter alia, praying for the
\nfollowing reliefs :\n<\/p>\n
“(i)\tdirect \tthe respondent no.1 to reopen the
\nPreliminary Inquiry No.PE\/4A\/2004 and submit a
\nreport in accordance with law after a detailed
\ninquiry in the matter to  the Competent Court.\n<\/p>\n
(ii)\tdirect the respondent no.1 to register the inquiries
\nfor offences against the respondent nos. 2 to 4 for
\nexcess purchases and commission of fraud to the
\nNagpur Municipal Corporation and Amravati
\nMunicipal Corporation in terms of octroi amount
\nof Rs. 34 lakhs and for duping the respondent nos.
\n6 and 7.\n<\/p>\n
(iii)\tdirect the respondent no. 1 to register inquiry for
\noffences in respect of excess purchases of Amla.\n<\/p>\n
(iv)\tdirect the respondent no.1 to receive the
\ncomplaints of the petitioner in respect of all
\ncontracts past and present in terms of excess
\npayment in the Nagpur Store and direct the
\nrespondent nos.2 to 5 to provide access to all
\nrecords & necessary documents to the petitioner
\nfor filing the complaints.\n<\/p>\n
(v)\tdirect the respondent no. 2 to reconsider the Order
\ndated 20.5.05 passed by the Chief Personnel
\nOfficer (Signal &
\nTelecommunication), Central Railway in view of
\nthe disclosures made by the petitioner and his
\nrequest for detailed enquiry of the Store of Nagpur
\nDivision of Central Railway.\n<\/p>\n
(vi)\tpending the reconsideration of the transfer of the
\npetitioner by the respondent no. 2, stay the effect
\n& operation of the Order passed by the  Chief
\nPersonnel Officer (S & T), a Subordinate of the
\nrespondent no. 2 dated 20\/5\/2005.”\n<\/p>\n
The High Court dismissed the said writ petition, opining :\n<\/p>\n
“If this is an accepted fact, the cognizance of the
\ncomplaint must have been taken by the CBI and it is for
\nthem to enquire\/investigate into the matter.  The presence
\nof the Petitioner at Nagpur for that purpose is not
\nnecessary.  The CBI has a national network and they can
\nreach the Petitioner, if they feel it necessary.\n<\/p>\n
In respect of the grievance of the Petitioner as to
\nwhether the CBI is not doing their duty, it does not
\nappear to be well founded.  As the crux of the matter is
\nthat since the Petitioner is aggrieved by his transfer and
\nhaving failed before the CAT, he has invoked the
\nextraordinary criminal jurisdiction of this Court by filing
\nthe present Writ Petition.  In our opinion, this is nothing
\nbut an abuse of process of Court.”\n<\/p>\n
Mr. S.S. Voditel, the learned counsel appearing on behalf of
\nAppellant, would contend that even in a case where the Investigating Officer
\nmay exercise his option of closing a case, it would be  obligatory on his part
\nto comply with the provisions of Section 157(1)(b) of the Code of Criminal
\nProcedure (for short, ‘the Code’).  In support of the said contention, our
\nattention has been drawn to some decisions of this Court as also a decision
\nof the Kerala High Court in Velayudhan v. State of Kerala [1998 (1) Crimes
\n510].\n<\/p>\n
Mr. Vikas Singh, the learned Additional Solicitor General, appearing
\non behalf of Respondents, on the other hand, would submit that the first
\nrespondent having been constituted in terms of the Section 2 of  the Delhi
\nSpecial Police Establishment Act, 1946 (for short, ‘the said Act’)  and the
\nCentral Government having laid down the procedures for conducting
\ninvestigation including the mode and manner in which the preliminary
\ninquiry should be conducted, (known as CBI Manual), which received the
\napproval of this Court in Vineet Narain and Others v. Union of India and
\nAnother<\/a> [(1998) 1 SCC 226], the impugned judgment of the High Court
\nshould not be interfered with.\n<\/p>\n
The said Act was enacted to make provision for the constitution of a
\nspecial police force in Delhi for the investigation of certain offences in the
\nUnion territories for the superintendence and administration of the said force
\nand for extension to other of the powers and jurisdiction of members of the
\nsaid force in regard to the investigation of the said offences.  Section 2
\nempowers the Central Government to constitute a special force.
\nIndisputably, the first respondent has been constituted in terms thereof.  Sub
\nsection (2) of Section 2 provides that subject to any orders which the Central
\nGovernment may make in this behalf, members of the said police
\nestablishment shall have throughout any Union territory in relation to the
\ninvestigation of such offences and arrest of persons concerned in such
\noffences, all the powers, duties,  privileges and liabilities which police
\nofficers of that Union territory have in connection with the investigation of
\noffences committed therein.  The said Act indisputably applies in regard to
\ncharges of corruption made against the employees of Union of India.  It is
\nalso not disputed that the C.B.I. Manual was made by the Central
\nGovernment providing for detailed procedure as regards the mode and
\nmanner in which complaints against public servants are to be dealt with.\n<\/p>\n
In Vineet Narain (supra), it was held :\n<\/p>\n
“12. The CBI Manual based on statutory provisions of
\nthe CrPC provides essential guidelines for the CBIs
\nfunctioning. It is imperative that the CBI adheres
\nscrupulously to the provisions in the Manual in relation
\nto its investigative functions, like raids, seizure and
\narrests. Any deviation from the established procedure
\nshould be viewed seriously and severe disciplinary action
\ntaken against the officials concerned.”\n<\/p>\n
CBI Manual provides for a preliminary inquiry.  By reason thereof a
\ndistinction has been made between a preliminary inquiry and a regular case.
\nA preliminary inquiry  in terms of Para 9.1 of the CBI Manual may be
\nconverted into a regular case as soon as sufficient material becomes
\navailable to show that prima facie there has been commission of a
\ncognizable offence.\n<\/p>\n
Paragraph 9.2 reads as under :\n<\/p>\n
“While proposing registration of a Preliminary
\nEnquiry pertaining to the abuse of official position by a
\npublic servant in the matter of business\/commercial
\ndecision, the important difference between a business
\nrisk and a mala fide conduct should be kept in mind with
\nview to ensure that while corrupt public servants are
\nsuitably dealt with the bona fide business\/commercial
\ndecisions taken by public servants in discharge of their
\nduties are not taken up for unnecessary probe.”\n<\/p>\n
Paragraph 9.7  reads as under :\n<\/p>\n
“As soon as it is decided to register a PE, the SP
\nwill take action to get the PE Registration Report
\nprepared, which will invariably be vetted by him and in
\ncase of important enquiries even drafted by him.
\nRegistration Report of PE should be written in the PE
\nRegistration Report Form and not on the form prescribed
\nfor recording First Information Report under Section 154
\nCr. PC.  Beside the allegations in brief, the complete
\ndetails of the suspects involved should be recorded in the
\nPE Registration Report.  In respect of the public servants
\nfound involved in the matter, their Group, the Service
\n(IAS, IRS, IPS etc.), present designation, scale of pay,
\npresent pay and date of superannuation (if available)
\nshould also be mentioned in the PE. registration report.
\nThe copies of the PE Registration Reports should be sent
\nto the authorities mentioned in the Annexure 9-A to this
\nchapter.”\n<\/p>\n
Paragraphs  9.10 and 9.11 provide for collection of documents and
\nrecording of statements during preliminary inquiry, providing for that the
\nstatements of witnesses during preliminary inquiry should be recorded in the
\nsame manner as recorded during investigation of regular cases.\n<\/p>\n
Paragraphs 9.12 to 9.14 provide for the procedures for converting a
\npreliminary inquiry into a regular case.  Indisputably, the provisions of the
\nCode are applicable in relation to the inquiries.\n<\/p>\n
The provisions of the said Act indisputably are applicable to the fact
\nof the present case.   The jurisdiction of the first respondent, in this behalf,
\nis not in question.\n<\/p>\n
Appellant does not deny or dispute that the first respondent initiated a
\npreliminary inquiry upon receipt of the complaint.  The question which
\narises for consideration is as to whether it was obligatory on the part of the
\nfirst respondent to lodge a First Information Report and carry out a full-
\nfledged investigation about the truthfulness or otherwise of the allegations
\nmade in the said anonymous complaint.\n<\/p>\n
Although ordinarily in terms of Section 154 of the Code, when a
\nreport is received relating to the cognizable offence, a First Information
\nReport should be lodged,  to carry out a preliminary inquiry  even under the
\nCode is not unknown.\n<\/p>\n
When an anonymous complaint is received, no investigating officer would
\ninitiate investigative process immediately thereupon.  It may for good reasons
\ncarry out a preliminary enquiry to find out the truth or otherwise of the allegations
\ncontained therein.\n<\/p>\n
\tA three-Judge Bench of this Court in The State of Uttar Pradesh v.
\nBhagwant Kishore Joshi<\/a> [1964 (3) SCR 71], referring to the provisions of
\nSection 5A of the Prevention of Corruption Act, opined :
\n“…Even so the said police officer received a detailed
\ninformation of the offences alleged to have been
\ncommitted by the accused with necessary particulars,
\nproceeded to the spot of the offence, ascertained the
\nrelevant facts by going through the railway records and
\nsubmitted a report of the said acts. The said acts
\nconstituted an investigation within the meaning of the
\ndefinition of investigation under Section 4(1) of the Code
\nof Criminal Procedure as explained by this Court. The
\ndecisions cited by the learned counsel for the State in
\nsupport of his contention that there was no investigation
\nin the present case are rather wide off the mark. In In re
\nNanumuri Anandayya  a Division Bench of the Madras
\nHigh Court held that an informal enquiry on the basis of
\na vague telegram was not an investigation within the
\nmeaning of Section 157 of the Code of Criminal
\nProcedure. In In re Rangarujulu, Ramaswami, J. of the
\nMadras High Court described the following three stages a
\npoliceman has to pass in a conspiracy case :\n<\/p>\n
“…hears something of interest affecting the public
\nsecurity and which puts him on the alert; makes
\ndiscreet enquiries, takes soundings and sets up
\ninformants and is in the second stage of qui vive or
\nlookout; and finally gathers sufficient information
\nenabling him to bite upon something definite and
\nthat is the stage when first information is recorded
\nand when investigation starts.”\n<\/p>\n
This graphic description of the stages is only a
\nrestatement of the principle that a vague information or
\nan irresponsible rumour would not in itself constitute
\ninformation within the meaning of Section 154 of the
\nCode or the basis for an investigation under Section 157
\nthereof. In State of Kerala v. M.J. Samuel a Full Bench of
\nthe Kerala High Court ruled that, it can be stated as a
\ngeneral principle that it is not every piece of information
\nhowever vague, indefinite and unauthenticated it may be
\nthat should be recorded as the first information for the
\nsole reason that such information was the first, in point of
\ntime, to be received by the police regarding the
\ncommission of an offence. The Full Bench also took care
\nto make it clear that whether or not a statement would
\nconstitute the first information report in a case is a
\nquestion of fact and would depend upon the
\ncircumstances of that case…”\n<\/p>\n
Only when a F.I.R. is lodged, the officer in charge of the police
\nstation statutorily liable to report thereabout to a Magistrate who is
\nempowered to take cognizance in terms of proviso to Section 157(1)  of the
\nCode.  Proviso (b) appended thereto  empowers the Investigating Officer not
\nto investigate where it appears to him that there is no sufficient ground for
\nentering  into an investigation.  Sub-section (2) of Section 157 reads as
\nunder :\n<\/p>\n
\t“(2) In each of the cases mentioned in clauses (a)
\nand (b) of the proviso to sub-section (1), the officer in
\ncharge of the police station shall state in his report his
\nreasons for not fully complying with the requirements to
\nthat sub-section, and, in the case mentioned in clause (b)
\nof the said proviso, the officer shall also forthwith notify
\nto the informant, if any, in such manner as may be
\nprescribed by the State Government, the fact that he will
\nnot investigate the case or cause it to be investigated.”\n<\/p>\n
The question, therefore,  as to whether an empowered officer who had
\nmade investigation or caused the same to be made in a cognizable offence
\nwithin the meaning of Section 157 of the Code or  had not initiated an
\ninvestigation on the basis of an information which would not come within
\nthe meaning of Section 154 of the Code is essentially required to be
\ndetermined in the fact situation obtaining in each case.\n<\/p>\n
Yet again in State of Haryana and Others v. Bhajan Lal and Others<\/a>
\n[(1992) Supp. 1 SCC 335], this Court referred to P. Sirajuddin etc. v. State
\nof Madras etc. [(1970) 1 SCC 595] and  Bhagwant Kishore Joshi (supra) in
\nthe following terms :\n<\/p>\n
“77. In this connection, it will be appropriate to recall the
\nviews expressed by Mitter, J. in P. Sirajuddin v. State of
\nMadras  in the following words: (SCC p. 601, para 17)
\n“Before a public servant, whatever be his status, is
\npublicly charged with acts of dishonesty which
\namount to serious misdemeanour or misconduct of
\nthe type alleged in this case and a first information
\nis lodged against him, there must be some suitable
\npreliminary enquiry into the allegations by a
\nresponsible officer. The lodging of such a report
\nagainst a person specially one who like the
\nappellant occupied the top position in a
\ndepartment, even if baseless, would do
\nincalculable harm not only to the officer in
\nparticular but to the department he belonged to, in
\ngeneral …. The means adopted no less than the end
\nto be achieved must be impeccable.”\n<\/p>\n
78. Mudholkar, J. in a separate judgment in State of Uttar
\nPradesh v. Bhagwant Kishore Joshi<\/a> at p. 86 while
\nagreeing with the conclusion of Subba Rao, J. (as he then
\nwas) has expressed his opinion stating: (SCR pp. 86-87)
\n“In the absence of any prohibition in the Code,
\nexpress or implied, I am of opinion that it is open
\nto a police officer to make preliminary enquiries
\nbefore registering an offence and making a full
\nscale investigation into it.””\n<\/p>\n
Thus, registration of a case is a sine qua non  for starting investigation
\n[See Mohindro v. State of Punjab and Others<\/a>  (2001) 9 SCC 581].\n<\/p>\n
Only an anonymous complaint was made in June 2004.  Evidently it
\nwas within the province of the first respondent to commence a preliminary
\ninquiry.  The procedure laid down in the CBI Manual and in particular when
\nit was required to inquire into the allegation of the corruption on the part of
\nsome public servants, recourse to the provisions of the Manual cannot be
\nsaid to be unfair.  It did not find any reason to convert the preliminary
\ninquiry into a regular case.   Pursuant to or in furtherance of the
\nrecommendation made by the first respondent, which had received the
\nimprimatur by the Central Vigilance Commission, departmental proceedings
\nwere initiated.  The Central Vigilance Commission advised the Railway
\nBoard to initiate minor penalty proceedings against the delinquent officers
\nby a letter dated 04.08.2005.\n<\/p>\n
It is not in dispute that Appellant was directed to be transferred on
\nadministrative grounds by an order dated 20.05.2005.  The complaint was
\nalthough made by Appellant; but it being anonymous his address was not
\nknown.  It may be true, initially he having been posted in the store in which
\nthe delinquent officers were also working, his statement  had been recorded;
\nbut when a preliminary inquiry was conducted on the basis of an anonymous
\ncomplaint without registering a First Information Report, neither it was
\nnecessary to comply with the provision of the proviso (b) appended to sub-
\nsection (1) of Section 157 of the Code, nor having regard to the fact that the
\nidentity of  Appellant was being unknown, the question of complying with
\nthe said provisions, even if it be held that the same was applicable, did not
\narise.\n<\/p>\n
Strong reliance has been placed by the learned counsel on a decision
\nof this Court on Hemant Dhasmana v. Central Bureay of Investigation and
\nAnother<\/a> [(2001) 7 SCC 536], wherein it was held that when an investigation
\nhad been conducted by the Central Bureau of Investigation, Chapter 12 of
\nthe Code would apply.  There can be no dispute as regards the proposition of
\nlaw laid down therein.  But the said decision cannot be said to have any
\napplication whatsoever in the instant case.\n<\/p>\n
In the  decision of the Kerala High Court in Velayudhan (supra),  P.K.
\nBalasubramanyan, J. (as His Lordship then was) opined that on objective
\nassessment on the part of the officer, if he finds that no investigation into the
\nallegation is needed, he could certainly act in terms of Section 157 of the
\nCode.\n<\/p>\n
The said decision, however, will have no application in a case of this
\nnature.\n<\/p>\n
The First Respondent is a statutory authority.  It has a statutory duty to
\ncarry out investigation in accordance with law.  Ordinarily, it is not within
\nthe province of the court to direct the investigative agency to carry out
\ninvestigation in a particular manner.  A writ court ordinarily again would not
\ninterfere with the functioning of an investigative agency.  Only in
\nexceptional cases, it may do so.  No such case has been made out by the
\nappellant herein.  The nature of relief prayed for in the writ petition also is
\nbeyond the domain of a writ court save and except, as indicated
\nhereinbefore, an exceptional case is made out.\n<\/p>\n
Appellant, inter alia, questioned his order of transfer.  He moved the
\nCentral Administrative Tribunal.  His Original Application was dismissed.
\nHe in the writ petition filed before the High Court, inter alia, questioned the
\norder of Tribunal.  However, now it appears that he has filed another writ
\npetition before the Nagpur Bench of the Bombay High Court, being Writ
\nPetition No.2036 of 2006,  wherein notice has been directed to be issued and
\nstatus quo has been directed to be maintained by a Division Bench of the
\nsaid court by an order dated 03.05.2006.  The High Court is required to
\nconsider the said writ petition on its own merit.\n<\/p>\n
So far as the decision of the first respondent herein, not to register a
\nregular case so as to take up an investigation into the allegation against the
\nconcerned officers, is concerned, Appellant may have to pursue his own
\nremedy keeping in view the fact that the first respondent before this Court
\nhas furnished the details of its findings in the preliminary inquiry as also the
\nresult of the departmental proceedings initiated against the delinquent
\nofficers.\n<\/p>\n
However, that part of the order whereby  Appellant had been directed
\nto pay a cost of Rs.5,000\/- is set aside.   Subject to the observations and
\ndirections mentioned hereinbefore, the appeal is dismissed.  However,
\nkeeping in view of the peculiar facts and circumstances of the case, there
\nshall be no order as to costs.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Shashikant vs Central Bureau Of Investigation & … on 7 November, 2006 Author: S.B. Sinha Bench: S.B. Sinha, Markandey Katju 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-28699","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nShashikant vs Central Bureau Of Investigation & ... on 7 November, 2006 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/shashikant-vs-central-bureau-of-investigation-on-7-november-2006\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Shashikant vs Central Bureau Of Investigation & ... on 7 November, 2006 - 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