Bombay High Court
Mr. Manjit Singh Bali vs Central Bureau Of Investigation on 29 November, 2010
Bench: V.M. Kanade
1
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPLICATION NO.1913 OF 2010
Mr. Manjit Singh Bali ....Applicant.
V/s
Central Bureau of Investigation .... Respondent.
WITH
CRIMINAL APPLICATION NO.2013 OF 2010
Shri Harsh Dalmia & Anr. ....Applicants.
V/s
Central Bureau of Investigation & Anr .... Respondents.
WITH
CRIMINAL APPLICATION NO.328 OF 2010
IN
CRIMINAL APPLICATION NO.2013 OF 2010
Shri Harsh Dalmia & Anr. ....Applicants.
V/s
Central Bureau of Investigation & Anr .... Respondents.
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Mr. A.P. Mundargi, Senior Counsel with Mr. Yusuf Iqbal
Yusuf, Mr. N. Majra i/b Mr. Sutapa Saha for the applicant in
Criminal Application No.1913 of 2010.
Mr. A.H.H Ponda i/b Mr. Uday Sankar Samudrala for the
applicants in Criminal Application No.2013 of 2010 and in
Criminal Application No.328 of 2010 in Criminal Application
No.2013 of 2010.
Mr. D. J. Khambata, Additional Solicitor General with Mr. K.
Sudhakar, Special Public Prosecutor i/b S.K. Shinde for
Respondent - CBI in Criminal Application No.2013 of 2010
and Criminal Application No.1913/2010.
CORAM: V. M. KANADE, J.
DATE : 29th November, 2010.
P.C.:-
1. An interesting question which falls for my consideration
in these criminal applications is: what is the meaning of the
expression 'cases involving arrest of a person on the spot'
which is used in section 6-A(2)?
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2. Both the applicants have filed these applications to
quash R.C. Case No. BA1/2010/A0006 dated 18th February,
2010 registered by CBI against the applicants under sections
7 & 8 of the Prevention of Corruption Act, 1988.
3. Applicant Manjit Singh Bali in Criminal Application No.
1913 of 2010 was holding the post of Chief Post Master
General, Maharashtra & Goa at Mumbai from August, 2008.
It is an admitted position that the said post was of the level
of Additional Secretary to the Government of India. A case
was registered against the said applicant Manjit Singh Bali
on 18/02/2010 on the basis of letter written by the
complainant dated 16/02/2010. Brief background regarding
the said case is as under:-
The complainant one Smt. Rita Subhash Shah visited
applicant's office in the second week of December, 2009
demanding grant of No Objection Certificate (NOC) for a
particularly property (hereinafter referred to as "the said
property") in Mira Bhayander which was reserved for
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Department of Posts. The Post Master General, Mumbai
Region sent the case file in third week of December to the
applicant recommending issuance of NOC in the case. There
were five other plots reserved for the Department of Posts in
different localities of Mira Bhayaner area and, therefore, the
applicant sent the file back and requested that integrated
view be taken for the whole area.
According to the complainant, in January, 2010 one Mr.
Harsh Dalmia, who is the applicant in Criminal Application
No.2013 of 2010, alongwith the complainant visited office of
the applicant Mr. Bali and made a request for release of NOC
on the said property. However, the applicant said that the
Department was examining the proposal of acquiring the
said land and a decision would be taken soon. Thereafter, in
the month of February, 2010 the case was again submitted
to the Post Master General, Mumbai, recommending
issuance of NOC on the basis of recommendations of the
Divisional Superintendent of Post Offices of that area
wherein the property was situated. The file, however, was
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returned to the Post Master General since the details of the
integrated plan etc. were not given. A complaint was made
by the complainant by writing a letter to the CBI dated
16/02/2010. On 17/02/2010, complainant visited office of
the applicant alongwith Mr. Harsh Dalmia, Mr Arun Dalmia
and another person who was introduced as Mr. Pravin
Trivedi, the interested developer of the plot. Applicant was
asked to expedite the decision since the matter was pending
for a year.
On 18/02/2010, the CBI took cognizance of the letter of
the complainant and registered FIR against the applicant.
Applicant approved the proposal on 24/2/2010.
However, he listed certain additional relevant conditions.
According to the complainant, Mr. Harsh Dalmia, co-accused
approached the applicant. After a few moments, another
person approached the applicant and stated that a bag had
been kept in the dicky of the applicant's car and further
stated that the bag contained Rs 2 crore and, thereafter, he
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identified himself as CBI Officer. Applicant was taken into
custody. According to the applicant, he was kept in the said
Restaurant till the next morning and, thereafter, he was
produced by the CBI before the Sessions Court in the
evening at about 5.00 P.M., seeking police custody for 10
days. Remand was granted on 03/03/2010. The Special
Judge remanded the applicant Mr. Bali to judicial custody till
15/03/2010 and on 12/03/2010 the applicant Mr. Bali was
released on bail.
4. Applicant No.1 in Criminal Application No. 2013 of 2010
is the Chief Operating Officer of Watermark Financial
Consultants Limited ("WFCL"). Applicant No.2 is the
Chairman of WFCL.
5. Mr. Mundargi, the learned Senior Counsel appearing on
behalf of the applicants in Criminal Application No.1913 of
2010 submitted that in view of the provisions of section 6-A
of the DSPE Act, initiation of investigation and any
subsequent prosecution is without jurisdiction and the CBI
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had no authority whatsoever to register a case against the
public servant of the rank of Joint Secretary and above
without obtaining previous approval of the Central
Government and, therefore, on this ground alone, the FIR
was liable to be quashed. He submitted that there are
several judgments of the Apex Court right from the
judgment in R.P. Kapur vs. The State of Punjab1, State of
Haryana and others vs. Ch. Bhajan Lal & others 2 and in
Ashim Kumar Roy vs. Bipinbhai Vadilal Mehta and Others3
wherein it has been held that if there is a statutory bar
imposed by the Act then the FIR so filed and the
investigation initiated on the basis of the said FIR is liable to
be quashed. Reliance is placed on the judgment of the Delhi
High Court in Dr. R.R. Kishore vs. CBI4. It is submitted that if
the objection regarding lack of jurisdiction under section 6-A
of the Act is raised at the very inception then further
investigation is liable to be stayed and the FIR could be
quashed. It is submitted that section 6-A of the DSPE Act
was amended by the Central Vigilance and Commission Act
1 AIR 1960 SC 866
2 AIR 1992 SC 604
3 1998 SCC (Cri) 269
4 142(2007) Delhi Law Times 702
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in the year 2003 and by virtue of the amendment, prior
approval of the Central Government is necessary in the case
of inquiry/investigation against the employees of the Central
Government of the level of Joint Secretary and above. It is
submitted that the DSPE Act is the only Act in which
obtaining prior approval is made compulsory. It is submitted
that the said bar in the section operates from inception i.e.
from the time of the information received by the CBI about
commission or likelihood of commission of such offence by
the employee above certain rank in the Central Government.
It is submitted that sub-section (2) of section 6-A of the DSPE
Act permitted the CBI to arrest a person on the spot,
meaning thereby that the CBI would invoke the said section
only in cases of a chance arrest of a public servant on the
spot while accepting or attempting to accept any
gratification without any prior information about the same.
It is submitted that, in the present case, the CBI was aware
of the complaint being received on 16/02/2010 and,
therefore, it had sufficient time to obtain prior approval and,
instead of doing that, it had registered the FIR on 18/02/2010
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and on 24/02/2010, it conducted a raid. It is, therefore,
submitted that this is not a case where the CBI had arrested
the accused on the spot. It is submitted that the CBI had an
ample time to deliberate and take prior approval after the
complaint was received on 16/02/2010. Reliance is also
placed on remand application dated 03/03/2010. It is
submitted that sub-section (2) of section 6-A of the
ig DSPE
Act dealt with the situation where obtaining prior approval of
the Central Government would be entirely illogical or
contrary or inconsistent to the demand of the situation
indicated in the said sub-section. It is submitted that the
words 'on the spot' clearly depict the legislative intent that
where in the view of the Act any employee or officer as
mentioned in Clause (a) and (b) respectively of section 6-
A(1) is found to be accepting or attempting to accept any
gratification other than any remuneration, the CBI need not
await for the approval of the Central Government. It is
submitted that, in the instant case, a complaint/letter was
sent by the complainant on 16/02/2010 and the FIR was
registered against the applicant on 18/2/2010. The CBI
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started conducting the inquiry/investigation from
18/02/2010, leading to the arrest of the applicant on
25/02/2010. It is, therefore, submitted that the said arrest of
the applicant was not "on the spot" arrest as envisaged
under sub-section (2) of section 6-A of the DSPE Act. It is,
therefore, submitted that the arrest of the applicant was not
covered under sub-section (2) of section 6-A of
ig the DSPE
Act.
6. Mr. A.H.H. Ponda, the learned Counsel appearing for the
applicants in Criminal Application No.2013 of 2010 has also
argued at length and has also filed written submissions and
has relied on number of judgments of the Apex Court and
various High Courts and has filed compilation of judgments
and list of documents. It is submitted that, "arrest of a
person on the spot" as laid down under sub-section (2) of
section 6-A of the DSPE Act does not come into play in cases
involving the arrest which is not on the spot. He then
proceeded to elaborate the meaning of the words 'on the
spot' with reference to dictionary meaning of the said words
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in WebSter's Online Dictionary, Webster Dictionary,
Macmillan Dictionary, Oxford Dictionary,
www.dictionary.com, Cambridge Advanced Learner's
Dictionary and Longman Dictionary of Contemporary English.
Reliance is also placed on CBI's own Rules of investigation
from CBI Crime Manual. Reference is also made to Rule 10.6
of the CBI Crime Manual. It is also urged that section 6-A is
similar in its import to section 42 of the NDPS Act as it stood
before amendment. Reliance is placed on the judgment of
the Apex Court in Karnail Singh vs State of Haryana1. It is
submitted that the words used in the said section are 'on the
spot' and not 'from the spot' and only in cases of urgent
circumstances when practically there is no time to take
such approval, the CBI could arrest the accused on the spot.
Reliance is also placed on Rules 8.3 and 8.24 of the CBI
Crime Manual. Reliance is placed on the judgments of the
Supreme Court in Sailendranath Bose vs. The State of Bihar2,
The State of Madhya Pradesh vs. Mubarak Ali3. Reliance is
also placed on the judgment of the Delhi High Court in Dr.
1 (2009) 8 SCC 539
2 AIR 1968 SC 1292
3 AIR 1959 SC 707
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R.R. Kishore vs. CBI1 and more particularly on paragraphs 16,
17 and 18 of the said judgment. It is, therefore, submitted
that provisions of section 6-(A)(2) were not applicable to the
present case. Reliance is also placed on the judgment of the
Apex court in Vineet Narain vs. Union of India2 more
particularly on paras 42 to 45. It is submitted that in view of
the said observations
ig of the Apex Court, screening
mechanism with statutory backing has been introduced in
the form of section 6-A of the DSPE Act only from
11/09/2003 and sub-section (2) of Section 6-A exempted the
CBI from taking previous approval in cases of acceptance of
illegal gratification involving arrest of the accused on the
spot on account of non-availability of time for obtaining
previous approval. Reliance is placed on the judgment of
the Apex Court in G. Narayanswami vs. G. Pannerselvam and
others 3 Reliance is also placed on the judgment of the Apex
Court in K. Veerswami vs. Union of India and others 4. It is
submitted that meaning of the word 'involving' in sub-
section (2) of section 6-A of the DSPE Act could not be
1 142(2007) Delhi Law Times 702
2 1998(1) SCC 226
3 (1972) 3 SCC 717
4 (1991) 3 SCC 655
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interpreted to mean cases leading to arrest at any stage.
Reliance is placed on the judgments in Duni Chand Rataria
vs. Bhuwalka Brothers Ltd.1, Additional Commissioner of
Income Tax vs. Surat Art Silk Cloth Manufacturers
Association 2, The Sole Trustee Lok Shikshana Trust v/s IT
Commr Mysore3. It is submitted that the interpretation
suggested by the respondent - CBI would have a nullifying
effect on section 6-A. It is submitted that validity of section
6-A was under challenge and the matter had been referred
to the larger Bench by the Supreme Court. This was done in
the case of Dr. Subramanian Swamy vs. Director CBI &
others 4. Reliance is also placed on the judgment of the Apex
Court in P.M. Singh vs. CBI5 in which it has been held that
provisions of section 6-A could not apply retrospectively.
7. On the other hand, Mr.Khambata, learned Additional Solicitor
General, vehemently opposed the submissions made by the
learned Counsel appearing on behalf of the applicants. He
1 1955 AIR 182
2 AIR 1980 SC 387
3 AIR 1970 Mysore 285
4 (2005) 2 SCC 317
5 Cri Rev Petition 206/2007 decided on 22.10.2007.
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has also filed detailed written submissions. He submitted
that section 6-A of the the DSPE Act was introduced by
inserting section 26(c) of the Central Vigilance Commission
Act, 2003 with effect from 11/09/2003 and prior to the
amendment, a Single Directive was first issued in 1969 by
the Executive and amended on many occasions. However,
the relevant portion of the Single Directive was eventually
struck down by the Supreme Court in Vineet Narain vs.
Union of India1. He invited my attention to the judgment of
the Apex Court in the said case and referred to para 44. He
also invited my attention to the debate in the Parliament on
the Central Vigilance Commission Bill. He then invited my
attention to paras 45 and 46 of the said judgment and
submitted that where the accusation was based on direct
evidence and did not require any inference to be drawn
depending on the decision making process including trap
cases, the Single Directive could not be applied. He
submitted that purpose of the Single Directive was to
prevent the decision making process of officers from being
subjected to scrutiny of the CBI even where the complaint
1 1998(1) SCC 226
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was frivolous. He submitted that the Single Directive was
meant to protect the honest decision-making officers from
facing inquiries and investigations. He submitted that,
however, this did not arise in cases of direct evidence such
as trap cases, where the question of drawing an inference to
establish corrupt motive did not arise. He then invited my
attention to the report presented to the Parliament by the
Joint Committee on the Central Vigilance Commission Bill,
1999. It is submitted that while interpreting section 6-A, the
rule of purposive construction must be adopted to interpret
section 6-A. It is necessary to see the position before it was
enacted and the mischief and defect the Legislator sought to
remedy has to be seen. He relied on three judgments of the
Apex Court on this point viz. State of M.P. And others vs.
Ram Singh1, Balram Kumawat vs. Union of India and others 2
[para 24] and in Government of Andhra Pradesh vs. P. Venku
Reddy3 [para 12]. So far as the word 'involving' which is
found in sub-section (2) of section 6-A of the DSPE Act is
concerned, he submitted that the word 'involving' used in
1 (2000) 5 SCC 88
2 (2003) 7 SCC 628
3 (2002) 7 SCC 631
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the expression 'cases involving arrest of a person on the
spot' (hereinafter referred to as "the said expression") would
mean the cases resulting in arrest based on direct evidence.
He relied upon the judgment of the Apex Court in Duni
Chand Rataria vs. Bhuwalka Brothers Ltd.1 [Para 16]. He
submitted that reliance placed by the applicants on the
judgments in Additional Commissioner of Income Tax vs.
Surat Art Silk Cloth Manufacturers Association 2, The Sole
Trustee Lok Shikshana Trust v/s IT Commr Mysore3 is
erroneous. He then submitted that sub-section (2) of section
6-A of the DSPE Act used the words 'on the spot' in the said
expression. He submitted that the words 'on the spot' does
not mean spontaneous arrest or chance arrest nor arrest at
exact place or time of commission of the offence and the
words are used in reference to the nature of evidence in
terms of the accusation and, therefore, it is submitted that it
is not the question of time or place but the question of
nature of evidence in such accusation at the scene of the
offence as set out in para 45 in Vineet Narain4 (supra). It is,
1 1955 AIR 182
2 AIR 1980 SC 387
3 AIR 1970 Mysore 285
4 1998(1) SCC 226
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therefore, submitted that purposive and contextual
interpretation should be adopted and preferred not to
ascribe the dictionary meaning literally to the words 'on the
spot'. He submitted that the reliance placed on Rule 10.6 of
the CBI Crime Manual is incorrect. He further submitted that
the applicants cannot acquire a legal right from the CBI
Manual. It is also submitted that reference to the provisions
of NDPS Act while interpreting section 6-A of the the DSPE
Act could not be made since section 6-A(2) does not depend
on the success or failure of the trap. So far as the judgment
of the Delhi High Court in Dr. R.R. Kishore vs. CBI1 is
concerned, it is submitted that the said judgment had been
challenged before the Supreme Court and the Supreme
Court by its order dated 12/03/2007 had granted leave and
notice had been issued on the prayers for interim reliefs. The
learned Additional Solicitor General, however, candidly
admitted that no stay to the judgment of the Delhi High
Court was granted. It is submitted that finding of the Delhi
High Court in Dr. R.R. Kishore (supra) on the meaning of the
words 'on the spot' was without reasons and no supporting
1 142(2007) Delhi Law Times 702
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authority was relied upon by the Delhi High Court. It is
submitted that the finding of the Delhi High Court is contrary
to the finding of the Apex Court in para 45 in the case of
Vineet Narain1. It is submitted that in the said judgment,
reliance was placed on the judgments of the Supreme Court
in M.C. Sulkunte (Dr.) vs. State of Mysore 2 [para 15] and in
Shailendranath Bose vs. State of Bihar 3 [para 5].
ig It is
submitted that section 6-A starts with non obstante clause
and, therefore, it is submitted that the interpretation given
by the Delhi High Court is incorrect. The learned Additional
Solicitor General further distinguished the judgments on
which reliance is placed by the Counsel for the applicants.
8. I have heard Mr. Mundargi the learned Senior Counsel
appearing on behalf of the applicant, Mr. Ponda, the learned
Counsel appearing on behalf other applicants and Mr.
Khambata, the learned Additional Solicitor General
appearing on behalf of the respondent - CBI at length.
1 1998(1) SCC 226
2 (1970) 3 SCC 513
3 AIR 1968 SC 1292
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9. The question which falls for consideration before this
Court is regarding interpretation of the words 'cases
involving arrest of a person on the spot' which are
mentioned in sub-section (2) of section 6-A of the DSPE Act.
The controversy which has been raised in these applications
is that though the applicants are arrayed as accused in the
FIR which is registered by CBI on 18/02/2010, the entire
inquiry and investigation into the said offence which is
initiated against the applicant Manjit Singh Bali who is
admittedly an employee of the Central Government of the
level of Joint Secretary without obtaining prior approval of
the Central Government is liable to be quashed since the
previous approval of the Central Government was not
obtained.
10. In order to consider the rival submissions, it will be
necessary to take into consideration the provisions of the
DSPE Act more particularly provisions of section 6-A which
were inserted by the Act 45 of 2003 (hereinafter referred to
as "the said Act') with effect from 12/09/2003. The said Act
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was passed for the constitution of Special Police Force in
Delhi for investigation of certain offences in Union territory
and also for extension to other areas of the powers and
jurisdiction of the members of the said force in regard to
investigation of the said offences. Section 2 of the said Act
has laid down the constitution and powers of special police
establishment and sub-section (1) of section 2 lays down
that notwithstanding anything in the Police Act, 1861 (5 of
1861), the Central Government may constitute a special
police force. Sub-section (2) of section 2 further lays down
that the members of the said police establishment shall
have all the powers, duties, privileges and liabilities which
the police officers of the Union Territory have in connection
with the investigation of offences committed therein while
carrying on investigation and arrest in respect of such
offences and any member of the said police establishment
above the rank of Sub-Inspector was deemed to be an
officer-in-charge of a police station. Sub-section (3) of
section 2 lays down the classes of offences which could be
investigated by the Delhi Special Police Establishment
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(hereinafter referred to as "DSPE") which are notified by the
Central Government by issuing notification in the Official
Gazette. Section 4 lays down power of the superintendence
and administration of special police establishment in respect
of the offences alleged to have been committed under the
provisions of the Prevention of Corruption Act, 1988.
Sections 4-A, 4-B
ig and 4-C lay down Committee for
appointment of Director, terms and conditions of service of
Director and appointment for posts of Superintendent of
Police and above. Section 5 lays down extension of powers
and jurisdiction of special police establishment to other
areas in State. Section 6 lays down that consent of the State
Government has to be obtained to exercise powers and
jurisdiction under the DSPE Act. Section 6-A is regarding
approval of the Central Government to conduct inquiry or
investigation.
11. In the present case, we are concerned with the
interpretation of section 6-A and, therefore, it would be
relevant to reproduce the said section which reads as
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under:-
"6-A. Approval of Central Government to
conduct inquiry or investigation.- (1) The
Delhi Special Police Establishment shall not
conduct any inquiry or investigation into any
offence alleged to have been committed under
the Prevention of Corruption Act, 1988 (49 of
1988) except with the previous approval of the
Central Government where such allegation
relates to-
(a) the employees of the Central
Government of the level of Joint Secretary and
above; and
(b) such officers as are appointed by the
Central Government in corporations
established by or under any Central Act,
Government companies, societies and local
authorities owned or controlled by that
Government.
(2) Notwithstanding anything contained in
sub-section (1), no such approval shall be
necessary for cases involving arrest of a
person on the spot on the charge of accepting
or attempting to accept any gratification other
than legal remuneration referred to in clause
(c) of the Explanation to section 7 of the
Prevention of Corruption Act, 1988 (49 of
1988)"
Perusal of the said section clearly reveals that the said
section is divided into two sub-sections. Sub-section (1)
clearly prohibits DSPE from conducting any inquiry or
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investigation into any offence alleged to have been
committed under the Prevention of Corruption Act, 1988
without previous approval of the Central Government in
respect of the employees falling under categories (a) and (b)
mentioned in the said sub-section (1). Sub-section (2) of
section 6-A, however, starts with non obstante clause and
state "Notwithstanding anything contained in sub-section
(1), no such approval shall be necessary for cases involving
arrest of a person on the spot,......." On the plain
interpretation of the said provision of section 6-A, it is
evident that embargo put on the CBI in sub-section (1) is not
applicable to certain classes of cases viz. 'cases involving
arrest of a person on the spot'. In this context, therefore, it
will have to be seen with reference to the rival contentions
as to what is the exact interpretation of the said expression
viz. 'cases involving arrest of a person on the spot'.
12. In this context, it would be relevant to examine the
circumstances under which section 6-A was inserted by
inserting section 26(c) of the Central Vigilance and
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Commission Act, 2003 with effect from 11/09/2003. Prior to
the introduction of the said section 6-A, what is known as
Single Directive was issued in 1969 by the Executive and it
was amended on number of occasions. The Single Directive
contained certain instructions to CBI regarding modalities of
initiating inquiry or registering a case against certain
categories of civil servants.
ig The Apex Court in Vineet
Narain 1 (supra), in para 19 of its judgment, has produced the
said Single Directive which reads as under:-
"4.7(3)(i) In regard to any person who is or
has been a decision-making level officer
(Joint Secretary or equivalent or above in
the Central Government or such officers as
are or have been on deputation to a Public
Sector Undertaking; officers of the Reserve
Bank of India of the level equivalent to
Joint Secretary or above in the Central
Government, Executive Directors and
above of the SEBI and Chairman &
Managing Director and Executive Directors
and such of the bank officers who are one
level below the Board of Nationalised
Banks), there should be prior sanction of
the Secretary of the Ministry/Department
concerned before SPE takes up any equiry
(PE or RC), including ordering search in
respect of them. Without such sanction, no
enquiry shall be initiated by the SPE.
1 1998(1) SCC 226
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(ii) All cases referred to the
Administrative Ministries/Departments by
CBI for obtaining necessary prior sanction
as aforesaid, except those pertaining to
any officer of the rank of Secretary or
Principal Secretary, should be disposed of
by them preferably within a period of two
months of the receipt of such a reference.
In respect of the officers of the rank of
Secretary or Principal Secretary to
Government, such references should be
made by the Director, CBI to the Cabinet
Secretary for consideration of a Committee
consisting of the Cabinet Secretary as its
Chairman and the Law Secretary and the
Secretary (Personnel) as its members. The
Committee should dispose of all such
references preferably within two months
from the date of receipt of such a
reference by the Cabinet Secretary.
(iii) When there is any difference of
opinion between the Director, CBI and the
Secretary of the Administrative
Ministry/Department in respect of an
officer up to the rank of Additional
Secretary or equivalent, the matter shall
be referred by CBI to Secretary (Personnel)
for placement before the Committee
referred to in clause (ii) above. Such a
matter should be considered and disposed
of by the Committee preferably within two
months from the date of receipt of such a
reference by Secretary (Personnel).
(iv) In regard to any person who is or
has been Cabinet Secretary, before SPE
takes any step of the kind mentioned in (i)
above the case should be submitted to the
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Prime Minister for orders."
According to the Central Government, the said Directive was
limited to officials at decision-making levels in the
Government and certain other public institutions like the RBI,
SEBI, nationalised banks, etc. and its scope was limited to
official acts. According to the Central Government, the
objective of the Directive was to protect decision-making
level officers from the threat and ignominy of malicious and
vexatious inquiries/investigations. According to the Central
Government, such protection to the officers on the decision-
making level was essential to protect them and to relieve
them of the anxiety from the likelihood of harassment for
taking honest decisions. The Apex Court, in this context,
considered the said Single Directive. The Apex Court then
took into consideration the provisions of the DSPE Act and
held that the said Single Directive was contrary to the
statutory provisions of the DSPE Act, 1946 and, therefore, it
could not be upheld as valid on the ground that it being
permissible in exercise of power of superintendence of the
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Central Government under section 4(1) of the Act. While
coming to the said conclusion, the Supreme Court made the
following observations in paras 41 to 45 of its judgment,
which read as under:-
"41. The view does not conflict with the
decision in J.A.C. Saldanha as earlier
indicated. In Saldanha the question was
whether an unsatisfactory investigation
already made could be undertaken by
another officer for further investigation of
the offence so that the offence was
properly investigated as required by law
and it was not to prevent the investigation
of an offence. The Single Directive has
the effect of restraining recording of FIR
and initiation of investigation and not of
proceeding with investigation as in
Saldanha. No authority to permit control
of statutory powers exercised before us
except K. Veeraswami which we have
already distinguished. The view we take
accords not only with reason but also with
the very purpose of the law as it is in
consonance with the basic tenet of the
rule of law."
"42. Once the jurisdiction is conferred
on the CBI to investigate an offence by
virtue of notification under Section 3 of
the Act, the powers of investigation are
governed by the statutory provisions and
they cannot be estopped or curtailed by
any executive instruction issued under
Section 4(1) thereof. This result follows
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from the fact that conferment of
jurisdiction is under Section 3 of the Act
and exercise of powers of investigation is
by virtue of the statutory provisions
governing investigation of offences. It is
settled that statutory jurisdiction cannot
be subject to executive control.
43. There is no similarity between a
mere executive order requiring prior
permission or sanction for investigation of
the offence and the sanction needed
under the statute for prosecution. The
requirement of sanction for prosecution
being provided in the very statute which
enacts the offence, the sanction for
prosecution is a prerequisite for the court
to take cognizance of the offence. In the
absence of any statutory requirement of
prior permission or sanction for
investigation, it cannot be imposed as a
condition precedent for initiation of the
investigation once jurisdiction is
conferred on the CBI to investigate the
offence by virtue of the notification under
Section 3 of the Act. The word
"superintendence" in Section 4(1) of the
Act in the context must be construed in a
manner consistent with the other
provisions of the Act and the general
statutory powers of investigation which
govern investigation even by the CBI. The
necessity of previous sanction for
prosecution is provided in Section 6 of the
Prevention of Corruption Act, 1947
(Section 19 of the 1988 Act) without which
no court can take cognizance of an
offence punishable under Section 5 of that
Act. There is no such previous sanction
for investigation provided for either in the
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Prevention of Corruption Act or the Delhi
Special Police Establishment Act or in any
other statutory provision. The above is
the only manner in which Section 4(1) of
the Act can be harmonised with Section 3
and the other statutory provisions.
44. The Single Directive has to be
examined in this background. The law
does not classify offenders differently for
treatment thereunder, including
investigation of offences and prosecution
for offences, according to their status in
life. Every person accused of committing
the same offence is to be dealt with in the
same manner in accordance with law,
which is equal in its application to
everyone. The Single Directive is
applicable only to certain persons above
the specified level who are described as
"decision-making officers". The question
is whether any distinction can be made for
them for the purpose of investigation of
an offence of which they are accused.
45. Obviously, where the accusation of
corruption is based on direct evidence and
it does not require any inference to be
drawn depending on the decision-making
process, there is no rational basis to
classify them differently. In other words,
if the accusation be of bribery which is
supported by direct evidence of
acceptance of illegal gratification by
them, including trap cases, it is obvious
that no other factor is relevant and the
level or status of the offender is
irrelevant. It is for this reason that it was
contended that such cases, i.e. of bribery,
including trap cases, are outside the
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scope of the Single Directive. After some
debate at the Bar, no serious attempt was
made by the learned Attorney General to
support inclusion within the Single
Directive of cases in which the offender is
alleged to be in possession of
disproportionate assets. It is clear that the
accusation of possession of
disproportionate assets by a person is also
based on direct evidence and no factor
pertaining to the expertise of decision-
making is involved therein. We have,
therefore, no doubt that the Single
Directive cannot include within its ambit
cases of possession of disproportionate
assets by the offender. The question now
is only with regard to cases other than
those of bribery, including trap cases, and
of possession of disproportionate assets
being covered by the Single Directive."
Finally, in para 58 of the said judgment, the Apex Court gave
certain directions granting statutory status to the Central
Vigilance Commission and in clause 12 of the said paragraph
58 observed as under:-
"12. The CBI Manual based on statutory
provisions of the CrPC provides essential
guidelines for the CBI's functioning. It is
imperative that the CBI adheres
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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."
The Apex Court finally struck down Directive No.4.7(3) of the
Single Directive.
13. Thereafter, the Joint Committee on the Central
Vigilance Commission Bill, 1999 made following observations
regarding section 6-A of the DSPE Act
"41. The Committee note that many
witnesses who appeared before the
Committee had expressed the need to
protect the bonafide actions at the decision
making level. At present there is no
provision in the Bill for seeking prior
approval of the Commission or the head of
the Department etc. for registering a case
against a person of the decision making
level. As such, no protection is available to
the persons at the decision making level.
In this regard, the Committee note that
earlier, the prior approval of the
Government was required in the form of a
'Single Directive' which was set aside by
the Supreme Court. The Committee feel
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that such a protection should be restored in
the same format which was there earlier
and desire that the power of giving prior
approval for taking action against a senior
officer of the decision making level should
be vested with the Central Government by
making appropriate provision in the Act.
The Committee, therefore, recommend that
Clause 27 of the Bill be accordingly
amended so as to insert a new section 6A
to the DSPE Act, 1946, to this effect."
Therefore, after the Single Directive was struck down,
section 6-A was inserted in the DSPE Act in order to ensure
that statutory provision is made in the said Act.
14. In the context of rival submissions, therefore, and
keeping in view the background under which section 6-A was
introduced into the Act, it will have to be seen what should
be the interpretation which has to be given to the said
section 6-A of the DSPE Act.
15. Keeping in view the background before inclusion of
section 6-A in the DSPE Act, the words 'cases involving arrest
of a person on the spot' will have to be interpreted.
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16. In my view, the submission of the learned Counsel for
the applicants on this aspect is without any substance. The
case of the applicants falls under section 6-A(2) and,
therefore, the bar of no inquiry or investigation without prior
approval of the Central Government would not operate in
cases falling under section 6-A(2) because the said sub-
section (2) starts with non obstante
ig clause which reads
"Notwithstanding anything contained in sub-section
(1).......". The non obstante clause, therefore clearly reveals
that bar of inquiry or investigation without prior approval of
the Central Government would not apply to cases falling
under section 6-A(2). If the said section 6-A is read as a
whole, it can be seen that the provision makes a clear
distinction between two categories of cases viz 'cases
involving arrest of a person on the spot' and all other cases.
In respect of all other cases not falling within the ambit of
the expression 'cases involving arrest of a person on the
spot', no inquiry or investigation can be made without prior
approval of the Central Government, whereas in cases falling
under sub-section (2), inquiry and investigation is
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permissible without obtaining prior approval of the Central
Government.
17. The crux of the entire case, therefore, would depend on
the interpretation of the words 'cases involving arrest of a
person on the spot'. According to the applicants, the words
'on the spot' would mean chance arrest on the spot where
there is no time at all to take prior approval. On the other
hand, it is the case of CBI that the meaning of the said term
covers cases where there is direct evidence of corruption
such as 'in trap cases' or 'in cases of assets being
disproportionate to the known sources of income'.
18. Since the entire controversy hinges on the
interpretation of the said words 'cases involving arrest of a
person on the spot', it would be relevant to keep in mind the
observation of the Supreme Court in respect of the
interpretation of the words. The Apex Court has cited with
approval the following passage which is to be found from
Maxwell on the Interpretation of Statute (12th Edition page
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76) which reads as under:-
"The words of statute, when there is
doubt about their meaning are to be
understood in the sense in which they best
harmonise with the subject of the
enactment. Their meaning is found not so
much in a strictly grammatical or
etymological propriety of language, nor
even in its popular use, and the object to be
attained."
The Courts have declined to be bound by letter which
frustrates the patent purpose of the statute. The Apex Court
in M/s New India Mills Ltd vs. Commissioner of Sale Tax,
Bihar1 has observed as under:-
"It is a recognized rule of interpretation
of statute that expressions used therein
should ordinarily be understood in a
sense in which they best harmonised
with the object of the statute, and which
effectuate the object of the Legislature."
Similarly, the Apex Court in Carew and Company Ltd. vs.
Union of India2 has observed that when two interpretations
are feasible, the Court would prefer that which advances the
1 1963 SC 1207
2 AIR 1975 SC 2260
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remedy and suppresses mischief as Legislature envisioned.
At the same time, it has been held that interpretation should
not be such that would do violence to the plain language
used by rewriting the section or substituting the words in
place of actual words used by the Legislature. In M. Pentiah
and others vs Muddala Veeramallappa and others1, the
Supreme Court cited with approval the observations of
Denning J, who observed in Seaford Court Estates, Ltd. vs.
Asher2 that "when a defect appears, a judge cannot simply
fold his hand and blame the draftsman. He must set to work
on the constructive task of finding the intention of
Parliament, and he must supplement the written word so as
to give "force and life" to the intention of the legislature."
"A judge should ask himself the question how, if the makers
of the Act had themselves come across this ruck in the
texture of it, they would have straightened it out? He must
then do as they would have done. A judge must not alter
the material of which the Act is woven, but he can and
should iron out the creases."
1 AIR 1961 SC 1107
2 1949 Vol.2 ALL ER 155 at page 164
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19. Keeping in view the aforesaid principles laid down by
the Apex Court in regard to interpretation of expressions and
words in the statute, it will have to be seen what meaning
has to be attributed to the said expression. In my view, the
submissions made by the learned Senior Counsel Mr. Ashok
Mundargi appearing for the applicant Mr. Bali and the
learned Counsel Mr. A.H.H. Ponda appearing for the other
applicants about interpretation of the words 'on the spot'
meaning immediate arrest, cannot be accepted. The
submission made by the learned Additional Solicitor General
Mr. Khambata that section 6-A substituted the Single
Directive also cannot be accepted.
20. Firstly, on a plain reading of section 6-A, it can be seen
that sub-section (1) grants complete protection to the
employees of the Central Government falling under category
6A(1)(a) & (b) from being subjected to any inquiry or
investigation before prior approval of the Central
Government is obtained. On the other hand, sub-section (2)
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takes away that protection to certain classes of cases viz.
'cases involving arrest of a person on the spot'. Therefore,
though complete protection is granted in certain types of
cases under sub-section (1) of section 6-A, that protection is
taken away in cases falling in that particular category which
fall in the said expression. It has to be considered what are
those cases involving arrest of a person on the spot. In my
view, the words 'on the spot' cannot be construed in the
context of time dimension as suggested by Mr. Ponda, the
learned Counsel appearing on behalf of other applicants. In
my view, the said expression would clearly denote that
where there is direct evidence of corruption available
against the employee of the Central Government, he could
be arrested on the spot on the basis of such direct evidence.
For example, in a trap case, CBI is not prohibited from
making inquiry or investigation and register an FIR, leading
to the arrest of the accused in the trap laid for that purpose,
without seeking approval from the Central Government.
21. In my view, the said expression, for the purpose of
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interpretation, cannot be split in two parts and the words 'on
the spot' cannot be taken out of the context. Both the
learned Counsel appearing on behalf of the applicants
precisely made an attempt to split the said expression and
only interpret the words 'on the spot' in isolation. For that
purpose, they have relied on the dictionary meaning of the
words 'on the spot' and contended that only in cases where
there is a chance information where there is no time to take
approval of the Central Government only in such emergent
cases, such a person can be arrested on the spot and
requirement of prior approval would not be necessary. In
my view, if such interpretation is made, it would render the
purpose for which sub-section (2) was inserted, nugatory
because employees of the rank of Joint Secretary and above
normally would not accept bribe on the spot which may
happen in the case of traffic constable or ticket collector or
such other categories of employees. Therefore, if the said
expression is interpreted in a narrow manner as sought to
be argued by the Counsel for the applicants, the very object
of the Legislature in inserting the said sub-section (2) would
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be frustrated. The said expression, therefore, has to be read
as a whole in the context in which it has been made and the
purpose and object which it seeks to achieve. The purpose
of inserting section 6-A is obviously to grant some protection
to employees of the Central Government above a particular
rank to a certain extent but not to grant blanket protection
by sub-section 6-A(1) and to carve out exception by using
the said expression. Further, it can be seen that the words
used are 'cases involving' and not just the 'case involved'.
Therefore, the section obviously includes various cases
which are included in the said expression.
22. It is further sought to be argued that the word
'involving' used in the said expression would mean cases
resulting in arrest based on direct evidence. Reliance is
placed by the respondent - CBI on the judgment of the
Supreme Court in Duni Chand Rataria1, (supra) [para 16].
On the other hand, Mr. Ponda, the learned Counsel
appearing on behalf of applicants Dalmia & another
submitted that if the interpretation suggested by the
1 1955 AIR 182
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respondent - CBI is accepted, it would have a nullifying
effect on section 6-A. He submitted that the said
interpretation ignores the words 'on the spot' in the same
phrase. The judgment on which reliance is placed by the
learned Additional Solicitor General in Duni Chand Rataria1,
(supra) is sought to be distinguished. It is submitted that
the Supreme Court observed that the word 'involving' in the
context means resulting in and this condition would be
satisfied if the chain contracts as entered into in the market
resulted in actual delivery of possession of goods in the
ultimate analysis. It is, therefore, submitted that the word
'involving' in any statute would have to be understood in
the context in which it is used, and may not necessarily
meaning 'leading to'. In this context, reliance is placed on
the judgment of the Apex Court in Additional Commissioner
of Income Tax vs. Surat Art Silk Cloth Manufacturers
Association 2, [para 14] and another judgment of the
Supreme Court in The Sole Trustee Lok Shikshana Trust v/s
IT Commr Mysore3. It is submitted that the provisions of the
1 1955 AIR 182
2 AIR 1980 SC 387
3 AIR 1970 Mysore 285
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DSPE Act, being a Special Act, have to be interpreted
narrowly. Its provisions cannot be interpreted to confer
authority ex post facto, by a subsequent arrest, though
there is no such provision in the section. It is submitted that
this ex post facto validation is untenable. It is submitted
that it is not necessary that in all cases there would be
arrest at the trap stage.
The learned Additional Solicitor General appearing on
behalf of the respondent - CBI sought to distinguish the two
judgments of the Supreme Court on which the reliance was
placed by the Counsel for the applicants, contending that
both these cases were under the Income-tax Act. It is
submitted that, in the first case, the Court was interpreting
the words 'not involving the carrying on of any activity of
profit' occurring at the end of the definition of 'charitable
purpose' while in the second case the Supreme Court was
looking at the effect of the words 'not involving the carrying
on of any activity of profit' on the definition of 'charitable
purpose' under section 2(15). It is submitted that in the first
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case, the Supreme Court rejected the narrow interpretation
of the expression and adopted contextual interpretation and,
in the second case it held that the word 'involve' was of a
wide import and, therefore, it held that involvement of profit
should be such degree or to such an extent so as to enable
to infer the real object of the trust.
23. The word 'involve', according to the Shorter Oxford
dictionary, means to 'enwrap in anything, to enfold or
envelop, to contain or imply'. In my view, as mentioned
hereinabove, the words 'involving' or 'on the spot' cannot be
read in isolation and the entire expression has to be read in
the context of the provisions of section 6-A and the object
for which they have been used. The object, obviously, is to
carve out an exception to cases where protection is given to
those employees under sub-section (1) and to bring certain
cases mentioned in the said expression out of the purview of
the protection granted by sub-section (1). The object,
therefore, is not to give blanket protection to the employees
referred to in section 6-A(1)(a) & (b) and, therefore, if a
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question is posed as to which are the cases involving arrest
of a person on the spot, the answer obviously would be the
cases similar to trap cases. Therefore, in my view, the said
expression, if read as a whole, clearly would mean the cases
where there is direct evidence of corruption and where there
is direct demand for illegal gratification as laid down under
section 7 of the Prevention of Corruption Act. It is, therefore,
not necessary to refer to the judgments on which reliance is
placed by both the sides, since, in these judgments, the
interpretation of the word 'involving' alone is considered in
the facts of the said case. The submissions made by both
the Counsel for the applicants, therefore, on the
interpretation of the words 'involving' and 'on the spot',
cannot be accepted.
24. It has been further argued that the rules and
regulations of CBI have statutory force and reliance is placed
on para 58, direction No.12 in the judgment of the Supreme
Court in Vineet Narain1 (supra) where the Supreme Court
gave a direction as follows:-
1 1998(1) SCC 226
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"12. The CBI Manual based on statutory
provisions of the CrPC provides essential
guidelines for the CBI's 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."
Reference thereafter is made to Rule 10.6 of the CBI Crime
Manual and more particularly to the following portion:-
"10.6 ........prior permission of the
Government should be taken before
enquiry/investigation as required under
Section 6-A of the DSPE Act except the
case where the registration is followed by
immediate arrest of the accused........."
In my view, the said submission is also without any
substance. The Apex Court struck down the relevant portion
of the Single Directive essentially because they were
executive guidelines and they were contrary to the statutory
provisions of the DSPE Act and, thereafter, section 6-A was
inserted in the DSPE Act. Since section 6-A is a statutory
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provision, it will always override the CBI Crime Manual even
if it is held to have statutory force by the Apex Court since
section 6-A is a substantive provision under the DSPE Act.
The submission made by the learned Counsel for the
applicants, therefore, is unsustainable on this point. At the
same time, in my view, the submission made by the
Additional Solicitor General that the Supreme Court had
made an exception to certain class of cases to which the
Single Directive could apply also would not be of any
assistance for the purpose of interpreting section 6-A of the
DSPE Act. It has to be borne in mind, that the Apex Court
has made observations in paragraphs 41 to 46 in Vineet
Narain 1 (supra) while considering the validity of the Single
Directive.
25. The Apex Court in Zee Telefilms Ltd. and another vs.
Union of India and others 2 has observed in paras 254, 255 &
256 as under:-
1 1998(1) SCC 226
2 (2005) 4 SCC 649
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"Precedent
254. Are we bound hands and feet
by Pradeep Kumar Biswas (2002) 5 SCC
111? The answer to the question must be
found in the law of precedent. A
decision, it is trite, should not be read as
a statute. A decision is an authority for
the questions of law determined by it.
Such a question is determined having
regard to the fact situation obtaining
therein. While applying the ratio, the
court may not pick out a word or a
sentence from the judgment divorced
from the context in which the said
question arose for consideration. A
judgment, as is well known, must be read
in its entirety and the observations made
therein should receive consideration in
the light of the questions raised before it.
(See Punjab National Bank v. R.L. Vaid
(2004) 7 SCC 698).
255. Although decisions are
galore on this point, we may refer to a
recent one in State of Gujarat v. Akhil
Gujarat Pravasi V.S. Mahamandal (2004)
5 SCC 155 wherein this Court held : (SCC
p. 172, para 19)
"It is trite that any observation
made during the course of reasoning in a
judgment should not be read divorced
from the context in which it was used."
256. It is further well settled that a
decision is not an authority for a
proposition which did not fall for its
consideration. It is also a trite law that a
point not raised before a court would not
be an authority on the said question. In
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A-One Granites v. State of U.P. (2001) 3
SCC 537 it is stated as follows : (SCC p.
543, para 11)
"11. This question was considered
by the Court of Appeal in Lancaster
Motor Co. (London) Ltd. v. Bremith Ltd.
(1941) 1 KB 675 and it was laid down
that when non consideration was given
to the question, the decision cannot be
said to be binding and precedents sub
silentio and without arguments are of no
moment"
[See also State of U.P. v. Synthetics and
Chemicals Ltd. (1991) 4 SCC 139, Arnit
Das v. State of Bihar (2000) 5 SCC 488
(SCC para 20), Bhavnagar University v.
Palitana Sugar Mills (P) Ltd. (2003) 2 SCC
111, Cement Corpn. of India Ltd. v. Purya
(2004) 8 SCC 270, Bharat Forge Co. Ltd.
v. Uttam Manohar Nakate (2005) 2 SCC
489 and Kalyan Chandra Sarkar v. Rajesh
Ranjan (2005) 2 SCC 42, See para 42.]"
26. In the present case, we are concerned with the
interpretation of the said expression which is found in sub-
section (2) of section 6-A. Since the Apex Court has made
those observations in the context of determining the validity
of the Single Directive, those observations, in my view,
therefore, cannot be applied or used for the purpose of
interpreting the said expression found in sub-section (2).
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27. The learned Counsel appearing on behalf of the
applicants thereafter submitted that the provisions of
section 42 of the NDPS Act are similar to section 6-A and, for
that purpose, reliance is placed on the interpretation of the
said section 42 before and after amendment by the
Supreme Court in its judgment in Karnail Singh1 (supra). In
my view, the said submission also cannot be accepted. The
provisions of NDPS Act pertaining to section 42 are in the
context of recording prior information and reducing it into
writing and sending it to the superior officer forthwith.
There was difference of opinion between the two judgments
of the Apex Court and in Karnail Singh2 (supra), the Supreme
Court had considered the ratio of the two judgments after
taking into consideration the provisions of section 42 before
amendment and after amendment. The provisions of
section 42 of the NDPS Act regarding search and seizure are
made in the context of the provisions of the NDPS Act and,
therefore, it will not be possible to rely on the said provisions
1 (2009) 8 SCC 539
2 (2009) 8 SCC 539
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for the purpose of interpreting the words 'on the spot' or the
said expression which is used in sub-section (2) of section
6-A of DSPE Act.
28. Lastly, reliance is placed on the judgment of the Delhi
High Court in Dr. R.R. Kishore 1 (supra). The Delhi High
Court, while examining the provisions of section 6-A(2),
came to the conclusion that non obstante provision was
applicable only in respect of cases involving arrest of a
person on the spot and, therefore, since the basic ingredient
of arrest on the spot in the said case was missing, section
6-A(2) would not apply and, therefore, the requirement of
prior approval as stipulated in section 6-A(1) was not diluted
or dispensed with. I, with utmost respect, disagree with the
view taken by the learned Single Judge of the Delhi High
Court on the question of interpretation which has been given
by the learned Single Judge to the words 'on the spot' or to
the said expression which is found in sub-section (2). Once
it is held that the said expression used in sub-section (2)
includes trap cases, then non obstante clause would apply
1 142(2007) Delhi Law Times 702
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and there would be no bar for the CBI authorities to make
inquiry or investigation before arresting the accused in a
trap case.
29. In this view of the matter, it is not possible to entertain
these applications filed by the applicants for quashing the
FIR by exercising inherent jurisdiction of this Court under
section 482 of the Criminal Procedure Code.
30. Criminal Application No. 2013 of 2010 and Criminal
Application No.1913 of 2010 are, therefore, dismissed.
Interim order, if any, is vacated. Since both these Criminal
Applications are disposed off, Criminal Application No.328 of
2010 in Criminal Application No.2013 of 2010 does not
survive and it is accordingly disposed off.
(V. M. KANADE, J.)
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