Gurucharan Singh vs The Director Of Cbi & Anrs.
2011 Latest Caselaw 4220 Del

*              HIGH COURT OF DELHI AT NEW DELHI

+                    W.P. (CRL.) No.1095/2004


                                Date of Decision: 30.8.2011


GURUCHARAN SINGH               ... Petitioner
              Through: Mr.Ramesh Gupta, Sr.
                       Adv.   with   Mr.Bharat
                       Sharma, Advocates.

                           Versus



THE DIRECTOR OF CBI & ANRS.      ...Respondents
                Through: Mr.Harish Gulati &
                         Mr.A.Malhotra, Advs.

CORAM :
HON'BLE MR. JUSTICE V.K. SHALI

1.     Whether Reporters of local papers may be
       allowed to see the judgment?                   Yes
2.     To be referred to the Reporter or not?         Yes
3.     Whether the judgment should be reported
       in the Digest?                                 Yes

V.K. SHALI, J.

1. This is a petition, filed by the petitioner, seeking a

direction to the CBI to register an FIR and initiate

action on the basis of the complaints purported to

have been made by the petitioner, copies of which

are annexed as Annexures P1 to P4 to the petition. It

has been further prayed that the petitioner be given

security so that the petitioner's life is saved. During

the course of the submissions, Mr.Ramesh Gupta,

learned senior counsel, appearing on behalf of the

petitioner, prayed that a writ of mandamus be issued

to the CBI to register an FIR on the basis of the

complaint and initiate an investigation into the

matter and bring the guilty to the book.

2. Briefly, stated the facts of the case are that the

petitioner/complainant is alleged to have made a

written complaint on 13.01.2004 to the Director,

Central Bureau of Investigation, wherein allegations

have been made against one Gurcharan Singh of

M/s.D.Paul Consumer Benefit Ltd., alleging that he

was dealing in Hawala transaction of money, which

was being used for the purpose of anti-national

activities. In the complaint, several allegations were

made against the accused, Gurcharan Singh. It is

alleged, in the complaint, that he met the accused in

the year 1997, who was engaged in moneychanger

business in the name and style of M/s.D.Paul

Consumer Benefits Ltd. and M/s.D.Paul

Departmental Stores Ltd. In the year 1998, the

accused informed the petitioner that he wanted to

start the business of exporting foreign currency to

Dubai. The petitioner and the accused had gone to

Dubai and later the petitioner sent foreign currency

for Hawala purpose to Dubai and Singapore. It is

alleged that the petitioner had given a loan of Rs.20

Lacs to the accused in the year 1999 but the same

had not been repaid to him. It is also alleged that in

April, 2000 the accused had asked the petitioner to

work for him in the money changing business. The

petitioner started working for the accused from May,

2000. Sale and purchase memos were exchanged

between the firms of the accused and the petitioner

and the cheques were issued to complete the

transactions through the bank. It is also alleged that,

at the instance of the accused, the petitioner had

delivered foreign currency so generated to

Sh.Thakur and Sh.Sunil, well-known Hawala

operators of Delhi, collected cash from them, and in

turn delivered it to the accused. Such activities

continued till October 2000 and within five months

there was exchange of foreign currency to the tune

of Rs.60 crores approx. and equivalent foreign

exchange was sold in hawala market. The accused

had asked the petitioner neither to inform purchase

and sale of currency to RBI nor to reflect it in the

Books of Account. It has also been alleged that the

accused has been exporting huge foreign currency to

Hong Kong, London, Singapore, etc. It is further

alleged that the accused gave life threats to the

petitioner and his family.

3. The matter had come up for hearing for the first time

on 03.09.2004, when notice was issued to the

respondents and they were directed to file the status

report. The CBI has filed three status report on

09.12.2004, 21.08.2006 & 27.01.2010.

4. It has been reflected in the status report that the

petitioner had made a complaint against the

accused, Gurcharan Singh of M/s.D.Paul Consumer

Benefits Pvt. Ltd., a moneychanger, authorized by

Reserve Bank of India, alleging that the accused had

done transactions between 1997 to October, 2000 in

violation of Foreign Exchange Regulation Act, 1973.

The sum and substance of these allegations were

that the accused was dealing with illegal sale of

foreign currency and Hawala transaction, which was

being used for anti-national activities. The matter

was investigated by the CBI and it was found that

M/s.D. Paul Consumer Benefits Pvt. Ltd. is a full-

fledged moneychanger authorized by Reserve Bank

of India and transacted sale and purchase of foreign

exchange with the firms of the petitioner and other

authorized moneychangers. It seems that during the

business dealings between the petitioner's firm and

the firm of the accused, the petitioner had a feeling

that the accused had deprived the petitioner of the

benefit of approximately 20000 US $ and,

accordingly, prayed for an action against him. The

investigating authority did not find that any

provisions of FERA was violated and, accordingly, the

matter was closed by them and prayed for the

dismissal of the writ petition. Still not feeling

satisfied, the petitioner has filed the present petition.

5. I have heard Mr.Ramesh Gupta, learned senior

counsel for the petitioner as well as learned counsel

for the respondent/CBI and gone through the

records as well as judgments, which have been cited

by the respective sides.

6. Before, I deal with the said judgments, which have

been relied upon by the learned senior counsel for

the petitioner, I must candidly say that one thing is

very clear that there is no dispute that the Apex

Court in number of judgments, the details of which

will be given hereinafter, has categorically stated

that so far as the Magistrates are concerned, they do

not have the power to direct the investigation to be

conducted by the CBI in a given case, however, the

Supreme Court under Articles 32 and 136 & High

Court under Article 226 can, in certain cases, direct

the CBI to conduct investigation into any offence but

it has been observed that the Courts must be

circumspect in issuing a direction to get the matter

investigated by the CBI and shall issue the direction,

in this regard, only if the facts of a particular case

are of such a national importance or are so gross

and having wide ramification that it needs to be

investigated by the CBI for doing complete justice.

Therefore, in nutshell, it is not disputed that the High

Court has the power to refer the matter to the CBI

for the purpose of investigating into the matter in a

given fact and situation but the question, which

would arise for consideration is whether the facts of

the present case are such, which warrant the

reference of the matter to the CBI for the purpose of

investigation. Before dealing with the same, let us

see the judgments, in this regard, by the Apex

Court.

7. In State of West Bengal & Others Vs. Committee for

Protection of Democratic Rights, (2010) 3 SCC 571, the

Apex Court in para 70 has observed as under:

"Before parting with the case, we deem it necessary to emphasise that despite wide powers conferred by Articles 32 and 226 of the Constitution, while passing any order, the Courts must bear in mind certain self-imposed limitations on the exercise of these constitutional powers. The very plenitude of the power under the said articles requires great caution in its exercise. Insofar as the question of issuing a direction to CBI to conduct investigation in a case is concerned, although no inflexible guidelines can be laid down to decide whether or not such power should be exercised but time and again it has been reiterated that such an order is not to be passed as a matter of routine or merely because a party has levelled some allegations against the local police. This extraordinary power must be exercised sparingly, cautiously and in exceptional situations where it becomes necessary to provide credibility and instil confidence in investigations or where the incident may have national and international ramifications or where such an order may be necessary for doing complete justice and enforcing the fundamental rights. Otherwise CBI would be flooded with a large number of cases and with limited resources, may find it difficult to properly investigate even serious cases and in the process lose its credibility and purpose with unsatisfactory investigations."

8. In AIIMS Employees Union Vs. Union of India, (1996) 11

SCC 582, the Apex Court has observed that it is not

open to a petitioner to approach the High Court by

filing a writ petition and seeking a direction to

conduct an investigation by the CBI. The reason for

a such a view having been taken by the Apex Court

is not far to seek, which is further elucidated in case

titled Sakiri Basu Vs. State of U.P. & Ors., (2008) 2 SCC

409, wherein the Apex Court has reiterated the

principles of law enunciated in Central Bureau of

Investigation Vs. State of Rajasthan & Anr., (2001) 3 SCC

333, which was reiterated in State of West Bengal's case

(supra), that although the High Court and Supreme

Court in exercise of its Constitutional powers has

power to order investigation to be conducted by CBI

in rare and exceptional cases but such a power to

order investigation by the CBI is not conferred on

the Magistrate and further this power must be

exercised very sparingly and in rare and exceptional

cases. The Court, also referred, with approval, to the

judgment in case titled CBI Vs. Rajesh Gandhi, (1996)

11 SCC 253, wherein Court held that an aggrieved

person can only claim that an offence alleged to

have been committed may be investigated properly

but he has no right that his offence be investigated

by a particular agency. It is, in this context, that the

Apex Court in Sakiri Basu's case (supra) has

observed that the High Court ordinarily ought not to

issue a direction to the police much less to the CBI

for registration of an FIR and investigate into the

matter as there is an alternative remedy provided

under the Cr.P.C. to seek redressal of the grievance.

This alternative remedy is that if at all there is a

cognizable offence, committed by an accused the

aggrieved party can lodge a report under section 154

Cr.P.C. with the SHO, who is duty bound to register

an FIR and in case he fails to do so the aggrieved

party has the option to approach the DCP/SP under

section 154 (3) Cr.P.C. and incase the FIR is still not

registered the aggrieved party does not become

remediless and in as such as he has an option to put

the criminal justice machinery into motion by lodging

a complaint under section 200, wherein an inquiry

may be held by the Magistrate and then he may

proceed under sections 202 to 204 by either

rejecting the complaint on account of lack of prima

facie case being made out or issue process against

the accused under section 204 Cr.P.C. Even while

holding the inquiry under section 202 Cr.P.C., or

prior thereto under section 156(3) Cr.P.C., the

Magistrate has an option to refer the matter to the

police for the purpose of investigation at pre-

cognizance and post-cognizance stage, in terms of

the aforesaid provisions.

9. Therefore, in the light of the aforesaid

pronouncements and the broad parameters of law, I

feel that the prayer of the petitioner that a direction

be issued to the CBI to register an FIR and

investigate into the matter is totally unsustainable in

law on account of the fact that essentially the

grievance of the petitioner is personal in nature,

because he was having money transactions with the

accused. The complaint seems to be actuated only

out of the said considerations so that the accused is

subjected to inquiry by the CBI so that it hampers

his business activities, while as prima facie the CBI

has found nothing amiss. Therefore, it is not a rare

or an exceptional circumstance, which will make the

present Court to issue a direction to the CBI to

register an FIR and then investigate on the spacious

and alleged ground raised by the petitioner that the

accused, Gurcharan Singh of M/s.D.Paul Consumer

Benefits Pvt. Ltd. is indulging in Hawala transaction

and anti-national activities. Moreover by directing

the CBI to investigate into the matter, this Court will

be doing the same, what has not been approved by

the Apex Court in AIIMS Employees Union' case

(supra), namely, permitting a party to select its own

investigating agency is concerned.

10. I accordingly, dismiss the present petition as being

without any merit. However, if the petitioner still

feels aggrieved on account of the alleged illegal

action which he terms as an offence, it shall be open

to the petitioner to file an appropriate complaint

before the learned Magistrate and make out a prima

facie case so as to proceed against them.

11. With these observations, the writ petition is

dismissed.

V.K. SHALI, J.

August 30, 2011/SS