Central Bureau Of Investigation vs Govt Of Nct Of Delhi & Anr
2016 Latest Caselaw 1024 Del

*   IN THE HIGH COURT OF DELHI AT NEW DELHI
+   CRL.M.C. 257/2016
                                 Order reserved on : February 01st, 2016
                                 Date of Decision : February 10, 2016

    CENTRAL BUREAU OF INVESTIGATION                       ..... Petitioner
                        Through        Mr.Tushar  Mehta,     ASG    with
                                       Ms.Sonia Mathur, Standing Counsel
                                       for CBI.
                        versus

    GOVT OF NCT OF DELHI & ANR               ..... Respondents
                 Through   Mr.Dayan Krishnan, Sr. Adv. with
                           Mr.Rahul Mehra, Standing Counsel
                           (Crl.), Ms.Richa Kapoor, ASC (Crl.),
                           Ms.Aakashi Lodha, Mr.Rohit Kaul,
                           Ms.Vedika      Mittal,     Mr.Sanyog
                           Bahadur, Mr.Shekhar Budakoti &
                           Mr.Ashish Negi, Advs. for R-1.
        CORAM:
        HON'BLE MR. JUSTICE P.S.TEJI

    P.S.TEJI, J.

1. The petitioner-Central Bureau of Investigation (CBI) has filed

the present petition under Section 482 of the Code of Criminal

Procedure, 1973 (hereinafter referred to as the "Cr.P.C.") against the

Government of NCT of Delhi (hereinafter referred to as "respondent

no.1") for quashing and setting aside the order dated 20.01.2016

(hereinafter referred to as "impugned order"), passed by the learned

Special Judge, CBI, Patiala House Courts, New Delhi in FIR RC No.

DAI-2015-A-0042 dated 14.12.2015, under Section 120-B of Indian

Penal Code, 1860 and Section 13(2) read with Section 13(1)(d) of the

Prevention of Corruption Act, 1988.

At the outset, counsel for the petitioner submitted that the

respondent no.2-accused Rajendra Kumar has been added as proforma

respondent, so no notice was issued to him.

2. The facts enumerated from the record are that on the basis of

source information, the FIR of the present case was registered on

14.12.2015 against accused Rajendra Kumar and other co-accused

persons. The allegations levelled are that the accused Rajendra

Kumar while working in different capacities in Delhi Government,

promoted and illegally facilitated M/s Endeavour System Pvt. Ltd. by

misusing his official position as public servant and also facilitated

tenders to the said firm through ICSIL. After registration of FIR in

question, an application under Section 93 Cr.P.C. was moved by the

petitioner before the Court below for issuance of search warrant. The

application was allowed and search warrant was issued allowing the

petitioner to search the premises as mentioned in the application. On

15.12.2015, the petitioner conducted searches at various places

including the office of accused Rajendra Kumar and seized various

incriminating documents. On 21.12.2015, execution report was filed

before the Court with the request to allow the retention of seized

documents. An application was filed by the respondent no.1 before

the Court for release of documents seized by CBI on the ground that

the same were not required for investigation. Notice of the said

application was issued to the petitioner. During pendency of the said

application, respondent no.1 requested that the petitioner should

provide copies of the seized files to them. Photocopies of all the

seized files were provided to the respondent no.1. On 20.01.2016, the

Court below directed the petitioner to release the original documents

to the respondent no.1 as mentioned in para 8 of the application.

3. Feeling aggrieved by the passing of the impugned order, the

present petition has been filed by the petitioner seeking quashing and

setting aside of the impugned order mainly on the grounds that the

order of returning the seized documents at this stage would hamper

the investigation; give undue favour to the accused persons and there

is error in the impugned order while going into the relevancy of the

documents and registration of FIR in question without having

preliminary inquiry.

4. I have heard the learned ASG for the petitioner as well as

learned Senior Counsel for the respondent no.1. I have meticulously

gone through their arguments as well as material available on record.

5. The admitted position is that the FIR in the present case was

registered on 14.12.2015 under Section 120-B IPC and Section 13(2)

read with Section 13(1)(d) of the Prevention of Corruption Act against

accused Rajendra Kumar and others. An application under Section 93

Cr.P.C. was moved by the petitioner on 14.12.2015 before the Court

for issuance of search warrants. The Court vide order dated

14.12.2015 issued the search warrants and directed the petitioner to

file the compliance report. In pursuance of the search warrants, the

search was conducted on 15.12.2015 as per search list.

The CBI filed the execution report of search warrants and

sought permission for retention of seized documents in the Court on

21.12.2015.

On 21.12.2015, an application was also filed by the respondent

no.1 for release of documents seized from the office of Rajendra

Kumar. A request was made on behalf of the respondent no.1 before

the Court to direct the CBI to provide the copies of the seized files.

On 31.12.2015, copies of the documents were supplied to the

respondent no.1. On 20.01.2016, the impugned order was passed vide

which the petitioner was directed to return the seized documents in

original as mentioned in para 8 of the application of the respondent

no.1.

6. Operative paras. 58 & 59 of the impugned order are reproduced

as under :

58. But in view of the above discussions, CBI is directed to return the documents in original as mentioned in para 8 of the application to the applicant. However, CBI is at liberty to retain the photocopies of these documents and applicant i.e. Govt. of NCT Delhi is directed to depute responsible officer to sign and stamp on those photocopies so that in future there will not be any dispute about the true nature of the photocopies. Applicant i.e. Govt. of NCT Delhi is also directed to maintain the sanctity of the original documents so released. CBI is also at liberty to inspect the original documents at any point of time by visiting the applicant's office.

59. Application disposed off accordingly. Needless to say if CBI requires any of the released documents in original during the investigation, it is at liberty to seize it back in accordance to law.

7. On the basis of arguments advanced, the sole question to be

decided by this Court is :

Whether the documents in question are required to be retained for the purpose of investigation?

8. On hearing the learned counsel for the parties and on the

perusal of record, it is clear that the case of the petitioner is premised

on the grounds that the investigation is at the initial stage and

disclosing the relevancy or considering the relevancy of the

documents in the impugned order at this stage is not sustainable in the

eyes of law.

9. Argument advanced by the learned ASG for the petitioner is

that the impugned order passed is not sustainable. The argument

advanced is that during search in the office premises of the accused

Rajendra Kumar, certain incriminating documents were found and

same were seized. It is argued that relevancy of documents is the

domain of the Investigating Officer and the Courts cannot interfere in

the investigation conducted by the investigating agency. It is further

argued that if the documents, as sought, are returned in original to the

respondent no.1, it would prejudice the investigation; help the accused

persons and would hamper the fair investigation. It is the consistent

stand of the petitioner that in some of the documents, there are

writings in pencil and if the same are returned, the writings can be

destroyed.

10. In support of the contentions, learned ASG has relied upon

judgment in the case of R.P. Singh v. J.A.C. Saldanha and others

(1980) 1 SCC 554 in which it was observed that :

26.This view of the Judicial Committee clearly demarcates the functions of the executive and the judiciary in the field of detection of crime and its subsequent trial and it would appear that the power of the police to investigate into a cognizable offence is ordinarily not to be interfered with by the judiciary.

27.Some attempt was made to impress us with utterly irrelevant factors as to how much freight TISCO is paying to the railways every year and even the amount which may become payable in view of the disputed facts was also paid some time prior to the filing of the first information report. We would refrain from making even an implied observation on any facts involved in the dispute. The case is not at a stage where the court is called upon to quash the proceedings as disclosing no offence but the case is at a stage where further investigation into the offence is sought to be thwarted by interference in exercise of the extra- ordinary jurisdiction. Apart from reiterating the caution administered way back in Khawaja Nazir Ahmad's (supra) case that unless an extra-ordinary

case of gross abuse of power is made out by those in charge of investigation as noted in S.M. Sharma v. Bipen Kumar Tiwari & Ors the Court should be quite loathe to interfere at the stage of investigation, a field of activity reserved for police and the executive....

In J.A.C. Saldanha's case (supra) the Hon'ble Apex Court is of

the considered opinion that the intervention of the Court is warranted

on the completion of the investigation and the investigation is the sole

domain of the Investigating Officer. It is not disputed by the parties

that the investigation of the case is the sole domain of the

Investigating Officer, rather the case of the respondent no.1 is that the

respondent no.1 has nothing to do with the investigation of the case.

Admittedly, counsel appeared for the respondent no.2 accused/

respondent no.2 and submitted that he had not shown any concern

with the release of the documents and the proceedings on the

application of respondent no.1, rather claimed that he has unnecessary

been made respondent in the present petition. Even the stand of the

petitioner is that the accused/respondent no.2 was a proforma

respondent, so this Court did not issue notice to the respondent no.2.

Similarly, in another judgment relied upon by the learned ASG

in the case of Union of India v. Prakash P. Hinduja and another

(2003) 6 SCC 195, it was observed by the Hon'ble Apex Court that :

13. The provisions referred to above occurring in Chapter XII of the Code show that detail and elaborate provisions have been made for securing that an investigation takes place regarding an offence of which information has been given and the same is done in accordance with the provisions of the Code. The manner and the method of conducting the investigation are left entirely to the officer in charge of the police station or a subordinate officer deputed by him. A Magistrate has no power to interfere with the same. The formation of the opinion whether there is sufficient evidence or reasonable ground of suspicion to justify the forwarding of the case to a Magistrate or not as contemplated by Sections 169 and 170 is to be that of the officer in charge of the police station and a Magistrate has absolutely no role to play at this stage. Similarly, after completion of the investigation while making a report to the Magistrate under Section 173, the requisite details have to be submitted by the officer in charge of the police station without any kind of interference or direction of a Magistrate and this will include a report regarding the fact whether any offence appears to have been committed and if so, by whom, as provided by clause (d) of sub-section (2)(i) of this Section. These provisions will also be applicable in cases under Prevention of Corruption Act, 1947 by virtue of Section 7A thereof and Prevention of Corruption Act, 1988 by virtue of Section 22 thereof.

11. Further argument advanced is that the investigation is at the

initial stage and the relevancy of the documents seized need not to be

disclosed, demonstrated, showed or looked into by any other person

except the Investigating Officer. On this point, the learned ASG has

also relied upon judgments in the cases of Director, Central Bureau

of Investigation and others v. Niyamavedi (1995) 3 SCC 601; State

of Bihar and another v. P.P. Sharma, IAS and another 1992 Supp

(1) SCC 222; State rep. by Inspector of Police, SPE/CBI/ACB v.

Renukadevi 1999 Crl.L.J. 2955; M/s. Naushad Leather Finishers

and others v. Union of India and others 2013 SCC OnLine ALL

2701; State of Karnataka v. K.Krishna Gowda and another 2006

Cri.L.J. 259; Chandan Panalal Jaiswal and another v. State of

Gujarat and others 2004 SCC OnLine Guj 15 and Noorkhan v. Sk.

Jakeere and another 2003 SCC OnLine Bom 36.

12. Further argument advanced is that the FIR was registered on

14.12.2015 and the search warrants were taken on 14.12.2015. The

search was conducted on 15.12.2015 and the documents were taken

into custody. On 21.12.2015, an application for return of original

documents was moved by the respondent no.1. Neither there was any

stage to examine the documents nor was there any stage to

demonstrate the relevancy in the open Court which is contrary to the

fairness of the investigation. In the impugned order, it was not

required to enter into the relevancy of the documents during the

pendency of the investigation and that too, at the initial stage of

investigation.

13. Apart from the arguments on the privacy of the investigation,

learned ASG for the petitioner further argued that in the impugned

order, the jurisdiction has been exceeded while entering into the

question such as reasons for seizing the documents at the time of

search conducted on 15.12.2015 and conducting the preliminary

enquiry.

14. The advancement of the argument culminates into the

undisputed fact that the search was conducted in pursuance of the

search warrant and the documents seized were voluminous. The view

taken in the impugned order that there was requirement to examine

the relevancy of the documents at the time of seizing the documents,

is neither justifiable nor desirable. Admittedly, the search was

conducted at numerous places and against various persons because in

the present case accused/respondent no.2 Rajendra Kumar was

working as Senior IAS officer and was posted as Principal Secretary

to the Chief Minister, Delhi at the relevant time. During the said raid,

several documents were seized from the Government offices. Neither

it was possible to check each and every document at the spot nor was

it possible to scrutinize the documents for the purpose of seizing the

same. No doubt as per clause 14.19 of the CBI Manual, the

Investigating Officer should not seize unnecessary documents, but it

would not out of context to say that the necessity of the documents

could be judged only by going through the documents which did not

appear to be feasible at the time of conducting the raid. More the

reason, Section 93(1)(c) of the Cr.P.C. reads as under :

93.When search-warrant may be issued.-- (1)(a)xxxx

(b)xxxxxxx

(c)where the Court considers that the purposes of any inquiry, trial or other proceeding under this Code will be served by a general search or inspection.

As per Section 93(1)(c) of the Cr.P.C., search warrant is issued

when the documents in general are to be taken into custody for the

purpose of examination. In the present case, after conducting search

and seizing the documents, the Investigating Officer after going

through the documents was of the opinion that the documents were

required for the purpose of investigation.

15. The case of the investigating agency i.e CBI is that the FIR

dated 14.12.2015 was registered for the commission of offences under

Section 120-B IPC and Section 13(2) read with Section 13(1)(d) of

the Prevention of Corruption, Act, 1988 against accused Rajendra

Kumar and other accused persons for entering into criminal

conspiracy and for committing criminal misconduct by public servant

by abusing his official position to obtain for himself or for any other

person any pecuniary advantage. It was alleged against accused

Rajendra Kumar that he caused pecuniary advantage to himself or to

others while working on various official positions and in pursuance of

same, search warrant dated 14.12.2015 was taken from the Court

along with list Annexure 'A'. The list Annexure 'A' reads :

1. Complete data of all e-mails and messages of accused persons.

2. Record/diaries about payment made to accused persons as illegal gratification to public servants and payment made to other private persons for cartel.

3. Pen drives, hard disk, memory cards, CDs, mobile phones etc. containing the data related to the case.

4. Correspondence files of M/s ICSIL related to the various project given by Delhi govt. and details of subsequent payments released to M/s ICSIL.

5. EOI documents, RFP documents, Tender files, Technical bids, Financial Bids, Correspondence files,

Award of work documents etc in respect of FIR projects to M/s Endeavour System Pvt. Ltd. for ICSIL.

6. Documents, if any, showing quid pro quo obtained by accused officials of M/s ICSIL and other accused public servants.

7. Documents showing recommendations made by the accused public servants in respect of various questioned work awarded to M/s Endeavour System Pvt. Ltd. by ICSIL.

8. Documents pertaining to Bank accounts, FDRs, NSCs and other investments made by accused public servants.

9. Documents pertaining to investment in the immovable assets made by accused public servants.

10.Any other documents relevant to the case.

After obtaining the search warrant, search was conducted on

15.12.2015. An application was moved by the respondent no.1 for

return of documents and during the pendency of the same, certified

copies of the documents were given by the CBI. Thereafter the

application was argued at length. The investigating agency/

Investigating Officer took the specific plea before the Court that the

documents seized were required for the purpose of investigation.

16. The documents sought to be returned, mentioned in para 8 of

the application of the respondent no.1, are as under :

(i) That all files/documents placed under

Annexure A-3 specified under head 'A' in para 7 above, which are replicated herein below for read reference namely:

1)One binded Register Diary for the year 2013,

2)One binded Register Diary for the year 2014,

3)A bunch of paper slips containing 1 to 7 slips, are totally unrelated/unnecessary for the purposes of the investigation in the present case.

These files at Serial No.1 and 2 above which have been seized from the Office of Chief Minister on 15.12.2015, are registers (though labeled year 2013 and 2014 respectively) maintained for noting down the telephone numbers and appointment details pertaining to day to day functioning of Chief Minister's office. That various telephone numbers, mobile numbers and other details of meetings etc were scribed in these registers. Similarly, the document/papers seized as mentioned in item no.3 above, contained some numbers, e-mail ID's. That due to seizure of these documents, State's office is facing extreme difficulties in contacting and establishing communication with officers of various departments of GNCTD. The entire work and functioning of State's office is greatly hampered, paralysed and dislocated. Thus the Govt. of NCT of Delhi and in-turn its citizens have been made to suffer immensely on account of indiscriminate seizure carried out in total non-compliance of procedural safeguards and laws relating to requisition and seizures of documents for purposes of

investigation. The repeated request of officers of the applicant to provide photocopies of documents seized, too was turned down in utter violation of provisions of clause 14.20 of the CBI manual.

(ii) That file at serial no.5, of Annexure-B of search list of CBI (para of Annexure A 4 herein) i.e. "one red bounded register Diary 2015" was also indiscriminately seized. This file too was meant for noting down meetings date of CM office. That daily schedule and functioning in CBI office has been malafidely turned topsy turvy by raiding staff of CBI. Here again the repeated request of officers of applicant to provide photocopies of documents seized too was arbitrarily turned down in utter violation of provisions of clause 14.20 of the CBI manual.

(iii) That the file bearing No.F.1([email protected])/ 2008/Admn/Tpt/Vol-I mentioned at S.No.3 of Annexure-B of search list of CBI (part of Annexure A-4 herein) was created in the year 2008 with the subject matter of Hiring of Manpower through outsourcing. The Department of Services presently hiring Data Entry Operators (DEOs) through M/s. ICSIL since May-June, 2013 and before that DEOs were appointed on contractual basis. This file has 2 other Volumes i.e. Vol.II and Vol.III which has been mentioned Sl. No.2(a) and 2(b) of Annexure B of search list of CBI (Again part of Annexure A-4 herein). That more than 150 posts of LDCs and UDCs are lying vacant in the Transport Department. Therefore, from May, 2013,

Transport Department had engaged 130+ DEOs on contractual basis. The outsourcing was done and extended till 31.12.2015 with due concurrence of services, IT and Finance Department of GNCTD. All these three files were sent to the Services Department, GNCTD with the request to provide LDCs and UDCs against the vacant post before 31.12.2015, or to facilitate alternate arrangement [extending the engagement of

(Contractual) for further six months as alternative option]. This file was sent keeping in view the fact that the agreement of IT with ICSIL & NIELIT for providing staff on outsourcing basis is expiring on 31.12.2015. That these DEOs make up a substantial part of work of zonal transport offices, in absence of regular DASS cadre staff. Therefore, these DEOs are very crucial for functioning of zonal transport offices. The work in these offices will come to stand still in absence of these DEOs, if regular DASS cadre staff is not provided to replace them after 31.12.2015. That furthermore, Govt. of NCT of Delhi is to implement odd even formula for private vehicles to control and safeguard the environment from high pollution levels in the city and thus the Government staff in the Transport Department would be of urgent necessity for smooth working of the State run public transport. The raiding officials of CBI oblivious of these difficulties, indiscriminately carried out the seizure inspite of the fact that these documents were not at all relevant or necessary for instant investigation. It is relevant to point out that

here again CBI blatantly and brazenly refused to provide photocopy of these files as well.

(iv) That further file bearing No.F.1(32)/2008/ Admn/TPT/Pt-I, mentioned at Sl.No.1 of the Annxure-B of Search List of CBI (part of Annxure A-4 herein) was created in the year 2014 for requirement of additional DEOs to implement the E-rickshaw policy and was sent to Services Department for urgent action. This file too is totally unrelated/unnecessary to the investigation of the instant case, however, CBI still seized the same indiscriminately in violation of all norms and procedures known to cannons of principlies and law laid down for requisition, search and seizures during investigation.

(v) That the CBI indiscriminately took the screen shot image and print out of the Cabinet decision No.2153 dated 11.6.2015 as mentioned in Item 11 of Annexure-B of Search List of CBI (part of Annexure A-4 herein). This Cabinet decision is not even remotely related with the ongoing investigation. This decision pertains to Food & Supply Department and has nothing to do with any of the Departments concerning which allegations are levied the FIR/RC. That pertinent it is to mentioned that the CBI officials did not stop at taking the seizure of the screen shot and print out of the aforesaid cabinet decision, they later in the day around 5 pm. on 15.12.2015, sent a message that they wanted to peruse the file No.3/2013/GAD/CM. Accordingly, Shri

Prabhat Thakur, Superintendent showed the file to the officers of the CBI. After inspection of the file the CBI indiscriminately seized the said original cabinet decision no.2153 [issued through File No.F.3/3/2013/GAD/CM/dsgadiii/2495- 2506 dated 16.6.2015 (1 sheet) through production cum seizure memo as annexure herein as ANNEXURE A-6. The sole motive of CBI in the instant case was to cause harm to the Govt. of NCT of Delhi and dislocate, paralyse and hamper its smooth functioning.

(vi) That five files relating to MIS, ICSIL, produced by Dy. Secretary IT seized through production cum seizure memo, copy of which is placed as ANNEXURE A-7 is also not in any way related to the ongoing investigation of the instant case.

17. In the impugned order, error has been committed and

jurisdiction has been exceeded in accepting the claim of the return of

the documents, selected by the respondent no.1, mentioned in para 8

of the application as it over shadow the investigation.

18. Furthermore, in the impugned order observations regarding

diary mentioned at sl. no.5, file mentioned at sl. no.3, volumes of file

at sl. No.2(a) & 2(b) and file at sl. No.1 in para 37; observations

regarding files relating to M/s ICSIL in para 38 and observations

regarding the original cabinet decision no.2153 dated 11.06.2015 in

para 39 have been made which are neither justifiable nor desirable as

the relevancy is to be examined by the Investigating Officer and not

by the Court and the same tantamounts to interference in the

investigation conducted by the Investigating Officer.

19. Admittedly, the documents asked to return are voluminous and

are the subject matter of investigation which is on initial stage.

Direction given in the impugned order to disclose the relevancy of the

documents is neither justifiable nor desirable nor sustainable in the

eyes of law at this stage. It would be pertinent to mention here that

such inquiry in the open Court or in the reply would hamper the entire

investigation and would amount to unnecessary interference in the

investigation. It is against the principle of privacy, as the

investigation which is the sole domain of the Investigating Officer and

his mindset need not to be disclosed during the pendency of the

investigation and required to be disclosed only at the time of filing the

charge sheet before the Court. Needless to say that the Court has

ample power to consider the relevancy of the documents filed along

with the charge sheet by the Investigating Officer on the completion

of investigation. The Court is always empowered to release the

unrelied documents by the investigating agency.

20. As discussed above, examination of the documents collected by

the Investigating Officer at the initial stage of investigation

culminated into exceeding of the jurisdiction in the impugned order.

21. Apart from the discussion made above, in para no.55 of the

impugned order, observation has been made that the CBI registered

the FIR in question without conducting preliminary inquiry, which

tantamounts to exceeding of jurisdiction, particularly when the

application did not show any concern about the registration of FIR but

it was only for the return of the documents seized at the time of

conducting the raid in pursuance of the search warrant dated

14.12.2015. Such observations may even affect the ultimate judgment

to be passed at the finality of the trial and thus the same are not

warranted to be made in the impugned order. A reading of para 55 of

the impugned order shows the commission of error and exceeding of

jurisdiction.

22. Furthermore, apart from the discussion made above, there are

apparent contradictions in the findings given in the impugned order

inasmuch as in para 44 it has been mentioned that "There is no

dispute to the proposition that the courts has no power to interference

in the investigation neither can give direction in what manner the

police should conduct the investigation, and police has unfettered

discretion to investigate into the offences", but the impugned order

shows the examination of individual document and relevancy of the

same at the initial stage of investigation just after seizing the

documents.

Similarly, in para 58 of the impugned order, direction has been

given to the CBI to return the documents in original with the liberty to

retain the photocopies and asked the Govt. of NCT of Delhi to depute

responsible officer to sign and stamp on photocopies on the premise

that the documents are not relevant for the purpose of investigation.

On the contrary in para 59 of the impugned order, it was opined that if

CBI requires any of the released documents in original during the

investigation, it is at liberty to seize it back in accordance with law.

23. It would be pertinent to mention that the documents were seized

in pursuance of the search warrants by conducting raid in various

offices. Thus, it is not desirable first, to return the seized documents

and then to re-seize the documents (as mentioned in para 59 of the

impugned order) despite the consistent claim of the Investigating

Officer that there were some pencil entries and other similar things

which could be destroyed and the character of the originality of the

documents may be affected.

This Court is of the considered opinion that requirement of

documents for the purpose of investigation is to be examined and

decided by the Investigating Officer and any direction to interfere in

the same is not justified.

24. In the impugned order, there is also failure to exercise the

jurisdiction in not considering and examining the application dated

21.12.2015 filed by the CBI for retention of seized documents. It is

apparent that no order on the application of the CBI regarding

submission of execution reports of search warrants and request for

retention of seized documents has been passed.

25. The bone of contention of the argument advanced by the

learned Senior Counsel Mr.Dayan Krishnan for the respondent no.1 is

that the search warrant was issued on 14.12.2015 and Annexure 'A'

was attached along with that to search and seize the documents. It

was vehemently argued that at the time of search, it was the duty of

the Investigating Officer that the search should have been conducted

to seize the documents mentioned in the search warrant only and no

document beyond the same should have been seized and also to

examine the relevancy of the seized documents then and there only.

26. In support of the above contentions, learned Senior Counsel for

the respondent no.1 relied upon judgment in the case of Central

Bureau of Investigation v. Ashok Kumar Aggarwal (2014) 14 SCC

295 in which it was observed that :

Thus from the above, it is evident that the CBI Manual, being based on statutory provisions of CrPC, provides for guidelines which require strict compliance More so, in view of the fact that the ratio of the judgment of this Court in M.M. Rajendran has been incorporated in the CBI Manual, the CBI Manual itself is the best authority to determine the issue at hand. The court has to read the relevant provisions of the CBI Manual alone and no judgment of this Court can be a better guiding factor under such a scenario.

In the next judgment relied upon by the Senior Counsel for the

respondent no.1 in the case of State of Haryana and others v. Ch.

Bhajan Lal and others AIR 1992 SC 604, it was observed that :

The sum and substance of the above deliberation results in a conclusion that the investigation of an

offence is the field exclusively reserved for the police officers whose powers in that field are unfettered so long as the power to investigate into the cognizable offences is legitimately exercised in strict compliance with the provisions falling under Chapter XII of the Code and the courts are not justified obliterating the track of investigation when the investigating agencies are well within their legal bounds as aforementioned. Indeed, a noticeable feature of the scheme under Chapter XIV of the Code is that a Magistrate is kept in the picture at all stages of the police investigation but he is not authorised to interfere with the actual investigation or to direct the police how that investigation is to be conducted. But if a police officer transgresses the circumscribed limits and improperly and illegally exercises his investigatory powers in breach of any statutory provision causing serious prejudice to the personal liberty and also property of a citizen, then the court on being approached by the person aggrieved for the redress of any grievance, has to consider the nature and extent of the breach and pass appropriate orders as may be called for without leaving the citizens to the mercy of police echelons since human dignity is a dear value of our Constitution. It needs no emphasis that no one can demand absolute immunity even if he is wrong and claim unquestionable right and unlimited powers exercisable up to unfathomable cosmos. Any recognition of such power will be tantamount to recognition of 'DivinePower' which no authority on earth can enjoy.

On similar point, judgments in the cases of Sakiri Vasu v. State

of U.P. and ors. AIR 2008 SC 907; Lalita Kumari v. Govt. of U.P.

and ors. AIR 2014 SC 187; M.P. Sharma and ors. V. Satish

Chandra AIR 1954 SC 300; V.S. Kuttan Pillai v. Ramakrishnan and

anr. AIR 1980 SC 185; Shyam M. Sachdev v. The State and another

1991 Crl.L.J. 300; Vineet Narain and ors. V. Union of India and

anr. AIR 1998 SC 889 and S.K. Srivastava v. Gajanand Patriwalla

1956 Cri.L.J. 1396 have also been relied upon.

27. The argument advanced by the learned Senior Counsel for the

respondent no.1, in the facts and circumstances stated above, does not

appear to be cogent inasmuch as moving the application under Section

93 Cr.P.C. for issuance of search warrants is part of the investigation

and does not curtail the power to conduct the investigation by the

Investigating Officer. The investigation was being conducted against

accused Rajendra Kumar who at the time of search was working as

Principal Secretary to the Chief Minister, Delhi. Thus, asking for the

relevancy of the documents by moving the application for the release

of original documents is neither justifiable nor desirable at the initial

stage of investigation as it could hamper the investigation in the

matter. More the reason, the respondent no.1 has no connection with

the accusation against accused Rajendra Kumar. Section 93 Cr.P.C. is

meant to facilitate the investigation and is not meant to over shadow

the scope of investigation and the details of documents given in the

application or annexure thereto does not curtail the scope of

investigation. Thus, the raising of plea to curtail the investigation is

not sustainable.

28. This Court is of the considered view that the moving of the

application under Section 93 of Cr.P.C. for issuance of search warrant

does not curtail the scope of the investigation into the allegations and

for considering the other factors for the purpose of investigation.

Mere mentioning of the period of offence does not curtail the power

of the Investigating Officer to seize the documents subsequent to the

same as it was in the continuation of the material required for the

investigation during subsequent period also. More the reason that

item no.10 of the annexure to the application under Section 93 Cr.P.C.

says "Any other documents relevant to the case". Thus, the argument

advanced by the learned Senior Counsel for the respondent no.1 that

the Investigating Officer was required to stick to the documents

mentioned in annexure to the application only and cannot enlarge the

scope of seizure of the documents for the purpose of investigation,

does not appear to have any force.

29. As discussed above, the impugned order is full of either

exceeding of jurisdiction or failure to exercise the jurisdiction. The

issuance of directions to return the documents at the time of initial

investigation despite having consistent stand of the CBI to retain the

documents for the purpose of investigation to reach to a logical

conclusion; making the unnecessary observations in para 55 with

regard to conducting the proceedings by the petitioner; having

contradictory views in paras 58-59 and 44; directing to return the

documents in original selected by the respondent no.1 in para 8 of the

application and having failed to exercise the jurisdiction to consider

the application for retention of documents by the CBI, culminates into

the impugned order not sustainable in the eyes of law.

30. The claim of the CBI to retain the documents for the purpose of

investigation is justifiable. Accordingly, the impugned order dated

20.01.2016 is hereby set aside and the petitioner/Investigating Officer

is at liberty to retain the documents during the pendency of the

investigation.

31. Needless to say that two sets of the copies of the documents

have already been supplied to the applicant/respondent no.1, once

during the pendency of the application before the Court below and

second time during the pendency of the present petition. The

documents in sealed cover filed by the petitioner, lying with the

Registrar General of this Court, has not been referred by either of the

parties, so the Registrar General is directed to return the original

sealed cover to the petitioner.

32. The present petition is disposed of accordingly.

33. The application Crl.M.A. 1136/2016 is also disposed of.

34. Copy of the order be given to both the parties under the

signature of the Court Master.

(P.S.TEJI) JUDGE FEBRUARY 10, 2016 dd