Delhi High Court
Virbhadra Singh & Anr. vs Central Bureau Of Investigation & ... on 31 March, 2017
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment reserved on: 15.12.2016
% Judgment delivered on: 31.03.2017
+ W.P.(CRL) 2757/2015 and CRL.M.A. 17536-17538/2015,
3396/2016 & 3806/2016
VIRBHADRA SINGH & ANR. ..... Petitioners
Through: Mr. Kabil Sibal, Sr. Adv., Mr. Dayan
Krishnan, Sr. Adv. with Mr.
Parmatma Singh, Mr. Mayank Jain,
Mr. Madhur Jain & Ms. Manvi Priya
Advocate
Versus
CENTRAL BUREAU OF INVESTIGATION
& ORS. ..... Respondents
Through: Mr. P.S. Patwalia, ASG along with
Mr. Sanjeev Bhandari, Special Public
Prosecutor for CBI.
Mr. Shrawan Dogra, Advocate
General, H.P., Mr. Virendera
Chauhan, Addl. A.G., H.P. & Mr.
D.K. Thakur, Dy. A.G., H.P. for
Respondent No. 2/ State of Himachal
Pradesh
CORAM:
HON'BLE MR. JUSTICE VIPIN SANGHI
JUDGMENT
VIPIN SANGHI, J.
1. The petitioners have preferred the present writ petition to seek a writ
of certiorari quashing the Regular Case RC AC-1 2015 A-0004 registered
against them and two others under Section 13(2) r/w 13(1) (e) of the
Prevention of Corruption Act, 1988 (hereinafter 'the PC Act') and Section
109 IPC by the respondent no. 1/CBI, and all actions taken in pursuance of
the said Regular Case by the CBI.
2. Petitioner No.1 is a former Union Minister - and also the present
Chief Minister of the State of Himachal Pradesh. Petitioner No.2 is his wife.
They are alleged to have acquired assets disproportionate to their known
sources of income during the tenure of petitioner no.1 as a Union Minister of
State from 28.05.2009 to 18.01.2011, and the Union Minister of Micro,
Small and Medium Enterprises (MSME) from 19.01.2011 to 26.06.2012 in
the Government of India i.e. from 28.05.2009 to 26.06.2012 (hereinafter
'the Check Period'). The said Regular Case has been registered against them
and two others, by the CBI on 23.09.2015 on the basis of a Preliminary
Enquiry PE AC-1 2015 A 0002 registered on 17.06.2015.
3. The petitioners' submissions are, primarily, twofold. Firstly, the
petitioners submit that the CBI held a Preliminary Enquiry vide PE AC1
2012 A 0007 dated 19.10.2012 and closed it. The same is referred to as the
First Preliminary Enquiry (First PE). The CBI, thereafter, started another
Preliminary Enquiry allegedly on the same subject matter - registered as PE
AC-1 2015 A0002 on 17.06.2015, referred to as the Second Preliminary
Enquiry (Second PE). On the basis of the Second PE, the aforesaid Regular
Case is stated to have been registered. The petitioners submit that the CBI
did not have the jurisdiction to register and hold a Second PE when the First
PE on the same facts, and into the same allegations, had already been
conducted and closed. Secondly, the submission of the petitioners is that the
CBI does not have the jurisdiction to investigate the aforesaid Regular Case
under the PC Act in the State of Himachal Pradesh, without obtaining
permission of the State Government of that State under Section 6 of the
Delhi Special Police Establishment Act, 1946 (hereinafter 'the DSPE Act')
which, according to them, has not been obtained.
4. This petition was initially filed as Civil Writ Petition i.e. C.W.P. No.
4063 of 2015 before the High Court of Himachal Pradesh seeking the
following substantive reliefs:
"i) Issue a direction thereby summoning the record of
Respondent. 1 relating to Preliminary Enquiry dated
17.6.2015 being PE AC-1 2015 A 0002;
ii) Issue a direction thereby summoning the record of the
Respondent. 1 relating to RC AC 1 2005 A0004;
iii) That after perusing the record relating to the aforesaid
Preliminary Enquiry and the Regular Case, this Hon'ble
Court may be pleased to Issue writ of certiorari or any other
appropriate writ or direction that this Hon'ble Court may
deem fit and proper thereby quashing the RCAC-1 2015 A-
0004 under Sections 13(2) r/w 13(1)(e) of the Prevention of
Corruption Act, 1988 and Section 109 IPC was registered by
the CBI dated 23.09.2015 and all the actions taken in
pursuance of the said Regular Case including but not
limiting to the search warrants, seizure memos and all
investigation done by Respondent. 1."
5. The Himachal Pradesh High Court on the first date of hearing itself,
while granting time to the respondents to file their reply, vide order dated
1.10.2015 framed the following questions for determination in this petition:
"1. Whether cause of action has arisen within the territorial
jurisdiction of this Court qua FIR No. RCAC-1 2015 A-004
registered on 23.9.2015, more particularly, in view of Sr.
No. 5 read in conjunction with paras 4,5 and 6 of the FIR?
2. Whether there could be second preliminary inquiry after
the closure of earlier preliminary inquiry purportedly as per
para 9.26 of the Central Bureau of Investigation Manual?
3. Whether registration of FIR No. RCAC-1 2015 A-004
dated 23.9.2015 violates the dicta of Hon'ble Supreme Court
in Ms. Mayawati vs. Union of India and others, (2012)8
SCC 106?
4. Whether it was mandatory for the Central Bureau of
Investigation to seek the consent of the State Government as
per section 6 of the Delhi Special Police Establishment Act
at the time of registration of FIR and its subsequent
investigation and raiding the residential premises of the
petitioners and non conforming to mandatory provisions of
section 6 of the Delhi Special Police Establishment Act
vitiates the investigation as well as raid in the official
premises of the petitioners?
5. Whether the raid at the residential premises of the sitting
Chief Minister without conforming to section 6 of the Delhi
Special Police Establishment Act would dilute the basic
federal structure of the Constitution of India?
6. Whether the FIR No. RCAC-1 2015 A-004 could be
registered when the Income Tax Department and this Court
is seized of the matter?
7. Whether the Central Bureau of Investigation has complied
with the mandatory provisions of Code of Criminal
Provisions and the guidelines provided in Central Bureau of
Investigation Manual while registering the FIR and also
while undertaking the investigation?
8. What is the true import of Entry 2-A, 80 of the Union List
vis-à-vis 2 of the State List and their inter-play?
9. Whether the income reflected in paras 5 and 6 of the FIR
can be treated as disproportionate assets in the hands of
petitioner No. 1?
10. Whether the registration of FIR against the petitioners is
actuated with legal and factual mala fide and political
vendetta?
11. Whether the permission of the Speaker of the H.P.
Legislative Assembly was mandatory before registration of
FIR?"
6. The Court directed CBI to go ahead with the investigation in the said
Regular Case, on the condition that the statements of the petitioners shall not
be recorded without seeking leave of the Court. The Court also ordered that
CBI shall not arrest the petitioners, or file the challan without the express
leave of the Court.
7. Respondent no. 1/CBI preferred a Transfer Petition T.P. (Crl.)
No.425/2015 before the Supreme Court for the transfer of the proceedings
from the High Court of Himachal Pradesh in C.W.P. No. 4063 of 2015. The
CBI also preferred Special Leave Petitions against the order dated 1.10.2015
being SLP (Criminal) Nos. 9002-9003 of 2015. The Supreme Court vide its
order dated 5.11.2015 transferred the proceedings pending before the High
Court of Himachal Pradesh in C.W.P. No. 4063 of 2015 with all the
Miscellaneous Petitions to this Court. The Supreme Court, however,
dismissed the Special Leave Petitions preferred by the CBI without going
into the correctness, or otherwise, of the order dated 1.10.2015. The
Supreme Court left it open to the parties on either side to seek variation or
confirmation of the orders passed in the writ petition.
8. Consequently, the said writ petition was registered and numbered as
W.P. (CRL) No. 2757 of 2015 in this Court and was listed before a Ld.
Single Judge of this Court as per roster, firstly, on 2.12.2015. Thereafter, it
was listed before the Single Benches as per roster on several occasions.
9. Vide order dated 05.04.2016, the learned Single Judge directed that
the matter be placed before Hon'ble the Chief Justice for seeking directions
as to whether the writ petition is required to be heard by a Single Bench, or
by a Division Bench, since the initial order in the writ petition - as originally
filed, was passed by a Division Bench of the Himachal Pradesh High Court.
Hon'ble the Chief Justice directed the matter to be placed before a learned
Single Judge and, consequently, the same was again listed before the learned
Single Judge on 06.04.2016. On that day, the Court considered the
application moved by the CBI i.e. Crl. M.A. No. 3806/2016 to seek variation
of the interim arrangement operating in terms of the order passed by the
Division Bench of the Himachal Pradesh High Court.
10. The learned Single Judge, after taking note of the submissions made
on behalf of the petitioners that they are ready and willing to join and
cooperate in the investigation as and when required, directed that the
petitioners shall join the investigation. Premised on the assurance already
given on behalf of the CBI before the High Court of Himachal Pradesh - that
there is no proposal to arrest the petitioners, the Court again reiterated that
the petitioners will not be arrested as and when they appear before the
investigating agency for the purpose of joining the investigation.
11. The writ petition was listed before me for the first time on
08.09.2016, and was adjourned at the request of the learned senior counsel
for the petitioners to 15.09.2016. On 15.09.2016, arguments commenced
and they were partly heard. Thereafter, the case was listed on 23.09.2016,
27.09.2016, 28.09.2016, 29.09.2016, 03.10.2016, 04.10.2016, 06.10.2016,
17.10.2016, 25.10.2016, 26.10.2016, 27.10.2016, 04.11.2016, 07.11.2016,
08.11.2016, 09.11.2016, 02.12.2016, 05.12.2016, 06.12.2016, 07.12.2016,
08.12.2016 and on 15.12.2016, when the judgment was reserved. The
parties were granted the opportunity of filing their written synopsis of
arguments by 23.12.2016.
12. On 23.12.2016, the written submissions were tendered on behalf of
the petitioners by Mr. Ram Jethmalani, Senior Advocate. These written
submissions have been drawn by Mr. Chirag Madan, Advocate, 2 Akbar
Road, New Delhi. Along with the written submissions, he has filed his
Vakalatnama dated 21.12.2016, which appears to have been issued by
petitioner no.1 in his favour and in favour of Mr. Anirudh Anand, Advocate.
The written submissions have not been filed by the Advocates who had been
engaged by the petitioners earlier, or who were present during the course of
hearing of the petition by me. The presence of the counsels who represented
the petitioners on the above dates of hearing have been recorded
contemporaneously in the order sheets.
13. On the said date, i.e. 23.12.2016, for the first time, Mr. Jethmalani
appeared before me (though the record shows that he had appeared for the
petitioners earlier on 05.04.2016 and 06.04.2016), and requested me to take
note of the first written submission of the petitioners. He requested me to
consider the petitioners plea that I should recuse myself from dealing with
the case.
14. The petitioner no. 1 in his written submission states that "after long
introspection" he "has not been able to get over his feeling that" I "may not
be able to impartially deal with the numerous issues of law and fact which
were originally formulated by the Hon'ble High Court of Himachal Pradesh
vide order dated 01.10.2015". The petitioner no. 1 goes on to state that the
learned Attorney General Mr. Mukul Rohatgi had appeared before the
Supreme Court and pressed for the transfer of the proceedings in the subject
writ petition from the Himachal Pradesh High Court to this Court. The
petitioner no. 1 further states "When the petitioner heard about this from his
counsel, he was a bit perturbed, but he raised no objection to the matter
being heard by your Lordship in spite of some serious anxiety which kept
oppressing the petitioner. This anxiety is the result of the following
circumstances, in brief .... .... ...."
15. The circumstance mentioned by the petitioner no. 1 is that the learned
Attorney General, Mr. Mukul Rohatgi advised the moving of the transfer
petition before the Supreme Court, and also appeared before the Supreme
Court on behalf of the CBI. The petitioner no. 1 states that the BJP
Government was hostile towards the petitioner no. 1 even when it was in
power between 1998 to 2004 - when Mr. Mukul Rohatgi was an Additional
Solicitor General. The petitioner no. 1 states that the BJP Government is
responsible for engineering the present case against the petitioners. The
petitioner no. 1 states that during the hearings - which spanned 25 dates, the
petitioners and their counsel "were left with the impression that the
submissions of the Petitioners Counsel were being treated with contempt as
distinguished from those of the other side. The reports which the Petitioners
received from his Counsel indeed intensified his uneasiness and almost a
conviction that he will not get justice. The Petitioner out of respect for this
Hon'ble Court and all courts in general did not request for recusal but
fortunately or unfortunately he came to know that your Lordships sister is
married to the present Attorney General Mr. Mukul Rohatgi".
16. Thus, the reason for the petitioners making a plea that I should recuse
myself from the case is that the learned Attorney General Mr. Mukul
Rohatgi, who represented the CBI before the Supreme Court, is related to
me inasmuch, as, my sister is married to him, and; Mr. Mukul Rohatgi
represents the present Central Government which is inimical towards him.
Thus, the implication is that on account of my relationship with Mr. Mukul
Rohatgi, I would get influenced into not giving justice to the petitioners.
17. Before I proceed to deal with any other aspect of the case, I must first
deal with this submission of the petitioners. As noticed herein above, the
case came up before me on 30.08.2016 and again on 08.09.2016, when the
petitioners were represented through senior counsels. However, no such
request was made to me that I should recuse from the matter for any reason
whatsoever, including the fact that the learned Attorney General Mr. Mukul
Rohatgi is related to me. Initially, Mr. Dayan Krishnan, Senior Advocate
advanced his submissions on 15.09.2016, when his submissions were partly
heard. After Mr. Krishnan concluded his arguments, Mr. Kapil Sibal, Sr.
Advocate, advanced his arguments.
18. It is not the petitioners' case that their counsels, including senior
counsels representing them, were not aware of the relationship between me
and the learned Attorney General Mr. Mukul Rohatgi. If, on account of the
said relationship alone, they had any lingering doubt with regard to my
independence and my capacity to do justice in the case, nothing prevented
them from making the said request before opening their arguments in the
case. I may also observe that if such a request had been made at the initial
stage itself, I may have recused from the case - not because I find myself
incapable/unable to decide the present petition strictly on its merits due to
my relationship with the learned Attorney General Mr. Mukul Rohatgi, but
because I have no particular interest in, or attachment with any particular
cause that is listed before me as per roster. But, in the present case, the
learned senior counsels representing the petitioners never raised the said
issue at any stage of the hearing, and proceeded to advance their
submissions (there were two senior counsels representing the petitioners'
case, namely, Mr. Dayan Krishnan and Mr. Kapil Sibal) without even a
whisper on the said aspect.
19. The learned senior counsels and the law officers representing the State
of Himachal Pradesh and the CBI were given ample time to advance their
submissions to their satisfaction, and the order sheet bares out the fact that
they were accommodated according to their convenience on several
occasions. It is for this reason that the hearing - which commenced on
15.09.2016 (after granting two adjournments to the petitioners), got
concluded only on 15.12.2016.
20. It appears that the petitioners, themselves, were not personally present
when the hearings proceeded before the Court. Invariably, one or the other
learned senior counsels viz. Mr. Dayan Krishnan, and/or Mr. Kapil Sibal
were present. When submissions were advanced on behalf of the State of
Himachal Pradesh by the learned Advocate General, or by the learned ASG
on behalf of the CBI, the petitioners were always represented through
counsels - as reflected in the order sheets recorded in the case
contemporaneously. It is equally pertinent to note that Mr. Ram Jethmalani,
Senior Advocate, did not appear, and was not even present in the Court
when the hearing proceeded between 15.09.2016 and 15.12.2016. The
written submissions filed on behalf of the petitioners have been settled by
Mr. Ram Jethmalani, Sr. Advocate. Neither Mr. Kapil Sibal, Sr. Advocate
nor Mr. Dayan Krishnan Sr. Advocate have settled them, nor are they drawn
by the counsels representing the petitioners at the time of hearing of the case
by me. The petitioners claim that during the hearings, this Court treated the
submissions of the petitioners' counsel with contempt, as distinguished from
those of the other side - meaning the CBI. On the aforesaid aspect,
however, the petitioners have not particularized any instance/proceeding
which may have transpired in the Court to give an impression to the
petitioners, or their learned counsels/ senior counsels that the submissions
advanced on behalf of the petitioners by the senior counsels were treated
with contempt, as distinguished from those advanced on behalf of the CBI.
On what basis the petitioners and/or the newly engaged counsels for the
petitioners, therefore, claim that the arguments advanced on their behalf -
which were advanced either by Mr. Kapil Sibal, Sr. Advocate or by Mr.
Dayan Krishnan, Sr. Advocate, were treated with contempt is entirely
unclear. The said statement has no basis.
21. Enormous amount of judicial time and effort has gone into the hearing
of the present petition. Even though the petitioners may be ready and willing
to foot the bill of the hearings before another learned Judge - to whom the
matter may be transferred if I were to recuse, there can be no justification to
subject the State of Himachal Pradesh and the CBI/ Union of India to the
same burden, merely because the petitioners have now decided to request
me to recuse myself from the case. The ground for recusal now urged by the
petitioners-at the time of tendering the written submissions, was available
when the hearing in the case commenced before me. It is not that my
relationship with the learned Attorney General Mr. Mukul Rohatgi has come
about post the commencement of the hearing.
22. I am also of the view that if I were to now recuse from the case which
has been fully argued before me, and wherein I had reserved judgment on
15.12.2016, I would be guilty of shirking my responsibility as a Judge. It
would also delay the disposal of the case. Delay in the disposal of the
petition suits the petitioners, who are enjoying interim protection against
arrest and filing of charge sheet in the case.
23. At this stage, I consider it appropriate to notice the recent decision of
the Supreme Court in Supreme Court Advocates-On-Record Association
and Another vs. Union of India (2016) 5 SCC 808, which deals with the
aspect of recusal by a judge from a case. I draw support from this decision
for my view on this issue. This case relates to a plea for recusal raised by
Mr. Fali S. Nariman, Senior Advocate appearing for the petitioners during
the course of the hearing before the Supreme Court in the case involving the
determination of the constitutional validity of the Constitution (99th
Amendment) Act, 2015 and the National Judicial Appointments
Commission Act, 2014. The objection raised by the learned senior counsel
was that it was inappropriate for Mr. Justice J.S.Khehar (as His Lordship
then was) to participate in the proceedings as the Presiding Judge of the
Constitution Bench. The objection was predicated on the fact that, being the
third senior most puisne Judge of the Supreme Court, Mr. Justice Khehar is
a member of the Collegium propounded under the Second Judges case
(1993) 4 SCC 441, and thus, he exercised "significant constitutional power"
in the matter of selection of Judges of the Supreme Court as well as the High
Courts in the country. It was argued that by virtue of impugned legislation -
as taken note of hereinabove, until Mr. Justice Khehar attains the position of
third senior most Judge of the Supreme Court, His Lordship would seize to
enjoy such power and, therefore, there is possibility of him not being
impartial. The said request for recusal was rejected by the Constitution
Bench. Mr. Justice J.Chalmeswar delivered the judgment for himself and on
behalf of Mr. Justice Goel. Mr. Justice J.S. Khehar (as His Lordship then
was) and Mr. Justice Madan B. Lokur rendered concurring judgments. Mr.
Justice Kurian Joseph also rendered a concurring judgment agreeing with
the view of Chelameswar & Goel, JJ, while partially disagreeing with Mr.
Justice Lokur. Mr. Justice Chelameswar, in his opinion referred to the tests
evolved judicially from time to time to decide the issue of recusal, and
culled out the principles which would be applicable in the following words:
"25. From the above decisions, in our opinion, the following
principles emerge:
25.1. If a Judge has a financial interest in the outcome of a
case, he is automatically disqualified from hearing the case.
25.2. In cases where the interest of the Judge in the case is
other than financial, then the disqualification is not
automatic but an enquiry is required whether the existence
of such an interest disqualifies the Judge tested in the light of
either on the principle of "real danger" or "reasonable
apprehension" of bias.
25.3. The Pinochet case [R. v. Bow Street Metropolitan
Stipendiary Magistrate, ex p Pinochet Ugarte (No. 2), (2000)
1 AC 119 : (1999) 2 WLR 272 : (1999) 1 All ER 577 (HL)]
added a new category i.e. that the Judge is automatically
disqualified from hearing a case where the Judge is
interested in a cause which is being promoted by one of the
parties to the case."
24. In paragraph 30 of his opinion Mr. Justice Chelameswar, inter alia,
observed:
"... ... ... it is a well-established principle of law that an
objection based on bias of the adjudicator can be waived.
Courts generally did not entertain such objection raised
belatedly by the aggrieved party:
"The right to object to a disqualified adjudicator may be
waived, and this may be so even where the disqualification is
statutory. [Wakefield Local Board of Health v. West Riding
and Grimsby Railway Co., (1865) LR 1 QB 84] The court
normally insists that the objection shall be taken as soon as
the party prejudiced knows the facts which entitle him to
object. If, after he or his advisors know of the
disqualification, they let the proceedings continue without
protest, they are held to have waived their objection and the
determination cannot be challenged." [R. v. Byles, ex p
Hollidge, (1912) 77 JP 40; R. v. Nailsworth Licensing
Justices, ex p Bird, (1953) 1 WLR 1046; R. v. Lilydale
Magistrates Court, ex p Ciccone, 1973 VR 122; and
see R. v. Antrim Justices, (1895) 2 IR 603; Tolputt (H.) &
Co. Ltd. v. Mole, (1911) 1 KB 836 (CA); Corrigan v. Irish
Land Commission, 1977 IR 317]"
25. Mr. Justice Khehar in his concurring opinion pointed out the fact that
the petitioner had raised no such objection to the hearing of the case by Mr.
Justice Anil R. Dave, when His Lordship was a member of the Bench, even
though, he was a member of the 1 + 2 Collegium, as well as 1 + 4 Collegium
when the hearing in the matters commenced. Mr. Justice Anil R. Dave
continued to hear the matters during the period that he was part of the 1 + 2
Collegium, and 1 + 4 Collegium. Mr. Justice Khehar, in his opinion, inter
alia, observed as follows:
"52. As a Judge presiding over the reconstituted Bench, I
found myself in an awkward predicament. I had no personal
desire to participate in the hearing of these matters. I was a
part of the Bench because of my nomination to it by Hon'ble
the Chief Justice of India. My recusal from the Bench at the
asking of Mr Fali S. Nariman, whom I hold in great esteem,
did not need a second thought. It is not as if the prayer made
by Mr Mathews J. Nedumpara, was inconsequential.
53. But then, this was the second occasion when proceedings
in a matter would have been deferred, just because, Hon'ble
the Chief Justice of India, in the first instance, had
nominated Anil R. Dave, J. on the Bench, and thereafter, had
substituted him by nominating me to the Bench. It was
therefore felt that reasons ought to be recorded after hearing
the learned counsel, at least for the guidance of Hon'ble the
Chief Justice of India, so that His Lordship may not make
another nomination to the Bench which may be similarly
objected to. This, coupled with the submissions advanced by
Mr Mukul Rohatgi, Mr Harish N. Salve and Mr K.K.
Venugopal, that parameters should be laid down, led to a
hearing on the issue of recusal."
26. His Lordship further observed that he, "was toying with the idea of
recusal, because a prayer to that effect had been made in the face of the
Court. My colleagues on the Bench would have nothing of it. They were
unequivocal in their protestation."
27. His Lordship further observed:
56. Despite the factual position noticed above, I wish to
record that it is not their persuasion or exhortation, which
made me take a final call on the matter. The decision to
remain a member of the reconstituted Bench was mine, and
mine alone. The choice that I made, was not of the heart, but
that of the head. The choice was made by posing two
questions to myself. Firstly, whether a Judge hearing a
matter should recuse, even though the prayer for recusal is
found to be unjustified and unwarranted? Secondly, whether
I would stand true to the oath of my office, if I recused from
hearing the matters?"
"57. ... ... ... In my considered view, the prayer for my
recusal is not well founded. If I were to accede to the
prayer for my recusal, I would be initiating a wrong
practice, and laying down a wrong precedent. A Judge may
recuse at his own, from a case entrusted to him by the
Chief Justice. That would be a matter of his own choosing.
But recusal at the asking of a litigating party, unless
justified, must never to be acceded to. For that would give
the impression, of the Judge had been scared out of the
case, just by the force of the objection. A Judge before he
assumes his office, takes an oath to discharge his duties
without fear or favour. He would breach his oath of office,
if he accepts a prayer for recusal, unless justified. It is my
duty to discharge my responsibility with absolute
earnestness and sincerity. It is my duty to abide by my oath
of office to uphold the Constitution and the laws. My
decision to continue to be a part of the Bench, flows from
the oath which I took, at the time of my elevation to this
Court."
28. The difference of opinion in the view of Mr. Justice M.B. Lokur and
Mr. Justice Kurian Joseph was whether the concerned Judge, for whose
recusal the prayer is made, should or should not be required to give reasons
for his recusal. Whereas, Mr. Justice Joseph was of the view that the Judge
should give his reasons for either recusing or not recusing from the matter,
Mr. Justice Lokur was of the opinion that no such reasons could be called
for from the concerned Judge if he were to recuse from the case.
29. Coming to the submission of the petitioners that I should recuse from
the case on account of my relationship with the learned Attorney General
Mr. Mukul Rohatgi, in my view, the same is not a reason good enough for
me to accede to the said request made by the petitioners. My relationship
with Mr. Mukul Rohatgi does not pose a real danger of bias against the
petitioners. That relationship does not give rise to a real or reasonable
apprehension of bias in the mind of the petitioners. I have no interest in
promoting the cause of either party to this case. I am not personally
interested in the outcome of the case, and the effect that the same would
have on the rights or position of the parties.
30. The petitioners have made allegations against Mr. Mukul Rohatgi-the
learned Attorney General, with regard to his alleged hostility with the
petitioner no. 1 and his alleged deeds to harass the petitioner no. 1. It is not
for me to judge the correctness of the allegations made by the petitioners qua
Mr. Mukul Rohatgi. Assuming, for the sake of arguments, that the
allegations made by the petitioners against Mr. Mukul Rohatgi, the learned
Attorney General and the political Party in power at the Centre are true, it
does not follow that I, on account of my relationship with Mr. Mukul
Rohatgi, should also carry or exhibit a sense of bias in my functioning as a
Judge of this Court. Mr. Justice Joseph in Supreme Court Advocates on
Record Association (supra) observed in paragraph 75 as follows:
"75. Ultimately, the question is whether a fair-minded and
reasonably informed person, on correct facts, would
reasonably entertain a doubt on the impartiality of the
Judge. The reasonableness of the apprehension must be
assessed in the light of the oath of office he has taken as a
Judge to administer justice without fear or favour, affection
or ill will and his ability to carry out the oath by reason of
his training and experience whereby he is in a position to
disabuse his mind of any irrelevant personal belief or
predisposition or unwarranted apprehensions of his image in
public or difficulty in deciding a controversial issue
particularly when the same is highly sensitive."
31. In my view, if the aforesaid test were to be applied, it cannot be said
that the petitioners have any basis to have any reasonable apprehension that
I would deal with this case with a bias against the petitioners.
32. The expression of apprehension of bias against the petitioners, on
account of my relationship with Mr. Mukul Rohatgi, the learned Attorney
General, carries with it the innuendo that:
(a) Mr. Mukul Rohatgi, the learned Attorney General (who allegedly is
inimical towards the petitioner no. 1 - though there is no established
basis for it) would, in breach of his professional ethics as an
Advocate, and my constitutional independence, speak to me about the
present case.
(b) That he would speak to me, so as to influence me in forming an
opinion against the petitioners.
(c) That I would entertain such a conversation with anyone, including
Mr. Mukul Rohatgi, the learned Attorney General in respect of a
cause being dealt with by me as a judge.
(d) That I would, on such talk or persuasion by Mr. Mukul Rohatgi, give
in, and thereby betray the trust and confidence reposed in me by the
President of India in appointing me as a Judge of this Court, as well
as breach my oath of office and fall in my own estimation by killing
my conscience.
33. There is absolutely no basis for entertainment of the apprehension
expressed by the petitioners in my independence to decide the present
petition entirely on its merits, and merits alone. There is no justification for,
or reasonableness in entertainment of any such belief by the petitioners.
34. As a Judge of this Court, I owe my allegiance only to the Constitution
of India and the laws of the land. I am completely independent - financially
and otherwise, and I am not subordinate to any one, much less to the learned
Attorney General Mr. Mukul Rohatgi - either on account of his office, or on
account of my personal relationship with him. I am fully conscious of my
responsibilities as a Judge of this Court, and the trust that has been reposed
in me - including in my integrity and my independence, by the President of
India in appointing me as a Judge of this Court. I am sworn (by my oath of
office) to do my duty faithfully, and to the best of my ability, knowledge and
judgment and to perform the duties of my office without fear or favour,
affection or ill-will. Like all men, I am my own conscience keeper. I would
myself recuse from a case if I have even the slightest inkling or doubt in my
mind that I would not be able to decide the cause freely or independently, or
that it would be improper for me to judge a cause, even though, I find myself
in no way incapable of judging the cause independently and fairly.
35. I have no control over the thought process through which the
petitioners may be going through. The issue is, whether there is any
reasonable basis for the apprehension entertained and expressed by the
petitioners with regard to my independence and, as aforesaid, I find none at
all. Moreover, the said prayer has been made highly belatedly i.e. after the
close of the hearing, even though the stated reasons for making his prayer
were very much available even before the start of the hearing of the case.
Accordingly, the prayer made by the petitioners that I recuse from the case
is rejected.
Background:
36. In November 2010, the Income Tax Authorities conducted raids at
several offices of ISPAT Industries Ltd. (M/s IIL), wherein documents were
allegedly seized in relation to cash transactions allegedly undertaken by the
said company. Apparently, these documents revealed that members of M/s
IIL had illegally paid amounts to officials of State Trading Corporation
(STC). On receiving information from the Income Tax Authorities, the first
PE was registered by the CBI on 19.10.2012 against unknown officials of
State Trading Corporation and M/s IIL to enquire into the matters revealed
from the discovery of documents seized during the aforesaid raids conducted
by the Income Tax (Intelligence)-I, New Delhi on 30.11.2010. The first PE,
in its material part, read as follows:
"INFORMATION
A source information has been received that Income Tax
(Intelligence) - I, New Delhi, conducted a raid on the official
premises of M/s Ispat Industries Limited and Group Companies
(M/s IIL), room No. 312-317, Ashoka Hotel, Chanakya Puri,
New Delhi on 30.11.2010. On the basis of documents seized
from the office of M/s IIL it is alleged that the following illegal
payments were shown made against the names of Shri
C.M.Kalra, STC and Mr. Abhishek, STC by M/s IIL to the
officials of State Trading Corporation:-
Sl. No. Date Particulars Payment
(In Rs.)
1 17.09.2009 Amt. paid to Mr. (K) at STC 30,000,00
2 28.04.2009 Amt. paid to CM Kalra STC 50,000,00
3 29.04.2009 Amt. paid to CM Kalra STC 41,75,000
4 30.04.2009 Amt. paid to Mr. Abhishek of 60,000
STC
5 24.03.2009 Amt. paid to Mr. Abhishek 50,000
STC
6 04.06.2010 Amt. paid to Mr. Abhishek 75,000
STC
It is alleged that the business transactions relating to M/s
IIL were being handled by Hydrocarbon Division in the State
Trading Corporation of India Ltd. Shri C.M.Kalra was
working as Chief Manager in the Hydrocarbon Division during
the relevant period and Shri Abhishek was working as Assistant
Manager in the said Division.
It is also informed by the reliable sources that M/s IIL
has been merged with JSW Ispat Steel Ltd. w.e.f. 05.04.2011,
Branch Office located at Bhikaji Kama Place, New Delhi and
Head Office at Grade Palladium, 6th Floor, 175, CST Rd.,
Kalina Santacruz (East), Mumbai.
The above information revealed misconduct on the part
of unknown officials of STC and unknown officials of M/s
Ispat Industries Limited (now JSW Ispat Steel Ltd.).
Therefore, a Preliminary Enquiry is registered to enquire into
this matter and entrusted to Shri Ram Singh, Dy. SP/CBI/AC-
II(Attached with AC-1), New Delhi." (emphasis supplied)
37. The petitioners' names did not figure in the said First PE in any
context whatsoever.
38. A complaint dated 11.01.2013 regarding illegal payments made to
officers of STC and other influential persons by M/s IIL was filed by Mr.
Prashant Bhushan, Advocate, with the CBI as well as the Central Vigilance
Commission (CVC). In this complaint, he sought to link up the entries
shown in the excel sheet seized by the Income Tax Authorities (from M/s
IIL) - which showed payment of Rs. 2.77 crore to one 'VBS', with the
petitioner no.1 Shri Vir Bhadra Singh.
39. A similar complaint was also filed by the NGO "Common Cause" on
16.08.2013 with the CBI and the CVC making the same allegations as Mr.
Prashant Bhushan, Advocate. It was also alleged that the petitioner no. 1
while serving as the Union Minster of Steel during 2009-2011 had invested
his ill-gotten income through one Anand Chauhan - an agent of Life
Insurance Corporation (LIC) in purchasing LIC policies in his name and in
the name of his family members, and attempted to legitamise his ill-gotten
income as agricultural income by filing revised income tax returns.
40. A Public Interest Litigation (PIL), titled, 'Common Cause Vs. UOI
and others', vide WP(C) No. 7240 of 2013 ('Common Cause PIL') was filed
before this Court, seeking a Writ of Mandamus directing the CBI and the
Director General of Income Tax to initiate an investigation under the
supervision of this Court into the charges of money laundering, corruption,
possession of disproportionate assets, criminal misconduct etc. against the
petitioner no. 1. In the said writ petition filed by Mr. Prashant Bhushan, he
relied upon his allegations contained in his complaint dated 11.01.2013 to
the CBI and CVC. He also urged that in order to explain his unaccounted
wealth, petitioner no. 1 filed revised income tax returns for the assessment
years 2009-10, 2010-11 and 2011-12 showing an increase of agricultural
income which was 30-fold, 18-fold and 6-fold respectively in the three years
in question.
41. In the aforesaid PIL, on 27.11.2013, learned counsel representing CBI
submitted that an inquiry is being conducted in a similar matter. The CBI
was directed to file a status report within six weeks. On 12.03.2014, the
Division Bench took note of the fact that a status report had been filed by the
CBI in a sealed cover. On 02.04.2014, the status report filed in a sealed
cover was opened by the Court and perused. Apparently, the said report is
dated 07.02.2014. The Court in its order, inter alia, recorded:
"The report in sealed cover, which was furnished by the
learned counsel for the CBI, has been seen. It is a report dated
07.02.2014. According to the learned counsel appearing for
the CBI, several other steps have been taken in the preliminary
enquiry which do not form part of the said report. He submits
that a further upto date status report shall be filed before the
next date of hearing."
42. The Court also directed the CBI that the preliminary inquiry be sped
up, and be taken to its logical conclusion expeditiously.
43. On 06.08.2014, the CBI sought six weeks time to complete the
preliminary enquiry. However, the court declined the said request. The
matter was directed to be listed on 20.08.2014. The Income Tax Department
was directed to place before the court the entire record, including the report
of the investigation held against the respondent no.5/petitioner no.1 herein.
The report put up by the CBI in sealed covers were directed to be placed in
the safe custody of the Deputy Registrar (Writs) for perusal of the Court.
44. On 01.09.2014, the CBI filed the final status report in a sealed cover,
which was taken on record. It appears that on 10.09.2014, the status reports
filed by the CBI and the investigation report submitted by the Income Tax
Department were perused by the Court and again placed in sealed covers.
They were directed to be kept with the Deputy Registrar (Writs) for safe
custody.
45. Evidently, respondent no. 5 in the Common Cause PIL i.e. the
petitioner no.1 herein challenged the very maintainability of the writ petition
as a PIL on the ground that Mr. Prashant Bhushan, Advocate, bore personal
animosity towards him. On 29.01.2015, the Court, without going into the
issue of bona fides of the petitioner Common Cause, or of Mr. Prashant
Bhushan, Advocate, discharged the petitioner therein and instead, appointed
two learned counsels as Amicus Curiae to assist the Court in the matter.
Thereafter, the matter was adjourned on three occasions i.e. 14.05.2015,
28.07.2015, and 06.08.2015. It appears that, in the meantime, the second PE
came to be registered on 17.06.2015. This second PE dated 17.06.2015,
pertained to fixing of an appropriate check period and accounting for the
incomes, assets and expenditure of Shri Vir Bhadra Singh - petitioner no.1,
and to examine whether, or not, a viable disproportionate assets (DA) case is
made out against him during the period when he was a Union Minister in the
Government of India.
46. The Second PE narrates that the First PE was registered on
19.10.2012 on the complaint of CVO, State Trading Corporation (STC)
against the unknown officials of STC and M/s IIL and others. It records that
the CVO, STC made the complaint in the light of report of Income Tax
Authorities regarding recovery of computer print out from the office of M/s
IIL, mentioning about alleged payments to different individuals including,
STC officials. The Second PE also narrates the filing of the complaint by
Mr. Prashant Bhushan, Advocate, against petitioner no.1 herein, which was
also made part of the enquiry. The Second PE, inter alia, records:
"...........The allegations raised in this complaint were the
acronym "VBS" to whom payment has been shown in the
computer printout referred to Shri Vir Bhadra Singh, the then
Union Minister of Steel. The complaint further alleged that
Shri Vir Bhadra Singh while serving as Union Minister of Steel
during 2009-2011 had invested his ill-gotten income through
Shri Anand Chauhan, an agent of LIC, in LIC policies. In his
own name, that of his wife Smt. Pratibha Singh, son Shri
Vikramaditya Singh and daughter Ms. Aparajita Kumari by
showing the same as agricultural income. This was done by
entering into a Memorandum of Understanding dated
15.06.2008 with Anand Chauhan for a period of three years.
Shri Anand Chauhan deposited roughly Rs. 5 crores cash in his
PNB account in Shimla and debited the same through cheques
for purchasing various LIC policies in the names of Shri Vir
Bhadra Singh, Mrs. Pratibha Singh (w/o Shri Vir Bhadra
Singh); son Shri Vikramaditya Singh and daughter Ms.
Aparajita Kumari. It was further alleged that later Shri Vir
Bhadra Singh attempted to legitimize his ill-gotten money as
agriculture income by filing revised ITRs in the year 2012.
Enquiry in this regard revealed that
a. That Shri Vir Bhadra Singh entered into an agreement
with Shri Anand Chauhan on 15.06.2008 with respect to
management of his apple orchard, named Srikhand
Orchard located at Damrali, Tehsil Rampur, Shimla.
This agreement, which was valid for 3 years (with
extension clause), provided that proceeds of income from
this orchard will be invested by Shri Anand Chauhan in
various government securities and LIC policies @ 2%
commission of the total income.
b. That for the same apple orchard, one Shri Bishamber
Das also entered into an agreement with Shri Thakur
Ram Asre, Advocate in the year 2008. Payment from
sale proceeds @ Rs. 10.50 lacs for this orchard was
allegedly made by Shri Bishambhar Das to Shri Vir
Bhadra Singh in cash. In respect of this agreement too,
apart from photocopy of the agreement, no other details
regarding expenditure, sale and payments etc. could be
made available by the individuals concerned.
c. That Shri Anand Chauhan claimed to have sold apples of
this orchard mainly to M/s Universal Apple Associate
(UAA), Parwanoo, Himachal Pradesh. According to
him, he collected payments from M/s UAA in cash and
then deposited the same in his bank accounts at PNB and
HDFC. During the period 2009-10, this money was used
by him to purchase LIC policies in the names of Shri
Virbhadra Singh, his wife and son, in 2011-12, however,
the sale proceeds were used for construction of house of
Shri Vir Bhadra Singh at Rampur. No documentary
evidence in support of the sale proceeds of the year
2011-12 could be made available by Shri Anand
Chauhan or anyone else.
d. Details of accounts of Srikhand orchard submitted by
Shri Anand Chauhan for the period 2008-11 reflect a net
profit of Rs. 6,09,92,500/- from sale of apples to M/s
Universal Apple Associates, Parwanoo, but Shri Anand
Chauhan could not produce bills, vouchers or any other
evidence or expenditure incurred by him, in respect of
purchase of pesticides and insecticides towards
maintenance of Srikhand Orchard, Damrali between
2008-11.
e. Huge cash deposits have been shown by Shri Anand
Chauhan in his bank account at PNB on such dates,
which do not tally with the dates on which M/s Universal
Apple Associates has allegedly made the cash payments
to him, for purchase of apples. Shri Chauhan was not
able to logically explain this issue. Further, on their part,
M/s Universal Apple Associates, Parwanoo have paid
such huge amounts in the form of cash, against the spirit
of the business market, which creates suspicion about the
veracity of these transactions.
f. There are three credit entries dated 17.08.2008 in the
book of account of M/s UAA totalling Rs. 93 lakhs in the
name of Srikhand Orchard recording payment to Shri
Anand Chauhan. No other detail in respect of his
transaction apart from the amount has been mentioned in
the said credit entry. Thus, within a period of two
months of agreement between Shri Anand Chauhan and
Shri Virbhadra Singh, the sale proceeds of said apple
orchard reached approximately Rs. 93 lakhs. No
justification could be provided, either by Shri Anand
Chauhan or M/s UAA, in respect of this highly suspicious
circumstance.
g. Registration numbers of some of the vehicles mentioned
in the record of M/s Universal Apple Associates,
Parwanoo, which allegedly transported apples from
Srikhand Orchard to their premises, either do not exist or
are light motor vehicles like cars or two wheelers.
h. The documents made available by Shri Anand Chauhan
relating to transportation of apples from Srikhand
Orchard, Damrali to M/s UAA, Parwanoo between the
years 2008 to 2010-11, are in the form of affidavits
submitted by the transporters. One of the transporters
admitted having made available his vehicle, as well as
those of his two acquaintances to Shri Anand Chauhan.
i. Entries of the register maintained at Excise and Taxation
Department Check Post at Koti, Shimla-Parwanoo Road,
during the period of 2010-12 revealed that the vehicles
mentioned in the record of M/s Universal Apple
Associates (UAA) in which apples were allegedly
transported to Parwanoo from Srikhand Orchard, had
not crossed through this check post during the relevant
period.
j. The bills provided by M/s Universal Apple Associates
and those submitted by Shri Anand Chauhan pertaining
to Srikhand Orchard for the period 2019, prima facie
appear to be different as the former do not contain any
reference of the vehicle numbers. Further, both these
bills are printed on different types of printers (dot matrix
and laser jet respectively). This, in turn, points towards
fabrication of records in order to prepare a defence by
the suspect.
k. As per APMC Act, M/s Universal Apple Associates
informed the sale details and its price to the concerned
Mandi Samiti. This data is not in consonance with that
provided by M/s Universal Apple Associates to CBI. This
again points to fabrication of records.
l. Data collected from Department of Horticulture, Govt. of
Himachal Pradesh, in regard to the production of apples
in Rampur Tehsil of Distt. Shimla (where Srikhand
Orchard, Damrall is located) does not reflect
improved/increased production of apples in that region
in the year 2008-09 to 2010-11.
m. That Sri Virbhadra Singh has filed his ITRs regularly for
the Assessment Years 2006-07 to 2012-13, but for the
Assessment Years 2009-10, 2010-11 and 2011-12, he has
also filed revised Income Tax Returns. In the revised
ITRs, huge illegible in agricultural income was shown (it
is important to note that he was also Union Steel
Minister from May, 2009 to January, 2011. Details of
agriculture income mentioned in original and revised
ITRs of Shri Virbhadra Singh are as under:
Sr. Ass. Year Original ITRs Revised ITRs (Rs. )
No.
a. 2006-07 12,05,000 NIL
b. 2007-08 16,00,000 NIL
c. 2009-10 7,35,000 2,21,35,000
d. 2010-11 15,00,000 2,80,92,000
e. 2011-12 25,00,000 1,55,00,000
f. 2012-13 85,00,000 NIL
g. 2013-14 92,00,000 NIL
That submission of revised ITRs by Shri Virbhadra Singh for
the A.Y.2009-10 to 2011-12, various discrepancies and latches
observed in the explanation/documents/records submitted by
Shri Anand Chauhan and M/s Universal Apple Associates,
point towards an effort on the part of Shri Vir Bhadra Singh to
camouflage these cash deposits as income from apple orchards.
These discrepancies create huge suspicions about the
genuineness of these efforts, and as a result, this income of Shri
Vir Bhadra Singh has remained unexplained during the
enquiry. The ultimate beneficiary of such acts was none other
than Shri Vir Bhadra Singh himself, his wife Smt. Pratibha
Singh, son Vikramaditya Singh, daughter M/s Aparajita Kumari
and Shri Anand Chauhan who was also an instrument in the
above-mentioned act.
That such an "unexplained income" gives rise to a strong
suspicion of the same being ill-gotten wealth/assets,
disproportionate to the known sources of income of Shri Vir
Bhadra Singh acquired during the period 2009-11 when he was
the Union Minister of Steel.
It is, therefore, requested that Preliminary Enquiry may
please be registered for fixing an appropriate check period
and accounting for the incomes, assets and expenditure of
Shri Virbhadra Singh to examine whether or not a viable
Disproportionate assets (DA) made out against him during the
period when he was Union Minister in GOI.
Sd/-
(Vijay Bahadur)
Inspector of Police
CBI, AC-1, New Delhi.
Instant enquiry is therefore registered for fixing an
appropriate check period and counting for the incomes, assets
and expenditure of Shri Vir Bhadra Singh, to examine
whether or not a viable Disproportionate Assets (DA) case is
made out against him during the period when he was Union
Minister of GOI." (emphasis supplied)
47. When the PIL was taken up by the Division Bench on 10.12.2015, it
was informed that the tax matters concerning respondent no.5 had been
taken up for assessment and re-assessment. So far as the action to be taken
by the CBI was concerned, it was informed to the Court that a Regular Case
had been registered and investigation was continuing, which would be taken
to its logical conclusion in accordance with law. Consequently, the writ
petition/ PIL was disposed of. As it transpires, the Regular Case was
registered on 23.09.2015.
48. The Regular Case RC 2015 A0004 dated 23.09.2015 was registered
against the two petitioners, Sh. Anand Chauhan, Sh. Chunni Lal Chauhan
and unknown others, under Sections 13(2) read with 13(1)(e) of the PC Act
and Section 109 of the IPC on the complaint of Sh. R.L Yadav, Dy. SP, CBI,
AC-1, New Delhi. In his complaint, he states that during the conduct of
enquiry in the First PE documents/statements were received from Income
Tax Department, Faridabad, with regard to the purchase of a farm house by
the son of petitioner no. 1 at Dera Mandi, Mehrauli, New Delhi. The ITRs
of petitioner no. 1 and his family members; affidavits/declarations w.r.t.
movable/immovable assets filed by the petitioner no. 1 while contesting Lok
Sabha elections 2009 and Vidhan Sabha elections 2012; bank statements;
details of LIC policies and details of agricultural and non-agricultural land/
property in the name of the petitioner no. 1 and his family members, were
scrutinized. The same revealed that the petitioner no. 1 while functioning as
the Union Minister, in the Government of India during the period of
28.05.2009 and 26.06.2012 acquired assets disproportionate to his known
sources of income to the tune of 6,03,70,782 and tried to justify the same in
the form of agricultural income. The RC records:
"3. Shri Vir Bhadra Singh while serving as Union Minister,
Govt. of India, invested huge amount in purchasing LIC
policies in his own name and his family members through Shri
Anand Chauhan an LIC agent. This was done by entering into
Memorandum of Understanding (MoU) dated 15.06.2008 with
Shri Anand Chauhan for Mangement of his apple orchard Shri
Anand Chauhan claimed to hve sold apple produce of Srikhand
Orchard to Shri Chunni Lal Chauhan of M/s Universal Apple
Associates (UAA), Parwanoo. Shri Anand Chauhan has shown
large cash deposits in his bank accounts which were later used
for purchasing LIC Policies for Shri Vir Bhadra Singh & his
family members. The enquiry revealed the unaccounted cash of
Sh. Vir Bhadra Singh has been brought back into regular books
of accounts and for buying assets by filing revised ITRs in
connivance with Shri Anand Chauhan and Shri Chunni Lal
Chauhan."
49. The consolidated disproportionate assets of the petitioner no. 1 and
his HUF were found to be as follows:
1. Assets at the end of check 281,080,327
period(statement B)
2. Assets at the beginning of the Check 216,699,108
period (Statement-A)
3. Assets acquired during the check 64,381,219
period(B-A)
4. Expends during the check period 59,741,147
(Statement D)
5 Total Assets acquired and expenses 124,122,366
during the check period (B-A+D)
6 Income during the check period 63,751,584
(statement C)
7 Extent to which assets and 60,370,782
expenses(pecuniary resource) are
disproportionate to Income(B-A+D)-
(C)
8 Percentage of D.A.(DA*100)/C 94.70%
The RC records that the aforesaid, prima facie, disclosed commission
of offences under Sections 13(1)(e) r/w 13(2) of the PC Act r/w Section 109
of IPC on part of the petitioners and other persons named above.
Petitioners' submissions
50. Learned Senior Counsel for the petitioners, Mr. Dayan Krishnan
submits that the registration of the Second PE on 17.06.2015 was without
jurisdiction and authority of law. He submits that the Second PE - which
led to registration of the impugned FIR/RC, pertain to the very same
allegations that were inquired into in the course of the First PE dated
19.10.2012. The First PE was subsequently closed for want of any material
linking the petitioners to the allegations made therein. He further submits
that a bare reading of the Common Cause PIL establishes that it was filed in
relation to the very same allegations contained in the letter/complaint dated
11.01.2013 addressed by Mr. Bhushan to the CBI. The said PIL, inter alia,
specifically alleged the commission of an offence under Section 13(1)(e)
read with 13(2) of the PC Act on account of 'possession of disproportionate
assets' by the petitioners, which forms basis of the Second PE.
51. Mr. Krishnan has specifically referred to the synopsis in the Common
Cause PIL wherein the petitioner in that case had averred:
"That the Petitioner is filing the present writ petition in public
interest in order to bring to the notice of this Hon'ble Court a
very serious case of prima facie corruption, money laundering
and possession of assets disproportionate to the known sources
of income, concerning the Former Union Steel Minister and
present Chief Minister of Himachal Pradesh, Shri Virbhadra
Singh. The facts which have been reported in newspapers and
also corroborated by several primary documents, like income
tax returns, affidavit filed along with nomination paper,
agreements and bank statements, clearly suggest that the
respondent No.5, Shri Virbhadra Singh, while holding the office
of Union Minister of Steel, received and invested large sums of
money that could not property be accounted for.
Respondent No.5 filed income tax returns for assessment
years 2009-10, 2010-11, 2011-12 showing agricultural
income Rs. 7,35,000, Rs. 15,00,000 and Rs. 25,00,000
respectively which are exempt under the Income Tax Act.
In November-December 2010, documents were seized in an
Income tax raid of a multinational steel company which
showed that cash payments of about Rs. 2.28 crores were
made to respondent No.5 between 2008 and 2010 when he
was the Union Steel Minister;
In another case, in which one Mr. Anand Chauhan was
being investigation by the Income Tax Authorities for
evasion of income tax, it was found that he had deposited
about Rs. 5 crore in cash in Punjab National Bank account
in Shimla and also made corresponding withdrawals by
cheque for LIC premiums totaling roughly Rs. 5 crore on
account of respondent No.5, his wife and children.
Immediately thereafter, Respondent No.5, in order to justify
payment of roughly Rs. 5 crore by Shri Anand Chauhan
towards LIC premiums for policies in his name as well as
his family members, produced a MoU with Shri Chauhan
dated June 15, 2008, which showed that Respondent No.5
had entered into an agreement with him for the management
of his apple orchards. However, there is another agreement
between Respondent No.5 and one Bishambar Dass dated
June 17, 2008 for the management of the same orchard
during the same period. It clearly shows that the MoU with
Anand Chauhan was backdated to create an explanation for
the unaccounted for money.
In 2012, in order to explain the unaccounted for money,
Respondent No.5 filed revised income tax returns for the
assessment years 2009-10, 2010-11 and 2011-12, showing
revised agricultural income, showing an increase of Rs.
2,21,35,000 (a 30-fold increase), Rs. 2,80,92,500 (an 18-fold
increase) and Rs. 1,55,00,000 (a 6 fold increase),
respectively in the three years in question. The total
increase in agricultural income amounted to Rs. 6.10 crore.
The aforementioned facts along with corroborating documents,
which clearly link Respondent No.5 to dubious transactions and
investments involving large sums of money made during his
tenure as the Union Steel Minister, have been in the public
domain for last several months. This would warrant the
registration of an FIR under the Prevention of Corruption Act
for an in-depth investigation of the matter. However, neither the
government nor any of its any investigation agencies has
bothered to initiate an investigation, even after they are
formally requested to do so by the petitioner."
52. Mr. Krishnan has also referred to ground A raised in the said
Common Cause PIL, which reads as follows:
"That the facts highlighted in the above petition reveal several
acts of money laundering, corruption, possession of
disproportionate assets and criminal misconduct allegedly
committed by Respondent No.5, which warrant a thorough and
impartial investigation, but the same has not been initiated
despite well documented companies made by this petitioner
society and its counsel."
53. Mr. Krishnan submits that the CBI was fully cognizant of these
allegations upon filing of the Common Cause PIL. The allegations in respect
of the alleged disproportionate assets of the petitioners, alleged by CBI in
the Second PE, are the exact same allegations found in the enquiry
conducted in the course of the First PE. Mr. Krishnan submits that the CBI
filed several status reports before the Division Bench hearing the Common
Cause PIL, and if the same are perused by this Court, it would become
evident that the same pertained to the enquiry conducted in the allegations
made in the Common Cause PIL. The said inquiry stemmed out of the First
PE. Since the First PE has been closed, the registration of the Second PE
and, on that basis, the RC was not justified. He submits that a perusal of the
Second PE itself shows that when the same was registered on 17.06.2015,
the CBI had already conducted the enquiry and there was no purpose to be
achieved by going through the formality of registering the Second PE.
54. Mr. Krishnan submits that this Court should direct the production of
the status reports filed by the CBI on the Common Cause PIL and the same
should be provided to the petitioners.
55. The petitioners have also filed Crl. M.A. No. 3396/2016 seeking a
direction to the respondent no. 1 to produce certain documents, including,
the status reports filed by the CBI in the Common Cause PIL with regard to
the first and second preliminary enquiries respectively.
56. Mr. Krishnan relies upon Natwar Singh Vs. Director of Enforcement
and another (2010) 13 SCC 255 and the judgment of this Court in Col.
S.J.Chowdhary Vs. State through C.B.I. (1984) 6 DRJ 251 and Ashutosh
Verma Vs. CBI in 2014 SCC OnLine Del 6931 to submit that all documents
pertaining to the First PE should be disclosed to the petitioners. Mr.
Krishnan submits in relation to this application that disclosure of the
contents of the First PE and all documents related thereto would only assist
this Court to adjudicate the principal question in the present petition and
dispel any concerns of the Court in respect of the enquiry undertaken in the
First PE. Mr. Krishnan also refers to Sections 8 and 26 of the CVC Act to
submit that CVC exercises the power of superintendence over the CBI in
relation to investigation of cases under the PC Act. The reasons for closure
of the First PE would, therefore, have been recorded and disclosed to the
CVC. The same should be placed before this Court.
57. In the alternative, he submits that even if this Court is not inclined to
allow the petitioners to go through the status reports, at least, this Court
should call for and go through the said status reports for it to be satisfied that
the enquiry conducted by the CBI under the First PE pertained to the same
allegations as are contained in the Second PE and the resultant RC.
58. Mr. Krishnan further submits that the First PE was admittedly closed
as per CBI's reply filed in the Common Cause PIL. He places reliance upon
the following averments in the counter affidavit of the CBI filed in the
present petition:
"5F... However, since the identity of the person, who was
being referred to, could not be established by the acronym
'VBS', the PE No. AC-1 2012 A0007 was closed. Since PE
No.AC-1 2012 A0007 was not specific to the Petitioner and his
unexplained income of approximately Rs. 6 crores, as revealed
during the Preliminary Enquiry No. AC-1 2012 A0007, was not
examined from disproportionate assets perspective, it was
decided to enquire into the matter by registering a fresh
Preliminary Enquiry fixing an appropriate check period duly
accounting for the incomes, assets and expenditure of Shri
Virbhadra Singh."
59. He submits that the enquiry/investigation conducted by CBI after
institution of the Common Cause PIL encompassed the aspect of 'possession
of disproportionate assets' held by the petitioner no. 1 and, therefore, CBI's
statement that under the First PE, the allegation "was not examined from
disproportionate assets perspective" is clearly false to their knowledge.
60. Mr. Krishnan submits that CBI has sought to distinguish a First
Information Report (FIR) from a Preliminary Enquiry. He places reliance
on TT. Anthony vs. State of Kerela (2001) 6 SCC 181 and SP, CBI vs.
Tapan Kumar Singh, (2003) 6 SCC 175, wherein the Supreme Court
observed that the term 'FIR' - which is not used in the Cr.P.C., is to be
understood as the earliest and first information relating to commission of a
cognizable offence. He submits that the Supreme Court explained that the
earliest and first General Diary (GD) entry has to be treated as FIR if it
discloses commission of a cognizable offence and any subsequent
information received - if treated as FIR, would be a second/subsequent FIR.
Mr. Krishnan submits that the First PE disclosed the exact same set of facts
as the Second PE and, therefore, the First PE has to be treated as the FIR,
barring the Second PE dated 17.06.2015 and Regular Case/FIR dated
23.09.2015. He submits that registration of Second PE is impressible in law,
and amounts to violation of fundamental rights of the petitioners under
Article 21 of the Constitution of India. Reliance is placed on TT. Anthony
(supra) and Amitbhai Anilchandra Shah vs. CBI (2013) 6 SCC 348 in this
regard.
61. Mr. Krishnan further submits that the scope of the Preliminary
Enquiry is to peripherally examine if a cognizable offence is made out or
not, and a Preliminary Enquiry does not entail the exercise of examining the
veracity of the information. However, in the present case, in Mr. Krishnan's
submission, the CBI had even investigated the veracity of the information,
which means that the CBI treated the First P.E. itself as a FIR/RC. Mr.
Krishnan relies upon Vineet Narain & Odrs. vs. Union of India & Anr.
(1998) 1 SCC 226 to submit that it is imperative for the CBI to adhere
scrupulously to the provisions of the CBI manual in relation to its
investigative functions like raids, seizures and arrests. He also places
reliance on Lalitha Kumari vs. State of U.P & ors (2014) 2 SCC 1 and
paragraphs 9.1, 9.12 and 9.16 of Chapter 9 of the CBI Manual in this regard.
62. The next submission of the petitioners is that, in any event, the CBI
has no authority or jurisdiction to carry out investigation in the FIR/RC in
the State of Himachal Pradesh, since the said State has not granted its
consent to such investigation in the State. This submission is founded upon
the provisions contained in the Delhi Special Police Establishment Act, 1946
(DSPE Act) and the constitutional framework in relation to exercise of
power of investigation of offences which may have been committed in one
of the constituent States of the Indian federation. On this aspect, Mr. Kapil
Sibal, learned Senior Counsel has advanced his submissions. Mr. Sibal
submits that historically the DSPE Act was enacted to constitute a special
police force for the Chief Commissioners Province of Delhi, for the
investigation of certain offences committed in connection with matters
concerning departments of the Central Government. The Act also seeks to
lay down the procedure for the superintendence and administration of the
DSPE - popularly known as CBI, and for extension to other areas in British
India of the powers and jurisdiction of members of the said force in regard
to investigation of offences. Mr. Sibal has drawn the attention of the Court
to Sections 5 and 6 of the DSPE Act, which read as follows:
"5. Extension of powers and jurisdiction of special police
establishment to other areas - (1) The Central Government
may by order extend to any area (including Railway areas), in
a State, not being a Union territory, the power and jurisdiction
of members of the Delhi Special Police Establishment for the
investigation of any offences or classes of offences specified in
a notification under section 3.
(2) When by an order under sub-section (1) the powers and
jurisdiction of members of the said police establishment are
extended to any such area, a member thereof may, subject of
any orders which the Central Government may make in this
behalf, discharge the functions of a police officer in that area
and shall, while so discharging such functions, be deemed to be
a member of a police force of that area and be vested with the
powers, functions and privileges and be subject to the liabilities
of a police officer belonging to that police force.
(3) Where any such order under sub-section (1) is made in
relation to any area, then, without prejudice to the provisions of
sub-section (2) any member of the Delhi Special Police
Establishment of or above the rank of Sub- Inspector may
subject to any orders which the Central Government may make
in this behalf, exercise the powers of the officer in charge of a
police station in that area and when so exercising such powers,
shall be deemed to be an officer in charge of a police station
discharging the functions of such an officer within the limits of
his station.
6. Consent of State Government to exercise of powers and
jurisdiction - Nothing contained in section 5 shall be deemed to
enable any member of the Delhi Special Police Establishment
to exercise powers and jurisdiction in any area in a State, not
being a Union territory or railway area, without the consent of
the Government of that State."
63. Mr. Sibal submits that Section 6 of the Act expressly overrides
the provision of Section 5, since it begins with a non-obstante clause.
Mr. Sibal submits that consent of the concerned State is a mandatory
pre-requisite under Section 6 of the DSPE Act for the CBI to derive
jurisdiction to carry out investigation in any area within the territorial
limit of the State. No powers can be exercised by any member of the
CBI in an area falling within the territorial boundaries of a State without
the consent of the State Government, which is a pre-condition for the
CBI to assume jurisdiction. He submits that since there is no consent
granted by the State Government of Himachal Pradesh to the CBI to
investigate the Regular Case in question, the CBI has no jurisdiction to
investigate the offences against the petitioners in any area within of
State of Himachal Pradesh. He places reliance on Management Of
Advance Insurance . vs Shri Gurudasmal & Ors, 1970 (1) SCC 633,
and the judgment of this Court in Surinder Singh Ahluwalia Vs. Delhi
Special Police Establishment and Others, ILR (1991) II Delhi 228 in
support of this submission.
64. He submits that the Second P.E.; the FIR/RC registered by the
CBI, and; the order for issuance of search warrants issued by the Court
at Delhi in respect of searches to be conducted at places outside Delhi,
and in Shimla, are null and void, and without jurisdiction. Reliance is
placed on Mayawati vs. Union of India (2012) 8 SCC 106, wherein
CBI had registered another FIR and conducted an investigation against
the petitioner therein, with regard to acquiring of disproportionate assets
by the petitioner without any direction by the Court to empower CBI to
lodge FIR or without applying for or taking prior consent of the State
Government of UP.
65. Reliance is further placed on State of W.B. v. Committee for
Protection of Democratic Rights (2010) 3 SCC 571, to submit that the
FIR should have been got registered, if at all, at the police station
having jurisdiction in the State of Himachal Pradesh and, if the High
Court/ Supreme Court found that the investigation was not being done
properly, the same could have been entrusted to the CBI.
66. He submits that the CBI is conscious of the bar created under
Section 6 DSPE Act, as the petitioner no. 1 herein had filed an
application for clarification of the order of 01.09.2015 in the Common
Cause PIL, wherein he had specifically relied on Section 6 of the DSPE
Act, and also relied upon the decision in Ms. Mayawati (supra).
67. Mr. Sibal submits that the principle of federalism enshrined in the
Constitution of India preserves the autonomy to the State government with
regard to policing within the constituent States. The same is a State subject
under Entry No. 2 in List II of Schedule- VII to the Constitution of India.
The said Entry reads:
"Police (including railway and village police) subject to the
provisions of Entry 2A of List I".
Conscious of this separation of powers in the Constitution, the DSPE
has a 3-stage mechanism to ensure that the territorial integrity and autonomy
of the States is not infringed by the Central Government/Investigating
Agency. Reliance is placed on M. Balakrishna Reddy vs. CBI (2008) 4 SCC
409 in this regard.
68. Mr. Sibal submits that the FIR/RC mentions the place of occurrence
to be New Delhi, Shimla, etc. The RC has been registered under Section
13(1)(e) read with Section 13(2) of the PC Act and under these sections, it is
the place of location of the disproportionate assets, where the jurisdiction of
the Court lies to try the offence. Mr. Sibal submits that petitioners had no
assets in Delhi during the check period. One property i.e. a Farm House at
Dera Mandi, is in the name of M/s Maple Destination Pvt. Ltd. and not in
the name of the petitioners. Reliance is placed on V.K. Puri v. CBI, (2006)
DLT 521 to submit that the Courts within whose jurisdiction part of cause of
the disproportionate assets lie, would have the jurisdiction to try the offence.
69. Mr. Sibal submits that jurisdiction has to be decided on the basis of
the contents of FIR. A perusal of the impugned FIR shows that all acts
and/or omissions that are said to constitute the offence under Section 13(1)
(e) read with Section 13(2) of the PC Act are said to have been perpetrated
in the State of Himachal Pradesh. The trial court / Spl. Judge, Delhi in Mr.
Sibal's submission, has no jurisdiction to deal with the Regular Case since
the following alleged actions have taken place in the State of Himachal
Pradesh:
i. Income Tax Returns and revised Income Tax Returns of
petitioner no. 1 and his wife have been regularly filed by the
petitioners in Shimla;
ii. That the petitioner no. 1 as "karta" of HUF has been filing
Income Tax Returns but for AY 2009-10, 2010-11, 2011-12 has
filed revised Income Tax Returns showing substantial increase in
his agricultural income.
iii. Show Cause Notice under Section 148 of the IT Act has been
issued in Shimla and the same is under challenge in Shimla;
iv. The LIC policies in which the petitioner no. 1 invested his
income when he was a Union Minister were bought in Shimla by
making payments out of his bank account in Shimla;
v. Shri Anand Chauhan, who has allegedly abetted the offence to
convert cash income into legitimate agricultural income by
entering into the MOU dated 15.06.2008 for management of
Apple Orchards of the petitioner no. 1, resides in Shimla. The
LIC policies were bought in Shimla by making payments out of
the bank accounts maintained in Shimla. The MoU was executed
in HP and orchards are also in HP. Also, the sale of the apple
produce out of the orchards has taken place in Parwanoo,
Himachal Pradesh and the proceeds have been deposited in the
bank accounts of Mr. Anand Chauhan in Shimla.
70. With regard to the allegations of inflation in the agricultural income
of the petitioner no. 1 in the A.Y. 2009-10, 2010-11 and 2011-12, Mr. Sibal
submitted that the return for the A.Y. 2010-11 filed by Virbhadra (HUF)
was accepted by the Assessing Officer, but the same was revised by the
Commissioner of Income Tax under Section 263 of the Income Tax Act.
This revisional order u/s 263 of the IT Act is under challenge before the
ITAT, Chandigarh Bench and it is pending. He submits that until the income
tax proceedings initiated against the petitioner no. 1 are conclusively
decided against the petitioner, the present proceedings undertaken by CBI
are pre-emptory and presumptive. Mr. Sibal submits that the whole issue in
the present case relates to revision of ITRs which are pending adjudication
before different authorities and, therefore, the investigation by the CBI is
itself premature in the absence of a final determination by the IT Authorities.
He further submits that the FIR also pertains to AY 2009-10 which relate to
transactions that took places in Financial Year 2008-09, when the petitioner
no. 1 was not a Union Minister. This shows that the registration of the
RC/FIR is a result of total non-application of mind.
Respondent No. 2's submissions
71. The respondent no. 2 i.e. the State of Himachal Pradesh is seeking for
the adjudication of the following four questions of law which inter alia were
raised by the High Court of Himachal Pradesh vide its order dated
1.10.2015:
"...4. Whether it was mandatory for the Central Bureau of
Investigation to seek the consent of the State Government as per
section 6 of the Delhi Special Police Establishment Act at the
time of registration of FIR and its subsequent investigation and
raiding the residential premises of the petitioners and non
conforming to mandatory provisions of section 6 of the Delhi
Special Police Establishment Act vitiates the investigation as
well as raid in the official premises of the petitioners.?
5. Whether the raid at the residential premises of the sitting
Chief Minister without conforming to section 6 of the Delhi
Special Police Establishment Act would dilute the basic federal
structure of the Constitution of India?
...7. Whether the Central Bureau of Investigation has complied
with the mandatory provisions of Code of Criminal Provisions
and the guidelines provided in Central Bureau of Investigation
Manual while registering the FIR and also while undertaking
the investigation?
8. What is the true import of Entry 2-A, 80 of the Union List vis-
a-vis 2 of the State List and their inter-play?"
72. The stand of the State Government is the same as that of the
petitioners with respect to the CBI not having jurisdiction to register a FIR
and investigate the case in the State of Himachal Pradesh without seeking
consent from the State Government under Section 6 of the DSPE. Learned
Advocate General submits that the offence allegedly committed as per FIR
is within the territorial limit of the State of Himachal Pradesh and, therefore,
it is mandatory for CBI to seek prior consent of the State Government before
registering the said FIR and conducting the investigation. Reliance is placed
on M. Balakrishna Reddy (supra), Mayawati (supra) and Manoj Kumar
Aggarwal (2015) 150 DRJ 332 in this regard.
73. Learned Advocate General for the State, Mr. Shrawan Dogra submits
that being a State under Article 1 of Constitution Of India, the State of
Himachal Pradesh has its own territorial boundary, having its own
constitutional institutions and other statutory institutions like police stations
etc. He submits that, 'Police' is a State subject and, therefore, only the State
legislature can legislate on the said subject. The executive power of the
State is co-extensive with its legislative power and, therefore, only the State
Government can initiate and undertake police action in respect of an offence
committed within the boundaries of a State. Reliance is placed on
Committee for Protection of Democratic Rights (supra) and Gurudasmal
(supra) in this regard.
74. Mr. Dogra submits that the DSPE Act is a Central piece of legislation
which provides for creation of special police force for Union Territories. He
submits that the Act provides for the extension of power and jurisdiction of
the said special police force to other States only after a specific order in that
regard is issued, which always is subject to the consent of such State as
provided under Section 6 of the said Act.
75. Mr. Dogra challenges the very creation of CBI, and doubts whether
the same can be termed as a special police force contemplated under DSPE
Act, so as to extend its jurisdiction and power to another State. He places
reliance upon the reasoning recorded in a judgment rendered by the Gauhati
High Court in Sh. Navendra Kumar vs. Union of India & Anr., 2013 Cri LJ
5009, which is currently stayed by the Supreme Court, to submit that CBI
cannot be termed as a special police force, and it cannot exercise power and
jurisdiction unless the State concerned gives consent under Section 6 of the
DSPE Act. He relies on Shree Chamundi Mopeds Ltd. vs. Church of South
India Trust Association CSI Cinod Secretariat, Madras, (1992) 3 SCC 1,
to submit that mere stay of the operation of the judgment by the Supreme
Court does not tantamount to quashing of the said judgment, and that the
said judgment can be relied upon.
CBI's Submissions
76. The learned Additional Solicitor General Mr. P.S. Patwalia advanced
his submissions on behalf of the CBI. He submits that the First PE
registered by the CBI on 19th October, 2012 was altogether different from
the one registered on 17th June, 2015, i.e. the Second PE. He submits that
the First P.E. was registered against unknown officials of M/s Ispat
Industries Ltd. and STC, and not against the petitioner no. 1 and his family.
It was based on the information received from the Income Tax authorities
regarding alleged illegal payments made by M/s IIL to officers of STC and
other influential persons. However, the Second PE was registered against
the petitioner no.1 and his family in relation to accumulation of assets
disproportionate to the known sources of income of the petitioner no. 1
when he served as a Union Minister during the check period. He further
submits that even the offences made out in the two enquiries are different.
The First PE relates to an offence under Section 7 r/w Section 13(2) and
Section 13(1)(d) of the PC Act, whereas the Second PE relates to an offence
u/s 13(2) r/w 13(1)(e) of the PC Act. Reliance is placed on Vasudevan v.
CBI 2012 SCC OnLine Del 3229 to submit that the offence u/s 13(1)(d) and
the offence u/s13(1)(e) being different cannot be clubbed and tried together.
77. Mr. Patwalia submits that the concept of a preliminary enquiry is
contained in Chapter 9 of the Criminal Manual of the CBI - which is not
statutory, but is a set of administrative orders issued for the internal
guidance of CBI. Mr P.S. Patwalia submits that a preliminary enquiry
conducted by the CBI in cases involving public servants is only a
preliminary verification/inquiry for the limited purpose of ascertaining as to
whether, prima facie, a cognizable offence has at all been committed. The
enquiry is a safeguard, so that an FIR is not routinely and mechanically
registered when such allegations are made against government officials,
ministers, etc. He submits that an FIR may follow upon conclusion of a
preliminary enquiry. Reliance is placed on Lalita Kumari (supra) and P.
Sirrajuddin v. State of Madras, (1970) 1 SCC 595. He further submits that
reliance placed by the petitioners on the judgments of T.T. Anthony (supra)
and Amitbhai Anilchandra Shah (supra) is completely misplaced, because
T.T. Anthony (supra) related to successive FIRs, and Amitbhai Anilchandra
Shah (supra) concluded that the charge sheet filed under the second FIR
should be taken to be a supplementary charge sheet in the first FIR and,
therefore, these two judgments were rendered in completely different facts.
In the present case, there is only one RC/FIR registered under Section 154
Cr.P.C.
78. Mr. Patwalia submits that the First PE was under progress when Mr.
Bhushan filed the complaint dated 11.01.2013 followed with the Common
Cause PIL in the Delhi High Court. During the enquiry, the CBI could not
find credible evidence to link the initials 'VBS' with Shri Vir Bhadra Singh
- petitioner no.1 but the evidence forthcoming revealed a case of
disproportionate assets against the petitioner no. 1. As a result of this, a
proposal was made that the First PE should be closed, and a fresh PE should
be registered to probe the unexplained income of petitioner no. 1 from the
disproportionate assets perspective. Mr. Patwalia submits that this was a
composite consideration, and on the recommendation of the Investigating
Officer, the First PE dated 19.10.2012 was, accordingly, closed. He further
submits that the CBI had filed status reports in the Common Cause PIL
regarding the First PE which are lying in sealed covers in this Court.
79. The CBI has repelled the application moved by the petitioners viz.
Crl. M.A. No. 3396/2016 by submitting that the demand for supply of the
aforesaid documents is completely unjustified and only a tactic to frustrate
and prolong the investigation. Mr Patwalia submits that status reports filed
by the CBI in the Common Cause PIL were perused by the Court and
thereafter ordered to be put back in a sealed cover (except for the last/final
status report which wasn't perused but remains in a sealed cover). This is
evident from the orders of the Court in the Common Cause PIL dated
02.04.2014 and 10.09.2014. He submits that during the entire proceedings
of that writ petition the reports have remained in sealed covers and were not
handed to the petitioners, and even petitioners did not make any request for
their supply before the Court in the said matter. He further submits that the
purpose of these reports was only to appraise the Court of the status and
stage of the then pending preliminary inquiry.
80. Mr. Patwalia submits that the said status reports have lost their
relevance since the Common Cause PIL was disposed of after noticing that a
regular case (subject FIR) has already been registered by the CBI and a
regular investigation has commenced. The Court, after being convinced that
the CBI will take the investigation to a logical conclusion, disposed of the
matter. Now, the petitioners endeavour is only to obstruct the investigation
in the Regular Case registered against them. He further submitted that the
status reports of the investigation conducted pursuant to both the preliminary
enquiries sought by the petitioners, are in the nature of administrative
notings which are only meant for the use of the officers of the CBI.
Additionally, these notings are not evidence or material to be utilized against
the petitioners. Mr Patwalia submits that what is material is the investigation
which would form a part of the charge sheet, if and when filed. At that
stage, the same shall be delivered to the petitioners for their perusal.
81. Mr. Patwalia also submitted that the case of Natwar Singh (supra)
does not apply to the facts of the present case, since it pertained to a case of
adjudication in pursuance to a show cause notice issued under the Foreign
Exchange Management Rules by the adjudicating authority. The show cause
notice relied upon certain documents on which the petitioners' response was
elicited under an adjudicatory process. The case centered around petitioner's
demand for documents on which the adjudicating authority's show cause
notice was based. He relied upon the said case to submit that the
applicability of, and the scope of the principles of natural justice depends on
the circumstances of the case; nature of enquiry and consequences following
such enquiry; and the rules under which the Tribunal is acting.
82. However, he submits that the CBI has no objection if this Court were
to peruse the same.
83. On the contention of the petitioners that CBI has no jurisdiction to
investigate the case in the State of Himachal Pradesh, because of lack of
consent from the State Government under Section 6 of DSPE Act, Mr.
Patwalia submits that the offence under Section 13(1)(e) read with Section
13(2) of the P.C. Act complained of, relates to the period when the accused
held the office as a Public Servant in the Central Government at New Delhi.
He submits that the CBI is not required to obtain consent of the State of
Himachal Pradesh under Section 6 of the DSPE Act for this reason.
Reliance is placed on V.K. Puri (supra), wherein the Supreme Court held
that the Special Judge at Delhi had jurisdiction to deal with the case, because
one of the known sources of income of the petitioner therein was the rent
received from a property located in Delhi. By placing reliance upon the
ingredients of Section 177-178 of the Cr.P.C., Mr. Patwalia submits that
CBI has the jurisdiction to investigate the offences in question.
84. Mr. Patwalia repels the contention of the petitioners that the Special
Judge in Delhi does not have jurisdiction, as the assets are claimed to be
located outside the jurisdiction of the learned Special Judge, Delhi. He
submits that a known source of income - relevant to the check period, is in
Delhi; large number of bank accounts and FDRS are located in Delhi; there
is a farm house property in Delhi in the name of the company Maple
Destinations Dream Build Pvt. Ltd.- a company owned by the petitioners'
daughter and son. The submission of the petitioner no. 1 that his son has
purchased the said farmhouse from his own source of income is fallacious,
as the total income reflected by the son in the income tax return for the year
2012-13 is Rs. 2,97,149/- which is nowhere close to the amount required to
purchase a farm house. He submits that the investigation has revealed that
the farm house is included in the total assets of the petitioner no. 1, and that
he had, amongst others, given around Rs. 90 lakhs for purchase of the same.
85. Reliance is placed on Section 13 of the PC Act to submit that the
cause of action arose in Delhi. The said section, insofar as it is relevant, is
reproduced hereinbelow:
"13. Criminal misconduct by a public servant:
(1) A public servant is said to commit the offence of criminal
misconduct,-
(a)---------------------------------------------------------; or
(b)---------------------------------------------------------; or
(c)---------------------------------------------------------; or
(d)---------------------------------------------------------; or
(e) if he or any person on his behalf, is in possession or has, at any
time during the period of his office, been in possession for which
the public servant cannot satisfactorily account, of pecuniary
resources or property disproportionate to his known sources of
income.
Explanation.-For the purposes of this section, "known sources of
income" means income received from any lawful source and such
receipt has been intimated in accordance with the provisions of any
law, rules or orders for the time being applicable to a public
servant.
(2) Any public servant who commits criminal misconduct shall be
punishable with imprisonment for a term which shall be not less
than one year but which may extend to seven years and shall also
be liable to fine." (emphasis supplied)
86. Mr. Patwalia emphasizes the words "at any time during the period of
his office" to submit that the offence under Section 13(1)(e) of criminal
misconduct is committed at the place where the public servant holds his
office. He submits that the petitioner no. 1, during the period of his office as
Minister of Steel, and thereafter as Minister for Micro Small & Medium
Enterprises (MSME) in the Government of India from 28.05.2009 to
26.06.2012 has allegedly committed the offence at Delhi and, therefore, CBI
has justifiably exercised its power in relation to the said offences by
registering the FIR/RC at Delhi. Mr. Patwalia has referred to Para 4 of the
subject FIR, which reads as follows:
"4) Information contained in the abovementioned documents
and facts revealed during the enquiry prima-facie disclose that
Shri Virbhadra Singh while functioning as Union Minister,
Government of India during the check period 29.05.2009 to
26.06.2012 acquired assets, disproportionate to his known
sources of income to the tune of Rs, 6,03,70,782/- and further
tried to justify the same in the form of agricultural income.
Inquiry also revealed that Smt. Pratibha Singh W/o. Shri
Virbhadra Singh, Shri Anand Chauhan with whom Shri
Virbhadra SIngh has signed MoU for managing his apple
orchard and Shri Chunni Lal Chauhan, Proprietor of M/s.
Universal Apple Associates, who purportedly shown the
purchase of apple of Shrikhand Orchard have facilitated in
justifying the disproportionate assets of Shri Virbhadra SIngh
and thereby abetted the offence. "
[Emphasis supplied ]
87. Mr. Patwalia submits that the petitioner is wrongfully misconstruing
the basis of registration of FIR by posing that the same was registered only
on the grounds of his allegedly having a farm house in Delhi.
88. Mr. Patwalia submits that the authenticity of the MOU dated
15.06.2008 executed between the petitioner no. 1 and Anand Chauhan -
relied upon by the petitioners to show generation of agricultural income
from their apple orchard, is doubtful. He submits that the said agreement is
scribed on stamp papers which left the H.P. printing press, Shimla only on
25.09.2008, i.e. three months after the alleged date of the agreement. He
further submits that the agreement is registered against Sr. Nos. of a stamp
vendor - where there is apparent cutting, and the original/actual agreements
registered against those Sr. Nos. have been recovered in the investigation.
Mr. Patwalia submits that a perusal of the second preliminary enquiry dated
17.06.2016 reveals that the allegations are serious and the petitioners having
fully realized the same, are avoiding any discussion on merits. He submits
that investigation is complete and charge sheet is ready.
89. He further submits that the petitioners' submission premised on Entry
2 of List II of the Seventh Schedule to the Constitution of India [i.e.
"Police" (including railway and village police) subject to the provisions of
Entry 2A of List II]; on the concept of federal structure under the
Constitution of India, and; the inter-play of Entry 8 of List I (i.e. Central
Bureau of Intelligence & Investigation), is premised on the primary
submission that consent of the State Government is necessary in the facts of
the present case. He submits that in light of the facts of the present case, no
consent of the State Government is required under Section 6 of the DSPE
Act, as the alleged offence has entirely been committed during the time
when the petitioner no. 1 was posted as a Minister in the Central
Government i.e. the offence was allegedly committed within the territorial
jurisdiction of the ld. Special Judge, Delhi and some of the allegedly ill-
gotten assets are also located in Delhi.
90. Reliance is further placed on Manoj Kumar Aggarwal v. CBI, (supra)
and Surinder Singh Ahluwalia v. Delhi Special Police Establishment &
Ors. 1991 CriLJ 2583, wherein the Courts have recognized CBI's
jurisdiction to register the case and investigate the same in Delhi, if the
check period is partially pertaining to public service under the State
Government, and partially on Central deputation. The Courts have held that
in such situations, the consent of the State Government is not mandatorily
required.
91. Mr. Patwalia places reliance upon the notification OM No. 228/40/88-
AVD-II(III) of August, 1990 issued by the Government of India, Ministry of
Personnel, PG and Pensions, whereby the Central Government, with the
consent of Government of Himachal Pradesh, has extended the jurisdiction
of members of Delhi Special Police Establishment under Section 6 of DSPE
Act to the whole of the State of Himachal Pradesh for investigation of
offences under the PC Act and its attempt, abetments and conspiracies. In
pursuance of this notification, a branch of CBI was set up in Shimla,
Himachal Pradesh for investigation of offences under the PC Act. Further,
the High Court of Himachal Pradesh had notified a Ld. Special Judge (P.C.
Act) at Shimla, Himachal Pradesh, with the consent of the State of Himachal
Pradesh for trial of offences under PCA investigated by CBI.
92. With respect to the submissions of the State of Himachal Pradesh/
respondent no. 2, Mr. Patwalia submits that the State - which is not a
petitioner, has raised arguments not as a respondent but like a co-petitioner,
which go even beyond those raised by the petitioners. He submits that since
the State is not the petitioner, it cannot be permitted to raise arguments not
raised by the petitioner herein, and this Court is not required to look only
into the contentions raised by the State of Himachal Pradesh in the present
petition. He further submits that such conduct on part of the State evidences
the State's active and full connivance with the petitioner no.1, who happens
to be its Chief Minister.
93. Mr. Patwalia submits that the State's challenge to the constitutionality
of the CBI is completely misplaced. He submits that there is no plea or
submission challenging the CBI's constitutionality in the petition, or even in
the counter filed by the State. Thus, there is no basis for advancing any such
an argument. He submits that reliance placed on the judgment of the Gauhati
High Court in Navendra Kumar (supra) by the learned Advocate General is
misplaced, since the said judgment has been stayed by the Supreme Court.
A subsequent application for vacation of stay also stands declined. Mr.
Patwalia submits that so far as this judgment is concerned, the Court had
upheld the validity of the DSPE Act and had only questioned the
constitution of CBI by merger with Special Police Establishment Division
(SBE Division) and other divisions through a Resolution of the Central
Govt. in the year 1963. He submits that this implies that the SPE Division of
CBI has a legal standing and its members exercise powers as per the DSPE
Act. He placed reliance on Gurudasmal (supra), wherein the Supreme
Court found that the CBI is a validly constituted force, and upheld its
constitutionality.
94. Mr. Patwalia submits that the CBI through its "Special Police
Establishment Division" investigates the offences under the Delhi Special
Police Establishment Act, 1946. Section 2(1) of the DSPE Act provides for
the constitution of a Special Police Force for investigation of offences
notified under Section 3 of the DSPE Act. Section 2(2) of the Act provides
the powers of police officers to the members of SPE/CBI in respect of Union
Territories. In respect of Union Territories, the Parliament has the power to
enact laws for subjects covered even under the List II of the Seventh
Schedule of the Constitution. Entry 80 of the List I empowers the Parliament
to enact laws to extend the jurisdiction of a police force of a State to another
State, with the consent of that State Government. Sections 5 and 6 of the
DSPE Act have been enacted in exercise of the legislative power conferred
by the aforesaid Entry. Thus, the creation of the DSPE/CBI is relatable to
the powers of the Parliament under Entry 2 of the List II (in respect of a
Union Territory) and Entry 80 of List I. The SPE Division of CBI
investigates criminal offences in exercise of its power conferred by the
DSPE Act, 1946. As far as "Union Territories" and "Railway Areas" are
concerned, CBI is a regular police force, like police force of any State/UT,
constituted under The Police Act, 1861. Hence, for exercising the police
powers in UTs, CBI does not need to obtain consent from the concerned UT
administration under Section 6 of DSPE Act, 1946. In the present case, Mr.
Patwalia submits, the petitioner no. 1 was serving as a public servant at
Delhi, which is a Union Territory and hence, CBI has the jurisdiction - like
the local police force, to investigate the cases under the PC Act in the Union
Territory.
95. In their rejoinder, the petitioners have refuted the interpretation
advanced by the CBI of OM No. 228/40/88-AVD-II (III) of August 1990.
Mr. Krishnan submits that the aforesaid notification is only applicable to the
"officials/officers of the Central Govt. departments and other Central
institutions, located in the territory of Himachal Pradesh" and not to public
servants of the Central Government. Thus, the said notification is not
applicable in the case of the present petitioners. He submits that it is CBI's
own contention that the case pertains to petitioner no. 1's tenure as a Union
Minister which - by no stretch of imagination, can possibly make him an
official or an officer of a Central Government department or a Central
Institution located in the territory of Himachal Pradesh.
Discussion
96. The submission of Mr. Krishnan, in substance, is that the CBI carried
out the enquiry into the allegations made by Mr. Prashant Bhushan in his
representation given to the CVC and the CBI dated 11.01.2013, and in the
allegations contained in the Common Cause PIL as a part of its enquiry
being undertaken in pursuance of the First PE. The submission is that the
specific allegations made by Mr. Prashant Bhushan in his representation, as
well as in the Common Cause PIL, disclosed the commission of a
cognizable offence and the said information was the first such information.
To substantiate this submission, Mr. Krishnan demanded production of the
status reports filed by the CBI in the Common Cause PIL, to submit that the
said status reports would also corroborate the fact that detailed enquiry had
been undertaken even before registration of the Second PE into the very
same allegations which form basis of the Second PE. Thus, according to him
the First PE, in fact, tantamounted to a First Information Report/ Regular
Case. Since the CBI, admittedly, had closed the First PE, it tantamounted to
closing of the Regular Case/ FIR. Consequently, on the basis of the same
allegations - which had already been investigated under the cover of the
First PE, opening of the Second PE and registration of the Regular Case was
not permissible. In this regard, he placed reliance on T.T. Anthony (supra)
and Tapan Kumar Singh (supra).
97. Before I proceed to deal with this submission of the petitioners, I may
observe that in Tapan Kumar Singh (supra) the Supreme Court observed
that the issue whether the G.D. entry tantamounted to a FIR or not, could be
raised before the Magistrate. The Supreme Court in para 23 of Tapan
Kumar Singh (supra) , inter alia, observed:-
"..................Similarly, the question as to whether the
GD entry, or the FIR formally recorded on 20-10-1990,
is the FIR in the case, is a matter which may be similarly
agitated before the court. Where two informations are
recorded and it is contended before the court that the
one projected by the prosecution as the FIR is not really
the FIR but some other information recorded earlier is
the FIR, that is a matter which the court trying the
accused has jurisdiction to decide. Similarly, the
mentioning of a particular section in the FIR is not by
itself conclusive as it is for the court to frame charges
having regard to the material on record. Even if a wrong
section is mentioned in the FIR, that does not prevent the
Court from framing appropriate charges." (emphasis
supplied)
98. However, since the parties have advanced elaborate submissions on
this aspect without claiming that the said issue could, or would be properly
raised before the Ld. Single Judge, and the Status Reports are also lying in
sealed covers in this Court, I am inclined to deal with the same.
99. In T.T. Anthony (supra), in relation to two police firing incidents at
two different locations, two FIRs had been registered as Crime No.353/1994
and Crime No.354/1994 at the same Police Station. While the first pertained
to the occurrence near the Town Hall against 8 named persons and many
other unidentified persons, the second FIR pertained to the incident which
occurred in the vicinity of the Police Station Kuthuparamba and it was
against unidentified persons forming part of an unlawful assembly.
100. The State Government instituted a commission of inquiry u/s 3(1) of
the Commission of Inquiry Act, 1952, inter alia, to inquire into the
circumstances which led to the aforesaid firing by police. The Commission
of Inquiry gave its report, which was accepted by the State Government. On
the directions of the I.G. of Police, Crime No.268/1997 was registered at
Kuthuparamba P.S. u/s 302 IPC, inter alia, against T.T. Anthony. The
earlier registered cases as Crime Nos.353/1994 and 354/1994 registered at
PS Kuthuparamba, came to be closed as being false and undetected
sometime in April 1999 and June 1999 respectively. Amongst others, T.T.
Anthony sought the quashing of the FIR in Crime No.268/1997, or in the
alternative, to seek investigation of the said crime by the CBI. The learned
Single Judge of the Kerala High Court, as well as the Division Bench, did
not quash the FIR in Crime No.268/1997, inter alia, qua T.T. Anthony.
However, the investigation of the said case was transferred to the CBI.
Being dissatisfied, T.T. Anthony approached the Supreme Court.
101. It is in this background that the Supreme Court, inter alia, considered
the issue whether the registration of the fresh case vide Crime No.268/1997
at PS Kuthuparamba on the basis of the letter of the DGP dated 02.07.1997-
which was in the nature of a second FIR u/s 154 Cr PC, was valid and could
form the basis of a fresh investigation. The Supreme Court in the course of
its discussion, inter alia, observed as follows:
"18. An information given under sub-section(1) of Section 154
CrPC is commonly known as first information report (FIR)
though this term is not used in the Code. It is a very important
document. And as its nickname suggests it is the earliest and
the first information of a cognizable offence recorded by an
officer in charge of a police station. It sets the criminal law in
motion and marks the commencement of the investigation which
ends with the formation of opinion under Section 169 or 170
CrPC, as the case may be, and forwarding of a police report
under Section 173 CrPC. It is quite possible and it happens not
infrequently that more information than one are given to police
officer in charge of a police station in respect of the same
incident involving one or more than one cognizable offences. In
such a case he need not enter every one of them in the station
house diary and this is implied in Section 154 CrPC. Apart
from a vague information by a phone call or a cryptic telegram,
the information first entered in the station house diary, kept for
this purpose, by a police officer in charge of a police station is
the first information report- FIR postulated by Section 154
CrPC. All other informations made orally or in writing after the
commencement of the investigation into the cognizable offence
disclosed from the facts mentioned in the first information
report and entered in the station house diary by the police
officer or such other cognizable offences as may come to his
notice during the investigation, will be statements falling under
Section 162 CrPC. No such information/statement can properly
be treated as an FIR and entered in the station house diary
again, as it would in effect be a second FIR and the same
cannot be in the conformity with the scheme of CrPC...........
19. The scheme of CrPC is that an officer in charge of a
police station has to commence investigation as provided in
Section 156 or 157 CrPC on the basis of entry of the first
information report, on coming to know of the commission of a
cognizable offence. On completion of investigation and on the
basis of the evidence collected, he has to form an opinion under
Section 169 or 170 CrPC, as the case may be, and forward his
report to the Magistrate concerned under Section 173(2) CrPC.
However, even after filing such a report, if he comes into
possession of further information or material, he need not
register a fresh FIR; he is empowered to make further
investigation, normally with the leave of the court, and where
during further investigation he collects further evidence, oral or
documentary, he is obliged to forward the same with one or
more further reports; this is the import of sub-section (8) of
Section 173 CrPC.
20. From the above discussion it follows that under the
scheme of the provisions of Sections
154,155,156,157,162,169,170 and 173 CrPC only the earliest
or the first information in regard to the commission of a
cognizable offence satisfies the requirements of Section 154
CrPC. Thus there can be no second FIR and consequently
there can be no fresh investigation on receipt of every
subsequent information in respect of the same cognizable
offence or the same occurrence or incident giving rise to one
or more cognizable offences. On receipt of information about
a cognizable offence or an incident giving rise to a cognizable
offence or offences and on entering the FIR in the station
house diary, the officer in charge of a police station has to
investigate not merely the cognizable offence reported in the
FIR but also other connected offences found to have been
committed in the course of the same transaction or the same
occurrence and file one or more reports as provided in
Section 173 CrPC.
xxxxxxxxxxxxxx
27. A just balance between the fundamental rights of the
citizens under Articles 19 and 21 of the Constitution and the
expansive power of the police to investigate a cognizable
offence has to be struck by the court. There cannot be any
controversy that sub-section (8) of Section 173 CrPC empowers
the police to make further investigation, obtain further evidence
(both oral and documentary) and forward a further report or
reports to the Magistrate. In Narang case [(1979) 2 SCC 322 :
1979 SCC (Cri) 479] it was, however, observed that it would be
appropriate to conduct further investigation with the
permission of the court. However, the sweeping power of
investigation does not warrant subjecting a citizen each time
to fresh investigation by the police in respect of the same
incident, giving rise to one or more cognizable offences,
consequent upon filing of successive FIRs whether before or
after filing the final report under Section 173(2) CrPC. It
would clearly be beyond the purview of Sections 154 and 156
CrPC, nay, a case of abuse of the statutory power of
investigation in a given case. In our view a case of fresh
investigation based on the second or successive FIRs, not
being a counter-case, filed in connection with the same or
connected cognizable offence alleged to have been committed
in the course of the same transaction and in respect of which
pursuant to the first FIR either investigation is under way or
final report under Section 173(2) has been forwarded to the
Magistrate, may be a fit case for exercise of power under
Section 482 CrPC or under Articles 226/227 of the
Constitution". (emphasis supplied)
102. The Supreme Court held that the registration of the subsequent FIR
was not the correct course of action to adopt. In relation to the facts of the
said case, the Supreme Court, inter alia, observed:
"28...................... A comparison and critical examination
of the FIRs in Crimes Nos. 353 and 354 of 1994 on one hand
and FIR in Crime No. 268 of 1997 on the other, discloses that
the date and place of occurrence are the same; there is
alluding reference to the deaths caused due to police firing in
the FIRs in Crimes Nos. 353 and 354 of 1994. In any event,
that fact was evident on the scene of occurrence. The narration
of events, which we need not repeat here, is almost the same.
The additional averments in Crime No. 268 of 1997 are based
on the findings in the report of the Commission. Having regard
to the test laid down by this Court in Narang case [(1979) 2
SCC 322 : 1979 SCC (Cri) 479] with which we are in respectful
agreement, we find that in truth and substance the essence of
the offence in Crimes Nos. 353 and 354 of 1994 is the same as
in Crime No. 268 of 1997 of Kuthuparamba Police Station.
...........................................The correct course of action
should have been to take note of the findings and the contents of
the report, streamline the investigation to ascertain the true and
correct facts, collect the evidence in support thereof, form an
opinion under Sections 169 and 170 CrPC, as the case may be,
and forward the report/reports under Section 173(2) or Section
173(8) CrPC to the Magistrate concerned. The course adopted
in this case, namely, the registration of the information as the
second FIR in regard to the same incident and making a fresh
investigation is not permissible under the scheme of the
provisions of CrPC as pointed out above, therefore, the
investigation undertaken and the report thereof cannot but be
invalid. We have, therefore, no option except to quash the same
leaving it open to the investigating agency to seek permission in
Crime No. 353 or 354 of 1994 of the Magistrate to make further
investigation, forward further report or reports and thus
proceed in accordance with law".(emphasis supplied)
103. In Tapan Kumar Singh (supra), before the High Court of Calcutta,
the accused successfully assailed the search & seizure carried out by the
CBI, on the premise that the GD entry contained vague allegations and did
not disclose commission of any cognizable offence. While holding that a
General Diary Entry may also be considered as a FIR if it discloses the
commission of a cognizable offence, the High Court held that in the said
case before it the GD entry, could not be considered to be a First
Information Report. It further held that subsequent registration of the First
Information Report could not validate the search & seizure undertaken prior
to such registration. On appeal, the Supreme Court accepted the position
that a General Diary (GD) entry could also be regarded as a FIR if its
contents disclose the commission of a cognizable offence. However, it
disagreed with the finding of the High Court that the GD entry in question
did not disclose the commission of a cognizable offence. It held that GD
entry disclosed commission of a cognizable offence under the PC Act. The
Supreme Court, inter alia, observed as follows:
20. It is well settled that a first information report is not an
encyclopaedia, which must disclose all facts and details
relating to the offence reported. An informant may lodge a
report about the commission of an offence though he may not
know the name of the victim or his assailant. He may not even
know how the occurrence took place. A first informant need not
necessarily be an eyewitness so as to be able to disclose in
great detail all aspects of the offence committed. What is of
significance is that the information given must disclose the
commission of a cognizable offence and the information so
lodged must provide a basis for the police officer to suspect
the commission of a cognizable offence. At this stage it is
enough if the police officer on the basis of the information given
suspects the commission of a cognizable offence, and not that
he must be convinced or satisfied that a cognizable offence has
been committed. If he has reasons to suspect, on the basis of
information received, that a cognizable offence may have
been committed, he is bound to record the information and
conduct an investigation. At this stage it is also not necessary
for him to satisfy himself about the truthfulness of the
information. It is only after a complete investigation that he
may be able to report on the truthfulness or otherwise of the
information. Similarly, even if the information does not furnish
all the details he must find out those details in the course of
investigation and collect all the necessary evidence. The
information given disclosing the commission of a cognizable
offence only sets in motion the investigative machinery, with a
view to collect all necessary evidence, and thereafter to take
action in accordance with law. The true test is whether the
information furnished provides a reason to suspect the
commission of an offence, which the police officer concerned
is empowered under Section 156 of the Code to investigate. If
it does, he has no option but to record the information and
proceed to investigate the case either himself or depute any
other competent officer to conduct the investigation. The
question as to whether the report is true, whether it discloses
full details regarding the manner of occurrence, whether the
accused is named, and whether there is sufficient evidence to
support the allegations are all matters which are alien to the
consideration of the question whether the report discloses the
commission of a cognizable offence. Even if the information
does not give full details regarding these matters, the
investigating officer is not absolved of his duty to investigate
the case and discover the true facts, if he can."(emphasis
supplied)
104. The question that arises for consideration is whether these decisions
can be pressed into service in the present factual context. It requires
consideration whether the above said principles would be applicable even in
respect of Preliminary Enquiries registered by the CBI and, if yes, whether
the two Preliminary Enquiries registered in the present case pertain to the
same incident or form part of the same transaction.
105. The Central Bureau of Investigation (Crime) Manual - 2005 in
Chapter - IX provides for holding of a preliminary enquiry. Paragraphs 9.1
and 9.2 in Chapter - IX, inter alia, provide that:
"9.1 When, a complaint is received or information is
available which may, after verification as enjoined in this
Manual, indicate serious misconduct on the part of a public
servant but is not adequate to justify registration of a regular
case under the provisions of Section 154 Cr.P.C., a
Preliminary Enquiry may be registered after obtaining
approval of the Competent Authority . Sometimes the High
Courts and Supreme Court also entrust matters to Central
Bureau of Investigation for enquiry and submission of report.
In such situations also which may be rare, a 'Preliminary
Enquiry' may be registered after obtaining orders from the
Head Office. When the verification of a complaint and source
information reveals commission of a prima facie cognizable
offence, a Regular Case is to be registered as is enjoined by
law. A PE may be converted into RC as soon as sufficient
material becomes available to show that prima facie there has
been commission of a cognizable offence. When information
available is adequate to indicate commission of cognizable
offence or its discreet verification leads to similar conclusion,
a Regular Case must be registered instead of a Preliminary
Enquiry. It is, therefore, necessary that the SP must carefully
analyse material available at the time of evaluating the
verification report submitted by Verifying Officer so that
registration of PE is not resorted to where a Regular Case can
be registered. Where material or information available clearly
indicates that it would be a case of misconduct and not criminal
misconduct, it would be appropriate that the matter is referred
to the department at that stage itself by sending a self-contained
note. In such cases, no 'Preliminary Enquiry' should be
registered. In cases, involving bank and commercial frauds, a
reference may be made to the Advisory Board for Banking,
Commercial & Financial Frauds for advice before taking up a
PE in case it is felt necessary to obtain such advice.
9.2 While proposing registration of a Preliminary Enquiry
pertaining to the abuse of official position by a public servant
in the matter of business/commercial decision, the important
difference between a business risk and a mala fide conduct
should be kept in mind with view to ensure that while corrupt
public servants are suitably dealt with the bona fide
business/commercial decisions taken by public servants in
discharge of their official duties are not taken up for
unnecessary probe." (emphasis supplied)
106. Chapter - IX of the said manual goes on to, inter alia, lay down the
procedure that the CBI should adopt while registering a preliminary enquiry;
collection of documents/ recording of statements in Preliminary Enquiry;
and the procedure for converting a Preliminary Enquiry into a regular case,
etc.
107. In Lalita Kumari (supra), the Constitution Bench of the Supreme
Court elaborately considered the scheme contained in the Code with regard
to registration of a First Information Report upon receipt of information with
regard to commission of a cognizable offence. The Supreme Court held that
the police is bound to register the FIR under Section 154 of the Code, if the
information discloses commission of a cognizable offence and generally the
police has no discretion in the matter of registration of FIR, and resort to a
preliminary enquiry before registration of the FIR.
108. In the course of submissions advanced by learned counsels, the
Central Bureau of Investigation (Crime) Manual - 2005 was adverted to,
which permits the CBI to conduct a preliminary enquiry before registration
of an FIR/ Regular Case if the information received does not per se disclose
the commission of a cognizable offence. It was argued that the preliminary
enquiry conducted by the CBI, as provided in the Central Bureau of
Investigation (Crime) Manual - 2005 stands on a different footing due to the
special provisions relating to CBI contained in the Delhi Police Special
Establishment Act, which is saved by Section 2(4) and (5) of the Code. The
Supreme Court had the following to say in relation to the procedure laid
down for conduct of a preliminary enquiry in Chapter - IX of the Central
Bureau of Investigation (Crime) Manual - 2005:
"89. ... ... ... It is true that the concept of "preliminary
inquiry" is contained in Chapter IX of the Crime Manual of
CBI. However, this Crime Manual is not a statute and has not
been enacted by the legislature. It is a set of administrative
orders issued for internal guidance of the CBI officers. It
cannot supersede the Code. Moreover, in the absence of any
indication to the contrary in the Code itself, the provisions of
the CBI Crime Manual cannot be relied upon to import the
concept of holding of preliminary inquiry in the scheme of the
Code of Criminal Procedure. At this juncture, it is also
pertinent to submit that CBI is constituted under a special Act,
namely, the Delhi Special Police Establishment Act, 1946 and
it derives its power to investigate from this Act.
90. It may be submitted that Sections 4(2) and 5 of the Code
permit special procedures to be followed for special Acts.
Section 4 of the Code lays down as under:
"4.Trial of offences under the Indian Penal Code
and other laws.--(1) All offences under the Indian
Penal Code (45 of 1860) shall be investigated,
inquired into, tried, and otherwise dealt with
according to the provisions hereinafter contained.
(2) All offences under any other law shall be
investigated, inquired into, tried, and otherwise
dealt with according to the same provisions, but
subject to any enactment for the time being in
force regulating the manner or place of
investigating, inquiring into, trying or otherwise
dealing with such offences."
It is thus clear that for the offences under the laws other than
IPC, different provisions can be laid down under a special Act
to regulate the investigation, inquiry, trial, etc. of those
offences. Section 4(2) of the Code protects such special
provisions.
91. Moreover, Section 5 of the Code lays down as under:
"5.Saving.--Nothing contained in this Code shall,
in the absence of a specific provision to the
contrary, affect any special or local law for the
time being in force, or any special jurisdiction or
power conferred, or any special form of procedure
prescribed, by any other law for the time being in
force."
Thus, special provisions contained in the DSPE Act relating
to the powers of CBI are protected also by Section 5 of the
Code.
92. In view of the above specific provisions in the Code, the
powers of CBI under the DSPE Act, cannot be equated with
the powers of the regular State Police under the Code."
(emphasis supplied)
109. The Supreme Court also considered the exceptions to the general rule
with regard to registration of a First Information Report upon information
being received about commission of a cognizable offence. These exceptions
have been discussed from paragraph 115 onwards under the heading
"Exceptions".
110. In paragraph 117, the Supreme Court took note of P. Sirajuddin vs.
State of Madras (supra), wherein it had observed that in the context of
offence relating to corruption by public servants, conduct of a preliminary
enquiry/ proceeding should be resorted to. Some of the conclusions/
directions contained in Lalita Kumari (supra), which are relevant for the
present purpose, read as follows:
"Conclusion/Directions
120. In view of the aforesaid discussion, we hold:
120.1. The registration of FIR is mandatory under Section 154
of the Code, if the information discloses commission of a
cognizable offence and no preliminary inquiry is permissible in
such a situation.
120.2. If the information received does not disclose a
cognizable offence but indicates the necessity for an inquiry, a
preliminary inquiry may be conducted only to ascertain
whether cognizable offence is disclosed or not.
120.3. If the inquiry discloses the commission of a cognizable
offence, the FIR must be registered. In cases where preliminary
inquiry ends in closing the complaint, a copy of the entry of
such closure must be supplied to the first informant forthwith
and not later than one week. It must disclose reasons in brief
for closing the complaint and not proceeding further.
120.4. The police officer cannot avoid his duty of registering
offence if cognizable offence is disclosed. Action must be taken
against erring officers who do not register the FIR if
information received by him discloses a cognizable offence.
120.5. The scope of preliminary inquiry is not to verify the
veracity or otherwise of the information received but only to
ascertain whether the information reveals any cognizable
offence.
120.6. As to what type and in which cases preliminary inquiry
is to be conducted will depend on the facts and circumstances
of each case. The category of cases in which preliminary
inquiry may be made are as under:
(a) Matrimonial disputes/family disputes
(b) Commercial offences
(c) Medical negligence cases
(d) Corruption cases
(e) Cases where there is abnormal delay/laches in initiating
criminal prosecution, for example, over 3 months' delay in
reporting the matter without satisfactorily explaining the
reasons for delay.
The aforesaid are only illustrations and not exhaustive of all
conditions which may warrant preliminary inquiry." (emphasis
supplied)
111. Thus, so far as the CBI is concerned, when it receives information
with regard to commission of a cognizable offence under the PC Act, it is
not obliged to straightaway register an FIR/ RC, in every such case, and in
terms of the procedure prescribed under the Central Bureau of Investigation
(Crime) Manual - 2005 - which though not statutory, and serves as a
guideline for the procedure/ mechanism to be adopted by the CBI, it may
register and conduct a preliminary enquiry if the information received
justifies the adoption of that course of conduct.
112. In the light of the aforesaid legal position, it would be appropriate to
now examine as to how the respondent no. 1/ CBI has proceeded in this
matter. For that purpose, the First PE, the Second PE and the RC need to be
examined as also the status reports filed by the CBI in the Common Cause
PIL may be looked at. The petitioners have sought the disclosure of the
contents of the Status reports filed by the CBI from time to time during the
hearing of the Common Cause PIL. The CBI has not opposed the said
prayer of the petitioners - so far as perusal of the said status reports by this
Court, is concerned. In view of the said stand taken by the CBI, I do not
consider it necessary to delve into the submission of Mr. Krishnan premised
upon Natwar Singh (supra), Ashutosh Verma (supra), Col. S.J. Chowdhary
(supra) and Sidhartha Vashist (supra), since I am allowing the alternative
prayer made by the petitioners in this regard.
What the Status Reports in the Common Cause PIL say
113. The Registry was directed to place before this Court the sealed covers
containing the status reports filed in the common cause PIL from time to
time. The status reports contained in sealed covers have been placed before
me. The sealed covers have been opened and the status reports have been
perused. I may observe that in respect of one of the sealed covers, though
the seal was intact, the adhesive/ lacquer had given way and the cover was,
therefore, open. However, the status report was found placed in the said
cover.
114. The first status report is dated 07.02.2014. The forwarding letter
attached to this status report shows that the same was filed in compliance of
the order dated 27.11.2013 passed by the Court in W.P. (C.) No. 7240/2013.
It discloses that the First PE was registered against unknown persons and
M/s IIL and others in PE AC1 2012 A 0007, New Delhi. It discloses the
background facts relating to registration of the First PE, namely, the
searches conducted by the Income-tax authorities in the premises of IIL on
30.11.2010, when certain documents were recovered and seized by the
Income Tax authorities. They showed certain illegal payments to have been
made by IIL in the name of C.M. Kalra and Abhishek Kalra of STC on
various dates. It also states that business transactions were undertaken by
IIL with STC through Sh. C.M. Kalra and Sh. Abhishek Kalra working as
Chief Manager and Assistant Manager respectively in the Hydrocarbon
Division of STC.
115. It goes on to disclose that during the pendency of the said enquiry,
Mr. Prashant Bhushan, Advocate sent a complaint dated 11.01.2013 against
petitioner no.1, who was the Union Minister of Steel during the relevant
period. It also reveals that the basis of the complaint of Mr. Prashant
Bhushan, Advocate is the excel sheet seized by the Income Tax authorities
from the office of M/s IIL during searches on 30.11.2009. The allegation in
the said complaint was that IIL had made illegal payments to Shri Vir
Bhadra Singh as reflected in the seized Excel sheets - which disclosed the
use of the acronym/abbreviation "VBS". With due approval of the
competent authority, the complaint of Mr. Prashant Bhushan against the
petitioner no.1 herein was also enquired into in the First PE. The status
report also sets out the result of the enquiry carried out till the making of the
said status report.
116. It is not necessary to delve into the aspects which had been enquired
into by the CBI during the First PE qua the petitioners herein, since these
aspects have been clearly set out in the Second PE, as well in the FIR/ RC.
This status report proceeds to state that in order to ascertain the quid pro
quo, relevant records/ files pertaining to IIL dealt in the Ministry of Steel,
and visitors record of Ministry of Steel during the period Shri Vir Bhadra
Singh was a Central Minister in the said Ministry has been requisitioned
from the Ministry of Steel, Udyog Bhawan, New Delhi. It also, inter alia,
records that the officers/ representatives of IIL, who were dealing with the
Ministry of Steel during the period of payment shown in the name of 'VBS'
are being identified. In the month of April, 2011, M/s IIL had been taken
over by M/s JSW Ispat Limited and most of the employees had left the jobs
and even the offices have been changed. The status report records that
certain files/ record relevant to the allegations leveled in the petition are yet
to be received and witnesses and suspects, including Sh. Vir Bhadra Singh
are yet to be examined.
117. The next status report, which is dated 16.04.2014, also, does not
disclose any additional facts, which do not find mention in the Second PE.
It records that the PE is in progress to ascertain the veracity of the
allegations made against the petitioner in the writ petition, i.e. Common
Cause PIL and the intervention application. It states that certain files/
records relating to the enquiry are yet to be received, and some witnesses are
yet to be examined.
118. There is one report found in the sealed covers - which appears to be
the third status report, which is neither dated nor signed by any officer of the
CBI. This status report, inter alia, states that though during the course of
search (at the premises of IIL), various evidence of tax evasion by M/s Ispat
Group of Companies were recovered and seized, which included certain
documents indicating cash receipts and cash payments made to various
persons whose abbreviations, inter alia, included 'VBS' and whose full
particulars (full form) were not available, the abbreviated forms - including
the term "VBS" could not be attributed to any specific person, including Sh.
Vir Bhadra Singh. It also mentions that the issues investigated included the
issue of agricultural income and the amounts of money paid by Sh. Anand
Chauhan as premium for LIC policies of Sh. Vir Bhadra Singh and his
family members, and that such investigation are still in progress. It makes a
reference to the centralization of seven income-tax cases with DCIT, Central
Circle - I, Chandigarh and states that eleven other cases related to the
subject matter are in process of being centralized. It also discloses that a
writ petition had been filed by Sh. Anand Chauhan before the High Court of
Himachal Pradesh at Shimla, wherein the said High Court had stayed the
centralization order. Sh. Vir Bhadra Singh had also challenged the
centralization order, which had been stayed by the High Court. It records
that the stay granted by the Himachal Pradesh High Court on centralization
has hampered the progress of investigation. It further records that based on
available facts and evidence, the Income-Tax Department has undertaken
necessary investigation into the allegations against Shri Vir Bhadra Singh
and persons associated with him as per the provisions of the Income-Tax
Act.
119. Though the list of seven centralized cases, and another list of eleven
cases in process of centralization, and the report of investigation along with
its present status (described as Annexure - A) are found, the same do not
bear the annexure mark as Annexure - A. However, its perusal shows that it
is the report of investigation in relation to the income-tax cases of Sh. Vir
Bhadra Singh and related entities.
120. Apart from the aforesaid reports, there is a final status report in
relation to the First PE dated 29.08.2014 placed on record. This final status
report also narrates the findings of the preliminary enquiry premised on the
complaint made by Mr. Prashant Bhushan, Advocate against the petitioner
no.1 herein, which was also included within the ambit of the First PE. This
status report also records that the Manager - Accounts of M/s IIL admitted to
have made entries in the excel sheets on the instructions of Director,
Corporate Affairs and ED, Finance of M/s IIL and other persons as recorded
against the entries. However, the same had been denied by the mentioned
individuals. During proceedings conducted by the Income-Tax Department,
the Manager (Accounts) had denied any kind of knowledge about the entries
made in the excel sheets discovered by the IT authorities from the office of
IIL. The Manager (Accounts) denied any knowledge about the identity of
"VBS". The Ministry of Steel also denied having any records pertaining to
any matter of M/s IIL having been dealt with by the then Minister of Steel.
The Ministry of Steel replied that no proposal of M/s IIL had been either
approved or sanctioned during the tenure of Sh. Vir Bhadra Singh as Union
Minister of Steel. Sh. Vir Bhadra Singh had denied any monetary
transaction/ dealings with M/s IIL, and added that neither had he dealt with
any proposal of M/s IIL, nor extended any favour to the said firm. The
explanation furnished by Sh. Vir Bhadra Singh with regard to filing of
revised ITR is also recorded. It records that the enquiry could not
conclusively establish that "VBS" mentioned in the excel sheets refers to the
petitioner no. 1 herein, Sh.Vir Bhadra Singh, as alleged by the complainant
Mr. Prashant Bhushan. The conclusions recorded in this final status report,
read as follows:
"Conclusions:-
I. That instant PE could not conclusively establish that
the entries mentioned in the excel sheets as "VBS" refer
to Sh. Vir Bhadra Singh, the then Union Steel Minister
and presently Chief Minister, Himachal Pradesh.
Further, no undue favours could be established to have
been extended by Sh. Vir Bhadra Singh to M/s IIL during
his tenure as Union Steel Minister. In this perspective,
there is no scope of registering a criminal case in
respect of alleged payments of illegal gratification by
M/s IIL to Sh. Vir Bhadra Singh, or alleged criminal
misconduct on the part of Shri Vir Bhadra Singh by
way of abusing his official position.
II. That in connection with submission of revised ITRs by
Shri Vir Bhadra Singh for the AY 2009-10 to 2011-12,
various discrepancies and latches observed in the
explanations/ documents/ records submitted by Shri
Anand Chauhan and M/s Universal Apple Associates,
point towards an effort on the part of Shri Vir Bhadra
Singh to camouflage these cash deposits as income from
apple orchards. These discrepancies create huge
suspicions about the genuineness of these efforts, and as
a result, this income of Sh. Vir Bhadra Singh has
remained unexplained during the enquiry. Though the
relevant records have been fabricated by private
individuals i.e. Sh. Anand Chauhan and M/s Universal
Apple Associates, yet the ultimate beneficiary of such
acts was none other than Sh. Vir Bhadra Singh himself,
and hence his knowledge of these fraudulent acts is
palpably evident.
III. That instant enquiry could not link the "un-explained
income" of Sh. Vir Bhadra Singh with any specific
corrupt activity on his part, while he was working as
Union Steel Minister. As per records, Sh. Vir Bhadra
Singh never showed any undue favour as a public
servant, with regard to matters of M/s IIL pending with
the Ministry of Steel.
IV. That such an "un-explained income", however, gives
rise to a strong suspicion of the same being ill-gotten
wealth/ assets, disproportionate to the known sources of
income of Sh. Vir Bhadra Singh as a public servant.
This aspect, being beyond the scope of this PE, has not
been looked into so far. A detailed enquiry is, therefore,
required, fixing an appropriate check period (May,
2009 to January, 2011, i.e. his tenure as Union Steel
Minister) and accounting for the incomes, assets and
expenditure of Sh. Vir Bhadra Singh, to examine
whether or not a viable Disproportionate Assets (DA)
case is made out against him.
V. That the aspects of forgery and falsification of documents
which support creation of additional income on the part
of Shri Vir Bhadra Singh would constitute subsidiary
offences, if a viable DA case is made out against him and
his associates.
VI. It has come to light that that the first ITR for the AY
2011-12 was filed by Shri Vir Bhadra Singh on
11.07.2011 showing his agricultural income as Rs. 25
lakhs. The revised ITR for this year, showing an income
of Rs.1.55 crores was filed by him on 02.03.2012.
Thereafter, while contesting HP Assembly elections, he
filed an affidavit on 17.10.2012 showing his income as
Rs. 18.66 lakhs only. Thus, Shri Vir Bhadra Singh
appears to have grossly suppressed his income in the
said affidavit. This matter is proposed to be brought to
the notice of the Election Commission of India, for taking
necessary action as deemed fit.
Prayer:
It is, therefore, concluded that sufficient material
is not available for registration of a criminal case in
respect of the allegations of payment of bribe by M/s
IIL to Shri Vir Bhadra Singh, and abuse of official
position by Shri Singh by way of showing undue
favours to M/s IIL. However, it is proposed to probe the
unexplained income of Shri Vir Bhadra Singh from
Disproportionate Assets perspective by registering a
fresh PE in that matter. Since this Hon'ble Court is
seized of the issue, this Final Status Report is being
submitted for orders, if any, before proceeding further."
(emphasis supplied)
121. Thus, the status reports filed by the CBI during the proceedings of the
common cause PIL are no different from the factual narration contained in
the Second PE. During the course of the First PE, the complaint of Mr.
Prashant Bhushan, Advocate - followed by the common cause PIL,
surfaced. Both of them sought to link the disclosure of the abbreviation
"VBS" in the Excel Sheets recovered by the Income-Tax authorities during
raid on the premises of M/s IIL with the petitioner no.1, and also contained
other allegations to suggest the trail of the money, allegedly received by
petitioner no.1 herein from M/s IIL, to the purchase/ acquisition of LIC
policies in the names of the petitioners and their family members by
showing the source of the funds as horticultural income. Apparently, on
account of the alleged link claimed by Mr. Prashant Bhushan, Advocate in
his complaint and in the common cause PIL, the preliminary enquiry on the
aspects alleged in the said complaint/ Common Cause PIL was done within
the ambit of the First PE. However, the CBI could not, prima-facie,
establish the allegation that the abbreviation 'VBS' found in the Excel sheets
of M/s IIL pertained to the petitioner no. 1, Shri Vir Bhadra Singh. It could
not establish the "quid pro quo" for the alleged payments shown to have
been made by IIL to "VBS" - if "VBS" stood for petitioner no. 1 Vir Bhadra
Singh. Thus, the alleged link between the alleged payment to 'VBS' by IIL,
with the investment made by petitioner no.1 in the LIC policies purchased in
the name of Shri Vir Bhadra Singh and his family members from the alleged
horticultural income could also not be established. Instead, a possible case
of possession of disproportionate assets (while petitioner no.1 was a Central
Minister) emerged, which was beyond the scope of the First PE and,
consequently, the Second PE came to be registered to probe the same. It is,
thus, clear that the First PE was closed, and Second PE came to be registered
on account of the CBI not being able to link up the payments shown to have
been made by M/s IIL to "VBS" with petitioner no.1 herein and, instead, the
CBI finding a possible case of possession of disproportionate assets while
the petitioner no.1 was a Central Minister.
122. A perusal of the First PE shows that the same pertains to the possible
commission of offence under Section 7 and Section 13(1)(d) read with
Section 13(2) of the PC Act, but certainly not to the offence under Section
13(1)(e) read with Section 13(2) of the said Act. Moreover, it was directed
against unknown officials of State Trading Corporation, New Delhi,
unknown officials of M/s IIL and other unknown persons. The Second PE
was registered on 17.06.2015 since the "unexplained income" of petitioner
no.1 gave "rise to a strong suspicion of the same being ill-gotten wealth/
assets, disproportionate to the known sources of income of Shri Vir Bhadra
Singh acquired during the period 2009-11 when he was the Union Minister
of Steel.". Consequently, the Inspector of the CBI "requested that a
Preliminary Enquiry may please be registered for fixing an appropriate
check period and accounting for the incomes, assets and expenditure of
Shri Virbhadra Singh to examine whether or not a viable Disproportionate
Assets (DA) case is made out against him during the period when he was
Union Minister in GOI.". As a result of this exercise, the Second PE was
"registered for fixing an appropriate check period and accounting for the
incomes, assets and expenditure of Shri Vir Bhadra Singh, to examine
whether or not a viable Disproportionate Assets (DA) case is made out
against him during the period when he was Union Minister in GOI.".
(emphasis supplied)
123. The possible offence under enquiry in the First Preliminary Enquiry
necessarily involved officers of M/s IIL, since it was alleged that the illegal
gratification was paid to officers of STC and other unknown persons by
them. However, the Second PE was registered and undertaken in respect of
a possible offence under Section 13(1)(e) read with Section 13(2) of the PC
Act while petitioner no.1 was serving as a Central Minister in Delhi.
124. The said two offences are distinct and different. They may, or may
not, overlap. They were not found to be connected, or part of the same
transaction. In R. Vasudevan (supra) this Court was dealing with the
petitioner's plea for joint trial of two cases - one under Section 13(2) r/w S.
13(1)(e) of the PC Act, and the other under Sections 7,8,12 r/w S. 13(2) and
S. 13(1)(d) of the PC Act, further read with Section 120 B IPC. This Court
did not direct the joint trial of the said cases by observing that the
ingredients of the two cases are different. Reference was also made to V.K.
Puri (supra). This Court, inter alia, observed:
9. In the present case, it was contended by the learned counsel
for the petitioner that, as both the offences under Section
13(1)(d) and Section 13(1)(e) PC Act are punishable under
Section 13(2) PC Act, hence they shall be considered to be of
the same kind in view of Section 219 CrPC and be tried
together. This contention of the learned counsel for the
petitioner is misplaced and misconceived. The offences under
Section 13(1)(d) and 13(1)(e) of the PC Act, although relate to
the same subject, are distinct in their application and
ingredients.
10. In the case of V.K. Puri v. CBI (2007) 6 SCC 91, the
Hon'ble Supreme Court held thus,
"9. A distinction exists between a case filed under
Sections 13(1)(c) and 13(1)(d) of the 1988 Act, on the
one hand, and Section 13(1)(e) thereof, on the other.
Ingredients of the offence under Section 13(1)(e) of the
1988 Act are:
(i) The accused is a public servant;
(ii) The nature and extent of the pecuniary resources of
property found in his possession;
(iii) His known sources of income, i.e., known to the
prosecution.
(iv) Such resources or properties found in possession of
the accused were disproportionate to his known sources
of income.
Once, however, the aforementioned ingredients are
established by the prosecution, the burden of proof would
shift on the accused to show that the prosecution case is
not correct.
13. In a case involving Section 13(1)(e) of the 1988 Act,
what is necessary is as to whether keeping in view the
period in question, commonly known as check period, the
public servant has acquired wealth which is
disproportionate to his known sources of income. It has
nothing to do with individual case of bribery. It has
nothing to do with a series of acts culminated into an
offence. Each Court, where a part of the offence has been
committed, would, therefore, be entitled to try an
accused".
11. Further, in a case under Section 13(1)(e) PC Act, once the
ingredients of the offence are established by the prosecution,
the burden of proof, shifts on the accused person to account for
the pecuniary resources and properties found in his possession
in the relevant check period. However, in cases where the
public servant is alleged to have taken illegal gratification, the
burden of proof to prove the offence under Section 13(1)(d) of
the PC Act is on the prosecution and not on the accused.
Hence, the approach of the prosecution, in both the cases will
be different and independent." (emphasis supplied)
The offence of acquisition of disproportionate assets under Section 13
(1)(e) r/w Section 13(2) of the PC Act may, or may not be, linked to a case
under Section 7 and 13(1)(d) r/w S. 13(2) of the PC Act. Thus, when the
First PE was registered, there was absolutely no material available with the
CBI to suspect the commission of any offence by petitioner no. 1, much less
the commission of the offence under Section 13(2) read with Section
13(1)(e) of the PC Act. The information received by the CBI - in the form
of representation of Mr. Prashant Bhushan or the Common Cause PIL with
regard to link up between IIL and petitioner no. 1 could not be established.
However, the preliminary enquiry did suggest the commission of the offence
under Section 13(2) read with 13(1)(e) of the PC Act. Thus, the Second PE
was registered to fix the check period.
125. Reliance placed by Mr. Krishnan on TT. Anthony (supra) appears to
be misplaced. This is for the reason that in TT. Anthony (supra), the Court
was concerned with registration of a subsequent FIR in relation to the same
instance/ offence. In the present case, the CBI did not register the FIR/ RC
and registered the First PE, as noted above, in relation to a possible offence
involving payment of illegal gratification by officers of M/s IIL to officers
of STC and other unknown persons. The same did not relate to possible
commission of an offence under Section 13(1)(e) read with Section 13(2) of
the PC Act. Thus, the present case does not involve registration of two
FIRs/ RCs under Section 154 Cr.P.C., as only a preliminary enquiry was
registered on 19.10.2012, i.e. the First PE. Since it could not be verified that
payments were allegedly made by officers of M/s IIL to petitioner no.1, the
said PE was closed.
126. Tapan Kumar Singh (supra) is also of no avail to the petitioners,
firstly, for the reason that when the First PE was registered there was no
definite information linking the alleged payments made by M/s. IIL to
petitioner no.1. At that stage, the complainant of Mr. Prashant Bhushan and
the Common Cause PIL were also not made. Even after they surfaced, the
allegations made by Mr. Prashant Bhushan, Advocate in his representation
dated 11.01.2013 seeking to link the payments of illegal gratification
allegedly made by M/s IIL to "VBS" could not be established. However,
what emerged during the said preliminary enquiry (after the enlargement of
its scope) was that a possible case of disproportionate assets may be made
out against petitioner no.1/ Sh. Vir Bhadra Singh. Thus, it cannot be said
that the First PE, or the complaint of Mr. Prashant Bhushan, or the Common
Cause PIL could, or should have been treated as a regular case FIR. Neither
of them were treated as an FIR/a regular case. Otherwise, the First PE - even
after the enlargement of its scope could not have been closed by the CBI on
its own. The report would, necessarily have been filed before the ld. Special
Judge. That course of action was not adopted. Simultaneously, with the
closing of the First PE, the Second PE was registered.
127. Reliance placed by Mr. Krishnan on Amitbhai Anilchandra Shah
(supra) is also misplaced. In this case as well, initially a First Information
Report had been registered in relation to the alleged offence. The State filed
the charge-sheet after a gap of 3½ years. The Supreme Court vide its
judgment in Narmada Bai Vs. State of Gujarat, (2011) 5 SCC 79 rejected
the investigation conducted/ concluded by the State police and directed the
State police authorities to handover the case to the CBI. After investigation,
CBI filed a fresh FIR dated 29.04.2011 against various police officials of the
States of Gujarat and Rajasthan and others, for acting in furtherance of a
criminal conspiracy to save themselves from legal consequences of their
crime by causing disappearance of human witness, i.e. Tulsiram Prajapati by
murdering him on 28.12.2006 and showing it off as a fake encounter. In the
said case, the charge-sheet dated 04.09.2012 was filed before the Court of
the Judicial Magistrate First Class. The petitioner was aggrieved by the
registration of the fresh FIR dated 29.04.2011 and the filing of the charge-
sheet dated 04.09.2012, since he was arrayed as A-1 in the said charge-
sheet. The Supreme Court observed that the prayer in the writ petition
shows that the petitioner was not seeking quashing of the investigation. He
only sought quashing of the second FIR dated 29.04.2011 and also prayed
that the charge-sheet dated 04.09.2012 filed in respect of the said subsequent
FIR be treated as a supplementary charge-sheet in the first FIR being RC
No.4S/2010.
128. At this stage itself, I may observe that in the present case, the
petitioners are seeking quashing of the RC/ FIR, which is the only RC/ FIR
registered. Thus, on facts, the situation dealt with by the Supreme Court in
Amitbhai Anilchandra Shah (supra), the situation arising in the present is
the entirely different since, in the present case, there is only one RC/ FIR
registered. The conclusions drawn by the Supreme Court in Amitbhai
Anilchandra Shah (supra) read as follows:
"Conclusion
59. In the light of the specific stand taken by CBI before this
Court in the earlier proceedings by way of assertion in the form
of counter-affidavit, status reports, etc. we are of the view that
filing of the second FIR and fresh charge-sheet is violative of
fundamental rights under Articles 14, 20 and 21 of the
Constitution since the same relate to alleged offence in respect
of which an FIR had already been filed and the court has taken
cognizance. This Court categorically accepted CBI's plea that
killing of Tulsiram Prajapati is a part of the same series of
cognizable offence forming part of the first FIR and in spite of
the fact that this Court directed CBI to "take over" the
investigation and did not grant the relief as prayed, namely,
registration of fresh FIR, the present action of CBI filing fresh
FIR is contrary to various judicial pronouncements which is
demonstrated in the earlier part of our judgment.
60. In view of the above discussion and conclusion, the
second FIR dated 29-4-2011 being RC No. 3(S)/2011/Mumbai
filed by CBI is contrary to the directions issued in judgment and
order dated 8-4-2011 by this Court in Narmada Bai v. State of
Gujarat [(2011) 5 SCC 79 : (2011) 2 SCC (Cri) 526] and
accordingly the same is quashed. As a consequence, the
charge-sheet filed on 4-9-2012, in pursuance of the second FIR,
be treated as a supplementary charge-sheet in the first FIR. It is
made clear that we have not gone into the merits of the claim of
both the parties and it is for the trial court to decide the same in
accordance with law. Consequently, Writ Petition (Crl.) No.
149 of 2012 is allowed. Since the said relief is applicable to all
the persons arrayed as accused in the second FIR, no further
direction is required in Writ Petition (Crl.) No. 5 of 2013."
129. These conclusions were drawn by the Supreme Court in the
background that there was an earlier FIR in respect of the same alleged
offence, which formed the subject matter of the subsequent FIR. For the
same reasons, reliance placed on Babubhai (supra) by Mr. Krishnan appears
to be misplaced. In this case as well, there were two FIRs registered. The
Supreme Court in para 12 of this decision observed as follows:
"21. In such a case the court has to examine the facts and
circumstances giving rise to both the FIRs and the test of
sameness is to be applied to find out whether both the FIRs
relate to the same incident in respect of the same occurrence or
are in regard to the incidents which are two or more parts of
the same transaction. If the answer is in the affirmative, the
second FIR is liable to be quashed. However, in case, the
contrary is proved, where the version in the second FIR is
different and they are in respect of the two different
incidents/crimes, the second FIR is permissible. In case in
respect of the same incident the accused in the first FIR comes
forward with a different version or counterclaim, investigation
on both the FIRs has to be conducted".
130. There can be no quarrel with the proposition that in relation to the
same incident i.e. in respect of the same occurrence, or in regard to the
incident which are two or more parts of the same transaction, a second FIR
cannot be registered and, if so registered, the same shall be liable to be
quashed. However, as noticed herein above, firstly, in the present case, there
is only one FIR/RC registered by the CBI under Section 13(2) read with
section 13(1)(e) of the PC Act and section 109 IPC. Secondly, the First PE
related to possible offences under Section 7 and Section 13(2) read with
section 13(1)(d) of the PC Act, and certainly not Section 13(2) read with
section 13A(1)(e) of the PC Act, whereas, the Second PE relates to the
possible offences under Section 13(2) read with section 13(1)(e) of the PC
Act and section 109 IPC. They are not shown to be part of the same series of
acts/omission or part of the same transaction.
131. So far as reliance placed on Vineet Narain (supra) is concerned,
firstly, no specific provision of the said manual has been adverted to claim
its breach. In any event, breach of the provisions of the said manual may
lead to disciplinary action against the official concerned. The so called
alleged breaches of the CBI manual do not afford a ground to the petitioners
to seek the quashing of the FIR/RC.
132. The submission of Mr. Krishnan that the First PE (after enlargement
of its scope on account of the representation made by Mr. Prashant Bhushan
and the Common Cause PIL) itself tantamount to a FIR/ RC cannot be
accepted also for the reason that, if that were the case, the same could not
have been closed by the CBI on its own, and the CBI would have been
obliged to file a report on completion of investigation under Section 173
Cr.P.C. before the competent Court. Even if the procedure prescribed under
Section 157 (1)(b) were to be adopted, the report would necessarily have to
be filed before the Competent Court in compliance of Section 157(2)
Cr.P.C. In the present case, it is not the submission of the petitioners that
the CBI treated the First PE - with its enlarged scope, as a Regular Case/ RC
and that it had filed a closure report. In fact, the position is to the contrary.
The conclusions recorded in the final status report filed by the CBI in the
Common Cause PIL, which have been extracted hereinabove, clearly bring
out the reason for closing the First PE, and also the reasons for opening the
Second PE. Thus, the scope of the First PE, and that of the Second PE were
materially different. The closing of the First PE did not tantamount to
closing of a Regular Case/FIR. The submissions of Mr. Krishnan are
meritless and, therefore, rejected.
133. I may now turn to the submissions advanced by Mr. Sibal. Primarily
his submissions are two-fold. The first is that the registration of the FIR/ RC
at Delhi by the CBI is without jurisdiction on account of lack of territorial
jurisdiction in the Special Judge at Delhi to try the alleged offence. The
second is that the CBI cannot carry out investigation in the State of
Himachal Pradesh in the FIR/ RC in question, on account of lack of consent
given by the State Government of Himachal Pradesh under Section 6 of the
DSPE Act.
134. So far as the first submission of Mr. Sibal is concerned, I do not find
any merit in the same. As noticed hereinabove, the FIR/ RC has been
registered alleging offences under section 13(2) and Section 13(1)(e) of the
PC Act and Section 109 IPC while petitioner no.1 was serving as the Union
Minister during the check period at Delhi. During that period, petitioner
no.1 drew his salary as a Union Minister at Delhi.
135. In V.K. Puri (supra), the Supreme Court dealt with the aspect of
determination of the territorial jurisdiction of Special Courts in relation to
cases under the P.C. Act. In this case, the appellant V.K. Puri was working
as an officer of the Customs Department. The CBI registered the FIR/RC
against him for commission of offence under Section 13(2) read with
Section 13(1)(e) of the P.C. Act, namely, acquiring assets disproportionate
to his known sources of income during the check period. V.K. Puri assailed
the territorial jurisdiction of the special courts at Delhi on the ground that
during the check period he had never been posted in Delhi. This submission
of V.K. Puri was rejected by the learned Special Judge, as also by this Court.
136. The submission of V.K. Puri was that the situs of the properties said
to have been acquired out of income of the public servant would not confer
jurisdiction upon the Court. According to V.K. Puri, for the purpose of
territorial jurisdiction, the only relevant fact would be as to where the public
servant concerned committed acts of misconduct or abused his official
position - which would be the place or places where he held his office.
137. Before proceeding further, I may observe that in the present case, the
facts are materially different. The petitioner no.1 served as a Union Minister
under the Central Government at New Delhi during the check period. While
V.K. Puri contended that the place where the public servant held his official
position during the period when the misconduct is alleged, would give
jurisdiction to the Special Judge at such place, the petitioners contend
otherwise. Thus, the observations made by the Supreme Court in V.K. Puri
(supra) need to be examined in the light of the facts that the said case
presented before the Supreme Court, and in the light of the contentions
advanced before it.
138. In para 15 of this decision, the Supreme Court observed as follows:
"15. One of the ingredients of offences, therefore, is known
sources of income. What is material therefore is that the
criminal misconduct had been committed during the period the
accused held office and not the places where he had held
offices. The fact that the appellant had bank accounts within
the jurisdiction of the Delhi Courts as also immovable
properties is not in dispute. The respondent in the charge-
sheet has clearly pointed out that one of his known sources of
income was the rental received by him from his Delhi flat. The
same had been given due credit for the purpose of arriving at a
prima facie satisfaction that the assets possessed by him are
disproportionate to his known sources of income."
[ emphasis supplied ]
139. In para 16 of this decision, the Supreme Court, inter alia, observed:
"16. .......... For the purpose of proving the offence, therefore,
on the one hand, known sources of income must be
ascertained vis-à-vis the possession of property or resources
which were disproportionate to the known sources of income of
public servant and the inability of the public servant to account
for it, on the other. ........." [ emphasis supplied ]
140. In para 21 of this decision, the Supreme Court further observed:
"21. Each court, where a part of the offence has been
committed, would, therefore, be entitled to try an accused. The
1988 Act does not bar application of Section 178 of the Code of
Criminal Procedure. If application of the provision of Section
178 of the Code of Criminal Procedure is not barred, the fact
that the appellant has a part of his known sources of income
at Delhi, in our opinion, would confer jurisdiction upon the
Delhi Courts."
[ emphasis supplied ]
141. Since one of the known sources of income of petitioner no.1, while he
was serving as a Union Minister at Delhi - which is the check period, was
his salary which he derived at Delhi, the same would give jurisdiction to the
Special Judge at Delhi.
142. The observation made by the Supreme Court in para 15 that, "what is
material therefore is that the criminal misconduct had been committed
during the period the accused held office and not the places where he had
held offices" (emphasis supplied), has to be understood and appreciated in
the context of the facts of that case, and the submissions under consideration
by the Supreme Court. This is evident from the observation made by the
Supreme Court in para 17 of this decision to the effect that, 'The question of
finding out the place where the offence was completed, thus, does not arise
in this case'. It is well settled position in law that a judgment cannot be read
as a statute and interpreted like a statute. The observations made in a
judgment have to be appreciated in the context in which they have been
made. Thus, the observations of the Supreme Court in para 15 of V.K. Puri
(supra) have to be understood in the light of the factual background of the
case, namely, that the FIR/RC was registered at Delhi; V.K. Puri had not
served during the check period at Delhi; he was deriving rental income at
Delhi; and his submission was that the offence under Section 13(2) read with
Section 13(1)(e) of the P.C. Act would be completed at the place where the
public servant is posted during the check period. Since Supreme Court found
that the Special Judge at Delhi had jurisdiction - on account of the fact that
one of the known sources of income i.e. the rental income was derived in
Delhi, and V.K. Puri had a property located in Delhi, the question of finding
out the place where the offence had taken place did not arise in that case.
The said observation cannot be read to mean that no part of the cause of
action would arise at the place where the public servant discharged his duties
during the check period. The place where the public servant served/was
posted during the check period would, obviously, be the place where the
offence was committed, and would be one such place where the alleged
offence under Section 13(2) read with Section 13(1)(e) of the PC Act could
be tried. This is evident from Section 4(2) of the PC Act which, inter alia,
provides that "Every offence specified in sub-section (1) of section 3 shall be
tried by the special Judge for the area within which it was committed, or, as
the case may be, by the special Judge appointed for the case, or, where there
are more special Judges than one for such area, by such one of them as may
be specified in this behalf by the Central Government." Thus, in the present
case, the ld. Special Judge at Delhi had jurisdiction to try the offence not
only because one of the known sources of income of petitioner no.1 was at
Delhi, but also because he served as a public servant at Delhi during the
check period i.e. where the offence was committed.
143. Surinder Singh Ahluwalia (supra) has been relied upon by Mr. Sibal,
as well as by the learned ASG Mr. Patwalia. In this case, the Division
Bench of this Court was dealing with a writ petition seeking the quashing of
the FIR/RC registered by the DSPE/CBI u/s 5(2) read with section 5(1)(e) of
the PC Act, 1947 (which corresponds to section 13(2) read with section
13(1)(e) of the PC Act, 1988), and the investigation conducted pursuant to
the registration of the said FIR/RC. The petitioner Surinder Singh
Ahluwalia was serving as Chief Secretary to the Govt of Nagaland. He was
inducted into the IAS cadre upon his success in the Central Government
Services Competitive Examination held in 1968 by the UPSC and was
allotted to the State of Nagaland. During the relevant period i.e. between
1971 to 1987, he served at Nagaland in various capacities, and also as
Director, Police Division, Ministry of Home Affairs, Govt of India and
Director in the Policy Planning Division, Department of Personnel Affairs
and Administrative Reforms, New Delhi. The Chief Minister of the State of
Nagaland communicated the questionable conduct of the petitioner to the
Union Minister of State for Home on 04.12.1986 alleging acquisition of
properties by the petitioner, inter alia, at New Delhi. The Chief Minister
desired investigation of the case by the CBI and conveyed its consent for
investigation by the CBI into the alleged misconduct of the petitioner.
Consequently, the FIR/RC came to be registered on 24.03.1987 in respect of
alleged offences u/s 5(2) read with section 5(1)(e) of the PC Act, 1947. The
place of occurrence was mentioned as Delhi, Nagaland and other places and
the date and time of occurrence i.e. the check period was mentioned as 1975
to 31.12.1986.
144. On the aspect of territorial jurisdiction of the CBI to register a case at
Delhi, the Division Bench referred to section 177 and 178 of the Code.
While dealing with the submission of the petitioner that the allegations
contained in the FIR/RC did not disclose the commission of an offence u/s
5(1)(e) read with section 5(2) of the PC Act, 1947, the Division Bench, inter
alia, observed:
"21. ... ...... ....
(1) ......the public servant should either be in possession or
someone else on his behalf may be in possession of pecuniary
resources or property disproportionate to his known sources of
income or the public servant or any person on his behalf at any
time during the period of his office been in possession of
pecuniary resources or property disproportionate to his known
sources of income in respect of which the public servant may
not be able to satisfactorily account. The FIR clearly recites
information has been received through a reliable source that
Shri S. S. Ahluwalia while functioning in different capacities
in Nagaland and Delhi from 1975 to 31-12-1986 had been
indulging in corrupt activities and malpractices and amassed
assets disproportionate to his known sources of income. It is
noteworthy that the petitioner remained in Delhi from July,
1978 to March, 1984........." [ emphasis supplied ]
145. The Division Bench rejected, inter alia, the submissions of the
petitioner with regard to lack of territorial jurisdiction and dismissed the writ
petition.
146. Pertinently, the registration of the FIR/RC by the CBI at Delhi was
found to be justified on the premise that the petitioner had remained in
service in Delhi during the period July 1978 to March 1984, and while in
service, he had acquired property in Delhi, which was allegedly a part of the
assets found to be disproportionate to the known sources of income of the
petitioner during the check period. In the instant case, the entire check
period pertains only to the period when petitioner No.1 was a public servant
serving as a Union Minister under the Central Government at Delhi and also
drew his salary - a known source of income a Delhi. Thus, Surinder
Singh Ahluwalia (supra) supports the case of the CBI more than that it
supports the case of the petitioner on the aspect of territorial jurisdiction of
the Ld. Special Judge (CBI) at Delhi to deal with the case /RC in question.
147. The petitioners have also placed reliance on the judgment of this court
in Manoj Kumar Aggarwal (supra). In this case, the petitioners sought the
quashing of the RC registered by the CBI under Section 13(2) read with
section 13(1)(e) of the PC Act and section 109 IPC. The petitioner joined as
an IAS probationer in August 1990 and was allotted the West Bengal Cadre.
He continued to serve in West Bengal till October 2003. He was selected
for Central deputation in October 2003 as Deputy Secretary in the Ministry
of Personnel, Public Grievances and Pensions. From October 2009 to June
2010, he was posted as Commissioner (L&D), DDA by the Central Govt.
Upon expiry of his central deputation, he rejoined the State of West Bengal.
While the petitioner was posted as Commissioner (L&D), DDA, New Delhi,
the RC in question was registered against him alleging amassing of
disproportionate assets. The check period was fixed as 20.08.1990 to
30.06.2008. Thus, out of the check period of 18 years, he was employed
with the State of West Bengal for 13 years odd, and for the remaining period
he was on Central deputation at New Delhi. The petitioner assailed the RC
on the premise that the check period includes the period spent by the
petitioner with the Govt. of West Bengal between August 1990 to October
2003. He contended "that the Central Government or the DoPT does not
have the jurisdiction to grant/ entertain sanction for the above mentioned
period " (emphasis supplied). Thus, the issue raised by the petitioner in that
case, apparently, pertained to the grant of "sanction" and not "consent"
under Section 6 of the PC Act.
148. On the other hand, the contention of the CBI was that section 6 of the
DSPE Act was not applicable to the petitioner "on account of the fact that
on the date of registration of the case, the petitioner was posted as
Commissioner (L&D), DDA which is a central deputation and thus it is the
Central Government/ DoPT that has full competence to grant sanction for
the entire check period" (emphasis supplied). It was also contended by the
CBI that under Section 3 of the DSPE Act, the consent has been given by
the Central Government, thereby vesting jurisdiction in the CBI to
investigate into the matter.
149. The learned Single Judge of this Court referred to R.S. Nayak v. A.R.
Antulay, (1984) 2 SCC 183, which deals with the aspect of need for sanction
to prosecute where the public servant had ceased to hold the office which he
had allegedly abused to commit the offence under investigation, and
observed:
"12 ... ... Since on the day the FIR is registered, the
petitioner was Commissioner, (L&D), DDA, New Delhi; the
CBI has duly exercised its powers without any consent under
section 6 from the Government of West Bengal.
13. Further since the check period constitutes of the
period during the postings with State Government as well as
some tenure of the Central Deputation, I am of the view that
it was sufficient for the investigating agency, which is CBI in
the present case, to choose either mode of investigation, that
is to say, to either seek consent of the State Government under
section 6 DSPE Act or abide by section 3 of the DSPE Act and
seek consent of the Central Government. From the pleadings
of the CBI, it is revealed that it chose to follow the mandate
under section 3 DSPE Act since the check period included the
period of central deputation as well as due to the fact that on
the date of registration of RC, the Petitioner had ceased to be
under the control of the Government of West Bengal nor was
he managing the affairs of the Government of West Bengal".
150. The submission of the petitioner that because the majority of the
check period pertained to the service of the petitioner under the State of
West Bengal, the CBI ought to have taken consent under Section 6 of the
DSPE Act was rejected, since on the day when the RC was registered
against the petitioner, he was on central deputation and was stationed at
Delhi. The court further observed that the RC revealed:
"15. .... that a majority of the assets, which are subject-matter
of the offence, are in Delhi while some are in Gaziabad,
NOIDA, Punjab, Mathura etc. No asset has been mentioned in
the RC to be situated /located in the State of West Bengal. ...."
151. Manoj Kumar Aggarwal (supra) is relied upon by the petitioners to
submit that non adherence to section 6 of the DSPE Act was not considered
relevant and material on account of the fact that, in the said case, at the time
of registration of the RC the petitioner was posted on deputation at Delhi as
Commissioner (L&D), DDA. However, in the present case, at the time of
registration of the RC, the petitioner is serving as the Chief Minister of the
State of Himachal Pradesh.
152. In my view, the reliance placed by the petitioners on Manoj Kumar
Aggarwal (supra) is not apposite in the facts of the present case. This is for
the reason that the check period in the present case - in relation to which the
RC has been registered, pertains only to the period when the petitioner no.1
was a Union Minister in the Central Govt. and was, therefore, serving as a
public servant at Delhi. Pertinently, the issue of lack of "sanction" raised by
the petitioner in Manoj Kumar Aggarwal (supra) pertained to the period
between August 1990 to October 2003, when he was serving under the
Govt. of West Bengal. In that case, the petitioner did not question the aspect
of non grant of "sanction" during the period when he was serving at Delhi as
a Central Government Deputationist. In the present case, no issue of
sanction has been raised or arises. Pertinently, this court held that since the
check period constitutes the period of postings with the State Government as
well as some tenure of Central deputation, the CBI was empowered to
register the RC and investigate the case at Delhi. Thus, this decision does
not advance the submission of the petitioners on the aspect of territorial
jurisdiction.
153. In the light of the aforesaid discussion, it is abundantly clear to me
that so far as the submission of Mr. Sibal with regard to lack of territorial
jurisdiction of the learned Special Judge to deal with the regular case
registered at Delhi is concerned, the same has no merit at all. This is for the
reason that, firstly, the check period relates to the service rendered to
petitioner No.1 at Delhi as a Union Minister i.e. when the offence was
allegedly committed. The allegation against the petitioner No.1 is that he
was possessed of assets disproportionate to his known sources of income
while serving as a Union Minister during the check period at Delhi.
Secondly, one of the known sources of income - which is an essential
ingredient of the offence under Section 13(2) read with Section 13(1)(e) of
the PC Act, was undisputedly at Delhi, since the petitioner No.1 drew his
salary as a Union Minister during the check period at Delhi.
154. Mr. Sibal has also submitted that the FIR in the present case should
have been registered in the State of Himachal Pradesh, where petitioner no.1
is presently serving as the Chief Minister, and in case it was found that the
State police was not investigating the same effectively, the investigation in
the case could then have been transferred by the competent court, if
necessary, to the CBI. In this regard, he placed reliance on Committee for
Protection of Democratic Rights (supra).
155. The issue is not whether the FIR/RC in the case could have been
registered within the jurisdiction of the Special Judge in Himachal Pradesh.
The issue under examination is, whether the same has, in fact, been
registered within the jurisdiction of the competent Special Judge. An
accused cannot dictate to the prosecution that the case should be registered
at a police station that he desires. The case may be registered at any one of
the police stations within whose jurisdiction the same can be legally
instituted.
156. I now turn to examine the issue whether consent of the State
Government of Himachal Pradesh under Section 6 of the DSPE Act is
necessary for registering the FIR/RC in the facts of the present case at Delhi,
and for carrying out the investigation into the said case within the area
falling in the State of Himachal Pradesh. In Gurudasmal (supra), the
appellant challenged the right of the Delhi Special Police Establishment/
CBI to investigate the case filed by the Income-Tax Officer, Bombay under
Section 409, 477A and 120B IPC. The investigation was to be carried out
in the State of Maharashtra. The contention of the appellant, premised on
the wording of Entry 80 of the Union List in the Schedule VII to the
Constitution of India, inter alia, was that DSPE belongs to the Union
Territory of Delhi (and not to a State), and that it cannot be invested with
jurisdiction to investigate the cases in other States - in that case the State of
Maharashtra, as the DSPE does not belong to a State. Thus, the powers and
jurisdiction of the members of the CBI could not be extended to any area
outside the Union Territories, even with the consent of the State into whose
area the powers and jurisdiction is sought to be extended. Entry 80 of List I
of the VIIth Schedule reads as follows:
"80. Extension of the powers and jurisdiction of members of a
police force belonging to any State to any area outside that
State, but not so as to enable the police of one State to exercise
powers and jurisdiction in any area outside that State without
the consent of the Government of the State in which such area
is situated; extension of the powers and jurisdiction of members
of a police force belonging to any State to railway areas
outside that State." [ emphasis supplied ]
157. The petition of the appellant was dismissed by this Court.
Consequently, the appellant approached the Supreme Court upon grant of
certificate by the High Court.
158. The Constitution Bench of the Supreme Court while dismissing the
appeal rejected the appellant's contention that DSPE is not constitutional,
and that it cannot be invested with jurisdiction to investigate the cases in
other States. In the course of its judgment, the Supreme Court traced the
legislative history of DSPE. The Supreme Court, inter alia, took note of the
significant changes in the legislation, which came in 1952 by the Delhi
Special Police Establishment (Amendment) Act, 1952 (XXVI of 1952). The
long title of the Act was amended from:
"An Act to make provision for the constitution of a special
police force for the State of Delhi for the investigation of
certain offences committed in connection with matters
concerning Department of the Central Government etc."
(emphasis supplied)
to
"An Act to make provision for the constitution of a special
police force in Delhi for the investigation of certain offences
in Part C States.".
(emphasis supplied)
Accordingly, corresponding changes were made in the Preamble to the Act,
and Sections 2 and 3 of the Act. From Section 2 of the DSPE Act the words
"for the State of Delhi", and all references to offences by the words
"committed in connection with matters concerning Departments of the
Central Government" were deleted. The change of words from "for the
State of Delhi" to "in Delhi" was significant.
159. With the enactment of the Constitution (Seventh Amendment) Act,
1956, distinction between Part-A and Part-B States was abolished. All the
Part-A and Part-B States were shown in the First Schedule to the
Constitution under the heading "The States". Similarly, the Part-C States
and Part-D Territories were all described as "Union Territories". The
Adaptation of Laws (No.3) Order, 1956 was passed and in the Delhi Special
Police Establishment Act, 1946, all references to "Part-C States" were
replaced by the expression "Union Territories".
160. The Supreme Court, after taking note of the aforesaid changes,
described the resulting legislative position of the DSPE Act in 1956 as
follows:
"Section 2. - (1) Notwithstanding anything in the Police Act,
1861, the Central Government may constitute a special police
force to be called the Delhi Special Police Establishment ... for
the investigation of offences notified under Section 3.
(2) Subject to any orders which the Central Government may
make in this behalf, members of the said police establishment
shall have throughout in relation to the investigation of such
offences and arrest of persons concerned in such offences, all
the powers, duties, privileges and liabilities which police
officers have in connection with the investigation of offences
committed therein.
(3) Any member of the said police establishment of or above the
rank of Sub-Inspector may, subject to any orders which the
Central Government may make in this behalf, exercise in any of
the powers of the officer in charge of a police station in the
area in which he is for the time being and when so exercising
such powers shall, subject to any such orders as aforesaid, be
deemed to be an officer in charge of a police station
discharging the functions of such an officer within the limits of
his station.
Section 3. - The Central Government may, by notification in the
Official Gazette, specify the offences or class of offences which
are to be investigated by the Delhi Special Police
Establishment.
Section 5. - (1) The Central Government may by order extend
to any area (including Railway areas), the powers and
jurisdiction of members of Delhi Special Police Establishment
for the investigation of any offences or classes of offences
specified in a notification under Section 3.
Section 6. - Nothing contained in Section 5 shall be deemed to
enable any member of the Delhi Special Police Establishment
to exercise powers and jurisdiction in any area in the State (not
being a Union Territory or railway area), without the consent
of the Government of that State."
161. The Supreme Court proceeded to consider the submission of the
appellant that Entry 80 of the Union List cannot be read as an enabling
power to be exercised in respect of a police force belonging to the Union
Territories, such as Delhi. The relevant extract from the discussion on this
aspect reads as follows:
"11. This brings us to the two main arguments. The first is that
........ the present Entry 80 of the Union List ......... cannot be
read as enabling the power to be exercised in respect of a
police force belonging to the Union Territories such as
Delhi..............
12. This entry speaks of a "police force belonging to any State"
and not of a police force belonging to the Union Territory.
........ This power ......... cannot be used except as specifically
conferred and it applies to a police force belonging to a State
and not Union Territory. In reply the provisions of the General
Clauses Act, as adapted by Adaptation Order (No. 1) were
brought to our notice. Section 3(58) of the General Clauses Act
was adapted to read:
"State--
(a) as respects any period before the
commencement of the Constitution (Seventh
Amendment) Act, 1956, shall mean a Part A State,
a Part B State or a Part C State; and
(b) as respects any period after such
commencement, shall mean a State specified in
the First Schedule to the Constitution and shall
include a Union Territory."
Previously the definition read:
"State shall mean a Part A State, a Part B State or
a Part C State."
This definition furnishes a complete answer to the difficulty
which is raised since Entry 80 must be read so as to include
Union Territory. Therefore members of a police force
belonging to the Union Territory can have their powers and
jurisdiction extended to another State provided the
Government of that State consents......". [ emphasis supplied ]
162. The Supreme Court relied upon Article 372A of the Constitution,
which was introduced by the Constitution (Seventh Amendment) Act, 1956
and, inter alia, observed:
"Therefore, when the President adapted the General Clauses
Act by giving a new definition of "State" the new definition
appropriate to the purpose applied to the interpretation of the
Constitution. The word "State" in Entry 80 of Union List,
therefore, applied to Union Territories also."
163. In respect of Section 3(58) of the General Clauses Act (as adapted by
the Adaptation Order (No.1)), the Supreme Court observed:
"There is nothing in the subject or context of Entry 80 of the
Union List which can be said to exclude the application of the
definition in Section 3(58). Indeed the Part C States were
expressly mentioned in Entry 39 of the Federal List of the
Government of India Act, 1935 (after its amendment in 1947)
and thus before the Seventh Amendment the definition of State
(subject to the subject or context) included Part C States.
Therefore, the definition of "State" in Section 3(58) in the
General Clauses Act after the adaptation in 1956 applies and
includes Union Territories in Entry 80 of the Union List."
[ emphasis supplied ]
164. The submission of the appellant, premised on Entry 80 of the Union
List, which uses the expression "belonging to any State" - to mean that the
police force is "employed by" and not merely "located in" the State (which
includes a Union Territory), was also rejected by the Supreme Court on the
premise that the adoption of the interpretation as suggested by the appellant,
namely, that the expression "belonging to any State" refers to "employed by"
the State, would render the whole scheme void. The discussion found in the
judgment on the aforesaid aspect reads as follows:
"17. The last argument is that the Entry 80 of the Union List
speaks of a police force "belonging to any State" and this
phrase was also used in the Government of India Act, 1935 in
Entry 39 of the Federal Legislative List both before and after its
amendment in 1947. It is argued that in Ordinance 22 of 1946
the phrase was "for the Chief Commissioner's Province of
Delhi" and it was repeated in Act 25 of 1946 till the phrase was
changed to "for Part C States". Thus the word "for" took the
place of the words "belonging to" in the entry. Then came the
change to the present phrase "a special police force in Delhi".
18. It is pointed out that the Special Police Establishment does
not belong to the Union Territory of Delhi, since the
superintendence of it vests in the Central Government. It is said
that the force of the words "belonging to" is not the same as
that of the word "in". Therefore it is claimed that the Act is not
in accord with the Entry.
19. Various meanings of the expression "belonging to" are
suggested in the arguments before us. On behalf of the
appellants it is said that it meant "employed by" and not
merely "located in". In this sense, it is argued, the Special
Police Establishment did not belong to any State or Union
Territory. On the other side it is argued that the words
"belonging to" convey no more than a territorial nexus. The
police force belongs to a part of India and it does not have to
belong to a Provincial Government or a State Government or
Government of a Union Territory. The extension of the powers,
jurisdiction, etc. of such a force is also in another part of India,
placing again an emphasis on the territory. This shows that the
police force of one area operates in other area.
20. Now the scheme of the Constitution is that the Union
Territories are centrally administered and if the words
"belonging to" mean belonging to a part of India, the
expression is equal to a police force constituted to function in
an area. In this way the Delhi Police Establishment mean a
police force constituted and functioning in the Union
Territory of Delhi. Previously the same force functioned in
the Chief Commissioner's Province of Delhi, then in Part C
State of Delhi and now it functions in the Union Territory of
Delhi.
21. It is no doubt true that the words are susceptible of the
other meaning also but so long as the words are capable of
bearing the meaning we have given, it is not necessary to
discover another meaning under which the whole scheme
would become void. Provisions of law must be read as far as is
possible with a view to their validity and not to render them
invalid. In our judgment the expression "belonging to" only
conveys the meaning that it is a police force constituted and
functioning in one area which may be authorised to function
in another area. The change from "for" to 'in" makes no
difference because both expressions fit in with the meaning of
the phrase "belonging to" in the entry. We see no force in this
argument also." (emphasis supplied)
165. In the light of the aforesaid analysis, in my view, reliance placed by
Mr. Sibal on Gurudasmal (supra) in support of his submission is misplaced.
In fact, this decision goes against the submission advanced by Mr. Dogra,
the learned Advocate General on behalf of the State of Himachal Pradesh,
that the CBI/DSPE is unconstitutional or that it cannot, even with consent of
the State Government, investigate the offence in question. Gurudasmal
(supra) clearly holds that the Delhi Special Police Establishment/ CBI is a
police force which belongs to the Union Territory of Delhi, i.e. it is
constituted in and functioning in the Union Territory of Delhi - which, for
the purpose of Entry 80 of the Union List, is to be regarded as a State by
virtue of the Adaptation Order (No.1). By the said Adaptation Order the
definition of the expression "State" was amended from the commencement
of the Constitution (Seventh Amendment) Act, 1956 to include a Union
Territory. Thus, where the Central Government has extended the powers
and jurisdiction of members of the DSPE/ CBI to any area (including
Railway areas) in a State - not being a Union Territory, for investigation of
any offences or classes of offences (as notified under Section 3 of the DSPE
Act), a member of the DSPE/ CBI may discharge functions of a police
officer in that area and, while doing so, he shall be regarded as a member of
a police force of that area.
166. In Surinder Singh Ahluwalia (supra), the petitioner also challenged
the registration of the FIR/RC on the ground that there was no consent
granted by the State of Nagaland u/s 6 of the DSPE Act, 1946 and there
never was any such consent by the said State Govt. The petitioner also
challenged the general consent granted by the State Government dated
08.11.1967, on the ground that there was no schedule annexed to the letter
of the Joint Secretary to the Govt of Nagaland. It was argued that the general
consent dated 08.11.1967 was of no avail and thus the CBI could not
conduct any investigation in the State of Nagaland. The petitioner also
claimed that the said consent, in any event, had been withdrawn
subsequently vide notification dated 23.11.1989. It was argued that no
investigation could continue thereafter. It was argued that the letter issued
by the Chief Minister to the Union Home Minister could not be pressed into
service for the purpose of construing consent by the State Govt u/s 6 of the
DSPE Act.
167. Mr. Sibal has relied on para 9 of the judgment, wherein the Division
Bench observed that section 6 of the DSPE Act begins with a non-obstante
clause and it overrides section 5 thereof. The consent of the State is a
precondition for exercise of powers and jurisdiction by a member of the
DSPE/CBI in an area falling within the State. It was held that the consent of
State of Nagaland was necessary for investigating the offence u/s 5(1)(e)
alleged against the petitioner in the FIR/RC relating to the offences in the
State of Nagaland.
168. The petitioner in that case had sought to place reliance on the
withdrawal of consent on 06.11.1990 by the State of Nagaland. The Court,
however, found that the consent had been reiterated vide order dated
08.01.1991. The Division Bench observed:
"After the withdrawal of the consent, it is correct that the CBI
has no jurisdiction to investigate the offence against the
petitioner under the aforesaid FIR. As it is clear from the
provision contained in Section 6 that the members of the DSPE
will have no jurisdiction to exercise any power in any area of
the State of Nagaland without the consent of the Government
of Nagaland." [ emphasis supplied ]
169. The Division Bench, upon scrutiny of the record, concluded that there
was a general pre-existing consent of the State of Nagaland at the time of
registration of the case by the CBI on 23.04.1987. The Division Bench also
considered the aspect that the offence had relation not only with the State of
Nagaland, but also with Delhi and other places as well. The Division Bench
observed:
"And as such, the CBI is competent to investigate into the
offence as mentioned in the FIR against the petitioner with
respect to Delhi and other places but no investigation after the
withdrawal of the order dated 9.5.90 can be conducted by the
CBI in any area of the State of Nagaland with respect to the
petitioner". (emphasis supplied)
170. M. Balakrishna Reddy (supra), the issue which was examined by the
Supreme Court was whether "consent" as envisaged by section 6 of the
DSPE Act had been given by the State Government of Madhya Pradesh to
the Central Govt. so as to enable the latter to invoke the provisions of the
DSPE Act. The Supreme Court reiterated the settled legal position that "for
exercise of jurisdiction by CBI in a State (other than Union Territory or
Railway area), consent of the State Government is necessary". The
Supreme Court further observed:
"19. Plain reading of the above provisions goes to show that
for exercise of jurisdiction by CBI in a State (other than Union
Territory or Railway area), consent of the State Government is
necessary. In other words, before the provisions of the Delhi
Act are invoked to exercise power and jurisdiction by Special
Police Establishment in any State, the following conditions
must be fulfilled:
(i) A notification must be issued by the Central Government
specifying the offences to be investigated by Delhi Special
Police Establishment (Section 3);
(ii) An order must be passed by the Central Government
extending the powers and jurisdiction of Delhi Special Police
Establishment to any State in respect of the offences specified
under Section 3 (Section 5); and
(iii) Consent of the State Government must be obtained for the
exercise of powers by Delhi Special Police Establishment in the
State (Section 6)."
171. This decision primarily examined the submission of the appellant that
the consent of the State Government was not in accordance with the
procedure laid down in Article 166 of Constitution of India. On this aspect,
after a detailed discussion, the Supreme Court concluded that Article 166
was "directory" and that "substantial" compliance with the said provision
was sufficient. The Supreme Court held that there is no particular form in
which the consent of the State Government concern has to be granted under
Section 6 of the DSPE Act.
172. In Mayawati (supra), the only question raised by the petitioner before
the Supreme Court was whether the FIR/RC registered under Section 13(2)
read with 13(1)(e) of the PC Act against the petitioner was beyond the scope
of the directions issued by the Supreme Court in its order dated 18.09.2003
in M.C. Mehta v. Union of India, (2003) 8 SCC 696. The Supreme Court
held, upon a thorough scrutiny of all the orders including the specific
directions dated 18.09.2003 that there was "no consideration of alleged
disproportionate assets at any stage of the proceedings while dealing with
Taj Corridor matter". The Supreme Court held that there could not have
been and, in fact, there was no such direction to lodge any FIR exclusively
against the petitioner under the PC Act. In the absence of any direction by
the Supreme Court to lodge a FIR into the matter of alleged disproportionate
assets against the petitioner, and in view of the Government of the State of
U.P. having declined to grant consent under section 6 of the DSPE Act, the
Supreme Court quashed the aforesaid FIR/RC dated 05.10.2003. In the
operative part of its judgment the Supreme Court held:
"44. In the light of the above discussion, we hold that in the
absence of any specific direction from this Court in the order
dated 18-9-2003 [(2003) 8 SCC 696] or any subsequent
orders, CBI has exceeded its jurisdiction in lodging FIR No.
RC 0062003A0019 dated 5-10-2003. The impugned FIR is
without jurisdiction and any investigation pursuant thereto is
illegal and liable to be quashed, and is accordingly quashed.
The writ petition is allowed".
173. Mayawati (supra) is relevant for the present case only to the extent
that it reaffirms and reiterates the well settled legal position that the consent
of the State Government would be necessary under Section 6 of the DSPE
Act for the CBI to exercise power and jurisdiction in any area in the
concerned State. In the present case, the case against the petitioners has
been registered by the CBI at Delhi under Section 13(2) read with section
13(1)(e) of the PC Act and section 109 IPC for the check period when the
petitioner no.1 was serving as a Central Minister at Delhi and drew his
salary at Delhi.
174. At this stage, I may take note of the relevant statutory provisions. A
perusal of Section 2 of the DSPE Act shows that the DSPE/ CBI has been
constituted "for the investigation in any Union Territory of offences notified
under section 3" (emphasis supplied) (See Section 2(1)).
175. The members of the DSPE/ CBI "have throughout any Union
Territory in relation to the investigation of such offences ... ... ... all the
powers, duties, privileges and liabilities which police officers of that Union
Territory have in connection with the investigation of offences committed
therein" (emphasis supplied) (See Section 2(2)).
176. "Any member of the CBI of the rank of the Sub-Inspector or above
may ... ... ... exercise in any Union Territory any of the powers of the
officer-in-charge of a police station in the area in which he is for the time
being ... ... ..."(emphasis supplied) (See Section 2(3)).
177. Thus, what emerges from Section 2 of the DSPE Act is that the DSPE/
CBI is a police force constituted in Delhi, primarily to carry out
investigation of the notified offences in any Union Territory. The
notification of the offences, or class of offences, which may be investigated
by the DSPE/ CBI is required to be issued under Section 3 of the said Act.
The extension of jurisdiction of the members of DSPE/ CBI to areas falling
outside the territories of a Union Territory, i.e. to "area (including railway
areas, in a State, not being a Union Territory)" to carry out investigation is
governed by Section 5 of the Act. The same requires that the Central
Government may issue an order for the aforesaid purpose. Once an order to
the aforesaid effect is issued, the member of the DSPE/ CBI may, subject to
such orders, "discharge the functions of a police officer in that area and
shall, while doing so, be deemed to be a member of a police force of that
area and be vested with the powers, functions and privileges and be subject
to the liabilities of a police officer belonging to that police force" (See
Section 5(2)). Section 5(3), inter alia, provides that "any member of the
Delhi Special Police Establishment of or above the rank of Sub-Inspector
may subject to any orders which the Central Government may make in this
behalf, exercise the powers of the officer in charge of a police station in that
area and when so exercising such powers, shall be deemed to be an officer
in charge of a police station discharging the functions of such an officer
within the limits of his station".
178. However, the aforesaid extension of power and jurisdiction of the
members of the DSPE/ CBI to areas falling beyond the Union Territories is
subject to constitutional limitations. While the subject matter of "Central
Bureau of Intelligence and Investigation" finds mention at Entry 8 of List 1
- Union List of the 7th Schedule, the subject matter of "Police (including
railway and village police), subject to the provisions of Entry 2A of List I"
falls in Entry 2 of List 2 - State List. The legislative field covered by Entry
2 of List 2, is subject to provisions of Entry 2A of List 1. However, for the
present, the same does not concern us. The extension of power and
jurisdiction of a police force of a State into another State is governed by
Entry 80 of List 1, which reads as follows:
"80. Extension of the powers and jurisdiction of members of a
police force belonging to any State to any area outside that
State, but not so as to enable the police of one State to exercise
powers and jurisdiction in any area outside that State without
the consent of the Government of the State in which such
area is situated; extension of the powers and jurisdiction of
members of a police force belonging to any State to railway
areas outside that State." (emphasis supplied)
179. For the purpose of Entry 80, Delhi is considered to be a State as
explained in Gurudasmal (supra). The scheme contained in Sections 5 & 6
of the DSPE Act is referable to Entry 80 of List 1 of the 7 th Schedule.
Consequently, Section 6 overrides the power of the Central Government
under Section 5 to extend the powers and jurisdiction of the DSPE/ CBI to
areas beyond the Union Territories, and Railway Areas. An order issued
under Section 5 of the DSPE Act without the consent of the concerned State
Government would be meaningless. Section 6 states that:
"Noting contained in section 5 shall be deemed to enable any
member of the Delhi Special Police Establishment to exercise
powers and jurisdiction in any area in a State not being a
Union Territory or railways area, Without the consent of the
Government of that State."
180. From the decisions taken note of hereinabove, it is abundantly clear
that for the purpose of empowering and authorizing the DSPE/ CBI to carry
out investigation in an area falling beyond the area of the Union Territories
and Railway Areas, i.e. in any area falling in one of the constituent States of
the Indian Union, the consent of the Government of the State within whose
area the DSPE/ CBI needs to carry out investigation is imperative.
181. The submission of Mr. Patwalia is that because the offence under
investigation in the present case relates to the check period when petitioner
no.1 was a Union Minister at Delhi alone, consent under Section 6 of the
State Government of Himachal Pradesh for carrying out investigation in any
area falling within the said State would not be required, cannot be accepted.
Registration of the Regular Case/ FIR is one thing, and investigation
undertaken after registration of the Regular Case is another thing. First
comes the registration of the Regular case/FIR, and only thereafter follows
the investigation in the case. In the present case, the Regular Case has been
registered at Delhi and as I have already found, the same has been registered
within the jurisdiction of the learned Special Judge who has territorial
jurisdiction to deal with the same. Though the case may have been validly
registered at Delhi by the CBI, for its investigation, it may need to go into
areas falling within one or more of the constituent States of the Indian
Union. It is at that stage that Section 6 seeks to create a check in the way of
the DSPE/ CBI, because policing is a State subject, and only by resort to
Entry 80 of List-I Union List the powers and jurisdiction of the DSPE/ CBI
can be extended to an area falling within a State. To clear the said hurdle,
the consent of the concerned State - within whose area the investigation is
required to be carried out, would need to be obtained.
182. In the present case, the DSPE/ CBI has contended that there is a
general consent granted by the State Government of Himachal Pradesh and
in this regard reliance has been placed on the order dated 24.08.1990 issued
by the Government of India, Ministry of Personnel, Personal Grievances and
Pensions. Relevant extract of the same reads as follows:
" No. 228/40/88-AVD.II (III)
Government of India
Ministry of Personnel, P.G. & Pensions
(Department of Personnel & Training)
.....
New Delhi, the 24 August, 1990
ORDER
S.O....................... In supersession to Department of
Personnel and Training order No. 228/40/88 - AVD.II dt.
23.8.89 and in exercise on the powers conferred by sub section
(1) of the sec. 5 read with sec. 6 of the Delhi Special
Establishment Act 1946 (Act No. 25 of 1946) the Central
Government with the consent of the State Government of
Himachal Pradesh (vide. Consent order No. Vigilance dept.
Per (vig.) A-3 (2)/88, dt. 2.8.89) hereby extends the powers and
jurisdiction of the members of the Delhi Special Police
Establishment to the whole of the state of Himachal Pradesh for
investigation of offences as mentioned hereunder against the
officials / officers of the Central Govt. department and other
Central Institutions, located in the territory of Himachal
Pradesh.
(a) Offences under Prevention of Corruption Act, 1988 (Act
No.49/88)
(b) Attempts, abetments and conspiracies in relation to or in
connection with one or more of the offences mentioned above,
and any other offence or offences committed in the course of the
same transaction arising out of the same facts.
Sd./
(G. SITARAMAN)
UNDER SECRETARY TO THE GOVT. OF INDIA"
(emphasis supplied)
183. The aforesaid order refers to the consent granted by the State
Government of Himachal Pradesh vide a consent order dated 02.08.1989.
184. On the other hand, the submission of Mr. Sibal is that the said consent
order under Section 6 dated 02.08.1989 and the order dated 24.08.1990
issued by the Government of India under Section 5 of the DSPE Act do not
take within their scope a Central Minister who served as a public servant at
Delhi under the Central Government, on account of his not being an official/
officer "of the Central Government departments or other central institutions
located in the territory of Himachal Pradesh" (emphasis supplied). I may,
here itself state that petitioner No.1 - while he was a Central/ Union
Minister was a "Public Servant" as defined in Section 2(c) of the PC Act, by
virtue of clauses (i) and (viii) thereof.
185. As noticed hereinabove, the conduct of investigation is a post FIR/ RC
registration development. Pertinently, Section 6 does not state that prior to
registration of RC/ FIR, the DSPE/ CBI would need consent of any State.
Since the FIR/ RC has been registered at Delhi, and the learned Special
Judge at Delhi has jurisdiction. So far as its registration is concerned, the
same cannot be questioned by resort to Section 6 of the DSPE Act.
186. Issues with regard to the validity of the investigation conducted by the
CBI in the State of Himachal Pradesh, in my view, cannot be raised in a writ
petition, and all such issues would be available to be raised by the accused,
if and when the occasion arises. The charge-sheet has not yet been filed. If,
and when the charge-sheet is filed, it would emerge as to what are the
materials/ evidences collected by the investigating agency that are sought to
be relied upon by the prosecution. In case the prosecution relies on any
investigation conducted within the area of the State of Himachal Pradesh,
only then the petitioner may advance an argument premised on Section 6 of
the DSPE Act. In Tapan Kumar Singh (supra), in para 23, the Supreme
Court observed:
"23. The High Court also held that before
conducting the search and seizure the mandatory
requirement of Section 165 was not fulfilled
inasmuch as the investigating officer did not
record in writing the grounds for his belief as
required by the said section. It is premature at this
stage to consider whether search and seizure was
done in accordance with law as that is a question
which has to be considered by the court, if the
accused is ultimately put up for trial and he
challenges the search and seizure made.
(emphasis supplied)
187. Thus, even if such an argument were to be raised, it would be for the
Trial Court to appreciate the same in the light of the aforesaid order issued
under Section 5 dated 24.08.1990; the consent referred to therein dated
02.08.1989; the provisions contained in, inter alia, Sections 91 to 105, 165
& 166 Cr.P.C. and other provisions of the Code, and the DSPE Act, and; the
decisions of the Supreme Court relevant to the issue. In this regard
reference may be made to M.P. Sharma v. Satish Chandra, District
Magistrate, Delhi, AIR 1954 SC 300; Radha Kishan v. State of Uttar
Pradesh, AIR 1963, SC 822; and State of Haryana v. Rajmal, (2011) 14
SCC 326.
188. Thus, the submission of Mr. Sibal with regard to the legality and
validity of the search & seizure and other investigation carried out by the
CBI in the State of Himachal Pradesh cannot be, and need not be entertained
in these proceedings.
189. Even if in a given case, the investigation conducted pursuant to
registration of a Regular Case/ FIR is not legal or suffers from an infirmity,
the same would not afford a ground to assail the registration of the RC/ FIR
itself. The legality of the RC/ FIR would have to be tested on a reading of
the RC/ FIR and on examination of other relevant aspects as laid down by
the Supreme Court in State of Haryana vs. Bhajan Lal ,1992 SCC (Cri)
426, Som Mittal vs. Government of Karnataka ,(2008) 3 SCC 574, and
State of Karnataka vs. M. Devendrappa and Anr. ,(2002) 3 SCC 89.
190. The learned Advocate General for the State of Himachal Pradesh -
Mr. Dogra has gone into the constitutional history, including, the
Government of India Act,1935, the Constituent Assembly Debates and has
also relied upon the judgment of the Navendra Kumar (supra) to submit that
the constitution of the CBI under the DSPE Act itself is unconstitutional.
He has also submitted that this Court is obliged to go into and answer each
and every one of the eleven questions framed by the Division Bench of the
Himachal Pradesh High Court on the very first date of hearing of the writ
petition, which have been reproduced hereinabove. He has also argued that
the CBI cannot be termed as a Special Police Force as constituted under the
DSPE Act. He has also supported the submissions of the petitioners that
compliance of Section 6 of the DSPE Act is mandatory and that the consent
given by the State Government of Himachal Pradesh cannot apply in the
instant case since petitioner No.1 was a Member of Parliament/Minister who
cannot be termed as a government servant in the employment of the Central
Government Department located in the territory of the State of Himachal
Pradesh. In this regard, he has placed reliance on the judgment of the
Supreme Court in P.V. Narsimharao vs. State (1998) 4 SCC 626.
191. A perusal of the order dated 01.10.2015 passed by the Division Bench
of the Himachal Pradesh High Court would show that the said order came to
be passed on the very first date of hearing. On the said date, the Division
Bench had, before itself, only the writ petition as preferred by the
petitioners. The stand of the CBI and that of the State Government - who
are the respondents in the case, was not even available. The questions
formulated by the Division Bench, in the aforesaid background, were merely
on a, prima facie, and one sided view of the matter. In fact, not all of the
questions formulated arise for consideration in the present case, and this is
clear from not only the pleadings of the respective parties in the writ
petition, but also from the submissions advanced by the learned counsels
representing them. It is well settled that a Court should not undertake to
decide an issue unless it is a live issue between the parties. If an issue is
purely academic - in that its decision one way or another would have no
impact on the position of the parties, it would be waste of public time and
indeed not proper exercise of authority for the court to engage itself in
deciding it. The court would not engage in a fruitless exercise. It would
refuse to decide a question, unless it has a bearing on some right or liability
in controversy between the parties. If the decision of a question would be
wholly ineffectual as far as the parties are concerned, it would not only be
unnecessary and pointless, but also inexpedient to decide it and the Court
would properly decline to do so. (See Loknath Padhan Vs. Birender
Kumar Sahu (1974) 4 SCC 526 and Basant Kumar Vs. State of Rajasthan
and others (2001) 7 SCC 201).
192. The submission of the petitioners that the income-tax proceedings are
still pending and, therefore, the registration of the RC/ FIR is premature also
has no merit. The income-tax proceedings are only concerning the tax
liability of the concerned assessee. The income-tax authorities are not
examining as to whether the income derived by petitioner no.1 during the
check period is a result of criminal misconduct under the PC Act. It is not
even argued by the petitioners that a perusal of the RC does not disclose the
commission of an offence under Section 13(2) read with Section 13(1)(e) of
the PC Act and Section 109 IPC. This submission of the petitioners is,
therefore, rejected.
193. So far as the submission of the learned Advocate General Mr. Dogra
premised on the decision of the Gauhati High Court in Navendra Kumar
(supra) is concerned, I am of the view that since the said decision has been
stayed by the Supreme Court, the said decision cannot be pressed into
service. Reliance placed by Mr. Dogra on Shree Chamundi Mopeds
Ltd.(supra) is of no avail. In that case, the Board of Industrial and Financial
Reconstruction (BIFR) had ordered the winding up of the appellant
company. The Appellate Authority had upheld it. The High Court in writ
jurisdiction had stayed the operation of the order of the Appellate Authority.
The Supreme Court examined the effect of the said stay order in the context,
that the jurisdictional High Court, in the mean time, directed winding up of
the appellant and the appeal against the winding up order was also
dismissed. The Supreme Court, in this context held that mere stay of the
order of the Appellate Authority by the High Court did not tantamount to
revival of the appeal before the Appellate Authority against the order of the
BIFR directing winding up of the Appellant company. Only upon quashing
of the order of the Appellate Authority, would the appeal revive - and then it
could be said that the bar under Section 22 of Sick Industrial Companies
(Special Provisions) Act, 1985 would apply. In para 10 of this decision the
Supreme Court, inter alia, observed:
"10. In the instant case, the proceedings before the Board
under Sections 15 and 16 of the Act had been terminated by
order of the Board dated April 26, 1990 whereby the Board,
upon consideration of the facts and material before it, found
that the appellant-company had become economically and
commercially non-viable due to its huge accumulated losses
and liabilities and should be wound up. The appeal filed by
the appellant-company under Section 25 of the Act against
said order of the Board was dismissed by the Appellate
Authority by order dated January 7, 1991. As a result of these
orders, no proceedings under the Act were pending either
before the Board or before the Appellate Authority on
February 21, 1991 when the Delhi High Court passed the
interim order staying the operation of the order of the
Appellate Authority dated January 7, 1991. The said stay
order of the High Court cannot have the effect of reviving the
proceedings which had been disposed of by the Appellate
Authority by its order dated January 7, 1991. While
considering the effect of an interim order staying the
operation of the order under challenge, a distinction has to be
made between quashing of an order and stay of operation of
an order. Quashing of an order results in the restoration of
the position as it stood on the date of the passing of the order
which has been quashed. The stay of operation of an order
does not, however, lead to such a result. It only means that the
order which has been stayed would not be operative from the
date of the passing of the stay order and it does not mean that
the said order has been wiped out from existence. This means
that if an order passed by the Appellate Authority is quashed
and the matter is remanded, the result would be that the
appeal which had been disposed of by the said order of the
Appellate Authority would be restored and it can be said to be
pending before the Appellate Authority after the quashing of
the order of the Appellate Authority. The same cannot be said
with regard to an order staying the operation of the order of
the Appellate Authority because in spite of the said order, the
order of the Appellate Authority continues to exist in law and
so long as it exists, it cannot be said that the appeal which has
been disposed of by the said order has not been disposed of
and is still pending. We are, therefore, of the opinion that the
passing of the interim order dated February 21, 1991 by the
Delhi High Court staying the operation of the order of the
Appellate Authority dated January 7, 1991 does not have the
effect of reviving the appeal which had been dismissed by the
Appellate Authority by its order dated January 7, 1991 and it
cannot be said that after February 21, 1991, the said appeal
stood revived and was pending before the Appellate Authority.
In that view of the matter, it cannot be said that any
proceedings under the Act were pending before the Board or
the Appellate Authority on the date of the passing of the order
dated August 14, 1991 by the learned Single Judge of the
Karnataka High Court for winding up of the company or on
November 6, 1991 when the Division Bench passed the order
dismissing O.S.A. No. 16 of 1991 filed by the appellant-
company against the order of the learned Single Judge dated
August 14, 1991. Section 22(1) of the Act could not, therefore,
be invoked and there was no impediment in the High Court
dealing with the winding up petition filed by the respondents.
This is the only question that has been canvassed in Civil
Appeal No. 126 of 1992, directed against the order for
winding up of the appellant-company. The said appeal,
therefore, fails and is liable to be dismissed."
194. The situation in the present case is that the decision of the Guahati
High Court made a declaration with regard to the legal status of CBI. That
declaration has been stayed. Thus, the legal status of the CBI remains
unaffected by the said judgment. Stay of the said judgment does not mean
that the proceedings before the Guahati High Court stand revived, or that the
said issue is still at large before the said High Court. No doubt, the judgment
of the Guahati High Court is not set aside, but it is of no effect. It cannot be
relied upon as an authoritative pronouncement by the said High Court. It
cannot be followed, or pressed into service as a precedent.
195. Reliance placed on P.V. Narsimharao (supra) is misplaced. The
Supreme Court held that a Member of Parliament is a Public Servant for the
purpose of the P.C. Act.
196. The present is not a writ petition preferred by the State of Himachal
Pradesh. The State of Himachal Pradesh cannot seek to advance submissions
which have not even been raised by the petitioners. This Court is not
obliged to deal with them, since the contesting respondent i.e. the CBI has
not been called upon to meet the submissions of the State of Himachal
Pradesh. Even otherwise, the present is not a petition raising a Centre-State
dispute, which can be adjudicated only by the Supreme Court under Article
131 of the Constitution.
197. Turning to the questions framed by the Division Bench of the
Himachal Pradesh High Court, in view of the above discussion, my answers
to the same, insofar as they are relevant, are as follows:
Sl. No. Question Answer
1 Whether cause of action has The issue is not whether cause of
arisen within the territorial action had arisen within the
jurisdiction of this Court qua territorial jurisdiction of the High
FIR No. RCAC-1 2015 A-004 Court of Himachal Pradesh. The
registered on 23.9.2015, more issue is whether the cause of
particularly, in view of Sr. action had arisen within the
No. 5read in conjunction with territorial jurisdiction of the
paras 4, 5 and 6 of the FIR? learned Special Judge, within
whose jurisdiction the FIR/ RC
has been registered. The cause of
action may arise at one or more
places. The RC could be
registered within the jurisdiction
of the Court at either of such
places. Cause of action has
certainly arisen within the
jurisdiction of the learned Special
Judge at Delhi.
2. Whether there could be The second primary inquiry in the
second preliminary inquiry present case is on a different
after the closure of earlier aspect than the first primary
preliminary inquiry inquiry as discussed hereinabove.
purportedly as per para 9.26 There was no illegality in the
of the Central Bureau of opening of the second preliminary
Investigation Manual? inquiry.
3. Whether registration of FIR The registration of the FIR/ RC in
No. RCAC-1 2015 A-004 the present case does not violate
dated 23.9.2015 violates the the decision of the Supreme Court
dicta of Hon'ble Supreme in Mayawati (supra).
Court in Ms. Mayawati vs.
Union of India and others,
(2012)8 SCC 106?
4. Whether it was mandatory for It was not mandatory for the CBI
the Central Bureau of to seek the consent of the State
Investigation to seek the Government of Himachal Pradesh
consent of the State under Section 6 of the DSPE Act
Government as per section 6 at the time of registration of the
of the Delhi Special Police FIR/ RC. Thus, the FIR/ RC
Establishment Act at the time cannot be quashed on the ground
of registration of FIR and its of there being no consent under
subsequent investigation and Section 6 of the DSPE Act from
raiding the residential the State Government of Himachal
premises of the petitioners Pradesh. It was mandatory for the
and non conforming to CBI to obtain the consent of the
mandatory provisions of State of Himachal Pradesh under
section 6 of the Delhi Special Section 6 prior to conduct of any
Police Establishment Act part of investigation in the area of
vitiates the investigation as State of Himachal Pradesh. The
well as raid in the official issue whether such consent had
premises of the petitioners? been obtained generally, or
specifically, as well as the issue as
to what is the effect of the
investigation conducted, if any,
without obtaining the prior
consent of the State Government
of Himachal Pradesh, cannot be
determined in the present
proceedings and would fall for
consideration, if and when a
charge-sheet is filed before the
learned Special Judge. The issue
whether, investigation carried out
de hors the consent of the State of
Himachal Pradesh - even if it
were to be accepted for the sake of
arguments that such consent was
not available, would have to be
considered by the learned Special
Judge in the light of the discussion
and decisions taken note of
hereinabove.
5. Whether the raid of the Since the case/ RC has been
residential premises of the justifiably registered at Delhi by
sitting Chief Minister without the CBI, if the investigation
conforming to section 6 of the (including the raid on the premises
Delhi Special Police of the sitting Chief Minister) has
Establishment Act would been conducted by the CBI in the
dilute the basic federal area of State of Himachal Pradesh
structure of the Constitution in accordance with law, the same
of India? would not dilute the basic
structure of Constitution of India.
The petitioners have not relied
upon any provision of law and
have not cited any decision of any
Court to submit that sitting Chief
Minister of a State enjoys any
immunity against a criminal
offence duly registered by the CBI
within the jurisdiction of the
competent Special Judge.
6. Whether the FIR No. RCAC- The FIR in question could be
1 2015 A-004 could be registered by the CBI, and merely
registered when the Income because the Income Tax
Tax Department and this Department and the High Court is
Court is seized of the matter? seized of the matter, is no ground
to withhold the registration of the
Regular Case. This is for the
reason that the Income Tax Act is
only concerned with the aspect of
assessment of income-tax and is
not concerned with the criminality
involved in the manner in which
the income is derived during the
relevant assessment year(s). If the
FIR/ RC discloses commission of
a cognizable offence, the same
cannot be quashed as it has been
registered within the jurisdiction
of the Court where the cause of
action arose.
7. Whether the Central Bureau No specific mandatory provision
of Investigation has complied of this Code or the guideline
with the mandatory provided in the CBI Manual has
provisions of Code of been referred to to submit that
Criminal Provisions and the registration of the FIR/ RC and the
guidelines provided in Central undertaking of the investigation
Bureau of Investigation by the CBI is in breach thereof. In
Manual while registering the any event, these are issues which
FIR and also while would fall for consideration before
undertaking the investigation? the learned Special Judge.
8. What is the true import of The import of Entry 2A, 80 of the
Entry 2-A, 80 of the Union Union List vis-à-vis Entry 2 of the
List vis-à-vis 2 of the State State List and their interplay has
List and their inter-play? been elaborately discussed
hereinabove and the same may be
referred to.
9. Whether the income reflected This question does not call for
in paras 5 and 6 of the FIR consideration in the present
can be treated as proceedings. The same constitutes
disproportionate assets in the the defence of the accused and
hands of petitioner No. 1? may be raised before the learned
Special Judge, in case the charge-
sheet is filed in the RC/ FIR in
question and charges are framed
against the accused.
10 Whether the registration of There is no factual basis brought
FIR against the petitioners is on record to claim that the
actuated with legal and registration of the FIR against the
factual mala fide and political petitioners is actuated or legally or
vendetta? factually mala fide or that the
registration of the FIR/ RC is a
result of political vendetta.
11. Whether the permission of the There is no legal basis to claim
Speaker of the H.P. that the permission of the Speaker
Legislative Assembly was of the Himachal Pradesh
mandatory before registration Legislative Assembly was
of FIR? mandatory before registration of
the FIR/ RC in the present case
which pertains to the tenure of
petitioner No.1 while he was a
Central Minister under the Union
Government during the check
period.
198. In the light of the aforesaid discussion, the writ petition is
dismissed. All interim orders stand vacated.
(VIPIN SANGHI)
JUDGE
MARCH 31, 2017
