High Court of Meghalaya

Dr. Subhasish Das Gupta vs The Superintendent Of Central Bureau Of on 24 May, 2024

Author: W. Diengdoh

Bench: W. Diengdoh

Serial No. 01
Supplementary List



                     HIGH COURT OF MEGHALAYA
                          AT SHILLON

Crl.Petn. No. 29 of 2018 with
Crl.Petn. No. 31 of 2018
                                           Date of Decision: 24.05.2024
Crl.Petn. No. 29 of 2018
Dr. Subhasish Das Gupta,
S/o (L) Mrinal Kanti Das Gupta
R/o C/o "PANORAMA",
Upper Laban, Shillong-793004,
East Khasi Hills District, Meghalaya        :::::   Petitioner(s)
                                -Vs-

The Superintendent of Central Bureau of
Investigation, (ACB), Shillong              :::::   Respondent(s)

Crl.Petn. No. 31 of 2018

Shri. Dhruba Sharma,
Son of (L) B.P. Sharma,
Permanent resident of C/o Shri. Kamal
Sharma, A-8/224, Shantigraham, Housing
Complex, Jayanagar, P.O/P.S Khanapara
Guwahati-22, Assam
Presently residing at House No. 43,
Shantinilaya, Sir-MV layout, Kodgihalli,
Bangalore-560097                            :::::   Petitioner(s)
                                -Vs-
The Superintendent of Central Bureau of
Investigation, (ACB), Shillong              :::::   Respondent(s)




                                   1
 Coram:
             Hon'ble Mr. Justice W. Diengdoh, Judge

Appearance:
For the Petitioner/Appellant(s)   :       Mr. K.Ch. Gautam, Adv. with
                                          Ms. G.C. Marboh, Adv.
For the Respondent(s)             :       Dr. N. Mozika, DSGI with
                                          Ms. K. Gurung, Adv.
i)    Whether approved for reporting in                     Yes/No
      Law journals etc.:

ii)   Whether approved for publication
      in press:                                             Yes/No

                    COMMON JUDGMENT

1. These two petitions preferred under Section 482 Cr.P.C.

refers to the proceedings in CBI Case No. 4/2015 under Sections 120-

B/420/468/471 IPC read with Section 13(2) of the Prevention of

Corruption Act, 1988 pending before the Court of Special Judge, CBI at

Shillong.

2. Since the subject matter relates to allegations of illegal and

fraudulent financial transactions involving a number of accused persons,

the petitioner in Crl.Petn. No. 29 of 2018 as well as the petitioner in

Crl.Petn. No. 31 of 2018 also being impleaded as accused persons

therein, this Court deems it proper to deal with the two petitions and to

pass a common judgment herein.

3. The background history of the case emanates from a

complaint dated 05.04.2013 filed by one Shri Ratul Rabha who is said to

represent an NGO "Nature People for Protection of Forest and Wildlife",

Baghmara, South Garo Hills, Meghalaya before the Commissioner,

Central Vigilance Commission, Government of India, wherein it was

alleged that there is presence of nepotism, manipulation and corruption

in the Ministry of Environment and Forest, Govt. of India‟s programme

at the Regional Centre, National Afforestation and Eco-Development

Board (NAEB), Shillong.

4. Records would show that a Regional Centre of the National

Afforestation and Eco-Development Board (NAEB), Shillong, was set

up at the North Eastern Hill University (NEHU) with jurisdiction over

the entire North Eastern Region. In this regard, a Memorandum of

Understanding (MoU) was signed by the relevant authorities for a period

of 5 years for such Centre to function.

5. The Centre is to carry out related Projects for which, during

the period w.e.f. 01.04.2012 to 31.03.2017, Prof. Brajesh Kumar Tiwari

was the Coordinator with Dr. S.S. Chaturvedi and Dr. S.K. Jha as core

members of the said Regional Centre.

6. The petitioner in Crl.Petn. No. 29 of 2018 was appointed as

Research Officer by the Coordinator of Naib vide appointment order

dated 28.06.2012.

7. The petitioner in Crl.Petn. No. 31 of 2018 was also appointed

as Research Officer of NAEB, NEHU, Shillong vide appointment order

dated 17.09.2011.

8. The Central Vigilance Commission on receipt of the said

complaint (supra) had directed the Chief Vigilance Officer, Ministry of

Environment and Forests (MoEF) to furnish a factual report on such

complaint. In this manner, from one authority to the other, finally the

Vice Chancellor, NEHU who is also the Chairman of the Advisory

Management Committee (AMC) of the said Centre on receipt of related

request, had endorsed the matter to the Pro-Vice Chancellor and Chief

Vigilance Officer, NEHU to inquire into the matter and to submit his

report.

9. A preliminary inquiry was conducted by the Central Bureau

of Investigation (CBI) based on alleged information received from

reliable source that some unknown officers of the Regional Centre

NAEB, NEHU, Shillong in collusion with unknown others, had

committed gross misconduct by unauthorizedly appointing as many as

5(five) Research Officers/Research Fellows and 5(five) supporting staffs

of the said Regional Centre on regular payment of monthly remuneration

in violation of conditions laid down in the MoU (supra). There are also

allegations of non-implementation of works as per the sanctioned

amount and the like.

10. On the basis of the said preliminary enquiry, a regular First

Information Report (FIR) being No. RC SHG 2015A 0003 dated

28.10.2015 was lodged and on inquiry, the following were found to be

suspected to have committed the offence under Sections 120-

B/420/468/471 IPC read with Section 13(2) of the Prevention of

Corruption Act, 1988: -

i) Prof. Brajesh Kumar Tiwari, Co-Ordinator (A-1);

ii) Dr. Shiva Shankar Chaturvedi, (A-2), Core Group

Member;

iii) Dr. Sanjeeva Kumar Jha (A-3) Core Group Member;

iv) Dr. Dhruba Sharma (A-4), the then Research Officer Regional Centre NAEB, NEHU, Shillong (private person);

v) Dr. Subhasish Das Gupta (A-5) the then Research Officer Regional Centre NAEB, NEHU, Shillong (private person);

vi) Shri Niyanta Purkayastha (A-6) Administrative Officer, Regional Centre NAEB, NEHU, Shillong (private person) and unknown others.

11. On completion of investigation, a final report was placed

before the Special Court under the PC Act with the case being registered

as CBI Case No. 4 of 2015. In course of proceedings, on 25.09.2018,

charges under 120-B/420/468/471 IPC read with Section 13(2) of the

Prevention of Corruption Act, 1988 have been framed against four of the

accused persons named in the said report, the petitioners also being

included as such accused persons. Hence, these petitions.

12. Ms. G.C. Marboh, learned counsel for the petitioners has

submitted that the stand of the petitioners is twofold, firstly, that the

respondent/CBI authority while taking up the investigation into the

allegations made against the petitioners amongst others, had given a go

by to the provisions of the CBI Manual by not following what is

stipulated in Chapter 8 Clause 21 which provides that no action should

be taken on anonymous and pseudonymous complaints, that is, when the

identity of the complainant is not known.

13. From the records, it is evident that the complainant who has

filed the said complaint on behalf of the said NGO could not be found

and therefore, his statement was not taken down by the Investigating

Officer. This fact could be ascertained from the communication being

No. DSB(SGH)/NGO-1/2012-14/1419 dated 01.12.2014 (Annexure-1 of

the petition) issued by the Superintendent of Police, DSB, South Garo

Hills addressed to the Deputy Commissioner, South Garo Hills,

Baghmara who, when called upon to verify the existence of the said

NGO which goes by the name of "Nature People for Protection of Forest

and Wildlife", he has reported that there is no such NGO which goes by

such name and also that Shri Ratul Rabha, the alleged complainant could

not be traced out.

14. While referring to the contents of the affidavit filed by the

respondent/CBI, the learned counsel has submitted that at para 14 and 15

of the same, the CBI has made an averment that the appointment of the

petitioner is illegal as he was unauthorizedly appointed by the Regional

Centre, NEHU on payment of monthly remuneration without the

knowledge and approval of the Ministry of Environment & Forest,

Government of India in clear violation of the MOU(supra), while on the

other hand, it was maintained that the petitioner is a public servant which

is a contrary stand taken by the respondent/CBI, the same cannot be

accepted, further submits the learned counsel.

15. The learned counsel has also submitted that in the affidavit

filed by the respondent/CBI, a statement has been made that the

registration of the FIR was on the basis of source oral information,

however, the contents of such oral source information has not been

reduced in writing as is required in terms of Chapter-8.27 of the CBI

Manual.

16. It is also the submission of the learned counsel that it is a fact

that the petitioners have been appointed as Research Officers

respectively, under the Co-Ordinator of the NAEB on a consolidated

pay, therefore, they could not be classed as public servants as defined

under the provisions of the Prevention of Corruption Act. In fact, even in

the Charge Sheet, the petitioners have been mentioned as „Private

Person‟.

17. In support of the petitioners‟ case, the learned counsel has

referred to the case of Vineet Narian & Ors v. Union of India & Anr,

(1998) 1 SCC 226, para 58(12) which reads as follows:

"58(12). The CBI Manual based on statutory provisions of the CrPC provides essential guidelines for the CBI's functioning. It is imperative that the CBI adheres scrupulously to the provisions in the Manual in relation to its investigative functions, like raids, seizure and arrests. Any deviation from the established procedure should be viewed seriously and severe disciplinary action taken against the officials concerned."

18. It is therefore prayed that the charges framed by the learned

Trial Court on 25.09.2018, inter alia, against the petitioners herein, in

fact, that the entire proceedings in the said CBI Case No. 4 of 2015 be

set aside and quashed.

19. Dr. N. Mozika, learned DSGI appearing for the

respondent/CBI in his response has submitted that the petitioners have

approached this Court invoking the inherent power under Section 482

Cr.P.C.

20. On the contention of the petitioners that the FIR and the

subsequent investigation launched, was on the basis of a pseudonymous

complaint, the learned DSGI has submitted that the same is not a fact as

the FIR was registered on 28.10.2015 based on the findings of the

Preliminary Enquiry No. PESHG2015A0002 registered by the CBI,

ACB, Shillong Branch on 26.02.2015, wherein it was found that the

accused persons, including the petitioners herein have committed offence

attracting the provisions of Sections 120-B/420/468/471 IPC read with

Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption

Act, 1988, such preliminary enquiry being initiated on the basis of

reliable source information and not based on the so called pseudonymous

complaint.

21. The learned DSGI has reiterated that a perusal of the charge

sheet, would show that the FIR has been lodged based on information

received from reliable source, wherein it was alleged that unknown

officers of the Regional Centre, NAEB, NEHU, Shillong in collusion

with unknown others had committed gross misconduct by appointment

of 5(five) Research Officers and 5(five) supporting staffs of the said

centre on a monthly remuneration of ₹ 1,75,500/- (Rupees one lakh

seventy five thousand five hundred) only in clear violation of the

conditions laid down in the Memorandum of Understanding (MoU).

22. On a preliminary enquiry being conducted, and on the basis

of the findings on such enquiry, a Regular Case (FIR) was duly

registered. The FIR was not registered on the basis of the said

pseudonymous complaint, the same said to have been made on

05.04.2013 while the Preliminary Enquiry was launched in the month of

January, 2015. Therefore, it could not be that a preliminary enquiry be

initiated after more than one year of the complaint. The fact is, the FIR

was filed in the year 2015 based on such source information. The

reference of the petitioners to the procedure at para 8.5, 8.6 and 8.21 of

the CBI Manual to be followed in the case of pseudonymous complaint

has no relevancy in this case, submits the learned DSGI.

23. Another limb of argument advanced by the learned DSGI is

that the petitioners, as has been revealed from the records, have been

appointed as Research Officers by the Co-Ordinator, Regional Centre,

NAEB, NEHU, Dr. Subhasish Das Gupta on 28.06.2012 and Dr. Dhruba

Sharma on 17.09.2011, albeit, on contractual basis, however, their

appointment as Research Officers respectively, at the relevant point of

time would qualify them to be public servants within the meaning of

Section 2(c)(i) of the PC Act, 1988.

24. In course of investigation, the Investigating Officer based on

evidence both oral and documentary have been able to find out that the

petitioner Dr. Subhasish Das Gupta by abuse of his official position as a

Research Officer had misappropriated funds amounting to ₹ 2,58,798/-

(Rupees two lakhs fifty-eight thousand seven hundred ninety-eight) only.

Similarly, petitioner Dr. Dhruba Sharma had misappropriated funds

amounting to ₹ 1,85,495/- (Rupees one lakh eighty five thousand four

hundred ninety five) only.

25. Finally, the learned DSGI has submitted that the charges

against the petitioners under the said provisions of the IPC and the PC

Act have been framed by the learned Trial Court on 25.09.2018 and in

the meantime, in course of proceedings, the stage of the case is for

recording of the evidence of the prosecution witnesses, therefore, at this

point of time, for the petitioners to come before this Court with a prayer

for quashing of the FIR, the same cannot be allowed as that would in

turn amount to an abuse of the process of court.

26. On the first challenge of the petitioners, that is, that the

respondent/CBI has registered the FIR only on the basis of a

pseudonymous complaint which runs contrary to the provision of the

related CBI Manual at Chapter 8.21 wherein it is clearly stated that "No

action shall be taken on anonymous and pseudonymous complaints...",

the obvious reference was made to the alleged complaint made by the

Program Leader, Nature People for Protection of Forest and Wildlife,

dated 05.04.2013, addressed to the Commissioner, Central Vigilance

Commission. It is a fact that the authorities have failed to trace out the

said complainant and accordingly, the said complaint can be treated as a

pseudonymous complaint and as such, could not be taken as the basis of

launching of investigation.

27. However, what the petitioners failed to notice is that the CBI

has maintained that the preliminary enquiry conducted and the

subsequent registration of a regular case was not done so on the basis of

such alleged pseudonymous complaint, but the whole operation was

carried out on the basis of source information, which is allowed under

the relevant provisions of the CBI Manual.

28. Again, it is noticed that even though, the said pseudonymous

complaint cannot be taken into account to proceed for investigation, on

perusal of the said provision of Chapter 8.21(supra), reproduced herein

for ready reference, it is seen that the investigating agency can utilize the

information contained in such pseudonymous complaint as intelligence

output. The said provision reads as follows:

"8.21. No action shall be taken on anonymous and pseudonymous complaints. Such complaints need not even be sent to the Ministry/Department/Public Sector undertaking concerned by CBI. They should be filed after entry in the complaint register. If there is any doubt about a signed or pseudonymous complaint and enquiry may be held to the limited extent to check whether the signature is genuine and whether the signatory admits having sent the complaint and stands by it. On such a check, if it is found that the signature is genuine, further action should be taken as on the basis of a genuine/signed complaint. Otherwise, no further action need be taken. However, information contained in such complaints may be used as intelligence input for identification public servants indulging in corrupt activities as well as in finding areas of corruption in various departments."

29. A further perusal of the charge sheet would also reveal that

there are enough materials, especially documentary evidence to implicate

the petitioners to the offence alleged against them, which have to be

proved in course of trial and as such, it cannot be said that the FIR or the

findings upon investigation are based on irrelevant materials. The

petitioners have to stand trial to prove their innocence or otherwise. This,

then, would lead to the only conclusion that the first limb of argument

and contention raised by the petitioners cannot be contemplated by this

Court at this point of time.

30. Coming to the next issue, that is, whether the petitioners are

private persons or public servants to enable the CBI to prosecute them in

the instant case, the argument advanced by the learned counsel for the

petitioners in this regard is that they are not public servants, but private

persons which has also been clearly indicated in the charge sheet filed

against them, which is apparently a reference to the identity attached to

the petitioners respectively.

31. This apart, the learned counsel has also contended that the

respondent/CBI has alleged that the petitioners have been unauthorizedly

appointed by the Regional Centre, NAEB, NEHU without the knowledge

and approval of the Ministry of Forest and Environment in clear

violation of the MoU, however, in the same breath, has maintained that

they are public servants discharging public duty. Such contrary stand

cannot be allowed to be taken.

32. To answer this question, it would be purposeful to look into

the definition and nature of the term "public duty" and "public servant"

in the context of the provision of the Prevention of Corruption Act, 1988.

The relevant provision would be Section 2(b) and (c) which reads as

follows:-

"2(b) "public duty" means a duty in the discharge of which the State, the public or the community at large

has an interest.

(c) "public servant" means--

(i) any person in the service or pay of the Government or remunerated by the Government by fees or commission for the performance of any public duty;

(ii) any person in the service or pay of a local authority;

(iii) any person in the service or pay of a corporation established by or under a Central, Provincial or State Act, or an authority or a body owned or controlled or aided by the Government or a Government company as defined in section 617 of the Companies Act, 1956 (1 of 1956);

(iv) any Judge, including any person empowered by law to discharge, whether by himself or as a member of any body of persons, any adjudicatory functions;

(v) any person authorised by a court of justice to perform any duty, in connection with the administration of justice, including a liquidator, receiver or commissioner appointed by such court;

(vi) any arbitrator or other person to whom any cause or matter has been referred for decision or report by a court of justice or by a competent public authority;

(vii) any person who holds an office by virtue of which he is empowered to prepare, publish, maintain or revise an electoral roll or to conduct an election or part of an election;

(viii) any person who holds an office by virtue of which he is authorised or required to perform any public duty;

(ix) any person who is the president, secretary or other office-bearer of a registered co-

operative society engaged in agriculture, industry, trade or banking, receiving or having received any financial aid from the Central Government or a State Government or from any corporation established by or under a Central, Provincial or State Act, or any authority or body owned or controlled or aided by the Government or a Government company as defined in section 617 of the Companies Act, 1956 (1 of 1956);

(x) any person who is a chairman, member or employee of any Service Commission or Board, by whatever name called, or a member of any selection committee appointed by such Commission or Board for the conduct of any examination or making any selection on behalf of such Commission or Board;

(xi) any person who is a Vice-Chancellor or member of any governing body, professor, reader, lecturer or any other teacher or employee, by whatever designation called, of any University and any person whose services have been availed of by a University or any other public authority in connection with holding or conducting examinations;

(xii) any person who is an office-bearer or an employee of an educational, scientific, social, cultural or other institution, in whatever manner established, receiving or having received any financial assistance from the Central Government or any State Government, or local or other public authority."

33. In the case of Sheikh Abdul Majeed & Anr v. Union Territory

of J&K Through Senior Superintendent of Police, 2023 SCC Online

J&K 698, the Hon‟ble High Court of J&K has elaborately dealt with the

issue and concept of „public servant‟ and „public duty‟ as is seen in the

Prevention of Corruption Act, 1988, which this Court, in the context

relatable to this case is in complete agreement with the proposition

advanced therein. Specific reference is hereby made to para 39, 40, 41,

54, 56 & 58 which are reproduced herein below as: -

"39. Prevention of Corruption Act, 1988 is intended to make the anti-corruption law more effective by widening its coverage and scope of the definition of 'public servant'. Accordingly, a person who holds the office by virtue of which he/she is authorized or required to perform any public duty, is a public servant for the purposes of 1988 Act. The definition of 'public duty' is capable of encompassing any duty attached to any office. Thus, performance of such public duty by a person who is holding the office which requires or authorizes him to perform such duty is sine quo non for the application of definition of 'public servant' for the purposes of P C Act 1988. Under Section 2(c) viii of PC Act, 1988, a person who holds the office by virtue of which he is authorized or required to perform any public duty is a 'public servant'. While understanding the true purport and effect of Section 2(C)viii of PC Act, the meaning of the expression 'office' appearing therein as well as 'public duty', as is defined by Section 2(b) is also to be understood. The definition of 'public duty' in Section 2(b) of the PC Act, indeed, is wide, which indicates the discharge of duties in which the State, the public or the community at large has an interest, has been brought within the ambit of the expression 'public duty'.

40. There is no doubt that in the objects and reasons stated for enactment of the Prevention of Corruption Act, 1988, it has been made more than clear that the Act, inter alia, envisages widening of the scope of the definition of 'public servant', nevertheless, the mere performance of public duties by the holder of any office cannot bring the incumbent within the meaning of the expression 'public servant' as contained in Section 2(c) of the PC Act. Therefore, it would be more reasonable to understand the expression 'public servant' by reference to the office and the duties performed in connection therewith to be of public character.

41. Before proceeding further in the matter, it would be just and proper to examine the object for which the Prevention of Corruption Act, 1988 was enacted by the Parliament. The Statement of Objects and Reasons of the Bill is reproduced below: -

"1. The bill is intended to make the existing anti- corruption laws more effective by widening their coverage and by strengthening the provisions.

2. The Prevention of Corruption Act, 1947, was amended in 1964 based on the recommendations of the Santhanan Committee. There are provisions in Chapter IX of the Penal Code, 1860 to deal with public servants and those who abet them by way of criminal misconduct. There are also provisions in the Criminal Law Amendment Ordinance, 1944, to enable attachment of ill-gotten wealth obtained through corrupt means, including from transferees of such wealth. The bill seeks to incorporate all these provisions with modifications so as to make the provisions more effective in combating corruption among public servants.

3. The bill, inter alia, envisages widening the scope of the definition of the expression 'public servant', incorporation of offences under sections 161 to 165A of the Penal Code, 1860 enhancement of penalties provided for these offences and incorporation of a provision that the order of the trial court upholding the grant of sanction for prosecution would be final if it has not already been challenged and the trial has commenced. In order to expedite the proceedings, provisions for day-to-day trial of cases and prohibitory provisions with regard to grant of stay and exercise of powers of revision or interlocutory orders have also been included.

4. Since the provisions of section 161A are incorporated in the proposed legislation with an enhanced punishment, it is not necessary to retain those sections in the Penal Code, 1860. Consequently, it is proposed to delete those sections with the necessary saving provision.

5. The notes on clauses explain in detail the provisions of the Bill."

54. It must be taken into consideration that thrust of Section 2(c) is not on the position held by the individual; rather, the public duty performed by him/her as the legislative intention was not to provide an exhaustive list of authorities which are covered, but a general definition of "public servant". In other words, this section also applies to individuals who are not conventionally considered as public servants. Accordingly, this Court is required to adopt a purposive approach which would give the effect to the intention of legislature.

56. In this regard I am supported by the judgment of Apex Court in 'State of M.P v. Ram Singh' reported as (2000) 5 SCC 88, and the operative portion of the

said judgment is reproduced under:-

"In construing the definition of "public servant" in clause (c) of Section 2 of the 1988 Act, the court is required to adopt a purposive approach as would give effect to the intention of the legislature. In that view the Statement of Objects and Reasons contained in the Bill leading to the passing of the Act can be taken assistance of. It gives the background in which the legislation was enacted. The present Act, with a much wider definition of "public servant", was brought in force to purify public administration. When the legislature has used such a comprehensive definition of "public servant" to achieve the purpose of punishing and curbing growing corruption in government and semi-government departments, it would be appropriate not to limit the contents of the definition clause by construction which would be against the spirit of the statute. The definition of "public servant", therefore, deserves a wide construction."

58. The Supreme Court in State of Gujarat v.

Mansukhbhai Kanjibhai Shah, (2020) 20 SCC 360 has observed: -

"34. On a perusal of Section 2(c) of the PC Act, we may observe that the emphasis is not on the position held by an individual, rather, it is on the public duty performed by him/her. In this regard, the legislative intention was not to provide an exhaustive list of authorities which are covered, rather a general definition of "public servant" is provided thereunder. This provides an important internal evidence as to the definition of the term "university".

44. As discussed earlier, the object of the PC Act was not only to prevent the social evil of bribery and corruption, but also to

make the same applicable to individuals who might conventionally not be considered public servants. The purpose under the PC Act was to shift focus from those who are traditionally called public officials, to those individuals who perform public duties. Keeping the same in mind, as rightly submitted by the learned Senior Counsel for the appellant State, it cannot be stated that a "deemed university"

and the officials therein, perform any less or any different a public duty, than those performed by a university simpliciter, and the officials therein."

[Emphasis Supplied]

34. If one is to understand as to whether the person in question is

a public servant or not in terms of the provisions of the PC Act, 1988, the

function and duty of such person as to be established to see as to whether

he is performing a public duty or not.

35. The petitioners have not denied the fact that at the relevant

period, they have been appointed as research officers to perform duties

in furtherance of the objectives of the „National Afforestation and Eco-

Development Board‟ (NAEB) under the aegis of the North Eastern Hill

University (NEHU), which in turn is under the direct control and

supervision of the Ministry of Environment and Forest, Government of

India. The duties performed by the petitioners would definitely be in the

interest of the State or public or community development. This, by itself

can only mean that the nature of the duties and functions of the

petitioners respectively are in public interest, or rather is one which

involves public duty.

36. Situated thus, it can be safely said that the petitioners herein

are public servants in terms of the provision of Section 2 (c) of the PC

Act. This has also been observed by the Hon‟ble Supreme Court in the

case of State of Gujarat v. Mansukhbhai Kanjibhai Shah, (2020) 20 SCC

360, at para 49 & 50.

"49. In order to appreciate the amplitude of the word "public servant", the relevance of the term "public duty" cannot be disregarded. "Public duty"

is defined under Section 2(b) of the PC Act, which is reproduced below:

2(b) 'public duty' means a duty in the discharge of which the State, the public or the community at large has an interest.

50. Evidently, the language of Section 2(b) of the PC Act indicates that any duty discharged wherein State, the public or community at large has any interest is called a public duty. The first explanation to Section 2 further clarifies that any person who falls in any of the categories stated under Section 2 is a public servant whether or not appointed by the government. The second explanation further expands the ambit to include every person who de facto discharges the functions of a public servant, and that he should not be prevented from being brought under the ambit of public servant due to any legal infirmities or technicalities."

37. On the contention of the petitioners that the provision of

Chapter 8.27 of the CBI Manual was given a go by, by the Investigating

Officer in that the contents of the source information have not been

reduced in writing and thus, procedural impropriety has been occasioned,

the case of Vineet Narian (supra) being applicable. This Court on an

overall analysis of the facts and circumstances of the case of the CBI

made out against the petitioners, would opine that there are enough

available materials including documentary evidence to conclude that a

prima facie case has been made out against them, thus, the source

information has credence in this regard, irrespective of whether the same

ought to be reduced in writing or not.

38. These petitions have been filed taking recourse to the

provision of Section 482 Cr.P.C. This provision expresses the inherent

power of the High Court to exercise jurisdiction in cases and situations

so as to prevent the abuse of the legal process and to secure the ends of

justice

39. In a catena of judgments by the Hon‟ble Supreme Court

dealing with this provision, certain parameters and guidelines have been

laid down to enable the High Court to properly exercise this power. One

such case is the case of State of Haryana & Ors v. Bhajan Lal & Ors

reported in 1992 Supp (1) SCC 335, wherein at para 102, the following

is found

"102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Curt in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustrations wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelized and inflexible guidelines or rigid formulac and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.

(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.

(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.

(3) Where the uncontroverted allegations made in the FIR or complaint and the

evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.

(4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.

(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.

(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.

(7) Where a criminal proceeding is manifestly attended with malafide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."

40. The High Court while exercising its inherent power to quash

an FIR or criminal proceeding may do so, if the guidelines at para 102

(supra) can be applied to a particular case. However, in the case of the

petitioners herein, the guidelines at 1, 3 and 7 cannot be applied,

inasmuch as, the facts and circumstances as discussed hereinabove

would reveal that the FIR and the allegations made in the complaint do

contain prima facie evidence to establish the complicity of the petitioners

to the offence alleged.

41. Therefore, this Court has no hesitation to conclude that the

petitioners have not been able to make out a case in their favour and for

this Court to exercise its inherent power under Section 482 Cr.P.C.

42. Accordingly, these petitions are found to be devoid of merits