Rajasthan High Court

Vinay Tambi vs State Of Rajasthan And Ors on 29 January, 2021

Bench: Sanjeev Prakash Sharma

       HIGH COURT OF JUDICATURE FOR RAJASTHAN
                   BENCH AT JAIPUR

                S.B. Criminal Writ Petition No. 255/2018

Vinay Tambi S/o Shri Avadh Bihari Tambi, R/o D-701, Somdutt
Landmark, Hawa Sadak, Civil Lines, Jaipur, Raj.
                                                                     ----Petitioner
                                     Versus
1.      State Of Rajasthan Through Pp.
2.      Director General Of Police, Rajasthan, Lal Kothi, Jaipur,
        Raj.
3.      Additional Director General Of Police Crime Jaipur, Raj.
4.      Additional Director General Of Police Vigilance Jaipur, Raj.
5.      Deputy Commissioner Of Police, Jaipur South, Jaipur.
6.      Sho, Police Station Mahesh Nagar, Jaipur, Raj.
7.      Director, Central Bureau Of Investigation, New Delhi.
                                                                  ----Respondents

For Petitioner(s)           :    Mr. RS Shekhawat, Adv.
For Respondent(s)           :    Mr. RP Singh, AAG, assisted by
                                 Mr. Jaivardhan Singh Shekhawat &
                                 Ms. Alka Bhatnagar, Adv.
                                 Mr. Madhav Mitra, Adv.

HON'BLE MR. JUSTICE SANJEEV PRAKASH SHARMA

Judgment / Order

Reserved on 15/01/2021 Pronounced On 29/01/2021

1. Petitioner has preferred instant criminal writ petition alleging

that in the Syndicate Bank Scam of Rs.1100 Crore the Central

Bureau of Investigation (CBI) conducted investigation and during

investigation certain accused-persons namely; Shankar

Khandelwal and Bharat Bamb were arrested and sent to judicial

custody. The petitioner further alleges that the accused-Shankar

Khandelwal had taken certain amount as loan on interest from

(2 of 15) [CRLW-255/2018]

senior Police Officers including one Dinesh Sharma, ACP, Malviya

Nagar, Jaipur and as he was arrested, the amount of the senior

Police Officers was blocked. In March, 2017, the said accused-

Shankar Khandelwal was granted bail by the Supreme Court on

medical ground and the Police Officers were putting pressure for

returning of the said amount. The petitioner further alleged that in

2015, he and his some relatives entered in partnership with said

accused-Shankar Khandelwal and the petitioner and his relatives

suffered big financial loss and crores of rupees were due against

said accused-Shankar Khandelwal and approximately a sum of

Rs.40 crore of petitioner and his relatives was still due against

said Shankar Khandelwal which he was not paying. It is further

alleged that said Shankar Khandelwal lodged false and concocted

FIR No.270/2017 at Police Station, Jawahar Circle, Jaipur under

Section 406, 420, 467, 468, 471 and 120B IPC and in the garb of

the said FIR, the then ACP and Shankar Khandelwal tried to extort

a sum of Rs.6 Crore from the petitioner. A detailed representation

was submitted by the petitioner in May, 2017 to the DCP (East),

Jaipur whereafter he also tried to meet the Commissioner of Police

but was not able to meet him. It is stated that on 18/08/2017, the

petitioner was sitting in his office where at about 5.00 PM, SHO,

Police Station, Jawahar Circle, Jaipur and two other Police

Personnel forcefully took him to the Police Station at Jawahar

Circle and the petitioner was informed that he is being arrested. It

is alleged that ACP Dinesh Sharma also came to the Police Station

and on his instructions, the Investigating Officer abused the

petitioner and pressed him to make payment of Rs.6 Crore to

Shankar Khandelwal and after being forced, he was released only

when the relatives of the petitioner gave guarantee to the Police

(3 of 15) [CRLW-255/2018]

Personnel that they would give a sum of Rs.1 Crore on next day

and Rs.5 Crore within fifteen days and the petitioner was released

in the night at 12.45 AM. On the next day, the petitioner gave a

pay order of Rs.50 Lac and one cheque of Rs.50 Lac to Shankar

Khandelwal whereafter the Police Personnel started putting

pressure to pay remaining amount of Rs.5 Crore to Shankar

Khandelwal. The petitioner sent a written report under Section

154 Cr.P.C. to the Director General of Police on 02/09/2017

mentioning the said facts but the FIR was not registered. It is

prayed that since higher Police Officers of Rajasthan Police are

involved, the respondent No.7-Director, Central Bureau of

Investigation, New Delhi be directed to register FIR on the basis of

the written report and make investigation.

2. Learned counsel for the petitioner submitted that the

Additional Director General of Police, Rajasthan had directed for

registration of FIR but the FIR was not registered.

3. Reply has been filed by respondents No.1 to 6 and they have

denied the allegations. It is stated that the complainant was called

by the Investigating Officer which is reflected from the case diary

No.22 dated 18/08/2017 for allegations levelled by him in FIR

No.270/2017. It is further submitted that the fact regarding giving

pay order and cheque to Shankar Khandelwal are also not proved

from any document and it is stated that to protect himself from

the above FIR and to put pressure on the Police Officials, the

petitioner has filed this false complaint.

4. Learned counsel for the petitioner submitted that it was

incumbent upon the respondents to register the FIR. He relies on

the judgment passed by this Court in Ram Kishan Meena Vs.

State & Ors., decided on 11/12/2007 as also the judgment of

(4 of 15) [CRLW-255/2018]

Supreme Court in Ramesh Kumari Vs. State (NCT of Delhi) &

Ors.: AIR 2006 SC 1322 and in Lalita Kumari Vs. Govt. of UP

& Ors.: AIR 2014 (SC) 187.

5. It appears that a detailed reply has again been filed by the

respondents wherein it is stated that the petitioner, who was an

accused in FIR No.270/2017, had sent 5 identical complaints to

Police Officers namely; Director General of Police, Additional

Director Genral of Police (Vigilance), ADGP (Crime), Deputy

Commissioner Police (South) Jaipur and Station House Officer,

Mahesh Nagar, Jaipur. It is further submitted that on receiving the

letter from the petitioner dated 02/09/2017, the ACP, Sodala,

Jaipur was directed to conduct enquiry who filed his report on

15/09/2017 and found that the allegations were baseless. The

DCP (South), Jaipur orally directed to send the matter to ADG

(Crime). It is further stated that Additional Superintendent of

Police (Vigilance) Mr. Anil Rao was directed to inquire into the

complaint which was transferred to Superintendent of Police (Civil

Rights) who submitted her report to ADGP (Vigilance). On the

recommendations of ADGP (Vigilance), the DGP ordered ADG (ATS

and SOG) to re-inquire into the matter and thereafter all the three

reports were examined by the ADGP (Crime) who reached to the

conclusion that no commission of crime can be said to have been

committed and relying upon his report, the DGP closed the

proceedings on 06/08/2019. The FIR registered against the

petitioner bearing No.270/2017 was finalized and the allegations

of the petitioner were found to be false at all levels and therefore,

the matter was closed as per directions of the DGP. It is stated

that the petitioner has commercial terms with Shankar Khandelwal

(5 of 15) [CRLW-255/2018]

and with a view to obtain the amount, the Police Personnel are

being harassed.

6. Learned counsel for the respondents stated that if the

petitioner had a grievance of not registering of FIR under Section

154 Cr.P.C., he always had a remedy to file a complaint under

Section 156(3) Cr.P.C. before the concerned Magistrate which

empowers the Magistrate to direct for registering the FIR.

However, the petitioner has not submitted any complaint to the

concerned Magistrate with regard to non-registration of FIR. It is

also submitted that the allegations of collusion of ACP Dinesh

Sharma were wholly baseless and false and as there are existing

business relations between Shankar Khandelwal and the petitioner

and several cases of civil and criminal nature have been filed

against each other, the present petition has been filed only to

exercise pressure on the Police Personnel so that fair investigation

may be hampered. It is also stated that the petitioner during

investigation conducted by Mr. Hari Prasad Sharma, IGP (CID-CB)

and by Mr. Biju George Joseph admitted in his statement that he

himself drove his own car to the Police Station and therefore, it is

submitted by the respondents that the instant criminal writ

petition deserves to be dismissed. He relies on the judgment of

the Apex Court in Shree Shree Ram Janki Ji Asthan Tapovan

Mandir & Anr. Vs. State of Jharkhand & Ors.: (2019) 6 SCC

777.

7. I have considered the submissions.

8. It is a case where the petitioner has stated that he had sent

a written report to the ADGP (Vigilance) under Section 154 Cr.PC.

read with Section 36 Cr.P.C. wherein he has stated that he

informed about the allegations of extortion and abduction to the

(6 of 15) [CRLW-255/2018]

Authorities at Police Station, Mahesh Nagar, Jaipur on 02/09/2017

who refused to register the FIR. A complaint was also submitted

under Section 154(3) Cr.P.C. to the DCP, (South), Jaipur on

02/09/2017 and copy of the same was also sent to the Addl. DGP

(Crimes), Police Headquarters by registered post with the prayer

to register the FIR and also take action under the Police Act

against the concerned Police Officers for not registering FIR and

also take departmental action.

9. From the record which has come from the reply and the

documents which have been placed on record by the petitioner as

well as the respondents, it appears that on receiving the

complaint, the ADGP (Crime) issued directions to the DCP (East),

Jaipur to register the FIR vide letter dated 05/09/2017.

Considering that the matter is related to Police Station, Mahesh

Nagar, Jaipur, the DCP (East), Jaipur sent the complaint to the

DCP (South), Jaipur for further action. At that stage, as per the

reply filed by the respondents, the DCP (South), Jaipur issued

orders to ACP, Sodala, Jaipur to conduct enquiry into the matter.

As the orders for registering the FIR had been issued without

conducting an enquiry as the petitioner was an accused in FIR

No.270/2017 at Police Station, Jawahar, Circle, Jaipur and was

directly accusing the Senior Police Officers in hierarchy of

investigation in the case where the petitioner was an accused, the

ACP (Sodala), Jaipur conducted an enquiry and submitted his

report on 15/09/2017 and the allegation of the petitioner having

been abducted and brought to the Police Station was found to be

incorrect and in this regard, notice was sent to the petitioner who

submitted a reply on 14/09/2017 that whatever complaint he has

made is his statement. It was submitted in the report that the

(7 of 15) [CRLW-255/2018]

petitioner had himself gone to the Police Station, Jawahar Circle,

Jaipur alongwith one Pahad Singh and after having recorded his

statement, he was left to go back on 18/08/2017 itself. He was

never called at Police Station on 19/08/2017 and there was no

pressure exercised on him and there was no case of extortion.

10. Separately, an inquiry was conducted by one Hari Prasad

Sharma, IGP (CID) (CB) who also found the allegations made by

the petitioner as false and he has given a finding that the

petitioner himself went in his own car to the Police Station and the

pay order was prepared on 21/08/2017 of a sum of Rs.50 Lac and

a Cheque of Rs.50 Lac was also issued which was paid on

01/09/2017 to Shankar Khandelwal.

11. The DGP also got the matter examined through ADGP who

sent the matter to one Mr. Biju George Joseph, Police

Commissioner, Jodhpur for conducting independently an inquiry

relating to the allegations who also reached to the conclusion that

there was no pressure exercised on Mr. Vinay Tambi to pay the

amount of Rs.One Crore to Mr. Shankar Khandelwal. However, the

Commissioner found certain abnormal circumstances in the

conduct of Mr. Dinesh Sharma, ACP as well as transferring of the

investigation of Case No.270/2017 from one Investigating Officer

to another. The report of the Police Commissioner was again

examined by the ADGP, CID (Crime Branch) who reached to the

conclusion that the view of Commissioner of indicting Mr. Dinesh

Sharma, ACP was not found to be correct and the presence of ACP

in the Police Station cannot be said to be any misconduct. The

allegation of misbehaviour or extortion was found to be false and

the action of appointing Sukhveer Singh as IO was on account of

the earlier IO Mr. Dharam Raj Meena proceeding on leave which

(8 of 15) [CRLW-255/2018]

cannot be said to be in any manner casting doubts on ACP. There

was no compelling circumstances to show that the petitioner had

been forced to repay money to the complainant-Shankar Lal

Sharma in FIR No.270/2017. It was also noticed that there were

several cases pending between Mr. Shankar Khandelwal and the

petitioner-Mr. Vinay Tambi relating to land disputes as well as

relating to failed and faulty business transactions against each

other and many of which had already attained finality as being of

civil nature. It was also mentioned that the case was registered

after intervention of the Court of CJM against the petitioner and

therefore, the petitioner was called who appeared in his own car

after four months of registration of FIR by Shankar Khandelwal.

12. The said report was accepted by the DGP and he directed for

closure of the proceedings.

13. After considering the submissions and carefully looking into

the entire record, as noticed above, this Court is satisfied that the

report submitted by Mr. BL Soni, ADGP, CID (Crime Branch)

cannot be said in any manner to be wanting and the DGP has

rightly directed for closure of the proceedings. The allegation

levelled by the petitioner in the writ petition with regard to

connections of Police Officers with Shankar Khandelwal are also

found baseless and bald allegations without any documentary

proof. This Court notices that the Police Officials are always in a

delicate position where it is easy for making bald and wild

allegations by such individuals who themselves are accused in

some criminal case. Overacting and attempt to save oneself can

be some of the reasons for making such allegations. The

possibilities of such circumstances cannot be ruled out in the

present case, moreso, as the petitioner has not been able to show

(9 of 15) [CRLW-255/2018]

any connection between the officers and Shankar Khandelwal of

any monetary transaction.

14. As regards the submission of learned counsel for the

petitioner that once a complaint has been sent by the petitioner,

FIR ought to have been registered by the concerned Police

Station, this Court finds that the complaint is addressed to ADGs,

as noticed above and there is no FIR as such registered in any

Police Station by the petitioner nor he availed remedy available to

him under Section 156(3) Cr.P.C. by lodging complaint before the

concerned Judicial Magistrate.

15. In Sakiri Vasu Vs. State of Uttar Pradesh & Ors.:

(2008) 2 SCC 409, the Apex Court observed as under:-

"24. In view of the above mentioned legal position, we are of the view that although Section 156(3) is very briefly worded, there is an implied power in the Magistrate under Section 156(3) Cr.P.C. to order registration of a criminal offence and /or to direct the officer in charge of the concerned police station to hold a proper investigation and take all such necessary steps that may be necessary for ensuring a proper investigation including monitoring the same. Even though these powers have not been expressly mentioned in Section 156(3) Cr.P.C., we are of the opinion that they are implied in the above provision.

25. We have elaborated on the above matter because we often find that when someone has a grievance that his FIR has not been registered at the police station and/or a proper investigation is not being done by the police, he rushes to the High Court to file a writ petition or a petition under Section 482 Cr.P.C. We are of the opinion that the High Court should not encourage this practice and should ordinarily refuse to interfere in such matters, and relegate the petitioner to his alternating remedy, firstly under Section 154(3) and Section 36 Cr.P.C. before the concerned police officers, and if that is of no avail, by approaching the concerned Magistrate under Section 156(3).

(10 of 15) [CRLW-255/2018]

26. If a person has a grievance that his FIR has not been registered by the police station his first remedy is to approach the Superintendent of Police under Section 154(3) Cr.P.C. or other police officer referred to in Section 36 Cr.P.C. If despite approaching the Superintendent of Police or the officer referred to in Section 36 his grievance still persists, then he can approach a Magistrate under Section 156(3)Cr.P.C. instead of rushing to the High Court by way of a writ petition or a petition under Section 482 Cr.P.C. Moreover he has a further remedy of filing a criminal complaint under Section 200 Cr.P.C. Why then should writ petitions or Section 482 petitions be entertained when there are so many alternative remedies?

27. As we have already observed above, the Magistrate has very wide powers to direct registration of an FIR and to ensure a proper investigation, and for this purpose he can monitor the investigation to ensure that the investigation is done properly (though he cannot investigate himself). The High Court should discourage the practice of filing a writ petition or petition under Section 482 Cr.P.C. simply because a person has a grievance that his FIR has not been registered by the police, or after being registered, proper investigation has not been done by the police. For this grievance, the remedy lies under Sections 36 and 154(3) before the concerned police officers, and if that is of no avail, under Section 156(3) Cr.P.C. before the Magistrate or by filing a criminal complaint under Section 200 Cr.P.C. and not by filing a writ petition or a petition under Section 482 Cr.P.C."

16 In State of West Bengal & Ors. Vs. Committee for

Protection of Democratic Rights, West Bengal & Ors.:

(2010)3 SCC 571, five Judges Bench of the Apex Court held as

under:-

"70. Before parting with the case, we deem it necessary to emphasise that despite wide powers conferred by Articles 32 and 226 of the Constitution, while passing any order, the Courts must bear in mind certain self-imposed limitations on the exercise of these Constitutional powers. The very plenitude of the power under the said Articles requires great caution in its exercise. In so far as the question of issuing a direction to the CBI to conduct investigation

(11 of 15) [CRLW-255/2018]

in a case is concerned, although no inflexible guidelines can be laid down to decide whether or not such power should be exercised but time and again it has been reiterated that such an order is not to be passed as a matter of routine or merely because a party has levelled some allegations against the local police. This extra-ordinary power must be exercised sparingly, cautiously and in exceptional situations where it becomes necessary to provide credibility and instil confidence in investigations or where the incident may have national and international ramifications or where such an order may be necessary for doing complete justice and enforcing the fundamental rights. Otherwise the CBI would be flooded with a large number of cases and with limited resources, may find it difficult to properly investigate even serious cases and in the process lose its credibility and purpose with unsatisfactory investigations."

17. In T.C. Thangaraj Vs. V. Engammal & Ors.: (2011) 12

SCC 328, the Supreme Court held as under:-

"8. The learned counsel for the complainant, on the other hand, cited a decision of two-Judge Bench of this Court in Ramesh Kumari v. State (N.C.T. of Delhi) & Ors. reported in (2006) 2 SCC 677, in which this Court directed the CBI to register a case and investigate into the complaint of the appellant because the complaint was against the police officer and the Court was of the view that the interest of justice would be better served if the case is registered and investigated by an independent agency like the CBI.

9. The decision of the two-Judge Bench of this Court in Ramesh Kumari v. State (N.C.T. of Delhi) & Ors. (supra) will have to be now read in the light of the principles laid down by the Constitution Bench of this Court in State of West Bengal & Ors. v. Committee for Protection of Democratic Rights, West Bengal & Ors. (supra). The Constitution Bench has considered at length the power of the High Court to direct investigation by the CBI into a cognizable offence alleged to have been committed within the territorial jurisdiction of a State and while taking the view that the High Court has wide powers underArticle 226 of the Constitution cautioned that the Courts must bear in mind certain self-imposed limitations.

11. In the impugned order, the High Court has not exercised its constitutional powers under Article 226 of the Constitution and directed the CBI to investigate into the complaint with a view to protect her personal liberty under

(12 of 15) [CRLW-255/2018]

Article 21 of the Constitution or to enforce her fundamental right guaranteed by Part-III of the Constitution. The High Court has exercised its power under Section 482 Cr.P.C. on a grievance made by the complainant that her complaint that she was cheated in a loan transaction of Rs.3 lakh by the three accused persons, was not being investigated properly because one of the accused persons is an Inspector of Police. In our considered view, this was not one of those exceptional situations calling for exercise of extra-ordinary power of the High Court to direct investigation into the complaint by the CBI. If the High Court found that the investigation was not being completed because P. Kalaikathiravan, an Inspector of Police, was one of the accused persons, the High Court should have directed the Superintendent of Police to entrust the investigation to an officer senior in rank to the Inspector of Police under Section 154(3) Cr.P.C. and not to the CBI.

12. It should also be noted that Section 156(3) of the Code of Criminal Procedure provides for a check by the Magistrate on the police performing their duties and where the Magistrate finds that the police have not done their duty or not investigated satisfactorily, he can direct the Police to carry out the investigation properly, and can monitor the same."

18. In K.V. Rajendran Vs. CB-CID: (2013) 12 SCC 480, the

Apex Court held as under:-

17. In view of the above, the law can be summarised to the effect that the Court could exercise its Constitutional powers for transferring an investigation from the State investigating agency to any other independent investigating agency like CBI only in rare and exceptional cases. Such as where high officials of State authorities are involved, or the accusation itself is against the top officials of the investigating agency thereby allowing them to influence the investigation, and further that it is so necessary to do justice and to instil confidence in the investigation or where the investigation is prima facie found to be tainted/biased."

(13 of 15) [CRLW-255/2018]

19. In Sudipta Lenka Vs. State of Odisha & Ors.: (2014) 11

SCC 527, the three Judges Bench of the Apex Court held as

under:-

"15. The position has also been succinctly summed up in Disha to which one of us (the learned Chief Justice) was a party by holding that transfer of the investigation to the Central Bureau of Investigation or any other specialised agency, notwithstanding the filing of the chargesheet, would be justified only when the Court is satisfied that on account of the accused being powerful and influential the investigation has not proceeded in a proper direction or it has been biased. Further investigation of a criminal case after the chargesheet has been filed in a competent court may affect the jurisdiction of the said Court under Section 173 (8) of the Code of Criminal Procedure. Hence it is imperative that the said power, which, though, will always vest in a Constitutional Court, should be exercised only in situations befitting, judged on the touchstone of high public interest and the need to maintain the Rule of Law."

20. In Bimal Gurung Vs. Union of India & Ors.: (2018) 15

SCC 480, the Apex Court held as under:-

"29. The law is thus well settled that power of transferring investigation to other investigating agency must be exercised in rare and exceptional cases where the Court finds it necessary in order to do justice between the parties to instil confidence in the public mind, or where investigation by the State Police lacks credibility. Such power has to be exercised in rare and exceptional cases. In K.V. Rajendran vs. Superintendent of Police, CBCID South Zone, Of Police, (2013) 12 SCC 480, this Court has noted few circumstances where the Court could exercise its constitutional power to transfer of investigation from State Police to CBI such as: (i) where high officials of State authorities are involved, or (ii) where the accusation itself is against the top officials of the investigating agency thereby allowing them to influence the investigation, or (iii)where investigation prima facie is found to be tainted/biased."

(14 of 15) [CRLW-255/2018]

21. In Sujatha Ravi Kiran Vs. State of Kerala: (2016)7 SCC

597, three Judges Bench of the Supreme Court held as under:-

"10. Taking into account the law laid down by this Court in Committee for Protection of Democratic Rights (supra), direction for investigation by C.B.I. was declined by this Court in the case of K. Saravanan Karuppasamy & Anr. v. State of Tamil Nadu & Ors. (2014) 10 SCC 406 and Sudipta Lenka v. State of Odisha & Ors. 2014 (11) SCC 527.

11. Considering the facts and circumstances of the case in hand, in the light of the above principles, we are of the view that the case in hand does not entail a direction for transferring the investigation from the state police/special team of State Police Officers to C.B.I. The facts and circumstances in which the offence is alleged to have been committed can be better investigated into by the state police. However, having regard to the nature of allegations levelled by the petitioner, we deem it appropriate to direct the State of Kerala to constitute a special team of police officers headed by an officer not below the rank of Deputy Inspector General of Police to investigate the matter."

22. Similar view has been taken by the Apex Court in its recent

judgment in Shree Shree Ram Janki Ji Asthan Tapovan

Mandir & Anr. Vs. State of Jharkhand & Ors.: (2019) 6 SCC