TMI Blog2008 (10) TMI 692X X X X Extracts X X X X X X X X Extracts X X X X ..... ged at the instance of the Vigilance Officer shows that the same was general in nature. One of the several allegations contained therein referred to was that irregularities have been committed in the matter of recruitment of Panchayat Secretaries. No detail, however, was furnished. All the persons involved were not named. What types of irregularities have been committed were not stated. In an ordinary case, we might have accepted the submission of Mr. Rao that the High Court should not direct CBI to investigate into a particular offence. The offence, however, is not ordinary in nature. It involved investigation into the allegations of commission of fraud in a systematic manner. It had a wide ramification as a former Minister of the State is said to be involved. The second FIR lodged by the CBI, however, was on a wider canvass. It was lodged after holding a detailed preliminary inquiry. CBI collected a large number of materials. It had also recorded the statements of a large number of persons. Whereas the first FIR dated 14.06.2002, thus, contained the misdeeds of individuals, the second one depicts a crime committed in course of selection process of Panchayat Secretaries invo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ither independently or together with the chargesheet which may be submitted by the CBI before it. These directions are issued for doing complete justice to the parties and in terms of the decision of this Court in Divine Retreat Centre v. State of Kerala and Ors.[ 2008 (3) TMI 734 - SUPREME COURT] , whereupon Mr. Rao himself placed strong reliance. As the investigation is complete, the CBI may file chargesheet before a court having appropriate jurisdiction. Appeals are dismissed with directions. - S.B. Sinha and Aftab Alam For the Appearing Parties: P.P. Malhotra, A.S.G., P.P. Rao, L.N. Rao, Sr. Advs., A.K. Pandey, Aseem Malhotra, Sunita R. Singh, Sefali Jain, Purushottam S.T., Sahar Bakht, Utsav, Febin A.K., Rajesh Prasad Singh, Amit Kumar, Satyakam, B.K. Prasad, P. Parmeswaran, Ajay Pal, Nikhil Jain and Pranab Kumar Mullick, Advs JUDGMENT S.B. Sinha, J. Leave granted. 1. These two appeals involving similar questions of law and fact were taken up for hearing together and are being disposed of by this common judgment. 2. Nirmal Singh Kahlon, Appellant in appeals arising out of SLP (C) Nos. 24777-24778 of 2005 was the Rural Development and Panchayats ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed Special Leave Petition (Civil) No. 15843 of 2001 by an order dated 24th September, 2001. Interviews of the eligible candidates were held thereafter and 908 candidates were selected. 7. In or about March, 2002 a change in the State Government took place. The Congress Party came into power after election. The new Government made an attempt to reinstate the Panchayat Patwaris whose services had been terminated by the previous Government pursuant to the orders of the High Court. 8. Selection of the said 908 candidates was the subject matter of another writ petition which was marked as CWP No. 5283 of 2003 entitled Veero Devi v. State of Punjab and Ors. In the said writ petition the Court formed a prima facie opinion that irregularities in the selection process had been committed. By an order dated 3rd April, 2002, the High Court issued the following directions : The Bench Secretary is directed to give copy of this order to learned Deputy Advocate General who shall forward the same to the Advocate General, Punjab. The Advocate General, Punjab shall send the copy of the order to the Chief Secretary, Punjab, who shall ensure that a thorough probe is conducted into the selectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he known resources. This has also come to knowledge that Kahlon has got leased 2 acres of Shamlat land at village Phabhat, Tehsil Dera Bassi, District Patiala for 7 years in the name of his close relative Burwinder Singh s/o. Ajnala by mis-using his position, whereas Shamlat land cannot be leased out for such a long period. In this way Ex.R.D.P.M. has earned crores of rupees by mis-using his position through recruitments, transfers, appointments and promotions and has accumulated countless assets and cash. By misusing his powers, he had made wrong appointments for his benefit and the deserving candidates were overlooked. By doing this Ex.RE.D.P.M. has committed crime under Section 420, 467, 468, 120B, 13(1)(d)(e) read with 13(2). 11. A charge sheet was filed against Nirmal Singh Kahlon and J.P. Singla (appellant No. 1 in civil Appeals arising out of SLP (C) Nos. 25226-25227 of 2005), Ex. Deputy Director of Rural Development and Panchayats. Appellant Nos. 2 and 3 in civil Appeals arising out of SLP (C) 25226- 25227 of 2005 were shown as the witnesses in the said report. 12. It appears somewhat strange that despite the same a statement was made before the Court on behalf of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Panchayat Secretaries, who are writ petitioners, to Central Bureau of Investigation and also to take action against the officers named in the inquiry report, that the Central Bureau of Investigation stands impleaded as Respondent No. 5 in civil Writ Petition No. 5283 of 2002 and that today an application has been filed for placing on record DO No. 18/79-02-4/RDE 4/560 dated 04/03/2003 and DO No. I/C/2003-CHG/NZ dated 02/04/2003 of the Director Central Bureau of Investigation, Government of India, New Delhi, as Annexure R-1 and Annexure R-2 on behalf of Respondent No. 1 and 2, stating, inter alia, that Central Bureau of Investigation has communicated that it would not be able to take up the investigation of the above said scandal and it may get probed through the State Vigilance after the court had adjourned the further hearing of the case awaiting the submission of the report of Central Bureau of Investigation. Unfortunately, even though Central Bureau of Investigation is Respondent No. 5 in civil Writ Petition No. 5283 of 2002, a copy of aforementioned application has been served on Shri Rajan Gupta, Advocate so that we could have a positive response of Central Bureau of Investi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tral Bureau of Investigation and then the State of Punjab came to nearly agreeing to the observations made by the court, though after sometime the Court noticed some dilly dallying on the part of the State Government but ultimately it decided to hand over the investigation to the C.B.I. We reiterate that in the peculiar facts and circumstances investigation by Central Bureau of Investigation appears to be not only just and proper but a necessity. Accordingly, we hope and trust that the Central Bureau of Investigation will do its best to investigate and book the real culprits. We respect that Central Bureau of Investigation will do its investigation within a reasonable time though we appreciate the limited resources, which it is having. We are sure that if the Director of Central Bureau of Investigation moves the Government of India to provide more funds and/or offices, it will consider the request, if so made, objectively and suitable decision will be taken by the Government of India. 20. The Central Bureau of Investigation, however, informed the High Court on 13th August, 2003 that a special team had been sent for a meaningful investigation in respect of the allegations, and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the High Court in exercise of its power under Article 226 of the Constitution of India or otherwise. Even such an order of reinvestigation or further investigation is not contemplated under Section 173(8) of the Code of Criminal Procedure (for short `the Code'). 5) Section 173(8) of the Code does not envisage any investigation by a central agency created under the Act after filing of a charge sheet, in which event, the Court of Magistrate alone has the jurisdiction to issue any further direction regarding investigation. 6) As a first information report had already been lodged by the Vigilance Department, another first information report for the same cause of action could not have been lodged by the Central Bureau of Investigation in view of the decisions of this Court in T.T. Antony v. State of Kerala 2001CriLJ3329 and Kari Choudhary v. Mst. Sita Devi and Ors. 2002CriLJ923 . 7) The Central Bureau of Investigation itself in IAs. 3 and 4 stated that a fresh first information report had been registered on 26th June, 2003 , which goes to show that earlier first information report as also the material collected therein had been totally ignored. 8) The High Court i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 001)10SCC759 and Sasi Thomas v. State (2006) 12 SCC 421; the High Court having no constitutional power in this behalf which is vested only in the Court of Magistrate. 14) Appellant Nos. 2 and 3 in appeals arising out of SLP (Civil) Nos. 25226 - 25227 of 2005, having been cited witnesses could not have been made accused which is violative of Article 20 of the Constitution of India. 24. Mr. Ravi Shankar Prasad, learned senior counsel appearing on behalf of the State of Punjab, supported the contentions of Mr. Rao. 25. Mr. P.P. Malhotra, learned Additional Solicitor General, appearing for the Central Bureau of Investigation, on the other hand, would submit : 1) The Act being a special statute, the provision thereof would prevail over the provisions of the Code of Criminal Procedure, 1973 (for short `the Code'). 2) The expression `rank' used in Section 36 of the Code cannot be held to be confined only to the same agency but would mean the investigating agency. 3) In terms of Section 3 of the Act the ultimate authority being the State, it was entitled to entrust the investigation to the Central Bureau of Investigation. 4) The purport and object of insertin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an accused under Article 21 of the Constitution of India. But the State has a larger obligation i.e. to maintain law and order, public order and preservation of peace and harmony in the society. A victim of a crime, thus, is equally entitled to a fair investigation. 28. When serious allegations were made against a former Minister of the State, save and except the cases of political revenge amounting to malice, it is for the State to entrust one or the other agency for the purpose of investigating into the matter. 29. The State for achieving the said object at any point of time may consider handing over of investigation to any other agency including a central agency which has acquired specialization in such cases. In that backdrop, it is necessary to examine the rival contentions raised before us. 30. Lodging of a First Information Report by CBI is governed by a manual. It may hold a preliminary inquiry; it has been given the said power in Chapter VI of the CBI Manual. A prima facie case may be held to have been established only on completion of a preliminary enquiry. Whether the First Information Report lodged by the Vigilance Department of the State and the one lod ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he State concededly exercised the said power. 34. In an ordinary case, we might have accepted the submission of Mr. Rao that the High Court should not direct Central Bureau of Investigation to investigate into a particular offence. The offence, however, is not ordinary in nature. It involved investigation into the allegations of commission of fraud in a systematic manner. It had a wide ramification as a former Minister of the State is said to be involved. 35. This Court in Vineet Narain (supra) held: 8. The sum and substance of these orders is that the CBI and other governmental agencies had not carried out their public duty to investigate the offences disclosed; that none stands above the law so that an alleged offence by him is not required to be investigated; that we would monitor the investigations, in the sense that we would do what we permissibly could to see that the investigations progressed while yet ensuring that we did not direct or channel those investigations or in any other manner prejudice the right of those who might be accused to a full and fair trial. We made it clear that the task of the monitoring court would end the moment a charge-sheet was filed in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... position has never been doubted in similar cases dealt with by this Court. It was made clear by this Court in the very first case, namely Vineet Narain v. Union of India that once a charge-sheet is filed in the competent court after completion of the investigation, the process of monitoring by this Court for the purpose of making the CBI and other investigative agencies concerned perform their function of investigating into the offences concerned comes to an end; and thereafter it is only the court in which the charge-sheet is filed which is to deal with all matters relating to the trial of the accused, including matters falling within the scope of Section 173(8) of the Code of Criminal Procedure. We make this observation only to reiterate this clear position in law so that no doubts in any quarter may survive. It is, therefore, clear that the impugned order of the High Court dealing primarily with this aspect cannot be sustained. [See also Rajiv Ranjan Singh `Lalan' and Sasi Thomas (supra) ]. 36. The question as to whether the Court can order C.B.I. to investigate a cognizable offence in a State without the consent of the State Government stands referred to a larger B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned with a scam involving appointment of Panchayat Secretaries. 41. The second FIR dated 26.06.2003 enumerates as many as fifteen categories of irregularities committed by various persons involved in the said selection process. Responsibility has not only been fixed upon the appellant but also upon Shri Mandeep Singh, Shri C.L. Premmy, Shri J.S. Kesar, Shri Joginder Singh as also the then Additional Deputy Commissioners of Bhatinda, Ropar and Muktsar. The number of accused who were involved as per preliminary report of the CBI were as many as fourteen. The first FIR pointed out offences under Sections 420, 467, 468, 120B of the Indian Penal Code and Sections 13(1)(d)(e) and 13(2) of the Prevention of Corruption Act but no allegation of conspiracy was made. In the second FIR dated 26.06.2003, the persons involved were not only the then Minister but also the then Director, the then Division Deputy Director, the then Deputy Directors, the then Additional Deputy Commissioners, the then Block Development Officers, etc. 42. It is in the aforementioned factual backdrop the order of the High Court dated 31.10.2002 assumes significance. By reason of the said order, the State Governmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Art Treasures Act, and, therefore, they could not be tried for that offence in India. But the question whether any of the accused may be tried for a contravention of the Antiquities and Art Treasures Act or under the corresponding provision of the earlier Act is really irrelevant in deciding whether the two conspiracies are one and the same. The trite argument that a Court takes cognizance of offences and not offenders was also advanced. This argument is again of no relevance in determining the question whether the two conspiracies which were taken cognizance of by the Ambala and the Delhi Courts were the same in substance. The question is not whether the nature and character of the conspiracy has changed by the mere inclusion of a few more conspirators as accused or by the addition of one more among the objects of the conspiracy. The question is whether the two conspiracies are in substance and truth the same. Where the conspiracy discovered later is found to cover a much larger canvas with broader ramifications, it cannot be equated with the earlier conspiracy which covered a smaller field of narrower dimensions. We are clear, in the present case, that the conspiracies which are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ound that the two FIRs in truth and substance were different -- the first was a smaller conspiracy and the second was a larger conspiracy as it turned out eventually.... In Kari Choudhary (supra), the mother-in-law of the deceased Sugnia Devi lodged an FIR that some persons from outside had entered into her bedroom and murdered her by strangulation. During the process of investigation, it was found that the murder took place in a manner totally different from the version furnished in the FIR. According to the investigating officer, the murder was committed pursuant to a conspiracy hatched by her mother-in-law and her other daughters-in-law. A final report was sent. However, another FIR was lodged. The first FIR was lodged on 27.06.1988 and the second FIR was lodged in 30.11.1988. The validity of the first FIR was in question. In that case, another chargesheet was filed on 31.03.2000. This Court held: 11. Learned Counsel adopted an alternative contention that once the proceedings initiated under FIR No. 135 ended in a final report the police had no authority to register a second FIR and number it as FIR No. 208. Of course the legal position is that there cannot be two FIRs aga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tirupati Court to the Designated Court at Chittoor. Cognizance of further offence had also been taken by the Chittoor Court. 49. The instant case, in our opinion, stands on a better footing vis- -vis Ram Lal Narang (supra) in the sense that whereas the first FIR did not make any allegation as regards existence of a conspiracy, the second FIR did. The canvass of two FIRs is absolutely different. The numbers of accused in both the FIRs are also different. 50. We must also bear in mind the distinction between crime committed by an individual or a group of persons vis- -vis a scam which means to get money or property from, another, under false pretences, by gaining the confidence of the victim, also includes; swindle; defraud . [See Advanced Law Lexicon, 3rd edition, 2005, page 4237] 51. We may also notice that in H.N. Rishbud and Inder Singh v. The State of Delhi 1955CriLJ526 the appellant Rishbud was an Assistant Development Officer and another appellant Inder Singh was the Assistant Project Section Officer. A number of criminal proceedings were pending against them. The cases against them were that they along with some others entered into criminal conspiracies to obtain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ance. Section 190 of the Code of Criminal Procedure is one out of a group of sections under the heading Conditions requisite for initiation of proceedings . The language of this section is in marked contrast with that of the other sections of the group under the same heading i.e. Sections 193 and 195 to 199. These latter sections regulate the competence of the Court and bar its jurisdiction in certain cases excepting in compliance therewith. But Section 190 does not. While no doubt, in one sense, Clauses (a), (b) and (c) of Section 190(1) are conditions requisite for taking of cognizance, it is not possible to say that cognizance on an invalid police report is prohibited and is therefore a nullity. Such an invalid report may still fall either under Clause (a) or (b) of Section 190(1), (whether it is the one or the other we need not pause to consider) and in any case cognizance so taken is only in the nature of error in a proceeding antecedent to the trial.... 52. Yet again, in Upkar Singh v. Ved Prakash and Ors. (2004) 13 SCC 292, a Three-Judge Bench of this Court held: 21. From the above it is clear that even in regard to a complaint arising out of a complaint on further in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... different, the High Court never assumed the jurisdiction of the Special Judge to direct reinvestigation as was urged or otherwise. 57. The Act is a special statute. By reason of the said enactment, the CBI was constituted. In relation to the matter which were to come within the purview thereof, the CBI could exercise its jurisdiction. The law and order, however, being a State subject, the CBI derives jurisdiction only when a consent therefore is given by the statute. It is, however, now beyond any controversy that the High Court and this Court also direct investigation by the CBI. Our attention has been drawn to the provisions of the CBI Manual, from a perusal whereof it appears that the Director, CBI exercises his power of superintendence in respect of the matters enumerated in Chapter VI of the CBI Manual which includes reference by the State and/ or reference by the High Courts and this Court as also the registration thereof. The reference thereof may be received from the following: (a) Prime Minister of India (b) Cabinet Ministers of Government of India/ Chief Ministers of State Governments or their equivalent (c) The State Governments (d) Supreme Court/ High Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g to say that the investigating officer will have no jurisdiction whatsoever to make any further investigation without the express permission of the Magistrate. The ratio laid down in A.S. Peter (supra) (wherein one of us was a member), to which reliance has been placed by Mr. Rao should be considered from that angle. 61. Contention raised that the investigating officer appointed by the CBI would not be a superior officer in rank to the police officer of the State Government in terms of Section 36 of the Code of Criminal Procedure may not detain us in view of our findings aforementioned. We may, however, observe that the State as in terms of the provisions of the Code and the Act exercises two different and distinct jurisdictions. The power of supervision over investigation vested in the State in terms of Section 3 of the Police Act, 1861 is absolute. It may in a given case having regard to the nature and complexity of the offence may also direct that further investigation in the matter may be carried out by a central agency. The State in terms of the special statute, viz., the Act can always request the CBI to make an investigation / further investigation. The said power ..... X X X X Extracts X X X X X X X X Extracts X X X X
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