TMI Blog2017 (3) TMI 1886X X X X Extracts X X X X X X X X Extracts X X X X ..... e prayer made by the petitioners that the case is rescued, is rejected. In SUPERINTENDENT OF POLICE, C.B.I. AND ORS VERSUS TAPAN KR. SINGH [ 2003 (4) TMI 593 - SUPREME COURT ], 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 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. 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. Petition dismissed. - W.P.(CRL) 2757/2015 and CRL.M.A. 17536-17538/2015, 3396/2016 & 3806/2016 - - - Dated:- 31-3-2017 - HON'BLE ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 A0004 under Sections 13(2) r/w 13(1)(e) of the Prevention of Corruption ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isproportionate 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .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), ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 amou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 hear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nion, 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 b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 allegatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... here 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 STC 60,000 5 24.03.2009 Amt. paid to Mr. Abhishek STC 50,000 6 04.06.2010 Amt. paid to Mr. Abhishek STC 75,000 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), Mumba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ₹ 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 revise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 ₹ 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 ₹ 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 transportati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... able/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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er 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 f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ernment 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ₹ 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 sub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ovisions 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ief 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 visa-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) a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ferent 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 containe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y 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 inv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rces 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 ₹ 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eck 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Stat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 petitioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y 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 Polic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... able 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 r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt. 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, inte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efore 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 significan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 offen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts 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 07.02.201 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lso, 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. Thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st 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 explan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 ₹ 25 lakhs. The revised ITR for this year, showing an income of ₹ 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 ₹ 18.66 lakhs only. Thus, Shri Vir Bhadra Singh appears to have grossly suppressed h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lleged 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 suspicio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. 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 acquire ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... awn 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 jud ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proportionate 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 p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 po ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 rai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Consti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rences 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red 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) A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. Sib ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 7th 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 decision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng) .. New Delhi, the 24 August, 1990 O R D E R 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w 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 subm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... us 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he petitioners? It was not mandatory for the CBI to seek the consent of the State Government of Himachal Pradesh under Section 6 of the DSPE Act at the time of registration of the FIR/ RC. Thus, the FIR/ RC cannot be quashed on the ground of there being no consent under Section 6 of the DSPE Act from the State Government of Himachal Pradesh. It was mandatory for the CBI to obtain the consent of the State of Himachal Pradesh under Section 6 prior to conduct of any part of investigation in the area of State of Himachal Pradesh. The issue whether such consent had 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Special Judge. 8. What is the true import of Entry 2-A, 80 of the Union List vis- -vis 2 of the State List and their inter-play? The import of Entry 2A, 80 of the Union List vis- -vis Entry 2 of the State List and their interplay has been elaborately discussed hereinabove and the same may be referred to. 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? This question does not call for consideration in the present proceedings. The same constitutes the defence of the accused and may be raised before the learned Special Judge, in case the chargesheet is filed in the RC/ FIR in question and charges are framed against the accused. 10 Whether the registration of FIR against the petitioners is actuated with legal and factual mala fide and political vendetta? There is no factual basis brought on record to claim that the registration of the FIR against the petitioners is actuated or legally or factually mala fide or that the registration of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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