TMI Blog2003 (7) TMI 744X X X X Extracts X X X X X X X X Extracts X X X X ..... osecution to file a fresh charge-sheet after following the procedure laid down by this Court in Vineet Narain and Ors. v. Union of India 1998 CriLJ 1208. 2. In order to appreciate the controversy raised it is necessary to briefly notice the relevant facts. A contract was entered between Government of India and M/s. AB Bofors on 24.3.1986 for supply of 400 FH 77-B gun systems along with vehicles, ammunition and other accessories at a total cost of SEK 8,410,660,984 (equivalent to about Rs. 1437.72 crores as per exchange rate on 21.3.1986) and on 2.5.1986 advance payment equivalent to 20 per cent of the contract value was paid to M/s. AB Bofors. On 16.4.1987 Swedish Radio came out with a story that Bofors had managed to obtain the contract from Government of India after payment of large amounts as bribe. On 21.4.1987 the Government of India made a formal request to Government of Sweden for an investigation into the allegations. The CBI registered a case being RC 1A/90-ACU.IV on 22.1.1990 and proceeded to investigate the matter. Thereafter on 22.10.1999 the CBI submitted charge sheet No. 01 under Section 120-B IPC read with 420 IPC and Section 5(2) read with Section 5(1)(d) of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n was opposed by the CBI by filing a written reply wherein it was stated, inter alia, that the allegations made by the accused to the affect that the case was never reported to the CVC was not correct; that a copy of the investigation report was sent to CVC on 14.7.1997 and further developments were also brought to the notice of CVC from time to time; that a special counsel for prosecuting the case had been appointed on the recommendation of Attorney General for India and that in para 62 of the first charge-sheet it was mentioned that investigation regarding the role played by Hinduja brothers was in progress; and that the supplementary charge sheet had been filed under Section 173(8) Cr.P.C. which was co-related with the first charge sheet. 4. The learned Special Judge, after hearing counsel for the parties and noticing their contentions held that generally it was not in the province of the courts and particularly the Trial Court to see in what manner and to what extent the CBI is reporting the progress of investigation and this was within the province of CVC. It was further held that the intent of the directions given in Vineet Narain is not to dismiss or throw the charges ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ectives. On these findings the petition was allowed and the cognizance taken by the learned Special Judge and all consequential proceedings were quashed. 6. Feeling aggrieved by the judgment of the High Court, Union of India through CBI and CVC through its Director have preferred separate appeals by special leave. 7. Shri Kirit N. Rawal, learned Solicitor General appearing for the appellants has submitted that in Vineet Narain this Court was dealing with the allegations of failure of the CBI to investigate freely and fairly commission of offences by persons holding high offices. In order to impart a degree of independence to the CBI and yet to maintain the power of superintendence (which is inevitably necessary in relation to any police force), the Court issued a mandamus based upon the suggestion which had also been made by the Independent Review Committee. It was with this object in view and having regard to the statutory provisions that the directions were issued to the effect that the Government shall remain answerable for the CBI's functioning which flowed from the power of the Government under Section 4 of Delhi Special Police Establishment Act (for short DSPE ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prevent abuse of the process of any Court or otherwise to secure the ends of justice. The power can therefore be exercised to quash the criminal proceedings. The grounds on which the prosecution initiated against an accused can be quashed by the High Court in exercise of power conferred by Section 482 Cr.P.C. has been settled by a catena of decisions of this Court rendered in R.P. Kapoor v. State of Punjab 1960 CriLJ 1239; Madhu Limaye v. State 1978 CriLJ 165; Delhi Municipality v. Ram Kishan 1983 CriLJ 159 Raj Kapoor v. State 1980 CriLJ 202. The matter was examined in considerable detail in State of Haryana v. Bhajan Lal 1992 CriLJ 527 and after review of practically all the earlier decisions, the Court in para 108 of the Reports laid down the grounds on which power under Section 482 Cr.P.C. can be exercised to quash the criminal proceedings and basically they are (1) where the allegations made in the FIR or complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused, (2) where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... investigation done by the authorities charged with the duty of investigation under the relevant statutes and whether any error or illegality committed during the course of investigation would so vitiate the charge-sheet so as to render the cognizance taken thereon bad and invalid. 11. We will first examine the statutory provisions made in that regard. Section 2(h) Cr.P.C. defines investigation and it includes all the proceedings under the Code for the collection of evidence conducted by a police officer or by any person (other than a Magistrate) who is authorised by a Magistrate in this behalf. It ends with the formation of the opinion as to whether on the material collected, there is a case to place the accused before a Magistrate for trial and if so, taking the necessary steps for the same by filing of a charge-sheet under Section 173 (See State of U.P. v. Bhagwant Kishore Joshi 1964 CriLJ 140 and H.N. Rishbud Inder Singh v. The State of Delhi 1955 CriLJ 526). Chapter XII of the Code of Criminal Procedure deals with Information To The Police And Their Powers To Investigate . Section 154 provides that every information relating to the commission of a cognizable offence, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... investigation is completed, the officer in charge of the police station shall forward to a Magistrate empowered to take cognizance of the offence on a police report, a report in the form prescribed by the State Government giving details of the matters enumerated in Clauses (a) to (g) of this sub-section. 12. Chapter XIV of the Code of Criminal Procedure deals with Conditions Requisite For Initiation Of Proceedings . Section 190 deals with cognizance of offences by Magistrate and it provides that a Magistrate may take cognizance of any offence (a) upon receiving a complaint of facts which constitute such offence, (b) upon a police report of such facts, or (c) upon information received from any person other than a police officer or upon his own knowledge, that such offence has been committed. 13. The provisions referred to above occurring in Chapter XII of the Code show that detail and elaborate provisions have been made for securing that an investigation takes place regarding an offence of which information has been given and the same is done in accordance with the provisions of the Code. The manner and the method of conducting the investigation are left entirely to the o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rdships think, be an unfortunate result if it should be held possible to interfere with those statutory rights by an exercise of the inherent jurisdiction of the Court. The functions of the judiciary and the police are complementary not overlapping and the combination of individual liberty with a due observance of law and order is only to be obtained by leaving each to exercise its own function, always, of course, subject to the right of the Court to intervene in an appropriate case when moved under Section 491, Criminal P.C., to give directions in the nature of habeas corpus. In such a case as the present, however, the Court's functions being when a charge is preferred before it and not until then. 16. In H.N. Rishbud v. The State of Delhi the Court was called upon to consider the effect of investigation having been done by a police officer below the rank of a Deputy Superintendent of Police contrary to the mandate of Section 5(4) of Prevention of Corruption Act, 1947. While examining the scheme of Chapter XIV of the Code of Criminal Procedure, 1908 (same as Chapter XII of 1973 Code) it was held that the investigation primarily consists in the ascertainment of the facts ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rime detection and crime punishment. Investigation of an offence is the field exclusively reserved for the executive through the police department the superintendence over which vests in the State Government. The executive which is charged with a duty to keep vigilance over law and order situation is obliged to prevent crime and if an offence is alleged to have been committed it is its bounden duty to investigate into the offence and bring the offender to book. Once it investigates an finds an offence having been committed it is its duty to collect evidence for the purpose of proving the offence. Once that is completed and the investigating officer submits report to the Court requesting the Court to take cognizance of the offence under Section 190 of the Code its duty comes to an end. On a cognizance of the offence being taken by the Court the police function of investigation comes to an end subject to the provision contained in Section 173(8), there commences the adjudicatory function of the judiciary to determine whether an offence has been committed and if so, whether by the person or persons charged with the crime by the police in its report to the Court, and to award adequate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of cognizable cases. But it does not necessarily follow that an invalid investigation nullifies the cognizance or trial based thereon. Here we are not concerned with the effect of the breach of a mandatory provision regulating the competence or procedure of the Court as regards cognizance or trial. It is only with reference to such a breach that the question as to whether it constitutes an illegality vitiating the proceedings or a mere irregularity arises. A defect or illegality in investigation, however serious, has no direct bearing on the competence or the procedure relating to cognizance or trial. No doubt a police report which results from an investigation is provided in Section 190 of the Code of Criminal Procedure as the material on which cognizance is taken. But it cannot be maintained that a valid and legal police report is the foundation of the jurisdiction of the Court to take cognizance. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Vineet Narain. In fact Shri Jethmalani also tried to support the judgment of the High Court by placing extensive reliance upon the observations made in this case. Shri Rawal, learned Solicitor General has, however, submitted that the High Court has completely misunderstood the judgment and in fact it does not give any kind of a right to an accused to challenge the charge sheet on account of any alleged non-observance or violation of the directions issued regarding the functioning and responsibility of CVC. The contention is that the directions relate to inter-departmental working and the manner in which the power of superintendence has to be exercised by CVC over the working of CBI, the entire object being to insulate the CBI from any kind of external influence or pressure so that it may perform it study as enjoined in Delhi Special Police Establishment Act (DSPE Act). The question is whether Vineet Narain really meant to lay down as a principle of law that in every case the result of investigation done by CBI has to be placed before the CVC and further before submission of the charge sheet in Court the same was also to be examined by the CVC which was to give some sort of approva ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation; that probity in public life, the rule of law and the preservation of democracy required that the government agencies be compelled to duly perform their legal obligations and to proceed in accordance with law against every person involved, irrespective of where he was placed in the poetical hierarchy. The writ petition petitions prayed, inter alia, for the following reliefs: (a) that the abovesaid offences disclosed by the facts mentioned in the petition be directed to be investigated in accordance with law; (b) that this Hon'ble Court may be pleased to appoint officers of the police or others in whose integrity, independence and competence this Hon'ble Court has confidence for conducting and/or supervising the said investigation; (c) that suitable directions be given by this Hon'ble Court and orders issued to ensure that the culprits are dealt with according to law. * * * * * (f) that directions be given so that such evil actions on the part of the investigating agencies and their political superiors are not repeated in future. 24. The Court instead of issuing a writ of mandamus considered it proper to keep the matter pending and t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ontrol. 43. There is no similarity between a mere executive order requiring prior permission or sanction for investigation of the offence and the sanction needed under the statute for prosecution. The requirement of sanction for prosecution being provided in the very statute which enacts the offence, the sanction for prosecution is a prerequisite for the court to take cognizance of the offence. In the absence of any statutory requirement of prior permission or sanction for investigation, it cannot be imposed as a condition precedent for initiation of the investigation once jurisdiction is conferred on the CBI to investigate the offence by virtue of the notification under Section 3 of the Act. The word superintendence in Section 4(1) of the Act in the context must be construed in a manner consistent with the other provisions of the Act and the general statutory powers of investigation which govern investigation even by the CBI...... 48. In view of the common perception shared by everyone including the Government of India and the Independent Review Committee (IRC) of the need for insulation of the CBI from extraneous influence of any kind, it is imperative that some actio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nvestigate commission of offences as the accused involved were holding high offices. The Single Directive issued by the Government created an embargo on the power of the CBI in registering or investigating cases against officers of the Government, Public Sector Undertakings and Nationalised Banks above a certain level without prior sanction of the designated authority. The proceedings of the case revealed that there was a complete disinclination on the part of the CBI to proceed with investigation of offences against persons holding high offices even after the matter had been brought to Court. The Court came to the conclusion that wherever the alleged offender was a powerful person, the CBI remained a silent spectator and practically took no steps to investigate the matter. After examination of the statutory provisions, the Court came to the conclusion that the Single Directive had the effect of restraining the recording of FIR and initiation of investigation, which could not be issued in exercise of power under Section 4(1) of the DSPE Act as the powers of investigation are governed by statutory provisions. It was therefore considered expedient that the CBI should be insulated fro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... may be exercised by such officer within the limits of his station and, therefore, the CVC has the authority to direct the CBI not to submit charge sheet in a given case just as a Superintendent of Police can give this type of direction to an officer incharge of a police station. We are unable to accept the contention raised. The directions issued cannot be interpreted in abstract but have to be read and understood in the context of the facts and circumstances leading to the filing of the writ petition. The facts which were revealed and were brought to light during the course of hearing showed that the CBI had failed to perform its statutory duty and legal obligation of investigating offences and after competing the investigation taking it to its logical conclusions of launching prosecution against all those who were found to have committed offences. The direction issued never meant to create or confer some kind of additional rights in favour of the accused as held by the High Court. The accused has absolutely no right to approach the CVC for taking any steps to stop the CBI from either proceeding against him or from launching prosecution against him by filing a charge sheet. Furthe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been held that no Court can direct a legislature to enact a particular law. Similarly, when an executive authority exercises a legislative power by way of subordinate legislation pursuant to the delegated authority of a legislature, such executive authority cannot be asked to enact a law which he has been empowered to do under the delegated legislative authority. This view has been reiterated in State of J K v. A R Zakki and Ors., AIR 1992 SC 1546. In AK Roy v. Union of India 1982 CriLJ 340 it was held that no mandamus can be issued to enforce an Act which has been passed by the legislature. Therefore, the direction issued regarding conferment of statutory status on CVC cannot be treated to be of such a nature, the non-compliance whereof may amount to contempt of the order passed by this Court. 30. Shri Jethmalani has also referred to some correspondence which ensued between the Embassy of India and Federal Office for Police Matters of the Federal Department of Justice and Police, Bern, Switzerland and has laid emphasis on the following sentence occurring therein - The requesting authority has examined those documents in detail and has reached at the conclusion th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e made by the Central Government wherein it is alleged that a public servant above a particular level has committed an offence under the Prevention of Corruption Act and no review the progress of applications pending with the competent authorities for sanction of prosecution under the aforesaid Act. The CVC shall exercise superintendence over the vigilance, administration of various Ministries of the Central Government or Corporations established by or under any Central Act and shall tender advice to them. In para 7 of the counter-affidavit it is stated that under the existing administrative directions the CBI has a practice of reporting to the CVC all developments in cases involving public servants. Accordingly, well before filing of the first charge sheet, an investigation report was sent to the CVC and CVC was apprised of the developments in the case. It is further stated that the name of G.P. Hinduja is mentioned in the FIR itself and since in the first charge sheet it was mentioned that further investigations are being carried out to unearth the full details of the commission paid by Bofors and the papers received in December 1999 revealed with sufficient particularity receipt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the petition filed by him ought to have been dismissed straight away. The High Court committed serious error in not giving due consideration to the counter affidavits filed by the CBI and CVC and especially to the fact that on account of non-passing of the CVC Bill by the Rajya Sabha and lapsing of the Ordinance, the duties and functions of the CVC are to be performed in accordance with the Government of India Resolution dated 5.4.1999, which nowhere provided for taking any kind of a concurrence or approval from the CVC before submission of the charge sheet. 32. In para 31 of the judgment, the High court has placed reliance on Gokul Chand Dwarka Das Morarka v. King AIR 1948 PC 82. But here the conviction was set aside as the sanction granted to prosecute the accused, which was a recruitment of the statute, was found to be invalid. As discussed earlier there is no requirement of any sanction by the CVC either under any statute or even under the directions of Vineet Narain and, therefore, the ratio of this case can have no application at all. In para 34 of the judgment the High court has placed reliance on Prabhu Dayal Deorah v. District Magistrate 1974 CriLJ 286, wherein the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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