Karnataka High Court
T R Manjunath Hegde vs The State By Cbi/Spe on 13 July, 2012
Author: Anand Byrareddy
Bench: Anand Byrareddy
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 13th DAY OF JULY 2012
BEFORE
THE HON'BLE MR. JUSTICE ANAND BYRAREDDY
CRIMINAL REVISION PETITION No.601 OF 2008
CONNECTED WITH
CRIMINAL REVISION PETITION No.1110 OF 2008
AND
CRIMINAL REVISION PETITION No.412 OF 2008
IN CRL.R.P.NO.601 OF 2008
BETWEEN:
T.R.Manjunath Hegde,
Son of T.R.Ramanna Hegde,
48 years, No.46,
Fairfield Layout,
Race Course Road,
Bangalore - 560 001. ...PETITIONER
2
(By Shri. S.G.Bhagavan, Advocate)
AND:
The State by CBI/SPE,
Bellary Road,
Bangalore. ...RESPONDENT
(By Shri. Prasanna Kumar, Advocate for Shri. C.H.Jadhav, Advocate)
*****
This Criminal Revision Petition is filed under Section 397 read
with 401 Code of Criminal Procedure, 1973, by the advocate for the
petitioner praying to set aside the order dated 23.2.2008 in
Spl.C.C.No.89/1995 passed by the XXI Additional City Civil and
Sessions Judge and Special Judge for CBI Cases, Bangalore (CCH-4)
and the charge and to discharge him.
IN CRL.R.P.NO.1110 OF 2008
BETWEEN:
Venkatesh Dutt,
Son of K.S.Dattatreya,
Major,
Residing at "DIVYA",
3
No.11, Brunton Road Cross,
Bangalore - 560 025. ...PETITIONER
(By Shri. S.G.Bhagvan, Advocate)
AND:
Central Bureau of Investigation,
By the Inspector of Police,
SPE Division, Bellary Road,
Bangalore. ...RESPONDENT
(By Shri. Prasanna Kumar, Advocate for Shri. C.H.Jadhav, Advocate)
*****
This Criminal Revision Petition is filed under Section 397 read
with Section 401 Code of Criminal Procedure, 1973, by the advocate
for the petitioner praying to set aside the order dated 7.10.2008 passed
by the XXI Additional City Civil and Sessions Judge and Special
Judge for CBI Cases, Bangalore in Special Case No.86/1990.
IN CRL.R.P.NO.412 OF 2008
BETWEEN:
K.A.Hegde,
4
Son of K.Achuta Hegde,
68 years, No.274/C,
37th "A" Cross,
8th Block, Jayanagar,
Bangalore - 560 082. ...PETITIONER
(By Shri. S.G.Bhagavan, Advocate)
AND:
The State by CBI/SPE,
Bellary Road,
Bangalore. ...RESPONDENT
(By Shri. Prasanna Kumar, Advocate for Shri. C.H.Jadhav, Advocate)
*****
This Criminal Revision Petition is filed under Section 397 read
with Section 401 Code of Criminal Procedure, 1973, by the advocate
for the petitioner praying to set aside the order dated 23.2.2008 passed
by the XXI Additional City Civil and Sessions Judge and Special
Judge for CBI Cases, Bangalore in Spl.Case No.89/1995.
These Criminal Revision Petitions having been heard and
reserved on 09.07.2012 and coming on for pronouncement of orders
this day, the court delivered the following-
5
ORDER
These three petitions are heard and disposed of together as they have raised an identical issue, except that an additional ground has been raised in one of the petitions, which is appropriately dealt with.
2. In all the three cases, the petitioners were accused of offences punishable under the provisions of the Prevention of Corruption Act, 1988 (Hereinafter referred to as the '1988 Act', for brevity) and therefore were before the Special Judge for CBI cases, Bangalore. These petitions are filed challenging the order of the court below in each of their cases dismissing their applications for discharge. The common ground raised is that the Inspector of Police, Central Bureau of Investigation (hereinafter referred to as the 'CBI' for brevity) had registered a case against each of the petitioners independently. He had recorded statements of witnesses under Section 113 of the Code of Criminal Procedure, 1973 (Hereinafter 6 referred to as the 'Cr.PC', for brevity) and he had also prepared a charge sheet and submitted the same in the court below against the respective accused in their respective cases, which were accordingly registered as special cases by the court below.
3. The learned Counsel for the petitioners would contend that in terms of Section 2 of the Delhi Special Police Establishment Act, 1946 (Hereinafter referred to as the 'DSPE Act', for brevity), the Central Government is empowered to constitute a special police force for investigation of specified offences and also provides power to extend to any area the powers of investigation by members of that Force. The members of the CBI exercise the powers and carry out their functions in accordance with a Manual issued by the Government of India. In terms of which, the Superintendent of Police is designated and empowered for registration of cases. It is contended that the Manual provides for a preliminary inquiry in regard to a complaint received, and provides for the procedure for 7 converting a preliminary inquiry into a regular case. In this regard, the Manual also declares that in deciding whether a preliminary inquiry should be converted into a regular case, the Superintendent of Police should take into consideration whether it is necessary to do so and whether there is a possibility of making out a court case by further investigation. The Manual also mandates that the Superintendent of Police must personally satisfy himself that if a preliminary inquiry is converted into a regular case, it should result in prosecution and therefore, they should exercise due care and caution in such conversion and avoid hasty and premature action.
The Counsel would draw attention to several clauses of Chapter -X of the Central Bureau of Investigation (Crime) Manual, 2005 (hereinafter referred to as the 2005 Manual, for brevity), to emphasize the role of the Superintendent in as much as the draft of the Final Report must be thoroughly vetted by the Superintendent of Police. That draft of the Final Report should be signed by the Superintendent of Police and it is thereafter that a final report is 8 submitted for sanction. Similarly, he would draw attention to Chapter
- XIX, which deals with the Final Report and the object of the Final Report, to emphasize the importance of the Superintendent's Report and his personal involvement in the preparation of the same.
Attention is also drawn to a dictum of the apex Court in the case of H.N.Rishbud vs. State of Delhi, AIR 1955 SC 196, wherein the Court has held that the final step in the investigation, namely, formation of the opinion as to whether or not, there is case to place the accused on trial, is to be that of an officer in- charge of the police station and there is no provision permitting delegation thereof insofar as the prosecution initiated against a public servant for an offence punishable under the Prevention of Corruption Act, 1947 (Hereinafter referred to as the '1947 Act', for brevity).
It is again reiterated in Sarla vs. T.Velu, AIR 2000 SC 1731. Finally, in the case of M.C.Mehta vs. Union of India, AIR 2007 SC 1087, the Supreme Court has reaffirmed the position and 9 laid down that the formation of the opinion as to whether or not there is a case to place the accused on trial should be that of the officer in- charge of the police station and none else and that in the CBI Manual, the officer in-charge of the police station is the Superintendent of Police.
It is thus contended that in the present cases on hand, from the stage of registering the case, till the stage of submitting the charge- sheet in the respective cases, was not by the Superintendent of Police, but by an Inspector and therefore, the proceedings would be vitiated.
4. On the other hand, the learned Counsel appearing for the respondent - CBI would submit that in terms of Section 2(3) of the DSPE Act, the same would not render the proceedings bad in law. It is also contended that as per Section 17 of the 1988 Act, an officer of the rank of the Inspector of Police and above is authorized to investigate criminal cases registered under the Act. The learned Counsel would also submit that the present cases on hand were 10 instituted at a point of time, when the CBI Crime Manual, 1991 (Hereinafter referred to as the '1991 Manual', for brevity), was in vogue and the grounds raised in the petitions are with reference to the clauses contained in the CBI (Crime) Manual, 2005. From a reading of the relevant clauses in the 1991 Manual, which correspond to the clauses under the 2005 Manual, it cannot be said that there has been an irregularity which would go to the root of the matter. The learned counsel takes this court through the several clauses under the 1991 Manual, as well as the 2005 Manual, to demonstrate the same.
Further, the learned Counsel would further submit that in any event, whether there is an infirmity in the Superintendent of Police not having prepared a Final Report and not having submitted the same, would vitiate the proceedings, has been amply considered by this court in the case of N.Ashok Kumar vs. CBI, Criminal Petition No.2525/2010 decided on 16.12.2010 and therefore, the question is no longer res integra. Attention is also drawn to a three-Judge bench decision of the Supreme Court in Rattiram and others vs. State of 11 Madhya Pradesh, (2012) 4 SCC 516. He would contend that the impugned order would warrant interference only if there has been failure of justice and therefore would submit that neither could it be said that the concerned have acted in violation of the 1991 Manual nor could it be said that the same, even if considered as an irregularity, has resulted in any failure of justice and hence, seeks dismissal of the petitions.
5. The learned Counsel for the petitioners , by way of reply, would submit that insofar as the dictum of the apex Court in the several cases cited above, the emphasis is that if a certain thing is required to be done in a certain way, it shall be done in that way alone and not in any other manner. It is in that vein that there is insistence as to the Superintendent of Police being the competent person to decide whether a preliminary inquiry could be treated as a regular case in order to proceed further and it matters little that the requirement in this regard is not so emphasized under the 1991 12 Manual as it certainly is under the 2005 Manual. It is further contended that insofar as the reference to the decided case by this court in Criminal Petition No.2525/2010 is concerned, though the issue whether the proceedings were vitiated in the Superintendent of Police not being involved at all stages of the proceedings, this court had found that the Superintendent of Police had endorsed the final report and therefore, it could not be said that it had passed muster by the competent authority. However, in the present case on hand, there is no indication that the Superintendent of Police had any occasion to address the Final Report and would insist that there is certainly a failure of justice and the objection is not raised to set aside the order of conviction, but it is raised at an appropriate stage, which however, is sought to be overlooked by the court below by its impugned order.
6. On the basis of these rival contentions, insofar as the Final Report Charge Sheet is concerned, Clause 10.28 of Chapter -10 of the 2005 Manual reads as follows:-
13
"10.28 After completion of investigation, the FR-I shall be prepared by the I.O. The Law Officer will give his recommendation through the FR-II. The Superintendent of Police would, thereafter, either pass final orders in respect of the cases within his competence or obtain orders from the Competent Authority by sending his recommendations to the DIG concerned. After receipt of orders of the Competent Authority, if it is decided to prosecute the accused, necessary sanction for prosecution u/s 19 of the P.C.Act, 1988 and Section. 197 Cr.P.C., as the case may be, if any required, may be obtained by the Branch SP by sending a SPs Report and the relevant records to the Competent Authority. On receipt of the sanction, the Investigating Officer will prepare a self-contained draft charge-sheet giving details of investigation conducted and evidence/charges against each accused person in respect of each allegation(s). The said draft charge sheet shall be vetted by the Law Officer of the Branch and the Branch SP and also by the DIG in important cases and would, thereafter, be finalized and signed by the I.O. and forwarded to the Court by the SP along with the statements of listed witnesses and original relied-upon documents/articles and the sanction for prosecution, under Section 173 Cr.PC. In cases where the sanction for prosecution is not required, the I.O. will proceed with the preparation of the draft charge-sheet soon after receipt of the orders from the Competent Authority and will take other necessary actions as mentioned in this Manual and the instructions issued 14 from time to time."
The corresponding clause under the 1991 Manual reads as follows:-
"Final Reports 15/185 As soon as the investigation is completed, the Investigating Officer will prepare the Final Report-Part I in the prescribed form and submit it to the Suptd. of Police of the Branch concerned who will pass orders in respect of cases involving non-gazetted public servants and non-commissioned officers and seek orders and instructions from the DIG or Head Office, as the case may be, in cases of other categories.
26/186 The directions contained in paras Old manual Para No's. 125, 126, 132, 135, 140, 142 and 151 in Chapter V, (Preliminary Enquiries) of the Manual will also apply mutatis mutandis to Regular Cases registered in the Branch.
27/187 The provisions of the Cr.P.C. shall be fully complied with by the Branches at all stages in the Registration and investigations of RCs. A communication under section 173(2) (ii) Cr.P.C. shall be sent to the complainant in SPE Form C. XIV informing him whether the case has been chargesheeted in the 15 court or not after the completion of the investigation.
28/188 In cases where it has been decided not to prosecute any person but to refer the case for RDA as soon as SP's report is forwarded for RDA to the competent authority, a report under Section 173 Cr.P.C. should also be submitted to the Court concerned stetting that the case has been closed on grounds that may be applicable. These grounds should be based on facts emerging from investigation. In the report UNDER SECTION 173 Cr. PC it should be clarified that proceedings have been recommended against the accused. About the disposal of the case property seized during such investigation it should be requested that the investigating agency may be permitted to dispose of the case property after such RDA proceedings are over because such case properties may be required to be produced during such disciplinary proceedings. The court has a discretion to pass appropriate orders under Section 457 Cr.P.C.
Clause 19.15 under Chapter 19 of 2005 Manual reads as follows:
" 19.15 SP's Report is a very important document and should be prepared personally by the SP in the prescribed format. The concerned Department/Government Undertakings assess the CBI investigation of their cases solely on the basis of the SP's Reports.16
The report should be grammatically correct, clear and unambiguous. The report should be brief without repetitions and should contain all necessary data. The internal differences of opinion among CBI Officers should not find mention in the SP's Report, which should advance all arguments to justify the final order passed by the Competent Authority in the CBI. The final recommendation should be precise. If sanction is required, the relevant Section (including sub-section) of law under which sanction is required should be mentioned with brief grounds. In some of the cases, charge sheets cannot be filed and only complaints by certain statutory authorities can be filed in the Court. In such cases, the relevant section prescribing the filing of a complaint should be mentioned in the SP's Report. It should be borne in mind by the SP that the efficiency and the quality of work done by the CBI would be viewed mainly on the basis of the SP's Report and, therefore, no effort should be spared to make it factually correct, systematic, cogent and logical."
The corresponding clause under the 1991 Manual reads thus:
14/37.4 Repots giving the results of enquiries/ investigation are required to be sent to Ministries & other departmental authorities for the following purposes:-
a) for getting sanction for prosecution.
b) For obtaining a complaint for prosecution as required under 17 section 6 of the Imports and Exports Control act, 1947, etc.
c) For taking Regular Departmental Action.
d) For taking such action as may be considered appropriate by the Department.
e) For information only (This includes the report about closure of a case) 15/375 The Report should be prepared personally by a Superintendent of Police incharge of a CBI Branch for being sent to the Ministries of departmental authorities concerned. This report will be known as the Superintendent of Police's Report and should be in the prescribed form. It should be borne in mind by the SP that the efficiency and the quality of work done by the CBI would be viewed mainly on the basis of the SP's Report and therefore, no effort should be spared to make it factually correct, systomatic and logical."
Therefore, from a bare reading of the clauses would indicate that it is under the 2005 Manual, there is a more stringent requirement of participation of the Superintendent of Police at all stages of the proceedings. Having regard to the fact that at the relevant point of time, it was the 1991 Manual which was to be followed by the 18 concerned officers, the tenor of Section 2(3) of the DSPE Act and Section 17 of the 1988 Act, certainly did enable an officer, above the rank of a Sub-inspector, to exercise the powers of the officer in-charge of the Police Station and an officer of the rank of an Inspector of Police, to investigate criminal cases and to submit a Final Report.
As observed by the apex court, in H.N.Rishbud's case, the invalidity of the investigation need not be ignored by the court during the trial, but when breach is brought to the knowledge of the court, while not declining the cognizance, would have to take necessary steps to get the illegality cured and the defect rectified by ordering such re-investigation as the circumstances of an individual case may call for. Therefore, it does not, ipso facto, follow that in every given case, the invalidity of the investigation, is to be presumed, even though the investigation may have been conducted by an officer, who is deemed to be an officer in-charge of a police station. The alleged defect having been brought to the attention of the court below and the 19 court below having negated the objection, the incantation that there is failure of justice and therefore, there is warrant for interference by this court, by virtue an incompetent officer having submitted a final report by itself does not compel this court to intervene having regard to the relevant time and the applicable provisions, under which the action, complained of, was taken.
Insofar as the further ground in one of these petitions, on the facts of the case, does not merit consideration as it was sufficient if the court below was in a position to form an opinion to frame the charges and therefore, even if that aspect of the matter has not been addressed at length in assigning reasons as to why the court below has not accepted the arguments of the petitioner, it would not enable this court to reconsider the facts and to take a different view. 20
Therefore, the petitions fail and stand dismissed.
Sd/-
JUDGE nv