Allahabad High Court
Vivek Jain vs Central Bureau Of Investigation, Acb, ... on 18 November, 2020
Author: Suneet Kumar
Bench: Suneet Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Court No. 2 Case :- APPLICATION U/S 482 No. - 11058 of 2020 Applicant :- Vivek Jain Opposite Party :- Central Bureau Of Investigation, Acb, Ghaziabad Counsel for Applicant :- Kuldeep Saxena Counsel for Opposite Party :- Sanjay Kumar Yadav Hon'ble Suneet Kumar,J.
Heard Sri Kuldeep Saxena, learned counsel for the applicant, Sri Gyan Prakash, Assistant Solicitor General of India appearing for the CBI assisted by Shri Sanjay Kumar Yadav, Advocate and perused the record.
Applicant by the instant petition under Section 482 of Code of Criminal Procedure, 19731, seeks quashing of the charge sheet dated 29 August 2014 and cognizance order dated 16 December 2014, passed in Criminal Misc. Case No. 10 of 2014, under Sections 120-B read with sections 409, 420, 468 & 471 IPC and Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 19882, and substantive offence under Sections 409, 420, 468 & 471 IPC arising from the F.I.R. No. RC No. 1202013A0017 pending in the court of Special Judge, Anti Corruption, CBI, Ghaziabad.
The facts giving rise to the petition, briefly stated, is that pursuant to an order dated 15.11.2011, passed by this Court at Lucknow, in Writ Petition Nos. 3611 (MB) of 2011 (PIL), 3301 (MB) of 2011 (PIL) and No. 2647 (MB) of 2011 (PIL), inter alia, directed Central Bureau of Investigation3 to conduct a preliminary enquiry in the matter of execution and implementation of the National Rural Health Mission (for short ''NRHM') and utilization of funds at various levels in the entire State of Uttar Pradesh commencing 2005-2006. In compliance thereof, on 31 January 2013, CBI registered a preliminary enquiry against the officers of Health and Family Welfare Department of District Moradabad, and unknown private persons. The enquiry was conducted by the Additional Superintendent of Police, CBI, ACB, Ghaziabad, for the period 2005-06 till 15.11.2011. The enquiry revealed that bogus/forged tender papers were submitted and used in the tender process on behalf of certain firms for completing the tender proceedings by the suspect officials in conspiracy with the firms. The enquiry further revealed that most of the purchases under National Blindness Control Programme ralated to NRHM Scheme, at district Moradabad, were made by three sister concerns. The forged and bogus bids were submitted and used by the suspected accused to show artificial competitive rates.
The enquiry, prima facie, exposes Dr. N.K. Gupta, Dr. R.K. Saxena, Dr. S.K. Malik, the then CMOs/DPO, Moradabad and Dr. S.K. Singh, the then DPM and officiating CMO Moradabad, in criminal conspiracy with co-accused Narendra Kumar Jain, Prop. M/s Jain Medical Hall, Moradabad, applicant Vivek Jain, Prop. M/s Kapil Medical Agencies, Moradabad, and other unknown persons of having committed offence regarding purchase of medicines during the period 2008-09, 2009-10 & 2010-11 from NRHM funds. The conspirators are alleged to have violated the norms and guidelines for purchase of medicines at exorbitant rates, prepared and utilized forged documents and by abusing their official position have caused loss at Rs.4,56,484/- to the government and corresponding gains to themselves.
On the strength of preliminary enquiry, F.I.R. came to be lodged on 4 July 2013, on the complaint filed by Additional Superintendent of Police, CBI, ACB, Ghaziabad. After investigation, a report (charge sheet) under Section 173 of Cr.P.C. was submitted on 4 July 2013, against the applicant and other co-accused. It is alleged in the charge sheet that applicant, owner of M/s Kapil Medical Agencies, Moradabad, supplied medicines to CMO Moradabad, during 2007-2011 with respect to National Programme for Control of Blindness and was ultimate beneficiary. Investigation further revealed that medicines worth Rs.1,61,257/- was purchased after expiry of the tender period from the firm of the applicant without getting permission from the competent authority. Payments thereof was also made. The investigation shows that bogus tenders were submitted by the applicant to show competitive rates of the firms. In the said fraud and forgery, involvement of wife of the applicant has also been found.
Special Judge, Ghaziabad took cognizance on 16 December 2014, against all the accused persons except Narendra Jain and Shikla Jain and directed the CBI to make further investigation with regard to their role and culpability in this case by the competent officer.
The sole submission advanced by learned counsel for the applicant is that the entire investigation conducted by an officer below the rank of Inspector of police is vitiated and void in view of the mandate under Section 17 of P.C. Act. It is urged that the investigation was carried out by the Sub Inspector of Police, CBI, ACB, Ghaziabad. In support of his submission, reliance has been placed on the decision rendered by the Supreme Court in State of Madhya Pradesh vs. Mubarak Ali4, to submit that investigation carried out by an officer of a lower rank as mandated under the statute would render the investigation illegal and void.
In rebuttal, learned counsel appearing for C.B.I. submits that investigation was made pursuant to the direction of this Court in PIL, followed by preliminary enquiry. The preliminary enquiry was conducted by an officer of the rank of Additional Superintendent of Police, CBI. It is stated in the counter affidavit that Special Judge, was pleased to grant permission under Section 17 of the P.C. Act to conduct investigation by the Sub Inspector vide order dated 9 July 2013. The Investigating Officer after investigation submitted charge sheet against the applicant and other accused persons. The allegation in the charge sheet and material/evidence in support thereof, prima facie, makes out a case with regard to the involvement of the applicant in commission of the offence. In any case since the Special Judge, has taken cognizance, any irregularity committed in the investigation or during the investigation would not set at naught the cognizance order which is independent of the investigation.
Rival submissions fall for consideration.
The only point pressed by the learned counsel for the applicant is that the investigation pursuant to the preliminary enquiry could not have been conducted by an officer below the rank mandated under Section 17 of the P.C. Act. Section 17 reads thus:
17. Persons authorised to investigate.--Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), no police officer below the rank,--
(a) in the case of the Delhi Special Police Establishment, of an Inspector of Police;
(b) in the metropolitan areas of Bombay, Calcutta, Madras and Ahmedabad and in any other metropolitan area notified as such under sub-section (1) of section 8 of the Code of Criminal Procedure, 1973 (2 of 1974), of an Assistant Commissioner of Police;
(c) elsewhere, of a Deputy Superintendent of Police or a police officer of equivalent rank, shall investigate any offence punishable under this Act without the order of a Metropolitan Magistrate or a Magistrate of the first class, as the case may be, or make any arrest therefor without a warrant:
Provided that if a police officer not below the rank of an Inspector of Police is authorised by the State Government in this behalf by general or special order, he may also investigate any such offence without the order of a Metropolitan Magistrate or a Magistrate of the first class, as the case may be, or make arrest therefor without a warrant:
Provided further that an offence referred to in clause (e) of sub-section (1) of section 13 shall not be investigated without the order of a police officer not below the rank of a Superintendent of Police.
Sub clause (c) and the first proviso of Section 17 of the P.C. Act is applicable to the facts of the instant case. The provision provides that notwithstanding anything contained in the Cr.P.C., no police officer below the rank of Deputy Superintendent of Police or a police officer of equivalent rank, shall investigate any offence punishable under this Act without the order of a Metropolitan Magistrate or a Magistrate of the first class, as the case may be, or make any arrest therefor without a warrant. Proviso provides if a police officer not below the rank of an Inspector of Police is authorised by the State Government in this behalf by general or special order, he may also investigate any such offence without the order of a Metropolitan Magistrate or a Magistrate of the first class, as the case may be, or make arrest therefor without a warrant.
In the given facts, preliminary enquiry came to be instituted on the direction of this Court, which was duly conducted by an officer of the rank of Additional Superintendent of Police. On the strength of the preliminary enquiry, an F.I.R. came to be lodged. Investigation was carried out by an officer of the rank of Sub Inspector of police.
The question that arises is as to whether the investigation carried out against the provisions contained in Section 17 of the P.C. Act would vitiate the cognizance taken by the Special Judge.
It would be apposite to examine the law on the point.
A similar question was raised wayback in 1955 to consider the effect of investigation carried out by a police officer below the rank of Deputy Superintendent of Police contrary to the mandate of P.C. Act without the order of the Magistrate of first class, whether it is mandatory or directory. The Supreme Court in H.N. Rishbud and Inder Singh v. The State of Delhi5 observed that cognizance taken on police report, vitiated by breach of mandatory provisions relating to investigation, cannot be set aside unless the illegality in the investigation can be shown to have brought about a miscarriage of justice. The relevant observation is extracted:
"If, therefore, cognizance is in fact taken, on a police report vitiated by the breach of a mandatory provision relating to investigation, there can be no doubt that the result of the trial which follows it cannot be set aside unless the illegality in the investigation can be shown to have brought about a miscarriage of justice. That an illegality committed in the course of investigation does not affect the competence and the jurisdiction of the Court for trial .................. invalidity of the investigation has no relation to the competence of the Court. We are, therefore, clearly, also, of the opinion that where the cognizance of the case has in fact been taken and the case has proceeded to termination., the invalidity of the precedent investigation does not vitiate the result, unless miscarriage of justice has been caused thereby."
H.N. Rishbud (supra) came to be considered in the case of Union of India vs. Prakash P. Hinduja and another6, wherein, the question raised was as follows:
"10. The principal question which, therefore, requires consideration is whether the Court can go into the validity or otherwise of the 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."
The Supreme Court relying on the decision rendered in Prabhu v. Emperor7 and Lumbhardar Zutshi v. The King8 held that that if cognizance is in fact taken on a police report initiated in breach of a mandatory provision relating to investigation, there can be no doubt that the result of the trial, which follows it, cannot be set aside unless the illegality in the investigation can be shown to have brought about a miscarriage of justice. An illegality committed in the course of investigation does not affect the competence and the jurisdiction of the court for trial. The Court in the facts arising therein held that this being the legal position, even assuming for the sake of argument that the CBI committed an error or irregularity in submitting the charge sheet without the approval of Chief Vigilance Commissioner9, the cognizance taken by the learned Special Judge on the basis of such a charge sheet could not be set aside nor could further proceedings in pursuance thereof be quashed, (Refer: Abhinandan Jha v. Dinesh Mishra10; Vineet Narain & others v. Union of India11; and State of Bihar v. J.A.C. Saldanha12).
In Kanwal Tanuj v. State of Bihar and others13 when an offence committed in the Union Territory and one of the accused residing/employed in some other State outside the said Union Territory. The question posed was whether C.B.I. under the provisions of Delhi Special Police Establishment Act, 1946 (in short ''DSPE Act'), could appear to investigate the same, unless there was a specific consent given by the concerned State under Section 6 of the DSPE Act. The Supreme Court rejected the said contention holding that if the offence is committed in Delhi, merely because the investigation of the said offence incidentally transcends to the territory of State of Bihar, it cannot be held that the investigation against an officer employed in the territory of Bihar cannot be permitted, unless there was specific consent under the DSPE Act.
The principle spelled out in the authorities referred to hereinabove was again reiterated by the Supreme Court in M/s Fertico Marketing and Investment Pvt. Ltd. And others v. Central Bureau of Investigation and another14.
The question then requires to be considered whether and to what extent the trial which follows such investigation is vitiated. The trial follows cognizance and cognizance is preceded by investigation. This is the basic scheme of the Code in respect of cognizable cases. But it does not necessarily follow that an invalid investigation nullifies the cognizance or trial based thereon. The court is 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. 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 Cr.P.C. 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. Clauses (a), (b) and (c) of Section 190(1) Cr.P.C. are conditions requisite for taking of cognizance, it is not possible to say that cognizance on an invalid police report is prohibited and is therefore a nullity.
In Mubarak Ali (supra) relied upon by the learned counsel for the applicant is of no assistance in the facts of the present case. The Court observed that the statutory safeguard provided under Section 5A of the P.C. Act must be strictly complied with, for they were conceived in public interest and were provided as a guarantee against frivolous and vexatious prosecution. The Magistrate's status gives assurance to the bona fide of the investigation. The Court expressed the view that it hopes and trust that investigations under the P.C. Act would be conducted in strict compliance with the provisions of the P.C. Act. The decision is not an authority on the proposition of law that the cognizance and the consequential trial pursuant to the charge sheet would vitiate merely for the reason that the investigation was not carried out by the competent officer as mandated under the P.C. Act.
Mubarak Ali was considered in State of U.P. v. Bhagwant Kishore Joshi15, wherein, question posed before the Supreme Court was as to whether High Court was justified in setting aside the conviction on the ground that the first stage of investigation was contrary to the provisions of the P.C. Act. The facts arisen therein was that initially an officer below the rank of Deputy Superintendent of Police had conducted the investigation, on realization that Investigating Officer is not competent, subsequently, an order was obtained from the concerned Magistrate to investigate the offence. High Court set aside conviction on the ground that there was a breach of the mandatory safeguard of the P.C. Act in as much as that the first stage of the investigation was contrary to the provisions of the P.C. Act. But the court was of the view that it (High Court) did not consider the other question whether the said breach caused prejudice to the accused in the matter of' his trial. The Court reversed the judgment of the High Court on being satisfied no prejudice has been caused to the accused.
In the facts of the case at hand, applicant is not a public servant and there is no pleadings with regard to prejudice caused to him or miscarriage of justice on account of the enquiry being conducted by an officer of the rank below that of the Deputy Superintendent of Police/Inspector. The assertion of the C.B.I. that an order to that effect was obtained from the Special Judge to entrust the investigation to a officer of the the rank of Sub Inspector has not been denied. Even otherwise the applicant has not alleged any prejudice or illegality in the course of investigation that brought about miscarriage of justice or caused prejudice to the applicant.
On specific query, learned counsel for the applicant has failed to point out any illegality, infirmity or jurisdictional error either in the impugned charge sheet or impugned order.
The application under Section 482 is, hereby, rejected.
Order Date :- 18.11.2020 Mukesh Kr.
(Suneet Kumar,J)