Delhi High Court
Rajinder Dass Gupta vs Central Bureau Of Investigation on 28 February, 2001
Equivalent citations: 2001IIIAD(DELHI)537, 2001CRILJ2310, 90(2001)DLT527, 2001(58)DRJ276
Author: R.C. Chopra
Bench: R.C. Chopra
ORDER R.C. Chopra, J.
1. The only question raised in this petition under Section 482 of the Code of Criminal Procedure, by Mr. D.C. Mathur, Senior Advocate, is in regard to the essentials of the order required to be issued under second proviso to Section 17 of the Prevention of Corruption Act, 1988 (hereinafter referred to as "the Act" only) for investigation into an offence under Section 13(1)(e) of the said Act.
2. Section 13(1)(e) brings a public servant within the definition of "criminal misconduct" under Section 13 of the Act if he or any person on his behalf, is in possession or has, at any time during the period of his office, been in possession for which the public servant cannot satisfactorily account of pecuniary resources or property disproportionate to his known sources of income. Section 17, which speaks of the persons authorised to investigate the offences under the Act lays down that in case of Delhi Special Police Establishment, no officer below the rank of an Inspector of Police shall investigate any offence punishable under the Act without the order of a Metropolitan Magistrate or a Magistrate of the First Class. The second proviso to Section 17, which is relevant for the purpose of the issues raised in this petitioner reads as under:-
"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."
3. I have heard learned counsel for the petitioner and learned counsel for the respondent.
4. The facts leading to filing of this petition, briefly stated, are that on 21.1.1986, an FIR bearing No.RC-1/86/SIU(III) was registered by SPE, Delhi, commonly known as Central Bureau of Investigation, on a source information against the present petitioner under Section 5(2) read with Section 5(1)(e) of the old Act In this FIR, it was mentioned that information had been received from a reliable source that the petitioner, a Joint Director of Industries, Delhi Administration had been indulging in corruption and obtaining large sums of money by dubious and corrupt means and had invested money, thus acquired, in purchasing moveable and immovable properties in the name of his parents relatives as well as in his own name, which were disproportionate to the known sources of his income. It was also recorded that according to the information received, he was in possession of costly items at his residence and his standard of living was very high and beyond his means. The details of five immovable properties, allegedly acquired by him through illegal and corrupt means were recorded in the FIR besides recording his total salary earned so far, which was much less than the value of his assets. The last para of the FIR,m which would require consideration by this Court reads as under :-
"The above facts disclose commission of an offence punishable under section 5(2)(d) r/w 5(1)(d) of Prevention of Corruption Act (Act-2 of 1947) on the part of Shri RD Gupta, Joint Director, Delhi Administration, Delhi. A Regular Case is, therefore, registered and entrusted to Shri RP Sharma, DY.SP. CBI SIC SIU.III(SPE N.Delhi for investigation.
SUPERINTENDENT OF POLICE CBI SIC SIU.III.N.DELHI"
5. After necessary investigations and obtaining sanction, a challan was filed against the petitioner, which is still pending in the Court below. An application moved on behalf of the petitioner for dropping the proceedings and his discharge on the ground that the investigations conducted by CBI were illegal, was dismissed by learned Special Judge (SIC) orders dated 18.12.1999.
6. Learned counsel for the petitioner has vehemently argued that in the present case, there was flagrant violation of Section 17 of the Act, firstly on the ground that Superintendent of Police had not passed a separate order entrusting investigation to an authorised officer after registration of the FIR and (SIC) plain reading of FIR shows that a composite order registering the FIR and entrusting the investigations to Mr. R.P. Sharma, Dy. S.P., CBI was made, which was not in compliance of the proviso to Section 17 of the Act Learned counsel further argues that the order under the said proviso ought to have been a speaking order showing application of mind and as such, the investigations are liable to be struck down.
7. Learned counsel for the petitioner relies upon a judgment in State of Haryana Vs. Bhajan Lal, and submits that in the present case also, investigations are liable to be struck down in view of non-compliance of the proviso to Section 17 of the Act. In Bhajan Lal's case, referred to above, the Apex Court had held that the S.H.O. to whom investigations were entrusted under Section 17 was not clothed with valid legal authority to take up the investigations. The Hon'ble Judges were of the view that the word "Investigate" recorded by Superintendent of Police, while entrusting the investigations to the S.H.O. did not amount to an order within the meaning of the proviso to Section 5(a)(i) of the old Act, now proviso to Section 17 of the Act. The Court observed that Superintendent of Police had given no reason for directing the S.H.O. to investigate the case and as such, the direction appeared to have been granted mechanically and in a very casual manner. The basic ground to quash the investigations in the said case was that the directions contained in one word "Investigate" did not amount to an order within the meaning of the proviso of Section 5 of the Act. A judgment reported in The State of M.P. Vs. Mubarak Ali, was also referred to by Their Lordships in which the order "Permission granted" used by a Magistrate was taken as a mechanically issued order, which did not disclose the reasons for giving permission.
8. The aforesaid judgment in Bhajan Lal's case came to be discussed in detail in State of M.P. & Others Vs. Ram Singh, . Their Lordships after considering the said judgment clearly held that in Bhajan Lal's case, the Court had found on facts that the S.P. had passed the order mechanically and in a very casual manner, in disregard of the settled principles of law and the S.P. was shown to be not aware either of the allegations or the nature of the offences. Their Lordships clearly held that the facts of Bhajan Lal's case were distinguishable to the facts of Ram Singh's case in as much as the S.P. appeared to have applied his mind while passing the order authorising investigations by an Inspector and the reasons for entrustment of investigations were obvious. The Hon'ble Judges were of the view that the High Court should not have liberally construed the provisions of the Act in favor of the accused resulting in closure of the trial of serious charges in relation to the commission of offences punishable under the Act legislated to curb the illegal and corrupt practices of the public officers. Hon'ble Judges did not approve the findings of the High Court that merely because the order of the Superintendent of Police was on a typed proforma it showed non-application of mind or could be held to have been passed in a mechanical and casual manner. It was noted that the order indicated the name of the accused, number of FIR, nature of the offence and the power of Superintendent of Police permitting him to authorise a junior officer to investigate the offence. The order passed by the S.P. in Ram Singh's case was similar to the orders passed by the S.P. in the present case exercising his powers under the second proviso to Section 17 of the Act. Learned counsel for the petitioner, however, has relied upon the last lines of para-15 of Ram Singh's judgment in which it was observed that the time between registration of the FIR and the authorisation in terms of second proviso to Section 17 showed application of mind and has argued that in the present case, there was no time gap between registration of the FIR and the order under the second proviso to Section 17 and as such, the order has to be declared violative of Section 17 of the Act.
9. Learned counsel for the respondent on the other hand contends that the order passed under the second proviso to Section 17 of the Act in this case was after proper application of mind by the S.P. to the material available against the petitioner. He points out that earlier paragraphs of the FIR, at the end of which this order exists, clearly disclosed the result of source information revealing that there were good and sufficient grounds to register a case against the petitioner and initiate investigations. He also submits that no particular time gap is required between registration of the FIR and the order under the proviso to Section 17. He relies upon a judgment in State By Central Bureau of Investigation Vs. S.Bangarappa, (2001)1 SCC 369 in which Hon'ble Mr. Justice K.T. Thomas speaking for the Bench upheld a similar order issued under Section 17 of the Act.
10. After considering the submissions made by learned counsel for the petitioner and learned counsel for the respondent and perusing the impugned order under second proviso to Section 17 of the Act, I am of the considered view that the said order does not suffer from any illegality or infirmity. The observations made in Bhajan Lal's case are not at all applicable to the facts of the case in hand for the reason that in this case, Superintendent of Police had first discussed in detail the allegation reported against the petitioner and thereafter recorded his satisfaction that those facts disclosed commission of an offence under Section 5(2) read with Section 5(1)(d) of old Act on the part of petitioner. After making up his mind that there were good and sufficient grounds for proceeding against him, he ordered registration of the case and directed that the investigations be conducted by Mr. R.P. Sharma, Deputy Superintendent of Police, CBI.
11. There is no dispute in regard to the legal preposition that the investigations commence only after registration of the FIR and as such, in the present case, firstly the FIR was registered and thereafter the investigations were taken up by Mr. R.P. Sharma by virtue of the orders passed by Superintendent of Police at the end of the FIR. May be that the order was recorded at the end of FIR, but actually speaking, it was a separate order, which was based on the facts recorded in the earlier part of the FIR.
12. The time gap between recording of the FIR and the order under Section 17 may give time and opportunity to the Superintendent of Police for applying his mind to the facts of the case before ordering investigations, but in a case like the present one where the order under Section 17 was at the end of the FIR itself, which contained all material allegations against the accused, it cannot be said by any stretch of imagination that the order was passed without considering the allegations and the material available against the accused. The time gap between registration of the FIR and the order under the proviso to Section 17 of the Act as observed by Their Lordships in Ram Singh's case was to express the Courts satisfaction in regard to application of mind by the Superintendent of Police and did not lay down any hard and fast rule that the FIR and the order under Section 17 have to be physically separate and at different times. In the case in hand, however, the order under Section 17 of the Act was separate though at the bottom of the FIR and was passed soon after considering the allegations against the petitioner, which were recorded in the earlier part of FIR. Therefore, in the present case it cannot be said that the order under the second provision to Section 17 was mechanically passed without application of mind by Superintendent of Police or that it was violative of the law laid down in Bhajan Lal's case or Ram Singh's case, referred to above.
13. As held in Ram Singh's case, the mere fact that the order was a typed one, does not show that it was mechanically passed, without application of mind. The fact that name of the Investigating officer R.P. Sharma was mentioned at the top of the FIR in question, does not show that before passing the order, any decision had been taken to hand over the investigations to him. It appears that the said order was typed under the directions and at the instance of the Superintendent of Police competent to make an order, who after making up his mind asked his staff to type out the order, as desired by him. The subordinate functionary, therefore, who typed out the order in compliance with the directions could fill up the columns, which in no way suggests that before dictating the order, the Superintendent of Police had made up his mind in a particular fashion. Since the investigations commenced after registration of the FIR only and in the present case, the impugned order under Section 17 was at the bottom of the FIR, there remains no doubt that this order was passed after recording of the FIR and considering all the facts and circumstances leading to registration of the case against petitioner.
14. The Courts must not lose sight of the fact that wide-spread corruption amongst public servants has to be curbed with a strong hand by all concerned including Courts of law. The corruption affects not only the moral fibre of the Society but the economic stability and progress of the country as well. The procedural technicalities must not be permitted to come in the way of the trial of those, who are found misusing their public positions and exploiting public offices for their private gain. In Ram Singh's case, Their Lordships expressed their disgust in the following words:-
"Corruption in a civilised society is a disease like cancer, which if not detected in time, is sure to maliganise (sic) the polity of the country leading to disastrous consequences. It is termed as a plague which is not only contagious but if not controlled spreads like a fire in a jungle. Its virus is compared with HIV leading to AIDS, being incurable. It has also been termed as royal thievery. The socio-political system exposed to such a dreaded communicable disease is likely to crumble under its own weight. Corruption is opposed to democracy and social order, being not only anti-people, but aimed and targeted against them. It affects the economy and destroys the cultural heritage. Unless nipped in the bud at the earliest, it is likely to cause turbulence - shaking of the socio-economic-political system in an otherwise healthy, wealthy, effective and vibrating society."
15. In para-10 quoting from the judgment in R.S. Nayak Vs. A.R.Antulay's case, Their Lordships issued directions that it was the duty of the Courts to adopt that construction, which would advance the underlying object of the Act, namely to make effective provision for the prevention of bribe and corruption and at any rate not defeat it. In para-11 of the said judgment, Their Lordships clearly expressed Their anguish in the following words:-
"Procedural delays and technicalities of law should not be permitted to defeat the object sought to be achieved by the Act. The overall public interest and the social object is required to be kept in mind while interpreting various provisions of the Act and deciding cases under it."
16. In the result, I am of the considered view that there is no infirmity attached to the order passed in this case under second proviso to Section 17 of the Act. The petitioner, therefore, stands dismissed. This case is pending trial for the last about fourteen years. Learned trial Court, therefore, must endeavor to expedite the trial.