Madras High Court
Pramod Kumar vs Union Of India on 5 December, 2012
Author: N.Paul Vasanthakumar
Bench: N.Paul Vasanthakumar
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 5-12-2012 CORAM: THE HON'BLE MR.JUSTICE N.PAUL VASANTHAKUMAR W.P.No.21801 of 2012 M.P.No.1 of 2012 Pramod Kumar .. Petitioner Vs. 1. Union of India, re.by its Secretary, Ministry of Home Affairs, Grih Mantralaya, New Delhi. 2. Union of India, rep.by its Secretary, Department of Personnel and Training, New Delhi. 3. Central Bureau of Investigation, rep.by its Director, CGO Complex, Lodhi Road, New Delhi. 4. State of Tamil Nadu, rep.by its Secretary, Department of Home, Fort St.George, Chennai 600009. 5. Additional Superintendent of Police, Economic Offences Wing, III Floor, Rajaji Salai, Besant Nagar, Chennai 600 090. .. Respondents Prayer: This writ petition is filed under Article 226 of the Constitution of India praying this Court to issue a writ of Mandamus forbearing the respondents 3 to 5 from proceeding further with conducting inquiry or investigating offences alleged to have been committed by the petitioner in connection with the case registered in FIR in Rc.No.13(E)/2011-CBI/EOW/Chennai and pending on the file of the 5th respondent. For Petitioner : Mr.N.Vijay Narayan, Senior Counsel for Mr.S.R.Rajagopalan For Respondents 1 & 2 : Mr.M.Devendran, SCCG For Respondents 3 & 5 : Mr.N.Chandrasekaran For 4th Respondent : Mr.M.C.Swamy, Special Government Pleader ORDER
This writ petition is filed by the petitioner praying for a writ of mandamus forbearing the respondents 3 to 5 from proceeding further with conducting inquiry or investigating offences alleged to have been committed by the petitioner in connection with the case registered in FIR Rc.No.13(E)/2011-CBI/EOW/Chennai, pending on the file of the 5th respondent.
2. The brief facts necessary for disposal of this writ petition are as follows:
(a) Petitioner is an All India Service Officer of Indian Police Service and has been allotted to Tamil Nadu Cadre. He is facing an investigation by CBI, which is constituted and function by virtue of the authority given under the Delhi Special Police Establishment Act, 1946.
(b) The grievance of the petitioner is that an enquiry or investigation can be conducted by CBI into any offence alleged to have been committed under the Prevention of Corruption Act, only with the previous approval of the Central Government, where such an allegation relates to an employee of the Central Government of the level of Joint Secretary and above.
(c) Petitioner is holding the office of Inspector General of Police, which is of the level of Joint Secretary to Government. Therefore the investigation conducted by R3 and R5, without getting previous approval of the Central Government is in violation of law.
(d) According to the petitioner, he was given letter of appointment on 21.11.1989 by the Ministry of Home Affairs, Government of India, in Indian Police Service. In furtherance of the letter of appointment, petitioner executed an agreement with the President of India for completion of probation to the satisfaction of the Central Government. Petitioner was allotted to the State cadre. Petitioner held various positions during 2003 to 2006 in the Government of India and subsequently under the 4th respondent as IPC Officer.
(e) After appointment he was posted as Assistant Superintendent of Police, promoted as Superintendent of Police, and thereafter as Deputy Inspector General of Police and finally as Inspector General of Police and he is drawing the salary equivalent to that of the rank of Joint Secretary. Petitioner claims to have received medals for his meritorious services. On 10.9.2008 he was appointed as Inspector General of Police, Coimbatore Division and held the post till 19.2.2010. Thereafter he was transferred as Additional Commissioner of Police, Headquarters, Chennai City in July, 2010 and further transferred as Inspector General (Armed Forces), Chennai.
(f) On 2.5.2012 petitioner was suspended from service by the order of the 4th respondent. According to the petitioner, during his tenure as Inspector General of Police, Coimbatore Division, he directed registration of complaint against defrauding of depositors by one Paazee Forex Trading India Private Limited. The case was registered in Cr.No.26 of 2009 under Sections 3 and 4 of Prize Chit and Money Circulation (Banning) Act, 1978, and Section 420 of IPC on 24.9.2009.
(g) One Karunakaran gave complaint stating that his owner named Kamalavalli was missing, based on which Cr.No.3068 of 2009 was registered. According to the petitioner, the said Kamalavalli surfaced three days after registering FIR and stated that she went on her own. However, subsequently she gave a complaint that she was kidnapped by three Police Officers and one private person. One of her partner who was accused No.1 in FIR.No.26 of 2009 had informed her that a sum of Rs.3 crores was paid for her release. Thus, the said FIR No.3068 of 2009 was altered for the offence of kidnapping and woman harassment. However, based on her third statement the case of kidnapping was found to be false. Consequently the FIR was altered under the Prevention of Corruption Act and extortion.
(h) The said Criminal Complaint in Cr.No.26 of 2009 and Cr.No.3068 of 2009 were transferred to the file of CBI by this Court in Crl.O.P.No.2691 and 5356 of 2011 by order dated 19.4.2011 on the request made by the learned counsel appeared for CBI. Till Such transfer the case was investigated by CBCID and the petitioner was not implicated.
(i) After transfer of cases, 5th respondent registered the case in Rc.No.13(E)/2011-CBI/EOW/Chennai for offences under sections 384, 506(1), 501 IPC read with Section 13(1)(d) of Prevention of Corruption Act, 1988 on 19.4.2011. The 5th respondent thereafter summoned the petitioner for enquiry on 14.3.2012 and at the end of enquiry the petitioner was informed that he had been arraigned as 6th accused in the said case on 28.2.2012 itself.
(j) On 12.3.2012, searches were conducted at petitioner's quarters at Chennai and at his parents house in Bihar and according to the petitioner no incriminating material or document was found or traced during the said search. According to the petitioner, at the time of arraigning him as an accused and conducting raids, he was holding the post of Inspector General of Police, Armed Forces, Chennai.
(k) Petitioner filed anticipatory bail petition and in the said petition 5th respondent informed that the petitioner was arrested on 28.2.2012. The petitioner has filed this writ petition contending that even investigation can be initiated against the petitioner only after getting previous approval of the Central Government under Section 6A of the Delhi Special Police Establishment Act, 1946 and hence the conduct of investigation arraigning the petitioner as an accused and all subsequent proceedings are non-est.
(l) The anticipatory bail petition was dismissed on 20.4.2012 against which petitioner preferred SLP before the Supreme Court and according to the petitioner, even before SLP was posted for hearing on 2.5.2012, he was arrested by the 5th respondent at New Delhi and confined in prison till 28.6.2012 and thereafter he obtained bail from this Court on 28.6.2012 by filing Crl.O.P.No.12056 of 2012.
(m) Petitioner also relied on certain proceedings initiated against similarly placed officers and the orders passed therein in support of his contentions. As no prior permission was obtained from the Central Government under Section 6A of the Delhi Special Police Establishment Act, 1946, the petitioner sought for the prayer to forbear the respondents from conducting inquiry or investigation in connection with FIR in Rc.No.13(E)/2011-CBI/EOW/Chennai, pending on the file of the 5th respondent.
3. The 5th respondent filed counter affidavit contending as follows:
(i) The investigation was taken over by the 5th respondent pursuant to the orders passed by this Court in Crl.O.P.Nos.2651 and 5653 of 2011 order dated 19.4.2011, which was earlier investigated as Cr.Nos.26 of 2009 on the file of EOW-II, Coimbatore, and Cr.No.3018 of 2009 on the file of CBCID, Vellore. The 5th respondent narrated the facts leading to registration of the criminal complaints, which were subsequently ordered to be investigated by CBI.
(ii) On 24.9.2009 Central Crime Branch, Tiruppur suo-motu registered Cr.No.26 of 2009 under sections 3 and 4 of the Prize Chits and Money Circulation (Banning) Act, 1978 and under Section 420 of IPC against M/s.K.Mohanraj, K.Kathiravan, Kamalavalli Arumugam and the said accused persons sought for anticipatory bail in Crl.O.P.No.20857 of 2009 and while granting anticipatory bail, this Court ordered the Superintendent of Police, Tiruppur to take effective measures in disbursing the money to the depositors.
(iii) On 8.12.2009 one Kamalavalli-A2, Director of the financial company went missing. A woman missing case was registered in Cr.No.3068 of 2009 by Tiruppur North Police Station. She surfaced on 11.12.2009 and gave a complaint on 14.2.2010 to the then Deputy Superintendent of Police, Tiruppur Town that she was kidnapped on 8.12.2009 and an amount of Rs.3 crores was extorted from her Company by three police officers and a private individual. Based on the said complaint the case registered under woman missing was altered to Sections 323, 365, 384 and 354 IPC on 15.2.2010.
(iv) The Director General of Police by order dated 23.2.2010 transferred Cr.No.26 of 2009 to EOW-II, Coimbatore. On 18.3.2010, the Director General of Police transferred Cr.No.3068 of 2009 of Tiruppur North Police station to CBCID, Vellore. The CBCID, Vellore on 15.9.2010 altered the sections of law to Sections 384, 506(i) and 507 IPC and Section 4 of the Tamil Nadu Prohibition of Harassment of Women (Amendment) Act, 2002 and section 13(2) read with 13(1)(d) of the Prevention of Corruption Act, 1988.
(v) The Investigating Officer of CBCID interrogated the petitioner with regard to his role in the case of extortion and abuse of his official position. Thus, the role of the petitioner was strongly suspected even before the transfer of case to CBI. The said two cases were subsequently transferred to CBI as per the order of this Court on 19.4.2011 as stated supra and investigation was taken up by the 5th respondent.
(vi) During investigation it was found that the petitioner while working as Inspector General of Police, West Zone, Coimbatore under whose jurisdiction CCB, Tiruppur fallsm also abused his official position during 2009-2010 and extorted money to an extent of Rs.2.85 crores from the Directors of M/s Paazee Group of Companies, viz., accused in Cr.No.26 of 2009 of CCB, Tiruppur. Accordingly petitioner was arraigned as an accused-A6 through a memo filed before the Special Judge of CBI Cases on 28.2.2012.
(vii) The petitioner was arrested on 2.5.2012 for the offences under Sections 384, 506(i) and 507 IPC and Section 4 of the Tamil Nadu Prohibition of Harassment of Women (Amendment) Act, 2002 and section 13(2) read with 13(1)(d) of the Prevention of Corruption Act, 1988. Investigation of the present case is in the final stage. It is further stated that after thorough and substantial investigation CBI collected ample oral and documentary evidences to prove the complicity of the petitioner, who abused his official position as Inspector General of Police in dealing with the case in Cr.No.26 of 2009, in criminal conspiracy with other officers including officials and private individual and extorted huge money.
(viii) It is further stated that even though the then DIG, Coimbatore Range objected the posting of A3 Inspector of Police in CCB, Tiruppur, the petitioner in spite of knowing about the bad reputation of the said Inspector, posted the said officer in CCB, Tiruppur with ulterior motive. The petitioner even threatened A-3, that he was in possession of reports against A3 and threatened that he should act according to petitioner's instructions. Thus, the petitioner abused his official position for extorting money.
(ix) Accused No.3 viz., Inspector of Police CCB, Tiruppur has become an approver and A-4 remitted a sum of Rs.25 lakhs i.e, part of extorted money to CBI on 30.6.2012. All the accused persons totally extorted an amount of Rs.3.10 crores from the accused/Directors of the Company. The Company was having over Rs.52,000 depositors who were cheated to the tune of Rs.1,210 crores.
(x) It is further stated in the counter affidavit that permission under section 6A of the Delhi Special Police Establishment Act, 1946 is not required as the investigation by CBI itself was ordered by this Court. The petitioner was holding the post of Inspector General West Zone during the relevant period under the State Government of Tamil Nadu and he cannot rely upon Section 6A of the Act as he is a Tamil Nadu cadre officer. Section 6A of the Act is applicable to the officers of the Central Government of the level of Joint Secretary and above only and such officers are appointed by the Central Government in Corporations, Government Companies Societies and Local Authorities owned or controlled by the Central Government. Petitioner having not been posted in any of the said office, he cannot contend that section 6A of the Act is applicable to him. Various service rules have been relied regarding control over the petitioner by the State Government.
(xi) It is also stated in the counter affidavit that the petitioner is trying to get away from the direction issued by this Court in ordering CBI investigation by raising technical plea, who extorted huge amounts and ample evidences were collected to prove the charges against him and his co-conspirators. Hence the 5th respondent prayed for dismissal of the writ petition.
4. The learned Senior Counsel appearing for the petitioner argued that the petitioner having been appointed by the Central Government, who is a member of the IPS cadre, even though is serving in the Tamil Nadu Police as per Section 6A of the Delhi Special Police Establishment Act, 1946, it is mandatory to get prior permission to initiate any investigation against the petitioner, as he is drawing more than the salary of the Joint Secretary to the Government. The appointing authority of the petitioner being the Central Government, even though certain powers of imposition of minor punishments are delegated to the State Government for the day to day operational/functional requirements, the official word is vested only with the Central Government, which means the orders passed by the State Government require ratification. The learned Senior Counsel further submitted that merely because the CBI has taken over the investigation pursuant to the orders of this Court, they cannot violate the mandatory statutory provision. The Judgment of the Supreme Court reported in (2010) 3 SCC 571 (State of West Bengal v. Committee for Protection of Democratic Rights) is in respect of transfer of investigation alone and not in respect of prior approval of the Central Government for initiation of the investigation against a particular officer. The learned Senior Counsel also relied on the judgment of the Supreme Court in the case of Vineet Narain v. Union of India reported in (1998) 1 SCC 226 and argued that in the said judgment the Supreme Court has directed the CBI to scrupulously follow the provisions of the CBI Manual for raids, seizure and arrest and further held that deviation of the procedures should be viewed seriously and severe disciplinary action would be taken against the officials concerned. The learned Senior Counsel also submitted that when this Court passed orders in Crl.O.P. transferring the investigation to CBI on 19.4.2011, the petitioner was not made as accused in the case. As section 6A of the Act having been violated by not getting prior approval of the Central Government, the entire investigation made by the CBI against the petitioner should be set aside insofar as the petitioner is concerned. The learned Senior Counsel also relied on certain decisions in support of his submissions.
5. The learned Counsel appearing for respondents 3 and 5 on the other hand submitted that even though petitioner is an IPS Cadre Officer, he is serving in Tamil Nadu Police Department. The power of transfer and administrative control are vested with the State Government and therefore Section 6A of the Act is not applicable. The learned counsel further submitted that this Court having ordered transfer of investigation to CBI by order dated 19.4.2011, pursuant to which the investigation was taken over by CBI, the respondents 3 and 5 are duty bound to investigate all persons concerned with the said crime numbers and if the petitioner's case is accepted, it will be indirectly interfering with the order passed by this Court. The investigation having been ordered by this Court, it should reach the logical conclusion and the petitioner cannot stall the investigation at the threshold, particularly when there are prima facie materials to prove the extortion of money to the extent of Rs.2.85 crores from the Directors of M/s.Paazee Group of Companies. Petitioner also influenced the investigation of the case, when it was pending before CCB, Tiruppur. The learned counsel further submitted that the allegation being corrupt practice, the same will not come within the policy decision taken administratively, which alone will come within the purview of Section 6A, even assuming the said provision is applicable to petitioner's case. The learned counsel further submitted that except imposition of penalties like removal, dismissal, compulsory retirement, all other actions are entitled to be taken by the State Government as he is serving in the State Police Department. The learned counsel further submitted that the petitioner was suspended from service by the order of State Government through G.O.Ms.No.341 Home (SC) Department dated 10.5.2012 based on his involvement in the criminal case, which is under investigation by the CBI, EOW, Chennai, and the petitioner was also arrested on 2.5.2012 and detained in judicial custody for a period exceeding 48 hours. The learned counsel therefore submitted that the writ petition filed questioning investigation at the threshold, is an abuse of process of the Court and that the writ petition is liable to be dismissed with heavy cost.
6. The learned Special Government Pleader appearing for 4th respondent supported the stand taken by the learned counsel for respondents 3 and 5.
7. Respondents 1 and 2 have not filed any counter affidavit even though the said respondents are represented by counsel.
8. I have considered the rival submissions made by learned counsel on either side.
9. The point for consideration in this writ petition is whether the investigation undertaken by the 5th respondent as against the petitioner without getting prior approval from the Central Government is justified on the facts and circumstances of this case ?
10. In Crl.O.P.No.2691 and 5356 of 2011 this Court by order dated 19.4.2011 ordered transfer of investigation of Cr.No.26 of 2009 on the file of Deputy Superintendent of Police, EOW-II, Coimbatore and Cr.No.3068 of 2009 on the file of Deputy Superintendent of Police, CBCID, Vellore. In the said order it is stated that "the gullible depositors have been duped of money running into hundreds of crores by a concern namely, M/s.Paazee Forex Trading India Pvt., Ltd., and its Directors/officials". The depositors formed an association and at their instance direction was issued by this Court earlier despite giving direction to settle the claim of the depositors, the claim was made stating that only a sum of Rs.6,50,000/- is lying in the credit of the Company's account. The anticipatory bail petition originally granted was cancelled, against which SLP was filed, which was also dismissed. Despite cancellation of anticipatory bail and dismissal of further applications for the grant of anticipatory bail, the State Police failed to take action by arresting the accused though they are available. This Court having noticed the international ramifications of the issue, ordered transfer of investigation of the two cases to the file of the Director of CBI, New Delhi. This Court also observed that Police Officials have said to have wrongly obtained upto Rs.3 crores under assurance to the Director of M/s.Paazee group of companies that they need not repay any of the depositors and therefore interrogation of the accused police officials could throw light on what had been gathered by them on the wrong doings of the Company and its Directors. Consequently investigation was transferred to CBI and during investigation the complicity of the petitioner came to light and he was also arraigned as 6th accused in the case by the 5th respondent for abusing his official position and extortion of huge money from the accused in Cr.No.26 of 2009, etc. At the outset it is to be mentioned here that the prayer sought for in this writ petition is not to proceed against the petitioner by respondents 3 and 5, who were given authority by the order of this Court dated 19.4.2011.
11. The deposit money is of over 52,000 depositors, who have been cheated to the tune of Rs.1210 crores. Based on the investigation ordered by this Court as stated supra, petitioner was arrested and he obtained bail. He was also suspended from service by GO.Ms.No.341 Home Department, dated 10.5.2012. The order of this Court transferring the investigation of two cases to CBI has not been challenged by anyone, including the petitioner. Pursuant to the said order of this Court, the respondents are entitled to investigate anyone, connected with the said crime numbers and the issues arising out of the incidents involving Paazee Group of Company.
12. The sole contention of the petitioner is that the petitioner is an IPS officer, appointed by the Central Government and though he is serving in the state of Tamil Nadu, prior permission of the Central Government under Section 6A of the Delhi Special Police Establishment Act, 1946, is bound to be obtained before investigating the petitioner.
13. The issue as to whether in a given case the High Court can order transfer of investigation to CBI, without getting consent of the State Government concerned as provided under Section 6 of the Delhi Special Police Establishment Act, 1946, came up for consideration before the Constitution Bench of the Supreme Court in the decision reported in (2010) 3 SCC 571 (State of West Bengal v. Committee for Protection of Democratic Rights). In the said case it is categorically held that the High Court can direct CBI to take up investigation within the jurisdiction of the State and the power cannot be taken away, curtailed or diluted by Section 6 of the Delhi Special Police Establishment Act, 1946. In paragraph 68 the Supreme Court further held thus, "68. Thus, having examined the rival contentions in the context of the constitutional scheme, we conclude as follows:
(i) The fundamental rights, enshrined in Part III of the Constitution, are inherent and cannot be extinguished by any constitutional or statutory provision. Any law that abrogates or abridges such rights would be violative of the basic structure doctrine. The actual effect and impact of the law on the rights guaranteed under Part III has to be taken into account in determining whether or not it destroys the basic structure.
(ii) Article 21 of the Constitution in its broad perspective seeks to protect the persons of their lives and personal liberties except according to the procedure established by law. The said article in its broad application not only takes within its fold enforcement of the rights of an accused but also the rights of the victim. The State has a duty to enforce the human rights of a citizen providing for fair and impartial investigation against any person accused of commission of a cognizable offence, which may include its own officers. In certain situations even a witness to the crime may seek for and shall be granted protection by the State.
(iii) In view of the constitutional scheme and the jurisdiction conferred on this Court under Article 32 and on the High Courts under Article 226 of the Constitution the power of judicial review being an integral part of the basic structure of the Constitution, no Act of Parliament can exclude or curtail the powers of the constitutional courts with regard to the enforcement of fundamental rights. As a matter of fact, such a power is essential to give practicable content to the objectives of the Constitution embodied in Part III and other parts of the Constitution. Moreover, in a federal constitution, the distribution of legislative powers between Parliament and the State Legislature involves limitation on legislative powers and, therefore, this requires an authority other than Parliament to ascertain whether such limitations are transgressed. Judicial review acts as the final arbiter not only to give effect to the distribution of legislative powers between Parliament and the State Legislatures, it is also necessary to show any transgression by each entity. Therefore, to borrow the words of Lord Steyn, judicial review is justified by combination of the principles of separation of powers, rule of law, the principle of constitutionality and the reach of judicial review.
(iv) If the federal structure is violated by any legislative action, the Constitution takes care to protect the federal structure by ensuring that the Courts act as guardians and interpreters of the Constitution and provide remedy under Articles 32 and 226, whenever there is an attempted violation. In the circumstances, any direction by the Supreme Court or the High Court in exercise of power under Article 32 or 226 to uphold the Constitution and maintain the rule of law cannot be termed as violating the federal structure.
(v) Restriction on Parliament by the Constitution and restriction on the executive by Parliament under an enactment, do not amount to restriction on the power of the Judiciary under Articles 32 and 226 of the Constitution.
(vi) If in terms of Entry 2 of List II of the Seventh Schedule on the one hand and Entry 2-A and Entry 80 of List I on the other, an investigation by another agency is permissible subject to grant of consent by the State concerned, there is no reason as to why, in an exceptional situation, the Court would be precluded from exercising the same power which the Union could exercise in terms of the provisions of the statute. In our opinion, exercise of such power by the constitutional courts would not violate the doctrine of separation of powers. In fact, if in such a situation the Court fails to grant relief, it would be failing in its constitutional duty.
(vii) When the Special Police Act itself provides that subject to the consent by the State, CBI can take up investigation in relation to the crime which was otherwise within the jurisdiction of the State police, the Court can also exercise its constitutional power of judicial review and direct CBI to take up the investigation within the jurisdiction of the State. The power of the High Court under Article 226 of the Constitution cannot be taken away, curtailed or diluted by Section 6 of the Special Police Act. Irrespective of there being any statutory provision acting as a restriction on the powers of the Courts, the restriction imposed by Section 6 of the Special Police Act on the powers of the Union, cannot be read as restriction on the powers of the constitutional courts. Therefore, exercise of power of judicial review by the High Court, in our opinion, would not amount to infringement of either the doctrine of separation of power or the federal structure."
(Emphasis Supplied) The only difference in this case is that the High Court in this case ordered transfer of investigation to CBI in petitions filed under Section 482 Cr.P.C. in exercise of its inherent jurisdiction and not under Article 226 of the Constitution of India.
14. In this case, as stated supra, this Court in exercise of its inherent powers under Section 482 Cr.P.C., passed an order transferring investigation from the State Police to CBI, particularly taking note of the collusion of Police Officials in the criminal cases registered, extortion of about Rs.3 crores from the Directors by kidnapping one of the Director, etc. Hence the petitioner is not entitled to raise objection that only after getting permission from the Central Government a case against the petitioner, who is an IPS Officer, can be investigated. If such an argument is accepted, it will run contra to the decision of the Constitution Bench, cited supra.
15. If the transfer of investigation is permitted by the High Court in spite of Section 6 of the Delhi Special Police Establishment Act, 1946 without the consent of the State, the investigation having been transferred by the High Court, the CBI can investigate the case even without getting prior permission from the Central Government, including an officer at the Joint Secretary level. Further, there is controversy regarding the applicability of the said section viz., Section 6A to the Petitioner, who is an IPS Officer, serving in the Police Department of the State of Tamil Nadu. The said issue need not be answered on the facts and circumstances of this case as getting permission from the Central Government under section 6A is no longer required even if the petitioner is coming under the purview of the Central Government for the purpose of getting permission.
16. The contention of the learned Senior Counsel for the petitioner that in Vineet Narain case, (1998) 1 SCC 226, the Supreme Court gave directions to scrupulously follow the CBI Manual while investigating the cases by CBI like raids, seizure and arrest and deviation should be viewed seriously and severe disciplinary action against the officials concerned are to be taken are also taken note of by the Supreme Court in (2003) 6 SCC 195 : AIR 2003 SC 2612 (Union of India v. Prakash P.Hinduja). In the said case the question raised was whether the submission of charge sheet by the CBI without reporting and getting approval or consent from CVC was illegal and no cognizance should be taken thereon is valid or not. In paragraphs 20 and 21 (in SCC) the Supreme Court held thus, "20. Thus the legal position is absolutely clear and also settled by judicial authorities that the court would not interfere with the investigation or during the course of investigation which would mean from the time of the lodging of the first information report till the submission of the report by the officer in charge of the police station in court under Section 173(2) CrPC, this field being exclusively reserved for the investigating agency.
21. An incidental question as to what will be the result of any error or illegality in investigation on the trial of the accused before the court may also be examined. Section 5-A of the Prevention of Corruption Act, 1947 provided that no police officer below the rank of a Deputy Superintendent of Police shall investigate any offence punishable under Section 161, Section 165 and Section 165-A IPC or under Section 5 of the said Act without the order of a Magistrate of the First Class. In H.N. Rishbud (AIR 1955 SC 196) the investigation was entirely completed by an officer of the rank lower than the Deputy Superintendent of Police and after permission was accorded a little or no further investigation was made. The Special Judge quashed the proceedings on the ground that the investigation on the basis of which the accused were being prosecuted was in contravention of the provisions of the Act, but the said order was set aside by the High Court. The appeal preferred by the accused to this Court assailing the judgment of the High Court was dismissed and the following principle was laid down: (AIR pp. 203-04, para 9) 9. The question then requires to be considered whether and to what extent the trial which follows such investigation is vitiated. Now, trial follows cognizance and cognizance is preceded by investigation. This is undoubtedly 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. 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 193 and 195 to 199.
These latter sections regulate the competence of the court and bar its jurisdiction in certain cases excepting in compliance therewith. But Section 190 does not. While no doubt, in one sense, clauses (a), (b) and (c) of Section 190(1) 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. Such an invalid report may still fall either under clause (a) or (b) of Section 190(1), (whether it is the one or the other we need not pause to consider) and in any case cognizance so taken is only in the nature of error in a proceeding antecedent to the trial. The Court after referring to Parbhu v. Emperor (AIR 1944 SC 73) and Lumbhardar Zutshi v. R. (AIR 1950 SC 26) held that if cognizance is in fact taken on a police report initiated 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 and that an illegality committed in the course of investigation does not affect the competence and the jurisdiction of the court for trial. This being the legal position, even assuming for the sake of argument that CBI committed an error or irregularity in submitting the charge-sheet without the approval of CVC, 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. The High Court has clearly erred in setting aside the order of the learned Special Judge taking cognizance of the offence and in quashing further proceedings of the case."
17. I am aware that the above said judgment of the Supreme Court was rendered on 7.7.2003 i.e, before insertion of Section 6A of the Delhi Special Police Establishment Act, 1946 by Amendment Act, 45 of 2003, which came into force from 12.9.2003. However, the principle stated in the said judgment can be followed in this case. As per the said judgment, even if any defect in the investigation is found, it does not necessarily follow that invalid investigation nullify the congnizance or trial based thereon. A defect or illegality in the investigation, however serious has no direct bearing on the competence or the procedure relating to congnizance or trial. Further, as stated supra, the respondents 3 and 5 are conducting investigation as per the order of this Court, which cannot be challenged by the petitioner indirectly in this writ petition.
18. On the basis of the above findings, I am of the view that the petitioner is not entitled to maintain this writ petition to find fault with the respondents 3 and 5 in proceeding against the petitioner and arraigning him as A6 in the case registered in FIR Rc.No.13(E)/2011-CBI/EOW/Chennai, pending on the file of fifth respondent. The above view taken in this order cannot be misconstrued as giving any finding against the petitioner in the pending criminal case. It is up to the petitioner to defend the criminal case pending against him and the respondents cannot rely on any finding given in this order adverse to the petitioner, during trial of the criminal case.
The writ petition is dismissed with the above observations. Connected miscellaneous petition is dismissed. There will be no order as to costs.
vr To
1. The Secretary, Ministry of Home Affairs, Grih Mantralaya, Union of India, New Delhi.
2. The Secretary, Department of Personnel and Training, Union of India, New Delhi.
3. The Director, Central Bureau of Investigation, CGO Complex, Lodhi Road, New Delhi.
4. The Secretary, Department of Home, Fort St.George, Chennai 600009.
5. The Additional Superintendent of Police, Economic Offences Wing, III Floor, Rajaji Salai, Besant Nagar, Chennai 600 090