Madras High Court
J.Vivek vs The Principal Secretary on 15 December, 2023
Author: M.Sundar
Bench: M.Sundar
W.P(MD)No.30029 of 2023
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 15.12.2023
CORAM :
THE HONOURABLE MR.JUSTICE M.SUNDAR
and
THE HONOURABLE MR.JUSTICE R.SAKTHIVEL
W.P(MD)No.30029 of 2023
J.Vivek ... Petitioner
vs.
1. The Principal Secretary,
The Home Department,
Secretariat, Chennai – 600 009.
2. The Director General of Police,
Dr.Radhakrishnan Salai,
Mylapore, Chennai – 600 004.
3. The Director,
Vigilance and Anti-Corruption,
No.293, MKN Road,
Alandur, Chennai – 600 016.
5.The Deputy Superintendent of Police,
Vigilance and Anti-Corruption,
Dindigul. ... Respondents
Petition filed under Article 226 of the Constitution of India praying
for issuance of a Writ of Mandamus, forbearing the respondents herein
i.e., Tamil Nadu Police from investigating the FIR in Crime No.6 of 2023
to Central Bureau of Investigation for further investigation and
consequently directing the respondents to take action against the erring
officials.
https://www.mhc.tn.gov.in/judis
Page No.1 of 45
W.P(MD)No.30029 of 2023
For Petitioner : Mr.K.Rajeshwaran
For Respondents : Mr.R.Shunmugasundaram
Advocate General, instructed by
Mr.A.Thiruvadi Kumar
Additional Public Prosecutor
assisted by Ms.A.G.Shakeenaa
Abdul Gafoor
for R1
Mr.Veera Kathiravan
Additional Advocate General
instructed by
Mr.A.Thiruvadi Kumar
Additional Public Prosecutor
assisted by Mr.R.Kavinprasath
for R2
Mr.Hasan Mohamed Jinnah
State Public Prosecutor
and
Mr.A.Thiruvadi Kumar
Additional Public Prosecutor
assisted by Mr.S.Santosh
Government Advocate
for R3 and R4
ORDER
[Order of the Court was made by M.SUNDAR, J.] Captioned 'Writ Petition' ('WP' for the sake of brevity) has been filed in this Court on 04.12.2023 as a 'Public Interest Litigation' ('PIL' for the sake of brevity).
https://www.mhc.tn.gov.in/judis Page No.2 of 45 W.P(MD)No.30029 of 2023
2. Factual matrix in a nutshell is that PIL petitioner, who is a practising advocate says larger public interest is involved qua investigation pursuant to 'First Information Report dated 30.11.2023' ('FIR' for the sake of brevity) regarding Crime No.6 of 2023 on the file of 'The Directorate of Vigilance and Anti- Corruption' (hereinafter 'DVAC' for the sake of brevity); that the sheet anchor of PIL petitioner's plea is that this case should be transferred to the 'Central Bureau of Investigation' ('CBI' for the sake of brevity) as it pertains to an Assistant Director of Enforcement Directorate ('Enforcement Directorate' shall be referred to as 'ED' for the sake of brevity) who is now serving in Madurai Sub-zonal Office of ED; that search on 01.12.2023 pursuant to said FIR is the epicentre of the issue i.e., search by DVAC in the Office of ED, Madurai; that this investigation should be transferred to CBI is the nucleus/lone plea qua mandamus prayer in captioned WP.
3. Mr.K.Rajeshwaran, learned counsel on record for PIL petitioner reiterated the aforementioned factual matrix in the hearing. Learned counsel submitted that the officer concerned in ED Madurai has sent a representation dated 02.12.2023 to the second respondent as regards the search on 01.12.2023. Learned counsel submitted that the search itself is https://www.mhc.tn.gov.in/judis Page No.3 of 45 W.P(MD)No.30029 of 2023 illegal as according to him investigation qua an ED Officer can only be by the CBI and in support of this contention, learned counsel placed reliance on the preamble and Section 8(c) of 'The Central Vigilance Commission Act, 2003 (Act No.45 of 2003)' [hereinafter 'CVC Act' for the sake of brevity].
4. Issue notice.
5. Mr.A.Thiruvadi Kumar, learned State Additional Public Prosecutor accepted notice for all four respondents. Mr.R.Shunmugasundaram, learned Advocate General, State of Tamil Nadu, appeared on his behalf as regards first respondent (Home Secretary). Mr.Hasan Mohamed Jinnah, learned State Public Prosecutor, appeared on behalf of Mr.A.Thiruvadi Kumar as regards respondents 3 and 4 (DVAC) and Mr.Veera Kathiravan, learned Additional Advocate General appeared on behalf of Mr.Thiruvadi Kumar, as regards second respondent (Director General of Police, State of Tamil Nadu i.e., DGP). To be noted, while learned Advocate General and learned State Public Prosecutor were before us on a 'video conferencing' ('VC' for the sake of brevity) platform, Mr.K.Rajeshwaran, learned counsel for PIL petitioner, Mr.A.Thiruvadi Kumar, learned State Additional Public Prosecutor who accepted notice for all four respondents and Mr.Veera Kathiravan, learned Additional Advocate General were before us in the physical https://www.mhc.tn.gov.in/judis Page No.4 of 45 W.P(MD)No.30029 of 2023 Court. This is recorded for the purpose of making it clear that the hearing is a 'Hybrid Hearing'.
6. All the State Counsel appearing for the respondents submitted that the captioned PIL does not hold water in the light of well settled principles of law. All the State Counsel submitted in unison in one voice that the entire matter or in other words the substratum of the bone of contention turns on pristine principles of law and therefore, they are ready to argue the main matter in the 'Admission Board' itself without going through the drill of filing counter-affidavit.
7. In the above scenario, with the consent of both sides, i.e., learned counsel for PIL petitioner and learned State counsel for all respondents, main WP was taken up and heard out. In this regard, this second limb of sub-rule (3) of Rule 19 of Madras High Court Writ Rules, 2021 is of relevance. This provides for shorter Rule Nisi notices and therefore, we take recourse to second limb sub-rule (3) of Rule 19.
8. Detailed submissions were made by both sides. After hearing both sides, this Court is of the considered view that the mandamus prayer in the captioned PIL deserves a dismissal and the reasons shall be set out infra. Before we set out the reasons, we make it clear that while we set https://www.mhc.tn.gov.in/judis Page No.5 of 45 W.P(MD)No.30029 of 2023 out the reasons infra, the arguments, our discussion and dispositive reasoning will be rolled into one by way of points. In other words, the arguments, discussion and dispositive reasoning for the conclusion that captioned PIL deserves to be dismissed are as follows:
(i) As alluded to supra, the sheet anchor submission of PIL petitioner is, DVAC does not have powers or in other words DVAC is denuded of powers as the officer concerned is an Assistant Director in ED. In this regard, the lead case as pointed out by learned Advocate General is Rishbud case [H.N.Rishbud and Inder Singh Vs. State of Delhi reported in (1954) SCCOnline SC 34]. Before we advert to Rishbud case law, we deem it pertinent to mention that in the light of oft-
quoted declaration of law as regards precedents by a Constitution Bench in celebrated Padma Sundara Rao case [Padma Sundara Rao Vs. State of Tamil Nadu law reported in (2002) 3 SCC 533], more particularly paragraph 9 thereat, we would be setting out the facts and the ratio wherever we refer to the case laws that were pressed into service. To be noted paragraph 9 of Padma Sundara Rao reads as follows:
'9. Courts should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. There is always peril in treating the words of a speech or judgment as though they are words in https://www.mhc.tn.gov.in/judis Page No.6 of 45 W.P(MD)No.30029 of 2023 a legislative enactment, and it is to be remembered that judicial utterances are made in the setting of the facts of a particular case, said Lord Morris in Herrington v. British Railways Board [(1972) 2 WLR 537 : 1972 AC 877 (HL) [Sub nom British Railways Board v. Herrington, (1972) 1 All ER 749 (HL)]] . Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases.'
(ii) In Rishbud case, facts thereat pertain to an argument that prosecution under the Prevention of Corruption Act, 1947 (prior Act i.e., prior to one that is in vogue now) was in contravention of sub-section (4) of Section 5 of the Prevention of Corruption Act, 1947 and we usefully extract paragraphs 1 and 2 which read as follows:
'These are appeals by special leave against the orders of the Punjab High Court made in exercise of revisional jurisdiction, reversing the orders of the Special Judge, Delhi, quashing certain criminal proceedings pending before himself against these appellants for alleged offences under the Penal Code and the Prevention of Corruption Act, 1947. The Special Judge quashed the proceedings on the ground that the investigations on the basis of which the appellants were being prosecuted were in contravention of the provisions of sub-section (4) of Section 5 of the Prevention of Corruption Act, 1947, and hence illegal. In Appeal No. 95 of 1954 the appellants are two persons by name H.N. Rishbud and Indar Singh. In Appeals No. 96 and 97 of 1954 H.N. Rishbud above https://www.mhc.tn.gov.in/judis Page No.7 of 45 W.P(MD)No.30029 of 2023 mentioned is the sole appellant. These appeals raise a common question of law and are dealt with together. The appellant Risbud was the Assistant Development Officer (Steel) in the office of the Directorate-General, Ministry of Industry and Supply, Government of India and the appellant Indar Singh was the Assistant Project Section Officer (Steel) in the office of the Directorate-General, Ministry of Industry and Supply, Government of India.
There appear to be a number of prosecutions pending against them before the Special Judge, Delhi, appointed under the Criminal Law Amendment Act, 1952 (Act 46 of 1952). We are concerned in these appeals with Cases Nos. 12, 13 and 14 of 1953. Appeals Nos. 95, 96 and 97 arise respectively out of them. The cases against these appellants are that they along with some others entered into criminal conspiracies to obtain for themselves or for others iron and steel materials in the name of certain bogus firms and that they actually obtained quota certificates, on the strength of which some of the members of the conspiracy took delivery of quantities of iron and steel from the stock-holders of these articles. The charges, therefore, under which the various accused, including the appellants, are being prosecuted are under Section 120-B of the Indian Penal Code, Section 420 of the Indian Penal Code and Section 7 of the Essential Supplies (Temporary Powers) Act, 1946. In respect of such of these accused as are public servants, there are also charges under Section 5(2) of the Prevention of Corruption Act, 1947.
2. Under Section 5(4) of the Prevention of https://www.mhc.tn.gov.in/judis Page No.8 of 45 W.P(MD)No.30029 of 2023 Corruption Act, 1947, a police officer below the rank of a Deputy Superintendent of Police shall not investigate any offence punishable under sub-section (2) of Section 5 without the order of a Magistrate of the First Class. The first information reports in these cases were laid in April and June, 1949, but permission of the Magistrate, for investigation as against the public servants concerned, by a police officer of a rank lower than a Deputy Superintendent of Police, was given in March and April, 1951. The charge-sheets in all these cases were filed by such officers in August and November, 1951 i.e. subsequent to the date on which permission as above was given. But admittedly the investigation was entirely or mostly completed in between the dates when the first information was laid and the permission to investigate by an officer of a lower rank was accorded. It appears from the evidence taken in this behalf that such investigation was conducted not by any Deputy Superintendent of Police but by officers of lower rank and that after the permission was accorded little or no further investigation was made. The question, therefore, that has been raised is, that the proceedings by way of trial initiated on such charge-sheets are illegal and require to be quashed.' Aforementioned paragraphs 1 and 2 give the facts and findings returned by Hon'ble Supreme Court have been articulated in paragraph 9 which reads as follows:
'9. The question then requires to be considered https://www.mhc.tn.gov.in/judis Page No.9 of 45 W.P(MD)No.30029 of 2023 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 https://www.mhc.tn.gov.in/judis Page No.10 of 45 W.P(MD)No.30029 of 2023 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. To such a situation Section 537 of the Code of Criminal Procedure which is in the following terms is attracted:
“Subject to the provisions hereinbefore contained, no finding, sentence or order passed by a Court of competent jurisdiction shall be reversed or altered on appeal or revision on account of any error, omission or irregularity in the complaint, summons, warrant, charge, proclamation, order, judgment or other proceedings before or during trial or in any enquiry or other proceedings under this Code, unless such error, omission or irregularity, has in fact occasioned a failure of justice.” 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 https://www.mhc.tn.gov.in/judis Page No.11 of 45 W.P(MD)No.30029 of 2023 affect the competence and the jurisdiction of the Court for trial is well settled as appears from the cases in Prabhu v. Emperor [AIR 1944 Privy Council 73] and Lumbhardar Zutshi v. King [AIR 1950 Privy Council 26] . These no doubt relate to the illegality of arrest in the course of investigation while we are concerned in the present cases with the illegality with reference to the machinery for the collection of the evidence. This distinction may have a bearing on the question of prejudice or miscarriage of justice, but both the cases clearly show that 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.'
(iii) Aforementioned Rishbud principle was reiterated in A.C.Sharma's case [A.C.Sharma Vs. Delhi Administtration reported in (1973) 1 SCC 726]. In A.C.Sharma, facts have been captured in the opening paragraph i.e., paragraph 1 which reads as follows:
'The appellant was the dealing clerk in the Labour Office, Delhi, in April, 1965. He was convicted by the Special Judge, Delhi, under Section 5(2) of the Prevention of Corruption Act and sentenced to one year's rigorous imprisonment and fine of Rs 200 with two months further https://www.mhc.tn.gov.in/judis Page No.12 of 45 W.P(MD)No.30029 of 2023 rigorous imprisonment in case of default. He was also found guilty and convicted of an offence under Section 161 IPC and sentenced to rigorous imprisonment for one year. The two substantive sentences were directed to be concurrent. His appeal to the High Court of Delhi was dismissed by a learned Single Judge. He appeals to this Court by special leave. His application for leave is dated December 20, 1969. In that application one of the grounds taken by him questioned the legality of the investigation into the offence against him by the Deputy Superintendent of the Anti-Corruption Department of the Delhi Administration. According to this ground the Delhi Special Police Establishment Act as amended prescribes special powers and procedure for investigation of offences of bribery and corruption in the departments of the Central Government and as the appellant was an employee of the Central Public Works Department, offences against him could only be investigated by the Special Police Establishment. The investigation having not been done by the DSPE., according to the appellant, his trial is vitiated. In support of this ground the appellant presented in this Court an application dated January 13, 1970, seeking permission to place on the record a letter dated February 10, 1966, purporting to have been written by the SP Anti- Corruption Branch, Delhi and addressed to the appellant stating that the Anti-Corruption Branch of Delhi Administration was not competent to make an enquiry into the allegations levelled against CPWD employee being a Central Government employee. This Court, while granting https://www.mhc.tn.gov.in/judis Page No.13 of 45 W.P(MD)No.30029 of 2023 special leave, also permitted the appellant to urge additional grounds.' The ratio (inter-alia reiterating Rishbud case law) is in paragraph 15 which reads as follows:
'15. As the foregoing discussion shows the investigation in the present case by the Deputy Superintendent of Police cannot be considered to be in any way unauthorised or contrary to law. In this connection it may not be out of place also to point out that the function of investigation is merely to collect evidence and any irregularity or even illegality in the course of collection of evidence can scarcely be considered by itself to affect the legality of the trial by an otherwise competent court of the offence so investigated. In H.N. Rishabud and Inder Singh v. State of Delhi [AIR 1955 SC 196 : (1955) 1 SCR 1150 : 1955 Cr LJ 374] it was held that an illegality committed in the course of investigation does not affect the competence and jurisdiction of the court for trial and where cognizance of the case has in fact been taken and the case has proceeded to termination of the invalidity of the preceding investigation does not vitiate the result unless miscarriage of justice has been caused thereby. When any breach of the mandatory provisions relating to investigation is brought to the notice of the court at an early stage of the trial the Court will have to consider the nature and extent of the violation and pass appropriate https://www.mhc.tn.gov.in/judis Page No.14 of 45 W.P(MD)No.30029 of 2023 orders for such reinvestigation as may be called for, wholly or partly, and by such officer as it considers appropriate with reference to the requirements of Section 5-A of the Prevention of Corruption Act, 1952. This decision was followed in Munna Lal v. State of U.P. [AIR 1964 SC 28 : (1964) 3 SCR 88 : (1964) 1 Cr LJ 11] where the decision in State of Madhya Pradesh v. Mubarak Ali [AIR 1959 SC 707 : 1959 Supp 2 SCR 201 : 1959 Cr LJ 920] was distinguished. The same view was taken in the State of Andhra Pradesh v. M. Venugopal [AIR 1964 SC 33 : (1964) 3 SCR 742 : (1964) 1 Cr LJ 16] and more recently in Khandu Sonu Dhobi v. State of Maharashtra [(1972) 3 SCC 118 : 1972 SCC (Cri) 438] . The decisions of the Calcutta, Punjab and Saurashtra High Courts relied upon by Mr Anthony deal with different points: in any event to the extent they contain any observations against the view expressed by this Court in the decisions just cited those observations cannot be considered good law.' To be noted, both Rishbud's case and A.C.Sharma's case have been rendered by three member Hon'ble Judges of Hon'ble Supreme Court.
(iv) Thereafter in 2000, in Ram Singh's case [State of M.P. And https://www.mhc.tn.gov.in/judis Page No.15 of 45 W.P(MD)No.30029 of 2023 Others Vs. Ram Singh reported in (2000) 5 SCC 88] a pointed question pertaining to Sections 13(1)(e) and 13(2) of 'The Prevention of Corruption Act, 1988 (Act No.49 of 1988)' [hereinafter 'PC Act' for the sake of brevity and convenience] arose and a two member Bench of Hon'ble Supreme Court returned a categorical finding that the provisions of PC Act should not be construed liberally in favour of the accused resulting in closure of trial in serious charges in relation to commission of offences punishable under PC Act which was legislated to curb illegal and corrupt practices of public officers. In the case on hand, a careful perusal of FIR No.6 of 2023 on the file of DVAC Wing, Dindigul District brings to light that a very serious complaint has been made causing forbearance of performance of public duty by obtaining undue advantage. Therefore, this Court respectfully follows the principle laid down by Hon'ble Supreme Court in Ram Singh's case i.e., the principle that provisions of PC Act should not be construed liberally when there is a serious complaint as PC Act has been legislated to curb corrupt practices of public officers and it has been so made without making any distinction between Central Government officers and State Government officers. The factual matrix and main contentions in Ram Singh's case have been captured in paragraph 4 and the same is as follows:
https://www.mhc.tn.gov.in/judis Page No.16 of 45 W.P(MD)No.30029 of 2023 '4. Regarding respondent Ram Singh, a secret information is stated to have been received on 4-7-1992 alleging that when he was a Sub-Inspector, Excise and District Excise Officer, he had acquired properties disproportionate to his known sources of income. On verification it was found that he had earned moveable and immovable properties allegedly much more disproportionate to his known sources of income during the check period commencing from 1-1-1982 to 4-8-1992. Resultantly Crime No. 103 of 1992 under Sections 13(1)(e) and 13(2) of the Act was registered against him. On 4-8-1992 a raid was conducted by Shri B.N. Bhatia, Deputy Superintendent of Police, SPE, Lokayukta Office, Gwalior after obtaining a search warrant from the Chief Judicial Magistrate, Gwalior and a seizure memo was prepared with respect to recovery of moveable articles from the possession of his son, namely, Pratap Singh, Advocate. On 7-8-1992 another raid was conducted by Shri C.P.S. Chaturvedi, Deputy Superintendent of Police, Lokayukta Officer, Gwalior at the government quarters allotted to the said respondent at Vikas Nagar, Betul, under a search warrant dated 3-8-1992. Some documents, one transistor, one pistol and diaries were recovered in the raid. The respondent Shri Ram Singh moved Criminal Miscellaneous No. 143 of 1993 before the High Court of Madhya Pradesh at Gwalior praying for anticipatory bail which was allowed. Vide letter dated 14-12-1993, the Additional Excise Commissioner, Madhya Pradesh, Gwalior directed the respondent to submit the statement https://www.mhc.tn.gov.in/judis Page No.17 of 45 W.P(MD)No.30029 of 2023 on the prescribed Forms 1, 2 and 3 to the Lokayukta, Gwalior. The statements were submitted to Shri P.S. Sisodia, Deputy Superintendent of Police, Lokayukta Office, Moti Mahal, Gwalior on 16-5-1994. It was mentioned in the statement that the total income of the respondent from all sources was Rs 4,19,000 and expenditure was Rs 2,58,700 which show a saving of Rs 1,60,300. He declared that his assets were not disproportionate to the known sources of his income. After further information was submitted by the respondent, a further inquiry was made on 5-6-1995 with respect to his bank account. In May 1996 the respondent filed Petition No. 2481 of 1996 under Section 482 of the Criminal Procedure Code praying for quashing the proceedings relating to Crime No. 143 of 1993 and charge-sheet thereof filed against him. He contended that the entire search and seizure made by the Special Police Establishment was illegal, mala fide and without any basis. It was further contended that the search was conducted without jurisdiction and was in contravention of the provisions of Section 17 of the Act. He alleged that the investigation was malicious inasmuch as the accounts of his family members had illegally been frozen.' The ratio laid down by Hon'ble Supreme Court is contained in paragraphs 14 and 15 and the same read as follows:
https://www.mhc.tn.gov.in/judis Page No.18 of 45 W.P(MD)No.30029 of 2023 '14. It may be noticed at this stage that a three- Judge Bench of this Court in H.N. Rishbud v. State of Delhi [AIR 1955 SC 196 : 1955 Cri LJ 526] had held that a defect or illegality in investigation, however serious, has no direct bearing on the competence or the procedure relating to cognizance or trial. Referring to the provisions of Sections 190, 193, 195 to 199 and 537 of the Code of Criminal Procedure (1898) in the context of an offence under the Prevention of Corruption Act, 1947, the Court held:
“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 CrPC 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 CrPC 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 https://www.mhc.tn.gov.in/judis Page No.19 of 45 W.P(MD)No.30029 of 2023 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. To such a situation Section 537 CrPC which is in the following terms is attracted:
‘Subject to the provisions hereinbefore contained, no finding, sentence or order passed by a court of competent jurisdiction shall be reversed or altered on appeal or revision on account of any error, omission or irregularity in the complaint, summons, warrant, charge, proclamation, order, judgment or other proceedings before or during trial or in any inquiry or other proceedings under this Code, unless such error, omission or irregularity, has in fact occasioned a failure of justice.’ 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 https://www.mhc.tn.gov.in/judis Page No.20 of 45 W.P(MD)No.30029 of 2023 trial is well settled as appears from the cases in — ‘Parbhu v. Emperor [AIR 1944 PC 73 : 46 Cri LJ 119] ’ and — ‘Lumbhardar Zutshi v. R. [AIR 1950 PC 26 : 57 Cri LJ 644] ’ ” It further held:
“In our opinion, therefore, when such a breach is brought to the notice of the court at an early stage of the trial, the court will have to consider the nature and extent of the violation and pass appropriate orders for such reinvestigation as may be called for, wholly or partly, and by such officer as it considers appropriate with reference to the requirements of Section 5-A of the Act. It is in the light of the above considerations that the validity or otherwise of the objection as to the violation of Section 5(4) of the Act has to be decided and the course to be adopted in these proceedings, determined.” In Bhajan Lal case [1992 Supp (1) SCC 335 : 1992 SCC (Cri) 426] this Court had found on facts that the SP had passed the order mechanically and in a very casual manner regardless of the settled principles of law. The provisions of Section 17 of the Act had not been complied with. As earlier noticed the SP while authorising the SHO to investigate had made only an endorsement to the effect “Please register the case and investigate”. The SP was shown to be not aware either of the allegations or the nature of the offences and the pressure of the workload requiring investigation by an Inspector. There is no denial https://www.mhc.tn.gov.in/judis Page No.21 of 45 W.P(MD)No.30029 of 2023 of the fact that in cases against the respondents in these appeals, even in the absence of the authority of the SP the investigating officer was in law authorised to investigate the offence falling under Section 13 of the Act with the exception of one as is described under sub-section (1)(e) of the Act. After registration of the FIR the Superintendent of Police in the instant appeals is shown to be aware and conscious of the allegations made against the respondents, the FIR registered against them and pending investigations. The order passed by the SP in the case of Ram Singh on 12-12-1994 with respect to a crime registered in 1992 was to the effect:
“In exercise of powers conferred by the provisions on me, under Section 17 of the Prevention of Corruption Act, 1988, I, P.K. Runwal, Superintendent of Police, Special Police Establishment, Division I, Lokayukta Karyalaya, Gwalior Division, Gwalior (M.P.), authorised Shri D.S. Rana, Inspector (SPE), Lak-Gwl (M.P.) to investigate Crime No. 103 of 1992 under Sections 13(1)(e), 23(2) of the Prevention of Corruption Act, 1988 against Shri Ram Singh, DO, Excise, Batul (M.P.).” Similar orders have been passed in the other two cases as well. The reasons for entrustment of investigation to the Inspector can be discerned from the order itself. The appellant State is, therefore, justified in submitting that the facts of Bhajan Lal case [1992 Supp (1) SCC 335 : 1992 https://www.mhc.tn.gov.in/judis Page No.22 of 45 W.P(MD)No.30029 of 2023 SCC (Cri) 426] were distinguishable as in the instant case the Superintendent of Police appears to have applied his mind and passed the order authorising the investigation by an Inspector under the peculiar circumstances of the case. The reasons for entrustment of investigation were obvious. The High Court should not have liberally construed the provisions of the Act in favour of the accused resulting in closure of the trial of the serious charges made against the respondents in relation to commission of offences punishable under an Act legislated to curb the illegal and corrupt practices of the public officers. It is brought to our notice that under similar circumstances the High Court had quashed the investigation and consequent proceedings in a case registered against Shri Ram Babu Gupta against which Criminal Appeal No. 1754 of 1986 was filed in this Court which was allowed on 27-9-1986 by setting aside the order of the High Court with a direction to the trial court to proceed with the case in accordance with law and in the light of the observations made therein.
15. We are not satisfied with the finding of the High Court that merely because the order of the Superintendent of Police was in typed pro forma, that showed the non-
application of mind or could be held to have been passed in a mechanical and casual manner. As noticed earlier the order clearly indicates the name of the accused, the number of the FIR, the nature of the offence and power of the Superintendent of Police permitting him to authorise a junior officer to investigate. The time between the https://www.mhc.tn.gov.in/judis Page No.23 of 45 W.P(MD)No.30029 of 2023 registration of the FIR and authorisation in terms of the second proviso to Section 17 shows further the application of mind and the circumstances which weighed with the Superintendent of Police to direct authorisation to order the investigation.'
(v) The principles laid down elucidatively by Hon'ble Supreme Court in aforementioned Rishbud, A.C.Sharma and Ram Singh case laws are instructive and we respectfully follow the same.
(vi) Though this Court is now sitting as a Division Bench, we find that we are in agreement with the view taken by a Hon'ble Single Judge of the Kerala High Court in S.Rekha's case [The State of Kerala Vs. Smt.S.Rekha] being order dated 26.07.2023 in Criminal Revision Petition No.422 of 2022. This was a case of bribery allegation against a Central Government Officer and a similar question fell for consideration i.e., the question as to whether there is any special provision in PC Act excluding or preventing State police or Special Agency of the State from investigating cases relating to alleged corruption of Central Government employees. In this case, a Hon'ble Single Judge of Kerala High Court had followed Rishbud's and A.C.Sharma's principles and returned a similar finding which is articulated in paragraphs 17 to 19 of S.Rekha's case https://www.mhc.tn.gov.in/judis Page No.24 of 45 W.P(MD)No.30029 of 2023 which read as follows:
'17. The upshot of the above discussion is as follows: There is no special provision in the P.C. Act or DSPE Act excluding or preventing the State police or a Special Agency of the State from investigating cases relating to the corruption of the Central Government employees. None of the provisions of the P.C Act or DSPE Act authorises CBI or Central Vigilance Commission or any other Central Government Agency alone to investigate in matters relating to the Central Government employees. In the absence of a specific provision in the DSPE Act or PC Act divesting the power of the regular police authorities to investigate into the offences under any other competent law, it cannot be said that the power of the State police or a Special Agency of the State to register a crime and investigate into the offence allegedly committed by the Central Government employees in their State is taken away. For these reasons, I hold that the VACB, being a specially constituted body to investigate into the bribery, corruption and misconduct mainly under the P.C. Act is always clothed with the authority to investigate offences involving corruption that take place within the State, whether it is committed by a Central Government employee or a State Government employee. Hence, the impugned order discharging the accused Nos.2 to 4 cannot be sustained.
18. There is yet another aspect. It is obvious from https://www.mhc.tn.gov.in/judis Page No.25 of 45 W.P(MD)No.30029 of 2023 Sub Section (2) of Section 156 of Cr. P.C that the investigation done by a police officer who is not empowered under Sub Section (1) of Section 156 shall not be called in question at any stage of the proceedings on the ground that he was not empowered to investigate under the said Section. Referring to the provisions of Sections 190, 193, 195 to 199 and 537 of the Code of Criminal Procedure, 1898 in the context of an offence under the Prevention of Corruption Act, 1947, the Apex Court in H.N. Rishbud v. State of Delhi (AIR 1955 SC 196) has held that a defect or illegality in investigation, however serious, has no direct bearing on the competence or the procedure relating to cognizance or trial. The same was reiterated in M.P. and others v. Ram Singh [2000 Cri LJ 1401 (SC)]. In Union of India v. Prakash P. Hinduja and Another (AIR 2003 SC 2612), it was held that once the charge sheet is filed, merely because the Investigating Agency had no jurisdiction to investigate the matter, the charge sheet cannot be quashed as it is not possible to say that "cognizance on a invalid police report is prohibited and is therefore quashed". On this ground also, the impugned order is not sustainable. It is, accordingly, set aside.
19. The accused Nos.2 to 4 have also contended in their applications for discharge that, on merits also, the prosecution against them will not lie. It is their case that, even if the entire allegations in the final report are believed in toto, no offence under the P.C.Act is made against them. The court below did not consider the https://www.mhc.tn.gov.in/judis Page No.26 of 45 W.P(MD)No.30029 of 2023 contention of the accused on merits. On the other hand, the court below allowed the application on the ground that the investigating agency had no authority to conduct the investigation. Therefore, the court below is directed to consider the application for discharge preferred by the accused on merits and dispose of the same in accordance with law. The Criminal Revision Petitions are disposed of as above.'
(vii) In the same spirit, though sitting as a Division Bench, a judgment penned by a Hon'ble Single Judge of another High Court i.e., the Andhra Pradesh High Court was placed before us by learned Additional Advocate General Mr.Veera Kathiravan and this is Dr.G.S.R.Somayaji's case [Dr.G.S.R.Somayaji Vs. State through CBI reported in (2001) SCCOnline AP 1196]. In this Dr.G.S.R.Somayaji's case, a Hon'ble Single Judge of Andhra Pradesh High Court following Rishbud case and other similar line of authorities rendered by Hon'ble Supreme Court held that there is no provisions in the Delhi Special Police Establishment Act which interdicts/curtails the State agency from registering the crime or laying a trap. Thereafter, the finding that investigation done by a State agency cannot be questioned on lack of empowerment in view of the ban in sub-section (2) of Section 156 of Cr.PC., Section 156 Cr.PC applies in full force to DVAC as DVAC is a 'Police Station' within the meaning of Section 2(s) of Cr.PC read with https://www.mhc.tn.gov.in/judis Page No.27 of 45 W.P(MD)No.30029 of 2023 paragraph 3 of DVAC Manual which is predicated on G.O.Ms.No.963, Public (Ser.B), dated 25.05.1964; G.O.Ms.No.449, P & A.R. (Per-N), dated 04.05.1982 and G.O.Ms.No.235, P & A.R. (Per-N), dated 17.03.1987. In this regard, paragraph 48 of DVAC Manual deals with 'Searches' and investigation being gathering of material, the search cannot be questioned. There will be a little more allusion and delineation regarding paragraphs 3 and 48 of DVAC Manual and the Executive fiats elsewhere infra in this order. The factual matrix has been captured in paragraph 2 thereat (Dr.G.S.R.Somayaji's case) and the same is as follows:
'2. The petitioner is the accused in C.C. No. 17 of 1999 filed by the C.B.I. for the alleged offence punishable under Section 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 (‘the. Act, 1988’ for brevity). The factual matrix germane in the context for better understanding of the matter and for eventual adjudication may be stated thus: The petitioner accused has been working as Regional Chief, Housing and Urban Development Corporation Limited, a concern totally owned by the Government of India. Basing on a complaint dated 27-6-1998 received from one Dr. C. Suresh against the petitioner, a case in Crime No. 10/ACB-CR/98 had been registered by the Anti Corruption Bureau of the State of Andhra Pradesh and the agency laid a trap against him. The trap was successful and the bribe amount of Rs. https://www.mhc.tn.gov.in/judis Page No.28 of 45 W.P(MD)No.30029 of 2023 4,00,000/- said to have been received by the petitioner when offered by the complainant on demand by the petitioner was recovered. Thereupon under a letter No. 83/RCT Crime/98 dated 29-6-1998 addressed by the Director General of Anti-Corruption Bureau, the case had been transferred to the CBI on the point of jurisdiction since the petitioner is a Central Government employee, and the latter upon receiving the same registered the case in RC. 21 (A)/98/CBI/Hyderabad under Sections 7, 13 (2) read with Section 13(1)(d) of the Act, 1988; continued the investigation, examined the witnesses; and after having obtained necessary sanction from the competent authority eventually laid charge sheet before the Special Court for CBI cases at Hyderabad, against the petitioner.' The ratio is articulated in paragraphs 18 and 19 which read as follows:
18. Except the Judgments in Narayan K. Patodia's case (2000 Cri LJ 1811), all other judgments of the Apex Court referred to supra have been rendered under the provisions of the Prevention of Corruption Act. In those cases, Section 5-A of the old Act was considered. That provision was held to be mandatory. Notwithstanding the same violation thereo'f was held to have no effect on the cognizance taken by the Court and the subsequent trial.
In Rishbud's case (1955 Cri LJ 526) the Apex Court also considered sub-section (2) of Section 156 of the Code. But sub-section (2) of Section 156 of the Code was considered https://www.mhc.tn.gov.in/judis Page No.29 of 45 W.P(MD)No.30029 of 2023 in the context to see whether the provisions of Section 5-A of the old Act are mandatory or directory. It was held that sub-section (2) of Section 156 of the Code should not have been invoked in respect of an investigation carried by an officer below the rank of Deputy Superintendent of Police without necessary authorisation from the Magistrate in view of emphatic negative language used in Section 5- A of the old Act. The Apex Court was of the view that sub- section (2) of Section 156 would apply only to the investigation done by an officer who is not empowered under that Section i.e. with reference to sub-sections (1) and (3) thereof. The Apex Court held that obviously sub- section (2) of Section 156 cannot cure the violation of any other specific statutory provision prohibiting investigation by an officer of a lower rank than that who is specifically authorised. In the instant case, the problem is not identical. It is a case where initial registration of the crime and laying of the trap was done by an officer other than the competent to do so in respect of a Central Government employee. There is no provision in the Delhi Special Police Establishment Act, which interdicts the State agency from registering the crime or laying the trap. What Section 17 of the Act, 1988 says is that no police officer below the rank of Inspector of Police in case of Delhi Special Police Establishment, no police officer below the rank of the Assistant Commissioner of Police in metropolitan areas and in all other areas no police officer below the rank of Deputy Superintendent of Police shall investigate. The Act envisages the investigation of offences https://www.mhc.tn.gov.in/judis Page No.30 of 45 W.P(MD)No.30029 of 2023 by not only the Delhi Special Police Establishment Act but also by other agencies. It is, therefore, no violation of the mandatory provisions of Section 17 of the Act, 1988. It is in this context appropriate to consider sub-section (2) of Section 156 of the Code, which reads as under:
“156. Police officer's power to investigate cognizable case:— (1)……………… (2) No proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this section to investigate.
(3)……………………………….” It is obvious from this provision that the investigation done by a police officer who is not empowered under Section 156 of the Code shall not be called in question at any stage of the proceedings on the ground that he was not empowered to investigate under the said Section. Obviously, Section 156 of the Code empowers in all cognizable offences the investigation by any officer incharge of a police station. The offences under the Prevention of Corruption Act are cognizable offences.
Under Section 2(3) of the Act 46 the Inspector of Police C.B.I. while conducting investigation shall be deemed to be an officer in charge of a police station for all practical purposes. It is apt to quote the relevant observations of the Apex Court in Narayana K. Ptodia's case (2000 Cri LJ 1811) (cited supra) in para 13 at page 452 (of SCC) :
https://www.mhc.tn.gov.in/judis Page No.31 of 45 W.P(MD)No.30029 of 2023 (1814 of Cri LJ) thus:
“The Constitution Bench which decided A.R. Antulay v. Ramdas Srinivas Nayak, (1984) 2 SCC 500 : 1984 SCC (Cri) 277 : (1984 Cri LJ 647) has cautioned that the Code is the parent statute which provides for investigations, inquiry into and trial of cases and unless there is a specific provision in another statute to indicate a different procedure to be followed, the provisions of the Code cannot be displaced. Taking a cue from the said ratio this Court held recently in Gangula Ashok v. State of A.P., (2000) 2 SCC 504 : (2000) 1 JT (SC) 379 :
(2000 Cri LJ 819) while interpreting Section 4(2) of the Code as follows : (SCC PP 509-10 : (at pp 821-22 of Cri LJ) Para 13):
“A reading of the sub-section makes it clear that subject to the provisions in other enactments all offences under other laws shall also be investigated, inquired into, tried and otherwise dealt with under the provisions of the Code. This means that if other enactment contains any provision, which is contrary to the provisions of the Code, such other functions (sic provision) would apply in place of the particular provision of the Code. If there is no such contrary provision in other laws, then provisions of the Code would apply to the matters covered thereby.” The eventual conclusion that follows from the above https://www.mhc.tn.gov.in/judis Page No.32 of 45 W.P(MD)No.30029 of 2023 discussion is that the investigation done by the State agency cannot be questioned on the premise that it is illegal having not been empowered to do it in view of the bar contained in Sec. 156(2) of the Code.' (the underlining has been made by this Court for ease of reference and for supplying emphasis)
9. Learned Advocate General as part of his submissions articulated the trajectory of 'The Prevention of Corruption Act, 1988' ['PC Act' for the sake of brevity]. The PC Act first came into force in 1947 as the Prevention of Corruption Act, 1947. Prior to that bribery and corruption cases were covered by Sections 161 to 165-A of 'The Indian Penal Code (45 of 1860)' [hereinafter 'IPC' for the sake of convenience and clarity].
To be noted Sections 161 to 165-A of IPC have since been repealed. Five years later (in 1952), the Criminal Law Amendment Act, 1952 came into force and Special Courts for dealing with cases under 1947 PC Act were constituted. Thereafter in 1988, the PC Act (now in vogue) which we are concerned with (Act 49 of 1988) came into force. It was pointed out that there is an adumbration of specific police officers under Section 17 and the mandate is not qua target i.e., as to whether it is a Central Government Officer or a State Government Officer. This trajectory of bribery and corruption case statutory evolution is not subjected to any https://www.mhc.tn.gov.in/judis Page No.33 of 45 W.P(MD)No.30029 of 2023 disputation or contestation. Therefore, this trajectory as articulated by learned Advocate General i.e., First Law Officer of the State is captured herein for better appreciation of this order. Further submission is that the case on hand is one off a trap case which is a cognizable offence under Schedule II of 'The Code of Criminal Procedure, 1973 (2 of 1974)' [hereinafter 'Cr.PC' for the sake of brevity and clarity]. It was pointed out that under Section 7 of PC Act, it entails punishment of seven years and therefore, this trap case is clearly a cognizable offence under Schedule II of Cr.PC. In this regard, attention of this Court was drawn to Section 156 of Cr.PC and more particularly, Section 156(2) of Cr.PC to say that the action cannot be questioned i.e., proceedings of police officer cannot be questioned as long as it is demonstrable that he is empowered under the Section to investigate. In this regard, the question as to whether DVAC would qualify as a 'Police Station' occurring in Section 156 of Cr.PC arose. We deem it pertinent and appropriate to set out here that we refrain from delving into the factual details of the trap case as the legal drill on hand turns only on legal principles.
10. Reverting the question as to whether DVAC is a police station, https://www.mhc.tn.gov.in/judis Page No.34 of 45 W.P(MD)No.30029 of 2023 learned State Public Prosecutor Mr.Hasan Mohamed Jinnah drew the attention of this Court to Section 2(s) of Cr.PC which defines 'police station'. Section 2(s) of Cr.PC reads as follows:
''2. Definitions.—In this Code, unless the context otherwise requires,— .....
(s) “police station” means any post or place declared generally or specially by the State Government, to be a police station, and includes any local area specified by the State Government in this behalf;
......' Thereafter, the DVAC Manual was placed before us by learned Prosecutor and paragraph 3 of DVAC Manual captioned 'Directorate of Vigilance and Anti-Corruption-Notified as Police Station' and paragraph 48 captioned 'Searches' were adverted to and we were taken through the same. A scanned reproduction of paragraphs 3 and 48 of Manual of DVAC is as follows:
https://www.mhc.tn.gov.in/judis Page No.35 of 45 W.P(MD)No.30029 of 2023 As regards Executive orders i.e., Government Orders vide Clause 3, there is no disputation that the Executive Fiats are in vogue and therefore, DVAC is a police station within the meaning of Section 2(s) and as occurring in Section 156(1) of Cr.PC.
11. As a corollary to the preceding point, Section 22 of PC Act becomes relevant as Section 22 of PC Act makes it clear that Cr.PC has to be applied to proceedings in relation to offences punishable under PC https://www.mhc.tn.gov.in/judis Page No.36 of 45 W.P(MD)No.30029 of 2023 Act albeit with certain modifications and an adumbration of same has been made in Section 22 of PC Act itself.
12. As regards CVC Act, as rightly pointed out by learned Advocate General, it is clear that it would supervise and it does not denude the powers of DVAC or other authorities. In this regard, we perused the statute i.e., the CVC Act and find that powers and functions of the Central Vigilance Commission (CVC) have been set out in Section 8 thereat. A careful perusal of Section 8 of CVC Act makes it clear that submission of learned Advocate General that it is supervision powers and CVC does not investigate is buttressed. The 'Repeal and saving' also makes it clear that it does not denude the other powers much less the powers of DVAC. Investigation is collection of material and taking into account the realm of legal drill on hand, we refrain ourselves from expressing any views on allegations in aforementioned 02.12.2023 representation but we make it clear the investigation powers of DVAC is intact qua aforementioned FIR No.6 dated 30.11.2023 on the file of DVAC. We also make it clear that plea of transfer to CBI on the ground of lack of powers inter-alia in the light of CVC Act is clearly a no argument, it is a damp squib and it has no legal basis.
https://www.mhc.tn.gov.in/judis Page No.37 of 45 W.P(MD)No.30029 of 2023
13. Before dropping the curtains by writing the operative portion of this order infra, this Court deems it appropriate to make it clear that learned Advocate General very fairly submitted that as regards powers of this Court to transfer the case to CBI, there can be no doubt or debate but the submission is, in the light of catena of case laws and plethora of legal principles laid down in the long line of authorities starting from Rishbud case in 1954, the case on hand is one that does not warrant transfer much less transfer on the ground that DVAC lacks jurisdiction and only CBI can investigate owing to Assistant Director of ED being a Central Government Officer. As regards the Assistant Director of ED (Mr.Ankit Tiwari) and or any other person or entity who may be subjected to investigation/further investigation or proceeded against, as they are not before this Court in the PIL at hand, we make it clear that all their rights and contentions including malafides contention are preserved qua FIR in Crime No.6 of 2023 on the file of DVAC Wing, Dindigul District for an alleged offence under Section 7(a) of PC Act. In other words, to put it differently this order will neither impede nor serve as an impetus (except saying that powers of DVAC are neither curtailed nor denuded qua proceedings under PC Act against Central Government officials) as regards Assistant Director of ED, ED and or anyone else who may be https://www.mhc.tn.gov.in/judis Page No.38 of 45 W.P(MD)No.30029 of 2023 proceeded against by DVAC pursuant to said FIR.
14. The discussion, dispositive reasoning and the language of discourse of Hon'ble Supreme Court in the long line of authorities commencing from H.N.Rishbud makes it clear that DVAC is not denuded of its powers when it comes to a trap case under PC Act. In this view of the matter, we have no difficulty in coming to the conclusion that the prayer of PIL petitioner cannot be acceded to. In this regard, it is to be noted that the prayer of the petitioner is in two limbs. One is with regard to transfer of investigation to CBI and other is to take action against persons described by PIL petitioner as 'erring officials'. We also notice that the sheet anchor (entire substratum) i.e., to put it differently 'burden of the song of PIL petitioner' is that the DVAC does not have powers qua a Central Government Officer. This sheet anchor or substratum of the plea i.e., burden of the song of PIL petitioner does not find favour with us and it is clearly a non-starter of an argument i.e., no argument in the light of Rishbud and A.C.Sharma principles which have stood the test of time having been followed in a long line of authorities, catena of cases and plethora of citations on the powers of State Agencies to investigate qua bribery/corruption allegations against all public officers irrespective of whether they are Central Government or State https://www.mhc.tn.gov.in/judis Page No.39 of 45 W.P(MD)No.30029 of 2023 Government officials which are holding the field. Therefore, the question of 'erring officials' much less action against them does not arise as powers of DVAC to investigate, search and proceed are intact but we hasten to add that we have already made it clear that we are preserving the rights of ED, officials of ED and more particularly Mr.Ankit Tiwari as regards FIR No.6 dated 30.11.2023 on the file of DVAC Wing, Dindigul District as regards all other aspects of the matter. In this regard, we respectfully follow Hon'ble Supreme Court's observation in Ram Singh case that offences punishable under an Act legislated to curb corrupt practices of public officers should not be construed liberally in favour of the accused. The reason is, if we intercede with investigation (pursuant to FIR No.6 dated 30.11.2023 on the file of DVAC Wing, Dindigul District) in this purported PIL, that will not only run contrary to Section 156(2) of Cr.PC but it will also tantamount to taking the wind out of sails and/or taking the steam out of investigation into serious allegations of bribery and corruption against public officers as at the end of the day investigation is gathering of material and search is part of this drill.
15. Learned counsel for PIL petitioner drew our attention to 02.12.2023 complaint. A careful perusal of the same shows that it talks https://www.mhc.tn.gov.in/judis Page No.40 of 45 W.P(MD)No.30029 of 2023 about alleged offences qua DVAC. The alleged offences are Sections 378 (Theft), 380 (Theft in dwelling house), 353 (Assault or criminal force to deter public servant from discharge of his duty), 447 (Punishment for criminal trespass) and 506 (Punishment for criminal intimidation) of IPC. In the light of Section 156(2) of Cr.PC as elucidated in Dr.G.S.R.Somayaji's case following Rishbud, A.C.Sharma and Ram Singh principles laid down by Hon'ble Supreme Court read in the light of obtaining position that DVAC is a 'Police Station' within the meaning of Section 2(s) of Cr.PC and the powers to investigate as regards PC Act qua allegations against officers irrespective of whether they are Central Government or State Government officials being intact, invoking such provisions as against DVAC is legally impermissible [Section 156(2) of Cr.PC] and in the canvass of larger public interest, it tantamounts to interceding in investigation into serious allegations of bribery and corruption inter-alia vide Section 7(a) of PC Act. To be noted, the allegations on the basis of complaint by a medical Doctor with details of several phone calls and meetings (we refrain from delving into those granular details) saying an Officer of ED demanded Rs.51 lakhs as bribe for himself and other officials for defusing a disproportionate assets complaint registered against the medical Doctor and his wife in 2018. https://www.mhc.tn.gov.in/judis Page No.41 of 45 W.P(MD)No.30029 of 2023 Investigation is collection of material. This Court is of the view that interest public and propriety of larger public interest demands that we should refrain ourselves from interceding in investigation in public interest jurisdiction in a case of such serious allegations of bribery and corruption against a public officer. It is only fair that investigation proceeds and the officer can always come clean (if that be the case). Therefore, public interest would be better served if investigation proceeds, as ultimately the officer/s are either going to be brought to book or come clean. Proceeding towards logical end which will be one way or the other (rather than interceding) will also instill public confidence. The plea of PIL petitioner to intercede in investigation in such a matter does not find favour with us, it does not cut ice in terms of legal principles and we find it to be improper use of public interest litigation jurisdiction.
16. Captioned WP is dismissed albeit with observations as above and preservation of rights in aforesaid manner and we refrain from imposing costs.
(M.S., J.) (R.S.V., J.) 15.12.2023 Index : Yes/No Neutral Citation : Yes/No PKN/VVK https://www.mhc.tn.gov.in/judis Page No.42 of 45 W.P(MD)No.30029 of 2023 PS: (i) Upload forthwith
(ii) All concerned to act on this order being uploaded in official website of this Court without insisting on certified copies. To be noted, this order when uploaded in official website of this Court will be watermarked and will also have a QR code. https://www.mhc.tn.gov.in/judis Page No.43 of 45 W.P(MD)No.30029 of 2023 To
1. The Principal Secretary, The Home Department, Secretariat, Chennai – 600 009.
2. The Director General of Police, Dr.Radhakrishnan Salai, Mylapore, Chennai – 600 004.
3. The Director, Vigilance and Anti-Corruption, No.293, MKN Road, Alandur, Chennai – 600 016.
5.The Deputy Superintendent of Police, Vigilance and Anti-Corruption, Dindigul.
6.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.
https://www.mhc.tn.gov.in/judis Page No.44 of 45 W.P(MD)No.30029 of 2023 M.SUNDAR, J.
and R.SAKTHIVEL, J.
PKN/VVK ORDER MADE IN W.P(MD)No.30029 of 2023 15.12.2023 https://www.mhc.tn.gov.in/judis Page No.45 of 45