Andhra Pradesh High Court - Amravati
Ch Thambi Babu vs The State Of Ap on 8 August, 2019
Author: M. Satyanarayana Murthy
Bench: C.Praveen Kumar, M.Satyanarayana Murthy
THE HON'BLE THE ACTING CHIEF JUSTICE C. PRAVEEN KUMAR
AND
THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY
WRIT PETITION (PIL) NO.29 OF 2019
ORDER:(Per Hon'ble Sri Justice M. Satyanarayana Murthy) One Ch. Thambi Babu, claiming to be a President of Sri Dalithabandhu Welfare Association, Gannavaram, Krishna District, filed this petition under Article 226 of the Constitution of India, as pro bono publico, seeking a writ of mandamus, declaring allotment of tender No.EOI/756NAKFDC/APSCCFC/2018 dated 15.11.2018 as arbitrary, illegal and consequently direct an enquiry by the Chief Vigilance Commissioner and/or Central Bureau of Investigation into the irregularities and misuse of funds by the 5th respondent.
It is alleged that the petitioner is the President of "Sri Dalithabandhu Welfare Association", Gannavaram, Krishna District, established for the benefit of Dalits. The petitioner came to know about the finalization of the tender and misutilization of funds of Government of India i.e. National Safai Karmacharis Finance and Development Corporation (NSKFDC) and National Scheduled Caste Finance Development Corporation and that the funds are released to the 4th respondent to a tune of Rs.200 crores for supplying E-autos to the Schedule Caste Beneficiaries based on repayment of EMI through the tenders conducted by the respondent Nos. 3 to 5 among the manufacturers.
It is specifically contended that each beneficiary is happened to buy an auto at the cost of Rs.2,44,000/- instead of Rs.1,09,000/- as in the case of Chittoor District, as a result of the above tender, it caused more financial burden on the beneficiaries. Since the tender is finalized in favour HACJ & MSM,J 2 WP(PIL)_29 of 2019 of a company quoted, neglecting and ignoring the lowest bid amount. The purpose or object of the Central and State Government is to serve the poorest of the poor and to support them to develop economically. But the purpose was not served on account of accepting the tender of company which quoted high price. The petitioner also came to know about the injury caused to the beneficiaries by way of burdensome EMI due to acceptance of highest bid in the tender, due to variance of specifications of the tender from the specifications of the vehicles supposed to be supplied to the beneficiaries by the respondents and also due to the variations in the specifications of the vehicle in certificating of registering authority unlike the specifications already set by the manufacturer through the materials of paper cuttings and personal visits of the offices of the respondent Nos. 3 to 5 through the news published in the daily newspapers. Thus, on account of acceptance of the tender of the company which quoted high price, the members of Scheduled Caste/Scheduled Tribe community would suffer financially and therefore, the petition is filed in the interest of Scheduled Caste/Scheduled Tribe community at large.
It is contended that out of the responsibility for the common benefit of beneficiaries of the 5th respondent, petitioner met respondent Nos. 3 to 5 and pleaded about the result of tenders and hardship to the beneficiaries of Schedule Castes to whom the E-Auto is supplied by the Government on high EMI, since the value of the above said tender is enhanced from Rs. 100 crores to Rs.187 crores at high bid, which burdened to a tune of Rs.87 crores. Therefore, accepting the tender is an illegality.
The petitioner apprehended public injury with regard to the funds released by the 4th respondent - National Safai Karmacharis Finance and petition is Development Corporation (NSKFDC) to 5th respondent i.e. APSCCFD Corporation for the Economic Development of Scheduled Caste HACJ & MSM,J 3 WP(PIL)_29 of 2019 Community by way of supplying E-autos are not in consonance with the Central Rules Nos. 90 and 126 and as per the provisions of Section 52 of M.V. Act, 1988, the ultimate beneficiaries i.e. group of scheduled caste are not benefited as they have to bear the burden of Rs.87 crores and sought the relief stated above.
The fifth respondent filed counter denying material allegations, interalia contending that public interest litigation is not maintainable and devoid of merits and liable to be dismissed in limini with exemplary costs and that in the absence of violation of any statutory norms, the action of the 5th respondent herein or its agencies cannot be the subject matter of judicial review and that the petitioner did not disclose violation of any rules. The selected beneficiaries being benefited with the scheme of e-auto for their livelihood with monthly assured income of Rs.10,000/- for a continuous period of 5 years which may be extended for further period as per the decisions of the Government of Andhra Pradesh. But, the petitioner resorted to this public interest litigation with malafide intention and the petition is frivolous, vexatious and not in the interest of public at large and that this petition is not maintainable as public interest litigation.
It is specifically contended that the matter is being pursued with NSKFDC/NSFDC for release of funds for implementation of e-Autos scheme. Regarding clarification on bidding document, it is submitted that, as per Point No.8 of e-procurement tender Request for Proposal on 20.11.2018, pre-bid meeting was conducted with all the manufacturers who have filed their tenders and clarified all the queries raised by the bidders regarding bidding process/document. After pre-bidding meeting scheduled on 20.11.2018, no clarifications from any bidder shall be entertained and close of date and time for seeking clarification mentioned in tender call notice. It is further contended that, e-Autos with lithium ION HACJ & MSM,J 4 WP(PIL)_29 of 2019 batteries for charging with electric power without fuels/oils are being procured as per the Government approved and prescribed specifications notified in Request for Proposal at the cost of Rs.2,06,272/- approved by the 5 men committee constituted within four senior IAS officers and being supplied to the Safaikarmacharis/SC community beneficiaries of all the 13 Districts in the State of Andhra Pradesh. The beneficiaries have to repay the total loan amount of Rs.82,509/- in 60 monthly EMI at Rs.1,375/- per month only and the balance amount of Rs.1,23,763/- is being borne by the Government by way of 60% subsidy on the unit cost of e-Auto as per amended G.O.Rt.No.87 SW Dept., dated 08.02.2019, for which an assured source of income of Rs.10,000/- per month will be released by the 1st respondent towards monthly outsourcing service charges to the Safaikarmacharis/SC Community beneficiaries for having engaged the e- Autos in all the Grampanchayats for door to door collection of garbage and waste in the villages and transport the same to the dumping yards selected by the first respondent. As such, the question of injury to the Safaikarmacharis/SC Community beneficiaries does not arise and the apprehension is totally misplaced.
The fifth respondent admitted in the counter affidavit that, as far as tenders conducted in Chittoor District are concerned, the main specification of e-Auto i.e. lithium ION battery which costs from Rs.95,000/- to Rs.1,10,000/- has been omitted and in place of that, lead acid battery, cost of it is ranging from Rs.5,500/- to Rs.10,389/- has been provided and instead of iron body, it was finalized with fibre body at cheap price. It is also contended that similar autos with lead acid batteries in West Godavari District were supplied by KUKU Automotives, Jaipur, Rajasthan and 80% of Autos were kept idle for various repairs due to least quality of batteries and material used and they required frequent service.
HACJ & MSM,J 5 WP(PIL)_29 of 2019 The supplier did not arrange any kind of service centres to the autos that were supplied, thereby, the autos supplied by the supplier are kept unused is denied.
It is contended by the 5th respondent that, the tender was finalized by conducting evaluation of all the specifications by technically qualified officers of battery operated electric vehicles with reference to the government approved specifications notified in Request for Proposal and physical verification of e-Autos and the Lithium Ion batteries demonstrated by the 9th respondent bidder and approved the tender price of Rs.2,06,272/- by the five men committee constituted with four senior IAS officers and other technical officers. The e-Autos that were supplied were registered by the Registering Authority by following the Rules and Regulations and the law and the contents of newspaper clippings do not substantiate the allegations raised by the petitioner in this writ petition and that there is absolutely no violation of statutory provisions or rule in entering into an agreement dated 15.02.2018 by the 5th respondent with 9th respondent on 17.12.2018 for supply of e-Autos to all the Districts in the Government of Andhra Pradesh. The 9th respondent already supplied 165 e-Autos to all the 13 Districts of State of Andhra Pradesh and the same were distributed to the selected beneficiaries under the scheme. Further, on 18.03.2019, the 9th respondent informed about dispatch of vehicles from its plant and that they are planning to supply e-vehicles to all the districts, each 150 on or before 31.03.2019 through Venkateswara Traders, Vijayawada which is the authorized dealer appointed by the 9th respondent for No.EOI/656NAKFDC/APSCCFC/2018 dated 15.11.2018 and corrigendum issued on 28.11.2018 for procurement of lithium ion battery e-vehicles dated 20.12.2018. Thus, the 5th respondent did commit no illegality or irregularity in accepting the tender of 9th respondent placing HACJ & MSM,J 6 WP(PIL)_29 of 2019 order for supply of e-Autos and consequently, the public interest litigation is liable to be dismissed, as it is not maintainable.
During argument, Sri Chigurupati Ravindra Babu, learned counsel for the petitioner raised several contentions about violation of procedure, while highlighting the additional financial burden on the beneficiaries in payment of EMI in instalments and financial burden on them. It is also contended that, on account of tender of 9th respondent, the members of Safaikarmacharis/SC Community beneficiaries are subjected to colossal loss and in the interest of public, the petitioner filed this petition for issue of writ of mandamus cancelling the tender No.EOI/756NAKFDC/APSCCFC/2018 dated 15.11.2018 and to order enquiry.
Learned counsel for the petitioner Sri Chigurupati Ravindra Babu placed reliance on the judgment of Calcutta High Court in M/s. Overland Investment Limited v. State of West Bengal1 and Institute of Law, Chandigarh and others v. Neeraj Sharma2 Whereas, learned Government Pleader for Social Welfare supported the action of the 5th respondent in entering into agreement with 9th respondent for supply of e-Autos while contending that no irregularity was committed and everything was done in accordance with the procedure fairly and also contended that the public interest litigation is not maintainable in the contractual matters and prayed for dismissal of the petition.
1 AIR 1997 CALCUTTA 18 2 (2015) 1 Supreme Court Cases 720 HACJ & MSM,J 7 WP(PIL)_29 of 2019 Considering rival contentions, perusing the material available on record, the points that arise for consideration are as follows:
1) Whether the writ petition by way of public interest litigation is maintainable in contractual matters?
2) Whether the respondent Nos. 3 to 5 committed any illegalities in finalization of tenders causing substantial loss to the beneficiaries of the scheme belonging to Safaikarmacharis/SC Community in providing e-Autos for their sustenance. If so, whether any investigation or enquiry be ordered by this Court in the present set of circumstances?
P O I N T No.1:
The petitioner admittedly filed this writ petition as public interest litigation highlighting his status as President of Sri Dalithabandhu Welfare Association, Gannavaram, Krishna District, established with an avowed object to protect the rights of Dalits. As part of providing such protection, he allegedly took up the issue of loss being caused by the government to the beneficiaries of the scheme and came to know several alleged irregularities.
Admittedly, the 5th respondent entered into an agreement with 9th respondent for supply of e-Autos to Safaikarmacharis/SC Community beneficiaries for their economic development with an assured monthly income of Rs.10,000/- engaging autos on outsourcing basis for shifting garbage to the dump yard identified by the 1st respondent. The 5th respondent entered into an agreement for purchase and supply of autos with 9th respondent on 15.12.2018 and the same is placed on record and filed along with the counter. The agreement came into effect on the date of its execution and it is for supply of total 7500 of e-autos, strictly in terms HACJ & MSM,J
8 WP(PIL)_29 of 2019 of tender within a period of 60 days from the date of issue of purchase order. The specific condition that is incorporated in the agreement is, in case the supplier fails to supply the e-vehicles within 60 days, suitable action shall be taken by the purchaser. Condition No.14 of the agreement further specified that the delay in supply of vehicles due to reasons beyond the control of the supplier like Flood, War etc or any such unforeseen event which restricts from supply of the vehicles shall be excluded from the time of delivery period.
Condition No.16 of the agreement is necessary for deciding the real controversy. According to it, the supplier in any manner neglect or failed to perform the terms of the agreement with due diligence or violates any of the terms of the agreement the purchaser shall give a notice in writing to the supplier to rectify the same within 60 days otherwise the agreement shall cancel by the expiry of the said notice period.
The agreement was entered into by the 5th respondent with 9th respondent for supply of 7500 e-autos for the economic development of Safaikarmacharis/SC Community beneficiaries. Therefore, on account of execution of agreement on 15.12.2018, a contractual relationship is created between the 5th respondent with 9th respondent. Even otherwise, supply of e-Autos under the agreement is purely a contractual obligation on strictly adherence to the terms of contract i.e. for agreement to supply e-Autos.
It is an undisputed fact that the 5th respondent entered into an agreement with 9th respondent for supply of 7500 e-Autos. The 5th respondent placed order for supply of e-Autos and accordingly, the 9th respondent supplied few autos while addressing letter that the other vehicles are being transported for supply. The proceedings challenged in this writ petition is the expression of interest tender HACJ & MSM,J 9 WP(PIL)_29 of 2019 No.EOI/656NAKFDC/APSCCFC/2018 dated 15.11.2018 and its allotment to 9th respondent. Thus, it is clear from the allegations made in the petition, the documents produced before the Court along with the petition and counter filed by the 5th respondent, on account of agreement entered by the 5th respondent with 9th respondent, a contractual relationship is created and the parties thereto i.e. respondent Nos.5 and 9 are under obligation to perform their obligations under the agreement dated 15.12.2018 for purchase. Normally, the Court shall not interfere with the tender process and the Apex Court in Municipal Corporation, Ujjain & ANR. Vs. BVG India Ltd. and Ors3 held that, public interest litigation is not maintainable in contract matters. moreover, only when a decision making process is so arbitrary or irrational that no responsible authority proceeding reasonably or lawfully could have arrived at such decisions, power of judicial review can be exercised. However, if it is bona fide and in public interest, the Court will not interfere in the exercise of power of judicial review even if there is a procedural lacuna. The principles of equity and natural justice do not operate in the field of commercial transactions. Wherever a decision has been taken appropriately in public interest, the Court ordinarily should exercise judicial restraint. When a decision is taken by the concerned authority upon due consideration of the tender document submitted by all tenderers on their own merits and it is ultimately found that the successful bidder had in fact substantially complied with the purpose and object for which the essential conditions were laid down, the same may not ordinarily be interfered with."
Even otherwise, a public interest litigation cannot be maintained in contractual matters in Villianur Iyarkkai Padukappu Maiyam v. Union 3 Civil Appeal No. 3330 of 2018 arising out of SLP (Civil) No. 11967 of 2016] dated 27.03.2018 HACJ & MSM,J 10 WP(PIL)_29 of 2019 of India4, the Supreme Court held that, in matters of award of contract, a non-participant who is a third party, cannot maintain a public interest litigation. The Apex Court further held that where a writ petition assails a contract purely commercial in nature, such challenge cannot be maintained by a third party, ostensibly under the grab of a public interest litigation on the basis that it was a challenge to the policy decision.
In Michigan Rubber(India) Limited v. State of Karnataka and others5, the Apex Court observed that the scope of interference of Court in contractual matters is very limited and that the tender issuing authority/ Airport Authority of India has fully justified its policy decision and no bias or malafide on the part of any authority or person connected thereto has been established by the Petitioners and concluded that the preliminary objection to the maintainability of this petition is justified and the Petitioner, through this public interest litigation, cannot seek to assail the terms, on which the Respondent/authority should award its tender or what conditions should be prescribed, when he is not a participating party in the tender.
At the time of hearing, though we called upon the counsel Sri C. Ravinder Babu to clarify as to maintainability of public interest litigation, when the dispute is with regard to contract, learned counsel for the petitioner did not address anything on the objection, but placed reliance on the judgment of the Apex Court in Institute of Law, Chandigarh and others v. Neeraj Sharma (referred supra), wherein the Supreme Court held as follows:
"It has also come to our notice that the settlement of the land in question in favour of the appellant-Institute was done within a few days without following the mandatory 4 (2009) 7 SCC 561 5 (2012) 8 SCC 216 HACJ & MSM,J
11 WP(PIL)_29 of 2019 procedure for the allotment of land. We do not doubt the intention of the appellants to set up the law institute, however, their private interest is pitted against the public interest. The loss to the public exchequer could have been easily avoided had the land in question been settled by way of public auction inviting applications from eligible persons.
24. Further, as stated in the writ petition, the petitioner is a resident of State of Punjab and is also an Income Tax Payee. It has neither been shown nor proved by the appellants that he is a (i) meddlesome interloper (ii) that he is acting under malafide intention or (iii) that he has been set up by someone for settling his personal scores with Chandigarh Administration or the allottee.
"Further, in the case of Dattaraj Nathuji Thaware v. State of Maharashtra [(2005) 1 SCC 590] this Court held that Public Interest Litigation is a weapon which has to be used with great care and circumspection. It has to be used as an effective weapon in the armoury of law for delivering social justice to citizens. The aim of Public Interest Litigation should be to redress genuine public wrong or public injury."
But, the principle laid down by the Apex Court in the above judgment has no application to the present facts of the case, as the query raised by this Court is not addressed by the learned counsel.
In M/s. Overland Investment Limited v. State of West Bengal (referred supra), the Calcutta High Court discussed about the scope of public interest litigation and held that the public interest litigation can be brought to the Court for the purpose of upholding the rights of the people, who are poor and who are under the veil of ignorance of their rights and obligations. Small depositors may not be in a position to know that their deposits were remaining unsafe and in order to protect the interest of these small depositors if the State files a writ application by way of public interest litigation we do not see any reason to reject the petition on the ground that it has no locus standi to do. The several cases decided by the Supreme Court as also by the American Court clearly indicate that the past decade has been a lowering of barriers imposed by the standing requirements to challenge such actions. The Courts are moving forwards broadening the standing requirement. The strict legal interest principle has been abolished by allowing the public interest litigation. Even in the HACJ & MSM,J 12 WP(PIL)_29 of 2019 United States, the standing requirement is too somewhat different. In the United States, the standing has been conferred by various decisions of the American Supreme Court also to competitors, consumers and the environmentalists and that the Supreme Court of India by various decisions have in fact and in substance extended the concept of locus standi to such an extent that in case of any illegality or irregularity the Court may intervene even at the instance of the stranger inasmuch as personal or legal interest principle is not required to be satisfied in case where a writ petition is filed to espouse the cause of a larger number of people who are poor and ignorant of their rights and who have no means to reach the Court and where the interest of the people and the Society are involved. It is further held that, that legal injury is caused to a person or to determinate class of persons by reason of violation of any constitutional or legal provision or without authority of law or any such legal wrong or injury or illegal burden is threatened and such person or determinate class of persons by reasons of poverty, helplessness or disability or social or economical disadvantaged position are unable to approach the Court for relief any member of the public can maintain an application for an appropriate direction, order or writ in the High Court under Article 226 and in case of breach of any fundamental right of such persons or determinate class of persons in this Court under Article 32, but the law is not in dispute. However, the Calcutta High Court order is not binding, but Supreme Court held otherwise as discussed above.
Thus, in view of the law declared by the Apex Court in the above referred judgments, we are of the confirmed view that public interest litigation is not maintainable in contractual matters and that the Courts must be slow to interfere with such tenders.
Accordingly, the point is answered.
HACJ & MSM,J 13 WP(PIL)_29 of 2019 P O I N T No.2:
As we answered Point No.1 against the petitioner, the illegalities or irregularities pointed out during argument without any pleading cannot be considered and in fact, the writ affidavit is totally silent as to the irregularities or illegalities, except contending that acceptance of tender of 9th respondent by the 5th respondent may cause substantial injury to the members of Safaikarmacharis/SC Community beneficiaries.
Time and again, the scope of Public Interest Litigation was considered by this Court and the Apex Court.
In "Janata Dal v. H.S. Chowdary6" the Apex Court considered the scope of public interest litigation. In para 53 of the said judgment, after considering what is 'public interest', the Supreme Court held as follows:
"The expression 'litigation' means a legal action including all proceedings therein initiated in a court of law with the purpose of enforcing a right or seeking a remedy. Therefore, lexically the expression 'PIL' means a legal action initiated in a court of law for the enforcement of public interest or general interest in which the public or a class of the community have pecuniary interest or some interest by which their legal rights or liabilities are affected."
Be that as it may, it is needless to emphasise that the requirement of locus standi of a party to a litigation is mandatory; because the legal capacity of the party to any litigation whether in private or public action in relation to any specific remedy sought for has to be primarily ascertained at the threshold."
Public interest litigation is a weapon which has to be used with great care and circumspection and the judiciary has to be extremely careful to see that behind the beautiful veil of public interest an ugly private malice, vested interest and/or publicity-seeking is not lurking. It is to be used as an effective weapon in the armory of law for delivering social justice to the 6 1993 SCC (Cri) 36 HACJ & MSM,J 14 WP(PIL)_29 of 2019 citizens. The attractive brand name of public interest litigation should not be allowed to be used for suspicious products of mischief. It should be aimed at redressal of genuine public wrong or public injury and not publicity-oriented or founded on personal vendetta. As indicated above, courts must be careful to see that a body of persons or member of public, who approaches the court is acting bona fide and not for personal gain or private motive or political motivation or other oblique consideration. The Court must not allow its process to be abused for oblique considerations by masked phantoms who monitor at times from behind. Some persons with vested interest indulge in the pastime of meddling with judicial process either by force of habit or from improper motives and try to bargain for a good deal as well to enrich themselves. Often they are actuated by a desire to win notoriety or cheap popularity. The petitions of such busybodies deserve to be thrown out by rejection at the threshold, and in appropriate cases with exemplary costs.
The Court has to be satisfied about: (a) the credentials of the applicant; (b) the prima facie correctness or nature of information given by him; and (c) the information being not vague and indefinite. The information should show gravity and seriousness involved. Court has to strike a balance between two conflicting interests: (i) nobody should be allowed to indulge in wild and reckless allegations besmirching the character of others; and (ii) avoidance of public mischief and to avoid mischievous petitions seeking to assail, for oblique motives, justifiable executive actions.
Courts must do justice by promotion of good faith, and prevent law from crafty invasions. Courts must maintain the social balance by interfering where necessary for the sake of justice and refuse to interfere HACJ & MSM,J 15 WP(PIL)_29 of 2019 where it is against the social interest and public good. (vide: "State of Maharashtra v. Prabhu7" and "Andhra Pradesh State Financial Corporation v. GAR Re-Rolling Mills8").
No litigant has a right to unlimited draught on the court time and public money in order to get his affairs settled in the manner as he wishes. Easy access to justice should not be misused as a licence to file misconceived and frivolous petitions. (vide: "Buddhi Kota Subba Rao (Dr) v. K. Parasaran9") In view of the law declared, Courts must be cautious in considering public interest litigation and must take into several facts stated above while entertaining public interest litigations. In the present facts, there is absolutely nothing to entertain such public interest litigation.
The petitioner claimed consequential relief of investigating into the illegalities in the tender process, but to issue such order is not a matter of course. The investigation has to be conducted by the investigating agency and only when the investigating agency is not in a position to conduct investigation in accordance with the procedure or unable to conduct investigation on account of any other influences, the Court may take up the role and direct the Court monitored investigation only in exceptional circumstances, but no allegations are made in the writ petition that investigating agency is not in a position to investigate on account of any influence. What are the circumstances, in which the Court monitored investigation can be ordered depends upon the facts of each case but not as a matter of routine.
7 1994 (2) SCC 481 8 AIR 1994 SC 2151 9 1996 (5) SCC 530 HACJ & MSM,J 16 WP(PIL)_29 of 2019 A high responsibility lies upon the investigating agency not to conduct an investigation in a tainted or unfair manner. The investigation should not, prima facie, be indicative of a biased mind and every effort should be made to bring the guilty to law as nobody stands above the law de hors his position and influence in the society. The maxim "contra veritatem lex nunquam aliquid permittit" applies to the exercise of powers by the Courts. (The law never suffers anything contrary to the truth). It is the responsibility of the Courts to ensure that the investigation is fair. (Vide: "Vinay Tyagi v. Irshad Ali @ Depak10" "Sidhartha Vashisht v. State (NCT of Delhi)11").
Any criminal offence is one against the society at large, casting an onerous responsibility on the State, as the guardian and purveyor of human rights and protector of law, to discharge its sacrosanct role responsibly and committedly, always accountable to the law-abiding citizenry for any lapse. The power of the Constitutional Court to direct investigation is a dynamic component of its jurisdiction to exercise judicial review, a basic feature of the Constitution, and while it should be exercised with due care and caution and informed with self-imposed restraint, the plenitude and content thereof can neither be enervated nor moderated by any legislation. (Vide: "Pooja Pal v. Union of India12"). The paramount consideration for ordering investigation by the Court is to ensure that miscarriage of justice is prevented. ("Basappa v. State of Karnataka13", "State of Punjab v. Karnail Singh14").
10 2013 (1) ALD (Crl.) 519 (SC) 11 (2010) 6 SCC 1 12 (2016) 3 SCC 135 : (2016) 1 SCC (Cri) 743 13 (2014) 5 SCC 154 14 (2003) 11 SCC 271 HACJ & MSM,J 17 WP(PIL)_29 of 2019 The botched investigation, into the gruesome act, may amount to subversion of justice.
The next question which necessitates examination is whether we should, in the facts and circumstances of the present case and as prayed for by the petitioner, also monitor the investigation. It depends upon the facts and circumstances of each case.
A fair, proper and full investigation by the investigation agency, into every accusation, would help in retaining public confidence in the conduct of inquiry/investigation. Court monitoring would help in moving the machinery of inquiry/investigation at an appropriate pace, and its conclusion with utmost expedition without fear or favour. ("Manohar Lal Sharma v. Union of India15"). The jurisdiction of the Superior Court to issue a writ of continuous mandamus is only to see that proper investigation is carried out. Once the Court satisfies itself that a proper investigation has been carried out, it would not venture to take over the functions of the Magistrate or pass any order which would interfere with his judicial functions. ("Jakia Nasim Ahesan v. State of Gujarat16";
"M.C. Mehta v. Union of India17"). Once the investigating agency completes their function of investigating into the offences, it is the Court in which the charge sheet would be filed, which should deal with all matters relating to the trial of the accused. (Jakia Nasim Ahesan v. State of Gujarat (referred supra); "Narmada Bai v. State of Gujarat18").
The expression "Court-monitored" has sometimes been interchangeably used with "Court-supervised investigation". Once the court supervises an investigation, there is hardly anything left in the trial. 15 (2014) 2 SCC 532 16 (2011) 12 SCC 302 : (2012) 1 SCC (Cri) 559 17 (2008) 1 SCC 407 = AIR 2008 SC 180 18 (2011) 5 SCC 79 HACJ & MSM,J
18 WP(PIL)_29 of 2019 However, investigation/inquiry monitored by the Court does not mean that the Court supervises such investigation/inquiry. To supervise would mean to observe and direct the execution of a task whereas to monitor would only mean to maintain surveillance. Under the Code, the investigating officer is only to form an opinion, and it is for the Court to ultimately try the case based on the opinion formed by the investigating officer and see whether any offence has been made out. If a Superior Court supervises the investigation, and thus facilitates the formulation of such opinion in the form of a report under Section 173(2) Cr.P.C, it will be difficult, if not impossible, for the trial court not to be influenced or bound by such opinion. Then the trial becomes a farce. Therefore, supervision of investigation by any court is a contradiction in terms. The Code does not envisage such a procedure. In rare and compelling circumstances, the Superior Courts may monitor an investigation to ensure that the investigating agency conducts the investigation in a free, fair and time- bound manner without any external interference. (Manohar Lal Sharma v. Union of India (referred supra).
Constitutional Courts monitor investigation only in public interest. That is the leitmotif of a Constitutional Court-monitored investigation. No Constitutional Court "desires" to monitor an inquiry or an investigation (compendiously referred to hereinafter as "an investigation") nor does it encourage the monitoring of any investigation by a police authority. Public interest is the sole consideration, and a Constitutional Court monitors investigation only when circumstances compel it to do so, such as (illustratively) a lack of enthusiasm by the investigating officer or agency (due to "pressures" on it) in conducting proper investigation, or a lack of enthusiasm by the Government concerned in assisting the investigating authority to arrive at the truth, or a lack of interest by the investigating HACJ & MSM,J 19 WP(PIL)_29 of 2019 authority or the Government concerned to take investigation to its logical conclusion for whatever reason or, in extreme cases, to hinder the investigation. (Manohar Lal Sharma v. Union of India (referred supra)).
Monitoring of investigations/inquiries by the Court is intended to ensure that proper progress takes place without directing or channelling the mode or manner of investigation. The whole idea is to retain public confidence in the impartial inquiry/investigation into the alleged crime; that inquiry/investigation, into every accusation, is made on a reasonable basis irrespective of the position and status of that person; and the inquiry/investigation is taken to the logical conclusion in accordance with law. The monitoring by the Court aims to lend credence to the inquiry/investigation being conducted, and to eliminate any impression of bias, lack of fairness and objectivity. (Manohar Lal Sharma v. Union of India (referred supra)). The concern and interest of the Court in "Court- directed" or "Court-monitored" cases is that there is no undue delay in the investigation, and the investigation is conducted in a free and fair manner with no external interference. In such a process, people acquainted with the facts and circumstances of the case would also have a sense of security and they would cooperate with the investigation, given that the Superior Courts are seized of the matter. (Manohar Lal Sharma v. Union of India (referred supra)).
The Division Bench of this Court in "Rama Shankarnarayan Melkote and others v. State of Andhra Pradesh and others19"
reiterated the principles laid down in various judgments (referred supra) and ordered Court monitored investigation as the investigation was tainted and a person who is unconcerned was impleaded in the grave crime of 19 2018(1)ALT709 HACJ & MSM,J
20 WP(PIL)_29 of 2019 murder of Miss.Ayesha Meera. Ultimately the Division Bench of this Court in the appeal preferred by the accused, while acquitting him directed reinvestigation in a writ petition filed by way of public interest litigation by Prof.Rama Shankarnarayan Melkote for ordering Court monitored investigation. Taking into consideration the seriousness of issue on account of involvement of kith and kin of highly placed political leaders, the Division Bench ordered Court monitored investigation to ensure completion of investigation uninfluenced by external or internal forces.
In earlier judgment, in "Babubhai Jamnadas Patel v. State of Gujarat20" the Apex Court had an occasion to deal with an identical question as to when the Court monitored investigation has to be ordered, wherein the Apex Court held that the area of dispute ultimately narrows down to the question as to whether the Courts can monitor investigations in respect of offences alleged to have been committed when the investigation had already been commenced by the investigating agency. There is little doubt that normally investigation of offences is the function of the investigating agencies and the Courts do not ordinarily interfere with the same. But, at the same time the High Court is vested with such powers, though the same are invoked only in cases where extraordinary facts are involved, necessitating such monitoring by the Courts. Thus, the principle laid down in long line of perspective pronouncements by both High Court and Supreme Court is consistent that the Court can exercise such extraordinary power of ordering Court monitored investigation only in cases where extraordinary facts are involved.
20
(2009) 9 SCC 610 HACJ & MSM,J 21 WP(PIL)_29 of 2019 The Apex Court in "Subramanian Swamy and others v. Director, Central Bureau of Investigation and others21" had an occasion to deal with as to under what circumstances the Court monitored investigation is to be ordered. The Court made it clear that criminal justice system mandates that any investigation into the crime should be fair, in accordance with law and should not be tainted. It is equally important that interested or influential persons are not able to misdirect or highjack the investigation so as to throttle a fair investigation resulting in the offenders escaping the punitive course of law. These are important facets of rule of law. Breach of rule of law, in the opinion of the Court, amounts to negation of equality under Article 14.
Section 156 of the Code of Criminal Procedure enables any officer in charge of a police station to investigate a cognizable offence. Insofar as non-cognizable offence is concerned, a police officer by virtue of Section 155 of Code of Criminal Procedure can investigate it after obtaining appropriate order from the Magistrate having power to try such case or commit the case for trial regardless of the status of the officer concerned. The scheme of Section 155 and Section 156 Code of Criminal Procedure indicates that the local police may investigate a senior Government officer without previous approval of the Central Government. However, CBI cannot do so in view of Section 6A. This anomaly in fact occurred in "Centre for PIL and Anr. v. Union of India and another22". That was a matter in which investigations were conducted by the local police in respect of senior Government official without any previous approval and a challan filed in the court of Special Judge dealing with offences under the PC Act, 1988. Dealing with such anomaly occurred in "Centre for PIL and 21 AIR 2014 SC 2140 22 (2011) 4 SCC 1 HACJ & MSM,J 22 WP(PIL)_29 of 2019 Anr. v. Union of India and another (referred supra), the Apex Court in "Manohar Lal Sharma v. Union of India (referred supra)" observed as follows:
"It is difficult to understand the logic behind such a dichotomy unless it is assumed that frivolous and vexatious complaints are made only when the CBI is the investigating agency and that it is only CBI that is capable of harassing or victimizing a senior Government official while the local police of the State Government does not entertain frivolous and vexatious complaints and is not capable of harassing or victimizing a senior government official. No such assumption can be made."
In "P. Sirajuddin, etc. v. State of Madras23" the Apex Court held that if baseless allegations are made against senior Government officials, it would cause incalculable harm not only to the officer in particular but to the department that he belonged to, in general. The observations made in "P. Sirajuddin, etc. v. State of Madras" (referred supra) are very specific and they are as follows:
"Before a public servant, whatever be his status, is publicly charged with acts of dishonesty which amount to serious misdemeanour or misconduct of the type alleged in this case and a first information is lodged against him, there must be some suitable preliminary enquiry into the allegations by a responsible officer. The lodging of such a report against a person, specially one who like the Appellant occupied the top position in a department, even if baseless, would do incalculable harm not only to the officer in particular but to the department he belonged to, in general."
The Apex Court in "Subramanian Swamy and others v. Director, Central Bureau of Investigation and others" (referred supra) did not agree with the observations made in "P. Sirajuddin, etc. v. State of Madras" (referred supra) as it did not lay down any proposition that the distinction can be made for the purposes of inquiry/investigation of an offence of which public servants are accused based on their status. 23
(1970) 1 SCC 595 HACJ & MSM,J 23 WP(PIL)_29 of 2019 In view of the law declared by the Apex Court in various judgments (referred supra), the Court can order Court monitored investigation only when there are exceptional circumstances. What are the exceptional circumstances are not laid down by the Courts, but it varies from case to case and depends upon the facts of each case, as such no straightjacket formula can be laid down to exercise such power to order Court monitored investigation where there exists exceptional circumstances involving larger public interest.
Of course, the petitioner did not claim court monitored investigation, but claimed entrustment of enquiry or investigation to Central Vigilance Commission or Central Bureau of Investigation.
Keeping in mind the law declared by the Apex Court, we would like to examine the facts of the present case to find out whether there exists any exceptional circumstance warranting entrustment of enquiry or investigation to any of the agencies as claimed by the petitioner. Moreover, the affidavit filed along with this petition is bereft of any details, warranting order of investigation or enquiry by the Central Vigilance Commissioner and/or Central Bureau of Investigation, since the role of Central Vigilance Commissioner and/or Central Bureau of Investigation is specified in the Act and they are unconcerned with the enquiries. Therefore, in view of the law laid down by the Apex Court in the above judgments, it is clear that there must be a prima facie material to establish that statutory or fundamental rights of Safaikarmacharis/SC Community beneficiaries are infringed. But, without disclosing any details in the entire petition, including the names of Safaikarmacharis/SC Community beneficiaries who denied such benefits, filed this petition seeking general directions.
HACJ & MSM,J 24 WP(PIL)_29 of 2019 One of the relief claimed by the petitioner is to order enquiry by the Chief Vigilance Commissioner and/or Central Bureau of Investigation into the irregularities and misuse of funds by the 5th respondent. But, the entire affidavit is totally silent as to the irregularities or illegalities or corrupt practices committed by 5th respondent. However, the Court cannot use its discretionary power to order enquiry by Chief Vigilance Commissioner and/or Central Bureau of Investigation except in extraordinary circumstances.
Accordingly, the point is answered.
In view of our findings on Point Nos. 1 & 2, we find no merit in the writ petition and it deserves to be dismissed.
In the result, writ petition is dismissed at the stage of admission. Consequently, miscellaneous applications pending if any, shall stand closed.
________________________________________________ ACTING CHIEF JUSTICE C. PRAVEEN KUMAR _________________________________________ JUSTICE M. SATYANARAYANA MURTHY Date:08.08.2019 SP