TaxTMI 
TaxTMI 
1990 (11) TMI 386
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....ves and which serves as an aorta in the anatomy of our democratic system, THE LAW IS SUPREME. 4. Everyone whether individually or collectively is unquestionably under the supremacy of law. Whoever he may be, however high he is, he is under the law. No matter how powerful he is and how rich he may be. 5. The heated and lengthy argument advanced in general by all the learned Counsel on the magnitude and the multi-dimensional causes of corruption and also about the positive and constructive remedial measures and steps to be taken for its eradication has necessitated us to give a brief exordium about its perniciousness, though strictly speaking, we would be otherwise not constrained to express any opinion on this. 6. At the outset we may say that we are not inclined to make an exhaustive survey and analysis about the anatomy, dimensions and causes of corruption. It cannot be gainsaid that the ubiquity of corruption is always associated with a motivation of private gain at public expense. 7. Though the historical background and targets of corruption are reviewed time after time; the definitional and conceptual problems are explored and the voluminous causes and consequences ....
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....ief Minister of the state of Haryana in 1982-87. During the initiation of this criminal proceeding in question, he was the Union Minister for Environment and Forests, Government of India. 14. In the general election to the legislative assembly of the state of Haryana in June 1987, Smt. Jasma Devi, the wife of Ch. Bhajan Lal contested from Adampur constituency on being sponsored by the Congress (I) party as against the second respondent, Mr. Dharam Pal who was a nominee of the Lok Dal. Mrs. Jasma Devi was successfully elected. Dharam Pal presented an election petition calling in question the election of Smt. Jasma Devi on a variety of grounds. Ch. Devi Lal, the third respondent in this appeal who was the second respondent in the writ petition also contested on Lok Dal's ticket and became successful. Thereafter Ch. Devi Lal became the Chief Minister of the State of Haryana in 1987. 15. It seems that after the general election there were a number of criminal proceedings between the parties one of which being a criminal prosecution against Dharam Pal Under Section 307 IPC registered in Adampur police station. On account of the political rivalry and the institution of a number....
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....he above endorsements of OSD and DGP was put up before the S.P., the second appellant on 21.11.1987, on which date itself the S.P. made his endorsement reading "Please register a case and investigate". 19. The SHO (the third appellant) registered a case on the basis of the allegations in the complaint Under Sections 161 and 165 of the Indian Penal Code and Section 5(2) of the Act on 21.11.1987 itself at 6.15 P.M. and took up the investigation. On the foot of the First Information Report (F.I.R.) the following endorsement has been made: Police proceeding that the S.P. Hissar after registering the case on the above application has ordered to investigate the case. That FIR Under Section 161, 165 IPC. 5.2.1947 P.C Act has been registered at P.S. Sadar Hissar. An Inspector, along with constables Sumer Singh 700, Randhir Singh 445, Attar Singh 47 proceed to the spot. Constables Sumar Singh 700, and Randhir Singh 445 were handed over one rifle along with 50 cartridges each and copy of the FIR as a special report is being sent through Head constable Bhaktawar Singh, 602 at the residence of Illaga Magistrate and other offices. Tara Chand, Inspector, Police Station, Sada....
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....g them against the petitioner in the complaint Annexure P-9 and that he was solely depending upon the fishing enquiry which may be undertaken by the police in the course of its investigation without being himself possessed or known to or seen any material or documents justifying his allegations of benami purchases, or under valuation of property allegedly purchased by the petitioner. 3. Allegations obtaining in Annexure P-9 are, therefore, the outcome of a desparate, frustrated mind.... 4. Irresponsible manner in which indiscriminate allegations have been levelled by Dharam Pal, respondent No. 5 against the petitioner in Annexure P-9 is patent from the assertions made in respect of benami ownership of house No. 1028, Friends Colony, New Delhi by the petitioner. 5. Respondent No. 5 appears to have made these allegations only to curry favour with respondent No. 2 and to avenge his own insult of defeat in elections against the petitioner's wife. The charges levelled in the complaint Annexure P-9 by respondent No. 5 against the petitioner are, therefore, all groundless. 6. It was only the S.P. Lekhi Ram and the Inspector Tara Chand both of whom f....
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.... the second respondent. As the applicant Chhabil Dass was not a party to the proceedings before the High Court, his application is rejected. 25. Mr. Rajinder Sachhar, the learned senior counsel along with the learned Advocate General of Haryana State assisted by Mr. Mahabir Singh appeared for the appellants whilst Mr. R.K. Garg, the learned senior counsel appeared for the second respondent, Dharam Pal on whose complaint the impugned first information report had been registered and the investigation was commenced. Mr. K. Parasaran, the learned senior counsel along with Mr. P. Chidambaram, the learned senior counsel assisted by Mr. Gopal Subramaniam appeared on behalf of the first respondent. Mr. Rajinder Sachhar and Mr. R.K. Garg made a cascade of vitriolic comments on the reasons assigned and the conclusions drawn therefrom by the High Court and assailed the impugned judgment by making a frontal brunt asseverating that the instances of corruption cited in the complaint by Dharam Pal which are in the increase both in volume and virulence, though so far hidden from the public view, and those allegations taken either individually or collectively, unerringly and irrefragably constit....
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....tion of a cognizable offence and that provision reads as follows: Every information relating to the commission of a cognizable offence, if given orally to an officer-in-charge of a police station, shall be reduced to writing by him or under his direction, and be read over to the informant; and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the State Government may prescribe in this behalf. 29. The above Sub-section correspondents to Section 154 of the old Code (Act of 1898 to which various amendments are made by Act XXVI of 1955 and also to Section 154 of the CrPC of 1882 (Act X of 1882) except for the slight variation in that expression 'Local Government' had been used in 1882 in the place of 'State Government'. Presently, on the recommendations of the 41st Report of the Law Commission, the Sub-sections 2 and 3 have been newly added but we are not concerned with those provisions as they are not relevant for the purpose of the disposal of this case except for making some reference a....
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....ion to be made by any police officer subordinate to him in the manner provided by Sub-section 3 of Section 154 of the Code. 32. Be it noted that in Section 154(1) of the Code, the legislature in its collective wisdom has carefully and cautiously used the expression "information" without qualifying the same as in Section 41(1)(a) or (g) of the Code wherein the expressions, "reasonable complaint" and "credible information" are used. Evidently, the non-qualification of the word "information" in Section 154(1) unlike in Section 41(1)(a) and (g) of the Code may be for the reason that the police officer should not refuse to record an information relating to the commission of a cognizable offence and to register a case thereon on the ground that he is not satisfied with the reasonableness or credibility of the information. In other words, 'reasonableness' or 'credibility' of the said information is not a condition precedent for registration of a case. A comparison of the present Section 154 with those of the earlier Codes will indicate that the legislature had purposely thought it fit to employ only the word "information" without qualifying the said word. Section 139 of....
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....36. Section 157(1) requires an Officer Incharge of a Police Station who 'from information received or otherwise' has reason to suspect the commission of an offence-that is a cognizable offence-which he is empowered to investigate Under Section 156, to forthwith send a report to a Magistrate empowered to take cognizance of such offence upon a police report and to either proceed in person or depute any one of his subordinate Officers not being below such rank as the State Government may, by general or special order, prescribe in this behalf, to proceed to the spot, to investigate the facts and circumstances of the case and if necessary, to take measures for the discovery and arrest of the offender. This provision is qualified by a proviso which is in two parts (a) and (b). As per Clause (a) the Officer Incharge of a Police Station need not proceed in person or depute a subordinate officer to make an investigation on the spot if the information as to the commission of any such offence is given against any person by name and the case is not of a serious nature. According to Clause (b), if it appears to the Officer Incharge of a Police Station that there is no sufficient ground ....
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....o further investigate the case even after submission of the report as provided in Section 173(8). 37. The above two provisions-that is Sections 156 and 157 of the Code are followed by Section 159 which empowers a Magistrate, on receipt of a report forwarded by the police Under Section 157 to direct an investigation or if he thinks fit, at once to proceed or depute any Magistrate subordinate to him to proceed, to hold a preliminary enquiry into, or otherwise to dispose of, the case in the manner provided in the Code. The expression "on receiving such a report" evidently refers to the receipt of a report contemplated in Section 157(2), because the question of directing an investigation by the Magistrate cannot arise in pursuance of the report referred to under Sub-section (1) of Section 157 intimating that the police officer has proceeded with the investigation either in person or by deputing any one of his subordinate officers. This Court in S.N. Sharma v. Bipen Kumar Tiwari and Ors. 1970 CriLJ 764 while interpreting the scope of Section 159 of the Code has stated thus: This Section first mentions the power of the Magistrate to direct an investigation on receiving the re....
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.... until then. 39. Justice D.A. Desai speaking for the Bench in State of Bihar and Anr. v. J.A.C. Saldanha and Ors. (albeit) while dealing with the powers of investigation of a police officer as contemplated in Section 156 of the CrPC has stated thus: There is a clear-cut and well demarcated sphere of activity in the field of crime detection and crime punishment. Investigation of an offence is the field exclusively reserved for the executive through the police department the superintendence over which vests in the State Government. The executive which is charged with a duty to keep vigilance over law and order situation is obliged to prevent crime and if an offence is alleged to have been committed it is its bounden duty to investigate into the offence and bring the offender to book. Once it investigates and finds an offence having been committed it is its duty to collect evidence for the purpose of proving the offence. Once that is completed and the investigating officer submits report to the Court requesting the Court to take cognizance of the offence Under Section 190 of the Code its duty comes to an end. 40. See also Abhinandan v. Dinesh 1968 CriLJ 97. 41. The c....
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....o suspect the commission of an offence before commencing the investigation. Subsequently, in the CrPC of 1872 a provision, namely, Section 114 which was more or less similar to the present Section 157(1) was introduced which provision required the police officer to have "reason to suspect" the commission of a cognizable offence before he proceeded to investigate the facts and circumstances of the case. Thereafter in the CrPC of 1882 a provision, namely, Section 157 which was identical to that of the present Section 157 except for some variations in the latter part of that Section was introduced which provision also required the police officer to have "reason to suspect" the commission of a cognizable offence. May it be noted that the Law Commission of India in its 41st report expressed its opinion that Section 157 did not call for any amendment. 43. The expression "reason to suspect" as occurring in Section 157(1) is not qualified as in Section 41(a) and (g) of the Code, wherein the expression, "reasonable suspicion" is used. therefore, it has become imperative to find out the meaning of the words "reason to suspect" which words are apparently clear, plain and unambiguous. Consi....
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....picion' is defined as being the imagination of the existence of something without proof, or upon very slight evidence, or upon no evidence at all. Cook v. Singer Sewing Mach. Co. 32 P. 2d 430, 431, 138 Cal. App. 418. 48. See also Emperor v. Vimlabai Deshpande; United States v. Cortez 66 L.Ed. 2d (US)(SCR)623 (II (A (3); and Dallison v. Caffery [1964] 2All E.R. 610. 49. One should not lose sight of the fact that Section 157(1) requires the police officer to have reason to suspect only with regard to the commission of an offence which he is empowered Under Section 156 to investigate, but not with regard to the involvement of an accused in the crime. therefore, the expression "reason to suspect the commission of an offence" would mean the sagacity of rationally inferring the commission of a cognizable offence based on the specific articulate facts mentioned in the First Information Report as well in the Annexures, if any, enclosed and any attending circumstances which may not amount to proof. In other words, the meaning of the expression "reason to suspect" has to be governed and dictated by the facts and circumstances of each case and at that stage the question of adequate ....
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....a fetter on a police officer directing him not to investigate a case where it appears to him that there is no sufficient ground in entering on an investigation. As Clause (b) of the proviso permits the police officer to satisfy himself about the sufficiency of the ground even before entering on an investigation, it postulates that the police officer has to draw his satisfaction only on the materials which were placed before him at that stage, namely, the first information together with the documents, if any, enclosed. In other words, the police officer has to satisfy himself only on the allegations mentioned in the first information before he enters on an investigation as to whether those allegations do constitute a cognizable offence warranting an investigation. 54. From the above discussion, it is pellucid that the commencement of investigation by a police officer is subject to two conditions, firstly, the police officer should have reason to suspect the commission of a cognizable offence as required by Section 157(1) and secondly, the police officer should subjectively satisfy himself as to whether there is sufficient ground for entering on an investigation even before he sta....
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....ce unfettered power to investigate all cases where they suspect that a cognizable offence has been committed, in appropriate cases an aggrieved person can always seek a remedy by invoking the power of the High Court under Article 226 of the Constitution under which, if the High Court could be convinced that the power of investigation has been exercised by a police officer mala fide, the High Court can always issue a writ of mandamus restraining the police officer from misusing his legal powers. The fact that the Code does not contain any other provision giving power to a Magistrate to stop investigation by the police cannot be a ground for holding that such a power must be read in Section 159 of the Code. 60. Mathew, J. in his majority judgment in Prabhu Dayal Deorath etc. etc. v. The District Magistrate, Kamrup and Ors. 1974 CriLJ 286 while emphasising the preservation of personal liberty has expressed his view thus: We say, and we think it is necessary to repeat, that the gravity of the evil to the community resulting from antisocial activities can never furnish an adequate reason for invading the personal liberty of a citizen, except in accordance with the procedure ....
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....no emphasis that no one can demand absolute immunity even if he is wrong and claim unquestionable right and unlimited powers exercisable upto unfathomable cosmos. Any recognition of such power will be tantamount to recognition of 'Divine Power' which no authority on earth can enjoy. 63. Here-to-fore, we have dealt with the intendment of the various statutory provisions relating to the registration of the First Information Report, the statutory duty cast on the police officers to investigate the cognizable offences, the such authority of the police officers in-the field of investigation and the circumscribed limits imposed on such authority in the conduct of investigation. 64. The central issue involved for scrutiny is whether the order of the Court in quashing the First Information Report and the proceeding of the investigation is legally sustainable and if not, to what extent the said order suffers from legal infirmity. 65. Mr. K. Parasaran forcefully contended that the allegations averred in the complaint even if taken at their face value and accepted in its entirety do not constitute an offence demanding either the registration of a case or commencement of an in....
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....eir men were embroiled and (2) offering an explanation to some of the allegations and emphatically abjuring the rest. In support of his assertions made on oath in the counter affidavit, he has enclosed 11 annexures. An additional affidavit has been filed by Dharam Pal by way of amplification alleging that Bhajan Lal is constructing a palatial house worth about Rs. 50 lakhs, the built-in area of which is not less than 21,100sq. ft. 69. During the course of the hearing of the case, an un-numbered interlocutory application in the Special Leave Petition enclosed with a copy of an un-numbered Writ Petition (Civil) of 1988 preferred before the High Court of Delhi by M/s. Bhanu Steels Pvt. Ltd., D-1028, New Friends Colony, New Delhi was filed on behalf of Dharam Pal for establishing two facts namely (1) that the finding of the High Court relating to the Instance No. 12 in the complaint alleging that the house No. D-1028, New Friends Colony valuing about Rs. 75 lakhs has been bought under benami transaction, holding 'This one glaring instance shows how the mala fide and false First Information Report is recorded against the petitioner' is falsified and (2) that Bhanu Steels Pvt.....
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..... Further no adverse inference could be drawn on the mere non-filing of a written statement by the State of Haryana in cases of this nature especially when the matter relates to serious disputed facts, yet to be investigated. As rightly pointed out by Mr. Rajinder Sachhar the stage is pre-mature and as such the Government could not be expected to have in its possession all the details in support of the allegations made in the complaint before any enquiry or investigation is launched and completed. Similarly, the appellants 2 and 3 who are only police officials also cannot be expected to give a detailed reply to the averments made in the Writ Petition when the investigation has not at all proceeded with. It will be appropriate to refer to a decision of this Court in State of Bihar and Anr. v. J.A.C. Saldanha and Ors. 1980 CriLJ 98 wherein this Court has disapproved the exercise of the extra-ordinary power of the High Court in issuing a prerogative writ quashing the prosecution solely on the basis of the averments made in the affidavit in the following words: The High Court in exercise of the extraordinary jurisdiction committed a grave error by making observations on seriou....
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...., the Court will not normally interfere with an investigation into the case" clearly shows that this Court has carved out an area wherein the Courts can interfere in criminal proceedings at any stage if circumstances so warrant and quash the same. Based on the above proposition of law, he states that as the allegations in the present case which demonstrably shown to be speculative and false the judgment of the High Court quashing the proceedings has to be sustained. In our considered view, this submission cannot be countenanced for the reasons-firstly we, at this premature stage, are unable to share the view expressed by the High Court that the charges levelled against Ch. Bhajan Lal are all groundless and secondly Swapan Kumar Guha's case cannot be availed of by the first respondent as the question that came up for determination was entirely different. The facts in Swapan Kumar Guha's case were as follows: 75. Sanchaita Investments, a partnership firm was carrying on business as financiers and investors and in its business the firm accepted loans or deposits from the general public for different periods repayable with interest, giving option to the depositors for premat....
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....ents 2 and 5 mentioned in the above observation are Ch. Devi Lal and Dharam Pal respectively). 78. In a perfect system of prevention and detection of crimes, undeniably the paramount duty of a police officer to whom the commission of a cognizable offence is reported, is to register a case without causing any delay and promptly commence the investigation without perverting or subverting the law. When such is the accepted principle, can it be said that the police officers in the instant case have over-zealously taken a hasty decision by misusing their positions in registering the case and commencing the investigation? To answer this query, let us recapitulate some salient facts on this aspect. The complainant, Dharam Pal, presented the complaint on 12.11.1987 before Ch. Devi Lal whose officer on special duty marked it to the DGP on the same day. The DGP sent it with his endorsement dated 12.11.1987 to the S.P. Hissar, who received it on 21.11.1987. The S.P. on the same day made the endorsement "Please register a case and investigate". In the affidavit filed before the High Court, the S.P. has stated that as there were serious allegations of corruption against Ch. Bhajan Lal in the....
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....cts 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 means adopted no less than the end to be achieved must be impeccable. 81. Mudholkar, J in a separate judgment in The State of Uttar Pradesh v. Bhagwant Kishore Joshi 1964 CriLJ 140 while agreeing with the conclusion of Subba Rao, J (as he then was) has expressed his opinion stating: In the absence of any prohibition in the Code, express or implied, I am of opinion that it is open to a police officer to make preliminary enquiries before registering an offence and making a full scale investigation into it. 82. We are in agreement with the views, expressed by Mitter, J and Mudholker, J in the above two decisions. 83. Now coming to the present case, we regret to note t....
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....ir submissions, they drew our attention to a catena of decisions, of which we will presently refer to a few. 86. The Judicial Committee in its oft-quoted decision, namely, King Emperor v. Khwaja Mazir Ahmad (Albeit) though strongly observed that the judiciary should not interfere with the police in matters which are within their province, has qualified the above statement of law by saying: No doubt, if no cognizable offence is disclosed, and still more, if no offence of any kind is disclosed, the police would have no authority to undertake an investigation. 87. The above observation shows that an investigation can be quashed if no cognizable offence is disclosed by the F.I.R. 88. Gajendragadkar, J. speaking for the Court while considering the inherent powers of the High Court in quashing the First Information Report Under Section 561-A of the old Code (corresponding to Section 482 of the new Code) in R.P. Kapur v. The State of Punjab (cited above) at page 393 made the following observation: Cases may also arise where the allegations in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety,....
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.... not contain any other provision giving power to a Magistrate to stop investigation by the police cannot be a ground for holding that such a power must be read in Section 159 of the Code. 91. In Hazari Lal Gupta v. Rameshwar Prasad and Anr. etc. 1972 CriLJ 298 , this Court has stated thus: In exercising jurisdiction Under Section 561-A of the Criminal Procedure Code, the High Court can quash proceedings if there is no legal evidence or if there is any impediment to the institution or continuance of proceedings but the High Court does not ordinarily inquire as to whether the evidence is 'reliable or not'. Where again, investigation into the circumstances of an alleged cognizable offence is carried on under the provisions of the Criminal Procedure Code, the High Court does not interfere with such investigation because it would then be the impeding investigation and jurisdiction of statutory authorities to exercise power in accordance with the provisions of the Criminal Procedure Code. 92. In Jehan Singh v. Delhi Administration 1974 CriLJ 802 , the application filed by the accused Under Section 561-A of the old Code for quashing the investigation was dismissed a....
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.... amounting to mandamus to close the case before the investigation was complete. 97. See also Municipal Corporation of Delhi v. Purshotam Dass Jhunjunwala and Ors. 1983 CriLJ 172. 98. The classic exposition of the law is found in State of West Bengal and Ors. v. Swapan Kumar Guha and Ors. (cited above). In this case, Chandrachud, CJ in his concurring separate judgment has stated that "if the FIR does not disclose the commission of a cognizable offence, the Court would be justified in quashing the investigation on the basis of the information as laid or received". Justice A.N. Sen who wrote the main judgment in that case with which Chandrachud, CJ and Varadarajan, J. agreed has laid the legal proposition as follows: ...the legal position is well-settled. The legal position appears to be that if an offence is disclosed, the Court will not normally interfere with an investigation into the case and will permit investigation into the offence alleged to be completed; if, however, the materials do not disclose an offence, no investigation should normally be permitted.... Once an offence is disclosed, an investigation into the offence must necessarily follow in the i....
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....te issuing process against the accused can be quashed or set aside and further stating that the same principle laid down in that decision would apply mutatis mutandis to a criminal complaint also, has explained the position of law in Pratibha Rani v. Suraj Kumar and Anr. 1985 CriLJ 817 as follows: It is well settled by a long course of decisions of this Court that for the purpose of exercising its power Under Section 482 Cr. P.C. to quash a FIR or a complaint the High Court would have to proceed entirely on the basis of the allegations made in the complaint or the documents accompanying the same per se. It has no jurisdiction to examine the correctness or otherwise of the allegations. 101. Speaking for the Bench, Ranganath Mishra, J as he then was in Madhavrao Jiwaji Rao Scindia and Ors. v. Sambhajirao Chandro-jirao Angre and Ors. 1988 CriLJ 853 has expounded the law as follows: The legal position is well settled that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the court is as to whether the uncontroverted allegations as made prima facie establish the offence. It is also for the court to take into consideration any ....
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.... or the inherent powers Under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any Court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised. 1. Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima-facie constitute any offence or make out a case against the accused. 2. Where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers Under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. 3. Where the uncontroverted allegations made in the FIR or complaint and the evidence....
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....s such false allegations is liable to be proceeded against under the relevant provisions of the Indian Penal Code-namely Under Sections 182 or 211 or 500 besides becoming liable to be sued for damages. 108. Reverting to the present case, the allegations made in the complaint, in our considered opinion, do clearly constitute a cognizable offence justifying the registration of a case and an investigation thereon and this case does not fall under any one of the categories of cases formulated above calling for the exercise of extraordinary or inherent powers of the High Court to quash the F.I.R. itself. 109. It was then urged by Mr. Parasaran with a considerable force and insistence that the entire proceedings against Ch. Bhajan Lal on account of the acrimonious political rivalry is vitiated either on being tainted with a mala fides or due to lack of bona fide and, therefore, the judgment impugned quashing the entire proceedings should not be interfered with. Much reliance was placed in support of the above submission on three decisions, namely S. Pratap Singh v. The State of Punjab (1966) ILLJ 458SC ; State of Haryana v. Rajindra Sareen (1972) ILLJ 205 SC and Express Newspapers ....
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.... v. State of Bihar and Ors. 1987 CriLJ 793 may be referred to. It is a well established proposition of law that a criminal prosecution, if otherwise, justifiable and based upon adequate evidence does not become vitiated on account of mala fides or political vendetta of the first informant or the complainant. Beyond the above, we do not wish to add anything more. 112. It was again contended that mala fides are writ large on the extra-ordinary interest evinced by the police officers and the hasty direction given by the S.P. Needless to say that the question of mala fide exercise of power will assume significance only if an authority acts for unauthorised purpose. The proper test to be applied in such a case is as to what is the dominant purpose for which the power is exercised. The principle of dominant purpose is explained in the following decisions: 113. The King v. Minister of Health [1929] 1 K.B. 619; Rex v. Brighton Corporation ex-parte Shoosmith 96 L.T. 762; Earl Fitzwilliam's Wentworth Estate Co. Ltd. v. Minister of Town and Country Planning [1951] 2 K.B. 284 and P.V. Jagannath Rao and Ors. v. State of Orissa and Ors. [1968] 3 SCR 789 . 114. Applying t....
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....s case registered Under Section 5(2) of the Act (presumably Section 5(1)(e) read with Section 5(2) and Under Sections 161 and 165 IPC in the teeth of the mandatory provisions of Section 5A and in the light of the observations of this Court made in H.N. Rishbud and Inder Singh v. The State of Delhi 1955 CriLJ 526 and The State of Madhya Pradesh v. Mubarak Ali [1959] 2 SCR 201, all the learned Counsel addressed their arguments on this point at the instance of this Court. Though initially, it was submitted on behalf of the State (the first appellant herein) that the order of the S.P. dated 21.11.1987 directing the Inspector to investigate the case would fall within the purview of the provisos to Section 5A, subsequently two Government orders issued by the Government of Haryana-one dated 26.7.1975 authorising all the Inspectors of Police under the administrative control of the Inspector General of Police, Haryana, to investigate offences Under Section 5 of the Act and Anr. dated 19th April 1988 authorising all the Inspectors of Police posted in the Chief Minister's Flying Squad, Haryana, Chandigarh for the purpose of the first proviso to Section 5A(1) of the Act. It is pertinent to....
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....7 has observed that "Section 5A is a safeguard against investigation .of offences by public servants, by petty or lower rank police officer." 120. According to Section 5A, notwithstanding anything contained in the Code, no police officer below the rank specified in Clauses (a) to (d) of Section 5A(1), shall investigate any offence punishable Under Sections 161, 165 or 165A of the IPC or Under Section 5 of the Act without the order of a Presidency Magistrate or a Magistrate of the first class as the case may be or make arrest therefore without a warrant. There are two provisos to that section. As per the first proviso, if a police officer not below the rank of an Inspector of Police is authorised by the State Government, either by general or special order, he may investigate any such offence without the order of a Magistrate or make arrest therefore without a warrant. According to the second proviso, an offence referred to in Clause (e) of Sub-section (1) of Section 5 shall not be investigated without the order of a police officer not below the rank of a Superintendent of Police. 121. It means that a police officer not below the rank of an Inspector of Police authorised by the....
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....er restrained the investigation even at the initial stage, i.e. on the date when Rule Nisi was issued in the Writ Petition. therefore, it is the appropriate stage for examination of the question as to whether the necessary requirements contemplated Under Section 5A(1) in permitting the Inspector of Police, are strictly complied with or not. 125. For the proper understanding of the reasoning which we would like to give touching the question of the validity of the authority of the third appellant, we would like to reproduce the Government order dated 26th July 1975 which reads as follows: HARYANA GOVERNMENT HOME DEPARTMENT ORDER No. 4816-3H-75/22965 The 26^th July 1975 Conferred by the first proviso to Sub-section (1) of Section 5A of the Prevention of Corruption Act, 1947, the Governor of Haryana hereby authorises all the Inspectors of Police under the administrative control of the Inspector General of Police, Haryana to investigate offences Under Section 5 of the said Act. S.D. Bhandari Secretary to Government, Haryana Home Department. 126. The subsequent Government Order dated 19.4.1988 is on the same line of the above Government Order. ....
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....icer, seeks to make an investigation, he should get the order of a Magistrate empowering him to do so before he proceeds to investigate and it is desirable that the order giving the permission should ordinarily, on the face of it, disclose the reasons for giving the permission. 131. Hegde, J in S.N. Bose's case following the maxim in Mubarak Ali's case has expressed his opinion in the following words: It is surprising that even after this Court pointed out the significance of Section 5A in several decisions there are still some Magistrates and police officers who continue to act in a casual manner. It is obvious that they are ignorant of the decisions of this Court. 132. The conspectus of the above decisions clearly that the granting of permission Under Section 5A authorising an officer of lower rank to conduct the investigation is not to be treated by a Magistrate as a mere matter of routine, but it is an exercise of his judicial discretion having regard to the policy underlying and the order giving the permission should, on the face of it, disclose the reasons for granting such permission. It is, therefore, clear in the light of the above principle of law t....
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....o investigate these two offences, registered under the IPC, apart from the offence Under Section 5(2) of the Act. When Mr. Sachhar was confronted with this legal issue, he tried to extricate himself from this situation saying that the prosecution would approach the Magistrate of the first class for obtaining an order Under Section 5A(1) authorising SHO to investigate the offences under the provisions of the IPC. However, as the question relating to the legal authority of the SHO is raised even at this initial stage, we feel that it would be proper and also desirable that the investigation, if at 'all to be proceeded with in the opinion of the State Government, should proceed only on the basis of a valid order in strict compliance with the mandatory provision of Section 5A(1). 135. From the above discussion, we hold that (1) as the salutary legal requirement of disclosing the reasons for according the permission is not complied with; (2) as the prosecution is not satisfactorily explaining the circumstances which impelled the S.P. to pass the order directing the SHO to investigate the case; (3) as the said direction manifestly seems to have been granted mechanically and in a v....
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....lowing the malfeasance and misfeasance of the former Government to go un-noticed, un-rectified and the offenders unpunished. According to them there is absolutely no material for holding that there was any campaign of vilification for political gain based on personal animus by the successor Government as against the outgoing Government, particularly when the criminal proceedings are initiated by an individual. 138. To buttress their submission, they relied on the following decisions dealing with similar contentions attacking the institution of criminal proceedings characterising them as the outcome of political vendetta. Those observations being P.V. Jagannath Rao and Ors. v. State of Orissa and Ors. [1968] 3 SCR 789 ; Krishna Ballabh Sahay and Ors. v. Commissioner of Enquiry and Ors. 1969 CriLJ 520 ; Sheonandan Paswan v. State of Bihar and Ors. 1983 CriLJ 348 ; Sheonandan Pawan v. State of Bihar and Ors. 1987 CriLJ 793 and A.R. Antulay v. R.S. Nayak and Anr. 1988 CriLJ 1661 . 139. It would be appropriate to refer to the observation made by this Court in two of the above decisions. 140. In Krishna Ballabh Sahay's case at page 393, Hidayatullah, C.J. speaking for the Co....
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....nformation Report. We do not like to make any more comment except saying that as we have pointed out in our exordial note, in our democratic polity where the 'Rule of Law' regions no one-however highly placed he may be-can claim immunity, much-less absolute immunity from the Law, but he is always under the Law. 144. We set aside the judgment of the High Court quashing the First Information Report as not being legally and factually sustainable in law for the reasons aforementioned; but, however, we quash the commencement as well as the entire investigation, if any, so far done for the reasons given by us in the instant judgment on the ground that the third appellant (SHO) is not clothed with valid legal authority to take up the investigation and proceed with the same within the meaning of Section 5A(1) of the Prevention of Corruption Act as indicated in this judgment. Further we set aside the order of the High Court awarding costs with a direction that the said costs is payable to the first respondent (Ch. Bhajan Lal) by the second respondent (Dharam Pal). 145. In the result, the appeal is disposed of accordingly but at the same time giving liberty to the State Governm....
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....nizable, the case shall be deemed to be a cognizable case notwithstanding that the other offences are non-cognizable and, therefore, under such circumstances the police officers can investigate such offences with the same powers as he has while investigating a cognizable offence. [279H; 280A-B] 4. The core of the Sections 156, 157 and 159 of the Code of Criminal Procedure is that if a police officer has reason to suspect the commission of a cognizable offence, he must either proceed with the investigation or cause an investigation to be proceeded with by his subordinate; that in a case where the police officer sees no sufficient ground for investigation, he can dispense with the investigation altogether; that the field of investigation of any cognizable offence is exclusively within the domain of the investigation agencies over which the Courts cannot have control and have no power to stiffle or impinge upon the proceedings in the investigation so long as the investigation proceeds in compliance with the provisions relating to investigation and that it is only in a case wherein a police officer decides not to investigate an offence, the concerned Magistrate can intervene and eit....
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....e cognizable offences is legitimately exercised in strict compliance with the provisions falling under Chapter XII of the Code and the Courts are not justified in obliterating the track of investigation when the investigating agencies are well within their legal bounds. A noticeable feature of the scheme under Chapter XIV of the Code is that a Magistrate is kept in the picture at all stages of the police investigation but he is not authorised to interfere with the actual investigation or to direct the police how that investigation is to be conducted. But if a police officer transgresses the circumscribed limits and improperly and illegally exercises his investigatory powers in breach of any statutory provision causing serious prejudice to the personal liberty and also property of a citizen, then the Court, on being approached by the person aggrieved for the redress of any grievance has to consider the nature and extent of the breach and pass appropriate orders as may be called for without leaving the citizens to the mercy of police echelons since human dignity is a dear value of our Constitution. No one can demand absolute immunity even if he is wrong and claim unquestionable right....
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....nflexible guide myriad kinds of cases wherein such power should be exercised: (a) where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused; (b) where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code; (c) where the uncontroverted allegations made in the FIR or 'complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused; (d) where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code; (e) where the allegations made in the FIR or complaint are so absurd and inherently im....
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....entire matter is only at a premature stage and the investigation has not proceeded with except some preliminary effort taken on the date of the registration of the case. The evidence has to be gathered after a thorough investigation and placed before the Court on the basis of which alone the Court can come to a conclusion one way or the other on the plea of mala fides. If the allegations are bereft of truth and made maliciously, the investigation will say so. At this stage, when there are only allegations and recriminations but no evidence, this Court cannot anticipate the result of the investigation and render a finding on the question of mala fides on the materials at present avail-. able. Therefore, it cannot be said that the complaint should be thrown overboard on the mere unsubstantiated plea of mala fides. Even assuming that the complainant has laid the complaint only on account of his personal animosity that, by itself, will not be a ground to discard the complaint containing serious allegations which have to be tested and weighed after the evidence is collected. [307G-H; 308A-D] 73 9.2. The dominant purpose of registration of the case and the intended follow up action ar....
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....sh v. Bhagwant Kishore Joshi, [1964] 3 SCR 71; relied on. 11.1. A police officer not below the rank of an Inspector of Police authorised by the State Government in terms of the First proviso can take up the investigation of an offence referred to in clause (e) of Section 5(1) of the Prevention of Corruption Act, only on a separate and independent order of a police officer not below the rank of a Superintendent of Police. A strict compliance of the second proviso is an additional legal requirement to that of the first proviso for conferring a valid authority on a police officer not below the rank of an Inspector of Police to investigate an offence falling under clause (e) of Section 5(1) of the Act. This is clearly spelt out from the expression "further provided" occurring in the second proviso. Thus, investigation by the designated Police Officers is the rule and investigation by an officer of a lower rank is an exception. [311H; 312A-B] 11.2. The granting of permission under Section 5A of the Prevention of Corruption Act authorising an officer of lower rank to conduct the investigation is not to be treated by a Magistrate as a mere matter of routine, but it is an exercise of....