TaxTMI 
TaxTMI 
2006 (11) TMI 678
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....Ajay K. Aggarwal, Adv. Party-in-Perso JUDGMENT S.H. Kapadia, J. 1. Delay condoned in I.A. No. 443 in I.A. No. 431 in W.P. (C) No. 13381/84. 2. A purported vertical difference of opinion in the administrative hierarchy in CBI between the team of investigating officers and the law officers on one hand and Director of Prosecution on the other hand on the question as to whether there exists adequate evidence for judicial scrutiny in the case of criminal misconduct concerning Taj Heritage Corridor Project involving 12 accused including former Chief Minister has resulted in the legal stalemate which warrants interpretation of Section 173(2) Cr. PC. BACKGROUND FACTS: 3. On 25.3.2003, the Uttar Pradesh Government started a project known as Taj Heritage Corridor Project (hereinafter referred to as "the project") to divert the Yamuna and to reclaim 75 acres between Agra Fort and the Taj and use the reclaimed land for constructing food plazas, shops and amusement activities in terms of development of Heritage Corridor for Taj Trapezium Zone (hereinafter referred to as the "TTZ") at Agra. This led to the filing of an I.A. No. 387 in Civil Writ Petition No. 13381/84 pending in....
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....bsequently tampered with the file and made interpolations in the Government records with an objective to cover up the fact that he had sanctioned Rs. 20 crores on 21/05/2003. (Ref. Para 3.1.E.40 (1 and 2) page 87). 19. Shri Siddiqui and Dr. V.K. Gupta, the present Secretary, Environment, U.P. pressurized Shri Rajendra, Prasad, Under Secretary, Environment Department, U.P. who also tampered with the file and made interpolations to cover the fact that the Minister had sanctioned Rs. 20 crores. (Ref. Para 3.1.E.37, page 86). 20. Shri K.C. Mishra, Secretary, Environment and Forest Government of India tampered with the file and made interpolations in Government records in order to cover up his omissions of not approving the proposals of his Joint Secretary and Special Secretary for writing to the State Government for a report and to ask them to carry out work only after necessary approvals and clearances. He obscured some portions of the notes dated 21/10/2002 and 08/05/2003 of Dr. Saroj, Additional Director, Ministry of Environment and Forest so as to show that he was not a part of the decision making and had not shown his consent to the proposed project. (Ref. Para 3....
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.... the statement of the former Chief Minister which CBI had collected during investigation under RC.18. At that stage, time was sought by the CBI on the ground that investigation into RC.18 was nearing completion and that CBI was awaiting legal scrutiny of the matter. Therefore, this Court adjourned the matter stating that the second disciplinary enquiry against Shri Punia arising out of CBI note II stands deferred until availability of the statement of the former Chief Minister of the State. That statement was ordered to be given to the State Government within three weeks. It was further ordered that, if within three weeks CBI failed to make available the said statement then the State Government will proceed with the initiation of disciplinary enquiry against Shri Punia on the basis of the material available. Accordingly, this Court adjourned the matter stating that after legal scrutiny the report shall be submitted before this Court. In the meantime, CBI submitted its report with detailed Annexures running into hundreds of pages. 8. By order dated 14.3.2005 in I.A. No. 431 in Writ Petition (Civil) No. 13381/84, since the report of CBI was voluminous, this Court after going th....
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....ed offender, collection of evidence relating to the commission of the offence which may consist of the examination of various persons, the search and seizure and, lastly, formation of opinion as to whether on the material collected there is a case to place the accused before a Magistrate for trial, and if so, taking the necessary steps for the same by the filing of a charge-sheet under Section 173 Cr. PC. Learned Counsel submitted that the final step in the investigation, namely, formation of the opinion is to be of the officer in charge of the police station. This authority cannot be delegated although a provision entitling superior officers to supervise or participate is there under Sections 158 and 173(3) Cr. PC. Learned Counsel urged that the officer in charge of the police station or the investigating officer is the sole person who has to form the opinion under Section 173 Cr. PC and file the police report. In this connection, learned Counsel pointed out that in this case Shri D.C. Dwivedi, Deputy Superintendent of Police, CBI, Anti Corruption Bureau, Lucknow was the I.O. He had filed the F.I.R. with thirteen sheets attached to it, registering a regular case after series of pr....
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....he police station. Learned Counsel, therefore, submitted that in a Supreme Court monitored investigation the S.P. has to file his report before the Supreme Court only and not before the entire hierarchy of CBI whose only role is to supervise investigation. This hierarchy of CBI, according to the learned Counsel, cannot make the S.P. to change his opinion. They cannot substitute the opinion of the S.P. with their own opinion. Learned Counsel further contend that, in a Supreme Court monitored investigation even where the report of the S.P. is a closure report and the Director, CBI and Attorney General agree with the opinion of the S. P., still it is the duty of the CBI to place the entire material before the Supreme Court and it is for the Court to examine and be satisfied that the authorities have reasonably come to such conclusion. It was next urged that the Director of Prosecution in the CBI has no role to play at the stage of investigation which includes formation of an opinion by the S.P. 12. Shri Rao, learned senior counsel on behalf of the CVC submitted that pursuant to the directions of the Supreme Court dated 14.3.2005 CVC had examined the records of CBI made available....
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....e present case, we are still at the stage of investigation and unless an extraordinary case of gross abuse of power is made out, no interference is called for under Article 32 of the Constitution. Learned Counsel further submitted that, in the present case, CVC had no role to play, particularly since the case pertains to conduct of the officers who are the employees of the State Government. Learned Counsel submitted that public servants serving in connection with affairs of the State Government fell outside the powers of CVC. Learned Counsel submitted that, in any event, CVC had no power to direct the manner in which CBI will conclude the proceedings. Learned Counsel submitted that the opinion as to whether the case is made out for judicial scrutiny or not has to be the decision of CBI and unless there is gross abuse of power this Court should not intervene in the field of investigation under Article 32 of the Constitution. Learned Counsel urged that, in the present case, there is no such gross abuse of power made out, and, therefore, this Court should not interfere under Article 32 of the Constitution. ISSUE: 16. The key issue which arises for determination in this case is: ....
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.... officer has to report the result of the investigation to the officer in charge of the police station. If, upon the completion of the investigation it appears to the officer in charge of the police station that there is no sufficient evidence, he may decide to release the suspected accused. If, it appears to him that there is sufficient evidence or reasonable ground to place the accused on trial, he has to take necessary steps under Section 170 of the Code. In either case, on completion of the investigation he has to submit a report to the Magistrate under Section 173 of the Code in the prescribed form. Thus, under the Code, investigation consists of proceeding to the spot, ascertainment of the facts and circumstances of the case, discovery and arrest of the suspected offender, collection of evidence and formation of the opinion as to whether on the material collected there is a case to place the accused before a Magistrate for trial, and if so, taking the necessary steps for the same by the filing of a charge-sheet under Section 173. The scheme of the Code shows that while it is permissible for an officer in charge of a police station to depute some subordinate officer to conduct ....
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....he police, after further investigation submits a charge-sheet, the Magistrate may follow the procedure where the charge-sheet under Section 170 is filed; but if the police are still of the opinion that there was no sufficient evidence against the accused, the Magistrate may or may not agree with it. Where he agrees, the case against the accused is closed. Where he disagrees and forms an opinion that the facts mentioned in the report constitute an offence, he can take cognizance under Section 190(1)(c). But the Magistrate cannot direct the police to submit a charge-sheet, because the submission of the report depends entirely upon the opinion formed by the police and not on the opinion of the Magistrate. If the Magistrate disagrees with the report of the police he can take cognizance of the offence under Section 190(1)(a) or (c), but, he cannot compel the police to form a particular opinion on investigation and submit a report according to such opinion. This judgment shows the importance of the opinion to be formed by the officer in charge of the police station. The opinion of the officer in charge of the police station is the basis of the report. Even a competent Magistrate canno....
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....l decision would not be taken by the Director himself or by the Director merely on the opinion of Legal Department of the CBI, but the matter would be decided according to the opinion of the Attorney General of India for the purpose of investigation and filing of the charge-sheet against any such individual. In that event, the opinion would be sought from the Attorney General after making available to him of the opinions expressed on the subject by the persons associated with the investigation as a part of the materials. We quote hereinbelow paras 13 and 14 of the said judgment: 13. We make it clear that in case of any difference of opinion between the officers of the CBI in relation to the implication of any individual in the crimes or any other matter relating to the investigation, the final decision in the matter would not be taken by the Director, CBI, himself or by him merely on the opinion of the Legal Department of the CBI; and in such a situation, the matter would be determined according to the opinion of the Attorney General of India for the purpose of the investigation and filing of the charge-sheet against any such individual. In that event, the opinion would be....
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....e of opinion between the officers concerned. This Court further observed in that case that the High Court was only required to ensure that the Director, CBI did not close any investigation based only upon his individual opinion, if there be any difference of opinion between the Director, CBI and the other officers concerned in the CBI. 21. In Vineet Narain and Ors. v. Union of India and Anr. 1998CriLJ1208 certain measures by way of checks and balances were recommended by this Court to insulate CBI from extraneous influence of any kind. It was observed that, unless a proper investigation is made followed by a proper prosecution the rule of law will lose significance. Accordingly, directions were issued till such time as the legislature steps in by way of proper legislation. One of the points which arose for determination in that case was the significance of the word "superintendence" in Section 4 of the Delhi Special Police Establishment Act, 1946. It was held that the overall superintendence of CBI vests in the Central Government and, therefore, by virtue of Section 3 of that Act the power vested in the Central Government to specify the offences or classes of offences which are ....
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.... Magistrate and this will include an opinion regarding the fact whether any offence appears to have been committed and, if so, by whom, as provided by Clause (d) of Sub-section (2)(i) of Section 173 Cr. PC. These provisions are applicable even in cases under the P.C. Act, 1988 vide Section 22 thereof. The Magistrate is not bound to accept the final report submitted by the police and if he feels that the evidence and the material collected during the investigation justify prosecution of the accused, he may not accept that report and take cognizance of the offence and summon the accused, which would not constitute interference with the investigation as such. In the said judgment, it was further observed, relying upon the judgment in Vineet Narain6 (supra), that once the jurisdiction is conferred on CBI to investigate an offence by virtue of notification under Section 3 of the Act, the powers of investigation are governed by the statutory provisions and they cannot be curtained by any executive instruction issued under Section 4(1) of the Delhi Special Police Establishment Act, 1946. 23. Analyses of the above judgments show that there is a clear-cut and well-demarcated sphere of ac....
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....tion 170. As observed by this Court in Satya Narain Musadi and Ors. v. State of Bihar 1980CriLJ227 ; that the statutory requirement of the report under Section 173(2) would be complied with if the various details prescribed therein are included in the report. This report is an intimation to the magistrate that upon investigation into a cognizable offence the investigating officer has been able to procure sufficient evidence for the court to inquire into the offence and the necessary information is being sent to the court. In fact, the report under Section 173(2) purports to be an opinion of the investigating officer that as far as he is concerned he has been able to procure sufficient material for the trial of the accused by the court. The report is complete if it is accompanied with all the documents and statements of witnesses as required by Section 175(5). Nothing more need be stated in the report of the Investigating Officer. It is also not necessary that all the details of the offence must be stated. The details of the offence are required to be proved to bring home the guilt to the accused at a later stage i.e. in the course of the trial of the case by adducing acceptable evi....
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....then required to base its conclusion solely on the evidence adduced during the trial; and it cannot rely on the investigation or the result thereof. Since this is an elementary principle of criminal law, we need not dilate on this point any further. (emphasis supplied) 26. In the case of R. Sarala v. T.S. Velu and Ors. 2000CriLJ2453 the facts were as follows. A young bride committed suicide within seven months of her marriage. An inquiry under Section 174(3) Cr.PC was held. The Magistrate conducted the inquiry and submitted a report holding that due to mental restlessness she had committed suicide and no one was responsible. He further opined that her death was not due to dowry demand. However, the police continued with the investigation and submitted a challan against the husband of the deceased and his mother for the offence under Sections 304 B and 498A IPC. The father of the deceased was not satisfied with the challan as the sister-in-law and the father-in-law were not arraigned as accused. Therefore, the deceased's father moved the High Court under Section 482Cr.PC. A Single Judge of the High Court directed that the papers be placed before the Public Prosecutor....
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....e of the police station is the S.P. In this connection, we quote hereinbelow the CBI Manual, which though not binding on this Court in Supreme Court monitored cases, nonetheless, the said Manual throws light on the controversy in hand. We quote Clauses 6.1 and 19.15 of the CBI (Crime) Manual-2005 hereinbelow: DIRECTOR, CBI-Matters to be shown to DCBI 6.1 Director, CBI should be informed of all important matters and his advice or instructions obtained wherever this is considered necessary by Special Director, Additional Director, Joint Directors, DIsG, Director of Prosecution, Director, CFSL and other Senior Officers. In particular, the following matters should be referred to him. 19.15 SP's Report is a very important document and should be prepared personally by the SP in the prescribed format. The concerned Departments/ Government Undertakings assess the CBI investigation of their cases solely on the basis of the SP's Reports. The report should be grammatically correct, clear and unambiguous. The report should be brief without repetitions and should contain all necessary data. The internal differences of opinion among CBI Officers should not find....
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....o be of the officer in charge of the police station. One fails to understand why an opinion of Sr. P.P. had been taken in the present case. He is not a member of the hierarchy. The S.P. is not legally obliged to take his opinion. In the circumstances, when there was no difference of opinion in the concerned team, the question of seeking opinion of the Attorney General did not arise. Lastly, even under Clause 19.15 of the CBI Manual it is expressly stated that the report of the S.P. should be prepared personally by the S.P. and that the internal differences of opinion among CBI Officers should not find place in the SP's Report. As stated above, CBI was required to follow the procedure in Cr.PC. The result of the investigation by the police is not legal evidence. Keeping in mind the scheme of Sections 168, 169, 170 and 173 of the Cr.PC, in the facts and circumstances of this case, we direct the entire material collected by CBI along with the report of the S.P. to be placed before the concerned court/ Special Judge in terms of Section 173(2) Cr.PC. The decision to accept or reject the report of the S.P. shall be that of the concerned court/ Special Judge, who will decide the matte....
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....t by way of PIL for failure to perform their statutory duties. If this continues, a day might come when the rule of law will stand reduced to "a rope of sand". The above Interlocutory applications are accordingly disposed of. Concurring Judgment S.B. Sinha, J. 33. This Court entrusted investigation to the Central Bureau of Investigation (CBI) which was constituted under the Delhi Special Police Establishment Act, 1946 (for short "the Act"). It was enacted to make provision for the constitution of a special police force in Delhi for investigation of certain offences in the Union territories for the superintendence and administration of the said force and for extension to other of the powers and jurisdiction of members of the said force in regard to the investigation of the said offences. 34. The said Act was enacted to make provision for the constitution of a special police force in Delhi for the investigation of certain offences in the Union territories for the superintendence and administration of the said force and for extension to other of the powers and jurisdiction of members of the said force in regard to the investigation of the said offences. Section 2 empowe....
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.... is to maintain his case diary in terms of Section 172 of the Code of Criminal Procedure. [See State of Bihar and Anr. v. P.P. Sharma, IAS and Anr. 1991CriLJ1438 ]. It is beyond any doubt or dispute that investigation of an offence is the field exclusively reserved for the police. It may be subject to supervision of higher ranking officer (s) but the court's jurisdiction to have control in this behalf is beyond any controversy. 37. In Sheonandan Paswan v. State of Bihar and Ors. 1987CriLJ793 , this Court opined: .In fact, in our constitutional scheme, conferment of such absolute and uncanalised discretion would be violative of the equality clause of the Constitution. The Magistrate is therefore given the power to structure and control the discretion of the police. If the Magistrate finds from the report made by the police either on initial investigation or on further investigation directed by the Magistrate, that prima facie an offence appears to have been committed, the Magistrate is empowered to take cognizance of the offence notwithstanding the contrary opinion of the police and equally if the Magistrate forms an opinion that on the facts set out in the report no....