TaxTMI 
TaxTMI 
2008 (10) TMI 692
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....)Nos. 25226-25227 of 2005 were working as Deputy Directors in the Department of Rural Development and Panchayats, Government of Punjab at the relevant time. 3. The State of Punjab had enacted the Punjab Panchayati Raj Act, 1994. 4. An advertisement for recruitment of 190 Panchayat Secretaries was issued in the year 1992 for which written test was held in the year 1994 ; however, the posts could not be filled. In the meantime 545 Panchayat Secretaries were appointed on ad hoc basis by the State. 5. One of the applicants, who applied for the post in response to the advertisement of 190 posts, challenged the said ad hoc appointments by way of a writ petition which was marked as C.W.P. No. 9835 of 1996, titled Palvinder Singh v. State of Punjab, which was disposed of by a Division Bench of the Court on 20th September, 1996 by directing inter alia the completion of the selection process as well as for available posts with the department. Selection against 190 posts of Panchayat Secretaries, for which written test had already been held was to be finalized on or before 20th November, 1996. 6. Two more advertisements were issued; first on 17/18th September, 1996 for filling up ....
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....not below the rank of Secretary to the Government. After conducting the probe, the report be produced before the Court within a period of 8 weeks. The desirability of issuing other directions would be considered by the Court after examining the report. The nature of litigation, therefore, was changed from private interest litigation to public interest litigation. 9. In terms of the said order an enquiry was made by one Shri P. Ram, the then Financial Commissioner, Rural Development and Panchayat Department. He was of the opinion that the entire selection process was required to be set aside. A recommendation was made that an investigation into the whole affair be made by the Vigilance Department. 10. Pursuant thereto a first information report was lodged by the Vigilance Department on 14th June, 2002 against several persons including appellant, Nirmal Singh Kahlon, for alleged commission of offences under Sections 420, 467, 468, 120B of the Indian Penal Code and Sections 13(1)(d)(e) and 13(2) of the Prevention of Corruption Act, 1988, the material portion whereof reads as under : It has come to knowledge that Sh. N.S. Kahlon Ex. Minister Rural Department and Panch....
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....ver to the Central Bureau of Investigation. 13. On or about 16th November, 2002 Secretary to the Government of Punjab, Department of Rural Development issued a letter addressed to the Chief Secretary to the Government of Punjab, opining that the case should be investigated by the Crime Branch of the State Police. 14. In view of the aforementioned report the High Court, by an order dated 31st October, 2002, directed the Additional Advocate General to obtain instructions as to what action the Government has been contemplating on the enquiry report. It was observed : The State Government will have the option of suo moto making further investigation by removing all those named in the report from their respective offices so as to ensure that the further enquiry is not influenced by any of those officers. It may also order a CBI probe into the entire scandal involving appointment of Panchayat Secretaries. 15. On 1st November, 2002 the State Government made a statement that a decision had been taken to handover the investigation in regard to the scandal involving selection of Panchayat Secretaries to the Central Bureau of Investigation and also to take action against the....
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....and of the Central Bureau of Investigation as communicated to the State. 17. Despite the same no notification was issued by the State of Punjab handing over the investigation to the Central Bureau of Investigation. Proceedings sheet dated 30th April, 2003 inter alia reads : In regard to one of the submissions made by Shri Rajan Gupta, Learned Counsel that no notification has been made by the Punjab Government handing over the investigation to the CBI, we hope and trust that necessary notification in that regard will be published by the Punjab Government within couple of days. 18. On or about 2nd May, 2003 the State Government issued a Notification in terms of Section 6 of the Delhi Special Police Establishment Act, 1946 (for short the `Act'), the relevant portion whereof reads as under: And whereas during the course of arguments, after considering the reply of the CBI and the arguments of the Standing Counsel for the CBI on 31.4.2003, Hon'ble Punjab and Haryana High Court directed the State Government to issue necessary Notification well before the next date of hearing i.e. 7.5.2003 to enable the CBI to take into hands the investigation of the recrui....
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....h. The Central Bureau of Investigation thereafter registered a first information report on 26th June, 2003. 21. Appellants filed applications which were marked as CM Nos. 6907 - 6908 of 2005 and 18993-18994 for recalling of the orders dated 30th April, 2003 and 7th May, 2003; the prayers made wherein read as under : (a) Recall the orders dated 30.4.2003 (Annexure C-4) and orders dated 7.5.2003 (Annexure C-6) which have resulted in the notification dated 2nd May, 2003 of the State Government hading over the investigation to C.B.I. and the second FIR No. 8(s) of 2003 dated 26.6.2003. (b) set aside and quash the notification of the Government dated 2nd May, 2003 (Annexure C-6) and the consequential second F.I.R. No. 8 (s) of 2003 dated 26.6.2003. By reason of the impugned judgment dated 4th October, 2005, the said applications have been dismissed. 22. This Court on 12th December, 2005 while issuing notice passed the following interim order : The C.B.I. may continue with the investigation, but the final report shall not be filed till the next date of hearing 23. Mr. P.P. Rao and Mr. Raju Ramachandran, learned senior counsel, appearing on behalf of....
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....he High Court in its impugned judgment, although accepted that a second first information report on the same set of allegations, (not being a counter case) cannot be allowed but did not advert to the legal implication thereof. 9) After the submission of the report under Sub-section (2) of Section 173 of the Code, a further investigation by another agency is impermissible in law. 10) The High Court committed a serious error in opining that the first information report has been lodged only for the purpose of further investigation arising out of the first information report lodged by the Vigilance Department. 11) The Investigating Officer appointed by the Central Bureau of Investigation being not superior in the rank to the police officers of the State Government who had investigated and submitted the report on 19 th September, 2002, Section 36 of the Code whereupon reliance has been placed by the State is inapplicable inasmuch the expression `superior police officer' would mean an officer superior in the same hierarchy i.e. in the State Police and not an officer of the Central Bureau of Investigation. 12) The Notification issued by the State pe....
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....f Investigation. 4) The purport and object of inserting Sub-section (8) of Section 173, in the Code, as would appear from the report of the Law Commission being laudable in nature, the same deserves liberal interpretation. 5) The earlier first information report lodged by the Vigilance Department was general in character while the later First Information Report being in respect of the scam relating to the appointment of Panchayat Secretaries is the real first information report. 26. A criminal proceeding is initiated on the basis of lodged F.I.R. Commencement of investigation in the matter may be preceded by a preliminary inquiry. The term `investigation' has been defined in Section 2(h) of the Code to include all the proceedings under the Code for collection of evidence conducted by a police officer or by any person (other than a Magistrate) who is authorized by a Magistrate in this behalf. `Officer in charge of a police station' is defined in Section 2(o) of the Code to mean `officer in charge of a police station' includes, when the officer in charge of the police station is absent from the station-house or unable from illness or other cause....
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....ation Report lodged by the Vigilance Department of the State and the one lodged by the CBI related to the same cause of action is the question? 31. We would proceed on the basis that on the self same cause of action, two First Information Reports would not be maintainable. A bare perusal of the First Information Report dated 14.6.2002 lodged at the instance of the Vigilance Officer shows that the same was general in nature. One of the several allegations contained therein referred to was that irregularities have been committed in the matter of recruitment of Panchayat Secretaries. No detail, however, was furnished. All the persons involved were not named. What types of irregularities have been committed were not stated. 32. The High Court while entertaining the writ petition formed a prima facie opinion as regards the systematic commission of fraud. While dismissing the writ petition filed by the selected candidates, it initiated a suo motu public interest litigation. It was entitled to do so. The nature of jurisdiction exercised by the High Court, as is well known, in a private interest litigation and in a public interest litigation is different. Whereas in the latter it is ....
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....ask of the monitoring court would end the moment a charge-sheet was filed in respect of a particular investigation and that the ordinary processes of the law would then take over. Having regard to the direction in which the investigations were leading, we found it necessary to direct the CBI not to report the progress of the investigations to the person occupying the highest office in the political executive; this was done to eliminate any impression of bias or lack of fairness or objectivity and to maintain the credibility of the investigations. In short, the procedure adopted was of "continuing mandamus In P.P. Sharma, IAS and Anr. (supra) this Court held: 31. Finally, we are at a loss to understand as to why and on what reasoning the High Court assumed extraordinary jurisdiction under Article 226/227 of the Constitution of India at a stage when the Special Judge was seized of the matter. He had heard the arguments on the question of cognisance and had reserved the orders. The High Court did not even permit the Special Judge to pronounce the orders. 32. The Directors of the firm who are also accused persons in this case had approached the Rajasthan High Court....
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....zable offence in a State without the consent of the State Government stands referred to a larger Bench in State of W.B. v. Committee for Protection of Democratic Rights W.B. and Ors. (2006) 12 SCC 534, but then concededly the law as it stands recognizes such a power in the High Court. 37. It was not a case where investigation could be carried out in a slip- shod manner. The first FIR was lodged on 14.06.2002 as against individuals. It referred to the acts of omissions and commissions of the accused named therein. During his tenure as a former Minister, recruitments of various posts of Tax Collectors, Patwaris, Peons, Clerks were allegedly made by him by illegal means i.e. by taking heavy amount of money as bribe. Even those who were not eligible were allegedly selected. Allegations were also made in regard to filling up of the backlog vacancies in handicap category of Gram Sewaks. Appellant is said to have accepted heavy amount as bribe for transfers, appointments and promotions and, thus, accumulated movable and immovable assets which were said to be disproportionate to his known sources of income. 38. The High Court, however, was concerned only with appointment of Panchayat....
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....High Court dated 31.10.2002 assumes significance. By reason of the said order, the State Government was given two options, viz.: (i) to make further investigation by removing all those names in the report from their respective offices so as to ensure that further inquiry was not influenced by any of those officers; or (ii) to order a CBI probe into the entire scandal involving the appointment of Panchayat Secretaries. 43. It is in the aforementioned situation the State Government had taken a decision to hand over the investigation of the scandal involving selection of Panchayat Secretaries to the CBI. 44. An offence committed by an individual or two and an offence disclosed in a scandal involving a large number of officers from the lowest category to the highest category is distinct and different. In the first FIR although the provision of Section 120B of the Indian Penal Code was mentioned, no allegation of conspiracy had been made. As indicated hereinbefore, it centered round a large number of acts of omissions and commissions on the part of the appellant Kahlon alone, as would be evident from the following: By misusing his powers, he has made wro....
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....hich covered a smaller field of narrower dimensions. We are clear, in the present case, that the conspiracies which are the subject- matter of the two cases cannot be said to be identical though the conspiracy which is the subject-matter of the first case may, perhaps, be said to have turned out to be part of the conspiracy which is the subject-matter of the second case. As we mentioned earlier, when investigation commenced in FIR R.C. 4 of 1976, apart from the circumstance that the property involved was the same, the link between the conspiracy to cheat and to misappropriate and the conspiracy to dispose of the stolen property was not known. 12. The further connected questions arising for consideration are, what was the duty of the police on discovering that the conspiracy, which was the subject-matter of the earlier case, was part of a larger conspiracy, whether the police acted without jurisdiction in investigating or in continuing to investigate into the case and whether the Delhi Court acted illegally in taking cognizance of the case? 46. It may be true that in both the FIRs Kahlon was named. He was considered to be the prime accused. But, it is one thing to say that he act....
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....o authority to register a second FIR and number it as FIR No. 208. Of course the legal position is that there cannot be two FIRs against the same accused in respect of the same case. But when there are rival versions in respect of the same episode, they would normally take the shape of two different FIRs and investigation can be carried on under both of them by the same investigating agency. Even that apart, the report submitted to the court styling it as FIR No. 208 of 1998 need be considered as an information submitted to the court regarding the new discovery made by the police during investigation that persons not named in FIR No. 135 are the real culprits. To quash the said proceedings merely on the ground that final report had been laid in FIR No. 135 is, to say the least, too technical. The ultimate object of every investigation is to find out whether the offences alleged have been committed and, if so, who have committed it. Kari Choudhary (supra) should be read with Ram Lal Narang (supra). In State of A.P. v. A.S. Peter AIR2008SC1052 , this Court held: 16. Even in regard to an independent investigation undertaken by the police authorities, it was observed: Na....
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.... criminal proceedings were pending against them. The cases against them were that they along with some others entered into criminal conspiracies to obtain for themselves or for others iron and steel materials in the name of certain bogus firms and that they actually obtained quota certificates, on the strength of which some of the members of the conspiracy took delivery of quantities of iron and steel from the stock-holders of those articles. They were prosecuted under Sections 120B and 420 of the Indian Penal Code and Section 7 of the Essential Supplies (Temporary Powers) Act, 1947. The public servants were also charged with Section 5(2) of the Prevention of Corruption Act, 1947. Whereas investigations in respect of Section 5(2) of the Prevention of Corruption Act were required to be made by a police officer not below the rank of a Deputy Superintendent of Police without the order of a Magistrate of the First Class, investigations under other provisions were not. Therein, the FIRs were lodged in April and June, 1949 but permission for investigation as against the public servants by a police officer below the rank of Deputy Superintendent of Police was given in March and April, ....
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....SCC 292, a Three-Judge Bench of this Court held: 21. From the above it is clear that even in regard to a complaint arising out of a complaint on further investigation if it was found that there was a larger conspiracy than the one referred to in the previous complaint then a further investigation under the court culminating in another complaint is permissible. 53. If, in a situation of this nature, lodging of the second FIR was not impermissible in law, the main plank of submission of Mr. Rao that whereas in terms of Section 173(8) of the Code of Criminal Procedure further investigation is permissible, re-investigation is not, takes a back seat. 54. The question can be considered from another angle. If the State has the ultimate supervisory jurisdiction over an investigation for an offence and if it intends to hand over a further investigation even after filing of the chargesheet, it may do so. However, it appears from the records that those officers including the Chief Secretary who were dealing with the public interest litigation were not aware that the chargesheet had been filed in the earlier case. The State Government and the High Court had proceeded on the basi....
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....dia (b) Cabinet Ministers of Government of India/ Chief Ministers of State Governments or their equivalent (c) The State Governments (d) Supreme Court/ High Courts The CBI Manual having been framed by the Union of India, evidently, it has accepted that reference for investigation to the CBI may be made either by this Court or by the High Court. 58. Thus, even assuming that reference had been made by the State Government at the instance of the High Court, the same by itself would not render the investigation carried out by it to be wholly illegal and without jurisdiction as assuming that the reference had been made by the High Court in exercise of its power under Article 226 of the Constitution of India in a public interest litigation, the same would also be valid. 59. The second FIR, in our opinion, would be maintainable not only because there were different versions but when new discovery is made on factual foundations. Discoveries may be made by the police authorities at a subsequent stage. Discovery about a larger conspiracy can also surface in another proceeding, as for example, in a case of this nature. If the police authorities did not make....
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....e carried out by a central agency. The State in terms of the special statute, viz., the Act can always request the CBI to make an investigation / further investigation. The said power of the State is wholly unrestricted by Section 36 of the Act or otherwise. As a logical corollary if while making preliminary inquiry pursuant to the notification issued by the State in terms of Section 6 of the Act, the CBI comes to know of commission of other and further offence involving a larger conspiracy which required prosecution against a large number of persons who had not been proceeded against at all by the local police officers, we are of the opinion that even lodging of second FIR would not be a bar. 62. If lodging of the second FIR is legally permissible, only because the same has been done at the instance of the High Court could not lead this Court to arrive at a conclusion that its direction in that behalf was wholly without jurisdiction. It will bear repetition to state that law as it stands permits the High Court and this Court to direct investigation made by the CBI. As indicated hereinbefore, it is also recognised by the Central Government, as would appear from the provisions of....