TaxTMI 
TaxTMI 
2017 (3) TMI 1886
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....e said Regular Case by the CBI. 2. Petitioner No.1 is a former Union Minister - and also the present Chief Minister of the State of Himachal Pradesh. Petitioner No.2 is his wife. They are alleged to have acquired assets disproportionate to their known sources of income during the tenure of petitioner no.1 as a Union Minister of State from 28.05.2009 to 18.01.2011, and the Union Minister of Micro, Small and Medium Enterprises (MSME) from 19.01.2011 to 26.06.2012 in the Government of India i.e. from 28.05.2009 to 26.06.2012 (hereinafter 'the Check Period'). The said Regular Case has been registered against them and two others, by the CBI on 23.09.2015 on the basis of a Preliminary Enquiry PE AC-1 2015 A 0002 registered on 17.06.2015. 3. The petitioners' submissions are, primarily, twofold. Firstly, the petitioners submit that the CBI held a Preliminary Enquiry vide PE AC1 2012 A 0007 dated 19.10.2012 and closed it. The same is referred to as the First Preliminary Enquiry (First PE). The CBI, thereafter, started another Preliminary Enquiry allegedly on the same subject matter - registered as PE AC-1 2015 A0002 on 17.06.2015, referred to as the Second Preliminary Enquiry (Second ....
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....Bureau of Investigation Manual? 3. Whether registration of FIR No. RCAC-1 2015 A-004 dated 23.9.2015 violates the dicta of Hon'ble Supreme Court in Ms. Mayawati vs. Union of India and others, (2012)8 SCC 106? 4. Whether it was mandatory for the Central Bureau of Investigation to seek the consent of the State Government as per section 6 of the Delhi Special Police Establishment Act at the time of registration of FIR and its subsequent investigation and raiding the residential premises of the petitioners and non conforming to mandatory provisions of section 6 of the Delhi Special Police Establishment Act vitiates the investigation as well as raid in the official premises of the petitioners? 5. Whether the raid at the residential premises of the sitting Chief Minister without conforming to section 6 of the Delhi Special Police Establishment Act would dilute the basic federal structure of the Constitution of India? 6. Whether the FIR No. RCAC-1 2015 A-004 could be registered when the Income Tax Department and this Court is seized of the matter? 7. Whether the Central Bureau of Investigation has complied with the mandatory provisions of Code ....
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....nch, or by a Division Bench, since the initial order in the writ petition - as originally filed, was passed by a Division Bench of the Himachal Pradesh High Court. Hon'ble the Chief Justice directed the matter to be placed before a learned Single Judge and, consequently, the same was again listed before the learned Single Judge on 06.04.2016. On that day, the Court considered the application moved by the CBI i.e. Crl. M.A. No. 3806/2016 to seek variation of the interim arrangement operating in terms of the order passed by the Division Bench of the Himachal Pradesh High Court. 10. The learned Single Judge, after taking note of the submissions made on behalf of the petitioners that they are ready and willing to join and cooperate in the investigation as and when required, directed that the petitioners shall join the investigation. Premised on the assurance already given on behalf of the CBI before the High Court of Himachal Pradesh - that there is no proposal to arrest the petitioners, the Court again reiterated that the petitioners will not be arrested as and when they appear before the investigating agency for the purpose of joining the investigation. 11. The writ petition wa....
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....er states "When the petitioner heard about this from his counsel, he was a bit perturbed, but he raised no objection to the matter being heard by your Lordship in spite of some serious anxiety which kept oppressing the petitioner. This anxiety is the result of the following circumstances, in brief .... .... ...." 15. The circumstance mentioned by the petitioner no. 1 is that the learned Attorney General, Mr. Mukul Rohatgi advised the moving of the transfer petition before the Supreme Court, and also appeared before the Supreme Court on behalf of the CBI. The petitioner no. 1 states that the BJP Government was hostile towards the petitioner no. 1 even when it was in power between 1998 to 2004 - when Mr. Mukul Rohatgi was an Additional Solicitor General. The petitioner no. 1 states that the BJP Government is responsible for engineering the present case against the petitioners. The petitioner no. 1 states that during the hearings - which spanned 25 dates, the petitioners and their counsel "were left with the impression that the submissions of the Petitioners Counsel were being treated with contempt as distinguished from those of the other side. The reports which the Petitioners rec....
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....t is listed before me as per roster. But, in the present case, the learned senior counsels representing the petitioners never raised the said issue at any stage of the hearing, and proceeded to advance their submissions (there were two senior counsels representing the petitioners' case, namely, Mr. Dayan Krishnan and Mr. Kapil Sibal) without even a whisper on the said aspect. 19. The learned senior counsels and the law officers representing the State of Himachal Pradesh and the CBI were given ample time to advance their submissions to their satisfaction, and the order sheet bares out the fact that they were accommodated according to their convenience on several occasions. It is for this reason that the hearing - which commenced on 15.09.2016 (after granting two adjournments to the petitioners), got concluded only on 15.12.2016. 20. It appears that the petitioners, themselves, were not personally present when the hearings proceeded before the Court. Invariably, one or the other learned senior counsels viz. Mr. Dayan Krishnan, and/or Mr. Kapil Sibal were present. When submissions were advanced on behalf of the State of Himachal Pradesh by the learned Advocate General, or by the....
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....ew that if I were to now recuse from the case which has been fully argued before me, and wherein I had reserved judgment on 15.12.2016, I would be guilty of shirking my responsibility as a Judge. It would also delay the disposal of the case. Delay in the disposal of the petition suits the petitioners, who are enjoying interim protection against arrest and filing of charge sheet in the case. 23. At this stage, I consider it appropriate to notice the recent decision of the Supreme Court in Supreme Court Advocates-On-Record Association and Another vs. Union of India (2016) 5 SCC 808, which deals with the aspect of recusal by a judge from a case. I draw support from this decision for my view on this issue. This case relates to a plea for recusal raised by Mr. Fali S. Nariman, Senior Advocate appearing for the petitioners during the course of the hearing before the Supreme Court in the case involving the determination of the constitutional validity of the Constitution (99th Amendment) Act, 2015 and the National Judicial Appointments Commission Act, 2014. The objection raised by the learned senior counsel was that it was inappropriate for Mr. Justice J.S.Khehar (as His Lordship then w....
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....lia, observed: "... ... ... it is a well-established principle of law that an objection based on bias of the adjudicator can be waived. Courts generally did not entertain such objection raised belatedly by the aggrieved party: "The right to object to a disqualified adjudicator may be waived, and this may be so even where the disqualification is statutory. [Wakefield Local Board of Health v. West Riding and Grimsby Railway Co., (1865) LR 1 QB 84] The court normally insists that the objection shall be taken as soon as the party prejudiced knows the facts which entitle him to object. If, after he or his advisors know of the disqualification, they let the proceedings continue without protest, they are held to have waived their objection and the determination cannot be challenged." [R. v. Byles, ex p Hollidge, (1912) 77 JP 40; R. v. Nailsworth Licensing Justices, ex p Bird, (1953) 1 WLR 1046; R. v. Lilydale Magistrates Court, ex p Ciccone, 1973 VR 122; and see R. v. Antrim Justices, (1895) 2 IR 603; Tolputt (H.) & Co. Ltd. v. Mole, (1911) 1 KB 836 (CA); Corrigan v. Irish Land Commission, 1977 IR 317]" 25. Mr. Justice Khehar in his concurring opinion pointed out the ....
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....Judge hearing a matter should recuse, even though the prayer for recusal is found to be unjustified and unwarranted? Secondly, whether I would stand true to the oath of my office, if I recused from hearing the matters?" "57. ... ... ... In my considered view, the prayer for my recusal is not well founded. If I were to accede to the prayer for my recusal, I would be initiating a wrong practice, and laying down a wrong precedent. A Judge may recuse at his own, from a case entrusted to him by the Chief Justice. That would be a matter of his own choosing. But recusal at the asking of a litigating party, unless justified, must never to be acceded to. For that would give the impression, of the Judge had been scared out of the case, just by the force of the objection. A Judge before he assumes his office, takes an oath to discharge his duties without fear or favour. He would breach his oath of office, if he accepts a prayer for recusal, unless justified. It is my duty to discharge my responsibility with absolute earnestness and sincerity. It is my duty to abide by my oath of office to uphold the Constitution and the laws. My decision to continue to be a part of the Bench, f....
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....o administer justice without fear or favour, affection or ill will and his ability to carry out the oath by reason of his training and experience whereby he is in a position to disabuse his mind of any irrelevant personal belief or predisposition or unwarranted apprehensions of his image in public or difficulty in deciding a controversial issue particularly when the same is highly sensitive." 31. In my view, if the aforesaid test were to be applied, it cannot be said that the petitioners have any basis to have any reasonable apprehension that I would deal with this case with a bias against the petitioners. 32. The expression of apprehension of bias against the petitioners, on account of my relationship with Mr. Mukul Rohatgi, the learned Attorney General, carries with it the innuendo that: (a) Mr. Mukul Rohatgi, the learned Attorney General (who allegedly is inimical towards the petitioner no. 1 - though there is no established basis for it) would, in breach of his professional ethics as an Advocate, and my constitutional independence, speak to me about the present case. (b) That he would speak to me, so as to influence me in forming an opinion against the p....
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....even before the start of the hearing of the case. Accordingly, the prayer made by the petitioners that I recuse from the case is rejected. Background: 36. In November 2010, the Income Tax Authorities conducted raids at several offices of ISPAT Industries Ltd. (M/s IIL), wherein documents were allegedly seized in relation to cash transactions allegedly undertaken by the said company. Apparently, these documents revealed that members of M/s IIL had illegally paid amounts to officials of State Trading Corporation (STC). On receiving information from the Income Tax Authorities, the first PE was registered by the CBI on 19.10.2012 against unknown officials of State Trading Corporation and M/s IIL to enquire into the matters revealed from the discovery of documents seized during the aforesaid raids conducted by the Income Tax (Intelligence)-I, New Delhi on 30.11.2010. The first PE, in its material part, read as follows: "INFORMATION A source information has been received that Income Tax (Intelligence) - I, New Delhi, conducted a raid on the official premises of M/s Ispat Industries Limited and Group Companies (M/s IIL), room No. 312-317, Ashoka Hotel, Chanakya Pur....
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....shan, Advocate. It was also alleged that the petitioner no. 1 while serving as the Union Minster of Steel during 2009-2011 had invested his ill-gotten income through one Anand Chauhan - an agent of Life Insurance Corporation (LIC) in purchasing LIC policies in his name and in the name of his family members, and attempted to legitamise his ill-gotten income as agricultural income by filing revised income tax returns. 40. A Public Interest Litigation (PIL), titled, 'Common Cause Vs. UOI and others', vide WP(C) No. 7240 of 2013 ('Common Cause PIL') was filed before this Court, seeking a Writ of Mandamus directing the CBI and the Director General of Income Tax to initiate an investigation under the supervision of this Court into the charges of money laundering, corruption, possession of disproportionate assets, criminal misconduct etc. against the petitioner no. 1. In the said writ petition filed by Mr. Prashant Bhushan, he relied upon his allegations contained in his complaint dated 11.01.2013 to the CBI and CVC. He also urged that in order to explain his unaccounted wealth, petitioner no. 1 filed revised income tax returns for the assessment years 2009-10, 2010-11 and 2011-12 show....
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....e petitioner Common Cause, or of Mr. Prashant Bhushan, Advocate, discharged the petitioner therein and instead, appointed two learned counsels as Amicus Curiae to assist the Court in the matter. Thereafter, the matter was adjourned on three occasions i.e. 14.05.2015, 28.07.2015, and 06.08.2015. It appears that, in the meantime, the second PE came to be registered on 17.06.2015. This second PE dated 17.06.2015, pertained to fixing of an appropriate check period and accounting for the incomes, assets and expenditure of Shri Vir Bhadra Singh - petitioner no.1, and to examine whether, or not, a viable disproportionate assets (DA) case is made out against him during the period when he was a Union Minister in the Government of India. 46. The Second PE narrates that the First PE was registered on 19.10.2012 on the complaint of CVO, State Trading Corporation (STC) against the unknown officials of STC and M/s IIL and others. It records that the CVO, STC made the complaint in the light of report of Income Tax Authorities regarding recovery of computer print out from the office of M/s IIL, mentioning about alleged payments to different individuals including, STC officials. The Second PE al....
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....o have sold apples of this orchard mainly to M/s Universal Apple Associate (UAA), Parwanoo, Himachal Pradesh. According to him, he collected payments from M/s UAA in cash and then deposited the same in his bank accounts at PNB and HDFC. During the period 2009-10, this money was used by him to purchase LIC policies in the names of Shri Virbhadra Singh, his wife and son, in 2011-12, however, the sale proceeds were used for construction of house of Shri Vir Bhadra Singh at Rampur. No documentary evidence in support of the sale proceeds of the year 2011-12 could be made available by Shri Anand Chauhan or anyone else. d. Details of accounts of Srikhand orchard submitted by Shri Anand Chauhan for the period 2008-11 reflect a net profit of Rs. 6,09,92,500/- from sale of apples to M/s Universal Apple Associates, Parwanoo, but Shri Anand Chauhan could not produce bills, vouchers or any other evidence or expenditure incurred by him, in respect of purchase of pesticides and insecticides towards maintenance of Srikhand Orchard, Damrali between 2008-11. e. Huge cash deposits have been shown by Shri Anand Chauhan in his bank account at PNB on such dates, which do not tally with....
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....and laser jet respectively). This, in turn, points towards fabrication of records in order to prepare a defence by the suspect. k. As per APMC Act, M/s Universal Apple Associates informed the sale details and its price to the concerned Mandi Samiti. This data is not in consonance with that provided by M/s Universal Apple Associates to CBI. This again points to fabrication of records. l. Data collected from Department of Horticulture, Govt. of Himachal Pradesh, in regard to the production of apples in Rampur Tehsil of Distt. Shimla (where Srikhand Orchard, Damrall is located) does not reflect improved/increased production of apples in that region in the year 2008-09 to 2010-11. m. That Sri Virbhadra Singh has filed his ITRs regularly for the Assessment Years 2006-07 to 2012-13, but for the Assessment Years 2009-10, 2010-11 and 2011-12, he has also filed revised Income Tax Returns. In the revised ITRs, huge illegible in agricultural income was shown (it is important to note that he was also Union Steel Minister from May, 2009 to January, 2011. Details of agriculture income mentioned in original and revised ITRs of Shri Virbhadra Singh are as under: Sr. N....
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....concerned, it was informed to the Court that a Regular Case had been registered and investigation was continuing, which would be taken to its logical conclusion in accordance with law. Consequently, the writ petition/ PIL was disposed of. As it transpires, the Regular Case was registered on 23.09.2015. 48. The Regular Case RC 2015 A0004 dated 23.09.2015 was registered against the two petitioners, Sh. Anand Chauhan, Sh. Chunni Lal Chauhan and unknown others, under Sections 13(2) read with 13(1)(e) of the PC Act and Section 109 of the IPC on the complaint of Sh. R.L Yadav, Dy. SP, CBI, AC-1, New Delhi. In his complaint, he states that during the conduct of enquiry in the First PE documents/statements were received from Income Tax Department, Faridabad, with regard to the purchase of a farm house by the son of petitioner no. 1 at Dera Mandi, Mehrauli, New Delhi. The ITRs of petitioner no. 1 and his family members; affidavits/declarations w.r.t. movable/immovable assets filed by the petitioner no. 1 while contesting Lok Sabha elections 2009 and Vidhan Sabha elections 2012; bank statements; details of LIC policies and details of agricultural and non-agricultural land/ property in the....
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.....2015 was without jurisdiction and authority of law. He submits that the Second PE - which led to registration of the impugned FIR/RC, pertain to the very same allegations that were inquired into in the course of the First PE dated 19.10.2012. The First PE was subsequently closed for want of any material linking the petitioners to the allegations made therein. He further submits that a bare reading of the Common Cause PIL establishes that it was filed in relation to the very same allegations contained in the letter/complaint dated 11.01.2013 addressed by Mr. Bhushan to the CBI. The said PIL, inter alia, specifically alleged the commission of an offence under Section 13(1)(e) read with 13(2) of the PC Act on account of 'possession of disproportionate assets' by the petitioners, which forms basis of the Second PE. 51. Mr. Krishnan has specifically referred to the synopsis in the Common Cause PIL wherein the petitioner in that case had averred: "That the Petitioner is filing the present writ petition in public interest in order to bring to the notice of this Hon'ble Court a very serious case of prima facie corruption, money laundering and possession of assets dispr....
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....rease) and Rs. 1,55,00,000 (a 6 fold increase), respectively in the three years in question. The total increase in agricultural income amounted to Rs. 6.10 crore. The aforementioned facts along with corroborating documents, which clearly link Respondent No.5 to dubious transactions and investments involving large sums of money made during his tenure as the Union Steel Minister, have been in the public domain for last several months. This would warrant the registration of an FIR under the Prevention of Corruption Act for an in-depth investigation of the matter. However, neither the government nor any of its any investigation agencies has bothered to initiate an investigation, even after they are formally requested to do so by the petitioner." 52. Mr. Krishnan has also referred to ground A raised in the said Common Cause PIL, which reads as follows: "That the facts highlighted in the above petition reveal several acts of money laundering, corruption, possession of disproportionate assets and criminal misconduct allegedly committed by Respondent No.5, which warrant a thorough and impartial investigation, but the same has not been initiated despite well documented ....
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.... Act. The reasons for closure of the First PE would, therefore, have been recorded and disclosed to the CVC. The same should be placed before this Court. 57. In the alternative, he submits that even if this Court is not inclined to allow the petitioners to go through the status reports, at least, this Court should call for and go through the said status reports for it to be satisfied that the enquiry conducted by the CBI under the First PE pertained to the same allegations as are contained in the Second PE and the resultant RC. 58. Mr. Krishnan further submits that the First PE was admittedly closed as per CBI's reply filed in the Common Cause PIL. He places reliance upon the following averments in the counter affidavit of the CBI filed in the present petition: "5F... However, since the identity of the person, who was being referred to, could not be established by the acronym 'VBS', the PE No. AC-1 2012 A0007 was closed. Since PE No.AC-1 2012 A0007 was not specific to the Petitioner and his unexplained income of approximately Rs. 6 crores, as revealed during the Preliminary Enquiry No. AC-1 2012 A0007, was not examined from disproportionate assets perspecti....
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....the CBI to adhere scrupulously to the provisions of the CBI manual in relation to its investigative functions like raids, seizures and arrests. He also places reliance on Lalitha Kumari vs. State of U.P & ors (2014) 2 SCC 1 and paragraphs 9.1, 9.12 and 9.16 of Chapter 9 of the CBI Manual in this regard. 62. The next submission of the petitioners is that, in any event, the CBI has no authority or jurisdiction to carry out investigation in the FIR/RC in the State of Himachal Pradesh, since the said State has not granted its consent to such investigation in the State. This submission is founded upon the provisions contained in the Delhi Special Police Establishment Act, 1946 (DSPE Act) and the constitutional framework in relation to exercise of power of investigation of offences which may have been committed in one of the constituent States of the Indian federation. On this aspect, Mr. Kapil Sibal, learned Senior Counsel has advanced his submissions. Mr. Sibal submits that historically the DSPE Act was enacted to constitute a special police force for the Chief Commissioners Province of Delhi, for the investigation of certain offences committed in connection with matters concerning ....
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....on of Section 5, since it begins with a non-obstante clause. Mr. Sibal submits that consent of the concerned State is a mandatory pre-requisite under Section 6 of the DSPE Act for the CBI to derive jurisdiction to carry out investigation in any area within the territorial limit of the State. No powers can be exercised by any member of the CBI in an area falling within the territorial boundaries of a State without the consent of the State Government, which is a pre-condition for the CBI to assume jurisdiction. He submits that since there is no consent granted by the State Government of Himachal Pradesh to the CBI to investigate the Regular Case in question, the CBI has no jurisdiction to investigate the offences against the petitioners in any area within of State of Himachal Pradesh. He places reliance on Management Of Advance Insurance . vs Shri Gurudasmal & Ors, 1970 (1) SCC 633, and the judgment of this Court in Surinder Singh Ahluwalia Vs. Delhi Special Police Establishment and Others, ILR (1991) II Delhi 228 in support of this submission. 64. He submits that the Second P.E.; the FIR/RC registered by the CBI, and; the order for issuance of search warrants issued by the Court ....
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....ring the check period. One property i.e. a Farm House at Dera Mandi, is in the name of M/s Maple Destination Pvt. Ltd. and not in the name of the petitioners. Reliance is placed on V.K. Puri v. CBI, (2006) DLT 521 to submit that the Courts within whose jurisdiction part of cause of the disproportionate assets lie, would have the jurisdiction to try the offence. 69. Mr. Sibal submits that jurisdiction has to be decided on the basis of the contents of FIR. A perusal of the impugned FIR shows that all acts and/or omissions that are said to constitute the offence under Section 13(1) (e) read with Section 13(2) of the PC Act are said to have been perpetrated in the State of Himachal Pradesh. The trial court / Spl. Judge, Delhi in Mr. Sibal's submission, has no jurisdiction to deal with the Regular Case since the following alleged actions have taken place in the State of Himachal Pradesh: i. Income Tax Returns and revised Income Tax Returns of petitioner no. 1 and his wife have been regularly filed by the petitioners in Shimla; ii. That the petitioner no. 1 as "karta" of HUF has been filing Income Tax Returns but for AY 2009-10, 2010-11, 2011-12 has filed revised Inc....
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....f law which inter alia were raised by the High Court of Himachal Pradesh vide its order dated 1.10.2015: "...4. Whether it was mandatory for the Central Bureau of Investigation to seek the consent of the State Government as per section 6 of the Delhi Special Police Establishment Act at the time of registration of FIR and its subsequent investigation and raiding the residential premises of the petitioners and non conforming to mandatory provisions of section 6 of the Delhi Special Police Establishment Act vitiates the investigation as well as raid in the official premises of the petitioners.? 5. Whether the raid at the residential premises of the sitting Chief Minister without conforming to section 6 of the Delhi Special Police Establishment Act would dilute the basic federal structure of the Constitution of India? ...7. Whether the Central Bureau of Investigation has complied with the mandatory provisions of Code of Criminal Provisions and the guidelines provided in Central Bureau of Investigation Manual while registering the FIR and also while undertaking the investigation? 8. What is the true import of Entry 2-A, 80 of the Union List visa....
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....ot be termed as a special police force, and it cannot exercise power and jurisdiction unless the State concerned gives consent under Section 6 of the DSPE Act. He relies on Shree Chamundi Mopeds Ltd. vs. Church of South India Trust Association CSI Cinod Secretariat, Madras, (1992) 3 SCC 1, to submit that mere stay of the operation of the judgment by the Supreme Court does not tantamount to quashing of the said judgment, and that the said judgment can be relied upon. CBI's Submissions 76. The learned Additional Solicitor General Mr. P.S. Patwalia advanced his submissions on behalf of the CBI. He submits that the First PE registered by the CBI on 19th October, 2012 was altogether different from the one registered on 17th June, 2015, i.e. the Second PE. He submits that the First P.E. was registered against unknown officials of M/s Ispat Industries Ltd. and STC, and not against the petitioner no. 1 and his family. It was based on the information received from the Income Tax authorities regarding alleged illegal payments made by M/s IIL to officers of STC and other influential persons. However, the Second PE was registered against the petitioner no.1 and his family in relation to ....
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....the petitioner no. 1. As a result of this, a proposal was made that the First PE should be closed, and a fresh PE should be registered to probe the unexplained income of petitioner no. 1 from the disproportionate assets perspective. Mr. Patwalia submits that this was a composite consideration, and on the recommendation of the Investigating Officer, the First PE dated 19.10.2012 was, accordingly, closed. He further submits that the CBI had filed status reports in the Common Cause PIL regarding the First PE which are lying in sealed covers in this Court. 79. The CBI has repelled the application moved by the petitioners viz. Crl. M.A. No. 3396/2016 by submitting that the demand for supply of the aforesaid documents is completely unjustified and only a tactic to frustrate and prolong the investigation. Mr Patwalia submits that status reports filed by the CBI in the Common Cause PIL were perused by the Court and thereafter ordered to be put back in a sealed cover (except for the last/final status report which wasn't perused but remains in a sealed cover). This is evident from the orders of the Court in the Common Cause PIL dated 02.04.2014 and 10.09.2014. He submits that during t....
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....jurisdiction to investigate the case in the State of Himachal Pradesh, because of lack of consent from the State Government under Section 6 of DSPE Act, Mr. Patwalia submits that the offence under Section 13(1)(e) read with Section 13(2) of the P.C. Act complained of, relates to the period when the accused held the office as a Public Servant in the Central Government at New Delhi. He submits that the CBI is not required to obtain consent of the State of Himachal Pradesh under Section 6 of the DSPE Act for this reason. Reliance is placed on V.K. Puri (supra), wherein the Supreme Court held that the Special Judge at Delhi had jurisdiction to deal with the case, because one of the known sources of income of the petitioner therein was the rent received from a property located in Delhi. By placing reliance upon the ingredients of Section 177-178 of the Cr.P.C., Mr. Patwalia submits that CBI has the jurisdiction to investigate the offences in question. 84. Mr. Patwalia repels the contention of the petitioners that the Special Judge in Delhi does not have jurisdiction, as the assets are claimed to be located outside the jurisdiction of the learned Special Judge, Delhi. He submits that ....
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....nduct is committed at the place where the public servant holds his office. He submits that the petitioner no. 1, during the period of his office as Minister of Steel, and thereafter as Minister for Micro Small & Medium Enterprises (MSME) in the Government of India from 28.05.2009 to 26.06.2012 has allegedly committed the offence at Delhi and, therefore, CBI has justifiably exercised its power in relation to the said offences by registering the FIR/RC at Delhi. Mr. Patwalia has referred to Para 4 of the subject FIR, which reads as follows: "4) Information contained in the abovementioned documents and facts revealed during the enquiry prima-facie disclose that Shri Virbhadra Singh while functioning as Union Minister, Government of India during the check period 29.05.2009 to 26.06.2012 acquired assets, disproportionate to his known sources of income to the tune of Rs, 6,03,70,782/- and further tried to justify the same in the form of agricultural income. Inquiry also revealed that Smt. Pratibha Singh W/o. Shri Virbhadra Singh, Shri Anand Chauhan with whom Shri Virbhadra SIngh has signed MoU for managing his apple orchard and Shri Chunni Lal Chauhan, Proprietor of M/s. Univers....
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....Reliance is further placed on Manoj Kumar Aggarwal v. CBI, (supra) and Surinder Singh Ahluwalia v. Delhi Special Police Establishment & Ors. 1991 CriLJ 2583, wherein the Courts have recognized CBI's jurisdiction to register the case and investigate the same in Delhi, if the check period is partially pertaining to public service under the State Government, and partially on Central deputation. The Courts have held that in such situations, the consent of the State Government is not mandatorily required. 91. Mr. Patwalia places reliance upon the notification OM No. 228/40/88AVD-II(III) of August, 1990 issued by the Government of India, Ministry of Personnel, PG and Pensions, whereby the Central Government, with the consent of Government of Himachal Pradesh, has extended the jurisdiction of members of Delhi Special Police Establishment under Section 6 of DSPE Act to the whole of the State of Himachal Pradesh for investigation of offences under the PC Act and its attempt, abetments and conspiracies. In pursuance of this notification, a branch of CBI was set up in Shimla, Himachal Pradesh for investigation of offences under the PC Act. Further, the High Court of Himachal Pradesh had no....
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....f the DSPE Act. Section 2(2) of the Act provides the powers of police officers to the members of SPE/CBI in respect of Union Territories. In respect of Union Territories, the Parliament has the power to enact laws for subjects covered even under the List II of the Seventh Schedule of the Constitution. Entry 80 of the List I empowers the Parliament to enact laws to extend the jurisdiction of a police force of a State to another State, with the consent of that State Government. Sections 5 and 6 of the DSPE Act have been enacted in exercise of the legislative power conferred by the aforesaid Entry. Thus, the creation of the DSPE/CBI is relatable to the powers of the Parliament under Entry 2 of the List II (in respect of a Union Territory) and Entry 80 of List I. The SPE Division of CBI investigates criminal offences in exercise of its power conferred by the DSPE Act, 1946. As far as "Union Territories" and "Railway Areas" are concerned, CBI is a regular police force, like police force of any State/UT, constituted under The Police Act, 1861. Hence, for exercising the police powers in UTs, CBI does not need to obtain consent from the concerned UT administration under Section 6 of DSPE A....
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....ation of the Regular Case was not permissible. In this regard, he placed reliance on T.T. Anthony (supra) and Tapan Kumar Singh (supra). 97. Before I proceed to deal with this submission of the petitioners, I may observe that in Tapan Kumar Singh (supra) the Supreme Court observed that the issue whether the G.D. entry tantamounted to a FIR or not, could be raised before the Magistrate. The Supreme Court in para 23 of Tapan Kumar Singh (supra) , inter alia, observed:- "..................Similarly, the question as to whether the GD entry, or the FIR formally recorded on 20-10-1990, is the FIR in the case, is a matter which may be similarly agitated before the court. Where two informations are recorded and it is contended before the court that the one projected by the prosecution as the FIR is not really the FIR but some other information recorded earlier is the FIR, that is a matter which the court trying the accused has jurisdiction to decide. Similarly, the mentioning of a particular section in the FIR is not by itself conclusive as it is for the court to frame charges having regard to the material on record. Even if a wrong section is mentioned in the FIR, that does no....
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....8. An information given under sub-section(1) of Section 154 CrPC is commonly known as first information report (FIR) though this term is not used in the Code. It is a very important document. And as its nickname suggests it is the earliest and the first information of a cognizable offence recorded by an officer in charge of a police station. It sets the criminal law in motion and marks the commencement of the investigation which ends with the formation of opinion under Section 169 or 170 CrPC, as the case may be, and forwarding of a police report under Section 173 CrPC. It is quite possible and it happens not infrequently that more information than one are given to police officer in charge of a police station in respect of the same incident involving one or more than one cognizable offences. In such a case he need not enter every one of them in the station house diary and this is implied in Section 154 CrPC. Apart from a vague information by a phone call or a cryptic telegram, the information first entered in the station house diary, kept for this purpose, by a police officer in charge of a police station is the first information report- FIR postulated by Section 154 CrPC. All othe....
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....d to have been committed in the course of the same transaction or the same occurrence and file one or more reports as provided in Section 173 CrPC. x x x x x x x x x x x x x x 27. A just balance between the fundamental rights of the citizens under Articles 19 and 21 of the Constitution and the expansive power of the police to investigate a cognizable offence has to be struck by the court. There cannot be any controversy that sub-section (8) of Section 173 CrPC empowers the police to make further investigation, obtain further evidence (both oral and documentary) and forward a further report or reports to the Magistrate. In Narang case [(1979) 2 SCC 322 : 1979 SCC (Cri) 479] it was, however, observed that it would be appropriate to conduct further investigation with the permission of the court. However, the sweeping power of investigation does not warrant subjecting a citizen each time to fresh investigation by the police in respect of the same incident, giving rise to one or more cognizable offences, consequent upon filing of successive FIRs whether before or after filing the final report under Section 173(2) CrPC. It would clearly be beyond the purview of Sections....
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....of the provisions of CrPC as pointed out above, therefore, the investigation undertaken and the report thereof cannot but be invalid. We have, therefore, no option except to quash the same leaving it open to the investigating agency to seek permission in Crime No. 353 or 354 of 1994 of the Magistrate to make further investigation, forward further report or reports and thus proceed in accordance with law".(emphasis supplied) 103. In Tapan Kumar Singh (supra), before the High Court of Calcutta, the accused successfully assailed the search & seizure carried out by the CBI, on the premise that the GD entry contained vague allegations and did not disclose commission of any cognizable offence. While holding that a General Diary Entry may also be considered as a FIR if it discloses the commission of a cognizable offence, the High Court held that in the said case before it the GD entry, could not be considered to be a First Information Report. It further held that subsequent registration of the First Information Report could not validate the search & seizure undertaken prior to such registration. On appeal, the Supreme Court accepted the position that a General Diary (GD) entry could al....
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....oceed to investigate the case either himself or depute any other competent officer to conduct the investigation. The question as to whether the report is true, whether it discloses full details regarding the manner of occurrence, whether the accused is named, and whether there is sufficient evidence to support the allegations are all matters which are alien to the consideration of the question whether the report discloses the commission of a cognizable offence. Even if the information does not give full details regarding these matters, the investigating officer is not absolved of his duty to investigate the case and discover the true facts, if he can."(emphasis supplied) 104. The question that arises for consideration is whether these decisions can be pressed into service in the present factual context. It requires consideration whether the above said principles would be applicable even in respect of Preliminary Enquiries registered by the CBI and, if yes, whether the two Preliminary Enquiries registered in the present case pertain to the same incident or form part of the same transaction. 105. The Central Bureau of Investigation (Crime) Manual - 2005 in Chapter - IX provides....
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....t while corrupt public servants are suitably dealt with the bona fide business/commercial decisions taken by public servants in discharge of their official duties are not taken up for unnecessary probe." (emphasis supplied) 106. Chapter - IX of the said manual goes on to, inter alia, lay down the procedure that the CBI should adopt while registering a preliminary enquiry; collection of documents/ recording of statements in Preliminary Enquiry; and the procedure for converting a Preliminary Enquiry into a regular case, etc. 107. In Lalita Kumari (supra), the Constitution Bench of the Supreme Court elaborately considered the scheme contained in the Code with regard to registration of a First Information Report upon receipt of information with regard to commission of a cognizable offence. The Supreme Court held that the police is bound to register the FIR under Section 154 of the Code, if the information discloses commission of a cognizable offence and generally the police has no discretion in the matter of registration of FIR, and resort to a preliminary enquiry before registration of the FIR. 108. In the course of submissions advanced by learned counsels, the Central Bureau....
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....ions can be laid down under a special Act to regulate the investigation, inquiry, trial, etc. of those offences. Section 4(2) of the Code protects such special provisions. 91. Moreover, Section 5 of the Code lays down as under: "5.Saving.-Nothing contained in this Code shall, in the absence of a specific provision to the contrary, affect any special or local law for the time being in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force." Thus, special provisions contained in the DSPE Act relating to the powers of CBI are protected also by Section 5 of the Code. 92. In view of the above specific provisions in the Code, the powers of CBI under the DSPE Act, cannot be equated with the powers of the regular State Police under the Code." (emphasis supplied) 109. The Supreme Court also considered the exceptions to the general rule with regard to registration of a First Information Report upon information being received about commission of a cognizable offence. These exceptions have been discussed from paragraph 115 onwards under the heading "Exceptio....
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....nd not exhaustive of all conditions which may warrant preliminary inquiry." (emphasis supplied) 111. Thus, so far as the CBI is concerned, when it receives information with regard to commission of a cognizable offence under the PC Act, it is not obliged to straightaway register an FIR/ RC, in every such case, and in terms of the procedure prescribed under the Central Bureau of Investigation (Crime) Manual - 2005 - which though not statutory, and serves as a guideline for the procedure/ mechanism to be adopted by the CBI, it may register and conduct a preliminary enquiry if the information received justifies the adoption of that course of conduct. 112. In the light of the aforesaid legal position, it would be appropriate to now examine as to how the respondent no. 1/ CBI has proceeded in this matter. For that purpose, the First PE, the Second PE and the RC need to be examined as also the status reports filed by the CBI in the Common Cause PIL may be looked at. The petitioners have sought the disclosure of the contents of the Status reports filed by the CBI from time to time during the hearing of the Common Cause PIL. The CBI has not opposed the said prayer of the petitioners -....
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....aint was that IIL had made illegal payments to Shri Vir Bhadra Singh as reflected in the seized Excel sheets - which disclosed the use of the acronym/abbreviation "VBS". With due approval of the competent authority, the complaint of Mr. Prashant Bhushan against the petitioner no.1 herein was also enquired into in the First PE. The status report also sets out the result of the enquiry carried out till the making of the said status report. 116. It is not necessary to delve into the aspects which had been enquired into by the CBI during the First PE qua the petitioners herein, since these aspects have been clearly set out in the Second PE, as well in the FIR/ RC. This status report proceeds to state that in order to ascertain the quid pro quo, relevant records/ files pertaining to IIL dealt in the Ministry of Steel, and visitors record of Ministry of Steel during the period Shri Vir Bhadra Singh was a Central Minister in the said Ministry has been requisitioned from the Ministry of Steel, Udyog Bhawan, New Delhi. It also, inter alia, records that the officers/ representatives of IIL, who were dealing with the Ministry of Steel during the period of payment shown in the name of 'VBS'....
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....igh Court on centralization has hampered the progress of investigation. It further records that based on available facts and evidence, the Income-Tax Department has undertaken necessary investigation into the allegations against Shri Vir Bhadra Singh and persons associated with him as per the provisions of the Income-Tax Act. 119. Though the list of seven centralized cases, and another list of eleven cases in process of centralization, and the report of investigation along with its present status (described as Annexure - A) are found, the same do not bear the annexure mark as Annexure - A. However, its perusal shows that it is the report of investigation in relation to the income-tax cases of Sh. Vir Bhadra Singh and related entities. 120. Apart from the aforesaid reports, there is a final status report in relation to the First PE dated 29.08.2014 placed on record. This final status report also narrates the findings of the preliminary enquiry premised on the complaint made by Mr. Prashant Bhushan, Advocate against the petitioner no.1 herein, which was also included within the ambit of the First PE. This status report also records that the Manager - Accounts of M/s IIL admitte....
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....i Vir Bhadra Singh to camouflage these cash deposits as income from apple orchards. These discrepancies create huge suspicions about the genuineness of these efforts, and as a result, this income of Sh. Vir Bhadra Singh has remained unexplained during the enquiry. Though the relevant records have been fabricated by private individuals i.e. Sh. Anand Chauhan and M/s Universal Apple Associates, yet the ultimate beneficiary of such acts was none other than Sh. Vir Bhadra Singh himself, and hence his knowledge of these fraudulent acts is palpably evident. III. That instant enquiry could not link the "un-explained income" of Sh. Vir Bhadra Singh with any specific corrupt activity on his part, while he was working as Union Steel Minister. As per records, Sh. Vir Bhadra Singh never showed any undue favour as a public servant, with regard to matters of M/s IIL pending with the Ministry of Steel. IV. That such an "un-explained income", however, gives rise to a strong suspicion of the same being ill-gotten wealth/ assets, disproportionate to the known sources of income of Sh. Vir Bhadra Singh as a public servant. This aspect, being beyond the scope of this PE, has not been ....
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....ons to suggest the trail of the money, allegedly received by petitioner no.1 herein from M/s IIL, to the purchase/ acquisition of LIC policies in the names of the petitioners and their family members by showing the source of the funds as horticultural income. Apparently, on account of the alleged link claimed by Mr. Prashant Bhushan, Advocate in his complaint and in the common cause PIL, the preliminary enquiry on the aspects alleged in the said complaint/ Common Cause PIL was done within the ambit of the First PE. However, the CBI could not, prima-facie, establish the allegation that the abbreviation 'VBS' found in the Excel sheets of M/s IIL pertained to the petitioner no. 1, Shri Vir Bhadra Singh. It could not establish the "quid pro quo" for the alleged payments shown to have been made by IIL to "VBS" - if "VBS" stood for petitioner no. 1 Vir Bhadra Singh. Thus, the alleged link between the alleged payment to 'VBS' by IIL, with the investment made by petitioner no.1 in the LIC policies purchased in the name of Shri Vir Bhadra Singh and his family members from the alleged horticultural income could also not be established. Instead, a possible case of possession of disproportiona....
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.... was serving as a Central Minister in Delhi. 124. The said two offences are distinct and different. They may, or may not, overlap. They were not found to be connected, or part of the same transaction. In R. Vasudevan (supra) this Court was dealing with the petitioner's plea for joint trial of two cases - one under Section 13(2) r/w S. 13(1)(e) of the PC Act, and the other under Sections 7,8,12 r/w S. 13(2) and S. 13(1)(d) of the PC Act, further read with Section 120 B IPC. This Court did not direct the joint trial of the said cases by observing that the ingredients of the two cases are different. Reference was also made to V.K. Puri (supra). This Court, inter alia, observed: 9. In the present case, it was contended by the learned counsel for the petitioner that, as both the offences under Section 13(1)(d) and Section 13(1)(e) PC Act are punishable under Section 13(2) PC Act, hence they shall be considered to be of the same kind in view of Section 219 CrPC and be tried together. This contention of the learned counsel for the petitioner is misplaced and misconceived. The offences under Section 13(1)(d) and 13(1)(e) of the PC Act, although relate to the same subject, are d....
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....ommission of any offence by petitioner no. 1, much less the commission of the offence under Section 13(2) read with Section 13(1)(e) of the PC Act. The information received by the CBI - in the form of representation of Mr. Prashant Bhushan or the Common Cause PIL with regard to link up between IIL and petitioner no. 1 could not be established. However, the preliminary enquiry did suggest the commission of the offence under Section 13(2) read with 13(1)(e) of the PC Act. Thus, the Second PE was registered to fix the check period. 125. Reliance placed by Mr. Krishnan on TT. Anthony (supra) appears to be misplaced. This is for the reason that in TT. Anthony (supra), the Court was concerned with registration of a subsequent FIR in relation to the same instance/ offence. In the present case, the CBI did not register the FIR/ RC and registered the First PE, as noted above, in relation to a possible offence involving payment of illegal gratification by officers of M/s IIL to officers of STC and other unknown persons. The same did not relate to possible commission of an offence under Section 13(1)(e) read with Section 13(2) of the PC Act. Thus, the present case does not involve registra....
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....i by murdering him on 28.12.2006 and showing it off as a fake encounter. In the said case, the charge-sheet dated 04.09.2012 was filed before the Court of the Judicial Magistrate First Class. The petitioner was aggrieved by the registration of the fresh FIR dated 29.04.2011 and the filing of the chargesheet dated 04.09.2012, since he was arrayed as A-1 in the said chargesheet. The Supreme Court observed that the prayer in the writ petition shows that the petitioner was not seeking quashing of the investigation. He only sought quashing of the second FIR dated 29.04.2011 and also prayed that the charge-sheet dated 04.09.2012 filed in respect of the said subsequent FIR be treated as a supplementary charge-sheet in the first FIR being RC No.4S/2010. 128. At this stage itself, I may observe that in the present case, the petitioners are seeking quashing of the RC/ FIR, which is the only RC/ FIR registered. Thus, on facts, the situation dealt with by the Supreme Court in Amitbhai Anilchandra Shah (supra), the situation arising in the present is the entirely different since, in the present case, there is only one RC/ FIR registered. The conclusions drawn by the Supreme Court in Amitbhai....
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....h the FIRs and the test of sameness is to be applied to find out whether both the FIRs relate to the same incident in respect of the same occurrence or are in regard to the incidents which are two or more parts of the same transaction. If the answer is in the affirmative, the second FIR is liable to be quashed. However, in case, the contrary is proved, where the version in the second FIR is different and they are in respect of the two different incidents/crimes, the second FIR is permissible. In case in respect of the same incident the accused in the first FIR comes forward with a different version or counterclaim, investigation on both the FIRs has to be conducted". 130. There can be no quarrel with the proposition that in relation to the same incident i.e. in respect of the same occurrence, or in regard to the incident which are two or more parts of the same transaction, a second FIR cannot be registered and, if so registered, the same shall be liable to be quashed. However, as noticed herein above, firstly, in the present case, there is only one FIR/RC registered by the CBI under Section 13(2) read with section 13(1)(e) of the PC Act and section 109 IPC. Secondly, the First P....
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.... account of lack of territorial jurisdiction in the Special Judge at Delhi to try the alleged offence. The second is that the CBI cannot carry out investigation in the State of Himachal Pradesh in the FIR/ RC in question, on account of lack of consent given by the State Government of Himachal Pradesh under Section 6 of the DSPE Act. 134. So far as the first submission of Mr. Sibal is concerned, I do not find any merit in the same. As noticed hereinabove, the FIR/ RC has been registered alleging offences under section 13(2) and Section 13(1)(e) of the PC Act and Section 109 IPC while petitioner no.1 was serving as the Union Minister during the check period at Delhi. During that period, petitioner no.1 drew his salary as a Union Minister at Delhi. 135. In V.K. Puri (supra), the Supreme Court dealt with the aspect of determination of the territorial jurisdiction of Special Courts in relation to cases under the P.C. Act. In this case, the appellant V.K. Puri was working as an officer of the Customs Department. The CBI registered the FIR/RC against him for commission of offence under Section 13(2) read with Section 13(1)(e) of the P.C. Act, namely, acquiring assets disproportionat....
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....he offence, therefore, on the one hand, known sources of income must be ascertained vis-à-vis the possession of property or resources which were disproportionate to the known sources of income of public servant and the inability of the public servant to account for it, on the other. ........." [ emphasis supplied ] 140. In para 21 of this decision, the Supreme Court further observed: "21. Each court, where a part of the offence has been committed, would, therefore, be entitled to try an accused. The 1988 Act does not bar application of Section 178 of the Code of Criminal Procedure. If application of the provision of Section 178 of the Code of Criminal Procedure is not barred, the fact that the appellant has a part of his known sources of income at Delhi, in our opinion, would confer jurisdiction upon the Delhi Courts." [ emphasis supplied ] 141. Since one of the known sources of income of petitioner no.1, while he was serving as a Union Minister at Delhi - which is the check period, was his salary which he derived at Delhi, the same would give jurisdiction to the Special Judge at Delhi. 142. The observation made by the Supreme Court in para 15 that, "....
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....f them as may be specified in this behalf by the Central Government." Thus, in the present case, the ld. Special Judge at Delhi had jurisdiction to try the offence not only because one of the known sources of income of petitioner no.1 was at Delhi, but also because he served as a public servant at Delhi during the check period i.e. where the offence was committed. 143. Surinder Singh Ahluwalia (supra) has been relied upon by Mr. Sibal, as well as by the learned ASG Mr. Patwalia. In this case, the Division Bench of this Court was dealing with a writ petition seeking the quashing of the FIR/RC registered by the DSPE/CBI u/s 5(2) read with section 5(1)(e) of the PC Act, 1947 (which corresponds to section 13(2) read with section 13(1)(e) of the PC Act, 1988), and the investigation conducted pursuant to the registration of the said FIR/RC. The petitioner Surinder Singh Ahluwalia was serving as Chief Secretary to the Govt of Nagaland. He was inducted into the IAS cadre upon his success in the Central Government Services Competitive Examination held in 1968 by the UPSC and was allotted to the State of Nagaland. During the relevant period i.e. between 1971 to 1987, he served at Nagaland....
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....risdiction and dismissed the writ petition. 146. Pertinently, the registration of the FIR/RC by the CBI at Delhi was found to be justified on the premise that the petitioner had remained in service in Delhi during the period July 1978 to March 1984, and while in service, he had acquired property in Delhi, which was allegedly a part of the assets found to be disproportionate to the known sources of income of the petitioner during the check period. In the instant case, the entire check period pertains only to the period when petitioner No.1 was a public servant serving as a Union Minister under the Central Government at Delhi and also drew his salary - a known source of income a Delhi. Thus, Surinder Singh Ahluwalia (supra) supports the case of the CBI more than that it supports the case of the petitioner on the aspect of territorial jurisdiction of the Ld. Special Judge (CBI) at Delhi to deal with the case /RC in question. 147. The petitioners have also placed reliance on the judgment of this court in Manoj Kumar Aggarwal (supra). In this case, the petitioners sought the quashing of the RC registered by the CBI under Section 13(2) read with section 13(1)(e) of the PC Act and s....
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....DA, New Delhi; the CBI has duly exercised its powers without any consent under section 6 from the Government of West Bengal. 13. Further since the check period constitutes of the period during the postings with State Government as well as some tenure of the Central Deputation, I am of the view that it was sufficient for the investigating agency, which is CBI in the present case, to choose either mode of investigation, that is to say, to either seek consent of the State Government under section 6 DSPE Act or abide by section 3 of the DSPE Act and seek consent of the Central Government. From the pleadings of the CBI, it is revealed that it chose to follow the mandate under section 3 DSPE Act since the check period included the period of central deputation as well as due to the fact that on the date of registration of RC, the Petitioner had ceased to be under the control of the Government of West Bengal nor was he managing the affairs of the Government of West Bengal". 150. The submission of the petitioner that because the majority of the check period pertained to the service of the petitioner under the State of West Bengal, the CBI ought to have taken consent under Sectio....
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....tered at Delhi is concerned, the same has no merit at all. This is for the reason that, firstly, the check period relates to the service rendered to petitioner No.1 at Delhi as a Union Minister i.e. when the offence was allegedly committed. The allegation against the petitioner No.1 is that he was possessed of assets disproportionate to his known sources of income while serving as a Union Minister during the check period at Delhi. Secondly, one of the known sources of income - which is an essential ingredient of the offence under Section 13(2) read with Section 13(1)(e) of the PC Act, was undisputedly at Delhi, since the petitioner No.1 drew his salary as a Union Minister during the check period at Delhi. 154. Mr. Sibal has also submitted that the FIR in the present case should have been registered in the State of Himachal Pradesh, where petitioner no.1 is presently serving as the Chief Minister, and in case it was found that the State police was not investigating the same effectively, the investigation in the case could then have been transferred by the competent court, if necessary, to the CBI. In this regard, he placed reliance on Committee for Protection of Democratic Rights....
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....the appellant approached the Supreme Court upon grant of certificate by the High Court. 158. The Constitution Bench of the Supreme Court while dismissing the appeal rejected the appellant's contention that DSPE is not constitutional, and that it cannot be invested with jurisdiction to investigate the cases in other States. In the course of its judgment, the Supreme Court traced the legislative history of DSPE. The Supreme Court, inter alia, took note of the significant changes in the legislation, which came in 1952 by the Delhi Special Police Establishment (Amendment) Act, 1952 (XXVI of 1952). The long title of the Act was amended from: "An Act to make provision for the constitution of a special police force for the State of Delhi for the investigation of certain offences committed in connection with matters concerning Department of the Central Government etc." (emphasis supplied) to "An Act to make provision for the constitution of a special police force in Delhi for the investigation of certain offences in Part C States.". (emphasis supplied) Accordingly, corresponding changes were made in the Preamble to the Act, and Sections 2 and 3 of the....
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....he Central Government may by order extend to any area (including Railway areas), the powers and jurisdiction of members of Delhi Special Police Establishment for the investigation of any offences or classes of offences specified in a notification under Section 3. Section 6. - Nothing contained in Section 5 shall be deemed to enable any member of the Delhi Special Police Establishment to exercise powers and jurisdiction in any area in the State (not being a Union Territory or railway area), without the consent of the Government of that State." 161. The Supreme Court proceeded to consider the submission of the appellant that Entry 80 of the Union List cannot be read as an enabling power to be exercised in respect of a police force belonging to the Union Territories, such as Delhi. The relevant extract from the discussion on this aspect reads as follows: "11. This brings us to the two main arguments. The first is that ........ the present Entry 80 of the Union List ......... cannot be read as enabling the power to be exercised in respect of a police force belonging to the Union Territories such as Delhi.............. 12. This entry speaks of a "police for....
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....ptation in 1956 applies and includes Union Territories in Entry 80 of the Union List." [ emphasis supplied ] 164. The submission of the appellant, premised on Entry 80 of the Union List, which uses the expression "belonging to any State" - to mean that the police force is "employed by" and not merely "located in" the State (which includes a Union Territory), was also rejected by the Supreme Court on the premise that the adoption of the interpretation as suggested by the appellant, namely, that the expression "belonging to any State" refers to "employed by" the State, would render the whole scheme void. The discussion found in the judgment on the aforesaid aspect reads as follows: "17. The last argument is that the Entry 80 of the Union List speaks of a police force "belonging to any State" and this phrase was also used in the Government of India Act, 1935 in Entry 39 of the Federal Legislative List both before and after its amendment in 1947. It is argued that in Ordinance 22 of 1946 the phrase was "for the Chief Commissioner's Province of Delhi" and it was repeated in Act 25 of 1946 till the phrase was changed to "for Part C States". Thus the word "for" took the....
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...." makes no difference because both expressions fit in with the meaning of the phrase "belonging to" in the entry. We see no force in this argument also." (emphasis supplied) 165. In the light of the aforesaid analysis, in my view, reliance placed by Mr. Sibal on Gurudasmal (supra) in support of his submission is misplaced. In fact, this decision goes against the submission advanced by Mr. Dogra, the learned Advocate General on behalf of the State of Himachal Pradesh, that the CBI/DSPE is unconstitutional or that it cannot, even with consent of the State Government, investigate the offence in question. Gurudasmal (supra) clearly holds that the Delhi Special Police Establishment/ CBI is a police force which belongs to the Union Territory of Delhi, i.e. it is constituted in and functioning in the Union Territory of Delhi - which, for the purpose of Entry 80 of the Union List, is to be regarded as a State by virtue of the Adaptation Order (No.1). By the said Adaptation Order the definition of the expression "State" was amended from the commencement of the Constitution (Seventh Amendment) Act, 1956 to include a Union Territory. Thus, where the Central Government has extended the powe....
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.... is clear from the provision contained in Section 6 that the members of the DSPE will have no jurisdiction to exercise any power in any area of the State of Nagaland without the consent of the Government of Nagaland." [ emphasis supplied ] 169. The Division Bench, upon scrutiny of the record, concluded that there was a general pre-existing consent of the State of Nagaland at the time of registration of the case by the CBI on 23.04.1987. The Division Bench also considered the aspect that the offence had relation not only with the State of Nagaland, but also with Delhi and other places as well. The Division Bench observed: "And as such, the CBI is competent to investigate into the offence as mentioned in the FIR against the petitioner with respect to Delhi and other places but no investigation after the withdrawal of the order dated 9.5.90 can be conducted by the CBI in any area of the State of Nagaland with respect to the petitioner". (emphasis supplied) 170. M. Balakrishna Reddy (supra), the issue which was examined by the Supreme Court was whether "consent" as envisaged by section 6 of the DSPE Act had been given by the State Government of Madhya Pradesh to th....
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....ith Taj Corridor matter". The Supreme Court held that there could not have been and, in fact, there was no such direction to lodge any FIR exclusively against the petitioner under the PC Act. In the absence of any direction by the Supreme Court to lodge a FIR into the matter of alleged disproportionate assets against the petitioner, and in view of the Government of the State of U.P. having declined to grant consent under section 6 of the DSPE Act, the Supreme Court quashed the aforesaid FIR/RC dated 05.10.2003. In the operative part of its judgment the Supreme Court held: "44. In the light of the above discussion, we hold that in the absence of any specific direction from this Court in the order dated 18-9-2003 [(2003) 8 SCC 696] or any subsequent orders, CBI has exceeded its jurisdiction in lodging FIR No. RC 0062003A0019 dated 5-10-2003. The impugned FIR is without jurisdiction and any investigation pursuant thereto is illegal and liable to be quashed, and is accordingly quashed. The writ petition is allowed". 173. Mayawati (supra) is relevant for the present case only to the extent that it reaffirms and reiterates the well settled legal position that the consent of t....
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....t to the liabilities of a police officer belonging to that police force" (See Section 5(2)). Section 5(3), inter alia, provides that "any member of the Delhi Special Police Establishment of or above the rank of Sub-Inspector may subject to any orders which the Central Government may make in this behalf, exercise the powers of the officer in charge of a police station in that area and when so exercising such powers, shall be deemed to be an officer in charge of a police station discharging the functions of such an officer within the limits of his station". 178. However, the aforesaid extension of power and jurisdiction of the members of the DSPE/ CBI to areas falling beyond the Union Territories is subject to constitutional limitations. While the subject matter of "Central Bureau of Intelligence and Investigation" finds mention at Entry 8 of List 1 - Union List of the 7th Schedule, the subject matter of "Police (including railway and village police), subject to the provisions of Entry 2A of List I" falls in Entry 2 of List 2 - State List. The legislative field covered by Entry 2 of List 2, is subject to provisions of Entry 2A of List 1. However, for the present, the same does not....
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....ter registration of the Regular Case is another thing. First comes the registration of the Regular case/FIR, and only thereafter follows the investigation in the case. In the present case, the Regular Case has been registered at Delhi and as I have already found, the same has been registered within the jurisdiction of the learned Special Judge who has territorial jurisdiction to deal with the same. Though the case may have been validly registered at Delhi by the CBI, for its investigation, it may need to go into areas falling within one or more of the constituent States of the Indian Union. It is at that stage that Section 6 seeks to create a check in the way of the DSPE/ CBI, because policing is a State subject, and only by resort to Entry 80 of List-I Union List the powers and jurisdiction of the DSPE/ CBI can be extended to an area falling within a State. To clear the said hurdle, the consent of the concerned State - within whose area the investigation is required to be carried out, would need to be obtained. 182. In the present case, the DSPE/ CBI has contended that there is a general consent granted by the State Government of Himachal Pradesh and in this regard reliance has....
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....ue of clauses (i) and (viii) thereof. 185. As noticed hereinabove, the conduct of investigation is a post FIR/ RC registration development. Pertinently, Section 6 does not state that prior to registration of RC/ FIR, the DSPE/ CBI would need consent of any State. Since the FIR/ RC has been registered at Delhi, and the learned Special Judge at Delhi has jurisdiction. So far as its registration is concerned, the same cannot be questioned by resort to Section 6 of the DSPE Act. 186. Issues with regard to the validity of the investigation conducted by the CBI in the State of Himachal Pradesh, in my view, cannot be raised in a writ petition, and all such issues would be available to be raised by the accused, if and when the occasion arises. The charge-sheet has not yet been filed. If, and when the charge-sheet is filed, it would emerge as to what are the materials/ evidences collected by the investigating agency that are sought to be relied upon by the prosecution. In case the prosecution relies on any investigation conducted within the area of the State of Himachal Pradesh, only then the petitioner may advance an argument premised on Section 6 of the DSPE Act. In Tapan Kumar Sing....
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....nder the DSPE Act itself is unconstitutional. He has also submitted that this Court is obliged to go into and answer each and every one of the eleven questions framed by the Division Bench of the Himachal Pradesh High Court on the very first date of hearing of the writ petition, which have been reproduced hereinabove. He has also argued that the CBI cannot be termed as a Special Police Force as constituted under the DSPE Act. He has also supported the submissions of the petitioners that compliance of Section 6 of the DSPE Act is mandatory and that the consent given by the State Government of Himachal Pradesh cannot apply in the instant case since petitioner No.1 was a Member of Parliament/Minister who cannot be termed as a government servant in the employment of the Central Government Department located in the territory of the State of Himachal Pradesh. In this regard, he has placed reliance on the judgment of the Supreme Court in P.V. Narsimharao vs. State (1998) 4 SCC 626. 191. A perusal of the order dated 01.10.2015 passed by the Division Bench of the Himachal Pradesh High Court would show that the said order came to be passed on the very first date of hearing. On the said da....
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.... that since the said decision has been stayed by the Supreme Court, the said decision cannot be pressed into service. Reliance placed by Mr. Dogra on Shree Chamundi Mopeds Ltd.(supra) is of no avail. In that case, the Board of Industrial and Financial Reconstruction (BIFR) had ordered the winding up of the appellant company. The Appellate Authority had upheld it. The High Court in writ jurisdiction had stayed the operation of the order of the Appellate Authority. The Supreme Court examined the effect of the said stay order in the context, that the jurisdictional High Court, in the mean time, directed winding up of the appellant and the appeal against the winding up order was also dismissed. The Supreme Court, in this context held that mere stay of the order of the Appellate Authority by the High Court did not tantamount to revival of the appeal before the Appellate Authority against the order of the BIFR directing winding up of the Appellant company. Only upon quashing of the order of the Appellate Authority, would the appeal revive - and then it could be said that the bar under Section 22 of Sick Industrial Companies (Special Provisions) Act, 1985 would apply. In para 10 of this d....
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.... pending. We are, therefore, of the opinion that the passing of the interim order dated February 21, 1991 by the Delhi High Court staying the operation of the order of the Appellate Authority dated January 7, 1991 does not have the effect of reviving the appeal which had been dismissed by the Appellate Authority by its order dated January 7, 1991 and it cannot be said that after February 21, 1991, the said appeal stood revived and was pending before the Appellate Authority. In that view of the matter, it cannot be said that any proceedings under the Act were pending before the Board or the Appellate Authority on the date of the passing of the order dated August 14, 1991 by the learned Single Judge of the Karnataka High Court for winding up of the company or on November 6, 1991 when the Division Bench passed the order dismissing O.S.A. No. 16 of 1991 filed by the appellantcompany against the order of the learned Single Judge dated August 14, 1991. Section 22(1) of the Act could not, therefore, be invoked and there was no impediment in the High Court dealing with the winding up petition filed by the respondents. This is the only question that has been canvassed in Civil Appeal No. 12....
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....hin the jurisdiction of the Court at either of such places. Cause of action has certainly arisen within the jurisdiction of the learned Special Judge at Delhi. 2. Whether there could be second preliminary inquiry after the closure of earlier preliminary inquiry purportedly as per para 9.26 of the Central Bureau of Investigation Manual? The second primary inquiry in the present case is on a different aspect than the first primary inquiry as discussed hereinabove. There was no illegality in the opening of the second preliminary inquiry. 3. Whether registration of FIR No. RCAC-1 2015 A-004 dated 23.9.2015 violates the dicta of Hon'ble Supreme Court in Ms. Mayawati vs. Union of India and others, (2012)8 SCC 106? The registration of the FIR/ RC in the present case does not violate the decision of the Supreme Court in Mayawati (supra). 4. Whether it was mandatory for the Central Bureau of Investigation to seek the consent of the State Government as per section 6 of the Delhi Special Police Establishment Act at the time of registration of FIR and its subsequent investigation and raiding the residential premises of the petitioners and non conforming to m....
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....FIR in question could be registered by the CBI, and merely because the Income Tax Department and the High Court is seized of the matter, is no ground to withhold the registration of the Regular Case. This is for the reason that the Income Tax Act is only concerned with the aspect of assessment of income-tax and is not concerned with the criminality involved in the manner in which the income is derived during the relevant assessment year(s). If the FIR/ RC discloses commission of a cognizable offence, the same cannot be quashed as it has been registered within the jurisdiction of the Court where the cause of action arose. 7. Whether the Central Bureau of Investigation has complied with the mandatory provisions of Code of Criminal Provisions and the guidelines provided in Central Bureau of Investigation Manual while registering the FIR and also while undertaking the investigation? No specific mandatory provision of this Code or the guideline provided in the CBI Manual has been referred to to submit that registration of the FIR/ RC and the undertaking of the investigation by the CBI is in breach thereof. In any event, these are issues which would fall for consideration before....