TaxTMI 
TaxTMI 
TaxTMI 
2017 (3) TMI 1886
X X X X Extracts X X X X
X X X X Extracts X X X X
....r 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 PE). On the basis of the Second PE, the aforesaid....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ated 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 of Criminal Provisions and the guidelines provided in Central Bureau of Investigation Manual while registering the FIR and ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....urt. 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 was listed before me for the first time on 08.09.2016, and was adjourned at the request of the learned senior counsel for the petitioners to 15.09.2016. On 15.09.201....
X X X X Extracts X X X X
X X X X Extracts X X X X
....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 received from his Counsel indeed intensified his uneasiness and almost a conviction that he will not get justice. The Petitioner out of respect for this Hon'ble Court and all....
X X X X Extracts X X X X
X X X X Extracts X X X X
....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 learned ASG on behalf of the CBI, the petitioners were always represented through counsels - as reflected in the order sheets recorded in the case contemporaneously. It is equally ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....s 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 was) to participate in the proceedings as the Presiding Judge of the Constitution Bench. The objection was predicated on the fact that, being the third senior most puisne Judge of the Supr....
X X X X Extracts X X X X
X X X X Extracts X X X X
....eved 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 fact that the petitioner had raised no such objection to the hearing of the case by Mr. Justice Anil R. Dave, when His Lordship was a member of the Bench, even though, he was a member of the 1 + 2 Collegium, as well as 1 + 4 Collegiu....
X X X X Extracts X X X X
X X X X Extracts X X X X
....red 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, flows from the oath which I took, at the time of my elevation to this Court." 28. The difference of opinion in the view of Mr. Justice M.B. Lokur and Mr. Justice Kurian Joseph was whether the concerned Judge, for whose recusal the prayer is made, should or should n....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 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 petitioners. (c) That I would entertain such a conversation with anyone, including Mr. Mukul Rohatgi, the learned Attorney General in respect of a cause being dealt with by me as a judge. (d) That I would, on such talk or persuasion by Mr. Mukul Rohatgi, give in, and thereby betray the trust ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 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 Puri, New Delhi on 30.11.2010. On the basis of documents seized from the office of M/s IIL it is alleged that the following illegal payments were shown made against the names of Shri C.M.Kalra, STC and Mr. Abhishek, STC by M/s IIL to the officials of State Trading Corporation:- Sl. No. Date Particulars Payment (In Rs.) 1 17....
X X X X Extracts X X X X
X X X X Extracts X X X X
....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 showing an increase of agricultural income which was 30-fold, 18-fold and 6-fold respectively in the three years in question. 41. In the aforesaid PIL, on 27.11.2013, learned counsel representing CBI submitted that an inquiry is being conducted in a similar matter. The CBI was directed to file a status report within six weeks. On 12.03.2014, the Division Bench took note of the fact that a status report had been f....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ing 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 also narrates the filing of the complaint by Mr. Prashant Bhushan, Advocate, against petitioner no.1 herein, which was also made part of the enquiry. The Second PE, inter alia, records: "...........The allegations raised in this complaint were the acronym "VBS" to whom payment has been shown in the computer printout referred to Shri Vir Bhadra Singh, the then Union Minister of Steel. The complaint further alleged that Shri Vir B....
X X X X Extracts X X X X
X X X X Extracts X X X X
....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 the dates on which M/s Universal Apple Associates has allegedly made the cash payments to him, for purchase of apples. Shri Chauhan was not able to logically explain this issue. Further, on their part, M/s Universal Apple Associates, Parwanoo have paid such huge amounts in the form of cash, against the spirit of the business market, which creates suspicion about the veracity of these transactions. f. There are three credit entries dated 17.08.2008 in the book of account of....
X X X X Extracts X X X X
X X X X Extracts X X X X
....r 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. No. Ass. Year Original ITRs Revised ITRs (Rs. ) a. 2006-07 12,05,000 NIL b. 2007-08 16,00,000 NIL c. 2009-10 7,35,000 2,21,35,000 d. 2010-11 15,00,000 2,80,92,000 e. 2011-12 25,00,000 1,55,00,000 f. 2012-13 85,00,000 NIL g. 2013-14 92,00,000 NIL That submission of revised ITRs by Shri Virbhadra Singh for the A.Y.2009-10 to 2011-12, various discrepancies and latches observed in the explanation/documents/records submitted by Shri Anand Chauhan and M/s Universal Apple Associates, point towards an effort ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....t 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 name of the petitioner no. 1 and his family members, were scrutinized. The same revealed that the petitioner no. 1 while functioning as the Union Minister, in the Government of India during the period of 28.05.2009 and 26.06.2012 acquired assets disproportionate to his known sources of income to the tune of 6,03,70,782 and tried to justify the same in the form of agricultural income. The RC records: "3. Shri Vir Bhadra Singh while serving as Union Minister, Govt. of India, invested huge amount in purchasing LIC policies in his own name and his family members through Shri Anand Chauhan an LIC agent. This was done by entering into Me....
X X X X Extracts X X X X
X X X X Extracts X X X X
....he 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 disproportionate to the known sources of income, concerning the Former Union Steel Minister and present Chief Minister of Himachal Pradesh, Shri Virbhadra Singh. The facts which have been reported in newspapers and also corroborated by several primary documents, like income tax returns, affidavit filed along with nomination paper, agreements and bank statements, clearly suggest that the respondent No.5, Shri Virbhadra Singh, while holding the office of Union Minister of Steel, received and invested large sums of money that could not property be accounted for. * Respondent No.5 filed income tax returns for assessment years 2009-10, 2010-11, 2011-12 showing agricultural income Rs. 7,35,000, Rs. 15,00,000 and ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ner." 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 companies made by this petitioner society and its counsel." 53. Mr. Krishnan submits that the CBI was fully cognizant of these allegations upon filing of the Common Cause PIL. The allegations in respect of the alleged disproportionate assets of the petitioners, alleged by CBI in the Second PE, are the exact same allegations found in the enquiry conducted in the course of the First PE. Mr. Krishnan submits that the CBI filed several status reports before the Division Bench hearing the Common Cause PIL, and if the same are perused by this Court, it would become evident that the same pertained to the enquiry conducted in the allegations made in the Common Cause PIL. The said inquiry stemmed out of the First PE. Since the First PE has been closed, the regis....
X X X X Extracts X X X X
X X X X Extracts X X X X
....tion: "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 perspective, it was decided to enquire into the matter by registering a fresh Preliminary Enquiry fixing an appropriate check period duly accounting for the incomes, assets and expenditure of Shri Virbhadra Singh." 59. He submits that the enquiry/investigation conducted by CBI after institution of the Common Cause PIL encompassed the aspect of 'possession of disproportionate assets' held by the petitioner no. 1 and, therefore, CBI's statement that under the First PE, the allegation "was not examined from disproportionate assets perspective" is clearly false to their knowledge. 60. Mr. Krishnan submits that CBI has sought to distinguish a First Information Report (FIR) from a Preliminary Enquiry. He places reliance on TT. Anthony vs. State of Kerela (2001) 6 SCC 181 an....
X X X X Extracts X X X X
X X X X Extracts X X X X
....hich 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 departments of the Central Government. The Act also seeks to lay down the procedure for the superintendence and administration of the DSPE - popularly known as CBI, and for extension to other areas in British India of the powers and jurisdiction of members of the said force in regard to investigation of offences. Mr. Sibal has drawn the attention of the Court to Sections 5 and 6 of the DSPE Act, which read as follows: "5. Extension of powers and jurisdiction of special police establishment to other areas - (1) The Central Government may by order extend to any area (including Railway areas), in a State, not being a Union territory, the power and jurisdiction of members of the Delhi Special Police Establishment for the investigation of any offences or classes of offences specified....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ement 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 at Delhi in respect of searches to be conducted at places outside Delhi, and in Shimla, are null and void, and without jurisdiction. Reliance is placed on Mayawati vs. Union of India (2012) 8 SCC 106, wherein CBI had registered another FIR and conducted an investigation against the petitioner therein, with regard to acquiring of disproportionate assets by the petitioner without any direction by the Court to empower CBI to lodge FIR or without applying for or taking prior consent of the State Government of UP. 65. Reliance is further placed on State of W.B. v. Committee for Protection of Democratic Rights (2010) 3 SCC 571, to submit that the FIR should have been got registered, if at all, at the police station having jurisdiction in the State of Himachal Pradesh and, if the High Court/ Supreme Court found that t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....tions 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 Income Tax Returns showing substantial increase in his agricultural income. iii. Show Cause Notice under Section 148 of the IT Act has been issued in Shimla and the same is under challenge in Shimla; iv. The LIC policies in which the petitioner no. 1 invested his income when he was a Union Minister were bought in Shimla by making payments out of his bank account in Shimla; v. Shri Anand Chauhan, who has allegedly abetted the offence to convert cash income into legitimate agricultural income by entering into the MOU dated 15.06.2008 for management of Apple Orchards of the petitioner no. 1, resides in Shimla. The LIC policies were bought in Shimla by making payments out of the bank accounts maintained in Shimla. The MoU was executed in HP and orchards are also in HP. Also, the sale of the apple produce out of the orchards has taken place in Pa....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ation 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-vis 2 of the State List and their inter-play?" 72. The stand of the State Government is the same as that of the petitioners with respect to the CBI not having jurisdiction to register a FIR and investigate the case in the State of Himachal Pradesh without seeking consent from the State Government under Section 6 of the DSPE. Learned Advocate General submits that the offence allegedly committed as per FIR is within the territorial limit of the State of Himachal Pradesh and, therefore, it is mandatory for CBI to seek prior consent of the State Government before registering the said FIR and conducting the investigation. Reliance is placed on M. Balakrishna Reddy (supra), Mayawati (supra) and Manoj Kumar Aggarwal (2015) 150 DRJ 332 in this regard. 73. Learned Advocate General for the State, Mr. Shrawan Dogra submits that being a State under Article 1 of Constitution Of India, the State of Himachal ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 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 accumulation of assets disproportionate to the known sources of income of the petitioner no. 1 when he served as a Union Minister during the check period. He further submits that even the offences made out in the two enquiries are different. The First PE relates to an offence under Section 7 r/w Section 13(2) and Section 13(1)(d) of the PC Act, whereas the Second PE relates to an offence u/s 13(2) r/w 13(1)(e) of the PC Act. Reliance is placed on Vasudevan v. CBI 2012 SCC OnLine Del 3229 to submit that the offence u/s 13(1)(d) and the offence u/s13(1)(e) being different cannot be clubbed and tried together. 77. Mr. Patwalia submits that the concept of a preliminary enquiry is contained in Chapter 9 of the Criminal Manual of the CBI - which is not statutory, but is a set of administrative orders issued for the internal guidance of CBI. Mr P.S. Patwalia submits that a preliminary enquiry conducted by the CBI ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....reafter 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 the entire proceedings of that writ petition the reports have remained in sealed covers and were not handed to the petitioners, and even petitioners did not make any request for their supply before the Court in the said matter. He further submits that the purpose of these reports was only to appraise the Court of the status and stage of the then pending preliminary inquiry. 80. Mr. Patwalia submits that the said status reports have lost their relevance since the Common Cause PIL was disposed of after noticing that a regular case (subject FIR) has already been registered by the CBI and a regular investigation has commenced. The Court, after being convinced that the CBI will take the investigation to a logical conclusion, disposed of the matter. Now, the petitioners endeavour is only to obstruct the investigation in the Regular Case registered against them. He further submitted that the status reports of the investi....
X X X X Extracts X X X X
X X X X Extracts X X X X
....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 a known source of income - relevant to the check period, is in Delhi; large number of bank accounts and FDRS are located in Delhi; there is a farm house property in Delhi in the name of the company Maple Destinations Dream Build Pvt. Ltd.- a company owned by the petitioners' daughter and son. The submission of the petitioner no. 1 that his son has purchased the said farmhouse from his own source of income is fallacious, as the total income reflected by the son in the income tax return for the year 2012-13 is Rs. 2,97,149/- which is nowhere close to the amount required to purchase a farm house. He submits that the investigation has revealed that the farm house is included in the total assets of the petitioner no. 1, and that he had, amongst others, given around Rs. 90 lakhs for purchase of the same. 85. Reliance is placed on Section 13 of the PC Act to submit that the cause of action arose in Delhi. The said section, insofa....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 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. Universal Apple Associates, who purportedly shown the purchase of apple of Shrikhand Orchard have facilitated in justifying the disproportionate assets of Shri Virbhadra SIngh and thereby abetted the offence. " [Emphasis supplied ] 87. Mr. Patwalia submits that the petitioner is wrongfully misconstruing the basis of registration of FIR by posing that the same was registered only on the grounds of his allegedly having a farm house in Delhi. 88. Mr. Patwalia submits that the authenticity of the MOU dated 15.06.2008 executed between the petitioner no. 1 and Anand Chauhan - relied upon by the petitioners to show generation of agricultural income from their apple orchard, is doubtful. He submits that the said agreement is scribed on stamp papers which left the H.P. printing press, Shimla only on 25.09.2008, i.e. three months after the alleged date of the agreement. He further submits that the agreement is registered against Sr. Nos. of a stamp vendor - where there is apparent cutting, and the origina....
X X X X Extracts X X X X
X X X X Extracts X X X X
....suance 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 notified a Ld. Special Judge (P.C. Act) at Shimla, Himachal Pradesh, with the consent of the State of Himachal Pradesh for trial of offences under PCA investigated by CBI. 92. With respect to the submissions of the State of Himachal Pradesh/ respondent no. 2, Mr. Patwalia submits that the State - which is not a petitioner, has raised arguments not as a respondent but like a co-petitioner, which go even beyond those raised by the petitioners. He submits that since the State is not the petitioner, it cannot be permitted to raise arguments not raised by the petitioner herein, and this Court is not required to look only into the contentions raised by the State of Himachal Pradesh in the present petition. He further submits that such conduct on part of the State evidences the State's active and full connivance with the petitioner no.1, who happens to be its Chief Minister. 93. Mr. Patwalia submits that the State's challenge to the constitutionality of the CBI is completely misplaced. He submits that ther....
X X X X Extracts X X X X
X X X X Extracts X X X X
....d 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 Act, 1946. In the present case, Mr. Patwalia submits, the petitioner no. 1 was serving as a public servant at Delhi, which is a Union Territory and hence, CBI has the jurisdiction - like the local police force, to investigate the cases under the PC Act in the Union Territory. 95. In their rejoinder, the petitioners have refuted the interpretation advanced by the CBI of OM No. 228/40/88-AVD-II (III) of August 1990. Mr. Krishnan submits that the aforesaid notification is only applicable to the "officials/officers of the Central Govt. departments and other Central institutions, located in the territory of Himachal Pradesh" and not to public servants of the Central Government. Thus, the said notification is not applicable in the case of the present petitioners. He submits that it is CBI's own contention that the case pertains to petitioner no. 1's tenure as a Union Minister which - by no stretch of imagination, can possibly make him an official or an officer of a Central Government department or a Central....
X X X X Extracts X X X X
X X X X Extracts X X X X
....y 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 not prevent the Court from framing appropriate charges." (emphasis supplied) 98. However, since the parties have advanced elaborate submissions on this aspect without claiming that the said issue could, or would be properly raised before the Ld. Single Judge, and the Status Reports are also lying in sealed covers in this Court, I am inclined to deal with the same. 99. In T.T. Anthony (supra), in relation to two police firing incidents at two different locations, two FIRs had been registered as Crime No.353/1994 and Crime No.354/1994 at the same Police Station. While the first pertained to the occurrence near the Town Hall against 8 named persons and many other unidentified persons, the second FIR pertained to the incident which occurred in the vicinity of the Police Station Kuthuparamba and it was against unidentified persons forming part of an unlawful assembly. 100. The State Government instituted a commission of inquiry u/s 3(1) of the Commission of Inquiry Act, 1952, inter alia, to inquire into the circumstances whic....
X X X X Extracts X X X X
X X X X Extracts X X X X
....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 other informations made orally or in writing after the commencement of the investigation into the cognizable offence disclosed from the facts mentioned in the first information report and entered in the station house diary by the police officer or such other cognizable offences as may come to his notice during the investigation, will be statements falling under Section 162 CrPC. No such information/statement can properly be treated as an FIR and entered in the station house diary again, as it would in effect be a second FIR and the same cannot be in the conformity with the scheme of CrPC........... 19. The scheme of CrPC is that an officer in charge of a police station has to commence investigation as provided in Section 156 or 157 CrPC on the basis of entry of the first information report, on coming to know of the commission of a cognizable offence. On completion of investigation and on the basis of the evidence collected, he has to form an opinion under Section 169 or 170 CrPC, as the case may be, and forward his report to the Magistrate c....
X X X X Extracts X X X X
X X X X Extracts X X X X
....before or after filing the final report under Section 173(2) CrPC. It would clearly be beyond the purview of Sections 154 and 156 CrPC, nay, a case of abuse of the statutory power of investigation in a given case. In our view a case of fresh investigation based on the second or successive FIRs, not being a counter-case, filed in connection with the same or connected cognizable offence alleged to have been committed in the course of the same transaction and in respect of which pursuant to the first FIR either investigation is under way or final report under Section 173(2) has been forwarded to the Magistrate, may be a fit case for exercise of power under Section 482 CrPC or under Articles 226/227 of the Constitution". (emphasis supplied) 102. The Supreme Court held that the registration of the subsequent FIR was not the correct course of action to adopt. In relation to the facts of the said case, the Supreme Court, inter alia, observed: "28...................... A comparison and critical examination of the FIRs in Crimes Nos. 353 and 354 of 1994 on one hand and FIR in Crime No. 268 of 1997 on the other, discloses that the date and place of occurrence are the same; there is alludi....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ration. On appeal, the Supreme Court accepted the position that a General Diary (GD) entry could also be regarded as a FIR if its contents disclose the commission of a cognizable offence. However, it disagreed with the finding of the High Court that the GD entry in question did not disclose the commission of a cognizable offence. It held that GD entry disclosed commission of a cognizable offence under the PC Act. The Supreme Court, inter alia, observed as follows: 20. It is well settled that a first information report is not an encyclopaedia, which must disclose all facts and details relating to the offence reported. An informant may lodge a report about the commission of an offence though he may not know the name of the victim or his assailant. He may not even know how the occurrence took place. A first informant need not necessarily be an eyewitness so as to be able to disclose in great detail all aspects of the offence committed. What is of significance is that the information given must disclose the commission of a cognizable offence and the information so lodged must provide a basis for the police officer to suspect the commission of a cognizable offence. At this stage it is....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 105. The Central Bureau of Investigation (Crime) Manual - 2005 in Chapter - IX provides for holding of a preliminary enquiry. Paragraphs 9.1 and 9.2 in Chapter - IX, inter alia, provide that: "9.1 When, a complaint is received or information is available which may, after verification as enjoined in this Manual, indicate serious misconduct on the part of a public servant but is not adequate to justify registration of a regular case under the provisions of Section 154 Cr.P.C., a Preliminary Enquiry may be registered after obtaining approval of the Competent Authority . Sometimes the High Courts and Supreme Court also entrust matters to Central Bureau of Investigation for enquiry and submission of report. In such situations also which may be rare, a 'Preliminary Enquiry' may be registered after obtaining orders from the Head Office. When the verification of a complaint and source information reveals commission of a prima facie cognizable offence, a Regular Case is to be registered as is enjoined by law. A PE may be converted into RC as soon as sufficient material becomes available to show that prima facie there has been commission of a cognizable offence. When information a....
X X X X Extracts X X X X
X X X X Extracts X X X X
....urse of submissions advanced by learned counsels, the Central Bureau of Investigation (Crime) Manual - 2005 was adverted to, which permits the CBI to conduct a preliminary enquiry before registration of an FIR/ Regular Case if the information received does not per se disclose the commission of a cognizable offence. It was argued that the preliminary enquiry conducted by the CBI, as provided in the Central Bureau of Investigation (Crime) Manual - 2005 stands on a different footing due to the special provisions relating to CBI contained in the Delhi Police Special Establishment Act, which is saved by Section 2(4) and (5) of the Code. The Supreme Court had the following to say in relation to the procedure laid down for conduct of a preliminary enquiry in Chapter - IX of the Central Bureau of Investigation (Crime) Manual - 2005: "89. ... ... ... It is true that the concept of "preliminary inquiry" is contained in Chapter IX of the Crime Manual of CBI. However, this Crime Manual is not a statute and has not been enacted by the legislature. It is a set of administrative orders issued for internal guidance of the CBI officers. It cannot supersede the Code. Moreover, in the absence of an....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ons". 110. In paragraph 117, the Supreme Court took note of P. Sirajuddin vs. State of Madras (supra), wherein it had observed that in the context of offence relating to corruption by public servants, conduct of a preliminary enquiry/ proceeding should be resorted to. Some of the conclusions/ directions contained in Lalita Kumari (supra), which are relevant for the present purpose, read as follows: "Conclusion/Directions 120. In view of the aforesaid discussion, we hold: 120.1. The registration of FIR is mandatory under Section 154 of the Code, if the information discloses commission of a cognizable offence and no preliminary inquiry is permissible in such a situation. 120.2. If the information received does not disclose a cognizable offence but indicates the necessity for an inquiry, a preliminary inquiry may be conducted only to ascertain whether cognizable offence is disclosed or not. 120.3. If the inquiry discloses the commission of a cognizable offence, the FIR must be registered. In cases where preliminary inquiry ends in closing the complaint, a copy of the entry of such closure must be supplied to the first informant forthwith and not later than one week. It mus....
X X X X Extracts X X X X
X X X X Extracts X X X X
....aken by the CBI, I do not consider it necessary to delve into the submission of Mr. Krishnan premised upon Natwar Singh (supra), Ashutosh Verma (supra), Col. S.J. Chowdhary (supra) and Sidhartha Vashist (supra), since I am allowing the alternative prayer made by the petitioners in this regard. What the Status Reports in the Common Cause PIL say 113. The Registry was directed to place before this Court the sealed covers containing the status reports filed in the common cause PIL from time to time. The status reports contained in sealed covers have been placed before me. The sealed covers have been opened and the status reports have been perused. I may observe that in respect of one of the sealed covers, though the seal was intact, the adhesive/ lacquer had given way and the cover was, therefore, open. However, the status report was found placed in the said cover. 114. The first status report is dated 07.02.2014. The forwarding letter attached to this status report shows that the same was filed in compliance of the order dated 27.11.2013 passed by the Court in W.P. (C.) No. 7240/2013. It discloses that the First PE was registered against unknown persons and M/s IIL and others in ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....st of the employees had left the jobs and even the offices have been changed. The status report records that certain files/ record relevant to the allegations leveled in the petition are yet to be received and witnesses and suspects, including Sh. Vir Bhadra Singh are yet to be examined. 117. The next status report, which is dated 16.04.2014, also, does not disclose any additional facts, which do not find mention in the Second PE. It records that the PE is in progress to ascertain the veracity of the allegations made against the petitioner in the writ petition, i.e. Common Cause PIL and the intervention application. It states that certain files/ records relating to the enquiry are yet to be received, and some witnesses are yet to be examined. 118. There is one report found in the sealed covers - which appears to be the third status report, which is neither dated nor signed by any officer of the CBI. This status report, inter alia, states that though during the course of search (at the premises of IIL), various evidence of tax evasion by M/s Ispat Group of Companies were recovered and seized, which included certain documents indicating cash receipts and cash payments made to vario....
X X X X Extracts X X X X
X X X X Extracts X X X X
....L and other persons as recorded against the entries. However, the same had been denied by the mentioned individuals. During proceedings conducted by the Income-Tax Department, the Manager (Accounts) had denied any kind of knowledge about the entries made in the excel sheets discovered by the IT authorities from the office of IIL. The Manager (Accounts) denied any knowledge about the identity of "VBS". The Ministry of Steel also denied having any records pertaining to any matter of M/s IIL having been dealt with by the then Minister of Steel. The Ministry of Steel replied that no proposal of M/s IIL had been either approved or sanctioned during the tenure of Sh. Vir Bhadra Singh as Union Minister of Steel. Sh. Vir Bhadra Singh had denied any monetary transaction/ dealings with M/s IIL, and added that neither had he dealt with any proposal of M/s IIL, nor extended any favour to the said firm. The explanation furnished by Sh. Vir Bhadra Singh with regard to filing of revised ITR is also recorded. It records that the enquiry could not conclusively establish that "VBS" mentioned in the excel sheets refers to the petitioner no. 1 herein, Sh.Vir Bhadra Singh, as alleged by the complainant....
X X X X Extracts X X X X
X X X X Extracts X X X X
....teel Minister) and accounting for the incomes, assets and expenditure of Sh. Vir Bhadra Singh, to examine whether or not a viable Disproportionate Assets (DA) case is made out against him. V. That the aspects of forgery and falsification of documents which support creation of additional income on the part of Shri Vir Bhadra Singh would constitute subsidiary offences, if a viable DA case is made out against him and his associates. VI. It has come to light that that the first ITR for the AY 2011-12 was filed by Shri Vir Bhadra Singh on 11.07.2011 showing his agricultural income as Rs. 25 lakhs. The revised ITR for this year, showing an income of Rs. 1.55 crores was filed by him on 02.03.2012. Thereafter, while contesting HP Assembly elections, he filed an affidavit on 17.10.2012 showing his income as Rs. 18.66 lakhs only. Thus, Shri Vir Bhadra Singh appears to have grossly suppressed his income in the said affidavit. This matter is proposed to be brought to the notice of the Election Commission of India, for taking necessary action as deemed fit. Prayer: It is, therefore, concluded that sufficient material is not available for registration of a criminal case in respect ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....is, thus, clear that the First PE was closed, and Second PE came to be registered on account of the CBI not being able to link up the payments shown to have been made by M/s IIL to "VBS" with petitioner no.1 herein and, instead, the CBI finding a possible case of possession of disproportionate assets while the petitioner no.1 was a Central Minister. 122. A perusal of the First PE shows that the same pertains to the possible commission of offence under Section 7 and Section 13(1)(d) read with Section 13(2) of the PC Act, but certainly not to the offence under Section 13(1)(e) read with Section 13(2) of the said Act. Moreover, it was directed against unknown officials of State Trading Corporation, New Delhi, unknown officials of M/s IIL and other unknown persons. The Second PE was registered on 17.06.2015 since the "unexplained income" of petitioner no.1 gave "rise to a strong suspicion of the same being ill-gotten wealth/ assets, disproportionate to the known sources of income of Shri Vir Bhadra Singh acquired during the period 2009-11 when he was the Union Minister of Steel.". Consequently, the Inspector of the CBI "requested that a Preliminary Enquiry may please be registered for....
X X X X Extracts X X X X
X X X X Extracts X X X X
....tions 13(1)(c) and 13(1)(d) of the 1988 Act, on the one hand, and Section 13(1)(e) thereof, on the other. Ingredients of the offence under Section 13(1)(e) of the 1988 Act are: (i) The accused is a public servant; (ii) The nature and extent of the pecuniary resources of property found in his possession; (iii) His known sources of income, i.e., known to the prosecution. (iv) Such resources or properties found in possession of the accused were disproportionate to his known sources of income. Once, however, the aforementioned ingredients are established by the prosecution, the burden of proof would shift on the accused to show that the prosecution case is not correct. 13. In a case involving Section 13(1)(e) of the 1988 Act, what is necessary is as to whether keeping in view the period in question, commonly known as check period, the public servant has acquired wealth which is disproportionate to his known sources of income. It has nothing to do with individual case of bribery. It has nothing to do with a series of acts culminated into an offence. Each Court, where a part of the offence has been committed, would, therefore, be entitled to try an accused". 11. Further, ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....h (supra) is also of no avail to the petitioners, firstly, for the reason that when the First PE was registered there was no definite information linking the alleged payments made by M/s. IIL to petitioner no.1. At that stage, the complainant of Mr. Prashant Bhushan and the Common Cause PIL were also not made. Even after they surfaced, the allegations made by Mr. Prashant Bhushan, Advocate in his representation dated 11.01.2013 seeking to link the payments of illegal gratification allegedly made by M/s IIL to "VBS" could not be established. However, what emerged during the said preliminary enquiry (after the enlargement of its scope) was that a possible case of disproportionate assets may be made out against petitioner no.1/ Sh. Vir Bhadra Singh. Thus, it cannot be said that the First PE, or the complaint of Mr. Prashant Bhushan, or the Common Cause PIL could, or should have been treated as a regular case FIR. Neither of them were treated as an FIR/a regular case. Otherwise, the First PE - even after the enlargement of its scope could not have been closed by the CBI on its own. The report would, necessarily have been filed before the ld. Special Judge. That course of action was not....
X X X X Extracts X X X X
X X X X Extracts X X X X
....h charge-sheet is violative of fundamental rights under Articles 14, 20 and 21 of the Constitution since the same relate to alleged offence in respect of which an FIR had already been filed and the court has taken cognizance. This Court categorically accepted CBI's plea that killing of Tulsiram Prajapati is a part of the same series of cognizable offence forming part of the first FIR and in spite of the fact that this Court directed CBI to "take over" the investigation and did not grant the relief as prayed, namely, registration of fresh FIR, the present action of CBI filing fresh FIR is contrary to various judicial pronouncements which is demonstrated in the earlier part of our judgment. 60. In view of the above discussion and conclusion, the second FIR dated 29-4-2011 being RC No. 3(S)/2011/Mumbai filed by CBI is contrary to the directions issued in judgment and order dated 8-4-2011 by this Court in Narmada Bai v. State of Gujarat [(2011) 5 SCC 79 : (2011) 2 SCC (Cri) 526] and accordingly the same is quashed. As a consequence, the charge-sheet filed on 4-9-2012, in pursuance of the second FIR, be treated as a supplementary charge-sheet in the first FIR. It is made clear tha....
X X X X Extracts X X X X
X X X X Extracts X X X X
....They are not shown to be part of the same series of acts/omission or part of the same transaction. 131. So far as reliance placed on Vineet Narain (supra) is concerned, firstly, no specific provision of the said manual has been adverted to claim its breach. In any event, breach of the provisions of the said manual may lead to disciplinary action against the official concerned. The so called alleged breaches of the CBI manual do not afford a ground to the petitioners to seek the quashing of the FIR/RC. 132. The submission of Mr. Krishnan that the First PE (after enlargement of its scope on account of the representation made by Mr. Prashant Bhushan and the Common Cause PIL) itself tantamount to a FIR/ RC cannot be accepted also for the reason that, if that were the case, the same could not have been closed by the CBI on its own, and the CBI would have been obliged to file a report on completion of investigation under Section 173 Cr.P.C. before the competent Court. Even if the procedure prescribed under Section 157 (1)(b) were to be adopted, the report would necessarily have to be filed before the Competent Court in compliance of Section 157(2) Cr.P.C. In the present case, it is not....
X X X X Extracts X X X X
X X X X Extracts X X X X
....of V.K. Puri was that the situs of the properties said to have been acquired out of income of the public servant would not confer jurisdiction upon the Court. According to V.K. Puri, for the purpose of territorial jurisdiction, the only relevant fact would be as to where the public servant concerned committed acts of misconduct or abused his official position - which would be the place or places where he held his office. 137. Before proceeding further, I may observe that in the present case, the facts are materially different. The petitioner no.1 served as a Union Minister under the Central Government at New Delhi during the check period. While V.K. Puri contended that the place where the public servant held his official position during the period when the misconduct is alleged, would give jurisdiction to the Special Judge at such place, the petitioners contend otherwise. Thus, the observations made by the Supreme Court in V.K. Puri (supra) need to be examined in the light of the facts that the said case presented before the Supreme Court, and in the light of the contentions advanced before it. 138. In para 15 of this decision, the Supreme Court observed as follows: "15. One of....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... by the Supreme Court in para 17 of this decision to the effect that, 'The question of finding out the place where the offence was completed, thus, does not arise in this case'. It is well settled position in law that a judgment cannot be read as a statute and interpreted like a statute. The observations made in a judgment have to be appreciated in the context in which they have been made. Thus, the observations of the Supreme Court in para 15 of V.K. Puri (supra) have to be understood in the light of the factual background of the case, namely, that the FIR/RC was registered at Delhi; V.K. Puri had not served during the check period at Delhi; he was deriving rental income at Delhi; and his submission was that the offence under Section 13(2) read with Section 13(1)(e) of the P.C. Act would be completed at the place where the public servant is posted during the check period. Since Supreme Court found that the Special Judge at Delhi had jurisdiction - on account of the fact that one of the known sources of income i.e. the rental income was derived in Delhi, and V.K. Puri had a property located in Delhi, the question of finding out the place where the offence had taken place did not ar....
X X X X Extracts X X X X
X X X X Extracts X X X X
....86 alleging acquisition of properties by the petitioner, inter alia, at New Delhi. The Chief Minister desired investigation of the case by the CBI and conveyed its consent for investigation by the CBI into the alleged misconduct of the petitioner. Consequently, the FIR/RC came to be registered on 24.03.1987 in respect of alleged offences u/s 5(2) read with section 5(1)(e) of the PC Act, 1947. The place of occurrence was mentioned as Delhi, Nagaland and other places and the date and time of occurrence i.e. the check period was mentioned as 1975 to 31.12.1986. 144. On the aspect of territorial jurisdiction of the CBI to register a case at Delhi, the Division Bench referred to section 177 and 178 of the Code. While dealing with the submission of the petitioner that the allegations contained in the FIR/RC did not disclose the commission of an offence u/s 5(1)(e) read with section 5(2) of the PC Act, 1947, the Division Bench, inter alia, observed: "21. ... ...... .... (1) ......the public servant should either be in possession or someone else on his behalf may be in possession of pecuniary resources or property disproportionate to his known sources of income or the public servant o....
X X X X Extracts X X X X
X X X X Extracts X X X X
....al Govt. Upon expiry of his central deputation, he rejoined the State of West Bengal. While the petitioner was posted as Commissioner (L&D), DDA, New Delhi, the RC in question was registered against him alleging amassing of disproportionate assets. The check period was fixed as 20.08.1990 to 30.06.2008. Thus, out of the check period of 18 years, he was employed with the State of West Bengal for 13 years odd, and for the remaining period he was on Central deputation at New Delhi. The petitioner assailed the RC on the premise that the check period includes the period spent by the petitioner with the Govt. of West Bengal between August 1990 to October 2003. He contended "that the Central Government or the DoPT does not have the jurisdiction to grant/ entertain sanction for the above mentioned period " (emphasis supplied). Thus, the issue raised by the petitioner in that case, apparently, pertained to the grant of "sanction" and not "consent" under Section 6 of the PC Act. 148. On the other hand, the contention of the CBI was that section 6 of the DSPE Act was not applicable to the petitioner "on account of the fact that on the date of registration of the case, the petitioner was post....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... /located in the State of West Bengal. ...." 151. Manoj Kumar Aggarwal (supra) is relied upon by the petitioners to submit that non adherence to section 6 of the DSPE Act was not considered relevant and material on account of the fact that, in the said case, at the time of registration of the RC the petitioner was posted on deputation at Delhi as Commissioner (L&D), DDA. However, in the present case, at the time of registration of the RC, the petitioner is serving as the Chief Minister of the State of Himachal Pradesh. 152. In my view, the reliance placed by the petitioners on Manoj Kumar Aggarwal (supra) is not apposite in the facts of the present case. This is for the reason that the check period in the present case - in relation to which the RC has been registered, pertains only to the period when the petitioner no.1 was a Union Minister in the Central Govt. and was, therefore, serving as a public servant at Delhi. Pertinently, the issue of lack of "sanction" raised by the petitioner in Manoj Kumar Aggarwal (supra) pertained to the period between August 1990 to October 2003, when he was serving under the Govt. of West Bengal. In that case, the petitioner did not question the a....
X X X X Extracts X X X X
X X X X Extracts X X X X
....istered at any one of the police stations within whose jurisdiction the same can be legally instituted. 156. I now turn to examine the issue whether consent of the State Government of Himachal Pradesh under Section 6 of the DSPE Act is necessary for registering the FIR/RC in the facts of the present case at Delhi, and for carrying out the investigation into the said case within the area falling in the State of Himachal Pradesh. In Gurudasmal (supra), the appellant challenged the right of the Delhi Special Police Establishment/ CBI to investigate the case filed by the Income-Tax Officer, Bombay under Section 409, 477A and 120B IPC. The investigation was to be carried out in the State of Maharashtra. The contention of the appellant, premised on the wording of Entry 80 of the Union List in the Schedule VII to the Constitution of India, inter alia, was that DSPE belongs to the Union Territory of Delhi (and not to a State), and that it cannot be invested with jurisdiction to investigate the cases in other States - in that case the State of Maharashtra, as the DSPE does not belong to a State. Thus, the powers and jurisdiction of the members of the CBI could not be extended to any area o....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e shown in the First Schedule to the Constitution under the heading "The States". Similarly, the Part-C States and Part-D Territories were all described as "Union Territories". The Adaptation of Laws (No.3) Order, 1956 was passed and in the Delhi Special Police Establishment Act, 1946, all references to "Part-C States" were replaced by the expression "Union Territories". 160. The Supreme Court, after taking note of the aforesaid changes, described the resulting legislative position of the DSPE Act in 1956 as follows: "Section 2. - (1) Notwithstanding anything in the Police Act, 1861, the Central Government may constitute a special police force to be called the Delhi Special Police Establishment ... for the investigation of offences notified under Section 3. (2) Subject to any orders which the Central Government may make in this behalf, members of the said police establishment shall have throughout in relation to the investigation of such offences and arrest of persons concerned in such offences, all the powers, duties, privileges and liabilities which police officers have in connection with the investigation of offences committed therein. (3) Any member of the said police es....
X X X X Extracts X X X X
X X X X Extracts X X X X
....956, shall mean a Part A State, a Part B State or a Part C State; and (b) as respects any period after such commencement, shall mean a State specified in the First Schedule to the Constitution and shall include a Union Territory." Previously the definition read: "State shall mean a Part A State, a Part B State or a Part C State." This definition furnishes a complete answer to the difficulty which is raised since Entry 80 must be read so as to include Union Territory. Therefore members of a police force belonging to the Union Territory can have their powers and jurisdiction extended to another State provided the Government of that State consents......". [ emphasis supplied ] 162. The Supreme Court relied upon Article 372A of the Constitution, which was introduced by the Constitution (Seventh Amendment) Act, 1956 and, inter alia, observed: "Therefore, when the President adapted the General Clauses Act by giving a new definition of "State" the new definition appropriate to the purpose applied to the interpretation of the Constitution. The word "State" in Entry 80 of Union List, therefore, applied to Union Territories also." 163. In respect of Section 3(58) of the General C....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... that it meant "employed by" and not merely "located in". In this sense, it is argued, the Special Police Establishment did not belong to any State or Union Territory. On the other side it is argued that the words "belonging to" convey no more than a territorial nexus. The police force belongs to a part of India and it does not have to belong to a Provincial Government or a State Government or Government of a Union Territory. The extension of the powers, jurisdiction, etc. of such a force is also in another part of India, placing again an emphasis on the territory. This shows that the police force of one area operates in other area. 20. Now the scheme of the Constitution is that the Union Territories are centrally administered and if the words "belonging to" mean belonging to a part of India, the expression is equal to a police force constituted to function in an area. In this way the Delhi Police Establishment mean a police force constituted and functioning in the Union Territory of Delhi. Previously the same force functioned in the Chief Commissioner's Province of Delhi, then in Part C State of Delhi and now it functions in the Union Territory of Delhi. 21. It is no doubt....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... consent by the said State Govt. The petitioner also challenged the general consent granted by the State Government dated 08.11.1967, on the ground that there was no schedule annexed to the letter of the Joint Secretary to the Govt of Nagaland. It was argued that the general consent dated 08.11.1967 was of no avail and thus the CBI could not conduct any investigation in the State of Nagaland. The petitioner also claimed that the said consent, in any event, had been withdrawn subsequently vide notification dated 23.11.1989. It was argued that no investigation could continue thereafter. It was argued that the letter issued by the Chief Minister to the Union Home Minister could not be pressed into service for the purpose of construing consent by the State Govt u/s 6 of the DSPE Act. 167. Mr. Sibal has relied on para 9 of the judgment, wherein the Division Bench observed that section 6 of the DSPE Act begins with a non-obstante clause and it overrides section 5 thereof. The consent of the State is a precondition for exercise of powers and jurisdiction by a member of the DSPE/CBI in an area falling within the State. It was held that the consent of State of Nagaland was necessary for in....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ny State, the following conditions must be fulfilled: (i) A notification must be issued by the Central Government specifying the offences to be investigated by Delhi Special Police Establishment (Section 3); (ii) An order must be passed by the Central Government extending the powers and jurisdiction of Delhi Special Police Establishment to any State in respect of the offences specified under Section 3 (Section 5); and (iii) Consent of the State Government must be obtained for the exercise of powers by Delhi Special Police Establishment in the State (Section 6)." 171. This decision primarily examined the submission of the appellant that the consent of the State Government was not in accordance with the procedure laid down in Article 166 of Constitution of India. On this aspect, after a detailed discussion, the Supreme Court concluded that Article 166 was "directory" and that "substantial" compliance with the said provision was sufficient. The Supreme Court held that there is no particular form in which the consent of the State Government concern has to be granted under Section 6 of the DSPE Act. 172. In Mayawati (supra), the only question raised by the petitioner before the ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....pplied) (See Section 2(1)). 175. The members of the DSPE/ CBI "have throughout any Union Territory in relation to the investigation of such offences ... ... ... all the powers, duties, privileges and liabilities which police officers of that Union Territory have in connection with the investigation of offences committed therein" (emphasis supplied) (See Section 2(2)). 176. "Any member of the CBI of the rank of the Sub-Inspector or above may ... ... ... exercise in any Union Territory any of the powers of the officer-in-charge of a police station in the area in which he is for the time being ... ... ..."(emphasis supplied) (See Section 2(3)). 177. Thus, what emerges from Section 2 of the DSPE Act is that the DSPE/ CBI is a police force constituted in Delhi, primarily to carry out investigation of the notified offences in any Union Territory. The notification of the offences, or class of offences, which may be investigated by the DSPE/ CBI is required to be issued under Section 3 of the said Act. The extension of jurisdiction of the members of DSPE/ CBI to areas falling outside the territories of a Union Territory, i.e. to "area (including railway areas, in a State, not being a Un....
X X X X Extracts X X X X
X X X X Extracts X X X X
....xplained in Gurudasmal (supra). The scheme contained in Sections 5 & 6 of the DSPE Act is referable to Entry 80 of List 1 of the 7th Schedule. Consequently, Section 6 overrides the power of the Central Government under Section 5 to extend the powers and jurisdiction of the DSPE/ CBI to areas beyond the Union Territories, and Railway Areas. An order issued under Section 5 of the DSPE Act without the consent of the concerned State Government would be meaningless. Section 6 states that: "Noting 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 a State not being a Union Territory or railways area, Without the consent of the Government of that State." 180. From the decisions taken note of hereinabove, it is abundantly clear that for the purpose of empowering and authorizing the DSPE/ CBI to carry out investigation in an area falling beyond the area of the Union Territories and Railway Areas, i.e. in any area falling in one of the constituent States of the Indian Union, the consent of the Government of the State within whose area the DSPE/ CBI needs to carry out investigation is impe....
X X X X Extracts X X X X
X X X X Extracts X X X X
....sent order No. Vigilance dept. Per (vig.) A-3 (2)/88, dt. 2.8.89) hereby extends the powers and jurisdiction of the members of the Delhi Special Police Establishment to the whole of the state of Himachal Pradesh for investigation of offences as mentioned hereunder against the officials / officers of the Central Govt. department and other Central Institutions, located in the territory of Himachal Pradesh. (a) Offences under Prevention of Corruption Act, 1988 (Act No.49/88) (b) Attempts, abetments and conspiracies in relation to or in connection with one or more of the offences mentioned above, and any other offence or offences committed in the course of the same transaction arising out of the same facts. Sd./ (G. SITARAMAN) UNDER SECRETARY TO THE GOVT. OF INDIA" (emphasis supplied) 183. The aforesaid order refers to the consent granted by the State Government of Himachal Pradesh vide a consent order dated 02.08.1989. 184. On the other hand, the submission of Mr. Sibal is that the said consent order under Section 6 dated 02.08.1989 and the order dated 24.08.1990 issued by the Government of India under Section 5 of the DSPE Act do not take within their scope a Central Minist....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nt referred to therein dated 02.08.1989; the provisions contained in, inter alia, Sections 91 to 105, 165 & 166 Cr.P.C. and other provisions of the Code, and the DSPE Act, and; the decisions of the Supreme Court relevant to the issue. In this regard reference may be made to M.P. Sharma v. Satish Chandra, District Magistrate, Delhi, AIR 1954 SC 300; Radha Kishan v. State of Uttar Pradesh, AIR 1963, SC 822; and State of Haryana v. Rajmal, (2011) 14 SCC 326. 188. Thus, the submission of Mr. Sibal with regard to the legality and validity of the search & seizure and other investigation carried out by the CBI in the State of Himachal Pradesh cannot be, and need not be entertained in these proceedings. 189. Even if in a given case, the investigation conducted pursuant to registration of a Regular Case/ FIR is not legal or suffers from an infirmity, the same would not afford a ground to assail the registration of the RC/ FIR itself. The legality of the RC/ FIR would have to be tested on a reading of the RC/ FIR and on examination of other relevant aspects as laid down by the Supreme Court in State of Haryana vs. Bhajan Lal ,1992 SCC (Cri) 426, Som Mittal vs. Government of Karnataka ,(200....
X X X X Extracts X X X X
X X X X Extracts X X X X
....r another would have no impact on the position of the parties, it would be waste of public time and indeed not proper exercise of authority for the court to engage itself in deciding it. The court would not engage in a fruitless exercise. It would refuse to decide a question, unless it has a bearing on some right or liability in controversy between the parties. If the decision of a question would be wholly ineffectual as far as the parties are concerned, it would not only be unnecessary and pointless, but also inexpedient to decide it and the Court would properly decline to do so. (See Loknath Padhan Vs. Birender Kumar Sahu (1974) 4 SCC 526 and Basant Kumar Vs. State of Rajasthan and others (2001) 7 SCC 201). 192. The submission of the petitioners that the income-tax proceedings are still pending and, therefore, the registration of the RC/ FIR is premature also has no merit. The income-tax proceedings are only concerning the tax liability of the concerned assessee. The income-tax authorities are not examining as to whether the income derived by petitioner no.1 during the check period is a result of criminal misconduct under the PC Act. It is not even argued by the petitioners that....
X X X X Extracts X X X X
X X X X Extracts X X X X
....rim order staying the operation of the order of the Appellate Authority dated January 7, 1991. The said stay order of the High Court cannot have the effect of reviving the proceedings which had been disposed of by the Appellate Authority by its order dated January 7, 1991. While considering the effect of an interim order staying the operation of the order under challenge, a distinction has to be made between quashing of an order and stay of operation of an order. Quashing of an order results in the restoration of the position as it stood on the date of the passing of the order which has been quashed. The stay of operation of an order does not, however, lead to such a result. It only means that the order which has been stayed would not be operative from the date of the passing of the stay order and it does not mean that the said order has been wiped out from existence. This means that if an order passed by the Appellate Authority is quashed and the matter is remanded, the result would be that the appeal which had been disposed of by the said order of the Appellate Authority would be restored and it can be said to be pending before the Appellate Authority after the quashing of the or....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... Reliance placed on P.V. Narsimharao (supra) is misplaced. The Supreme Court held that a Member of Parliament is a Public Servant for the purpose of the P.C. Act. 196. The present is not a writ petition preferred by the State of Himachal Pradesh. The State of Himachal Pradesh cannot seek to advance submissions which have not even been raised by the petitioners. This Court is not obliged to deal with them, since the contesting respondent i.e. the CBI has not been called upon to meet the submissions of the State of Himachal Pradesh. Even otherwise, the present is not a petition raising a Centre-State dispute, which can be adjudicated only by the Supreme Court under Article 131 of the Constitution. 197. Turning to the questions framed by the Division Bench of the Himachal Pradesh High Court, in view of the above discussion, my answers to the same, insofar as they are relevant, are as follows: Sl. No. Question Answer 1 Whether cause of action has arisen within the territorial jurisdiction of this Court qua FIR No. RCAC-1 2015 A-004 registered on 23.9.2015, more particularly, in view of Sr. No. 5read in conjunction with paras 4, 5 and 6 of the FIR? The issue is not whether....
X X X X Extracts X X X X
X X X X Extracts X X X X
....t obtaining the prior consent of the State Government of Himachal Pradesh, cannot be determined in the present proceedings and would fall for consideration, if and when a charge-sheet is filed before the learned Special Judge. The issue whether, investigation carried out de hors the consent of the State of Himachal Pradesh - even if it were to be accepted for the sake of arguments that such consent was not available, would have to be considered by the learned Special Judge in the light of the discussion and decisions taken note of hereinabove. 5. Whether the raid of 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? Since the case/ RC has been justifiably registered at Delhi by the CBI, if the investigation (including the raid on the premises of the sitting Chief Minister) has been conducted by the CBI in the area of State of Himachal Pradesh in accordance with law, the same would not dilute the basic structure of Constitution of India. The petitioners have not relied upon any provision of law and have not cited any decision of ....