TaxTMI 
TaxTMI 
1994 (8) TMI 323
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....r reports. The petitioner has alleged in the writ petition that the investigating agency is not proceedings with the investigation in the right earnest and in an impartial manner, because of involvement of some VIPs including the members belong to the judiciary and they are influencing the investigation being close to Advocate Dewani family at those place the incident occurred. According to allegations in the writ petition, some wet party was arranged at the residence of Advocate a Dewani on 27th March 1994 and the incident of rape and murder was sequel to that party. Basing his knowledge on the information received from the newspaper reports, the petitioner has also alleged that to suppress the crime, on 28-3-1994, the Dewani showed the death of their maid servant Mrs. Manorama Kamble due to electric shock and police registered the case of accidental death only. The post-mortem was conducted on the dead body of Mrs. Manorama Kamble on 29-3-1994 and it transpired that her death was not accidental but a culpable homicide amounting to murder and that prior to her murder, she was raped. After post-mortem report, the case of rape and murder was registered bearing Crime No. 97/94. Th....
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....respondents 1 and 3 disclose that the doctor conducting the post-mortem found that Manorama's death took place within 24 hours prior to the post-mortem and thus, the evidence was to the effect that offences of rape and murder of Manorama Kamble were committed on 28-3-1994. The investigating authorities i.e. the State C.I.D. who were especially entrusted with investigation into the matter have succeeded in collecting substantial evidence. It was submitted that sample of semen on the private parts of Manorama Kamble and hair have been collected and all such material had been sent to the Chemical Analyser and reports thereon have been received. They emphatically denied that any slide of semen or any other slide pertaining to the investigation of the present case has been destroyed. The State Government took a serious view of the alleged inaction of the concerned police officers on duty at Jaripatka Police Station and also superior police officers and the respondent No. 3 Director General of Police transferred the Additional Commissioner of Police Shir R. P. Khilani and suspended B. M. Sakharkar, Police Inspector of Police Station, Jaripatka for the delay in registering the offence....
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....newpapers. The respondents have also stated that the State Government has not accorded its consent under Section 6 of the Delhi Special Police Establishment Act, 1946 (for Short, 'the DSPE Act') and without such consent it would not be legal and proper to direct handing over of the present investigation to CBI. 4. Though the respondent No. 2 has not filed any counter para-wise to the writ petition, yet in its short reply, the respondent No. 2 has submitted that it cannot suo motu entrust to the C.B.I. investigation of an offence which had taken place in the State unless the State Government proposed and gave consent under Section 6 of DSPE Act for extension of jurisdiction to the C.B.I. in respect of that offence and since the respondent No. 2 has not received any request from the State Government of Maharashtra where the offence has occurred for investigation of this case by C.B.I. nor the State Government of Maharashtra has accorded its consent for extension of jurisdiction of the C.B.I. for investigation of this case, the relief against the respondent No. 2 was premature and it is only after the State Government of Maharashtra accords and consent, feasibility of entru....
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.... Court cannot order investigation of Crime No. 97/94 registered at Jaripatka Police Station, Nagpur by C.B.I. in exercise of its jurisdiction under Article 226 of the Constitution of India. This preliminary objection was raised by Mr. Bobde making it very clear that the present writ petition being a public interest litigation, the State is not appearing in the case as an adversary to the petitioner, but is assisting the Court in the subject-matter of the petition. 7. Mr. Patil, the learned counsel for the petitioner submitted that the powers of this Court under Article 226 of the Constitution of India are very wide and extensive and even in the absence of notification or order under Section 3 of the DSPE Act and even without consent of the State Government under Section 6 of the said Act, this Court is empowered to direct investigation to be conducted by C.B.I. in appropriate case. By referring to Punjab and Haryana High Court Bar Association v. State of Punjab, 1994 CriLJ 1368, Mr. Patil submitted that the apex Court in that case even after investigation having been completed by the police and charge-sheet submitted to the Court in the facts and circumstances of the case to do ....
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....ification or order having been issued in that behalf. However, pendency of such reference to a larger Bench does not grind to halt everything, observed the apex Court. Hon'ble Ahmadi, J. who delivered the judgment in the Mohammed Ani's case (supra) further held that the reference to the expression 'Court' in the order of reference to the larger bench cannot in the context mean the apex Court for the reason that the apex Court has been conferred extraordinary powers under Article 142(1) of the Constitution, so that it can do complete justice in any cause or matter pending before it. 10. It, therefore, becomes clear that so far as apex court is concerned, in appropriate cases in its extraordinary power under Article 142 of the Constitution of India, the Supreme Court can order the CBI to investigate a cognizable offence committed within the State without the consent of that State Government or without any notification or order having been issued in that behalf. But the question is, whether such power can be exercised by the High Court under Article 226 also. Whether even when the circumstances warrant in the public interest to have investigation conducted by specia....
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....e officer belonging to that police force. Sub-section (3) of Section 5 of the DSPE Act provides that where any such order under sub-section (1) is made in relation to any area, then without prejudice to the provisions of sub-section (2), 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 that 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. Section 6 of the DSPE Act provides that 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 areas; not being a Railway area without the consent of the Government of the State. 12. In Mohammed Anis's Case 1994 SCC 215 (supra), the Supreme Court has held that the statutory obligation governing the relations between the Central Government and the State Government cannot control the power of the apex court under Article 142(1)....
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....h a consideration alone". 15. Apex Court in Delhi Judicial Service Association v. State of Gujarat 1991 CriLJ 3086 also dealt with the scope of power of the Supreme Court under Art. 142 of the Constitution of India and held that the said power is plenary power of the Supreme Court. It was held (Para 51) :- "This Court's power under Article 142(1) to do "complete justice" is entirely of different level and of a different quality. Any prohibition or restriction contained in ordinary laws cannot act as a limitation on the constitutional powers of this Court. Once this Court has seisin of a cause or matter before it, it has power to issue any order or direction to do "complete justice" in the matter. This constitutional power of the Apex Court cannot be limited or restricted by provisions contained in statutory law". It was further held in the aforesaid case of Delhi Judicial Service Association v. State of Gujarat that 1991 CriLJ 3086 :- "No enactment made by Central or State Legislature can limit or restrict the power of this Court under Article 142 of the Constitution, though while exercising power under Article 142 of the Constitution, the Court must tak....
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....utory law. He suggested that if the expression 'prohibition' is read in place of 'provision' that would perhaps convey the appropriate idea. But we think that such prohibition should also be shown to be based on some underlying fundamental and general issues of public policy and not merely incidental to a particular statutory scheme or pattern. It will again be wholly incorrect to say that powers under Art. 142 are subject to such express statutory prohibitions. That would convey the idea that statutory provisions override a constitutional provision. Perhaps, the proper way of expressing the idea is that in exercising powers under Act. 142 and in assessing the needs of "complete justice" of a cause or matter, the apex court will take note of the express prohibitions in any substantive statutory provision based on some fundamental principles of public-policy and regulate the exercise of its power and discretion accordingly. The proposition does not relate to the powers of the court under Art. 142, but only to what is or is not 'complete justice' of a cause or matter and in the ultimate analysis of the propriety of the exercise of the power. No question of lac....
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....y which is essentially discretionary, although founded on legal injury. It is perfectly open for the court, exercising this flexible power, to pass such order such as public interest dictates and equity projects. Courts of equity may, and frequently do, go much further both to give and withhold relief in furtherance of the public interest than they are accustomed to go where only private interests are involved. Accordingly, the granting or withholding of relief may properly be dependent upon considerations as of public interest". 20. The legal position which emerges very clearly from the aforesaid discussion is that though the power of the High Court under Article 226 of the Constitution of India is wide and comprehensive, but certainly not as wide and as extraordinary as the Supreme Court under Article 142 of the Constitution. The power of the High Court under Article 226 cannot be equated with the power of the Supreme Court under Article 142 of the Constitution and the width, amplitude and scope of the power of the Supreme Court under Article 142 of the Constitution is much more than the power of the High Court under Article 226 of the Constitution. Prohibitions or limitations....
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....red by the Supreme Court under Article 142 of the Constitution of India are binding on the High Court as binding precedents under Article 141 of the Constitution of India. 22. True it is that the question whether a court can order the CBI., an establishment under the DSPE Act, to investigate a cognizable offence committed within a State without the consent of that State Government or without any notification or order having been issued in that behalf, is referred to the larger Bench by the order of the Supreme Court dated March 10, 1989 in Haryana Mahila Sanghatan's case (supra), but the law already laid down by the apex court in some of its judgments relating to Section 6 of the DSPE Act does not cease to be binding on the High Court. We are of the view that the decision of the Supreme Court referred to larger Bench and sought to be examined in some cases does not make the law already laid down not binding on the High Court till the authoritative pronouncement is delivered by the larger Bench of Supreme Court. 23. In the State of West Bengal v. Sampat Lal 1985 CriLJ 516, the question arose whether sanction under Section 6 of the DSPE Act was necessary before directions b....
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....nducted by CBI without the consent of the State Government or without any notification or order having been issued in that behalf. 25. We are fortified in our view by a Division Bench Judgment of the Rajasthan High Court in the case of State of Rajasthan v. Phool Chand Garg wherein the Rajasthan High Court has held :- "No material has been placed before us whether there has been any consent under S. 6 of the Act of the State Government, but it can hardly be disputed that in case this court orders that the case should be investigated by the CBI, no consent of the State Government is necessary. The Supreme Court in the case of State of West Bengal v. Sampat Lal, 1985 CriLJ 516, has said that consent under S. 6 of the Act would not be a condition precedent to compliance with the Court's direction and S. 6 of the Act does not apply when the court gives a direction to the CBI to conduct an investigation. Therefore, it may be that a mandamus under Article 226 of the Constitution may be issued directing the State Government to transfer the investigation or to direct the CBI to make the investigation in a case registered with any local police station, but the powers under A....
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....ed her husband Nirajan Kamble that his wife had died due to electric shock and she may be cremated and for the same offered Rs. 1000/- and also asked the husband of deceased Manorama to accept Rs. 500/- towards her salary. According to the submissions of Mr. patil, the investigation was transferred to State CID on 3-4-1994 but not much progress has been done by the State CID in the investigation and during this period of more than two months only pieces of bangles were recovered on 11-4-1994. The learned counsel for the petitioner feared that the State CID was proceeding with the investigation in slow and casual manner so that charge-sheet might not be filed within time. 30. We directed Mr. Bobde, the learned counsel for respondents 1 and 3 to keep the case diary ready for our perusal. 31. On the other hand, Mr. Bobde strenuously urged before us that there has been no delay whatsoever in investigation by the State CID and all relevant material and evidence connecting the accused persons with crime have been collected. According to him, the investigation in the case is not being conducted on class or caste lines or on any consideration that anybody belongs to higher or lower e....