Full Judgment Text
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 7
CASE NO.:
Appeal (crl.) 938 of 1995
PETITIONER:
Superintendent of Police, C.B.I. and Others
RESPONDENT:
Tapan Kr. Singh
DATE OF JUDGMENT: 10/04/2003
BENCH:
N. SANTOSH HEDGE & B.P. SINGH.
JUDGMENT:
J U D G M E N T
B.P. Singh, J.
The Union of India, Superintendent of Police, Central
Bureau of Investigation and other officers of the said Bureau have
come up in appeal against the judgment and order of the High
Court of Judicature at Calcutta dated February 28, 1992 in
Criminal Revision No. 1913 of 1990 whereby the High Court
while allowing the revision petition quashed the investigation on
the basis of G.D. Entry No. 681 as also the First Information
Report recorded on October 20, 1990. It further quashed R.C.
Case No. 51 of 1990 under Section 13(2) read with Section
13(1)(e) of the Prevention of Corruption Act. Consequently it also
quashed the search and seizure effected on October 18, 1990 and
directed that the money and articles seized be returned to the
person from whom they were seized.
The brief facts of the case are as follows :-
On October 17, 1990 the Superintendent of Police, Central
Bureau of Investigation (S.P.E.) (A.C.B.), Calcutta received
information from reliable source on telephone that respondent,
who was then Director (Personnel), Eastern Coal Fields Limited,
was a corrupt officer in the habit of demanding and accepting
illegal gratification, had demanded and accepted a sum of rupees
one lakh which he was carrying with him while going to Nagpur
by Gitanjali Express on October 17, 1990. Since the parties have
advanced arguments before us on the question whether the said
report could be treated to be an information within the meaning of
Section 154 of the Code of Criminal Prosecution, it is convenient
to reproduce the General Diary Entry No.681 of October 17, 1990
in extenso which is as follows :-
"G.D. Entry No. 681 of 17.10.1990 of C.B.I.
S.P.E., A.C.B., CALCUTTA
11.30 hours Information received from a reliable
source indicate that Shri Tapan Kumar Singh,
Director (Personnel), Eastern Coalifields Limited,
Sanctorai, West Bengal is an out and out corrupt
official and is in habit of demanding and accepting
illegal gratifications. Information further revealed
that he demanded and accepted huge cash to the
tune of Rs.1 lakh approximately which he would
be carrying with him while going to Nagpur by
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 7
Geetanjali Express on 17.10.1990. He would be
boarding the train at Tata. The matter was
discussed with the DIG, CBI Calcutta and it was
decided to verify the information by intercepting
him enroute and to take other follow up actions, if
necessary.
Since there is no time for further verification
into the matter. I am leaving for Nagpur for
Geetanjali Express today (17.10.1990) scheduled
to start from Howrah at 13.10 hrs. with a team of
C.B.I. officers comprising of Inspector, S.R.
Majumdar, Inspector, R.K. Sarkar, Inspector, S.N.
Bhattacharjee and Inspector S.K. Dasgupta, this is
as per provision of Section 157 of the Cr. P.C.
Sd/- T.K. Sangyal
SP, CBI, SPE, ACB, Calcutta"
As would be apparent from the said G.D. Entry, the
Superintendent of Police, C.B.I. discussed the matter with D.I.G.,
C.B.I., Calcutta but since there was no time for further verification
into the matter, the Superintendent of Police, C.B.I. decided to
leave for Nagpur by Gitanjali Express with a view to intercept the
respondent and take further necessary action. In the said G.D.
Entry it is stated that the Superintendent of Police, C.B.I. left with
a team of C.B.I. officers and that the action was taken as per the
provisions of Section 157 of the Code of Criminal Procedure.
It is not in dispute that on October 18, 1990 at 1130 hours
the police party intercepted the respondent at Nagpur Railway
Station and conducted his personal search as well as the search of
his belongings as also the search of his residential flat at Nagpur.
A huge amount of money was recovered pursuant to such search
and the said amount alongwith other articles was seized. After
returning to Calcutta on October 20, 1990 the Superintendent of
Police, C.B.I. lodged a First Information Report alleging
commission of offences punishable under Section 13(2) read with
Section 13(1)(e) of the Prevention of Corruption Act, 1988. On
the basis of the said report, R.C. Case No. 51 of 1990 (Calcutta)
was registered.
The respondent filed a revision petition before the High
Court of Calcutta challenging the proceeding and sought quashing
of the investigation as well as the General Diary Entry No. 681 of
October 17, 1990 and the First Information Report lodged by the
Superintendent of Police, C.B.I. He also prayed for return of the
money and other articles seized from him by the Superintendent of
Police, C.B.I. on October 18, 1990.
Before the High Court several submissions were urged on
behalf of the respondent seeking quashing of the investigation as
well as the G.D. Entry and the First Information Report.
It was firstly submitted that the General Diary Entry did not
disclose the commission of any cognizable offence and hence the
Superintendent of Police, C.B.I. had no authority to investigate the
allegations made therein under Section 157 of the Code of
criminal Procedure, since he could exercise the power to
investigate only if the information given to the police related to the
commission of a cognizable offence. Secondly it was urged that
since the investigation itself was illegal, the search and seizure
made pursuant thereto under Section 165 of the Code of Criminal
Procedure were also illegal. Thirdly it was submitted that failure
of the Superintendent of Police, C.B.I. to record in writing the
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 7
ground for his belief that the things necessary for the purpose of
investigation might be found in the place of search, amounted to
breach of a mandatory condition and, therefore, vitiated the search.
The search was thus illegal and without jurisdiction and, therefore,
any recovery made or articles seized pursuant thereto should be
returned to the person from whom they were recovered. Lastly it
was submitted that the information received prior to investigation
must be distinguished from the information collected during
investigation. The latter cannot take the place of First Information
Report. After conducting partial investigation the police officer
cannot go back and record a First Information Report under
Section 154 of the Code of Criminal Procedure Code. Such First
Information Report is illegal and no action can be taken on the
basis of such an illegal First Information Report.
On behalf of the appellants it was contended before the High
Court that the G.D. Entry was not the First Information Report and
only the report made on October 20, 1990 was the First
Information Report. The action taken by the Superintendent of
Police, C.B.I. after recording the G.D. Entry and before lodging the
formal First Information Report was only in the nature of a
preliminary inquiry before investigation. Secondly the mere
mention of a wrong section in the G.D. Entry did not vitiate the
exercise of powers if such exercise can be traced to a legitimate
source. Lastly it was submitted that even in a preliminary inquiry
before initiation of investigation, search and seizure was
permissible.
The High Court after considering the submissions urged on
behalf of the parties came to the conclusion that the General Diary
entry did not disclose the commission of a cognizable offence and,
therefore, investigation pursuant to such a General Diary Entry was
illegal. The First Information Report which was lodged after
investigation was conducted in part was also illegal and
consequently no case could be initiated on the basis of such an
illegal First Information Report. It further held that this was not a
case in which a preliminary inquiry before investigation was
justified. In any event, the Superintendent of Police, C.B.I. did not
in fact make any preliminary enquiry and proceeded to take steps
for investigation as was apparent from the G.D. Entry wherein he
stated that he was taking action under Section 157 of the Code of
Criminal Procedure. The submission that a wrong section was
mentioned in the G.D. Entry by him was rejected on the grounds
firstly, that a senior officer like the Superintendent of Police, C.B.I.
was not expected to make such a mistake and secondly, that the
State was unable to mention the correct section which he should
have mentioned therein. Moreover, there was no provision in the
Code of Criminal Procedure authorizing a police officer to make a
preliminary enquiry before investigation. The steps taken by the
Superintendent of Police, C.B.I. were the steps which an
investigating officer is authorized to take while investigating a case
on the basis of a report disclosing commission of a cognizable
offence, such as apprehension of the accused, collection of
evidence, search and seizure etc. Though it was not disputed that
in law, in an appropriate case, a G.D. Entry may be treated as a
First Information Report and can provide the basis for
investigation, in the instant case however, the Superintendent of
Police, C.B.I. lodged a First Information Report two days later.
The steps taken by him after recording the G.D. Entry and before
lodging the First Information report on 20.10.1990 were the steps
in investigation and not the steps in a preliminary enquiry prior to
initiation of regular investigation.
The High Court also held that the alleged First Information
Report lodged on 20.10.1990 was not a First Information Report in
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 7
law, as it was recorded after the investigation had proceeded to
some extent, and was therefore covered by Sections 161 and 162 of
the Code.
On the question whether the G.D. Entry itself disclosed the
commission of a cognizable offence, the Court observed :-
"Now let me look into the G.D. Entry on the
basis of which the instant investigation has been
started. On a careful scrutiny of the said G.D.
Entry I am of the opinion that the said G.D. Entry
contains some vague allegations and does not
disclose the commission of any cognizable
offence. It has been stated that the present
petitioner was an out and out corrupt official and
was in the habit of demanding and accepting
illegal gratifications such statement certainly does
not disclose the commission of any offence. It has
been further stated that the petitioner demanded
and accepted huge cash to the tune of Rs.1,00,000.
The statement is equally vague, it has not been
stated from whom such huge cash was demanded
and accepted. Nor has it been stated that such
demand or acceptance was made as a motive or
reward for doing or forbearing to do any official
act or for showing or for bearing to show in
exercise of his official function, favour or
disfavour of any person or for rendering
attempting to render any service or disservice to
any person. The information as recorded in G.D.
Entry No. 681 is extremely (sic) cognizable
offence. On such information as recorded in the
said G.D. Entry it cannot be said that the Police
Officer reasonably had reason to suspect the
commission of any cognizable offence. As the
information as recorded in G.D. Entry No. 681 on
the basis of which the instant investigation has
been started does not disclose the commission of
any cognizable offence and as the police officer
cannot, reasonably had any reason to suspect the
commission of a cognizable offence on such held
information, this court in view of the aforesaid
decision of the Supreme Court holds that the
investigation on the basis of the said G.D. Entry is
unlawful and without jurisdiction and should,
therefore, be quashed".
Lastly, the High Court held that the search and seizure
conducted by the Superintendent of Police, C.B.I. were not in
accordance with law as a mandatory requirement of Section 165 of
the Code was not fulfilled inasmuch as the officer making the
investigation failed to record in writing the grounds for his belief
that anything necessary for the purpose of an investigation into any
offence which he was authorized to investigate may be found in
any place and that such thing could not, in his opinion, be
otherwise obtained without undue delay. The search and seizure
was, therefore, illegal and the things recovered in pursuance of
such illegal search must be returned to the person from whom they
were seized.
On these findings, the High Court allowed the Criminal
Revision Petition and quashed the G.D. Entry, the First
Information Report as well as the investigation, and directed return
of the money and articles seized.
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 7
The crucial finding recorded by the High Court is that the
facts stated in the G.D. Entry did not disclose the commission of a
cognizable offence, and consequently the police had no power or
jurisdiction to investigate the allegations made therein. Thus, the
investigation undertaken, and the search and seizures made were
illegal and without jurisdiction and deserved to be quashed.
It is the correctness of this finding which is assailed before
us by the appellants. They contend that the information recorded
in the G.D. Entry does disclose the commission of a cognizable
offence. They submitted that even if their contention, that after
recording the G.D. Entry only a preliminary enquiry was made, is
not accepted, they are still entitled to sustain the legality of the
investigation on the basis that the G.D. Entry may be treated as a
First Information Report, since it disclosed the commission of a
cognizable offence.
The parties before us did not dispute the legal position that a
G.D. Entry may be treated as a First Information Report in an
appropriate case, where it discloses the commission of a
cognizable offence. If the contention of the appellants is upheld,
the order of the High Court must be set aside because if there was
in law a First Information Report disclosing the commission of a
cognizable offence, the police had the power and jurisdiction to
investigate, and in the process of investigation to conduct search
and seizure. It is, therefore, not necessary for us to consider the
authorities cited at the Bar on the question of validity of the
preliminary enquiry and the validity of the search and seizure.
We have earlier in this judgment reproduced the G.D. Entry
dated 17.10.1990 in extenso. The facts stated therein are that the
respondent was a corrupt official and was in the habit of accepting
illegal gratifications; that he had demanded and accepted cash to
the tune of rupees one lakh approximately, and that he would be
carrying with him the said amount while going to Nagpur by
Gitanjali Express on 17.10.1990.
The information so recorded does make a categoric assertion
that the respondent has accepted a sum of rupees one lakh by way
of illegal gratification, and that he was carrying the said amount
with him while going to Nagpur by Gitanjali Express on that day.
If these assertions are accepted on their face value, clearly an
offence of criminal mis-conduct under Section 13 of the
Prevention of Corruption Act, 1988 is made out. It cannot be
disputed that such offence of criminal mis-conduct is a cognizable
offence having regard to the second item of the last part of
Schedule I of the Code of Criminal Procedure under the head "II
Classification of Offences Against other laws".
The High Court fell into an error in thinking that the
information received by the police could not be treated as a First
Information Report since the allegation was vague in as much as it
was not stated from whom the sum of rupees one lakh was
demanded and accepted. Nor was it stated that such demand or
acceptance was made as motive or reward for doing or forbearing
to do any official act, or for showing or forbearing to show in
exercise of his official function, favour or disfavour to any person
or for rendering, attempting to render any service or disservice to
any person. Thus there was no basis for a police officer to suspect
the commission of an offence which he was empowered under
section 156 of the Code to investigate.
It is well settled that a First Information Report is not an
encyclopedia, 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
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 7
victim or his assailant. He may not even know how the occurrence
took place. A first informant need not necessarily be an eye
witness so as to be able to disclose in great details 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 enough if the police officer on the basis of the
information given suspects the commission of a cognizable
offence, and not that he must be convinced or satisfied that a
cognizable offence has been committed. If he has reasons to
suspect, on the basis of information received, that a cognizable
offence may have been committed, he is bound to record the
information and conduct an investigation. At this stage it is also
not necessary for him to satisfy himself about the truthfulness of
the information. It is only after a complete investigation that he
may be able to report on the truthfulness or otherwise of the
information. Similarly, even if the information does not furnish all
the details, he must find out those details in the course of
investigation and collect all the necessary evidence. The
information given disclosing the commission of a cognizable
offence only sets in motion the investigative machinery, with a
view to collect all necessary evidence, and thereafter to take action
in accordance with law. The true test is whether the information
furnished provides a reason to suspect the commission of an
offence, which the concerned police officer is empowered under
Section 156 of the Code to investigate. If it does, he has no option
but to record the information and proceed to investigate the case
either himself or depute any other competent officer to conduct the
investigation. The question as to whether the report is true,
whether it discloses full details regarding the manner of
occurrence, whether the accused is named, and whether there is
sufficient evidence to support the allegations are all matters which
are alien to the consideration of the question whether the report
discloses the commission of a cognizable offence. Even if the
information does not give full details regarding these matters, the
investigating officer is not absolved of his duty to investigate the
case and discover the true facts, if he can.
In the instant case the information received by the
Superintendent of Police, C.B.I. clearly spells out the offence of
criminal mis-conduct under Section 13 of the Prevention of
Corruption Act, 1988, inasmuch as there is a clear allegation that
the respondent has demanded and accepted a sum of rupees one
lakh by way of illegal gratification. The allegation is not as vague
and bald as the High Court makes it out to be. There is a further
assertion that the respondent is carrying with him the said sum of
rupees one lakh and is to board the Gitanjali Express going to
Nagpur. The allegation certainly gives rise to a suspicion that a
cognizable offence may have been committed by the respondent,
which the Superintendent of Police, C.B.I. was empowered to
investigate. Therefore if the Superintendent of Police, C.B.I.
proceeded to intercept the respondent and investigate the case, he
did only that which he was in law obliged to do. His taking up the
investigation, therefore, cannot be faulted.
The High Court has also quashed the G.D. Entry and the
investigation on the ground that the information did not disclose all
the ingredients of the offence, as if the informant is obliged to
reproduce the language of the section, which defines "criminal
misconduct" in the Prevention of Corruption Act. In our view the
law does not require the mentioning of all the ingredients of the
offence in the First Information Report. It is only after a complete
investigation that it may be possible to say whether any offence is
made out on the basis of evidence collected by the investigating
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 7
agency.
The High Court also held that before conducting the search
and seizure the mandatory requirement of Section 165 was not
fulfilled inasmuch as the Investigating Officer did not record in
writing the grounds for his belief as required by the said section. It
is pre-mature at this stage to consider whether search and seizure
was done in accordance with law as that is a question which has to
be considered by the Court, if the accused is ultimately put up for
trial and he challenges the search and seizure made. Similarly, the
question as to whether the G.D. Entry, or the F.I.R. formally
recorded on October 20, 1990, is the F.I.R. in the case, is a matter
which may be similarly agitated before the Court. Where two
informations are recorded and it is contended before the Court that
the one projected by the prosecution as the F.I.R. is not really the
F.I.R. but some other information recorded earlier is the F.I.R, that
is a matter which the Court trying the accused has jurisdiction to
decide. Similarly, the mentioning of a particular Section in the
F.I.R is not by itself conclusive as it is for the Court to frame
charges having regard to the material on record. Even if a wrong
Section is mentioned in the F.I.R., that does not prevent the Court
from framing appropriate charges.
We are, therefore, of the considered view that the High
Court erred in exercising its revisional jurisdiction to quash the
G.D. Entry, the F.I.R. and the investigation undertaken by the
Superintendent of Police, C.B.I in the facts and circumstances of
this case. The High Court also erred in granting relief to the
respondent by directing the return of the seized amount and other
articles. This appeal, therefore, deserves to be allowed and is
accordingly allowed. The judgment and order of the High Court is
set aside and the appellants are directed to proceed with the
investigation in accordance with law and thereafter to take all steps
as are required to be taken in law.
Since we have directed the investigation to continue, the
investigating agency should complete the investigation and
thereafter take such action as may be justified in law. Nothing
said in this judgment should be construed as expression of opinion
on the merit of the case. It is for the investigating agency to collect
all necessary evidence and take such steps as may be justified,
having regard to the evidence collected by it. We should not be
understood to have expressed any opinion on the truthfulness or
otherwise of the allegations made in the report on the basis of
which the investigation was undertaken. Observations, if any,
have been made only for the purpose of deciding the question as to
whether the investigating agency was justified in taking up the
investigation pursuant to the G.D. Entry No. 681 recorded on the
17th October, 1990. Similarly, any observation made by the High
Court while disposing of the Revision should not prejudice the
case of the parties.