Full Judgment Text
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CASE NO.:
Appeal (crl.) 36 of 2002
PETITIONER:
Central Bureau of Investigation
RESPONDENT:
Shri Ravi Shankar Srivastava, IAS and Anr.
DATE OF JUDGMENT: 10/08/2006
BENCH:
ARIJIT PASAYAT & ALTAMAS KABIR
JUDGMENT:
J U D G M E N T
ARIJIT PASAYAT, J.
Central Bureau of Investigation (in short ’CBI’) questions
legality of the judgment rendered by a learned Single Judge of
the Rajasthan High Court, Jaipur Bench. Respondent No.1, a
member of Indian Administrative Service filed a petition under
Section 482 of the Code of Criminal Procedure, 1973 (in short
’the Code’) for quashing the FIR registered by the appellant
alleging commission of offences punishable under Sections
120B, 167, 168, 177A of the Indian Penal Code, 1860 (in short
’IPC’) and Sections 13(2) and 13(1) of the Prevention of
Corruption Act, 1988 (in short ’PC Act’). The only ground on
which the respondent no.1 prayed for quashing the FIR is that
the CBI had no jurisdiction to register the FIR under the Delhi
Special Police Establishment Act, 1946 (in short the ’Act’). FIR
was registered by Shri Rajiv Sharma, Superintendent of Police,
Jaipur at the Police Station, CBI on the information received
through some sources as in regard to certain advertisements
involving criminal conspiracy resulting in the commission of
offences noted above.
Respondent no.1 filed the petition before the High Court
questioning legality of the proceedings.
With reference to Sections 3, 5 and 6 of the Act, the
respondent no.1 took the stand that the CBI had no
jurisdiction to register the case. In substance the stands were:
(a) consent necessary by the concerned State for operation of
the Act had been withdrawn as is evident from the letter dated
26.6.1999 of the Special Officer (Home), Secretary,
Department in response to the letter dated 21.11.1989 written
by the Government of India, Department of Personnel and
Training, New Delhi. (b) consent of the State Government
which was given in 1956 was extended in 1989 after the PC
Act was promulgated but subsequently the State Government
had not considered it appropriate to accord consent to extend
some provisions of the Act to the whole of the State of
Rajasthan, (c) though the consent had been given by the State
of Rajasthan in 1956 and extended in 1989, same did not
relate to any particular officer to act in terms of the Act and,
therefore, the FIR as lodged had no validity in the eye of law.
The High Court accepted the stands. It held that the consent
was earlier given in 1956 and extended in 1989 after the Act
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was enacted. The same became inoperative after the State
Government refused to accord consent for extending the same
provisions of the Act to the whole of Rajasthan. It was also
held that for the authorized officers to function under the Act
it was necessary that the officers were required to be
individually notified and a general notification would not
suffice.
In support of the appeal, learned counsel for the
appellant submitted that the High Court has committed patent
errors in law. First, prayer of the respondent no.1 could not
have been adjudicated in a petition instituted under Section
482 of the Code. Secondly, the High Court has lost sight of the
fact that the notification issued under Section 5 of the Act had
not been rescinded or revoked at any point of time. Further an
inter departmental communication has been treated as a
notification to hold that the State Government had not
extended the notification. The authority of the person who
wrote that letter has not been established. In any event, the
same cannot be treated to be one covered under Article 166 of
the Constitution of India, 1950 (in short ’the Constitution’).
Thirdly, there was no specific order required in respect of each
officer as has been held in various decision of this Court.
In response, learned counsel for the respondent no.1
submitted that when the proceeding itself was void ab initio
the High Court was justified in quashing the FIR. Further,
there is no material on record to show that the consent which
was given in 1956 and extended in 1989 was intended to be
continued.
The rival contentions need careful consideration.
Exercise of power under Section 482 of the Code in a
case of this nature is the exception and not the rule. The
Section does not confer any new powers on the High Court. It
only saves the inherent power which the Court possessed
before the enactment of the Code. It envisages three
circumstances under which the inherent jurisdiction may be
exercised, namely, (i) to give effect to an order under the Code,
(ii) to prevent abuse of the process of court, and (iii) to
otherwise secure the ends of justice. It is neither possible nor
desirable to lay down any inflexible rule which would govern
the exercise of inherent jurisdiction. No legislative enactment
dealing with procedure can provide for all cases that may
possibly arise. Courts, therefore, have inherent powers apart
from express provisions of law which are necessary for proper
discharge of functions and duties imposed upon them by law.
That is the doctrine which finds expression in the section
which merely recognizes and preserves inherent powers of the
High Courts. All courts, whether civil or criminal possess, in
the absence of any express provision, as inherent in their
constitution, all such powers as are necessary to do the right
and to undo a wrong in course of administration of justice on
the principle "quando lex aliquid alicui concedit, concedere
videtur et id sine quo res ipsae esse non potest" (when the law
gives a person anything it gives him that without which it
cannot exist). While exercising powers under the section, the
court does not function as a court of appeal or revision.
Inherent jurisdiction under the section though wide has to be
exercised sparingly, carefully and with caution and only when
such exercise is justified by the tests specifically laid down in
the section itself. It is to be exercised ex debito justitiae to do
real and substantial justice for the administration of which
alone courts exist. Authority of the court exists for
advancement of justice and if any attempt is made to abuse
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that authority so as to produce injustice, the court has power
to prevent abuse. It would be an abuse of process of the court
to allow any action which would result in injustice and prevent
promotion of justice. In exercise of the powers court would be
justified to quash any proceeding if it finds that
initiation/continuance of it amounts to abuse of the process of
court or quashing of these proceedings would otherwise serve
the ends of justice. When no offence is disclosed by the
complaint, the court may examine the question of fact. When a
complaint is sought to be quashed, it is permissible to look
into the materials to assess what the complainant has alleged
and whether any offence is made out even if the allegations are
accepted in toto.
In R. P. Kapur v. State of Punjab (AIR 1960 SC 866) this
Court summarized some categories of cases where inherent
power can and should be exercised to quash the proceedings.
(i) where it manifestly appears that there is a
legal bar against the institution or continuance
e.g. want of sanction;
(ii) where the allegations in the first
information report or complaint taken at its
face value and accepted in their entirety do not
constitute the offence alleged;
(iii) where the allegations constitute an offence,
but there is no legal evidence adduced or the
evidence adduced clearly or manifestly fails to
prove the charge.
In dealing with the last case, it is important to bear in
mind the distinction between a case where there is no legal
evidence or where there is evidence which is clearly
inconsistent with the accusations made, and a case where
there is legal evidence which, on appreciation, may or may not
support the accusations. When exercising jurisdiction under
Section 482 of the Code, the High Court would not ordinarily
embark upon an enquiry whether the evidence in question is
reliable or not or whether on a reasonable appreciation of it
accusation would not be sustained. That is the function of the
trial Judge. Judicial process should not be an instrument of
oppression, or, needless harassment. Court should be
circumspect and judicious in exercising discretion and should
take all relevant facts and circumstances into consideration
before issuing process, lest it would be an instrument in the
hands of a private complainant to unleash vendetta to harass
any person needlessly. At the same time the section is not an
instrument handed over to an accused to short-circuit a
prosecution and bring about its sudden death. The scope of
exercise of power under Section 482 of the Code and the
categories of cases where the High Court may exercise its
power under it relating to cognizable offences to prevent abuse
of process of any court or otherwise to secure the ends of
justice were set out in some detail by this Court in State of
Haryana v. Bhajan Lal (1992 Supp (1) 335). A note of caution
was, however, added that the power should be exercised
sparingly and that too in rarest of rare cases. The illustrative
categories indicated by this Court are as follows:
"(1) Where the allegations made in the first
information report or the complaint, even if
they are taken at their face value and accepted
in their entirety do not prima facie constitute
any offence or make out a case against the
accused.
(2) Where the allegations in the first
information report and other materials, if any,
accompanying the FIR do not disclose a
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cognizable offence, justifying an investigation
by police officers under Section 156(1) of the
Code except under an order of a Magistrate
within the purview of Section 155(2) of the
Code.
(3) Where the uncontroverted allegations made
in the FIR or complaint and the evidence
collected in support of the same do not
disclose the commission of any offence and
make out a case against the accused.
(4) Where the allegations in the FIR do not
constitute a cognizable offence but constitute
only a non-cognizable offence, no investigation
is permitted by a police officer without an
order of a Magistrate as contemplated under
Section 155(2) of the Code.
(5) Where the allegations made in the FIR or
complaint are so absurd and inherently
improbable on the basis of which no prudent
person can ever reach a just conclusion that
there is sufficient ground for proceeding
against the accused.
(6) Where there is an express legal bar
engrafted in any of the provisions of the Code
or the Act concerned (under which a criminal
proceeding is instituted) to the institution and
continuance of the proceedings and/or where
there is a specific provision in the Code or Act
concerned, providing efficacious redress for the
grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly
attended with mala fide and/or where the
proceeding is maliciously instituted with an
ulterior motive for wreaking vengeance on the
accused and with a view to spite him due to
private and personal grudge."
As noted above, the powers possessed by the High Court
under Section 482 of the Code are very wide and the very
plenitude of the power requires great caution in its exercise.
Court must be careful to see that its decision in exercise of
this power is based on sound principles. The inherent power
should not be exercised to stifle a legitimate prosecution. The
High Court being the highest court of a State should normally
refrain from giving a prima facie decision in a case where the
entire facts are incomplete and hazy, more so when the
evidence has not been collected and produced before the Court
and the issues involved, whether factual or legal, are of
magnitude and cannot be seen in their true perspective
without sufficient material. Of course, no hard-and-fast rule
can be laid down in regard to cases in which the High Court
will exercise its extraordinary jurisdiction of quashing the
proceeding at any stage. (See: Janata Dal v. H. S. Chowdhary
(1992 (4) SCC 305), and Raghubir Saran (Dr.) v. State of Bihar
(AIR 1964 SC 1). It would not be proper for the High Court to
analyse the case of the complainant in the light of all
probabilities in order to determine whether a conviction would
be sustainable and on such premises arrive at a conclusion
that the proceedings are to be quashed. It would be erroneous
to assess the material before it and conclude that the
complaint cannot be proceeded with. In a proceeding
instituted on complaint, exercise of the inherent powers to
quash the proceedings is called for only in a case where the
complaint does not disclose any offence or is frivolous,
vexatious or oppressive. If the allegations set out in the
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complaint do not constitute the offence of which cognizance
has been taken by the Magistrate, it is open to the High Court
to quash the same in exercise of the inherent powers under
Section 482 of the Code. It is not, however, necessary that
there should be meticulous analysis of the case before the trial
to find out whether the case would end in conviction or
acquittal. The complaint has to be read as a whole. If it
appears that on consideration of the allegations in the light of
the statement made on oath of the complainant that the
ingredients of the offence or offences are disclosed and there is
no material to show that the complaint is mala fide, frivolous
or vexatious, in that event there would be no justification for
interference by the High Court. When an information is lodged
at the police station and an offence is registered, then the
mala fides of the informant would be of secondary importance.
It is the material collected during the investigation and
evidence led in court which decides the fate of the accused
person. The allegations of mala fides against the informant are
of no consequence and cannot by themselves be the basis for
quashing the proceedings. (See: Dhanalakshmi v. R. Prasanna
Kumar (1990 Supp SCC 686), State of Bihar v. P. P. Sharma
(AIR 1996 SC 309), Rupan Deol Bajaj v. Kanwar Pal Singh Gill
(1995 (6) SCC 194), State of Kerala v. O. C. Kuttan (AIR 1999
SC 1044), State of U.P. v. O. P. Sharma (1996 (7) SCC 705),
Rashmi Kumar v. Mahesh Kumar Bhada (1997 (2) SCC 397),
Satvinder Kaur v. State (Govt. of NCT of Delhi) (AIR 1996 SC
2983), Rajesh Bajaj v. State NCT of Delhi (1999 (3) SCC 259)
and in State of Karnataka v. M. Devendrappa and Another
(2002 (3) SCC 89).
Coming to the question as to whether specific order in
respect of each of the officer, the position is no longer res
integra. In Central Burea of Investigation v. State of Rajasthan
and Ors. (1996 (9) SCC 735) it was held as follows:
"21. On a careful consideration of the facts
and circumstances of the case and
submissions made by the learned Counsel for
the parties, it appears to us that under Section
3 of DSPE Act, the Central Government may,
by notification, specify the offences which are
to be investigated by the members of DSPE. It
is not disputed that notification under Section
3 of DSPE Act has been issued by the Central
Government specifying the offences under
FERA to be investigated by the members of
DSPE. It is also not in dispute that a
notification dated October 26, 1977 by the
Government of India, Ministry of Home Affairs,
Department of Personnel and Administrative
Reforms, has been issued in exercise of the
powers conferred by Sub-section (1) of Section
5 read with Section 6 of DSPE Act. By the said
notification the Central Government, with
consent of the various State Governments as
mentioned in the said notification including
the State Government of Rajasthan, has
extended the powers and jurisdiction of the
members of DSPE, inter alia, to the State of
Rajasthan for the investigation of the offences
specified in the Schedule to the said
notification. In the schedule under Clause (a),
offences punishable under the FERA and
under Clause (b) attempts, abatements and
conspiracies in relation to or in connection
with any offence mentioned in Clause (a) and
any other offence committed in the course of
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the same transaction arising out of the same
facts have been mentioned.
22. It is, however, to be noted that under
Section 2 of DSPE Act, the Central
Government has been empowered to constitute
a special police force to be called the DSPE for
the investigation in any Union Territory of
offences notified under Section 3. Under
Section 5(1) of DSPE Act the Central
Government may by order extend to any area
including Railway areas in a State, not being
Union Territory, the powers and jurisdiction of
the members of the DSPE for the investigation
of any of the offences or classes of offences
specified in a notification under Section 3,
Under Section 5(2), when by an order under
Sub-section (1), the powers and jurisdiction of
the members of the said police establishment
are extended to any such area, a member
thereof may, subject to any order which the
Central Government may make in this behalf,
discharge the functions of a police officer in
that area and shall, while so discharging such
functions, be deemed to be a member of a
police Force of that area and be vested with the
powers, functions and privileges and be
subject to the liabilities of a police officer
belonging to that police force.
23. It is quite evident that members of DSPE
are members of special police force constituted
under Section 2 of DSPE Act by the Central
Government. The question that arises for
decision in this case is whether or not a
member of DSPE, which is also a member of
special police force constituted by the Central
Government, even if authorised under Section
3 and Section 5 of DSPE Act to investigate in
respect of offences under FERA in a particular
state other than the Union Territory, with the
consent of such State Government, can
investigate the offences for violation of FERA,
more so, when the offence is alleged to have
been committed outside indian Territory. It will
be apposite at this stage to refer to the
provisions of Sections 3, 4 and 5 of FERA:
"Section 3: Classes of Officers of
Enforcement -
There shall be the following classes of
officers of Enforcement, namely:
(a) Directors of Enforcement:
(b) Additional Directors of Enforcement;
(c) Deputy Directors of Enforcement;
(d) Assistant Directors of Enforcement;
(e) Such other class of officers of
Enforcement as may be appointed for the
purposes of this Act.
Section 4 - Appointment and powers of
officers of enforcement:
(1) The Central Government may appoint
such persons as it thinks fit to be officers
of enforcement.
(2) Without prejudice to the provisions of
Sub-section (1), the Central Government
may authorise a Director of Enforcement
or an Additional Director of Enforcement
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or a Deputy Director of Enforcement or
an Assistant Director of Enforcement to
appoint officers of Enforcement below the
rank of an Assistant Director of
Enforcement.
(3) Subject to such conditions and
limitations as the Central Government
may impose, an officer of Enforcement
may exercise the powers and discharged
the duties conferred or imposed on him
under this Act.
Section 5 - Entrustment of functions of
Director or other officer of Enforcement:
The Central Government may, by order
and subject to such conditions and
limitations as it thinks fit to impose,
authorise any officer of customs or any
Central Excise Officer or any police officer
or any other officer of the Central
Government or a State Government to
exercise such of the powers and
discharge such of the duties of the
Director of Enforcement or any other
officer of Enforcement under this Act as
may be specified in the order.
27. In our view, such notifications under
Sections 3 and 5 of DSPE Act are necessary for
the purpose of exercising powers by a member
of DSPE in respect of offence or offences and in
respect of areas outside the Union Territory. It
may however be noted here that by a general
notification, members of DSPE may be
authorised to exercise power of investigation in
respect of offence or offences and in areas as
specified in the notification under Sections 3
and 5. As already indicated, although officers
of Enforcement Directorate are clothed with
the powers and duties to enforce
implementation of the provisions of FERA, the
Central Government has been authorised to
impose on other officers including a police
officer, power and authority to discharge such
of the duties and functions as may be specified
by it. It is nobody’s case that any notification
has been issued under FERA authorising the
member of DSPE to discharge the duties and
functions of an officer of Enforcement
Directorate. In our view, in the absence of
such notification under FERA, a member of
DSPE, despite the aforesaid notifications
under Sections 3 and 5 of DSPE Act, cannot be
held to be an officer under FERA and therefore
is not competent to investigate into the
offences under FERA."
Nearly four decades back the position was succinctly
stated by this Court in Major E.G. Barsay v. State of Bombay
(AIR 1961 SC 1762) at para 29 as follows:
"It was contended before the High Court and it
was repeated before us that the consent
should have been given to every individual
member of the Special Police Establishment
and that a general consent would not be good
consent. We do not see any force in this
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argument. Under s. 6 of the Delhi Special
Police Establishment Act, no member of the
said Establishment can exercise powers and
jurisdiction in any area in a State without the
consent of the Government of that State. That
section does not lay down that every member
of the said Establishment should be
specifically authorized to exercise jurisdiction
in that area, though the State Government can
do so. When a State Government can authorize
a single officer to exercise the said jurisdiction,
we do not see any legal objection why it could
not authorize the entire force operating in that
area belonging to that Establishment to make
such investigation. The authorization filed in
this case sufficiently complies with the
provisions of s. 6 of the Delhi Special Police
Establishment Act, 1946, and there are no
merits in this contention."
Coming to the pivotal stand of respondent no.1, as has
been rightly submitted by leaned counsel for the appellant,
there is no notification revoking the earlier notification. The
letter on which great emphasis has been laid by the
respondent no.1 and highlighted by the High Court, the
authority to write the letter has not been indicated. It has also
not been established that the person was authorized to take a
decision. In any event, the same does not meet requirements
of Article 166 of the Constitution. The letter is not even
conceptually a notification. High Court was, therefore, not
justified in holding that there was a notification rescinding
earlier notification.
The High Court was not justified in quashing the
proceedings instituted on the basis of the FIR lodged. The
impugned judgment of the High Court is set aside. The appeal
is allowed.