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CASE NO.:

Appeal (crl.) 666 of 2002

PETITIONER:

Union of India

RESPONDENT:

Vs.

Prakash P. Hinduja & Anr.

DATE OF JUDGMENT: 07/07/2003

BENCH:

jendra Babu & G. P. Mathur

JUDGMENT:

JUDGMENT

With Crl. A. 746 of 2002

G.P. Mathur, J.

1. Union of India through Central Bureau of Investigation (for short

"CBI") and Central Vigilance Commission (for short "CVC") have

preferred these appeals by special leave against the judgment and order

dated 10.6.2002 of a learned Single Judge of Delhi High Court by which the

petition preferred by Prakash Hinduja respondent No.1 has been allowed and

the cognizance taken by the learned Special Judge and all consequential

proceedings have been quashed. It has, however, been left open to the

prosecution to file a fresh charge-sheet after following the procedure laid

down by this Court in Vineet Narain & Ors. v. Union of India 1998 (1) SCC

226.

2. In order to appreciate the controversy raised it is necessary to briefly

notice the relevant facts. A contract was entered between Government of

India and M/s. AB Bofors on 24.3..1986 for supply of 400 FH 77-B gun

systems along with vehicles, ammunition and other accessories at a total cost

of SEK 8,410,660,984 (equivalent to about Rs.1437.72 crores as per

exchange rate on 21.3.1986) and on 2.5.1986 advance payment equivalent to

20 per cent of the contract value was paid to M/s. AB Bofors. On 16.4.1987

Swedish Radio came out with a story that Bofors had managed to obtain the

contract from Government of India after payment of large amounts as bribe.

On 21.4.1987 the Government of India made a formal request to

Government of Sweden for an investigation into the allegations. The CBI

registered a case being RC 1A/90-ACU. IV on 22.1.1990 and proceeded to

investigate the matter. Thereafter on 22.10.1999 the CBI submitted charge

sheet No.01 under Section 120-B IPC read with 420 IPC and Section 5(2)

read with Section 5(1)(d) of the Prevention of Corruption Act, 1947 in the

Court of Special Judge, Delhi wherein (1) S.K. Bhatnagar (2) W.N. Chaddha

(3) Ottavio Quattrocchi (4) Martin Ardbo, former President of M/s AB

Bofors, and (5) M/s. AB Bofors, Sweden (private company) were arrayed as

accused. The charge-sheet is a long document and in para 62 thereof it was

stated that the investigation relating to the further transfer of funds (details

of which were given in paragraphs 55 to 57) routed through various

countries is still continuing in order to find out the details of other

beneficiaries and the Letters Rogatory issued by the Court of learned Special

Judge, Delhi to Switzerland, Sweden, Panama, Luxembourgh, Bahamas,

Jordan, Liechtenstein and Austria with a view to find out other beneficiaries

of the commission amounts are still pending execution. It was also

mentioned that investigations concerning the role of GP Hinduja, Prakash

Hinduja, Srichand Hinduja, Harsh Chaddha and Maria Quattrocchi and some

others are also continuing. The learned Special Judge took cognizance of

the offence on 4.11.1999 and Crl. Case No.39/1999 was registered in his

Court. In pursuance of Letters Rogatory issued by the Special Judge, the

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Swiss Government handed over a set of documents comprising 71 pages to

CBI on 18.12.1999. Thereafter on 9.10.2000 the CBI submitted a

supplementary charge sheet bearing No.03 against GP Hinduja, Prakash

Hinduja and Srichand Hinduja. The charge sheet gives the details as to how

M/s. AB Bofors transferred funds to the accounts opened by these accused

and how they took up British nationality and obtained British passports and

how they had opposed the handing over of documents by Swiss

Government to the agencies of Government of India. The learned Special

Judge thereafter summoned the three Hinduja brothers by the order dated

12.12.2000.

3. On 15.4.2002 accused Prakash Hinduja moved an application before

the Special Judge praying that "the charge sheets submitted by the CBI be

dismissed and the cognizance taken and the process issued against the

accused be revoked." The application was moved on the ground that the

cases were never reported to CVC and the CVC has neither reviewed the

cases nor had considered them fit for continuance of the prosecution and as

such there was a non-compliance of the directions issued by this Court in the

case of Vineet Narain. The application was opposed by the CBI by filing a

written reply wherein it was stated, inter alia, that the allegations made by

the accused to the affect that the case was never reported to the CVC was not

correct; that a copy of the investigation report was sent to CVC on

14.7.1997 and further developments were also brought to the notice of CVC

from time to time; that a special counsel for prosecuting the case had been

appointed on the recommendation of Attorney General for India and that in

para 62 of the first charge-sheet it was mentioned that investigation

regarding the role played by Hinduja brothers was in progress; and that the

supplementary charge sheet had been filed under Section 173 (8) Cr. P.C.

which was co-related with the first charge sheet.

4. The learned Special Judge, after hearing counsel for the parties and

noticing their contentions held that generally it was not in the province of the

courts and particularly the Trial Court to see in what manner and to what

extent the CBI is reporting the progress of investigation and this was within

the province of CVC. It was further held that "the intent of the directions

given in Vineet Narain is not to dismiss or throw the charge sheets when

there is incomplete or partial compliance. The primary function of the Trial

Court however is to proceed with expedition strictly on the merits of the

accusations entirely in accordance with law uninfluenced by what happened

during investigation and which counsel represent CBI". Learned Special

Judge also observed that the Court was not powerless and if necessary,

appropriate directions can be issued in terms of Vineet Narain to ensure a

fair and efficient trial. The application was accordingly rejected by the order

dated 18.4.2002.

5. Thereafter, Prakash Hinduja filed a petition under Section 482 Cr.P.C.

in Delhi High Court praying for the reliefs asked for in the application

moved before the learned Special Judge i.e. to revoke the cognizance taken,

to revoke the process issued and to dismiss the charge sheets. The other

prayer made was that notice be issued to the Attorney General and his views

on the effect of non-compliance of the directions be ascertained and notice

be also issued to the Chief Vigilance Commissioner to report to the Court as

to his role in the filing of the two charge-sheets and the manner in which the

directions of Supreme Court had been complied with in the case in hand.

The petition was opposed and separate counter-affidavits were filed by CBI

and CVC. The High Court has held that in terms of directions issued in

Vineet Narain, CVC is entrusted with the responsibility of superintendence

over the CBI's function. The CBI shall report to CVC about all cases taken

up by it for investigation; progress of the investigation: cases in which

charge-sheets are filed and their progress. The CVC cannot abdicate its

functions nor CBI can violate the mandate and it was bound to place the

final results of its investigation along with all material collected before the

CVC for the purposes of review. It has been further held that in the present

case CBI had not placed before the CVC the results of its investigations and

had by-passed it by filing a charge-sheet before the Special Judge, while the

CVC had abdicated its function which it was obliged to perform under the

directives of the Supreme Court even if the Government Resolution

restricted its powers. Finally, the High Court has held that in view of the

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mandate of the Supreme Court the Special Judge ought not to have

entertained the charge-sheet filed in violation of the directives. On these

findings the petition was allowed and the cognizance taken by the learned

Special Judge and all consequential proceedings were quashed.

6. Feeling aggrieved by the judgment of the High Court, Union of India

through CBI and CVC through its Director have preferred separate appeals

by special leave.

7. Shri Kirit N. Rawal, learned Solicitor General appearing for the

appellants has submitted that in Vineet Narain this Court was dealing with

the allegations of failure of the CBI to investigate freely and fairly

commission of offences by persons holding high offices. In order to impart

a degree of independence to the CBI and yet to maintain the power of

superintendence (which is inevitably necessary in relation to any police

force), the Court issued a mandamus based upon the suggestion which had

also been made by the Independent Review Committee. It was with this

object in view and having regard to the statutory provisions that the

directions were issued to the effect that the Government shall remain

answerable for the CBI's functioning which flowed from the power of the

Government under Section 4 of Delhi Special Police Establishment Act (for

short "DSPE Act") and in order to introduce visible objectivity in the

mechanism to be established for over-viewing the CBI's working, the CVC

was entrusted with the responsibility of superintendence. Learned counsel

has also submitted that the duty to report the steps taken in the course of

investigation cannot be equated with the duty to obtain prior approval or

consent of any other authority. It has been urged that the contention of the

accused in fact amounts to equating the role cast upon the CVC with the role

of an authority empowered to sanction the institution of a criminal case in

absence whereof the court lacks the jurisdiction to take cognizance on the

report filed under Section 173 Cr.P.C. The acceptance of such a contention

would result into introduction of a new provision of law which was never

intended by this Court in Vineet Narain. The directions issued were never

intended to provide additional safeguards in favour of an accused. It has thus

been urged that the whole premise of the judgment of the High Court is

fundamentally wrong and the same is liable to be set aside.

8. Shri Ram Jethmalani, learned senior counsel for the respondent has

submitted that in Vineet Narain this Court cut down the power of the

Government under Section 4 of the DSPE Act and within the hierarchy of

CBI there is a power of superintendence as provided in Section 36 Cr.P.C.

According to learned counsel, the judgment of this Court in Vineet Narain

mandates the creation of a CVC with statutory powers and such CVC, while

over-viewing the functioning of the CBI, will also have power to prevent or

stop investigation or arrest or launching of frivolous prosecution wherever it

considers it appropriate to do so. Learned counsel has further submitted that

Vineet Narain did not change substantive law but ordains new safeguards

which were not there earlier and they are in addition to and not in derogation

of already existing safeguards. Learned counsel has also submitted that

what Vineet Narain ordained was part of fair procedure as contemplated by

Article 21 of the Constitution and the action of the CBI in submitting charge

sheet against the respondent without reporting the matter to CVC has

resulted in denial of his right of fair procedure leading to violation of

Article 21.

9. Section 482 Cr.P.C. saves inherent powers of the High Court and such

a power can be exercised to prevent abuse of the process of any Court or

otherwise to secure the ends of justice. The power can therefore be

exercised to quash the criminal proceedings. The grounds on which the

prosecution initiated against an accused can be quashed by the High Court in

exercise of power conferred by Section 482 Cr.P.C. has been settled by a

catena of decisions of this Court rendered in R.P. Kapoor v. State of Punjab

AIR 1960 SC 866; Madhu Limaye v. State AIR 1978 SC 47; Delhi

Municipality v. Ram Kishan AIR 1983 SC 67; Raj Kapoor v. State AIR

1980 SC 258. The matter was examined in considerable detail in State of

Haryana v. Bhajan Lal AIR 1992 SC 604 and after review of practically all

the earlier decisions, the Court in para 108 of the Reports laid down the

grounds on which power under Section 482 Cr.P.C. can be exercised to

quash the criminal proceedings and basically they are (1) where the

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allegations made in the FIR or 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 uncontraverted

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, (3) where there is an express legal bar

engrafted in any of the provisions of Code of Criminal Procedure or the

concerned Act to the institution and continuance of the proceedings. But

this power has to be exercised in a rare case and with great circumspection.

There are some statutes which create a bar on the power of the Court in

taking cognizance of an offence in absence of a sanction by the competent

authority like Section 6 of Prevention of Corruption Act, 1947 or Section 19

of Prevention of Corruption Act, 1988. Similar provision is contained in

Section 196 Cr.P.C. which mandates that no Court shall take cognizance of

the offences enumerated in the Section except with the previous sanction of

the Central Government or of the State Government. Section 197 Cr.P.C.

also creates an embargo on the power of the Court to take cognizance of an

offence alleged to have been committed by any person who is or was a

Judge or a Magistrate or a public servant not removable from his office save

by or with the sanction of the government. But the proceedings in the

present case have not been quashed on any one of the above mentioned

grounds. The High Court has not examined the nature of the allegations

made in the FIR or the evidence by which the prosecution seeks to establish

the charge against the accused during the trial. There is not even a whisper

in the impugned order of the High Court that the FIR does not disclose a

cognizable offence. Similarly, there is no reference to any statutory bar like

want of valid sanction etc. to the taking of the cognizance of the offence. In

fact the respondent Prakash Hinduja is not a public servant and consequently

no sanction is required from any authority for his prosecution. The only

ground on which the High Court has proceeded and has quashed the

cognizance taken by the learned Special Judge and all consequential

proceedings is that the CBI had filed the charge sheet without placing the

same before the CVC and therefore an illegality had been committed in the

course of investigation which entitled the High Court to quash the

cognizance taken by the Special Judge and all proceedings of the case.

10. The principal question which, therefore, requires consideration is

whether the Court can go into the validity or otherwise of the investigation

done by the authorities charged with the duty of investigation under the

relevant statutes and whether any error or illegality committed during the

course of investigation would so vitiate the charge-sheet so as to render the

cognizance taken thereon bad and invalid.

11. We will first examine the statutory provisions made in that regard.

Section 2(h) Cr.P.C. defines "investigation" and it includes all the

proceedings under the Code for the collection of evidence conducted by a

police officer or by any person (other than a Magistrate) who is authorised

by a Magistrate in this behalf. It ends with the formation of the opinion as

to whether on the material collected, there is a case to place the accused

before a Magistrate for trial and if so, taking the necessary steps for the same

by filing of a charge-sheet under Section 173 (See State of U.P. v. Bhagwant

Kishore Joshi AIR 1964 SC 221 (Para 8) and H.N. Rishbud & Inder Singh v.

The State of Delhi 1955 (1) SCR 1150 at 1157). Chapter XII of the Code of

Criminal Procedure deals with "Information To The Police And Their

Powers To Investigate". Section 154 provides that every information relating

to the commission of a cognizable offence, if given orally to an officer in

charge of a police station, shall be reduced to writing by him or under his

direction, and the substance thereof shall be entered in a book to be kept by

such officer in such form as the State Government may prescribe in this

behalf. Sub-section (1) of Section 156 lays down that any officer in charge

of a police station may, without the order of a Magistrate, investigate any

cognizable case which a Court having jurisdiction over the local area within

the limits of such station would have power to inquire into or try under the

provisions of Chapter XIII. Sub-section (2) of this Section provides that no

proceeding of a police officer in any such case shall at any stage be called in

question on the ground that the case was one which such officer was not

empowered under this section to investigate. Section 157 lays down that if,

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from information received or otherwise, an officer in charge of a police

station has reason to suspect the commission of an offence which he is

empowered under Section 156 to investigate, he shall proceed in person or

shall depute one of his subordinate officers to proceed to the spot to

investigate the facts and circumstances of the case and, if necessary, to take

measures for the discovery and arrest of the offender. Sections 160 to 163

deal with the power of the police officer making an investigation under

Chapter XII to require the attendance of all witnesses, and their examination.

Sections 165 and 166 confer power upon a police officer making

investigation to search or cause search to be made. Section 169 authorises a

police officer to release a person from custody on his executing a bond, to

appear, if and when so required, before a Magistrate in case upon an

investigation under Chapter XII it appears to the officer in charge of the

police station that there is not sufficient evidence or reasonable ground of

suspicion to justify the forwarding of the accused to a Magistrate. Section

170 empowers the officer in charge of a police station to forward the

accused under custody to a competent Magistrate or to take security from the

accused for his appearance before the Magistrate in case where the offence

is bailable, if after investigation it appears that there is sufficient evidence or

reasonable ground for doing so. Section 173 and sub-section (2) thereof is

important and it lays down that after the investigation is completed, the

officer in charge of the police station shall forward to a Magistrate

empowered to take cognizance of the offence on a police report, a report in

the form prescribed by the State Government giving details of the matters

enumerated in clauses (a) to (g) of this sub-section.

12. Chapter XIV of the Code of Criminal Procedure deals with

"Conditions Requisite For Initiation Of Proceedings". Section 190 deals

with cognizance of offences by Magistrate and it provides that a Magistrate

may take cognizance of any offence (a) upon receiving a complaint of facts

which constitute such offence, (b) upon a police report of such facts, or (c)

upon information received from any person other than a police officer or

upon his own knowledge, that such offence has been committed.

13. The provisions referred to above occurring in Chapter XII of the

Code show that detail and elaborate provisions have been made for securing

that an investigation takes place regarding an offence of which information

has been given and the same is done in accordance with the provisions of the

Code. The manner and the method of conducting the investigation are left

entirely to the officer in charge of the police station or a subordinate officer

deputed by him. A Magistrate has no power to interfere with the same. The

formation of the opinion whether there is sufficient evidence or reasonable

ground of suspicion to justify the forwarding of the case to a Magistrate or

not as contemplated by Sections 169 and 170 is to be that of the officer in

charge of the police station and a Magistrate has absolutely no role to play at

this stage. Similarly, after completion of the investigation while making a

report to the Magistrate under Section 173, the requisite details have to be

submitted by the officer in charge of the police station without any kind of

interference or direction of a Magistrate and this will include a report

regarding the fact whether any offence appears to have been committed and

if so, by whom, as provided by clause (d) of sub-section (2)(i) of this

Section. These provisions will also be applicable in cases under Prevention

of Corruption Act, 1947 by virtue of Section 7A thereof and Prevention of

Corruption Act, 1988 by virtue of Section 22 thereof.

14. The Magistrate is no doubt not bound to accept a final report

(sometimes called as closer report) submitted by the police and if he feels

that the evidence and material collected during investigation justifies

prosecution of the accused, he may not accept the final report and take

cognizance of the offence and summon the accused but this does not mean

that he would be interfering with the investigation as such. He would be

doing so in exercise of powers conferred by Section 190 Cr. P.C. The

statutory provisions are, therefore, absolutely clear that the Court cannot

interfere with the investigation.

15. The question whether the High Court can exercise its inherent powers

under Section 561A of Code of Criminal Procedure, 1908, which was

similar to Section 482 of 1973 Code, was considered by the Privy Council in

Emperor v. Nazir Ahmad AIR 1945 PC 18. It will be useful to reproduce

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the relevant part of the observations made by Their Lordships as this

decision has been approved and has been referred to in several decisions of

this Court:

" In India as has been shown there is a statutory right on

the part of the police to investigate the circumstances of

an alleged cognizable crime without requiring any

authority from the judicial authorities, and it would, as

their Lordships think, be an unfortunate result if it should

be held possible to interfere with those statutory rights by

an exercise of the inherent jurisdiction of the Court. The

functions of the judiciary and the police are

complementary not overlapping and the combination of

individual liberty with a due observance of law and order

is only to be obtained by leaving each to exercise its own

function, always, of course, subject to the right of the

Court to intervene in an appropriate case when moved

under Section 491, Criminal P.C., to give directions in

the nature of habeas corpus. In such a case as the

present, however, the Court's functions begin when a

charge is preferred before it and not until then."

16. In H.N. Rishbud v. The State of Delhi 1955 SCR 1150 the Court was

called upon to consider the effect of investigation having been done by a

police officer below the rank of a Deputy Superintendent of Police contrary

to the mandate of Section 5(4) of Prevention of Corruption Act, 1947.

While examining the scheme of Chapter XIV of the Code of Criminal

Procedure , 1908 (same as Chapter XII of 1973 Code) it was held that the

investigation primarily consists in the ascertainment of the facts and

circumstances of the case and by definition it includes "all the proceedings

under the Code for the collection of evidence conducted by a police officer."

It was further observed that the final step in the investigation viz., the

formation of the opinion as to whether or not there is a case to place the

accused on trial is to be that of the officer in charge of the police station. In

State of West Bengal v. SN Basak AIR 1963 SC 447 this Court approved the

view taken by the Privy Council in Nazir Ahmad (supra) and held as under

in para 3 of the reports:

"..........The powers of investigation into cognizable offences

are contained in Chapter XIV of the Code of Criminal

Procedure. Section 154 which is in that Chapter deals with

information in cognizable offences and Section 156 with

investigation into such offences and under these sections the

police has the statutory right to investigate into the

circumstances of any alleged cognizable offence without

authority from a Magistrate and this statutory power of the

police to investigate cannot be interfered with by the exercise of

power under Section 439 or under the inherent power of the

court under Section 561-A of the Criminal Procedure Code."

17. This question was again considered in Abhinandan Jha & Ors. v.

Dinesh Mishra AIR 1968 SC 117 and after examining the scheme of the Act

and the decision of the Privy Council in Nazir Ahmad (supra) and the earlier

decision of this Court in H.N. Rishbud and S.N. Basak (supra) it was held as

under:

"The investigation under the Code, takes in several

aspects, and stages, ending ultimately with the formation of an

opinion by the police as to whether , on the material covered

and collected, a case is made out to place the accused before

the Magistrate for trial, and the submission of either a charge

sheet or a final report is dependent on the nature of the

opinion, so formed. The formation of the said opinion, by the

police, is the final step in the investigation, and that final step

is to be taken only by the police and by no other authority."

Vineet Narain has also relied upon this decision.

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18. In State of Bihar & Anr. v. JAC Saldanha & Ors. 1980 (1) SCC 554

the same principle was reiterated and was succinctly stated in the following

words in para 25 of the report:

"There is a clear-cut and well demarcated sphere of

activity in the field of crime detection and crime punishment.

Investigation of an offence is the field exclusively reserved for

the executive through the police department the

superintendence over which vests in the State Government.

The executive which is charged with a duty to keep vigilance

over law and order situation is obliged to prevent crime and if

an offence is alleged to have been committed it is its bounden

duty to investigate into the offence and bring the offender to

book. Once it investigates and finds an offence having been

committed it is its duty to collect evidence for the purpose of

proving the offence. Once that is completed and the

investigating officer submits report to the Court requesting the

Court to take cognizance of the offence under Section 190 of

the Code its duty comes to an end. On a cognizance of the

offence being taken by the Court the police function of

investigation comes to an end subject to the provision contained

in Section 173 (8), there commences the adjudicatory function

of the judiciary to determine whether an offence has been

committed and if so, whether by the person or persons charged

with the crime by the police in its report to the Court, and to

award adequate punishment according to law for the offence

proved to the satisfaction of the Court. There is thus a well

defined and well demarcated function in the field of crime

detection and its subsequent adjudication between the police

and the Magistrate. This had been recognised way back in King

Emperor v. Khwaja Nazir Ahmad (AIR 1945 PC 18) where the

Privy Council observed as under:

" ......................................

......................................."

(Omitted as already quoted in para 15)

In para 26 it was observed that the power of the police to investigate into a

cognizable offence is ordinarily not to be interfered with by the judiciary.

19. Thus the legal position is absolutely clear and also settled by judicial

authorities that the Court would not interfere with the investigation or during

the course of investigation which would mean from the time of the lodging

of the First Information Report till the submission of the report by the officer

in charge of police station in court under Section 173(2) Cr.P.C., this field

being exclusively reserved for the investigating agency.

20. An incidental question as to what will be the result of any error or

illegality in investigation on the trial of the accused before the Court may

also be examined. Section 5-A of the Prevention of Corruption Act, 1947

provided that no police officer below rank of a Deputy Superintendent of

Police shall investigate any offence punishable under Section 161, Section

165 and Section 165-A IPC or under Section 5 of the said Act without the

order of a Magistrate of the First Class. In H.N. Rishbud (supra) the

investigation was entirely completed by an officer of the rank lower than the

Deputy Superintendent of Police and after permission was accorded a little

or no further investigation was made. The Special Judge quashed the

proceedings on the ground that the investigation on the basis of which the

accused were being prosecuted was in contravention of the provisions of the

Act, but the said order was set aside by the High Court. The appeal preferred

by the accused to this Court assailing the judgment of the High Court was

dismissed and the following principle was laid down:-

"The question then requires to be considered whether and

to what extent the trial which follows such investigation

is vitiated. Now, trial follows cognizance and

cognizance is preceded by investigation. This is

undoubtedly the basic scheme of the Code in respect of

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cognizable cases. But it does not necessarily follow that

an invalid investigation nullifies the cognizance or trial

based thereon. Here we are not concerned with the effect

of the breach of a mandatory provision regulating the

competence or procedure of the Court as regards

cognizance or trial. It is only with reference to such a

breach that the question as to whether it constitutes an

illegality vitiating the proceedings or a mere irregularity

arises. A defect or illegality in investigation, however

serious, has no direct bearing on the competence or the

procedure relating to cognizance or trial. No doubt a

police report which results from an investigation is

provided in section 190 of the Code of Criminal

Procedure as the material on which cognizance is taken.

But it cannot be maintained that a valid and legal police

report is the foundation of the jurisdiction of the Court to

take cognizance. Section 190 of the Code of Criminal

Procedure is one out of a group of sections under the

heading "Conditions requisite for initiation of

proceedings." The language of this section is in marked

contrast with that of the other sections of the group under

the same heading, i.e. sections 193 and 195 to 199.

These latter sections regulate the competence of the

Court and bar its jurisdiction in certain cases excepting in

compliance therewith. But Section 190 does not. While

no doubt, in one sense, clauses (a),(b) and (c) of section

190(1) are conditions requisite for taking of cognizance,

it is not possible to say that cognizance on an invalid

police report is prohibited and is therefore a nullity. Such

an invalid report may still fall either under clause (a) or

(b) of section 190(1) (whether it is one or the other we

need not pause to consider) and in any case cognizance

so taken is only in the nature of error in a proceeding

antecedent to the trial."

The Court after referring to Prabhu v. Emperor AIR 1944 SC 73 and

Lumbhardar Zutshi v. The King AIR 1950 PC 26 held that if cognizance is

in fact taken on a police report initiated by the breach of a mandatory

provision relating to investigation, there can be no doubt that the result of

the trial, which follows it cannot be set aside unless the illegality in the

investigation can be shown to have brought about a miscarriage of justice

and that an illegality committed in the course of investigation does not

affect the competence and the jurisdiction of the Court for trial. This being

the legal position, even assuming for the sake of argument that the CBI

committed an error or irregularity in submitting the charge sheet without the

approval of CVC, the cognizance taken by the learned Special Judge on the

basis of such a charge sheet could not be set aside nor further proceedings in

pursuance thereof could be quashed. The High Court has clearly erred in

setting aside the order of the learned Special Judge taking cognizance of the

offence and in quashing further proceedings of the case.

21. The sheet anchor of the plea raised by the accused-respondent for

dismissing the charge sheets and revoking the cognizance and the process

issued against him is based upon certain directions issued by this Court in

Vineet Narain. The High Court has accepted this plea and has quashed

the cognizance taken by the learned Special Judge and all consequential

proceedings in the case on the ground that the CBI had not placed before the

CVC the result of the investigation and had by passed it by filing a charge

sheet before the court which in its opinion was a violation of the directions

issued by this Court in Vineet Narain. In fact Shri Jethmalani also tried to

support the judgment of the High Court by placing extensive reliance upon

the observations made in this case. Shri Rawal, learned Solicitor General

has, however, submitted that the High Court has completely misunderstood

the judgment and in fact it does not give any kind of a right to an accused to

challenge the charge sheet on account of any alleged non-observance or

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violation of the directions issued regarding the functioning and responsibility

of CVC. The contention is that the directions relate to inter-departmental

working and the manner in which the power of superintendence has to be

exercised by CVC over the working of CBI, the entire object being to

insulate the CBI from any kind of external influence or pressure so that it

may perform its duty as enjoined in Delhi Special Police Establishment Act

(DSPE Act). The question is whether Vineet Narain really meant to lay

down as a principle of law that in every case the result of investigation done

by CBI had to be placed before the CVC and further before submission of

the charge sheet in Court the same was also to be examined by the CVC

which was to give some sort of approval or concurrence and if the same was

not done, the charge sheet so submitted would be a nullity in the eyes of law

or would be of such a nature on which cognizance could not be taken or if

the cognizance was taken by the court the same would be illegal and could

not form the basis for trial of the accused.

22. In view of the contentions raised it becomes necessary to examine the

judgment in Vineet Narain in little detail so as to understand its real content

and import. A terrorist belonging to Hizbul Mujahideen organisation was

arrested in Delhi on 25.3.1991 and after his interrogation the CBI conducted

raids on the premises of SK Jain, his brothers, relatives and businesses.

Besides Indian and foreign currency, two diaries and notebooks were seized

which contained detailed accounts of vast payments made to certain persons

who were identified by initials only which corresponded to high ranking

politicians and bureaucrats. The CBI did not investigate the matter of Jains

or the contents of their diaries for more than two and a half years. It was in

these circumstances that a writ petition was filed under Article 32 of the

Constitution by way of a public interest litigation.

23. It will be convenient and useful to reproduce certain parts of the

judgment which are as under:-

"5. The gist of the allegations in the writ petitions is

that government agencies like the CBI and the Revenue

authorities had failed to perform their duties and legal

obligations inasmuch as they had failed to investigate

matters arising out of the seizure of the "Jain Diaries";

that the apprehension of terrorists had led to the

discovery of financial support to them by clandestine and

illegal means using tainted funds obtained through

"havala" transactions; that this had also disclosed a nexus

between politicians, bureaucrats and criminals, who are

recipients of money from unlawful sources, given for

unlawful consideration; that the CBI and other

government agencies had failed to investigate the matter,

take it to its logical conclusion and prosecute all persons

who were found to have committed an offence; that this

was done with a view to protect the persons involved,

who were very influential and powerful; that the matter

disclosed a nexus between crime and corruption at high

places in public life and it posed a serious threat to the

integrity, security and economy of the nation; that probity

in public life, the rule of law and the preservation of

democracy required that the government agencies be

compelled to duly perform their legal obligations and to

proceed in accordance with law against every person

involved, irrespective of where he was placed in the

political hierarchy. The writ petitions prayed, inter alia,

for the following reliefs :

"(a) that the abovesaid offences disclosed by the facts

mentioned in the petition be directed to be investigated in

accordance with law;

(b) that this Hon'ble Court may be pleased to appoint

officers of the police or others in whose integrity,

independence and competence this Hon'ble Court has

confidence for conducting and/or supervising the said

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investigation;

(c) that suitable directions be given by this Hon'ble

Court and orders issued to ensure that the culprits are

dealt with according to law.

* * *

(f) that directions be given so that such evil actions on

the part of the investigating agencies and their political

superiors are not repeated in future."

24. The Court instead of issuing a writ of mandamus considered it proper

to keep the matter pending and the investigation was monitored and in that

connection several orders were passed from time to time reference of which

has been made in para 7 of the judgment. Para 8 of the judgment shows that

the Court came to the conclusion that the CBI and other governmental

agencies had not carried out their public duty to investigate the offences

disclosed and the investigation was monitored till the point of time when

charge sheet was filed and thereafter ordinary process of law was to be

followed. In para 9 of the judgment it is mentioned that even after the

matter had been brought to the Court complaining of the inertia of the CBI

and the other agencies to investigate into the offences because of the alleged

involvement of several persons holding high officers in the executive, the

disinclination of the agencies to proceed with the investigation was apparent.

It is further mentioned that the accusation, if true, revealed a nexus between

high ranking politicians and bureaucrats who were alleged to have been

funded by a source linked with the source funding the terrorists. Some

other paragraphs which have a bearing on the controversy are being

reproduced below.

15. Inertia was the common rule whenever the alleged

offender was a powerful person. Thus, it became

necessary to take measures to ensure permanency in the

remedial effect to prevent reversion to inertia of the

agencies in such matters.

19. Before we refer to the report of the Independent

Review Committee (IRC), it would be appropriate at this

stage to refer to the Single Directive issued by the

Government which requires prior sanction of the

designated authority to initiate the investigation against

officers of the Government and the Public Sector

Undertakings (PSUs), nationalised banks above a certain

level. .............................................

42. Once the jurisdiction is conferred on the CBI to

investigate an offence by virtue of notification under

Section 3 of the Act, the powers of investigation are

governed by the statutory provisions and they cannot be

estopped or curtailed by any executive instruction issued

under Section 4(1) thereof. This result follows from the

fact that conferment of jurisdiction is under Section 3 of

the Act and exercise of powers of investigation is by

virtue of the statutory provisions governing investigation

of offences. It is settled that statutory jurisdiction cannot

be subject to executive control.

43. There is no similarity between a mere executive

order requiring prior permission or sanction for

investigation of the offence and the sanction needed

under the statute for prosecution. The requirement of

sanction for prosecution being provided in the very

statute which enacts the offence, the sanction for

prosecution is a prerequisite for the court to take

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cognizance of the offence. In the absence of any

statutory requirement of prior permission or sanction for

investigation, it cannot be imposed as a condition

precedent for initiation of the investigation once

jurisdiction is conferred on the CBI to investigate the

offence by virtue of the notification under Section 3 of

the Act. The word "superintendence" in Section 4(1) of

the Act in the context must be construed in a manner

consistent with the other provisions of the Act and the

general statutory powers of investigation which govern

investigation even by the CBI. .................

48. In view of the common perception shared by

everyone including the Government of India and the

Independent Review Committee (IRC) of the need for

insulation of the CBI from extraneous influence of any

kind, it is imperative that some action is urgently taken to

prevent the continuance of this situation with a view to

ensure proper implementation of the rule of law. This is

the need of equality guaranteed in the Constitution. The

right to equality in a situation like this is that of the

Indian polity and not merely of a few individuals. The

powers conferred on this Court by the Constitution are

ample to remedy this defect and to ensure enforcement of

the concept of equality.

50. There is another aspect of rule of law which is of

equal significance. Unless a proper investigation is

made and it is followed by an equally proper prosecution,

the effort made would not bear fruition. The recent

experience in the field of prosecution is also

discouraging. ...............................

58. As a result of the aforesaid discussion, we hereby

direct as under :-

I. CENTRAL BUREAU OF INVESTIGATION (CBI)

AND CENTRAL VIGILANCE COMMISSION (CVC)

1. The Central Vigilance Commission (CVC) shall be

given statutory status.

2. .................................

3. The CVC shall be responsible for the efficient

functioning of the CBI. While Government shall remain

answerable for the CBI's functioning, to introduce visible

objectivity in the mechanism to be established for

overviewing the CBI's working, the CVC shall be

entrusted with the responsibility of superintendence over

the CBI's functioning. The CBI shall report to the CVC

about cases taken up by it for investigation; progress of

investigations; cases in which charge-sheets are filed and

their progress. The CVC shall review the progress of all

cases moved by the CBI for sanction of prosecution of

public servants which are pending with the competent

authorities, specially those in which sanction has been

delayed or refused.

.....................................................................

.....................................................................

IV. PROSECUTION AGENCY

1. ..................................

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2. Every prosecution which results in the discharge or

acquittal of the accused must be reviewed by a lawyer on

the panel and, on the basis of the opinion given,

responsibility should be fixed for dereliction of duty, if

any, of the officer concerned. In such cases, strict action

should be taken against the officer found guilty of

dereliction of duty.

25. The facts and circumstances in which the writ petition was filed, the

allegations made and the relief claimed therein would show that the CBI and

other Government Agencies had not performed their statutory duty for a

very long time to investigate commission of offences as the accused

involved were holding high offices. The Single Directive issued by the

Government created an embargo on the power of the CBI in registering or

investigating cases against officers of the Government, Public Sector

Undertakings and Nationalised Banks above a certain level without prior

sanction of the designated authority. The proceedings of the case revealed

that there was a complete disinclination on the part of the CBI to proceed

with investigation of offences against persons holding high offices even after

the matter had been brought to Court. The Court came to the conclusion

that wherever the alleged offender was a powerful person, the CBI remained

a silent spectator and practically took no steps to investigate the matter.

After examination of the statutory provisions, the Court came to the

conclusion that the Single Directive had the effect of restraining the

recording of FIR and initiation of investigation, which could not be issued in

exercise of power under Section 4(1) of the DSPE Act as the powers of

investigation are governed by statutory provisions. It was therefore

considered expedient that the CBI should be insulated from extraneous

influence of any kind. The Court also came to the conclusion that in order

to establish rule of law, it was necessary that proper investigation is made

which is followed by equally proper prosecution. It was in these

circumstances that various directions were issued with regard to the

functioning of CBI and CVC, Enforcement Directorate, Nodal Agencies and

Prosecution Agencies. The entire emphasis in the judgment is that as no one

is above the law, the persons holding high offices are not able to escape

either on account of inertia or inaction of the CBI to investigate the

commission of offence or on account of incomplete or improper

investigation or faulty prosecution in Court. A duty has been cast on the

CVC to review the progress of all cases moved by the CBI for sanction of

prosecution, specially those in which sanction has been delayed or refused.

The judgment nowhere says that the CBI will have to take concurrence or

sanction from the CVC before filing charge sheet in Court. No right of any

kind has been conferred upon the alleged offender or the accused to

approach the CVC or to challenge the action of CBI in submission of

charge-sheet in Court on the ground of some purported irregularity in

making a report to the CVC regarding progress of investigation.

26. The view taken by the High Court that as the CBI submitted the

charge-sheet without reporting and taking approval or consent from the

CVC, the same was illegal and no cognizance could be taken thereon is,

therefore, wholly erroneous and does not at all follow from the judgment.

27. Shri Jethmalani has strenuously urged that as the CVC has been

entrusted with the responsibility of superintendence over the CBI's

functioning, the CVC can as well direct CBI not to submit a charge sheet in

a given case. The accused can bring to the notice of the CVC that either

there was not sufficient material or it was not a fit case where prosecution

should be launched and if the CVC is satisfied with the plea of the accused,

it will have the right to give a direction to the CBI not to submit a charge-

sheet against the accused. According to learned counsel the power with the

CVC is akin to Section 36 Cr.P.C. which lays down that police officers

superior in rank to an officer in charge of a police station may exercise the

same powers, throughout the local area to which they are appointed, as may

be exercised by such officer within the limits of his station and, therefore,

the CVC has the authority to direct the CBI not to submit charge sheet in a

given case just as a Superintendent of Police can give this type of direction

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to an officer incharge of a police station. We are unable to accept the

contention raised. The directions issued cannot be interpreted in abstract but

have to be read and understood in the context of the facts and circumstances

leading to the filing of the writ petition. The facts which were revealed and

were brought to light during the course of hearing showed that the CBI had

failed to perform its statutory duty and legal obligation of investigating

offences and after completing the investigation taking it to its logical

conclusion of launching prosecution against all those who were found to

have committed offences. The direction issued never meant to create or

confer some kind of additional rights in favour of the accused as held by the

High Court. The accused has absolutely no right to approach the CVC for

taking any steps to stop the CBI from either proceeding against him or from

launching prosecution against him by filing a charge sheet. Further, the

directions issued do not confer any kind of a right upon the accused to assail

the charge sheet on the ground that the CBI had not reported the progress of

investigation to the CVC or had not taken some kind of approval or

concurrence from it before submission of the charge sheet in Court.

28. Shri Jethmalani has contended that the directions issued in Vineet

Narain have not been complied by the Union of India in as much as the

CVC has not been given a statutory status and strict compliance of other

directions has also not been made. Seeking analogy from Section 19(2)(c)

of Contempt of Courts Act, learned counsel has urged that the appellant

Union of India has committed contempt of the order passed by this Court

in the case of Vineet Narain and therefore it should not be heard. Learned

Solicitor General has controverted this argument by submitting that Central

Vigilance Commission Ordinance 15 of 1998 was promulgated on

25.8.1998 and on 27.10.1988 Central Vigilance Commission (Amendment)

Ordinance, 1998 was promulgated. Thereafter, CVC Bill 1998 was

introduced in the Lok Sabha on 7.12.1998 but the matter was referred to the

Standing Committee. On 8.1.1999 CVC Ordinance 4 of 1999 was

promulgated to continue the provisions of earlier Ordinances. The Lok

Sabha passed CVC Bill 1999 on 15.3.1999 and thereafter it was listed in the

Rajya Sabha but could not be taken up. On 4.4.1999 the Government of

India Resolution No.371/20/99 - AVD (III) was published in the Gazette to

continue the Central Vigilance Commission as the Parliament being in

session no fresh Ordinance could be issued and Ordinance No.4 of 1999

was going to expire on 5.4.1999. The Lok Sabha dissolved on 26.4.1999

and consequently CVC Bill 1999 pending consideration in the Rajya Sabha

also lapsed. On 20.12.1999, CVC Bill 1999 was introduced in Lok Sabha

which passed the same on 26.2.2003 and on 5.3.2003 notice was sent to

Secretary General, Rajya Sabha for consideration of CVC Bill 2003 as

passed by the Lok Sabha. These facts show that the appellant has been

taking steps to comply with the directions issued in Vineet Narain.

29. Under our constitutional scheme the Parliament exercises sovereign

power to enact laws and no outside power or authority can issue a direction

to enact a particular piece of legislation. In Supreme Court Employees'

Welfare Association v. Union of India (1989) 4 SCC 187 (para 51) it has

been held that no Court can direct a legislature to enact a particular law.

Similarly, when an executive authority exercises a legislative power by way

of subordinate legislation pursuant to the delegated authority of a legislature,

such executive authority cannot be asked to enact a law which he has been

empowered to do under the delegated legislative authority. This view has

been reiterated in State of J&K v. AR Zakki & Ors. AIR 1992 SC 1546. In

AK Roy v. Union of India AIR 1982 SC 710 it was held that no mandamus

can be issued to enforce an Act which has been passed by the legislature.

Therefore, the direction issued regarding conferment of statutory status on

CVC cannot be treated to be of such a nature, the non-compliance whereof

may amount to contempt of the order passed by this Court.

30. Shri Jethmalani has also referred to some correspondence which

ensued between the Embassy of India and Federal Office for Police Matters

of the Federal Department of Justice and Police, Bern, Switzerland and has

laid emphasis on the following sentence occurring therein - "The requesting

authority has examined those documents in detail and has reached at the

conclusion that the documents transmitted are unfortunately too limited to

sustain a charge sheet against Hinduja brothers and do not correspond to the

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mission of its request for assistance dated 23.01.1990." Learned counsel has

submitted that as the CBI itself was of the opinion that the documents

transmitted could not sustain a charge against Hinduja brothers, there was

no justification for submitting a charge sheet and the trial would be abuse of

the process of the Court. It has been further urged that the evidence sought

to be relied upon by the CBI is wholly deficient and can under no case

establish any charge against accused-respondent No.1. According to learned

counsel the charge sheet has been submitted only on account of political

vendetta and to malign the name of the Prime Minister, who was in office at

the time when the contract was signed. It may be stated at the very outset

that the letter, reliance on which has been placed by Shri Jethmalani, was

written by the Federal Office of Police to the Investigating Judge in

Switzerland in connection with execution of Letters rogatory in Switzerland.

This letter has not been written either by the CBI or by any authority in

India. Therefore, it cannot form the basis for assailing any action of the

CBI. That apart we are not concerned here with the merits of the allegations

and the nature of the evidence which the prosecution would produce in

Court to establish the charge as this was not the plea of the accused before

the High Court nor the High Court has examined the same. The High Court

has proceeded on entirely different grounds for quashing the cognizance

taken by the learned Special Judge.

31. In reply to the petition filed by respondent Prakash Hinduja in the

High Court, separate counter-affidavits on behalf of CBI and CVC were

filed. In the counter-affidavit filed by CBI in para 5 the details of the

Ordinances issued are given and it is stated that the Bill is pending before

the Parliament and consequently no statutory power of superintendence had

as yet been conferred upon the CVC and its role in relation to investigation

of offences under the Prevention of Corruption Act was governed by the

Government Resolution dated 4.4.1999 which was issued as the Ordinance

was going to lapse. The Resolution provided that CVC shall have the power

to inquire or cause an inquiry or investigation to be made on a reference

made by the Central Government wherein it is alleged that a public servant

above a particular level has committed an offence under the Prevention of

Corruption Act and to review the progress of applications pending with the

competent authorities for sanction of prosecution under the aforesaid Act.

The CVC shall exercise superintendence over the vigilance, administration

of various Ministries of the Central Government or Corporations established

by or under any Central Act and shall tender advice to them. In para 7 of the

counter-affidavit it is stated that under the existing administrative directions

the CBI has a practice of reporting to the CVC all developments in cases

involving public servants. Accordingly, well before filing of the first

charge sheet, an investigation report was sent to the CVC and the CVC was

apprised of the developments in the case. It is further stated that the name of

G.P. Hinduja is mentioned in the FIR itself and since in the first charge sheet

it was mentioned that further investigations are being carried out to unearth

the full details of the commission paid by Bofors and the papers received in

December 1999 revealed with sufficient particularity receipt of commissions

by Hinduja brothers, a supplementary charge sheet was filed against them.

The counter-affidavit on behalf of the CVC was filed by Shri RK Bajaj,

Director in the Central Vigilance Commission. In para 3 of the affidavit it is

categorically stated that the statements made in the counter-affidavit filed by

CBI as to the presentation of the investigation report to the CVC are correct.

It is further stated that CVC has no role in filing of the charge sheets and the

conduct of cases as pleaded by the accused and the directions of the

Supreme Court in Vineet Narain only require the CVC to function in a

supervisory character. Investigation of cases, filing of charge sheets and

then prosecution of such cases are essentially for the CBI, the duty of the

CVC being to ensure that the CBI discharges its duties without any

interference and without undue favour to any person. In para 7 it is stated

that the CVC holds review meetings with the CBI to review the progress of

cases and the meetings are held on monthly basis and in this manner the

CVC is discharging its duties under the Government Resolution dated

4.4.1999 as well as the directions of this Court. It is also specifically stated

that the registration of cases and its investigation is primarily the duty of

CBI and filing of charge sheet does not in any manner require any approval

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of the CVC. The averments made in these affidavits clearly show that the

investigation report was sent to the CVC by the CBI before filing of the first

charge sheet and the CVC was also apprised of the developments in the case.

As mentioned earlier, in para 62 of the first charge sheet, it was clearly

mentioned that the investigation regarding further transfer of the funds

routed through various countries was continuing and investigation regarding

the role played by three Hinduja brothers was also continuing. On account

of the fact that CVC Bill could not be passed by the Rajya Sabha, the

functioning of the CVC was being regulated by the Government Resolution

dated 4.4.1999 and this nowhere provided for taking any concurrence or

approval from the CVC before filing of the charge sheet. The CVC having

filed an affidavit stating that investigation report had been submitted to it by

the CBI and that it had no role in the filing of the charge-sheet and the

conduct of the cases, the plea raised by the accused fell to the ground and the

petition filed by him ought to have been dismissed straight away. The High

Court committed serious error in not giving due consideration to the counter

affidavits filed by the CBI and CVC and especially to the fact that on

account of non-passing of the CVC Bill by the Rajya Sabha and lapsing of

the Ordinance, the duties and functions of the CVC are to be performed in

accordance with the Government of India Resolution dated 5.4.1999, which

nowhere provided for taking any kind of a concurrence or approval from the

CVC before submission of the charge sheet.

32. In para 31 of the judgment, the High Court has placed reliance on

Gokul Chand Dwarka Das Morarka v. King AIR 1948 PC 82. But here the

conviction was set aside as the sanction granted to prosecute the accused,

which was a requirement of the statute, was found to be invalid. As

discussed earlier there is no requirement of any sanction by the CVC either

under any statute or even under the directions of Vineet Narain and,

therefore, the ratio of this case can have no application at all. In para 34 of

the judgment the High Court has placed reliance on Prabhu Dayal Deorah v.

District Magistrate AIR 1974 SC 183, wherein the detention order passed

under Maintenance of Internal Security Act was set aside on the finding that

one of the grounds communicated to detenu was vague. We fail to

understand how the principle laid down in a case where challenge is made to

preventive detention can have any application whatsoever to the case in

hand.

33. With respect we find the High Court judgment to be quite confusing

and self contradictory. In para 18(c) it is observed that "there is no

requirement to seek clearance before charge sheets are filed" and in para 19

it is said that "the only requirement in this regard is of reporting and the role

of the CVC on this would be to give its comments in its annual report." In

para 20 it is said that "the direct power of review granted to the CVC is only

of pending applications for sanction" and "the CVC is not cast with the role

of reviewing as such the steps taken in the course of investigation and

thereafter." In para 21 it is said that "the duty to report of the steps taken in

the course of investigation is not and cannot be equated with the duty to

obtain prior approval or consent of any other authority to these steps." Again

in para 24 it is said that "the contention of the petitioner that a breach of

these directions would render the action of the CBI void since the directions

are to be rigidly complied with is equally misconceived." It is further said

that "even the rigid compliance with these directions cannot go beyond the

CVC over-viewing CBI's working and the CBI's reporting to the CVC."

34. The High Court having arrived at the aforesaid findings, the only

result which could logically follow was to dismiss the petition. There was

absolutely no occasion for allowing the same and quashing the cognizance

and further proceedings in the case.

35. In view of the discussion made above the appeals are allowed and the

judgment and order dated 10.6.2002 of the High Court is set aside. The

learned Special Judge shall proceed with the trial of the case. While framing

the charge he shall carefully scrutinise the material on record and other

circumstances of the case in accordance with law.

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