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CASE NO.: Writ Petition (civil)  13381 of 1984

PETITIONER: M.C. Mehta

RESPONDENT: Union of India & Ors

DATE OF JUDGMENT: 27/11/2006

BENCH: S.B. Sinha

JUDGMENT: J U D G M E N T I.A. No. 431 IN WRIT PETITION (CIVIL) NO. 13381 OF 1984 WITH

I.A. Nos. 440 and 451 in Writ Petition No.13381 of 1984

I.A. Nos. 438, 439, 442-443, 445 and 447 IN I.A. No. 431 in Writ Petition No.13381 of 1984

I.A. No. 441 in I.A. No. 440 in Writ Petition No.13381 of 1984

S.B. Sinha, J.                  This Court entrusted investigation to the Central Bureau of  Investigation (CBI) which was constituted under the Delhi Special Police  Establishment Act, 1946 (for short "the Act").  It was enacted to make  provision for the constitution of a special police force in Delhi for  investigation of certain offences in the Union territories for the  superintendence and administration of the said force and for extension to  other of the powers and jurisdiction of members of the said force in regard to  the investigation of the said offences.

       The said Act was enacted to make provision for the constitution of a  special police force in Delhi for the investigation of certain offences in the  Union territories for the superintendence and administration of the said force  and for extension to other of the powers and jurisdiction of members of the  said force in regard to the investigation of the said offences.  Section 2  empowers the Central Government to constitute a special force.   Indisputably, the first respondent has been constituted in terms thereof.  Sub  section (2) of Section 2 provides that subject to any orders which the Central  Government may make in this behalf, members of the said police  establishment shall have throughout any Union territory in relation to the  investigation of such offences and arrest of persons concerned in such  offences, all the powers, duties, privileges and liabilities which police  officers of that Union territory have in connection with the investigation of  offences committed therein.  The said Act indisputably applies in regard to  charges of corruption made against the public servants.            The Central Government has made a manual.  It provides for  hierarchy of the officers who, having regard to the gravity or otherwise of  the offence, would supervise investigation.  It provides for appointment of  the investigating officer and the officers supervising the investigation.  CBI  Manual is based on statutory provisions of the Code of Criminal Procedure.   It provides for essential guidelines for the functioning of the said body.

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       In Vineet Narain and Others v. Union of India and Another [(1998) 1  SCC 226], this Court directed that CBI to adhere scrupulously to the  provisions of the said Manual.   

       Even under the Code of Criminal Procedure, such hierarchy of the  supervising officers is contemplated. [See State of Bihar v. J.A.C. Saldanha,  (1980) 1 SCC 554].

       This Court in Vineet Narain (supra) while opining, upon construction  of the provisions of the Act, that the jurisdiction of CBI to investigate an  offence is to be determined with reference to the notification under Section 3  of the Act and not by any separate order, not having that character,  categorically held that the said view was not in conflict with the decision in  J.A.C. Saldanha (supra).

       CBI Manual, thus, is subject to the provisions of the Code of Criminal  Procedure.  In case of conflict, although none has been pointed out,  evidently, the Code of Criminal Procedure shall prevail.   Even under  ordinary law, the investigating officer has a statutory duty to investigate into  an offence upon receipt of a First Information Report as envisaged under  Section 154 of the Code of Criminal Procedure.  Section 157 thereof  provides for the procedure for investigation, wherefor the only duty cast on  the investigating officer is to maintain his case diary in terms of Section 172  of the Code of Criminal Procedure.  [See State of Bihar and Another v. P.P.  Sharma, IAS and Another 1992 Supp. (1) SCC 222]

       It is beyond any doubt or dispute that investigation of an offence is the  field exclusively reserved for the police.  It may be subject to supervision of  higher ranking officer (s) but the court’s jurisdiction to have control in this  behalf is beyond any controversy.         In Sheonandan Paswan v. State of Bihar and Others [(1987) 1 SCC  288], this Court opined:

"\005In fact, in our constitutional scheme,  conferment of such absolute and uncanalised  discretion would be violative of the equality clause  of the Constitution. The Magistrate is therefore  given the power to structure and control the  discretion of the police. If the Magistrate finds  from the report made by the police either on initial  investigation or on further investigation directed  by the Magistrate, that prima facie an offence  appears to have been committed, the Magistrate is  empowered to take cognizance of the offence  notwithstanding the contrary opinion of the police  and equally if the Magistrate forms an opinion that  on the facts set out in the report no offence prima  facie appears to have been committed though the  police might have come to a contrary conclusion,  the Magistrate can decline to take cognizance of  the offence. The discretion of the police to  prosecute is thus cabined and confined and, subject  to appeal or revision, and the Magistrate is made  the final arbiter on this question."           Yet again in S.N. Sharma v. Bipen Kumar Tiwari and Others [(1970)  1 SCC 653], this Court held:

"\005The use of this expression makes it clear that  Section 159 is primarily meant to give to the  Magistrate the power of directing an investigation  in cases where the police decide not to investigate  the case under the proviso to Section 157(1), and it  is in those cases that, if he thinks fit, he can choose  the second alternative. If the expression if he

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thinks fit had not been used, it might have been  argued that this section was intended to give in  wide terms the power to the Magistrate to adopt  any of the two courses of either directing an  investigation, or of proceeding himself or deputing  any Magistrate subordinate to him to proceed to  hold a preliminary enquiry as the circumstances of  the case may require\005"

         It was further held:

"\005In our opinion, Section 159 was really intended  to give a limited power to the Magistrate to ensure  that the police investigate all cognizable offences  and do not refuse to do so by abusing the right  granted for certain limited cases of not proceeding  with the investigation of the offence."           The question came up also for consideration in Hemant Dhasmana v.  Central Bureau of Investigation and another [(2001) 7 SCC 536] wherein it  was held that upon conclusion of the investigation, a report has to be filed by  CBI under Section 173(2) of the Code of Criminal Procedure to Special  Judge who takes the place of Magistrate when an offence falls under the  Prevention of Corruption Act.

       In view of the aforementioned decisions, it is the Magistrate alone  who has the final say in the matter.

       Subject to the aforementioned, I respectfully concur with the opinion  expressed by the learned Brother Kapadia, J.