REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS. 6198-6199    OF 2008

(Arising out of SLP (C) Nos. 24777 – 24778 of 2005)

Nirmal Singh Kahlon …. Appellant

Versus

State of Punjab and others ….  Respondents

WITH

CIVIL APPEAL NOS. 6200-6201   OF 2008

(Arising out of SLP (C) Nos. 25226 – 25227 of 2005)

J.P. Singla and others …. Appellant

Versus

State of Punjab and others ….  Respondents

J U D G M E N T  

S.B. SINHA, J.

Leave granted.

1. These two appeals involving similar questions of law and fact were

taken up for hearing together and are being disposed of by this common

judgment.  

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2. Nirmal Singh Kahlon, Appellant  in appeals  arising out  of  SLP (C)

Nos.  24777-24778  of  2005  was  the  Rural  Development  and  Panchayats

Minister in the Government of Punjab while the three appellants in appeals

arising out of SLP (C)Nos. 25226-25227 of 2005 were working as Deputy

Directors  in  the  Department  of  Rural  Development  and  Panchayats,

Government of Punjab at the relevant time.  

3. The State of Punjab had enacted the Punjab Panchayati Raj Act, 1994.

4. An advertisement for recruitment of 190 Panchayat Secretaries was

issued in the year 1992 for which written test was held in the year 1994 ;

however,  the  posts  could  not  be  filled.   In  the  meantime 545 Panchayat

Secretaries were appointed on ad hoc basis by the State.   

5. One of the  applicants,  who applied for  the post  in  response to the

advertisement of 190 posts, challenged the said ad hoc appointments by way

of  a  writ  petition  which  was  marked as  C.W.P.  No.9835  of  1996,  titled

Palvinder Singh  v. State of Punjab, which was disposed of by a Division

Bench  of  the  Court  on  20th September,  1996  by directing  inter  alia  the

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completion of the selection process as well as for available posts with the

department.  Selection against 190 posts of Panchayat Secretaries, for which

written  test  had  already been  held  was  to  be  finalized  on  or  before  20th

November, 1996.  

6. Two more  advertisements  were  issued;  first  on  17/18th September,

1996 for filling up 700 posts and  second on 14th October, 1996 for filling

up 800 posts of Panchayat Secretaries respectively.   

Another advertisement was issued on 19th September, 1998 inviting

applications  from  the  female  candidates  also  for  the  post  of  Panchayat

Secretaries.  

In  response  to  the  abovementioned  advertisements  over  1.5  lacs

applications were received, the processing job whereof was handed over to

a Delhi based computer firm.  Result of the written test was declared on or

about  14th October,  2000  in  which  3286  candidates  were  declared

successful.  They were called for interview.   

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However,  no  further  action  appears  to  have  been  taken  pursuant

thereto or in furtherance thereof.  Another writ petition was filed in the High

Court  of  Punjab  and  Haryana  which  was  marked  as  CWP No.11912  of

2000, titled Harmesh Singh and others  v.  State of Punjab and others.   By

an  order  dated  30th August,  2001,  selection  for  the  post  of  Panchayat

Secretaries was directed to be completed within one month.  The said order

was not interfered with by this Court in a Special Leave Petition filed by the

State which was marked Special Leave Petition (Civil) No. 15843 of 2001

by  an  order  dated  24th September,  2001.  Interviews  of  the  eligible

candidates were held thereafter and 908 candidates were selected.    

7. In  or  about  March,  2002  a  change  in  the  State  Government  took

place.   The  Congress  Party  came  into  power  after  election.   The  new

Government  made an  attempt  to  reinstate  the  Panchayat  Patwaris  whose

services had been terminated by the previous Government pursuant to the

orders of the High Court.   

8. Selection of the said 908 candidates was the subject matter of another

writ petition which was marked as CWP No.5283 of 2003 entitled  Veero

Devi    v.  State of Punjab and others.  In the said writ petition the Court

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formed a prima facie opinion that irregularities in the selection process had

been committed.  By an order dated 3rd April, 2002, the High Court issued

the following directions :-

“The Bench Secretary is directed to give copy of this  order  to  learned  Deputy  Advocate  General who  shall  forward  the  same  to  the  Advocate General,  Punjab.  The Advocate General,  Punjab shall  send  the  copy  of  the  order  to  the  Chief Secretary,  Punjab,  who  shall  ensure  that  a thorough  probe  is  conducted  into  the  selections made by the Directorate  of  Department  of  Rural Development  and  Panchayats  by  an  officer  not below the  rank of  Secretary to  the  Government. After conducting the probe, the report be produced before the Court within a period of 8 weeks.  The desirability  of  issuing  other  directions  would  be considered  by  the  Court  after  examining  the report.”  

The nature of litigation, therefore, was changed from private interest

litigation to public interest litigation.   

9. In terms of the said order an enquiry was made by one Shri P. Ram,

the  then  Financial  Commissioner,  Rural  Development  and  Panchayat

Department.  He was of the opinion that the entire selection process was

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required to be set aside.  A recommendation was made that an investigation

into the whole affair be made by the Vigilance Department.   

10 Pursuant  thereto  a  first  information  report  was  lodged  by  the

Vigilance Department on 14th June, 2002 against several persons including

appellant, Nirmal Singh Kahlon, for alleged commission of offences under

Sections 420, 467, 468, 120(B) of the Indian Penal Code and Sections 13(1)

(d)(e)  and 13(2) of  the  Prevention  of  Corruption  Act,  1988,  the  material

portion whereof reads as under :-

“It has come to knowledge that Sh. N.S. Kahlon Ex. Minister Rural Department and Panchayat had during his tenure made recruitments to the various posts  of  Tax  Collector,  Patwaris,  Peons,  Clerks etc.  for  his  benefit  by  illegal  means  by  taking heavy amounts of money as  bribes.  In this way for  his  favourites  who  were  not  fulfilling  the requirement like less age,   less  qualification and manipulating  the  marks  in  the  answer  sheet, recruitment  were made to  P.  Sect  and deserving candidates were side lined.  Similarly, to fulfil the backlog  in  handicap  category  recruitments  of Gram Sewaks were made and the candidates, who were  deserving  were  not  recruited.   It  has  also come  to  knowledge  that  Kamalpreet  Kaur, Advocate  District  Fatehgrah  Sahib  who  was fulfilling  the  basic  qualifications  in  handicap quota for the “Mukh Sewak” was also sidelined. Rs.  3  lacs  were  demanded  from her  by  sending Manjet  Singh  Steno,  office  of  R.D.P.  to  her residence.  When she was not able to give money in bribe, then she was not recruited to the post.  In

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this way, Kahlon has accepted heavy amounts as bribes for transfers, appointments and promotions and he has accumulated moveable and immovable assets in excess of the known resources.  This has also  come  to  knowledge  that  Kahlon  has  got leased 2 acres of Shamlat land at village Phabhat, Tehsil  Dera Bassi,  District  Patiala for 7 years in the  name  of  his  close  relative  Burwinder  Singh s/o.  Ajnala  by  mis-using  his  position,  whereas Shamlat land cannot be leased out for such a long period.  In this way Ex.R.D.P.M. has earned crores of  rupees  by  mis-using  his  position  through recruitments,  transfers,  appointments  and promotions and has accumulated countless assets and cash.  By misusing his powers, he had made wrong  appointments  for  his  benefit  and  the deserving candidates were overlooked.  By doing this  Ex.RE.D.P.M.  has  committed  crime  under Section  420,  467,  468,  120(B),  13(1)(d)(e)  read with 13(2).”     

11. A charge sheet was filed against Nirmal Singh Kahlon and J.P. Singla

(appellant No. 1 in Civil Appeals arising out of SLP (C) Nos. 25226-25227

of  2005),  Ex.  Deputy  Director  of  Rural  Development  and  Panchayats.

Appellant  Nos.  2 and 3 in  Civil  Appeals  arising  out  of  SLP (C) 25226-

25227 of 2005 were shown as the witnesses in the said report.

12.  It appears somewhat strange that despite the same a statement was

made before the Court on behalf of the State of Punjab on 1st November,

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2002 that the investigation was proposed to be handed over to the Central

Bureau of Investigation.   

13. On or  about  16th November,  2002 Secretary to  the Government  of

Punjab, Department of Rural Development issued a letter addressed to the

Chief Secretary to the Government of Punjab, opining that the case should

be investigated by the Crime Branch of the State Police.   

14. In view of the aforementioned report  the  High Court,  by an order

dated  31st October,  2002,   directed  the  Additional  Advocate  General  to

obtain  instructions  as  to  what  action  the  Government  has  been

contemplating on the enquiry report.  It was observed :-

“The State Government will have the option of suo moto making further investigation by removing all those  named  in  the  report  from their  respective offices so as to ensure that the further enquiry is not  influenced  by any of  those  officers.   It  may also  order  a  CBI  probe  into  the  entire  scandal involving appointment of Panchyat Secretaries.”

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15. On 1st November, 2002 the State Government made a statement that a

decision  had  been  taken  to  handover  the  investigation  in  regard  to  the

scandal involving selection of Panchayat Secretaries to the Central Bureau

of Investigation and also to take action against  the officers named in the

enquiry report.   

Selection  of  the  candidates,  however,  was  cancelled  by  State

Government by its order dated 10th December, 2002.   

16. The Central Bureau of Investigation, however, expressed its inability

to  take up  investigation  opining  that  the same may be conducted  by the

State Vigilance Department.  One of the grounds on which the said stand

was taken was lack of man power as also infra structure.   

An affidavit to that effect was to be filed on or before 13th November,

2002 and the matter was adjourned to 15th November, 2002.  On that date a

prayer was made for some more time to file a comprehensive affidavit.  The

writ  petition was listed before the High Court on 10th February, 2003 on

which date it noticed the decision of the State Government to handover the

investigation to the Central Bureau of Investigation.  The State took some

adjournments.  Proceedings sheet of the High Court dated 25th April, 2003

reads as under :-

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“ From the records, it appears that for very good reasons,  the  Government  of  Punjab  decided  to hand over the  investigation  of  scandal  involving selection  of  Panchayat  Secretaries,  who  are  writ petitioners, to Central Bureau of Investigation and also to take action against  the officers  named in the  inquiry  report,  that  the  Central  Bureau  of Investigation  stands  impleaded  as  Respondent No.5 in Civil Writ Petition No.5283 of 2002 and that today an application has been filed for placing on  record  DO  No.18/79-02-4/RDE  4/560  dated 04/03/2003 and DO No. I/C/2003-CHG/NZ dated 02/04/2003  of  the  Director  Central  Bureau  of Investigation, Government of India, New Delhi, as Annexure  R-1  and  Annexure  R-2  on  behalf  of Respondent  No.1  and  2,  stating,  inter  alia,  that Central Bureau of Investigation has communicated that  it  would  not  be  able  to  take  up  the investigation of the above said scandal and it may get  probed  through  the  State  Vigilance  after  the court had adjourned the further hearing of the case awaiting  the  submission  of  the  report  of  Central Bureau  of  Investigation.   Unfortunately,  even though  Central  Bureau  of  Investigation  is Respondent  No.5 in Civil  Writ  Petition No.5283 of 2002, a copy of aforementioend application has been served on Shri Rajan Gupta, Advocate so that we  could  have  a  positive  response  of  Central Bureau  of  Investigation  through  its  counsel  and adjudge the correctness or otherwise of the stand of  the  Central  Bureau  of  Investigation  as communicated to the State.”  

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17. Despite the same no notification was issued by the State of Punjab

handing  over  the  investigation  to  the  Central  Bureau  of  Investigation.

Proceedings sheet dated 30th April, 2003 inter alia reads :-

“In regard to one of the submissions made by Shri Rajan Gupta, Learned counsel that no notification has been made by the Punjab Government handing over  the  investigation  to  the  CBI,  we  hope  and trust that necessary notification in that regard will be  published  by  the  Punjab  Government  within couple of days.”  

18. On  or  about  2nd May,  2003  the  State  Government  issued  a

Notification in terms of Section 6 of the Delhi Special Police Establishment

Act,  1946  (for  short  the  ‘Act’),   the  relevant  portion  whereof  reads  as

under:-

“ And  whereas  during  the  course  of arguments, after considering the reply of the CBI and the arguments of the Standing Counsel for the CBI on 31.4.2003,  Hon’ble  Punjab and  Haryana High Court directed the State Government to issue necessary Notification well before the next date of hearing i.e. 7.5.2003 to enable the CBI to take into hands the investigation of the recruitment of 909 Panchayat Secretaries.

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Now,  therefore,  in  pursuance  of  the provisions  of  Section  6  of  the  Delhi  Special Policed Establishment Act, 1946 (Central Act 25 of 1946) and all others powers enabling him in this behalf,  the  Government  of  Punjab  is  pleased  to accord his consent to the extension of powers and jurisdiction of  the members of  the Delhi  Special Police Establishment to the whole of the State of Punjab for investigating into the alleged scandal of selection of 909 Panchayat Secretaries made in the year  1996  to  2001  in  the  Department  of  Rural Development  and  Panchayats  under  the  relevant provisions  of  the  law  and  any  other  offence  in relation to or in connection with the said alleged scandal of appointments committed in the course of the same transaction or arising out of the said matter.”   

19. In  view of  the  aforementioned  Notification  the  High  Court  by  its

order dated 7th May, 2003 directed  :-

“ Having  regard  to  the  peculiar  facts and circumstances of the instant  case,  it  was the court which took a view earlier that mater is such, which  requires,  in  the  interest  of  justice, investigation  by  the  Central  Bureau  of Investigation and then the State of Punjab came to nearly agreeing  to  the observations  made by the court,  though  after  sometime  the  Court  noticed some  dilly  dallying  on  the  part  of  the  State Government but ultimately it decided to hand over the investigation to the C.B.I.  We reiterate that in the peculiar facts and circumstances investigation by Central Bureau of Investigation appears to be not  only  just  and  proper  but  a  necessity.

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Accordingly,  we  hope  and  trust  that  the  Central Bureau  of  Investigation  will  do  its  best  to investigate and book the real culprits.  We respect that  Central  Bureau  of  Investigation  will  do  its investigation within a reasonable time though we appreciate  the  limited  resources,  which  it  is having.  We are sure that if the Director of Central Bureau of Investigation moves the Government of India to provide more funds and/or offices, it will consider  the request,  if so  made, objectively and suitable decision will be taken by the Government of India.”

20. The  Central  Bureau  of  Investigation,  however,  informed  the  High

Court  on  13th August,  2003  that  a  special  team  had  been  sent  for  a

meaningful  investigation  in  respect  of  the  allegations,  and  the same had

proceeded  to  a  considerable  length.  The  Central  Bureau  of  Investigation

thereafter registered a first information report on 26th June, 2003

21. Appellants filed applications which were marked as CM Nos. 6907 -

6908 of 2005 and 18993-18994 for recalling of the orders dated 30th April,

2003 and 7th May, 2003; the prayers made wherein read as under :-

“(a) Recall  the  orders  dated  30.4.2003 (Annexure  C-4)  and  orders  dated  7.5.2003 (Annexure  C-6)  which  have  resulted  in  the notification  dated  2nd May,  2003  of  the  State Government  hading  over  the  investigation  to

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C.B.I. and the second FIR No. 8(s) of 2003 dated 26.6.2003.

(b)  set  aside  and  quash  the  notification  of  the Government dated 2nd May, 2003 (Annexure C-6) and  the  consequential  second  F.I.R.  No.8  (s)  of 2003 dated 26.6.2003.”  

By reason of the impugned judgment dated 4th October, 2005, the said

applications have been dismissed.  

22. This Court on 12th December, 2005 while issuing notice passed the

following interim order :-

“ The  C.B.I.  may  continue  with  the investigation, but the final report shall not be filed till the next date of hearing”

23. Mr.  P.P. Rao and Mr. Raju Ramachandran,  learned senior  counsel,

appearing on behalf of the appellants, would submit :-

1) As per the records and in particular the affidavit of Chief Secretary

of the State the High Court was not made aware of the fact that the

charge sheet had already been submitted on 19th September, 2002

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before a court  of  competent  jurisdiction   and cognizance in  the

matter had been taken and thus the High Court acted illegally and

without  any  jurisdiction  in  directing  fresh  investigation  by  the

Central Bureau of Investigation.  

2) Although the High Court  in its impugned judgment noticed that

the charge sheet had been submitted on 19th September, 2002 but

failed and/or neglected to deal with the implication thereof which

demonstrates total non application of mind on its part.

3)  The Act does not envisage a State Government to give consent for

investigation by the Central Bureau of Investigation in respect of

an offence which had already been investigated and charge sheet

submitted.

4) In any event the learned Magistrate before whom the charge sheet

had been filed did not form an opinion that the investigation was

faulty  and/or  did  not  satisfy  the  requirements  of  law,  no

reinvestigation  could  have  been  directed  by  the  High  Court  in

exercise of its power under Article 226 of the Constitution of India

or  otherwise.   Even  such  an  order  of  reinvestigation  or  further

investigation  is  not  contemplated  under  Section  173(8)  of  the

Code of Criminal Procedure (for short ‘the Code’).

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5) Section 173(8) of the Code does not envisage any investigation by

a  central  agency created  under  the  Act  after  filing  of  a  charge

sheet,  in  which  event,  the  Court  of  Magistrate  alone  has  the

jurisdiction to issue any further direction regarding investigation.

6) As  a  first  information  report  had  already  been  lodged  by  the

Vigilance  Department,  another  first  information  report  for  the

same cause of action could not have been lodged by the Central

Bureau of Investigation in view of the decisions of this Court in

T.T. Antony  v.  State of Kerala, [ (2001) 6 SCC 181 ].and  Kari

Choudhary  v.  Mst. Sita Devi and others, [ (2002) 1 SCC 714 ].   

7) The Central Bureau of Investigation itself in IAs. 3 and 4 stated

that  a  fresh  first  information  report  had  been registered  on  26th

June,  2003  ,  which  goes  to  show  that  earlier  first  information

report  as  also  the  material  collected  therein  had  been  totally

ignored.  

8) The High Court in its impugned judgment, although accepted that

a second first  information report  on the same set  of allegations,

(not being a counter case) cannot be allowed but did not advert to

the legal implication thereof.   

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9) After the submission of the report under sub-section (2) of Section

173  of  the  Code,  a  further  investigation  by  another  agency  is

impermissible in law.   

10) The High Court committed a serious error in opining that the first

information report has been lodged only for the purpose of further

investigation arising out of the first information report lodged by

the Vigilance Department.   

11) The  Investigating  Officer  appointed  by  the  Central  Bureau  of

Investigation being not superior in the rank to the police officers

of the State Government who had investigated and submitted the

report  on  19th September,  2002,  Section  36  of  the  Code

whereupon reliance has been placed by the State is inapplicable

inasmuch the expression ‘superior police officer’ would mean an

officer superior in the same hierarchy i.e. in the State Police and

not an officer of the Central Bureau of Investigation.

12) The Notification  issued by the State  permitting investigation  by

the Central  Bureau of Investigation into the offence pursuant  to

the order of the High Court must be held to be illegal as the High

Court,  in  exercise  of  its  jurisdiction  under  Article  226  of  the

Constitution of India could not have issued such a direction.  In

any event the finding of the High Court that there was no direction

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to  Central  Bureau  of  Investigation  to  take  over  investigation  is

contrary to the record of the case, as such a direction had been

issued by the High Court on 7th May, 2003, on the basis of which

first  information  had  been  lodged  by  the  Central  Bureau  of

Investigation as per the order of the High Court.   

13) The High Court in exercise of its jurisdiction under Article 226 of

the Constitution of India in a public interest litigation or otherwise

cannot issue such a direction particularly when the jurisdiction to

monitor an investigation comes to an end when a charge sheet is

filed in view of the decisions of this Court in  Vineet Narain  v.

Union of India, [ (1998) 1 SCC 226 ]. ;  State of Bihar  v.  P.P.

Sharma, [ 1992 Sup. (1) SCC 222 ] ;  Union of India  v.  Sushil

Kumar Modi, [ (1998) 8 SCC 661 ] ; Rajiv Ranjan Singh ‘Lalan’

v.  Union of India, [ (2006) 6 SCC 613 ] ;  Rajesh  v.  Ramdeo,

[ (2001) 10 SCC 759 ] and  Sasi Thomas  v.  State, [ (2006) 12

SCC 421 ] ; the High Court having no constitutional power in this

behalf which is vested only in the Court of Magistrate.   

14) Appellant Nos. 2 and 3 in appeals arising out of SLP (Civil) Nos.

25226 – 25227 of  2005,  having been cited  witnesses  could not

have been made accused which is  violative of Article 20 of the

Constitution of India.   

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24. Mr. Ravi Shankar Prasad, learned senior counsel appearing on behalf

of the State of Punjab, supported the contentions of Mr. Rao.   

25. Mr.  P.P.  Malhotra,  learned Additional  Solicitor  General,  appearing

for the Central Bureau of Investigation, on the other hand, would submit :-  

1) The  Act  being  a  special  statute,  the  provision  thereof  would

prevail  over  the  provisions  of  the  Code of  Criminal  Procedure,

1973 (for short ‘the Code’).  .   

2) The expression ‘rank’ used in Section 36 of the Code cannot be

held to be confined only to the same agency but would mean the

investigating agency.

3) In terms of Section 3 of the Act the ultimate authority being the

State,  it  was  entitled  to  entrust  the  investigation  to  the  Central

Bureau of Investigation.

4) The purport and object of inserting sub-section (8) of Section 173,

in  the  Code,  as  would  appear  from  the  report  of  the  Law

Commission being laudable  in nature, the  same deserves liberal

interpretation.          

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5) The  earlier  first  information  report  lodged  by  the  Vigilance

Department  was  general  in  character  while  the  later  First

Information Report  being in  respect  of  the scam relating to  the

appointment of Panchayat Secretaries is the real first information

report.   

26. A  criminal  proceeding  is  initiated  on  the  basis  of  lodged  F.I.R.

Commencement  of  investigation  in  the  matter  may  be  preceded  by  a

preliminary inquiry.   

The term ‘investigation’ has been defined in Section 2(h) of the Code

to include all  the  proceedings  under  the  Code for  collection  of  evidence

conducted by a police officer or by any person (other  than a Magistrate)

who is authorized by a Magistrate in this behalf.   

‘Officer in charge of a police station’ is defined in Section 2(o) of the

Code  to  mean ‘officer  in  charge  of  a  police  station’  includes,  when  the

officer in charge of the police station is  absent  from the station-house or

unable from illness or other cause to perform his duties, the police officer

present  at  the station – house who is  next  in rank to such officer  and is

20

above the rank of constable or, when, the State Government so directs, any

other police officer so present.   

Both  the  definitions  are  inclusive  ones.   They  have  expansive

meaning.   The  interpretation  clause  thus  must  receive  a  liberal

interpretation.  

27. In  terms  of  Section  3  of  the  Police  Act,  1861,  the  State  has  the

ultimate say in the matter of superintendence of investigation.  Section 36 of

the Code must be read harmoniously with the said provision.   Therefore,

when Section 36 of the Code uses the words ‘in rank’, it should be given a

purposive  construction.   Although a  plain  reading of  the  aforementioned

provision  appears  to  be  containing  three  ingredients,  namely,  (i)  the

investigation must be carried out by an Officer in charge; (ii) which may be

supervised by an Officer superior in rank; and (iii) in respect of a local area

to which they are appointed, but in the context of the power of the State vis-

à-vis  the  provisions  of  Act,  the  same,  in  our  opinion,  deserves  a  wider

application.   

21

An accused is entitled to a fair investigation.   Fair investigation and

fair trial are concomitant to preservation of fundamental right of an accused

under Article 21 of the Constitution of India.   But the State has a larger

obligation i.e. to maintain law and order, public order and preservation of

peace and harmony in the society.  A victim of a crime, thus,  is  equally

entitled to a fair investigation.   

28. When serious allegations were made against a former Minister of the

State, save and except the cases of political revenge amounting to malice, it

is  for  the  State  to  entrust  one  or  the  other  agency  for  the  purpose  of

investigating into the matter.   

29. The  State  for  achieving  the  said  object  at  any  point  of  time  may

consider  handing  over  of  investigation  to  any  other  agency  including  a

central agency which has acquired specialization in such cases.   

In  that  backdrop,  it  is  necessary  to  examine  the  rival  contentions

raised before us.

22

30. Lodging  of  a  First  Information  Report  by  CBI  is  governed  by  a

manual. It may hold a preliminary inquiry; it has been given the said power

in Chapter VI of the CBI Manual.  A prima facie case may be held to have

been established only on completion of a preliminary enquiry.  

Whether  the  First  Information  Report  lodged  by  the  Vigilance

Department of the State and the one lodged by the CBI related to the same

cause of action is the question?   

31. We would proceed on the basis that on the self same cause of action,

two First Information Reports would not be maintainable.  A bare perusal of

the First Information Report dated 14.6.2002 lodged at the instance of the

Vigilance Officer shows that the same was general in nature.  One of the

several allegations contained therein referred to was that irregularities have

been committed in the matter of recruitment of Panchayat Secretaries.  No

detail, however, was furnished.  All the persons involved were not named.

What types of irregularities have been committed were not stated.   

32. The High Court while entertaining the writ petition formed a prima

facie  opinion  as  regards  the  systematic  commission  of  fraud.  While

dismissing the writ petition filed by the selected candidates, it initiated a suo

23

motu public interest  litigation.   It  was entitled to  do so.    The nature of

jurisdiction  exercised  by the  High  Court,  as  is  well  known,  in  a  private

interest litigation and in a public interest litigation is different.  Whereas in

the latter  it  is  inquisitorial  in nature, in  the former it  is  adversorial.  In a

public  interest  litigation,  the  court  need  not  strictly  follow  the  ordinary

procedure.   It  may not  only appoint  committees but  also issue directions

upon the State from time to time.  {See Indian Bank vs. Godhara Nagrik Co-

op. Credit Society Ltd. & Anr. [2008 (7) SCALE 363] and  Raju Ramsing

Vasave  v.   Mahesh Deorao Bhavpurkar  and others,  [2008 (12)  SCALE

252].

33. The process began by calling for a report from a responsible officer of

the State. The Financial Commissioner submitted a report.  The High Court

in its order dated 31.10.2002, as noticed heretobefore, gave two options to

the State.  The State itself came out with the suggestion that it would like to

get  the  scam  investigated  by  the  Central  Bureau  of  Investigation.

Indisputably,  the  Central  Bureau  of  Investigation  had  shown  an  initial

reluctance to take over the investigation in view of lack of infrastructure but

the  records  of  the  High  Court  reveal  that  at  a  later  stage  it  had  shown

interest in the matter.  However, in view of the dilly dallying tactics adopted

24

by the State in issuing appropriate notification in terms of Section 6 of the

Act,  the High Court  expected the State to issue a notification at an early

date, by an order dated 30.4.2003.  The State concededly exercised the said

power.   

34. In an ordinary case, we might have accepted the submission of Mr.

Rao that the High Court should not direct Central Bureau of Investigation to

investigate into a particular offence.  The offence, however, is not ordinary

in nature.  It involved investigation into the allegations of commission of

fraud  in  a  systematic  manner.   It  had  a  wide  ramification  as  a  former

Minister of the State is said to be involved.   

35. This Court in Vineet Narain  (supra)  held:

“8. The sum and substance of these orders is that the CBI and other governmental agencies had not carried  out  their  public  duty  to  investigate  the offences disclosed; that none stands above the law so that an alleged offence by him is not required to be  investigated;  that  we  would  monitor  the investigations, in the sense that we would do what we permissibly could to see that the investigations progressed  while  yet  ensuring  that  we  did  not direct  or  channel  those  investigations  or  in  any other  manner  prejudice  the  right  of  those  who might be accused to a full and fair trial. We made it clear that the task of the monitoring court would

25

end the moment a charge-sheet was filed in respect of a particular investigation and that the ordinary processes of the law would then take over. Having regard to the direction in which the investigations were leading, we found it necessary to direct the CBI not to report the progress of the investigations to the person occupying the highest office in the political executive; this was done to eliminate any impression of bias or lack of fairness or objectivity and  to  maintain  the  credibility  of  the investigations. In short, the procedure adopted was of “continuing mandamus”

In P.P. Sharma, IAS and another (supra) this Court held:

“31. Finally, we are at a loss to understand as to why  and  on  what  reasoning  the  High  Court assumed  extraordinary  jurisdiction  under  Article 226/227  of  the  Constitution  of  India  at  a  stage when the Special Judge was seized of the matter. He had  heard  the  arguments  on  the  question  of cognisance and had reserved the orders. The High Court  did  not  even  permit  the  Special  Judge  to pronounce the orders.

32. The Directors of the firm who are also accused persons in this case had approached the Rajasthan High  Court  for  the  quashing  of  the  FIR  and prosecution  against  them.  The  Rajasthan  High Court  dismissed  the  writ  petition  with  the following order:

“Sri Bhandari states that in this matter chalan has  already  been  filed  in  court.  The  writ

26

petition  has,  therefore,  become  infructuous. The  writ  petition  is  dismissed  as  having become infructuous. No order as to costs.”

33. The above order was brought to the notice of the Patna High Court but the High Court refused to be persuaded to adopt the same course. We are of  the  considered  view that  at  a  stage  when  the police  report  under  Section  173  CrPC has  been forwarded  to  the  Magistrate  after  completion  of the investigation and the material collected by the Investigating Officer is under the gaze of judicial scrutiny,  the  High  Court  would  do  well  to discipline  itself  not  to  undertake  quashing proceedings at that stage in exercise of its inherent jurisdiction.  We  could  have  set  aside  the  High Court judgment on this ground alone but elaborate argument  having  been  addressed  by  the  learned counsel for the parties we thought it proper to deal with all the aspects of the case.”

In Sushil Kumar Modi, (supra), it was opined :-

“6. This position is so obvious that no discussion of the point  is  necessary. However, we may add that this position has never been doubted in similar cases dealt with by this Court. It was made clear by this Court in the very first case, namely Vineet Narain v. Union of India that once a charge-sheet is filed in the competent court after completion of the investigation, the process of monitoring by this Court for the purpose of making the CBI and other investigative  agencies  concerned  perform  their function  of  investigating  into  the  offences concerned  comes  to  an  end;  and  thereafter  it  is only the  court  in which the charge-sheet  is  filed which  is  to  deal  with  all  matters  relating  to  the

27

trial  of  the  accused,  including  matters  falling within the scope of Section 173(8) of the Code of Criminal  Procedure.  We  make  this  observation only to reiterate this clear position in law so that no  doubts  in  any  quarter  may  survive.  It  is, therefore,  clear  that  the  impugned  order  of  the High  Court  dealing  primarily  with  this  aspect cannot be sustained.”

[See also Rajiv Ranjan Singh ‘Lalan’ and Sasi Thomas (supra) ].

36. The question as to whether the Court can order C.B.I. to investigate a

cognizable offence in a State without the consent of the State Government

stands  referred  to  a  larger  Bench  in  State  of  W.B.  v.  Committee  for

Protection of Democratic Rights W.B. and others, [(2006) 12 SCC 534], but

then concededly the law as it stands recognizes such a power in the High

Court.  

37. It was not a case where investigation could be carried out in a slip-

shod  manner.   The  first  FIR  was  lodged  on  14.06.2002  as  against

individuals.   It  referred to  the acts  of  omissions and commissions  of  the

accused  named  therein.   During  his  tenure  as  a  former  Minister,

recruitments  of  various  posts  of  Tax  Collectors,  Patwaris,  Peons,  Clerks

28

were allegedly made by him by illegal means i.e. by taking heavy amount of

money as bribe.  Even those who were not eligible were allegedly selected.

Allegations were also made in regard to filling up of the backlog vacancies

in handicap category of Gram Sewaks.  Appellant is said to have accepted

heavy amount as bribe for transfers, appointments and promotions and, thus,

accumulated  movable  and  immovable  assets  which  were  said  to  be

disproportionate to his known sources of income.   

38. The High Court, however, was concerned only with appointment of

Panchayat  Secretaries.  Public  interest  litigation  was  confined  to  such

appointments only.  In regard thereto, the only allegation which was made

was  that  he  got  his  favourites  appointed  who  did  not  fulfill  the

qualifications,  such  as,  under-aged  person,  person  possessing  less

qualification, wherefor allegedly marks on the answer sheets were tempered

and candidature of suitable candidates was ignored.   

39. The Finance Commissioner, of course, had submitted a report earlier,

i.e., on 4.09.2001.  It refers to a large number of irregularities which were

found  out  by  the  Committee.   According  to  the  Committee,  not  only

29

criminal action should be initiated but also departmental action should be

taken against a large number of officers.   

40. The second FIR lodged by the Central Bureau of Investigation (CBI),

however, was on a wider canvass.  It was lodged after holding a detailed

preliminary inquiry.  CBI collected a large number of materials.  It had also

recorded the statements of a large number of persons.  Whereas the first FIR

dated 14.06.2002, thus, contained the misdeeds of individuals, the second

one depicts a crime committed in course of selection process of Panchayat

Secretaries involving a large number of officers.   

The  High  Court  was  not  concerned  with  individual  acts.   It  was

concerned with a scam involving appointment of Panchayat Secretaries.   

41. The  second  FIR  dated  26.06.2003  enumerates  as  many  as  fifteen

categories  of  irregularities  committed by various  persons  involved in  the

said  selection  process.   Responsibility  has  not  only been fixed  upon  the

appellant but also upon Shri Mandeep Singh, Shri C.L. Premmy, Shri J.S.

Kesar,  Shri  Joginder  Singh  as  also  the  then  Additional  Deputy

Commissioners of Bhatinda, Ropar and Muktsar.  The number of accused

30

who were involved as per preliminary report of the CBI were as many as

fourteen.  The first FIR pointed out offences under Sections 420, 467, 468,

120B of the Indian Penal Code and Sections 13(1)(d)(e) and 13(2) of the

Prevention of Corruption Act  but no allegation of conspiracy was made.  In

the second FIR dated 26.06.2003, the persons involved were not only the

then Minister but also the then Director, the then Division Deputy Director,

the then Deputy Directors, the then Additional Deputy Commissioners, the

then Block Development Officers, etc.

42. It  is  in the aforementioned factual  backdrop the order  of  the  High

Court dated 31.10.2002 assumes significance.  By reason of the said order,

the State Government was given two options, viz.:

(i) to make further investigation by removing all those names in the

report  from their  respective  offices  so  as  to  ensure  that  further

inquiry was not influenced by any of those officers; or  

(ii) to  order  a  CBI  probe  into  the  entire  scandal  involving  the

appointment of Panchayat Secretaries.   

31

43. It is in the aforementioned situation the State Government had taken a

decision to hand over the investigation of the scandal involving selection of

Panchayat Secretaries to the CBI.   

44. An  offence  committed  by  an  individual  or  two  and  an  offence

disclosed in a scandal involving a large number of officers from the lowest

category to the highest category is distinct and different.  In the first FIR

although  the  provision  of  Section  120B  of  the  Indian  Penal  Code  was

mentioned,  no  allegation  of  conspiracy  had  been  made.   As  indicated

hereinbefore,  it  centered  round  a  large  number  of  acts  of  omissions  and

commissions on the part of the appellant Kahlon alone, as would be evident

from the following:

“…By misusing his powers,  he has made wrong appointments  for  his  benefit  and  the  deserving candidates  were  overlooked.   By doing  this  Ex. R.D.P.M. has committed crime under Section 420, 467, 468, 120(B), 13(1)(d)(e) read with 13(2)…”

45. In the  aforementioned circumstances,  the decision  of  this  Court  in

Ram  Lal  Narang v.  State  (Delhi  Administration) [(1979)  2  SCC  322]

assumes significance.   This Court  therein was concerned with  two FIRs;

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both lodged by the Central Bureau of Investigation.  The first one contained

allegations against two persons, viz., Malik and Mehra under Section 120B

of the Indian Penal Code read with Sections 406 and 420 thereof wherein

the CBI filed a chargesheet.   Later on, however,  some subsequent events

emerged resulting in lodging the FIR not only against Malik and Mehra but

also against Narang and his two brothers.  This Court opined:

“The  offences  alleged  in  the  first  case  were Section 120-B read with Section 420 and Section 406 IPC, while the offences alleged in the second case  were  Section  120-B read  with  Section  411 IPC  and  Section  25  of  the  Antiquities  and  Art Treasures Act, 1972. It is true that the Antiquities and Art Treasures Act had not yet come into force on the date when the FIR was registered. It is also true that Omi Narang and Manu Narang were not extradited  for  the  offence  under  the  Antiquities and Art Treasures Act, and, therefore, they could not  be  tried  for  that  offence  in  India.  But  the question whether any of the accused may be tried for  a  contravention  of  the  Antiquities  and  Art Treasures  Act  or  under  the  corresponding provision of the earlier Act is really irrelevant in deciding whether the two conspiracies are one and the  same.  The  trite  argument  that  a  Court  takes cognizance of offences and not offenders was also advanced. This argument is again of no relevance in  determining  the  question  whether  the  two conspiracies  which  were  taken cognizance  of  by the Ambala and the Delhi Courts were the same in substance. The question is not whether the nature and character of the conspiracy has changed by the mere  inclusion  of  a  few  more  conspirators  as accused or by the addition of one more among the

33

objects of the conspiracy. The question is whether the two conspiracies are in substance and truth the same.  Where  the  conspiracy  discovered  later  is found to cover a much larger canvas with broader ramifications, it cannot be equated with the earlier conspiracy  which  covered  a  smaller  field  of narrower dimensions. We are clear, in the present case, that the conspiracies which are the subject- matter  of  the  two  cases  cannot  be  said  to  be identical  though  the  conspiracy  which  is  the subject-matter  of  the  first  case may, perhaps,  be said to have turned out to be part of the conspiracy which is the subject-matter of the second case. As we  mentioned  earlier,  when  investigation commenced in FIR R.C. 4 of 1976, apart from the circumstance  that  the  property  involved  was  the same, the link between the conspiracy to cheat and to misappropriate and the conspiracy to dispose of the stolen property was not known.

12. The further connected questions arising for consideration are, what was the duty of the police on discovering that the conspiracy, which was the subject-matter  of  the  earlier  case,  was  part  of  a larger  conspiracy,  whether  the  police  acted without  jurisdiction  in  investigating  or  in continuing to investigate into the case and whether the  Delhi  Court  acted  illegally  in  taking cognizance of the case?”

46. It  may be  true  that  in  both  the  FIRs Kahlon was  named.  He was

considered to be the prime accused.  But, it is one thing to say that he acted

in his individual capacity and it is another thing to say that he conspired

34

with a large number of persons to facilitate commission of crime by him as a

result whereof all of them had made unlawful gains.   

47. Even  in   Ram Lal  Narang (supra),  we  have  seen  that  two  of  the

accused, viz., Mehra and Malik, were common.  When two conspiracies are

alleged; one is larger than the other, there may be some common factors but

the nature of offence would differ.   An offence committed would not  be

judged by mere mentioning  of  the sections  but  the  mode and manner in

which the same was committed as also the nature thereof.

48. Strong reliance has been placed by Mr. Rao on  T.T. Antony (supra)

and Kari Choudhary (supra).   

In T.T. Antony (supra), the first FIR was lodged in 1994; another FIR

was lodged three years thereafter on the self-same cause of action.  Ram Lal

Narang (supra) in the said fact-situation was distinguished on facts, opining:

“…This Court indicated that the real question was whether  the  two  conspiracies  were  in  truth  and substance the same and held that the conspiracies in the two cases were not identical. It appears to us that the Court did not repel the contention of the appellant regarding the illegality of the second FIR

35

and the investigation based thereon being vitiated, but on facts found that the two FIRs in  truth  and substance were different — the first was a smaller conspiracy and the second was a larger conspiracy as it turned out eventually…”   

In Kari Choudhary (supra), the mother-in-law of the deceased Sugnia

Devi lodged an FIR that some persons from outside had entered into her

bedroom  and  murdered  her  by  strangulation.   During  the  process  of

investigation, it  was found that the murder took place in a manner totally

different  from  the  version  furnished  in  the  FIR.   According  to  the

investigating officer,  the murder was committed pursuant  to a conspiracy

hatched by her mother-in-law and her other daughters-in-law.  A final report

was sent.  However, another FIR was lodged.  The first FIR was lodged on

27.06.1988 and the second FIR was lodged in 30.11.1988.  The validity of

the first FIR was in question.  In that case, another chargesheet was filed on

31.03.2000.  This Court held:

“11.  Learned  counsel  adopted  an  alternative contention  that  once  the  proceedings  initiated under  FIR  No.  135  ended  in  a  final  report  the police  had no authority to register  a second FIR and number it as FIR No. 208. Of course the legal position is that there cannot be two FIRs  against  the same accused in  respect  of  the  same

36

case. But when there are rival versions in respect of the same episode, they would normally take the shape of two different FIRs and  investigation can be carried on under both of them by the same investigating  agency.  Even that  apart,  the  report submitted to the court styling it as FIR No. 208 of 1998  need  be  considered  as  an  information submitted to the court regarding the new discovery made  by  the  police  during  investigation  that persons  not  named in  FIR No.  135  are  the  real culprits. To quash the said proceedings merely on the ground that final report had been laid in FIR No.  135  is,  to  say  the  least,  too  technical.  The ultimate object of every investigation is to find out whether the offences alleged have been committed and, if so, who have committed it.”

Kari Choudhary (supra) should be read with Ram Lal Narang (supra).

 In  State of A.P. v. A.S. Peter [(2008) 2 SCC 383], this Court held:

“16.  Even  in  regard  to  an  independent investigation undertaken by the police authorities, it  was observed:  (Narang case, SCC p. 338, para 21) “21.  …  In  our  view,  notwithstanding  that  a Magistrate  had  taken  cognizance  of  the  offence upon a police report submitted under Section 173 of the 1898 Code, the right of the police to further investigate was not exhausted and the police could exercise  such  right  as  often  as  necessary  when fresh information came to light. Where the police desired to make a further investigation, the police could express their regard and respect for the court

37

by seeking its formal permission to make further investigation.” 17. It is not a case where investigation was carried out  in  relation  to  a  separate  conspiracy.  As allegations had been made against the officer of a local  police  station  in  regard  to  the  mode  and manner in which investigation was carried out, a further investigation was directed. The court  was informed  thereabout.  Although,  no  express permission  was  granted,  but  evidently,  such  a permission was granted by necessary implication as  further  proceeding  was  stayed  by the  learned Magistrate. It is also not a case where two charge- sheets were filed before two different courts. The court designated to deal with the matters wherein investigation  had  been  carried  out  by  CID,  is located  at  Chittoor.  It  is  in  the  aforementioned situation,  the Sessions Judge transferred the case pending  in  the  Tirupati  Court  to  the  Designated Court  at  Chittoor.  Cognizance of  further  offence had also been taken by the Chittoor Court.”

49. The instant case, in our opinion, stands on a better footing vis-à-vis

Ram Lal Narang (supra) in the sense that whereas the first FIR did not make

any allegation as regards existence of a conspiracy, the second FIR did.  The

canvass of two FIRs is absolutely different.  The numbers of accused in both

the FIRs are also different.       

50. We must also bear in mind the distinction between crime committed

by an individual or a group of persons vis-à-vis a scam which means “to get

38

money  or  property  from,  another,  under  false  pretences,  by  gaining  the

confidence of the victim, also includes; swindle; defraud”.  [See Advanced

Law Lexicon, 3rd edition, 2005, page 4237]

51. We may also notice that in H.N. Rishbud and Inder Singh v. The State

of  Delhi [1955  (1)  SCR  1150]  the  appellant  Rishbud  was  an  Assistant

Development Officer and another appellant Inder Singh was the Assistant

Project Section Officer.  A number of criminal proceedings were pending

against them.  The cases against them were that they along with some others

entered into criminal conspiracies to obtain for themselves or for others iron

and steel materials in the name of certain bogus firms and that they actually

obtained quota certificates, on the strength of which some of the members

of  the  conspiracy  took  delivery  of  quantities  of  iron  and  steel  from the

stock-holders of those articles.  They were prosecuted under Sections 120B

and 420 of the Indian Penal Code and Section 7 of the Essential Supplies

(Temporary Powers) Act, 1947.  The public servants were also charged with

Section 5(2) of the Prevention of Corruption Act, 1947.

Whereas investigations in respect of Section 5(2) of the Prevention of

Corruption Act were required to be made by a police officer not below the

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rank of a Deputy Superintendent of Police without the order of a Magistrate

of the First Class, investigations under other provisions were not.  Therein,

the  FIRs  were  lodged  in  April  and  June,  1949  but  permission  for

investigation as against  the public servants  by a police officer  below the

rank of  Deputy Superintendent  of  Police  was given in  March and April,

1951.   

The question which arose for consideration therein was whether the

chargesheets  filed in  those  cases  were  illegal.   This  Court  examined the

scheme of the Code to hold :-

“9. 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 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

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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  the  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…”

52. Yet again, in Upkar Singh v. Ved Prakash and Others [(2004) 13 SCC

292], a Three-Judge Bench of this Court held:

“21.  From the  above  it  is  clear  that  even  in regard to a complaint arising out of a complaint on further investigation if it was found that there was a larger conspiracy than the one referred to in the previous  complaint  then  a  further  investigation

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under the court culminating in another complaint is permissible.”

53. If, in a situation of this nature, lodging of the second FIR was not

impermissible in law, the main plank of submission of Mr. Rao that whereas

in  terms  of  Section  173(8)  of  the  Code  of  Criminal  Procedure  further

investigation is permissible, re-investigation is not, takes a back seat.

54. The question can be considered from another angle.  If the State has

the ultimate  supervisory jurisdiction  over  an investigation  for  an offence

and if it intends to hand over a further investigation even after filing of the

chargesheet, it may do so.  However, it appears from the records that those

officers  including  the Chief  Secretary who  were  dealing  with  the  public

interest litigation were not aware that the chargesheet had been filed in the

earlier case.  The State Government and the High Court had proceeded on

the basis that the investigation was to be handed over to the CBI.  The High

Court came to know thereof only when an application for modification was

filed by the appellants therein.  It may be true that the High Court proceeded

on the basis that although the CBI had lodged the FIR, the same would be

deemed to have been lodged only for the purpose of carrying out  further

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investigation,  but,  in  our  opinion,  for  the  views  we  have  taken,  its

conclusions are correct.

55. The High Court in this case was not monitoring any investigation.  It

only desired that the investigation should be carried out by an independent

agency.  Its anxiety, as is evident from the order dated 3.04.2002, was to see

that the officers of the State do not get away.  If that be so, the submission

of Mr. Rao that the monitoring of an investigation comes to an end after the

chargesheet is filed, as has been held by this Court in Vineet Narain (supra)

and M.C. Mehta (Taj Corridor Scam) v. Union of India and Others [(2007)

1 SCC 110], loses all significance.   

56. Moreover,  it  was  not  a case where the High Court  had assumed a

jurisdiction in regard to  the same offence in  respect  whereof the Special

Judge  had  taken  cognizance  pursuant  to  the  chargesheet  filed.   The

chargesheet was not filed in the FIR which was lodged on the intervention

of the High Court.   

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As the  offences  were  distinct  and  different,  the  High  Court  never

assumed the jurisdiction of the Special  Judge to  direct  reinvestigation  as

was urged or otherwise.   

57. The Act is a special statute.  By reason of the said enactment, the CBI

was constituted.  In relation to the matter which were to come within the

purview thereof, the CBI could exercise its jurisdiction.  The law and order,

however, being a State subject,  the CBI derives jurisdiction only when a

consent therefor is given by the statute.  It is, however, now beyond any

controversy that the High Court and this Court also direct investigation by

the CBI.  Our attention has been drawn to the provisions of the CBI Manual,

from a perusal whereof it appears that the Director, CBI exercises his power

of superintendence in respect of the matters enumerated in Chapter VI of the

CBI Manual which includes reference by the State and/ or reference by the

High Courts and this Court as also the registration thereof.  The reference

thereof may be received from the following:

“(a) Prime Minister of India (b) Cabinet Ministers of Government of India/

Chief  Ministers  of  State  Governments  or their equivalent  

(c) The State Governments (d) Supreme Court/ High Courts”

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The  CBI  Manual  having  been  framed  by  the  Union  of  India,

evidently, it has accepted that reference for investigation to the CBI may be

made either by this Court or by the High Court.   

58. Thus,  even  assuming  that  reference  had  been  made  by  the  State

Government at the instance of the High Court, the same by itself would not

render the investigation carried out by it to be wholly illegal and without

jurisdiction as assuming that the reference had been made by the High Court

in exercise of its power under Article 226 of the Constitution of India in a

public interest litigation, the same would also be valid.

59. The  second  FIR,  in  our  opinion,  would  be  maintainable  not  only

because there were different versions but when new discovery is made on

factual foundations.  Discoveries may be made by the police authorities at a

subsequent stage.  Discovery about a larger conspiracy can also surface in

another proceeding, as for example, in a case of this nature.  If the police

authorities did not make a fair investigation and left out conspiracy aspect

of the matter from the purview of its investigation, in our opinion, as and

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when the same surfaced, it was open to the State and/ or the High Court to

direct investigation in respect of an offence which is distinct and separate

from the one for which the FIR had already been lodged.

60. An order of further investigation in terms of Section 173 (8) of the

Code by the State in exercise of its jurisdiction under Section 36 thereof

stands on a different footing. The power of the investigating officer to make

further investigation in exercise of its statutory jurisdiction under Section

173(8) of the Code and at the instance of the State having regard to Section

36 thereof read with Section 3 of the Police Act, 1861 should be considered

in different contexts.  Section 173(8) of the Code is an enabling provision.

Only when cognizance of an offence is taken, the learned Magistrate may

have some say.  But, the restriction imposed by judicial legislation is merely

for  the  purpose  of  upholding  the  independence  and  impartiality  of  the

judiciary.   It  is  one  thing  to  say  that  the  court  will  have  supervisory

jurisdiction to ensure a fair investigation, as has been observed by a Bench

of this Court in Sakiri Vasu v. State of Uttar Pradesh and Others [(2008) 2

SCC 409], correctness whereof is open to question, but it is another thing to

say that  the investigating  officer  will  have  no jurisdiction  whatsoever to

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make  any  further  investigation  without  the  express  permission  of  the

Magistrate.   

The ratio laid down in  A.S. Peter (supra) (wherein one of us was a

member),  to  which  reliance  has  been  placed  by  Mr.  Rao  should  be

considered from that angle.

61. Contention raised that the investigating officer appointed by the CBI

would not  be a superior  officer  in rank to the police officer of the State

Government in terms of Section 36 of the Code of Criminal Procedure may

not detain us in view of our findings aforementioned.   

We may, however, observe that the State as in terms of the provisions

of the Code and the Act exercises two different and distinct jurisdictions.

The power of supervision over investigation vested in the State in terms of

Section 3 of the Police Act, 1861 is absolute.  It may in a given case having

regard  to  the  nature  and  complexity  of  the  offence  may also  direct  that

further investigation in the matter may be carried out by a central agency.

The State in terms of the special statute, viz.,  the Act can always request the

CBI to make an investigation / further investigation.  The said power of the

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State is wholly unrestricted by Section 36 of the Act or otherwise.  As a

logical  corollary  if  while  making  preliminary  inquiry  pursuant  to  the

notification issued by the State in terms of Section 6 of the Act, the CBI

comes  to  know of  commission  of  other  and  further  offence  involving  a

larger  conspiracy  which  required  prosecution  against  a  large  number  of

persons  who  had  not  been  proceeded  against  at  all  by  the  local  police

officers, we are of the opinion that even lodging of second FIR would not be

a bar.   

62. If lodging of the second FIR is legally permissible, only because the

same has been done at the instance of the High Court could not lead this

Court to arrive at a conclusion that its direction in that behalf was wholly

without  jurisdiction.   It  will  bear  repetition to  state that  law as it  stands

permits the High Court and this Court to direct investigation made by the

CBI.   As  indicated  hereinbefore,  it  is  also  recognised  by  the  Central

Government,  as  would  appear  from  the  provisions  of  the  CBI  Manual

referred to hereinbefore.   

63. We must,  however,  not  lose sight  of  the  fact  that  before  the  High

Court it was the State Government who stated that it would like to get the

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scam investigated by the CBI.  The direction was issued only in view of the

said offer and not de’hors the same.

64. For the reasons aforementioned,  we do not  find any merit in these

appeals.   

We would, however, in exercise of our jurisdiction under Article 142

of the Constitution of India, like to issue some directions.   

In view of the fact that a chargesheet has been filed on the basis of the

first  FIR and it  is  stated that  two witnesses had also been examined,  we

would direct the learned Trial  Judge to segregate that portion of the trial

which  has  any bearing  with  the  scam relating  to  the appointment  of  the

Panchayat Secretaries.  Appellants, in the other appeals, who had been cited

as witnesses therein should not be allowed to be examined except with their

consent.  All the materials collected by the investigating officer pertaining

to the said scam shall be transferred to the Court of Sub-Judge dealing with

the CBI matters forthwith so as to enable it  to hear that  part  of the case

either  independently  or  together  with  the  chargesheet  which  may  be

submitted  by  the  CBI  before  it.   These  directions  are  issued  for  doing

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complete justice to the parties and in terms of the decision of this Court in

Divine Retreat Centre v.  State of Kerala and Others [(2008) 3 SCC 542],

whereupon Mr. Rao himself placed strong reliance.

65. As the investigation is complete, the CBI may file chargesheet before

a court having appropriate jurisdiction.      

66. The appeals are dismissed with aforementioned directions.   

………………………….J. [S.B. Sinha]

..…………………………J.     [Aftab Alam]

New Delhi; October 22, 2008

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