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CASE NO.: Appeal (crl.)  1127 of 2006

PETITIONER: Shashikant

RESPONDENT: Central Bureau of Investigation & Others

DATE OF JUDGMENT: 07/11/2006

BENCH: S.B. Sinha & Markandey Katju

JUDGMENT: J U D G M E N T [Arising out of S.L.P. (Crl.) No.6426 of 2005]

S.B. SINHA, J :                                           

       Leave granted.

       This appeal is directed against a judgment and order dated 12.09.2005  passed by a learned Single Judge of the Nagpur Bench of the High Court of  Judicature at Bombay High Court in Criminal Writ Petition No.558 of 2005  whereby and whereunder the writ petition filed by Appellant herein was  dismissed.   

Appellant claims himself to be a vigilant employee   He made an  anonymous complaint to the Central Bureau of Investigation alleging corrupt  practices and financial irregularities on the part of some officers of his  department. First respondent No.1 stated that on the basis of a source  information,  a preliminary inquiry was conducted in which the statements  of various officers were recorded.  However, the investigating officer was of  the opinion that it was not necessary to register a First Information Report.   It recommended for holding of departmental proceedings against the  concerned officers.  The said recommendation found favour with the higher  officers.  The opinion of the Central Vigilance Commission was also  obtained.

It is stated that pursuant to or in furtherance of the said  recommendation, the Railway Administration initiated departmental  proceedings against the concerned officers, namely, S/Shri Shyam Sunder,  U.J. Dave, R.T. Pali and Ganga Prasad Sahu and imposed different penalties  on them.  The Railway Board thereafter by letters dated 06.12.2005 and  22.02.2006 advised the Central Vigilance Commission as regards imposition  of penalties upon the said officers and closure of cases against them.

Appellant, however, in the meanwhile, was transferred by an order  dated 20.05.2005.  He approached the Central Administrative Tribunal  contending that the said order of transfer was mala fide and being an  outcome of his complaint and statements made in the inquiry conducted by  the first respondent.  By an order dated 17.08.2005, the application filed by   Appellant was dismissed.  

A writ petition was filed by Appellant, inter alia, praying for the  following reliefs :

"(i)    direct  the respondent no.1 to reopen the  Preliminary Inquiry No.PE/4A/2004 and submit a  report in accordance with law after a detailed

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inquiry in the matter to  the Competent Court.

(ii)    direct the respondent no.1 to register the inquiries  for offences against the respondent nos. 2 to 4 for  excess purchases and commission of fraud to the  Nagpur Municipal Corporation and Amravati  Municipal Corporation in terms of octroi amount  of Rs. 34 lakhs and for duping the respondent nos.  6 and 7.

(iii)   direct the respondent no. 1 to register inquiry for  offences in respect of excess purchases of Amla.

(iv)    direct the respondent no.1 to receive the  complaints of the petitioner in respect of all  contracts past and present in terms of excess  payment in the Nagpur Store and direct the  respondent nos.2 to 5 to provide access to all  records & necessary documents to the petitioner  for filing the complaints.

(v)     direct the respondent no. 2 to reconsider the Order  dated 20.5.05 passed by the Chief Personnel  Officer (Signal &                       Telecommunication), Central Railway in view of  the disclosures made by the petitioner and his  request for detailed enquiry of the Store of Nagpur  Division of Central Railway.

(vi)    pending the reconsideration of the transfer of the  petitioner by the respondent no. 2, stay the effect  & operation of the Order passed by the  Chief  Personnel Officer (S & T), a Subordinate of the  respondent no. 2 dated 20/5/2005."

The High Court dismissed the said writ petition, opining :             "If this is an accepted fact, the cognizance of the  complaint must have been taken by the CBI and it is for  them to enquire/investigate into the matter.  The presence  of the Petitioner at Nagpur for that purpose is not  necessary.  The CBI has a national network and they can  reach the Petitioner, if they feel it necessary.   

In respect of the grievance of the Petitioner as to  whether the CBI is not doing their duty, it does not  appear to be well founded.  As the crux of the matter is  that since the Petitioner is aggrieved by his transfer and  having failed before the CAT, he has invoked the  extraordinary criminal jurisdiction of this Court by filing  the present Writ Petition.  In our opinion, this is nothing  but an abuse of process of Court."

Mr. S.S. Voditel, the learned counsel appearing on behalf of   Appellant, would contend that even in a case where the Investigating Officer  may exercise his option of closing a case, it would be  obligatory on his part  to comply with the provisions of Section 157(1)(b) of the Code of Criminal  Procedure (for short, ’the Code’).  In support of the said contention, our  attention has been drawn to some decisions of this Court as also a decision  of the Kerala High Court in Velayudhan v. State of Kerala [1998 (1) Crimes  510].   

Mr. Vikas Singh, the learned Additional Solicitor General, appearing

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on behalf of Respondents, on the other hand, would submit that the first  respondent having been constituted in terms of the Section 2 of  the Delhi  Special Police Establishment Act, 1946 (for short, ’the said Act’)  and the  Central Government having laid down the procedures for conducting  investigation including the mode and manner in which the preliminary  inquiry should be conducted, (known as CBI Manual), which received the  approval of this Court in Vineet Narain and Others v. Union of India and  Another [(1998) 1 SCC 226], the impugned judgment of the High Court  should not be interfered with.

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 employees of Union of India.  It is  also not disputed that the C.B.I. Manual was made by the Central  Government providing for detailed procedure as regards the mode and  manner in which complaints against public servants are to be dealt with.

In Vineet Narain (supra), it was held :   "12. The CBI Manual based on statutory provisions of  the CrPC provides essential guidelines for the CBIs  functioning. It is imperative that the CBI adheres  scrupulously to the provisions in the Manual in relation  to its investigative functions, like raids, seizure and  arrests. Any deviation from the established procedure  should be viewed seriously and severe disciplinary action  taken against the officials concerned."

CBI Manual provides for a preliminary inquiry.  By reason thereof a   distinction has been made between a preliminary inquiry and a regular case.   A preliminary inquiry  in terms of Para 9.1 of the CBI Manual may be  converted into a regular case as soon as sufficient material becomes  available to show that prima facie there has been commission of a  cognizable offence.

Paragraph 9.2 reads as under :

"While proposing registration of a Preliminary  Enquiry pertaining to the abuse of official position by a  public servant in the matter of business/commercial  decision, the important difference between a business  risk and a mala fide conduct should be kept in mind with  view to ensure that while corrupt public servants are  suitably dealt with the bona fide business/commercial  decisions taken by public servants in discharge of their  duties are not taken up for unnecessary probe."        

Paragraph 9.7  reads as under :

"As soon as it is decided to register a PE, the SP  will take action to get the PE Registration Report

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prepared, which will invariably be vetted by him and in  case of important enquiries even drafted by him.   Registration Report of PE should be written in the PE  Registration Report Form and not on the form prescribed  for recording First Information Report under Section 154  Cr. PC.  Beside the allegations in brief, the complete  details of the suspects involved should be recorded in the  PE Registration Report.  In respect of the public servants  found involved in the matter, their Group, the Service  (IAS, IRS, IPS etc.), present designation, scale of pay,  present pay and date of superannuation (if available)  should also be mentioned in the PE. registration report.   The copies of the PE Registration Reports should be sent  to the authorities mentioned in the Annexure 9-A to this  chapter."

Paragraphs  9.10 and 9.11 provide for collection of documents and  recording of statements during preliminary inquiry, providing for that the  statements of witnesses during preliminary inquiry should be recorded in the  same manner as recorded during investigation of regular cases.  

Paragraphs 9.12 to 9.14 provide for the procedures for converting a  preliminary inquiry into a regular case.  Indisputably, the provisions of the  Code are applicable in relation to the inquiries.   

The provisions of the said Act indisputably are applicable to the fact  of the present case.   The jurisdiction of the first respondent, in this behalf,   is not in question.   

Appellant does not deny or dispute that the first respondent initiated a  preliminary inquiry upon receipt of the complaint.  The question which  arises for consideration is as to whether it was obligatory on the part of the  first respondent to lodge a First Information Report and carry out a full- fledged investigation about the truthfulness or otherwise of the allegations  made in the said anonymous complaint.   

Although ordinarily in terms of Section 154 of the Code, when a  report is received relating to the cognizable offence, a First Information  Report should be lodged,  to carry out a preliminary inquiry  even under the  Code is not unknown.  

When an anonymous complaint is received, no investigating officer would  initiate investigative process immediately thereupon.  It may for good reasons  carry out a preliminary enquiry to find out the truth or otherwise of the allegations  contained therein.

       A three-Judge Bench of this Court in The State of Uttar Pradesh v.  Bhagwant Kishore Joshi [1964 (3) SCR 71], referring to the provisions of  Section 5A of the Prevention of Corruption Act, opined :  "...Even so the said police officer received a detailed  information of the offences alleged to have been  committed by the accused with necessary particulars,  proceeded to the spot of the offence, ascertained the  relevant facts by going through the railway records and  submitted a report of the said acts. The said acts  constituted an investigation within the meaning of the  definition of investigation under Section 4(1) of the Code  of Criminal Procedure as explained by this Court. The  decisions cited by the learned counsel for the State in  support of his contention that there was no investigation  in the present case are rather wide off the mark. In In re  Nanumuri Anandayya  a Division Bench of the Madras  High Court held that an informal enquiry on the basis of  a vague telegram was not an investigation within the

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meaning of Section 157 of the Code of Criminal  Procedure. In In re Rangarujulu, Ramaswami, J. of the  Madras High Court described the following three stages a  policeman has to pass in a conspiracy case : "...hears something of interest affecting the public  security and which puts him on the alert; makes  discreet enquiries, takes soundings and sets up  informants and is in the second stage of qui vive or  lookout; and finally gathers sufficient information  enabling him to bite upon something definite and  that is the stage when first information is recorded  and when investigation starts." This graphic description of the stages is only a  restatement of the principle that a vague information or  an irresponsible rumour would not in itself constitute  information within the meaning of Section 154 of the  Code or the basis for an investigation under Section 157  thereof. In State of Kerala v. M.J. Samuel a Full Bench of  the Kerala High Court ruled that, it can be stated as a  general principle that it is not every piece of information  however vague, indefinite and unauthenticated it may be  that should be recorded as the first information for the  sole reason that such information was the first, in point of  time, to be received by the police regarding the  commission of an offence. The Full Bench also took care  to make it clear that whether or not a statement would  constitute the first information report in a case is a  question of fact and would depend upon the  circumstances of that case..."  

Only when a F.I.R. is lodged, the officer in charge of the police  station statutorily liable to report thereabout to a Magistrate who is  empowered to take cognizance in terms of proviso to Section 157(1)  of the  Code.  Proviso (b) appended thereto  empowers the Investigating Officer not  to investigate where it appears to him that there is no sufficient ground for  entering  into an investigation.  Sub-section (2) of Section 157 reads as  under :     

       "(2) In each of the cases mentioned in clauses (a)  and (b) of the proviso to sub-section (1), the officer in  charge of the police station shall state in his report his  reasons for not fully complying with the requirements to  that sub-section, and, in the case mentioned in clause (b)  of the said proviso, the officer shall also forthwith notify  to the informant, if any, in such manner as may be  prescribed by the State Government, the fact that he will  not investigate the case or cause it to be investigated."      

The question, therefore,  as to whether an empowered officer who had  made investigation or caused the same to be made in a cognizable offence  within the meaning of Section 157 of the Code or  had not initiated an  investigation on the basis of an information which would not come within  the meaning of Section 154 of the Code is essentially required to be  determined in the fact situation obtaining in each case.           

Yet again in State of Haryana and Others v. Bhajan Lal and Others  [(1992) Supp. 1 SCC 335], this Court referred to P. Sirajuddin etc. v. State  of Madras etc. [(1970) 1 SCC 595] and  Bhagwant Kishore Joshi (supra) in  the following terms :

"77. In this connection, it will be appropriate to recall the  views expressed by Mitter, J. in P. Sirajuddin v. State of  Madras  in the following words: (SCC p. 601, para 17) "Before a public servant, whatever be his status, is

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publicly charged with acts of dishonesty which  amount to serious misdemeanour or misconduct of  the type alleged in this case and a first information  is lodged against him, there must be some suitable  preliminary enquiry into the allegations by a  responsible officer. The lodging of such a report  against a person specially one who like the  appellant occupied the top position in a  department, even if baseless, would do  incalculable harm not only to the officer in  particular but to the department he belonged to, in  general .... The means adopted no less than the end  to be achieved must be impeccable." 78. Mudholkar, J. in a separate judgment in State of Uttar  Pradesh v. Bhagwant Kishore Joshi at p. 86 while  agreeing with the conclusion of Subba Rao, J. (as he then  was) has expressed his opinion stating: (SCR pp. 86-87) "In the absence of any prohibition in the Code,  express or implied, I am of opinion that it is open  to a police officer to make preliminary enquiries  before registering an offence and making a full  scale investigation into it."" Thus, registration of a case is a sine qua non  for starting investigation  [See Mohindro v. State of Punjab and Others \026 (2001) 9 SCC 581].

Only an anonymous complaint was made in June 2004.  Evidently it  was within the province of the first respondent to commence a preliminary  inquiry.  The procedure laid down in the CBI Manual and in particular when  it was required to inquire into the allegation of the corruption on the part of  some public servants, recourse to the provisions of the Manual cannot be  said to be unfair.  It did not find any reason to convert the preliminary  inquiry into a regular case.   Pursuant to or in furtherance of the  recommendation made by the first respondent, which had received the  imprimatur by the Central Vigilance Commission, departmental proceedings  were initiated.  The Central Vigilance Commission advised the Railway  Board to initiate minor penalty proceedings against the delinquent officers  by a letter dated 04.08.2005.   

It is not in dispute that Appellant was directed to be transferred on  administrative grounds by an order dated 20.05.2005.  The complaint was  although made by Appellant; but it being anonymous his address was not  known.  It may be true, initially he having been posted in the store in which  the delinquent officers were also working, his statement  had been recorded;  but when a preliminary inquiry was conducted on the basis of an anonymous  complaint without registering a First Information Report, neither it was  necessary to comply with the provision of the proviso (b) appended to sub- section (1) of Section 157 of the Code, nor having regard to the fact that the  identity of  Appellant was being unknown, the question of complying with  the said provisions, even if it be held that the same was applicable, did not  arise.

Strong reliance has been placed by the learned counsel on a decision  of this Court on Hemant Dhasmana v. Central Bureay of Investigation and  Another [(2001) 7 SCC 536], wherein it was held that when an investigation  had been conducted by the Central Bureau of Investigation, Chapter 12 of  the Code would apply.  There can be no dispute as regards the proposition of  law laid down therein.  But the said decision cannot be said to have any  application whatsoever in the instant case.   

In the  decision of the Kerala High Court in Velayudhan (supra),  P.K.  Balasubramanyan, J. (as His Lordship then was) opined that on objective  assessment on the part of the officer, if he finds that no investigation into the  allegation is needed, he could certainly act in terms of Section 157 of the  Code.   The said decision, however, will have no application in a case of this

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nature.  

The First Respondent is a statutory authority.  It has a statutory duty to  carry out investigation in accordance with law.  Ordinarily, it is not within  the province of the court to direct the investigative agency to carry out  investigation in a particular manner.  A writ court ordinarily again would not  interfere with the functioning of an investigative agency.  Only in  exceptional cases, it may do so.  No such case has been made out by the  appellant herein.  The nature of relief prayed for in the writ petition also is  beyond the domain of a writ court save and except, as indicated  hereinbefore, an exceptional case is made out.

Appellant, inter alia, questioned his order of transfer.  He moved the  Central Administrative Tribunal.  His Original Application was dismissed.    He in the writ petition filed before the High Court, inter alia, questioned the  order of Tribunal.  However, now it appears that he has filed another writ  petition before the Nagpur Bench of the Bombay High Court, being Writ  Petition No.2036 of 2006,  wherein notice has been directed to be issued and  status quo has been directed to be maintained by a Division Bench of the  said court by an order dated 03.05.2006.  The High Court is required to  consider the said writ petition on its own merit.   

So far as the decision of the first respondent herein, not to register a  regular case so as to take up an investigation into the allegation against the  concerned officers, is concerned, Appellant may have to pursue his own  remedy keeping in view the fact that the first respondent before this Court  has furnished the details of its findings in the preliminary inquiry as also the  result of the departmental proceedings initiated against the delinquent  officers.

However, that part of the order whereby  Appellant had been directed  to pay a cost of Rs.5,000/- is set aside.   Subject to the observations and  directions mentioned hereinbefore, the appeal is dismissed.  However,  keeping in view of the peculiar facts and circumstances of the case, there  shall be no order as to costs.