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PETITIONER: STATE OF HARYANA AND ORS.

       Vs.

RESPONDENT: CH. BHAJAN LAL AND ORS.

DATE OF JUDGMENT21/11/1990

BENCH: PANDIAN, S.R. (J) BENCH: PANDIAN, S.R. (J) REDDY, K. JAYACHANDRA (J)

CITATION:  1992 AIR  604            1990 SCR  Supl. (3) 259  1992 SCC  Supl.  (1) 335 JT 1990 (4)   650  1990 SCALE  (2)1066

ACT:     Constitution  of India, 1950: Article  226--Quashing  of criminal proceedings--Circumstances under which power  could be exercised-Guidelines given.     Code  of  Criminal Procedure, 1973: Sections  154,  155, 156,     157,     159--Cognizable     offence--Field      of investigation--Exclusive     domain     of     investigating agencies--Court’s interference--When justified.   Section   482--Inherent   powers   of   courts--Exercise Of--Circumstances  necessitating quashing of  criminal  pro- ceedings--Guidelines indicated.     Prevention of Corruption Act, 1947: Section  5--Investi- gation by designated officers--Express prohibition of  offi- cers    below    certain   rank---Whether    directory    or mandatory--Exceptions  only on adequate reasons--To be  dis- closed--Authorising  such  non_designated  officers  without reasons--Whether  legal and valid--Investigation carried  on by such officer--Quashing of. Words & Phrases: "Reason to suspect"--Meaning of.

HEADNOTE:     The  First  Respondent was a Minister  and  subsequently Chief  Minister  of  Haryana State. Later  he  became  Union Minister. On 12.11.1987 a complaint was presented before the Haryana  Chief  Minister, wherein serious  allegations  were levelled against the First Respondent. The main  allegations were  that  he accumulated huge properties worth  crores  of rupees  in  the names of his family members,  relations  and persons close to him by misusing his power and position  and by undervaluing the market price, and all those transactions were  benami  in character. According  to  the  complainant, since  the accumulation of the properties by the  First  Re- spondent, in the shape of buildings, land, shares, ornaments etc. was far beyond his legal means, an investigation should be directed against him. 260     The Chief Minister’s Secretariat marked the complaint to the  Director  General of Police, who in turn  endorsed  the same  to  the  Superintendent of Police  concerned.  On  the direction from the Superintendent of Police, the SHO  regis- tered  a  case under Sections 161 and 165  of  Indian  Penal

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Code,  1860  and  under section 5(2) of  the  Prevention  of Corruption Act, 1947 and took up the investigation.     Meanwhile,  the First Respondent filed a  Writ  Petition before  the  High Court for a direction to quash  the  First Information  Report and for restraining the appellants  from proceeding  further with the investigation. The  High  Court quashed  the  entire criminal proceedings holding  that  the allegations  did  not constitute a  cognizable  offence  for commencing lawful investigation.     Aggrieved by the judgment of the High Court, the  appel- lants  preferred the present appeal by special  leave,  con- tending  that  the allegations contained in  the  complaint, either individually or collectively, constituted a  cogniza- ble offence warranting the registration of a case as contem- plated under Section 154(1) Cr. P.C., and a thorough  inves- tigation  in  compliance with various  statutory  provisions ï7 3     On  behalf of the Respondents, it was contended that  on account  of the deep rooted political animosity and  rivalry entertained  by  the then Chief Minister, he used  the  com- plainant, who was stooge in his hands, to file the complaint containing  false  and scurrilous  allegations  against  the First Respondent and hence the criminal proceedings  rightly deserved to be quashed. Disposing of the appeal, this Court,     HELD:  1.  The judgment of the High Court  quashing  the First  Information Report is set aside as not being  legally and factually sustainable in law. However, the  commencement as well as the entire investigation, if any, so far done  is quashed on the ground that the third appellant (SHO) is  not clothed with valid legal authority to take up the investiga- tion and proceed with the same within the meaning of Section 5A(1) of the Prevention of Corruption Act. [319A-C]      2.  The observations made by the High Court are  unwar- ranted  and  the historical anecdote is out of  context  and inappropriate.  If such a view is to be judicially  accepted and  approved, then it will be tantamount to laying down  an alarming proposition that an incoming 261 Government  under all circumstances, should put its seal  of approval to all the commissions and omissions of the  outgo- ing  Government  ignoring even glaring  lapses  and  serious misdeeds  and the deleterious and  destructive  consequences that may follow therefrom. [318E-F]     Krishna Ballabh Sahay & Ors. v. Commissioner of  Enquiry JUDGMENT: Anr.,  [1988] 2 SCC 602; State of Punjab v.  Gurdial  Singh, [1980] 1 SCR 1071; relied on.     P.V.  Jagannath  Rao & Ors. v. State of Orissa  &  Ors., [1968]  3 SCR 789; Sheonandan Paswan v. State of  Bihar  and Ors.,  [1983]  1 SCC 438 and Sheonandan Paswan v.  State  of Bihar & Ors., [1987] 1 SCC 288; referred to.     3.1. If any information disclosing a cognizable  offence is  laid  before an officer-in-charge of  a  police  station satisfying the requirements of Section 154(1) of the  Crimi- nal  Procedure  Code, the said police officer has  no  other option  except  to enter the substance thereof in  the  pre- scribed  form,  that is to say, to register a  case  on  the basis of such information. [279G]     3.2.  Though a police officer cannot investigate a  non- ï7 3 offence,  he can investigate a non-cognizable offence  under the  order  of a Magistrate having power to  try  such  non- cognizable  case  or commit the same for  trial  within  the terms  under Section 155(2) of the Code but subject to  Sec-

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tion 155(3) of the Code. Further, under the newly introduced Sub-section (4) to Section 155, where a case relates to  two offences to which atleast one is cognizable, the case  shall be  deemed to be a cognizable case notwithstanding that  the other offences are non-cognizable and, therefore, under such circumstances  the  police  officers  can  investigate  such offences with the same powers as he has while  investigating a cognizable offence. [279H; 280A-B]     4. The core of the Sections 156, 157 and 159 of the Code of Criminal Procedure is that if a police officer has reason to  suspect the commission of a cognizable offence, he  must either proceed with the investigation or cause an investiga- tion to be proceeded with by his subordinate; that in a case where  the  police  officer sees no  sufficient  ground  for investigation, he can dispense with the investigation  alto- gether;  that the field of investigation of  any  cognizable offence  is exclusively within the domain of the  investiga- tion agencies over which the Courts cannot have 262 control  and  have no power to stiffle or impinge  upon  the proceedings  in the investigation so long as the  investiga- tion proceeds in compliance with the provisions relating  to investigation and that it is only in a case wherein a police officer decides not to investigate an offence, the concerned Magistrate can intervene and either direct an  investigation or in the alternative, if he thinks fit, he himself can,  at once proceed or depute any Magistrate sub-ordinate to him to proceed  to hold a preliminary inquiry into or otherwise  to dispose  of  the case in the manner provided  in  the  Code. [283G-H; 284A-B]     State  of  Bihar and Anr. v. J.A.C. Saldanha  and  Ors., [1980]  1  SCC 554; S.N. Sharma v. Bipen  Kumar  Tiwari  and Ors.,  [1970] 3 SCR 946; Emperor v. Khwaja Nazir Ahmad,  AIR 1954  P.C.  18 and Abhinandan v. Dinesh, [1967] 3  SCR  668; referred to.     5.1. The expression "reason to suspect the commission of an  offence" used in Section 154(1) Cr. P.C. would mean  the sagacity of rationally inferring the commission of a cogniz- able  offence  based on the specific articulate  facts  men- tioned in the First Information Report as well in the Annex- ures, if any, enclosed and any attending circumstances which may not amount to proof. In other words, the meaning of  the expression  "reason to suspect" has to be governed and  dic- tated  by  the facts and circumstances of each case  and  at ï7 3 in the First Information Report does not arise. [286E-F]     5.2.  The  commencement  of investigation  by  a  police officer  is subject to two conditions, firstly,  the  police officer  should have reason to suspect the commission  of  a cognizable offence as required by Section 157(1) and second- ly,  the police officer should subjectively satisfy  himself as to whether there is sufficient ground for entering on  an investigation  even before he starts an  investigation  into the  facts  and circumstances of the  case  as  contemplated under  clause  (b) of the proviso to Section 157(1)  of  the Code. [288B-C]     Pakala  Narayanaswami  v.  Emperor, AIR  1939  P.C.  47; Emperor  v.  Vimlabai Deshpande, AIR 1946  P.C  123;  United States  v.  Cortez, 66 L.Ed. (United  States  Supreme  Court Reports)  page 623; Dallison v. Caffery, [1964] 2  All  E.R. 610;  State of Gujarat v. Mohanlal J. Porwal, [1987]  2  SCC 364; Pukhraj v. D.R. Kohli, [1962] Supp. 3 SCR 866; State of West Bengal & Ors. v. Swapan Kumar Guha & Ors., [1982] 3 SCR 121; referred to. 263

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   Webster’s  Third International Dictionary; Corpus  Juris Secondum,  Vol. 83 pp. 923, 927; Words and Phrases,  (Perma- nent Edition 40A) pp. 590, 591; referred to.     6.  The investigation of an offence is the field  exclu- sively reserved for the police officers whose powers in that field  are  unfettered so long as the power  to  investigate into  the cognizable offences is legitimately  exercised  in strict compliance with the provisions falling under  Chapter XII of the Code and the Courts are not justified in obliter- ating  the  track of investigation  when  the  investigating agencies  are well within their legal bounds.  A  noticeable feature of the scheme under Chapter XIV of the Code is  that a  Magistrate  is kept in the picture at all stages  of  the police  investigation but he is not authorised to  interfere with  the actual investigation or to direct the  police  how that  investigation  is  to be conducted. But  if  a  police officer transgresses the circumscribed limits and improperly and  illegally exercises his investigatory powers in  breach of any statutory provision causing serious prejudice to  the personal  liberty and also property of a citizen,  then  the Court,  on being approached by the person aggrieved for  the redress  of  any grievance has to consider  the  nature  and extent  of the breach and pass appropriate orders as may  be called  for  without leaving the citizens to  the  mercy  of police  echelons since human dignity is a dear value of  our Constitution. No one can demand absolute immunity even if he is wrong and claim unquestionable right and unlimited powers exercisable  upto  unfathomable cosmos. Any  recognition  of ï7 3 Power’ which no authority on earth can enjoy. [290D-G]     Emperor  v. Khwaja Nazir Ahmad, AIR 1945 P.C.  18;  R.P. Kapur  v.  The State of Punjab, [1960] 3  SCR  388;  Nandini Satpathy v. P.L. Dani & Anr., [1978] 2 SCC 424; S.N.  Sharma v.  Bipen  Kumar Tiwari and Ors., [1970] 3 SCR  946;  Prabhu Dayal Deorath etc. etc. v. The District Magistrate, Kamrup & Ors.,  [1974]  2 SCR 12; State of West Bengal  and  Ors.  v. Swapan Kumar Guha and Ors., [1982] 3 SCR 121; referred to.     7.1 The view of the High Court that the non-filing of  a written  statement  by a competent authority  of  the  State Government  by  way of reply to the averments  in  the  Writ Petition was serious flaw on the part of the appellants  and as such the averments of Respondent No. 1 should be held  as having  disproved  the  entire crimination  alleged  in  the F.I.R., is neither conceivable nor comprehensible. [293D] 7.2. It is true that some of the allegations do suffer  from misty 264 vagueness  and  lack of particulars. Further, there  are  no specific  averments  that  either Respondent No.  1  or  his relations and friends had no source of income to  accumulate the properties now standing in their names and that Respond- ent No. 1 showed any favour to them by misusing his official position. [294B-C]     These  are  all  matters which would  be  examined  only during  the  course of investigation and thereafter  by  the court on the material collected and placed before it by  the investigating  agencies. The question whether the  relations and friends of Respondent No. 1 have independently purchased the properties out of their own funds or not, also cannot be decided  by the Court at this stage on the denial  statement of Respondent No. 1 alone. [294C-D]     State  of West Bengal and Ors. v. Swapan Kumar Guha  and Ors., [1982] 3 SCR 121; distinguished.     State  of  Bihar and Anr. v. J.A.C. Saldanha  and  Ors., [1980] 1 SCC 554; relied on.

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   8.1.  In the exercise of the extra-ordinary power  under Article 226 or the inherent powers under Section 482 of  the Code  of  Criminal Procedure, the  following  categories  of cases  are given by way of illustration wherein  such  power could be exercised either to prevent abuse of the process of any Court or otherwise to secure the ends of justice, though it  may  not be possible to lay down  any  precise,  clearly defined  and sufficiently channelised and inflexible  guide- ï7 3 myriad  kinds  of cases wherein such power should  be  exer- cised:     (a) where the allegations made in the First  Information Report  or  the complaint, even if they are taken  at  their face value and accepted in their entirety do not prima facie constitute  any offence or make out a case against  the  ac- cused;     (b)  where  the  allegations in  the  First  Information Report and other materials, if any, accompanying the  F.I.R. do not disclose a cognizable offence, justifying an investi- gation  by police officers under Section 156(1) of the  Code except under an order of a Magistrate within the purview  of Section 155(2) of the Code;     (c) where the uncontroverted allegations made in the FIR or  ’complaint and the evidence collected in support of  the same do not disclose 265 the  commission of any offence and make out a  case  against the accused;     (d) where the allegations in the FIR do not constitute a cognizable  offence  but constitute  only  a  non-cognizable offence,  no investigation is permitted by a police  officer without  an  order  of a Magistrate  as  contemplated  under Section 155(2) of the Code;     (e)  where the allegations made in the FIR or  complaint are  so  absurd and inherently improbable on  the  basis  of which  no  prudent person can ever reach a  just  conclusion that  there is sufficient ground for proceeding against  the accused;     (f) where there is an express legal bar engrafted in any of  the provisions of the Code or the concerned  Act  (under which  a criminal proceeding is instituted) to the  institu- tion  and continuance of the proceedings and/or where  there is  a specific provision in the Code or the  concerned  Act, providing  efficacious  redress  for the  grievance  of  the aggrieved party;     (g)  where a criminal proceeding is manifestly  attended with  mala fide and/or where the proceeding  is  maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private  and personal grudge. [305D-H; 306A-E]     8.2.  In the instant case, the allegations made  in  the complaint, do clearly constitute a cognizable offence justi- ï7 3 on and this case does not call for the exercise of  extraor- dinary  or  inherent powers of the High Court to  quash  the F.I.R. itself. [307B]     State  of West Bengal v. S.N.  Basak,  [1963] 2 SCR  52; distinguished.     R.P.  Kapur  v. The State of Punjab, [1960] 3  SCR  388; S.N.  Sharma  v. Bipen Kumar Tiwari and Ors., [1970]  3  SCR 946;  Hazari  Lal Gupta v. Rameshwar Prasad and  Anr.  etc., [1972]  1  SCC  452; Jehan Singh  v.  Delhi  Administration, [1974]  3 SCR 794; Amar Nath v. State of Haryana,  [1977]  4 SCC 137; Madhu Limaye v. State of Maharashtra, [1977] 4  SCC 551; Kurukshetra University and Anr. v. State of Haryana and

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Anr.,  [1977]  4 SCC 451; State of Bihar and  Anr.  v.J.A.C. Saldanha  and Ors., [1980] 1 SCC 554; Municipal  Corporation of  Delhi v. Purshotam Dass Jhunjunwala and Ors.,  [1983]  1 SCC  9; State of West Bengal and Ors. v. Swapan  Kumar  Guha and Ors., [1982] 3 SCR 121; Smt. Nagawwa v. Veeranna  Shiva- lingappa Konjalgi 266 &  Ors., [1976] Supp. SCR 123; Pratibha Rani v. Suraj  Kumar and Anr., [1985] 2 SCC 370; Madhavrao Jiwaji Rao Scindia and Ors.  v. Sambhajirao Chandrojirao Angre and Ors.,  [1988]  1 SCC 692; State of Bihar v. Murad Ali Khan and Ors., [1988] 4 SCC 655; Talab Haji Hussain v. Madhukar Purshottam  Mondekar and Anr., [1958] SCR 1226; L.U. Jadhav v. Shankarrao  Abasa- heb Pawar, [1983] 4 SCC 231; J.P. Sharma v. Vinod  KumarJain and Ors., [1986] 3 SCC 67; State of U.P.v.V.R.K.  Srivastava and  Anr., [1989] 4 SCC 59; Emperor v. Khwaja  Nazir  Ahmad, AIR 1945 P.C. 18; referred to.     9.1. The entire matter is only at a premature stage  and the investigation has not proceeded with except some prelim- inary  effort taken on the date of the registration  of  the case.  The  evidence  has to be gathered  after  a  thorough investigation  and placed before the Court on the  basis  of which  alone the Court can come to a conclusion one  way  or the other on the plea of mala fides. If the allegations  are bereft of truth and made maliciously, the investigation will say  so. At this stage, when there are only allegations  and recriminations but no evidence, this Court cannot anticipate the result of the investigation and render a finding on  the question  of mala fides on the materials at present  avail-. able. Therefore, it cannot be said that the complaint should be thrown overboard on the mere unsubstantiated plea of mala fides.  Even  assuming  that the complainant  has  laid  the complaint only on account of his personal animosity that, by itself,  will not be a ground to discard the complaint  con- taining  serious  allegations which have to  be  tested  and weighed after the evidence is collected. [307G-H; 308A-D] ï73

   9.2.  The dominant purpose of registration of  the  case and  the intended follow up action are only  to  investigate the  allegations  and present a case before  the  Court,  if sufficient  evidence  in support of  those  allegations  are collected  but not to make a character assassination of  the person complained against. [308H; 309A]     S.  Pratap  Singh v. The State of Punjab, [1964]  4  SCR 733; State of Haryana v. Rajindra Sareen, [1972] 2 SCR  452; Express  Newspapers  Pvt. Ltd. & Ors. v. Union  of  India  & Ors.,  [1985] Supp. 3 SCR 382; P.V. Jagannath Rao & Ors.  v. State of Orissa & Ors., [1968] 3 SCR 789; The King v. Minis- ter  of Health, [1929] 1 K.B. 619; Rex v. Brighton  Corpora- tion  Ex-parte  Shoosmith, 96 L.T. 762;  Earl  Fitzwilliam’s Wentworth  Estate Co. Ltd. v. Minister of Town  and  Country Planning, [1951] 2 K.B. 284; referred to. 10.1.  A  police officer with whom an  investigation  of  an offence 267 under Section 5(1)(e) of the Prevention of Corruption Act is entrusted  should not proceed with a pre-conceived  idea  of guilt of that person indicated with such offence and subject him to any harassment and victimisation, because in case the allegations  of  illegal accumulation of wealth  are  found, during  the  course of investigation as baseless,  the  harm done not only to that person but also to the office he  held will be incalculable and inestimable. [297C-E]     10.2. In the instant case, the SP seems to have exhibit- ed some over-enthusiasm, presumably to please ’some one’ and

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had  directed the SHO to register the case  and  investigate the  same even on the very first day of the receipt  of  the complaint  from the DGP, in whose office the  complaint  was lying  for merely 9 days. This unprecedented  overenthusiasm shown by the S.P., without disclosing the reasons for making an order entrusting the investigation to the SHO who is  not a  designated  officer under Section  5A(1),  really  shocks ones’ sense of justice and fair play even though the untest- ed  allegations  made in the complaint  require  a  thorough investigation. Still, it is an inexplicable riddle as to why the  S.P. had departed from the normal rule and  hastly  or- dered  the SHO to investigate the serious  allegations,  le- velled against a former Chief Minister and a Minister in the Cabinet of the Central Government on the face of the  regis- tration  of  the case. However, this conduct of the  SP  can never serve as a ground for quashing the FIR. [298C-E]     Sirajuddin  v.  State of Madras, [1970] 3 SCR  931;  The State  of Uttar Pradesh v. Bhagwant Kishore Joshi, [1964]  3 SCR 71; relied on. ï73     11.1. A police officer not below the rank of an  Inspec- tor of Police authorised by the State Government in terms of the  First proviso can take up the investigation of  an  of- fence  referred  to  in clause (e) of Section  5(1)  of  the Prevention  of Corruption Act, only on a separate and  inde- pendent  order of a police officer not below the rank  of  a Superintendent of Police. A strict compliance of the  second proviso  is an additional legal requirement to that  of  the first  proviso for conferring a valid authority on a  police officer  not  below the rank of an Inspector  of  Police  to investigate  an offence falling under clause (e) of  Section 5(1) of the Act. This is clearly spelt out from the  expres- sion  "further  provided" occurring in the  second  proviso. Thus, investigation by the designated Police Officers is the rule  and investigation by an officer of a lower rank is  an exception. [311H; 312A-B] 11.2.  The  granting of permission under Section 5A  of  the Preven- 268 tion of Corruption Act authorising an officer of lower  rank to  conduct  the  investigation is not to be  treated  by  a Magistrate  as a mere matter of routine, but it is an  exer- cise of his judicial discretion having regard to the  policy underlying  and the order giving the permission  should,  on the  face  of  it, disclose the reasons  for  granting  such permission.  The  Superintendent  of Police  or  any  police officer  of higher rank while granting permission to a  non- designated police officer in exercise of his power under the second  provision to Section 5A(1), should  satisfy  himself that  there are good and sufficient reasons to  entrust  the investigation  with such police officer of a lower rank  and record his reasons for doing so; because the very object  of the  legislature in enacting Section 5A is to see  that  the investigation  of offences punishable under Sections  16  1, 165  or  165A of Indian Penal Code as well  as  those  under Section 5 of the Act should be done ordinarily by the  offi- cers designated in clauses (a) to (d) of Section 5A(1).  The exception  should  be for adequate reasons which  should  be disclosed  on the face of the order. Strict compliance  with Section  5A(1) becomes absolutely necessary because  it  ex- pressly prohibits police officers below certain ranks,  from investigating into offences under Sections 161, 165 and 165A IPC and under Section 5 of the Act without orders of  Magis- trates specified therein or without the authorisation of the State  Government in this behalf and from effecting  arrests for those offences without a warrant. [314H; 3 15A-D]

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   11.3.  The main object of Section 5A is to  protect  the public servant against harassment and victimisation. Section 5A of the Act is mandatory and not directory and the  inves- ï7 3 illegality but that illegality committed in the course of an investigation does not affect the competence and the  juris- diction  of the Court for trial and where the cognizance  of the case has in fact been taken and the case is proceeded to termination the validity of the proceedings with the preced- ing investigation does not vitiate the result unless miscar- riage of justice has been caused thereby. [311C; 312D-E]     11.4.  In the instant case, there is absolutely no  rea- son,  given by the S.P. in directing the SHe to  investigate and  as such the order of the S.P. is directly in  violation of the dictum laid down by this Court in several  decisions. The  third appellant, SHO is not clothed with the  requisite legal  authority within the meaning of the second  provision of Section 5A(1) of the Act to investigate the offence under clause (e) of Section 5(1) of the Act. [315E-F] H.N. Rishbud and Inder Singh v. The State of Delhi, [1955] 1 269 SCR 1150; The State of Madhya Pradesh v. Mubarak Ali, [1959] Supp. 2 SCR 201; A.C. Sharma v. Delhi Administration, [1973] 3  SCR  477; A.R. Antulay v. R.S. Nayak, [1984] 2  SCR  914; Major E.G. Barsay v. The State of Bombay, [1962] 2 SCR  195; Munna  Lal v. State of Uttar Pradesh, [1964] 3 SCR 88;  S.N. Bose v. State of Bihar, [1968] 3 SCR 563; Muni Lal v.  Delhi Administration, [1971] 2 SCC 48; Khandu Sonu Dhobi & Anr. v. State of Maharashtra, [1972] 3 SCR 510; relied on.     12. The Government order authorised the Inspector Gener- al of Police to investigate only the offences failing  under Section  5 of the Act. Therefore, the SHO who has  taken  up the  investigation of the offences inclusive of those  under Section  161  and  165 IPC is not at all  clothed  with  any authority  to  investigate these  two  offences,  registered under the IPC, apart from the offence under Section 5(2)  of the  Act.  However, as the question relating  to  the  legal authority of the SHO is raised even at the initial stage, it would  be proper and also desirable that the  investigation, if  at all to be proceeded with in the opinion of the  State Government,  should  proceed only on the basis  of  a  valid order  in strict compliance with the mandatory provision  of Section 5A(1). [315G-H; 3 16A-B]

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