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CASE NO.: Appeal (crl.)  36 of 2002

PETITIONER: Central Bureau of Investigation                          

RESPONDENT: Shri Ravi Shankar Srivastava, IAS and Anr.       

DATE OF JUDGMENT: 10/08/2006

BENCH: ARIJIT PASAYAT & ALTAMAS KABIR

JUDGMENT: J U D G M E N T

ARIJIT PASAYAT, J.

                Central Bureau of Investigation (in short ’CBI’) questions  legality of the judgment rendered by a learned Single Judge of  the Rajasthan High Court, Jaipur Bench.  Respondent No.1, a  member of Indian Administrative Service filed a petition under  Section 482 of the Code of Criminal Procedure, 1973 (in short  ’the Code’) for quashing the FIR registered by the appellant  alleging commission of offences punishable under Sections  120B, 167, 168, 177A of the Indian Penal Code, 1860 (in short  ’IPC’) and Sections 13(2) and 13(1) of the Prevention of  Corruption Act, 1988 (in short ’PC Act’). The only ground on  which the respondent no.1 prayed for quashing the FIR is that  the CBI had no jurisdiction to register the FIR under the Delhi  Special Police Establishment Act, 1946 (in short the ’Act’). FIR  was registered by Shri Rajiv Sharma, Superintendent of Police,  Jaipur at the Police Station, CBI on the information received  through some sources as in regard to certain advertisements  involving criminal conspiracy resulting in the commission of  offences noted above.   

       Respondent no.1 filed the petition before the High Court  questioning legality of the proceedings.           With reference to Sections 3, 5 and 6 of the Act, the  respondent no.1 took the stand that the CBI had no  jurisdiction to register the case.  In substance the stands were:  (a) consent necessary by the concerned State for operation of  the Act had been withdrawn as is evident from the letter dated  26.6.1999 of the Special Officer (Home), Secretary,  Department in response to the letter dated 21.11.1989 written  by the Government of India, Department of Personnel and  Training, New Delhi. (b) consent of the State Government  which was given in 1956 was extended in 1989 after the PC  Act was promulgated but subsequently the State Government  had not considered it appropriate to accord consent to extend  some provisions of the Act to the whole of the State of  Rajasthan, (c) though the consent had been given by the State  of Rajasthan in 1956 and extended in 1989, same did not  relate to any particular officer to act in terms of the Act and,  therefore, the FIR as lodged had no validity in the eye of law.  The High Court accepted the stands. It held that the consent  was earlier given in 1956 and extended in 1989 after the Act

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was enacted. The same became inoperative after the State  Government refused to accord consent for extending the same  provisions of the Act to the whole of Rajasthan. It was also  held that for the authorized officers to function under the Act  it was necessary that the officers were required to be  individually notified and a general notification would not  suffice.   

       In support of the appeal, learned counsel for the  appellant submitted that the High Court has committed patent  errors in law. First, prayer of the respondent no.1 could not  have been adjudicated in a petition instituted under Section  482 of the Code. Secondly, the High Court has lost sight of the  fact that the notification issued under Section 5 of the Act had  not been rescinded or revoked at any point of time. Further an  inter departmental communication has been treated as a  notification to hold that the State Government had not  extended the notification. The authority of the person who  wrote that letter has not been established. In any event, the  same cannot be treated to be one covered under Article 166 of  the Constitution of India, 1950 (in short ’the Constitution’).   Thirdly, there was no specific order required in respect of each  officer as has been held in various decision of this Court.   

       In response, learned counsel for the respondent no.1  submitted that when the proceeding itself was void ab initio  the High Court was justified in quashing the FIR. Further,  there is no material on record to show that the consent which  was given in 1956 and extended in 1989 was intended to be  continued.

       The rival contentions need careful consideration. Exercise of power under Section 482 of the Code in a  case of this nature is the exception and not the rule. The  Section does not confer any new powers on the High Court. It  only saves the inherent power which the Court possessed  before the enactment of the Code. It envisages three  circumstances under which the inherent jurisdiction may be  exercised, namely, (i) to give effect to an order under the Code,  (ii) to prevent abuse of the process of court, and (iii) to  otherwise secure the ends of justice. It is neither possible nor  desirable to lay down any inflexible rule which would govern  the exercise of inherent jurisdiction. No legislative enactment  dealing with procedure can provide for all cases that may  possibly arise. Courts, therefore, have inherent powers apart  from express provisions of law which are necessary for proper  discharge of functions and duties imposed upon them by law.  That is the doctrine which finds expression in the section  which merely recognizes and preserves inherent powers of the  High Courts. All courts, whether civil or criminal possess, in  the absence of any express provision, as inherent in their  constitution, all such powers as are necessary to do the right  and to undo a wrong in course of administration of justice on  the principle "quando lex aliquid alicui concedit, concedere  videtur et id sine quo res ipsae esse non potest" (when the law  gives a person anything it gives him that without which it  cannot exist). While exercising powers under the section, the  court does not function as a court of appeal or revision.  Inherent jurisdiction under the section though wide has to be  exercised sparingly, carefully and with caution and only when  such exercise is justified by the tests specifically laid down in  the section itself. It is to be exercised ex debito justitiae to do  real and substantial justice for the administration of which  alone courts exist. Authority of the court exists for  advancement of justice and if any attempt is made to abuse

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that authority so as to produce injustice, the court has power  to prevent abuse. It would be an abuse of process of the court  to allow any action which would result in injustice and prevent  promotion of justice. In exercise of the powers court would be  justified to quash any proceeding if it finds that  initiation/continuance of it amounts to abuse of the process of  court or quashing of these proceedings would otherwise serve  the ends of justice. When no offence is disclosed by the  complaint, the court may examine the question of fact. When a  complaint is sought to be quashed, it is permissible to look  into the materials to assess what the complainant has alleged  and whether any offence is made out even if the allegations are  accepted in toto.  In R. P. Kapur v. State of Punjab (AIR 1960 SC 866) this  Court summarized some categories of cases where inherent  power can and should be exercised to quash the proceedings.  (i) where it manifestly appears that there is a  legal bar against the institution or continuance  e.g. want of sanction;  (ii) where the allegations in the first  information report or complaint taken at its  face value and accepted in their entirety do not  constitute the offence alleged;  (iii) where the allegations constitute an offence,  but there is no legal evidence adduced or the  evidence adduced clearly or manifestly fails to  prove the charge.

In dealing with the last case, it is important to bear in  mind the distinction between a case where there is no legal  evidence or where there is evidence which is clearly  inconsistent with the accusations made, and a case where  there is legal evidence which, on appreciation, may or may not  support the accusations. When exercising jurisdiction under  Section 482 of the Code, the High Court would not ordinarily  embark upon an enquiry whether the evidence in question is  reliable or not or whether on a reasonable appreciation of it  accusation would not be sustained. That is the function of the  trial Judge. Judicial process should not be an instrument of  oppression, or, needless harassment. Court should be  circumspect and judicious in exercising discretion and should  take all relevant facts and circumstances into consideration  before issuing process, lest it would be an instrument in the  hands of a private complainant to unleash vendetta to harass  any person needlessly. At the same time the section is not an  instrument handed over to an accused to short-circuit a  prosecution and bring about its sudden death. The scope of  exercise of power under Section 482 of the Code and the  categories of cases where the High Court may exercise its  power under it relating to cognizable offences to prevent abuse  of process of any court or otherwise to secure the ends of  justice were set out in some detail by this Court in State of  Haryana v. Bhajan Lal (1992 Supp (1) 335).  A note of caution  was, however, added that the power should be exercised  sparingly and that too in rarest of rare cases. The illustrative  categories indicated by this Court are as follows:  "(1) 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  accused.  (2) Where the allegations in the first  information report and other materials, if any,  accompanying the FIR do not disclose a

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cognizable offence, justifying an investigation  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.  (3) Where the uncontroverted allegations made  in the FIR or complaint and the evidence  collected in support of the same do not  disclose the commission of any offence and  make out a case against the accused.  (4) 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.  (5) 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.  (6) Where there is an express legal bar  engrafted in any of the provisions of the Code  or the Act concerned (under which a criminal  proceeding is instituted) to the institution and  continuance of the proceedings and/or where  there is a specific provision in the Code or Act  concerned, providing efficacious redress for the  grievance of the aggrieved party.  (7) 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."  

As noted above, the powers possessed by the High Court  under Section 482 of the Code are very wide and the very  plenitude of the power requires great caution in its exercise.  Court must be careful to see that its decision in exercise of  this power is based on sound principles. The inherent power  should not be exercised to stifle a legitimate prosecution. The  High Court being the highest court of a State should normally  refrain from giving a prima facie decision in a case where the  entire facts are incomplete and hazy, more so when the  evidence has not been collected and produced before the Court  and the issues involved, whether factual or legal, are of  magnitude and cannot be seen in their true perspective  without sufficient material. Of course, no hard-and-fast rule  can be laid down in regard to cases in which the High Court  will exercise its extraordinary jurisdiction of quashing the  proceeding at any stage. (See: Janata Dal v. H. S. Chowdhary  (1992 (4) SCC 305), and Raghubir Saran (Dr.) v. State of Bihar  (AIR 1964 SC 1).  It would not be proper for the High Court to  analyse the case of the complainant in the light of all  probabilities in order to determine whether a conviction would  be sustainable and on such premises arrive at a conclusion  that the proceedings are to be quashed. It would be erroneous  to assess the material before it and conclude that the  complaint cannot be proceeded with. In a proceeding  instituted on complaint, exercise of the inherent powers to  quash the proceedings is called for only in a case where the  complaint does not disclose any offence or is frivolous,  vexatious or oppressive. If the allegations set out in the

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complaint do not constitute the offence of which cognizance  has been taken by the Magistrate, it is open to the High Court  to quash the same in exercise of the inherent powers under  Section 482 of the Code. It is not, however, necessary that  there should be meticulous analysis of the case before the trial  to find out whether the case would end in conviction or  acquittal. The complaint has to be read as a whole. If it  appears that on consideration of the allegations in the light of  the statement made on oath of the complainant that the  ingredients of the offence or offences are disclosed and there is  no material to show that the complaint is mala fide, frivolous  or vexatious, in that event there would be no justification for  interference by the High Court. When an information is lodged  at the police station and an offence is registered, then the  mala fides of the informant would be of secondary importance.  It is the material collected during the investigation and  evidence led in court which decides the fate of the accused  person. The allegations of mala fides against the informant are  of no consequence and cannot by themselves be the basis for  quashing the proceedings. (See: Dhanalakshmi v. R. Prasanna  Kumar (1990 Supp SCC 686), State of Bihar v. P. P. Sharma  (AIR 1996 SC 309), Rupan Deol Bajaj v. Kanwar Pal Singh Gill  (1995 (6) SCC 194), State of Kerala v. O. C. Kuttan (AIR 1999  SC 1044), State of U.P. v. O. P. Sharma (1996 (7) SCC 705),  Rashmi Kumar v. Mahesh Kumar Bhada (1997 (2) SCC 397),  Satvinder Kaur v. State (Govt. of NCT of Delhi) (AIR 1996 SC  2983), Rajesh Bajaj v. State NCT of Delhi (1999 (3) SCC 259)  and     in State of Karnataka v. M. Devendrappa and Another  (2002 (3) SCC 89).         Coming to the question as to whether specific order in  respect of each of the officer, the position is no longer res  integra. In Central Burea of Investigation v. State of Rajasthan  and Ors. (1996 (9) SCC 735) it was held as follows: "21. On a careful consideration of the facts  and circumstances of the case and  submissions made by the learned Counsel for  the parties, it appears to us that under Section  3 of DSPE Act, the Central Government may,  by notification, specify the offences which are  to be investigated by the members of DSPE. It  is not disputed that notification under Section  3 of DSPE Act has been issued by the Central  Government specifying the offences under  FERA to be investigated by the members of  DSPE. It is also not in dispute that a  notification dated October 26, 1977 by the  Government of India, Ministry of Home Affairs,  Department of Personnel and Administrative  Reforms, has been issued in exercise of the  powers conferred by Sub-section (1) of Section  5 read with Section 6 of DSPE Act. By the said  notification the Central Government, with  consent of the various State Governments as  mentioned in the said notification including  the State Government of Rajasthan, has  extended the powers and jurisdiction of the  members of DSPE, inter alia, to the State of  Rajasthan for the investigation of the offences  specified in the Schedule to the said  notification. In the schedule under Clause (a),  offences punishable under the FERA and  under Clause (b) attempts, abatements and  conspiracies in relation to or in connection  with any offence mentioned in Clause (a) and  any other offence committed in the course of

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the same transaction arising out of the same  facts have been mentioned. 22. It is, however, to be noted that under  Section 2 of DSPE Act, the Central  Government has been empowered to constitute  a special police force to be called the DSPE for  the investigation in any Union Territory of  offences notified under Section 3. Under  Section 5(1) of DSPE Act the Central  Government may by order extend to any area  including Railway areas in a State, not being  Union Territory, the powers and jurisdiction of  the members of the DSPE for the investigation  of any of the offences or classes of offences  specified in a notification under Section 3,  Under Section 5(2), when by an order under  Sub-section (1), the powers and jurisdiction of  the members of the said police establishment  are extended to any such area, a member  thereof may, subject to any order which the  Central Government may make in this behalf,  discharge the functions of a police officer in  that area and shall, while so discharging such  functions, be deemed to be a member of a  police Force of that area and be vested with the  powers, functions and privileges and be  subject to the liabilities of a police officer  belonging to that police force. 23. It is quite evident that members of DSPE  are members of special police force constituted  under Section 2 of DSPE Act by the Central  Government. The question that arises for  decision in this case is whether or not a  member of DSPE, which is also a member of  special police force constituted by the Central  Government, even if authorised under Section  3 and Section 5 of DSPE Act to investigate in  respect of offences under FERA in a particular  state other than the Union Territory, with the  consent of such State Government, can  investigate the offences for violation of FERA,  more so, when the offence is alleged to have  been committed outside indian Territory. It will  be apposite at this stage to refer to the  provisions of Sections 3, 4 and 5 of FERA: "Section 3: Classes of Officers of  Enforcement - There shall be the following classes of  officers of Enforcement, namely: (a) Directors of Enforcement: (b) Additional Directors of Enforcement; (c) Deputy Directors of Enforcement; (d) Assistant Directors of Enforcement; (e) Such other class of officers of  Enforcement as may be appointed for the  purposes of this Act. Section 4 - Appointment and powers of  officers of enforcement: (1) The Central Government may appoint  such persons as it thinks fit to be officers  of enforcement. (2) Without prejudice to the provisions of  Sub-section (1), the Central Government  may authorise a Director of Enforcement  or an Additional Director of Enforcement

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or a Deputy Director of Enforcement or  an Assistant Director of Enforcement to  appoint officers of Enforcement below the  rank of an Assistant Director of  Enforcement. (3) Subject to such conditions and  limitations as the Central Government  may impose, an officer of Enforcement  may exercise the powers and discharged  the duties conferred or imposed on him  under this Act. Section 5 - Entrustment of functions of  Director or other officer of Enforcement: The Central Government may, by order  and subject to such conditions and  limitations as it thinks fit to impose,  authorise any officer of customs or any  Central Excise Officer or any police officer  or any other officer of the Central  Government or a State Government to  exercise such of the powers and  discharge such of the duties of the  Director of Enforcement or any other  officer of Enforcement under this Act as  may be specified in the order. 27. In our view, such notifications under  Sections 3 and 5 of DSPE Act are necessary for  the purpose of exercising powers by a member  of DSPE in respect of offence or offences and in  respect of areas outside the Union Territory. It  may however be noted here that by a general  notification, members of DSPE may be  authorised to exercise power of investigation in  respect of offence or offences and in areas as  specified in the notification under Sections 3  and 5. As already indicated, although officers  of Enforcement Directorate are clothed with  the powers and duties to enforce  implementation of the provisions of FERA, the  Central Government has been authorised to  impose on other officers including a police  officer, power and authority to discharge such  of the duties and functions as may be specified  by it. It is nobody’s case that any notification  has been issued under FERA authorising the  member of DSPE to discharge the duties and  functions of an officer of Enforcement  Directorate. In our view, in the absence of  such notification under FERA, a member of  DSPE, despite the aforesaid notifications  under Sections 3 and 5 of DSPE Act, cannot be  held to be an officer under FERA and therefore  is not competent to investigate into the  offences under FERA."

       Nearly four decades back the position was succinctly  stated by this Court in Major E.G. Barsay v. State of Bombay  (AIR 1961 SC 1762) at para 29 as follows:

"It was contended before the High Court and it  was repeated before us that the consent  should have been given to every individual  member of the Special Police Establishment  and that a general consent would not be good  consent. We do not see any force in this

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argument. Under s. 6 of the Delhi Special  Police Establishment Act, no member of the  said Establishment can exercise powers and  jurisdiction in any area in a State without the  consent of the Government of that State. That  section does not lay down that every member  of the said Establishment should be  specifically authorized to exercise jurisdiction  in that area, though the State Government can  do so. When a State Government can authorize  a single officer to exercise the said jurisdiction,  we do not see any legal objection why it could  not authorize the entire force operating in that  area belonging to that Establishment to make  such investigation. The authorization filed in  this case sufficiently complies with the  provisions of s. 6 of the Delhi Special Police  Establishment Act, 1946, and there are no  merits in this contention."

       Coming to the pivotal stand of respondent no.1, as has  been rightly submitted by leaned counsel for the appellant,  there is no notification revoking the earlier notification.  The  letter on which great emphasis has been laid by the  respondent no.1 and highlighted by the High Court, the  authority to write the letter has not been indicated.  It has also  not been established that the person was authorized to take a  decision. In any event, the same does not meet requirements  of Article 166 of the Constitution. The letter is not even  conceptually a notification. High Court was, therefore, not  justified in holding that there was a notification rescinding  earlier notification.   

       The High Court was not justified in quashing the  proceedings instituted on the basis of the FIR lodged. The  impugned judgment of the High Court is set aside.  The appeal  is allowed.