http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 14  

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

PETITIONER: M.C. Mehta

RESPONDENT: Union of India & Ors.

DATE OF JUDGMENT: 27/11/2006

BENCH: S. H. Kapadia & D. K. Jain

JUDGMENT: J U D G M E N T I. A. No. 431 IN Writ Petition (Civil) No. 13381 of 1984 with  I.A. No. 451,   I.A. Nos. 438, 439, 442-443, 445 and 447  in I.A. No. 431,  I.A. No. 440 and  I.A. No. 441 in I.A. No. 440.

KAPADIA, J.         Delay condoned in I.A. No. 443 in I.A. No. 431 in W.P. (C) No.  13381/84.         A purported vertical difference of opinion in the administrative  hierarchy in CBI between the team of investigating officers and the law  officers on one hand and Director of Prosecution on the other hand on the  question as to whether there exists adequate evidence for judicial scrutiny in  the case of criminal misconduct concerning Taj Heritage Corridor Project  involving 12 accused including former Chief Minister has resulted in the  legal stalemate which warrants interpretation of Section 173(2) Cr. PC. BACKGROUND FACTS:         On 25.3.2003, the Uttar Pradesh Government started a project known  as Taj Heritage Corridor Project (hereinafter referred to as "the project") to  divert the Yamuna and to reclaim 75 acres between Agra Fort and the Taj  and use the reclaimed land for constructing food plazas, shops and  amusement activities in terms of development of Heritage Corridor for Taj  Trapezium Zone (hereinafter referred to as the "TTZ") at Agra. This led to  the filing of an I.A. No. 387 in Civil Writ Petition No. 13381/84 pending in  this Court. Vide Order dated 16.7.2003 this Court observed that, it was  painful that the concerned persons in power are trying to damage or  endanger the World Heritage by their hasty/ irregular/ illegal activities. By  the said order, this Court directed a detailed inquiry as to who cleared the  project, for what purpose it was cleared, and why it was cleared without the  sanction of the competent authority. This Court also inquired as to whether  their exists any illegality or irregularity and, if so, this Court called for the  names of the concerned officers/ persons. Accordingly by the said order, a  CBI inquiry was ordered. A report on the preliminary inquiry was called for  from CBI within four weeks.

       By Order dated 21.8.2003 in I.A. No. 376 in Writ Petition (C) No.  13381/84 this Court ordered CBI to verify from the assets of  the  officers/  persons as to whether there was any flow of funds into their accounts from  the state exchequer. This order was passed on the basis of the confidential  report submitted by CBI to this Court under which it was reported that a sum  of Rs. 17 crores were released from the state exchequer without proper  sanction of the competent authority.

       By Order dated 18.9.2003 in I.A. No. 376 in Writ Petition (C) No.  13381/84 this Court after reciting the above facts noted the contents of the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 14  

report submitted by CBI on 11.9.2003, which report recorded the following  conclusions: "15.    An amount of Rs. 17 crores was unauthorisedly  released by Shri R.K. Sharma, Secretary,  Environment, U.P. without the approval of the  departmental Minister. (Ref. Para 3.1.E.4 page 64  and para 3.1.E.31, page 81)      16.   Contrary to the provisions existing in the State  Government which require that in case of every  non-recurring expenditure of Rs. 5 crores and  above, approval of the Expenditure Finance  Committee (EFC) of the State Government is  required, no such approval was either sought or  obtained before sanctioning the amount of Rs. 17  crores (Ref. Para 3.1.E.11, page 67). 17.    An amount of Rs. 20 crores was sanctioned by Shri  Naseemuddin Siddiqui, the then Minister of  Environment, U.P. for release without approval of  DPRs and techno-feasibility reports and without  clearance of the Expenditure Finance Committee  (EFC) of the State Government and CCEA,  Government of India (Ref. Para 3.1.E.39, page 86). 18.    Shri Siddiqui subsequently tampered with the file  and made interpolations in the Government records  with an objective to cover up the fact that he had  sanctioned Rs. 20 crores on 21/05/2003. (Ref. Para  3.1.E.40 (1 and 2) page 87). 19.  Shri Siddiqui and Dr. V.K. Gupta, the present  Secretary, Environment, U.P. pressurized Shri  Rajendra, Prasad, Under Secretary, Environment  Department, U.P. who also tampered with the file  and made interpolations to cover the fact that the  Minister had sanctioned Rs. 20 crores. (Ref. Para  3.1.E.37, page 86). 20.   Shri K.C. Mishra, Secretary, Environment and  Forest Government of India tampered with the file  and made interpolations in Government records in  order to cover up his omissions of not approving  the proposals of his Joint Secretary and Special  Secretary for writing to the State Government for a  report and to ask them to carry out work only after  necessary approvals and clearances. He obscured  some portions of the notes dated 21/10/2002 and  08/05/2003 of Dr. Saroj, Additional Director,  Ministry of Environment and Forest so as to show  that he was not a part of the decision making and  had not shown his consent to the proposed project.  (Ref. Para 3.1.E.42 page 89). 21.   Central Forensic Science Laboratory has given a  report that interpolations were made in the files by  Shri Naseemuddin Siddiqui, the then Minister,  U.P., Shri Rajendra Prasad, Under Secretary, U.P.  and Shri K.C. Misra, Secretary, Environment and  Forests, Government of India (Ref. Para 3.1.G.21,  pages 106-107 and 3.1.E.44 (5-6), page 90)."         Accordingly, this Court inter alia directed CBI to register an  FIR and  make further investigation in accordance with law. By the said order, CBI  was also directed to take appropriate steps for holding investigations against  the former Chief Minister, Ms. Mayawati, and Mr. Nasimuddin Siddiqui,  former Minister for Environment, U.P.. CBI was also directed to make  investigations against other officers mentioned hereinabove. By the said  order the Income Tax department was also directed to cooperate with CBI in  further investigation. By the said order, CBI was directed to take into  consideration the provisions of the IPC, the Prevention of Corruption Act,  1988 and the Water (Prevention and Control of Pollution) Act, 1974.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 14  

       By order dated 19.7.2004 in I.A. No. 376 etc. in Writ Petition (C) No.  13381/84 this Court directed CBI to furnish a self-contained note in respect  of its findings against the officers of the State Government/ Central  Government. CBI was given eight weeks time to complete the investigation  in respect of FIR No. RC.18 and three months time was granted to complete  the investigation in respect of FIR No. RC.19.         By Order dated 25.10.2004 in I.A. No. 376 etc. in Writ Petition (C)  No. 13381/84 this Court noted that two disciplinary enquiries were required  to be instituted by the State Government against Shri Punia, former Principal  Secretary to C.M., U.P.. This was because CBI had submitted two distinct  notes. On 25.10.2004 the departmental enquiry on CBI note I stood  completed. However, learned counsel appearing for the State of U.P.  submitted that in the absence of CBI furnishing to the disciplinary authority  the statement of the former Chief Minister, the second disciplinary  proceeding could not be initiated by the State against Shri Punia. This aspect  is important. The case of Shri Punia was that he had acted under oral  instructions of the former Chief Minister. This was required to be enquired  into by the departmental enquiry, therefore, the State requested CBI to  furnish the statement of the former Chief Minister which CBI had collected  during investigation under RC.18. At that stage, time was sought by the CBI  on the ground that investigation into RC.18 was nearing completion and that  CBI was awaiting legal scrutiny of the matter. Therefore, this Court  adjourned the matter stating that the second disciplinary enquiry against Shri  Punia arising out of CBI note II stands deferred until availability of the  statement of the former Chief Minister of the State. That statement was  ordered to be given to the State Government within three weeks. It was  further ordered that, if within three weeks CBI failed to make available the  said statement then the State Government will proceed with the initiation of  disciplinary enquiry against Shri Punia on the basis of the material available.  Accordingly, this Court adjourned the matter stating that after legal scrutiny  the report shall be submitted before this Court.

       In the meantime, CBI submitted its report with detailed Annexures  running into hundreds of pages.

       By order dated 14.3.2005 in I.A. No. 431 in Writ Petition (Civil) No.  13381/84, since the report of CBI was voluminous, this Court after going  through the provisions of the Central Vigilance Commission Act, 2003  (hereinafter referred to as the "CVC Act") directed the records relating to  prosecution of twelve accused be placed before the Central Vigilance  Commission (hereinafter referred to as the "CVC") for scrutiny and  recommendation. CVC was added as a party. Basically this Court wanted  CVC to analyse the Report of CBI and give to the Court the summary of  recommendations of various officers in the administrative hierarchy of CBI  as the Court was informed that there was divergence of opinion between  them.         To complete the chronology of orders passed by this Court, we may  point out that the Director, CBI submitted his Status Report as on  31.12.2004 to this Court in which he stated as follows: "5.     As regards investigation of RC0062003A0018, it  is submitted that as there was difference of opinion  between the officers of CBI in relation to the implication  of individuals in the case, the matter was referred to the  learned Attorney General of India through the Ministry  of Law for obtaining his esteemed opinion in this case.  The learned Attorney General has since given his  considered opinion that in absence of any evidence to  suggest criminal mens rea on the part of any individual  and due to lack of evidence of any pecuniary benefit to  any of the officers or any other person, the proper course  of action would be to take disciplinary action against the  officers for their omission and misconduct. I have gone  through the report of investigation, comments of various  officers including the opinion of the Learned Attorney

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 14  

General and I am of the opinion that the evidence is not  sufficient to launch prosecution.

6.      As disciplinary action has already been initiated by  the authorities concerned on the direction of Hon’ble  Supreme Court, action will be taken by filing a closure  report under section 173 Cr. PC in the competent court  incorporating all the facts/ circumstances revealed during  the course of investigation."   CONTENTIONS: Shri Krishan Mahajan, learned amicus curiae would submit that in the  instant case, at the present stage, the question is of investigation and not of  prosecution. Under the Code of Criminal Procedure (Cr. PC), investigation  consists of :  site inspection, ascertainment of the facts and circumstances of  the case, discovery and arrest of the suspected offender, collection of  evidence relating to the commission of the offence which may consist of the  examination of various persons, the search and seizure and, lastly, formation  of opinion as to whether on the material collected there is a case to place the  accused before a Magistrate for trial, and if so, taking the necessary steps for  the same by the filing of a charge-sheet under Section 173 Cr. PC.  Learned  counsel submitted that the final step in the investigation, namely, formation  of the opinion is to be of the officer in charge of the police station. This  authority cannot be delegated although a provision entitling superior officers  to supervise or participate is there under Sections 158 and 173(3) Cr. PC.  Learned Counsel urged that the officer in charge of the police station or the  investigating officer is the sole person who has to form the opinion under  Section 173 Cr. PC and file the police report. In this connection, learned  counsel pointed out that in this case Shri D.C. Dwivedi, Deputy  Superintendent of Police, CBI, Anti Corruption Bureau, Lucknow was the  I.O.. He had filed the F.I.R. with thirteen sheets attached to it, registering a  regular case after series of preliminary reports submitted to this Court in I.A.  Nos. 376/03 and 431/05 filed by the amicus curiae. This case was assigned  to the I.O. by Shri K. N. Tiwari, Superintendent of Police, CBI, Anti  Corruption Bureau, Lucknow. According to the learned counsel, the  functions of the magistracy and the police are entirely different and though  in the circumstances of a given case the Magistrate may or may not accept  the report, he cannot infringe upon the jurisdiction of the police by  compelling the police to change its opinion. Learned counsel submits that a  field of activity reserved for the police and the executive has been expressly  carved out under the Cr. PC.

Learned counsel further submitted that, the I.O. works under the entire  CBI hierarchy; that the S.P. works under his supervisory officer of DIG rank  in terms of the CBI (Crime) Manual-2005 (hereinafter referred to as the  "Manual"). But this entire administrative structure of the CBI has to function  according to the provisions of the Cr.PC in the matter of investigation, in the  matter of filing the charge-sheet/ final report under Section 173(2) and the   superior officers of CBI cannot substitute the opinion of the S.P. if that  opinion states that a case on the material gathered during the investigation  has been made out. Similarly, if the S.P. opines on the basis of the material  collected that no case is made out, such an opinion cannot be substituted by  the higher hierarchy of the officers in CBI. In this connection, it is pointed  out that, in the present case, the FIR registered is for offences under Section  120B r/w Sections 420, 467, 468, 471 IPC as also under Section 13(2) r/w  Section 13(i)(d) of the P.C. Act, 1988. It was urged that there are no separate  provisions in the Delhi Special Police Establishment Act, 1946 or the P.C.  Act, 1988 as to the manner or the steps to be taken in the investigation of  such offences and, therefore, though the investigation is conducted by the  CBI, the provisions under Chapter XII of the Cr. PC would equally apply to  such investigation. Learned counsel submitted that the position of the entire  hierarchy of CBI in the matter of filing of police report by the S.P. and  formation of the opinion by the S.P. on the basis of the evidence collected  during the investigation is to be seen in the context of fair and impartial  investigation. He is the Officer-in-charge of the police station. Learned

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 14  

counsel, therefore, submitted that in a Supreme Court monitored  investigation the S.P. has to file his report before the Supreme Court only  and not before the entire hierarchy of CBI whose only role is to supervise   investigation. This hierarchy of CBI, according to the learned counsel,  cannot make the S.P. to change his opinion. They cannot substitute the  opinion of the S.P. with their own opinion. Learned counsel further contend  that, in a Supreme Court monitored investigation even where the report of  the S.P. is a closure report and the Director, CBI and Attorney General agree  with the opinion of the S. P., still it is the duty of the CBI to place the entire  material before the Supreme Court and it is for the Court to examine and be  satisfied that the authorities have reasonably come to such conclusion.

It was next urged that the Director of Prosecution in the CBI has no  role to play at the stage of investigation which includes formation of an  opinion by the S.P.

Shri Rao, learned senior counsel on behalf of the CVC submitted that  pursuant to the directions of the Supreme Court dated 14.3.2005 CVC had  examined the records of CBI made available to it. The CVC had also called  for further information from CBI. After vetting the entire record, CVC had  submitted its report to this Court on 9.5.2005. Learned counsel submitted  that under Section 8(1)(a) of the CVC Act, the CVC is empowered to  exercise superintendence over the functioning of CBI insofar as it relates to  the investigation of offences alleged to have been committed under the P.C.  Act, 1988 and, therefore, when the CBI investigates under the P.C. Act,  1988  against public servants serving in connection with affairs of a State  Government, such investigation is subject to the superintendence of  CVC.  This submission was made on behalf of CVC because it was argued on  behalf of some of the accused that CVC had no power of superintendence of  cases involving public servants employed in connection with affairs of the  State Government.

Learned counsel for CVC submitted that in order to fulfill the  responsibility of exercising superintendence over the functioning of CBI  insofar as it relates to investigations of offences under the P.C. Act, 1988,  the CVC is entitled to scrutinize investigation reports of the CBI at any stage  before filing of charge-sheets/ closure reports. For this purpose, CVC is  empowered to issue suitable advice in cases under investigation. Such  advice, according to the learned counsel, is in the nature of an opinion, and  not a binding direction.

On the facts of the case, learned counsel for CVC urged that, in the  present case the preliminary inquiry as well as the investigation were  conducted by the CBI against the former Chief Minister, officers of the State  Government and others under the direction of this Court. It was the Supreme  Court which had referred the matter to CVC and, therefore, the CVC was  bound to submit its report. In the circumstances, learned counsel submitted  that, it cannot be said that the report of the CVC is vitiated by any illegality  or irregularity since the Supreme Court has absolute power under Article  142 of the Constitution to pass any order as is necessary for doing complete  justice in any cause or matter pending before it.

Shri Venugopal, learned senior counsel appearing on behalf of the  former Chief Minister submitted that this Court should be loathe to interfere  in investigation since it is a field of activity reserved for the police and the  executive. He submitted that, in the present case, we are still at the stage of  investigation and unless an extraordinary case of gross abuse of power is  made out, no interference is called for under Article 32 of the Constitution.  Learned counsel further submitted that, in the present case, CVC had no role  to play, particularly since the case pertains to conduct of the officers who are  the employees of the State Government. Learned counsel submitted that  public servants serving in connection with affairs of the State Government  fell outside the powers of CVC. Learned counsel submitted that, in any  event, CVC had no power to direct the manner in which CBI will conclude  the proceedings. Learned counsel submitted that the opinion as to whether

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 14  

the case is made out for judicial scrutiny or not has to be the decision of CBI  and unless there is gross abuse of power this Court should not intervene in  the field of investigation under Article 32 of the Constitution. Learned  counsel urged that, in the present case, there is no such gross abuse of power  made out, and, therefore, this Court should not interfere under Article 32 of  the Constitution.

ISSUE:         The key issue which arises for determination in this case is: whether  on the facts and the circumstance of this case, the Director, CBI, who has not  given his own independent opinion, was right in referring the matter for  opinion to the Attorney General of India, particularly when the entire  investigation and law officers’ team was ad idem in its opinion on filing of  the charge-sheet and only on the dissenting opinion of the Director of  Prosecution, whose opinion is also based on the interpretation of the legal  evidence, which stage has not even arrived. The opinion of the Director, CBI  is based solely on the opinion of the Attorney General after the reference.

CASE LAW ON THE POWERS AND FUNCTIONS OF THE  HIERARCHY IN CBI IN SUPREME COURT MONITORED CASES:

       In the case of  H.N. Rishbud and Inder Singh  v.  The State of  Delhi  this Court held that the Code of Criminal Procedure provides not  merely for judicial enquiry into or trial of alleged offences but also for prior  investigation thereof. Section 5 of the Code shows that all offences shall be  investigated, inquired into, tried and otherwise dealt with in accordance with  the Code. When information of the commission of cognizable offence is  received, the appropriate police officer has the authority to enter on the  investigation of the same. Thus, investigation is a normal preliminary for an  accused being put up for trial for a cognizable offence. Investigation usually  starts on information relating to the commission of an offence given to an  officer in charge of a police station and recorded under Section 154 of the  Code. If from information so received or otherwise, the officer in charge of  the police station has reason to suspect the commission of an offence, he or  his subordinate has to proceed to the spot to investigate the facts and  circumstances of the case, and if necessary to take measures for the  discovery and arrest of the offender. Under Section 155 the officer in charge  of a police station has the power of making a search in any place for the  seizure of anything believed to be necessary for the purpose of investigation.  A subordinate officer may be deputed by him for that purpose.  The  investigating officer has also the power to arrest the person under Section 54  of the Code. It is important to notice that where the investigation is  conducted not by the officer in charge of the police station but by a  subordinate officer such subordinate officer has to report the result of the  investigation to the officer in charge of the police station. If, upon the  completion of the investigation it appears to the officer in charge of the  police station that there is no sufficient evidence, he may decide to release  the suspected accused. If, it appears to him that there is sufficient evidence  or reasonable ground to place the accused on trial, he has to take necessary  steps under Section 170 of the Code. In either case, on completion of the  investigation he has to submit a report to the Magistrate under Section 173  of the Code in the prescribed form. Thus, under the Code, investigation  consists of proceeding to the spot, ascertainment of the facts and  circumstances of the case, discovery  and arrest of the suspected offender,  collection of evidence and formation of the opinion as to whether on the  material collected there is a case to place the accused before a Magistrate for  trial, and if so, taking the necessary steps for the same by the filing of a  charge-sheet under Section 173. The scheme of the Code shows that while it  is permissible for an officer in charge of a police station to depute some  subordinate officer to conduct some of these steps in the investigation, the  responsibility for each one of the above steps is that of the officer in charge  of the police station (see Section 168 of the Code). This Court had  categorically stated in the above judgment that, the final step in the  investigation, namely, the formation of the opinion as to whether or not there

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 14  

is a case to place the accused on trial is to be of the officer in charge of the  police station and this function cannot be delegated. This Court  unequivocally observed that, there is no provision for delegation of the  above function regarding formation of the opinion but only a provision  entitling the superior officers to supervise or participate under Section 551  (corresponding to Section 36 of the present Code). This Court further held  that, a police report which results from an investigation as provided for in  Section 190 of the Code is the material on which cognizance is taken. But  from that it cannot be said that a valid and legal police report is the  foundation of the jurisdiction of the court to take cognizance.  

       In the case of Abhinandan Jha & Ors.   v.  Dinesh Mishra   this  Court held that when a cognizable offence is reported to the police they may  after investigation take action under Section 169 or Section 170 Cr. PC. If  the police thinks that there is no sufficient evidence against the accused, they  may, under Section 169 release the accused from custody or, if the police  thinks that there is sufficient evidence, they may, under Section 170, forward  the accused to a competent Magistrate. In either case the police has to  submit a report of the action taken, under Section 173, to the competent  Magistrate who considers it judicially under Section 190 and takes the  following action: (a)     If the report is a charge-sheet under Section 170, it is  open to the Magistrate to agree with it and take  cognizance of the offence under Section 190(1)(b); or  decline to take cognizance. But he cannot call upon  the police to submit a report that the accused need  not be proceeded against on the ground that there was  no sufficient evidence. (b)     If the report is of the action taken under Section 169,  then the Magistrate may agree with the report and  close the proceedings. If he disagrees with the report,  he can give directions to the police under Section  156(3) to make a further investigation. If the police,  after further investigation submits a charge-sheet, the  Magistrate may follow the procedure where the  charge-sheet under Section 170 is filed; but if the  police are still of the opinion that there was no  sufficient evidence against the accused, the  Magistrate may or may not agree with it. Where he  agrees, the case against the accused is closed. Where  he disagrees and forms an opinion that the facts  mentioned in the report constitute an offence, he can  take cognizance under Section 190(1)(c). But the  Magistrate cannot direct the police to submit a  charge-sheet, because the submission of the report  depends entirely upon the opinion formed by the  police and not on the opinion of the Magistrate. If the  Magistrate disagrees with the report of the police he  can take cognizance of the offence under Section  190(1)(a) or (c), but, he cannot compel the police to  form a particular opinion on investigation and submit  a report according to such opinion.

This judgment shows the importance of the opinion to be formed by the  officer in charge of the police station. The opinion of the officer in charge of  the police station is the basis of the report. Even a competent Magistrate  cannot compel the concerned police officer to form a particular opinion. The  formation of the opinion of the police on the material collected during the  investigation as to whether judicial scrutiny is warranted or not is entirely  left to the officer in charge of the police station. There is no provision in the  Code empowering a Magistrate to compel the police to form a particular  opinion. This Court observed that, although the Magistrate may have certain  supervisory powers under the Code, it cannot be said that when the police  submits a report that no case has been made out for sending the accused for  trial, it is open to the Magistrate to direct the police to file a charge-sheet.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 14  

The formation of the said opinion, by the officer in charge of the police  station, has been held to be a final step in the investigation, and that final  step has to be taken only by the officer in charge of the police station and by  no other authority.

       In the case of Union of India and Ors. v.  Sushil Kumar Modi and  Ors.  investigation was entrusted to CBI in the fodder scam case by the  High Court to ensure proper and honest performance of duty by CBI. This  Court directed CBI officers to inform the Chief Justice of the Patna High  Court about the progress of the investigation and to obtain his directions if  so required for conducting the investigation. The Joint Director of CBI  submitted his report on the investigation carried out by him to the Chief  Justice of the High Court. The High Court found that the Director was trying  to interfere with the investigation and, therefore, the High Court directed that  all reports of the CBI officers shall be submitted directly to the court without  being forwarded to the Director, CBI. This order of the High Court was  challenged. It was held that the Director, CBI was responsible and  accountable for the proper investigation of the case and, therefore, he cannot  be excluded from the investigation. It was, however, observed that the  Director, CBI was duty-bound to make a fair, honest and complete  investigation and officers associated with the investigation have to function  as members of a cohesive team engaged in common pursuit of such an  investigation so as to uphold the majesty of the law and preserve the rule of  law. It was held that, in case of any difference of opinion between officers of  CBI in respect of the investigation, final decision would not be taken by the  Director himself or by the Director merely on the opinion of Legal  Department of the CBI, but the matter would be decided according to the  opinion of the Attorney General of India for the purpose of investigation and  filing of the charge-sheet against any such individual. In that event, the  opinion would be sought from the Attorney General after making available  to him of the opinions expressed on the subject by the persons associated  with the investigation as a part of the materials. We quote hereinbelow paras  13 and 14 of the said judgment: "13. We make it clear that in case of any difference of  opinion between the officers of the CBI in relation to the  implication of any individual in the crimes or any other  matter relating to the investigation, the final decision in  the matter would not be taken by the Director, CBI,  himself or by him merely on the opinion of the Legal  Department of the CBI; and in such a situation, the  matter would be determined according to the opinion of  the Attorney General of India for the purpose of the  investigation and filing of the charge-sheet against any  such individual. In that event, the opinion would be  sought from the Attorney General after making available  to him all the opinions expressed on the subject by the  persons associated with the investigation as a part of the  materials.

14.  It appears necessary to add that the Court, in this  proceeding, is concerned with ensuring proper and honest  performance of its duty by the CBI and not the merits of  the accusations being investigated, which are to be  determined at the trial on the filing of the charge-sheet in  the competent court, according to the ordinary procedure  prescribed by law. Care must, therefore, be taken by the  High Court to avoid making any observation which may  be construed as the expression of its opinion on merits  relating to the accusation against any individual. Any  such observation made on the merits of the accusation so  far by the High Court, including those in Para 8 of the  impugned order are not to be treated as final, or having  the approval of this Court. Such observations should not,  in any manner influence the decision on merits at the trial  on the filing of the charge-sheet. The directions given by

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 14  

this Court in its aforesaid order dated 19.3.1996 have to  be understood in this manner by all concerned, including  the High Court."

       This position was clarified in the case of Union of India and Ors.  v.   Sushil Kumar Modi and Ors. . It was observed that the nature of the PIL  proceedings before the Patna High Court in the fodder scam case was  somewhat similar to the proceedings in Vineet Narain’s  case. It was  observed by this Court that, the performance of the PIL proceedings is  essentially to ensure performance of statutory duty by the CBI. The duty of  the court in such proceedings is to ensure that CBI and other government  agencies do their duty in conformity with law. According to the Code, the  formation of the opinion as to whether or not there is a case to place the  accused for trial is that of the police officer making the investigation and the  final step in the investigation is to be taken only by the police and by no  other authority. It was observed that, in order to ensure compliance of this  aspect of the Code, the directions were issued from time to time to CBI that  in case of difference of opinion at any stage during the investigation, the  final decision shall be of the Attorney General on reference being made to  him on the difference of opinion between the officers concerned. This Court  further observed in that case that the High Court was only required to ensure  that the Director, CBI did not close any investigation based only upon his  individual opinion, if there be any difference of opinion between the  Director, CBI and the other officers concerned in the CBI.

       In Vineet Narain and Ors.  v.  Union of India and Anr.  certain  measures by way of checks and balances were recommended by this Court  to insulate CBI from extraneous influence of any kind. It was observed that,  unless a proper investigation is made followed by a proper prosecution the  rule of law will lose significance. Accordingly, directions were issued till  such time as the legislature steps in by way of proper legislation. One of the  points which arose for determination in that case was the significance of the  word "superintendence" in Section 4 of the Delhi Special Police  Establishment Act, 1946. It was held that the overall superintendence of   CBI vests in the Central Government and, therefore, by virtue of Section 3  of that Act the power vested in the Central Government to specify the  offences or classes of offences which are to be investigated by CBI. But  once that jurisdiction is attracted by virtue of the notification under            Section 3, the actual investigation is to be governed by the statutory  provisions under the general law applicable to such investigation and the  power of the investigator cannot be curtailed by the executive instructions  issued under Section 4 by the Central Government. The general  superintendence over the functioning of the Directorate/ department and  specification of the offences to be investigated by CBI is not the same thing,  therefore, the Central Government is precluded from controlling the  initiation and the actual process of investigation. It was held that, the word  "superintendence" in Section 4(1) cannot be construed in a wider sense to  permit supervision of the actual investigation of an offence by CBI.  Therefore, the Central Government was precluded from issuing any  direction to CBI to curtail or inhibit its jurisdiction to investigate an offence  specified in the notification issued under Section 3 by a directive under  Section 4(1) of the Delhi Special Police Establishment Act, 1946. The  constitution of the CVC flowed from the judgment of this Court in Vineet  Narain6 (supra). It is in this judgment that a direction was given to the  Central Government by this Court for granting statutory status to the CVC.  

       In the case of Union of India  v.    Prakash P. Hinduja and anr.   this Court has held that the provision contained in Chapter XII Cr.PC shows  that detailed and elaborate provisions have been made for securing an  investigation into an offence of which information has been given. The  manner and the method of conducting the investigation are left entirely to  the officer in charge of the police station. A Magistrate has no power to  interfere with the same. The formation of the opinion whether there is  sufficient evidence or reasonable ground of suspicion to justify the  forwarding of the case to a Magistrate or not, as contemplated by Sections

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 14  

169 and 170, is to be that of the officer in charge of the police station and a  Magistrate has absolutely no role to play at this stage. Similarly, after  completion of the investigation while making a report to the Magistrate  under Section 173, the requisite details have to be submitted by the officer in  charge of the police station without any kind of interference or direction of a  Magistrate and this will include an opinion regarding the fact whether any  offence appears to have been committed and, if so, by whom, as provided by  clause (d) of sub-section (2)(i) of Section 173 Cr. PC. These provisions are  applicable even in cases under the P.C. Act, 1988 vide Section 22 thereof.  The Magistrate is not bound to accept the final report submitted by the  police and if he feels that the evidence and the material collected during the  investigation justify prosecution of the accused, he may not accept that  report and take cognizance of the offence and summon the accused, which  would not constitute interference with the investigation as such. In the said  judgment, it was further observed, relying upon the judgment in Vineet  Narain6 (supra), that once the jurisdiction is conferred on CBI to investigate  an offence by virtue of notification under Section 3 of the Act, the powers of  investigation are governed by the statutory provisions and they cannot be  curtained by any executive instruction issued under Section 4(1) of the Delhi  Special Police Establishment Act, 1946.

       Analyses of the above judgments show that there is a clear-cut and  well-demarcated sphere of activities in the field of crime detection and crime  punishment. Investigation of an offence is the field reserved for the  executive through the police department, the superintendence over which  vests in the State Government. The executive is charged with a duty to keep  vigilance over law and order situation. It is obliged to prevent crime. If an  offence is committed allegedly, it is the State’s duty to investigate into the  offence and bring the offender to book. Once it investigates through the  police department and finds an offence having been committed, it is its duty  to collect evidence for the purposes of proving the offence. Once that is  completed, the investigating officer submits report to the court requesting  the court to take cognizance of the offence under Section 190 Cr.PC and his  duty comes to an end. Therefore, there is a well-defined and well- demarcated functions in the field of crime detection and its subsequent  adjudication by the court. Lastly, the term "investigation" under Section  173(2) of the Cr.PC includes opinion of the officer in charge of the police  station as to whether there is sufficient evidence or reasonable ground of  suspicion to justify the forwarding of the case to the concerned court or not.  This opinion is not legal evidence. At the stage of Section 173(2) the  question of interpretation of legal evidence does not arise. In any event, that  function is that of the courts.

CASE LAW ON THE ROLE OF OFFICER IN CHARGE OF THE  POLICE STATION:

       In the case of K. Veeraswami  v.  Union of India and Ors.  this  Court observed vide para 76 as follows: "76. The charge sheet is nothing but a final report of  police officer under Section 173(2) of the CrPC The  Section 173(2) provides that on completion of the  investigation the police officer investigating into a  cognizable offence shall submit a report. The report must  be in the form prescribed by the State Government and  stating therein (a) the names of the parties; (b) the nature  of the information; (c) the names of the persons who  appear to be acquainted with the circumstances of the  case; (d) whether any offence appears to have been  committed and, if so, by whom (e) whether the accused  has been arrested; (f) whether he had been released on his  bond and, if so, whether with or without sureties; and (g)  whether he has been forwarded in custody under Section  170. As observed by this Court in Satya Narain Musadi

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 14  

and Ors. v. State of Bihar (1980) 3 SCC 152; that the  statutory requirement of the report under Section 173(2)  would be complied with if the various details prescribed  therein are included in the report. This report is an  intimation to the magistrate that upon investigation into a  cognizable offence the investigating officer has been able  to procure sufficient evidence for the court to inquire into  the offence and the necessary information is being sent to  the court. In fact, the report under Section 173(2)  purports to be an opinion of the investigating officer that  as far as he is concerned he has been able to procure  sufficient material for the trial of the accused by the  court. The report is complete if it is accompanied with all  the documents and statements of witnesses as required by  Section 175(5). Nothing more need be stated in the report  of the Investigating Officer. It is also not necessary that  all the details of the offence must be stated. The details of  the offence are required to be proved to bring home the  guilt to the accused at a later stage i.e. in the course of the  trial of the case by adducing acceptable evidence."                                                             (emphasis supplied)

       In the case of Kaptan Singh and Ors.   v.  State of M.P. and Anr.   this Court held vide para 5 as follows: "5. From a conspectus of the above decisions it follows  that the revisional power of the High Court while sitting  in judgment over an order of acquittal should not be  exercised unless there exists a manifest illegality in the  judgment or order of acquittal or there is grave  miscarriage of justice. Read in the context of the above  principle of law we have no hesitation in concluding that  the judgment of the trial court in the instant case is  patently wrong and it has caused grave miscarriage of  justice. The High Court was therefore fully justified in  setting aside the order of acquittal. From the judgment of  the trial court we find that one of the grounds that largely  weighed with it for acquitting the appellants was that an  Inspector of CID who had taken up the investigation of  the case and was examined by the defence (DW 3)  testified that during his investigation he found that the  story as made out by the prosecution was not true and on  the contrary the plea of the accused (appellants) that in  the night of the incident a dacoity with murder took place  in the house of Baijnath by unknown criminals and the  appellants were implicated falsely was true. It is trite that  result of investigation can never be legal evidence; and  this Court in Vijender  v. State of Delhi (1997)6 SCC 171  made the following comments while dealing with this  issue:          ’The reliance of the trial Judge on the result  of investigation to base his findings is again  patently wrong. If the observation of the trial  Judge in this regard is taken to its logical  conclusion it would mean that a finding of  guilt can be recorded against an accused  without a trial, relying solely upon the police  report submitted under Section 173 CrPC,  which is the outcome of an investigation.  The result of investigation under Chapter  XII of the Criminal Procedure Code is a  conclusion that an Investigating Officer  draws on the basis of materials collected  during investigation and such conclusion  can only form the basis of a competent court

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 12 of 14  

to take cognizance thereupon under Section  190(1)(b) CrPC and to proceed with the case  for trial, where the materials collected  during investigation are to be translated into  legal evidence. The trial court is then  required to base its conclusion solely on the  evidence adduced during the trial; and it  cannot rely on the investigation or the result  thereof. Since this is an elementary principle  of criminal law, we need not dilate on this  point any further’."        (emphasis supplied)

In the case of R. Sarala   v.  T.S. Velu and Ors.  the facts were as  follows. A young bride committed suicide within seven months of her  marriage. An inquiry under Section 174(3) Cr.PC was held. The Magistrate  conducted the inquiry and submitted a report holding that due to mental  restlessness she had committed suicide and no one was responsible. He  further opined that her death was not due to dowry demand. However, the  police continued with the investigation and submitted a challan against the  husband of the deceased and his mother for the offence under             Sections 304 B and 498 A IPC. The father of the deceased was not satisfied  with the challan as the sister-in-law and the father-in-law were not arraigned  as accused. Therefore, the deceased’s father moved the High Court under  Section 482 Cr.PC. A Single Judge of the High Court directed that the  papers be placed before the Public Prosecutor. He was asked to give an  opinion on the matter and, thereafter, the court directed that an amended  charge-sheet should be filed in the concerned court. This court held as  follows: "In this case the High Court has committed an illegality  in directing the final report to be taken back and to file a  fresh report incorporating the opinion of the Public  Prosecutor. Such an order cannot stand legal scrutiny.  The formation of the opinion, whether or not there is a  case to place the accused on trial, should be that of the  officer in charge of the police station and none else.  There is no stage during which the investigating officer is  legally obliged to take the opinion of a Public Prosecutor  or any authority, except the superior police officer in the  rank as envisaged in Section 36 of the Code. A Public  Prosecutor is appointed, as indicated in Section 24 CrPC,  for conducting any prosecution, appeal or other  proceedings in the court.  He has also the power to  withdraw any case from the prosecution with the consent  of the court. He is the officer of the court. Thus the  Public Prosecutor is to deal with a different field in the  administration of justice and he is not involved in  investigation.  It is not the scheme of the Code for  supporting or sponsoring any combined operation  between the investigating officer and the Public  Prosecutor for filing the report in the court."                                                  (emphasis supplied)

APPLICATION OF THE ABOVE CASE LAW TO THE FACTS OF  THIS CASE:

       At the outset, we may state that this Court has repeatedly emphasized  in the above judgments that in Supreme Court monitored cases this Court is  concerned with ensuring proper and honest performance of its duty by CBI  and that this Court is not concerned with the merits of the accusations in  investigation, which are to be determined at the trial on the filing of the  charge-sheet in the competent court, according to the ordinary procedure  prescribed by law. Therefore, the question which we have to decide in the  present case is whether the administrative hierarchy of officers in the CBI, in

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 13 of 14  

the present case, have performed their duties in a proper and honest manner.

       As stated above, the formation of the opinion, whether or not there is  a case to place the accused on trial, should be that of the officer in charge of  the police station and none else. Under the CBI Manual, the officer in charge  of the police station is the S.P.. In this connection, we quote hereinbelow the  CBI Manual, which though not binding on this Court in Supreme Court  monitored cases, nonetheless, the said Manual throws light on the  controversy in hand. We quote clauses 6.1 and 19.15 of the CBI (Crime)  Manual-2005 hereinbelow: "DIRECTOR, CBI\027Matters to be shown to DCBI

6.1     Director, CBI should be informed of all important  matters and his advice or instructions obtained wherever  this is considered necessary by Special Director,  Additional Director, Joint Directors, DIsG, Director of  Prosecution, Director, CFSL and other Senior Officers.  In particular, the following matters should be referred to  him."

"19.15  SP’s Report is a very important document and  should be  prepared personally by the SP in the  prescribed format. The concerned Departments/  Government Undertakings assess the CBI investigation  of their cases solely on the basis of the SP’s Reports. The  report should be grammatically correct, clear and  unambiguous. The report should be brief without  repetitions and should contain all necessary data. The  internal differences of opinion among CBI Officers  should not find mention in the SP’s Report, which should  advance all arguments to justify the final order passed by  the Competent Authority in the CBI. The final  recommendation should be precise. If sanction is  required, the relevant Section (including sub-section) of  law under which sanction is required should be  mentioned with brief grounds. In some of the cases,  charge sheets cannot be filed and only complaints by  certain statutory authorities can be filed in the Court. In  such cases, the relevant section prescribing the filing of a  complaint should be mentioned in the SP’s Report. It  should be borne in mind by the SP that the efficiency and  the quality of work done by the CBI would be viewed  mainly on the basis of the SP’s Report and, therefore, no  effort should be spared to make it factually correct,  systematic, cogent and logical."         (emphasis supplied)

       In the present case, the investigating team consisted of the I.O., S.P.,  D.I.G., Joint Director and Additional Director CBI. In the present case, the  law officers consisted of D.L.A. and A.L.A.. In the present case, the entire  investigating team as well as the said law officers are ad idem in their mind.  They have recommended prosecution. It is only the Director of Prosecution  and the Sr. P.P. who have opined that a closure report should be filed. It may  be noted that Sr. P.P. does not find place in clause 6.1 which refers to the  administrative hierarchy of CBI. Further, the Director of Prosecution is the  only officer who had dissented from the opinion of the investigating team  including the S.P.. It appears that this opinion is also based only on  interpretation of legal evidence. Moreover, as can be seen from the Status  Report dated 31.12.2004, the Director, CBI has not given his independent  opinion. He has merely relied upon the opinion of the Attorney General. We  can understand the Director, CBI expressing an opinion and then referring  the matter to the Attorney General. Under the above circumstances, we are  of the view that, there was no difference of opinion in the matter of  investigation between the concerned officers of CBI and, therefore, there  was no question of the Director, CBI referring the matter to the Attorney

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 14 of 14  

General of India. As stated by this Court in the case of R. Sarla10 (supra),   the formation of opinion, whether or not there is a case to place the accused  on trial has to be of the officer in charge of the police station. One fails to  understand why an opinion of Sr. P.P. had been taken in the present case. He  is not a member of the hierarchy. The S.P. is not legally obliged to take his  opinion. In the circumstances, when there was no difference of opinion in  the concerned team, the question of seeking opinion of the Attorney General  did not arise. Lastly, even under clause 19.15 of the CBI Manual it is  expressly stated that the report of the S.P. should be prepared personally by  the S.P. and that the internal differences of opinion among CBI Officers  should not find place in the SP’s Report. As stated above, CBI was required  to follow the procedure in Cr.PC. The result of the investigation by the  police is not legal evidence. Keeping in mind the scheme of Sections 168,  169, 170 and 173 of the Cr.PC, in the facts and circumstances of this case,  we direct the entire material collected by CBI along with the report of the  S.P. to be placed before the concerned court/ Special Judge in terms of  Section 173(2) Cr.PC. The decision to accept or reject the report of the S.P.  shall be that of the concerned court/ Special Judge, who will decide the  matter in accordance with law.

       Before concluding two points need clarification. Under Article 142 of  the Constitution, this Court is empowered to take aid and assistance of any  Authority for doing complete justice in any cause or matter pending before  it. In the present case, at one stage of the matter, voluminous records were  placed by CBI before this Court along with the recommendations of its  officers. To vet and analyse the material, this Court essentially directed   CVC to study the material, analyse the findings and give its  recommendations as to the manner in which the investigations have been  carried out. Since CVC has fairly stated before this Court that its advice is  only in the nature of an opinion which is not a binding direction in this case,  we are not required to examine the scope of the CVC Act, 2003. Secondly,  in our earlier order, we have given time to CBI to complete legal scrutiny  when we were told that there was difference of opinion in the administrative  hierarchy of CBI. However, after going through the recommendations of the  above officers, we are of the view, as stated above, that there was no  difference of opinion of the concerned officers and, therefore, there was no  question of reference to the Attorney General. We reject the Status Report  dated 31.12.2004 as it is a charade of the performance of duty by the CBI.  Thus, a case for judicial review is made out.

We, accordingly, direct the CBI to place the evidence/ material  collected by the investigating team along with the report of the S.P. as  required under Section 173(2) Cr.PC before the concerned court/ Special  Judge who will decide the matter in accordance with law. It is necessary to  add that, in this case, we were concerned with ensuring proper and honest  performance of duty by the CBI and our above observations and reasons are  confined only to that aspect of the case and they should not be understood as  our opinion on the merits of accusation being investigated. We do not wish  to express any opinion on the recommendations of the S.P.. It is made clear  that none of the other opinions/ recommendations including that of the  Attorney General of India, CVC shall be forwarded to the concerned court/  Special Judge.  

       In the matters after matters, we find that the efficacy and ethics of the  governmental authorities are progressively coming under challenge before  this Court by way of PIL for failure to perform their statutory duties. If this  continues, a day might come when the rule of law will stand reduced to       "a rope of sand".

The above Interlocutory applications are accordingly disposed of.