Crime Investigation and Court Directives in India

 

Crime Investigation and Court Directives in India

1.0 Investigation of cases by Police Officer-in-Charge

Any Police Officer-in-Charge may, without the order of a Magistrate, investigate any cognizable case which a Court having jurisdiction over the local area within the limits of cognizable case which a Court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of the Criminal Procedure Code, 1973. A Magistrate of Court of Law is empowered under Sec 190 Cr. P.C to order such investigation, and the word ‘investigation’ has been defined in Sec 2 (h) of The Criminal Procedure Code, 1973, and it includes all the proceedings under the Code for collection of the evidence conducted by a Police officer or by any person other than a Magistrate who is authorized by a Magistrate in this behalf. An investigation officer or agency cannot refrain from conducting investigation on ground that it had no territorial jurisdiction to investigate offence, when directed by a Magistrate , as reported in Rasiklal v. State of Gujarat AIR 2010 SC 715.Hence , when a complaint was lodged or referred to Police, and the First Information Report (FIR) was sent to Court, in the course of the Investigation and interrogation of the accused, if it was revealed commission of the several offences, on the basis of such information itself, the investigating officer shall proceed with the investigation ,and if necessary, to take measures for the discovery and arrest of the offenders and file charge sheet where a prima facie case has been made out.

2.0 Final Report or Challan or Charge-Sheet

The Criminal Procedure Code, 1973, Sec173 (2) refers to the Final Report ( Challan) or Charge- Sheet of Police Officer on completion of Investigation.

The Report forwarded by the Investigation Officer is either a Final Report ( Challan), where no case has been made out or is a Charge-Sheet where a prima facie case has been made out. In Sec 173(2) (e), Criminal Procedural Code (Cr.P C) the only requirement is to furnish information to the Court concerned by the officer –in-charge of the Police station whether the accused had been arrested or not. It does not mean that it is necessary to arrest the accused before submission of charge-sheet in every case. Arrest of the accused is justified or necessary only if a prima facie case is made out, according to the Supreme Court in Lalji Yadav V. State of UP, 1998 Cri. L J 2366.

3.0 Alternatives before Magistrate in a Final Report by Police Officer.

Wherever a Final Report is forwarded by investigating Police in a case, u/s 173(2) (i) of Cr. P. C, and is placed before to a Magistrate, several situations may arise. The Report may conclude that an offence appears to have been committed by a particular person and persons, and in such a case Magistrate may either:-

1) accept Report and take cognizance of offence and issue process,

2) may disagree with the report and drop the proceeding or to take cognizance on the basis of report / material submitted by the Investigation Officer,

3) may direct further investigation under Sec 156(3) and require Police to make report as per Sec 173(8)-(AIR 1968 SC 117 ; AIR 1980 SC 1883 / AIR 1955 SC 196).

4) may treat the Protest Complaint as a complaint , and proceed u/s 200 & 202 of Cr. P.C.

On completion of Investigation, Statement of Final Report u/s 173 (2) (ii) of Cr. P. C is mandatorily to be given to the complainant, and the Magistrate must give notice to the informant and provide him an opportunity to be heard at the time of consideration of the report ( R. Rathinasabapathy V. State , 2004 Cri. L J 2735 (Mad).

4.0 Further Investigation Order U/s 173(8) Cr. P.C

Magistrate may direct further investigation under Sec 156(3) and require Police to make report as per Sec 173(8) where a Final Report is placed before him under Sec 173 (2) (AIR 1968 SC 117; AIR 1980 SC 1883 / AIR 1955 SC 196) .Also, further investigation is not altogether ruled out merely because cognizance has been taken by the Court. When defective investigation comes into light during course of trial, it may be cured by further investigation if circumstances so permitted. It would be ordinarily be desirable that Police should inform the Court and seek formal permission to make further investigation when fresh facts come to light instead of being silent over the matter keeping in view only the need for an early trial. The right of Police , even after submission of a report u/s (173(2) Cr. P.C , is not exhausted , and the Police can exercise such right as often as necessary when fresh information comes into light( Ram Lal Narang V. State of Delhi AIR 1979 SC 1791; Hasanbai Valibhai Quresi V. State of Gujarat , AIR 2004 SC 2078; Satish Tandurang Jagtap V. Statae of Maharastra 1995 Cr. LJ 1509 AT 1510 Bom).

5.0 Powers of Revision U/s 397 Cr. P. C

The High Court or Sessions Court may call for and examine the records of any proceedings before any inferior criminal courts under the Powers of Revision. However, an application can be moved only to one Court, and no further application by same person shall be entertained by the other of them. In ( Rajathi V. C. Ganesan , 1999, 6 SCC 326 ; A.I.R 1999 SC 2374) , where First revision was dismissed by the Sessions Court, and second revision by High Court in exercise of inherent powers under Sec 482 which powers are not a substitute for a second revision under sec 397(3) and Supreme Court held that High Court wrongly exercised its jurisdiction under Sec 482 Cr P C.

In Sabir V. Jaswant , 2002 Cr. L. J 4563 All , the Allahabad High Court held that the revision against the order of Magistrate under Sec 156(3) directing the Police to interfere the case and investigate is maintainable. Therefore, Sessions Judge committed no illegality in admitting the revision and staying the operation of the Order.

6.0 To proceed against a person who is not charge-sheeted- Sec. 319 of Criminal Procedural Code.

The discretion of the trail court to proceed against the person who is not an accused at the trail if it appears from the circumstances of the case, that such person, other than the accused, is involved in the crime is quintessence of Sec 319 Cr. P.C (Girish Yadav & Others, appellants, V. State of MP, respondent, AIR 1996 SC 3098). Thus, the trail court in India is vested with ample powers to proceed against an accused any time during the trail, if a person is not charge-sheeted by the investigating Police Officer. In Ranjit Singh V. State of Punjab, 1998 (7) SCC 149, it was envisaged that the evidence tendered during trail of the case if the offence is to be tried by a Court of Session, and it was held :- Material placed before committal Court cannot be treated as evidence. Sessions Court, however, is competent to issue process against a person who is not charge-sheeted U/s 319 after the trail is begun and recorded some evidence of the prosecution (Tek Narayn Prasad Yadav V. State of Bihar 1999 SCC (Cri) 356). Even if the trail is completed, fresh trail of the newly added person is mandatory, as held in (Shashikant V. Tarkehwar Singh 2002 Cr. L J 2806 / A I R 2002 SC 2031 / (2002) 5 SCC 738).

7.0 Re-investigation of the Case.

After the order for further investigation, then for the second time the Magistrate cannot compel the police to take a particular view in the matter and submit the challan in the case. if the Magistrate does not agree with the opinion formed by the Police and still suspects that an offence has been committed, he is entitled, notwithstanding the opinion of the Police, to take cognizance under Sec 190 (1) (c) of the Cr. P.C, but he cannot direct the Police to re-investigate the matter for the third time ( Harinder Pal Singh v. State of Punjab, 2004 Cri. L J 2648 P&H).

The case for re-investigation is altogether a subject matter and discretion of the concerned High Court or Supreme Court under Article 226 and Article 32 of the constitution ,respectively or under 482 of Cr.P.C ; or may be considered by the Supreme Court of India , the ultimate appellate forum. In Kashmiri Devi v. Delhi ( Admn) AIR 1988 SC 1323, the case for re-investigation was considered. In this case the Act of Police in shielding the guilty members of Delhi Police was apparent and with that design the investigating agency had committed a different story neglecting the eye-witness account. In Pannalal v. Veer Bhan 1992 Jab L J 327, the discretion for a re-investigation was denied, since the facts and stage of the case was entirely different, and held that for re-investigation of the case unless some fresh facts have come to light or an additional evidence has been discovered or there exit compelling fresh grounds, the Court would be slow in directing re-investigation.

8.0 Inherent Powers of High Court U/s 482 of Cr. P. C

The provision u/s 482 Criminal Procedure Code states that nothing in Cr. P.C shall be deemed to limit or affect the Inherent Powers of High Court to make such orders as necessary to effect of any order under Cr. P.C to prevent the abuse of the process of any of the Court or otherwise to secure the ends of justice. Thus the High Court U/s 482 Cr. P.C is having ample powers to order for fresh investigation or re-investigation (State of Punjab V. Central Bureau of Investigation & Others (2011) 11 SCR 281).

Limitation for further investigation u/s 173 (8) of Cr .P.C, for further investigation by Sub-Ordinate Courts , where charge sheet has filed will not apply to the powers u/s 482 Cr.P.C by the High Court ( State of West Bengal & Others V. Committee for Protection of Democratic Rights, West Bengal & Others ( 2010) SC 2 SC 571).

In Vishnu Dutt V. Govind Das ( 1995) Cr. L. J 263 ( Raj) , it was clarified that , where a Magistrate refused to accept Final Report submitted by the Police and took cognizance of the offences against the accused, it was held that order taking cognizance was an interim order and could not be quashed u/s 482 Cr. P. C.

In R.S.Khemka V. State of Bihar A. I. R 1993 SCW 2427/ 1993 (3) SCC 54/ Cr. L J 2888, prosecution of Managing Director and Directors by C B I u/s 409 IPC, and the High Court quashed the prosecution on the ground that alternative remedy under the Companies Act was available. The Supreme Court, however, set aside High Court order directing the trail court to proceed with the case according to Law. It was observed that the accused could not use the corporate personality of the company as a shield to evade the prosecution under the IPC, and further cautioned that the High Court should not, while exercising power u/s 482 of the Code, usurp the jurisdiction of the trail court.

In Suresh Prasad Yadav V. S. K Batwa 1992 Cr. L J 3192 (All), there was dispute about the outstanding amount between a financier and purchaser of truck, the matter was essentially of civil nature and a criminal case u/s 403 / 422 IPC was a blatant abuse of the process of the Court, and criminal proceedings were quashed by Allahabad High Court.

In Abubacker Kunju V. R. Thulasidas (1995) Cr. L. J 1664 ( Ker) , it was held that no appeal against order u/s 482 Cr. P.C can be preferred since the inherent powers of the High Court envisaged is supervisory in nature in respect of proceedings pending in the courts subordinate to it or before itself.

In State of Haryana v. Bhajan Lal(1992 Supp (1) 335) , Supreme Court has given certain guiding principles 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 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."

In M/s Zandu Pharmaceuticla Works Ltd V. Md. Sharaful Haque , AIR 2005 SC 9, the complainant was an employee against a company, wherein parallel Labour Court / Civil cases were pending, and Supreme Court held that the proceedings were with malicious / ulterior motives , and complainant did not approached with clean hands, and thereby exercise of powers under Sec 482 is justifiable.

Similarly, Supreme Court in State of Karnataka v. L. Muniswamy & Others (1977) 2 SCC 699 observed that the wholesome power under section 482 Cr.P.C. entitles the High Court to quash a proceeding when it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of the court or that the ends of justice require that the proceeding ought to be quashed. The High Courts have been invested with inherent powers, both in civil and criminal matters, to achieve a salutary public purpose. A court proceeding ought not to be permitted to degenerate into a weapon of harassment or persecution. The court observed in this case that ends of justice are higher than the ends of mere law though justice must be administered according to laws made by the legislature. This case has been followed in a large number of subsequent cases of this court and other courts.

In Chandrapal Singh & Others v. Maharaj Singh & Another (1982) 1 SCC 466, in a landlord and tenant matter, where criminal proceedings had been initiated, the Supreme Court observed in para 1 at page 467 as under: - “A frustrated landlord after having met his waterloo in the hierarchy of civil courts, has further enmeshed the tenant in a frivolous criminal prosecution which prima facie appears to be an abuse of the process of law. The facts when stated are so telling that the further discussion may appear to be superfluous”.

The court noticed that the tendency of perjury is very much on the increase. Unless the courts come down heavily upon such persons, the whole judicial process would come to ridicule. The court also observed that chagrined and frustrated litigants should not be permitted to give vent to their frustration by cheaply invoking jurisdiction of the criminal court.

The Supreme Court in Madhavrao Jiwajirao Scindia & Others v. Sambhajirao Chandrojirao Angre & Others (1988) 1 SCC 692 observed in as under:

“The legal position is well settled that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the court is as to whether the uncontroverted allegations as made prima facie establish the offence. It is also for the court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. This is so on the basis that the court cannot be utilized for any oblique purpose and where in the opinion of the court chances of an ultimate conviction is bleak and, therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue, the court may while taking into consideration the special facts of a case also quash the proceeding even though it may be at a preliminary stage”.

In Indian Oil Corporation v. NEPC India Ltd. & Others (2006) 6 SCC 736, theSupreme Court again cautioned about a growing tendency in business circles to convert purely civil disputes into criminal cases. The court noticed the prevalent impression that civil law remedies are time consuming and do not adequately protects the interests of lenders/creditors. The court further observed that any effort to settle civil disputes and claims, which do not involve any criminal offence, by applying pressure through criminal prosecution, should be deprecated and discouraged.

In Inder Mohan Goswami V. State of Uttaranchal, A I R 2008 SC 46, The Supreme Court held that the impugned judgment of the High Court in declining to exercise its inherent power has led to grave miscarriage of justice. This case of dispute about cancellation of agreement to sell property is civil dispute, and criminal prosecution was used as an instrument of harassment. Consequently, the Supreme Court set aside the impugned judgment in order to prevent abuse of the process of the court and to otherwise secure the ends of the justice directed that all the proceedings emanating from the FIR shall stand quashed.

In Ashok Chaturvedi V. Shitul H Chachani ( A I R 1998 SC 2796), a complaint of cheating U/s 406 , 420 , 468, 120-B IPC by company officials , including Managing Directors was made out. Appellants approached the concerned High Court, but the same rejected since it was not appropriate to quash the order of cognizance u/s 482 of Cr. P.C. The Honorable Supreme Court, in S L P, held that:-

“…. the question yet remains for consideration is whether the allegations made in the petition of complaint together with statements made by the complaint and the witness before the Magistrate taken on their face value, do make the offence for which the Magistrate has taken cognizance of? The learned counsel for the respondent in this connection had urged that the accused had a right to put this argument at the time of framing of charges, and therefore, this Court should not interfere with the order of Magistrate taking cognizance, at this stage. This argument, however, does not appeal to us inasmuch as merely because an accused has a right to plead at the time of framing of charges that there is no sufficient material for such framing of charges as provided in Section 245 of the Criminal Procedure Code he is debarred from approaching the court even at an earliest point of time when the Magistrate takes cognizance of the offence and summons the accused to appear to contend that the very issuance of the order of taking cognizance is invalid on the ground that no offence can be said to have been made out on the allegations made in the complaint petition. It has been held in a number of cases that power under Section 482 has to be exercised sparingly and in the interest of justice. But allowing the criminal proceeding to continue even where the allegations in the complaint petition do not make out any offence would be tantamount to an abuse of the process of court, and therefore, there cannot be any dispute that in such case power under Section 482 of the Code can be exercised. Bearing in mind the parameters laid down by this Court in several decisions for exercise of power under Section 482 of the Code, we have examined the allegations made in the complaint petition and the statement of the complainant and the two other witnesses made on oath before the Magistrate. We are clearly of the opinion that the necessary ingredients of any of the offence have not been made out so far as the appellants are concerned. The petition of complaint is a vague one and excepting the bald allegation that the shares of the complainant have been transferred on the forged signatures, nothing further has been started and there is not an iota of material to indicate how all or any of these appellants are involved in the so-called allegation of forgery. The statement of the complainant on oath as well as his witnesses do not improve the position in any manner, and therefore, in our considered opinion even if the allegations made in the complaint petition and the statement of complaint and his witnesses are taken on their face value, the offence under Sections 406, 420, 467, 468 and 120-B of the Indian Penal Code cannot be said to have been made out. This being the position the impugned order of the Magistrate taking cognizance of the offence dated 5.2.1996 so far as it relates the appellants are concerned cannot be sustained and the High Court also committed error in not invoking its power under Section 482 of the Code. In the aforesaid premises, the impugned order of the High Court as well as the order of the Magistrate dated 5.2.96 taking cognizance of the offence as against the appellants stand quashed. It is true that out of 9 officials of the company who are the accused persons in the criminal case only 7 of them have preferred this special leave petition and R.K. Sharma, Whole Time Director, s well as Capt. G.P.S. Choudhary, Director of the company have not preferred the special leave petition. But in view of our conclusion, allegations in the complaint petition do not make out any offence against any of the officers of the company it would be futile to allow continuance of the criminal proceedings so far as the said two officers of the company are concerned.”

The Supreme Court not only quashed the cognizance taken by Magistrate of the offences as against appellants, but also, against the said two officers of the Company.

In State of W. Bengal & another V. Moh. Khalid & Others (1995 AIR 785 / 1995 SCC 91( 684) regarding the exercise of inherent jurisdiction in quashing under Section 482 of the Code it was held that in the following three cases it can be done:-

(i) When there is a legal bar to prosecution.

(ii) The FIR and the complaint do not make out the offence.

(iii) When there is no legal evidence.

The High Court can interfere during investigation:-

(i) not under the inherent powers but under the Constitution of India;

(ii) after cognizance before charges are framed.

This can be done both under the inherent powers and Article 226 of the Constitution of India:-

(a) on account of the existence of legal bar or where there is no material for issuing process or action;

(b) there is not enough/no legal evidence;

(c) after charges are framed when there is legal evidence to sustain the charges.

A Bench consisting of Justices Markandey Katju and R.M. Lodha, quoting various judgments, pointed out that Article 136 of the Indian Constitution was never meant to be an ordinary forum of appeal at all. “It has become a practice of filing SLPs against all kinds of orders of the High Court or other authorities without realising the scope of Article 136.”

However, there are cases like Center for PIL & Others V. Union of India & Others (CA No. 10660 / 2010), wherein the Writ Petition filed by the appellants before the Delhi High Court for ordering an investigation by the CBI / Special Investigation Team into-what was termed as ‘ 2G Spectrum Scam’ for unearthing the role of respondent No. 5 Shri A. Raja , then Union Minister and others was dismissed by the Delhi High Court. The appellants challenged the order under Article 136 , and SC granted SLP and issued following direction:-

“ CBI shall conduct through investigation into various issues highlighted in report of the Central Vigilance Commission, which was forwarded to the Director ,CBI…………….CBI should also probe how licenses were granted to large number of ineligible applicants and who was responsible for the same . Why TRAI and DOT did not take action……”

In Rameshchandra Nandlal Parikh V. Satae of Gujarat and Anr. ( AIR 2006 sc 915 / Cr. LJ 964), Supreme Court had considered the its extraordinary power under Article 136 of the Indian Constitution, wherein which, the Gujarat High Court declined to exercise its power under Sec 482 Cr.P.C . Considering the nature of allegations involved and the facts and circumstances of the case, Supreme Court was also of the view of the Gujarat High Court.

In State of Bihar v. Murad Ali Khan, 1988 (4) SCC 655 at pages 662-663: (AIR 1989 SC 1) (at p. 5), Supreme Court held:

"It is trite that jurisdiction under S. 482, Cr. P. C., which saves the inherent power of the High Court, to make such orders as may be necessary to prevent abuse of the process of any Court or otherwise to secure the ends of justice, has to be exercised sparingly and with circumspection. In exercising that jurisdiction the High Court should not embark upon an enquiry whether the allegations in the complaint are likely to be established by evidence or not. That is the function of the trial Magistrate when the evidence comes before him. Though it is neither possible nor advisable to lay down any inflexible rules to regulate that jurisdiction, one thing, however, appears clear and it is that when the High Court is called upon to exercise this jurisdiction to quash a proceeding at the stage of the Magistrate taking cognizance of an offence the High Court is guided by the allegations, whether those allegations, set out in the complaint or the charge-sheet, do not in law constitute or spell out any offence and that resort to criminal proceedings would, in the circumstances, amount to an abuse of the process of the Court or not”.

In Municipal Corporation of Delhi v. R. K. Rohtagi, 1983 (1) SCC 1 at page 6: (AIR 1983 SC 67) (at p. 70), Supreme Court reiterated:

"It is, therefore; manifestly clear that proceedings against an accused in the initial stages can be quashed only if on the face of the complaint or the papers accompanying the same, no offence is constituted. In other words, the test is that taking the allegations and the complaint as they are, without adding or subtracting anything, if no offence is made out then the High Court will be justified in quashing the proceedings in exercise of its powers under Sec. 482 of the present Code”.

Thus, only in cases where the High Court finds that there has been failure of justice or misuse of Judicial mechanism or procedure, sentence or order was not correct, the High Court, in its discretion, prevent the abuse of the process or miscarriage of justice by exercise of jurisdiction under Sec 482 (Rajinder Prasad V. Bashir & Ors., J T 2001 97) SC 652).

9.0 Powers of High Courts and Supreme Court of India.

Though there are fundamental differences as to “further investigation’ and “re-investigation”, it may be noted that, in a given situation, a Superior Court, High Court or Supreme Court, can exercise the constitutional powers under section 226 and 32 respectively of the Constitution of India, and could direct a “State” to get an offence investigated and / or further investigated by a different agency Mithabhai Pashbahi Patel V. State of Gujarat ( 2009 6 SCC 332).

In Vineet Narain & Others V. Union of India (1988) 1 SCC 266, Supreme Court entertained the petition filed under Art. 32 of the Constitution; and ordered investigation by CBI into what came to be known as ‘Hawala Case’. A brief narration of the facts of this case is; on 25th March, 1991, one Ashfak Hussain Lone, alleged to be an official of the terrorist organisation Hizbul Mujahideen, was arrested in Delhi. Consequent upon his interrogation, raids were conducted by the Central Bureau of Investigation (CBI) on the premises of Surrender Kumar Jain, his brothers, relations and businesses. Along with Indian and foreign currency, the CBI seized two diaries and two note books from the premises. They contained detailed accounts of vast payments made to persons identified only by initials. The initials corresponded to the initials of various high ranking politicians, in power and out of power, and of high ranking bureaucrats. Nothing having been done in the matter of investigating the Jains or the contents of their diaries, the present writ petitions were filed on 4th October, 1993, in the public interest under Article 32 of the Constitution of the India. The gist of the allegations in the writ petitions is that Government agencies like the CBI and the revenue authorities had failed to perform their duties and legal obligations inasmuch as they had failed to investigate matters arising out of the seizure of the "Jan diaries"; that the apprehension of terrorists had led to the discovery of financial support to them by clandestine and illegal means using tainted funds obtained through `havala' transactions; that this had also disclosed a nexus between politicians, bureaucrats and criminals, who were recipients of money from unlawful sources, given for unlawful consideration that the CBI and other Government agencies had failed to investigate the matter, take it to its logical conclusion and prosecute all persons who were found to have committed and offence; that this was done with a view to protect the persons involved, who were very influential and powerful; that the matter disclosed a nexus between crime and corruption at high places in public life and it posed a serious threat to the integrity, security and economy of the nation; that probity in public life, the rule of law and the preservation of democracy required that the Government agencies the compelled to duly perform their legal obligations and to proceed in accordance with law against every person involved, irrespective of where he was placed in the political hierarchy. The writ petitions prayed, inter alia, for the following reliefs:

The first class relates to investigations in the matter of the 'Jain diaries". The second class relates to the manner in which investigations of offences of a similar nature that may occur hereafter should be conducted. Procedure adopted.

The Supreme Court held “We have taken the view that, given the political personalities of the propel to be investigated in the "Jain diaries" case and the time already lost in commencing the investigation it was advantageous not to hear the matter through and issue a writ of mandamus, leaving it to the authorities to comply with it, but to keep the matter pending while the investigations were being carried on, ensuring that this was done by monitoring them from time to time and issuing orders in this behalf. Our reasoned orders are dated. 18.4.1995, 16.1.1996 [1996 (2) Scale (SP) 42], 30.1.1996 [1996 (2) SCC 199], 22.2.1996 [1996 (2) Scale (SP) 84], 1.3.1996 [1997 (4) SCC 778], 13.3.1996 [1996 (4) Scale (SP) 3], 1.5.1996 [1996 (4) Scale (SP) 56], 26.7.1996 (6) Scale (SP) 24], 9.7.1997 [1997 (5) Scale 254]. Orders in similar matters, being the orders dated 12.2.1996 [1996 (3) Scale (SP) 35], 2.14.1996, 26.4.1996 [1996 (4) Scale (SP) 71], 26.7.1996 [1996 (6) Scale (SP) 23] and 7.10.1996 [1996 (6) SCC 354] in Writ Petition (Civil) No. 640 of 1995 - Anukul Chandra Pradhan vs. Union of India and Others- and orders dated 24.2.1997 and 18.3.1997 in Writ Petition (Civil) No. 38 of 1997 - Dr. Subramaniam Swamy vs. Director, CBI & Ors., are also relevant”.

The sum and substance of these orders is that the CBI and other Governmental agencies had not carried out their public duty to investigate the offences disclosed; that none stands above the law so that an alleged offence by him is not required to be investigated; that we would monitor the investigations, in the sense that we would do what we permissibly could to see that the sense that we would do what we permissibly could to see that the investigations progressed while yet ensuring that we did not direct or channel those investigations or in any other manner prejudice the right of those who might be accused to a full and fair trial. We made it clear that the task of the monitoring court would and the moment a charge-sheet was filed in respect of a particular investigation and that the ordinary processes of the law would then take over. Having regard to the direction in which the investigations were leading, we found it necessary to direct the CBI not to report the progress of the investigations to the person occupying the highest office in the political executive this was done to eliminate any impression of bias or lack of fairness or objectivity and to maintain the credibility of the investigations. In short, the procedure adopted was of "continuing mandamus".

Thus Supreme Court directed:-

1. The Central Vigilance Commission (CVC) shall be given statutory status.

2. Selection for the post of Central Vigilance Commissioner shall be made by a Committee comprising the Prime Minister, Home Minister and the Leader of the Opposition from a panel of outstanding civil servants and others with impeccable integrity to be furnished by the Cabinet Secretary. The appointment shall be made by the President on the basis of the recommendations made by the Committee. This shall be done immediately.

3. The CVC shall be responsible for the efficient functioning of the CBI. While Government shall remain answerable for the CBI's functioning, to introduce visible objectivity in the mechanism to be established for over viewing the CBI's working, the CVC shall be entrusted with the responsibility of superintendence over the CBI's functioning. The CBI shall report to the CVC about cases taken up by it for investigation; progress of investigations; cases in which charge sheets are filed and their progress. The CVC shall review the progress of all cases moved by the CBI for sanction of prosecution of public servants which are pending with competent authorities, especially those in which sanction has been delayed or refused.

4. The Central Government shall take all measures necessary to ensure that the CBI functions effectively and efficiently and is viewed as a non-partisan agency.

5. The CVC shall have a separate section in its Annual Report on the CBI's functioning after the supervisory function is transferred to it.

6. Recommendations for appointment of the Director, CBI shall be made by a Committee headed by the Central Vigilance Commissioner with the Home Secretary and Secretary (Personnel) as members. The views of the incumbent Director shall be considered by the Committee for making the best choice. The Committee shall draw up a panel of IPS officers on the basis of their seniority, integrity, experience in investigation and anti - corruption work. The final selection shall be made by Appointments Committee of the Cabinet (ACC) from the panel recommended by the Selection Committee. If none among the panel is found suitable, the reasons the reasons thereof shall be recorded and the Committee asked to draw up a fresh panel.

7. The Director, CBI shall have a minimum tenure of two years, regardless of the date of his superannuation. This would ensure that an officer suitable in all respects is not ignored merely because he has less than two years to superannuate from the date of his appointment.

8. The transfer of an in cumber Director, CBI in an extraordinary situation, including the need for him to take up a more important assignment, should have the approval of the Selection Committee.

9. The Director, CBI shall have full freedom for allocation of work within the agency as also for constituting teams for investigations. Any change made by the Director, CBI in the Head of an investigative team should be for cogent reasons and for improvement in investigation, the reasons being recorded.

10. Selection/extension of tenure of officers up to the level of Joint Director (JD) shall be decided by a Board comprising the central Vigilance Commissioner, Home Secretary and Secretary (Personnel) with the Director, CBI providing the necessary inputs. The extension of tenure or premature repatriation of officers up to the level of Joint Director shall be with final approval of the Board. Only cases pertaining to the appointment or extension of tenure of officers of the rank of Joint Director or above shall be referred to the Appointments Committee of the Cabinet (ACC) for decision.

11. Proposals for improvement of infrastructure, methods of investigation, etc. should be decided urgently. In order to strengthen CBI's in-house expertise, professionals from the revenue, banking and security sectors should be inducted into the CBI.

12. The CBI Manual based on statutory provisions of the Cr. P.C. provides essential guidelines for the CBI's functioning. It is imperative that the CBI adheres scrupulously to the provisions in the Manual in relation to its investigative functions, like raids, seizure and arrests. Any deviation from the established procedure should be viewed seriously and severe disciplinary action taken against the concerned officials.

13. The Director, CBI shall be responsible for ensuring the filing of charge sheets in courts within the stipulated time limits, and the matter should be kept under constant review by the Director, CBI

14. A document on CBI's functioning should be published within three months to provide the general public with a feedback on investigations and information for redress of genuine grievances in a manner which does not compromise with the operational requirements of the CBI.

15. Time limit of three months for grant of sanction for prosecution must be strictly adhered to. However, additional time of one month may be allowed where consultation is required with the Attorney General (AG) or any other law officer in the AG's office.

16. The Director, CBI should conduct regular appraisal of personnel to prevent corruption and/or inefficiency in the agency.

9.1 Limitations of power of the High Court under Article 226

State of W. Bengal & another V. Moh. Khalid & Others (1995 AIR 785 / 1995 SCC 91( 684)was a set of writ petitions filed in the High Court of Calcutta challenging the validity of sanction and taking cognizance of the cases against each of the respondents by the Designated Court under the Terrorist and Disruptive Activities (Prevention) Act, 1987 (hereinafter referred to as 'TADA').It was held that the High Court must assume each of the allegations made in the charge-sheet to be factually correct and examine the ingredients of the offence without adding or subtracting anything there from.Further hold that the High Court has clearly exceeded its powers under Article 226 of the Constitution in quashing the orders of sanction and taking of cognizance. ‘Therefore, we set aside the impugned judgment of the High Court and direct the Designated Court to proceed with the case in accordance with the law with utmost expedition’.

In the State of Maharashtra v. Abdul Hamid Haji Mohammed, 1994 (2) SCC 664: (1994 AIR SCW 2930), after holding that the High Court in writ petition under Article 226 can interfere only in extreme cases where charges ex facie do not constitute offence under TADA it was held in paragraph 7 at pages 669-70: (at p. 2934 of SCW) as under:

"The first question is: Whether the High Court was empowered in the present case to invoke its jurisdiction under Article 226 of the Constitution to examine the correctness of the view taken by the Designated Court and to quash the prosecution of the respondent under the TADA Act? Shri Jethmalani contended, placing reliance on the decisions in R. P. Kapur v. State of Punjab, (1960) 3 SCR 388 : (AIR 1960 SC 866) and State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335 : (1992 AIR SCW 237), that in the facts of this case, the High Court had such a jurisdiction since there is no accusation against the respondent in the charge-sheet filed in the Designated Court which, if believed, must result in his conviction for an offence punishable under TADA Act. We are not impressed by this argument of Shri. Jethmalani. It is no doubt true that in an extreme case if the only accusation against the respondent prosecuted in the Designated Court in accordance with the provisions of TADA Act is such that ex facie it cannot constitute an offence punishable under TADA Act, then the High Court may be justified in invoking the power under Article 226 of the Constitution on the ground that the detention of the accused is not under the provisions of TADA Act. We may hasten to add that this can happen only in extreme cases which would be rare and that power of the High Court is not exercisable in cases like the present where it may be debatable whether the direct accusation made in conjunction with the attendant circumstances, if proved to be true, is likely to result in conviction for an offence under TADA Act. The moment there is a debatable area in the case, it is not amenable to the writ jurisdiction of the High Court under Article 226 of the Constitution and the gamut of the procedure prescribed under TADA Act must be followed, namely, raising the objection before the Designated Court and, if necessary, challenging the order of the Designated Court by appeal in the Supreme Court as provided in Sec. 19 of TADA Act. In view of the express provision of appeal to the Supreme Court against any judgment, sentence or order, not being an interlocutory order of a Designated Court, there is no occasion for the High Court to examine merits of the order made by the Designated Court that the Act applies. We have no doubt that in the present case wherein the High Court had to perform the laboured exercise of scrutinising the material containing the accusation made against the respondent and the merits of the findings recorded by the Designated Court holding that the provisions of TADA Act were attracted, there was sufficient indication that the writ jurisdiction of the High Court under Article 226 of the Constitution was not available. The ratio of the decisions of this Court in R. P. Kapur and Bhajan Lal on which reliance is placed by Shri. Jethmalani, has no application to the facts of the present case. There was thus no justification for the High Court in the present case to exercise its jurisdiction under Article 226 of the Constitution for examining the merits of the controversy much less for quashing the prosecution of respondent Abdul Hamid in the Designated Court for offences punishable under TADA Act."

In State of Bihar v. P.P. Sharma, 1992 (I) SCC 222: (1991 AIR SCW 1034), Supreme Court had ruled that writ petition should not be entertained against charge-sheet while exercising jurisdiction. If the matter is considered on merits in the guise of prima facie evidence, it would amount to a pre-trial. To the same effect are the following rulings:

(1) State of Maharashtra v. Abdul Hamid,1994 (2) SCC 664, para 7 : (1994 AIR SCW 2930); (2) State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335 : (1992 AIR SCW 237); (3) State of Bihar v. P. P. Sharma, 1992 Supp (1) SCC 222, para 68 at p. 269 : (1991 AIR SCW 1034); (4) Mahinder Kaur v. Rajinder Singh, 1992 Suppl (2) SCC 25; (5) Radhey Shyam Khemka v. State of Bihar; 1993 (3) SCC 54 : (1993 AIR SCW 2427); (6) State of Bihar v. Murad Ali, 1988 (4) SCC 655 at 662 : (AIR 1989 SC 1).

In State of Bihar v. P.P. Sharma, 1992 Supp (1) SCC 222 at pp. 224-225: (1991 AIR SCW 1034) (at pp. 1052, 1067, 1068), the Supreme Courtheld:

"At a stage when the police report under Section 173, Cr. P. C. has been forwarded to the Magistrate after completion of the investigation and the material collected by the Investigating Officer is under the gaze of judicial scrutiny, the High Court would do well to discipline itself not to undertake quashing proceedings in exercise of its inherent jurisdiction. In this case the High Court fell into grave error in appreciating the documents and affidavits produced before it by treating them as evidence, delving into the disputed questions of fact in its jurisdiction under Article 226/227 and pronouncing the respondents to be innocent and quashing the criminal proceedings by converting itself into a trial Court. This was not at all a case where High Court should have interfered in the exercise of its inherent jurisdiction. The appreciation of evidence is the function of the criminal Courts the Special Judge was seized of the matter. He had heard the argument on the question of cognizance and had reserved the orders. The High Court did not even permit the Special Judge to pronounce the orders. The High Court, under the circumstances, could not have assumed jurisdiction and put an end to the process of investigation and trial provided under the law.

....Entertaining the writ petitions against charge-sheet and considering the matter on merit on the guise of prima facie evidence to stand an accused for trial amounts to pre-trial of a criminal trial under Article 226 or 227 even before the competent Magistrate or the Sessions Court takes cognizance of the offence. The charge-sheet and the evidence placed in support thereof form the base to take or refuse to take cognizance by the competent Court. It is not the case that no offence had been made out in the charge sheets and the first information report. Grossest error of a criminal case in exercising its extraordinary jurisdiction under Art. 226. ....."

10.0 Investigation by Special Agencies like CB-CID , CBI and NIA

The Police Commission of 1902-03, recommended the formation of a Criminal Investigation Department for each of the provinces, and that the Criminal Investigation Department (CID) should be constituted under Deputy Inspector General of Police for the purpose of collecting and distributing information regarding organized crimes as well as to undertake the investigation of specialized crimes that require technical expertise. On 21 March, 1905, Government of India accepted the proposal of the Commission and implemented the same.

The CB-CID takes over matters usually by a request from the State government and, or on the Directives of Director General of Police of the concerned State. Other than these, CB-CI D conducts investigation under the Supreme Court or High Court Orders

The Central Bureau of Investigation traces its origin to the Special Police Establishment (SPE) which was set up in 1941 by the Government of India. The functions of the SPE then were to investigate cases of bribery and corruption in transactions with the War & Supply Department of India during World War II. Superintendence of the S.P.E. was vested with the War Department.

Even after the end of the War, the need for a Central Government agency to investigate cases of bribery and corruption by Central Government employees was felt. The Delhi Special Police Establishment Act was therefore brought into force in 1946. This Act transferred the superintendence of the SPE to the Home Department and its functions were enlarged to cover all departments of the Govt. of India. The jurisdiction of the SPE extended to all the Union Territories and could be extended also to the States with the consent of the State Government concerned.

The DSPE acquired its popular current name, Central Bureau of Investigation (CBI), through a Home Ministry resolution dated 1.4.1963. Initially the offences that were notified by the Central Government related only to corruption by Central Govt. servants. In due course, with the setting up of a large number of public sector undertakings, the employees of these undertakings were also brought under CBI purview. Similarly, with the nationalization of the banks in 1969, the Public Sector Banks and their employees also came within the ambit of the CBI.

The CBI takes over matters usually by a request from State government to Central government, and Central government agrees based on CBI comments. Other than these, CBI conducts investigation under the Supreme Court or High Court Orders.

Central Vigilance Commission is the authority of superintendence of CBI in the matter of Prevention of Corruption Act, 1988; and in other matters, by Department of Personnel and Training (D O P T).

National Investigation Agency (N I A), was formed after the terrorist attack in Mumbai, for exclusive investigation into Terrorist and anti-national activities.

Subject to the fact and situation of each case the superior courts, at any time, can direct investigation by the superior agency of the country. In Uma Shankar Sitani v. Commissioner of Police, Delhi, 1995 Cri. L J 3612 P. 3613 9 SC), the Supreme Court was of the opinion that the matter was to be investigated by an Independent Agency. Further, in Nirmal Singh Kahlon V. State of Pujab & Others ( 2009 1 SCC 441 ), the Supreme Courthas sustained the order of High Court , directing investigation by the CBI even after the filing of charge –sheet by the State Police. In P&H High Court Bar Association v. State of Punjab, 1994 Cr. L.J 1368, A.I.R 1994 SC 1023 it was held that the facts and circumstances of the case on hand, and to do complete justice in the matter and further to instill confidence in the public mind it is necessary to have fresh investigation in the case through a specialized agency like the Central Bureau of Investigation (CBI).

In A. Nallasivam V. State of Tamil Nadu, 1995 Cri L J 2754., writ petition filed by a RAJYA SABHA MEMBER and Secretary of the Tamil Nadu State Committee of the Communist Party of India (Marxist), filed as a public interest litigation with a complaint that the people of Vachathi had been victims of brutal attacks by the Forest and Police personnel, for about three days since 20-6-1992. The village has become totally deserted and the immediate requirement is to enable the inhabitants to come back and settle in the village. The village has about 200 small houses and the people are engaged in agriculture, poultry, bee-keeping and cattle rearing. On 17-7-1992, the petitioner came to know through P. Shanmugam, the Secretary of the Tamilnadu Tribals Association, who had visited Vachathi on 14-7-1992, about the above said attack and the fact that 200 men and women had been arrested and remanded to judicial custody. After gathering all details, the petitioner wrote a letter to the Chief Minister of Tamil Nadu on 18-7-1992, demanding judicial enquiry into the incident of violence on 20-6-1992 at Vachathi and demanding action against the Officials, who had committed offences of looting the houses and raping women and also demanding compensation for the loss, suffered by the said villagers. The above said Shanmugam also sent similar representation to the Chief Minister. But, there was no reply to either of the representations. Hearing in this matter, the Madras High Court relied mainly on two case laws:-

It observed that in Syed Kaleenullah v. The Appraising Officer, Special Investigation Branch, Customs House, Madras - 1 Crl. O.P. No. 5540 of 1993, in a similar situation the High Court of Madras directed investigation by the Central Bureau of Investigation and the relevant observation therein is as follows :-

"To my mind, it appears that an effective and impartial investigation is totally necessary. No useful purpose will be served by allowing the customs officials to investigate the matter any further. Therefore, I am firmly of the view that further investigation must be conducted by the CBI quickly and effectively, to find out all those involved in this crime of very great magnitude and place them before the Judicial authority for trial.

In State of West Bengal v. Sampatlal , 1985 A I R 195 / SCR (2) 256, the Supreme Court has held that when a direction is issued by the Court to the CBI to conduct investigation in the crime, sanction under Section 6 of the Delhi Special Police Establishment Act was not necessary.

Likewise in Inder Singh v. State of Punjab, 1997 8 SCC 372, the Supreme Court has ordered investigation by directing, the Central Bureau of Investigation, when the allegation was abduction of seven persons ranging in age from 85 to 14 years by a senior police officer and some policemen, using official machinery for the purpose and when the Court found that the State police was acting leisurely and in irresponsible manner.

Thus the Madras High Court in A. Nallasivam’s case held that the Central Bureau of Investigation has to find out all those involved in the relevant crimes and place them before the Judicial Authority for trial. The Central Bureau of Investigation was also directed to submit a report to this court as to what it has done in the matter

The Supreme Court can exercise its powers under Art. 142 to order a CBI enquiry without State government consent where such consent was required by the Statue. In Association of Protection...V. St. of West Bengal and others 2007 (4) CHN 842, The Calcutta High Court held that the powers of the High Court under Article 226 of the Constitution and of the Supreme Court under Article 32 or Article 142(1) of the Constitution can be invoked, though sparingly, for giving such direction to CBI to investigate in certain cases, (vide Kashmiri Devi V. Delhi Administration and another 1988 AIR 1323). A two-Judge Bench of the Supreme Court has by an order dated 10.03.1989, referred the question whether the High Court can order CBI to investigate a cognizable offence committed within a State without the consent of that State Government or without any notification or order having been issued in that behalf under Section 6 of the Delhi Act.

10. Power to take suo moto cases by Superior Courts.

The facts of State of Punjab V. Central Bureau of Investigation & Others, SLP Criminal No. 792 / 2008, (2011) 11 SCR 281 was :- On 13.11.2007, a news item

was published in the Hindustan Times headlined ‘Moga Sex Scandal’ and two ladies, namely, respondent no.3 of Village Varsaal and her relative Manjeet Kaur of Village Badduwal had been arrested. This news was also published in the Tribune dated 12.11.2007:-- The High Court took suo motu notice of the news items and issued notices to the State of Punjab, Senior Superintendent of Police, Moga and Deputy Inspector General of Police, Ferozpur Range and directed the Deputy Superintendent of Police, Bhupinder Singh, who was investigating into the case, to file the status report of the investigation on the next date of hearing.

Matter was taken up the State of Punjab under Article 136 of the Indian Constitution.

The Supreme Court refereed case laws as to: - Vineet Narain v. Union of India (1998) 1 SCC 226: 1997(6) Suppl.SCR 595; Mithabhai Pashabhai Patel v. State of Gujarat (2009) 6 SCC 332: 2009 (7) SCR 1126; Ram Lal Narang v. State (Delhi Administration (1979) 2 SCC 322;Nirmal Singh Kahlon v. State of Punjab and Ors. (2009) 1SCC 441: 2008 (14) SCR 1049; State of West Bengal and Ors. v. Committee for Protection of Democratic Rights, West Bengal and Ors. (2010) 2 SCC 571

The Supreme Court held that :- In “State of West Bengal and Others v. Committee for Protection of Democratic Rights, West Bengal and Others [(2010) 2 SCC 571] a Constitution Bench of this Court, while holding that no Act of Parliament can exclude or curtail the powers of the High Court under Article 226 of the Constitution, has cautioned that the extra-ordinary powers of the High Court under Article 226 of the Constitution must be exercised sparingly, cautiously and in exceptional situations where it becomes necessary to provide credibility and confidence in investigation or where the incident may have national or international ramifications or where such an order may be necessary for doing complete justice and enforcing fundamental rights. This caution equally applies to the cases where the High Court exercises inherent powers under Section 482 of the Cr.P.C. to direct investigation by the CBI for securing the ends of justice held, where charge sheet has been filed, and High Court held that the same cannot limit or affect the inherent power of High Court to pass an Order u/s 482 for fresh investigation or re-investigation is necessary to serve the ends of justice. This was a case where senior functionaries of the State Police and political leaders were involved, and justice would not be done if local police investigated, and thereby the High Court given direction u/s 482 Cr.P.C for fresh investigation by CBI”.

Hence, concluded that it is not a fit case in which Supreme Court should exercise its powers under Article 136 of the Constitution and grant leave to appeal. The Special Leave Petition therefore dismissed

11. Completion of Investigation

As soon as investigation is complete, according to Sec 173 (2) of Cr. P.C, the Officer –In – Charge of the Police Station shall forward to a Magistrate empowered to take cognizance of the offence on a Police Report, a Report in the form prescribed by the concerned Sate Government. , and further investigation report, if any. However, the Report should contain accompaniments which are required to be submitted under Sec 173(5) Cr.P.C, (Matchumari Venkatarreddy V. State of Andhra Pradesh, 1994 Cri L J 257).

12. Cognizance and Dismissal of a Complaint or Discharge of the acussed

On receipt of a Police Report, the Magistrate may (must) take cognizance, and shall decide, as per Sec 190(1) (b) Cr. P.C, or proceed as per alternatives available with him under Cr.P.C. If there is no sufficient ground for proceeding, Magistrate shall dismiss the complaint, as per Sec 203 of Cr.P.C, and shall briefly record his reasoning. Whereas in charge-sheeted case, upon consideration of the record of the cases and the documents submitted, and after submission of the accused and by the prosecution, if the judge consider that there is no sufficient ground for proceeding, judge can discharge the accused u/s 227 of Cr. P.C; or to proceed for framing charges as pr Sec 228 Cr. P.C.