9911796707
|
Home
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2006 (11) TMI 678 - SC - Indian LawsUttar Pradesh Government started a project known as Taj Heritage Corridor Project ( the project ) - Order passed on the basis of the confidential report submitted by CBI - sum of ₹ 17 crores released from the state exchequer without proper sanction of the competent authority - 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 - 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) CrPC - HELD THAT - 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. Thus, 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 General of India. 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 CrPC. 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 CrPC, 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) CrPC. 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. 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 u/s 173(2) CrPC 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. Concurring Judgment - S.B. Sinha, J. - HELD THAT - The Central Government has made a manual. It provides for hierarchy of the officers who, having regard to the gravity or otherwise of the offence, would supervise investigation. It provides for appointment of the investigating officer and the officers supervising the investigation. CBI Manual is based on statutory provisions of the Code of Criminal Procedure. It provides for essential guidelines for the functioning of the said body. CBI Manual, thus, is subject to the provisions of the CrPC. In case of conflict, although none has been pointed out, evidently, the CrPC shall prevail. Even under ordinary law, the investigating officer has a statutory duty to investigate into an offence upon receipt of a First Information Report as envisaged u/s 154 of the CrPC. Section 157 thereof provides for the procedure for investigation, where for the only duty cast on the investigating officer is to maintain his case diary in terms of Section 172 of the CrPC. It is beyond any doubt or dispute that investigation of an offence is the field exclusively reserved for the police. It may be subject to supervision of higher ranking officer (s) but the court's jurisdiction to have control in this behalf is beyond any controversy. The question came up also for consideration in Hemant Dhasmana v. Central Bureau of Investigation and Anr. 2001 (8) TMI 1424 - SUPREME COURT wherein it was held that upon conclusion of the investigation, a report has to be filed by CBI u/s 173(2) of the CrPC to Special Judge who takes the place of Magistrate when an offence falls under the Prevention of Corruption Act. Hence, it is the Magistrate alone who has the final say in the matter. Subject to the aforementioned, I respectfully concur with the opinion expressed by the learned Brother Kapadia, J.
Issues Involved:
1. Delay condoned in I.A. No. 443 in I.A. No. 431 in W.P. (C) No. 13381/84. 2. Interpretation of Section 173(2) Cr. PC in the context of a legal stalemate due to a vertical difference of opinion within CBI regarding the adequacy of evidence for judicial scrutiny in the Taj Heritage Corridor Project case. 3. Examination of the role and powers of the hierarchy within CBI in Supreme Court monitored cases. 4. Analysis of the role of the officer in charge of the police station in forming opinions under Section 173(2) Cr. PC. 5. Judicial review of the performance of duty by CBI in the context of the Taj Heritage Corridor Project investigation. Detailed Analysis: 1. Delay Condoned: The court condoned the delay in I.A. No. 443 in I.A. No. 431 in W.P. (C) No. 13381/84. 2. Interpretation of Section 173(2) Cr. PC: The main issue was whether the Director of CBI was correct in referring the matter to the Attorney General of India for an opinion, especially when the investigating team and law officers were unanimous in their opinion to file a charge-sheet, except for the Director of Prosecution who dissented. The court examined whether the Director of CBI, who did not provide his independent opinion, was justified in seeking the Attorney General's opinion based solely on the Director of Prosecution's dissent. 3. Role and Powers of CBI Hierarchy: The court referred to several precedents to clarify the powers and functions of the hierarchy within CBI in Supreme Court monitored cases. It emphasized that the formation of the opinion on whether to place the accused on trial should be that of the officer in charge of the police station, which in this case is the S.P. The court noted that the opinion of the Director of Prosecution, who is not part of the investigative hierarchy, should not override the unanimous decision of the investigating team and law officers. 4. Role of Officer in Charge of Police Station: The court reiterated that the formation of the opinion under Section 173(2) Cr. PC is the responsibility of the officer in charge of the police station and cannot be delegated. The court cited several judgments to support this view, including H.N. Rishbud and Inder Singh v. The State of Delhi, Abhinandan Jha and Ors. v. Dinesh Mishra, and Union of India and Ors. v. Sushil Kumar Modi and Ors. The court emphasized that even a competent Magistrate cannot compel the police to form a particular opinion. 5. Judicial Review of CBI's Performance: The court concluded that there was no difference of opinion within the concerned officers of CBI, and therefore, the Director of CBI should not have referred the matter to the Attorney General. The court directed that the entire material collected by CBI along with the report of the S.P. be placed before the concerned court/Special Judge as required under Section 173(2) Cr. PC. The court clarified that its observations were confined to ensuring proper and honest performance of duty by CBI and did not reflect on the merits of the accusations being investigated. Concurring Judgment: The concurring judgment emphasized that the investigation of an offence is the exclusive domain of the police and should be free from judicial interference. It reiterated that the Magistrate has the final say in the matter and that the CBI Manual, which is based on statutory provisions of the Code of Criminal Procedure, should be adhered to. The judgment also highlighted the importance of ensuring that the CBI performs its duties properly and honestly, as mandated by the Supreme Court in previous cases. Conclusion: The court directed the CBI to place the evidence and the report of the S.P. before the concerned court/Special Judge, who will decide the matter in accordance with law. The court's observations were limited to ensuring the proper performance of duty by CBI and did not express any opinion on the merits of the case. The interlocutory applications were accordingly disposed of.
|
