State Of
Vs
Bhajan Lal And Others
CASE NUMBER
Civil Appeal No. 5412 of 1990
EQUIVALENT CITATION
1990-(002)-SCALE-1066-SC
1990-(SU3)-SCR-0259-SC
1992-AIR-0604-SC
1992-CRLJ-0527-SC
1992-(SU1)-SCC-0335-SC
1990-(004)JT-0650-SC
CORAM
K Jayachandra Reddy
S.R.Pandian
21.11.1990
JUDGMENT
RATNAVEL PANDIAN, J.-
Leave granted.
2. “The king is under no man, but under God and the law”- was the reply of the Chief Justice of England, Sir Edward Coke when James I once declared “Then I am under the law. It is treason to affirm it”- so wrote Henry Bracton who was a Judge of the King’s Bench.
3. The words of Bracton in his treaties in Latin “quod Rex non debet esse sub homine, sed sub Deo et Lege” (That the king should not be under man, but under God and the law) were quoted time again when the Stuart Kings claimed to rule by divine right. We would like to quote and requite those words of Sir Edward Coke even at the threshold.
4. In our democratic polity under the Constitution based on the concept of ‘Rule of Law’ which we have adopted and given to ourselves and which serves as an aorta in the anatomy of our democratic system, THE LAW IS SUPREME.
5. Everyone whether individually or collectively is unquestionable under the supremacy of law. Whoever he may be, however high he is, he is under the law. No matter how powerful he is and how rich he may be.
6. The heated and lengthy argument advanced in general by all the learned counsel on the magnitude and the multi-dimensional causes of corruption and also about the positive and constructive remedial measures and steps to be taken for its eradication has necessitated us to give a brief exordium about its perniciousness, though strictly speaking, we would be otherwise constrained not to express any of opinion on this.
7. At the outset we may say that we are not inclined to make an exhaustive survey and analysis about the anatomy, dimensions and causes of corruption. It cannot be gainsaid that the ubiquity of corruption is always associated with a motivation of private gain at public expense.
8. Though the historical background and targets of corruption are reviewed time after time, the definitional and conceptual problems are explored and the voluminous causes and consequences of corruption are constantly debated throughout the globe, yet the evils of corruption and their auto-narcotic effect pose a great threat to the welfare of society and continue to grow in menacing proportion. Therefore, the canker of the venality, if not fought against on all fronts and at all levels, checked and eradicated, will destabilize and debilitate the very foundations of democracy; wear away the rule of law through moral decay and make the entire administration ineffective and dysfunctional.
9. Mere rhetorical preaching of apostolic sermons listing out the evils of corruption and raising slogans with catch words are of no use in the absence of practical and effective steps to eradicate them; because ‘evil tolerated is evil propagated’.
10. At the same time, one should also be alive to cases where false and frivolous accusations of corruption are maliciously made against an adversary exposing him to social ridicule and obloquy with an ulterior motive of wrecking vengeance due to past animosity or personal pique or merely out of spite regardless of the fact whether the proceedings will ultimately culminate into conviction or not.
11. We would like to make it clear that the above exordial note is given without casting any aspersion against any of the parties to the present proceedings or touching the individual merit of the case.
12. The relevant facts giving rise to this appeal, though have been set out in great detail in the impugned judgment of the High Court, have to be recapitulated in order to enable us to give our own reasons for the findings which we will be arriving at on the interpretation of certain provisions of the Criminal Procedure Code (‘the Code’ for short) and of the Prevention of Corruption of Act, 1947 (the Act for short).
13. This appeal by grant of special leave is directed by the appellants, namely, the State of Haryana and two others assailing the judgment dated September 8, 1988 of a Division Bench of the High Court of Punjab and Haryana rendered in Writ Petition No. 9172 of 1987 quashing the entire criminal proceedings inclusive of the registration of the first information report and directing respondent 2, Mr Dharam Pal to pay the costs to respondent 1, Shri Bhajan Lal.
ACT:
Constitution of
HEADNOTE:
The First Respondent was a Minister and subsequently Chief Minister of
Aggrieved by the judgment of the High Court, the appel- lants preferred the present appeal by special leave, con- tending that the allegations contained in the complaint, either individually or collectively, constituted a cogniza- ble offence warranting the registration of a case as contem-plated under Section 154(1) Cr. P.C., and a thorough inves- tigation in compliance with various statutory provisions . On behalf of the Respondents, it was contended that on account of the deep rooted political animosity and rivalry entertained by the then Chief Minister, he used the com- plainant, who was stooge in his hands, to file the complaint containing false and scurrilous allegations against the First Respondent and hence the criminal proceedings rightly deserved to be quashed. Disposing of the appeal, this Court:-
HELD: 1. The judgment of the High Court quashing the First Information Report is set aside as not being legally and factually sustainable in law. However, the commencement as well as the entire investigation, if any, so far done is quashed on the ground that the third appellant (SHO) is not clothed with valid legal authority to take up the investiga- tion and proceed with the same within the meaning of Section 5A(1) of the Prevention of Corruption Act. [319A-C]
2. The observations made by the High Court are unwar- ranted and the historical anecdote is out of context and inappropriate. If such a view is to be judicially accepted and approved, then it will be tantamount to laying down an alarming proposition that an incoming Government under all circumstances, should put its seal of approval to all the commissions and omissions of the outgo- ing Government ignoring even glaring lapses and serious misdeeds and the deleterious and destructive consequences that may follow therefrom. [318E-F]
3.1. If any information disclosing a cognizable offence is laid before an officer-in-charge of a police station satisfying the requirements of Section 154(1) of the Crimi- nal Procedure Code, the said police officer has no other option except to enter the substance thereof in the pre- scribed form, that is to say, to register a case on the basis of such information. [279G]
3.2. Though a police officer cannot investigate a non- offence, he can investigate a non-cognizable offence under the order of a Magistrate having power to try such non- cognizable case or commit the same for trial within the terms under Section 155(2) of the Code but subject to Sec-tion 155(3) of the Code. Further, under the newly introduced Sub-section (4) to Section 155, where a case relates to two offences to which atleast one is cognizable, the case shall be deemed to be a cognizable case notwithstanding that the other offences are non cognizable and, therefore, under such circumstances the police officers can investigate such offences with the same powers as he has while investigating a cognizable offence. [279H; 280A-B]
4. The core of the Sections 156, 157 and 159 of the Code of Criminal Procedure is that if a police officer has reason to suspect the commission of a cognizable offence, he must either proceed with the investigation or cause an investiga- tion to be proceeded with by his subordinate; that in a case where the police officer sees no sufficient ground for investigation, he can dispense with the investigation alto- gether; that the field of investigation of any cognizable offence is exclusively within the domain of the investiga- tion agencies over which the Courts cannot have control and have no power to stiffle or impinge upon the proceedings in the investigation so long as the investiga- tion proceeds in compliance with the provisions relating to investigation and that it is only in a case wherein a police officer decides not to investigate an offence, the concerned Magistrate can intervene and either direct an investigation or in the alternative, if he thinks fit, he himself can, at once proceed or depute any Magistrate sub-ordinate to him to proceed to hold a preliminary inquiry into or otherwise to dispose of the case in the manner provided in the Code. [283G-H; 284A-B] State of
5.1. The expression "reason to suspect the commission of an offence" used in Section 154(1) Cr. P.C. would mean the sagacity of rationally inferring the commission of a cogniz- able offence based on the specific articulate facts men-tioned in the First Information Report as well in the Annex-ures, if any, enclosed and any attending circumstances which may not amount to proof. In other words, the meaning of the expression "reason to suspect" has to be governed and dic-tated by the facts and circumstances of each case and at ï7in the First Information Report does not arise. [286E-F]
5.2. The commencement of investigation by a police officer is subject to two conditions, firstly, the police officers should have reason to suspect the commission of a cognizable offence as required by Section 157(1) and second-ly, the police officer should subjectively satisfy himself as to whether there is sufficient ground for entering on an investigation even before he starts an investigation into the facts and circumstances of the case as contemplated under clause (b) of the proviso to Section 157(1) of the Code. [288B-C] Pakala Narayanaswami v. Emperor, AIR 1939 P.C. 47;Emperor v. Vimlabai Deshpande, AIR 1946 P.C.123;
6. The investigation of an offence is the field exclu- sively reserved for the police officers whose powers in that field are unfettered so long as the power to investigate into the cognizable offences is legitimately exercised in strict compliance with the provisions falling under Chapter XII of the Code and the Courts are not justified in obliter- ating the track of investigation when the investigating agencies are well within their legal bounds. A noticeable feature of the scheme under Chapter XIV of the Code is that a Magistrate is kept in the picture at all stages of the police investigation but he is not authorised to interfere with the actual investigation or to direct the police how that investigation is to be conducted. But if a police officer transgresses the circumscribed limits and improperly and illegally exercises his investigatory powers in breach of any statutory provision causing serious prejudice to the personal liberty and also property of a citizen, then the Court,on being approached by the person aggrieved for the redress of any grievance has to consider the nature and extent of the breach and pass appropriate orders as may be called for without leaving the citizens to the mercy of police echelons since human dignity is a dear value of our Constitution. No one can demand absolute immunity even if he is wrong and claim unquestionable right and unlimited powers exercisable upto unfathomable cosmos. Any recognition of Power' which no authority on earth can enjoy. [290D-G] Emperor v. Khwaja Nazir Ahmad, AIR 1945 P.C. 18;R.P. Kapur v. The State of
7.1 The view of the High Court that the non-filing of a written statement by a competent authority of the State mGovernment by way of reply to the averments in the Writ Petition was serious flaw on the part of the appellants and as such the averments of Respondent No. 1 should be held as having disproved the entire crimination alleged in the F.I.R., is neither conceivable nor comprehensible. [293D]
7.2. It is true that some of the allegations do suffer from Misty vagueness and lack of particulars. Further, there are no specific averments that either Respondent No. 1 or his relations and friends had no source of income to accumulate the properties now standing in their names and that Respond-ent No. 1 showed any favour to them by misusing his official position. [294B-C] These areall matters which would be examined onlyduring the course of investigation and thereafter by the court on the material collected and placed before it by the investigating agencies. The question whether the relations and friends of Respondent No. 1 have independently purchased the properties out of their own funds or not, also cannot be decided by the Court at this stage on the denial statement of Respondent No. 1 alone. [294C-D] State of
8.1. In the exercise of the extra-ordinary power under Article 226 or the inherent powers under Section 482 of the Code of Criminal Procedure, the following categories of cases are given by way of illustration wherein such power could be exercised either to prevent abuse of the process of any Court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guide- myriad kinds of cases wherein such power should be exer- cised:
(a) where the allegations made in the First Information
Report or the complaint, even if they are taken at their
face value and accepted in their entirety do not prima facie
constitute any offence or make out a case against the ac-cused;
(b) where the allegations in the First Information
Report and other materials, if any, accompanying the F.I.R.
do not disclose a cognizable offence, justifying an investi-
gation by police officers under Section 156(1) of the Code
except under an order of a Magistrate within the purview of
Section 155(2) of the Code;
(c) where the uncontroverted allegations made in the FIR
or 'complaint and the evidence collected in support of the
same do not disclose the commission of any offence and make out a case against
the accused;
(d) where the allegations in the FIR do not constitute a
cognizable offence but constitute only a non-cognizable
offence, no investigation is permitted by a police officer
without an order of a Magistrate as contemplated under
Section 155(2) of the Code;
(e) where the allegations made in the FIR or complaint
are so absurd and inherently improbable on the basis of
which no prudent person can ever reach a just conclusion
that there is sufficient ground for proceeding against the
accused;
(f) where there is an express legal bar engrafted in any
of the provisions of the Code or the concerned Act (under
which a criminal proceeding is instituted) to the institu-
tion and continuance of the proceedings and/or where there
is a specific provision in the Code or the concerned Act,
providing efficacious redress for the grievance of the
aggrieved party;
(g) where a criminal proceeding is manifestly attended
with mala fide and/or where the proceeding is maliciously
instituted with an ulterior motive for wreaking vengeance on
the accused and with a view to spite him due to private and
personal grudge. [305D-H; 306A-E]
8.2. In the instant case, the allegations made in the complaint, do clearly constitute a cognizable offence justi- On and this case does not call for the exercise of extraor-dinaryor inherent powers of the High Court to quash the F.I.R. itself. [307B] State of
AIR 1945 P.C. 18; referred to.
9.1. The entire matter is only at a premature stage and the investigation has not proceeded with except some prelim-inary effort taken on the date of the registration of the case. The evidence has to be gathered after a thorough investigation and placed before the Court on the basis of which alone the Court can come to a conclusion one way or the other on the plea of mala fides. If the allegations are bereft of truth and made maliciously, the investigation will say so. At this stage, when there are only allegations and recriminations but no evidence, this Court cannot anticipate
the result of the investigation and render a finding on the question of mala fides on the materials at present avail-.able. Therefore, it cannot be said that the complaint should be thrown overboard on the mere unsubstantiated plea of mala fides. Even assuming that the complainant has laid the complaint only on account of his personal animosity that, by itself, will not be a ground to discard the complaint con- taining serious allegations which have to be tested and weighed after the evidence is collected. [307G-H; 308A-D] ï73
9.2. The dominant purpose of registration of the case and the intended follow up action are only to investigate the allegations and present a case before the Court, if sufficient evidence in support of those allegations are collected but not to make a character assassination of the person complained against. [308H; 309A] S.Pratap Singh v. The State of
10.1. A police officer with whom an investigation of an offence under Section 5(1)(e) of the Prevention of Corruption Act is entrusted should not proceed with a pre-conceived idea of guilt of that person indicated with such offence and subject him to any harassment and victimisation, because in case the allegations of illegal accumulation of wealth are found, during the course of investigation as baseless, the harm done not only to that person but also to the office he held will be incalculable and inestimable. [297C-E]
10.2. In the instant case, the SP seems to have exhibit- ed some over-enthusiasm, presumably to please 'some one' and had directed the SHO to register the case and investigate the same even on the very first day of the receipt of the complaint from the DGP, in whose office the complaint was lying for merely 9 days. This unprecedented overenthusiasm shown by the S.P., without disclosing the reasons for making an order entrusting the investigation to the SHO who is not
a designated officer under Section 5A(1), really shocks ones' sense of justice and fair play even though the untest-ed allegations made in the complaint require a thorough investigation. Still, it is an inexplicable riddle as to why the S.P. had departed from the normal rule and hastly or-dered the SHO to investigate the serious allegations, le-velled against a former Chief Minister and a Minister in the Cabinet of the Central Government on the face of the regis-tration of the case. However, this conduct of the SP can never serve as a ground for quashing the FIR. [298C-E] Sirajuddinv. State of
11.1. A police officer not below the rank of an Inspec- tor of Police authorised by the State Government in terms of the First proviso can take up the investigation of an of-fence referred to in clause (e) of Section 5(1) of the Prevention of Corruption Act, only on a separate and inde- pendent order of a police officer not below the rank of a Superintendent of Police. A strict compliance of the second proviso is an additional legal requirement to that of the first proviso for conferring a valid authority on a police officer not below the rank of an Inspector of Police to investigate an offence falling under clause (e) of Section 5(1) of the Act. This is clearly spelt out from the expres- sion "further provided" occurring in the second proviso. Thus, investigation by the designated Police Officers is the rule and investigation by an officer of a lower rank is an exception. [311H; 312A-B]
11.2. The granting of permission under Section 5A of the Preven-tion of Corruption Act authorising an officer of lower rank to conduct the investigation is not to be treated by a Magistrate as a mere matter of routine, but it is an exer- cise of his judicial discretion having regard to the policy underlying and the order giving the permission should, on the face of it, disclose the reasons for granting such permission. The Superintendent of Police or any police officer of higher rank while granting permission to a non- designated police officer in exercise of his power under the second provision to Section 5A(1), should satisfy himself that there are good and sufficient reasons to entrust the investigation with such police officer of a lower rank and record his reasons for doing so; because the very object of the legislature in enacting Section 5A is to see that the investigation of offences punishable under Sections 161, 165 or 165A of Indian Penal Code as well as those under Section 5 of the Act should be done ordinarily by the offi-cers designated in clauses (a) to (d) of Section 5A(1).The exception should be for adequate reasons which should be disclosed on the face of the order. Strict compliance with Section 5A(1) becomes absolutely necessary because it ex-pressly prohibits police officers below certain ranks,from investigating into offences under Sections 161, 165 and 165A IPC and under Section 5 of the Act without orders of Magis-trates specified therein or without the authorisation of the State Government in this behalf and from effecting arrests for those offences without a warrant. [314H; 3 15A-D]
11.3. The main object of Section 5A is to protect the public servant against harassment and victimisation. Section 5A of the Act is mandatory and not directory and the inves- illegality but that illegality committed in the course of an investigation does not affect the competence and the juris-diction of the Court for trial and where the cognizance of the case has in fact been taken and the case is proceeded to termination the validity of the proceedings with the preced- ing investigation does not vitiate the result unless miscar- riage of justice has been caused thereby. [311C; 312D-E]
11.4. In the instant case, there is absolutely no rea- son, given by the S.P. in directing the SHO to investigate and as such the order of the S.P. is directly in violation of the dictum laid down by this Court in several decisions. The third appellant, SHO is not clothed with the requisite legal authority within the meaning of the second provision of Section 5A(1) of the Act to investigate the offence under clause (e) of Section 5(1) of the Act. [315E-F] H.N. Rishbud and Inder Singh v. The State of
12. The Government order authorised the Inspector Gener-al of Police to investigate only the offences failing under Section 5 of the Act. Therefore, the SHO who has taken up the investigation of the offences inclusive of those under Section 161 and 165 IPC is not at all clothed with any authority to investigate these two offences, registered under the IPC, apart from the offence under Section 5(2) of the Act. However, as the question relating to the legal authority of the SHO is raised even at the initial stage, it would be proper and also desirable that the investigation,
if at all to be proceeded with in the opinion of the State Government, should proceed only on the basis of a valid order in strict compliance with the mandatory provision of Section 5A(1). [315G-H; 3 16A-B]
