Criminal Misc. No. M-867 of 2008 -1- *** IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Misc. No. M-867 of 2008 Date of decision : April 01, 2008 State of Haryana .....Petitioner Versus K.C. Bangar and another ...Respondents CORAM: HON'BLE MR. JUSTICE RAJESH BINDAL Present: Mr. Sanjiv Bansal, Additional Advocate General, Haryana for the petitioner. Mr. N.S. Shekhawat, Advocate for respondent no. 2. RAJESH BINDAL J. (Oral) 1. This is an unfortunate litigation between the State and important constitutional functionary in the State where the efforts of the State to investigate into the allegations of corruption against the then Chairman and members of the Haryana Public Service Commission (for short, `the Commission') are being objected to by the Commission. 2. The challenge in the present petition is to the order dated October 25, 2007 passed by the learned Chief Judicial Magistrate, Hisar whereby application filed by the petitioner for issuance of search warrants was dismissed and order dated November 30, 2007 passed by learned Sessions Judge, Hisar upholding the order passed by the Chief Judicial Magistrate, Hisar. 3. The proceedings arise out of FIR No. 20 dated October 10, 2005 registered under Sections 420, 467, 468, 471, 120-B IPC and Section 13 (1) (d) of the Prevention of Corruption Act, 1988 at Police Station, State Vigilance Bureau, Hisar, 4. The primary allegation in the FIR is regarding misuse of his authority by K.C. Bangar, former Chairman of the Commission and/or its members. Criminal Misc. No. M-867 of 2008 -2- *** 5. Briefly the facts, as stated in the petition are that in connection with investigation of the case registered with State Vigilance Bureau, Hisar, notice under Section 91 of the Code of Criminal Procedure ( for short “the Code”) was issued to the Commission on December 21, 2006 for producing record regarding selection to various posts except that of lecturers. It was mentioned in the notice that prior to that vide various letters record was asked for but the same was denied by the Commission claiming privilege and stating the records to be of confidential nature which cannot be provided. The notice dated December 21, 2006 was replied to by the Commission vide communication dated January 4, 2007 objecting to the supply of the record claiming privilege. It was further stated in the reply that record of the cases which are already pending before this court and Hon’ble the Supreme Court cannot be supplied. 6. Thereafter, the petitioner filed application before learned Chief Judicial Magistrate, Hisar for issuance of search warrants of the office of the Commission for taking the record as claimed by the petitioner for further investigation of the case. 7. The application was contested by the Commission with the averments that the same has been moved at the dictates of the political leaders with ulterior motive. As regards the selection of Lecturers, this Court had directed enquiry by the Vigilance in a petition filed by one Sushil Kumar who was disputing his seniority fixed by the Commission while making recommendation for appointment. The direction by this Court regarding the Vigilance Enquiry in that case was stayed by Hon'ble the Supreme Court. As regards the selection for HCS (Executive) by way of nomination is concerned, the direction of this Court for holding CBI enquiry into the selection by way of nomination was stayed by Hon'ble the Supreme Court. As regards the selection and appointment of Pardeep Sangwan as Drug Inspector is concerned it was stated that on thorough investigation earlier conducted by the State Vigilance Bureau no element of corruption was found. As regards the selection and appointment of wife of K.C. Bangar as Lecturer in Guru Jambheshwar University, Hisar it was stated Criminal Misc. No. M-867 of 2008 -3- *** that the facts were wrong as she was never appointed as such. An application for issuance of search warrants for roving and fishing enquiry is not permissible. 8. On consideration of the application, learned Chief Judicial Magistrate, Hisar rejected the same, inter-alia, opining that till date there was no specific evidence against the accused. General search for fishing enquiry is not authorized under the guise of Sections 91 and 93 of the Code. The Commission had claimed privilege against disclosure of certain official communications under Section 123 and 124 of the Indian Evidence Act, 1872 (for short `the Act'). Regarding selection of Lecturers and HCS Officers (Executive Branch), there was already stay. 9. Aggrieved against the order passed by the learned Chief Judicial Magistrate, Hisar, the petitioner preferred revision petition before learned Sessions Judge, Hisar. 10. Objection about the maintainability of revision was raised by the respondent Commission but the same was considered and decided in favour of the petitioner. 11. On merits, the claim of the petitioner before the learned Sessions Judge, Hisar was that Civil Writ Petition No. 12593 of 2005 (Haryana Public Service Commission V. State of Haryana and others ) filed by the Commission has already been considered and rejected by this Court vide order dated August 12, 2005. The contest in the petition was to the enquiry by the State Vigilance Bureau into the allegations against the officers/ officials or its members/ Chairman for acting on extraneous or illegal consideration for various selections made by the Commission. It was further submitted that the Special Leave Petition filed by the Commission against the aforesaid judgment of this court was dismissed as withdrawn on September 19, 2005. Relying upon the observations made by this Court in the aforesaid judgment and in addition thereto referring to the provisions of Section 123 and 124 of the Act, it was submitted that there was no application by the Commission before the learned Chief Judicial Magistrate, Hisar for claiming privilege and in the absence thereof and without satisfying the conditions there for such a claim could not be accepted. Criminal Misc. No. M-867 of 2008 -4- *** 12. The claim made by the petitioner was contested by the Commission before the learned Sessions Judge, Hisar. It was stated that a number of documents were supplied to the Vigilance Bureau after the dismissal of the writ petition filed by the Commission and privilege was claimed only with regard to certain confidential documents, which could not be supplied. Privilege was claimed in terms of provisions of Sections 123 and 124 of the Act stating that the Head of the Department is the final authority for the same. The entire effort of the prosecution is to put the Commission, a Constitutional authority, in a humiliating position. The prosecution wants to sit over the order of this Court upholding the selection of SDO (Environment) and SDO (Panchayati Raj) in writ petitions filed by unsuccessful candidates. As regards selection to the posts of SDO (Electrical) is concerned, the same is pending consideration before this Court. In the case of selection of HCS officers and lecturers, this Court directed investigation by the Vigilance Department and by the C.B.I. respectively, however, those directions were stayed by Hon’ble the Supreme Court. 13. After considering respective claims of the parties, learned Sessions Judge also did not find favour with the prayer made by the petitioner for issuance of search warrants primarily for the reasons that power under Section 93 of the Code is to be exercised sparingly. The allegations in the FIR were general in nature. There is no requirement under Sections 123 and 124 of the Act to file application supported by affidavit to claim privilege. In case the required documents are handed over to the Vigilance Bureau, the same will expose internal working of the Commission which may affect many selected candidates and result in litigation. However, it is noticed in the order that the Commission did not have any objection to supply any material except the answer sheets and interview proceedings signed by the members of the Commission. 14. The objection of the Commission to the effect that application under Section 93 (1) ( c) of the Code was not maintainable as the same was applicable only with regard to enquiry, trial and other proceedings before Criminal Misc. No. M-867 of 2008 -5- *** the Court was accepted as it was opined that in the provision there was intentional omission of word ‘investigation’ which is there in Section 91 of the Code. The petitioner was at liberty to resort to provisions of Section 91 of the Code for getting the information which the Commission had offered to supply. However, the Commission was given liberty to claim privilege under Sections 123 and 124 of the Act. 15. It is in this factual matrix that the matter is before this Court. 16. I have heard Shri Sanjiv Bansal, learned Additional Advocate General, Haryana appearing for the petitioner and Mr. N.S. Shekhawat, learned counsel appearing for respondent No. 2 and with their able assistance have gone through the paper book. 17. Learned counsel for the petitioner submitted that the impugned orders passed by the Courts below rejecting the prayer made by the petitioner for issuance of search warrants are totally arbitrary. The true import of the provisions of the Code has not been appreciated as Courts below have gone on wrong premise while rejecting the prayer. The pre- requisite for exercise of power under Section 93 of the Code is:- (a) Where any Court has reason to believe that a person to whom a summons or order under section 91 or a requisition under sub-section (1) of section 92 has been, or might be, addressed, will not or would not produce the document or thing as required by such summons or requisition, or (b) where such document or thing is not known to the Court to be in the possession of any person, or (c ) where the Court considers that the purposes of any inquiry, trial or other proceeding under this Code will be served by a general search or inspection, it may issue a search-warrant; and the person to whom such warrant is directed, may search or inspect in accordance therewith and the provisions hereinafter contained. Criminal Misc. No. M-867 of 2008 -6- *** 18. In the present case, petitioner had already issued many notices to the Commission for supply of documents in connection with investigation. On its failure, the petitioner did not have any other remedy except to approach learned Court below for issuance of search warrants, which is in larger public interest to investigate the allegations of corruption in selection for appointment to various public posts. The mere fact that the Commission is objecting to the production of record shows that the process adopted by the Commission for selection was not fair. Otherwise being a public authority it should not have any objection to the production of record. Transparency in the working is need of the hour. Observations by the learned Sessions Judge regarding maintainability of the application under Section 93 of the Code and observations regarding invoking the provisions of Section 91 of the Code are totally contrary to the plain language of the Act. Similar is the position with regard to allegations of roving enquiry. The FIR in question has been registered and some of the allegations are corroborated by various other factors especially an unprecedented move of the Commission to file writ petition before this court challenging investigation and enquiry against its the then Chairman and members, which was dismissed. Meaning thereby defence set up by the Commission was negatived. 19. Further besides referring to the observations made by this Court in the writ petition earlier filed by the Commission, learned counsel for the petitioner has further relied upon the observations made by Hon’ble the Supreme court while deciding petition challenging the selection of HCS Officers (Executive Branch) in Civil Appeal No. 5803 of 2007 ( Jitendra Kumar and others Vs. State of Haryana and another ) decided on December 11, 2007. 20. Learned counsel for the petitioner has also referred to the order passed by this Court in Civil Writ Petition No. 15309 of 2002 where the issue under consideration before a Division Bench of this Court was regarding selection of HCS Officers ( Executive Branch (direct recruits) ) where on a direction of this Court, the record of selection by the Criminal Misc. No. M-867 of 2008 -7- *** Commission was inspected by the learned counsel for the petitioners therein under the supervision of the Joint Registrar (Judicial) to assist the Court and a number of discrepancies were found. 21. Attacking the manner in which the Commission had claimed privilege for non production of the record in its possession and the same having been granted by the Court below, learned counsel for the petitioner has relied upon Constitution Bench judgment of Hon'ble the Supreme Court in Amar Chand Butail Vs. Union of India and others AIR 1964 Supreme Court 1658 to submit that claim of privilege under Section 123 of the Act should generally be made by the Head of the Department concerned with an affidavit filed in that behalf showing that each document in respect of which privilege has been claimed has been carefully considered and person making affidavit is bonafidely satisfied that its disclosure would lead to public injury. Further reliance has been placed on The State of U. P. Vs. Raj Narain and others (1975) 4 Supreme Court Cases 428 and S.P. Gupta Vs. Union of India and another 1981 (Supp) Supreme Court Cases 87. 22. Shri N.S.Shekhawat, learned counsel appearing for the Commission, controverting the contentions raised by learned counsel for the petitioner, raised a preliminary objection regarding maintainability of the present petition. He submitted that order in the application filed by the petitioner was passed by the learned Chief Judicial Magistrate, Hisar initially against which the petitioner filed revision before learned Sessions Judge, Hisar. Though the maintainability of the same was objected to by the Commission but the issue was decided against it. Once the petitioner had already availed of its remedy of revision, the second revision is specifically barred under Section 397 of the Code. Once the second revision is barred even a petition in the garb of quashing of order under Section 482 of the Code is also not maintainable. 23. He further submitted that the FIR in question was registered on 18.10.2005 on the basis of a source report stating that from the secret sources it had been found that the then Chairman of the Commission, K.C.Bangar had collected crores of rupees by selecting and appointing Criminal Misc. No. M-867 of 2008 -8- *** ineligible persons to various posts. Reference to some of the posts and the persons so selected in the source report was made. No progress in the investigation was made for nearly about two years. Vide communication dated 21.12.2006 (Annexure P-1) issued under Section 91 of the Code, the records of selection to various posts except that of lecturers was asked for, for the purpose of investigation of the FIR. The notice issued by the petitioner for supply of documents vide Annexure P-1 was duly replied to by the Commission vide its communication dated 4.1.2007 (Annexure R- 2/4) claiming privilege under Sections 123 and 124 of the Act stating the record to be confidential. It was further claimed in the reply that the disclosure of any information relating to the selection may affect and jeopardise the interest of the selected candidates and also the unselected candidates who have already approached the Court challenging the selection. It was nearly after nine months of the reply sent by the Commission to the notice of the petitioner that application under Section 93 of the Code was filed before the learned Chief Judicial Magistrate requiring the records only with regard to the selection and appointment to the posts of SDO (Panchayati Raj), SDO (Electrical) and SDO (Environment). He further submitted that the records to be produced by the petitioner would be voluminous and in fact the petitioner wants to hold a fishing enquiry. 24. Further submission is that the selection of SDO (Environment) has already been upheld by this Court in Civil Writ Petition No. 6255 of 2005 (Ramphal Vashisth Vs. State of Haryana and others) decided on April 30, 2007. The selection of SDO (Panchayati Raj) was also upheld by this Court in Civil Writ Petition No. 1101 of 2005 (Ajit Singh Vs. Haryana Public Service Commission) decided on November 11, 2005 and challenge to the selection of SDO (Electrical) is pending consideration before this Court in Civil Writ Petition No. 7706 of 2007. Once the issue regarding selection has already been gone into by this Court, the Vigilance Bureau cannot reinvestigate the same as the same would be clearly contemptuous. The Investigating Officer of the police cannot hold the selections to be bad once those have been upheld by this Court. Criminal Misc. No. M-867 of 2008 -9- *** 25. Referring to the orders passed by this Court in the writ petition where under judicial scrutiny is the selection of HCS Officers (Executive Branch), the submission is that the same cannot be relied upon for the simple reason that this Court had issued direction therein in exercise of power under Article 226 of the Constitution of India whereas in the present proceedings, the prayer is for issuance of search warrant. The Commission has no objection to the production of records in the Court, however, Constitutional authority should not be dragged in a police Station. 26. Further the submission is that the reliance on the judgment of this Court in Haryana Public Service Commission's case (supra) filed by the Commission and also Hon’ble the Supreme Court in Jitendra Kumar's case (supra) is totally misplaced for the simple reason that in both the cases the issue under consideration was neither for issuance of search warrants under Section 93 of the Code nor claim of privilege under Section 123 of the Act. 27. Still further learned counsel for the respondent submitted that the powers under Section 482 of the Code is extraordinary in nature and is to be exercised sparingly under certain special circumstances and not in routine. He has relied upon State of Andhra Pradesh Vs. Goloconda Linga Swamy and another 2004 (3) RCR (Criminal) 831 (SC), Manoj and others Vs. Prem Lal 2006 (3) RCR (Criminal) 941 (PH) and Hamida Vs. Rashid alias Rasheed and others (2008) 1 Supreme Court Cases 234. 28. Referring to the source report, the contention is that the only issue was relating to the selection for four posts to which later on the Investigating Agency has added 37 more complaints regarding various other posts which cannot be permitted. The petitioner cannot be permitted to enhance the scope of the present FIR as subsequently 3 more FIRs have been registered against the then Chairman and Members of the Commission at different places. Further it is submitted that the petitioner cannot pray for issuance of search warrant for record of selection to various posts which are not the subject- matter of the FIR initially registered. Before moving the application for issuance of search warrant in fact the petitioner had not done any home work by collecting sufficient material to invoke the jurisdiction of Criminal Misc. No. M-867 of 2008 -10- *** the Court for issuance of search warrant as during the period of about two years after the registration of the FIR, only four statements were recorded out of which three persons had resiled from their complaints earlier made to the petitioner. Even the antecedents of the complainants have also not been verified. The statements of the accused have also not been recorded. It is further submitted that the for the purpose of investigation, the provision of Section 93(1)(c) of the Code cannot be invoked. The effect of issuance of search warrants against the Commission would be far-reaching and long lasting as regards the credibility and status of the Commission. In future for every selection, the Commission may be dragged to the Police Station by lodging various FIRs. Reliance has been placed upon Harbans Singh v. The State of Punjab and another, 1978 Criminal Law Journal 1591, G. Subash Chandra Sabu v. H. Suresh Kumar, 2001 Criminal Law Journal 3258 and Kongini Balan v. M. Visalakshy, 1986 Criminal Law Journal 698. 29. Replying to the submissions made by learned counsel for the respondent, learned counsel for the petitioner submitted that as the allegations are of corruption by the then Chairman and Members of the Commission on which the people have faith and which are prima- facie substantiated with the material already collected and also seeing their conduct in the other cases pending against them, it is a fit case where this Court should exercise its extra-ordinary jurisdiction under Section 482 of the Code. The effort of the Commission to object to the production of record is only to save the illegally selected candidates. In fact the Commission is defending the cause of its the then Chairman and Members which has already been commented upon by this Court while dismissing earlier petition filed by the Commission. It is further submitted that initially the FIR was registered on the basis of source report, however, later on when complaints made to various authorities were forwarded to the Vigilance, the same were made part of the FIR which are now being investigated. 30. Explaining the delay in conduct of investigation, the submission is that the earlier incumbent, Shri S.P. Ranga, the then SP Vigilance, who was entrusted with the investigation of the case had refused Criminal Misc. No. M-867 of 2008 -11- *** to conduct the investigation. He remained seized with the job from 10.10.2006 to 13.07.2007. Nothing was done in his tenure. He was immediately placed under suspension on 13.07.2007 and was charge- sheeted. A new investigation team was formed on 13.08.2007. Thereafter, statements of four candidates and two officials of Commission were recorded. As on today, however, after the dismissal of the application for issuance of search warrants by the learned Sessions Judge, statements of 28 more witnesses have been recorded. It is further submitted that though in the earlier writ petitions filed by the Commission, the challenge was to the investigation being made, however, the claim of privilege under Sections 123, 124 of the Act was never pressed in that petition. In fact, the right of the petitioner to conduct investigation has already been decided by this Court in the earlier petition filed by the Commission and the only issue under consideration would be issuance of search warrants. This Court should not go into the sufficiency of the material before considering the claim of the petitioner for issuance of search warrants. It is further submitted that the investigation is being made step by step and presently it is only the record with regard to the selection of SDOs which is being asked for by way of issuance of search warrants without which, it will not be possible to conduct the investigation. 31. Relevant provisions of Sections 91 and 93 of the Code of Criminal Procedure and Sections 123 and 124 of the Indian Evidence Act, 1872 are extracted below:- “Section 91: Summons to produce document or other thing:- (1) Whenever any Court or any officer in charge of a police station considers that the production of any document or other thing is necessary or desirable for the purposes of any investigation, inquiry, trial or other proceedings under this Code by or before such Court or officer, such Court may issue a summon, or such officer a written order, to the person in whose possession or power such document or thing is believed to be, requiring him to Criminal Misc. No. M-867 of 2008 -12- *** attend and produce it, or to produce it, at the time and place stated in the summons or order. (2) Any person required under this section merely to produce a document or other thing shall be deemed to have complied with the requisition if he causes such document or thing to be produced instead of attending personally to produce the