^ ^F f^- HI6H COURT OF JUDICATURE /^T 8ILASPUR CCHH^TTIS6ARH) Wrtt PstitioR No.S4 of 2QQ4 PETETCONER: RESPON&ENT5: Versus AjitPramod Kumarjogi Agsd about 58 years, S/o Late K.P. Jogi, Re-sident of Karuna, Civii Lines, District: Raipur (C.6.). 1, Union of India, Through Secretary, Ministry of Home, (Sovernment of India, New belhi. 2. Dsrector, Centra! Burecu of Investigation, CGO Complex, Lodhi Road, New Deihi. 3. Supsrintendent of Police, Central Bureau of Investigation, District: Raipur, Chhattisgarh. 4. State of Chhattisgarh through its Home 5ecretary, 6overnment of Chhattisgarh, District Raipur. 5. State Anti Corruption Bureau, Through Superintendent of Poiice, &istrict: Raipur, Chhattisgarh, POSTFOP. ORDER. ON ^-^' FEBRtMRY, 2004 Sd/- L.C. Bhadoo Judge ft- ^p^ HI6H COURT OF JUDICATURE AT 8ILASPUR CCHHATTIS^RH) Wrst Petjtson No.84 of 2004 \^ <::I:'^, ^,:; ^' v PETCTCONER: Versus RESPON&ENTS: Ajit Pramod Kumar Jogi Agcd about 58 yeors, S/o Late KP. Jogi, Resident of Karuna, Civil Lines, &istnct: Rdpur (C.S.). 1, Union of India, Tnrough Secretary, AAinistry of Home, ^overnment of India, New belhi. 2. birector, Central Bureau of Investigation, CGO Complex, Lodhi ftoad, New Deihi. 3. Superintendent of Po'ice, Central Bureau of Investigation, uistrict: Rdpur, Chhattisgarh. 4, State of Chhattisgarh through its Home 5ecretary, ©overnment of Chhatrisgarh, uistrict ftdpur. 5. State Anti Corruption Bureau, Through Superintendent of Poiice, District: Raipur, ChhGttisgarh. Present: &r. Rajendra Singh, Senior AdvocGte with Shri Vivek Tankha, Senior Adyocate, Shri V.D. Bajpayee, Ssnior Adyocate, Shri bhirendra Mishra, Advocate, Shrl Pratul 5handilya, Advocate, Shri Amit Shrivastava, Advocate and Shri Vivek SharmG, Adyocate on behalf of the petitioner. Shri Vinoy Harit, Senior Centrol fioyernment Stonding Counsel with Shri Ramakant Mishra, Additionai Standing Counsei for Union of India/respondent Nos. 1, 2 and 3. Shri Ravish Agrawal, Advocate 6eneral with Shri Sunil SinhQ, Additional Advocate ^eneral and Shri Sanjay K. Ayrawa!, &eputy- Advocate ^enera! for the State- Shri Prashant Mishra, Advocate for the intervener, \1 ^ >-i.. • c. •' GR&ER (Passsd on (^A* February, 2004) As per L.C. Bhadoo J. The petitioner who is the Ex. Chief Minister of the State of Chhattisgarh has preferred this writ petition under Articies 226/227 of the ConstitutiQn of India whereby he has challenged the legality, correctness and auThenTiciTy of regisTrotion of F.I.R. KC. 7(A)/2003 dated 9-12-2003 for The commission of the offences under Sections 7, 12, 13 (1) (d), 13(2) and 15 of the Prevention of Corruption Ac-t, 1988 and^ynder Section 120-B ond Section 34 of the Indion Penai Code and for quash^wff of the same on the ground that the same does not discloss any cognizabte offence warranting further inqujry and investigation. 2. Brief facts giying rise to filing of this petition are that the genera! eiections for the Legislative Assembly of the State of Chhattisgarh was held on 1st &ecember 2003 crid the resuits of the same were deciared on 4th December 2003. The petitioner at the relevont time wos the Chief Minister ana tiii the new Chief minister was sworn in on 7t December 2003 the petitiorser was wo,Mkin9 as Acting Ghief rAAinister, After decbring the resu!ts on 4 December 2003, the Indian National Congress secured 37 seats, Bhartiya Janata Party secured 50 seats, B,S?. secured 2 seats and the NQtional Congress Party secured 1 seat. 3, As per the First Information Repor-t (AnneAure-R/1) iodged on 7-12-2003 o.t 2 o.m by Shri Vjrendro. Pandey o.t the Police Station A.nti Corruption Bureau, Raipur. The Acting Chief Minister Shri Aj'it Jogi, his son \^)> r ^-' Amit Jogi and Shri B.R. Khunte, Member of Parliament had entered into a crimina! conspiracy to spiit the newly eiected /AvVL.A,s of BhQrtiya Janata Prxrty by giving them o. bribe of fts.45 lakhs and in furtherance of that conspiracy on 5-12-2003 in the aftemoon he received the teiephonic cdl from Shri B-R. Khunts that if efforts arc made, Shri Ba!irGm Kashyop can bccome the Chief Minister and in this respect Shri Ajit Jogi can also render his help. When he enquired from Shri Khunte how it is possible then he repiied that if out of the newiy B.J,P. AA.L,A.S six AA,L.A,s break the party then AAr, Jogi wi!l ensure thaT Those AA.L.A.s receive The support of 37 M.L,A.s of Congress, 2 M.L.A.s of Q.SP. ond one M.L.A. of Nationa! Congress Party. Then he asked him to telephone after two hours ond after two hours Mr- Khunte agdn teiephoned him then he again asked AAr, Khunte to telephone in the night, but he expressed his inabitity to tetephons in the nsght and said that he would telephone in the morning. In the meantime, he instailed the voice-recording instrument on his teiephone number 2442766 and when in the rriorning /V\r. Khunte telephoned him, his conversation WQS recorded. From hi^ conyersation with mr* Khunte, he couid sense and assess that they have conspired to break some B.J<P< M,L.A.3 by 9ivip.9 them bribe to ensure that with the support of Itiose M.L.A.s Baliram Kashyap is stalled as Chief Minister^ In that respect Mr\ Khunte assured him the support of Mr\ Ajit Jogi and after his taik with Khunte, Mr. Jogi Giso telephoned him oh the sarne number and the conversation with Mr, A jit Joqi has also been recorded in the cassette which he was producing. During the teiephoriic conversation, Mr* Jogi assured hiiTi of political help as well as financial help and he said that he would be sendina fts.15-20 iakhs through Mr< Khunte and in that sequence after two hours Mr< Khunts telephoned hsm and informed that fts.20 lakhs has reached to hsm, hs wouid be sending along with his son BunTi. After reaching near.The Mining Department buiSding he teiephoned from his telephone,jiumber 5031201 and ofter some time Bunti come in an ambGSsador car o.ndCln the reor seat of the ambassador car there were two bags one of which was biack coiour and the other was white. Those bags were taken by his driyer oind kspt in h|s yehicle. Thereafter he inforlmed the Central Leaders about the receipt of the money ^..'rl and about the conversation recorded on the cassette. They advised him to proceed further, Thereafter he was continuousiy in touch with Mr. Khunte over telephone and he informed Mr. Khunte thQt AAr- BalirQm Kashyap would be coming at about 7-8 in the evening and on his arrivai the programme wouid be crranged for the mseting with Mr. Jogi. At about 7 pm Baiiram Koshyap came to him and he informed that on the way he had a talk with AAr. Jogi and Mr. Jogi assured him that he wouid heip him in becoming the Chief Minister* 4, Mr. Baliram Kashyap informed him that after reaching Raipur he would taik to Mr\ Jogi, Thereafter he taiked to AAr. Jogi and AA\r. Jogi informed him that AA,r. Som Prakash 6iri would tel! us as to at which place they wi!! meet and uitimateiy it was decided to meet at an isobted piace near Radiant Schooi. Mr. Jogi inforsricd that Mr. Som Prakash G\ri wouid be with them who wouid meet at Bhagat Singh Chowk, At about 8-9 pm in the night he along with Baiiram Kashyap, Mr. Som Prakash G\ri, the body guard of Mr. Kashyap and his driyer started by a Scorpio vehicle of Baliram Kashyap, After some time the vehicie was parked on The Uperwara road. Thereafter one car came from behind, stopped and proceeded ahead. After 15-20 minutes one Tata saphari, black colour cor, without number come, thot car olso went ohead us, Mr. Jogi was in that car. Tnat car stopped after some distance and he aiong with Mr. Ba!$ram Kashyap ond Som Prakash Q\ri a!so boarded that car and sat with AAr* Jogi on the rear seat and the conversation took place in the vehicle. During that conversation Mr. Jogi gave a letter of support. Our yehic!e was foiiowing the yehicte of Mr. Jogi on.d while returning AAr. Jogi stopped the car nnd they aiighted from the car. Mt that time one boy known to Mr. Jogi came in anothcr vehicle ond hc came nccr Amit Jogi to whp?r^h€ said that th©goods which are kept in your car give to them and thofi^goods were Rs.25 lakhs. That boy sat in our vehicie and the vehicie of Mr. Jogi ieft the scene. He aiong with Baliram Kashyap and that boy started in their yehicle and on Uperwara Turn one whiTe fong car was standing which was withouT number, near that car boy stopped th©vehicie and a b!ue bag which was kept on the rear side, about that he said that Rs.25 lakhs are in this bag and Mr. Jogi left ^ Mr. 6iri at that place. He sat in their vehicle. They left the black car cind directly came to the office where tihe press conference was arrGnged, Since Rs.45 lakh^ were with them, therefore, there was a question of security, 50 he disciosed that fact in the conference and that is why he is submitting with this report the cash amount, cassettc and the tetter of AAr. Jogi Gddressed to His Excellency. the fiovernor. Mr. Jogi who is a public servant, he in conspiracy with AAr. Khunte arranged for the bribe for taking the politicai advantage in order to ensure that AA,r. Kashyap is statkd as Chief AAinister. 5, On receiving this report the Inspector of Poiice, Anti Corruption Bureau, Chhattisgarh, Raipur registered F.I-P- under Sections 13(1) (d), 13(2)/ 12 and 15 of the Prevention of Corruption ^ct, 1988 and Sections 34 and 120- B of the Indian Pena! Code. Thereafter consequent upon the consent notification of the Government of Chhattisgarh dated 8+ December, 2003 the Cabinet Secretariat, Goyi. of India vide its notification aated 9-12-2003 transferred ths investi9ation of the case F.I.K. No.9/2003 datsd 7-12-2003 To CenTral Bureau of InvesTigaTion, 6, As per the ayerment made in para 5,2 of the petition, *t has been menTioned That the peTiTioner at the outseT denies the auThenticity and correctness of the alieged FJ.ft. iodged against him and others wishes to chaitenge the report as not disclosing any cognizable offence warranting further investigation/ inquiry or tnai as per the provisions of the Code of Crimsrsa! Procedure and it .has bssn mentioned that ths facts do not disc!ose the commission of the offences under the aforesaid sections, It has further been mentiohed that Mr» Jogi, his son Amit Jogi, Shri Khunte by themseiyes could not hove been con^pired to corry out on illegal act or use illegal means for the furtherance of the iiiegai act without the genuine participation of Shri Vlrendra Pondey ond BaJiram Kashyap, The petitioner admittedfy hcd no contGct with the alleged newly elected BJP Legislatures, nor any attempt was made by the petitioner to reach these M.L.A.s by or through Gny overt or coyert method. ^' y..,. 7. In the absence of a criminal conspiracy between Mr. Virendra Pandey, Baiiram Kashyap and the petitioner no such aiieged offence could be planned, attempted or finally executed. The FJ-ft. disctoses no such agreement and in fact contains information of a stage-managed show. A complaint of an instigated or a stagcd offsnce ccnnot bc construed as constituting the primary elements of the offence of criminal conspiracy. To constitute the basic eiements of Section 7/11 read with Section 12 of the Prevention of Corruption Act a conspiracy to CQmmit the substantive offence under SectiQn 7/11 was necessary* AT no point of Time The compiainanT nameiy, Virendra Pondey and 3a!iraiTi Kashyap were in crimina! conspiracy with the petitioner and some others. In fact, according to ths complaint, it WGS trick bring pbyed upon the petitioner, In law the petitioner cannot commit the alieged offences based upon an allsged and ilbgitimate trap of ths compbinant trickster. 8. The contents of any such FJ.R. wi!! not satssfy the elements of eyen a prima facie offence under Section 7/11 read wiTh SecTion 12 of the Prevention of Corruption Act. The F<I*R< does not disclose the basic facts and bosic elements of the cognizable contours of Section 13 (l)(d), 13(2) reod with Section 15 of the Prevention of Corruption Act. Uitimateiy, it has been prayed that the respondents be directed to produce the F-I-R*, cass diary and records pertdning to the case and writ of certiorari or any other appropriate writ or direction be issued to quash -riie Fir-st Informatiori Report dated -5/6t November 2003 lodged by Mr. Virendm PoLndey a<s n.ot di3clo-sin9 any offence and consequentiy warranting no further investigation under the provisions of &e!hi Poiics Establishmsnt Act. 9. Preiiminary return of objections has been fiied on behaif of respondents 1 to 3 in which it has been mentioned that respondent Nos. 2 and 3 are responsible officers of the Prime Crime Investigation Agency of the country, The reputation of tiiis investiyating agency as a thoroughly professiona!, impartial and competent Qgency is common knowledge and the hs'ghest degree of trust of the general pubiic it commands does need no proof, w .J^ It has further been mentioned that the documents sought to be calied by the petitioner for perusai of this Court ar'e of highly classified nature because looking to the -seriou$ness of the crime and likelihood of the involvement of extremely infiuentiai persons in the same, at this stage, when the invcstigGtion in respect of the sarriC is continuous!y going on, even a slightest leakage of the investigation and the finding of respondents can cause extreme prejudice to the cause of Jus-tice* The petitioner has fdled to plead any legally sustainabk ground in fayour of his contentions that the FJ.&. does not disclose any prima facie cause of action. The FJ.R. contains all Th© \ngred\ents of the crimes which have been reported to have been committed by the compldnant and the.re are sufficient grounds for proceeding with the investigation in accordance with due process of !aw. As iong as the inysstigations are not complete cnd the outcome of ths same is not finalized it is quite premature to speculate or have apprehensions without any base at this stage, In case, as a resuit of the jnvestigations when they are completed, the answering respondents do not find the ingredients of the alleged crimes against the petitioner or against any of the suspects the answering respondents sha!l b©bound to submit their report accordingly. 10, It is further submitted that even if the answering respondents after compbtion of ths investigation are of the opinion that the crime has been committed and there are grounds for proceeding against any or ail of the suspects, the finGi report prepared by them shai! have to undergo judicia! scrutiny in accordanc-e with the proyisions of bw, The petitioner could haye moved unaer Section 462 of the CrP.C, and he, by not having done so, is trying to invokc th©©xtraordirsary writ jurisdiction of this Court. Thc petitioner's intention does not seem to be bonafide because by doing so he is trying to get the documents rebted to the investigation being made pubiic, 11. Reply has also been filed on behalf of respondents 4 and 5 to the same effect. 12. I have heard the learned counsel for the parties. \^ ^ 13. As far as the maintainGbility of this petitipn under Articles 226/227 of the Constitution of India is concerned, the Hon'bie Apex Court in the matter of M/s. Pepsi Foods Ltd. and Qnother V. Spe-ciQl JudiciQl MQgistrcste arsd others reported in 1998 SUPREME COu'KT 128 has heid that: "The High Court can exercise its power of judicial review in criminai matters, Nomenciature under which petition is filed is not quite rebvont and that does not debar the court from exercising its jurisdiction which otherwise it possesses unless there is specia! procedure prescribed which procedure is mandatory. If in a case the court finds that the appelbnts couid not invoke its jurisdiction under Article 226, the court can certdn!y treat the petition one under Article 227 or Section 482 of the Code." Th© Hon'bie Apex Court in the matter of S,N. Shormo vs. Bspen Kumar Tiwan and others reported in A1R 1970 SC 786 has held that "the High Court can inyoke the jurisdiction under Articie 226 of fne Constitution, if the High Court CQnyinced that the power of inyestigation has been exercised maiafideiy. Therefore, as per the settled law for quashing the FJ.R. which does not disciose the prima fade cognizabie offence the writ petition con lie under Articte 225/227 of th©Constitution of India, Eyen the jurisdictjon under Section 482 of the Cr.P.C. can also be invoked. Therefore, to this extent, I do not find any substance in the objection raised by the iearned counsel for the respondents. 14. Dr. Rajendra Singh, the iearned Senior Advocate with Shri Vivek Tankha, Senior Adyocate submitted that a bare reading of the F<I.R. prima facie does not disciose The commission of the offence punishabie under Sections 13(l)(ci), 13(2), 12 osid 15 of the Prevention of Corruption Act and Sections 34 and 120-B of the Indian Penal Code. Learned senior counsei ^•- further submitted that even on the date of the incident the M*L,A.s were new!y eiected, but so far- they had not taken oath, therefore, leyally they were not public servant. A-s per the allegations in the F.I-R-, eyen it is taken as it is, on the invitation of Mr. Virendra Pandey compiainant the petitioner contactsd him but Mr< yirendra Pandey not being a pub!ic servant, therefore, the question of giving bribe to him does not come within the definition of Sections 13(l)(d), 13(2), 12 and 15 of the Prevention of Corruption Act. MoreQver, the conyersat»Qn of AAr, Khunte and AAr?andey WQS as per the aiiegaTions in The FJ.ft. was inviTed. He himself had noT made any aTTempT To bribe/therefore, for constituting the offences of Anti Corruption Act/th© essential ingredients in the FJ.R. are missing. As far as the commission of the offence punishable under Section 120-B of the IPCis concerned, in order to constituts the offsnce thsre must be conspsracy between the two psrsons to commit iilegal act or the act which is not legal by iJleqal means, such an agreement is designated as cr-iminai conspiracy, As per the aliegations in the FCR there wa3 conyerso+ion between Mr. Khunte and AAr. Virendra Pandey. Mr. Khunte assured to Mr. Pandey that Mr. Jogi wouid heip him in forming the 9overnment by AAr. Baliram Kashyap, Th©refore,the essentia! ingredients cre missina in this case in order to constitute the criminal conspiracy* The petitioner was never party to enter into a criminal conspiracy or to commit Qny i!!egal act and there are no allegations that Mr. Pandey, Mr. Baliram Kashyap and the petitioner entered into a criminai conspiracy rather the petitioner was roped in a stage-managed show* Therefore, if the FJ^. is taken on its face value no cognizable offence has been committed by the petitioner. Therefore, F<I*R< shouid be quash^d* 15. On the other hand, Shri Ravish Agrawal, learned Advocate General and Shri Vinay Harit, Senior Centrai ^ovt. 5tanding Counsel argued that as per the FJ.R. AAr, B.R. SChunte, the petitioner and his son entered into a crimina! conspiracy to bribe The newiy elected B.J.P. M.L,A.s Through Virendra Pandey in order to ensure that they break away from the Bhartiya JanGta Porty ond support the candidature of.Mr. Baliram Kashyap os the Chief Minister. In u'. furtherance of that conspiracy AAr. B.R. Khunte contacted to AAr. Virendra Pandey. Even the petitioner-contacted to Mr. Virendra Pandey oyer telephone nnd in the bter part they met at a fixed pbc-e, sat in a vehicte ond the petitioner honded over the letter addressed to His Exceiiency, the <5overnor of Statc of Chhattisg^rh assuring the support of candidaturc of Mr, Baiiram Kashyap as the Chief Minister. All this involvement of the petitioner shows that he was- a party to the conspiracy. They further argued that as far as the question of newly elected AA.L.A,< were not public seryant is concerned, as per rule 66 of ConducT of EiecTion ftuies, 1961 a cerTificaTe was granTed To the new!y eiected ML.A.s that they have been eiected as the members of the State Le-gislative Assembly and by that itself they became the M.L.A.s and pubjic servant, therefore, prima facie the offence is made out, They further subsr.itted that the matter is at the initial stage and the Courtjs requirsd to jook into the fact that whether as per the ailegations in the F.I.R. a eognizabie offence is made out and if the cognizabie offence is made out then the Police i-5 bound to register the FJ.ft. under Section 154 of the Cr.P.C. and thereafter to proceed with the investigation, The Investigating Agency is at the stage of coibcting the evidence and, at this stage, the irsvestigation cannot be interfered by the Court, 16, In ordsr to cppreciate the argumsnts advonced by the learned counss! for the parties, if we look into the relevant provisions of the Criminai Procedure Code, Seetion 2 (h) of the Cr,P,C. defines that "investigation" includes al! the proceedings under thi-s Code for the coliection of eyidence conducted by a poiice officer or by any person who is authorized by a AAogistrate in this b©ha!f. It cnds wsth the formation of the opinion as to whether on the material collected, there is a case to place the accused before a Magistrate for trial and if so, taking the necesSary steps for the same by filing of a charge sheet under Section 173. Chapter-XII of the Code of Criminal Procedure deais with "Information to The Poiice and Their powers to investjgate," Section 154 provides that every information relating to the commission of a cognizable offence, if given orally to an officer in charge of a '\»- ^< poiice station, shall be reduced to whting by him or under his direction, and the substance thereof sha!! be entered in a book to be kept by such officer in such form as the Sto+e ©overnmentmoy prescribe in this behalf. Sub-section (1) of Section 156 envisages that any officer in charge of a poiice station may, without the ordcr of a magistrate, investigate any cognizabie offencc 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 chapter XTEI. Sub sectiQn (2) of this Section proyides that no proceeding of a poiice officer in any such case shaJi aT any stage be caiied in question on the ground thaT the case was one which such officer w<ss not empowered under this section to investigate.. 17, Section 157 iays down that if, from information received or otherwise, an officer in charge of a police station has "reason to suspect the commission of an offence" which he is empowered under section 156 to investigate, he shal! proceed in person or sha!! depute one of hjs subordinate officers to proceed to The spoT To inyesTigate The facts and circumstances of The case and, if necessary, to take measures for the discovery and arrest of the offender. Sections 160 to 163 dea! with the power of the police officer making an investigation under chopter XII to require the attendance of ali witnesses, and their exominatson. Sections 165 and 166 confer power upon a police officer making investigation to search or cause search to be made. Section 169 authorises a poii-ce officer to reiease a person fro'rn custody on his executing a bond, to appear, if and when so required, before n magistro+e in case upon an investigation under chapter XII it appears to the officer in charge of the po!icc stotson that therc is not sufficient evidence or reasonable ground of suspicion to Justify the forwarding of the accused to a magis-trate, Section 170 empowers the officer jn charge of a police station to forward the accused under custody to a competent magistrate or to take securit/ from The accused for his appearance before the magisTrate in case where the offence is baiiabte, if after investigation it appears that there js sufficient evidence or reasonable around for doing so. Section 173 and sub \^' M section (2) thereof tays down that after the investigation is completed, the officer in charge of the police stution shail forward