CWP No.6414 of 2010 ( 1 ) In the High Court of Punjab and Haryana at Chandigarh Date of decision: 11.11.20111 Sarbdeep Singh Virk Vs. State of Punjab and others CORAM: HON’BLE MR. JUSTICE PERMOD KOHLI Present: Mr.Sanjiv Bansal, Advocate,for the petitioner. Ms. Reeta Kohli, Additional Advocate General, Punjab, for the respondents. PERMOD KOHLI, J. Petitioner, Sarbdeep Singh Virk, I.P.S. (Retd.) has filed this petition invoking jurisdiction of this Court under Articles 226 and 227 of the Constitution of India, seeking quashment of memo No.249/PA/DVB dated 07.09.2007 along with draft FIR (Annexure P-21) as also the quashment of FIR No.10 dated 08.09.2007, under Sections 168, 169, 216, 218 and 120-B of the Indian Penal Code (for short IPC) read with Section 7, 13 (1) (d) (e) and Section 13 (2) of the Prevention of Corruption Act, 1988 (for short PC Act), registered at Police Station, FS-1 Vigilance Bureau, Mohali (Annexure P-19)and various ancillary reliefs. The petitioner was a Member of the All India Service (Indian CWP No.6414 of 2010 ( 2 ) Police Service) belonging to 1970 Batch of the Maharashtra Cadre. He has served in the State of Punjab in various capacities, such as, the Senior Superintendent of Police, the Deputy Inspector General of Police, the Inspector General of Police, the Additional Director General of Police and finally as the Director General of Police during various spells right from the year 1984 till 2007. An FIR No.10 dated 08.09.2007 was registered by the Police at Police Station, FS-1, Vigilance Bureau, Mohali (Punjab) under the above mentioned sections of the IPC and the PC Act, respectively, containing various allegations. The same are being summarized hereunder:- (a) While serving as a Government servant in the State of Punjab, the petitioner indulged in business of property dealing, sale and purchase of plots and colonization. He entered into a business deal with one Shri Avinash Singh Grewal in respect to 15 acres of land possessed by Shri Avinash Singh Grewal at Zirakpur (Mohali). Part payment of Rs.6 lacs was made to said Shri Avinash Singh Grewal vide cheque from the joint account of the petitioner with his wife and daughter in the Times Bank, Sector-08, Chandigarh. He developed and sold plots in this colony and received huge money both in black and white in various accounts in his own name, in the name of his wife, brother, daughter etc. Huge transactions in the range of Rs. 3 to Rs.5 lacs each were made in these accounts between September, 2000 to August, 2007. Deposits and withdrawal are over Rs.3 crores in the bank account of the petitioner. Similarly, in the account of his brother Rajdeep Singh Virk, there are deposits and withdrawals to the tune of about Rs.3 crores between the period 2003 to August, 2007. CWP No.6414 of 2010 ( 3 ) (b) The petitioner purchased lands near Zirakpur and illegally constructed a Resort by investing ill gotten money where a marriage palace, restaurant, night club etc. have been raised illegally during the period 2004 to 2007, while working as the Additional Director General of Police and the Director General of Police. Thus, he has caused a huge loss to the State exchequer and the Punjab Urban Development Authority. (c ) The petitioner got approved a Mega Project in villages Nabha and Chhat (near Zirakpur) in the year 2006 fraudulently by abusing his position as the Director General of Police, Punjab, by including village Chhat within the Municipal Limits of Zirakpur. (d) During the years 2002-2007, the petitioner served as the Additional Director General of Police/the Director General of Police in the State of Punjab and amassed property disproportionate to his known sources of income. This property includes House No.1068, Sector 27-B, Chandigarh, a Flat in Sector 39, Chandigarh, Chimney Heights Resort, Zirakpur on about 14 acres of land, about 10 acres of land for a Mega Project, called, Chandigarh International Convention Center, about 27 acres of land of village Bakarpur, about 7 acres of land on Landran road in village Sekhan Majra, in District Mohali, in the name of his wife. The petitioner has abused his official position and men power of the Police Department to manage his business. Properties of the petitioner in his own name and in the name of his relatives values more than Rs.100 crores. (e) Fraudulently grabbing of property about 4 acres of land of War Widow, namely, Smt. Mohinder Kaur, situated in the outskirts of Chandigarh for which he paid Rs.50 lacs to one Vijay Pal Singh @Dimpy from the account of his wife. The petitioner acquired a benami house in CWP No.6414 of 2010 ( 4 ) Kasauli in Himachal Pradesh in the name of Varinder Singh son of Vijay Pal Singh @ Dimpy. (f) The petitioner kept a private group of former terrorists to grab and retain the ill gotten properties. Name of one of the former terrorists i.e. Sukhwinder Singh @ Sukhi resident of Jalandhar, is mentioned. (g) Further allegation is that the petitioner by abuse of his official position, got the terrorists released even falsely showing to have escaped from the custody of the police. (h) By the abuse of the official position, the petitioner purchased security equipment's worth crores of rupees from Anurag Saxena and take huge amount of illegal gratification etc. Challenge to the FIR and criminal proceedings is three folds:- (1) Criminal proceedings have been initiated on account of malafides which are attributed to respondent Nos.3 and 5 to 9. Respondent Nos. 5 and 6 are the Chief Minister and the Deputy Chief Minister of the State of Punjab, whereas respondent No.3 is the Principal Secretary, Home. Respondent Nos. 7 and 8 are the Directors, Vigilance Bureau, Punjab and respondent No.9 is a police official. However, this respondent was subsequently deleted from the array of the respondents vide order dated 08.07.2010. CWP No.6414 of 2010 ( 5 ) (2) To support the allegations of malafides, it is alleged that when the petitioner was serving as the Director General of Police, in December, 2006, he was approached by some Shiromani Akali Dal (for short SAD) leaders to pass on election related information to their party for which the SAD leaders after coming to power would look after the interest of the petitioner. It is alleged that on refusal of the petitioner to do so being violative of the Civil Services Ethics, the action of the petitioner was not liked by the SAD leaders and they started leveling false and baseless allegations against him. It is further alleged that a complaint was lodged with the Election Commission for his removal as the Director General of Police on the allegations of helping the ruling party i.e. Congress, at the relevant time. The Election Commission, initially, rejected the request of the SAD leaders, however on a fresh complaint that the family of the petitioner was benefited by the government by clearing a Mega Project under the Industrial Policy of the State, the Election Commission directed the relieving of the petitioner from the charge of the Director General of Police. The petitioner, accordingly, sought termination of his deputation with the State of Punjab and repatriation to Maharashtra, his parent cadre, vide his letter dated 05.03.2007, to the Union Home Minister. CWP No.6414 of 2010 ( 6 ) The petitioner further alleged that apprehending implication in false cases under the influence of SAD leaders, he again requested the Union Home Secretary and the Union Home Minister, for his repatriation. At his request, the government of India, ordered premature termination of the petitioner’s deputation with the State of Punjab vide letter dated 10.04.2007. On coming to know of the repatriation of the petitioner by the Government of India, Punjab Government which by that time was taken over by the SAD after elections, suspended the petitioner from service vide order dated 04.04.2007. It is alleged that this letter was ante dated. It is further alleged that the Punjab Government was required to convey the suspension of the petitioner to the government of India, the petitioner being All India Service Member as per All India Service (Disciplinary and Appeal) Rules, 1969. It is alleged that prior to that, the petitioner had sought Earned Leave from 05.03.2007 to 31.03.2007 which was sanctioned by the Punjab Government, Department of Home Affairs vide order dated 10.04.2007, wherein no mention was made of the suspension of the petitioner on 04.04.2007. It is, accordingly, stated that order of suspension of the petitioner was ante dated. The petitioner reported for duty at Maharashtra on 27.04.2007, but was put on compulsory waiting due to non availability of any post in the grade of the Director General of Police. It is also alleged that a charge sheet dated 20.04.2007 was CWP No.6414 of 2010 ( 7 ) served upon the petitioner vide communication dated 21.08.2007 on the petitioner’s residence at Chandigarh even though the petitioner had shifted to Mumbai on repatriation. Subsequently, Hon’ble Mr. Justice S.K. Jain (Retd.) was appointed as the Enquiry Officer. Regarding registration of the FIR, it is stated that respondent Nos. 5 to 7, are all acting in concert to teach a lesson to the petitioner for not following the ideology of the SAD leaders. It is also stated that respondent No.7 prepared a draft FIR which is unknown to law. This draft FIR was sent to Shri Surinder Pal, Senior Superintendent of Police, Vigilance Bureau, for registration of the case. The petitioner has further alleged that all the properties stated to be acquired by him, were duly reflected in his property statements filed from time to time. The petitioner was arrested on 09.09.2007 from Maharshtra Sadan, New Delhi, where he was staying. He was taken to Punjab without any arrest warrants or transit remand. He was not produced before the nearest Magistrate nor guidelines laid down by the Hon’ble Supreme Court in D.K. Basu Vs. State of West Bengal, (1997) 1, Supreme Court Cases, 416, were observed. It is further alleged that son of the petitioner sought information from Delhi Police under the Right to Information Act and he was informed that Delhi Police was not informed regarding the arrest of the petitioner from Delhi. The petitioner was, however, granted bail by the High Court on 31.10.2007. It is further the case of the petitioner that the CWP No.6414 of 2010 ( 8 ) Deputy Chief Minister, State of Maharashtra, addressed a letter dated11.10.2007 to the Union Home Minster against the illegal action of the Punjab Government. Another FIR No.98 dated 13.03.2007, under Sections 420, 465, 467, 468, 471 and 120 of the IPC was registered at Police Station Kharar, against the petitioner, Vijay Pal Singh @ Dimpy and others, on the allegations that a sum of Rs.50 lacs had been advanced by the petitioner to Vijay Pal Singh @ Dimpy for grabbing the land of War Widow. Vijay Pal Singh was arrested and remanded to police custody. Apprehending arrest, the petitioner moved anticipatory bail application before the learned Sessions Judge, Rupnagar, who gave a direction to give two days advance notice before the arrest of the petitioner. It is further stated that Vijay Pal Singh was produced before the Magistrate on 23.03.2007. An application was made by the Investigating Officer that no case was made out against him. He was discharged on that basis. It is further stated that initially the petitioner was not arrayed as an accused in FIR No.98 dated 13.03.2007, but later the petitioner was made as an accused in the said FIR, on the allegation that his wife advanced a sum of Rs.50 lacs to Vijay Pal Singh @ Dimpy. The petitioner challenged registration of FIR No.10 as well as FIR No.98 in proceedings under Section 482 of the Code of Criminal Procedure through Criminal Misc. No.54610-M of 2007 and also asked for investigation by the CBI or any other independent agency outside the control of the State of Punjab. This petition was decided by the High Court CWP No.6414 of 2010 ( 9 ) vide order dated 17.01.2008. While refusing to hand-over the investigation to CBI, the High Court directed that a Special Investigating Team be constituted. The High Court also passed certain strictures against the Investigating Agency. The petitioner filed SLP (Criminal) No.6997 of 2008 before the Hon’ble Supreme Court of India against the refusal of the High Court to hand-over the investigation to the CBI which is still pending before the Hon’ble Supreme Court. The High Court also disbanded the Special Investigating Team appointed by the Government. Pursuant to the order of this Court, Shri PK Sinha was appointed as the new Investigating Officer. After four days, he was replaced by Shri SK Asthana, without any reason or justification. It is alleged that Shri SK Asthana was facing several serious charges including under Section 302 of the IPC. The petitioner even made allegations against Shri SK Asthana who submitted a preliminary report to the Principal Secretary (Home), Punjab, against the petitioner on 19.02.2008. On the basis of the preliminary report, order of suspension of the petitioner was passed. It is further alleged that the petitioner has challenged the order of suspension before the Central Administrative Tribunal, Chandigarh, and the same was quashed. The Central Administrative Tribunal, Chandigarh Bench, suspended the order on 03.04.2008 and directed the Government to transfer the record of Disciplinary proceedings to the Central Government for taking a final decision. The Central Administrative Tribunal also upheld the repatriation of the petitioner to Maharashtra. The order of the CWP No.6414 of 2010 ( 10 ) Central Administrative Tribunal was challenged before this Court and the operation of the order of the Central Administrative Tribunal was stayed. Order of this Court was challenged before the Hon'ble Supreme Court. Vide judgment dated 16.05.2008, the Hon'ble Supreme Court, reversed the said order passed by the High Court holding that a competent authority to take disciplinary action against the petitioner, was the Central Government allowing the State of Maharashtra to post the petitioner as the Director General of Police, where upon the petitioner was appointed as the Managing Director of Maharashtra Police Housing and Welfare Corporation on 31.05.2008. The Union of India, however, referred the matter back to the State of Punjab on 08.06.2006 stating that the competent authority was the State of Punjab. The petitioner claims to have initiated contempt proceedings against the Union of India as well as the State of Punjab which are pending before the Hon’ble Supreme Court. In the meanwhile, the Enquiry Officer was appointed in the disciplinary proceedings initiated against the petitioner. The petitioner challenged the enquiry order before the Central Administrative Tribunal, Mumbai Bench. The order of the Central Administrative Tribunal was challenged by the State of Punjab before the Bombay High Court which was allowed holding that the Central Administrative Tribunal at Mumbai had no jurisdiction. The judgment of the Bombay High Court was challenged by the petitioner before the Hon’ble Supreme Court wherein status-quo order has been passed and the matter is still pending for adjudication. It is alleged that Shri Anurag Saxena who was co accused with the petitioner in FIR No.10 dated 08.09.2007, filed Crl. Misc. No.6492-M of 2008 in this High Court. During the pendency of the proceedings before this Court, the State filed an affidavit revealing that CWP No.6414 of 2010 ( 11 ) payment of equipments which were approved by the petitioner was about Rs.65,000/- only. It was further stated that same were approved on the recommendations of Shri SK Asthana who was the Investigating Officer. The High Court on 31.01.2009 ordered removal of SK Asthana as the Investigating Officer. The order of removal of SK Asthana was, however, upheld by the Hon’ble Supreme Court in an SLP filed by the State of Punjab. It is, accordingly, argued that all these facts indicate that the criminal action against the petitioner is wholly mala fide at the instance of SAD leaders on account of refusal of the petitioner to oblige the SAD leaders while the petitioner was posted as the Director General of Police, Punjab, when the Congress Party was in power in the State of Punjab. The second contention of the petitioner is that the allegations against the petitioner are contrary to official record. It is contended by Mr. Bansal that the petitioner has filed Income Tax Returns and the Property Returns which are deemed to be official record and the allegations against the petitioner are falsified if the official record is allowed to be produced and considered by this Court. Mr. Bansal, learned counsel appearing for the petitioner, has referred to various judgments in support of his pleas raised in this petition. The scope of judicial intervention in exercise of inherent jurisdiction of this Court under Section 482 of the Code of Criminal Procedure has been considered by the Hon'ble Apex Court in various CWP No.6414 of 2010 ( 12 ) judgments. In R.P. Kapur Vs. State of Punjab, A.I.R. 1960, Supreme Court, 866, Hon'ble the Supreme Court summarised categories of cases where proceedings should be quashed and held as under:- “7. (i) Where it manifestly appears that there is a legal bar against the institution or continuance, e.g. want of sanction; (ii) where the allegation in the first information report or complaint taken at its face value and accepted in their entirety do not constitute the offence alleged; (iii) Where the allegations constitute an offence, but there is no legal evidence adduced or the evidence adduced clearly or manifestly fails to prove the charge.” In subsequent judgment in the case of State of Haryana and others Vs. Ch. Bhajan Lal and others, AIR 1992, Supreme Court, 604, the Hon'ble Apex Court laid down the following situations where the inherent jurisdiction needs to be invoked:- “(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 CWP No.6414 of 2010 ( 13 ) Report and other materials, if any, accompanying the F.I.R do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of Magistrate within the purview of Section 155(2) of the Code. (3) Where the uncontroverted allegations made in the F.I.R. 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 F.I.R. 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 F IR 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 concerned Act (under which a criminal proceeding is instituted) to the CWP No.6414 of 2010 ( 14 ) institution 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. (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 S. Khushboo Vs. Kanniammal and another, 2010 (2) R.C.R. (Criminal), 793, wherein it has been held as under:- “12. In order to decide this case, it will not be proper for us to either condemn or endorse the views expressed by the appellant. When the criminal law machinery is set in motion, the superior courts should not mechanically use either their inherent powers or writ jurisdiction to intervene with the process of investigation and trial. However, such forms of judicial review can be exercised to prevent a miscarriage of justice or to correct some grave errors that might have been committed by the subordinate courts.” Learned counsel has further placed reliance in the case of R. CWP No.6414 of 2010 ( 15 ) Kalyani Vs. Janak C. Mehta and others, (2009) 1, Supreme Court Cases, 516, wherein it is held as follows:- “15. Propositions of law which emerge from the said decisions are : (1) The High Court ordinarily would not exercise its inherent jurisdiction to quash a criminal proceeding and, in particular, a First Information Report unless the allegations contained therein, even if given face value and taken to be correct in their entirety, disclosed no cognizable offence. (2) For the said purpose, the Court, save and except in very exceptional circumstances, would not look to any document relied upon by the defence. (3) Such a power should be exercised very sparingly. If the allegations made in the FIR disclose commission of an offence, the court shall not go beyond the same and pass an order in favour of the accused to hold absence of any mens rea or actus reus. (4) If the allegation discloses a civil dispute, the same by itself may not be a ground to hold that the criminal proceedings should not be allowed to continue. 16. It is furthermore well known that no hard and fast rule can be laid down. Each case has to be considered on its own merits. The Court, while exercising its inherent CWP No.6414 of 2010 ( 16 ) jurisdiction, although would not interfere with a genuine complaint keeping in view the purport and object for which the provisions of Sections 482 and 483 of the Code of Criminal Procedure had been introduced by the Parliament but would not hesitate to exercise its jurisdiction in appropriate cases. One of the paramount duties of the Superior Courts is to see that a person who is apparently innocent is not subjected to persecution and humiliation on the basis of a false and wholly untenable complaint.” From the ratio of the aforesaid judgments, it emerges that the scope of interference in exercise of inherent powers of this Court is limited and confined to the various situations noticed by the Apex Court in the above mentioned judgments. The allegations against the petitioner are in respect to disproportionate assets and various other offences. From the factual matrix noticed in the earlier part of this judgment, it is evident that the petitioner has acquired huge immovable properties during his service. Acquisition of the properties by the petitioner and his family members is not denied or disputed. The only defence of the petitioner is that these properties were duly disclosed and reflected in his property statements and the Income Tax Returns. Merely because the properties held by a government servant have been disclosed in Income Tax Returns and in the property statements, does not itself provide any legal inference that the same were lawfully acquired. It is a question of evidence whether the acquisition of properties was through a lawful and legal source or CWP No.6414 of 2010 ( 17 ) otherwise. It is difficult for this Court to examine this aspect without allowing the prosecution and the defence to lead evidence in support of their respective contentions. It is a matter of trial. Thus, the judicial intervention, at this stage, is impermissible when the challan has already been produced in the competent court of jurisdiction and the trial is on. Mr. Bansal has further argued that the contention of the petitioner should be taken to be admitted as no reply has been filed by the State-respondent. To support of his contention, he has relief upon G.I. Bajaj, S.D.O. Vs. The State of Punjab and others, 1982 (1) SLR, 275 and BSNL and others Vs.