1 APPLN 2013/10 APPP 328/10 APPLN 1913/10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.1913 OF 2010 Mr. Manjit Singh Bali ....Applicant. V/s Central Bureau of Investigation .... Respondent. WITH CRIMINAL APPLICATION NO.2013 OF 2010 Shri Harsh Dalmia & Anr. ....Applicants. V/s Central Bureau of Investigation & Anr .... Respondents. WITH CRIMINAL APPLICATION NO.328 OF 2010 IN CRIMINAL APPLICATION NO.2013 OF 2010 Shri Harsh Dalmia & Anr. ....Applicants. V/s Central Bureau of Investigation & Anr .... Respondents. 2 APPLN 2013/10 APPP 328/10 APPLN 1913/10 Mr. A.P. Mundargi, Senior Counsel with Mr. Yusuf Iqbal Yusuf, Mr. N. Majra i/b Mr. Sutapa Saha for the applicant in Criminal Application No.1913 of 2010. Mr. A.H.H Ponda i/b Mr. Uday Sankar Samudrala for the applicants in Criminal Application No.2013 of 2010 and in Criminal Application No.328 of 2010 in Criminal Application No.2013 of 2010. Mr. D. J. Khambata, Additional Solicitor General with Mr. K. Sudhakar, Special Public Prosecutor i/b S.K. Shinde for Respondent – CBI in Criminal Application No.2013 of 2010 and Criminal Application No.1913/2010. CORAM: V. M. KANADE, J. DATE : 29th November, 2010. P.C.:- 1. An interesting question which falls for my consideration in these criminal applications is: what is the meaning of the expression ‘cases involving arrest of a person on the spot’ which is used in section 6-A(2)? 3 APPLN 2013/10 APPP 328/10 APPLN 1913/10 2. Both the applicants have filed these applications to quash R.C. Case No. BA1/2010/A0006 dated 18th February, 2010 registered by CBI against the applicants under sections 7 & 8 of the Prevention of Corruption Act, 1988. 3. Applicant Manjit Singh Bali in Criminal Application No. 1913 of 2010 was holding the post of Chief Post Master General, Maharashtra & Goa at Mumbai from August, 2008. It is an admitted position that the said post was of the level of Additional Secretary to the Government of India. A case was registered against the said applicant Manjit Singh Bali on 18/02/2010 on the basis of letter written by the complainant dated 16/02/2010. Brief background regarding the said case is as under:- The complainant one Smt. Rita Subhash Shah visited applicant’s office in the second week of December, 2009 demanding grant of No Objection Certificate (NOC) for a particularly property (hereinafter referred to as “the said property”) in Mira Bhayander which was reserved for 4 APPLN 2013/10 APPP 328/10 APPLN 1913/10 Department of Posts. The Post Master General, Mumbai Region sent the case file in third week of December to the applicant recommending issuance of NOC in the case. There were five other plots reserved for the Department of Posts in different localities of Mira Bhayaner area and, therefore, the applicant sent the file back and requested that integrated view be taken for the whole area. According to the complainant, in January, 2010 one Mr. Harsh Dalmia, who is the applicant in Criminal Application No.2013 of 2010, alongwith the complainant visited office of the applicant Mr. Bali and made a request for release of NOC on the said property. However, the applicant said that the Department was examining the proposal of acquiring the said land and a decision would be taken soon. Thereafter, in the month of February, 2010 the case was again submitted to the Post Master General, Mumbai, recommending issuance of NOC on the basis of recommendations of the Divisional Superintendent of Post Offices of that area wherein the property was situated. The file, however, was 5 APPLN 2013/10 APPP 328/10 APPLN 1913/10 returned to the Post Master General since the details of the integrated plan etc. were not given. A complaint was made by the complainant by writing a letter to the CBI dated 16/02/2010. On 17/02/2010, complainant visited office of the applicant alongwith Mr. Harsh Dalmia, Mr Arun Dalmia and another person who was introduced as Mr. Pravin Trivedi, the interested developer of the plot. Applicant was asked to expedite the decision since the matter was pending for a year. On 18/02/2010, the CBI took cognizance of the letter of the complainant and registered FIR against the applicant. Applicant approved the proposal on 24/2/2010. However, he listed certain additional relevant conditions. According to the complainant, Mr. Harsh Dalmia, co-accused approached the applicant. After a few moments, another person approached the applicant and stated that a bag had been kept in the dicky of the applicant’s car and further stated that the bag contained Rs 2 crore and, thereafter, he 6 APPLN 2013/10 APPP 328/10 APPLN 1913/10 identified himself as CBI Officer. Applicant was taken into custody. According to the applicant, he was kept in the said Restaurant till the next morning and, thereafter, he was produced by the CBI before the Sessions Court in the evening at about 5.00 P.M., seeking police custody for 10 days. Remand was granted on 03/03/2010. The Special Judge remanded the applicant Mr. Bali to judicial custody till 15/03/2010 and on 12/03/2010 the applicant Mr. Bali was released on bail. 4. Applicant No.1 in Criminal Application No. 2013 of 2010 is the Chief Operating Officer of Watermark Financial Consultants Limited (“WFCL”). Applicant No.2 is the Chairman of WFCL. 5. Mr. Mundargi, the learned Senior Counsel appearing on behalf of the applicants in Criminal Application No.1913 of 2010 submitted that in view of the provisions of section 6-A of the DSPE Act, initiation of investigation and any subsequent prosecution is without jurisdiction and the CBI 7 APPLN 2013/10 APPP 328/10 APPLN 1913/10 had no authority whatsoever to register a case against the public servant of the rank of Joint Secretary and above without obtaining previous approval of the Central Government and, therefore, on this ground alone, the FIR was liable to be quashed. He submitted that there are several judgments of the Apex Court right from the judgment in R.P. Kapur vs. The State of Punjab1, State of Haryana and others vs. Ch. Bhajan Lal & others2 and in Ashim Kumar Roy vs. Bipinbhai Vadilal Mehta and Others3 wherein it has been held that if there is a statutory bar imposed by the Act then the FIR so filed and the investigation initiated on the basis of the said FIR is liable to be quashed. Reliance is placed on the judgment of the Delhi High Court in Dr. R.R. Kishore vs. CBI4. It is submitted that if the objection regarding lack of jurisdiction under section 6-A of the Act is raised at the very inception then further investigation is liable to be stayed and the FIR could be quashed. It is submitted that section 6-A of the DSPE Act was amended by the Central Vigilance and Commission Act 1 AIR 1960 SC 866 2 AIR 1992 SC 604 3 1998 SCC (Cri) 269 4 142(2007) Delhi Law Times 702 8 APPLN 2013/10 APPP 328/10 APPLN 1913/10 in the year 2003 and by virtue of the amendment, prior approval of the Central Government is necessary in the case of inquiry/investigation against the employees of the Central Government of the level of Joint Secretary and above. It is submitted that the DSPE Act is the only Act in which obtaining prior approval is made compulsory. It is submitted that the said bar in the section operates from inception i.e. from the time of the information received by the CBI about commission or likelihood of commission of such offence by the employee above certain rank in the Central Government. It is submitted that sub-section (2) of section 6-A of the DSPE Act permitted the CBI to arrest a person on the spot, meaning thereby that the CBI would invoke the said section only in cases of a chance arrest of a public servant on the spot while accepting or attempting to accept any gratification without any prior information about the same. It is submitted that, in the present case, the CBI was aware of the complaint being received on 16/02/2010 and, therefore, it had sufficient time to obtain prior approval and, instead of doing that, it had registered the FIR on 18/02/2010 9 APPLN 2013/10 APPP 328/10 APPLN 1913/10 and on 24/02/2010, it conducted a raid. It is, therefore, submitted that this is not a case where the CBI had arrested the accused on the spot. It is submitted that the CBI had an ample time to deliberate and take prior approval after the complaint was received on 16/02/2010. Reliance is also placed on remand application dated 03/03/2010. It is submitted that sub-section (2) of section 6-A of the DSPE Act dealt with the situation where obtaining prior approval of the Central Government would be entirely illogical or contrary or inconsistent to the demand of the situation indicated in the said sub-section. It is submitted that the words ‘on the spot’ clearly depict the legislative intent that where in the view of the Act any employee or officer as mentioned in Clause (a) and (b) respectively of section 6- A(1) is found to be accepting or attempting to accept any gratification other than any remuneration, the CBI need not await for the approval of the Central Government. It is submitted that, in the instant case, a complaint/letter was sent by the complainant on 16/02/2010 and the FIR was registered against the applicant on 18/2/2010. The CBI 10 APPLN 2013/10 APPP 328/10 APPLN 1913/10 started conducting the inquiry/investigation from 18/02/2010, leading to the arrest of the applicant on 25/02/2010. It is, therefore, submitted that the said arrest of the applicant was not “on the spot” arrest as envisaged under sub-section (2) of section 6-A of the DSPE Act. It is, therefore, submitted that the arrest of the applicant was not covered under sub-section (2) of section 6-A of the DSPE Act. 6. Mr. A.H.H. Ponda, the learned Counsel appearing for the applicants in Criminal Application No.2013 of 2010 has also argued at length and has also filed written submissions and has relied on number of judgments of the Apex Court and various High Courts and has filed compilation of judgments and list of documents. It is submitted that, “arrest of a person on the spot” as laid down under sub-section (2) of section 6-A of the DSPE Act does not come into play in cases involving the arrest which is not on the spot. He then proceeded to elaborate the meaning of the words ‘on the spot’ with reference to dictionary meaning of the said words 11 APPLN 2013/10 APPP 328/10 APPLN 1913/10 in WebSter’s Online Dictionary, Webster Dictionary, Macmillan Dictionary, Oxford Dictionary, www.dictionary.com, Cambridge Advanced Learner’s Dictionary and Longman Dictionary of Contemporary English. Reliance is also placed on CBI’s own Rules of investigation from CBI Crime Manual. Reference is also made to Rule 10.6 of the CBI Crime Manual. It is also urged that section 6-A is similar in its import to section 42 of the NDPS Act as it stood before amendment. Reliance is placed on the judgment of the Apex Court in Karnail Singh vs State of Haryana1. It is submitted that the words used in the said section are ‘on the spot’ and not ‘from the spot’ and only in cases of urgent circumstances when practically there is no time to take such approval, the CBI could arrest the accused on the spot. Reliance is also placed on Rules 8.3 and 8.24 of the CBI Crime Manual. Reliance is placed on the judgments of the Supreme Court in Sailendranath Bose vs. The State of Bihar2, The State of Madhya Pradesh vs. Mubarak Ali3. Reliance is also placed on the judgment of the Delhi High Court in Dr. 1 (2009) 8 SCC 539 2 AIR 1968 SC 1292 3 AIR 1959 SC 707 12 APPLN 2013/10 APPP 328/10 APPLN 1913/10 R.R. Kishore vs. CBI1 and more particularly on paragraphs 16, 17 and 18 of the said judgment. It is, therefore, submitted that provisions of section 6-(A)(2) were not applicable to the present case. Reliance is also placed on the judgment of the Apex court in Vineet Narain vs. Union of India2 more particularly on paras 42 to 45. It is submitted that in view of the said observations of the Apex Court, screening mechanism with statutory backing has been introduced in the form of section 6-A of the DSPE Act only from 11/09/2003 and sub-section (2) of Section 6-A exempted the CBI from taking previous approval in cases of acceptance of illegal gratification involving arrest of the accused on the spot on account of non-availability of time for obtaining previous approval. Reliance is placed on the judgment of the Apex Court in G. Narayanswami vs. G. Pannerselvam and others3 Reliance is also placed on the judgment of the Apex Court in K. Veerswami vs. Union of India and others4. It is submitted that meaning of the word ‘involving’ in sub- section (2) of section 6-A of the DSPE Act could not be 1 142(2007) Delhi Law Times 702 2 1998(1) SCC 226 3 (1972) 3 SCC 717 4 (1991) 3 SCC 655 13 APPLN 2013/10 APPP 328/10 APPLN 1913/10 interpreted to mean cases leading to arrest at any stage. Reliance is placed on the judgments in Duni Chand Rataria vs. Bhuwalka Brothers Ltd.1, Additional Commissioner of Income Tax vs. Surat Art Silk Cloth Manufacturers Association2, The Sole Trustee Lok Shikshana Trust v/s IT Commr Mysore3. It is submitted that the interpretation suggested by the respondent - CBI would have a nullifying effect on section 6-A. It is submitted that validity of section 6-A was under challenge and the matter had been referred to the larger Bench by the Supreme Court. This was done in the case of Dr. Subramanian Swamy vs. Director CBI & others4. Reliance is also placed on the judgment of the Apex Court in P.M. Singh vs. CBI5 in which it has been held that provisions of section 6-A could not apply retrospectively. 7. On the other hand, Mr.Khambata, learned Additional Solicitor General, vehemently opposed the submissions made by the learned Counsel appearing on behalf of the applicants. He 1 1955 AIR 182 2 AIR 1980 SC 387 3 AIR 1970 Mysore 285 4 (2005) 2 SCC 317 5 Cri Rev Petition 206/2007 decided on 22.10.2007. 14 APPLN 2013/10 APPP 328/10 APPLN 1913/10 has also filed detailed written submissions. He submitted that section 6-A of the the DSPE Act was introduced by inserting section 26(c) of the Central Vigilance Commission Act, 2003 with effect from 11/09/2003 and prior to the amendment, a Single Directive was first issued in 1969 by the Executive and amended on many occasions. However, the relevant portion of the Single Directive was eventually struck down by the Supreme Court in Vineet Narain vs. Union of India1. He invited my attention to the judgment of the Apex Court in the said case and referred to para 44. He also invited my attention to the debate in the Parliament on the Central Vigilance Commission Bill. He then invited my attention to paras 45 and 46 of the said judgment and submitted that where the accusation was based on direct evidence and did not require any inference to be drawn depending on the decision making process including trap cases, the Single Directive could not be applied. He submitted that purpose of the Single Directive was to prevent the decision making process of officers from being subjected to scrutiny of the CBI even where the complaint 1 1998(1) SCC 226 15 APPLN 2013/10 APPP 328/10 APPLN 1913/10 was frivolous. He submitted that the Single Directive was meant to protect the honest decision-making officers from facing inquiries and investigations. He submitted that, however, this did not arise in cases of direct evidence such as trap cases, where the question of drawing an inference to establish corrupt motive did not arise. He then invited my attention to the report presented to the Parliament by the Joint Committee on the Central Vigilance Commission Bill, 1999. It is submitted that while interpreting section 6-A, the rule of purposive construction must be adopted to interpret section 6-A. It is necessary to see the position before it was enacted and the mischief and defect the Legislator sought to remedy has to be seen. He relied on three judgments of the Apex Court on this point viz. State of M.P. And others vs. Ram Singh1, Balram Kumawat vs. Union of India and others2 [para 24] and in Government of Andhra Pradesh vs. P. Venku Reddy3 [para 12]. So far as the word ‘involving’ which is found in sub-section (2) of section 6-A of the DSPE Act is concerned, he submitted that the word ‘involving’ used in 1 (2000) 5 SCC 88 2 (2003) 7 SCC 628 3 (2002) 7 SCC 631 16 APPLN 2013/10 APPP 328/10 APPLN 1913/10 the expression ‘cases involving arrest of a person on the spot’ (hereinafter referred to as “the said expression”) would mean the cases resulting in arrest based on direct evidence. He relied upon the judgment of the Apex Court in Duni Chand Rataria vs. Bhuwalka Brothers Ltd.1 [Para 16]. He submitted that reliance placed by the applicants on the judgments in Additional Commissioner of Income Tax vs. Surat Art Silk Cloth Manufacturers Association2, The Sole Trustee Lok Shikshana Trust v/s IT Commr Mysore3 is erroneous. He then submitted that sub-section (2) of section 6-A of the DSPE Act used the words ‘on the spot’ in the said expression. He submitted that the words ‘on the spot’ does not mean spontaneous arrest or chance arrest nor arrest at exact place or time of commission of the offence and the words are used in reference to the nature of evidence in terms of the accusation and, therefore, it is submitted that it is not the question of time or place but the question of nature of evidence in such accusation at the scene of the offence as set out in para 45 in Vineet Narain4 (supra). It is, 1 1955 AIR 182 2 AIR 1980 SC 387 3 AIR 1970 Mysore 285 4 1998(1) SCC 226 17 APPLN 2013/10 APPP 328/10 APPLN 1913/10 therefore, submitted that purposive and contextual interpretation should be adopted and preferred not to ascribe the dictionary meaning literally to the words ‘on the spot’. He submitted that the reliance placed on Rule 10.6 of the CBI Crime Manual is incorrect. He further submitted that the applicants cannot acquire a legal right from the CBI Manual. It is also submitted that reference to the provisions of NDPS Act while interpreting section 6-A of the the DSPE Act could not be made since section 6-A(2) does not depend on the success or failure of the trap. So far as the judgment of the Delhi High Court in Dr. R.R. Kishore vs. CBI1 is concerned, it is submitted that the said judgment had been challenged before the Supreme Court and the Supreme Court by its order dated 12/03/2007 had granted leave and notice had been issued on the prayers for interim reliefs. The learned Additional Solicitor General, however, candidly admitted that no stay to the judgment of the Delhi High Court was granted. It is submitted that finding of the Delhi High Court in Dr. R.R. Kishore (supra) on the meaning of the words ‘on the spot’ was without reasons and no supporting 1 142(2007) Delhi Law Times 702 18 APPLN 2013/10 APPP 328/10 APPLN 1913/10 authority was relied upon by the Delhi High Court. It is submitted that the finding of the Delhi High Court is contrary to the finding of the Apex Court in para 45 in the case of Vineet Narain1. It is submitted that in the said judgment, reliance was placed on the judgments of the Supreme Court in M.C. Sulkunte (Dr.) vs. State of Mysore2 [para 15] and in Shailendranath Bose vs. State of Bihar3 [para 5]. It is submitted that section 6-A starts with non obstante clause and, therefore, it is submitted that the interpretation given by the Delhi High Court is incorrect. The learned Additional Solicitor General further distinguished the judgments on which reliance is placed by the Counsel for the applicants. 8. I have heard Mr. Mundargi the learned Senior Counsel appearing on behalf of the applicant, Mr. Ponda, the learned Counsel appearing on behalf other applicants and Mr. Khambata, the learned Additional Solicitor General appearing on behalf of the respondent – CBI at length. 1 1998(1) SCC 226 2 (1970) 3 SCC 513 3 AIR 1968 SC 1292 19 APPLN 2013/10 APPP 328/10 APPLN 1913/10 9. The question which falls for consideration before this Court is regarding interpretation of the words ‘cases involving arrest of a person on the spot’ which are mentioned in sub-section (2) of section 6-A of the DSPE Act. The controversy which has been raised in these applications is that though the applicants are arrayed as accused in the FIR which is registered by CBI on 18/02/2010, the entire inquiry and investigation into the said offence which is initiated against the applicant Manjit Singh Bali who is admittedly an employee of the Central Government of the level of Joint Secretary without obtaining prior approval of the Central Government is liable to be quashed since the previous approval of the Central Government was not obtained. 10. In order to consider the rival submissions, it will be necessary to take into consideration the provisions of the DSPE Act more particularly provisions of section 6-A which were inserted by the Act 45 of 2003 (hereinafter referred to as “the said Act’) with effect from 12/09/2003. The said Act 20 APPLN 2013/10 APPP 328/10 APPLN 1913/10 was passed for the constitution of Special Police Force in Delhi for investigation of certain offences in Union territory and also for extension to other areas of the powers and jurisdiction of the members of the said force in regard to investigation of the said offences. Section 2 of the said Act has laid down the constitution and powers of special police establishment and sub-section (1) of section 2 lays down that notwithstanding anything in the Police Act, 1861 (5 of 1861), the Central Government may constitute a special police force. Sub-section (2) of section 2 further lays down that the members of the said police establishment shall have all the powers, duties, privileges and liabilities which the police officers of the Union Territory have in connection with the investigation of offences committed therein while carrying on investigation and arrest in respect of such offences and any member of the said police establishment above the rank of Sub-Inspector was deemed to be an officer-in-charge of a police station. Sub-section (3) of section 2 lays down the classes of offences which could be investigated by the Delhi Special Police Establishment 21 APPLN 2013/10 APPP 328/10 APPLN 1913/10 (hereinafter referred to as “DSPE”) which are notified by the Central Government by issuing notification in the Official Gazette. Section 4 lays down power of the superintendence and administration of special police establishment in respect of the offences alleged to have been committed under the provisions of the Prevention of Corruption Act, 1988. Sections 4-A, 4-B and 4-C lay down Committee for appointment of Director, terms and conditions of service of Director and appointment for posts of Superintendent of Police and above. Section 5 lays down extension of powers and jurisdiction of special police establishment to other areas in State. Section 6 lays down that consent of the State Government has to be obtained to exercise powers and jurisdiction under the DSPE Act. Section 6-A is regarding approval of the Central Government to conduct inquiry or investigation. 11. In the present case, we are concerned with the interpretation of section 6-A and, therefore, it would be relevant to reproduce the said section which reads as 22 APPLN 2013/10 APPP 328/10 APPLN 1913/10 under:- “6-A. Approval of Central Government to conduct inquiry or investigation.- (1) The Delhi Special Police Establishment shall not conduct any inquiry or investigation into any offence alleged to have been committed under the Prevention of Corruption Act, 1988 (49 of 1988) except with the previous approval of the Central