Crl. Rev.P. Nos.322 & 272 of 2008 Page 1 REPORTABLE * IN THE HIGH COURT OF DELHI AT NEW DELHI + CRIMINAL REVISION PETITON NOS. 322 & 272 OF 2008 Reserved on : 1st September, 2010. % Date of Decision: 29th October, 2010. S.S. AHLUWALIA ....Petitioner Through Mr. Sudhir Nandrajog, Sr. Advocate with Mr. Anurag Ahluwalia, Advocate. INDERJIT SINGH ....Petitioner Through Mr. Sidhartha Luthra, Sr. Advocate withMr. Anurag Ahluwalia, Advocate. VERSUS CBI …..Respondent Through Mr. Vikas Pahwa, Standing Counsel. Mr. Harish Gulati and Mr. Anindya Malhotra, Advocates. CORAM: HON'BLE MR. JUSTICE SANJIV KHANNA 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporter or not ? YES 3. Whether the judgment should be reported in the Digest ? YES SANJIV KHANNA, J.: These two revision petitions by S.S. Ahluwalia and his brother Inderjit Singh are directed against the order on the point of charge dated 23rd February, 2008 passed by the Special Judge, Central Bureau of Investigation (CBI, for short). It has been held in the impugned order that a case is made out for framing of Crl. Rev.P. Nos.322 & 272 of 2008 Page 2 charges against the two petitioners under Section 120-B of the Indian Penal Code, 1860 (hereinafter referred to as IPC) read with Sections 419, 420, 467, 468 and 471 IPC read with Sections 5(1)(e) and 5(2) of Prevention of Corruption Act, 1947 (hereinafter referred to as PC Act for short). Substantive charges against S.S. Ahluwalia have also been framed under Sections 419, 420, 467, 468, 471 IPC as well as under Sections 5(1)(e) read with Section 5(2) of the PC Act. 2. The allegation is that during the check period 1st July, 1969 to 28th March, 1987, S.S. Ahluwalia, an officer of Indian Administrative Services, while working in Kohima/Nagaland and Delhi, had acquired assets worth Rs.67,96,601/- disproportionate to his known sources of income. It is also alleged against S.S. Ahluwalia that he had entered into a criminal conspiracy with Inderjit Singh, V. Bhaskaran (approver) and Nyamo Lotha (who has expired), at Kohima and Delhi and in furtherance of criminal conspiracy had committed several acts. Some of these acts have been discussed separately, while dealing with the petition of Inderjit Singh. 3. On behalf of S.S. Ahluwalia, it was submitted that the State of Nagaland by their letter dated 6th November, 1990 had withdrawn their general/open consent under Section 6 of the Delhi Special Police Establishment Act, 1946 (DSPE Act for short) and, therefore, charges should not have been framed in respect of the alleged acts/offences relating to the State of Nagaland. Reference was made to the decision dated 1st February, 1991 in C.W.No. 1844/1998, filed by the petitioner S.S. Ahluwalia, which is reported in 1991 Crl.L.J. 2583. It was submitted that this decision operates as res judicata. Relying on the decision of the Supreme Court in H.N. Rishbud and Another Vs. State of Delhi Crl. Rev.P. Nos.322 & 272 of 2008 Page 3 AIR 1955 SC 196, learned counsel for the petitioner S.S. Ahluwalia, had submitted that ‘investigation’ includes formation of opinion by the police/prosecution as to whether on the material collected, there is a case to place the accused before a Magistrate for trial by filing charge sheet under Section 173 of the Code of Criminal Procedure, 1973 (Code for short). Reference was made to Section 2(h) of the Code, which defines investigation, and observations in paragraph 5 of the judgment of the Supreme Court in H.N. Rishbud (supra), which read:- “…..Thus, under the Code investigation consists generally of the following steps : (1) Proceeding to the spot, (2) Ascertainment of the facts and circumstances of the case, (3) Discovery and arrest of the suspected offender, (4) Collection of evidence relating to the commission of the offence which may consist of (a) the examination of various persons (including the accused) and the reduction of their statements into writing, if the officer thinks fit, (b) the search of places or seizure of things considered necessary for the investigation and to be produced at the trial, and (5) 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 the filing of a charge- sheet under Section 173…” Accordingly, on the basis of the charge sheet which was filed on 10th April, 1992, it is urged that charges cannot be framed for acts/omissions relating to the State of Nagaland after the letter dated 6th November, 1990. 4. S.S. Ahluwalia was inducted into IAS in 1969 and was allocated the State of Nagaland. During the check period 1st July, 1969 to 28th March, 1987, he had worked in the State of Nagaland and at Delhi. On 4th December, 1986, Chief Minister of the State of Nagaland wrote a letter to the Union Home Minister Crl. Rev.P. Nos.322 & 272 of 2008 Page 4 regarding questionable conduct of S.S. Ahluwalia relating to extortion of businessmen, involvement in shoddy gunny bags transaction, his conduct as a Director of State Lotteries, etc. It was alleged that the petitioner S.S. Ahluwalia had acquired assets, which were disproportionate to his known sources of income including immovable properties in Delhi and outside Nagaland. The Government of Nagaland had stated that they do not have proper machinery to conduct investigation into all ramifications of the case and a comprehensive inquiry by reputed agency like CBI was necessary. 5. The State of Nagaland has given general consent for conduct of investigation under DSPE Act vide their letter dated 8th November, 1967. On 24th March, 1987, an FIR was registered by the CBI against the petitioner S. S. Ahluwalia on information received from a reliable source that he was indulging in corrupt activities and mal-practices and had amassed assets disproportionate to his known sources of income. S.S. Ahluwalia does not question and challenge the registration of this FIR in view of the general consent dated 8th November, 1967. It is submitted that this general consent in relation to the petitioner S. S. Ahluwalia was withdrawn on 23rd November, 1989. It is accepted that by another order dated 9th May, 1990, the general consent in relation to S.S. Ahluwalia was restored. Subsequently, the Government of Nagaland issued another order dated 6th November, 1990 stating that the order dated 23rd November, 1989 withdrawing the consent was valid and by the order dated 6th November, 1990, the order dated 9th May, 1990 was cancelled. It is, thus, the contention of S.S. Ahluwalia that the consent for investigation by CBI was specifically withdrawn in his Crl. Rev.P. Nos.322 & 272 of 2008 Page 5 case and, therefore, the charge sheet for offences relating to the State of Nagaland has to fail. 6. S.S. Ahluwalia had raised similar contentions before the Court in C.W.No. 1844/1998, which was decided on 1st February, 1991. Paragraphs 6, 9 to 11 and 30 of the decision dated 1st February, 1991 read as follow;- “6. Shri Satpal, learned counsel for respondents 1 to 3, on the other hand, submitted that ……So, the FIR correlate with the offence u/S. 5(1)(e). He also submitted that the FIR is under investigation which is now almost complete and the CBI is ready to file a charge-sheet. It was urged that it is not a fit case for exercise of extraordinary power of this court for preventing the CBI to investigate the offence and for quashing the FIR. He submitted that there are good grounds for charging the petitioner of the said offence. XXXX 9. It would appear from the provisions contained in S. 5 that the Central Government may by order extend the powers and jurisdiction to members of DSPE to any area for the investigation of any offences or classes of offences specified in a notification u/S. 3. While exercising that power the members of the DSPE would be deemed to be members of the police force of that area and be vested with the powers, functions and privileges and would be subject to the liabilities of a police officer belonging to the police force of that area, i.e. the members of the DSPE will discharge the functions of the police officer of that area. Further the members of the D.S.P.E. of or above the rank of Sub Inspector shall be deemed to be in charge of the police station discharging the functions of such an officer within the limits of his police station. So, for all purposes, the members of DSPE would be police officers of that particular area, exercising all powers, functions and privileges and subject to all liabilities of a police officer of that area. S. 6 is an Crl. Rev.P. Nos.322 & 272 of 2008 Page 6 overriding provision. It begins with a non obstante clause. It overrides the provisions of S. 5. According to this provision, the powers would not be exercisable by any member of the DSPE unless the Government of the State gives its consent. By virtue of S. 5, any member of DSPE would not be able to exercise power and jurisdiction in any area in a State, without the consent of the Government of that State. This consent of a State is a pre-condition for exercise of powers and jurisdiction in that area of the State by any member of the Delhi Special Police Establishment. Thus, it would appear that consent of the State of Nagaland is necessary for investigating the offence u/S.5(1)(e) in respect of the aforesaid FIR relating to the offences in the State of Nagaland. 10. …. Thus. there was a pre-existing consent at the time of registration of the case by the CBI on 24-3- 87. It is true that in respect of the petitioner, the consent was withdrawn on 23-11-89 and it was again restored vide order dated 9-5-90 and further by order dated 6-1190, order dated 9-5-90 was cancelled and in respect of the order of withdrawal, it was stated that that stands valid and further it was reiterated vide order dated 8-1-9l. It is really strange. how the State Government functioned in relation to the giving of consent for investigation of offence u/S.5(1)(e) in respect of the petitioner. In any case, the general consent still holds good and it is only in relation to the petitioner that it is withdrawn. After the withdrawal of the consent, it is correct that the CBI has no jurisdiction to investigate the offence against the petitioner under the aforesaid FIR. As it is clear from the provision contained in S.6 that the members of the DSPE will have no jurisdiction to exercise any power in any area of the State of Nagaland without the consent of the Government of Nagaland. 11. We may also mention here that in the FIR, "Nagaland, Delhi and other places" have been mentioned as places of occurrence. The offence has no relation only with the State of Nagaland but it Crl. Rev.P. Nos.322 & 272 of 2008 Page 7 has relation with Delhi and other places as well. And as such, the CBI is competent to investigate into the offence as mentioned in the FIR against the petitioner with respect to Delhi and other places but no investigation after the withdrawal of the order dated 9-5-90 can be conducted by the CBI in any area of the State of Nagaland with respect to the petitioner. X X X X 30. In the light of what we have considered above and also in the light of principles laid down by their Lordships of the Supreme Court. we find no justification whatsoever for interference in investigation of the offence as alleged in the FIR in question.” 7. It is clear from the aforesaid paragraphs, especially from the paragraph 30 that the said writ petition filed by S.S. Ahluwalia was dismissed and it was observed that the Court should not interfere with the investigation being conducted by the CBI. The Division Bench had recorded the contention of the counsel for the CBI that investigation was complete and charge sheet was ready to be filed. Thus CBI was not prohibited and barred from filing the charge sheet. Therefore, the first contention of the petitioner S.S. Ahluwalia that investigation includes formation of opinion i.e., whether charge sheet should be filed and charge sheet could not have been filed after withdrawal of consent by the State of Nagaland has to be rejected. Principle of Res judicata rather than supporting the plea of the petitioner S.S. Ahluwalia to this extent goes against him. The term ‘investigation’ for the purpose of DSPE Act need not to be given a very wide meaning. Investigation as defined in Section 2 (h) of the Code, has to be interpreted subject to the Crl. Rev.P. Nos.322 & 272 of 2008 Page 8 context. In Kazi Lhendup Dorji Vs. Central Bureau of Investigation and Others 1994 Supp (2) SCC 116 it has been held:- “16. ….it may be mentioned that Section 21 of the General Clauses Act does not confer a power to issue an order having retrospective operation. [See Strawboard Manufacturing Co. Ltd. v. Gutta Mill Workers’ Union(SCR at pp. 447-48).] Therefore, even if we proceed on the basis that Section 21 of the General Clauses Act is applicable to an order passed under Section 6 of the Act, an order revoking an order giving consent under Section 6 of the Act can have only prospective operation and would not affect matters in which action has been initiated prior to the issuance of the order of revocation. The impugned notification dated 7-1- 1987, has to be construed in this light. If thus construed it would mean that investigation which was commenced by CBI prior to withdrawal of consent under the impugned notification dated 7-1- 1987, had to be completed and it was not affected by the said withdrawal of consent. In other words, the CBI was competent to complete the investigation in the cases registered by it against Respondent 4 and other persons and submit the report under Section 173 CrPC in the competent court….” 8. Learned counsel for the petitioner S.S. Ahluwalia, however, has heavily relied upon the observations of the Division Bench in the judgment dated 1st February, 1991, in paragraphs 9 and 10 and has contended that consent by the State of Nagaland was necessary for the offences committed in the State of Nagaland and CBI has no jurisdiction to investigate the said offences. CBI had illegally conducted ‘investigation’ even after the letter dated 6th November, 1990 and therefore should be compelled and asked to rectify the said defect and illegality should not be ignored. Crl. Rev.P. Nos.322 & 272 of 2008 Page 9 9. In paragraph 11 of the judgment dated 1st February, 1991, the Division Bench had observed that the offences have relation not only with the State of Nagaland but with Delhi and other places as well. In paragraph 11 it has been observed that no investigation after withdrawal of the order dated 9th May, 1990 could be conducted by the CBI in any area of the State of Nagaland. Thus, even for the State of Nagaland, CBI was competent to conduct investigation prior to the withdrawal order dated 9th May, 1990. Learned counsel for the petitioner was asked to pin point what investigation was conducted by the CBI after 9th May, 1990. In this connection reference was made to the statement of Mr. M.K. Mitral, Branch Manager, Kohima Branch, State of Nagaland. Merely recording of statement of Mr. M.K. Mitral after the order dated 9th May, 1990, does not mean that investigation by the CBI relates to the offences committed in the State of Nagaland and not to the offences committed in Delhi and other places. Further the last sentence in paragraph 11 of the judgment dated 1st February, 1991, has to be read with the preceding sentences. The preceding sentences refer to occurrences/ offences outside the Sate of Nagaland. Thus, Division Bench had observed regarding further investigation into offences relating to the State of Nagaland and not about inquiries or investigation in the State of Nagaland for offences committed outside the State of Nagaland. 10. Invalid investigation does not nullify cognizance or trial based thereupon before the court. A defect or illegality in investigation, how so ever serious, has no direct bearing on competence or procedure relating to cognizance by Court or trial before Court. In the present case we are not concerned with breach or violation of a mandatory statutory pre condition Crl. Rev.P. Nos.322 & 272 of 2008 Page 10 before a Court can take cognizance of an offence or regulating the competence or procedure of a court regarding trial, as in case of sanction under Section 195, 196 etc. of the Code. This is a well established principle as observed in H.N. Rishbud (supra). In this case, it has been held as under;- “9. The question then requires to be considered whether and to what extent the trial which follows such investigation is vitiated. Now, trial follows cognizance and cognizance is preceded by investigation. This is undoubtedly the basic scheme of the Code in respect of cognizable cases. But it does not necessarily follow that an invalid investigation nullifies the cognizance or trial based thereon. Here we are not concerned with the effect of the breach of a mandatory provision regulating the competence or procedure of the Court as regards cognizance or trial. It is only with reference to such a breach that the question as to whether it constitutes an illegality vitiating the proceedings or a mere irregularity arises. A defect or illegality in investigation, however serious, has no direct bearing on the competence or the procedure relating to cognizance or trial. No doubt a police report which results from an investigation is provided in Section 190, Cr. P. C. as the material on which cognizance is taken. But it cannot be maintained that a valid and legal police report is the foundation of the jurisdiction of the Court to take cognizance. Section 190, Cr. P. C. is one out of a group of sections under the heading "Conditions requisite for initiation of proceedings". The language of this section is in marked contrast with that of the other sections of the group under the same heading, i.e., Sections 193 and 195 to 199. These latter sections regulate the competence of the Court and bar its jurisdiction in certain cases excepting in compliance therewith. But Section 190 does not. While no doubt, in one sense, Clauses (a), (b) and (c) of Section 190(1) are conditions requisite for taking of cognizance, it is not possible to say that cognizance on an invalid police report is prohibited and is therefore a Crl. Rev.P. Nos.322 & 272 of 2008 Page 11 nullity. Such an invalid report may still fall either under Clause (a) or (b) of Section 190(1), (whether it is the one or the other we need not pause to consider) and in any case cognizance so taken is only in the nature of error in a proceeding antecedent to the trial. To such a situation Section 537, Cr. P. C. which is in the following terms is attracted : "Subject to the provisions hereinbefore contained, no finding, sentence or order passed by a Court of competent jurisdiction shall be reversed or altered on appeal or revision on account of any error, omission or irregularity in the complaint, summons, warrant, charge, proclamation, order, judgment or other proceedings before or during trial or in any enquiry or other proceedings under this Code, unless such error, omission or irregularity, has in act occasioned a failure of justice." If, therefore, cognizance is in fact taken, on a police report vitiated by the breach of a mandatory provision relating to investigation, there can be no doubt that the result of the trial which follows it cannot be set aside unless the illegality in the investigation can be shown to have brought about a miscarriage of justice. That an illegality committed in the course of investigation does not affect the competence and the jurisdiction of the Court for trial is well settled as appears from the cases in - 'Prabhu v. Emperor', AIR 1944 PC 73 (C) and - 'Lumbhardar Zutshi v. The King', AIR 1950 PC 26 (D).” My attention has been drawn to the observations made in H.N. Rishbud (supra) and paragraphs 22 to 28 in R.R. Kishore versus C.B.I. 142 (2007) DLT 702. In the said paragraphs it has been held that where any illegality in investigation is brought to the notice of the trial court at an early stage, prosecution should be directed to take necessary steps to get the defects rectified and in a given case the court may direct re-investigation. But Crl. Rev.P. Nos.322 & 272 of 2008 Page 12 illegality in investigation by itself does not vitiate the trial unless it can be shown that the said illegality has brought about miscarriage of justice. Accordingly, in paragraph 10 of H.N.Rishbud’s case it has been observed as under:- “10. It does not follow, however, that the invalidity of the investigation is to be completely ignored by the Court during trial. When the breach of such a mandatory provision is brought to the knowledge of the Court at a sufficiently early stage, the Court, while not declining cognizance, will have to take the necessary steps to get the illegality cured and the defect rectified, by ordering such reinvestigation as the circumstances of an individual case may call for. Such a course is not altogether outside the contemplation of the scheme of the Code as appears from Section 202 under which a Magistrate taking cognizance on a complaint can order investigation by the police. Nor can it be said that the adoption of such a course is outside the scope of the inherent powers of the Special Judge, who for purposes of procedure at the trial is virtually in the position of a Magistrate trying a warrant case. When the attention of the Court is called to such an illegality at a very early stage it would not be fair to the accused not to obviate the prejudice that may have been caused thereby, by appropriate orders, at that stage but to leave him to the ultimate remedy of waiting till the conclusion of the trial and of discharging the somewhat difficult burden under Section 537 of the Code of Criminal Procedure of making out that such an error has in fact occasioned a failure of justice. It is relevant in this context to observe that even if the trial had proceeded to conclusion and the accused had to make out that there was in fact a failure of justice as the result of such an error, explanation to Section 537 of the Code of Criminal Procedure indicates that the fact of the objection having been raised at an early stage of the proceeding is a pertinent factor. To ignore the breach in such a situation when brought to the notice of the Court would be virtually to make a dead letter of the peremptory provision which has been enacted on grounds of public policy for the benefit of such an Crl. Rev.P. Nos.322 & 272 of 2008 Page 13 accused. It is true that the peremptory provision itself allows an officer of a lower rank to make the investigation if permitted by the Magistrate. But this is not any indication by the Legislature that an investigation by an officer of a lower rank without such permission cannot be said to cause prejudice. When a Magistrate is approached for granting such permission he is expected to satisfy himself that there are good and sufficient reasons for authorising an officer of a lower rank to conduct the investigation. The granting of such permission is not to be treated by a Magistrate as a mere matter of routine but it is an exercise of