IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 4.2.2011 CORAM: THE HONOURABLE MR.JUSTICE P.JYOTHIMANI W.P.Nos.15646 and 24824 of 2010 V.Lakshmi .. Petitioner in WP:15646/2010 T.A.Johnson .. Petitioner in WP:24824/2010 Vs. 1. The Government of Tamil Nadu rep. by its Principal Secretary Home Department Fort St.George, Chennai – 9. 2. The Director General of Police Dr.Radhakrishnan Salai Chennai – 4. 3. The Commissioner of Police Suburban, Chennai – 16. 4. The Inspector of Police S-13, Chromepet Police Station Chennai – 44. 5. The Director Central Bureau of Investigation III Floor, Block No.3 CGO Complex, Lodhi Road New Delhi – 3. .. Respondents in both WPs. PRAYER: Petitions under Article 226 of the Constitution of India for issue of a writ of Certiorari to call for the records of the first respondent in G.O.Ms.No.593, Home (Pol.VII) Department, dated 25.6.2010 and quash the same as arbitrary, illegal and unconstitutional. https://hcservices.ecourts.gov.in/hcservices/ For Petitioner : R.Thiagarajan, Sr.Counsel in WP:15646/2010 for M/s.R.Karthikeyan For Petitioner : Mr.Sriram Panchu, Sr.Counsel in WP:24824/2010 for M/s.M.Suresh Kumar For Respondents : Mr.N.Senthil Kumar 1 to 4 in both WPs. Additional Government Pleader For 5th respondent : Mr.N.Chandrasekaran in both WPs. Special Government Pleader (CBI) ORDER These writ petitions are filed by the petitioners challenging the government order in G.O.Ms.No.593, Home (Pol.VII) Department, dated 25.6.2010. By the impugned government order, the Government has decided to transfer the case registered against the petitioners at Chromepet Police Station to the Central Bureau of Investigation and to accord consent to Central Bureau of Investigation under Section 6 of the Delhi Special Police Establishment Act, 1946 to enable the Government of India to extend jurisdiction of Delhi Special Police Establishment (CBI) to investigate the said case against the petitioners, who are Deputy Warden (Ladies Hostel) and Maintenance Supervisor respectively of Sri Balaji Medical College and Hospital, Chromepet, Chennai, a constituent of Bharath Institute of Higher Education and Research, Chennai, a Deemed University. 2.1. The petitioners are employed as Deputy Warden (Ladies Hostel) and Maintenance Supervisor of Sri Balaji Medical College and Hospital. The employer of the petitioners, viz., the Management, has lodged a criminal complaint with the fourth respondent (Inspector of Police, Chromepet Police Station) alleging that the petitioners have induced a student promising admission in the college and attempted to receive huge amounts. The complaint of the de facto complainant was taken on file and a case was registered in Crime No.290 of 2009 against the petitioners for an offence punishable under Section 420 read with Section 511 of the Indian Penal Code. The petitioners obtained anticipatory bail and are complying with the condition imposed therein by reporting to the fourth respondent and are co-operating with the fourth respondent for investigation. It is stated that the management has initiated disciplinary proceedings and the petitioners were dismissed from service. 2.2. It is stated that the petitioner in W.P.No.15646 of 2010 had filed Criminal Original Petition in Crl.O.P.No.11282 of 2010 for https://hcservices.ecourts.gov.in/hcservices/ quashing the first information report and that came to be dismissed by this Court, by order dated 13.5.2010, with a direction to the fourth respondent to file final report within a period of four weeks. It is stated that the fourth respondent has completed investigation and a report was filed before the Judicial Magistrate, Tambaram and the same was taken on file as C.C.No.528 of 2010 and summons have been issued for appearance of the petitioners (accused). 2.3. It is stated that in the meantime, the impugned government order came to be issued by the first respondent transferring the case to Central Bureau of Investigation for investigation, observing as if the investigation is still pending with the fourth respondent. It is also stated that the criminal court has completed trial and convicted the petitioners in the judgment dated 13.8.2010. Therefore, the impugned order is challenged on various grounds, including (i) that the same has been passed with total non application of mind, with mala fide intention and arbitrarily; (ii) that as per the provisions of the Delhi Special Police Establishment Act, 1946, the Central Government's power to extend to any area in a State, not being a Union Territory, the powers and jurisdiction of members of the Delhi Special Police Establishment itself is for investigation of offences and in the facts of the present case, investigation has already been completed, final report was filed before the competent criminal court, summons were issued to the parties for hearing on 6.8.2010 by the Judicial Magistrate, Tambaram and in spite of it the impugned order has been passed without taking note of these crucial facts; (iii) that such transfer of investigation under the provisions of the Delhi Special Police Establishment Act, 1946 is possible only in cases where final report has not been filed and investigation was pending and even in such cases, transfer should be for a proper reason; (iv) that the impugned government order would amount to re-investigation of a case which has already ended in conviction and it is intended to drag on the issue and the same is without jurisdiction and unwarranted; (v) that as per the pronouncement of the Supreme Court, at any stage of investigation, a case can be transferred under the Delhi Special Police Establishment Act, 1946 only by an order of the Court and such power is not conferred on the executive https://hcservices.ecourts.gov.in/hcservices/ authorities; (vi) that even as per the impugned order, it is not as if the fourth respondent has not conducted investigation properly, but the consent has been given by the Government blindly stating as if the case is still pending investigation on the file of the fourth respondent, when, on fact, the final report has already been filed before the criminal court, and that is against the mandate of the Supreme Court; and (vii) that there is no necessity or special circumstance warranting transfer of investigation. 3.1. In the counter affidavit filed by the fourth respondent, it is stated that on 4.6.2009, the Dean, Sree Balaji Medical College and Hospital, Chromepet appeared before the Assistant Commissioner of Police, Tambaram and gave a complaint that the petitioners, who are employees of Sree Balaji Medical College and Hospital, have demanded money from a student/parent promising to get admission into the Medical College. It is stated that the complainant learnt about the same through newspaper report and based on that complaint was given. 3.2. On receipt of the complaint, the Assistant Commissioner of Police has forward it to the fourth respondent on the same day, viz., on 4.6.2009. The fourth respondent has obtained legal opinion and a case was registered under Section 420 read with Section 511 of the Indian Penal Code in Crime No.290 of 2009 on 23.6.2009 against the petitioners. It is during the course of investigation, the petitioners have obtained anticipatory bail from this Court in the order dated 5.10.2009 in Crl.O.P.No.21190 of 2009. 3.3. It is stated that when investigation was in progress, the petitioner in W.P.No.15646 of 2010 has filed a petition under Section 482 of the Code of Criminal Procedure, 1973 before this Court in Crl.O.P.No.11282 of 2010 to quash the first information report and this Court by order dated 13.5.2010, even though was not inclined to accept the same, directed the fourth respondent to file final report within four weeks from 13.5.2010. In compliance of the order of this Court, after completing the investigation, the fourth respondent filed a final report before the Judicial Magistrate, Tambaram on 6.6.2010. The final report was taken on file by the learned Judicial Magistrate, Tambaram and the case was numbered as C.C.No.528 of 2010 on 7.6.2010 and summons were issued to the accused persons on 8.7.2010 to appear on 6.8.2010. On 13.8.2010, the petitioners pleaded guilty and the trial Court has convicted them. 3.4. It is stated that the Inspector General of Police, Central Bureau of Investigation, in the letter dated 16.3.2010 addressed to https://hcservices.ecourts.gov.in/hcservices/ the Government, requested the Government to accord consent for the transfer of the case in Crime No.290 of 2009 on the file of the Chromepet Police Station to the Central Bureau of Investigation for their investigation. Thereafter, the Government has addressed to the Director General of Police, Tamil Nadu for certain particulars, which were sent to the Government on 22.4.2010, wherein it was mentioned that Crime No.290 of 2009 was pending investigation. However, in the meantime, after investigation, a final report was filed on 6.6.2010 before the Judicial Magistrate, Tambaram, in compliance of the order of this Court. 3.5. It is stated that pursuant to the communication of the Director General of Police to the Government, after examination of materials, the Government passed the impugned order on 25.6.2010 according consent to the Central Bureau of Investigation under Section 6 of the Delhi Special Police Establishment Act, 1946 to enable the Central Bureau of Investigation to investigate the case and therefore, it cannot be said that the impugned order has been passed with non application of mind or the order is without jurisdiction of the Government. 3.6. While denying that the impugned government order is arbitrary or illegal, it is stated that it is the prerogative power of the State to give consent for the purpose of investigation to the Central Bureau of Investigation. The Director General of Police has stated in the report dated 22.4.2010 that investigation was pending before the police on the said date and it was only based on that the Government has passed the impugned order. It is also stated that the Government has never stated that pending investigation, the case is transferred to Central Bureau of Investigation, but it has only accorded consent to enable the Government of India to extend the jurisdiction of Central Bureau of Investigation to investigate the case. 3.7. It is stated that the Delhi Special Police Establishment Act, 1946 has never prohibited the State Government to accord consent in a case pending trial and it is not as if the transfer to the Central Bureau of Investigation can be effected only during investigation stage and therefore, it is not correct to state that once investigation is completed, final report is filed and the same has been taken on file by the competent criminal court and summons are issued, the State Government loses the jurisdiction to refer the case to Central Bureau of Investigation in exercise of the powers conferred under Sections 5 and 6 of the Delhi Special Police Establishment Act, 1946. It is also denied that the executive authorities have no power to transfer investigation to the Central Bureau of Investigation under the Delhi Special Police Establishment Act, 1946 and that it cannot be said that it is always the power of the Court to transfer cases to Central Bureau of Investigation. https://hcservices.ecourts.gov.in/hcservices/ 4.1. In the counter affidavit of the fifth respondent, it is stated that it is on the allegation of capitation fees collection the charges were levelled and investigation was conducted and it was serious in nature. 4.2. It is stated that the enquiry by the Central Bureau of Investigation revealed a prima facie case against the petitioners under Section 120-B of the Indian Penal Code and Sections 7 and 15 read with Section 13(1)(d) of the Prevention of Corruption Act, 1988. 4.3. It is stated that the State Government has already accorded consent for registration and investigation of a criminal case by the Central Bureau of Investigation in a similar case against one A.Subramanian, Deputy Registrar of Sri Ramachandra Medical College, which is also a Deemed University, vide G.O.Ms.No.225, dated 25.2.2010 under Section 6 of the Delhi Special Police Establishment Act, 1946 and pursuant to the same, investigation was conducted. 4.4. It is stated that since the present case is also similar to the case already transferred to the Central Bureau of Investigation, the Central Bureau of Investigation has sought the State Government to give consent and thereafter, the Government has granted consent under the impugned government order dated 25.6.2010, extending the power and jurisdiction of the members of the Delhi Special Police Establishment in the whole of the State of Tamil Nadu to investigate the case in Chromepet Police Station Crime No.290 of 2009 under Section 420 read with Section 511 of the Indian Penal Code and the consent given by the Government is constitutional and legal. It is stated that the government order is well within the ambit and power of the State Government and it is the statutory right of the State Government to direct investigation by the Central Bureau of Investigation and the judgment of the Supreme Court referred to by the petitioners are not applicable. 4.5. It is stated that the Central Bureau of Investigation has conducted a detailed enquiry and found that the petitioners have demanded capitation fee from a student, which amounts to demand of illegal gratification and therefore, the offence is deemed to be an offence committed by a public servant within the meaning of Section 2(c) of the Prevent of Corruption Act, 1988. 5. It is the contention of Mr.R.Thiagarajan and Mr.Sriram Panchu, learned Senior Counsel appearing for the petitioners that post investigation, when the matter is pending with the Court, the same can be referred to the Central Bureau of Investigation only by the Court and that cannot be done by the executive authorities and https://hcservices.ecourts.gov.in/hcservices/ therefore, the impugned government order has been passed without jurisdiction and transgressing its limitation. In support of the said contention, they relied upon the judgment of the Supreme Court in Rubabbuddin Sheikh v. State of Gujarat and others, [2010] 2 SCC 200. 6. The learned Senior Counsel would submit that the stand taken by the fifth respondent as if the petitioners are public servants is basically incorrect, as they are in the private employment of the private management. To substantiate the contention, Mr.R.Thiagarajan, learned Senior Counsel would rely upon the judgment of the Supreme Court in State of West Bengal v. Manmal Bhutoria and others, [1977] 3 SCC 440. 7. It is the contention of Mr.R.Thiagarajan, learned Senior Counsel that in spite of the fact that investigation has been completed and judgment has been pronounced, the Government has passed order stating investigation is pending and this only shows the total non application of mind on the part of the Government. He would rely upon the judgments in Rubabbuddin Sheikh v. State of Gujarat and others, [2010] 2 SCC 200, Rajiv Ranjan Singh 'Lalan' (VIII) v. Union of India and others, [2006] 6 SCC 613 and M.C.Mehta v. Union of India and others, [2008] 1 SCC 407. 8. It is the contention of the learned Additional Government Pleader appearing for respondents 1 to 4 that even after the conviction, it is always open to the Government to file an appeal or revision and it cannot be said to be a case of non application of mind. He would submit that the judgment relied upon by the learned Senior Counsel in Rubabbuddin Sheikh case, supra, has no application to the facts of the case. 9. Mr.N.Chandrasekaran, learned Special Government Pleader appearing for the fifth respondent also would submit that the petitioners can be termed as public servants considering the nature of allegation made against them, which is serious in nature. 10. On the factual matrix, it is not in dispute that on the complaint lodged by the employer of the petitioners, first information report was registered by the fourth respondent as Crime No.290 of 2009 and thereafter, he has conducted investigation and filed final report before the Judicial Magistrate, Tambaram, wherein the case was taken on file as C.C.No.528 of 2010 and summons were issued to the accused, posting the case on 6.8.2010. Therefore, in effect, it is not in dispute that by the time the impugned government order came to be passed on 25.6.2010, the investigation by the fourth respondent in respect of the complaint given against the petitioners was completed and it is also not in dispute that https://hcservices.ecourts.gov.in/hcservices/ ultimately the case has ended in conviction by the judgment dated 13.8.2010. 11. At the time when the government order came to be passed, the final report was already laid before the Judicial Magistrate, Tambaram and the judicial authority was seized of the matter and the trial was pending. It is also admitted that it was during that time the Government, being the executive authority, has passed the order by referring the matter to the Central Bureau of Investigation by according consent by virtue of Section 6 of the Delhi Special Police Establishment Act, 1946. The impugned government order shows that by virtue of the power conferred under Section 6 of the Delhi Special Police Establishment Act, 1946, the State Government has given consent to extend the power and jurisdiction of the members of the Delhi Special Police Establishment in the State of Tamil Nadu to investigate the case in Chromepet Police Station Crime No.290 of 2009 for the offences punishable under Section 420 read with Section 511 of the Indian Penal Code. 12. Section 2 of the Delhi Special Police Establishment Act, 1946 provides for constitution of special police force to be called Delhi Special Police Establishment for investigation in the Union Territories of offences notified under Section 3 of Delhi Special Police Establishment Act, 1946, and by virtue of Section 5 of the Delhi Special Police Establishment Act, 1946 the power and jurisdiction of the members of the Delhi Special Police Establishment regarding the investigation of the offences as to be notified by the Government of India under Section 3 of the said Act is extended to other areas. Section 6 of the Delhi Special Police Establishment Act, 1946, which is relied upon by the State Government for passing the impugned order, is as follows: "Section 6. Consent of State Government to exercise of powers and jurisdiction.- Nothing contained in section 5 shall be deemed to enable any member of the Delhi Special Police Establishment to exercise powers and jurisdiction in any area in a State, not being a Union Territory of railway area, without the consent of the Government of that State." 13. Independent of the said consent given by the State Government, by which the State Government voluntarily refers the investigation by a special police force in Delhi, Section 5(1) of the Delhi Special Police Establishment Act, 1946, which is as follows: "Section 5. Extension of powers and jurisdiction of special police establishment to other areas. https://hcservices.ecourts.gov.in/hcservices/ (1) The Central Government may by order extend to any area (including Railway areas), in a State, not being a Union Territory the powers and jurisdiction of members of the Delhi Special Police Establishment for the investigation of any offences or classes of offences specified in a notification under section 3." also enables the Central Government by an order to extend in a State area the powers and jurisdiction of the members of the Delhi Special Police Establishment for the investigation of any offences as notified under Section 3 of the Delhi Special Police Establishment Act, 1946. 14. In the matter of investigation by the police, which is an executive function in accordance with law, the process of investigation completes the moment report is filed by the investigating authority to a competent criminal court. When once investigation of criminal complaint is completed and a complaint or information or report is filed before the Magistrate, the Court takes cognizance of offence as per Section 190 of the Code of Criminal Procedure, 1973 on a prima facie conclusion that offence has been committed. Thereafter, by way of commencement of proceedings before the Magistrate, process is being issued to the accused, followed by the charges to be framed by the Court and commencement of trial, ultimately resulting in the final judgment. 15. Therefore, when once the first information report has been lodged to police, it becomes the predominant duty and privilege of the police to investigate and file its report to the court to enable the court to take cognizance of the offence. Investigation is the prerogative of the police officer and on completion of investigation, under Section 173(2) of the Code of Criminal Procedure, 1973, the officer in-charge of the police station forwards a police report to the Magistrate, who is empowered to take cognizance of an offence, with various particulars. Section 173(8) of the Code of Criminal Procedure, 1973 gives special power to the Magistrate to order further investigation. In this regard, it is relevant to extract Section 173 of the Code of Criminal Procedure, 1973, which is as follows: "Section 173. Report of police officer on completion of investigation. (1) Every investigation under this Chapter shall be completed without unnecessary delay. (2)(i) As soon as it is completed, the officer in charge of the police station shall forward to a Magistrate empowered to take cognizance of the offence https://hcservices.ecourts.gov.in/hcservices/ on a police report, a report in the form prescribed by the State Government, stating- (a) the names of the parties; (b) the nature of the information; (c)the names of the persons who appear to be acquainted with the circumstances of the case; (d)whether any offence appears to have been committed and, if so,by whom ; (e) whether the accused has been arrested; (f) whether he has been released on his bond and, if so, weather with or without sureties; (g) whether he has been forwarded in custody under section 170. (h) whether the report of medical examination of the woman has been attached where investigation relates to an offence under sections 376, 376A, 376B, 376C or 376D of the Indian Penal Code (45 of 1860). (ii) The officer shall also communicate, in such manner as may be prescribed by the State Government, the action taken by him, to the person, if any, by whom the information relating to the commission of the offence was first given. (3) Where a superior officer of police has been appointed under section 158, the report shall, in any case in which the State Government by general or special order so directs, be submitted through that officer, and he may, pending the orders of the Magistrate, direct the officer in charge of the police station to make further investigation. (4) Whenever it appears from a report forwarded under this section that the accused has been released on his bond, the Magistrate shall make such order for the discharge of such bond or otherwise as he thinks fit. (5) When such report is in respect of a case to which section 170 applies, the police officer shall forward to the Magistrate along with the report - (a) all documents or relevant extracts thereof on which the prosecution proposes to rely other than those already sent to the Magistrate during investigation; (b) the statements recorded under section 161 of https://hcservices.ecourts.gov.in/hcservices/ all the persons whom the prosecution proposes to examine as its witnesses. (6) If the police officer is of opinion that any part of any such statement is not relevant to the subject- matter of the proceedings or that its disclosure to the accused is not essential in the interests of justice and is in expedient in the public interest, he shall indicate that part of the statement and append a note requesting the Magistrate to exclude that part from the copies to be granted to the accused and stating his reasons for making such request. (7) Where the police officer investigating the case finds it convenient so to do, he may furnish to the accused copies of all or any of the documents referred to in sub-section (5). (8) Nothing in this section shall be deemed to preclude further investigation in respect of an offence after a report under sub-section (2) has been forwarded to the Magistrate and, where upon such investigation, the officer in charge of the police station obtains further evidence, oral or documentary, he shall forward to the Magistrate a further report or reports regarding such evidence in the form prescribed; and the provisions of sub-sections (2) to (6) shall, as far as may be, apply in relation to such report or reports as