UNION OF INDIA AND ANR. versus SUNIL TRIPATHI ETC. ETC.
[2018] 9 S.C.R. 374, Supreme Court of India, 2018
Outcome: Disposed off
Segment: Issues
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UNION OF INDIA AND ANR.
v.
SUNIL TRIPATHI ETC. ETC.
(Civil Appeal Nos. 5987-5989 of 2018)
JULY 31, 2018
[DIPAK MISRA, CJI, A. M. KHANWILKAR AND
DR. D. Y. CHANDRACHUD, JJ.]
Investigation:
Preliminary enquiries conducted by CBI – Therein CBI reached
the conclusion that it was not a fit case for the CBI to take over the
investigation, and that investigation in the matters could be carried
out with the State Police – In Writ petitions, High Court directed
CBI to convert the preliminary enquiries into FIRs/RCs and to
ensure that investigation was expeditiously completed – CBI’s
appeal challenging the direction – Held: High Court did not
properly analyse the pleas of CBI as well as the pleas raised by the
respondents – Therefore, the case is remitted to High Court to
consider the contentious issues de novo – Appeals disposed of.
State of West Bengal and Ors. v. Committee for
Protection of Democratic Rights, West Bengal and Ors.
(2010) 3 SCC 571 : [2010] 2 SCR 979 ; Manohar Lal
Sharma v. Principal Secretary and Ors. (2014) 2 SCC
532 ; Subramanian Swamy v. Director, Central Bureau
of Investigation and Anr. (2014) 8 SCC 682 : [2014] 6
SCR 873 – referred to.
Case Law Reference
[2010] 2 SCR 979
   referred to
Para 3
(2014) 2 SCC 532
   referred to
Para 3
[2014] 6 SCR 873
   referred to
Para 3
 CIVIL APPELLATE JURISDICTION :  Civil Appeal Nos. 5987-
5989 of 2018.
From the Judgment and Order dated  20.07.2017 of the High
Court of
Delhi at New Delhi in Writ Petition (C) Nos. 12313 of 2015,
602 of 2017 and CM  No. 2775 of 2017.
  [2018] 9 S.C.R. 374
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R. Balasubramanium, Mullapudi Rambabu, Akshay Amritanshu,
B. V. Balram Das, Ms. Aarti Sharma, Mukesh Kumar Maroria, Advs.
for the Appellants.
Abhimanue Shrestha, Adv. for the Respondent.
Caveator-in-person.
The Judgment of the Court was delivered by
A. M. KHANWILKAR, J. 1. By the impugned judgment and
order dated 20th July, 2017 passed by the High Court of Delhi at New
Delhi in Writ Petition (Civil) No.12313 of 2015, Writ Petition (Civil) No.602
of 2017 & C.M. No.2775 of 2017, the appellant No.2 Central Bureau of
Investigation (“CBI”) has been directed to take immediate steps to
convert preliminary enquiry (PE) No.2172014A0003 dated 7th May, 2014,
PE No.4(A) dated 8th May, 2014 and PE No. AC12014 A0006 dated
12th May, 2014 into FIRs/RCs and to ensure that investigation is
expeditiously completed and taken to its logical end in accordance with
law. In addition, consequential directions have been issued to the
appellant CBI.
2. The appellants have assailed the aforesaid decision on the ground
that such directions to the CBI are untenable in law and would require
the investigating agency to ignore its limits and functions and act beyond
the statutory dispensation.  According to the appellants, the effect of the
directions given by the High Court is to call upon the CBI to act in a
particular manner de hors the material facts and the conclusion
recorded in the enquiry report. The thrust of the contention urged by the
appellants is that since the CBI, after
conducting preliminary enquiry,
was of the prima facie opinion that there was no involvement of any
public servant or any loss to the public funds, it was not a fit case for the
CBI to take over the investigation and that the investigation thereof can
be conveniently carried out by the State police. In this context, a note
was submitted by the CBI to the concerned department to proceed with
the matter in accordance with law. It is urged by the appellants that the
High Court misdirected itself in relying upon the allegations adverted to
in the PE registered by the CBI pursuant to the orders passed by the
High Court on 8th January, 2014 in Writ Petition No.5578/2013 and
mistook it as the conclusion arrived at by the Inquiry Officer. If that
basis is discarded, then it would necessarily follow that the investigation
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of the alleged offence can be conveniently done by the State police as it
does not involve any instance of national or international ramifications
as well. In substance, it is urged by the appellants that it was not a fit
case for entrusting the investigation of the alleged crime to CBI and that
the High Court decision has failed to analyse all the relevant aspects
placed before it in that regard.
3. The respondents, on the other hand, would contend that the
appellants having failed to challenge the order dated 8th January, 2014
passed in Writ Petition No.5578/2013, cannot be heard to contend that
CBI was not required to take over the investigation of the alleged crimes.
In that, an unambiguous stand was taken by the appellants before the
High Court in the said writ petition that the investigation of the alleged
crimes referred to in the writ petition was already entrusted to the CBI
and the investigation thereof was in progress.  Notably, the CBI
registered three separate P.Es. on 7th, 8th and 12th of May, 2014,
reflective of the offence having been committed by unknown officials of
the Directorate General of Resettlement (“DGR”) and Ex-Servicemen
(ESM) and including relating to undue peculiar benefit to private firms
and other persons mentioned in the accused list and corresponding loss
to public exchequer and Government undertakings. In light of the
allegations, preliminary enquiry in respect of each of these
alleged
offences came to be registered against the firms and other unknown
persons mentioned in the PEs.  The concerned official who undertook
the preliminary enquiry eventually submitted notes which were
reproduced in the Status Report dated 17th October, 2016 filed before
the High Court, stating thus:
“2.    That in compliance of order dated 08.01.2014 the Respondent
No.2 took up preliminary inquiry after receiving the writ petition
from the Ministry of Defence through the Department of
Ex-Servicemen Welfare.
3.     It is also submitted that during the course of enquiry in all the
three Preliminary Enquiries, the issues raised by the Petitioner in
his writ petition were covered and inquired into by Respondent
No.2/CBI. The Inquiry revealed the involvement of private persons
in the matter of submission of false affidavits/information/
documents to obtain ‘SECOND CAREER FACILITY’ through
the Directorate General of Resettlement.
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4.     During the course of inquiry, the Respondent CBI did
not come across sufficient evidence to substantiate the
involvement of public servants to bring the case under
Prevention of Corruption Act. Since, inquiry did not
establish the involvement of public servants, the
Respondent No.2 sent Self Contained Notes to the
authorities as mentioned below in relation to the preliminary
inquiries as detailed below:-
i.     PE2172014A0003/ACU-IV
Directorate General of Resettlement, Ministry of Defence,
Government of India, with the request to refer the matters to the
local police by the concerned Directorates in the matter of
misrepresentation, forged affidavits and other issues in which
forgery was revealed during enquiry and take necessary action
as per the prevalent extant provisions of the department on the
subject at the relevant point of time.
ii.      PE AC-I2014A0006
Director General (Vigilance), Directorate General of Vigilance,
Customs and Central Excise, Chanakayapuri, New Delhi for
initiating necessary action as per the provision of Finance Act,
1994 against erring service providers on the instances of
irregularities in deposit of service tax by service providers.
iii.      PE 04(A)/2014/AC-III NEW DELHI
Chief Vigilance Officer, Employees Provident Fund Organization,
Bhikaji Cama Place, New Delhi, Chief Vigilance Officer, Ministry
of Defence and Chief Vigilance Officers of PSUs viz. National
High Authority of India and Central Warehousing
Corporation of
India for taking appropriate action against the erring ESM
companies for committing irregularities in depositing PF dues of
Security Guards, who are employed by them in PSUs.
5.     In this regard it is submitted that the short affidavit filed by
CBI be kindly read as part of this status report.
6.   It is further most respectfully submitted that the CBI shall
abide any further direction(s) passed by this Hon’ble Court.”
  (emphasis supplied)
UNION OF INDIA AND ANR. v. SUNIL TRIPATHI
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According to the respondents, it was not open to the appellants to
act upon the aforementioned notes in view of the previous statement
made before the High Court as recorded in the order dated 8th January,
2014, that the CBI has already commenced investigation into the alleged
crimes. Furthermore, the stated notes implicitly conceded that there was
enough material to suggest commission of cognizable offence. The fact
that the official submitting stated notes was of the view that the offence
was committed by persons other than public servants, would make no
difference.  As a matter of fact, the nature of allegations regarding
misuse of official position and also causing loss to public exchequer,
inevitably would involve role of public servants and officials.  In either
case,  it was not open to CBI to resile from the statement made before
the High Court on 8th January, 2014 and, therefore, the Court was
justified in directing the CBI to investigate the alleged offence after
registration of FIRs/RCs. The respondents would contend that no
material was produced by the CBI before the High Court so as to
completely rule out the involvement of public servant in the commission
of the alleged offence. The respondents have also invited our attention
to other criminal cases, which on being investigated by CBI, such as
RC-19(S)/2013(R) under Section 120B read with Sections 420, 468 and
471 of IPC at PS CBI/ACB/Ranchi,
RC-009/2016/A0011 dated
20th December, 2016 under Section 13(2), 13(1)(d) PC Act and Section
120B read with Section 420 IPC and FIR No.RC-028/2017/A0003 dated
31st January, 2017 under Section 120B and Section 120B read with
Section 420 IPC.  It is contended that the CBI had investigated these
offences irrespective of the involvement of public servants. According
to the respondents, the High Court was justified in directing the CBI to
register FIRs/RCs and investigate the same and take it to its logical end.
To buttress the arguments, the respondents have placed reliance on the
decisions of this Court in State of West Bengal and Ors. Vs.
Committee for Protection of Democratic Rights, West Bengal and
Ors.,1 Manohar Lal Sharma Vs. Principal Secretary and Ors.,2 and
Subramanian Swamy Vs. Director, Central Bureau of Investigation
and Anr.3
4. We have heard Mr. R. Balasubramanium, learned counsel
appearing for the appellants and Mr. Abhimanue Shrestha, learned counsel
appearing for the respondents.
1(2010) 3 SCC 571
2(2014) 2 SCC 532
3(2014) 8 SCC 682
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5. After analysing the impugned judgment, it is noticed that the
High Court allowed the writ petitions and issued directions mainly for
the following reason:
“10. Given the nature of allegations made in para 9(H) of W.P.(C)
No.12313/2015 and the observations of the CBI upon its
preliminary examination as placed before this court in the
affidavit dated 27th January, 2016, it cannot be denied that the
present case meets the bar of ‘exceptional situations’ when it is
essential to provide credibility and instill confidence in
investigations. It also cannot be denied that the incident may have
national and international ramifications. We are also of the view
that grant of the prayer made by the writ petitioner is essential for
doing complete justice and enforcing fundamental and basic rights
of the ex-servicemen. Furthermore, ensuring benefits under a
special scheme of the Government.”
6. As regards the allegations in paragraph 9(H) of Writ Petition
(Civil) No.12313 of 2015, we find force in the plea taken by the appellants
that the same is a virtual reproduction of the contents of the three PEs
registered by the CBI, which were based on the allegations contained in
the previous writ petition and other materials furnished to the CBI
consequent to the order passed on 8th January, 2014. The appellants, in
the Status Report as well as in the reply affidavit, had placed on record
that after the enquiry undertaken consequent to registration of three
PEs, it was
revealed that there was no involvement of any public
servant and loss to public exchequer nor the offences involved national
and international ramifications necessitating investigation by the CBI.
This contention has not been properly analysed by the High Court.  The
High Court, however, discarded the argument of the appellants in one
paragraph, as can be discerned from paragraph 10 of the impugned
judgment reproduced earlier. The High Court has also not dealt with the
argument of the respondents that after the statement made by the
appellants before the High Court on 8th January, 2014 that the CBI was
investigating into the alleged offences and the investigation was in
progress, it was not open to the appellants to take a different position.
Moreso because material became available during the enquiry,
suggesting commission of alleged offences. The respondents would
UNION OF INDIA AND ANR. v. SUNIL TRIPATHI
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further contend that irrespective of the involvement of the public
servant, the offences in question could be and ought to be investigated
by the CBI in terms of the provisions of the Delhi Special Police
Establishment Act, 1946 in light of the undertaking given before the High
Court as recorded in the order dated 8th January, 2014.
7. Instead of examining all these contentious issues for the first
time in these appeals, we deem it appropriate to set aside the impugned
judgment and relegate the parties before the High Court for
reconsideration of all aspects of the matter afresh on its own merits and
in accordance with law.  We may not be understood to have expressed
any opinion, either way, on the issues that may require adjudication by
the High Court.
8. Accordingly, these appeals are allowed.  The impugned
judgment and order is set aside and Writ Petition (Civil) No.12313 of
2015, Writ Petition (Civil) No.602 of 2017 and C.M. No.2775 of 2017
are restored to its original numbers on the file of the High Court of Delhi
at New Delhi, for being decided de novo by the High Court,
uninfluenced by any observations made in the impugned judgment.
All questions are left open.
9. The appeals are disposed of in the aforementioned terms.
No costs.
Kalpana  K. Tripathy
          Appeals disposed of.