E. SIVAKUMAR versus UNION OF INDIA AND ORS.
[2018] 6 S.C.R. 522, Supreme Court of India, 2018
Outcome: Dismissed (Dismissed)
Segment: Facts
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E. SIVAKUMAR
v.
UNION OF INDIA AND ORS.
(Special Leave Petition (Civil) No.13817 of 2018)
MAY 18, 2018
[DIPAK MISRA, CJI, A. M. KHANWILKAR AND
DR. D. Y. CHANDRACHUD, JJ.]
Investigation: Transfer of investigation to CBI – The petitioner
posted in the Ministry of Health was allegedly involved in the illegal
manufacture and sale of Gutkha and Pan Masala and named as an
accused in the FIR – The stated crime was being investigated by the
State Vigilance Commission, constituted by the State of Tamil Nadu,
headed by a Vigilance Commissioner – Writ of mandamus issued by
High Court to transfer the investigation to CBI – Petitioner
challenged  writ of mandamus on four counts – First, that the prayer
for transfer of investigation of the crime in question to the CBI was
already considered and negatived by the Coordinate Bench of the
same High Court – Second, the petitioner though named as an
accused in the FIR was not given an opportunity of hearing nor
was made a party in the public interest litigation in which the
impugned judgment was passed and third, the writ petition filed as
public interest litigation was politically motivated having been filed
by a member of the Legislative Assembly in the State of Tamil Nadu
– Held: High Court was alive to the fact that the Coordinate Bench
of the same High Court  had occasion to decide writ petition – The
Coordinate Bench had noted that the investigation of the crime was
in progress and
that it was not necessary to transfer the inquiry/
investigation to CBI – These aspects were duly taken note of in the
impugned judgment – Thus, it is not a case of disregarding the
binding decision or precedent of the Coordinate Bench of the same
High Court – Secondly, the question regarding the necessity to
ensure a fair and impartial investigation of the crime, for instilling
confidence in the minds of the victims as well as public at large, the
High Court predicated that it was but necessary to entrust the
investigation of such a crime to CBI –  Viewed thus, there is no
infirmity in the conclusion reached by the High Court for having
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entrusted the investigation to CBI – By entrusting the investigation
to CBI which, was imperative in the peculiar facts of the present
case, the fact that the petitioner was not impleaded  as a  party in
the writ petition or for that matter, was not heard, is of no avail –
That per se cannot  be the basis to label the impugned judgment as
a nullity – Regarding last contention, the political opponents play
an important role both inside and outside the House and are the
watchdogs of the Government in power – They are the mouthpiece
to ventilate the grievances of the public at large, if genuinely and
unbiasedly projected – High Court noted in the impugned judgment
that a petition filed by such persons cannot be brushed aside on
the allegation of political vendetta, if otherwise, it is genuine and
raises a reasonable apprehension of likelihood of bias in the
dispensation of criminal justice system – Accordingly, the ground
of challenge under consideration is devoid of merits.
Investigation: Right of hearing – A person who is named as
an accused in the FIR, who otherwise has no right to be heard at
the stage of investigation or to have an opportunity of hearing as a
matter of course, cannot be heard to say that the direction issued to
transfer the investigation to CBI is a nullity.
Subrata Chattoraj v. Union of India and Ors.
(2014) 8 SCC 768 : [2014] 6 SCR 783 ; Dharam Pal
v. State of Haryana and Ors. (2016) 4 SCC 160 :
[2016] 1 SCR 194 ; K. Anbazhagan v.
Superintendent
of Police and Ors. (2004) 3 SCC 767: [2003] 5  Suppl.
SCR 610 – relied on.
D. Venkatasubramaniam & Ors. v. M.K. Mohan
Krishnamachari & Anr.
(2009) 10 SCC 488 : [2009]
14 SCR 441 – distinguished.
State of Punjab v. Davinder Pal Singh Bhullar and Ors.
(2011) 14 SCC 770 : [2011] 15 SCR 540 ; Dinubhai
Boghabhai Solanki v. State of Gujarat and Ors. (2014)
4 SCC 626 : [2014] 3 SCR 932 ; Narender G. Goel v.
State of Maharashtra and Anr. (2009) 6 SCC 65 :
[2009] 8 SCR 1004 – referred to.
E. SIVAKUMAR  v. UNION OF INDIA AND ORS.
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Case Law Reference
[2011] 15 SCR 540
referred to
Para 3
[2014] 3 SCR 932
referred to
Para 8
[2009] 8 SCR 1004
referred to
Para 8
[2009] 14 SCR 441
distinguished
Para 9
[2014] 6 SCR 783
relied on
Para 10
[2016] 1 SCR 194
relied on
Para 11
[2003] 5 Suppl. SCR 610
relied on
Para 13
CIVIL APPELLATE JURISDICTION: Special Leave Petition
(Civil) No.13817 of 2018.
From the Order dated 26.04.2018 of the High Court of Madras  in
W.P. No.19335 of 2017.
Mukul Rohatgi, Sr. Adv., Ms. Misha Rohatgi, M. Thangathurai,
Advs. for the Appellant.
P. Wilson, Sr. Adv., R. Nedumaran,  Adv. for the Respondents.
The Order of the Court was passed by
A. M. KHANWILKAR, J. 1. This special leave petition takes
exception to the judgment and order of the High Court of Judicature at
Madras dated 26th April, 2018 in Writ Petition No.19335 of 2017, whereby
the High Court has issued a writ of mandamus to transfer the investigation
of a criminal case concerning the illegal manufacture and sale of Gutkha
and Pan Masala, containing Tobacco and/or Nicotine, to the Central
Bureau of Investigation (“CBI”).
2. The petitioner has been named as an accused in the FIR
because of his alleged involvement in the crime under investigation. The
petitioner at the relevant time was posted on deputation as Food Safety
Officer in the Food Safety and Drug Administration Department,
Ministry of Health. The stated crime was being investigated by the State
Vigilance Commission,
constituted by the State of Tamil Nadu, headed
by a Vigilance Commissioner. The gravamen of the challenge to the
impugned judgment is on four counts:
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(i)  First, that the prayer for transfer of investigation of the crime
in question to the CBI has already been considered and
negatived by the Coordinate Bench of the same High Court in
Writ Petition No.1846 of 2017 vide judgment dated 27th
January, 2017 and again in Writ Petition No.12482 of 2017
vide judgment dated 28th July, 2017. These decisions have been
completely disregarded in the impugned judgment.
(ii) Second, the petitioner though named as an accused in the FIR
was not given an opportunity of hearing nor was made a party
in the public interest litigation in which the impugned judgment
has been passed. Resultantly, the judgment under appeal is a
nullity and liable to be set aside only on this score.
(iii) Third, no special circumstances have been noted by the High
Court in the impugned judgment for transferring the
investigation to CBI. The High Court has not even bothered to
examine the efficacy of the status report regarding the
investigation done by the Vigilance Commission. In other words,
there was no tangible ground for directing investigation of the
crime in question by the CBI.
(iv) Lastly, it is contended that the writ petition filed as public
interest litigation was politically motivated having been filed by
a member of the Legislative Assembly in the State of Tamil
Nadu.
3. To buttress the above-mentioned grounds of challenge,
reliance is placed on the decision of this Court in the case of State of
Punjab Vs. Davinder Pal Singh
Bhullar and Ors.1
4. The admission of this special leave petition is opposed by
respondent No.14 (writ petitioner). It is urged on behalf of respondent
No.14 that the High Court has considered all aspects of the matter and
being satisfied about the imperativeness of a fair investigation of the
crime in question involving high ranking officials and the tentacles of the
conspiracy in commission of the crime transcending beyond the State of
Tamil Nadu and into different States,  it deemed it appropriate to issue a
writ of mandamus to transfer the investigation to CBI.  It is contended
that there is no merit in the objections raised on behalf of the petitioner.
1(2011) 14 SCC 770
E. SIVAKUMAR  v. UNION OF INDIA AND ORS.
[A.M. KHANWILKAR, J.]
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5. We have heard Mr. Mukul Rohatgi, learned senior counsel
appearing on behalf of the petitioner and Mr. P. Wilson, learned senior
counsel appearing on behalf of respondent No.14.
6. On a careful consideration of the impugned judgment, we agree
with respondent No.14 (writ petitioner) that the High Court has
cogitated over all the issues exhaustively and being fully satisfied about
the necessity to ensure fair investigation of the crime in question, justly
issued a writ of mandamus to transfer the investigation to CBI.  As
regards the first point raised by the petitioner, we find that the High
Court was alive to the fact that the Coordinate Bench of the same High
Court  had occasion to decide Writ Petition No.1846 of 2017 and Writ
Petition No.12482 of 2017, as can be discerned from the discussion in
paragraphs 107 to 122 of the impugned judgment. As regards Writ
Petition No.1846 of 2017, that was filed by one P. Wilson, a lawyer by
profession.  Indeed, it was filed as public interest litigation to initiate an
inquiry/investigation into the allegation of corruption, investigate,
prosecute and ferret out the truth regarding the connivance of senior
police officers as noted by the Commissioner of Police, Chennai City, in
his letter dated 22nd December, 2016 addressed to the Principal
Secretary, Home Department, Government of Tamil Nadu.  The Court,
however, found that the said petition lacked specific ground and material
and, more so, the Court doubted the bona fides of the petitioner therein
and thus summarily rejected the petition vide judgment dated 27th
January, 2017. As regards Writ Petition No.12482 of 2017, filed by one
K. Kathiresan, a lawyer by profession, as public interest litigation, the
relief claimed was primarily to quash an order dated 30th June, 2017
granting extension of service to respondent No.5 therein and further, to
direct registration of a case in reference to the communication sent by
the Commissioner of Police, Chennai, in respect of sale of banned
substances, namely, Gutkha and Pan Masala in the State of Tamil Nadu
and to constitute a Special Investigation Team to investigate the case
under the direct monitoring of the High Court. Thus, the primary
concern in the said writ petition was about the appointment of respon-
dent No.5 therein as Director General of Police on account of his name
being referred to in the incriminating documents seized by the Income
Tax Department from the partners of a gutkha manufacturing concern.
In the analysis of the case, the Coordinate Bench vide its judgment dated
28th July, 2017 noted the prayer of the said writ petitioner to direct the
CBI to take over the investigation by constituting a Special Investigating
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Team. The Court did advert to the question of entrusting the
investigation to CBI in paragraphs 25A to 25D of the said judgment.
However, after perusal of the case diary of the Director of Vigilance
and Anti Corruption, the Court opined that the investigation of the crime
was in progress. Therefore, it only issued directions to strengthen the
investigation by Vigilance Commissioner in paragraph 30 of the said
judgment. In that context the Court noted that it was not necessary to
transfer the inquiry/investigation to CBI. That is the thrust of the
analysis of the previous judgments, if read in proper perspective. These
aspects have been duly taken note of in the impugned judgment in
paragraphs 107 onwards, including the legal position on the doctrine of
res judicata and finally answered in paragraphs 141 to 144 of the
impugned judgment in the following words:
“141. As observed by K.K. Sasidharan and G.R.
Swaminathan, JJ. in K. Kathiresan, supra, the Vigilance
Commission headed by the Vigilance Commissioner has extensive
powers to curb corruption and initiate action against government
servants and servants of public sector undertakings for acceptance
of illegal gratification and matters incidental thereto. The State
Vigilance Commission might enquire into allegations of corruption
against officials of the State Government. The State Vigilance
Commission might also conduct a detailed enquiry to fix the
responsibility for the loss of the file containing
incriminating
materials handed over to the then Chief Secretary by the Principal
Director of Income Tax (Investigation) on 12.8.2016 and ensure
that the guilty are brought to book and appropriate action taken in
accordance with law. However, investigation by the Vigilance
department is from the angle of vigilance. The aim is to detect
corruption. The power of the Vigilance Commission to investigate
would not extend to an enquiry into the modus operandi of the
gutkha mafia, the mode and manner of import from other States,
distribution and sale of gutkha and other chewable forms of
tobacco, and detection of the sources of supply. Enquiry by the
Vigilance Department would not unearth secret storage and
manufacturing units. Nor would such investigation be able to detect
incidents of illegal import, supply and sale or nab those actually
manufacturing, supplying, importing, selling or otherwise dealing
with prohibited food items containing tobacco and nicotine such
as gutkha.
E. SIVAKUMAR  v. UNION OF INDIA AND ORS.
[A.M. KHANWILKAR, J.]
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142. Investigation by a centralized agency like the CBI would be
more comprehensive and cover all aspects of the illegal
manufacture, import, supply, distribution and sale of banned
chewable tobacco items, including the detection of all those involved
in such illegal import, manufacture, supply, distribution and sale,
as also the detection of corruption and complicity of public servants
and/or government servants in this regard. As observed above,
there is no conflict between CBI investigation and investigation
by the State machinery. Investigation can be carried out more
effectively with the CBI and the Vigilance Department working
in cooperation.
143. The underground gutkha business is a crime against society
which needs to be curbed. We, therefore, deem it appropriate to
direct the CBI to investigate into all aspects of the offence of
illegal manufacture, import, supply, distribution and sale of gutkha
and other forms of chewable tobacco which are banned in the
State of Tamil Nadu and the Union Territory of Puducherry,
including detection of and action against those involved in the
offence as aforesaid, whether directly or indirectly, by aiding
abetting the offence or interfering with attempts to curb the
offence.
144. This order is, in our view, not only imperative to stop the
menace of the surreptitious sale of gutkha and chewable forms of
tobacco which pose a health hazard to people in general and in
particular
the youth and to punish the guilty, but also to instill faith
of the people in the fairness and impartiality of the investigation.
We see no reason for the State to view the entrustment of
investigation to the CBI as an affront to the efficiency or efficacy
of its own investigation system and we make it absolutely clear
that this direction is not to be construed as any definite finding of
this Court of the complicity of any constitutional functionary or of
any specific official of the State Government.”
7. The view so taken by the High Court in the facts of the present
case, in our opinion, being a possible view, the ground under
consideration is devoid of merit. Suffice it to observe that it is not a case
of disregarding the binding decision or precedent of the Coordinate Bench
of the same High Court. We say so because, in the impugned judgment
the decision of the Coordinate Bench has been distinguished. Besides,
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the question regarding the necessity to ensure a fair and impartial
investigation of the crime, whose tentacles were not limited to the State
of Tamil Nadu but transcended beyond to other States and may be
overseas besides involving high ranking officials of the State as well as
the Central Government, has now been directly answered.  For instilling
confidence in the minds of the victims as well as public at large, the High
Court predicated that it was but necessary to entrust the investigation of
such a crime to CBI.  Viewed thus, there is no infirmity in the conclusion
reached by the High Court in the impugned judgment, for having
entrusted the investigation to CBI.
8. As regards the second ground urged by the petitioner, we find
that even this aspect has been duly considered in the impugned
judgment. In paragraph 129 of the impugned judgment, reliance has been
placed on Dinubhai Boghabhai Solanki Vs. State of Gujarat and Ors.2,
wherein it has been held that in a writ petition seeking impartial
investigation, the accused was not entitled to opportunity of hearing as a
matter of course.  Reliance has also been placed in the case of Narender
G. Goel Vs. State of Maharashtra and Anr. 3,  in particular, paragraph
11 of the reported decision wherein the Court observed that it is well
settled that the accused has no right to be heard at the stage of
investigation. By entrusting the investigation to CBI which, as aforesaid,
was imperative in the peculiar facts
of the present case, the fact that the
petitioner was not impleaded as a party in the writ petition or for that
matter, was not heard, in our opinion, will be of no avail. That per se
cannot be the basis to label the impugned judgment as a nullity.
9. Our attention was invited to the observations made in
paragraph 73 in the State of Punjab (supra), which in turn adverts to the
exposition in D. Venkatasubramaniam & Ors. Vs. M.K. Mohan
Krishnamachari & Anr.,4  wherein it has been held that an order passed
behind the back of a party is a nullity and liable to be set aside only on
this score. That may be so, if the order to be passed behind the back of
the party was to entail in some civil consequence to that party. But a
person who is named as an accused in the FIR, who otherwise has no
right to be heard at the stage of investigation or to have an opportunity of
hearing as a matter of course, cannot be heard to say that the direction
2(2014) 4 SCC 626
3(2009) 6 SCC 65
4(2009) 10 SCC 488
E. SIVAKUMAR  v. UNION OF INDIA AND ORS.
[A.M. KHANWILKAR, J.]
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issued to transfer the investigation to CBI is a nullity.  This ground, in our
opinion, is an argument of desperation and deserves to be rejected.
10. The third contention urged by the petitioner, that neither
special reasons have been recorded nor the status report of the
investigation already done by the Vigilance Commission has been
considered, also does not commend us.  As noted earlier, the High Court
in the impugned judgment has exhaustively analysed all aspects of the
matter as can be discerned from paragraphs 84 to 87, 91 to 97, 100 to
107;  and again in paragraphs 141-144 which have been extracted
hitherto. In our opinion, in the peculiar facts of the present case, the
High Court has justly transferred the investigation to CBI after due
consideration of all the relevant aspects, which approach is consistent
with the settled legal position expounded in the decisions adverted to in
the impugned judgment, including the decision in Subrata Chattoraj Vs.
Union of India and Ors.,5 which predicates that transfer of
investigation to CBI does not depend on the inadequacy of
inquiry/investigation  carried out by the State police. We agree with the
High Court that the facts of the present case and the nature of crime
being investigated warrants CBI investigation.
11. In the case of Dharam Pal Vs. State of Haryana and Ors.,6
this Court has underscored the imperativeness of ensuring a fair and
impartial investigation
against any person accused of commission of
cognizable offence as the primary emphasis is on instilling faith in public
at large and the investigating agency.  The dictum in paragraph 24 and
25 of this reported decision is quite instructive which read thus:
“24. Be it noted here that the constitutional courts can direct for
further investigation or investigation by some other investigating
agency. The purpose is, there has to be a fair investigation and a
fair trial. The fair trial may be quite difficult unless there is a fair
investigation. We are absolutely conscious that direction for further
investigation by another agency has to be very sparingly issued
but the facts depicted in this case compel us to exercise the said
power. We are disposed to think that purpose of justice commands
that the cause of the victim, the husband of the deceased, deserves
to be answered so that miscarriage of justice is avoided. Therefore,
in this case the stage of the case cannot be the governing factor.
5(2014) 8 SCC 768
6(2016) 4 SCC 160
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25. We may further elucidate. The power to order fresh, de novo
or reinvestigation being vested with the constitutional courts, the
commencement of a trial and examination of some witnesses
cannot be an absolute impediment for exercising the said
constitutional power which is meant to ensure a fair and just
investigation. It can never be forgotten that as the great ocean
has only one test, the test of salt, so does justice has one flavour,
the flavour of answering to the distress of the people without any
discrimination. We may hasten to add that the democratic set-up
has the potentiality of ruination if a citizen feels, the truth uttered
by a poor man is seldom listened to. Not for nothing it has been
said that sun rises and sun sets, light and darkness, winter and
spring come and go, even the course of time is playful but truth
remains and sparkles when justice is done. It is the bounden duty
of a court of law to uphold the truth and truth means absence of
deceit, absence of fraud and in a criminal investigation a real and
fair investigation, not an investigation that reveals itself as a sham
one. It is not acceptable. It has to be kept uppermost in mind that
impartial and truthful investigation is imperative. If there is
indentation or concavity in the investigation, can the “faith” in
investigation be regarded as the gospel truth? Will it have the
sanctity or the purity of a genuine investigation? If a grave suspicion
arises with regard to the
investigation, should a constitutional court
close its hands and accept the proposition that as the trial has
commenced, the matter is beyond it? That is the “tour de force”
of the prosecution and if we allow ourselves to say so it has become
“idée fixe” but in our view the imperium of the constitutional courts
cannot be stifled or smothered by bon mot or polemic. Of course,
the suspicion must have some sort of base and foundation and not
a figment of one’s wild imagination. One may think an impartial
investigation would be a nostrum but not doing so would be like
playing possum. As has been stated earlier, facts are self-evident
and the grieved protagonist, a person belonging to the lower strata.
He should not harbour the feeling that he is an “orphan under
law”.
12. Suffice it to observe that we do not intend to deviate from the
conclusion reached by the High Court that in the peculiar facts and
circumstances of the case, it is but appropriate that investigation of the
crime in question must be entrusted to CBI.
E. SIVAKUMAR  v. UNION OF INDIA AND ORS.
[A.M. KHANWILKAR, J.]
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13. Reverting to the last contention that the High Court should
have been loath to entertain a public interest litigation at the instance of
respondent No.14, who happens to be a member of the Legislative
Assembly in the State of Tamil Nadu or that he had pro-actively
participated in raising the issue in the Assembly, has also been answered
in the impugned judgment. The Court, while entertaining public interest
litigation at the instance of respondent No.14, has relied upon the dictum
in K. Anbazhagan Vs. Superintendent of Police and Ors.,7 wherein it
is observed that the political opponents play an important role both inside
and outside the House and are the watchdogs of the Government in
power. They are the mouthpiece to ventilate the grievances of the public
at large, if genuinely and unbiasedly projected. Referring to this
decision, the Court noted in paragraph 70 of the impugned judgment that
a petition filed by such persons (such as respondent No.14) cannot be
brushed aside on the allegation of political vendetta, if otherwise, it is
genuine and raises a reasonable apprehension of likelihood of bias in the
dispensation of criminal justice system. Accordingly, the ground of
challenge under consideration, in our opinion, is devoid of merits.
14.  While parting, we may restate the observations made by the
High Court in paragraph 144 of the impugned judgment to clarify that
the transfer of investigation of the crime
in question to CBI is no
reflection on the efficiency or efficacy of the investigation done by the
State Vigilance Commission.  We reiterate that position.
15.  As a result, this special leave petition is dismissed.
Devika Gujral
                            Petition dismissed.
7(2004) 3 SCC 767