2003 Supreme(SC) 596

2003(4) Supreme 466
Supreme Court of India
(From Delhi High Court)
S. Rajendra Babu and G.P. Mathur, JJ.
Union of India —Appellant
versus
Prakash P. Hinduja & Anr. —Respondents
Criminal Appeal No. 666 of 2002
With
Criminal Appeal No. 746 of 2002
Decided on 7-7-2003
Counsel for the Parties :
For the Appellant : K.N. Raval, Soliciter General, Ms. Meenakshi Sakhardande, ADN Rao, A. Mariarputham, P. Parmeswaran, D.N. Ray, Ms. Prerna Kumari, Ms. Vinita Sinha and B.V. Balramdas, Advo­cates.
For the Respondents : Ram Jethamalani, Sr. Advocate, Amit Desai, UA Rana, Arvind Kumar Nigam, Alok Kumar Sen Gupta, Sajan Narain, Rajeev Jha, Amit Bhagat, Mrinal Mandal, Ashim Aggarwal, Rajan Narain and Prashant Bhushan, Advocates.

Important Point
Investigation of cases, filing of charge sheets and then prosecu­tion of such cases are essentially for the CBI and there is no requirement of any sanction by the Central Vigilance Commission for prosecuting Hinduja brothers in the Bofors Gun case.

Headnote:(i) Indian Penal Code, 1860—Section 120B read with Section 420—Prevention of Corruption Act, 1947—Section 5(2) r/w Section 5(1)(d)—Charge sheet for offences under—Bofors Gun case—Con­tract between Government of India and M/s. AB Bofors for supply of gun systems along with vehicles, ammunition and other accesso­ries at a total cost of Rs. 1437.72 crores—Advance payment equivalent to 20 per cent of contract value paid to M/s. AB Bofors—Announcement made by Swedish Radio that Bofors had man­aged to obtain contract from Government of India after payment of large amounts as bribe—CBI Investigation—Charge sheet submitted and cognizance taken and process issued against accused persons—Petition for quashing cognizance order alleging that cases were never reported to CVC and CVC has not reviewed cases—Whether High Court was justified in quashing cognizance taken by Special Judge and all consequential proceedings—(No).

       Held : A duty has been cast on the CVC to review the progress of all cases moved by the CBI for sanction of prosecution, specially those in which sanction has been delayed or refused. The judgment nowhere says that the CBI will have to take concurrence or sanction from the CVC before filing charge sheet in Court. No right of any kind has been conferred upon the alleged offender or the accused to approach the CVC or to challenge the action of CBI in submission of charge-sheet in Court on the ground of some purported irregularity in making a report to the CVC regarding progress of investigation. The view taken by the High Court that as the CBI submitted the charge-sheet without reporting and taking approval or consent from the CVC, the same was illegal and no cognizance could be taken thereon is, therefore, wholly erroneous and does not at all follow from the judgment. (Paras 25 & 26)

       The directions issued cannot be interpreted in abstract but have to be read and understood in the context of the facts and circumstances leading to the filing of the writ petition. The facts which were revealed and were brought to light during the course of hearing showed that the CBI had failed to perform its statutory duty and legal obligation of investigating offences and after completing the investigation taking it to its logical conclusion of launching prosecution against all those who were found to have committed offences. The direction issued never meant to create or confer some kind of additional rights in favour of the accused as held by the High Court. The accused has absolutely no right to approach the CVC for taking any steps to stop the CBI from either proceeding against him or from launching prosecution against him by filing a charge sheet. Further, the directions issued do not confer any kind of a right upon the accused to assail the charge sheet on the ground that the CBI had not reported the progress of investigation to the CVC or had not taken some kind of approval or concurrence from it before submission of the charge sheet in Court. (Para 27)

       Investigation of cases, filing of charge sheets and then prosecution of such cases are essentially for the CBI, the duty of the CVC being to ensure that the CBI discharges its duties without any interference and without undue favour to any person. In para 7 it is stated that the CVC holds review meetings with the CBI to review the progress of cases and the meetings are held on monthly basis and in this manner the CVC is discharging its duties under the Government Resolution dated 4.4.1999 as well as the directions of this Court. It is also specifically stated that the registration of cases and its investigation is primarily the duty of CBI and filing of charge sheet does not in any manner require any approval of the CVC. The averments made in these affidavits clearly show that the investigation report was sent to the CVC by the CBI before filing of the first charge sheet and the CVC was also apprised of the developments in the case. As mentioned earlier, in para 62 of the first charge sheet, it was clearly mentioned that the investigation regarding further transfer of the funds routed through various countries was continuing and investigation regarding the role played by three Hinduja brothers was also continuing. On account of the fact that CVC Bill could not be passed by the Rajya Sabha, the functioning of the CVC was being regulated by the Government Resolution dated 4.4.1999 and this nowhere provided for taking any concurrence or approval from the CVC before filing of the charge sheet. The CVC having filed an affidavit stating that investigation report had been submitted to it by the CBI and that it had no role in the filing of the charge-sheet and the conduct of the cases, the plea raised by the accused fell to the ground and the petition filed by him ought to have been dismissed straight away. The High Court committed serious error in not giving due consideration to the counter affidavits filed by the CBI and CVC and especially to the fact that on account of non-passing of the CVC Bill by the Rajya Sabha and lapsing of the Ordinance, the duties and functions of the CVC are to be performed in accordance with the Government of India Resolution dated 5-4-1999, which nowhere provided for taking any kind of a concurrence or approval from the CVC before submission of the charge sheet. (Para 31)

       (ii) Criminal Procedure Code, 1973 —Section 482—Inherent powers—Scope of powers of High Court—Grounds on which power under Section 482 Cr.P.C. can be exercised to quash criminal proceedings.

       Held : Section 482 Cr.P.C. saves inherent powers of the High Court and such a power can be exercised to prevent abuse of the process of any Court or otherwise to secure the ends of justice. The power can therefore be exercised to quash the criminal proceedings. The grounds on which the prosecution initiated against an accused can be quashed by the High Court in exercise of power conferred by Section 482 Cr.P.C. has been settled by a catena of decisions of this Court. (Para 9)

       Grounds on which power under Section 482 Cr.P.C. can be exercised to quash the criminal proceedings and basically they are (1) where the allegations made in the FIR or complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused, (2) where the uncontraverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused, (3) where there is an express legal bar engrafted in any of the provisions of Code of Criminal Procedure or the concerned Act to the institution and continuance of the proceedings. But this power has to be exercised in a rare case and with great circumspection.

        (Para 9)

       (iii) Criminal Procedure Code, 1973—Section 173—Investigation—Powers of Court—Whether Court can go into validity or otherwise of investigation—(No)—This field being exclusively reserved for investigating agency.

       Held : The manner and the method of conducting the investigation are left entirely to the officer in charge of the police station or a subordinate officer deputed by him. A Magistrate has no power to interfere with the same. The formation of the opinion whether there is sufficient evidence or reasonable ground of suspicion to justify the forwarding of the case to a Magistrate or not as contemplated by Sections 169 and 170 is to be that of the officer in charge of the police station and a Magistrate has absolutely no role to play at this stage. Similarly, after completion of the investigation while making a report to the Magistrate under Section 173, the requisite details have to be submitted by the officer in charge of the police station without any kind of interference or direction of a Magistrate and this will include a report regarding the fact whether any offence appears to have been committed and if so, by whom, as provided by clause (d) of sub-section Section (2)(i) of this Section. These provisions will also be applicable in cases under Prevention of Corruption Act, 1947 by virtue of Section 7A thereof and Prevention of Corruption Act, 1988 by virtue of Section 22 thereof. (Para 13)

       The legal position is absolutely clear and also settled by judicial authorities that the Court would not interfere with the investigation or during the course of investigation which would mean from the time of the lodging of the First Information Report till the submission of the report by the officer in charge of police station in court under Section 173(2) Cr. P.C., this field being exclusively reserved for the investigating agency. (Para 19)