2006 Supreme(SC) 1196

2007(1) Supreme 219
SUPREME COURT OF INDIA
(Under Art. 32 of the Constitution of India)
S.B. Sinha, S.H. Kapadia & D.K. Jain, JJ.
M.C. Mehta—Petitioner
versus
Union of India & Ors.—Respondents
I.A.No. 431
In
Writ Petition (C) No. 13381 of 1984
With
I.A.No. 451, I.A.Nos. 438, 439, 442-443, 445 and 447 in I.A.No. 431, I.A.No. 440 and I.A.No. 441 in I.A.No. 440 in W.P. (C) No. 13381/1984
Decided on 27-11-2006
Counsel for the Parties :
For the Appearing Parties : Ghoolam Vahanvati, S.G., S.M.A. Kazmi, Advocate Gen., Ajay Siwach, A.A.G., K.K. Venugopal, S.C. Mishra, R.K. Jain, M.N. Rao, Sr. Advocates, Krishan Mahajan (A.C.), M.C. Mehta, Ms. Shilpa Chohan, Jitendra Chaudhary, Mrs. Lalita Kaushik, P.K. Chakravarti, Shail Kr. Dwivedi, G.V. Rao, Nakul Dubey, Rakesh K. Khanna, Dr. Rashmi Khanna, Surya Kant, S.B. Upadhyay, Shiraj C. Patodia, A.D.N. Rao, U.S. Prasad, Atishi Dipankar, Nikhil Nayyar, P. Parmeshwaran, Vijay Panjwani, Pradeep Mishra, Nikhil Nayyar, Ankit Singhal, B.V. Balramdas, Ashok K. Srivastava, Saurabh Trivedi, Manjeet Singh, T.V. George, Ajay Kr. Aggarwal, Ms. Binu Tamta, Sanjay R. Hegde, Anil Kr. Mishra, S. Wasim A. Qadri, Rajeev Dubey, Kamlendra Mishra, Ms. Rashmi Singh, K.K. Mohan, Vishwajit Singh, Mrs. Anil Katiyar, Ms. Mridula Ray Bhardwaj and Aruneshwar Gupta, Advocates and Ajay K. Aggarwal, Applicant/Petitioner-In-Person.

IMPORTANT POINT
In Supreme Court monitored cases, this Court is concerned with ensuring proper and honest performance of its duty by CBI and the Supreme Court is not concerned with the merits of the accusations in investigation, which are to be determined at the trial on the filing of the charge sheet in the competent court, according to the ordinary procedure prescribed by law.

Headnote:(i) Criminal Procedure Code, 1973 —Sections 173(2), 154, 157—Delhi Special Police Establishment Act, 1946—Sections 3 and 4—CBI (Crime) Manual-2005—CBI investigation in Taj Heritage case—Powers and functions of hierarchy in CBI in Supreme Court monitored cases—Difference of opinion in administrative hierarchy in CBI between the team of investigating officers and law officers on one hand and Director of Prosecution on the other hand on question as to whether there exists adequate evidence for judicial scrutiny—Uttar Pradesh Government started a project known as Taj Heritage Corridor Project to divert Yamuna and to reclaim 75 acres of land between Agra Fort and the Taj—Decision to use the reclaimed land for constructing food plazas, shops and amusement activities in terms of development of Heritage Corridor for Taj Trapezuim Zone at Agra—CBI enquiry ordered by the Supreme Court in writ petition filed alleging that concerned persons in power are trying to damage or endanger the World Heritage by their hasty/irregular/illegal activities—A report on preliminary enquiry recorded that a sum of Rs. 17 crores was released from the State Exchequer without proper sanction of the competent authority—Supreme Court directed CBI to register an FIR and make further investigation against officials of Government including former Chief Minister of the State—Director, CBI submitted his Status Report stating that evidence was not sufficient to launch prosecution—He has merely relied upon the opinion of the Attorney General, there being difference of opinion between the officers of CBI—Entire investigation and law officers’ team was ad idem in its opinion on filing of charge sheet—Whether the Director, CBI was right in referring the matter for opinion to the Attorney General of India—(No)—Entire material collected by CBI along with the report of S.P. to be placed before the concerned Court/Special Judge in terms of Section 173(2) Cr.P.C.—Constitution of India—Article 142.

       As per S.H. Kapadia and D.K. Jain, JJ.

       Held : This Court has repeatedly emphasized in the above judgments that in Supreme Court monitored cases this Court is concerned with ensuring proper and honest performance of its duty by CBI and that this Court is not concerned with the merits of the accusations in investigation, which are to be determined at the trial on the filing of the charge-sheet in the competent court, according to the ordinary procedure prescribed by law. Therefore, the question which we have to decide in the present case is whether the administrative hierarchy of officers in the CBI, in the present case, have performed their duties in a proper and honest manner.(Para 30)

       The formation of the opinion, whether or not there is a case to place the accused on trial, should be that of the officer in charge of the police station and none else. Under the CBI Manual, the officer in charge of the police station is the S.P.. In this connection, we quote hereinbelow the CBI Manual, which though not binding on this Court in Supreme Court monitored cases, nonetheless, the said Manual throws light on the controversy in hand.(Para 31)

       In the present case, the investigating team consisted of the I.O., S.P., D.I.G., Joint Director and Additional Director CBI. In the present case, the law officers consisted of D.L.A. and A.L.A.. In the present case, the entire investigating team as well as the said law officers are ad idem in their mind. They have recommended prosecution. It is only the Director of Prosecution and the Sr. P.P. who have opined that a closure report should be filed. It may be noted that Sr. P.P. does not find place in clause 6.1 which refers to the administrative hierarchy of CBI. Further, the Director of Prosecution is the only officer who had dissented from the opinion of the investigating team including the S.P.. It appears that this opinion is also based only on interpretation of legal evidence. Moreover, as can be seen from the Status Report dated 31.12.2004, the Director, CBI has not given his independent opinion. He has merely relied upon the opinion of the Attorney General. We can understand the Director, CBI expressing an opinion and then referring the matter to the Attorney General. Under the above circumstances, we are of the view that, there was no difference of opinion in the matter of investigation between the concerned officers of CBI and, therefore, there was no question of the Director, CBI referring the matter to the Attorney General of India. As stated by this Court in the case of R. Sarla (2000) 4 SCC 459, the formation of opinion, whether or not there is a case to place the accused on trial has to be of the officer in charge of the police station. One fails to understand why an opinion of Sr. P.P. had been taken in the present case. He is not a member of the hierarchy. The S.P. is not legally obliged to take his opinion. In the circumstances, when there was no difference of opinion in the concerned team, the question of seeking opinion of the Attorney General did not arise. Lastly, even under clause 19.15 of the CBI Manual it is expressly stated that the report of the S.P. should be prepared personally by the S.P. and that the internal differences of opinion among CBI Officers should not find place in the SPs Report. As stated above, CBI was required to follow the procedure in Cr.PC. The result of the investigation by the police is not legal evidence. Keeping in mind the scheme of Sections 168, 169, 170 and 173 of the Cr.PC, in the facts and circumstances of this case, we direct the entire material collected by CBI along with the report of the S.P. to be placed before the concerned court/ Special Judge in terms of Section 173(2) Cr.PC. The decision to accept or reject the report of the S.P. shall be that of the concerned court/ Special Judge, who will decide the matter in accordance with law.(Para 32)

       Under Article 142 of the Constitution, this Court is empowered to take aid and assistance of any Authority for doing complete justice in any cause or matter pending before it. In the present case, at one stage of the matter, voluminous records were placed by CBI before this Court along with the recommendations of its officers. To vet and analyse the material, this Court essentially directed CVC to study the material, analyse the findings and give its recommendations as to the manner in which the investigations have been carried out. Since CVC has fairly stated before this Court that its advice is only in the nature of an opinion which is not a binding direction in this case, we are not required to examine the scope of the CVC Act, 2003. Secondly, in our earlier order, we have given time to CBI to complete legal scrutiny when we were told that there was difference of opinion in the administrative hierarchy of CBI. However, after going through the recommendations of the above officers, we are of the view, as stated above, that there was no difference of opinion of the concerned officers and, therefore, there was no question of reference to the Attorney General. We reject the Status Report dated 31.12.2004 as it is a charade of the performance of duty by the CBI. Thus, a case for judicial review is made out.(Para 33)

       (ii) Delhi Special Police Establishment Act, 1946—Sections 2 and 3—CBI MANUAL-2005—Criminal Procedure Code, 1973—Sections 154 and 157—CBI Investigation—CBI Manual is subject to the provisions of the Code of Criminal Procedure—In case of conflict, Code of Criminal Procedure shall prevail—It is the Magistrate alone who has the final say in the matter.

       Per S.B. Sinha, J.

       Held : The Central Government has made a manual. It provides for hierarchy of the officers who, having regard to the gravity or otherwise of the offence, would supervise investigation. It provides for appointment of the investigating officer and the officers supervising the investigation. CBI Manual is based on statutory provisions of the Code of Criminal Procedure. It provides for essential guidelines for the functioning of the said body.(Para 39)

       CBI Manual, thus, is subject to the provisions of the Code of Criminal Procedure. In case of conflict, although none has been pointed out, evidently, the Code of Criminal Procedure shall prevail. Even under ordinary law, the investigating officer has a statutory duty to investigate into an offence upon receipt of a First Information Report as envisaged under Section 154 of the Code of Criminal Procedure. Section 157 thereof provides for the procedure for investigation, wherefor the only duty cast on the investigating officer is to maintain his case diary in terms of Section 172 of the Code of Criminal Procedure.(Para 43)

       It is beyond any doubt or dispute that investigation of an offence is the field exclusively reserved for the police. It may be subject to supervision of higher ranking officer (s) but the courts jurisdiction to have control in this behalf is beyond any controversy.(Para 44)

       (iii) Constitution of India—Article 142—Powers of Supreme Court—Court is empowered to take aid and assistance of any authority for doing complete justice in any cause or matter pending before it—CBI enquiry—Voluminous records placed by CBI before the Supreme Court along with recommendations of its officers—To analyse the material, Court directed Central Vigilance Commission to study the material, analyse the findings and give its recommendations as to the manner in which the investigations have been carried out—Advice of CVC is only in the nature of an opinion which is not a binding direction in this case—Central Vigilance Commission Act, 2003.(Para 33)