UNION OF INDIA AND ANR. versus SUNIL TRIPATHI ETC. ETC. on 31 July 2018

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[2018] 9 S.C.R. 374

SUPREME COURT REPORTS [2018] 9 S.C.R. 374

[2018] 9 S.C.R.

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UNION OF INDIA AND ANR.

v.

SUNIL TRIPATHI ETC. ETC.

(Civil Appeal Nos. 5987-5989 of 2018)

BJULY 31, 2018

[DIPAK MISRA, CJI, A. M. KHANWILKAR ANDDR. D. Y. CHANDRACHUD, JJ.]

Investigation:

CPreliminary enquiries conducted by CBI – Therein CBI reachedthe conclusion that it was not a fit case for the CBI to take over theinvestigation, and that investigation in the matters could be carriedout with the State Police – In Writ petitions, High Court directedCBI to convert the preliminary enquiries into FIRs/RCs and toensure that investigation was expeditiously completed – CBI’sDappeal challenging the direction – Held: High Court did notproperly analyse the pleas of CBI as well as the pleas raised by therespondents – Therefore, the case is remitted to High Court toconsider the contentious issues de novo – Appeals disposed of.

State of West Bengal and Ors. v. Committee forEProtection of Democratic Rights, West Bengal and Ors.(2010) 3 SCC 571 : [2010] 2 SCR 979 ; Manohar LalSharma v. Principal Secretary and Ors. (2014) 2 SCC532 ; Subramanian Swamy v. Director, Central Bureauof Investigation and Anr. (2014) 8 SCC 682 : [2014] 6SCR 873 – referred to.F

Case Law Reference

G CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 5987-5989 of 2018.

From the Judgment and Order dated 20.07.2017 of the HighCourt of Delhi at New Delhi in Writ Petition (C) Nos. 12313 of 2015,602 of 2017 and CM No. 2775 of 2017.H

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 andorder dated 20[th] July, 2017 passed by the High Court of Delhi at NewDelhi in Writ Petition (Civil) No.12313 of 2015, Writ Petition (Civil) No.602of 2017 & C.M. No.2775 of 2017, the appellant No.2 Central Bureau ofInvestigation (“CBI”) has been directed to take immediate steps toconvert preliminary enquiry (PE) No.2172014A0003 dated 7[th] May, 2014,PE No.4(A) dated 8[th] May, 2014 and PE No. AC12014 A0006 dated12[th] May, 2014 into FIRs/RCs and to ensure that investigation isexpeditiously completed and taken to its logical end in accordance withlaw. In addition, consequential directions have been issued to theappellant CBI.

2. The appellants have assailed the aforesaid decision on the groundthat such directions to the CBI are untenable in law and would requirethe investigating agency to ignore its limits and functions and act beyondthe statutory dispensation. According to the appellants, the effect of thedirections given by the High Court is to call upon the CBI to act in aparticular manner de hors the material facts and the conclusionrecorded in the enquiry report. The thrust of the contention urged by theappellants is that since the CBI, after conducting preliminary enquiry,was of the prima facie opinion that there was no involvement of anypublic servant or any loss to the public funds, it was not a fit case for theCBI to take over the investigation and that the investigation thereof canbe conveniently carried out by the State police. In this context, a notewas submitted by the CBI to the concerned department to proceed withthe matter in accordance with law. It is urged by the appellants that theHigh Court misdirected itself in relying upon the allegations adverted toin the PE registered by the CBI pursuant to the orders passed by theHigh Court on 8[th] January, 2014 in Writ Petition No.5578/2013 andmistook it as the conclusion arrived at by the Inquiry Officer. If thatbasis is discarded, then it would necessarily follow that the investigation A

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Aof the alleged offence can be conveniently done by the State police as itdoes not involve any instance of national or international ramificationsas well. In substance, it is urged by the appellants that it was not a fitcase for entrusting the investigation of the alleged crime to CBI and thatthe High Court decision has failed to analyse all the relevant aspectsplaced before it in that regard.B

3. The respondents, on the other hand, would contend that theappellants having failed to challenge the order dated 8[th] January, 2014passed in Writ Petition No.5578/2013, cannot be heard to contend thatCBI was not required to take over the investigation of the alleged crimes.In that, an unambiguous stand was taken by the appellants before theCHigh Court in the said writ petition that the investigation of the allegedcrimes referred to in the writ petition was already entrusted to the CBIand the investigation thereof was in progress. Notably, the CBIregistered three separate P.Es. on 7[th], 8[th] and 12[th] of May, 2014,reflective of the offence having been committed by unknown officials ofDthe Directorate General of Resettlement (“DGR”) and Ex-Servicemen (ESM) and including relating to undue peculiar benefit to private firmsand other persons mentioned in the accused list and corresponding lossto public exchequer and Government undertakings. In light of theallegations, preliminary enquiry in respect of each of these allegedoffences came to be registered against the firms and other unknownEpersons mentioned in the PEs. The concerned official who undertookthe preliminary enquiry eventually submitted notes which werereproduced in the Status Report dated 17[th] October, 2016 filed beforethe High Court, stating thus:

“2. That in compliance of order dated 08.01.2014 the RespondentNo.2 took up preliminary inquiry after receiving the writ petitionfrom the Ministry of Defence through the Department ofEx-Servicemen Welfare.

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3. It is also submitted that during the course of enquiry in all thethree Preliminary Enquiries, the issues raised by the Petitioner inGhis writ petition were covered and inquired into by RespondentNo.2/CBI. The Inquiry revealed the involvement of private personsin the matter of submission of false affidavits/information/documents to obtain ‘SECOND CAREER FACILITY’ throughthe Directorate General of Resettlement.

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4. During the course of inquiry, the Respondent CBI didnot come across sufficient evidence to substantiate theinvolvement of public servants to bring the case underPrevention of Corruption Act. Since, inquiry did notestablish the involvement of public servants, theRespondent No.2 sent Self Contained Notes to theauthorities as mentioned below in relation to the preliminaryinquiries 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 thelocal police by the concerned Directorates in the matter ofmisrepresentation, forged affidavits and other issues in whichforgery was revealed during enquiry and take necessary actionas per the prevalent extant provisions of the department on thesubject at the relevant point of time.

ii. PE AC-I2014A0006

Director General (Vigilance), Directorate General of Vigilance,Customs and Central Excise, Chanakayapuri, New Delhi forinitiating necessary action as per the provision of Finance Act,1994 against erring service providers on the instances ofirregularities 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, Ministryof Defence and Chief Vigilance Officers of PSUs viz. NationalHigh Authority of India and Central Warehousing Corporation ofIndia for taking appropriate action against the erring ESMcompanies for committing irregularities in depositing PF dues ofSecurity Guards, who are employed by them in PSUs.

5. In this regard it is submitted that the short affidavit filed byCBI be kindly read as part of this status report.

6. It is further most respectfully submitted that the CBI shallabide any further direction(s) passed by this Hon’ble Court.”

(emphasis supplied)

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AAccording to the respondents, it was not open to the appellants toact upon the aforementioned notes in view of the previous statementmade before the High Court as recorded in the order dated 8[th] January,2014, that the CBI has already commenced investigation into the allegedcrimes. Furthermore, the stated notes implicitly conceded that there wasenough material to suggest commission of cognizable offence. The factBthat the official submitting stated notes was of the view that the offencewas committed by persons other than public servants, would make nodifference. As a matter of fact, the nature of allegations regardingmisuse of official position and also causing loss to public exchequer,inevitably would involve role of public servants and officials. In eitherCcase, it was not open to CBI to resile from the statement made beforethe High Court on 8[th] January, 2014 and, therefore, the Court wasjustified in directing the CBI to investigate the alleged offence afterregistration of FIRs/RCs. The respondents would contend that nomaterial was produced by the CBI before the High Court so as tocompletely rule out the involvement of public servant in the commissionDof the alleged offence. The respondents have also invited our attentionto other criminal cases, which on being investigated by CBI, such asRC-19(S)/2013(R) under Section 120B read with Sections 420, 468 and471 of IPC at PS CBI/ACB/Ranchi, RC-009/2016/A0011 dated20[th] December, 2016 under Section 13(2), 13(1)(d) PC Act and SectionE120B read with Section 420 IPC and FIR No.RC-028/2017/A0003 dated31[st] January, 2017 under Section 120B and Section 120B read withSection 420 IPC. It is contended that the CBI had investigated theseoffences irrespective of the involvement of public servants. Accordingto the respondents, the High Court was justified in directing the CBI toregister FIRs/RCs and investigate the same and take it to its logical end.FTo buttress the arguments, the respondents have placed reliance on thedecisions of this Court in State of West Bengal and Ors. Vs.Committee for Protection of Democratic Rights, West Bengal andOrs.,[1]Manohar Lal Sharma Vs. Principal Secretary and Ors.,[2] andSubramanian Swamy Vs. Director, Central Bureau of InvestigationGand Anr.[3]4. We have heard Mr. R. Balasubramanium, learned counselappearing for the appellants and Mr. Abhimanue Shrestha, learned counselappearing for the respondents.1(2010) 3 SCC 5712(2014) 2 SCC 532H3(2014) 8 SCC 682

5. After analysing the impugned judgment, it is noticed that theHigh Court allowed the writ petitions and issued directions mainly forthe 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 itspreliminary examination as placed before this court in theaffidavit dated 27[th] January, 2016, it cannot be denied that thepresent case meets the bar of ‘exceptional situations’ when it isessential to provide credibility and instill confidence ininvestigations. It also cannot be denied that the incident may havenational and international ramifications. We are also of the viewthat grant of the prayer made by the writ petitioner is essential fordoing complete justice and enforcing fundamental and basic rightsof the ex-servicemen. Furthermore, ensuring benefits under aspecial 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 appellantsthat the same is a virtual reproduction of the contents of the three PEsregistered by the CBI, which were based on the allegations contained inthe previous writ petition and other materials furnished to the CBIconsequent to the order passed on 8[th] January, 2014. The appellants, inthe Status Report as well as in the reply affidavit, had placed on recordthat after the enquiry undertaken consequent to registration of threePEs, it was revealed that there was no involvement of any publicservant and loss to public exchequer nor the offences involved nationaland international ramifications necessitating investigation by the CBI.This contention has not been properly analysed by the High Court. TheHigh Court, however, discarded the argument of the appellants in oneparagraph, as can be discerned from paragraph 10 of the impugnedjudgment reproduced earlier. The High Court has also not dealt with theargument of the respondents that after the statement made by theappellants before the High Court on 8[th] January, 2014 that the CBI wasinvestigating into the alleged offences and the investigation was inprogress, 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 A

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Afurther contend that irrespective of the involvement of the publicservant, the offences in question could be and ought to be investigatedby the CBI in terms of the provisions of the Delhi Special PoliceEstablishment Act, 1946 in light of the undertaking given before the HighCourt as recorded in the order dated 8[th] January, 2014.

B7. Instead of examining all these contentious issues for the firsttime in these appeals, we deem it appropriate to set aside the impugnedjudgment and relegate the parties before the High Court forreconsideration of all aspects of the matter afresh on its own merits andin accordance with law. We may not be understood to have expressedany opinion, either way, on the issues that may require adjudication byCthe High Court.

8. Accordingly, these appeals are allowed. The impugnedjudgment and order is set aside and Writ Petition (Civil) No.12313 of2015, Writ Petition (Civil) No.602 of 2017 and C.M. No.2775 of 2017are restored to its original numbers on the file of the High Court of DelhiDat 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.

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Kalpana K. Tripathy

Appeals disposed of.

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