Mohd. Ayub Khan vs State Of Tripura And Ors.

[1] The petitioner seeking direction from this court for reinvestigation of West Agartala P.S. Case No.169 of 2009 which was registered under Section 120(B)/420/465/468/471/34 of the IPC, has filed this writ petition. The petitioner has also urged to direct such reinvestigation by the Central Bureau of Investigation in short the CBI. The petitioner had filed the complaint. The petitioner who has retired as the Principal Chief Conservator of Forest has alleged forgery of documents, for hatching criminal conspiracy against him by some senior officers including Sri Samarendra Chandra Das, Sri S.C. Das, Sri L.H. Darlong, Sri V.K. Bahuguna and Sri Prasenjit Biswas. The petitioner alleged that those officers had also committed misappropriation, and acted by suppressing public interest and showing disobedience to the direction of the apex court and above all, they have acted in a manner highly unbecoming of any public servant. The said police case was registered on the basis of the said complaint. After investigation, the final report was filed on 16.10.2015 chargesheeting Sri Samarendra Chandra Das under Section 465/469/470/471 of the IPC.

[2] The petitioner having received the copy of the said final report and on examination thereof, could realize, as stated in this writ petition that the entire investigation was biased, unfair and misconceived. To illustrate his grounds, the petitioner has cited from the police report for the 'reasons' as assigned by the Investigating Officer, Dhirendra Chandra Das, a Deputy Superintendent [Crime Investigation Department]:

"12. Allegation relating to reply of Assembly question No.636 dated 01.06.2005 given by Hon'ble Chief Minister in the State Assembly is a privileged matter as per article 194 of the Constitution of India. The reply of the Assembly question is a privileged document of the House. Hence, investigation on the reply of the Assembly question No.636 dated 01.09.2005 was not conducted in the case.

Evidence so far gathered in the course of investigation do not warrant submission of chargesheet against Shri S.C. Das Commissioner & Secretary, GA (AR) Department, Shri L.H. Darlong, IAS, V.K. Bahuguna, IFS and Shri Prasenjit Biswas, IFS to submit chargesheet in connection with the case."

[3] As a prima facie case has been found to have been established from the materials collected in the investigation, the chargesheet has been filed against Sri Samarendra Chandra Das, IFS, under Section 465/469/470/471 of the IPC and it has been observed in the police report that as the president of TFS Association, Sri Samarendra Chandra Das IFS knowingly prepared a false document i.e representation. He with back date i.e 13.02.2005, pushed forward that representation in the name of the TFS Association keeping all the members of the association in dark, in order to harm the reputation of Sri M.A. Khan, Ex-PCCF and sent the forged/false document to the GA(AR) department, Government of Tripura in order to use the forged document as genuine. Since the other officers against whom the petitioner levelled serious allegations were let off by the investigating agency, the petitioner has urged for reinvestigation of the case.

[4] Mr. Somik Deb, learned counsel appearing for the petitioner has strenuously argued that the premise on which the other persons were let off is not only misconceived but also an act to bury the fair investigation. So far the 'privilege' is concerned it is in the precinct of the house and the members of the house can only enjoy such privilege but the same cannot be extended to anyone else. Thus, for non-investigating the aspect relating to the privileged information is entirely deliberate, illegal and uncalled for. However, Mr. Somik Deb, learned counsel appearing for the petitioner did not touch upon whether a Police Officer can verify the statement made in the legislative assembly or not. Mr. Deb, learned counsel has stated that no one can enjoy the privilege against criminal prosecution. In this regard, he has placed his reliance on Lokayukta Justice Ripusudan Dayal and Others vs. State of Madhya Pradesh and Others reported in (2014) 4 SCC 473.

[5] Mr. Deb, learned counsel has also referred in support of his contention for reinvestigation/fresh investigation or further investigation to the decision of the apex court in Pooja Pal vs. Union of India and Others reported in (2016) 3 SCC 135. In Pooja Pal (supra), the apex court has observed that fundamentally, justice not only has to be done but also must appear to have been done. Residuary jurisdiction of a court to direct further investigation or reinvestigation by any impartial agency, notwithstanding, has to be essentially invoked if the statutory agency, in charge of the investigation, appears to have been ineffective or is presumed or inferred to be not being able to discharge his function fairly, meaningfully and fructuously. As the case of justice has to reign supreme, a court of law cannot reduce itself to be a resigned and helpless spectator and with the forcing consequences, apparent and just on the face of a faulty investigation, meekly completed the formalities to record a foregone conclusion. Justice then would become a casualty.

[6] In Zahira Habibulla H. Sheikh and Another vs. State of Gujrat and Others, reported in (2004) 4 SCC 158, the apex court had occasion to observe that the duty of the court is to ensure fair investigation by remedying the deficiencies and defaults therein, so as to bring forth full and material facts to prevent miscarriage of justice. It has been observed further there that when the courts find extraordinary or exceptional circumstances rendering the reinvestigation imperative, in such eventualities even de novo investigation can be ordered while realising that in a case of discernible deficient investigational prosecution the courts are to deal the same with an iron hand appropriately within the framework of law. It was underlined that in appropriate case even if the charghesheet was filed, it was open to the High Court or to the apex court to direct investigation of the case to be handed over to the CBI or to any other agency or to direct investigation de novo in order to do complete justice in the facts of the case.

[7] Mr. B.C. Das, learned Advocate General appearing for the state-respondents has submitted that the investigation is so fair, even the petitioner has to find out a constructed premise to approach this court. This writ petition is an outcome of frustration as those persons who were not remotely connected with any offence and whom the petitioner intended to rope in by abusing the process of law have been comprehensively investigated and they have been relieved of the criminal liability. Mr. Das, learned Advocate General has referred to a decision of the apex court in Prof. K.V. Rajendran vs. Superintendent of Police, CBCID South Zone, Chennai & Ors. reported in 2013 AIR SCW 5144 where it has been held that:

"10. In view of the above, the law can be summarised to the effect that the Court could exercise its Constitutional powers for transferring an investigation from the State investigating agency to any other independent investigating agency like CBI only in rare and exceptional cases. Such as where high officials of State authorities are involved, or the accusation itself is against the top officials of the investigating agency thereby allowing them to influence the investigation, and further that it is so necessary to do justice and to instil confidence in the investigation or where the investigation is prima facie found to be tainted/biased."

[Emphasis added]

[8] Learned Advocate General has further placed his reliance on State of West Bengal and Others vs. Committee for Protection of Democratic Rights, West Bengal and Others, reported in (2010) 3 SCC 571, where it has been unambiguously enunciated by the apex court as under:

"Before parting with the case, we deem it necessary to emphasise that despite wide powers conferred by Articles 32 and 226 of the Constitution, while passing any order, the Courts must bear in mind certain self-imposed limitations on the exercise of these Constitutional powers. The very plenitude of the power under the said Articles requires great caution in its exercise. In so far as the question of issuing a direction to the CBI to conduct investigation in a case is concerned, although no inflexible guidelines can be laid down to decide whether or not such power should be exercised but time and again it has been reiterated that such an order is not to be passed as a matter of routine or merely because a party has levelled some allegations against the local police. This extra-ordinary power must be exercised sparingly, cautiously and in exceptional situations where it becomes necessary to provide credibility and instill confidence in investigations or where the incident may have national and international ramifications or where such an order may be necessary for doing complete justice and enforcing the fundamental rights. Otherwise the CBI would be flooded with a large number of cases and with limited resources, may find it difficult to properly investigate even serious cases and in the process lose its credibility and purpose with unsatisfactory investigations."

[Emphasis added]

[9] We have scrutinized the record carefully and find that there is no material even to suspect the fairness of the investigation. That apart, the ground as urged for directing investigation to privileged information has not factored the final outcome of the investigation. In Lokayukta (supra) the apex court has made a series of observations in the context of 'privilege' and 'the privilege motion'.

Article 194 is similar to Article 105 of the Constitution, which provides for the privileges of Parliament and its Members. The said Articles provide that the privileges enjoyed by the legislature shall be such as may from time to time be defined by the legislature by law. It is relevant to mention that any law made by the Parliament or the legislature is subject to the discipline contained in Part III of the Constitution. The privileges have not been defined but the above Article provides that until the same are so defined (i.e. by the legislature by law), they shall be those which the House or its members and committees enjoyed immediately before the coming into force of Section 26 of the Constitution Forty-fourth Amendment Act, 1978.

As per Chapter XI of the 'Practice and Procedure of Parliament' (Fifth edition), by M.N. Kaul and S.L. Shakdher in interpreting parliamentary privileges at Page 211 observed :

"...regard must be had to the general principle that the privileges of Parliament are granted to members in order that they may be able to perform their duties in Parliament without let or hindrance. They apply to individual members only insofar as they are necessary in order that the House may freely perform its functions. They do not discharge the member from the obligations to society which apply to him as much and perhaps more closely in that capacity, as they apply to other subjects. Privileges of Parliament do not place a Member of parliament on a footing different from that of an ordinary citizen in the matter of the application of laws unless there are good and sufficient reasons in the interest of Parliament itself to do so.

The fundamental principle is that all citizens, including members of Parliament, have to be treated equally in the eye of the law. Unless so specified in the Constitution or in any law, a member of Parliament cannot claim any privileges higher than those enjoyed by any ordinary citizen in the matter of the application of law."

It is clear that in the matter of the application of laws, particularly, the provisions of the Lokayukt Act and the Prevention of Corruption Act, 1988, insofar as the jurisdiction of the Lokayukt or the Madhya Pradesh Special Establishment is concerned, all public servants except the Speaker and the Deputy Speaker of the Madhya Pradesh Vidhan Sabha for the purposes of the Lokayukt Act fall in the same category and cannot claim any privilege more than an ordinary citizen to whom the provisions of the said Acts apply. In other words, the privileges are available only insofar as they are necessary in order that the House may freely perform its functions but do not extend to the activities undertaken outside the House on which the legislative provisions would apply without any differentiations. In view of the above, we reject the contra argument made by Mr. C.D. Singh.

[Emphasis added]

In no way the petitioner's contention for reinvestigation would get nourishment from the said report.

[10] As we have already observed that the petitioner has failed to make out any case of 'unfair' investigation leading to travesty of justice, this court is not inclined to exercise its discretionary power by directing the state to re-investigate the complaint of the petitioner afresh or to investigate it further. The petitioner, if he is really affected he would have filed a protest petition in the court of the Magistrate and pressed for further investigation under Section 173(8) of the Code of Criminal Procedure. But the petitioner has not done so though such substantive statutory remedy was available to him.

[11] For the reasons stated above, this writ petition is dismissed.

However, there shall be no order as to costs.