Sunil Tripathi vs Union Of India & Anr

Gita Mittal, J

The writ petitioners by way of these writ petitions make serious allegations of corruption by officials of the Directorate General Resettlement

(DGR), functioning under the Ministry of Defence. So far as WP(C)No.12313/2015 is concerned, reference is made in para 9(H) to specific

instances.

Based on the specific instances cited, the petitioner has urged that the factual narration makes out commission of serious offences under the Indian

Penal Code and other penal statutes and makes the following prayers:

(a) Issue a writ nature of mandamus or any other appropriate writ, order or directions in the nature of Mandamus directing the CBI to

immediately convert Preliminary Enquiry (PE) No.2172014A0003 dated 07.05.2014, PE No.4(A) dated 08.05.2014 and PE No.PE-AC1

2014 A0006 dated 12.05.2014 into FIR.

(b) Monitor the investigation in reference to the aforesaid P.Es/FIR in the interest of justice.

(c) Pass such further and other orders which this Hon’ble Court may deem fit and proper.

Premised on similar assertions, Lt. Col. Naveen Kumar Anand (Retd.), an ex-serviceman also makes the following prayers:

(a) Issue a writ in the nature of certiorari for quashing the closure report dated 23.07.2014.

(b) Issue writ in the nature of mandamus or any other writ, order or directions in the nature of mandamus directing the respondent no.2 to

re-carry out investigations as directed by respondent No.1 and to submit progress report to this Hon’ble Court on quarterly basis.

(c) Issue writ in the nature of mandamus or any other writ, order or directions in the nature of mandamus directing the respondent no.2 to

carry out investigations referred by the General Officer Commanding, Headquarter Delhi Area in end 2015 and submit progress report to

this Hon’ble Court on quarterly basis.

(d) Issue any other writ as this Hon’ble Court may deem fit in the light of the facts and circumstances mentioned above.

Mr Sunil Tripathi, petitioner in WP(C) No. 12313/2015 had earlier filed WP(C) No. 5578/2013 titled 'Sunil Tripathi vs. Union of India & Others'

wherein, by an order dated 8th January, 2014, the Court had noted the submission that the allegations in the Writ Petition had already been entrusted

the Central Bureau of Investigation and it was already investigating the same.

The CBI appears to have merely registered preliminary inquiries in the matter and the same did not culminate into registration of formal FIRs/RCs,

and no matters were sent up to trial.

Mr. Abhimanue Shrestha, ld. counsel for the petitioner submits that this was despite the CBI filing an affidavit in this court to the effect that

cognizable offences were made out.

We find that CBI has filed an affidavit dated 27th January, 2016 wherein it has been stated as follows:-

“iii After conclusion of enquiry in this regard, a Self Contained Note dated 8.12.2014 has been sent to Director General (Vigilance),

Directorate General of Vigilance, Customs and Central Excise, Chanakayapuri, New Delhii ntimating instances of short payment of service

tax for initiating necessary action against erring service providers; who are not public servants.

PE 2172014A0003/ACU-II/CBI/NEW DELHI :

(i) This preliminary enquiry was registered on 7.5.2014 against 46 Ex-servicemen/Institutes and unknown officials of Directorate General

of Resettlement.

(ii) The allegations in the preliminary enquiry were related to the irregularities in the functioning of the Directorate General Resettlement

(DGR) in regard to second career facility to Ex-servicemen (ESM) and included 08 officers who were allotted multiple second careers so

that the same are sublet to civilians on quid-pro-quo basis; single registration number ie. 1521 has been allotted to 03 different officers and

single officer has been allotted 03 different registration numbers; 07 private institutes have been incorporated with the Registrar of

Companies (ROC) after the start of training year of DGR Training Directorate, within a short span of three months which have been

selected and listed (in the training schedule published by the DGR) for conducting the resettlement courses to loot the public money by

private persons in collaboration with the officials of DGR (Training Directorate); King Manpower Solution Private Limited was a non-

existent and fake institute run from the residential premises as also Ambience Institute of Technology and Management and Escalade

Enterprises India Priave Limited were being run from residences; 26 Ex-servicemen officers were employed with various organizations

have taken second employment through DGR by submitting forged documents and the details of ex-serviceman deployed with NHAI/PSUs

provided by the agencies contain the same service number of different persons.â€​

(Emphasis by us)

It is therefore, evident that complete steps thereon have not been taken by the CBI despite its prima facie observations supporting the contentions.

Mr. Abhimanue Shrestha, ld. counsel for the petitioner has placed the following observations of the Supreme Court reported at (2010) 3 SCC 571,

State of West Bengal & Ors. v. Committee for Protection of Democratic Rights, West Bengal & Ors. in paras 36, 38, 39, 44, 51, 53, 57 and 59. We

extract the observations made in paras 57 and 59 regarding the scope of power of judicial review of the High Courts and the conclusions drawn by the

Supreme Court in para 68 hereafter :

“57. As regards the powers of judicial review conferred on the High Court, undoubtedly they are, in a way, wider in scope. The High

Courts are authorised under Article 226 of the Constitution, to issue directions, orders or writs to any person or authority, including any

Government to enforce fundamental rights and, “for any other purposeâ€. It is manifest from the difference in the phraseology of

Articles 32 and 226 of the Constitution that there is a marked difference in the nature and purpose of the right conferred by these two

articles. Whereas the right guaranteed by Article 32 can be exercised only for the enforcement of fundamental rights conferred by Part III

of the Constitution, the right conferred by Article 226 can be exercised not only for the enforcement of fundamental rights, but “for any

other purposeâ€​ as well i.e. for enforcement of any legal right conferred by a statute, etc.

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In Dwarka Nath case [AIR 1966 SC 81 : (1965) 3 SCR 536 ]this Court had said that Article 226 of the Constitution is couched in

comprehensive phraseology and it ex facie confers a wide power on the High Court to reach injustice wherever it is found. This article

enables the High Courts to mould the reliefs to meet the peculiar and extraordinary circumstances of the case. Therefore, what we have said

above in regard to the exercise of jurisdiction by this Court under Article 32, must apply equally in relation to the exercise of jurisdiction by

the High Courts under Article 226 of the Constitution.

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Conclusions

Thus, having examined the rival contentions in the context of the constitutional scheme, we conclude as follows:

(i) The fundamental rights, enshrined in Part III of the Constitution, are inherent and cannot be extinguished by any constitutional or

statutory provision. Any law that abrogates or abridges such rights would be violative of the basic structure doctrine. The actual effect and

impact of the law on the rights guaranteed under Part III has to be taken into account in determining whether or not it destroys the basic

structure.

(ii) Article 21 of the Constitution in its broad perspective seeks to protect the persons of their lives and personal liberties except according

to the procedure established by law. The said article in its broad application not only takes within its fold enforcement of the rights of an

accused but also the rights of the victim. The State has a duty to enforce the human rights of a citizen providing for fair and impartial

investigation against any person accused of commission of a cognizable offence, which may include its own officers. In certain situations

even a witness to the crime may seek for and shall be granted protection by the State.

(iii) In view of the constitutional scheme and the jurisdiction conferred on this Court under Article 32 and on the High Courts under Article

226 of the Constitution the power of judicial review being an integral part of the basic structure of the Constitution, no Act of Parliament

can exclude or curtail the powers of the constitutional courts with regard to the enforcement of fundamental rights. As a matter of fact, such

a power is essential to give practicable content to the objectives of the Constitution embodied in Part III and other parts of the Constitution.

Moreover, in a federal constitution, the distribution of legislative powers between Parliament and the State Legislature involves limitation on

legislative powers and, therefore, this requires an authority other than Parliament to ascertain whether such limitations are transgressed.

Judicial review acts as the final arbiter not only to give effect to the distribution of legislative powers between Parliament and the State

Legislatures, it is also necessary to show any transgression by each entity. Therefore, to borrow the words of Lord Steyn, judicial review is

justified by combination of “the principles of separation of powers, rule of law, the principle of constitutionality and the reach of

judicial review..

(iv) If the federal structure is violated by any legislative action, the Constitution takes care to protect the federal structure by ensuring that

the Courts act as guardians and interpreters of the Constitution and provide remedy under Articles 32 and 226, whenever there is an

attempted violation. In the circumstances, any direction by the Supreme Court or the High Court in exercise of power under Article 32 or

226 to uphold the Constitution and maintain the rule of law cannot be termed as violating the federal structure.

(v) Restriction on Parliament by the Constitution and restriction on the executive by Parliament under an enactment, do not amount to

restriction on the power of the Judiciary under Articles 32 and 226 of the Constitution.

(vi) If in terms of Entry 2 of List II of the Seventh Schedule on the one hand and Entry 2-A and Entry 80 of List I on the other, an

investigation by another agency is permissible subject to grant of consent by the State concerned, there is no reason as to why, in an

exceptional situation, the Court would be precluded from exercising the same power which the Union could exercise in terms of the

provisions of the statute. In our opinion, exercise of such power by the constitutional courts would not violate the doctrine of separation of

powers. In fact, if in such a situation the Court fails to grant relief, it would be failing in its constitutional duty.

(vii) When the Special Police Act itself provides that subject to the consent by the State, CBI can take up investigation in relation to the

crime which was otherwise within the jurisdiction of the State police, the Court can also exercise its constitutional power of judicial review

and direct CBI to take up the investigation within the jurisdiction of the State. The power of the High Court under Article 226 of the

Constitution cannot be taken away, curtailed or diluted by Section 6 of the Special Police Act. Irrespective of there being any statutory

provision acting as a restriction on the powers of the Courts, the restriction imposed by Section 6 of the Special Police Act on the powers of

the Union, cannot be read as restriction on the powers of the constitutional courts. Therefore, exercise of power of judicial review by the

High Court, in our opinion, would not amount to infringement of either the doctrine of separation of power or the federal structure.â€​

In the present case, the instances pointed out by the petitioner have a far reaching effect. Mr. Sanjeev Bhandari, ld. counsel for the CBI submits

that this court ought to proceed cautiously in view of the mandate of the Supreme Court in para 70 of the above judgment which reads as follows:

“70. 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. Insofar as the question of issuing a

direction to 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 extraordinary power must be exercised sparingly,

cautiously and in exceptional situations where it becomes necessary to provide credibility and instil 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 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.â€​

Given the nature of allegations made in para 9(H) of W.P.(C) No.12313/2015 and the observations of the CBI upon its preliminary examination as

placed before this court in the affidavit dated 27th January, 2016, it cannot be denied that the present case meets the bar of “exceptional

situationsâ€​ when it is essential to provide credibility and instill confidence in investigations. It also cannot be denied that the incident may have national

and international ramifications. We are also of the view that grant of the prayer made by the writ petitioner is essential for doing complete justice and

enforcing fundamental and basic rights of the ex-servicemen. Furthermore, ensuring benefits under a special scheme of the Government.

It is noteworthy that WP(C) No. 12313/2015 is pending since the year 2015.

In view thereof, it is directed as follows :

i. The CBI shall immediately take steps to convert the preliminary enquiry (PE)No.2172014A0003 dated 7th May, 2014, PE No.4(A) dated

8th May, 2014 and PE No. AC12014 A0006 dated 12th May, 2014 into FIRs/RCs in accordance with law.

ii. The CBI shall ensure that the investigation is expeditiously completed and the matter is proceeded to arrive at a logical conclusion in

accordance with law.

iii. It shall also be ensured that the immediate intimation is given by the CBI and to the concerned authorities so that valuable documentary

evidence is not destroyed/lost in the interregnum.

iv. The report of compliance shall be filed before this court within three months from today.

v. Liberty is given to the petitioners to place all evidence which is in their power and possession before the officer who is

appointed/authorized to conduct investigation in this regard.

vi. Respondent no.2 shall inform the petitioners in writing within two weeks from today about the particular of the case registered and the

investigating officer to whom the case is assigned.

These writ petitions are disposed of in the above terms.

List for reporting compliance on 20th November, 2017.

Dasti under signatures of Court Master.