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Judgment
P. Jyothimani, J.—These writ petitions are filed by the Petitioners challenging the government order in G.O. Ms. No. 593, Home (Pol.VII)
Department, dated 25.6.2010. By the impugned government order, the Government has decided to transfer the case registered against the
Petitioners at Chromepet Police Station to the Central Bureau of Investigation and to accord consent to Central Bureau of Investigation u/s 6 of the
Delhi Special Police Establishment Act, 1946 to enable the Government of India to extend jurisdiction of Delhi Special Police Establishment (CBI)
to investigate the said case against the Petitioners, who are Deputy Warden (Ladies Hostel) and Maintenance Supervisor respectively of Sri Balaji
Medical College and Hospital, Chromepet, Chennai, a constituent of Bharath Institute of Higher Education and Research, Chennai, a Deemed
University.
2.1. The Petitioners are employed as Deputy Warden (Ladies Hostel) and Maintenance Supervisor of Sri Balaji Medical College and Hospital.
The employer of the Petitioners, viz., the Management, has lodged a criminal complaint with the fourth Respondent (Inspector of Police,
Chromepet Police Station) alleging that the Petitioners have induced a student promising admission in the college and attempted to receive huge
amounts. The complaint of the de facto complainant was taken on file and a case was registered in Crime No. 290 of 2009 against the Petitioners
for an offence punishable u/s 420 read with Section 511 of the Indian Penal Code. The Petitioners obtained anticipatory bail and are complying
with the condition imposed therein by reporting to the fourth Respondent and are co-operating with the fourth Respondent for investigation. It is
stated that the management has initiated disciplinary proceedings and the Petitioners were dismissed from service.
2.2. It is stated that the Petitioner in W.P. No. 15646 of 2010 had filed Criminal Original Petition in Crl.O.P. No. 11282 of 2010 for quashing the
first information report and that came to be dismissed by this Court, by order dated 13.5.2010, with a direction to the fourth Respondent to file
final report within a period of four weeks. It is stated that the fourth Respondent has completed investigation and a report was filed before the
Judicial Magistrate, Tambaram and the same was taken on file as C.C. No. 528 of 2010 and summons have been issued for appearance of the
Petitioners (accused).
2.3. It is stated that in the meantime, the impugned government order came to be issued by the first Respondent transferring the case to Central
Bureau of Investigation for investigation, observing as if the investigation is still pending with the fourth Respondent. It is also stated that the criminal
court has completed trial and convicted the Petitioners in the judgment dated 13.8.2010. Therefore, the impugned order is challenged on various
grounds, including
(i) that the same has been passed with total non application of mind, with mala fide intention and arbitrarily;
(ii) that as per the provisions of the Delhi Special Police Establishment Act, 1946, the Central Government''s power to extend to any area in a
State, not being a Union Territory, the powers and jurisdiction of members of the Delhi Special Police Establishment itself is for investigation of
offences and in the facts of the present case, investigation has already been completed, final report was filed before the competent criminal court,
summons were issued to the parties for hearing on 6.8.2010 by the Judicial Magistrate, Tambaram and in spite of it the impugned order has been
passed without taking note of these crucial facts;
(iii) that such transfer of investigation under the provisions of the Delhi Special Police Establishment Act, 1946 is possible only in cases where final
report has not been filed and investigation was pending and even in such cases, transfer should be for a proper reason;
(iv) that the impugned government order would amount to re-investigation of a case which has already ended in conviction and it is intended to
drag on the issue and the same is without jurisdiction and unwarranted;
(v) that as per the pronouncement of the Supreme Court, at any stage of investigation, a case can be transferred under the Delhi Special Police
Establishment Act, 1946 only by an order of the Court and such power is not conferred on the executive authorities;
(vi) that even as per the impugned order, it is not as if the fourth Respondent has not conducted investigation properly, but the consent has been
given by the Government blindly stating as if the case is still pending investigation on the file of the fourth Respondent, when, on fact, the final report
has already been filed before the criminal court, and that is against the mandate of the Supreme Court; and
(vii) that there is no necessity or special circumstance warranting transfer of investigation.
3.1. In the counter affidavit filed by the fourth Respondent, it is stated that on 4.6.2009, the Dean, Sree Balaji Medical College and Hospital,
Chromepet appeared before the Assistant Commissioner of Police, Tambaram and gave a complaint that the Petitioners, who are employees of
Sree Balaji Medical College and Hospital, have demanded money from a student/parent promising to get admission into the Medical College. It is
stated that the complainant learnt about the same through newspaper report and based on that complaint was given.
3.2. On receipt of the complaint, the Assistant Commissioner of Police has forward it to the fourth Respondent on the same day, viz., on 4.6.2009.
The fourth Respondent has obtained legal opinion and a case was registered u/s 420 read with Section 511 of the Indian Penal Code in Crime No.
290 of 2009 on 23.6.2009 against the Petitioners. It is during the course of investigation, the Petitioners have obtained anticipatory bail from this
Court in the order dated 5.10.2009 in Crl.O.P. No. 21190 of 2009.
3.3. It is stated that when investigation was in progress, the Petitioner in W.P. No. 15646 of 2010 has filed a petition u/s 482 of the Code of
Criminal Procedure, 1973 before this Court in Crl.O.P. No. 11282 of 2010 to quash the first information report and this Court by order dated
13.5.2010, even though was not inclined to accept the same, directed the fourth Respondent to file final report within four weeks from 13.5.2010.
In compliance of the order of this Court, after completing the investigation, the fourth Respondent filed a final report before the Judicial Magistrate,
Tambaram on 6.6.2010. The final report was taken on file by the learned Judicial Magistrate, Tambaram and the case was numbered as C.C. No.
528 of 2010 on 7.6.2010 and summons were issued to the accused persons on 8.7.2010 to appear on 6.8.2010. On 13.8.2010, the Petitioners
pleaded guilty and the trial Court has convicted them.
3.4. It is stated that the Inspector General of Police, Central Bureau of Investigation, in the letter dated 16.3.2010 addressed to the Government,
requested the Government to accord consent for the transfer of the case in Crime No. 290 of 2009 on the file of the Chromepet Police Station to
the Central Bureau of Investigation for their investigation. Thereafter, the Government has addressed to the Director General of Police, Tamil Nadu
for certain particulars, which were sent to the Government on 22.4.2010, wherein it was mentioned that Crime No. 290 of 2009 was pending
investigation. However, in the meantime, after investigation, a final report was filed on 6.6.2010 before the Judicial Magistrate, Tambaram, in
compliance of the order of this Court.
3.5. It is stated that pursuant to the communication of the Director General of Police to the Government, after examination of materials, the
Government passed the impugned order on 25.6.2010 according consent to the Central Bureau of Investigation u/s 6 of the Delhi Special Police
Establishment Act, 1946 to enable the Central Bureau of Investigation to investigate the case and therefore, it cannot be said that the impugned
order has been passed with non application of mind or the order is without jurisdiction of the Government.
3.6. While denying that the impugned government order is arbitrary or illegal, it is stated that it is the prerogative power of the State to give consent
for the purpose of investigation to the Central Bureau of Investigation. The Director General of Police has stated in the report dated 22.4.2010 that
investigation was pending before the police on the said date and it was only based on that the Government has passed the impugned order. It is
also stated that the Government has never stated that pending investigation, the case is transferred to Central Bureau of Investigation, but it has
only accorded consent to enable the Government of India to extend the jurisdiction of Central Bureau of Investigation to investigate the case.
3.7. It is stated that the Delhi Special Police Establishment Act, 1946 has never prohibited the State Government to accord consent in a case
pending trial and it is not as if the transfer to the Central Bureau of Investigation can be effected only during investigation stage and therefore, it is
not correct to state that once investigation is completed, final report is filed and the same has been taken on file by the competent criminal court
and summons are issued, the State Government loses the jurisdiction to refer the case to Central Bureau of Investigation in exercise of the powers
conferred under Sections 5 and 6 of the Delhi Special Police Establishment Act, 1946. It is also denied that the executive authorities have no
power to transfer investigation to the Central Bureau of Investigation under the Delhi Special Police Establishment Act, 1946 and that it cannot be
said that it is always the power of the Court to transfer cases to Central Bureau of Investigation.
4.1. In the counter affidavit of the fifth Respondent, it is stated that it is on the allegation of capitation fees collection the charges were levelled and
investigation was conducted and it was serious in nature.
4.2. It is stated that the enquiry by the Central Bureau of Investigation revealed a prima facie case against the Petitioners u/s 120-B of the Indian
Penal Code and Sections 7 and 15 read with Section 13(1)(d) of the Prevention of Corruption Act, 1988.
4.3. It is stated that the State Government has already accorded consent for registration and investigation of a criminal case by the Central Bureau
of Investigation in a similar case against one A. Subramanian, Deputy Registrar of Sri Ramachandra Medical College, which is also a Deemed
University, vide G.O. Ms. No. 225, dated 25.2.2010 u/s 6 of the Delhi Special Police Establishment Act, 1946 and pursuant to the same,
investigation was conducted.
4.4. It is stated that since the present case is also similar to the case already transferred to the Central Bureau of Investigation, the Central Bureau
of Investigation has sought the State Government to give consent and thereafter, the Government has granted consent under the impugned
government order dated 25.6.2010, extending the power and jurisdiction of the members of the Delhi Special Police Establishment in the whole of
the State of Tamil Nadu to investigate the case in Chromepet Police Station Crime No. 290 of 2009 u/s 420 read with Section 511 of the Indian
Penal Code and the consent given by the Government is constitutional and legal. It is stated that the government order is well within the ambit and
power of the State Government and it is the statutory right of the State Government to direct investigation by the Central Bureau of Investigation
and the judgment of the Supreme Court referred to by the Petitioners are not applicable.
4.5. It is stated that the Central Bureau of Investigation has conducted a detailed enquiry and found that the Petitioners have demanded capitation
fee from a student, which amounts to demand of illegal gratification and therefore, the offence is deemed to be an offence committed by a public
servant within the meaning of Section 2(c) of the Prevent of Corruption Act, 1988.
It is the contention of Mr. R. Thiagarajan and Mr. Sriram Panchu, learned Senior Counsel appearing for the Petitioners that post investigation,
when the matter is pending with the Court, the same can be referred to the Central Bureau of Investigation only by the Court and that cannot be
done by the executive authorities and therefore, the impugned government order has been passed without jurisdiction and transgressing its
limitation. In support of the said contention, they relied upon the judgment of the Supreme Court in Rubabbuddin Sheikh Vs. State of Gujarat and
Others, .
The learned Senior Counsel would submit that the stand taken by the fifth Respondent as if the Petitioners are public servants is basically
incorrect, as they are in the private employment of the private management. To substantiate the contention, Mr. R. Thiagarajan, learned Senior
Counsel would rely upon the judgment of the Supreme Court in State of West Bengal and Others Vs. Manmal Bhutoria and Others, .
It is the contention of Mr. R. Thiagarajan, learned Senior Counsel that in spite of the fact that investigation has been completed and judgment
has been pronounced, the Government has passed order stating investigation is pending and this only shows the total non application of mind on
the part of the Government. He would rely upon the judgments in Rubabbuddin Sheikh Vs. State of Gujarat and Others, , Rajiv Ranjan Singh
''Lalan'' and Another Vs. Union of India (UOI) and Others, and M.C. Mehta Vs. Union of India (UOI) and Others, .
It is the contention of the learned Additional Government Pleader appearing for Respondents 1 to 4 that even after the conviction, it is always
open to the Government to file an appeal or revision and it cannot be said to be a case of non application of mind. He would submit that the
judgment relied upon by the learned Senior Counsel in Rubabbuddin Sheikh case, supra, has no application to the facts of the case.
Mr. N. Chandrasekaran, learned Special Government Pleader appearing for the fifth Respondent also would submit that the Petitioners can be
termed as public servants considering the nature of allegation made against them, which is serious in nature.
On the factual matrix, it is not in dispute that on the complaint lodged by the employer of the Petitioners, first information report was registered
by the fourth Respondent as Crime No. 290 of 2009 and thereafter, he has conducted investigation and filed final report before the Judicial
Magistrate, Tambaram, wherein the case was taken on file as C.C. No. 528 of 2010 and summons were issued to the accused, posting the case
on 6.8.2010. Therefore, in effect, it is not in dispute that by the time the impugned government order came to be passed on 25.6.2010, the
investigation by the fourth Respondent in respect of the complaint given against the Petitioners was completed and it is also not in dispute that
ultimately the case has ended in conviction by the judgment dated 13.8.2010.
At the time when the government order came to be passed, the final report was already laid before the Judicial Magistrate, Tambaram and the
judicial authority was seized of the matter and the trial was pending. It is also admitted that it was during that time the Government, being the
executive authority, has passed the order by referring the matter to the Central Bureau of Investigation by according consent by virtue of Section 6
of the Delhi Special Police Establishment Act, 1946. The impugned government order shows that by virtue of the power conferred u/s 6 of the
Delhi Special Police Establishment Act, 1946, the State Government has given consent to extend the power and jurisdiction of the members of the
Delhi Special Police Establishment in the State of Tamil Nadu to investigate the case in Chromepet Police Station Crime No. 290 of 2009 for the
offences punishable u/s 420 read with Section 511 of the Indian Penal Code.
Section 2 of the Delhi Special Police Establishment Act, 1946 provides for constitution of special police force to be called Delhi Special Police
Establishment for investigation in the Union Territories of offences notified u/s 3 of Delhi Special Police Establishment Act, 1946, and by virtue of
Section 5 of the Delhi Special Police Establishment Act, 1946 the power and jurisdiction of the members of the Delhi Special Police Establishment
regarding the investigation of the offences as to be notified by the Government of India u/s 3 of the said Act is extended to other areas. Section 6
of the Delhi Special Police Establishment Act, 1946, which is relied upon by the State Government for passing the impugned order, is as follows:
Section 6. Consent of State Government to exercise of powers and jurisdiction.-Nothing contained in Section 5 shall be deemed to enable any
member of the Delhi Special Police Establishment to exercise powers and jurisdiction in any area in a State, not being a Union Territory of railway
area, without the consent of the Government of that State.
Independent of the said consent given by the State Government, by which the State Government voluntarily refers the investigation by a special
police force in Delhi, Section 5(1) of the Delhi Special Police Establishment Act, 1946, which is as follows:
Section 5. Extension of powers and jurisdiction of special police establishment to other areas.
(1) The Central Government may by order extend to any area (including Railway areas), in a State, not being a Union Territory the powers and
jurisdiction of members of the Delhi Special Police Establishment for the investigation of any offences or classes of offences specified in a
notification u/s 3.
also enables the Central Government by an order to extend in a State area the powers and jurisdiction of the members of the Delhi Special Police
Establishment for the investigation of any offences as notified u/s 3 of the Delhi Special Police Establishment Act, 1946.
In the matter of investigation by the police, which is an executive function in accordance with law, the process of investigation completes the
moment report is filed by the investigating authority to a competent criminal court. When once investigation of criminal complaint is completed and
a complaint or information or report is filed before the Magistrate, the Court takes cognizance of offence as per Section 190 of the Code of
Criminal Procedure, 1973 on a prima facie conclusion that offence has been committed. Thereafter, by way of commencement of proceedings
before the Magistrate, process is being issued to the accused, followed by the charges to be framed by the Court and commencement of trial,
ultimately resulting in the final judgment.
Therefore, when once the first information report has been lodged to police, it becomes the predominant duty and privilege of the police to
investigate and file its report to the court to enable the court to take cognizance of the offence. Investigation is the prerogative of the police officer
and on completion of investigation, u/s 173(2) of the Code of Criminal Procedure, 1973, the officer in-charge of the police station forwards a
police report to the Magistrate, who is empowered to take cognizance of an offence, with various particulars. Section 173(8) of the Code of
Criminal Procedure, 1973 gives special power to the Magistrate to order further investigation. In this regard, it is relevant to extract Section 173 of
the Code of Criminal Procedure, 1973, which is as follows:
Section 173. Report of police officer on completion of investigation.
(1) Every investigation under this Chapter shall be completed without unnecessary delay.
(2)(i) As soon as it is completed, the officer in charge of the police station shall forward to a Magistrate empowered to take cognizance of the
offence on a police report, a report in the form prescribed by the State Government, stating
(a) the names of the parties;
(b) the nature of the information;
(c)the names of the persons who appear to beacquainted with the circumstances of the case;
(d)whether any offence appears to have beencommitted and, if so,by whom ;
(e) whether the accused has been arrested;
(f) whether he has been released on his bond and, if so, weather with or without sureties;
(g) whether he has been forwarded in custody u/s 170.
(h) whether the report of medical examination of the woman has been attached where investigation relates to an offence under Sections 376,
376A, 376B, 376C or 376D of the Indian Penal Code (45 of 1860).
(ii) The officer shall also communicate, in such manner as may be prescribed by the State Government, the action taken by him, to the person, if
any, by whom the information relating to the commission of the offence was first given.
(3) Where a superior officer of police has been appointed u/s 158, the report shall, in any case in which the State Government by general or
special order so directs, be submitted through that officer, and he may, pending the orders of the Magistrate, direct the officer in charge of the
police station to make further investigation.
(4) Whenever it appears from a report forwarded under this section that the accused has been released on his bond, the Magistrate shall make
such order for the discharge of such bond or otherwise as he thinks fit.
(5) When such report is in respect of a case to which Section 170 applies, the police officer shall forward to the Magistrate along with the report
(a) all documents or relevant extracts thereof on which the prosecution proposes to rely other than those already sent to the Magistrate during
investigation;
(b) the statements recorded u/s 161 of all the persons whom the prosecution proposes to examine as its witnesses.
(6) If the police officer is of opinion that any part of any such statement is not relevant to the subject-matter of the proceedings or that its disclosure
to the accused is not essential in the interests of justice and is in expedient in the public interest, he shall indicate that part of the statement and
append a note requesting the Magistrate to exclude that part from the copies to be granted to the accused and stating his reasons for making such
request.
(7) Where the police officer investigating the case finds it convenient so to do, he may furnish to the accused copies of all or any of the documents
referred to in Sub-section (5).
(8) Nothing in this section shall be deemed to preclude further investigation in respect of an offence after a report under Sub-section (2) has been
forwarded to the Magistrate and, where upon such investigation, the officer in charge of the police station obtains further evidence, oral or
documentary, he shall forward to the Magistrate a further report or reports regarding such evidence in the form prescribed; and the provisions of
Sub-sections (2) to (6) shall, as far as may be, apply in relation to such report or reports as they apply in relation to a report forwarded under
Sub-section (2).
It is thereafter the Magistrate takes cognizance of offences u/s 190(1) of the Code of Criminal Procedure, 1973, which is as follows:
Section 190. Cognizance of offences by Magistrates.
Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class specially empowered in this
behalf under Sub-section (2), may take cognizance of any offence
(a) upon receiving a complaint of facts which constitute such offence ;
(b) upon a police report of such facts;
(c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed.
Even after receiving the report, while taking cognizance, if the Magistrate thinks fit, by postponing the issue of process against the accused, he
can make inquiry by himself or direct an investigation to be made by a police officer, for the purpose of deciding whether or not there is sufficient
ground for proceeding. That power is available u/s 202(1) of the Code of Criminal Procedure, 1973. This power of re-investigation lies with the
Court and as per the direction of the Court, the police may re-investigate. Therefore, after the investigation stage is over, on the face of it, it is the
Court which has to direct re-investigation, since it becomes the judicial power to be exercised by the Court. In other words, after investigation is
over as per the Code of Criminal Procedure, 1973 and the criminal court is seized of the matter, the further investigation can be directed only by
judicial order and cannot be by an executive fiat.
On the facts of the present case, the police based on a complaint dated 4.6.2009 have taken the case on file and registered a case on
23.6.2009 in Crime No. 290 of 2009 on the file of the fourth Respondent Police Station for the offences punishable u/s 420 read with Section 511
of the Indian Penal Code. On completion of investigation, a final report was filed on 6.6.2010, which was taken on file by the Judicial Magistrate,
Tambaram in C.C. No. 528 of 2010 on 7.6.2010, and summons were issued directing the appearance of the accused on 6.8.2010 and ultimately,
the Petitioners were convicted by the trial court on 13.8.2010.
If the investigating agency of the State Government is of the opinion that the punishment is inadequate or it requires further investigation by the
Central Bureau of Investigation, it has to proceed as per the Code of Criminal Procedure, 1973 by way of appeal u/s 377 or revision u/s 397 of
the Code of Criminal Procedure, 1973, in which event, it will be within the jurisdiction of the Appellate Court or Revisional Court to order re-
investigation. Even in the impugned government order, the State Government has presumed as if the investigation under the fourth Respondent was
pending and it was in those circumstances, by invoking the powers u/s 6 of the Delhi Special Police Establishment Act, 1946, has given consent,
while, on fact, on the day when consent was given, the investigation was not at all pending before fourth Respondent, and there was no occasion
for the first Respondent/Government to exercise its jurisdiction so as to enable the members of the Delhi Special Police Establishment to investigate
the case under the Delhi Special Police Establishment Act, 1946. Therefore, it is a case of clear non application of mind on the part of the first
Respondent/ Government in passing the impugned order directing investigation by the fifth Respondent.
The power of the Court to monitor investigation after the charge-sheet has been laid and the power of the Supreme Court in the interest of
justice to make sure that justice is not only done, but also is seen to be done has been emphasized by the Supreme Court in Rubabbuddin Sheikh
Vs. State of Gujarat and Others, , while ordering investigation by the Central Bureau of Investigation. Paragraphs [79] and [80] of the judgment,
which are as follows, would enlighten that after the charge-sheet is filed, it is the power of the Court to order investigation:
In view of our discussions made herein earlier and the submissions of the learned senior counsel for the parties and the amicus curiae and
keeping in mind the earlier various directions given by this Court to the Police Authorities of the State of Gujarat and the materials on record, we
are of the view that although the charge sheet was submitted but considering the nature of crime that has been allegedly committed not by any third
party but by the police personnel of the State of Gujarat, the investigation concluded in the present case cannot be said to be satisfactorily held.
We have already discussed the decisions cited from the Bar on the question that after the charge-sheet being filed whether the investigation
could be handed over to the CBI Authorities or to any other independent agency from the State police authorities. We have already distinguished
the decisions cited by the State that they related to the power of the court to monitor the investigation after the charge sheet was filed. The scope
of this order, however, cannot deal with the power of this Court to monitor the investigation, but on the other hand in order to make sure that
justice is not only done, but also is seen to be done and considering the involvement of the State police authorities and particularly the high officials
of the State of Gujarat, we are compelled even at this stage to direct the CBI Authorities to investigate into the matter. Since the high police
officials of the State of Gujarat are involved and some of them had already been in custody, we are also of the view that it would not be sufficient
to instil confidence in the minds of the victims as well as of the public that still the State Police Authorities would be allowed to continue with the
investigation when allegations and offences were mostly against them.
It is also relevant to refer to paragraph [60] of the said judgment, which also enlightens that the Court has got inherent power for the purpose of
directing investigation to be handed over to the Central Bureau of Investigation even after the charge sheet is filed:
Therefore, in view of our discussions made hereinabove, it is difficult to accept the contentions of Mr. Rohatgi learned senior counsel appearing
for the state of Gujarat that after the charge sheet is submitted in Court in the criminal proceeding it was not open for this Court or even for the
High Court to direct investigation of the case to be handed over to the CBI or to any independent agency. Therefore, it can safely be concluded
that in an appropriate case when the court feels that the investigation by the police authorities is not in the proper direction and in order to do
complete justice in the case and as the high police officials are involved in the said crime, it was always open to the court to hand over the
investigation to the independent agency like CBI. It cannot be said that after the charge sheet is submitted, the court is not empowered, in an
appropriate case, to hand over the investigation to an independent agency like CBI.
Whether the Petitioners, being outsiders (non public servants), can be prosecuted under the provisions of the Prevention of Corruption Act,
1988 is held in affirmative by virtue of Section 165-A of the Indian Penal Code, if the outsider abets a public servant, as it was held in State of
West Bengal and Others Vs. Manmal Bhutoria and Others, . The Supreme Court has held as follows:
Mr. De further submits that since the Respondent is not a public servant he is outside the provisions of the Bengal Act, as well as the
Prevention of Corruption Act. This argument is entirely misconceived. Even under the Prevention of Corruption Act, an outsider can be prosecuted
u/s 5(3) of the Act when a person habitually commits an offence punishable u/s 165A of the Indian Penal Code. Section 165A provides that
whoever abets any offence punishable u/s 161 or Section 165, whether or not that offence is committed in consequence of the abetment, shall be
punished ..."". This section is clearly applicable to an outsider who may abet a public servant.
In any event, whether the Petitioners can be prosecuted under the said provision or not need not be an issue to be decided in this case and
even an outsider, who is not a public servant, who has involved in corruption case along with the public servant is liable for prosecution.
The power of the Magistrate in directing investigation u/s 173 of the Code of Criminal Procedure, 1973 has been reiterated by the Apex Court
with the seal of approval in M.C. Mehta Vs. Union of India (UOI) and Others, . Paragraphs [9] and [10] of the judgment, can be usefully
extracted for the purpose of this case:
We have no doubt in our mind that judiciary may step in where it finds the actions on the part of the Legislature or the Executive are illegal or
unconstitutional but the same by itself would not mean that public interest litigation, in a case of this nature, should be converted into an adversarial
litigation. The jurisdiction of the court to issue a writ of continuous mandamus is only to see that proper investigation is carried out. Once the court
satisfies itself that a proper investigation has been carried out, it would not venture to take over the functions of the Magistrate or pass any order
which would interfere with its judicial functions. Constitutional scheme of this country envisages dispute resolution mechanism by an independent
and impartial tribunal. No authority, save and except a superior court in the hierarchy of judiciary, can issue any direction which otherwise take
away the discretionary jurisdiction of any court of law. Once a final report has been filed in terms of Sub-section (1) of Section 173 of the Code of
Criminal Procedure, it is the Magistrate and Magistrate alone who can take appropriate decision in the matter one way or the other. If it errs while
passing a judicial order, the same may be a subject matter of appeal or judicial review. There may a possibility of the prosecuting agencies not
approaching the higher forum against an order passed by the learned Magistrate, but the same by itself would not confer a jurisdiction on this Court
to step in. We should not entertain the application of the learned amicus curiae on such presupposition. A judicial order passed by a Magistrate
may be right or wrong, but having regard to the hierarchy of the courts, the matter which would fall for consideration before the higher court should
not be a subject matter of a decision of this bench. In an unlikely event of the interested parties in not questioning such orders before the higher
forum, an independent public interest litigation may be filed. Instances are not unknown where this Court has entertained public interest litigation in
cases involving similar question under Article 32 of the Constitution of India. [See Rajiv Ranjan Singh ''Lalan'' and Another Vs. Union of India
(UOI) and Others, .
It will not be out of place to mention that in Vineet Narain and Others Vs. Union of India (UOI) and Another, , this Court categorically stated
that unless a proper investigation is made followed by a proper prosecution under the general law applicable to such investigation, the rule of law
will lose its significance. This Court in its order dated 27.11.2006upon noticing Vineet Narain (supra) and Union of India (UOI) Vs. Prakash P.
Hinduja and Another, held:
Analysis of the above judgments shows that there is a clear-cut and well-demarcated sphere of activities in the field of crime detection and
crime punishment. Investigation of an offence is the field reserved for the executive through the Police Department, the superintendence over which
vests in the State Government. The executive is charged with a duty to keep vigilance over the law and order situation. It is obliged to prevent
crime. If an offence is committed allegedly, it is the State''s duty to investigate into the offence and bring the offender to book. Once it investigates
through the Police Department and finds an offence having been committed, it is its duty to collect evidence forth purposes of proving the offence.
Once that is completed, the investigating officer submits report to the court requesting the court to take cognizance of the offence u/s 190 Code of
Criminal Procedure and his duty comes to an end. Therefore, there are well-defined and well-demarcated functions in the field of crime detect ion
and their subsequent adjudication by the court. Lastly, the term""investigation"" u/s 173(2) of the Criminal Procedure Code includes opinion of the
officer in charge of the police station as to whether there is sufficient evidence or reasonable ground of suspicion to justify the forwarding of the
case to the court concerned or not. This opinion is not legal evidence. At the stage of Section 173(2) the question of interpretation of legal
evidence does not arise. In any event, that function is that of the courts.
The power of the Magistrate u/s 173(8) of the Code of Criminal Procedure, 1973 has been reiterated by the Supreme Court in Rajiv Ranjan
Singh ''Lalan'' and Another Vs. Union of India (UOI) and Others, . By referring to various judgments in Janata Dal Vs. H.S. Chowdhary and
Others, , Dattaraj Nathuji Thaware Vs. State of Maharashtra and Others, , Ashok Kumar Pandey Vs. The State of West Bengal and Others, ,
S.P. Gupta Vs. President of India and Others, and Union of India and Others Vs. Sushil Kumar Modi and Others, , the Supreme Court has held
as follows:
It is thus clear from the above judgment that once a charge-sheet is filed in the competent Court after completion of the investigation, the process
of monitoring by this Court for the purpose of making CBI and other investigative agencies concerned perform their function of investigating into
the offences concerned comes to an end and thereafter, it is only the Court in which the charge-sheet is filed which is to deal with all matters
relating to the trial of the accused including matters falling within the scope of Section 173(8).
Therefore, at the stage when the investigation was completed by the police, the Government certainly cannot have the power of referring the
investigation to the Central Bureau of Investigation by giving consent u/s 6 of the Delhi Special Police Establishment Act, 1946. Such power of
consent or even the power of the Central Government u/s 5(1) of the Delhi Special Police Establishment Act, 1946 would be available as long as
the investigation process as per the Code of Criminal Procedure, 1973 is on and when once the investigation is completed, the jurisdiction vests
with the judiciary and it is for the Magistrate to pass judicial order as per the powers conferred under the Code of Criminal Procedure, 1973 and
not for the Government to exercise its executive power for transferring the investigation to the Central Bureau of Investigation, which would amount
to re-investigation of a matter which has been judicially settled by a competent court of law.
As stated above, if really the Government is not satisfied about the quantum of punishment imposed, it is for the first Respondent/ Government
to take appropriate steps by filing appeal or revision and pending such appeal or revision, as the case may be, it is for the Appellate Court or
Revisional Court to take note of the situation for the purpose of deciding as to whether any further investigation is required and in which event, such
investigation can always be ordered and in those circumstances, it will be open to the executive to exercise its power under the Delhi Special
Police Establishment Act, 1946.
For the foregoing reasons, I am of considered view that the impugned government order has to be set aside for want of jurisdiction. Accordingly,
these writ petitions are allowed and the impugned government order is set aside. No costs. Consequently, M.P. No. 2 of 2010 in W.P. No.
15646 of 2010 and M.P. No. 2 of 2010 in W.P. No. 24824 of 2010 are closed.