VIRBHADRA SINGH & ANR v. CENTRAL BUREAU OF INVESTIGATION & ORS

6. The Court directed CBI to go ahead with the investigation in the said Regular Case, on the condition that the statements of the petitioners shall not be recorded without seeking leave of the Court. The Court also ordered that CBI shall not arrest the petitioners, or file the challan without the express leave of the Court.

7. Respondent no. 1/CBI preferred a Transfer Petition T.P. (Crl.) No.425/2015 before the Supreme Court for the transfer of the proceedings from the High Court of Himachal Pradesh in C.W.P. No. 4063 of 2015. The CBI also preferred Special Leave Petitions against the order dated 1.10.2015 being SLP (Criminal) Nos. 9002-9003 of 2015. The Supreme Court vide its order dated 5.11.2015 transferred the proceedings pending before the High Court of Himachal Pradesh in C.W.P. No. 4063 of 2015 with all the Miscellaneous Petitions to this Court. The Supreme Court, however, dismissed the Special Leave Petitions preferred by the CBI without going into the correctness, or otherwise, of the order dated 1.10.2015. The Supreme Court left it open to the parties on either side to seek variation or confirmation of the orders passed in the writ petition.

8. Consequently, the said writ petition was registered and numbered as W.P. (CRL) No. 2757 of 2015 in this Court and was listed before a Ld. Single Judge of this Court as per roster, firstly, on 2.12.2015. Thereafter, it was listed before the Single Benches as per roster on several occasions.

9. Vide order dated 05.04.2016, the learned Single Judge directed that the matter be placed before Hon’ble the Chief Justice for seeking directions as to whether the writ petition is required to be heard by a Single Bench, or by a Division Bench, since the initial order in the writ petition - as originally filed, was passed by a Division Bench of the Himachal Pradesh High Court. Hon’ble the Chief Justice directed the matter to be placed before a learned Single Judge and, consequently, the same was again listed before the learned Single Judge on 06.04.2016. On that day, the Court considered the application moved by the CBI i.e. Crl. M.A. No. 3806/2016 to seek variation of the interim arrangement operating in terms of the order passed by the Division Bench of the Himachal Pradesh High Court.

10. The learned Single Judge, after taking note of the submissions made on behalf of the petitioners that they are ready and willing to join and cooperate in the investigation as and when required, directed that the petitioners shall join the investigation. Premised on the assurance already given on behalf of the CBI before the High Court of Himachal Pradesh - that there is no proposal to arrest the petitioners, the Court again reiterated that the petitioners will not be arrested as and when they appear before the investigating agency for the purpose of joining the investigation.

11. The writ petition was listed before me for the first time on 08.09.2016, and was adjourned at the request of the learned senior counsel for the petitioners to 15.09.2016. On 15.09.2016, arguments commenced and they were partly heard. Thereafter, the case was listed on 23.09.2016, 27.09.2016, 28.09.2016, 29.09.2016, 03.10.2016, 04.10.2016, 06.10.2016, 17.10.2016, 25.10.2016, 26.10.2016, 27.10.2016, 04.11.2016, 07.11.2016, 08.11.2016, 09.11.2016, 02.12.2016, 05.12.2016, 06.12.2016, 07.12.2016, 08.12.2016 and on 15.12.2016, when the judgment was reserved. The parties were granted the opportunity of filing their written synopsis of arguments by 23.12.2016.

12. On 23.12.2016, the written submissions were tendered on behalf of the petitioners by Mr. Ram Jethmalani, Senior Advocate. These written submissions have been drawn by Mr. Chirag Madan, Advocate, 2 Akbar Road, New Delhi. Along with the written submissions, he has filed his Vakalatnama dated 21.12.2016, which appears to have been issued by petitioner no.1 in his favour and in favour of Mr. Anirudh Anand, Advocate. The written submissions have not been filed by the Advocates who had been engaged by the petitioners earlier, or who were present during the course of hearing of the petition by me. The presence of the counsels who represented the petitioners on the above dates of hearing have been recorded contemporaneously in the order sheets.

13. On the said date, i.e. 23.12.2016, for the first time, Mr. Jethmalani appeared before me (though the record shows that he had appeared for the petitioners earlier on 05.04.2016 and 06.04.2016), and requested me to take note of the first written submission of the petitioners. He requested me to consider the petitioners plea that I should recuse myself from dealing with the case.

14. The petitioner no. 1 in his written submission states that “after long introspection” he “has not been able to get over his feeling that” I “may not be able to impartially deal with the numerous issues of law and fact which were originally formulated by the Hon’ble High Court of Himachal Pradesh vide order dated 01.10.2015”. The petitioner no. 1 goes on to state that the learned Attorney General Mr. Mukul Rohatgi had appeared before the Supreme Court and pressed for the transfer of the proceedings in the subject writ petition from the Himachal Pradesh High Court to this Court. The petitioner no. 1 further states “When the petitioner heard about this from his counsel, he was a bit perturbed, but he raised no objection to the matter being heard by your Lordship in spite of some serious anxiety which kept oppressing the petitioner. This anxiety is the result of the following circumstances, in brief …. …. ….”

15. The circumstance mentioned by the petitioner no. 1 is that the learned Attorney General, Mr. Mukul Rohatgi advised the moving of the transfer petition before the Supreme Court, and also appeared before the Supreme Court on behalf of the CBI. The petitioner no. 1 states that the BJP Government was hostile towards the petitioner no. 1 even when it was in power between 1998 to 2004 - when Mr. Mukul Rohatgi was an Additional Solicitor General. The petitioner no. 1 states that the BJP Government is responsible for engineering the present case against the petitioners. The petitioner no. 1 states that during the hearings – which spanned 25 dates, the petitioners and their counsel “were left with the impression that the submissions of the Petitioners Counsel were being treated with contempt as distinguished from those of the other side. The reports which the Petitioners received from his Counsel indeed intensified his uneasiness and almost a conviction that he will not get justice. The Petitioner out of respect for this Hon’ble Court and all courts in general did not request for recusal but fortunately or unfortunately he came to know that your Lordships sister is married to the present Attorney General Mr. Mukul Rohatgi”.

16. Thus, the reason for the petitioners making a plea that I should recuse myself from the case is that the learned Attorney General Mr. Mukul Rohatgi, who represented the CBI before the Supreme Court, is related to me inasmuch, as, my sister is married to him, and; Mr. Mukul Rohatgi represents the present Central Government which is inimical towards him. Thus, the implication is that on account of my relationship with Mr. Mukul Rohatgi, I would get influenced into not giving justice to the petitioners.

17. Before I proceed to deal with any other aspect of the case, I must first deal with this submission of the petitioners. As noticed herein above, the case came up before me on 30.08.2016 and again on 08.09.2016, when the petitioners were represented through senior counsels. However, no such request was made to me that I should recuse from the matter for any reason whatsoever, including the fact that the learned Attorney General Mr. Mukul Rohatgi is related to me. Initially, Mr. Dayan Krishnan, Senior Advocate advanced his submissions on 15.09.2016, when his submissions were partly heard. After Mr. Krishnan concluded his arguments, Mr. Kapil Sibal, Sr. Advocate, advanced his arguments.

18. It is not the petitioners’ case that their counsels, including senior counsels representing them, were not aware of the relationship between me and the learned Attorney General Mr. Mukul Rohatgi. If, on account of the said relationship alone, they had any lingering doubt with regard to my independence and my capacity to do justice in the case, nothing prevented them from making the said request before opening their arguments in the case. I may also observe that if such a request had been made at the initial stage itself, I may have recused from the case – not because I find myself incapable/unable to decide the present petition strictly on its merits due to my relationship with the learned Attorney General Mr. Mukul Rohatgi, but because I have no particular interest in, or attachment with any particular cause that is listed before me as per roster. But, in the present case, the learned senior counsels representing the petitioners never raised the said issue at any stage of the hearing, and proceeded to advance their submissions (there were two senior counsels representing the petitioners’ case, namely, Mr. Dayan Krishnan and Mr. Kapil Sibal) without even a whisper on the said aspect.

19. The learned senior counsels and the law officers representing the State of Himachal Pradesh and the CBI were given ample time to advance their submissions to their satisfaction, and the order sheet bares out the fact that they were accommodated according to their convenience on several occasions. It is for this reason that the hearing - which commenced on 15.09.2016 (after granting two adjournments to the petitioners), got concluded only on 15.12.2016.

20. It appears that the petitioners, themselves, were not personally present when the hearings proceeded before the Court. Invariably, one or the other learned senior counsels viz. Mr. Dayan Krishnan, and/or Mr. Kapil Sibal were present. When submissions were advanced on behalf of the State of Himachal Pradesh by the learned Advocate General, or by the learned ASG on behalf of the CBI, the petitioners were always represented through counsels – as reflected in the order sheets recorded in the case contemporaneously. It is equally pertinent to note that Mr. Ram Jethmalani, Senior Advocate, did not appear, and was not even present in the Court when the hearing proceeded between 15.09.2016 and 15.12.2016. The written submissions filed on behalf of the petitioners have been settled by Mr. Ram Jethmalani, Sr. Advocate. Neither Mr. Kapil Sibal, Sr. Advocate nor Mr. Dayan Krishnan Sr. Advocate have settled them, nor are they drawn by the counsels representing the petitioners at the time of hearing of the case by me. The petitioners claim that during the hearings, this Court treated the submissions of the petitioners’ counsel with contempt, as distinguished from those of the other side – meaning the CBI. On the aforesaid aspect, however, the petitioners have not particularized any instance/proceeding which may have transpired in the Court to give an impression to the petitioners, or their learned counsels/ senior counsels that the submissions advanced on behalf of the petitioners by the senior counsels were treated with contempt, as distinguished from those advanced on behalf of the CBI. On what basis the petitioners and/or the newly engaged counsels for the petitioners, therefore, claim that the arguments advanced on their behalf – which were advanced either by Mr. Kapil Sibal, Sr. Advocate or by Mr. Dayan Krishnan, Sr. Advocate, were treated with contempt is entirely unclear. The said statement has no basis.

21. Enormous amount of judicial time and effort has gone into the hearing of the present petition. Even though the petitioners may be ready and willing to foot the bill of the hearings before another learned Judge – to whom the matter may be transferred if I were to recuse, there can be no justification to subject the State of Himachal Pradesh and the CBI/ Union of India to the same burden, merely because the petitioners have now decided to request me to recuse myself from the case. The ground for recusal now urged by the petitioners-at the time of tendering the written submissions, was available when the hearing in the case commenced before me. It is not that my relationship with the learned Attorney General Mr. Mukul Rohatgi has come about post the commencement of the hearing.

22. I am also of the view that if I were to now recuse from the case which has been fully argued before me, and wherein I had reserved judgment on 15.12.2016, I would be guilty of shirking my responsibility as a Judge. It would also delay the disposal of the case. Delay in the disposal of the petition suits the petitioners, who are enjoying interim protection against arrest and filing of charge sheet in the case.

23. At this stage, I consider it appropriate to notice the recent decision of the Supreme Court in Supreme Court Advocates-On-Record Association and Another vs. Union of India (2016) 5 SCC 808, which deals with the aspect of recusal by a judge from a case. I draw support from this decision for my view on this issue. This case relates to a plea for recusal raised by Mr. Fali S. Nariman, Senior Advocate appearing for the petitioners during the course of the hearing before the Supreme Court in the case involving the determination of the constitutional validity of the Constitution (99th Amendment) Act, 2015 and the National Judicial Appointments Commission Act, 2014. The objection raised by the learned senior counsel was that it was inappropriate for Mr. Justice J.S.Khehar (as His Lordship then was) to participate in the proceedings as the Presiding Judge of the Constitution Bench. The objection was predicated on the fact that, being the third senior most puisne Judge of the Supreme Court, Mr. Justice Khehar is a member of the Collegium propounded under the Second Judges case (1993) 4 SCC 441, and thus, he exercised “significant constitutional power” in the matter of selection of Judges of the Supreme Court as well as the High Courts in the country. It was argued that by virtue of impugned legislation – as taken note of hereinabove, until Mr. Justice Khehar attains the position of third senior most Judge of the Supreme Court, His Lordship would seize to enjoy such power and, therefore, there is possibility of him not being impartial. The said request for recusal was rejected by the Constitution Bench. Mr. Justice J.Chalmeswar delivered the judgment for himself and on behalf of Mr. Justice Goel. Mr. Justice J.S. Khehar (as His Lordship then was) and Mr. Justice Madan B. Lokur rendered concurring judgments. Mr. Justice Kurian Joseph also rendered a concurring judgment agreeing with the view of Chelameswar & Goel, JJ, while partially disagreeing with Mr. Justice Lokur. Mr. Justice Chelameswar, in his opinion referred to the tests evolved judicially from time to time to decide the issue of recusal, and culled out the principles which would be applicable in the following words: “25. From the above decisions, in our opinion, the following principles emerge:

25.1. If a Judge has a financial interest in the outcome of a case, he is automatically disqualified from hearing the case.

25.2. In cases where the interest of the Judge in the case is other than financial, then the disqualification is not automatic but an enquiry is required whether the existence of such an interest disqualifies the Judge tested in the light of either on the principle of “real danger” or “reasonable apprehension” of bias.

25.3. The Pinochet case [R. v. Bow Street Metropolitan Stipendiary Magistrate, ex p Pinochet Ugarte (No. 2), (2000) 1 AC 119: (1999) 2 WLR 272: (1999) 1 All ER 577 (HL)] added a new category i.e. that the Judge is automatically disqualified from hearing a case where the Judge is interested in a cause which is being promoted by one of the parties to the case.”

24. In paragraph 30 of his opinion Mr. Justice Chelameswar, inter alia, observed: “… … … it is a well-established principle of law that an objection based on bias of the adjudicator can be waived. Courts generally did not entertain such objection raised belatedly by the aggrieved party: “The right to object to a disqualified adjudicator may be waived, and this may be so even where the disqualification is statutory. [Wakefield Local Board of Health v. West Riding and Grimsby Railway Co., (1865) LR 1 QB 84] The court normally insists that the objection shall be taken as soon as the party prejudiced knows the facts which entitle him to object. If, after he or his advisors know of the disqualification, they let the proceedings continue without protest, they are held to have waived their objection and the determination cannot be challenged.” [R. v. Byles, ex p Hollidge, (1912) 77 JP 40; R. v. Nailsworth Licensing Justices, ex p Bird, (1953) 1 WLR 1046; R. v. Lilydale Magistrates Court, ex p Ciccone, 1973 VR 122; and see R. v. Antrim Justices, (1895) 2 IR 603; Tolputt (H.) & Co. Ltd. v. Mole, (1911) 1 KB 836 (CA); Corrigan v. Irish Land Commission, 1977 IR 317]”

25. Mr. Justice Khehar in his concurring opinion pointed out the fact that the petitioner had raised no such objection to the hearing of the case by Mr. Justice Anil R. Dave, when His Lordship was a member of the Bench, even though, he was a member of the 1 + 2 Collegium, as well as 1 + 4 Collegium when the hearing in the matters commenced. Mr. Justice Anil R. Dave continued to hear the matters during the period that he was part of the 1 + 2 Collegium, and 1 + 4 Collegium. Mr. Justice Khehar, in his opinion, inter alia, observed as follows: “52. As a Judge presiding over the reconstituted Bench, I found myself in an awkward predicament. I had no personal desire to participate in the hearing of these matters. I was a part of the Bench because of my nomination to it by Hon'ble the Chief Justice of India. My recusal from the Bench at the asking of Mr Fali S. Nariman, whom I hold in great esteem, did not need a second thought. It is not as if the prayer made by Mr Mathews J. Nedumpara, was inconsequential.

53. But then, this was the second occasion when proceedings in a matter would have been deferred, just because, Hon'ble the Chief Justice of India, in the first instance, had nominated Anil R. Dave, J. on the Bench, and thereafter, had substituted him by nominating me to the Bench. It was therefore felt that reasons ought to be recorded after hearing the learned counsel, at least for the guidance of Hon'ble the Chief Justice of India, so that His Lordship may not make another nomination to the Bench which may be similarly objected to. This, coupled with the submissions advanced by Mr Mukul Rohatgi, Mr Harish N. Salve and Mr K.K. Venugopal, that parameters should be laid down, led to a hearing on the issue of recusal.”

26. His Lordship further observed that he, “was toying with the idea of recusal, because a prayer to that effect had been made in the face of the Court. My colleagues on the Bench would have nothing of it. They were unequivocal in their protestation.”

27. His Lordship further observed:

56. Despite the factual position noticed above, I wish to record that it is not their persuasion or exhortation, which made me take a final call on the matter. The decision to remain a member of the reconstituted Bench was mine, and mine alone. The choice that I made, was not of the heart, but that of the head. The choice was made by posing two questions to myself. Firstly, whether a Judge hearing a matter should recuse, even though the prayer for recusal is found to be unjustified and unwarranted? Secondly, whether I would stand true to the oath of my office, if I recused from hearing the matters?” “57. … … … In my considered view, the prayer for my recusal is not well founded. If I were to accede to the prayer for my recusal, I would be initiating a wrong practice, and laying down a wrong precedent. A Judge may recuse at his own, from a case entrusted to him by the Chief Justice. That would be a matter of his own choosing. But recusal at the asking of a litigating party, unless justified, must never to be acceded to. For that would give the impression, of the Judge had been scared out of the case, just by the force of the objection. A Judge before he assumes his office, takes an oath to discharge his duties without fear or favour. He would breach his oath of office, if he accepts a prayer for recusal, unless justified. It is my duty to discharge my responsibility with absolute earnestness and sincerity. It is my duty to abide by my oath of office to uphold the Constitution and the laws. My decision to continue to be a part of the Bench, flows from the oath which I took, at the time of my elevation to this Court.”

28. The difference of opinion in the view of Mr. Justice M.B. Lokur and Mr. Justice Kurian Joseph was whether the concerned Judge, for whose recusal the prayer is made, should or should not be required to give reasons for his recusal. Whereas, Mr. Justice Joseph was of the view that the Judge should give his reasons for either recusing or not recusing from the matter, Mr. Justice Lokur was of the opinion that no such reasons could be called for from the concerned Judge if he were to recuse from the case.

29. Coming to the submission of the petitioners that I should recuse from the case on account of my relationship with the learned Attorney General Mr. Mukul Rohatgi, in my view, the same is not a reason good enough for me to accede to the said request made by the petitioners. My relationship with Mr. Mukul Rohatgi does not pose a real danger of bias against the petitioners. That relationship does not give rise to a real or reasonable apprehension of bias in the mind of the petitioners. I have no interest in promoting the cause of either party to this case. I am not personally interested in the outcome of the case, and the effect that the same would have on the rights or position of the parties.

30. The petitioners have made allegations against Mr. Mukul Rohatgi-the learned Attorney General, with regard to his alleged hostility with the petitioner no. 1 and his alleged deeds to harass the petitioner no. 1. It is not for me to judge the correctness of the allegations made by the petitioners qua Mr. Mukul Rohatgi. Assuming, for the sake of arguments, that the allegations made by the petitioners against Mr. Mukul Rohatgi, the learned Attorney General and the political Party in power at the Centre are true, it does not follow that I, on account of my relationship with Mr. Mukul Rohatgi, should also carry or exhibit a sense of bias in my functioning as a Judge of this Court. Mr. Justice Joseph in Supreme Court Advocates on Record Association (supra) observed in paragraph 75 as follows: “75. Ultimately, the question is whether a fair-minded and reasonably informed person, on correct facts, would reasonably entertain a doubt on the impartiality of the Judge. The reasonableness of the apprehension must be assessed in the light of the oath of office he has taken as a Judge to administer justice without fear or favour, affection or ill will and his ability to carry out the oath by reason of his training and experience whereby he is in a position to disabuse his mind of any irrelevant personal belief or predisposition or unwarranted apprehensions of his image in public or difficulty in deciding a controversial issue particularly when the same is highly sensitive.”

31. In my view, if the aforesaid test were to be applied, it cannot be said that the petitioners have any basis to have any reasonable apprehension that I would deal with this case with a bias against the petitioners.

32. The expression of apprehension of bias against the petitioners, on account of my relationship with Mr. Mukul Rohatgi, the learned Attorney General, carries with it the innuendo that: (a) Mr. Mukul Rohatgi, the learned Attorney General (who allegedly is inimical towards the petitioner no. 1 – though there is no established basis for it) would, in breach of his professional ethics as an Advocate, and my constitutional independence, speak to me about the present case. (b) That he would speak to me, so as to influence me in forming an opinion against the petitioners.

(c) That I would entertain such a conversation with anyone, including

(d) That I would, on such talk or persuasion by Mr. Mukul Rohatgi, give in, and thereby betray the trust and confidence reposed in me by the President of India in appointing me as a Judge of this Court, as well as breach my oath of office and fall in my own estimation by killing my conscience.

33. There is absolutely no basis for entertainment of the apprehension expressed by the petitioners in my independence to decide the present petition entirely on its merits, and merits alone. There is no justification for, or reasonableness in entertainment of any such belief by the petitioners.

34. As a Judge of this Court, I owe my allegiance only to the Constitution of India and the laws of the land. I am completely independent - financially and otherwise, and I am not subordinate to any one, much less to the learned Attorney General Mr. Mukul Rohatgi - either on account of his office, or on account of my personal relationship with him. I am fully conscious of my responsibilities as a Judge of this Court, and the trust that has been reposed in me – including in my integrity and my independence, by the President of India in appointing me as a Judge of this Court. I am sworn (by my oath of office) to do my duty faithfully, and to the best of my ability, knowledge and judgment and to perform the duties of my office without fear or favour, affection or ill-will. Like all men, I am my own conscience keeper. I would myself recuse from a case if I have even the slightest inkling or doubt in my mind that I would not be able to decide the cause freely or independently, or that it would be improper for me to judge a cause, even though, I find myself in no way incapable of judging the cause independently and fairly.

35. I have no control over the thought process through which the petitioners may be going through. The issue is, whether there is any reasonable basis for the apprehension entertained and expressed by the petitioners with regard to my independence and, as aforesaid, I find none at all. Moreover, the said prayer has been made highly belatedly i.e. after the close of the hearing, even though the stated reasons for making his prayer were very much available even before the start of the hearing of the case. Accordingly, the prayer made by the petitioners that I recuse from the case is rejected. Background:

36. In November 2010, the Income Tax Authorities conducted raids at several offices of ISPAT Industries Ltd. (M/s IIL), wherein documents were allegedly seized in relation to cash transactions allegedly undertaken by the said company. Apparently, these documents revealed that members of M/s IIL had illegally paid amounts to officials of State Trading Corporation (STC). On receiving information from the Income Tax Authorities, the first PE was registered by the CBI on 19.10.2012 against unknown officials of State Trading Corporation and M/s IIL to enquire into the matters revealed from the discovery of documents seized during the aforesaid raids conducted by the Income Tax (Intelligence)-I, New Delhi on 30.11.2010. The first PE, in its material part, read as follows: “INFORMATION A source information has been received that Income Tax (Intelligence) – I, New Delhi, conducted a raid on the official premises of M/s Ispat Industries Limited and Group Companies (M/s IIL), room No. 312-317, Ashoka Hotel, Chanakya Puri, New Delhi on 30.11.2010. On the basis of documents seized from the office of M/s IIL it is alleged that the following illegal payments were shown made against the names of Shri C.M.Kalra, STC and Mr. Abhishek, STC by M/s IIL to the officials of State Trading Corporation:-

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┌──────────────────────────────────────────────────────────────────────────────────────────────────────────┐
│ Sl. No.               Question                               Answer                                      │
├──────────────────────────────────────────────────────────────────────────────────────────────────────────┤
│ 1         Whether cause of action has The issue is not whether cause of                                  │
│           arisen within the territorial action had arisen within the                                     │
│           jurisdiction of this Court qua territorial jurisdiction of the High                            │
│           FIR No. RCAC-1 2015 A-004 Court of Himachal Pradesh. The                                       │
│           registered on 23.9.2015, more issue is whether the cause of                                    │
│           particularly, in view of Sr. action had arisen within the                                      │
│           No. 5read in conjunction with territorial      jurisdiction      of    the                     │
│           paras 4, 5 and 6 of the FIR?      learned Special Judge, within                                │
│                                             whose jurisdiction the FIR/ RC                               │
│                                             has been registered. The cause of                            │
│                                             action may arise at one or more                              │
│                                             places.     The     RC      could     be                     │
│                                             registered within the jurisdiction                           │
│                                             of the Court at either of such                               │
│                                             places.    Cause of action has                               │
│ W.P.(CRL) 2757/2015                                                   Page 127 of 133                    │
│                                                                                          2017:DHC:1846   │
│                                                 certainly   arisen     within     the                    │
│                                                 jurisdiction of the learned Special                      │
│                                                 Judge at Delhi.                                          │
│ 2.       Whether      there       could     be The second primary inquiry in the                         │
│          second preliminary inquiry present case is on a different                                       │
│          after the closure of earlier aspect than the first primary                                      │
│          preliminary                   inquiry inquiry as discussed hereinabove.                         │
│          purportedly as per para 9.26 There was no illegality in the                                     │
│          of the Central Bureau of opening of the second preliminary                                      │
│          Investigation Manual?                  inquiry.                                                 │
│ 3.       Whether registration of FIR The registration of the FIR/ RC in                                  │
│          No. RCAC-1 2015 A-004 the present case does not violate                                         │
│          dated 23.9.2015 violates the the decision of the Supreme Court                                  │
│          dicta of Hon’ble Supreme               in Mayawati (supra).                                     │
│          Court in Ms. Mayawati vs.                                                                       │
│          Union of India and others,                                                                      │
│          (2012)8 SCC 106?                                                                                │
│ 4.       Whether it was mandatory for It was not mandatory for the CBI                                   │
│          the    Central       Bureau        of to seek the consent of the State                          │
│          Investigation      to     seek    the Government of Himachal Pradesh                            │
│          consent       of        the      State under Section 6 of the DSPE Act                          │
│          Government as per section 6 at the time of registration of the                                  │
│          of the Delhi Special Police FIR/ RC.                Thus, the FIR/ RC                           │
│          Establishment Act at the time          cannot be quashed on the ground                          │
│ W.P.(CRL) 2757/2015                                                    Page 128 of 133                   │
│                                                                           2017:DHC:1846                  │
│          of registration of FIR and its of there being no consent under                                  │
│          subsequent investigation and Section 6 of the DSPE Act from                                     │
│          raiding        the    residential the State Government of Himachal                              │
│          premises of the petitioners Pradesh. It was mandatory for the                                   │
│          and      non    conforming     to CBI to obtain the consent of the                              │
│          mandatory        provisions    of State of Himachal Pradesh under                               │
│          section 6 of the Delhi Special     Section 6 prior to conduct of any                            │
│          Police       Establishment    Act part of investigation in the area of                          │
│          vitiates the investigation as State of Himachal Pradesh. The                                    │
│          well as raid in the official issue whether such consent had                                     │
│          premises of the petitioners?       been      obtained   generally,      or                      │
│                                             specifically, as well as the issue as                        │
│                                             to what is the effect of the                                 │
│                                             investigation conducted, if any,                             │
│                                             without     obtaining     the     prior                      │
│                                             consent of the State Government                              │
│                                             of Himachal Pradesh, cannot be                               │
│                                             determined      in      the     present                      │
│                                             proceedings and would fall for                               │
│                                             consideration, if and when a                                 │
│                                             charge-sheet is filed before the                             │
│                                             learned Special Judge. The issue                             │
│                                             whether, investigation carried out                           │
│                                             de hors the consent of the State of                          │
│                                             Himachal Pradesh – even if it                                │
│ W.P.(CRL) 2757/2015                                                  Page 129 of 133                     │
│                                                                                         2017:DHC:1846    │
│                                             were to be accepted for the sake of                          │
│                                             arguments that such consent was                              │
│                                             not available, would have to be                              │
│                                             considered by the learned Special                            │
│                                             Judge in the light of the discussion                         │
│                                             and   decisions     taken       note   of                    │
│                                             hereinabove.                                                 │
│ 5.       Whether the raid of the Since the case/ RC has been                                             │
│          residential premises of the justifiably registered at Delhi by                                  │
│          sitting Chief Minister without the CBI, if the investigation                                    │
│          conforming to section 6 of the (including the raid on the premises                              │
│          Delhi          Special     Police of the sitting Chief Minister) has                            │
│          Establishment        Act   would been conducted by the CBI in the                               │
│          dilute       the   basic   federal area of State of Himachal Pradesh                            │
│          structure of the Constitution in accordance with law, the same                                  │
│          of India?                          would    not     dilute       the   basic                    │
│                                             structure of Constitution of India.                          │
│                                             The petitioners have not relied                              │
│                                             upon any provision of law and                                │
│                                             have not cited any decision of any                           │
│                                             Court to submit that sitting Chief                           │
│                                             Minister of a State enjoys any                               │
│                                             immunity       against    a     criminal                     │
│                                             offence duly registered by the CBI                           │
│                                             within the jurisdiction of the                               │
│ W.P.(CRL) 2757/2015                                                   Page 130 of 133                    │
│                                                                       2017:DHC:1846                      │
│                                            competent Special Judge.                                      │
│ 6.       Whether the FIR No. RCAC- The FIR in question could be                                          │
└──────────────────────────────────────────────────────────────────────────────────────────────────────────┘

106. Chapter – IX of the said manual goes on to, inter alia, lay down the procedure that the CBI should adopt while registering a preliminary enquiry; collection of documents/ recording of statements in Preliminary Enquiry; and the procedure for converting a Preliminary Enquiry into a regular case, etc.

107. In Lalita Kumari (supra), the Constitution Bench of the Supreme Court elaborately considered the scheme contained in the Code with regard to registration of a First Information Report upon receipt of information with regard to commission of a cognizable offence. The Supreme Court held that the police is bound to register the FIR under Section 154 of the Code, if the information discloses commission of a cognizable offence and generally the police has no discretion in the matter of registration of FIR, and resort to a preliminary enquiry before registration of the FIR.

108. In the course of submissions advanced by learned counsels, the Central Bureau of Investigation (Crime) Manual – 2005 was adverted to, which permits the CBI to conduct a preliminary enquiry before registration of an FIR/ Regular Case if the information received does not per se disclose the commission of a cognizable offence. It was argued that the preliminary enquiry conducted by the CBI, as provided in the Central Bureau of Investigation (Crime) Manual – 2005 stands on a different footing due to the special provisions relating to CBI contained in the Delhi Police Special Establishment Act, which is saved by Section 2(4) and (5) of the Code. The Supreme Court had the following to say in relation to the procedure laid down for conduct of a preliminary enquiry in Chapter – IX of the Central Bureau of Investigation (Crime) Manual – 2005: “89. … … … It is true that the concept of “preliminary inquiry” is contained in Chapter IX of the Crime Manual of CBI. However, this Crime Manual is not a statute and has not been enacted by the legislature. It is a set of administrative orders issued for internal guidance of the CBI officers. It cannot supersede the Code. Moreover, in the absence of any indication to the contrary in the Code itself, the provisions of the CBI Crime Manual cannot be relied upon to import the concept of holding of preliminary inquiry in the scheme of the Code of Criminal Procedure. At this juncture, it is also pertinent to submit that CBI is constituted under a special Act, namely, the Delhi Special Police Establishment Act, 1946 and it derives its power to investigate from this Act.

90. It may be submitted that Sections 4(2) and 5 of the Code permit special procedures to be followed for special Acts. Section 4 of the Code lays down as under: “4.Trial of offences under the Indian Penal Code and other laws.—(1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained. (2) All offences under any other law shall be investigated, inquired into, tried, and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences.” It is thus clear that for the offences under the laws other than IPC, different provisions can be laid down under a special Act to regulate the investigation, inquiry, trial, etc. of those offences. Section 4(2) of the Code protects such special provisions.

91. Moreover, Section 5 of the Code lays down as under: “5.Saving.—Nothing contained in this Code shall, in the absence of a specific provision to the contrary, affect any special or local law for the time being in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force.” Thus, special provisions contained in the DSPE Act relating to the powers of CBI are protected also by Section 5 of the Code.

92. In view of the above specific provisions in the Code, the powers of CBI under the DSPE Act, cannot be equated with the powers of the regular State Police under the Code.” (emphasis supplied)

109. The Supreme Court also considered the exceptions to the general rule with regard to registration of a First Information Report upon information being received about commission of a cognizable offence. These exceptions have been discussed from paragraph 115 onwards under the heading “Exceptions”.

110. In paragraph 117, the Supreme Court took note of P. Sirajuddin vs. State of Madras (supra), wherein it had observed that in the context of offence relating to corruption by public servants, conduct of a preliminary enquiry/ proceeding should be resorted to. Some of the conclusions/ directions contained in Lalita Kumari (supra), which are relevant for the present purpose, read as follows: “Conclusion/Directions

120. In view of the aforesaid discussion, we hold:

120.1. The registration of FIR is mandatory under Section 154 of the Code, if the information discloses commission of a cognizable offence and no preliminary inquiry is permissible in such a situation.

120.2. If the information received does not disclose a cognizable offence but indicates the necessity for an inquiry, a preliminary inquiry may be conducted only to ascertain whether cognizable offence is disclosed or not.

120.3. If the inquiry discloses the commission of a cognizable offence, the FIR must be registered. In cases where preliminary inquiry ends in closing the complaint, a copy of the entry of such closure must be supplied to the first informant forthwith and not later than one week. It must disclose reasons in brief for closing the complaint and not proceeding further.

120.4. The police officer cannot avoid his duty of registering offence if cognizable offence is disclosed. Action must be taken against erring officers who do not register the FIR if information received by him discloses a cognizable offence.

120.5. The scope of preliminary inquiry is not to verify the veracity or otherwise of the information received but only to ascertain whether the information reveals any cognizable offence.

120.6. As to what type and in which cases preliminary inquiry is to be conducted will depend on the facts and circumstances of each case. The category of cases in which preliminary inquiry may be made are as under: (a) Matrimonial disputes/family disputes (b) Commercial offences

(c) Medical negligence cases

(d) Corruption cases

(e) Cases where there is abnormal delay/laches in initiating criminal prosecution, for example, over 3 months' delay in reporting the matter without satisfactorily explaining the reasons for delay. The aforesaid are only illustrations and not exhaustive of all conditions which may warrant preliminary inquiry.” (emphasis supplied)

111. Thus, so far as the CBI is concerned, when it receives information with regard to commission of a cognizable offence under the PC Act, it is not obliged to straightaway register an FIR/ RC, in every such case, and in terms of the procedure prescribed under the Central Bureau of Investigation (Crime) Manual – 2005 – which though not statutory, and serves as a guideline for the procedure/ mechanism to be adopted by the CBI, it may register and conduct a preliminary enquiry if the information received justifies the adoption of that course of conduct.

112. In the light of the aforesaid legal position, it would be appropriate to now examine as to how the respondent no. 1/ CBI has proceeded in this matter. For that purpose, the First PE, the Second PE and the RC need to be examined as also the status reports filed by the CBI in the Common Cause PIL may be looked at. The petitioners have sought the disclosure of the contents of the Status reports filed by the CBI from time to time during the hearing of the Common Cause PIL. The CBI has not opposed the said prayer of the petitioners - so far as perusal of the said status reports by this Court, is concerned. In view of the said stand taken by the CBI, I do not consider it necessary to delve into the submission of Mr. Krishnan premised upon Natwar Singh (supra), Ashutosh Verma (supra), Col. S.J. Chowdhary (supra) and Sidhartha Vashist (supra), since I am allowing the alternative prayer made by the petitioners in this regard. What the Status Reports in the Common Cause PIL say

113. The Registry was directed to place before this Court the sealed covers containing the status reports filed in the common cause PIL from time to time. The status reports contained in sealed covers have been placed before me. The sealed covers have been opened and the status reports have been perused. I may observe that in respect of one of the sealed covers, though the seal was intact, the adhesive/ lacquer had given way and the cover was, therefore, open. However, the status report was found placed in the said cover.

114. The first status report is dated 07.02.2014. The forwarding letter attached to this status report shows that the same was filed in compliance of the order dated 27.11.2013 passed by the Court in W.P. (C.) No. 7240/2013. It discloses that the First PE was registered against unknown persons and M/s IIL and others in PE AC[1] 2012 A 0007, New Delhi. It discloses the background facts relating to registration of the First PE, namely, the searches conducted by the Income-tax authorities in the premises of IIL on 30.11.2010, when certain documents were recovered and seized by the Income Tax authorities. They showed certain illegal payments to have been made by IIL in the name of C.M. Kalra and Abhishek Kalra of STC on various dates. It also states that business transactions were undertaken by IIL with STC through Sh. C.M. Kalra and Sh. Abhishek Kalra working as Chief Manager and Assistant Manager respectively in the Hydrocarbon Division of STC.

115. It goes on to disclose that during the pendency of the said enquiry, Mr. Prashant Bhushan, Advocate sent a complaint dated 11.01.2013 against petitioner no.1, who was the Union Minister of Steel during the relevant period. It also reveals that the basis of the complaint of Mr. Prashant Bhushan, Advocate is the excel sheet seized by the Income Tax authorities from the office of M/s IIL during searches on 30.11.2009. The allegation in the said complaint was that IIL had made illegal payments to Shri Vir Bhadra Singh as reflected in the seized Excel sheets – which disclosed the use of the acronym/abbreviation “VBS”. With due approval of the competent authority, the complaint of Mr. Prashant Bhushan against the petitioner no.1 herein was also enquired into in the First PE. The status report also sets out the result of the enquiry carried out till the making of the said status report.

116. It is not necessary to delve into the aspects which had been enquired into by the CBI during the First PE qua the petitioners herein, since these aspects have been clearly set out in the Second PE, as well in the FIR/ RC. This status report proceeds to state that in order to ascertain the quid pro quo, relevant records/ files pertaining to IIL dealt in the Ministry of Steel, and visitors record of Ministry of Steel during the period Shri Vir Bhadra Singh was a Central Minister in the said Ministry has been requisitioned from the Ministry of Steel, Udyog Bhawan, New Delhi. It also, inter alia, records that the officers/ representatives of IIL, who were dealing with the Ministry of Steel during the period of payment shown in the name of ‘VBS’ are being identified. In the month of April, 2011, M/s IIL had been taken over by M/s JSW Ispat Limited and most of the employees had left the jobs and even the offices have been changed. The status report records that certain files/ record relevant to the allegations leveled in the petition are yet to be received and witnesses and suspects, including Sh. Vir Bhadra Singh are yet to be examined.

117. The next status report, which is dated 16.04.2014, also, does not disclose any additional facts, which do not find mention in the Second PE. It records that the PE is in progress to ascertain the veracity of the allegations made against the petitioner in the writ petition, i.e. Common Cause PIL and the intervention application. It states that certain files/ records relating to the enquiry are yet to be received, and some witnesses are yet to be examined.

118. There is one report found in the sealed covers – which appears to be the third status report, which is neither dated nor signed by any officer of the CBI. This status report, inter alia, states that though during the course of search (at the premises of IIL), various evidence of tax evasion by M/s Ispat Group of Companies were recovered and seized, which included certain documents indicating cash receipts and cash payments made to various persons whose abbreviations, inter alia, included ‘VBS’ and whose full particulars (full form) were not available, the abbreviated forms – including the term “VBS” could not be attributed to any specific person, including Sh. Vir Bhadra Singh. It also mentions that the issues investigated included the issue of agricultural income and the amounts of money paid by Sh. Anand Chauhan as premium for LIC policies of Sh. Vir Bhadra Singh and his family members, and that such investigation are still in progress. It makes a reference to the centralization of seven income-tax cases with DCIT, Central Circle – I, Chandigarh and states that eleven other cases related to the subject matter are in process of being centralized. It also discloses that a writ petition had been filed by Sh. Anand Chauhan before the High Court of Himachal Pradesh at Shimla, wherein the said High Court had stayed the centralization order. Sh. Vir Bhadra Singh had also challenged the centralization order, which had been stayed by the High Court. It records that the stay granted by the Himachal Pradesh High Court on centralization has hampered the progress of investigation. It further records that based on available facts and evidence, the Income-Tax Department has undertaken necessary investigation into the allegations against Shri Vir Bhadra Singh and persons associated with him as per the provisions of the Income-Tax Act.

119. Though the list of seven centralized cases, and another list of eleven cases in process of centralization, and the report of investigation along with its present status (described as Annexure – A) are found, the same do not bear the annexure mark as Annexure – A. However, its perusal shows that it is the report of investigation in relation to the income-tax cases of Sh. Vir Bhadra Singh and related entities.

120. Apart from the aforesaid reports, there is a final status report in relation to the First PE dated 29.08.2014 placed on record. This final status report also narrates the findings of the preliminary enquiry premised on the complaint made by Mr. Prashant Bhushan, Advocate against the petitioner no.1 herein, which was also included within the ambit of the First PE. This status report also records that the Manager - Accounts of M/s IIL admitted to have made entries in the excel sheets on the instructions of Director, Corporate Affairs and ED, Finance of M/s IIL and other persons as recorded against the entries. However, the same had been denied by the mentioned individuals. During proceedings conducted by the Income-Tax Department, the Manager (Accounts) had denied any kind of knowledge about the entries made in the excel sheets discovered by the IT authorities from the office of

IIL. The Manager (Accounts) denied any knowledge about the identity of “VBS”. The Ministry of Steel also denied having any records pertaining to any matter of M/s IIL having been dealt with by the then Minister of Steel. The Ministry of Steel replied that no proposal of M/s IIL had been either approved or sanctioned during the tenure of Sh. Vir Bhadra Singh as Union Minister of Steel. Sh. Vir Bhadra Singh had denied any monetary transaction/ dealings with M/s IIL, and added that neither had he dealt with any proposal of M/s IIL, nor extended any favour to the said firm. The explanation furnished by Sh. Vir Bhadra Singh with regard to filing of revised ITR is also recorded. It records that the enquiry could not conclusively establish that “VBS” mentioned in the excel sheets refers to the petitioner no. 1 herein, Sh.Vir Bhadra Singh, as alleged by the complainant Mr. Prashant Bhushan. The conclusions recorded in this final status report, read as follows: “Conclusions:-

I. That instant PE could not conclusively establish that the entries mentioned in the excel sheets as “VBS” refer to Sh. Vir Bhadra Singh, the then Union Steel Minister and presently Chief Minister, Himachal Pradesh. Further, no undue favours could be established to have been extended by Sh. Vir Bhadra Singh to M/s IIL during his tenure as Union Steel Minister. In this perspective, there is no scope of registering a criminal case in respect of alleged payments of illegal gratification by M/s IIL to Sh. Vir Bhadra Singh, or alleged criminal misconduct on the part of Shri Vir Bhadra Singh by way of abusing his official position.

II. That in connection with submission of revised ITRs by

Shri Vir Bhadra Singh for the AY 2009-10 to 2011-12, various discrepancies and latches observed in the explanations/ documents/ records submitted by Shri Anand Chauhan and M/s Universal Apple Associates, point towards an effort on the part of Shri Vir Bhadra Singh to camouflage these cash deposits as income from apple orchards. These discrepancies create huge suspicions about the genuineness of these efforts, and as a result, this income of Sh. Vir Bhadra Singh has remained unexplained during the enquiry. Though the relevant records have been fabricated by private individuals i.e. Sh. Anand Chauhan and M/s Universal Apple Associates, yet the ultimate beneficiary of such acts was none other than Sh. Vir Bhadra Singh himself, and hence his knowledge of these fraudulent acts is palpably evident.

III. That instant enquiry could not link the “un-explained income” of Sh. Vir Bhadra Singh with any specific corrupt activity on his part, while he was working as Union Steel Minister. As per records, Sh. Vir Bhadra Singh never showed any undue favour as a public servant, with regard to matters of M/s IIL pending with the Ministry of Steel.

IV. That such an “un-explained income”, however, gives rise to a strong suspicion of the same being ill-gotten wealth/ assets, disproportionate to the known sources of income of Sh. Vir Bhadra Singh as a public servant. This aspect, being beyond the scope of this PE, has not been looked into so far. A detailed enquiry is, therefore, required, fixing an appropriate check period (May, 2009 to January, 2011, i.e. his tenure as Union Steel Minister) and accounting for the incomes, assets and expenditure of Sh. Vir Bhadra Singh, to examine whether or not a viable Disproportionate Assets (DA) case is made out against him.

V. That the aspects of forgery and falsification of documents which support creation of additional income on the part of Shri Vir Bhadra Singh would constitute subsidiary offences, if a viable DA case is made out against him and his associates.

VI. It has come to light that that the first ITR for the AY

2011-12 was filed by Shri Vir Bhadra Singh on 11.07.2011 showing his agricultural income as Rs. 25 lakhs. The revised ITR for this year, showing an income of Rs.1.55 crores was filed by him on 02.03.2012. Thereafter, while contesting HP Assembly elections, he filed an affidavit on 17.10.2012 showing his income as Rs. 18.66 lakhs only. Thus, Shri Vir Bhadra Singh appears to have grossly suppressed his income in the said affidavit. This matter is proposed to be brought to the notice of the Election Commission of India, for taking necessary action as deemed fit. Prayer: It is, therefore, concluded that sufficient material is not available for registration of a criminal case in respect of the allegations of payment of bribe by M/s IIL to Shri Vir Bhadra Singh, and abuse of official position by Shri Singh by way of showing undue favours to M/s IIL. However, it is proposed to probe the unexplained income of Shri Vir Bhadra Singh from Disproportionate Assets perspective by registering a fresh PE in that matter. Since this Hon’ble Court is seized of the issue, this Final Status Report is being submitted for orders, if any, before proceeding further.”

121. Thus, the status reports filed by the CBI during the proceedings of the common cause PIL are no different from the factual narration contained in the Second PE. During the course of the First PE, the complaint of Mr. Prashant Bhushan, Advocate – followed by the common cause PIL, surfaced. Both of them sought to link the disclosure of the abbreviation “VBS” in the Excel Sheets recovered by the Income-Tax authorities during raid on the premises of M/s IIL with the petitioner no.1, and also contained other allegations to suggest the trail of the money, allegedly received by petitioner no.1 herein from M/s IIL, to the purchase/ acquisition of LIC policies in the names of the petitioners and their family members by showing the source of the funds as horticultural income. Apparently, on account of the alleged link claimed by Mr. Prashant Bhushan, Advocate in his complaint and in the common cause PIL, the preliminary enquiry on the aspects alleged in the said complaint/ Common Cause PIL was done within the ambit of the First PE. However, the CBI could not, prima-facie, establish the allegation that the abbreviation ‘VBS’ found in the Excel sheets of M/s IIL pertained to the petitioner no. 1, Shri Vir Bhadra Singh. It could not establish the “quid pro quo” for the alleged payments shown to have been made by IIL to “VBS” – if “VBS” stood for petitioner no. 1 Vir Bhadra Singh. Thus, the alleged link between the alleged payment to ‘VBS’ by IIL, with the investment made by petitioner no.1 in the LIC policies purchased in the name of Shri Vir Bhadra Singh and his family members from the alleged horticultural income could also not be established. Instead, a possible case of possession of disproportionate assets (while petitioner no.1 was a Central Minister) emerged, which was beyond the scope of the First PE and, consequently, the Second PE came to be registered to probe the same. It is, thus, clear that the First PE was closed, and Second PE came to be registered on account of the CBI not being able to link up the payments shown to have been made by M/s IIL to “VBS” with petitioner no.1 herein and, instead, the CBI finding a possible case of possession of disproportionate assets while the petitioner no.1 was a Central Minister.

122. A perusal of the First PE shows that the same pertains to the possible commission of offence under Section 7 and Section 13(1)(d) read with Section 13(2) of the PC Act, but certainly not to the offence under Section 13(1)(e) read with Section 13(2) of the said Act. Moreover, it was directed against unknown officials of State Trading Corporation, New Delhi, unknown officials of M/s IIL and other unknown persons. The Second PE was registered on 17.06.2015 since the “unexplained income” of petitioner no.1 gave “rise to a strong suspicion of the same being ill-gotten wealth/ assets, disproportionate to the known sources of income of Shri Vir Bhadra Singh acquired during the period 2009-11 when he was the Union Minister of Steel.”. Consequently, the Inspector of the CBI “requested that a Preliminary Enquiry may please be registered for fixing an appropriate check period and accounting for the incomes, assets and expenditure of Shri Virbhadra Singh to examine whether or not a viable Disproportionate Assets (DA) case is made out against him during the period when he was Union Minister in GOI.”. As a result of this exercise, the Second PE was “registered for fixing an appropriate check period and accounting for the incomes, assets and expenditure of Shri Vir Bhadra Singh, to examine whether or not a viable Disproportionate Assets (DA) case is made out against him during the period when he was Union Minister in GOI.”.

123. The possible offence under enquiry in the First Preliminary Enquiry necessarily involved officers of M/s IIL, since it was alleged that the illegal gratification was paid to officers of STC and other unknown persons by them. However, the Second PE was registered and undertaken in respect of a possible offence under Section 13(1)(e) read with Section 13(2) of the PC Act while petitioner no.1 was serving as a Central Minister in Delhi.

124. The said two offences are distinct and different. They may, or may not, overlap. They were not found to be connected, or part of the same transaction. In R. Vasudevan (supra) this Court was dealing with the petitioner’s plea for joint trial of two cases – one under Section 13(2) r/w S. 13(1)(e) of the PC Act, and the other under Sections 7,8,12 r/w S. 13(2) and

9. In the present case, it was contended by the learned counsel for the petitioner that, as both the offences under Section 13(1)(d) and Section 13(1)(e) PC Act are punishable under Section 13(2) PC Act, hence they shall be considered to be of the same kind in view of Section 219 CrPC and be tried together. This contention of the learned counsel for the petitioner is misplaced and misconceived. The offences under Section 13(1)(d) and 13(1)(e) of the PC Act, although relate to the same subject, are distinct in their application and ingredients.

10. In the case of V.K. Puri v. CBI (2007) 6 SCC 91, the Hon'ble Supreme Court held thus,

11. Further, in a case under Section 13(1)(e) PC Act, once the ingredients of the offence are established by the prosecution, the burden of proof, shifts on the accused person to account for the pecuniary resources and properties found in his possession in the relevant check period. However, in cases where the public servant is alleged to have taken illegal gratification, the burden of proof to prove the offence under Section 13(1)(d) of the PC Act is on the prosecution and not on the accused. Hence, the approach of the prosecution, in both the cases will be different and independent.” (emphasis supplied) The offence of acquisition of disproportionate assets under Section 13 (1)(e) r/w Section 13(2) of the PC Act may, or may not be, linked to a case under Section 7 and 13(1)(d) r/w S. 13(2) of the PC Act. Thus, when the First PE was registered, there was absolutely no material available with the CBI to suspect the commission of any offence by petitioner no. 1, much less the commission of the offence under Section 13(2) read with Section 13(1)(e) of the PC Act. The information received by the CBI – in the form of representation of Mr. Prashant Bhushan or the Common Cause PIL with regard to link up between IIL and petitioner no. 1 could not be established. However, the preliminary enquiry did suggest the commission of the offence under Section 13(2) read with 13(1)(e) of the PC Act. Thus, the Second PE was registered to fix the check period.

125. Reliance placed by Mr. Krishnan on TT. Anthony (supra) appears to be misplaced. This is for the reason that in TT. Anthony (supra), the Court was concerned with registration of a subsequent FIR in relation to the same instance/ offence. In the present case, the CBI did not register the FIR/ RC and registered the First PE, as noted above, in relation to a possible offence involving payment of illegal gratification by officers of M/s IIL to officers of STC and other unknown persons. The same did not relate to possible commission of an offence under Section 13(1)(e) read with Section 13(2) of the PC Act. Thus, the present case does not involve registration of two FIRs/ RCs under Section 154 Cr.P.C., as only a preliminary enquiry was registered on 19.10.2012, i.e. the First PE. Since it could not be verified that payments were allegedly made by officers of M/s IIL to petitioner no.1, the said PE was closed.

126. Tapan Kumar Singh (supra) is also of no avail to the petitioners, firstly, for the reason that when the First PE was registered there was no definite information linking the alleged payments made by M/s. IIL to petitioner no.1. At that stage, the complainant of Mr. Prashant Bhushan and the Common Cause PIL were also not made. Even after they surfaced, the allegations made by Mr. Prashant Bhushan, Advocate in his representation dated 11.01.2013 seeking to link the payments of illegal gratification allegedly made by M/s IIL to “VBS” could not be established. However, what emerged during the said preliminary enquiry (after the enlargement of its scope) was that a possible case of disproportionate assets may be made out against petitioner no.1/ Sh. Vir Bhadra Singh. Thus, it cannot be said that the First PE, or the complaint of Mr. Prashant Bhushan, or the Common Cause PIL could, or should have been treated as a regular case FIR. Neither of them were treated as an FIR/a regular case. Otherwise, the First PE - even after the enlargement of its scope could not have been closed by the CBI on its own. The report would, necessarily have been filed before the ld. Special Judge. That course of action was not adopted. Simultaneously, with the closing of the First PE, the Second PE was registered.

127. Reliance placed by Mr. Krishnan on Amitbhai Anilchandra Shah (supra) is also misplaced. In this case as well, initially a First Information Report had been registered in relation to the alleged offence. The State filed the charge-sheet after a gap of 3½ years. The Supreme Court vide its judgment in Narmada Bai Vs. State of Gujarat, (2011) 5 SCC 79 rejected the investigation conducted/ concluded by the State police and directed the State police authorities to handover the case to the CBI. After investigation, CBI filed a fresh FIR dated 29.04.2011 against various police officials of the States of Gujarat and Rajasthan and others, for acting in furtherance of a criminal conspiracy to save themselves from legal consequences of their crime by causing disappearance of human witness, i.e. Tulsiram Prajapati by murdering him on 28.12.2006 and showing it off as a fake encounter. In the said case, the charge-sheet dated 04.09.2012 was filed before the Court of the Judicial Magistrate First Class. The petitioner was aggrieved by the registration of the fresh FIR dated 29.04.2011 and the filing of the chargesheet dated 04.09.2012, since he was arrayed as A-1 in the said chargesheet. The Supreme Court observed that the prayer in the writ petition shows that the petitioner was not seeking quashing of the investigation. He only sought quashing of the second FIR dated 29.04.2011 and also prayed that the charge-sheet dated 04.09.2012 filed in respect of the said subsequent FIR be treated as a supplementary charge-sheet in the first FIR being RC No.4S/2010.

128. At this stage itself, I may observe that in the present case, the petitioners are seeking quashing of the RC/ FIR, which is the only RC/ FIR registered. Thus, on facts, the situation dealt with by the Supreme Court in Amitbhai Anilchandra Shah (supra), the situation arising in the present is the entirely different since, in the present case, there is only one RC/ FIR registered. The conclusions drawn by the Supreme Court in Amitbhai Anilchandra Shah (supra) read as follows: “Conclusion

59. In the light of the specific stand taken by CBI before this Court in the earlier proceedings by way of assertion in the form of counter-affidavit, status reports, etc. we are of the view that filing of the second FIR and fresh charge-sheet is violative of fundamental rights under Articles 14, 20 and 21 of the Constitution since the same relate to alleged offence in respect of which an FIR had already been filed and the court has taken cognizance. This Court categorically accepted CBI's plea that killing of Tulsiram Prajapati is a part of the same series of cognizable offence forming part of the first FIR and in spite of the fact that this Court directed CBI to “take over” the investigation and did not grant the relief as prayed, namely, registration of fresh FIR, the present action of CBI filing fresh FIR is contrary to various judicial pronouncements which is demonstrated in the earlier part of our judgment.

60. In view of the above discussion and conclusion, the second FIR dated 29-4-2011 being RC No. 3(S)/2011/Mumbai filed by CBI is contrary to the directions issued in judgment and order dated 8-4-2011 by this Court in Narmada Bai v. State of Gujarat [(2011) 5 SCC 79: (2011) 2 SCC (Cri) 526] and accordingly the same is quashed. As a consequence, the charge-sheet filed on 4-9-2012, in pursuance of the second FIR, be treated as a supplementary charge-sheet in the first FIR. It is made clear that we have not gone into the merits of the claim of both the parties and it is for the trial court to decide the same in accordance with law. Consequently, Writ Petition (Crl.) NO. 149 of 2012 is allowed. Since the said relief is applicable to all the persons arrayed as accused in the second FIR, no further direction is required in Writ Petition (Crl.) No. 5 of 2013.”

129. These conclusions were drawn by the Supreme Court in the background that there was an earlier FIR in respect of the same alleged offence, which formed the subject matter of the subsequent FIR. For the same reasons, reliance placed on Babubhai (supra) by Mr. Krishnan appears to be misplaced. In this case as well, there were two FIRs registered. The Supreme Court in para 12 of this decision observed as follows: “21. In such a case the court has to examine the facts and circumstances giving rise to both the FIRs and the test of sameness is to be applied to find out whether both the FIRs relate to the same incident in respect of the same occurrence or are in regard to the incidents which are two or more parts of the same transaction. If the answer is in the affirmative, the second FIR is liable to be quashed. However, in case, the contrary is proved, where the version in the second FIR is different and they are in respect of the two different incidents/crimes, the second FIR is permissible. In case in respect of the same incident the accused in the first FIR comes forward with a different version or counterclaim, investigation on both the FIRs has to be conducted”.

130. There can be no quarrel with the proposition that in relation to the same incident i.e. in respect of the same occurrence, or in regard to the incident which are two or more parts of the same transaction, a second FIR cannot be registered and, if so registered, the same shall be liable to be quashed. However, as noticed herein above, firstly, in the present case, there is only one FIR/RC registered by the CBI under Section 13(2) read with section 13(1)(e) of the PC Act and section 109 IPC. Secondly, the First PE related to possible offences under Section 7 and Section 13(2) read with section 13(1)(d) of the PC Act, and certainly not Section 13(2) read with section 13A(1)(e) of the PC Act, whereas, the Second PE relates to the possible offences under Section 13(2) read with section 13(1)(e) of the PC Act and section 109 IPC. They are not shown to be part of the same series of acts/omission or part of the same transaction.

131. So far as reliance placed on Vineet Narain (supra) is concerned, firstly, no specific provision of the said manual has been adverted to claim its breach. In any event, breach of the provisions of the said manual may lead to disciplinary action against the official concerned. The so called alleged breaches of the CBI manual do not afford a ground to the petitioners to seek the quashing of the FIR/RC.

132. The submission of Mr. Krishnan that the First PE (after enlargement of its scope on account of the representation made by Mr. Prashant Bhushan and the Common Cause PIL) itself tantamount to a FIR/ RC cannot be accepted also for the reason that, if that were the case, the same could not have been closed by the CBI on its own, and the CBI would have been obliged to file a report on completion of investigation under Section 173 Cr.P.C. before the competent Court. Even if the procedure prescribed under Section 157 (1)(b) were to be adopted, the report would necessarily have to be filed before the Competent Court in compliance of Section 157(2) Cr.P.C. In the present case, it is not the submission of the petitioners that the CBI treated the First PE - with its enlarged scope, as a Regular Case/ RC and that it had filed a closure report. In fact, the position is to the contrary. The conclusions recorded in the final status report filed by the CBI in the Common Cause PIL, which have been extracted hereinabove, clearly bring out the reason for closing the First PE, and also the reasons for opening the Second PE. Thus, the scope of the First PE, and that of the Second PE were materially different. The closing of the First PE did not tantamount to closing of a Regular Case/FIR. The submissions of Mr. Krishnan are meritless and, therefore, rejected.

133. I may now turn to the submissions advanced by Mr. Sibal. Primarily his submissions are two-fold. The first is that the registration of the FIR/ RC at Delhi by the CBI is without jurisdiction on account of lack of territorial jurisdiction in the Special Judge at Delhi to try the alleged offence. The second is that the CBI cannot carry out investigation in the State of Himachal Pradesh in the FIR/ RC in question, on account of lack of consent given by the State Government of Himachal Pradesh under Section 6 of the DSPE Act.

134. So far as the first submission of Mr. Sibal is concerned, I do not find any merit in the same. As noticed hereinabove, the FIR/ RC has been registered alleging offences under section 13(2) and Section 13(1)(e) of the PC Act and Section 109 IPC while petitioner no.1 was serving as the Union Minister during the check period at Delhi. During that period, petitioner no.1 drew his salary as a Union Minister at Delhi.

135. In V.K. Puri (supra), the Supreme Court dealt with the aspect of determination of the territorial jurisdiction of Special Courts in relation to cases under the P.C. Act. In this case, the appellant V.K. Puri was working as an officer of the Customs Department. The CBI registered the FIR/RC against him for commission of offence under Section 13(2) read with Section 13(1)(e) of the P.C. Act, namely, acquiring assets disproportionate to his known sources of income during the check period. V.K. Puri assailed the territorial jurisdiction of the special courts at Delhi on the ground that during the check period he had never been posted in Delhi. This submission of V.K. Puri was rejected by the learned Special Judge, as also by this Court.

136. The submission of V.K. Puri was that the situs of the properties said to have been acquired out of income of the public servant would not confer jurisdiction upon the Court. According to V.K. Puri, for the purpose of territorial jurisdiction, the only relevant fact would be as to where the public servant concerned committed acts of misconduct or abused his official position - which would be the place or places where he held his office.

137. Before proceeding further, I may observe that in the present case, the facts are materially different. The petitioner no.1 served as a Union Minister under the Central Government at New Delhi during the check period. While V.K. Puri contended that the place where the public servant held his official position during the period when the misconduct is alleged, would give jurisdiction to the Special Judge at such place, the petitioners contend otherwise. Thus, the observations made by the Supreme Court in V.K. Puri (supra) need to be examined in the light of the facts that the said case presented before the Supreme Court, and in the light of the contentions advanced before it.

138. In para 15 of this decision, the Supreme Court observed as follows: “15. One of the ingredients of offences, therefore, is known sources of income. What is material therefore is that the criminal misconduct had been committed during the period the accused held office and not the places where he had held offices. The fact that the appellant had bank accounts within the jurisdiction of the Delhi Courts as also immovable properties is not in dispute. The respondent in the chargesheet has clearly pointed out that one of his known sources of income was the rental received by him from his Delhi flat. The same had been given due credit for the purpose of arriving at a prima facie satisfaction that the assets possessed by him are disproportionate to his known sources of income.” [ emphasis supplied ]

139. In para 16 of this decision, the Supreme Court, inter alia, observed: “16. ………. For the purpose of proving the offence, therefore, on the one hand, known sources of income must be ascertained vis-à-vis the possession of property or resources which were disproportionate to the known sources of income of public servant and the inability of the public servant to account for it, on the other. ………” [ emphasis supplied ]

140. In para 21 of this decision, the Supreme Court further observed: “21. Each court, where a part of the offence has been committed, would, therefore, be entitled to try an accused. The 1988 Act does not bar application of Section 178 of the Code of Criminal Procedure. If application of the provision of Section 178 of the Code of Criminal Procedure is not barred, the fact that the appellant has a part of his known sources of income at Delhi, in our opinion, would confer jurisdiction upon the Delhi Courts.”

141. Since one of the known sources of income of petitioner no.1, while he was serving as a Union Minister at Delhi - which is the check period, was his salary which he derived at Delhi, the same would give jurisdiction to the Special Judge at Delhi.

142. The observation made by the Supreme Court in para 15 that, “what is material therefore is that the criminal misconduct had been committed during the period the accused held office and not the places where he had held offices” (emphasis supplied), has to be understood and appreciated in the context of the facts of that case, and the submissions under consideration by the Supreme Court. This is evident from the observation made by the Supreme Court in para 17 of this decision to the effect that, ‘The question of finding out the place where the offence was completed, thus, does not arise in this case’. It is well settled position in law that a judgment cannot be read as a statute and interpreted like a statute. The observations made in a judgment have to be appreciated in the context in which they have been made. Thus, the observations of the Supreme Court in para 15 of V.K. Puri (supra) have to be understood in the light of the factual background of the case, namely, that the FIR/RC was registered at Delhi; V.K. Puri had not served during the check period at Delhi; he was deriving rental income at Delhi; and his submission was that the offence under Section 13(2) read with Section 13(1)(e) of the P.C. Act would be completed at the place where the public servant is posted during the check period. Since Supreme Court found that the Special Judge at Delhi had jurisdiction – on account of the fact that one of the known sources of income i.e. the rental income was derived in Delhi, and V.K. Puri had a property located in Delhi, the question of finding out the place where the offence had taken place did not arise in that case. The said observation cannot be read to mean that no part of the cause of action would arise at the place where the public servant discharged his duties during the check period. The place where the public servant served/was posted during the check period would, obviously, be the place where the offence was committed, and would be one such place where the alleged offence under Section 13(2) read with Section 13(1)(e) of the PC Act could be tried. This is evident from Section 4(2) of the PC Act which, inter alia, provides that “Every offence specified in sub-section (1) of section 3 shall be tried by the special Judge for the area within which it was committed, or, as the case may be, by the special Judge appointed for the case, or, where there are more special Judges than one for such area, by such one of them as may be specified in this behalf by the Central Government.” Thus, in the present case, the ld. Special Judge at Delhi had jurisdiction to try the offence not only because one of the known sources of income of petitioner no.1 was at Delhi, but also because he served as a public servant at Delhi during the check period i.e. where the offence was committed.

143. Surinder Singh Ahluwalia (supra) has been relied upon by Mr. Sibal, as well as by the learned ASG Mr. Patwalia. In this case, the Division Bench of this Court was dealing with a writ petition seeking the quashing of the FIR/RC registered by the DSPE/CBI u/s 5(2) read with section 5(1)(e) of the PC Act, 1947 (which corresponds to section 13(2) read with section 13(1)(e) of the PC Act, 1988), and the investigation conducted pursuant to the registration of the said FIR/RC. The petitioner Surinder Singh Ahluwalia was serving as Chief Secretary to the Govt of Nagaland. He was inducted into the IAS cadre upon his success in the Central Government Services Competitive Examination held in 1968 by the UPSC and was allotted to the State of Nagaland. During the relevant period i.e. between 1971 to 1987, he served at Nagaland in various capacities, and also as Director, Police Division, Ministry of Home Affairs, Govt of India and Director in the Policy Planning Division, Department of Personnel Affairs and Administrative Reforms, New Delhi. The Chief Minister of the State of Nagaland communicated the questionable conduct of the petitioner to the Union Minister of State for Home on 04.12.1986 alleging acquisition of properties by the petitioner, inter alia, at New Delhi. The Chief Minister desired investigation of the case by the CBI and conveyed its consent for investigation by the CBI into the alleged misconduct of the petitioner. Consequently, the FIR/RC came to be registered on 24.03.1987 in respect of alleged offences u/s 5(2) read with section 5(1)(e) of the PC Act, 1947. The place of occurrence was mentioned as Delhi, Nagaland and other places and the date and time of occurrence i.e. the check period was mentioned as 1975 to 31.12.1986.

144. On the aspect of territorial jurisdiction of the CBI to register a case at Delhi, the Division Bench referred to section 177 and 178 of the Code. While dealing with the submission of the petitioner that the allegations contained in the FIR/RC did not disclose the commission of an offence u/s 5(1)(e) read with section 5(2) of the PC Act, 1947, the Division Bench, inter alia, observed: “21.............. (1)......the public servant should either be in possession or someone else on his behalf may be in possession of pecuniary resources or property disproportionate to his known sources of income or the public servant or any person on his behalf at any time during the period of his office been in possession of pecuniary resources or property disproportionate to his known sources of income in respect of which the public servant may not be able to satisfactorily account. The FIR clearly recites information has been received through a reliable source that Shri S. S. Ahluwalia while functioning in different capacities in Nagaland and Delhi from 1975 to 31-12-1986 had been indulging in corrupt activities and malpractices and amassed assets disproportionate to his known sources of income. It is noteworthy that the petitioner remained in Delhi from July, 1978 to March, 1984………” [ emphasis supplied ]

145. The Division Bench rejected, inter alia, the submissions of the petitioner with regard to lack of territorial jurisdiction and dismissed the writ petition.

146. Pertinently, the registration of the FIR/RC by the CBI at Delhi was found to be justified on the premise that the petitioner had remained in service in Delhi during the period July 1978 to March 1984, and while in service, he had acquired property in Delhi, which was allegedly a part of the assets found to be disproportionate to the known sources of income of the petitioner during the check period. In the instant case, the entire check period pertains only to the period when petitioner No.1 was a public servant serving as a Union Minister under the Central Government at Delhi and also drew his salary – a known source of income a Delhi. Thus, Surinder Singh Ahluwalia (supra) supports the case of the CBI more than that it supports the case of the petitioner on the aspect of territorial jurisdiction of the Ld. Special Judge (CBI) at Delhi to deal with the case /RC in question.

147. The petitioners have also placed reliance on the judgment of this court in Manoj Kumar Aggarwal (supra). In this case, the petitioners sought the quashing of the RC registered by the CBI under Section 13(2) read with section 13(1)(e) of the PC Act and section 109 IPC. The petitioner joined as an IAS probationer in August 1990 and was allotted the West Bengal Cadre. He continued to serve in West Bengal till October 2003. He was selected for Central deputation in October 2003 as Deputy Secretary in the Ministry of Personnel, Public Grievances and Pensions. From October 2009 to June 2010, he was posted as Commissioner (L&D), DDA by the Central Govt. Upon expiry of his central deputation, he rejoined the State of West Bengal. While the petitioner was posted as Commissioner (L&D), DDA, New Delhi, the RC in question was registered against him alleging amassing of disproportionate assets. The check period was fixed as 20.08.1990 to 30.06.2008. Thus, out of the check period of 18 years, he was employed with the State of West Bengal for 13 years odd, and for the remaining period he was on Central deputation at New Delhi. The petitioner assailed the RC on the premise that the check period includes the period spent by the petitioner with the Govt. of West Bengal between August 1990 to October

2003. He contended “that the Central Government or the DoPT does not have the jurisdiction to grant/ entertain sanction for the above mentioned period ” (emphasis supplied). Thus, the issue raised by the petitioner in that case, apparently, pertained to the grant of “sanction” and not “consent” under Section 6 of the PC Act.

148. On the other hand, the contention of the CBI was that section 6 of the DSPE Act was not applicable to the petitioner “on account of the fact that on the date of registration of the case, the petitioner was posted as Commissioner (L&D), DDA which is a central deputation and thus it is the Central Government/ DoPT that has full competence to grant sanction for the entire check period” (emphasis supplied). It was also contended by the CBI that under Section 3 of the DSPE Act, the consent has been given by the Central Government, thereby vesting jurisdiction in the CBI to investigate into the matter.

149. The learned Single Judge of this Court referred to R.S. Nayak v. A.R. Antulay, (1984) 2 SCC 183, which deals with the aspect of need for sanction to prosecute where the public servant had ceased to hold the office which he had allegedly abused to commit the offence under investigation, and observed: “12...... Since on the day the FIR is registered, the petitioner was Commissioner, (L&D), DDA, New Delhi; the CBI has duly exercised its powers without any consent under section 6 from the Government of West Bengal.

13. Further since the check period constitutes of the period during the postings with State Government as well as some tenure of the Central Deputation, I am of the view that it was sufficient for the investigating agency, which is CBI in the present case, to choose either mode of investigation, that is to say, to either seek consent of the State Government under section 6 DSPE Act or abide by section 3 of the DSPE Act and seek consent of the Central Government. From the pleadings of the CBI, it is revealed that it chose to follow the mandate under section 3 DSPE Act since the check period included the period of central deputation as well as due to the fact that on the date of registration of RC, the Petitioner had ceased to be under the control of the Government of West Bengal nor was he managing the affairs of the Government of West Bengal”.

150. The submission of the petitioner that because the majority of the check period pertained to the service of the petitioner under the State of West Bengal, the CBI ought to have taken consent under Section 6 of the DSPE Act was rejected, since on the day when the RC was registered against the petitioner, he was on central deputation and was stationed at Delhi. The court further observed that the RC revealed: “15..... that a majority of the assets, which are subject-matter of the offence, are in Delhi while some are in Gaziabad, NOIDA, Punjab, Mathura etc. No asset has been mentioned in the RC to be situated /located in the State of West Bengal.....”

151. Manoj Kumar Aggarwal (supra) is relied upon by the petitioners to submit that non adherence to section 6 of the DSPE Act was not considered relevant and material on account of the fact that, in the said case, at the time of registration of the RC the petitioner was posted on deputation at Delhi as Commissioner (L&D), DDA. However, in the present case, at the time of registration of the RC, the petitioner is serving as the Chief Minister of the State of Himachal Pradesh.

152. In my view, the reliance placed by the petitioners on Manoj Kumar Aggarwal (supra) is not apposite in the facts of the present case. This is for the reason that the check period in the present case - in relation to which the RC has been registered, pertains only to the period when the petitioner no.1 was a Union Minister in the Central Govt. and was, therefore, serving as a public servant at Delhi. Pertinently, the issue of lack of “sanction” raised by the petitioner in Manoj Kumar Aggarwal (supra) pertained to the period between August 1990 to October 2003, when he was serving under the Govt. of West Bengal. In that case, the petitioner did not question the aspect of non grant of “sanction” during the period when he was serving at Delhi as a Central Government Deputationist. In the present case, no issue of sanction has been raised or arises. Pertinently, this court held that since the check period constitutes the period of postings with the State Government as well as some tenure of Central deputation, the CBI was empowered to register the RC and investigate the case at Delhi. Thus, this decision does not advance the submission of the petitioners on the aspect of territorial jurisdiction.

153. In the light of the aforesaid discussion, it is abundantly clear to me that so far as the submission of Mr. Sibal with regard to lack of territorial jurisdiction of the learned Special Judge to deal with the regular case registered at Delhi is concerned, the same has no merit at all. This is for the reason that, firstly, the check period relates to the service rendered to petitioner No.1 at Delhi as a Union Minister i.e. when the offence was allegedly committed. The allegation against the petitioner No.1 is that he was possessed of assets disproportionate to his known sources of income while serving as a Union Minister during the check period at Delhi. Secondly, one of the known sources of income – which is an essential ingredient of the offence under Section 13(2) read with Section 13(1)(e) of the PC Act, was undisputedly at Delhi, since the petitioner No.1 drew his salary as a Union Minister during the check period at Delhi.

154. Mr. Sibal has also submitted that the FIR in the present case should have been registered in the State of Himachal Pradesh, where petitioner no.1 is presently serving as the Chief Minister, and in case it was found that the State police was not investigating the same effectively, the investigation in the case could then have been transferred by the competent court, if necessary, to the CBI. In this regard, he placed reliance on Committee for Protection of Democratic Rights (supra).

155. The issue is not whether the FIR/RC in the case could have been registered within the jurisdiction of the Special Judge in Himachal Pradesh. The issue under examination is, whether the same has, in fact, been registered within the jurisdiction of the competent Special Judge. An accused cannot dictate to the prosecution that the case should be registered at a police station that he desires. The case may be registered at any one of the police stations within whose jurisdiction the same can be legally instituted.

156. I now turn to examine the issue whether consent of the State Government of Himachal Pradesh under Section 6 of the DSPE Act is necessary for registering the FIR/RC in the facts of the present case at Delhi, and for carrying out the investigation into the said case within the area falling in the State of Himachal Pradesh. In Gurudasmal (supra), the appellant challenged the right of the Delhi Special Police Establishment/ CBI to investigate the case filed by the Income-Tax Officer, Bombay under Section 409, 477A and 120B IPC. The investigation was to be carried out in the State of Maharashtra. The contention of the appellant, premised on the wording of Entry 80 of the Union List in the Schedule VII to the Constitution of India, inter alia, was that DSPE belongs to the Union Territory of Delhi (and not to a State), and that it cannot be invested with jurisdiction to investigate the cases in other States – in that case the State of Maharashtra, as the DSPE does not belong to a State. Thus, the powers and jurisdiction of the members of the CBI could not be extended to any area outside the Union Territories, even with the consent of the State into whose area the powers and jurisdiction is sought to be extended. Entry 80 of List I of the VIIth Schedule reads as follows: “80. Extension of the powers and jurisdiction of members of a police force belonging to any State to any area outside that State, but not so as to enable the police of one State to exercise powers and jurisdiction in any area outside that State without the consent of the Government of the State in which such area is situated; extension of the powers and jurisdiction of members of a police force belonging to any State to railway areas outside that State.” [ emphasis supplied ]

157. The petition of the appellant was dismissed by this Court. Consequently, the appellant approached the Supreme Court upon grant of certificate by the High Court.

158. The Constitution Bench of the Supreme Court while dismissing the appeal rejected the appellant’s contention that DSPE is not constitutional, and that it cannot be invested with jurisdiction to investigate the cases in other States. In the course of its judgment, the Supreme Court traced the legislative history of DSPE. The Supreme Court, inter alia, took note of the significant changes in the legislation, which came in 1952 by the Delhi Special Police Establishment (Amendment) Act, 1952 (XXVI of 1952). The long title of the Act was amended from: “An Act to make provision for the constitution of a special police force for the State of Delhi for the investigation of certain offences committed in connection with matters concerning Department of the Central Government etc.” to “An Act to make provision for the constitution of a special police force in Delhi for the investigation of certain offences in Part C States.”. Accordingly, corresponding changes were made in the Preamble to the Act, and Sections 2 and 3 of the Act. From Section 2 of the DSPE Act the words “for the State of Delhi”, and all references to offences by the words “committed in connection with matters concerning Departments of the Central Government” were deleted. The change of words from “for the State of Delhi” to “in Delhi” was significant.

159. With the enactment of the Constitution (Seventh Amendment) Act, 1956, distinction between Part-A and Part-B States was abolished. All the Part-A and Part-B States were shown in the First Schedule to the Constitution under the heading “The States”. Similarly, the Part-C States and Part-D Territories were all described as “Union Territories”. The Adaptation of Laws (No.3) Order, 1956 was passed and in the Delhi Special Police Establishment Act, 1946, all references to “Part-C States” were replaced by the expression “Union Territories”.

160. The Supreme Court, after taking note of the aforesaid changes, described the resulting legislative position of the DSPE Act in 1956 as follows: “Section 2. – (1) Notwithstanding anything in the Police Act, 1861, the Central Government may constitute a special police force to be called the Delhi Special Police Establishment... for the investigation of offences notified under Section 3. (2) Subject to any orders which the Central Government may make in this behalf, members of the said police establishment shall have throughout in relation to the investigation of such offences and arrest of persons concerned in such offences, all the powers, duties, privileges and liabilities which police officers have in connection with the investigation of offences committed therein. (3) Any member of the said police establishment of or above the rank of Sub-Inspector may, subject to any orders which the Central Government may make in this behalf, exercise in any of the powers of the officer in charge of a police station in the area in which he is for the time being and when so exercising such powers shall, subject to any such orders as aforesaid, be deemed to be an officer in charge of a police station discharging the functions of such an officer within the limits of his station. Section 3. – The Central Government may, by notification in the Official Gazette, specify the offences or class of offences which are to be investigated by the Delhi Special Police Establishment. Section 5. – (1) The Central Government may by order extend to any area (including Railway areas), the powers and jurisdiction of members of Delhi Special Police Establishment for the investigation of any offences or classes of offences specified in a notification under Section 3. Section 6. – 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 the State (not being a Union Territory or railway area), without the consent of the Government of that State.”

161. The Supreme Court proceeded to consider the submission of the appellant that Entry 80 of the Union List cannot be read as an enabling power to be exercised in respect of a police force belonging to the Union Territories, such as Delhi. The relevant extract from the discussion on this aspect reads as follows: “11. This brings us to the two main arguments. The first is that …….. the present Entry 80 of the Union List ……… cannot be read as enabling the power to be exercised in respect of a police force belonging to the Union Territories such as Delhi…………..

12. This entry speaks of a “police force belonging to any State” and not of a police force belonging to the Union Territory. …….. This power ……… cannot be used except as specifically conferred and it applies to a police force belonging to a State and not Union Territory. In reply the provisions of the General Clauses Act, as adapted by Adaptation Order (No. 1) were brought to our notice. Section 3(58) of the General Clauses Act was adapted to read: “State— (a) as respects any period before the commencement of the Constitution (Seventh Amendment) Act, 1956, shall mean a Part A State, a Part B State or a Part C State; and (b) as respects any period after such commencement, shall mean a State specified in the First Schedule to the Constitution and shall include a Union Territory.” Previously the definition read: “State shall mean a Part A State, a Part B State or a Part C State.” This definition furnishes a complete answer to the difficulty which is raised since Entry 80 must be read so as to include Union Territory. Therefore members of a police force belonging to the Union Territory can have their powers and jurisdiction extended to another State provided the Government of that State consents……”. [ emphasis supplied ]

162. The Supreme Court relied upon Article 372A of the Constitution, which was introduced by the Constitution (Seventh Amendment) Act, 1956 and, inter alia, observed: “Therefore, when the President adapted the General Clauses Act by giving a new definition of “State” the new definition appropriate to the purpose applied to the interpretation of the Constitution. The word “State” in Entry 80 of Union List, therefore, applied to Union Territories also.”

163. In respect of Section 3(58) of the General Clauses Act (as adapted by the Adaptation Order (No.1)), the Supreme Court observed: “There is nothing in the subject or context of Entry 80 of the Union List which can be said to exclude the application of the definition in Section 3(58). Indeed the Part C States were expressly mentioned in Entry 39 of the Federal List of the Government of India Act, 1935 (after its amendment in 1947) and thus before the Seventh Amendment the definition of State (subject to the subject or context) included Part C States. Therefore, the definition of “State” in Section 3(58) in the General Clauses Act after the adaptation in 1956 applies and includes Union Territories in Entry 80 of the Union List.”

164. The submission of the appellant, premised on Entry 80 of the Union List, which uses the expression “belonging to any State” – to mean that the police force is “employed by” and not merely “located in” the State (which includes a Union Territory), was also rejected by the Supreme Court on the premise that the adoption of the interpretation as suggested by the appellant, namely, that the expression “belonging to any State” refers to “employed by” the State, would render the whole scheme void. The discussion found in the judgment on the aforesaid aspect reads as follows: “17. The last argument is that the Entry 80 of the Union List speaks of a police force “belonging to any State” and this phrase was also used in the Government of India Act, 1935 in Entry 39 of the Federal Legislative List both before and after its amendment in 1947. It is argued that in Ordinance 22 of 1946 the phrase was “for the Chief Commissioner's Province of Delhi” and it was repeated in Act 25 of 1946 till the phrase was changed to “for Part C States”. Thus the word “for” took the place of the words “belonging to” in the entry. Then came the change to the present phrase “a special police force in Delhi”.

18. It is pointed out that the Special Police Establishment does not belong to the Union Territory of Delhi, since the superintendence of it vests in the Central Government. It is said that the force of the words “belonging to” is not the same as that of the word “in”. Therefore it is claimed that the Act is not in accord with the Entry.

19. Various meanings of the expression “belonging to” are suggested in the arguments before us. On behalf of the appellants it is said that it meant “employed by” and not merely “located in”. In this sense, it is argued, the Special Police Establishment did not belong to any State or Union Territory. On the other side it is argued that the words “belonging to” convey no more than a territorial nexus. The police force belongs to a part of India and it does not have to belong to a Provincial Government or a State Government or Government of a Union Territory. The extension of the powers, jurisdiction, etc. of such a force is also in another part of India, placing again an emphasis on the territory. This shows that the police force of one area operates in other area.

20. Now the scheme of the Constitution is that the Union Territories are centrally administered and if the words “belonging to” mean belonging to a part of India, the expression is equal to a police force constituted to function in an area. In this way the Delhi Police Establishment mean a police force constituted and functioning in the Union Territory of Delhi. Previously the same force functioned in the Chief Commissioner's Province of Delhi, then in Part C State of Delhi and now it functions in the Union Territory of Delhi.

21. It is no doubt true that the words are susceptible of the other meaning also but so long as the words are capable of bearing the meaning we have given, it is not necessary to discover another meaning under which the whole scheme would become void. Provisions of law must be read as far as is possible with a view to their validity and not to render them invalid. In our judgment the expression “belonging to” only conveys the meaning that it is a police force constituted and functioning in one area which may be authorised to function in another area. The change from “for” to ‘in” makes no difference because both expressions fit in with the meaning of the phrase “belonging to” in the entry. We see no force in this argument also.” (emphasis supplied)

165. In the light of the aforesaid analysis, in my view, reliance placed by Mr. Sibal on Gurudasmal (supra) in support of his submission is misplaced. In fact, this decision goes against the submission advanced by Mr. Dogra, the learned Advocate General on behalf of the State of Himachal Pradesh, that the CBI/DSPE is unconstitutional or that it cannot, even with consent of the State Government, investigate the offence in question. Gurudasmal (supra) clearly holds that the Delhi Special Police Establishment/ CBI is a police force which belongs to the Union Territory of Delhi, i.e. it is constituted in and functioning in the Union Territory of Delhi – which, for the purpose of Entry 80 of the Union List, is to be regarded as a State by virtue of the Adaptation Order (No.1). By the said Adaptation Order the definition of the expression “State” was amended from the commencement of the Constitution (Seventh Amendment) Act, 1956 to include a Union Territory. Thus, where the Central Government has extended the powers and jurisdiction of members of the DSPE/ CBI to any area (including Railway areas) in a State – not being a Union Territory, for investigation of any offences or classes of offences (as notified under Section 3 of the DSPE Act), a member of the DSPE/ CBI may discharge functions of a police officer in that area and, while doing so, he shall be regarded as a member of a police force of that area.

166. In Surinder Singh Ahluwalia (supra), the petitioner also challenged the registration of the FIR/RC on the ground that there was no consent granted by the State of Nagaland u/s 6 of the DSPE Act, 1946 and there never was any such consent by the said State Govt. The petitioner also challenged the general consent granted by the State Government dated 08.11.1967, on the ground that there was no schedule annexed to the letter of the Joint Secretary to the Govt of Nagaland. It was argued that the general consent dated 08.11.1967 was of no avail and thus the CBI could not conduct any investigation in the State of Nagaland. The petitioner also claimed that the said consent, in any event, had been withdrawn subsequently vide notification dated 23.11.1989. It was argued that no investigation could continue thereafter. It was argued that the letter issued by the Chief Minister to the Union Home Minister could not be pressed into service for the purpose of construing consent by the State Govt u/s 6 of the DSPE Act.

167. Mr. Sibal has relied on para 9 of the judgment, wherein the Division Bench observed that section 6 of the DSPE Act begins with a non-obstante clause and it overrides section 5 thereof. The consent of the State is a precondition for exercise of powers and jurisdiction by a member of the DSPE/CBI in an area falling within the State. It was held that the consent of State of Nagaland was necessary for investigating the offence u/s 5(1)(e) alleged against the petitioner in the FIR/RC relating to the offences in the State of Nagaland.

168. The petitioner in that case had sought to place reliance on the withdrawal of consent on 06.11.1990 by the State of Nagaland. The Court, however, found that the consent had been reiterated vide order dated 08.01.1991. The Division Bench observed: "After the withdrawal of the consent, it is correct that the CBI has no jurisdiction to investigate the offence against the petitioner under the aforesaid FIR. As it is clear from the provision contained in Section 6 that the members of the DSPE will have no jurisdiction to exercise any power in any area of the State of Nagaland without the consent of the Government of Nagaland." [ emphasis supplied ]

169. The Division Bench, upon scrutiny of the record, concluded that there was a general pre-existing consent of the State of Nagaland at the time of registration of the case by the CBI on 23.04.1987. The Division Bench also considered the aspect that the offence had relation not only with the State of Nagaland, but also with Delhi and other places as well. The Division Bench observed: “And as such, the CBI is competent to investigate into the offence as mentioned in the FIR against the petitioner with respect to Delhi and other places but no investigation after the withdrawal of the order dated 9.5.90 can be conducted by the CBI in any area of the State of Nagaland with respect to the petitioner”. (emphasis supplied)

170. M. Balakrishna Reddy (supra), the issue which was examined by the Supreme Court was whether “consent” as envisaged by section 6 of the DSPE Act had been given by the State Government of Madhya Pradesh to the Central Govt. so as to enable the latter to invoke the provisions of the DSPE Act. The Supreme Court reiterated the settled legal position that “for exercise of jurisdiction by CBI in a State (other than Union Territory or Railway area), consent of the State Government is necessary”. The Supreme Court further observed: “19. Plain reading of the above provisions goes to show that for exercise of jurisdiction by CBI in a State (other than Union Territory or Railway area), consent of the State Government is necessary. In other words, before the provisions of the Delhi Act are invoked to exercise power and jurisdiction by Special Police Establishment in any State, the following conditions must be fulfilled:

(i) A notification must be issued by the Central Government specifying the offences to be investigated by Delhi Special Police Establishment (Section 3);

(ii) An order must be passed by the Central Government extending the powers and jurisdiction of Delhi Special Police Establishment to any State in respect of the offences specified under Section 3 (Section 5); and

(iii) Consent of the State Government must be obtained for the exercise of powers by Delhi Special Police Establishment in the State (Section 6).”

171. This decision primarily examined the submission of the appellant that the consent of the State Government was not in accordance with the procedure laid down in Article 166 of Constitution of India. On this aspect, after a detailed discussion, the Supreme Court concluded that Article 166 was “directory” and that “substantial” compliance with the said provision was sufficient. The Supreme Court held that there is no particular form in which the consent of the State Government concern has to be granted under Section 6 of the DSPE Act.

172. In Mayawati (supra), the only question raised by the petitioner before the Supreme Court was whether the FIR/RC registered under Section 13(2) read with 13(1)(e) of the PC Act against the petitioner was beyond the scope of the directions issued by the Supreme Court in its order dated 18.09.2003 in M.C. Mehta v. Union of India, (2003) 8 SCC 696. The Supreme Court held, upon a thorough scrutiny of all the orders including the specific directions dated 18.09.2003 that there was “no consideration of alleged disproportionate assets at any stage of the proceedings while dealing with Taj Corridor matter”. The Supreme Court held that there could not have been and, in fact, there was no such direction to lodge any FIR exclusively against the petitioner under the PC Act. In the absence of any direction by the Supreme Court to lodge a FIR into the matter of alleged disproportionate assets against the petitioner, and in view of the Government of the State of U.P. having declined to grant consent under section 6 of the DSPE Act, the Supreme Court quashed the aforesaid FIR/RC dated 05.10.2003. In the operative part of its judgment the Supreme Court held: “44. In the light of the above discussion, we hold that in the absence of any specific direction from this Court in the order dated 18-9-2003 [(2003) 8 SCC 696] or any subsequent orders, CBI has exceeded its jurisdiction in lodging FIR No. RC 0062003A0019 dated 5-10-2003. The impugned FIR is without jurisdiction and any investigation pursuant thereto is illegal and liable to be quashed, and is accordingly quashed. The writ petition is allowed”.

173. Mayawati (supra) is relevant for the present case only to the extent that it reaffirms and reiterates the well settled legal position that the consent of the State Government would be necessary under Section 6 of the DSPE Act for the CBI to exercise power and jurisdiction in any area in the concerned State. In the present case, the case against the petitioners has been registered by the CBI at Delhi under Section 13(2) read with section 13(1)(e) of the PC Act and section 109 IPC for the check period when the petitioner no.1 was serving as a Central Minister at Delhi and drew his salary at Delhi.

174. At this stage, I may take note of the relevant statutory provisions. A perusal of Section 2 of the DSPE Act shows that the DSPE/ CBI has been constituted “for the investigation in any Union Territory of offences notified under section 3” (emphasis supplied) (See Section 2(1)).

175. The members of the DSPE/ CBI “have throughout any Union Territory in relation to the investigation of such offences … … … all the powers, duties, privileges and liabilities which police officers of that Union Territory have in connection with the investigation of offences committed therein” (emphasis supplied) (See Section 2(2)).

176. “Any member of the CBI of the rank of the Sub-Inspector or above may … … … exercise in any Union Territory any of the powers of the officer-in-charge of a police station in the area in which he is for the time being … … …”(emphasis supplied) (See Section 2(3)).

177. Thus, what emerges from Section 2 of the DSPE Act is that the DSPE/ CBI is a police force constituted in Delhi, primarily to carry out investigation of the notified offences in any Union Territory. The notification of the offences, or class of offences, which may be investigated by the DSPE/ CBI is required to be issued under Section 3 of the said Act. The extension of jurisdiction of the members of DSPE/ CBI to areas falling outside the territories of a Union Territory, i.e. to “area (including railway areas, in a State, not being a Union Territory)” to carry out investigation is governed by Section 5 of the Act. The same requires that the Central Government may issue an order for the aforesaid purpose. Once an order to the aforesaid effect is issued, the member of the DSPE/ CBI may, subject to such orders, “discharge the functions of a police officer in that area and shall, while doing so, be deemed to be a member of a police force of that area and be vested with the powers, functions and privileges and be subject to the liabilities of a police officer belonging to that police force” (See Section 5(2)). Section 5(3), inter alia, provides that “any member of the Delhi Special Police Establishment of or above the rank of Sub-Inspector may subject to any orders which the Central Government may make in this behalf, exercise the powers of the officer in charge of a police station in that area and when so exercising such powers, shall be deemed to be an officer in charge of a police station discharging the functions of such an officer within the limits of his station”.

178. However, the aforesaid extension of power and jurisdiction of the members of the DSPE/ CBI to areas falling beyond the Union Territories is subject to constitutional limitations. While the subject matter of “Central Bureau of Intelligence and Investigation” finds mention at Entry 8 of List 1 – Union List of the 7th Schedule, the subject matter of “Police (including railway and village police), subject to the provisions of Entry 2A of List I” falls in Entry 2 of List 2 – State List. The legislative field covered by Entry 2 of List 2, is subject to provisions of Entry 2A of List 1. However, for the present, the same does not concern us. The extension of power and jurisdiction of a police force of a State into another State is governed by Entry 80 of List 1, which reads as follows: “80. Extension of the powers and jurisdiction of members of a police force belonging to any State to any area outside that State, but not so as to enable the police of one State to exercise powers and jurisdiction in any area outside that State without the consent of the Government of the State in which such area is situated; extension of the powers and jurisdiction of members of a police force belonging to any State to railway areas outside that State.” (emphasis supplied)

179. For the purpose of Entry 80, Delhi is considered to be a State as explained in Gurudasmal (supra). The scheme contained in Sections 5 & 6 of the DSPE Act is referable to Entry 80 of List 1 of the 7th Schedule. Consequently, Section 6 overrides the power of the Central Government under Section 5 to extend the powers and jurisdiction of the DSPE/ CBI to areas beyond the Union Territories, and Railway Areas. An order issued under Section 5 of the DSPE Act without the consent of the concerned State Government would be meaningless. Section 6 states that: “Noting 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 or railways area, Without the consent of the Government of that State.”

180. From the decisions taken note of hereinabove, it is abundantly clear that for the purpose of empowering and authorizing the DSPE/ CBI to carry out investigation in an area falling beyond the area of the Union Territories and Railway Areas, i.e. in any area falling in one of the constituent States of the Indian Union, the consent of the Government of the State within whose area the DSPE/ CBI needs to carry out investigation is imperative.

181. The submission of Mr. Patwalia is that because the offence under investigation in the present case relates to the check period when petitioner no.1 was a Union Minister at Delhi alone, consent under Section 6 of the State Government of Himachal Pradesh for carrying out investigation in any area falling within the said State would not be required, cannot be accepted. Registration of the Regular Case/ FIR is one thing, and investigation undertaken after registration of the Regular Case is another thing. First comes the registration of the Regular case/FIR, and only thereafter follows the investigation in the case. In the present case, the Regular Case has been registered at Delhi and as I have already found, the same has been registered within the jurisdiction of the learned Special Judge who has territorial jurisdiction to deal with the same. Though the case may have been validly registered at Delhi by the CBI, for its investigation, it may need to go into areas falling within one or more of the constituent States of the Indian Union. It is at that stage that Section 6 seeks to create a check in the way of the DSPE/ CBI, because policing is a State subject, and only by resort to Entry 80 of List-I Union List the powers and jurisdiction of the DSPE/ CBI can be extended to an area falling within a State. To clear the said hurdle, the consent of the concerned State - within whose area the investigation is required to be carried out, would need to be obtained.

182. In the present case, the DSPE/ CBI has contended that there is a general consent granted by the State Government of Himachal Pradesh and in this regard reliance has been placed on the order dated 24.08.1990 issued by the Government of India, Ministry of Personnel, Personal Grievances and Pensions. Relevant extract of the same reads as follows: “ No. 228/40/88-AVD.II (III) Government of India Ministry of Personnel, P.G. & Pensions (Department of Personnel & Training) ….. New Delhi, the 24 August, 1990 O R D E R S.O....................... In supersession to Department of Personnel and Training order No. 228/40/88 - AVD.II dt. 23.8.89 and in exercise on the powers conferred by sub section (1) of the sec. 5 read with sec. 6 of the Delhi Special Establishment Act 1946 (Act No. 25 of 1946) the Central Government with the consent of the State Government of Himachal Pradesh (vide. Consent order No. Vigilance dept. Per (vig.) A-3 (2)/88, dt. 2.8.89) hereby extends the powers and jurisdiction of the members of the Delhi Special Police Establishment to the whole of the state of Himachal Pradesh for investigation of offences as mentioned hereunder against the officials / officers of the Central Govt. department and other Central Institutions, located in the territory of Himachal Pradesh. (a) Offences under Prevention of Corruption Act, 1988 (Act No.49/88) (b) Attempts, abetments and conspiracies in relation to or in connection with one or more of the offences mentioned above, and any other offence or offences committed in the course of the same transaction arising out of the same facts. Sd./ (G. SITARAMAN)

UNDER SECRETARY TO THE GOVT. OF INDIA”

183. The aforesaid order refers to the consent granted by the State Government of Himachal Pradesh vide a consent order dated 02.08.1989.

184. On the other hand, the submission of Mr. Sibal is that the said consent order under Section 6 dated 02.08.1989 and the order dated 24.08.1990 issued by the Government of India under Section 5 of the DSPE Act do not take within their scope a Central Minister who served as a public servant at Delhi under the Central Government, on account of his not being an official/ officer “of the Central Government departments or other central institutions located in the territory of Himachal Pradesh” (emphasis supplied). I may, here itself state that petitioner No.1 – while he was a Central/ Union Minister was a “Public Servant” as defined in Section 2(c) of the PC Act, by virtue of clauses (i) and (viii) thereof.

185. As noticed hereinabove, the conduct of investigation is a post FIR/ RC registration development. Pertinently, Section 6 does not state that prior to registration of RC/ FIR, the DSPE/ CBI would need consent of any State. Since the FIR/ RC has been registered at Delhi, and the learned Special Judge at Delhi has jurisdiction. So far as its registration is concerned, the same cannot be questioned by resort to Section 6 of the DSPE Act.

186. Issues with regard to the validity of the investigation conducted by the CBI in the State of Himachal Pradesh, in my view, cannot be raised in a writ petition, and all such issues would be available to be raised by the accused, if and when the occasion arises. The charge-sheet has not yet been filed. If, and when the charge-sheet is filed, it would emerge as to what are the materials/ evidences collected by the investigating agency that are sought to be relied upon by the prosecution. In case the prosecution relies on any investigation conducted within the area of the State of Himachal Pradesh, only then the petitioner may advance an argument premised on Section 6 of the DSPE Act. In Tapan Kumar Singh (supra), in para 23, the Supreme Court observed: “23. The High Court also held that before conducting the search and seizure the mandatory requirement of Section 165 was not fulfilled inasmuch as the investigating officer did not record in writing the grounds for his belief as required by the said section. It is premature at this stage to consider whether search and seizure was done in accordance with law as that is a question which has to be considered by the court, if the accused is ultimately put up for trial and he challenges the search and seizure made.

187. Thus, even if such an argument were to be raised, it would be for the Trial Court to appreciate the same in the light of the aforesaid order issued under Section 5 dated 24.08.1990; the consent referred to therein dated 02.08.1989; the provisions contained in, inter alia, Sections 91 to 105, 165 & 166 Cr.P.C. and other provisions of the Code, and the DSPE Act, and; the decisions of the Supreme Court relevant to the issue. In this regard reference may be made to M.P. Sharma v. Satish Chandra, District Magistrate, Delhi, AIR 1954 SC 300; Radha Kishan v. State of Uttar Pradesh, AIR 1963, SC 822; and State of Haryana v. Rajmal, (2011) 14 SCC 326.

188. Thus, the submission of Mr. Sibal with regard to the legality and validity of the search & seizure and other investigation carried out by the CBI in the State of Himachal Pradesh cannot be, and need not be entertained in these proceedings.

189. Even if in a given case, the investigation conducted pursuant to registration of a Regular Case/ FIR is not legal or suffers from an infirmity, the same would not afford a ground to assail the registration of the RC/ FIR itself. The legality of the RC/ FIR would have to be tested on a reading of the RC/ FIR and on examination of other relevant aspects as laid down by the Supreme Court in State of Haryana vs. Bhajan Lal,1992 SCC (Cri) 426, Som Mittal vs. Government of Karnataka,(2008) 3 SCC 574, and State of Karnataka vs. M. Devendrappa and Anr.,(2002) 3 SCC 89.

190. The learned Advocate General for the State of Himachal Pradesh - Mr. Dogra has gone into the constitutional history, including, the Government of India Act,1935, the Constituent Assembly Debates and has also relied upon the judgment of the Navendra Kumar (supra) to submit that the constitution of the CBI under the DSPE Act itself is unconstitutional. He has also submitted that this Court is obliged to go into and answer each and every one of the eleven questions framed by the Division Bench of the Himachal Pradesh High Court on the very first date of hearing of the writ petition, which have been reproduced hereinabove. He has also argued that the CBI cannot be termed as a Special Police Force as constituted under the DSPE Act. He has also supported the submissions of the petitioners that compliance of Section 6 of the DSPE Act is mandatory and that the consent given by the State Government of Himachal Pradesh cannot apply in the instant case since petitioner No.1 was a Member of Parliament/Minister who cannot be termed as a government servant in the employment of the Central Government Department located in the territory of the State of Himachal Pradesh. In this regard, he has placed reliance on the judgment of the Supreme Court in P.V. Narsimharao vs. State (1998) 4 SCC 626.

191. A perusal of the order dated 01.10.2015 passed by the Division Bench of the Himachal Pradesh High Court would show that the said order came to be passed on the very first date of hearing. On the said date, the Division Bench had, before itself, only the writ petition as preferred by the petitioners. The stand of the CBI and that of the State Government - who are the respondents in the case, was not even available. The questions formulated by the Division Bench, in the aforesaid background, were merely on a, prima facie, and one sided view of the matter. In fact, not all of the questions formulated arise for consideration in the present case, and this is clear from not only the pleadings of the respective parties in the writ petition, but also from the submissions advanced by the learned counsels representing them. It is well settled that a Court should not undertake to decide an issue unless it is a live issue between the parties. If an issue is purely academic - in that its decision one way or another would have no impact on the position of the parties, it would be waste of public time and indeed not proper exercise of authority for the court to engage itself in deciding it. The court would not engage in a fruitless exercise. It would refuse to decide a question, unless it has a bearing on some right or liability in controversy between the parties. If the decision of a question would be wholly ineffectual as far as the parties are concerned, it would not only be unnecessary and pointless, but also inexpedient to decide it and the Court would properly decline to do so. (See Loknath Padhan Vs. Birender Kumar Sahu (1974) 4 SCC 526 and Basant Kumar Vs. State of Rajasthan and others (2001) 7 SCC 201).

192. The submission of the petitioners that the income-tax proceedings are still pending and, therefore, the registration of the RC/ FIR is premature also has no merit. The income-tax proceedings are only concerning the tax liability of the concerned assessee. The income-tax authorities are not examining as to whether the income derived by petitioner no.1 during the check period is a result of criminal misconduct under the PC Act. It is not even argued by the petitioners that a perusal of the RC does not disclose the commission of an offence under Section 13(2) read with Section 13(1)(e) of the PC Act and Section 109 IPC. This submission of the petitioners is, therefore, rejected.

193. So far as the submission of the learned Advocate General Mr. Dogra premised on the decision of the Gauhati High Court in Navendra Kumar (supra) is concerned, I am of the view that since the said decision has been stayed by the Supreme Court, the said decision cannot be pressed into service. Reliance placed by Mr. Dogra on Shree Chamundi Mopeds Ltd.(supra) is of no avail. In that case, the Board of Industrial and Financial Reconstruction (BIFR) had ordered the winding up of the appellant company. The Appellate Authority had upheld it. The High Court in writ jurisdiction had stayed the operation of the order of the Appellate Authority. The Supreme Court examined the effect of the said stay order in the context, that the jurisdictional High Court, in the mean time, directed winding up of the appellant and the appeal against the winding up order was also dismissed. The Supreme Court, in this context held that mere stay of the order of the Appellate Authority by the High Court did not tantamount to revival of the appeal before the Appellate Authority against the order of the BIFR directing winding up of the Appellant company. Only upon quashing of the order of the Appellate Authority, would the appeal revive – and then it could be said that the bar under Section 22 of Sick Industrial Companies (Special Provisions) Act, 1985 would apply. In para 10 of this decision the Supreme Court, inter alia, observed: “10. In the instant case, the proceedings before the Board under Sections 15 and 16 of the Act had been terminated by order of the Board dated April 26, 1990 whereby the Board, upon consideration of the facts and material before it, found that the appellant-company had become economically and commercially non-viable due to its huge accumulated losses and liabilities and should be wound up. The appeal filed by the appellant-company under Section 25 of the Act against said order of the Board was dismissed by the Appellate Authority by order dated January 7, 1991. As a result of these orders, no proceedings under the Act were pending either before the Board or before the Appellate Authority on February 21, 1991 when the Delhi High Court passed the interim order staying the operation of the order of the Appellate Authority dated January 7, 1991. The said stay order of the High Court cannot have the effect of reviving the proceedings which had been disposed of by the Appellate Authority by its order dated January 7, 1991. While considering the effect of an interim order staying the operation of the order under challenge, a distinction has to be made between quashing of an order and stay of operation of an order. Quashing of an order results in the restoration of the position as it stood on the date of the passing of the order which has been quashed. The stay of operation of an order does not, however, lead to such a result. It only means that the order which has been stayed would not be operative from the date of the passing of the stay order and it does not mean that the said order has been wiped out from existence. This means that if an order passed by the Appellate Authority is quashed and the matter is remanded, the result would be that the appeal which had been disposed of by the said order of the Appellate Authority would be restored and it can be said to be pending before the Appellate Authority after the quashing of the order of the Appellate Authority. The same cannot be said with regard to an order staying the operation of the order of the Appellate Authority because in spite of the said order, the order of the Appellate Authority continues to exist in law and so long as it exists, it cannot be said that the appeal which has been disposed of by the said order has not been disposed of and is still pending. We are, therefore, of the opinion that the passing of the interim order dated February 21, 1991 by the Delhi High Court staying the operation of the order of the Appellate Authority dated January 7, 1991 does not have the effect of reviving the appeal which had been dismissed by the Appellate Authority by its order dated January 7, 1991 and it cannot be said that after February 21, 1991, the said appeal stood revived and was pending before the Appellate Authority. In that view of the matter, it cannot be said that any proceedings under the Act were pending before the Board or the Appellate Authority on the date of the passing of the order dated August 14, 1991 by the learned Single Judge of the Karnataka High Court for winding up of the company or on November 6, 1991 when the Division Bench passed the order dismissing O.S.A. No. 16 of 1991 filed by the appellantcompany against the order of the learned Single Judge dated August 14, 1991. Section 22(1) of the Act could not, therefore, be invoked and there was no impediment in the High Court dealing with the winding up petition filed by the respondents. This is the only question that has been canvassed in Civil Appeal No. 126 of 1992, directed against the order for winding up of the appellant-company. The said appeal, therefore, fails and is liable to be dismissed.”

194. The situation in the present case is that the decision of the Guahati High Court made a declaration with regard to the legal status of CBI. That declaration has been stayed. Thus, the legal status of the CBI remains unaffected by the said judgment. Stay of the said judgment does not mean that the proceedings before the Guahati High Court stand revived, or that the said issue is still at large before the said High Court. No doubt, the judgment of the Guahati High Court is not set aside, but it is of no effect. It cannot be relied upon as an authoritative pronouncement by the said High Court. It cannot be followed, or pressed into service as a precedent.

195. Reliance placed on P.V. Narsimharao (supra) is misplaced. The Supreme Court held that a Member of Parliament is a Public Servant for the purpose of the P.C. Act.

196. The present is not a writ petition preferred by the State of Himachal Pradesh. The State of Himachal Pradesh cannot seek to advance submissions which have not even been raised by the petitioners. This Court is not obliged to deal with them, since the contesting respondent i.e. the CBI has not been called upon to meet the submissions of the State of Himachal Pradesh. Even otherwise, the present is not a petition raising a Centre-State dispute, which can be adjudicated only by the Supreme Court under Article 131 of the Constitution.

197. Turning to the questions framed by the Division Bench of the Himachal Pradesh High Court, in view of the above discussion, my answers to the same, insofar as they are relevant, are as follows: Sl. No. Question Answer 1 Whether cause of action has arisen within the territorial jurisdiction of this Court qua FIR No. RCAC-1 2015 A-004 registered on 23.9.2015, more particularly, in view of Sr. No. 5read in conjunction with paras 4, 5 and 6 of the FIR? The issue is not whether cause of action had arisen within the territorial jurisdiction of the High Court of Himachal Pradesh. The issue is whether the cause of action had arisen within the territorial jurisdiction of the learned Special Judge, within whose jurisdiction the FIR/ RC has been registered. The cause of action may arise at one or more places. The RC could be registered within the jurisdiction of the Court at either of such places. Cause of action has certainly arisen within the jurisdiction of the learned Special Judge at Delhi.

2. Whether there could be second preliminary inquiry after the closure of earlier preliminary inquiry purportedly as per para 9.26 of the Central Bureau of Investigation Manual? The second primary inquiry in the present case is on a different aspect than the first primary inquiry as discussed hereinabove. There was no illegality in the opening of the second preliminary inquiry.

3. Whether registration of FIR No. RCAC-1 2015 A-004 dated 23.9.2015 violates the dicta of Hon’ble Supreme Court in Ms. Mayawati vs. Union of India and others, (2012)8 SCC 106? The registration of the FIR/ RC in the present case does not violate the decision of the Supreme Court in Mayawati (supra).

4. Whether it was mandatory for the Central Bureau of Investigation to seek the consent of the State Government as per section 6 of the Delhi Special Police Establishment Act at the time It was not mandatory for the CBI to seek the consent of the State Government of Himachal Pradesh under Section 6 of the DSPE Act at the time of registration of the FIR/ RC. Thus, the FIR/ RC cannot be quashed on the ground of registration of FIR and its subsequent investigation and raiding the residential premises of the petitioners and non conforming to mandatory provisions of section 6 of the Delhi Special Police Establishment Act vitiates the investigation as well as raid in the official premises of the petitioners? of there being no consent under Section 6 of the DSPE Act from the State Government of Himachal Pradesh. It was mandatory for the CBI to obtain the consent of the State of Himachal Pradesh under Section 6 prior to conduct of any part of investigation in the area of State of Himachal Pradesh. The issue whether such consent had been obtained generally, or specifically, as well as the issue as to what is the effect of the investigation conducted, if any, without obtaining the prior consent of the State Government of Himachal Pradesh, cannot be determined in the present proceedings and would fall for consideration, if and when a charge-sheet is filed before the learned Special Judge. The issue whether, investigation carried out de hors the consent of the State of Himachal Pradesh – even if it were to be accepted for the sake of arguments that such consent was not available, would have to be considered by the learned Special Judge in the light of the discussion and decisions taken note of hereinabove.

5. Whether the raid of the residential premises of the sitting Chief Minister without conforming to section 6 of the Delhi Special Police Establishment Act would dilute the basic federal structure of the Constitution of India? Since the case/ RC has been justifiably registered at Delhi by the CBI, if the investigation (including the raid on the premises of the sitting Chief Minister) has been conducted by the CBI in the area of State of Himachal Pradesh in accordance with law, the same would not dilute the basic structure of Constitution of India. The petitioners have not relied upon any provision of law and have not cited any decision of any Court to submit that sitting Chief Minister of a State enjoys any immunity against a criminal offence duly registered by the CBI within the jurisdiction of the competent Special Judge.

6. Whether the FIR No. RCAC- 1 2015 A-004 could be registered when the Income Tax Department and this Court is seized of the matter? The FIR in question could be registered by the CBI, and merely because the Income Tax Department and the High Court is seized of the matter, is no ground to withhold the registration of the Regular Case. This is for the reason that the Income Tax Act is only concerned with the aspect of assessment of income-tax and is not concerned with the criminality involved in the manner in which the income is derived during the relevant assessment year(s). If the FIR/ RC discloses commission of a cognizable offence, the same cannot be quashed as it has been registered within the jurisdiction of the Court where the cause of action arose.

7. Whether the Central Bureau of Investigation has complied with the mandatory provisions of Code of No specific mandatory provision of this Code or the guideline provided in the CBI Manual has been referred to to submit that Criminal Provisions and the guidelines provided in Central Bureau of Investigation Manual while registering the FIR and also while undertaking the investigation? registration of the FIR/ RC and the undertaking of the investigation by the CBI is in breach thereof. In any event, these are issues which would fall for consideration before the learned Special Judge.

8. What is the true import of Entry 2-A, 80 of the Union List vis-à-vis 2 of the State List and their inter-play? The import of Entry 2A, 80 of the Union List vis-à-vis Entry 2 of the State List and their interplay has been elaborately discussed hereinabove and the same may be referred to.

9. Whether the income reflected in paras 5 and 6 of the FIR can be treated as disproportionate assets in the hands of petitioner No. 1? This question does not call for consideration in the present proceedings. The same constitutes the defence of the accused and may be raised before the learned Special Judge, in case the chargesheet is filed in the RC/ FIR in question and charges are framed against the accused.

10 Whether the registration of FIR against the petitioners is actuated with legal and factual mala fide and political There is no factual basis brought on record to claim that the registration of the FIR against the petitioners is actuated or legally or vendetta? factually mala fide or that the registration of the FIR/ RC is a result of political vendetta.

11. Whether the permission of the Speaker of the H.P. Legislative Assembly was mandatory before registration of FIR? There is no legal basis to claim that the permission of the Speaker of the Himachal Pradesh Legislative Assembly was mandatory before registration of the FIR/ RC in the present case which pertains to the tenure of petitioner No.1 while he was a Central Minister under the Union Government during the check period.

198. In the light of the aforesaid discussion, the writ petition is dismissed. All interim orders stand vacated.

JUDGE MARCH 31, 2017