Maqsood Husain vs State of U.P.

Alok Kumar Singh, J.—This criminal revision was preferred about 21 years before against the order dated 19.3.1985 passed by Sri Rafeeq Uddin, the then Additional Chief Judicial Magistrate, II, Lucknow in Criminal Case No. 70 of 1984 u/s 120-B/511/420/468/471, I.P.C. rejecting the application of the accused-revisionist dated 24.2.1984 praying for dropping the criminal proceedings pending against him.

As borne out from the record the accused-revisionist was posted as Machinist in Ordnance Clothing Factory, Shahjahanpur. He claimed an advance of Rs. 450 on 10.11.1978 pertaining to leave travel concession and filed forged railway tickets and certificates. On an information the Central Bureau of Investigation (hereinafter referred to as the C.B.I.) registered a case and after completing the investigation filed a charge-sheet under the aforesaid sections against the accused-revisionist. He moved an application before the learned Magistrate to close the proceedings on the ground that no F.I.R. has been lodged or registered at any of the police station of U.P. State and the C.B.I. working under the Delhi Special Police Establishment Act, 1946 had no jurisdiction to make investigation and file charge-sheet against him. After hearing both the parties the learned Magistrate rejected the application. Feeling aggrieved by the order this revision has been preferred.

I have heard Sri Qamar Ahmad advocate for the revisionist and Sri Bireshwar Nath advocate for the C.B.I., and perused the record.

The accused-revisionist is admittedly a Central Government employee. It is not disputed that in the present case no formal F.I.R. was registered at any police station of Uttar Pradesh. On the basis of an information a case was, however, registered by the C.B.I., in their general diary. Thereafter a charge-sheet was submitted before the court concerned under the aforesaid sections after completing the investigation. There also does not appear to be any dispute that the agency of C.B.I., was created under the provisions of the Delhi Special Police Establishment Act, 1946. This Act was enacted with the object to enable the Delhi Special Police Establishment (C.B.I.) to investigate the offences of bribery and corruption committed by the officers and officials working in the departments of the Central Government.

Learned Counsel for the revisionist argued that though the revisionist was a Central Government employee but firstly in absence of any F.I.R. with the State Civil Police no such investigation could have been proceeded with by the C.B.I., and secondly in absence of any direction or specific consent by the State Government the C.B.I., could not have performed the investigation and filed the charge-sheet. In support of the contention reliance was placed on the case of A.C. Sharma Vs. Delhi Administration, But this case law only clarifies that setting up of Delhi Special Police Establishment Act (D.S.P.E. Act) does not by itself deprive the Anti Corruption Branch of Delhi Administration of its jurisdiction to investigate the offences of bribery and corruption against the Central Government employees in Delhi. There is no such question before us. Moreover, that matter was in respect of an investigation pertaining to a section of Prevention of Corruption Act read with relevant sections of the Indian Penal Code and in that respect it was found that scheme of both the enactments was intended to serve as supplementary provisions of law.

The second citation relied upon from the side of the revisionist is that of Central Bureau of Investigation and another Vs. Rajesh Gandhi and another, According to the facts of this case when investigation by local police was not found satisfactory then the C.B.I. was directed with the consent of the State Government to further investigate the case. It was held that such investigation is not precluded because the Central Government has extended powers and jurisdiction under the Delhi Special Police Establishment Act to investigate in respect of specific offences. It was also held in this case that the accused cannot have a say as to who should investigate the offence he is charged with and the decision of the agency which should investigate the offence does not attract the principles of natural justice. In this regard Article 14 of the Constitution of India was also discussed. It appears that the aforesaid principle laid down by the Hon''ble Apex Court in this case are rather against the present revisionist. He also being an accused cannot choose the investigating agency of his choice. The argument advanced on behalf of the revisionist in respect of Article 14 of the Constitution of India also does not hold ground and principles of natural justice are also not attracted as was held in the aforesaid case law.

Learned Counsel for the revisionist also placed reliance on the case of The State of West Bengal Vs. Anwar Ali Sarkar, This case law deals with a particular Act, i.e., West Bengal Special Courts Act, 1950. In this case the provisions of the Act were found to be ultra vires in view of Article 14 of the Constitution of India. But the case in hand is only a criminal revision wherein neither vires of Delhi Special Police Establishment Act has been challenged nor any such finding can be recorded under this jurisdiction.

The learned Counsel for the revisionist also placed reliance on H.N. Rishbud and Inder Singh Vs. The State of Delhi, In this case also the provisions of Prevention of Corruption Act, 1947 were examined alongwith the provisions of Code of Criminal Procedure which has no relevance in the present case.

As envisaged in Section 5 of the Delhi Special Police Establishment Act, 1946 the powers of C.B.I., can be extended to any area in a State not being a union territory for investigation of a class of offences specified in the notification u/s 3. The consent of the State Government is also required in this regard as provided in Section 6 of the Act. Vide order dated 9.12.2004 passed by this Court the learned Counsel appearing for the C.B.I., was directed to file an affidavit showing the procedure and manner in which the C.B.I. proceeds and performs in criminal cases. In compliance thereof an affidavit of Sri J. K. Dixit, Inspector, D.S.P. (E)/CBI, 7-N.K. Road, Lucknow dated 17.2.2005 was filed which stands uncontroverted. The relevant notification dated 18.2.1963 (Annexure-1) has also been filed whereby the powers and jurisdiction of the members of C.B.I., were extended to the States of Andhra Pradesh, Madhya Pradesh, Madras, Maharashtra, Mysore, Orissa, Punjab, Rajasthan, West Bengal and Uttar Pradesh. This order also contains a schedule of offences including the main sections involved in the present case, i.e., Sections 420, 468 and 471, I.P.C. Moreover, in the case of Hari Das Mundhra Vs. The State, it was laid down by Hon''ble Mr. Justice V. D. Bhargava (as his Lordship then was) while sitting at Lucknow Bench that it cannot be doubted that the decision had been arrived at by the Government of Uttar Pradesh regarding the functioning of the Delhi Special Police under the Delhi Special Police Establishment Act, 1946 and the consent given in the letter of Deputy Secretary (authorized under the Rules framed under Article 166(2)) was found to be satisfactory compliance of the provisions of the Constitution. In this case law detailed references of the letters and notification etc. were also given out. From the side of the C.B.I., reliance was placed on this case law. It was also held in this case that even if the investigation was illegal or defective, it will hardly make any difference and the trial which follows cannot be set aside unless the illegality in the investigation can be shown to have brought about a miscarriage of justice. The case of H.N. Rishbud and Anr. v. State of Delhi (supra) was also considered in this case. In the case in hand no such miscarriage of justice has been shown. Otherwise also while interpreting any statute the provisions must be read as far as possible with a view to uphold their validity and not to render them invalid as was held in The Management of Advance Insurance Co. Ltd. Vs. Gurudasmal and Others,

Some of the paragraphs of the uncontroverted affidavit of Sri V. Dixit, Inspector C.B.I., dated 17.2.2005 filed on behalf of the C.B.I., in compliance of this Court''s order are also worth considering which are extracted hereinbelow:

The powers of Delhi Special Police Establishment (C.B.I.) are derived from The Delhi Special Police Establishment Act, 1946 (Act No. 25 of 1946). This Act confers concurrent and co-extensive powers, duties, privileges and liabilities on the members of Delhi Special Police Establishment (C.B.I.) with police officers of the Union Territories in relation to the investigation of offences notified by the Central Government u/s 3 of the Act. While exercising such powers, members of the D.S.P.E./ C.B.I of or above the rank of Sub-Inspector shall be deemed to be the Officer-in-Charge of Police Stations of the respective jurisdiction.

....The following category of cases was taken up by the Delhi Special Police Establishment (CB1):

(i) Cases which are substantially against the Central Government employees or concerning affairs of the Central Government shall be investigated by the Delhi Special Police Establishment (C.B.I.) inspite of the fact that certain employees of the State Government may also be involved. The State agency, who will be informed of such cases involving their employees, will render necessary assistance to the C.B.I., during investigation.

(ii) Cases which are essentially and substantially against servants of the State Government or are in respect of matters concerning the State Government, shall be investigated by the State Police irrespective of the fact that certain employees of the Central Government are also involved as confederates or co-accused. In such cases, the Delhi Special Police Establishment (C.B.I.) who will be duly informed, will assist the State agency, if necessary, in completing the investigation.

(iii) In addition to cases involving Central Government employees, the Delhi Special Police Establishment (C.B.I.) is authorized to investigate the cases of following categories:

(a) Cases in which the interest of the Central Government or of any statutory corporation of Body set up and financed by the Government of India are involved (particularly those in which public servants are concerned or very large amounts are involved).

(b) Cases relating to the breaches of Central Laws with the enforcement of which the Government of India is mainly concerned.

(c) Big cases of fraud, cheating, embezzlement and the like relating to Public Joint Stock Companies, in which large funds are involved. Similar other cases when committed by organized gangs or professional criminals having ramifications in several States.

(d) Cases having interstate and international ramifications and involving several official agencies where from all angles, it is considered necessary that a single Investigating Agency should be In-charge of the investigation.

The cases in D.S.P.E./ C.B.I. are received from three ends. Firstly the cases involving corruption by the Central Government Officers/Officials, which are directly taken over for investigation. Secondly, the cases which are referred to the C.B.I. for investigation by the Hon''ble Supreme Court of India and the Hon''ble High Courts of the States. Thirdly, the cases referred by the State Government for which the consent of the State Government as well as that of the Central Government is required and the Central Government and the State Government are required to issue fresh notification for investigation of that case.

The aforesaid affidavit in respect of procedure followed by the C.B.I., in compliance of this Court''s order dated 9.12.2004 stands uncontroverted. Otherwise also from the provisions of the Delhi Special Police Establishment Act, 1946 and the relevant case laws as discussed above, it appears that the averments made in the aforesaid affidavit regarding legal position, practice and procedure adopted by the C.B.I., in respect of various types of criminal cases are correct. In the conspectus of the above discussion it is deducible that if the matter relates to corruption and it is in respect of an employee of the Central Government, as in the present case, then specific permission/request of the State Government is not required for the C.B.I., to investigate the offence. Even if an investigation was illegal or defective it will hardly make any difference and the trial which followed or has to follow cannot be set aside unless the illegality in the investigation can be shown to have brought about miscarriage of justice, as was held in the case of Hari Das Mundhra v. State (supra). Therefore, the point raised on behalf of the revisionist in respect of want of consent/direction of the State Government has no substance.

The only other point raised on behalf of the revisionist, as mentioned hereinbefore, is that the C.B.I. could not have investigated the matter because no formal F.I.R. was lodged at the police station of civil police of the State. In this regard, it would be sufficient to mention that the members of the Delhi Special Police Establishment (C.B.I.) above the rank of sub-inspector are deemed to be the officers-in-charge of police station of the respective jurisdiction, as mentioned in the aforesaid affidavit. Admittedly there was no formal written F.I.R. in this case. But there was an information on the basis of which the case was registered by the C.B.I. It is needless to say that first information can come from any quarter and even anonymous letter reporting cognizable offence can be treated an F.I.R. Similarly in an appropriate case General Diary entry may even be treated as F.I.R. where it discloses commission of a cognizable offence. Similarly a telephonic information given to police by a witness though not mentioning the names of the assailants but disclosing cognizable offence would be an F.I.R. on the basis of which entry may be made in the general diary and the police may start investigation. Therefore, in the instant case if a case was registered by the C.B.I. on the basis of an information and then investigation was made and the charge-sheet was submitted, there was nothing wrong in it. Therefore, this point is also devoid of any substance.

It is noteworthy that this criminal revision was earlier being listed alongwith connected Criminal Revision No. 240 of 1985 which was in respect of similar matter of another Central Government employee, namely Data Ram Jha. That criminal revision was dismissed on 9.9.1999 by this Court in absence of revisionist and also on merit on the ground that no illegality or impropriety was found in the impugned order. The impugned order was found to be based on proper appreciation of law and fact. Its recall application was also rejected on 24.1.2000.

Finally, therefore, in view of the aforesaid discussion, this revision is liable to be dismissed. Accordingly this revision is hereby dismissed. Let lower court record, if any, be sent back to the court concerned immediately and the result of this criminal revision be also intimated forthwith so that the relevant Criminal Case, the proceedings whereof were stayed about 21 years ago, may proceed further without any delay. Compliance of this order be reported by the office to the Registrar, Lucknow Bench, Lucknow, within 15 days from today.