Union of India and Anr. v. Sunil Tripathi Etc. Etc.

A. M. KHANWILKAR, J. 1. By the impugned judgment and order dated 20 th July, 2017 passed by the High Court of Delhi at New Delhi in Writ Petition (Civil) No.12313 of 2015, Writ Petition (Civil) No.602 of 2017 & C.M. No.2775 of 2017, the appellant No.2 Central Bureau of Investigation (“CBI”) has been directed to take immediat e steps to convert preliminary enquiry (PE) No.2172014A0003 dated 7 th May, 2014, PE No.4(A) dated 8 th May, 2014 and PE No. AC12014 A0006 dated 12 th May, 2014 into FIRs/RCs and to ensure that investig ation is expeditiously completed and taken to its logical end in accordance with law. In addition, consequential directions have been issued to the appellant CBI. 2.The appellants have assailed the aforesaid decision on the ground that such directions to the CBI are untenable in law and would require the investigating agency to ignore its limits and functions and act beyond the statutory dispensation. According to the appellants, the effect of the directions given by the High Court is to call upon the C BI to act in a particular manner de hors the material facts and the conclusion recorded in the enquiry report. The thrust of the contention urged by the appellants is that since the CBI, after conducting prelimi nary enquiry, was of the prima facie opinion that there was no involvement of any public servant or any loss to the public funds, it was not a fit case for the CBI to take over the investigation and that the investigation thereof can be conveniently carried out by the State police. In this c ontext, a note was submitted by the CBI to the concerned department to proceed with the matter in accordance with law. It is urged by the appellants that the High Court misdirected itself in relying upon the allegations adverted to in the PE registered by the CBI pursuant to the orders pa ssed by the High Court on 8 th January, 2014 in Writ Petition No.5578/2013 and mistook it as the conclusion arrived at by the Inquiry Offic er. If that basis is discarded, then it would necessarily follow that the investigation UNION OF INDIA AND ANR. v. SUNIL TRIPATHI of the alleged offence can be conveniently done by the State police as it does not involve any instance of national or international ramifications as well. In substance, it is urged by the appellants that i t was not a fit case for entrusting the investigation of the alleged crime to CBI and that the High Court decision has failed to analyse all the releva nt aspects placed before it in that regard. 3. The respondents, on the other hand, would contend that the appellants having failed to challenge the order dated 8 th January, 2014 passed in Writ Petition No.5578/2013, cannot be heard to contend that CBI was not required to take over the investigation of the alleged crimes. In that, an unambiguous stand was taken by the appellants be fore the High Court in the said writ petition that the investigation of the alleged crimes referred to in the writ petition was already entrusted to the CBI and the investigation thereof was in progress. Nota bly, the CBI registered three separate P.Es. on 7 th , 8 th and 12 th of May, 2014, reflective of the offence having been committed by unknown officials of the Directorate General of Resettlement (“DGR”) and Ex-Servicemen (ESM) and including relating to undue peculiar benefit to private firms and other persons mentioned in the accused list and corresponding loss to public exchequer and Government undertakings. In ligh t of the allegations, preliminary enquiry in respect of each of t hese alleged offences came to be registered against the firms and othe r unknown persons mentioned in the PEs. The concerned official who underto ok the preliminary enquiry eventually submitted notes which were reproduced in the Status Report dated 17 th October, 2016 filed before the High Court, stating thus: “2. That in compliance of order dated 08.01.2014 the Respondent No.2 took up preliminary inquiry after receiving the writ petition from the Ministry of Defence through the Department of Ex-Servicemen Welfare. 3. It is also submitted that during the course of enquiry in all the three Preliminary Enquiries, the issues raised by the Petitioner in his writ petition were covered and inquired into by Respondent No.2/CBI. The Inquiry revealed the involvement of private persons in the matter of submission of false affidavits/inf ormation/ documents to obtain ‘SECOND CAREER FACILITY’ through the Directorate General of Resettlement. 377 4. During the course of inquiry, the Respondent CBI did not come across sufficient evidence to substantiate the involvement of public servants to bring the case un der Prevention of Corruption Act. Since, inquiry did no t establish the involvement of public servants, the Respondent No.2 sent Self Contained Notes to the authorities as mentioned below in relation to the preliminary inquiries as detailed below :- i. PE2172014A0003/ACU-IV Directorate General of Resettlement, Ministry of De fence, Government of India, with the request to refer the matters to the local police by the concerned Directorates in the m atter of misrepresentation, forged affidavits and other issues in whi ch forgery was revealed during enquiry and take necessary ac tion as per the prevalent extant provisions of the department on the subject at the relevant point of time. ii. PE AC-I2014A0006 Director General (Vigilance), Directorate General of Vigilance, Customs and Central Excise, Chanakayapuri, New Delhi for initiating necessary action as per the provision of Finance Act, 1994 against erring service providers on the instan ces of irregularities in deposit of service tax by service providers. iii. PE 04(A)/2014/AC-III NEW DELHI Chief Vigilance Officer, Employees Provident Fund Organization, Bhikaji Cama Place, New Delhi, Chief Vigilance Officer, Ministry of Defence and Chief Vigilance Officers of PSUs viz. Na tional High Authority of India and Central Warehousing Corporation of India for taking appropriate action against the errin g ESM companies for committing irregularities in depositing PF dues of Security Guards, who are employed by them in PSUs. 5. In this regard it is submitted that the short affidavit filed by CBI be kindly read as part of this status report. 6. It is further most respectfully submitted that the CBI shall abide any further direction(s) passed by this Hon’ble Court.” (emphasis supplied) UNION OF INDIA AND ANR. v. SUNIL TRIPATHI [A. M. KHANWILKAR, J.] According to the respondents, it was not open to the appellants to act upon the aforementioned notes in view of the previous sta tement made before the High Court as recorded in the order dated 8 th January, 2014, that the CBI has already commenced investigation into the alleged crimes. Furthermore, the stated notes implicitly conceded that there was enough material to suggest commission of cognizable offence. The fact that the official submitting stated notes was of the view that the offence was committed by persons other than public servants, wou ld make no difference. As a matter of fact, the nature of allegati ons regarding misuse of official position and also causing loss to public exc hequer, inevitably would involve role of public servants and officials. In either case, it was not open to CBI to resile from the statement made before the High Court on 8 th January, 2014 and, therefore, the Court was justified in directing the CBI to investigate the allege d offence after registration of FIRs/RCs. The respondents would cont end that no material was produced by the CBI before the High Cou rt so as to completely rule out the involvement of public servant in the commission of the alleged offence. The respondents have also invited our attention to other criminal cases, which on being investigated by CBI, s uch as RC-19(S)/2013(R) under Section 120B read with Sections 420, 468 and 471 of IPC at PS CBI/ACB/Ranchi, RC-009/2016/A0011 d ated 20 th December, 2016 under Section 13(2), 13(1)(d) PC Act and Section 120B read with Section 420 IPC and FIR No.RC-028/2017/A0003 dated 31 st January, 2017 under Section 120B and Section 120B read with Section 420 IPC. It is contended that the CBI had investigate d these offences irrespective of the involvement of public servants. According to the respondents, the High Court was justified in directing the CBI to register FIRs/RCs and investigate the same and take it to its logical end. To buttress the arguments, the respondents have placed reliance on the decisions of this Court in State of West Bengal and Ors. Vs. Committee for Protection of Democratic Rights, West B engal and Ors. ,1 Manohar Lal Sharma Vs. Principal Secretary and Ors. ,2 and Subramanian Swamy Vs. Director, Central Bureau of Investig ation and Anr. 3 4. We have heard Mr. R. Balasubramanium, learned coun sel appearing for the appellants and Mr. Abhimanue Shrestha, learned counsel appearing for the respondents. 1(2010) 3 SCC 571 2(2014) 2 SCC 532 3(2014) 8 SCC 682 379 5. After analysing the impugned judgment, it is noticed that the High Court allowed the writ petitions and issued directions mainly for the following reason: “10. Given the nature of allegations made in para 9(H) of W.P.(C) No.12313/2015 and the observations of the CBI upon its preliminary examination as placed before this court in the affidavit dated 27 th January, 2016, it cannot be denied that the present case meets the bar of ‘exceptional situations’ when it is essential to provide credibility and instill confid ence in investigations. It also cannot be denied that the incident may have national and international ramifications. We are also of the view that grant of the prayer made by the writ petitioner is essential for doing complete justice and enforcing fundamental and basic rights of the ex-servicemen. Furthermore, ensuring benefits under a special scheme of the Government.” 6. As regards the allegations in paragraph 9(H) of Writ Petition (Civil) No.12313 of 2015, we find force in the plea taken by the appellants that the same is a virtual reproduction of the contents of the three PEs registered by the CBI, which were based on the allegations contained in the previous writ petition and other materials furnis hed to the CBI consequent to the order passed on 8 th January, 2014. The appellants, in the Status Report as well as in the reply affidavit, had placed on record that after the enquiry undertaken consequent to registration of t hree PEs, it was revealed that there was no involvement of any public servant and loss to public exchequer nor the offences involved national and international ramifications necessitating investigation by the CBI. This contention has not been properly analysed by the High Court. The High Court, however, discarded the argument of the appellants in one paragraph, as can be discerned from paragraph 10 of the imp ugned judgment reproduced earlier. The High Court has also not dealt with the argument of the respondents that after the statement made by the appellants before the High Court on 8 th January, 2014 that the CBI was investigating into the alleged offences and the investigation was in progress, it was not open to the appellants to take a different position. Moreso because material became available during the enquiry, suggesting commission of alleged offences. The respondents w ould UNION OF INDIA AND ANR. v. SUNIL TRIPATHI [A. M. KHANWILKAR, J.] further contend that irrespective of the involvement of the public servant, the offences in question could be and ought to be investigated by the CBI in terms of the provisions of the Delhi Spe cial Police Establishment Act, 1946 in light of the undertaking given before the High Court as recorded in the order dated 8 th January, 2014. 7. Instead of examining all these contentious issues for the first time in these appeals, we deem it appropriate to set aside the impugned judgment and relegate the parties before the High C ourt for reconsideration of all aspects of the matter afresh on its own merits and in accordance with law. We may not be understood to have expressed any opinion, either way, on the issues that may require adjudication by the High Court. 8. Accordingly, these appeals are allowed. The impu gned judgment and order is set aside and Writ Petition (Civil) No.12313 of 2015, Writ Petition (Civil) No.602 of 2017 and C.M. No.2775 of 2017 are restored to its original numbers on the file of the High Court of Delhi at New Delhi, for being decided de novo by the High Court, uninfluenced by any observations made in the impugned judgment. All questions are left open. 9. The appeals are disposed of in the aforementioned t erms. No costs. Kalpana K. Tripathy Appeals disposed of.