V.S.DAVE, J. - (1.) THIS is an application under S. 482 Cr. P.C. for quashing the order passed by Shri Om Prakash Sharma, Chief Judicial Magistrate (Economic Officers), Jaipur dated December 14, 1987, by which he directed the Central Bureau of Investigation to conduct investigation into the allegations levelled in a complaint filed by one Shri Manibhadra Bagra, former General Secretary, Rajasthan N.S.U.I, Jaipur the non-petitioner No. 2
(2.) BRIEF facts leading to this petition are that one Shri Manibhadra Bagra filed a complaint in the court of Chief Judicial Magistrate (Economic Offences), Rajasthan Jaipur, alleging that the accused persons named therein committed offences under Ss. 420, 467, 468, 409 and read with S. 120B IPC and also under Official Secrets Act (O.S. Act), Foreign Exchange Regulation Act (FERA) Prevention of Corruption Act (P.C. Act), Import and Export Act (( & E). Act) and Customs Act. The complainant arrayed besides the two petitioners as accused, six others who have been joined as respondents in this application, and they are Shri V.P. Singh, former Defence Minister. Shri Bherulal, former Director of Enforcement, Government of India, Shri Nasli Wadia, Chairman, Bombay Dyeing and Manufacturing Company, Shri Vinod Pandey, former Secretary Ministry of Finance, Government of India, Shri Ram Nath Goyanka of Express Group and Mr. Micheal Harshman, President, Fairfax, U.S.A. The complainant's allegations are mainly based on the report of Justices Thakkar-Natrajan Commission of Inquiry which was submitted to the Government of India on December 10, 1987. The complainant has alleged that after going through this report and recommendations made therein coupled with the day to day activities of Shri Vishwanath Pratap Singh, he was convinced that the accused persons have entered into a criminal conspiracy and are engaged in the task of defaming the Central Government. It is alleged that Shri V.P Singh, former Finance and Defence Minister in the Government of India was bound by the oath of allegiance and secrecy which he had taken while entering the office. Sarva Shri Vinod Pandey and Bhurelal both were civil servants being I AS. Officer were also obliged to maintain secrecy and allegiance to the country as they were holding important posts in the Government of India. It was further alleged that Sarva Shri Nasli Wadia, Bhurelal and Vinod Pandey, in conspiracy with the two petitioners Arun Shourie and S. Gurumurthy agreed to promote the claim of Shri V.P. Singh for Prime Ministership of this country and in pursuance of that conspiracy, they wanted to defame the present Prime Minister of India, Shri Rajeev Gandhi. It was further alleged that with this view in mind, services of Mr. Micheal Harshman, President of Fairfax a detective agency in United States of America were solicited to investigate into certain matters. It was therefore, alleged that the engagement of Mr. Harshman was not only in violation of law but it threatened the security of the country as important information had been passed over to him. It was alleged that Mr. Nasli Wadia played an important role in securing the services of Harshman and there is possibility that somebody else might have said for the engagement of this agency as no money had been paid by the Government of India. It was also alleged that the engagement of the company and payment to it were kept secret and no record was maintained at the behest of Shri V. P. Singh, Shri Bhurelal, Shri Gurumurthy and Shri Vinod Pandey. It was alleged that all the accused used to meet in hotels and private organisations and used to transmit secrets out side the country and thus they were administering slow poison to the whole country. It was alleged that accused persons also fabricated and forged documents and thereby fraudulently obtained public funds and property for their selfish motives. It was alleged that in this task accused No. 1 mis-used foreign exchange in conspiracy with other accused persons for this purpose and thus, committed offences which are punishable under FERA. It was further alleged that the accused Shri V.P. Singh along with Sarva Shri Bhurelal and Vinod Pandey gave illegal concessions to Mr. Nasli Wadia for importing polyester yarn etc. and there by committed offences punishable under import and Export Control Act. It was further alleged that the accused persons particularly the petitioners along with Shri Ram Nath Goyanka imported printing machinery without payment of any customs duty and, therefore, violated the provisions of Customs Act and the Import and Export Control Act. The complainant further alleged that the accu-sed persons entered into the criminal conspiracy by holding regular meeting at Mohangarh, Devgarh, Jaisalmer,. Bikaner and Jaipur in many prestigious hotels and it was at these places that final shape to the criminal conspiracy was given and the plans prepared. It was also alleged that Mr. Harshman also met Shri Bhurelal, Shri Ramnath Goyanka and others. Hence, the court at Jaipur had jurisdiction to take cognizance. This complaint was filed on December 14, 1987 by the complainant himself as per the order-sheet. He also filed power of Shri Mahesh Chandra Sharma (Dausawala) whose arguments were heard on the same day and the learned C.J.M. (E.O.), Jaipur sent the complaint for investigation to the Superintendent of Police,C.B.I, Jaipur by a detailed order. The learned Chief Judicial Magistrate in his order not only directed the C.B.I. to investigate in accordance with the law but also directed it to consult the competent officers of the State and fulfil the legal requirements, if any. A further direction was issued to contact the Directorate of Enforcement, Customs Import and Export Authorities and all such other persons who are concerned in respect of whom various offences are committed. He further directed the Superin-tendent of Police (CB1) to get in touch with the concerned departments for com-pleting the necessary formalities required e.g. consent, sanction etc. The Superin-tendent of Police, C.B.I. was further directed to hand over the investigation papers to officers of the various departments in case the complaints were required to be filed by them and further to obtain prior sanction if required under different statutes. He also directed that the investigation should be given top priority and monthly progress report should be submitted before him. If there comes any legal or technical hurdle in investigation the case, it was directed that he may seek the clarification from the court. It was also directed that the copy of the order should be sent for information and necessary action to the Home Secretary Government of India, Director General of Police (C. B. I.), Delhi, Director General of Police, Rajasthan and Home Secretary, Government of Rajasthan. It is this order which has been challenged before this court. Notice of the petition was issued to the learned counsel for the complainant and after hearing him the court issued notice to the Superintendent of Police (CBI. Learned Advocated General also offer red to interfere in the case. Learned counsel for the petitioner submitted that the complaint is baseless and vexatious and so the impugned order of the Magistrate is an abuse of the judicial process and hence be quashed, rescinded and be declared illegal and void. It is submitted that even if the whole complaint is properly analysed no offence worth the name is disclosed and the court should not embark upon such a waste paper. It is submitted that the only basis of the complaint is Hob-ble Justices Thakkar-Natrajan Report but the same cannot be made use of as no notice under S. 83 of the Commissions of Inquiries Act was issued to the accused-petitioners. It is submitted that the learned Magistrate had acted without jurisdic-tion in directing Central Bureau of Investigation to carry out investigation on vague allegations. It is submitted that Central Bureau of Investigation does not have a police station at Jaipur and ho direction could be issued by the learned Magistrate to do rowing and fishing inquiry by asking the C.B.I to go to various departments mentioned therein and investigate into what has been pointed out in Justices Thakkar-Natrajan Report It is further submitted that there is legal bar under the various Acts and the authorities mentioned therein alone had the jurisdiction to collect informations. It was contended that this court has wide jurisdiction to quash the investigation under S. 482 Cr. P. C. in such cases. Reliance has been placed on Emperor Vs Khwaja Nazir Ahmad, (1) wherein it has been held: "No doubt if no cognizable offence is disclosed, and still more if no offence of any kind is disclosed, the police would have no authority to undertake an investigation and for this reason Newsam J. may well have decided rightly in AIR 1938 Mad. 129". R.P. Kapur Vs. State of Punjab, (2) wherein it has been held as under: "It is well established that the inherent jurisdiction of the High Court can be exercised to quash proceedings in a proper case either to prevent the abuse of the process of any court or otherwise to secure the ends of justice. Ordinarily criminal proceedings instituted against an accused person must be tried under the provisions of the Code, and the High Court would be reluctant to interfere with the said proceedings at an interlocutory stage. It is not possible, desirable or expedient to lay down any inflexible rule which would govern the exercise of this inherent jurisdiction. However, we may indicate some categories of cases where the inherent jurisdiction can and should be exercised for quashing the proceedings. There may be cases where it may be possible for the High Court to take the view that the institution or, continu-ance of criminal proceedings against an accused person may amount to the abuse of the process of the court or that the quashing of the impugned pro-ceedings would secure the ends of justice. If the criminal proceeding in ques-tion, is in respect of an offence alleged to have been committed by an accused person and it manifestly appears that there is a legal bar against the institution or continuance of the said proceeding the High Court would be justified in quashing the proceeding on that ground. Absence of the requisite sanction may, for instance, furnish cases under this category. Cases may also arise where the allegations in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirely, do not constitute the offence alleged in such cases no question of appreciating evidence arises; it is a matter merely of looking at the complaint or the First Information Report to decide whether the offence alleged is disclosed or not. In such cases it would be legitimate for the High Court to hold that it would be manifestly unjust to allow the process of the criminal court to be issued against the accused person. A third category of cases in which the inherent jurisdiction of the High Court can be successfully invoked may also arise. In cases falling under, this category the allegations made against the accused do not constitute an offence alleged but there is either no legal evidence or facts in support of the case or evidence adduced clearly or manifestly fails to prove the charge. In dealing with this class of cases it is important to bear in mind the distinction between a case where there is no legal evidence or where there is evidence which is manifestly and clearly inconsistent with the accusation made and cases where there is legal evidence which on its appreciation may or may not support the accusation in question. In exercising its jurisdiction under S. 561-A the High Court would not embark upon an enquiry as to whether the evidence in question is reliable or not. That is the function of the trial Magistrate, and ordinarily it would not be open to any party to invoke the High Court's inherent jurisdiction, and contend that on a reasonable appreciation of the evidence the accusation made against the accused would not be sustained. Broadly stated that is the nature and scope of the inherent jurisdiction of the High Court under S. 561-A in the matter of quashing criminal proceedings, and that is the effect of the judicial decisions on the point". State of West Bengal Vs. Swapan Kumar Guha (3) wherein it has been held as under : "It seems to me impossible to hold on the basis of these allegations that any offence can be said to be made out prima facie under S. 3 of the Act. In the first place, the F.I.R. does not allege, directly or indirectly, that the firm was promoting or conducting a scheme for the making of quick or easy money, dependent on any event or contingency relative or applicable to the enrolment of members into the scheme. Secondly, the F.I.R. does not contain any allegation whatsoever that persons who advanced or deposited their monies with the firm were participants of a scheme for the making of quick or easy money, dependent upon any such event or contingency. The F.I.R, bears on its face the stamp of hurry and want of care. It seems to assume what was argued before us by Shri Som Nath Chatterjee on behalf of the prosecution that it is enough for the purposes of S.2. (c) to show that the accused is promoting or conducting a scheme for the making of quick or easy money, an assumption which I have shown to be fallacious. An essential ingredient of S. 2 (c) is that the scheme for making quick or easy money must be dependent on any event or contingency relative or applicable to the enrolment of members into the scheme. First Information Report which does not allege or disclose that the essential requirements of the penal provision arc prima facie satisfied, cannot form the foundation or constitute the starting point of a lawful investigation." On the strength of the aforesaid case it is submitted that since complaint does not allege or disclose an offence it should be quashed. Specific reliance was made on paras 16; 20, 21 and 64. It was then submitted that under S. 156(3) Cr.P.C, the learned Magistrate ought not to have sent the matter for investigation as no cognizable offence was disclosed in the complaint. The learned Magistrate neither had the satisfaction nor had reason to believe that some cognizable offence was made out which required investigation. It is submitted that order of the learned Magistrate does not fall within the preview of a proper legal order. It is submitted that order contains all what it ought not to and though it is quite a lengthy order directing police under S. 156 (3) Cr.P.C. but there is not a word in the entire order which shows that learned Magistrate was satisfied that there is any offence alleged to have been committed by the accused persons which required investigation. On the contrary the order discloses that even the complainant did not argue for proceeding with the enquiry by the learned Magistrate. He only made a prayer for sending the case to the CBI for investigation and to further direct the CBI to contact various authorities for that purposes It is further submitted that the provisions of Secs. 4 and 5 of the Act have not been , taken note of and so also the basic principles of interpretation of statutes have been ignored. It has not been taken note of that it is only the provisions under the special enactments which have to. be given effect to while dealing the accused under the Special Acts. Such as under the provisions of FERA only agency which can seek information is provided under S. 32 of the Act and the officers of the CBI have no jurisdiction express or implied to investigate. Reference is also made to Ss. 34 to 40 and S. 45 of the said Act. Similarly a reference was made to various provisions under the Customs Act, Export and Import Act, P.C. Act, Official Secret Act and S.6 of the Delhi Special Establishment Act where under the CBI is created.
(3.) MR. Mahesh Chand Dausawala submitted that basis of the complaint is Justices Thakkar Natrajan Commission's Report. He has made reference to observations made in the report at various places. His submission is that application filed by the accused is pre mature inasmuch as the CBI has not yet even registered the case and the order passed by the Magistrate cannot be interfered with it is submitted that if the Magistrate has power to take cognizance under S. 190 Cr.P.C he has also power to direct investigation under S. 156(3) Cr.P.C. It is submitted that under S. 155 Cr.P.C . if the Magistrate has to be informed and his sanction is obtained by CBI for investigating the non-cogni-zable case under S. 355 Cr.P.C; then it is equally permissible that he can direct the CBI under S. 156 (3) Cr.P.C. to investigate a cognizable offence. In this respect reference was made to Gopal Das Sindhi vs. State of Assam (4). Refer ence was also made to S. 460 (c) Cr.P.C. Learned counsel also submitted that the word 'Court' read with S.3 of the Indian Evidence Act with reference to State of West Bengal Vs. Sampat Lal (5). It is then submitted that it is distinct offence under S 27(1) of the FERA is made out. Similarly an offence under S 5(l)(d) read with S. 5(2) of the Prosecution of Corruption Act is also made out. It is submitted that for each of the offence a specific allegation has been made in the complaint and this court cannot substitute its satisfaction for the satisfaction of the learned Magistrate. It is submitted that this is a matter of public importance where persons highly placed in the society have committed serious offences and have endangered the safety and security of the entire country. It is submitted that High Court should not interfere at the investigation stage and that S 482 Cr.P.C. should not be invoked particularly when a revision was maintainable against the order. Reference was made to S.N. Sharma Vs. Bipen Kumar Tiwari (6), Badaku Joti Swant Vs. State of Mysore (7), Balkishan Vs. State of Maha-rashtra, (8), State of U.P. Vs. Ballabh Das (9) and Eastern Spinning Mills Shri Virendra Sharda Vs. Shri Rajiv Poddar (l0). On the second proposition the learned counsel relied on Phoolchand Vs. State of Raj (11), Ashok Dev. Vs. Bishan Swarup (12) and Raj Kappor Vs. State (Delhi Administration) (13). Mr. Tyagi appearing on behalf of the CBI submitted that under S. 5 of Delhi Police Establishment Act the area has to be notified and specified by the Central Government and it is only after the State Government's approval that CBI has jurisdiction under S- 6 of the DPE Act.. It is further submitted that the Magistrate has no jurisdiction express or implied to direct investigation under S 156 (3) Cr.P.C, as such section has to be read with S. 156 (i) and S. 190 Cr.P.C. It is submitted that CBI has only one police station which is at Delhi. If the Magistrates are permitted to issue directions like the one issued in the instant case then it would be impossible for the CBI to function as small (sic such) organisation like CBI would be subject to the orders by various courts all over the country, Shri D.C. Swami, the learned Advocate General, submits that the State Government is not inclined that any submission should be made in the case on its behalf. ;