# Vivek Jain v. C.B.I., ACB Ghaziabad Opp. Party

- **Citation:** (2021) 1 ILRA 1044
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-11-18
- **Case number:** Crl. Misc. Appl. u/s 482 No. 11058 of 2020
- **Bench:** Suneet Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/vivek-jain-v-c-b-i-acb-ghaziabad-opp-party-46096
- **Pages:** 7

## Headnote

Criminal Law-Section 17 of prevention of
Corruption Act-Investigation conducted in
execution and implementation of National
Rural Health Mission and utilisation of
funds-chargesheet
submitted
and
cognizance was taken-objection is raised
as investigation conducted by officer
below rank of Inspector of Police and is
violative of section 17 of P.C. Act -no
pleadings regarding any prejudice or
miscarriage of justice on account of such
1 All. Vivek Jain Vs. C.B.I., ACB Ghaziabad
1045
enquiry-such investigation was entrusted
to the Officer by Special Judge-impugned
order is not illegal.

Application rejected. (E-7)

Held, the question then requires to be
considered whether and to what extent the trial
which follows such investigation is vitiated. The
trial follows cognizance and cognizance is
preceded by investigation. This is the basic
scheme of the Code in respect of cognizable
cases. But it does not necessarily follow that an
invalid investigation nullifies the cognizance or
trial based thereon. The court is not concerned
with the effect of the breach of a mandatory
provision
regulating
the
competence
or
procedure of the court as regards cognizance or
trial. It is only with reference to such a breach
that the question as to whether it constitutes an
illegality vitiating the proceedings or a mere
irregularity. A defect or illegality in investigation,
however serious, has no direct bearing on the
competence or the procedure relating to
cognizance or trial. No doubt a police report
which results from an investigation is provided
in Section 190 of Cr.P.C. as the material on
which cognizance is taken. But it cannot be
maintained that a valid and legal police report is
the foundation of the jurisdiction of the court to
take cognizance. Clauses (a), (b) and (c) of
Section 190(1) Cr.P.C. are conditions requisite
for taking of cognizance, it is not possible to say
that cognizance on an invalid police report is
prohibited and is therefore a nullity. (Para 20)

List of Cases cited:-

## Text

1044 INDIAN LAW REPORTS ALLAHABAD SERIES
impugned has been passed. But that is not
the end of the matter in a case like the
present one. If this Court were to
technically
hold
the
revision
not
maintainable and set aside the impugned
order, the Court would, in fact, be restoring
an illegal order on the merits of the parties'
case. The impugned order made by the
learned
Additional
District
Judge
is
flawless on merits, may be passed in
proceedings that were not competent. He
could have required the plaintiffs to convert
the revision into a miscellaneous appeal
under Order XLIII Rule 1(r) of the Code
and decided the same, may be, reaching the
same conclusions. It is the essence of this
Court's jurisdiction under Article 227 of the
Constitution that interference with orders of
subordinate courts and Tribunals is not to
be made on grounds of illegality or even
patent illegality alone. The order impugned
should also be unjust and iniquitous. If the
order is one that does substantial justice,
and the flaw even about jurisdiction is one
merely about the form of remedy, in the
opinion of this Court, the order ought not
be interfered with. Even if the plaintiffs
were compelled to choose the remedy of an
appeal under Order XLIII Rule 1(r) of the
Code, it would lie before the same forum.
Had the wrong remedy chosen made a
difference in forum, different principles
would apply. But, this is not the case here.

11. In the circumstances, this Court
does not find the case to be one at all where
the order impugned ought to be interfered
with by this Court in exercise of its
jurisdiction under Article 227 of the
Constitution.

12. However, looking to the entirety
of the circumstances that the parties are in
strife, where there is apparently little
dispute
about
title,
but
one
over
demarcation of their properties, giving rise
to the cause of action involved, it would be
in the interest of justice that the Trial Court
may be required to expedite hearing and
endeavour to conclude the trial within a
period of eight months of the receipt of a
copy of this order, in accordance with law.

13. This petition stands disposed of in
terms of the aforesaid orders.

14. Let this order be communicated to
the learned Additional District Judge, Court
No. 5, Hathras through the learned District
Judge, Hathras by the Joint Registrar
(Compliance).
----------
(2021)01ILR A1044
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 18.11.2020

BEFORE

THE HON'BLE SUNEET KUMAR, J.

Crl. Misc. Appl. u/s 482 No. 11058 of 2020

Vivek Jain ...Applicant
Versus
C.B.I., ACB Ghaziabad ...Opp. Party

Counsel for the Petitioner:
Sri Kuldeep Saxena, Sri Vijit Saxena

Counsel for the Respondents:
Sri Sanjay Kumar Yadav

Criminal Law-Section 17 of prevention of
Corruption Act-Investigation conducted in
execution and implementation of National
Rural Health Mission and utilisation of
funds-chargesheet
submitted
and
cognizance was taken-objection is raised
as investigation conducted by officer
below rank of Inspector of Police and is
violative of section 17 of P.C. Act -no
pleadings regarding any prejudice or
miscarriage of justice on account of such
1 All. Vivek Jain Vs. C.B.I., ACB Ghaziabad
1045
enquiry-such investigation was entrusted
to the Officer by Special Judge-impugned
order is not illegal.

Application rejected. (E-7)

Held, the question then requires to be
considered whether and to what extent the trial
which follows such investigation is vitiated. The
trial follows cognizance and cognizance is
preceded by investigation. This is the basic
scheme of the Code in respect of cognizable
cases. But it does not necessarily follow that an
invalid investigation nullifies the cognizance or
trial based thereon. The court is not concerned
with the effect of the breach of a mandatory
provision
regulating
the
competence
or
procedure of the court as regards cognizance or
trial. It is only with reference to such a breach
that the question as to whether it constitutes an
illegality vitiating the proceedings or a mere
irregularity. A defect or illegality in investigation,
however serious, has no direct bearing on the
competence or the procedure relating to
cognizance or trial. No doubt a police report
which results from an investigation is provided
in Section 190 of Cr.P.C. as the material on
which cognizance is taken. But it cannot be
maintained that a valid and legal police report is
the foundation of the jurisdiction of the court to
take cognizance. Clauses (a), (b) and (c) of
Section 190(1) Cr.P.C. are conditions requisite
for taking of cognizance, it is not possible to say
that cognizance on an invalid police report is
prohibited and is therefore a nullity. (Para 20)

List of Cases cited:-

1. St. of M.P. Vs Mubarak Ali, 1959 AIR (SC) 707

2. H.N. Rishbud & Singh Vs The St. of Delhi,
(1955) 1 SCR 1150

3.U.O.I. Vs Prakash P. Hinduja & anr., (2003) 6 SCC 195

4. Prabhu Vs Emperor, AIR 1950 PC 26

5. Lumbhardar Zutshi Vs The King, AIR 1950 PC
26: (1950) 51 Cri LJ 644

6. Abhinandan Jha Vs Dinesh Mishra, AIR 1963
SC 447: (1963) 1 Cri LJ 341
7. Vineet Narain & ors. Vs U.O.I, (1998) (1) SCC
226

8. St. of Bih. Vs J.A.C. Saldanha, (1980) 1 SCC
554

9. Kanwal Tanuj Vs St. of Bih. & ors., (2020)
SCC OnLine SC 395

10. M/s Fertico Marketing & Investment Pvt. Ltd.
& ors. Vs C.B.I. & anr., Criminal Appeal Nos.
760-764 of 2020 arising out of SLP (Crl.) Nos.
8342-46 of 2019 decided on November 17, 2020

11. St. of U.P. Vs Bhagwant Kishore Joshi, AIR
1964 SC 221

(Delivered by Hon'ble Suneet Kumar, J.)

1. Heard Sri Kuldeep Saxena, learned
counsel for the applicant, Sri Gyan
Prakash, Assistant Solicitor General of
India appearing for the CBI assisted by Shri
Sanjay Kumar Yadav, Advocate and
perused the record.

2. Applicant by the instant petition
under Section 482 of Code of Criminal
Procedure, 19731, seeks quashing of the
charge sheet dated 29 August 2014 and
cognizance order dated 16 December 2014,
passed in Criminal Misc. Case No. 10 of
2014, under Sections 120-B read with
sections 409, 420, 468 & 471 IPC and
Section 13(2) read with Section 13(1)(d) of
the Prevention of Corruption Act, 19882,
and substantive offence under Sections
409, 420, 468 & 471 IPC arising from the
F.I.R. No. RC No. 1202013A0017 pending
in the court of Special Judge, Anti
Corruption, CBI, Ghaziabad.

3. The facts giving rise to the petition,
briefly stated, is that pursuant to an order
dated 15.11.2011, passed by this Court at
Lucknow, in Writ Petition Nos. 3611 (MB)
of 2011 (PIL), 3301 (MB) of 2011 (PIL)
1046 INDIAN LAW REPORTS ALLAHABAD SERIES
and No. 2647 (MB) of 2011 (PIL), inter
alia,
directed
Central
Bureau
of
Investigation3 to conduct a preliminary
enquiry in the matter of execution and
implementation of the National Rural
Health Mission (for short ''NRHM') and
utilization of funds at various levels in the
entire State of Uttar Pradesh commencing
2005-2006. In compliance thereof, on 31
January 2013, CBI registered a preliminary
enquiry against the officers of Health and
Family Welfare Department of District
Moradabad, and unknown private persons.
The enquiry was conducted by the
Additional Superintendent of Police, CBI,
ACB, Ghaziabad, for the period 2005-06
till 15.11.2011. The enquiry revealed that
bogus/forged tender papers were submitted
and used in the tender process on behalf of
certain firms for completing the tender
proceedings by the suspect officials in
conspiracy with the firms. The enquiry
further revealed that most of the purchases
under
National
Blindness
Control
Programme ralated to NRHM Scheme, at
district Moradabad, were made by three
sister concerns. The forged and bogus bids
were submitted and used by the suspected
accused to show artificial competitive rates.

4. The enquiry, prima facie, exposes
Dr. N.K. Gupta, Dr. R.K. Saxena, Dr. S.K.
Malik, the then CMOs/DPO, Moradabad
and Dr. S.K. Singh, the then DPM and
officiating CMO Moradabad, in criminal
conspiracy
with
co-accused
Narendra
Kumar Jain, Prop. M/s Jain Medical Hall,
Moradabad, applicant Vivek Jain, Prop.
M/s Kapil Medical Agencies, Moradabad,
and other unknown persons of having
committed offence regarding purchase of
medicines during the period 2008-09,
2009-10 & 2010-11 from NRHM funds.
The conspirators are alleged to have
violated the norms and guidelines for
purchase of medicines at exorbitant rates,
prepared and utilized forged documents and
by abusing their official position have
caused loss
at Rs.4,56,484/- to the
government and corresponding gains to
themselves.

5. On the strength of preliminary
enquiry, F.I.R. came to be lodged on 4 July
2013, on the complaint filed by Additional
Superintendent of Police, CBI, ACB,
Ghaziabad. After investigation, a report
(charge sheet) under Section 173 of Cr.P.C.
was submitted on 4 July 2013, against the
applicant and other co-accused. It is alleged
in the charge sheet that applicant, owner of
M/s Kapil Medical Agencies, Moradabad,
supplied medicines to CMO Moradabad,
during 2007-2011 with respect to National
Programme for Control of Blindness and
was ultimate beneficiary. Investigation
further revealed that medicines worth
Rs.1,61,257/- was purchased after expiry of
the tender period from the firm of the
applicant without getting permission from
the competent authority. Payments thereof
was also made. The investigation shows
that bogus tenders were submitted by the
applicant to show competitive rates of the
firms. In the said fraud and forgery,
involvement of wife of the applicant has
also been found.

6. Special Judge, Ghaziabad took
cognizance on 16 December 2014, against
all the accused persons except Narendra
Jain and Shikla Jain and directed the CBI to
make further investigation with regard to
their role and culpability in this case by the
competent officer.

7. The sole submission advanced by
learned counsel for the applicant is that the
entire investigation conducted by an officer
below the rank of Inspector of police is
1 All. Vivek Jain Vs. C.B.I., ACB Ghaziabad
1047
vitiated and void in view of the mandate
under Section 17 of P.C. Act. It is urged
that the investigation was carried out by the
Sub Inspector of Police, CBI, ACB,
Ghaziabad. In support of his submission,
reliance has been placed on the decision
rendered by the Supreme Court in State of
Madhya Pradesh vs. Mubarak Ali, to
submit that investigation carried out by an
officer of a lower rank as mandated under
the statute would render the investigation
illegal and void.

8. In rebuttal, learned counsel
appearing
for
C.B.I.
submits
that
investigation was made pursuant to the
direction of this Court in PIL, followed by
preliminary
enquiry.
The
preliminary
enquiry was conducted by an officer of the
rank of Additional Superintendent of
Police, CBI. It is stated in the counter
affidavit that Special Judge, was pleased to
grant permission under Section 17 of the
P.C. Act to conduct investigation by the
Sub Inspector vide order dated 9 July 2013.
The
Investigating
Officer
after
investigation
submitted
charge
sheet
against the applicant and other accused
persons. The allegation in the charge sheet
and material/evidence in support thereof,
prima facie, makes out a case with regard
to the involvement of the applicant in
commission of the offence. In any case
since
the
Special
Judge,
has
taken
cognizance, any irregularity committed in
the investigation or during the investigation
would not set at naught the cognizance
order
which
is
independent
of
the
investigation.

9.

Rival
submissions
fall
for
consideration.

10. The only point pressed by the
learned counsel for the applicant is that the
investigation pursuant to the preliminary
enquiry could not have been conducted by
an officer below the rank mandated under
Section 17 of the P.C. Act. Section 17 reads
thus:

17. Persons authorised to investigate.--
Notwithstanding anything contained in the
Code of Criminal Procedure, 1973 (2 of
1974), no police officer below the rank,--

(a) in the case of the Delhi Special
Police Establishment, of an Inspector of
Police;

(b) in the metropolitan areas of Bombay,
Calcutta, Madras and Ahmedabad and in any
other metropolitan area notified as such under
sub-section (1) of section 8 of the Code of
Criminal Procedure, 1973 (2 of 1974), of an
Assistant Commissioner of Police;

(c)
elsewhere,
of
a
Deputy
Superintendent of Police or a police officer of
equivalent rank, shall investigate any offence
punishable under this Act without the order
of a Metropolitan Magistrate or a Magistrate
of the first class, as the case may be, or make
any arrest therefor without a warrant:

Provided that if a police officer not
below the rank of an Inspector of Police is
authorised by the State Government in this
behalf by general or special order, he may
also investigate any such offence without the
order of a Metropolitan Magistrate or a
Magistrate of the first class, as the case may
be, or make arrest therefor without a warrant:

Provided further that an offence referred
to in clause (e) of sub-section (1) of section
13 shall not be investigated without the order
of a police officer not below the rank of a
Superintendent of Police.

11. Sub clause (c) and the first
proviso of Section 17 of the P.C. Act is
applicable to the facts of the instant case.
The
provision
provides
that
notwithstanding anything contained in the
1048 INDIAN LAW REPORTS ALLAHABAD SERIES
Cr.P.C., no police officer below the rank of
Deputy Superintendent of Police or a police
officer of equivalent rank, shall investigate
any offence punishable under this Act
without the order of a Metropolitan
Magistrate or a Magistrate of the first class,
as the case may be, or make any arrest
therefor
without
a
warrant.
Proviso
provides if a police officer not below the
rank of an Inspector of Police is authorised
by the State Government in this behalf by
general or special order, he may also
investigate any such offence without the
order of a Metropolitan Magistrate or a
Magistrate of the first class, as the case
may be, or make arrest therefor without a
warrant.

12. In the given facts, preliminary
enquiry came to be instituted on the
direction of this Court, which was duly
conducted by an officer of the rank of
Additional Superintendent of Police. On
the strength of the preliminary enquiry, an
F.I.R. came to be lodged. Investigation was
carried out by an officer of the rank of Sub
Inspector of police.

13. The question that arises is as to
whether the investigation carried out
against the provisions contained in Section
17 of the P.C. Act would vitiate the
cognizance taken by the Special Judge.

14. It would be apposite to examine
the law on the point.

15. A similar question was raised
wayback in 1955 to consider the effect of
investigation carried out by a police officer
below the rank of Deputy Superintendent
of Police contrary to the mandate of P.C.
Act without the order of the Magistrate of
first class, whether it is mandatory or
directory. The Supreme Court in H.N.
Rishbud and Inder Singh v. The State of
Delhi5 observed that cognizance taken on
police report, vitiated by breach of
mandatory
provisions
relating
to
investigation, cannot be set aside unless the
illegality in the investigation can be shown
to have brought about a miscarriage of
justice.
The
relevant
observation
is
extracted:

"If, therefore, cognizance is in fact
taken, on a police report vitiated by the
breach of a mandatory provision relating to
investigation, there can be no doubt that the
result of the trial which follows it cannot be
set aside unless the illegality in the
investigation can be shown to have brought
about a miscarriage of justice. That an
illegality committed in the course of
investigation
does
not
affect
the
competence and the jurisdiction of the
Court for trial .................. invalidity of the
investigation has no relation to the
competence of the Court. We are, therefore,
clearly, also, of the opinion that where the
cognizance of the case has in fact been
taken and the case has proceeded to
termination., the invalidity of the precedent
investigation does not vitiate the result,
unless miscarriage of justice has been
caused thereby."

16. H.N. Rishbud (supra) came to be
considered in the case of Union of India
vs. Prakash P. Hinduja and another6,
wherein, the question raised was as
follows:

"10.
The
principal
question
which, therefore, requires consideration is
whether the Court can go into the validity
or otherwise of the investigation done by
the authorities charged with the duty of
investigation under the relevant statutes and
whether any error or illegality committed
1 All. Vivek Jain Vs. C.B.I., ACB Ghaziabad
1049
during the course of investigation would so
vitiate the charge-sheet so as to render the
cognizance taken thereon bad and invalid."

17. The Supreme Court relying on the
decision rendered in Prabhu v. Emperor7
and Lumbhardar Zutshi v. The King8
held that that if cognizance is in fact taken
on a police report initiated in breach of a
mandatory
provision
relating
to
investigation, there can be no doubt that the
result of the trial, which follows it, cannot
be set aside unless the illegality in the
investigation can be shown to have brought
about a miscarriage of justice. An illegality
committed in the course of investigation
does not affect the competence and the
jurisdiction of the court for trial. The Court
in the facts arising therein held that this
being the legal position, even assuming for
the sake of argument that the CBI
committed an error or irregularity in
submitting the charge sheet without the
approval
of
Chief
Vigilance
Commissioner9, the cognizance taken by
the learned Special Judge on the basis of
such a charge sheet could not be set aside
nor could further proceedings in pursuance
thereof be quashed, (Refer: Abhinandan
Jha v. Dinesh Mishra10; Vineet Narain
& others v. Union of India11; and State
of Bihar v. J.A.C. Saldanha12).

18. In Kanwal Tanuj v. State of
Bihar and others13 when an offence
committed in the Union Territory and one
of the accused residing/employed in some
other
State
outside
the
said
Union
Territory. The question posed was whether
C.B.I. under the provisions of Delhi Special
Police Establishment Act, 1946 (in short
''DSPE Act'), could appear to investigate
the same, unless there was a specific
consent given by the concerned State under
Section 6 of the DSPE Act. The Supreme
Court rejected the said contention holding
that if the offence is committed in Delhi,
merely because the investigation of the said
offence incidentally transcends to the
territory of State of Bihar, it cannot be held
that the investigation against an officer
employed in the territory of Bihar cannot
be permitted, unless there was specific
consent under the DSPE Act.

19. The principle spelled out in the
authorities referred to hereinabove was
again reiterated by the Supreme Court in
M/s Fertico Marketing and Investment
Pvt. Ltd. And others v. Central Bureau
of Investigation and another14.

20. The question then requires to be
considered whether and to what extent the
trial which follows such investigation is
vitiated. The trial follows cognizance and
cognizance is preceded by investigation.
This is the basic scheme of the Code in
respect of cognizable cases. But it does not
necessarily
follow
that
an
invalid
investigation nullifies the cognizance or
trial based thereon. The court is not
concerned with the effect of the breach of a
mandatory
provision
regulating
the
competence or procedure of the court as
regards cognizance or trial. It is only with
reference to such a breach that the question
as to whether it constitutes an illegality
vitiating the proceedings or a mere
irregularity. A defect or illegality in
investigation, however serious, has no
direct bearing on the competence or the
procedure relating to cognizance or trial.
No doubt a police report which results from
an investigation is provided in Section 190
of Cr.P.C. as the material on which
cognizance is taken. But it cannot be
maintained that a valid and legal police
report is the foundation of the jurisdiction
of the court to take cognizance. Clauses (a),
1050 INDIAN LAW REPORTS ALLAHABAD SERIES
(b) and (c) of Section 190(1) Cr.P.C. are
conditions
requisite
for
taking
of
cognizance, it is not possible to say that
cognizance on an invalid police report is
prohibited and is therefore a nullity.

21. In Mubarak Ali (supra) relied upon by
the learned counsel for the applicant is of no
assistance in the facts of the present case. The
Court observed that the statutory safeguard
provided under Section 5A of the P.C. Act must
be strictly complied with, for they were
conceived in public interest and were provided
as a guarantee against frivolous and vexatious
prosecution. The Magistrate's status gives
assurance to the bona fide of the investigation.
The Court expressed the view that it hopes and
trust that investigations under the P.C. Act
would be conducted in strict compliance with
the provisions of the P.C. Act. The decision is
not an authority on the proposition of law that
the cognizance and the consequential trial
pursuant to the charge sheet would vitiate
merely for the reason that the investigation was
not carried out by the competent officer as
mandated under the P.C. Act.

22. Mubarak Ali was considered in
State of U.P. v. Bhagwant Kishore Joshi15,
wherein, question posed before the Supreme
Court was as to whether High Court was
justified in setting aside the conviction on the
ground that the first stage of investigation was
contrary to the provisions of the P.C. Act. The
facts arisen therein was that initially an officer
below the rank of Deputy Superintendent of
Police had conducted the investigation, on
realization that Investigating Officer is not
competent, subsequently, an order was obtained
from the concerned Magistrate to investigate
the offence. High Court set aside conviction on
the ground that there was a breach of the
mandatory safeguard of the P.C. Act in as much
as that the first stage of the investigation was
contrary to the provisions of the P.C. Act. But
the court was of the view that it (High Court)
did not consider the other question whether the
said breach caused prejudice to the accused in
the matter of' his trial. The Court reversed the
judgment of the High Court on being satisfied
no prejudice has been caused to the accused.

23. In the facts of the case at hand,
applicant is not a public servant and there is no
pleadings with regard to prejudice caused to
him or miscarriage of justice on account of the
enquiry being conducted by an officer of the
rank below that of the Deputy Superintendent
of Police/Inspector. The assertion of the C.B.I.
that an order to that effect was obtained from
the Special Judge to entrust the investigation to
a officer of the the rank of Sub Inspector has not
been denied. Even otherwise the applicant has
not alleged any prejudice or illegality in the
course of investigation that brought about
miscarriage of justice or caused prejudice to the
applicant.

24. On specific query, learned counsel for
the applicant has failed to point out any
illegality, infirmity or jurisdictional error either
in the impugned charge sheet or impugned
order.

25. The application under Section 482 is,
hereby, rejected.
----------

(2021)01ILR A1050
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 02.12.2020

BEFORE

THE HON'BLE DINESH PATHAK, J.

Crl. Misc. Appl. u/s 482 No. 12620 of 2020

Dinesh @ Ganeshi & Ors. ...Applicants
Versus
State of U.P. & Anr. ...Opp. Parties