# M.C.MEHTA v. UNION OF INDIA AND ORS

- **Citation:** [2006] Supp. 9 S.C.R. 683
- **Court:** Supreme Court of India
- **Decided:** 2006-11-27
- **Bench:** S.B. Sinha, S.H. Kapadia, D.K. Jain
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/m-c-mehta-v-union-of-india-and-ors-22083
- **Pages:** 29

## Headnote

B
Environmental Law:
Public Interest Litigation-Taj Trapezium Zone (TTZ)-Taj Heritage
Corridor-Supreme Court monitored cases-Ordered a CBI enquiry as to C
who Cleared the Taj Heritage Corridor project, for what purpose it was
cleared and why it was cleared without the sanction of the competent
authority-In that order this Court had specifically directed the CBI Officer
lo interrogate the persons involved and also to verify their assets because
it was alleged that an amount of Rs. 17 crores was released without proper D
sanction-The Director, CBI filed a Status Report relying on the opinion of
the Attorney General for India and also indicated that action would be taken
to file a closure report under S. 173 Cr.P.C.-Correctness of-Held:
Investigation of an offence is the field exclusively reserved for the policeBut the court's jurisdiction to have control in this behalf is beyond any
controversy-The Magistrate alone has the final say in the matter-The E
Director, CBI has not given his independent opinion-He has merely relied
upon the opinion of the Attorney General-Since there was no difference of
opinion, there was no question of the Director, CBI referring the matter to
the Attorney Genera/for India-The Status Report dated 31.12.2004 is rejecte,d
as it is a charade of the performance of duty by the CBl~Bl directed to
place evidence/material collected during its investigation before Court in F
accordance with S. 173(2) Cr.P.C.-Delhi Special Police Establishment Act,
1946, S. 2-Code of Criminal Procedure, 1973, S. 173(2)~onstitution of
India, 1950, Arts. 32 and 142-CBl (Crime) Manual, 2005, Clauses 6.1 and
19.15.
The State Government started a project known as Taj Heritage Corridor G
to divert the Yamuna and to reclaim 75 acres between Agra Fort and the Taj
and use the reclaimed land for constructing food plazas, shops and amusement
activities in terms of development of heritage Corridor for Taj Trapezium Zone
(TTZ) at Agra. This led to the filing of an Interlocutory Application in a Civil
683
H
684
SUPREME COURT REPORTS [2006] SUPP. 9 S.C.R.
A Writ Petition pending before this Court. This Court ordered a Central Bureau
of Investigation (CBI) enquiry as to who cleared the project, for what purpose
it was cleared and why it was cleared without the sanction of the competent
authority. In that order this Court had specifically directed the CBI Officer
to interrogate the persons involved and also to verify their assets because it
B was alleged that an amount of Rs. 17 crores was released without proper
sanction.
Pursuant to the aforesaid order, a report was submitted by the CBI.
Considering the serious irregularities/illegalities committed in carrying out
the so-called Taj Heritage Corridor project, this Court, inter alia, directed
C the CBI to register an FIR and make further investigation in accordance with
law. By the said order, the CBI was directed to take appropriate steps for
holding investigations against the former Chief Minister and the former
Minister for Environment. The CBI was also directed to make investigations
against other officers and persons involved in the matter.
D
The Director, CBI submitted his Status Report in which he opined that,
E
in view of the opinion of the Attorney General for India that in the absence of
any evidence to suggest criminal mens rea on the part of any individual and
due to lack of evidence, the evidence was not sufficient to launch prosecution.
He further submitted that action would be taken to file a closure report under
Section 173 of the Code of Criminal Procedure, 1963.
Disposing of the application, this Court
HELD: Per S.H. Kapadia, (for himself and Jain, J)
l. At the outset, it is stated that this Court has repeatedly emphasized
F that in the Supreme Court monitored cases this Court is concerned with
ensuring proper and honest performance of its duty by the Central Bureau of
Investigation (CBI) and that this Court is not concerned with the merits of
the accusations in investigation

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....
M.C.MEHTA
A
v.
UNION OF INDIA AND ORS.
NOVEMBER 27, 2006
[S.B. SINHA, S.H. KAPADIA AND D.K. JAIN, JJ.)
B
Environmental Law:
Public Interest Litigation-Taj Trapezium Zone (TTZ)-Taj Heritage
Corridor-Supreme Court monitored cases-Ordered a CBI enquiry as to C
who Cleared the Taj Heritage Corridor project, for what purpose it was
cleared and why it was cleared without the sanction of the competent
authority-In that order this Court had specifically directed the CBI Officer
lo interrogate the persons involved and also to verify their assets because
it was alleged that an amount of Rs. 17 crores was released without proper D
sanction-The Director, CBI filed a Status Report relying on the opinion of
the Attorney General for India and also indicated that action would be taken
to file a closure report under S. 173 Cr.P.C.-Correctness of-Held:
Investigation of an offence is the field exclusively reserved for the policeBut the court's jurisdiction to have control in this behalf is beyond any
controversy-The Magistrate alone has the final say in the matter-The E
Director, CBI has not given his independent opinion-He has merely relied
upon the opinion of the Attorney General-Since there was no difference of
opinion, there was no question of the Director, CBI referring the matter to
the Attorney Genera/for India-The Status Report dated 31.12.2004 is rejecte,d
as it is a charade of the performance of duty by the CBl~Bl directed to
place evidence/material collected during its investigation before Court in F
accordance with S. 173(2) Cr.P.C.-Delhi Special Police Establishment Act,
1946, S. 2-Code of Criminal Procedure, 1973, S. 173(2)~onstitution of
India, 1950, Arts. 32 and 142-CBl (Crime) Manual, 2005, Clauses 6.1 and
19.15.
The State Government started a project known as Taj Heritage Corridor G
to divert the Yamuna and to reclaim 75 acres between Agra Fort and the Taj
and use the reclaimed land for constructing food plazas, shops and amusement
activities in terms of development of heritage Corridor for Taj Trapezium Zone
(TTZ) at Agra. This led to the filing of an Interlocutory Application in a Civil
683
H
684
SUPREME COURT REPORTS [2006] SUPP. 9 S.C.R.
A Writ Petition pending before this Court. This Court ordered a Central Bureau
of Investigation (CBI) enquiry as to who cleared the project, for what purpose
it was cleared and why it was cleared without the sanction of the competent
authority. In that order this Court had specifically directed the CBI Officer
to interrogate the persons involved and also to verify their assets because it
B was alleged that an amount of Rs. 17 crores was released without proper
sanction.
Pursuant to the aforesaid order, a report was submitted by the CBI.
Considering the serious irregularities/illegalities committed in carrying out
the so-called Taj Heritage Corridor project, this Court, inter alia, directed
C the CBI to register an FIR and make further investigation in accordance with
law. By the said order, the CBI was directed to take appropriate steps for
holding investigations against the former Chief Minister and the former
Minister for Environment. The CBI was also directed to make investigations
against other officers and persons involved in the matter.
D
The Director, CBI submitted his Status Report in which he opined that,
E
in view of the opinion of the Attorney General for India that in the absence of
any evidence to suggest criminal mens rea on the part of any individual and
due to lack of evidence, the evidence was not sufficient to launch prosecution.
He further submitted that action would be taken to file a closure report under
Section 173 of the Code of Criminal Procedure, 1963.
Disposing of the application, this Court
HELD: Per S.H. Kapadia, (for himself and Jain, J)
l. At the outset, it is stated that this Court has repeatedly emphasized
F that in the Supreme Court monitored cases this Court is concerned with
ensuring proper and honest performance of its duty by the Central Bureau of
Investigation (CBI) and that this Court is not concerned with the merits of
the accusations in investigation, which are to be determined at the trial on
the filing of the charge-sheet in the competent court, according to the ordinary
procedure prescribed by law. Therefore, the question which has to be decided
G is whether the administrative hierarchy of officers in the CBI, in the present
case, has performed their duties in a proper and honest manner.
(705-F, G, HJ
2. The formation of the opinion, whether or not.there is a case to place
the accused on trial, should be that of the officer-in-charge of the police station
H and none else. Under the CBI Manual, the officer-in-charge of the police
-
M.C. MEHTA v. U.0.1.
685
station is the S.P. In this connection, the CBI Manual, though not binding on A
this Court in Supreme Court monitored cases, nonetheless, throws light on
the controversy in hand. 1706-A, BJ
CBI (Crime) Manual, (2005), Clauses 6.1 and 19.15, referred to.
3. In the present case, the investigating team consisted of the 1.0., S.P., B
D.I.G., Joint Director and Additional Director CBI. In the present case, the
law officers consisted of D.L.A. and A.L.A. In the present case, the entire
investigating team as well as the said law officers are ad idem in their mind.
They have recommended prosecution. It is only the Director of Prosecution
and the Sr. P.P. who have opined that a closure report should be filed. It may C
be noted that the Sr. P.P. does not find place in clause 6.1 of the CBI Manual
which refers to the administrative hierarchy of the CBI. Further, the Director
of Prosecution is the only officer who had dissented from the opinion of the
investigating team including the S.P. It appears that this opinion is also based
only on the interpretation of legal evidence. Moreover, as can be seen from
the Status Report dated 31.12.2004, the Director, CBI has not given his D
independent opinion. He has merely relied upon the opinion of the Attorney
General. One can understand the Director, CBI expressing an opinion and
then referring the matter to the Attorney General. Under the above
circumstances, there was no difference of opinion in the matter of
investigation between the concerned officers of the CBI and, therefore, there
was no question of the Director, CBI referring the matter to the Attorney E
General for India. (706-G, H; 707-A, B, q
H.N Rishbud and Inder Singh v. State of Delhi, (1955) l SCR 1150;
Abhinandan Jha v. Dinesh Mishra, (1967) 3 SCR 668; Union of India v. Sushi!
Kumar Modi, [1996] 6 SCC 500; Union of India v. Sushi! Kumar Modi, (1997) F
4 SCC 770; Vineet Narain v. Union of India, (1996] 2 SCC 199; Vineet Narain
v. Union of India, [1998) 1 SCC 226 and Union of India v. Prakash P. Hinduja,
(2003] 6 SCC 195; K. Veeraswami v. Union of India, (1991) 3 SCC 655;
Kaplan Singh v. State of M.P., (1997) 6 SCC 185 and R. Sara/av. T.S. Velu,
(2000) 4 sec 459, relied on.
Satya Narain Musadi v. State of Bihar, (1980) 3 SCC 152 and Vijender
v. State of Delhi, (1997) 6 SCC 171, cited.
G
4. Under Article 142 of the Constitution, this Court is empowered to
take the aid and assistance of any Authority for doing complete justice in any
cause or matter pending before it. In the present case, at one stage of the H
686
SUPREME COURT REPORTS [2006] SUPP. 9 S.C.R.
A matter, voluminous records were placed by CBI before this Court along with
the recommendations of its officers. To vet and analyse the,material, this
Court essentially directed CVC to study the material, analyse the findings
and give its recommendations as to the manner in which the investigations
have been carried out Since CVC has fairly stated before this Court that its
advice is only in the nature of an opinion which is not a binding direction in
B this case, it is not required to examine the scope of the eve Act, 2003.
Secondly, in an earlier case, time was given to the CBI to complete legal
scrutiny as there was difference of opinion in the adm~nistrative hierarchy of
the CBI. However, after going through the recommendations of the above
officers, it is found that there was no difference of opinion of the concerned
C officers and, therefore, there was no question of reference to the Attorney
General. The Status Report dated 31.12.2004 is rejected as it is a charade of
the performance of duty by the CBI. Thus, a case for judicial review is made
out. (707-G, H; 708-A, B, CJ
5. The CBI is directed to place the evidence/material collected by the
D investigating team along with the report of the S.P. as required under Section
173(2) Cr.P.C. before the concerned court/Special Judge who will decide the
matter in accordance with law. It is necessary to add that, in this case, this
Court is concerned with ensuring proper and honest performance of duty by
the CBI and the above observations and reasons are confined only to that aspect
E of the case and they should not be understood as the opinion of this Court on
the merits of the accusation being investigated. No opinion is expressed on
the recommendations of the S.P. It is made clear that none of the opinions/
recommendations including those of the Attorney General for India and CVC
shall be forwarded to the concerned Court/Special Judge. (708-C, D, E)
F
6. In matters after matters, it is found that the efficacy and ethics of
the Governmental authorities are progressively coming under challenge
before this Court by way of PIL for failure to perform their statutory duties.
If this continues, a day might come when the rule of law will stand reduced to
"a rope of sand". (708-E, FJ
G
Per Sinha, J, (concurring)
1. The Central Bureau oflnvestigation is subject to the Code of Criminal
Procedure, 1973. In case of conflict, although none has been pointed out,
evidently, the Code of Criminal Procedure shall prevail Even under ordinP.ry
law, the investigating officer has a statutory duty to investigate into an offence
H upon receipt of a First information Report as envisaged under Section 154 of
M.C. MEHTA v. U.0.1.
687
the Code of Criminal Procedure. Section 157 thereof provides for the A
procedure for investigation, whereof the only duty cast on the investigating
officer is to maintain his case diary in terms of Section 172 of the Code of
Criminal Procedure. [709-G, H; 710-A]
State of Bihar v. P.P. Sharma, [1992] Supp. 1 SCC 222, relied on.
Vineet Narain v. Union of India, [1998) 1 SCC 226 and State of Bihar B
v. JA.C. Sa/danha, (1980) 1 SCC 554, referred to.
2.1. It is beyond any doubt or dispute that investigation of an offence is
the field exclusively reserved for the police. It may be subject to supervision
of higher ranking officer(s) but the court's jurisdiction to have control in
this behalf is beyond any controversy. [710-BI
C
2.2. It is the Magistrate alone who has the final say in the matter.
(711-D)
Sheonandan Paswan v. State of Bihar, (1987) 1 SCC 288; S.N. Sharma
v. Bipin Kumar Tiwari, (1970) 1SCC653 and Hemani Dhasmana v. CBI, (2001)
1 sec 536, relied on.
D .
ClVIL ORIGINAL JURISDlCTlON : I. A. No. 43 I
IN
WRIT PETITION (CIVIL) NO. 13381of1984.
(Under Article 32 of the Constitution of India.)
WITH
I.A. Nos. 45 I, I.A. Nos. 438, 439, 442-443, 445 and 447 in I.A. No. 43 I,
I.A. No.440 and I.A. No. 441 in I.A. No. 440 in W.P. (C) No. 13381/1984.
E
Ghoolam Vahanvati, S.G., S.M.A. Kazmi, Adv. Gen. Ajay Siwach, A.A.G., p
K.K. Venguopal S.C. Mishra, R.K. Jain, M.N. Rao, Krishan Mahajan (A.C.)
M.C. Mehta, Shipla Chohan, Jitendra Chaudhary, Lalita Kaushik, P.K.
Chakravarti, Shail Kr. Dwivedi, G.V. Rao, Nakul Dubey, Rakesh K. Khanna, Dr.
Rashmi Khanna, Surya Kant, S.B. Upadhyay, Shiraj C. Patodia, A.D.N. Rao,
U.S. Prasad, Atishi Dipankar, Nikhil Nayyar, P. Panneshwaran, Vijay Panjwani,
Pradeep Mishra, Nikhil Nayyar, Ankit Singhal, V.B. Balramdas, Ashok K. G
Srivastava, Saurabh Trivedi, Manjeet Singh, T.V. George, Ajay Kr. Aggarwal,
Binu Tamta, Sanjay R. Hegde, Anil Kr. Mishra, S. Wasim A. Qadri, Rajeev
Dubey, Kamlendra Mishra, Rashmi Singh, K.K. Mohan, Vishwajit Singh, Anil
Katiyar, Mridula Ray Bhardwaj and Aruneshwar Gupta, for the appearing
parties and Ajay K. Aggarwal Applicant/Petittioner-In-Person.
H
688
SUPREME COURT REPORTS [2006] SUPP. 9 S.C.R.
A
The Judgment of the Court was delivered by
KAPADIA, J. Delay condoned in I.A. No. 443 in I.A. No. 431 in W.P.
(C) No. 13381/84.
A purported vertical difference of opinion in the administrative hierarchy
B in CBI between the team of investigating officers and the law officers on one
hand and Director of Prosecution on the other hand on the question as to
whether there exists adequate evidence for judicial scrutiny in the case of
criminal misconduct concerning Taj Heritage Corridor Project involving 12
accused including former Chief Minister has resulted in the legal stalemate
which warrants interpretation of Section 173(2) Cr. PC.
c
BACKGROUND FACTS:
On 25.3.2003, the Uttar Pradesh Government started a project known as
Taj Heritage Corridor Project (hereinafter referred to as "the project") to divert
the Yamuna and to reclaim 75 acres between Agra Fort anci the Taj and use
D the reclaimed land for constructing food plazas, shops and amusement activities
in tenns of development of Heritage Con-idor for Taj Trapezium Zone (hereinafter
referred to as the "TTZ") at Agra. This led to the filing of an I.A. No. 387
in Civil Writ Petition No. 13381/84 pending in this Court. Vide Order dated
16.7.2003 this Court observed that, it was painful that the concerned persons
E in power are trying to damage or endanger the World Heritage by their hasty/
irregular/ illegal activities. By the said order, this Court directed a detailed
inquiry as to who cleared the project, for what purpose it was cleared, and
why it was cleared without the sanction of the competent authority. This
Court also inquired as t? whether their exists any illegality or irregularity and,
if so, this Court called for the names of the concerned officers/ persons.
F Accordingly by the said order, a CBI inquiry was ordered. A report on the
preliminary inquiry was called for from CBI within four weeks.
By Order dated 21.8.2003 in I.A. No. 376 in Writ Petition (C) No. 13381/
84 this Court ordered CBI to verify from the assets of the officers/persons as
G to whether there was any flow of funds into their accounts from the state
exchequer. This order was passed on the basis of the confidential report
submitted by CBI to this Court under which it was reported that a sum of Rs.
17 crores were released from the state exchequer without proper sanction of
the competent authority.
H
By Order dated 18.9.2003 in I.A. No. 376 in Writ Petition (C) No. 13381/
M.C. MEHTA v. U.0.1. [KAPADIA, J.]
689
'·
84 this Court after reciting the above facts noted the contents of the report A
submitted by CBI on 11.9.2003, which report recorded the following
conclusions:
"15. An amount of Rs. 17 crores was unauthorisedly released by Shri
R.K. Sharma, Secretary, Environment, U.P. without the approval
of the departmental Minister. (Ref. Para 3.1.E.4 page 64 and para B
3.l.E.31, page 81)
16.
Contrary to the provisions existing in the State Government which
require that in case of every non-recurring expenditure of Rs. 5
crores and above, approval of the Expenditure Finance Committee
(EFC) of the State Government is required, no such approval was c
either soughl or obtained before sanctioning the amount of Rs.
17 crores (Ref. Para 3. l .E.11, page 67).
17.
An amount of Rs. 20 crores was sanctioned by Shri Naseemuddin
Siddiqui, the then Minister of Environment, U.P. for release without
..
approval of DPRs and techno-feasibility reports and without D
clearance of the Expenditure Finance Committee (EFC) of the
State Government and CCEA, Government of India (Ref. Para
3. l.E.39, page 86).
18.
Shri Siddiqui subsequently tampered with the file and made
interpolations in the Government records with an objective to E
cover up the fact that he had sanctioned Rs. 20 crores on 21 /05/
2003. (Ref. Para 3.1.E.40 (1 and 2) page 87).
19.
Shri Siddiqui and Dr. V.K. Gupta, the present Secretary,
Environment, U.P. pressurized Shri Rajendra Prasad, Under
Secretary, Environment Department, U.P. who also tampered with F
the file and made interpolations to cover the fact that the Minister
had sanctioned Rs. 20 crores. (Ref. Para 3.l.E.37, page 86).
20.
Shri K.C. Mishra, Secretary, Environment and Forest Government
of India tampered with the file and made interpolations in
Government records in order to cover up his omissions of not G
approving the proposals of his Joint Secretary and Special
Secretary for writing to the State Government for a report and to
ask them to carry out work only after necessary approvals and
clearances. He obscured some portions of the notes dated 2 \I\(}/
2002 and 08/05/2003 of Dr. Saroj, Additional Director, Ministry of
Environment and Forest so as to show that he was not a part of H
690
SUPREME COURT REPORTS [2006] SUPP. 9 S.C.R.
A
the decision making and had not shown his consent to the
proposed project. (Ref. Para 3.1.E.42 page 89).
21.
Central Forensic Science Laboratory has given a report that
interpolations were made in the files by Shri Naseemuddin Siddiqui,
the then Minister, U.P., Shri Rajendra Prasad, Under Secretary,
B
U.P. and Shri K.C. Misra, Secretary, Environment and Forests,
Government oflndia (Ref. Para 3. l.G .21, pages 106-107 and 3. l.E.44
(5-6), page 90)."
Accordingly, this Court inter alia directed CBI to register an FIR and
make further investigation in accordance with law. By the said order, CBI was
C also directed to take appropriate steps for holding investigations against the
former Chief Minister, Ms. Mayawati, and Mr. Nasimuddin Siddiqui, former
Minister for Environment, U.P .. CBI was also directed to make investigations
against other officers mentioned hereinabove. By the said order the Income
Tax department was also directed to cooperate with CBI in further investigation.
By the said order, CBI was directed to take into consideration the provisions
D of the IPC, the Prevention of Corruption Act, 1988 and the Water (Prevention
and Control of Pollution) Act, 1974.
By order dated 19.7.2004 in I.A. No. 376 etc. in Writ Petition (C) No.
13381/84 this Court directed CBI to furnish a self-contained note in respect
E of its findings against the officers of the State Government/ Central
Government. CBI was given eight weeks time to complete the investigation
in respect of FIR No. RC.18 and three months time was granted to complete
the investigation in respect of FIR No. RC.19.
By Order dated 25. l 0.2004 in I.A. "No. 376 etc. in Writ Petition (C) No.
F 13381/84 this Court noted that two disciplinary enquiries were required to be
instituted by the State Government against Shri Punia, former Principal Secretary
to C.M., U.P .. This was because CBI had submitted two distinct notes. On
25.10.2004 the departmental enquiry on CBI note I stood completed. However,
learned counsel appearing for the State of U.P. submitted that in the absence
of CBI furnishing to the disciplinary authority the statement of the former
G Chief Minister, the second disciplinary proceeding could not be initiated by
the State against Shri Punia. This aspect is important. The case of Shri Punia
was that he had acted under oral instructions of the former Chief Minister.
This was required to be enquired into by the departmental enquiry, therefore,
the State requested CBI to furnish the statement of the former Chief Minister
H which CBI had collected during investigation under RC.18. At that stage, time
--·
M.C. MEHTA v. U.0.I. [KAPADIA, J.]
691
was sought by the CBI on the ground that investigation into RC.18 was A
nearing completion and that CBI was awaiting legal scrutiny of the matter.
Therefore, this Court adjourned the matter stating that the second disciplinary
enquiry against Shri Punia arising out of CBI note II stands deferred until
availability of the statement of the former Chief Minister of the State. That
statement was ordered to be given to the State Government within three
weeks. It was further ordered that, if within three weeks CBI failed to make B
available the said statement then the State Government will proceed with the
initiation of disciplinary enquiry against Shri Punia on the basis of the material
available. Accordingly, tbis Court adjourned the matter stating that after legal
scrutiny the report shall be submitted before this Court.
In the meantime, CBI submitted its report with detailed Annexures c
running into hundreds of pages.
By order dated 14.3.2005 in I.A. No. 431 in Writ Petition (Civil) No.
13381/84, since the report of CBI was voluminous, this Court after going
through the provisions of the Central Vigilance Commission Act, 2003 D
(hereinafter referred to as the "CVC Act") directed the records relating to
prosecution of twelve accused be placed before the Central Vigilance
Commission (hereinafter referred to as the "CVC") for scrutiny and
recommendation. CVC was added as a party. Basically this Court wanted CVC
to analyse the Report of CBI and give to the Court the summary of
recommendations of various officers in the administrative hierarchy of CBI as E
the Court was informed that there was divergence of opinion between them.
To complete the chronology of orders passed by this Court, we may
point out that the Director, CBI submitted his Status Report as on 31.12.2004
to this Court in which he stated as follows:
"5. As regards investigation ofRC0062003AOOl8, it is submitted that
as there was difference of opinion between the officers of CBI in
relation to the implication of individuals in the case, the matter was
referred to the learned Attorney General of India through the Ministry
F
of Law for obtaining his esteemed opinion in this case. The learned G
Attorney General has since given his considered opinion that in
absence of any evidence to suggest criminal mens rea on the part of
any individual and due to lack of evidence of any pecuniary benefit
to any of the officers or any other person, the proper course of action
would be to take disciplinary action against the officers for their
H
692
SUPREME COURT REPORTS [2006] SUPP. 9 S.C.R.
A
om1ss10n and misconduct. I have gone through the report of
investigation, comments of various officers including the opinion of
the Learned Attorney General and I am of the opinion that the evidence
is not sufficient to launch prosecution.
6. As disciplinary action has already been initiated by the authorities
B
concerned on the direction of Hon'ble Supreme Court, action will be
taken by filing a closure report under section 173 Cr. PC in the
competent court incorporating all the facts/ circumstances revealed
during the course of investigation."
CONTENTIONS:
c
Shri Krishan Mahajan, learned amicus curiae would submit that in the
instant case, at the present stage, the question is of investigation and not of
prosecution. Under tqe Code of Criminal Procedure (Cr. PC), i'lvestigation
consists of : site inspection, ascertainment of the facts and circumstances of
the case, discovery and arrest of the suspected offender, collection of evidence
D relating to the commission of the offence which may consist of the examination
of various persons, the search and seizure and, lastly, formation of opinion
as to whether on the material collected there is a case to place the accused
before a Magistrate for trial, and if so, taking the necessary steps for the same
by the filing of a charge-sheet under Section 173 Cr. PC. Learned counsel
E submitted that the final step in the investigation, namely, formation of the
opinion is to be of the officer in charge of the police station. This authority
cannot be delegated although a provision entitling superior officers to supervise
or participate is there under Sections 158 and 173(3) Cr. PC. Learned Counsel
urged that the officer in charge of the police station or the investigating
officer is the sole person who has to form the opinion under Section 173 Cr.
F PC and file the police report. In this connection, learned counsel pointed out
that in this case Shri D.C. Dwivedi, Deputy Superintendent of Police, CBl,
Anti Corruption Bureau, Lucknow was the 1.0 .. He had filed the F.l.R. with
thirteen sheets attached to it, registering a regular case after series of preliminary
reports submitted to this Court in I.A. Nos. 376/03 and 431/05 filed by the
G amicus curiae. This case was assigned to the 1.0. by Shri K. N. Tiwari,
Superintendent of Police, CBI, Anti Corruption Bureau, Lucknow. According
to the learned counsel, the functions of the magistracy and the police are
entirely different and though in the circumstances of a given case the
Magistrate may or may not accept the report, he cannot infringe upon the
jurisdiction of the police by compelling the police to change its opinion.
H Learned counsel submits that a field of activity reserved for the police and
M.C. MEHTA v. U.O.I. [KAPADIA, J.]
693
the executive has been expressly carved out under the Cr. PC.
Learned counsel further submitted that, the 1.0. works under the entire
CBI hierarchy; that the S.P. works under his supervisory officer of DIG rank
A
in terms of the CBI (Crime) Manual-2005 (hereinafter referred to as the
"Manual"). But this entire administrative structure of the CBI has to function
according to the provisions of the Cr.PC in the matter of investigation, in the B
matter of filing the charge-sheet/ final report under Section 173(2) and the
superior officers of CBI cannot substitute the opinion of the S.P. if that
opinion states that a case on the material gathered during the investigation
has been made out. Similarly, if the S.P. opines on the basis of the material
collected that no case is made out, such an opinion cannot be substituted C
by the higher hierarchy of the officers in CBI. In this connection, it is pointed
out that, in the present case, the FIR registered is for offences under Section
120B r/w Sections 420, 467, 468, 471 IPC as also under Section 13(2) r/w
Section 13(i)(d) of the P.C. Act, 1988. It was urged that there are no separate
provisions in the Delhi Special Police Establishment Act, 1946 or the P.C. Act,
1988 as to the manner or the steps to be taken in the investigation of such D
offences and, therefore, though the investigation is conducted by the CBI,
the provisions under Chapter XII of the Cr. PC would equally apply to such
investigation. Learned counsel submitted that the position of the entire
hierarchy of CBI in the matter of filing of police report by the S.P. and
formation of the opinion by the S.P. on the basis of the evidence collected E
during the investigation is to be seen in the context of fair and impartial
investigation. He is the Officer-in-charge of the police station. Learned counsel,
therefore, submitted that in a Supreme Court monitored investigation the S.P.
has to file his report before the Supreme Court only and not before the entire
hierarchy of CBI whose only role is to supervise investigation. This hierarchy
of CBI, according to the learned counsel, cannot make the S.P. to change his F
opinion. They cannot substitute the opinion of the S.P. with their own opinion.
Learned counsel further contend that, in a Supreme Court monitored
investigation even where the report of the S.P. is a closure report and the
Director, CBI and Attorney General agree with the opinion of the S. P., still
it is the duty of the CBI to olace the entire material before the Supreme Court
and it is for the Court to examine and be satisfied that the authorities have G
reasonably come to such conclusion.
It was next urged that the Director of Prosecution in the CBI has no role
to play at the stage of investigation which includes formation of an opinion
by the S.P.
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SUPREME COURT REPORTS [2006] SUPP. 9 S.C.R.
A
Shri Rao, learned senior counsel on behalf of the eve submitted that
pursuant to the directions of the Supreme Court dated 14.3.2005 eve had·
examined the records of CBI made available to it. The CVC had also called
for further infonnation from CBI. After vetting the entire record, CVC had
submitted its report to this Court on 9.5.2005. Learned counsel submitted that
under Section 8(l)(a) of the CVC Act, the CVC is empowered to exercise
B superintendence over the functioning of CBI insofar as it relates to the
investigation of offences alleged to have been committed under the P.C. Act,
1988 and, therefore, when the CBI investigates under the P.C. Act, 1988
against public servants serving in connection with affairs of a State
Government, such investigation is subject to the superintendence of CVC.
c This submission was made on behalf of eve because it was argued on behalf
of some of the accused that CVC had no power of superintendence of cases
involving public servants employed in connection with affairs of the State
Government.
Learned counsel for CVC submitted that in order to fulfill the
D responsibility of exercising superintendence over the functioning of CBI
insofar as it relates to investigations of offences under the P.C. Act, 1988, the
CVC is entitled to scrutinize investigation reports of the CBI. at any stage
before filing of charge-sheets/ closure reports. For this purpose, eve is
empowered to issue suitable advice in cases under investigation. Such advice,
E according to the learned counsel, is in the natur\! of an opinion, and not a
binding direction.
On the facts of the case, learned counsel for CVC urged that, in the
present case the preliminary inquiry as well as the investigation were conducted
by the CBI against the former ChiefMinister, officers of the State Government
F and others under the direction of this Court. It was the Supreme Court which
had referred the matter to eve and, therefore, the eve was bound to submit
its report. In the circumstances, learned counsel submitted that, it cannot be
said that the report of the CVC is vitiated by any illegality or irregularity since
the Supreme Court has absolute power under Article l 42 of the Constitution
to pass any order as is necessary for doing complete justice in any cause or
G matter pending before it.
H
Shri Venugopal, learned senior counsel appearing on behalf of the
former Chief Minister submitted that this Court should be loathe to interfere ·
in investigation since it is a field of activity reserved for the police and the
executive. He submitted that, in the present case, we are still at the stage of
,,
l
. _;..
M.C. MEHTA v. U.O.I. [KAPADIA, J.]
695
investigation and unless an extraordinary case of gross abuse of power is A
made out, no ·interference is called for under Article 32 of the Constitution.
Learned counsel fm1her submitted that, in the present case, CVC had no role
to play, particularly since the case pertains to conduct of the officers who are
the employees of the State Government. Learned counsel submitted that
public servants serving in connection with affairs Qf the State Government fell
outside the powers of eve. Learned counsel submitted that, in any event, B
CVC had no power to direct the manner in which CBI will conclude the
proceedings. Learned counsel ·submitted that the opinion as to whether the
case is made out for judicial scrutiny or not has to be the decision of CBI
and unless there is gross abuse of power this Court should not intervene in
the field of investigation under Article 32 of the Constitution. Learned counsel C
urged that, in the present case, there is no such gross abuse of power made
out, and, therefore, this Court should not interfere under Article 32 of the
Constitution.
ISSUE:
D
The key issue which arises for determination in this case is: whether on
the facts and the circumstance of this case, the Director, CBI, who has not
given his own independent opinion, was right in referring the matter for
opinion to the Attorney General of India, particularly when the entire
investigation and law officers' team was ad idem in its opinion on filing of
the charge-sheet and only on the dissenting opinion of the Director of E
Prosecution, whose opinion is also based on the interpretation of the legal
evidence, which. stage has not even arrived. The opinion of the Director, CBI
is based solely on the opinion of the Attorney General after the reference.
CASE LAW ON THE POWERS AND FUNCTIONS OF THE HIERARCHY F
IN CBI IN SUPREME COURT MONITORED CASES:
In the case of H.N. Rishbud and lnder Singh v. The State of Delhi1, this
Court held that the Code of Criminal Procedure provides not merely for
judicial enquiry into or trial of alleged offences but also for prior investigation
thereof. Section 5 of the Code shows that all offences shall be investigated, G
inquired into, tried and otherwise dealt with in accordance with the Code.
When information of the commission of cognizable offence is received, the
appropriate police officer has the authority to enter on the investigation of
the same. Thus, investigation is a normal preliminary for an accused being put
I.
(1995) I SCR 1150.
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SUPREME COURT REPORTS [2006) SUPP 9 S.C.R.
A up for trial for a cognizable offence. Investigation usually starts on information
relating to the commission of an offence given to an officer in charge of a
police station and recorded under Section 154 of the Code. If from information
so received or otherwise, the officer in charge of the police statlon has reason
to suspect the commission of an offence, he or his subordinate has to
proceed to the spot to investigate the facts and circumstances of the case,
B and if necessary to take measures for the discovery and arrest of the offender.
Under Section 155 the officer in charge of a police station has the power of
making a search in any place for the seizure of anything believed to be
necessary for the purpose of investigation. A subordinate officer may be
deputed by him for that purpose. The investigating officer has also the power
C to arrest the person under Section 54 of the .Code. It is important to notice
that where the investigation is conducted not by the officer in charge of the
police station but by a subordinate officer such subordinate officer has to
report the result. of the investigation to the officer in charge of the police
station. If, upon the completion of the investigation it appears to the officer
in charge of the police station that there is no sufficient evidence, he may
D decide to release the suspected accused. If, it appears to him that there is
sufficient evidence or reasonable ground to place the accused on trial, he has
to take necessary steps under Section 170 of the Code. In either case, on
completion of the investigation he has to submit a report to the Magistrate
under Section 173 of the Code in the prescribed form. Thus, under the Code,
E investigation consists of proceeding to the spot, ascertainment of the facts
and circumstances of the case, discovery and arrest of the suspected offender,
collection of evidence and formation of the opinion as to whether on the
material collected there is a case to place1he accused before a Magistrate for
trial, and if so, taking the necessary steps for the same by ~he filing of a
charge-sheet under Section 173. The 'scbeme of the Code shows that while
F it is permissible for an officer in charge of a police station to depute some
subordinate officer to conduct some of these steps in the investigation, the
responsibility for each one of the above steps is that of the officer in charge
of the police station (see Section 168 of the Code). This Court had categorically
stated in the above judgment that, the final step in the investigation, namely,
G the formation of the opinion as to whether or not there is a case to place the
accused on trial is to be of the officer in charge of the police station and this
function cannot be delegated. This Court unequivocally observed that, there
is no provision for delegation of the above function regarding formation of
the opinion but only a provision entitling the superior officers to supervise
or participate under Section 551 (corresponding to Section 36 of the present
H. Code). This Court further held that, a police report which results from an
M.C. MEHTA v. U.O.I. (KAPADIA,J.]
697
investigation as provided for in Section 190 of the Code is the material on A
which cognizance is taken. But from that it cannot be said that a valid and
legal police report is the foundation of the jurisdiction of the court to take
cognizance.
In the case of Abhinandan Jha & Ors. v. Dinesh Mishra2 this Court
held that when a cognizable offence is reported to the police they may after B
investigation take action under Section 169 or Section 170 Cr. PC. If the police
thinks that there is no sufficient evidence against the accused, they may,
under Section 169 release the accused from custody or, if the police thinks
that there is sufficient evidence, they may, under Section 170, forward the
accused to a competent Magistrate. In either case the police has to submit C
a report of the action taken, under Section 173, to the competent Magistrate
who considers it judicially under Section 190 and takes the following action:
(a) If the report is a charge-sheet under Section 170, it is open to the
Magistrate to agree with it and take cognizance of the offence
tmder Section l90(l)(b); or decline to take cognizance. But he D
cannot call upon the police to submit a report that the accused
need not be proceeded against on the ground that there was no
sufficient evidence.
(b) If the report is of the action taken under Section 169, then the
Magistrate may agree with the report and close the proceedings. E
If he disagrees with the report, he can give directions to the
police under Section 156(3) to make a further investigation. Ifthe
police, after further investigation submits a charge-sheet, the
Magistrate may follow the procedure where the charge-sheet
under Section 170 is filed; but ifthe police are still of the opinion
that there was no sufficient evidence against the accused, the F
Magistrate may or may not agree with it. Where he agrees, the
case against the accused is closed. Where he disagrees and
forms an opinion that the facts mentioned in the report constitute
an offence, he can take cognizance under Section 190(1 )( c ). But
the Magistrate cannot direct the police to submit a charge-sheet, G
because the submission of the report depends entirely upon the
opinion formed by the police and not on the opinion of the
Magistrate. If the Magistrate disagrees with the report of the
police he can take cognizance of the offence under Section
2.
[1967] 3 SCR 668
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SUPREME COURT REPORTS [2006] SUPP. 9 S.C.R.
190(l)(a) or (c), but, he cannot compel the police to fonn a
particular opinion on investigation and submit a report according
to such opinion.
This judgment shows the importance of the opinion to be fonned by the
officer in charge of the police station. The opinion of the officer in charge of
B the police station is the ~asis of the report. Even a competent Magistrate
cannot compel the. concerned police officer to form a particular opinion. The
formation of the opinion of the police on the material collected during the
investigation as to whether judicial scrutiny is warranted or not is entirely left
to the officer in charge of the police station. There is no provision in the Code
C empowering a Magistrate to compel the police to fonn a particular opinion.
This Court observed that, although the Magistrate may have certain
supervisory powers under the Code, it cannot be said that when the police
submits a report that no case has been made out for sending the accused for
trial, it is open to the Magistrate to direct the police to file a charge-sheet.
The formation of the said opinion, by the officer in charge of the police
D station, has been held to be a final step in the investigation, and that final
step has to be taken only by the officer in charge of the police station and
by no other authority.
In the case of Union of India and Ors. v.