# NIRMAL SINGH KAHLON v. STATE OF PUNJAB AND ORS

- **Citation:** [2008] 14 S.C.R. 1049
- **Court:** Supreme Court of India
- **Decided:** 2008-10-22
- **Case number:** Civil Appeal Nos. 6198-6199 of 2008
- **Bench:** S.8. Sinha, Aftab Alam
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/nirmal-singh-kahlon-v-state-of-punjab-and-ors-23672
- **Pages:** 42

## Headnote

'-f
Code of Criminal Procedure, 1973/Police Act, 1861:
ss. 36 and 173 (8)/s.3 - Writ petition challenging selection of Panchayat Secretaries - Direction by High Court to c.
hold investigation - Pursuant to investigation by State lnvestigating Agency, FIR lodged and consequently charge-sheet
filed - Further, High Court opining either to entrust investigation to CBI to make further investigation by removing the persons against whom a/legations made, from their respective D
~
offices - State entrusting the investigation to CBI FIR lodged
by CBI - Challenge to entrustment of investigation to CBI dismissed ..by High Court - On appeal, held: Investigation was
rightly entrusted to CBI- State as well as High Court had power
to direct investigation by CBI - Lodging of second FIR was E
not impermissible in ~aw - The first and the second Fl Rs were
different in character - Since the charge sheet filed on the
basis of first FIR and evidence of some witnesses recorded,
direction to trial Judge to segregate the portion of trial which
has any bearing with the scam related to second FIR by CBI -
F
t
CBI Manual - Constitution of India, 1950 - Articles 226 and
'
142 - Public Interest Litigation.
;
I
s. 36 rlw s. 3 of Police Act ands. 173 (8) - Distinction between.
Constitution of India, 1950 - Article 226 - Jurisdiction G
under - Nature of
Public Interest Litigation - Powers of Court under - Distinction from private interest litigation - Discussed.
1049
H
-t
1050
SUPREME COURT REPORTS
[2008) 14 S.C.R.
).
I
A
A writ petition was filed challenging selection of 908
~-
Icandidates to the post of Panchayat Secretaries, made at
Ithe time when the appellant in C.A. No. 6198-99 of 2008
r
was the Rural Development and Panchayat Minister in the
State. High Court formed a prima facie opinion that irreguB
larities in selection process had been committed. It directed
inquiry in the matter. Pursuant thereto enquiry was made
by Financial Commissioner, Rural Development and
~
Panchayat Department and he opined that the whole sey
~
lection process be set aside and recommended investigac tion by Vigilan_ce Department. Vigilance Department, after
investigation lodged FIR on 14.6.2002 against several persons including the appellant-Minister for alleged commission of offences u/ss. 420, 467, 468; 120B IPC and u/ss. 13
t"
(1) (d) (e) and 13 (2) of Prevention of Corruption Act, 1988.
D Charge-sheets were filed against the appellant-Minister and
appellant No. 1 (Ex. Deputy Director of Rural Development
and Panchayats in (C.A.No. 6200-6201 of 2008).
k
(
Secretary of the Department concerned recom-
··-
~
mende_d investigation of the case by the Crime Branch of
E ttie State Police. In view of the same, High Court by order
dated 31.10.2002 observed that the State Government had
r
the option either to make further investigation by removI
ing the persons named in the report from their respective
It
offices or to direct CBI probe. State opted to handover
•
F
the investigation to CBI. Pursuant to direction of High
~
Court dated 30.4.2003, State issued Notification, notifyt
~
ing handing over of the investigation to CBI. By order
. I
dated 7.5.2003, High Court observed that in the interest
of justice, investigation by CBI was fit. CBI filed its FIR on
26.6.2003.
I
G
Appellants filed applications seeking recalling of orI-
ders of High Court dated 30.4.2003 and 7.5.2003 and for-
~-
.._
'
~
quashing the Notification and the consequential FIR dated
26.6.2003. The applications were dismissed by High
H Court. Hence the present appeals.
r
~ i
-;
NIRMAL SINGH KAHLON v. STATE OF PUNJAB
1051
& ORS.
Appellants contended interalia that High Court had A
no jurisdiction u/Art. 226 of the Constitution to direct fresh
investigation by CBI, after filing of the chargesheet in the
matter; thats. 173 (8) Cr.P.C. does not envisage any investigation by a Central agency after filing of
chargesheet; that s. 36 of Cr.P.C. is not applicable in the B
present case as the expression 'superior police Offi

## Text

_Characters 0–39,967 of 81,501. This is a partial read: ask again with offset=39967 for what follows._

[2008] 14 S.C.R. 1049
NIRMAL SINGH KAHLON
A
v.
STATE OF PUNJAB AND ORS.
(Civi·I Appeal Nos. 6198-6199 of 2008 etc.)
OCTOBER 22, 2008
B
[S.8. SINHA AND AFTAB ALAM, JJ.]
'-f
Code of Criminal Procedure, 1973/Police Act, 1861:
ss. 36 and 173 (8)/s.3 - Writ petition challenging selection of Panchayat Secretaries - Direction by High Court to c.
hold investigation - Pursuant to investigation by State lnvestigating Agency, FIR lodged and consequently charge-sheet
filed - Further, High Court opining either to entrust investigation to CBI to make further investigation by removing the persons against whom a/legations made, from their respective D
~
offices - State entrusting the investigation to CBI FIR lodged
by CBI - Challenge to entrustment of investigation to CBI dismissed ..by High Court - On appeal, held: Investigation was
rightly entrusted to CBI- State as well as High Court had power
to direct investigation by CBI - Lodging of second FIR was E
not impermissible in ~aw - The first and the second Fl Rs were
different in character - Since the charge sheet filed on the
basis of first FIR and evidence of some witnesses recorded,
direction to trial Judge to segregate the portion of trial which
has any bearing with the scam related to second FIR by CBI -
F
t
CBI Manual - Constitution of India, 1950 - Articles 226 and
'
142 - Public Interest Litigation.
;
I
s. 36 rlw s. 3 of Police Act ands. 173 (8) - Distinction between.
Constitution of India, 1950 - Article 226 - Jurisdiction G
under - Nature of
Public Interest Litigation - Powers of Court under - Distinction from private interest litigation - Discussed.
1049
H
-t
1050
SUPREME COURT REPORTS
[2008) 14 S.C.R.
).
I
A
A writ petition was filed challenging selection of 908
~-
Icandidates to the post of Panchayat Secretaries, made at
Ithe time when the appellant in C.A. No. 6198-99 of 2008
r
was the Rural Development and Panchayat Minister in the
State. High Court formed a prima facie opinion that irreguB
larities in selection process had been committed. It directed
inquiry in the matter. Pursuant thereto enquiry was made
by Financial Commissioner, Rural Development and
~
Panchayat Department and he opined that the whole sey
~
lection process be set aside and recommended investigac tion by Vigilan_ce Department. Vigilance Department, after
investigation lodged FIR on 14.6.2002 against several persons including the appellant-Minister for alleged commission of offences u/ss. 420, 467, 468; 120B IPC and u/ss. 13
t"
(1) (d) (e) and 13 (2) of Prevention of Corruption Act, 1988.
D Charge-sheets were filed against the appellant-Minister and
appellant No. 1 (Ex. Deputy Director of Rural Development
and Panchayats in (C.A.No. 6200-6201 of 2008).
k
(
Secretary of the Department concerned recom-
··-
~
mende_d investigation of the case by the Crime Branch of
E ttie State Police. In view of the same, High Court by order
dated 31.10.2002 observed that the State Government had
r
the option either to make further investigation by removI
ing the persons named in the report from their respective
It
offices or to direct CBI probe. State opted to handover
•
F
the investigation to CBI. Pursuant to direction of High
~
Court dated 30.4.2003, State issued Notification, notifyt
~
ing handing over of the investigation to CBI. By order
. I
dated 7.5.2003, High Court observed that in the interest
of justice, investigation by CBI was fit. CBI filed its FIR on
26.6.2003.
I
G
Appellants filed applications seeking recalling of orI-
ders of High Court dated 30.4.2003 and 7.5.2003 and for-
~-
.._
'
~
quashing the Notification and the consequential FIR dated
26.6.2003. The applications were dismissed by High
H Court. Hence the present appeals.
r
~ i
-;
NIRMAL SINGH KAHLON v. STATE OF PUNJAB
1051
& ORS.
Appellants contended interalia that High Court had A
no jurisdiction u/Art. 226 of the Constitution to direct fresh
investigation by CBI, after filing of the chargesheet in the
matter; thats. 173 (8) Cr.P.C. does not envisage any investigation by a Central agency after filing of
chargesheet; that s. 36 of Cr.P.C. is not applicable in the B
present case as the expression 'superior police Officer'
would mean an officer superior in the same hierarchy i.e.
the State Police and not an officer of CBI; and that sec-
'
ond FIR by CBI was impermissible as an FIR had already
been lodged by the Vigilance Department for the same C
cause of action.
Respondent-state contended that the Police Act being a special statute, would prevail over the provisions of
Cr.P.C; that the State was entitled to entrust the investigation to CBI, being the ultimate authority u/s. 3 of the q
Act; that the expression 'rank' u/s, 36 Cr.P.C. cannot be
confined only to the same agency but would mean the
investigating agency; and that second FIR was permissible as the first FIR was different in character from the
second FIR.
E
Dismissing the appeals, the Court
HELD: 1.1 The State in terms of the special statute,
viz., the Police Act can always request the CBI to make
an investigation I further investigation. The said power of
Fi
the State is wholly unrestricted by Section 36 Cr.P.C. or
otherwise. The State as in terms of the provisions of
Cr.P.C. and Police Act, exercises two different and distinct
jurisdictions. The power of supervision over investigation vested in the State in terms of Section 3 of the Police G
Act is absolute. It may in a given case, having regard to
the nature and complexity of the offence may also direct
that further investigation in)he matter may be carried out
by a central agency. [Para 61] (1088-F, G, H)
1.2 In terms of Section 3 of the Police Act, the State H
1052
SUPREME COURT REPORTS
[2008] 14 S.C.R.
' r
A
has the ultimate say in the matter of superintendence of
1investigation. Section 36 Cr.P.C. must be read harmoniously with the said provision. Therefore, when Section
36 Cr.P.C uses the words 'in rank', it should be given a
purposive construction. Although a plain reading of the
I
.....
aforementioned provision appears to be containing three
~
B
ingredients, namely, (i) the investigation must be carried
\.
out by an Officer in charge; (ii) which may be supervised
by ari Officer superior in rank; and (iii) in respect of a lo-
'y
j...
cal area to which they are appointed, but in the context of
c the power of the State vis-a-vis the provisions of the
Act, the same, deserves a wider application. [Para 27]
(1071-E, F)
1.3 The· power of the investigating Officer to make
•
;,
further investigation in exercise of its statutory jurisdicl
D tion under Section 173(8) Cr.P.C. and at the instance of
the State having regard to Section 36 Cr.P.C. thereof read
,..
with Section 3 of the Police Act, 1861 should be consid-
~
ered in different contexts. Section 173(8) is an enabling
provision. Only when cognizance of an offence is taken,
E
the Magistrate may have some say. But, the restriction
r
imposed by judicial legislation is mer~ly for the purpose
of upholding the independence and impartiality of the judiciary. [Para 60] (1087-H; 1088-AB)
Sakiri Vasu v. State of Uttar Pradesh and Ors. 2008 (2)
F sec 409 - referred to.
..
1.4 When serious allegations were made against a
...
*-
former Minister of the State, save and except the cases of
t
political revenge amounting to malice, it is for the State to
entrust one or the other agency for the purpose of inves-
)-
G tigation into the matter. The State for achieving the said
object at any point of time may consider handing over of
f--
investigation to any other ~gency including a central
..
agency which has acquired specialization in such cases.
~
I .-
H
[Paras 28 and 29] (1072-A, B)
NIRMAL SINGH KAHLON v. STATE OF PUNJAB
1053
& ORS.
___,
1.5 Director, CBI exercises his power of superintenA
dence in respect of the matters enumerated in Chapter VI
of the CBI M~nual which includes reference by the State
and/ or reference by the High Courts and this Court as
also the registration thereof. The reference thereof may
be received from (a) Prime Minister of India, (b) Cabinet B
Ministers of Government of India/ Chief Ministers of State
Governments or their equivalent; (c) The State Govern-
'i
ments and Supreme Court/ High Courts. Thus, even assuming that reference had been made by the State Government at the instance of the High Court, the same by c
itself would not render the investigation carried out by it
~
to be wholly illegal and without jurisdiction as assuming
that the reference had been made by the High Court in
exercise of its power under Article 226 of the Constitution of India in a public interest litigation, the same would D
also be valid. [Paras 57 and 58] (1086-G, H; 1087-A to D)
""'
2.1 If the State has the ultimate supervisory jurisdiction over an investigation for an offence and if it intends
to hand over a further investigation even after filing of the
chargesheet, it may do so. However, it appears from the E
records that those officers including the Chief Secretary
who were dealing with the public interest litigation were
not aware that the chargesheet had been filed in the earlier case. The State Government and the High Court had
proceeded on the basis that the investigation was to be F
~
handed over to the CBI. The High Court came to know
...
thereof only when an application for modification was
filed by the appellants therein. It may be true that the High
Court proceeded on the basis that although the CBI had
lodged the FIR, the same would be deemed to have been cs
lodged only for the purpose of carrying out further inves4
tigation, but, in the opinion of the Court its conclusions
are correct. [Para 54] (1085-F, G, H; 1086-A)
2.2 The High Court in this case was not monitoring
any investigation. It only desired that the investigation hl
1054
SUPREME COURT REPORTS
[2008] 14 S.C.R.
•
A should be carried out by an independent agency. If that
tbe so, the contention that the monitoring of an investigation comes to an end after the chargesheet is filed, loses
all significance. [Para 55) (1086-B, C)
8
Vineet Narain v. Union af India 1998 (1) SCC 226; MC.
Mehta (Taj Corridor Scam) v. Union of India and Ors. 2007 (1)
sec 110 - referred to.
2.3 Moreover, it was not a case where the High Court
y
I
had assumed a jurisdiction in regard to the same offence
c in respect whereof the Special Judge had taken cognizance pursuant to the chargesheet filed. The chargesheet
was not filed in the FIR which was lodged on the inter-
~
vention of the High Court. As the offences were distinct
and different, the High Court never assumed the jurisdicD
tion of the Special Judge to direct reinvestigation. [Para
56) (1086-D, E)
3.1 The High Court while entertaining the writ peti-
),:-
tion formed a prima facie opinion as regards the systematic commission _of fraud. While dismissing the writ petition filed by the selected candidates, it initiated a suo motu
~-
E public interest litigation. It was entitled to do so. The nature of jurisdiction exercised by the High Court, in a private interest litigation and in a public interest litigation is
different. Whereas in the. latter it is inquisitorial in nature,
F
in the former it is adversorial. In a public interest litigation, the court need not strictly follow the ordinary procet
dure. It may not only appoint committees but also issue
..
directions upon the State from time to time. [Para 32) (1072G, H; 1073-A, 8)
G
Indian Bank vs. Godhara Nagrik Co-op. Credit Society
Ltd. and Anr. 2008 (7) SCALE 363; Raju Ramsing Vasave v.
Mahesh Deorao Bhavpurkar and Ors. 2008 (1 ?) SCALE 252
f-
- relied on.
3.2 In an ordinary case, it could be said that the High
H Court should not direct CBI to investigate into a particu-
NIRMAL SINGH KAHLON v. STATE OF PUNJAB
1055
& ORS.
lar offence. The offence, however, is not ordinary in naA
ture. It involved investigation into the allegations of commission of fraud in a systematic manner. It had a wide
ramification as a former Minister of the State is said to be
involved. The instant case was not a case where investigation could be carried out in a slip-shod manner [Paras
B
34 and 37] (1073-F, G; 1076-C)
'1
3.3 The High Court was concerned only with appoiritment of Panchayat Secretaries. Public Interest Litigation was confined to such appointments only. In regard
thereto, the only allegation which was made was that he c
got his favourites appointed who did not fulfill the qualifications. [Para 38] (1076-F, G)
Vineet Narain v. Union of India 1998 (1) SCC 226; State
of Bihar v. PP Sharma, 1992 Sup. (1) SCC 222 ; Union of
India v. Sushi/ Kumar Modi, 1998 (8) SCC 661; Rajiv Ranjan D
-,t
Singh 'La/an' v. Union of India 2006 (6) SCC 613; Rajesh v.
,,... .
Ramdeo, 2001 (10) SCC 759; Sasi Thomas v. State 2006
(12) SCC 421; State of WB. v. Committee for Protection of
Democratic Rights WB. and Ors. 2006 (12) SCC 534 - referred to.
E
4.1 Lodging of the second FIR was not impermissible
in law. The second FIR lodged by CBI was on a wider canvass. It was lodged after holding a detailed preliminary
inquiry. CBI collected a large number of materials. It had
+
also recorded the statements of a large number of perF
~
sons. Whereas the first FIR contained the misdeeds of
individuals, the second one depicts a crime committed in
the course of selection process of Panchayat Secretaries involving a large number of officers. [Paras 40 and 53]
(1085-E; 1077-B, C)
G
-';-
4.2 It may be true that in both the FIRs the ex. minister was named. He was considered to be the prime accused. But, it is one thing to say that he acted in his individual capacity and it is another thing to say that he conspired with a large number of persons to facilitate comH
1056
SUPREME COURT REPORTS
[2008] 14 S.C.R.
A mission of crime by him as a result whereof all of them
1had made unlawful gains. When two conspiracies are alleged; one is larger than the other, there may be some
common factors but the nature of offence would differ.
An offence committed would not be judged by mere menB tioning of the Sections but the mode and manner in which
the same was committed as also the nature thereof. The
canvass of two FIRs is absolutely different. The numbers
·y
of accused in both the FIRs are also different. There is a
distinction between crime committed by an individual or
c a group of persons vis-a-vis a scam. [Paras 46, 47, 49 and
50] (1080-D, E, F; 1083-8, C)
4.3 The second FIR, would be maintainable not only
because there were different versions but when new discovery is made on factual foundations. Discoveries may
D be made by the police authorities at a subsequent stage.
Discovery about a larger conspiracy can also surface in
~
another proceeding, as in a case of this nature. If the po-
...
lice authorities did not make a fair investigation and left
out conspiracy aspect of the matter from the purview of
E
its investigation, as and when the same surfaced, it was
open to the State and/ or the High Court to direct investigation in respect of an offence which is distinct and separate from the one for which the FIR had already been
lodged. [Para 59] (1087-E, F, G)
F
Ram Lal Narang v. State (Delhi Administration) 1979 (2)
,.
SCC 322; Kari Choudhary v. Mst. Sita Devi and Ors. 2002 (1)
SCC 714; State of A. P v. A. S. Peter 2008 (2) SCC 383; Upkar
Singh v. Ved Prakash and Ors. 2004 (13) SCC 292 - relied
on.
G
TT Antony v. State of Kera/a, 2001 (6) SCC 181; H. N.
y..~
Rishbud and lnder Singh v. The State of Delhi 1955 (1) SCR
1150- referred to.
Advanced Law Lexicon, 3rd edition, 2005, page 4237 -
H referred to.
NIRMAL SINGH KAHLON v. STATE OF PUNJAB
1057
& ORS.
...
-1·
5. In order to do complete justice to the parties, cerA
tain directions are issued in exercise of jurisdiction under Article 142 of Constitution of India. In view of the fact
that a chargesheet has been filed on the basis of the first
FIR and it is stated that two witnesses had also been examined, Trial Judge is directed to segregate that portion B
I
of the trial which has any bearing with the scam relating
to the appointment of the Panchayat Secretaries. Appellants, in the other appeals, who had been cited as witnesses therein should not be allowed to be examined except with their consent. All the materials collected by the c
investigating officer pertaining to the said scam shall be
transferred to the Court of Sub-Judge dealing with the
CBI matters forthwith so as to enable it to hear that part
of the case either independently or together with the
chargesheet which may be submitted by the CBI before D
i
-+
it. [Para 64) (1089-G, H; 1090-A, B)
#> •
CASE LAW REFERENCE
2008 (7) SCALE 363
Relied on.
Para 32
2008 (12) SCALE 252
Relied on.
Para 32
E
1998 (1) sec 226
Referred to.
Para 35
1992 Sup. (1) sec 222
Referred to.
Para 35
1998 (8) sec 661
Referred to.
Para 35
i
2006 (6) sec 613
Referred to.
Para 35
F
,.
2001 (10) sec 759
Referred to.
Para 35
2006 (12) sec 421
Referred to.
Para 35
2006 (12) sec 534
Referred to.
Para 36
1979 (2) sec 322
Relied on.
Para 45
G
41
2002 (1) sec 114
Relied on.
Para 45
2008 (2) sec 383
Relied on.
Para 48
2001 (6) sec 181
Referred to.
Para 48
H
A
B
c
1058
SUPREME COURT REPORTS
(2008] 14 S.C.R.
1955 (1) SCR 1150
Referred to.
Para 51
2004 (13) sec 292
Referred to.
Para 52
1998 (1 > sec 226
Referred to.
Para 55
2001 (1) sec 110
Referred to.
Para 55
2008 (2) sec 409
Referred to.
Para 60
2008 (3) sec 542
Relied on.
Para 64
2008 (3) sec 542
Relied on.
Para 64
CIVIL APPELLATE JURISDICTION : Civil Appeal Nos.
6198-6199 of 2008
From the Judgment and final Order dated 4/10/2005 of
the High Court of Punjab and Haryana at Chandigarh in Civil
Misc. Nos. 6907 and 6908 of 2005 in CWP No. 20005 of 2002
D
WITH
C.A. Nos. 6200-6201 of 2008
P.P. Malhotra, A.S.G., P.P. Rao, L.N. Rao, A.K. Pandey,
Aseem Malhotra, Sunita R Singh, Shefali Jain, Purushottam S.T.,
Sahar Bakht, Utsav, Febin ·AK., Rajesh Prasad Sil)gh, Amit
E
Kumar, Satyakam, B.K. Prasad, F. Rarmeswaran,Ajay Pal, Nikhil
F
Jain and Pranab Kumar Mullick fortheAppearing Parties.
The Judgment of the Court was delivered by
S.B. SINHA, J. Leave granted.
1. These two appeals involving similar questions of law
and fact were taken up for hearing together and are being disposed of by this common judgment.
2. Nirmal Singh Kahlon, Appellant in appeals arising out
fG of SLP (C) Nos. 24777-24778 of 2005 was the Rural Development and Panchayats Minister in the Government of Puniab while
the three appellants in appeals arising out of SLP ~ (C)Nos.
t·
25226-25227 of 2005 were working as Deputy Directors in the
Department of Rural Development and Panchayats, GovernH ment of Punjab at the relevant time<
NIRMAL SINGH KAHLON v. STATE OF PUNJAB
1059
& ORS. [S.B. SINHA, J.]
-~
3. The State of Punjab had enacted the Punjab Panchayati A
Raj Act, 1994.
4. An advertisement for recruitment of 190 Panchayat Secretaries was issued in the year 1992 for which written test was
held in the year 1994 ; however, the posts could not be filled. In
8
the meantime 545 Panchayat Secretaries were appointed on
ad hoc basis by the State.
5. One of the applicants, who applied for the post in response to the advertisement of 190 posts, challenged the said
ad hoc appointments by way of a writ petition which was marked
as C.W.P. No.9835 of 1996, titled Palvinder Singh v. State of c
Punjab, which was disposed of by a Division Bench of the Court
on 20th September, 1996 by directing inter alia the completion
of the selection process as well as for available posts with the
department. Selection against 190 posts of Panchayat SecreD
·1
taries, for which written test had already been held was to be
finalized on or before 201h November, 1996.
~ .
6. Two more advertisements were issued; first on 17/18th
September, 1996 for filling up 700 posts and second on 14th
October, 1996 for filling up 800 posts of Panchayat SecretarE
ies respectively.
Another advertisement was issued on 19th September,
1998 inviting applications from the female candidates also for
the post of Panchayat Secretaries.
i
F
"
In response to the abovementioned advertisements over
1.5 lacs applications were received, the processing job whereof
was handed over to a Delhi based computer firm. Result of the
written test was declared on or about 14th October, 2000 in
which 3286 candidates were declared successful. They were G
called for interview.
~~
However, no further action appears to have been taken
pursuant thereto or in furtherance thereof. Another writ petition
was filed in the High Court of Punjab and Haryana which was
marked as CWP No.11912 of 2000, titled Harmesh Singh and
H
1060
SUPREME COURT REPORTS
[2008] 14 S.C.R.
A
others v. State of Punjab and others. By an order dated 301h
August, 2001, selection for the post of Panchayat Secretaries
was directed to be completed within one month. The said order
was not interfered with by this Court in a Special Leave Petition
filed by the State which was marked Special Leave Petition
B (Civil) No. 15843 of 2001 by an order dated 241h September,
2001. Interviews of the eligible candidates were held thereafter
arid 908 candidates were selected.
7. In or about March, 2002 a change in the State .Government took place. The Congress Party came into power after
C election. The new Government made an attempt to reinstate
the Panchayat Patwaris whose services had been terminated
by the previous Government pursuant to the orders of the High
Court.
D
8. Selection of the said 908 candidates was the subject
matter of another writ petition which was marked as CWP
No.5283 of 2003 entitled Veero Devi v. State of Punjab and
others. In the said writ petition the Court formed a prima facie
opinion that irregularities in the selection process had been
committed. By an order dated 3rd April, 2002, the High Court
E issued the following directions :-
F
G
"The Bench Secretary is directed to give copy of this order
to learned Deputy Advocate General who shall forward
the same to the Advocate General, Punjab. The Advocate
General, Punjab shall send the copy of the order to the
Chief Secretary, Punjab, who shall ensure that a thorough
probe is conducted into the selections made by the
Directorate of Department of Rural Development and
Panchayats by an officer not below the rank of Secretary
to the Government. After conducting the probe, the report
be produced before the Court within a period of 8 weeks.
The desirability of issuing other directions would be
considered by the Court after examining the report."
The nature of litigation, therefore, was changed from priH vate interest litigation to public interest litigation.
+-
. "
..
NIRMAL SINGH KAHLON v. STATE OF PUNJAB
1061
& ORS. [S.B. SINHA, J.]
-t
9. In terms of the said order an enquiry was made by one A
Shri P. Ram, the then Financial Commissioner, Rural Development and Panchayat Department. He was of the opinion that
the entire selection process was required to be set aside. A
recommendation was made that an investigation into the whole
affair be made by the Vigilance Department.
B
'f
10. Pursuant thereto a first information report was lodged
by the Vigilance Department on 141h June, 2002 against several persons including appellant, Nirmal Singh Kahlon, for alleged commission of offences under Sections 420, 467, 468,
120(8) of the· Indian Penal Code and Sections 13(1 )(d)(e) and c
13(2) of the Prevention of Corruption Act, 1988, the material
portion whereof reads as under :-
"It has come to knowledge that Sh. N.S. Kah Ion Ex. Minister
Rural Department and Panchayat had during his tenure D
'(
made recruitments to the various posts of Tax Collector,
....
Patwaris, Peons, Clerks etc. for his benefit by illegal means
by taking heavy amounts of money as bribes. In this way
for his favourites who were not fulfilling the requirement
like less age, less qualification and manipulating the marks
E
in the answer sheet, recruitment were made to P. Sect
and deserving candidates were side lined. Similarly, to
fulfil the backlog in handicap category recruitments of Gram
Sewaks were made and the candidates, who were
1
deserving were not recruited. It has also come to
,
knowledge that Kamalpreet Kaur, Advocate District
F
F atehgrah Sahib who was fulfilling the basic qualifications
in handicap quota for the "Mukh Sewak" was also
sidelined. Rs. 3 lacs were demanded from her by sending
Manjet Singh Steno, office of R.D.P. to her residence.
When she was not able to give money in bribe, then she G
'1'
was not recruited to the post. In this way, Kahlon has
accepted heavy amounts as bribes for transfers,
appointments and promotions and he has accumulated
moveable and immovable assets in excess of the known
resources. This has also come to knowledge that Kahlon
H
1062
SUPREME COURT REPORTS
[2008] 14 S.C.R.
A
has got leased 2 acres of Sham lat land at village Phabhat,
fTehsil Dera Bassi, District Patiala for 7 years in the name
of his close relative Burwinder Singh s/o. Ajnala by misusing his position, whereas Shamlat land cannot be leased
out for such a long period. In this way Ex.R.D.P.M. has
B
earned crores of rupees by mis-using his position through
recruitments, transfers, appointments and promotions and
has accumulated countless assets and cash. By misusing
his powers, he had made wrong appointments for his
benefit and the deserving candidates were overlooked.
c
By doing this Ex.RE.D.P.M. has committed crime under
Section 420, 467, 468, 120(B), 13(1)(d)(e) read with
13(2)."
11. A charge sheet was filed against Nirmal Singh Kahlon
and J.P. Singla (appellant No. 1 in Civil Appeals arising out of
D
SLP (C) Nos. 25226-25227 of 2005), Ex. Deputy Director of
Rural Development and Panchayats. Appellant Nos. 2 and 3 in
~-
Civil Appeals arising out of SLP (C) 25226-25227 of 2005 were
...
shown as the witnesses in the said report.
E
12. It appears somewhat strange that despite the same a
statement was made before the Court on behalf of the State of
Punjab on 1st November, 2002 that the investigation was proposed to be handed over to the Central Bureau of lnvestigation.
F
13. On or about 16th November, 2002 Secre_tary to the
t
Government of Punjab, Department of Rural Development is-
'it.
sued a letter addressed to the Chief Secretary to the Government of Punjab, opining that the case should be investigated by
the Crime Branch of the State Police.
G
14. In view of the aforementioned report the High Court, by an
order dated 31st October, 2002, directed the Additional Advocate
f--~
General to obtain instructions as to what action the Government has
been contemplating on the enquiry report. It was observed :-
H
"The State Government will have the option of suo moto
NIRMAL SINGH KAHLON v. STATE OF PUNJAB
1063
& ORS. [S.B. SINHA, J.]
-t
making further investigation by removing all those named A
in the report from their respective offices so as to ensure
that the further enquiry is not influenced by any of those
officers. It may also order a CBI probe into the entire
scandal involving appointment of Panchyat Secretaries."
15. On 1st November, 2002 the State Government made a B.
statement that a decision had been taken to handover the in-
--1
vestigation in regard to the scandal involving selection of
Panchayat Secretaries to the Central Bureau of Investigation
and also to take action against the officers named in the enquiry report.
c
Selection of the candidates, however, was cancelled by
State Government by its order dated 1 Oth December, 2002.
16. The Central Bureau of Investigation, however, expressed its inability to take up investigation opining that the D
¥
same may be conducted by the State Vigilance Department.
One of the grounds on which the said stand was taken was lack
~
of man power as also infra structure.
An affidavit to that effect was to be filed on or before 13th
November, 2002 and the matter was adjourned to 15th NovemE
ber, 2002. On that date a prayer was made for· some more time
to file a comprehensive affidavit. The writ petition was listed
before the High Court on 1 Oth February, 2003 on which date it
noticed the decision of the State Government to handover the
investigation to the Central Bureau of Investigation. The State
F
i
~
took some adjournments. Proceedings sheet of the High Court
dated 25th April, 2003 reads as under :-
" From the records, it appears that for very good reasons,
the Government of Punjab decided to hand over the G
investigation of scandal involving selection of Panchayat
·--t
Secretaries, who are writ petitioners, to Central Bureau of
Investigation and also to take· action against the officers
named in the inquiry report, that the Central Bureau of
Investigation stands impleaded as Respondent No.5 in
H
1064
SUPREME COURT REPORTS
[2008] 14 S.C.R.
-}
A
Civil Writ Petition No.5283 of 2002 and that today an
tapplication has been filed for placing on record DO No.18/
79-02-4/RDE 4/560 dated 04/03/2003 and DO No. l/C/
2003-CHG/NZ dated 02/04/2003 of the Director Central
Bureau of Investigation, Government of India, New Delhi,
B
as Annexure R-1 and Annexure R-2 on behalf of
Respondent No.1 and 2, stating, inter alia, that Central
Bureau of Investigation has communicated that it would
not be able to take up the investigation of the above said
~-
scandal and it may get probed through the State Vigilance
c
after the court had adjourned the further hearing of the
case awaiting the submission of the report of Central
Bureau of Investigation. Unfortunately, even though Central
Bureau of Investigation is Respondent No.5 in Civil Writ
Petition No.5283 of 2002, a copy of aforementioend
application has been served on Shri Rajan Gupta,
~
D
Advocate so that we could have a positive response of
Central Bureau of Investigation through its counsel and
"f
adjudge the correctness or otherwise of the stand of the
...
Central Bureau of Investigation as communicated to the
State."
E
17. Despite the same no notification was issued by the
State of Punjab handing over the investigation to the Central
Bureau of Investigation. Proceedings sheet dated 30th April,
2003 inter alia reads :-
F
"In regard to one of the submissions made by Shri Rajan
Gupta, Learned counsel that no notification has been
t ..
made by the Punjab Government handing over the
investigation to the CBI, we hope and trust that necessary
notification in that regard will be published by the Punjab
G
Government within couple of days."
18. On or about 2nd May, 2003 the State Government is-
'f-•
sued a Notification in terms of Section 6 of the Delhi Special
'
Police Establishment Act, 1946 (for short the 'Act'), the relevant
H
portion whereof reads as under:-
NIRMAL SINGH KAHLON v. STATE OF PUNJAB
1065
& ORS. [S.S. SINHA, J.]
" And whereas during the course of arguments, after A
considering the reply of the CBI and the arguments of the
Standing Counsel for the CBI on 31.4.2003, Hon'ble Punjab
and Haryana High Court directed the State Government
to issue necessary Notification well before the next date
of hearing i.e. 7.5.2003 to enable the CBI to take into B
hands the investigation of the recruitment of 909 Panchayat
Secretaries.
Now, therefore, in pursuance of the provisions of Section
6 of the Delhi Special Policed Establishment Act, 1946
(Central Act 25 of 1946) and all others powers enabling c
him in this behalf, the Government of Punjab is pleased to
accord his consent to the extension of powers and
jurisdiction of the members of the Delhi Special Police
Establishment to the whole of the State of Punjab for
investigating into the alleged scandal of selection of 909 D
-¥'
Panchayat Secretaries made in the year 1!)96 to 2001 in
the Department of Rural Development and Panchayats
.>
under the relevant provisions of the law and any other
offence in relation to or in connection with the said alleged
scandal of appointments committed in the course of the
E
same transaction or arising out of the said matter."
19. In view of the aforementioned Notification the High
Court by its order dated 71h May, 2003 directed :-
" Having regard to the peculiar facts and circumstances of F
-f
the instant case, it was the court which took a view earlier
;.
that mater is such, which requires, in the interest of justice,
investigation by the Central Bureau of Investigation and
then the State of Punjab came to nearly agreeing to the
observations made by the court, though after sometime G
the Court noticed some dilly dallying on the part of the
·1
State Government but ultimately it decided to hand over
the investigation to the C.B. I. We reiterate that in the
peculiar facts and circumstances investigation by Central
Bureau of Investigation appears to be not only just and
H
1066
SUPREME COURT REPORTS
[2008) 14 S.C.R.
A
proper but a necessity. Accordingly, we hope and trust
tthat the Central Bureau of Investigation will do its best to
investigate and book the real culprits. We respect that
Central Bureau of Investigation will do its investigation
within a reasonable time though we appreciate the limited
B
resources, which it is having. We are sure that if the
Director of Central Bureau of Investigation moves the
Government of India to provide more funds and/or offices,
y~
it will consider the request, if so made, objectively and
suitable decision will be taken by the Government of India."
c
20. The Central Bureau of Investigation, however, informed
the High Court on 13th August, 2003 that a special team had
been sent for a meaningful investigation in respect of the allegations, and the same had proceeded to a considerable length.
The Central Bureau of Investigation thereafter registered a first
D information report on 26th June, 2003
......
21. Appellants filed applications which were marked as
'fCM Nos. 6907 - 6908 of 2005 and 18993-18994 for recalling
~
of the orders dated 30th April, 2003 and 7th May, 2003; the
E
prayers made wherein read as under:-
"(a) Recall the orders dated 30.4.2003 (Annexure C-4)
I
and orders dated 7.5.2003 (Annexure C-6) which have
~
resulted in the notification dated 2nd May, 2003 of the
State Government hading over the investigation to C.B.I.
F
and the second FIR No. 8(s) of 2003 dated 26.6.2003.
r
t
(b) set aside and quash the notification of the Government
.._
dated 2nd May, 2003 (Annexure C-6) and the consequential
r
second F.1.R. No.8 (s) of 2003 dated 26.6.2003."
By reason of the impugned judgment dated 4th October,
t
G 2005, the said applications have been dismissed.
22. This Court on 12th December, 2005 while issuing no-
·t---
tice passed the following interim order:-
H
"The C.B.I. may continue with the investigation, but the
NIRMAL SINGH KAHLON v. STATE OF PUNJAB
1067
& ORS. [S.B. SINHA, J.]
final report shall not be filed till the next date of hearing"
A
23. Mr. P.P. Rao and Mr. Raju Ramachandran, learned
senior counsel, appearing on behalf of the appellants, would
submit:-
1)
As per the records and in particular the affidavit of B,
Chief Secretary of the State the High Court was not
made aware of the fact that the charge sheet had
- f
already been submitted on 19th September, 2002
before a court of competent jurisdiction and
cognizance in the matter had been taken and thus c
the High Court acted illegally and without any
jurisdiction in directing fresh investigation by the
Central Bureau of Investigation.
2)
Although the High Court in its impugned judgment
noticed that the charge sheet had been submitted D
-;-·
on 19th September, 2002 but failed and/or neglected
to deal with the implication thereof which
. ~
demonstrates total non application of mind on its
part.
3)
The Act does not envisage a State Government to E
give consent for inve$tigation by the Central Bureau
of Investigation in respect of an offence which had
already been investigated and charge sheet
submitted.
F
-f
4)
In any event the learned Magistrate before whom the
. ).
charge sheet had been filed did not form an opinion
that the investigation was faulty and/or did not satisfy
~
the requirements of law, no reinvestigation could have
been directed by the High Court in exercise of its G
power under Article 226 of the Constitution of India
~"""
or otherwise. Even such an order of reinvestigation
or further investigation is not contemplated ur:ider
Section 173(8) of the Code of Criminal Procedure
(for short 'the Code').
H
1068
SUPREME COURT REPORTS
[2008] 14 S.C.R.
A
5)
Section 173(8) of the Code does not envisage any
+-
investigation by a central agency created under the
Act after filing of a charge sheet, in which event, the
Court of Magistrate alone has the jurisdiction to issue
any further direction regarding investigation.
B
6)
As a first information report had already been lodged
by the Vigilance Department, another first information
report for the same cause of action could not have
~·~
been lodged by the Central Bureau of Investigation
in view of the decisions of this Court in I I Antony
c
v. State of Kera/a, [(2001) 6 SCC 181]. and Kari
Choudhary v. Mst. Sita Devi and others, [(2002) 1
sec 714].
7)
The Central Bureau of Investigation itself in IAs. 3
D
and 4 stated that a fresh first information report had
been registered on 25th June, 2003 , which goes to
show that earlier first information report as also the
'fmaterial collected therein had been totally ignored.
...
8)
The High Court in its impugned judgment, although
E
accepted that a second first information report on
the same set of allegations, (not being a counter
case) cannot be allowed but did not advert to the
legal implication thereof.
9)
After the submission of the report under sub-section
F
(2) of Section 173 of the Code, a further investigation
by another agency is impermissible in law.
r
10) The High Court committed a serious error in opining
that the first information ~eport has been lodged only
G
for the purpose of further investigation arising out of
the first information report lodged by the Vigilance
Department.
,,._ ..
11) The Investigating Officer appointed by the Central
Bureau of Investigation being not superior in the rank
H
to the police officers of the State Government who
NIRMAL SINGH KAHLON v. STATE OF PUNJAB
1069
& ORS. [S.B. SINHA, J.]
-1
had inves,tigated and submitted the report on 19th· A
September, 2002, Section 36 of the Code
whereupon reliance has been placed by the State is
inapplicable inasmuch the expression 'superior
police officer' would mean an officer superior in the
same hierarchy i.e. in the State Police and not an
B
officer of the Central Bureau of Investigation.
. -).
12) The Notification issued by the State permitting
investigation by the Central Bureau of Investigation
into the offence pursuant to the order of the High
Court must be held to be illegal as the High Court, in c
exercise of its jurisdiction under Article 226 of the
Constitution of India could not have issued such a
direction. In any event the finding of the High Court
that there was no direction to Central Bureau of
Investigation to take over investigation is contrary to D
the record of the case, as such a direction had been
-+'
issued by the High Court on 7th May, 2003, on the
.>
basis of which first information had been lodged by
the Central Bureau of Investigation as per the order
of the High Court.
E
1•
13) The High Court in exercise of its jurisdiction under
Article 226 of the Constitution of India in a public
interest litigation or otherwise cannot issue such a
direction particularly when the jurisdiction to monitor
an investigation comes to an end when a charge F
1
sheet is filed in view of the decisions of this Court in
).
Vineet Narain v. Union of India, [(1998) 1 SCC 226].
; State of Bihar v. PP Sharma, [1992 Sup. (1) SCC
222] ; Union of/ndia v. Sushi/ Kumar Modi, [(1998)
8 SCC 661] ; Rajiv Ranjan Singh 'La/an' v. Union G
of India, [(2006) 6 SCC 613) ; Rajesh v. Ramdeo,
'""'
.. 4
[(2001) 10 SCC 759) and Sasi Thomas v. State,
{(2006) 12 SCC 421) ; the High Court having no
constitutional power in this behalf which is vested
only in the Court of Magistrate.
H
I1070
SUPREME COURT REPORTS
[2008] 14 S.C.R.
A
14) Appellant Nos. 2 and 3 in appeals arising out of SLP
r.-
(Civil) Nos.