Case BriefsSupreme Court

Supreme Court: The bench of AM Khanwilkar and BR Gavai, JJ has held that not obtaining prior consent of the State Government under Section 6 of the the Delhi Special Police Establishment Act, 1946 (DPSE Act) would not vitiate the investigation unless the illegality in the investigation can be shown to have brought about miscarriage of justice or caused prejudice to the accused.


Background of the case


In the present case, a joint surprise raid was conducted by the CBI in factory premises of Fertico Marketing and Investment Private Limited and it was found that the coal purchased under the FSA was sold in the black market. It was further found by CBI that this was done in connivance with the unknown government officials which led to loss of Rs.36.28 crore to the Central Government. Hence, an FIR was registered by CBI for the offences punishable under Sections 120B and 420 of the IPC and Section 13 (2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988 (hereinafter referred to as ‘the PC Act’) against Anil Kumar Agarwal, Director of said company and unknown officials of the District Industries Centre (DIC), Chandauli.

During the course of investigation, it was found that two officers namely Ram Ji Singh, the then General Manager, DIC, Chandauli and Yogendra Nath Pandey, Assistant Manager, DIC, Chandauli were also part of the conspiracy. Investigation revealed that these two officials had abused their official positions and fraudulently and dishonestly sent false status reports regarding working conditions of the accused companies and thereby, dishonestly induced the Northern Coalfields Limited to supply coal on subsidized rates, for obtaining pecuniary advantage. Hence, a Post-Facto sanction was granted on 7th September 2018.


Arguments


Appellants

The appellants submitted that in the absence of the consent of the State Government under Section 6 of the DSPE Act, the DSPE (CBI) had no powers to conduct investigation in view of the provisions contained in Section 6 of the DSPE Act and that failure in obtaining the consent prior to registration of the FIR would go to the root of the matter and vitiate the entire investigation. It was submitted that an offence under Section 120B of the IPC read with Section 13(1)(d) of the Prevention of Corruption Act cannot stand unless there is a meeting of minds between public servant and the private individuals and as such, an FIR could not be registered. Hence, that investigation in a matter which concerns the conspiracy between the private individual and the public servant, the same would not be permitted unless there is a valid consent under Section 6 of the DSPE Act. Further, the Post-Facto sanction granted on 7th September 2018, would not cure the defect of obtaining the prior consent.

State

The State of Uttar Pradesh has accorded a general consent for extension of powers and jurisdiction of the Members of DSPE, in whole of the State of Uttar Pradesh for investigation of offences under the Prevention of Corruption Act, with the rider that no such investigation shall be taken up in cases relating to the public servants, under the control of the State Government except with the prior permission of the State Government. As such, insofar as the private individuals are concerned, there is no embargo with regard to registration of FIR against them inasmuch as, no specific consent would be required under Section 6 of the DSPE Act.

Further, public servant under the control of the State Government, if not named in the First Information Report, but if, in the further investigation, is found to be involved in the said crime, the prior permission of the State Government would not be required for investigation and the Post-Facto consent was sufficient.


Analysis


The Court noticed that though Section 5 of DPSE Act enables the Central Government to extend the powers and jurisdiction of Members of the DSPE beyond the Union Territories to a State, the same is not permissible unless, a State grants its consent for such an extension within the area of State concerned under Section 6 of the DSPE Act.

Vide notification dated 15th June 1989, the State of Uttar Pradesh accorded a general consent thereby, enabling the Members of DSPE to exercise powers and jurisdiction in the entire State of Uttar Pradesh with regard to investigation of offences under the Prevention of Corruption Act, 1988 and also to all or any of the offence or offences committed in the course of the same transaction or arising out of the same facts.

On appeal filed by the private individuals

“As such, for registration of FIR against the private individuals for the offences punishable under the Prevention of Corruption Act and other offences under the IPC, committed in the course of the same transaction or arising out of the same facts, the Members of DSPE have all the powers and jurisdiction. As such, we find absolutely no merits in the appeals filed by the private individuals.”

On appeal filed by the public officers

“… there are no pleadings by the public servants with regard to the prejudice caused to them on account of non-obtaining of prior consent under Section 6 of the DSPE Act qua them specifically in addition to the general consent in force, nor with regard to miscarriage of justice.”

The Court, hence, found no reason to interfere with the finding of the High Court with regard to not obtaining prior consent of the State Government under Section 6 of the DSPE Act.

[Fertico Marketing and Investment Pvt. Ltd. v. Central Bureau of Investigation, 2020 SCC OnLine SC 938, decided on 17.11.2020]

Interviews

Dr. G. K. Goswami, IPS is a decorated officer currently serving as Inspector General of Police, State of Uttar Pradesh. He is a three-time recipient of the Police Medal for Gallantry, the highest national award for police. He is also a proud recipient of the Police Medal for Meritorious Service conferred by the President of India and the Gold Medal for Gallantry conferred by the Governor of Uttar Pradesh. He recently became the first Indian to be awarded the postdoctoral DSc degree from National Forensic Sciences University, Gandhi Nagar.

Having served as Joint Director, Central Bureau of Investigation for seven years, Dr. Goswami talks about the roles and functions of CBI and why it continues to be the preferred agency for investigation of sensitive cases in this interview with Prachi Bhardwaj.

1. Please tell our readers something about your academic and professional background

Well, I hail from rural part of Western Uttar Pradesh. My initial schooling was in Hindi medium from my village school. Later, I did Masters and PhD in Medicinal Chemistry. Meanwhile I got selected for Provincial Civil Service in my State. In 1997, I joined Indian Police Services and was allotted Uttar Pradesh Cadre. While in service, I completed LLB and LLM and secured several gold medals. My passion for learning motivated me to complete second PhD from Tata Institute of Social Sciences, Mumbai. Recently, I have recently been awarded postdoctoral DSc degree from National Forensic Sciences University, Gandhi Nagar under the mentorship of Dr. JM Vyas, Vice Chancellor. My focus in research is mainly to explore the interface between Law and Science. I have been selected for Flex Award of the Fulbright-Nehru Academic and Professional Fellowship (2020-21) and plan to visit soon the Cornell University in the USA to learn about fine nuances of “Innocence Project” which pertains to correcting the injustice done to wrongly convicted innocent persons. National Law University, Delhi (NLUD), National Forensic Science University (NFSU, Gandhinagar and Rashtriya Raksha University (RRU), Gandhinagar in recognition of my academic contribution, have designated me as their Honorary Professor of Law.

After serving for more than seven years, on central deputation as Joint Director, Central Bureau of Investigation, India, I joined State of Uttar Pradesh as Inspector General of Police. I got opportunity to serve as District Police Chief (SSP) in various districts including Lucknow, Agra, Varanasi, NOIDA, Moradabad, Etawah, etc. I also rendered my expertise as Operational Chief while posted as SSP, Anti-Terrorist Squad (ATS) of Uttar Pradesh. Earlier, I also worked on foreign deputation as an expert on organised crimes in the United Nations Office on Drug and Crime (UNODC) and had the opportunity to visit many countries to share experience and views on wide spectrum of issues related to policing and law enforcement.

2. Almost everyone knows what CBI is but not many know that it was originally set up only to investigate bribery and corruption. Please enlighten our readers about how the CBI that we know today came into existence.

The origin of the Central Bureau of Investigation (CBI) can be traced back to 1941 during Second World War, when the British Government in India, for specific purpose, initiated Special Police Establishment (SPE) with headquarter at Lahore, to investigate cases of alleged bribery and corruption in transactions with War and Supply Department of India. The Delhi Special Police Establishment Act, 1946 braces the legal sanctity for this organisation and widened its scope for investigation to entire country. The name CBI came into existence from 1 April 1963 having Padam Bhushan Sri DP Kohli as its founding director.

3. What is a CBI investigation and how is it different from a police investigation?

Well, legally speaking, CBI and State police draw investigating powers from same sources like the Indian Penal Code, Indian Evidence Act, 1872, Criminal Procedure Code, 1973. However, there may be very few procedural variations based on traditions. The major strength of CBI lies in its procedural probity and professionalism. The investigators in CBI, compared to local police are specialised and over the period of time have gained domain expertise. Further, CBI equally emphasises on follow up of cases during court proceedings. The local police have multi-tasking, having foremost priority for maintaining law and order; consequently, for them investigation and trial take the back seat in order of priority. On the other hand, CBI is devoted to investigation with scientific temper and rigorous multi-layered supervision by senior and experienced police officers. Senior police officers are selected from all over India for time bound deputation based on a rigorous process. These supervisory officers are the backbone of the Bureau since they have huge experience and repute and provide all India canvas to the organisation. Prosecutors also immensely contribute to CBI during investigation in addition to courtroom activities.

4. How is the CBI different from the National Investigation Agency?

The National Investigation Agency (NIA) is mandated primarily to investigate and prosecute cases related to national sovereignty and security. Earlier this mandate was assigned to CBI but now NIA, under the NIA Act, 2008 is assigned this onerous task. Dealing with terrorism in tandem with the States is forte of NIA.

5. What kind of crimes can the CBI investigate?

The areas for crime investigation by CBI are assigned under Section 3 of the DSPE Act. At present, CBI investigates and prosecutes various domain of heinous and complex cases like conventional crimes (murder, rape, etc.), anti-corruption, banking and financial institutions’ frauds, economic offences, cybercrimes, etc. CBI has specialised branches, having territorial jurisdiction, spread all over India.

6. Can CBI suo-motu initiate investigation in a matter?

One must understand that crime control and maintenance of law and order are subject of State List as enshrined under the Seventh Schedule of Article 246 of the Indian Constitution, 1950. The DSPE Act enables CBI to register and investigate a criminal case against public servant (including private persons or company) serving in an office of the Central Government located anywhere in India. Legally speaking, CBI has inherent jurisdiction in Union Territories for offences described under Section 3 of the DSPE Act.

However, as convention for amicable relationship, cases related to other than office of Central Government are being investigated by CBI only after a notification (under Section 5 of the DSPE Act) of the Central Government on the request of transfer of investigation to CBI by Notification of the State Government (under Section 6 of the DSPE Act). The Central Government has discretion to accept or reject the notification of the State government for transfer of investigation. In case of offences, with certain exceptions, under the Prevention of Corruption Act, 1988 read with PC (Amendment) Act, 2018 prior approval of the government under Section 17-A is needed prior to institute enquiry, inquiry or investigation. However, the constitutional courts (the Supreme Court for entire India and the high court within territorial jurisdiction) has inherent power to transfer the investigation of a criminal matter to CBI, PIL here plays significant role.

7. Some States have withdrawn “General Consent” to investigate – what does that mean and how does that function? Can the Supreme Court or High Courts still direct a CBI investigation in those States?

Section 3 of the DSPE Act, empowers the Central Government to specify the offences that may be investigated by CBI, in furtherance of which, State Governments extends written consent i.e. “general consent” that investigation may be carried out by CBI for such specified offences as far as the persons employed in the Central Government are concerned. Consent or no consent, CBI suo motu cannot initiate investigation against any State Government official or employee without specific notifications of the state and the central government.

The State also has the power to withdraw its consent, if so desired, but from a prospective effect. It cannot withdraw consent retrospectively after the case has been registered by CBI. The effect of the withdrawal of the consent would be that CBI cannot initiate investigation or enquiry against employees of the central government.

As far as the second part of the question is concerned, there is neither a written law that states that the Supreme Court and the High Courts can direct a CBI investigation in the States where general consent has been withdrawn, nor is there any bar on the higher judiciary to do so. However, as per precedents, the Supreme Court and High Courts can direct a CBI investigation anywhere in the country without the consent of the State.

8. How important is the role of State Police in CBI investigation? What kind of relationship do both share?

CBI, once assume a criminal case, per se, is completely independent to investigate and State Government has no direct role or control. However, it is expected from the State to cooperate CBI in order to facilitate fair investigation, and if needed, provides basic amenities and support like guest house, etc.

9. As we recently saw in the Sushant Singh Rajput’s death case, most often than not, by the time a case is handed over to the agency, much time has already lapsed since the date of occurrence of the event that is to be investigated. Would you walk us through the process of enquiry and collection of evidence in such cases?

It is a fact that CBI assumes cases after lapse of time which sometimes may extend to several years. By the time, the scene of crime generally got contaminated due to multiple visits by several persons including the local police. The casual approach of stakeholders, ruthlessly compromise the integrity of crime scene, posing great challenge to investigators for collection of physical and forensic evidence having evidentiary credence. Nevertheless, professional agency like CBI does its level best to collect the evidence with the help of forensic and other domain experts to reach to the bottom of truth behind a crime. Law enforcement agencies (LEA), in conventional crime like murder, constitutes a team of domain experts, which visit the crime scene, conduct detailed inspection of place of occurrence (PoO) and if needed, recreates the crime scene. For this purpose, dummies and other forensic tools are used to recreate the chain of events. Indeed, Criminalistics plays great aid for investigation in such situations. In cold or blind cases, LEAs take services of experts of deception detection techniques (DDTs or Truth machines) such as Polygraph (Lie Detector), Brain Mapping, Narco-analysis and psychological autopsy. However, the finding of these techniques, per se, has no evidentiary value until lead to some recovery under Section 27 of the Indian Evidence Act. However, these techniques may be useful to get some clinching clues as ray of hope in blind landscape for advancing investigation. Narco-analysis has evident conflicts with the right against testimonial compulsion and hence banned in various developed nations. In India, Selvi v. State of Karnataka [(2010) 7 SCC 263] deals with this issue and allowed to conduct DDT with prior consent of the subject. However, in my view this issue needs detailed legal discourse.

10. High profile cases such as the Sushant Singh Rajput investigation or as we saw in Arushi-Hemraj case, investigation is under extreme media scrutiny, some would say, the media is being the investigator, prosecutor, judge and jury all in one,

(a) how difficult is it to investigate such?

(b) Investigation officers are after all human, can they be expected to not be influenced by the media reports?

Well, I feel that once a case is assigned to prestigious Bureau, people including media must have faith on the investigating agency and if anyone has any clue, it may be shared with the investigating team or the Bureau. Media widely influences public perception and hoi polloi wish to have same result of investigation as projected on TV screen, which may be sometimes otherwise based on final analysis of facts and evidence of a case. Normally, professional agency like CBI is used to face such adverse conditions, but independent witness of the case may suffer more with the line of media projection and may vacillate to come forward to assist during the course of investigation.

11. To sum up, despite criticism, why do you think CBI continues to be the preferred agency for investigation of sensitive case?

As discussed above, CBI is known for its professional approach which is recognised by everyone including judiciary and media. Neutrality and transparency in decision making including investigation, in general, are the essentials to earn public faith. Further, I strongly believe that State police have excellent officers at all ranks, but they are not specialised, and more so, overburdened with umpteen number of duties having priority over investigation and trial. In my humble opinion, if State police is strengthened in terms of the separation of law and order from criminal investigation, training of investigators and supervisory officers, facilitating culture of specialisation, augmenting forensic facilities, legal assistance at level of investigation, the faith of common men in investigation by the State police may be restored, which is need of the hour.


*Associate Editor, EBC Publishing Pvt. Ltd. 

Hot Off The PressNews

Supreme Court: The Court has declined to stay the investigation by the Central Bureau of Investigation (CBI) into the alleged involvement of some PMO officials in the coal scam case against Jindal Steel.

The CBI had on January 5 registered another case in the coal block allocation scam, which took place during 1993 and 2005. The case was registered against JSW Ispat Steel Limited, then Nippon Denro Ispat Limited (NDIL), and some unknown public servants. According to FIR, the Ministry of Coal at the time had allocated the coal block to NDIL, which was not in line with the notification issued for the coal block to be allocated to private companies.

The CBI said that the Coal Ministry had issued a notification that allowed a company to have two subsidiary companies, with one running a power plant and
the other for mining coal exclusively for the plant. However, the arrangement resulted in the coal block to be run by the Central India Power Company Limited (CIPCO), a company set up by the Ispat Group, with another company — Central India Coal Company Limited (CICCL) — would be mining the coal, while the Ispat Urja Limited owned 26 per cent equity capital in both the firms.

The CBI further alleged the NDIL was allocated the Khiloni Block even after several screening committees agreed not to put it up for allocation. The NDIL FIR pertains to the blocks allocated to it from 1996 to 1998. The preliminary enquiry in the case covered the allocation of 24 coal blocks during the period of 1996-2005. The preliminary enquiry (PE) was started in 2012 based on a complaint by seven MPs including Sandeep Dikshit, which was converted into an FIR on December 31, 2019.

(Source: ANI)

Case BriefsHigh Courts

Orissa High Court: Biswanath Rath, J. dismissed the writ petition under Articles 226 and 227 of the Constitution of India seeking the quashing of the order whereby the petitioner herein was punished for discharging his duty dishonestly and also sought reinstatement of the petitioner in his service with all the consequential benefits.

In the instant case, the petitioner who was the Branch Manager in State Bank of Hyderabad GCP, Bhubaneswar Branch was handed a charge memo with allegations of his failure of discharging his duty with good faith. Further, an enquiry officer was appointed by the Disciplinary Authority (General Manager) to look into the matter. Subsequently, the petitioner denied the aforesaid allegations and finding it to be against natural justice filed the present writ petition.

B. Tripathy, the counsel for the petitioner, pleaded that the enquiry report thereafter provided without informing the petitioner suffered on account of non-supply of document applied for. It did not provide the opportunity of examination of the witnesses of the petitioner and of himself. There was no opportunity to show cause before the imposition of punishment of penalty of compulsory retirement. Appeal was not considered on the grounds raised. Further, the procedure followed by the enquiry officer was also unknown to law. Moreover, the General Manager had no authority to impose punishment merely on the basis of the above-said report and thus the counsel requested for the impugned order of punishment to be nullified to restore the petitioner’s original position.

However, the counsel for the respondent, S. P. Das contended that the petitioner was given the first chargesheet after finding a series of irregularities in his work examined by the Assistant general manager himself. He was also asked to file a show cause thereof. He was given a reasonable time of fifteen days and also an extension of another fifteen days on request. But finding his response unsatisfactory, order for the departmental enquiry was made. Also, the petitioner was given sufficient time to verify his records in the branch office so his claim of non-supply of documents was also false. Further, the benefit of the doubt given by the CBI(Central Bureau of Investigation) Court to the petitioner did not have any bearing on the enquiry. In the context of presenting witnesses, the petitioner himself denied to present any. Further as far as imposition of punishment was concerned, at no occasion, the management made such declaration. So all the allegations made on part of the petitioner thereby fail.

In view thereof, the Court found that the impugned order was not passed by an incompetent officer as has been alleged by the petitioner. It also found that the petitioner was given a reasonable time to get his documents verified. It opined that only after the unsatisfactory reply of the petitioner, the enquiry was initiated. It took into cognizance that there was no complain made by the petitioner during the enquiry to present his witnesses. It made it clear that the petitioner had to get a clean-chit not just in CBI enquiry but also in the departmental proceedings. Therefore holding that there is no merit in this present writ petition brought up by the petitioner, the Court dismissed it. [Bansidhar Senapati v. SBI, 2020 SCC OnLine Ori 10, decided on 17-01-2020]

Case BriefsTribunals/Commissions/Regulatory Bodies

The Special Judge, CBI Cases, Ranchi has awarded the Death Sentence with a fine of Rs. 5000/- under Section 302 of IPC; Life imprisonment with fine of Rs. 5000/- each under Sections 376 & 449 of IPC and 7 years Rigorous imprisonment with fine of Rs. 5000/- under Section 201 of IPC to accused Rahul Kumar (Private person) resident of Dhurgaon, District-Nalanda (Bihar) in a case related to rape and murder of a victim.

CBI had registered a case on 28.03.2018 U/s 448/302/201/328/376/511 & 34 of IPC against unknown persons on the request of Jharkhand Government and further Notification from Government of India. The case was earlier registered on 16.12.2016 at Sadar Police Station, Ranchi and later handed over to CID of Jharkhand. It was alleged that on 15/16.12.2016, the victim, an Engineering Student of 4th Semester of an Engineering College, Ormanjhi, Ranchi who was alone in her house at Booty Basti, Ranchi, was found dead. On the fateful day i.e. on 16.12.16, in the early morning, the elder sister of the victim who was with her parents at Barkakana District Ramgarh tried to contact the victim on her mobile, however, when she did not get any response from the victim, she called up a neighbour to check. The lady neighbour, who was previously their tenant at Ranchi, visited the victim’s house and saw that the victim was found lying dead in her room. As soon as the news regarding rape/ murder of the victim spread, the students of the said Engineering College reached the place in the college buses and demanded immediate justice for the victim. The students also held a candle march. The movement of students of said Engineering College was also joined by other colleges and also supported by others including the local public.

CBI took over the investigation of the case from the State Police and found that one person namely Rahul Kumar who was living nearby areas two-three months ago from the date of occurrence and then left the place. During further investigation, it was found that Rahul Kumar, a resident of Dhurgaon, Distt: Nalanda(Bihar) was absconding. He had hidden his identity and used his name as Rahul Raj @ Aryan @ Rocky Raj @ Raj Srivastav @ Amit @ Ankit. After sincere efforts, he was traced. He was earlier arrested by Uttar Pradesh police. After taking production warrant, Rahul was produced from Lucknow Jail and remanded in this case. The accused was examined and his blood sample was obtained for DNA examination. The DNA profile of Rahul Kumar was matched with the deceased.

After thorough investigation, CBI filed a Charge Sheet in the Designated Court on 13.09.2019 against accused Rahul Kumar. The Court framed charge against the accused on 25.10.2019. Prosecution evidence started from 08.11.2019. During a very short period of about 16 days, all 30 prosecution witnesses were produced and examined by CBI.

The Trial Court found the accused guilty and convicted him on 20.12.2019.


Central Bureau of Investigation

[Press Release dt. 21-12-2019]

Hot Off The PressNews

The National Human Rights Commission, NHRC, India has received a communication from Shri Henri Tiphagne, a human rights activist associated with Human Rights Defenders’ Alert, HRDA-India expressing grave concern over filing criminal cases by the CBI on 13.06.2019, against human rights organization “Lawyers Collective”,  and its other unnamed functionaries. It is mentioned that the FIR has been filed by the CBI on 13.06.2019, under various sections of the IPC, Foreign Contribution Regulation Act, 2010 (FCRA) and Prevention of Corruption Act (PC) 1988. The Ministry of Home Affairs, Government of India, New Delhi has reportedly written to the CBI on 15.05.2019 for further investigation.

The complainant has stated that the Lawyers Collective is a group of lawyers with a mission to empower and change the status of marginalized groups through the effective use of law and engagement in human rights advocacy, legal aid and litigation. It is also mentioned that Shri Anand Grover was the UN Special Rapporteur on Right to Health between August 2008- July 2014 and Ms. Indira Jaising was an Addl. Solicitor General of India between July 2009- May 2014 and a member of the UN Committee on the Elimination of Discrimination Against Women between 2009-2012. It is also stated that registration of criminal cases by the CBI against this organization is a step to intimidate and harass them for their human rights work.

The HRDA has requested the Commission to exercise the provisions laid down under Section 12 (b) of the PHR Act, 1993 and act on its long-standing request of urgently reviewing FCRA.

The Commission has also received a similar complaint from Ms. Maja Daruwala, Senior Advisor of Commonwealth Human Rights Initiative, expressing concern on Ms. Jaisingh that she and her husband are being victimized for the work that they have done in Court of Law in their capacity as lawyers. She also stated that a pattern of intimidation is going on against anyone who challenges Government policies. To substantiate her concerns, Ms. Daruwala referred Ms. Jaisingh about the timing of allegations made against her and her husband. She also stated that Ms. Jaising and Mr. Grover are long standing, reputed lawyers and Human Rights Defenders of high integrity, reputed both at home and abroad.

The Commission has carefully examined the contents of both the communications. The Commission while considering earlier communications received from various human rights defenders, have made it clear that the matter related to alleged violation of norms of FCRA and suspension of the organization by the Government of India due to alleged violation of norms is a subject which is outside purview of the Commission. However, with regard to submission made by Shri Henri Tiphagne and Ms. Maja Daruwala that filing of criminal charges against their organization is solely based on a report of the Ministry of Home Affairs pertaining to the year January, 2016 and there has been no change in circumstances or material on record since 2016 and hence, it has no material basis for invoking provisions of the IPC and other acts is definitely a subject matter of investigation by the investigating agency, but the Commission is also empowered under the Protection of Human Rights Act, 1993 to examine the issue to make it non-discriminatory and to avoid arbitrariness. Shri Henri Tiphagne has also stated that the MHA’s communication to the CBI and registration of the FIR has been after a petition was filed by an NGO, “Lawyers Voice” in the Supreme Court on 08.05.2019 where Supreme Court has issued the notice. Ms. Maja Daruwala has also noted that Ms. Jaisingh is known world over for her work on women’s rights, civil liberties and high standards of bar and bench in court proceedings.

Taking into consideration that Shri Anand Grover and Ms. Indira Jaising have been actively raising the issues pertaining to alleged violation of human rights across the country and looking into their active role in the civil society, the Commission finds it appropriate to forward copies of the complaints lodged by Shri Henri Tiphagne and Ms. Maja Daruwala to the Director, Central Bureau of Investigation, New Delhi calling for present status of the investigation in the matter within 4 weeks.”


[Press Release dt. 21-06-2019]

National Human Rights Commission

Case BriefsHigh Courts

Calcutta High Court: Protik Prakash Banerjee, J. granted interim protection from arrest to Rajeev Kumar in the Saradha Chit Fund case.

The petitioner, Rajeev Kumar, had approached the Court with an application for the quashing of the proceedings against him. The case of the respondent, the Central Bureau of Investigation, was that the petitioner, who was a member and in charge of the special investigation team formed by the State of West Bengal to investigate the Saradha Chit Fund case, had suppressed relevant documents and not handed them over to CBI when he was required to. Thus the CBI had accordingly summoned the petitioner for questioning.

The learned counsel for the petitioner, Sudipto Moitra appearing along with Gopal Chandra Halder, Navanil De, Rudradipta Nandy and Rajeev Kumar Jha, took a plea that notices served to the petitioners did not require custodial interrogation. The learned counsel also submitted that the fact that no FIR was registered against the petitioner and he wasn’t named as an accused or witness in the charge sheet filed by the CBI showed that no coercive process should be continued against the petitioner.

The learned counsel for the respondent, Y. Dastoor appearing along with Anirban Mitra and Samrat Goswami submitted that his client was attempting to ask the petitioner questions so as to decide in the first place, whether there was a reasonable basis to suspect him. The respondent had shown clear neutrality and that is why the petitioner was being given every opportunity to clear doubts against him.

The Court observed that the main question in the case was whether in absence of any allegation of offence under Sections 201, 202 of the Penal Code, 1860, could the given course of conduct be meted out to the petitioner. The Court opined that such a matter required more discussion and hence it was held that the petition would be heard by the regular Bench on 12-06-2019.

The Court further held that for a period of one month from the date of reopening or until further order, whichever was earlier, the petitioner would not be subjected to coercive process or be arrested on certain specified conditions that the petitioner had to adhere to.[Rajeev Kumar v. Central Bureau of Investigation, 2019 SCC OnLine Cal 793, decided on 30-05-2019]

Case BriefsTribunals/Commissions/Regulatory Bodies

Appellate Tribunal for Prevention of Money Laundering: A Coram of Justice Manmohan Singh (Chairperson) and G.C Mishra (Member) allowed an appeal against the order passed by the Adjudicating Authority to retain seized assets based on a reasonable belief of the respondents.

In this instant case, an FIR was registered by the Central Bureau of Investigation in relation to allegations that Sterling Group of companies and the Sandesara Group were involved in bribing public officials in the period between the period 2005 to 2011 for obtaining tenders for the supply of goods, loans by banks and financial institutions. The statements of one Ajay Panchal, who was maintaining diaries in the year 2011 was recorded, and it was stated that Angadias, one of the appellants, were involved in the transfer of suspected proceeds of crime from Vadodara to Delhi between “Starling Biotech Limited and various individuals/entities based in Delhi”. There was a search of the appellant’s premises and properties were seized based on the FIR.

The Appellate Tribunal took note of the allegations against the appellants and ordered that the impugned orders were passed without any due consideration to the provisions of the Prevention of Money Laundering Act, 2000. The Appellate Tribunal, in its findings, opined that the allegations that the appellant’s services were used to transfer funds from the Sandesara Group to certain public officials did not hold true since the averment as to the whether there were any proceeds of crime was not concluded by the Directorate of Enforcement. The properties seized, pertained to the year 2017 whereas in the FIR and complaints it was noted that the transactions took place between 2005 and 2011. The Tribunal opined “the impugned orders have been passed without any application of mind and in a completely mechanical manner.”

 It was noted by the Tribunal that the Respondents failed to produce any material having relation or link between the appellants and Sterling Biotech Ltd., they also could not provide any proceeds of crime being generated from the transactions. The Petitioners have the option to enforce Section 8(8) of PMLA which provides an alternative statutory remedy to allow the release of property even during trials. The Appellate Tribunal noted that Sections 17 to 21 of PMLA provide that the outer limit up to the date for deciding the application for retention of property within the meaning Section 21(4) is 180 days from the date of seizure of any property or records and this said period cannot be extended. Thus, the Appellate Tribunal reiterated the provisions of Sections 17 and 18 of PMLA and stated that if the Adjudicating Authority has a legitimate reason for investigation of the said property, it should pass an order on the same and direct for investigation wherein the assets will be frozen for a period not exceeding 90 days, otherwise, the properties shall be defreezed.

The Appellate Tribunal ordered that in this instant case, the properties were seized for the purpose of investigation and the 90 days period had elapsed and there were no concrete averments against the appellants or their property hence the properties were to be defreezed.[Kapoor Chand Galbaji Prajapati v. Joint Director, Directorate of Enforcement, Delhi, FPA-PMLA-2231-2334/DLI/2018, decided on 02-05-2019]

Case BriefsTribunals/Commissions/Regulatory Bodies

Central Information Commission (CIC): Mr Divya Prakash Sinha, Information Commissioner directed the Central Bureau of Investigation (CBI) to disclose and share information relating to corruption or human rights violation irrespective of the fact the information pertains to the intelligence or security organizations, its own officers or matters being investigated by the organization.

In a Right to Information (RTI) application filed by the Appellant, details regarding irregularities committed in allotting LPG distributorship by the officers of the Indian Oil Corporation Ltd., Jaipur and in particular against, Ranjeet Singh, were sought. However, the Central Public Information Officer (CPIO) refused to provide any information citing Section 24 (1) of the Right to Information Act, 2005 which states that the intelligence and security organizations are exempted from the Act, but if the issue pertains to corruption or human rights violation, the same shall not be exempted from the exclusion clause, and has to be disclosed under the RTI Act.

During the proceedings, learned counsel for the Respondent, R.S. Shekhawat, Deputy SP and Rep. of CPIO, Central Bureau of Investigation, Jaipur further referred to written statements of the CPIO sent to the Commission wherein it had been submitted that CPIO, CBI is obliged to provide information relating to an allegation of corruption against its own employees and not regarding cases of corruption being investigated by the CBI.

The Commission rejected the contention made by the Respondents and referred to the Delhi High Court judgment of CPIO, Intelligence Bureau v. Sanjiv Chaturvedi, 2017 SCC OnLine Del 10084, wherein it was held that the term “any information” in the proviso to Section 24 (1) includes all kinds of information. It further stated that “The proviso becomes applicable if the information pertains to allegations of corruption and human rights violation. The proviso is not qualified and conditional on the information being related to the exempt intelligence and security organizations. If the information sought, furnished by the exempt intelligence and security organizations, pertains to allegations of corruption and human rights violation, it would be exempt from the exclusion clause.” The High Court concluded that “the only conclusion that can be drawn is that, if the information sought pertains to allegation of corruption and human right violation, it would be exempt from the exclusion clause, irrespective of the fact that the information pertains to the exempt intelligence and security organizations or not or pertains to an Officer of the Intelligence Bureau or not.”

In view of the above, the Commission disposed this appeal stating that the aforesaid judgment shall be applicable in the instant case, and also directed the Director of CBI to sensitize its CPIOs on Section 24 of RTI Act by way of appropriate workshops. [Radha Mohan Sharma v. CPIO, Central Bureau of Investigation, 2019 SCC OnLine CIC 298, decided on 08-05-2019]

Case BriefsHigh Courts

Calcutta High Court: The Bench of Protik Prakash Banerjee, J., addressed a petition involving substantial questions of law as to the interpretation of the Constitution of India and requested the matter to be placed before Chief Justice/Acting Chief Justice.

Learned amicus curiae Mr Phiroze Edulji had stated in regard to the questions of law as to the interpretation of the Constitution of India, be referred to the Division Bench taking such cases for disposal within meaning of second proviso of Rule 1 of Chapter 2, Part II of the Appellate Side Rules or to Chief Justice/Acting Chief Justice to appoint Special Division Bench consisting of three or more Judges since a question of finality of decision of this Court would also be involved.

The substantial questions of law as to the interpretation of the Constitution that were present in the petition were as follows:

1. What is the effect of an order of the Supreme Court which stays the operation of a final order of a Division Bench of a High Court which holds that a Central Statute is not a valid piece of legislation?

2. Whether the Delhi Special Police Establishment Act, 1946 is a valid piece of legislation?

3. Whether the Central Bureau of Investigation is an organ or a part of Delhi Special Police Establishment?

4. In a Constitution having federal form with distinct feels of legislation apportioned to the federal legislature and/or the federating legislature with corresponding executive power where law and order and their maintenance are part of the power given to the federating states whether a federal police force even for investigation can be made by central legislation without following the procedure established by the Constitution of India for central legislature making laws which would be enforceable in each of the States?

5. Whether admission of special leave petition and stay of a final judgment of nature referred to above would mean that Supreme Court has declared any law by such interim order of stay?

Therefore, the High Court on noting the questions present in the case stated that the mentioned questions should be decided by the bench whose Judgment would be binding on all the Courts of the State.

Thus the matter be placed before Chief Justice/Acting Chief Justice for an appropriate order. [Chandan Biswas v. State of W.B.,  2019 SCC OnLine Cal 485, Order dated 29-03-2019]