E. Sivakumar vs Union Of India

REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

SPECIAL LEAVE PETITION (CIVIL) NO. OF 2018 (Diary No.17180/2018)

E. SIVAKUMAR ....Petitioner(s)

:Versus:

UNION OF INDIA AND ORS. ....Respondent(s)

ORDER

A.M. Khanwilkar, J.

1. This special leave petition takes exception to the

judgment and order of the High Court of Judicature at Madras

dated 26th April, 2018 in Writ Petition No.19335 of 2017,

whereby the High Court has issued a writ of mandamus to

Signature Not Verified transfer the investigation of a criminal case concerning the Digitally signed by R NATARAJAN

illegal manufacture and sale of Gutkha and Pan Masala, Date: 2018.05.18 16:16:03 IST Reason:

2

containing Tobacco and/or Nicotine, to the Central Bureau of

Investigation (“CBI”).

2. The petitioner has been named as an accused in the FIR

because of his alleged involvement in the crime under

investigation. The petitioner at the relevant time was posted on

deputation as Food Safety Officer in the Food Safety and Drug

Administration Department, Ministry of Health. The stated

crime was being investigated by the State Vigilance

Commission, constituted by the State of Tamil Nadu, headed

by a Vigilance Commissioner. The gravamen of the challenge

to the impugned judgment is on four counts:

(i) First, that the prayer for transfer of investigation of the crime in question to the CBI has already been considered and negatived by the Coordinate Bench of the same High Court in Writ Petition No.1846 of 2017 vide judgment dated 27th January, 2017 and again in Writ Petition No.12482 of 2017 vide judgment dated 28th July, 2017. These decisions have been completely disregarded in the impugned judgment.

3 (ii) Second, the petitioner though named as an accused in the FIR was not given an opportunity of hearing nor was made a party in the public interest litigation in which the impugned judgment has been passed. Resultantly, the judgment under appeal is a nullity and liable to be set aside only on this score.

(iii) Third, no special circumstances have been noted by the High Court in the impugned judgment for transferring the investigation to CBI. The High Court has not even bothered to examine the efficacy of the status report regarding the investigation done by the Vigilance Commission. In other words, there was no tangible ground for directing investigation of the crime in question by the CBI.

(iv) Lastly, it is contended that the writ petition filed as public interest litigation was politically motivated having been filed by a member of the Legislative Assembly in the State of Tamil Nadu.

3. To buttress the above-mentioned grounds of challenge,

reliance is placed on the decision of this Court in the case of

State of Punjab Vs. Davinder Pal Singh Bhullar and Ors.1 1 (2011) 14 SCC 770 4

4. The admission of this special leave petition is opposed by

respondent No.14 (writ petitioner). It is urged on behalf of

respondent No.14 that the High Court has considered all

aspects of the matter and being satisfied about the

imperativeness of a fair investigation of the crime in question

involving high ranking officials and the tentacles of the

conspiracy in commission of the crime transcending beyond

the State of Tamil Nadu and into different States, it deemed it

appropriate to issue a writ of mandamus to transfer the

investigation to CBI. It is contended that there is no merit in

the objections raised on behalf of the petitioner.

5. We have heard Mr. Mukul Rohatgi, learned senior

counsel appearing on behalf of the petitioner and Mr. P.

Wilson, learned senior counsel appearing on behalf of

respondent No.14.

6. On a careful consideration of the impugned judgment, we

agree with respondent No.14 (writ petitioner) that the High

Court has cogitated over all the issues exhaustively and being

fully satisfied about the necessity to ensure fair investigation 5

of the crime in question, justly issued a writ of mandamus to

transfer the investigation to CBI. As regards the first point

raised by the petitioner, we find that the High Court was alive

to the fact that the Coordinate Bench of the same High Court

had occasion to decide Writ Petition No.1846 of 2017 and Writ

Petition No.12482 of 2017, as can be discerned from the

discussion in paragraphs 107 to 122 of the impugned

judgment. As regards Writ Petition No.1846 of 2017, that was

filed by one P. Wilson, a lawyer by profession. Indeed, it was

filed as public interest litigation to initiate an

inquiry/investigation into the allegation of corruption,

investigate, prosecute and ferret out the truth regarding the

connivance of senior police officers as noted by the

Commissioner of Police, Chennai City, in his letter dated 22nd

December, 2016 addressed to the Principal Secretary, Home

Department, Government of Tamil Nadu. The Court, however,

found that the said petition lacked specific ground and

material and, more so, the Court doubted the bona fides of the

petitioner therein and thus summarily rejected the petition

vide judgment dated 27th January, 2017. As regards Writ 6

Petition No.12482 of 2017, filed by one K. Kathiresan, a lawyer

by profession, as public interest litigation, the relief claimed

was primarily to quash an order dated 30th June, 2017

granting extension of service to respondent No.5 therein and

further, to direct registration of a case in reference to the

communication sent by the Commissioner of Police, Chennai,

in respect of sale of banned substances, namely, Gutkha and

Pan Masala in the State of Tamil Nadu and to constitute a

Special Investigation Team to investigate the case under the

direct monitoring of the High Court. Thus, the primary

concern in the said writ petition was about the appointment of

respondent No.5 therein as Director General of Police on

account of his name being referred to in the incriminating

documents seized by the Income Tax Department from the

partners of a gutkha manufacturing concern. In the analysis

of the case, the Coordinate Bench vide its judgment dated 28th

July, 2017 noted the prayer of the said writ petitioner to direct

the CBI to take over the investigation by constituting a Special

Investigating Team. The Court did advert to the question of

entrusting the investigation to CBI in paragraphs 25A to 25D 7

of the said judgment. However, after perusal of the case diary

of the Director of Vigilance and Anti Corruption, the Court

opined that the investigation of the crime was in progress.

Therefore, it only issued directions to strengthen the

investigation by Vigilance Commissioner in paragraph 30 of

the said judgment. In that context the Court noted that it was

not necessary to transfer the inquiry/investigation to CBI.

That is the thrust of the analysis of the previous judgments, if

read in proper perspective. These aspects have been duly

taken note of in the impugned judgment in paragraphs 107

onwards, including the legal position on the doctrine of res

judicata and finally answered in paragraphs 141 to 144 of the

impugned judgment in the following words:

“141. As observed by K.K. Sasidharan and G.R. Swaminathan,JJ. in K. Kathiresan, supra, the Vigilance Commission headed by the Vigilance Commissioner has extensive powers to curb corruption and initiate action against government servants and servants of public sector undertakings for acceptance of illegal gratification and matters incidental thereto. The State Vigilance Commission might enquire into allegations of corruption against officials of the State Government. The State Vigilance Commission might also conduct a detailed enquiry to fix the responsibility for the loss of the file containing incriminating materials handed over to the then Chief Secretary by the Principal Director of Income Tax (Investigation) on 12.8.2016 and ensure that the guilty are brought to book and appropriate 8

action taken in accordance with law. However, investigation by the Vigilance department is from the angle of vigilance. The aim is to detect corruption. The power of the Vigilance Commission to investigate would not extend to an enquiry into the modus operandi of the gutkha mafia, the mode and manner of import from other States, distribution and sale of gutkha and other chewable forms of tobacco, and detection of the sources of supply. Enquiry by the Vigilance Department would not unearth secret storage and manufacturing units. Nor would such investigation be able to detect incidents of illegal import, supply and sale or nab those actually manufacturing, supplying, importing, selling or otherwise dealing with prohibited food items containing tobacco and nicotine such as gutkha.

142. Investigation by a centralized agency like the CBI would be more comprehensive and cover all aspects of the illegal manufacture, import, supply, distribution and sale of banned chewable tobacco items, including the detection of all those involved in such illegal import, manufacture, supply, distribution and sale, as also the detection of corruption and complicity of public servants and/or government servants in this regard. As observed above, there is no conflict between CBI investigation and investigation by the State machinery. Investigation can be carried out more effectively with the CBI and the Vigilance Department working in cooperation.

143. The underground gutkha business is a crime against society which needs to be curbed. We, therefore, deem it appropriate to direct the CBI to investigate into all aspects of the offence of illegal manufacture, import, supply, distribution and sale of gutkha and other forms of chewable tobacco which are banned in the State of Tamil Nadu and the Union Territory of Puducherry, including detection of and action against those involved in the offence as aforesaid, whether directly or indirectly, by aiding abetting the offence or interfering with attempts to curb the offence.

144. This order is, in our view, not only imperative to stop the menace of the surreptitious sale of gutkha and chewable forms of tobacco which pose a health hazard to people in general and in particular the youth and to punish the guilty, but also to instill faith of the people in the fairness and impartiality of the investigation. We see no reason for the 9

State to view the entrustment of investigation to the CBI as an affront to the efficiency or efficacy of its own investigation system and we make it absolutely clear that this direction is not to be construed as any definite finding of this Court of the complicity of any constitutional functionary or of any specific official of the State Government.”

7. The view so taken by the High Court in the facts of the

present case, in our opinion, being a possible view, the ground

under consideration is devoid of merit. Suffice it to observe

that it is not a case of disregarding the binding decision or

precedent of the Coordinate Bench of the same High Court. We

say so because, in the impugned judgment the decision of the

Coordinate Bench has been distinguished. Besides, the

question regarding the necessity to ensure a fair and impartial

investigation of the crime, whose tentacles were not limited to

the State of Tamil Nadu but transcended beyond to other

States and may be overseas besides involving high ranking

officials of the State as well as the Central Government, has

now been directly answered. For instilling confidence in the

minds of the victims as well as public at large, the High Court

predicated that it was but necessary to entrust the

investigation of such a crime to CBI. Viewed thus, there is no

infirmity in the conclusion reached by the High Court in the 10

impugned judgment, for having entrusted the investigation to

CBI.

8. As regards the second ground urged by the petitioner, we

find that even this aspect has been duly considered in the

impugned judgment. In paragraph 129 of the impugned

judgment, reliance has been placed on Dinubhai Boghabhai

Solanki Vs. State of Gujarat and Ors.2, wherein it has been

held that in a writ petition seeking impartial investigation, the

accused was not entitled to opportunity of hearing as a matter

of course. Reliance has also been placed in the case of

Narender G. Goel Vs. State of Maharashtra and Anr. 3, in

particular, paragraph 11 of the reported decision wherein the

Court observed that it is well settled that the accused has no

right to be heard at the stage of investigation. By entrusting

the investigation to CBI which, as aforesaid, was imperative in

the peculiar facts of the present case, the fact that the

petitioner was not impleaded as a party in the writ petition or

for that matter, was not heard, in our opinion, will be of no

2 (2014) 4 SCC 626 3 (2009) 6 SCC 65 11

avail. That per se cannot be the basis to label the impugned

judgment as a nullity.

9. Our attention was invited to the observations made in

paragraph 73 in the State of Punjab (supra), which in turn

adverts to the exposition in D. Venkatasubramaniam & Ors.

Vs. M.K. Mohan Krishnamachari & Anr.,4 wherein it has

been held that an order passed behind the back of a party is a

nullity and liable to be set aside only on this score. That may

be so, if the order to be passed behind the back of the party

was to entail in some civil consequence to that party. But a

person who is named as an accused in the FIR, who otherwise

has no right to be heard at the stage of investigation or to have

an opportunity of hearing as a matter of course, cannot be

heard to say that the direction issued to transfer the

investigation to CBI is a nullity. This ground, in our opinion,

is an argument of desperation and deserves to be rejected.

10. The third contention urged by the petitioner, that neither

special reasons have been recorded nor the status report of

4 (2009) 10 SCC 488 12

the investigation already done by the Vigilance Commission

has been considered, also does not commend us. As noted

earlier, the High Court in the impugned judgment has

exhaustively analysed all aspects of the matter as can be

discerned from paragraphs 84 to 87, 91 to 97, 100 to 107;

and again in paragraphs 141-144 which have been extracted

hitherto. In our opinion, in the peculiar facts of the present

case, the High Court has justly transferred the investigation to

CBI after due consideration of all the relevant aspects, which

approach is consistent with the settled legal position

expounded in the decisions adverted to in the impugned

judgment, including the decision in Subrata Chattoraj Vs.

Union of India and Ors.,5 which predicates that transfer of

investigation to CBI does not depend on the inadequacy of

inquiry/investigation carried out by the State police. We agree

with the High Court that the facts of the present case and the

nature of crime being investigated warrants CBI investigation.

5 (2014) 8 SCC 768 13

11. In the case of Dharam Pal Vs. State of Haryana and

Ors.,6 this Court has underscored the imperativeness of

ensuring a fair and impartial investigation against any person

accused of commission of cognizable offence as the primary

emphasis is on instilling faith in public at large and the

investigating agency. The dictum in paragraph 24 and 25 of

this reported decision is quite instructive which read thus:

“24. Be it noted here that the constitutional courts can direct for further investigation or investigation by some other investigating agency. The purpose is, there has to be a fair investigation and a fair trial. The fair trial may be quite difficult unless there is a fair investigation. We are absolutely conscious that direction for further investigation by another agency has to be very sparingly issued but the facts depicted in this case compel us to exercise the said power. We are disposed to think that purpose of justice commands that the cause of the victim, the husband of the deceased, deserves to be answered so that miscarriage of justice is avoided. Therefore, in this case the stage of the case cannot be the governing factor.

25. We may further elucidate. The power to order fresh, de novo or reinvestigation being vested with the constitutional courts, the commencement of a trial and examination of some witnesses cannot be an absolute impediment for exercising the said constitutional power which is meant to ensure a fair and just investigation. It can never be forgotten that as the great ocean has only one test, the test of salt, so does justice has one flavour, the flavour of answering to the distress of the people without any discrimination. We may hasten to add that the democratic set-up has the potentiality

6 (2016) 4 SCC 160 14

of ruination if a citizen feels, the truth uttered by a poor man is seldom listened to. Not for nothing it has been said that sun rises and sun sets, light and darkness, winter and spring come and go, even the course of time is playful but truth remains and sparkles when justice is done. It is the bounden duty of a court of law to uphold the truth and truth means absence of deceit, absence of fraud and in a criminal investigation a real and fair investigation, not an investigation that reveals itself as a sham one. It is not acceptable. It has to be kept uppermost in mind that impartial and truthful investigation is imperative. If there is indentation or concavity in the investigation, can the “faith” in investigation be regarded as the gospel truth? Will it have the sanctity or the purity of a genuine investigation? If a grave suspicion arises with regard to the investigation, should a constitutional court close its hands and accept the proposition that as the trial has commenced, the matter is beyond it? That is the “tour de force” of the prosecution and if we allow ourselves to say so it has become “idée fixe” but in our view the imperium of the constitutional courts cannot be stifled or smothered by bon mot or polemic. Of course, the suspicion must have some sort of base and foundation and not a figment of one’s wild imagination. One may think an impartial investigation would be a nostrum but not doing so would be like playing possum. As has been stated earlier, facts are self-evident and the grieved protagonist, a person belonging to the lower strata. He should not harbour the feeling that he is an “orphan under law”.

12. Suffice it to observe that we do not intend to deviate from

the conclusion reached by the High Court that in the peculiar

facts and circumstances of the case, it is but appropriate that

investigation of the crime in question must be entrusted to

CBI.

15

13. Reverting to the last contention that the High Court

should have been loath to entertain a public interest litigation

at the instance of respondent No.14, who happens to be a

member of the Legislative Assembly in the State of Tamil Nadu

or that he had pro-actively participated in raising the issue in

the Assembly, has also been answered in the impugned

judgment. The Court, while entertaining public interest

litigation at the instance of respondent No.14, has relied upon

the dictum in K. Anbazhagan Vs. Superintendent of Police

and Ors.,7 wherein it is observed that the political opponents

play an important role both inside and outside the House and

are the watchdogs of the Government in power. They are the

mouthpiece to ventilate the grievances of the public at large, if

genuinely and unbiasedly projected. Referring to this decision,

the Court noted in paragraph 70 of the impugned judgment

that a petition filed by such persons (such as respondent

No.14) cannot be brushed aside on the allegation of political

vendetta, if otherwise, it is genuine and raises a reasonable

apprehension of likelihood of bias in the dispensation of

7 (2004) 3 SCC 767 16

criminal justice system. Accordingly, the ground of challenge

under consideration, in our opinion, is devoid of merits.

14. While parting, we may restate the observations made by

the High Court in paragraph 144 of the impugned judgment to

clarify that the transfer of investigation of the crime in

question to CBI is no reflection on the efficiency or efficacy of

the investigation done by the State Vigilance Commission. We

reiterate that position.

15. As a result, this special leave petition is dismissed.

.………………………….CJI.

(Dipak Misra)

…………………………..….J. (A.M. Khanwilkar)

…………………………..….J. (Dr. D.Y. Chandrachud) New Delhi;

May 18, 2018.