State Of Haryana And Ors vs Ch.
Bhajan Lal And Ors on 21 November, 1990
Supreme Court of India
State Of Haryana And Ors vs Ch. Bhajan Lal And Ors on 21 November, 1990
Equivalent citations: 1992 AIR 604, 1990 SCR Supl. (3) 259
Author: S Pandian
Bench: Pandian, S.R. (J)
PETITIONER:
STATE OF HARYANA AND ORS.
Vs.
RESPONDENT:
CH. BHAJAN LAL AND ORS.
DATE OF JUDGMENT21/11/1990
BENCH:
PANDIAN, S.R. (J)
BENCH:
PANDIAN, S.R. (J)
REDDY, K. JAYACHANDRA (J)
CITATION:
1992 AIR 604 1990 SCR Supl. (3) 259
1992 SCC Supl. (1) 335 JT 1990 (4) 650
1990 SCALE (2)1066
ACT:
Constitution of India, 1950: Article 226--Quashing of
criminal proceedings--Circumstances under which power could
be exercised-Guidelines given.
Code of Criminal Procedure, 1973: Sections 154, 155,
156, 157, 159--Cognizable offence--Field of
investigation--Exclusive domain of investigating
agencies--Court's interference--When justified.
Section 482--Inherent powers of courts--Exercise
Of--Circumstances necessitating quashing of criminal pro-
ceedings--Guidelines indicated.
Prevention of Corruption Act, 1947: Section 5- -Investi-
gation by designated officers--Express prohibition of offi-
cers below certain rank---Whether directory or
mandatory--Exceptions only on adequate reasons--To be dis-
closed--Authorising such non_designated officers without
reasons--Whether legal and valid--Investigation carried on
by such officer--Quashing of.
Words & Phrases: "Reason to suspect"--Meaning of.
HEADNOTE:
The First Respondent was a Minister and subsequently
Chief Minister of Haryana State. Later he became Union
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State Of Haryana And Ors vs Ch. Bhajan Lal And Ors on 21 November, 1990
Minister. On 12.11.1987 a complaint was presented before the
Haryana Chief Minister, wherein serious allegations were
levelled against the First Respondent. The main allegations
were that he accumulated huge properties worth crores of
rupees in the names of his family members, relations and
persons close to him by misusing his power and position and
by undervaluing the market price, and all those transactions
were benami in character. According to the complainant,
since the accumulation of the properties by the First Re-
spondent, in the shape of buildings, land, shares, ornaments
etc. was far beyond his legal means, an investigation should
be directed against him.
260
The Chief Minister's Secretariat marked the complaint to
the Director General of Police, who in turn endorsed the
same to the Superintendent of Police concerned. On the
direction from the Superintendent of Police, the SHO regis-
tered a case under Sections 161 and 165 of Indian Penal
Code, 1860 and under section 5(2) of the Prevention of
Corruption Act, 1947 and took up the investigation.
Meanwhile, the First Respondent filed a Writ Petition
before the High Court for a direction to quash the First
Information Report and for restraining the appellants from
proceeding further with the investigation. The High Court
quashed the entire criminal proceedings holding that the
allegations did not constitute a cognizable offence for
commencing lawful investigation.
Aggrieved by the judgment of the High Court, the appel-
lants preferred the present appeal by special leave, con-
tending that the allegations contained in the complaint,
either individually or collectively, constituted a cogniza-
ble offence warranting the registration of a case as contem-
plated under Section 154(1) Cr. P.C., and a thorough inves-
tigation in compliance with various statutory provisions ï7
3
On behalf of the Respondents, it was contended that on
account of the deep rooted political animosity and rivalry
entertained by the then Chief Minister, he used the com-
plainant, who was stooge in his hands, to file the complaint
containing false and scurrilous allegations against the
First Respondent and hence the criminal proceedings rightly
deserved to be quashed.
Disposing of the appeal, this Court,
HELD: 1. The judgment of the High Court quashing the
First Information Report is set aside as not being legally
and factually sustainable in law. However, the commencement
as well as the entire investigation, if any, so far done is
quashed on the ground that the third appellant (SHO) is not
clothed with valid legal authority to take up the investiga-
tion and proceed with the same within the meaning of Section
5A(1) of the Prevention of Corruption Act. [319A-C]
2. The observations made by the High Court are unwar-
ranted and the historical anecdote is out of context and
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State Of Haryana And Ors vs Ch. Bhajan Lal And Ors on 21 November, 1990
inappropriate. If such a view is to be judicially accepted
and approved, then it will be tantamount to laying down an
alarming proposition that an incoming
261
Government under all circumstances, should put its seal of
approval to all the commissions and omissions of the outgo-
ing Government ignoring even glaring lapses and serious
misdeeds and the deleterious and destructive consequences
that may follow therefrom. [318E-F]
Krishna Ballabh Sahay & Ors. v. Commissioner of Enquiry
JUDGMENT:
Anr., [1988] 2 SCC 602; State of Punjab v. Gurdial Singh, [1980] 1 SCR 1071; relied on.
P.V. Jagannath Rao & Ors. v. State of Orissa & Ors., [1968] 3 SCR 789; Sheonandan Paswan v. State
of Bihar and Ors., [1983] 1 SCC 438 and Sheonandan Paswan v. State of Bihar & Ors., [1987] 1 SCC
288; referred to. 3.1. If any information disclosing a cognizable offence is laid before an
officer-in-charge of a police station satisfying the requirements of Section 154(1) of the Crimi- nal
Procedure Code, the said police officer has no other option except to enter the substance thereof in
the pre- scribed form, that is to say, to register a case on the basis of such information. [279G] 3.2.
Though a police officer cannot investigate a non- ï7 offence, he can investigate a non-cognizable
offence under the order of a Magistrate having power to try such non- cognizable case or commit the
same for trial within the terms under Section 155(2) of the Code but subject to Sec- tion 155(3) of the
Code. Further, under the newly introduced Sub-section (4) to Section 155, where a case relates to
two offences to which atleast one is cognizable, the case shall be deemed to be a cognizable case
notwithstanding that the other offences are non-cognizable and, therefore, under such
circumstances the police officers can investigate such offences with the same powers as he has while
investigating a cognizable offence. [279H; 280A-B]
4. The core of the Sections 156, 157 and 159 of the Code of Criminal Procedure is that if a police
officer has reason to suspect the commission of a cognizable offence, he must either proceed with
the investigation or cause an investiga- tion to be proceeded with by his subordinate; that in a case
where the police officer sees no sufficient ground for investigation, he can dispense with the
investigation alto- gether; that the field of investigation of any cognizable offence is exclusively
within the domain of the investiga- tion agencies over which the Courts cannot have control and
have no power to stiffle or impinge upon the proceedings in the investigation so long as the
investiga- tion proceeds in compliance with the provisions relating to investigation and that it is
only in a case wherein a police officer decides not to investigate an offence, the concerned
Magistrate can intervene and either direct an investigation or in the alternative, if he thinks fit, he
himself can, at once proceed or depute any Magistrate sub-ordinate to him to proceed to hold a
preliminary inquiry into or otherwise to dispose of the case in the manner provided in the Code.
[283G-H; 284A-B] State of Bihar and Anr. v. J.A.C. Saldanha and Ors., [1980] 1 SCC 554; S.N.
Sharma v. Bipen Kumar Tiwari and Ors., [1970] 3 SCR 946; Emperor v. Khwaja Nazir Ahmad, AIR
1954 P.C. 18 and Abhinandan v. Dinesh, [1967] 3 SCR 668; referred to.
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State Of Haryana And Ors vs Ch. Bhajan Lal And Ors on 21 November, 1990
5.1. The expression "reason to suspect the commission of an offence" used in Section 154(1) Cr. P.C.
would mean the sagacity of rationally inferring the commission of a cogniz- able offence based on
the specific articulate facts men- tioned in the First Information Report as well in the Annex- ures, if
any, enclosed and any attending circumstances which may not amount to proof. In other words, the
meaning of the expression "reason to suspect" has to be governed and dic- tated by the facts and
circumstances of each case and at ï7 in the First Information Report does not arise. [286E-F] 5.2.
The commencement of investigation by a police officer is subject to two conditions, firstly, the police
officer should have reason to suspect the commission of a cognizable offence as required by Section
157(1) and second- ly, the police officer should subjectively satisfy himself as to whether there is
sufficient ground for entering on an investigation even before he starts an investigation into the
facts and circumstances of the case as contemplated under clause (b) of the proviso to Section 157(1)
of the Code. [288B-C] Pakala Narayanaswami v. Emperor, AIR 1939 P.C. 47; Emperor v. Vimlabai
Deshpande, AIR 1946 P.C 123; United States v. Cortez, 66 L.Ed. (United States Supreme Court
Reports) page 623; Dallison v. Caffery, [1964] 2 All E.R. 610; State of Gujarat v. Mohanlal J. Porwal,
[1987] 2 SCC 364; Pukhraj v. D.R. Kohli, [1962] Supp. 3 SCR 866; State of West Bengal & Ors. v.
Swapan Kumar Guha & Ors., [1982] 3 SCR 121; referred to.
Webster's Third International Dictionary; Corpus Juris Secondum, Vol. 83 pp. 923, 927; Words and
Phrases, (Perma- nent Edition 40A) pp. 590, 591; referred to.
6. The investigation of an offence is the field exclu- sively reserved for the police officers whose
powers in that field are unfettered so long as the power to investigate into the cognizable offences is
legitimately exercised in strict compliance with the provisions falling under Chapter XII of the Code
and the Courts are not justified in obliter- ating the track of investigation when the investigating
agencies are well within their legal bounds. A noticeable feature of the scheme under Chapter XIV of
the Code is that a Magistrate is kept in the picture at all stages of the police investigation but he is
not authorised to interfere with the actual investigation or to direct the police how that investigation
is to be conducted. But if a police officer transgresses the circumscribed limits and improperly and
illegally exercises his investigatory powers in breach of any statutory provision causing serious
prejudice to the personal liberty and also property of a citizen, then the Court, on being approached
by the person aggrieved for the redress of any grievance has to consider the nature and extent of the
breach and pass appropriate orders as may be called for without leaving the citizens to the mercy of
police echelons since human dignity is a dear value of our Constitution. No one can demand
absolute immunity even if he is wrong and claim unquestionable right and unlimited powers
exercisable upto unfathomable cosmos. Any recognition of ï7 Power' which no authority on earth
can enjoy. [290D-G] Emperor v. Khwaja Nazir Ahmad, AIR 1945 P.C. 18; R.P. Kapur v. The State of
Punjab, [1960] 3 SCR 388; Nandini Satpathy v. P.L. Dani & Anr., [1978] 2 SCC 424; S.N. Sharma v.
Bipen Kumar Tiwari and Ors., [1970] 3 SCR 946; Prabhu Dayal Deorath etc. etc. v. The District
Magistrate, Kamrup & Ors., [1974] 2 SCR 12; State of West Bengal and Ors. v. Swapan Kumar Guha
and Ors., [1982] 3 SCR 121; referred to. 7.1 The view of the High Court that the non-filing of a
written statement by a competent authority of the State Government by way of reply to the
averments in the Writ Petition was serious flaw on the part of the appellants and as such the
averments of Respondent No. 1 should be held as having disproved the entire crimination alleged in
the F.I.R., is neither conceivable nor comprehensible. [293D] 7.2. It is true that some of the
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State Of Haryana And Ors vs Ch. Bhajan Lal And Ors on 21 November, 1990
allegations do suffer from misty vagueness and lack of particulars. Further, there are no specific
averments that either Respondent No. 1 or his relations and friends had no source of income to
accumulate the properties now standing in their names and that Respond- ent No. 1 showed any
favour to them by misusing his official position. [294B-C] These are all matters which would be
examined only during the course of investigation and thereafter by the court on the material
collected and placed before it by the investigating agencies. The question whether the relations and
friends of Respondent No. 1 have independently purchased the properties out of their own funds or
not, also cannot be decided by the Court at this stage on the denial statement of Respondent No. 1
alone. [294C-D] State of West Bengal and Ors. v. Swapan Kumar Guha and Ors., [1982] 3 SCR 121;
distinguished.
State of Bihar and Anr. v. J.A.C. Saldanha and Ors., [1980] 1 SCC 554; relied on.
8.1. In the exercise of the extra-ordinary power under Article 226 or the inherent powers under
Section 482 of the Code of Criminal Procedure, the following categories of cases are given by way of
illustration wherein such power could be exercised either to prevent abuse of the process of any
Court or otherwise to secure the ends of justice, though it may not be possible to lay down any
precise, clearly defined and sufficiently channelised and inflexible guide- ï7 myriad kinds of cases
wherein such power should be exer- cised:
(a) where the allegations made in the First Information Report or the complaint, even if they are
taken at their face value and accepted in their entirety do not prima facie constitute any offence or
make out a case against the ac- cused;
(b) where the allegations in the First Information Report and other materials, if any, accompanying
the F.I.R. do not disclose a cognizable offence, justifying an investi- gation by police officers under
Section 156(1) of the Code except under an order of a Magistrate within the purview of Section
155(2) of the Code;
(c) where the uncontroverted allegations made in the FIR or 'complaint and the evidence collected
in support of the same do not disclose the commission of any offence and make out a case against
the accused;
(d) where the allegations in the FIR do not constitute a cognizable offence but constitute only a
non-cognizable offence, no investigation is permitted by a police officer without an order of a
Magistrate as contemplated under Section 155(2) of the Code;
(e) where the allegations made in the FIR or complaint are so absurd and inherently improbable on
the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground
for proceeding against the accused;
(f) where there is an express legal bar engrafted in any of the provisions of the Code or the
concerned Act (under which a criminal proceeding is instituted) to the institu- tion and continuance
of the proceedings and/or where there is a specific provision in the Code or the concerned Act,
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State Of Haryana And Ors vs Ch. Bhajan Lal And Ors on 21 November, 1990
providing efficacious redress for the grievance of the aggrieved party;
(g) where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding
is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a
view to spite him due to private and personal grudge. [305D-H; 306A-E] 8.2. In the instant case, the
allegations made in the complaint, do clearly constitute a cognizable offence justi- ï7 on and this
case does not call for the exercise of extraor- dinary or inherent powers of the High Court to quash
the F.I.R. itself. [307B] State of West Bengal v. S.N. Basak, [1963] 2 SCR 52; distinguished.
R.P. Kapur v. The State of Punjab, [1960] 3 SCR 388; S.N. Sharma v. Bipen Kumar Tiwari and Ors.,
[1970] 3 SCR 946; Hazari Lal Gupta v. Rameshwar Prasad and Anr. etc., [1972] 1 SCC 452; Jehan
Singh v. Delhi Administration, [1974] 3 SCR 794; Amar Nath v. State of Haryana, [1977] 4 SCC 137;
Madhu Limaye v. State of Maharashtra, [1977] 4 SCC 551; Kurukshetra University and Anr. v. State
of Haryana and Anr., [1977] 4 SCC 451; State of Bihar and Anr. v.J.A.C. Saldanha and Ors., [1980] 1
SCC 554; Municipal Corporation of Delhi v. Purshotam Dass Jhunjunwala and Ors., [1983] 1 SCC 9;
State of West Bengal and Ors. v. Swapan Kumar Guha and Ors., [1982] 3 SCR 121; Smt. Nagawwa v.
Veeranna Shiva- lingappa Konjalgi & Ors., [1976] Supp. SCR 123; Pratibha Rani v. Suraj Kumar and
Anr., [1985] 2 SCC 370; Madhavrao Jiwaji Rao Scindia and Ors. v. Sambhajirao Chandrojirao Angre
and Ors., [1988] 1 SCC 692; State of Bihar v. Murad Ali Khan and Ors., [1988] 4 SCC 655; Talab Haji
Hussain v. Madhukar Purshottam Mondekar and Anr., [1958] SCR 1226; L.U. Jadhav v. Shankarrao
Abasa- heb Pawar, [1983] 4 SCC 231; J.P. Sharma v. Vinod KumarJain and Ors., [1986] 3 SCC 67;
State of U.P.v.V.R.K. Srivastava and Anr., [1989] 4 SCC 59; Emperor v. Khwaja Nazir Ahmad, AIR
1945 P.C. 18; referred to.
9.1. The entire matter is only at a premature stage and the investigation has not proceeded with
except some prelim- inary effort taken on the date of the registration of the case. The evidence has to
be gathered after a thorough investigation and placed before the Court on the basis of which alone
the Court can come to a conclusion one way or the other on the plea of mala fides. If the allegations
are bereft of truth and made maliciously, the investigation will say so. At this stage, when there are
only allegations and recriminations but no evidence, this Court cannot anticipate the result of the
investigation and render a finding on the question of mala fides on the materials at present avail-.
able. Therefore, it cannot be said that the complaint should be thrown overboard on the mere
unsubstantiated plea of mala fides. Even assuming that the complainant has laid the complaint only
on account of his personal animosity that, by itself, will not be a ground to discard the complaint
con- taining serious allegations which have to be tested and weighed after the evidence is collected.
[307G-H; 308A-D] ï73 9.2. The dominant purpose of registration of the case and the intended
follow up action are only to investigate the allegations and present a case before the Court, if
sufficient evidence in support of those allegations are collected but not to make a character
assassination of the person complained against. [308H; 309A] S. Pratap Singh v. The State of
Punjab, [1964] 4 SCR 733; State of Haryana v. Rajindra Sareen, [1972] 2 SCR 452; Express
Newspapers Pvt. Ltd. & Ors. v. Union of India & Ors., [1985] Supp. 3 SCR 382; P.V. Jagannath Rao
& Ors. v. State of Orissa & Ors., [1968] 3 SCR 789; The King v. Minis- ter of Health, [1929] 1 K.B.
619; Rex v. Brighton Corpora- tion Ex-parte Shoosmith, 96 L.T. 762; Earl Fitzwilliam's Wentworth
Estate Co. Ltd. v. Minister of Town and Country Planning, [1951] 2 K.B. 284; referred to.
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State Of Haryana And Ors vs Ch. Bhajan Lal And Ors on 21 November, 1990
10.1. A police officer with whom an investigation of an offence under Section 5(1)(e) of the
Prevention of Corruption Act is entrusted should not proceed with a pre-conceived idea of guilt of
that person indicated with such offence and subject him to any harassment and victimisation,
because in case the allegations of illegal accumulation of wealth are found, during the course of
investigation as baseless, the harm done not only to that person but also to the office he held will be
incalculable and inestimable. [297C-E] 10.2. In the instant case, the SP seems to have exhibit- ed
some over-enthusiasm, presumably to please 'some one' and had directed the SHO to register the
case and investigate the same even on the very first day of the receipt of the complaint from the
DGP, in whose office the complaint was lying for merely 9 days. This unprecedented overenthusiasm
shown by the S.P., without disclosing the reasons for making an order entrusting the investigation to
the SHO who is not a designated officer under Section 5A(1), really shocks ones' sense of justice and
fair play even though the untest- ed allegations made in the complaint require a thorough
investigation. Still, it is an inexplicable riddle as to why the S.P. had departed from the normal rule
and hastly or- dered the SHO to investigate the serious allegations, le- velled against a former Chief
Minister and a Minister in the Cabinet of the Central Government on the face of the regis- tration of
the case. However, this conduct of the SP can never serve as a ground for quashing the FIR.
[298C-E] Sirajuddin v. State of Madras, [1970] 3 SCR 931; The State of Uttar Pradesh v. Bhagwant
Kishore Joshi, [1964] 3 SCR 71; relied on. ï73 11.1. A police officer not below the rank of an Inspec-
tor of Police authorised by the State Government in terms of the First proviso can take up the
investigation of an of- fence referred to in clause (e) of Section 5(1) of the Prevention of Corruption
Act, only on a separate and inde- pendent order of a police officer not below the rank of a
Superintendent of Police. A strict compliance of the second proviso is an additional legal
requirement to that of the first proviso for conferring a valid authority on a police officer not below
the rank of an Inspector of Police to investigate an offence falling under clause (e) of Section 5(1) of
the Act. This is clearly spelt out from the expres- sion "further provided" occurring in the second
proviso. Thus, investigation by the designated Police Officers is the rule and investigation by an
officer of a lower rank is an exception. [311H; 312A-B] 11.2. The granting of permission under
Section 5A of the Preven-
tion of Corruption Act authorising an officer of lower rank to conduct the investigation is not to be
treated by a Magistrate as a mere matter of routine, but it is an exer- cise of his judicial discretion
having regard to the policy underlying and the order giving the permission should, on the face of it,
disclose the reasons for granting such permission. The Superintendent of Police or any police officer
of higher rank while granting permission to a non- designated police officer in exercise of his power
under the second provision to Section 5A(1), should satisfy himself that there are good and sufficient
reasons to entrust the investigation with such police officer of a lower rank and record his reasons
for doing so; because the very object of the legislature in enacting Section 5A is to see that the
investigation of offences punishable under Sections 16 1, 165 or 165A of Indian Penal Code as well as
those under Section 5 of the Act should be done ordinarily by the offi- cers designated in clauses (a)
to (d) of Section 5A(1). The exception should be for adequate reasons which should be disclosed on
the face of the order. Strict compliance with Section 5A(1) becomes absolutely necessary because it
ex- pressly prohibits police officers below certain ranks, from investigating into offences under
Sections 161, 165 and 165A IPC and under Section 5 of the Act without orders of Magis- trates
specified therein or without the authorisation of the State Government in this behalf and from
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State Of Haryana And Ors vs Ch. Bhajan Lal And Ors on 21 November, 1990
effecting arrests for those offences without a warrant. [314H; 3 15A-D] 11.3. The main object of
Section 5A is to protect the public servant against harassment and victimisation. Section 5A of the
Act is mandatory and not directory and the inves- ï7 illegality but that illegality committed in the
course of an investigation does not affect the competence and the juris- diction of the Court for trial
and where the cognizance of the case has in fact been taken and the case is proceeded to termination
the validity of the proceedings with the preced- ing investigation does not vitiate the result unless
miscar- riage of justice has been caused thereby. [311C; 312D-E] 11.4. In the instant case, there is
absolutely no rea- son, given by the S.P. in directing the SHe to investigate and as such the order of
the S.P. is directly in violation of the dictum laid down by this Court in several decisions. The third
appellant, SHO is not clothed with the requisite legal authority within the meaning of the second
provision of Section 5A(1) of the Act to investigate the offence under clause (e) of Section 5(1) of the
Act. [315E-F] H.N. Rishbud and Inder Singh v. The State of Delhi, [1955] 1 SCR 1150; The State of
Madhya Pradesh v. Mubarak Ali, [1959] Supp. 2 SCR 201; A.C. Sharma v. Delhi Administration,
[1973] 3 SCR 477; A.R. Antulay v. R.S. Nayak, [1984] 2 SCR 914; Major E.G. Barsay v. The State of
Bombay, [1962] 2 SCR 195; Munna Lal v. State of Uttar Pradesh, [1964] 3 SCR 88; S.N. Bose v. State
of Bihar, [1968] 3 SCR 563; Muni Lal v. Delhi Administration, [1971] 2 SCC 48; Khandu Sonu Dhobi
& Anr. v. State of Maharashtra, [1972] 3 SCR 510; relied on.
12. The Government order authorised the Inspector Gener- al of Police to investigate only the
offences failing under Section 5 of the Act. Therefore, the SHO who has taken up the investigation of
the offences inclusive of those under Section 161 and 165 IPC is not at all clothed with any authority
to investigate these two offences, registered under the IPC, apart from the offence under Section
5(2) of the Act. However, as the question relating to the legal authority of the SHO is raised even at
the initial stage, it would be proper and also desirable that the investigation, if at all to be proceeded
with in the opinion of the State Government, should proceed only on the basis of a valid order in
strict compliance with the mandatory provision of Section 5A(1). [315G-H; 3 16A-B] &
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