E. SIVAKUMAR versus UNION OF INDIA AND ORS.

[2018] 6 S.C.R.

E. SIVAKUMAR

UNION OF INDIA AND ORS.

(Special Leave Petition (Civil) No.13817 of 2018)

BMAY 18, 2018

[DIPAK MISRA, CJI, A. M. KHANWILKAR ANDDR. D. Y. CHANDRACHUD, JJ.]

Investigation: Transfer of investigation to CBI – The petitionerposted in the Ministry of Health was allegedly involved in the illegalCmanufacture and sale of Gutkha and Pan Masala and named as anaccused in the FIR – The stated crime was being investigated by theState Vigilance Commission, constituted by the State of Tamil Nadu,headed by Vigilance Commissioner – Writ of mandamus issued byHigh Court to transfer the investigation to CBI – PetitionerDchallenged writ of mandamus on four counts – First, that the prayerfor transfer of investigation of the crime in question to the CBI wasalready considered and negatived by the Coordinate Bench of thesame High Court – Second, the petitioner though named as anaccused in the FIR was not given an opportunity of hearing norwas made party in the public interest litigation in which theEimpugned judgment was passed and third, the writ petition filed aspublic interest litigation was politically motivated having been filedby member of the Legislative Assembly in the State of Tamil Nadu– Held: High Court was alive to the fact that the Coordinate Benchof the same High Court had occasion to decide writ petition – TheFCoordinate Bench had noted that the investigation of the crime wasin progress and that it was not necessary to transfer the inquiry/investigation to CBI – These aspects were duly taken note of in theimpugned judgment – Thus, it is not case of disregarding thebinding decision or precedent of the Coordinate Bench of the sameHigh Court – Secondly, the question regarding the necessity toGensure fair and impartial investigation of the crime, for instillingconfidence in the minds of the victims as well as public at large, theHigh Court predicated that it was but necessary to entrust theinvestigation of such crime to CBI – Viewed thus, there is noinfirmity in the conclusion reached by the High Court for having

entrusted the investigation to CBI – By entrusting the investigationto CBI which, was imperative in the peculiar facts of the presentcase, the fact that the petitioner was not impleaded as party inthe writ petition or for that matter, was not heard, is of no avail –That per se cannot be the basis to label the impugned judgment asa nullity – Regarding last contention, the political opponents playan important role both inside and outside the House and are thewatchdogs of the Government in power – They are the mouthpieceto ventilate the grievances of the public at large, if genuinely andunbiasedly projected – High Court noted in the impugned judgmentthat petition filed by such persons cannot be brushed aside onthe allegation of political vendetta, if otherwise, it is genuine andraises reasonable apprehension of likelihood of bias in thedispensation of criminal justice system – Accordingly, the groundof challenge under consideration is devoid of merits.

Investigation: Right of hearing – person who is named asan accused in the FIR, who otherwise has no right to be heard atthe stage of investigation or to have an opportunity of hearing as amatter of course, cannot be heard to say that the direction issued totransfer the investigation to CBI is nullity.

Subrata Chattoraj v. Union of India and Ors.(2014) 8 SCC 768 : [2014] 6 SCR 783 ; Dharam Palv. State of Haryana and Ors. (2016) 4 SCC 160 :[2016] 1 SCR 194 ; K. Anbazhagan v. Superintendentof Police and Ors. (2004) 3 SCC 767: [2003] 5 Suppl.SCR 610 – relied on.

D. Venkatasubramaniam & Ors. v. M.K. MohanKrishnamachari & Anr.(2009) 10 SCC 488 : [2009]14 SCR 441 – distinguished.

State of Punjab v. Davinder Pal Singh Bhullar and Ors.(2011) 14 SCC 770 : [2011] 15 SCR 540 ; DinubhaiBoghabhai Solanki v. State of Gujarat and Ors. (2014)4 SCC 626 : [2014] 3 SCR 932 ; Narender G. Goel v.State of Maharashtra and Anr. (2009) 6 SCC 65 :[2009] 8 SCR 1004 – referred to.

CIVIL APPELLATE JURISDICTION: Special Leave Petition(Civil) No.13817 of 2018.

From the Order dated 26.04.2018 of the High Court of Madras inDW.P. No.19335 of 2017.

Mukul Rohatgi, Sr. Adv., Ms. Misha Rohatgi, M. Thangathurai,Advs. for the Appellant.

P. Wilson, Sr. Adv., R. Nedumaran, Adv. for the Respondents.

The Order of the Court was passed byE

A. M. KHANWILKAR, J. 1. This special leave petition takesexception to the judgment and order of the High Court of Judicature atMadras dated 26[th] April, 2018 in Writ Petition No.19335 of 2017, wherebythe High Court has issued writ of mandamus to transfer the investigationof criminal case concerning the illegal manufacture and sale of GutkhaFand Pan Masala, containing Tobacco and/or Nicotine, to the CentralBureau of Investigation (“CBI”).

2. The petitioner has been named as an accused in the FIRbecause of his alleged involvement in the crime under investigation. Thepetitioner at the relevant time was posted on deputation as Food SafetyGOfficer in the Food Safety and Drug Administration Department,Ministry of Health. The stated crime was being investigated by the StateVigilance Commission, constituted by the State of Tamil Nadu, headedby Vigilance Commissioner. The gravamen of the challenge to theimpugned judgment is on four counts:

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

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

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

(iv) Lastly, it is contended that the writ petition filed as publicinterest litigation was politically motivated having been filed bya member of the Legislative Assembly in the State of TamilNadu.

3. To buttress the above-mentioned grounds of challenge,reliance is placed on the decision of this Court in the case of State ofPunjab Vs. Davinder Pal Singh Bhullar and Ors.[1]

4. The admission of this special leave petition is opposed byrespondent No.14 (writ petitioner). It is urged on behalf of respondentNo.14 that the High Court has considered all aspects of the matter andbeing satisfied about the imperativeness of fair investigation of thecrime in question involving high ranking officials and the tentacles of theconspiracy in commission of the crime transcending beyond the State ofTamil Nadu and into different States, it deemed it appropriate to issue awrit of mandamus to transfer the investigation to CBI. It is contendedthat there is no merit in the objections raised on behalf of the petitioner.

A5. We have heard Mr. Mukul Rohatgi, learned senior counselappearing on behalf of the petitioner and Mr. P. Wilson, learned seniorcounsel appearing on behalf of respondent No.14.

6. On careful consideration of the impugned judgment, we agreewith respondent No.14 (writ petitioner) that the High Court hasBcogitated over all the issues exhaustively and being fully satisfied aboutthe necessity to ensure fair investigation of the crime in question, justlyissued writ of mandamus to transfer the investigation to CBI. Asregards the first point raised by the petitioner, we find that the HighCourt was alive to the fact that the Coordinate Bench of the same HighCourt had occasion to decide Writ Petition No.1846 of 2017 and WritCPetition No.12482 of 2017, as can be discerned from the discussion inparagraphs 107 to 122 of the impugned judgment. As regards WritPetition No.1846 of 2017, that was filed by one P. Wilson, lawyer byprofession. Indeed, it was filed as public interest litigation to initiate aninquiry/investigation into the allegation of corruption, investigate,Dprosecute and ferret out the truth regarding the connivance of seniorpolice officers as noted by the Commissioner of Police, Chennai City, inhis letter dated 22[nd] December, 2016 addressed to the PrincipalSecretary, Home Department, Government of Tamil Nadu. The Court,however, found that the said petition lacked specific ground and materialand, more so, the Court doubted the bona fides of the petitioner thereinEand thus summarily rejected the petition vide judgment dated 27[th]January, 2017. As regards Writ Petition No.12482 of 2017, filed by oneK. Kathiresan, lawyer by profession, as public interest litigation, therelief claimed was primarily to quash an order dated 30[th] June, 2017granting extension of service to respondent No.5 therein and further, toFdirect registration of case in reference to the communication sent bythe Commissioner of Police, Chennai, in respect of sale of bannedsubstances, namely, Gutkha and Pan Masala in the State of Tamil Naduand to constitute Special Investigation Team to investigate the caseunder the direct monitoring of the High Court. Thus, the primary

concern in the said writ petition was about the appointment of respon-Gdent No.5 therein as Director General of Police on account of his namebeing referred to in the incriminating documents seized by the IncomeTax Department from the partners of gutkha manufacturing concern.In the analysis of the case, the Coordinate Bench vide its judgment dated28[th] July, 2017 noted the prayer of the said writ petitioner to direct theHCBI to take over the investigation by constituting Special Investigating

Team. The Court did advert to the question of entrusting theinvestigation to CBI in paragraphs 25A to 25D of the said judgment.However, after perusal of the case diary of the Director of Vigilanceand Anti Corruption, the Court opined that the investigation of the crimewas in progress. Therefore, it only issued directions to strengthen theinvestigation by Vigilance Commissioner in paragraph 30 of the saidjudgment. In that context the Court noted that it was not necessary totransfer the inquiry/investigation to CBI. That is the thrust of theanalysis of the previous judgments, if read in proper perspective. Theseaspects have been duly taken note of in the impugned judgment inparagraphs 107 onwards, including the legal position on the doctrine ofres judicata and finally answered in paragraphs 141 to 144 of theimpugned judgment in the following words:

“141. As observed by K.K. Sasidharan and G.R.Swaminathan, JJ. in K. Kathiresan, supra, the VigilanceCommission headed by the Vigilance Commissioner has extensivepowers to curb corruption and initiate action against governmentservants and servants of public sector undertakings for acceptanceof illegal gratification and matters incidental thereto. The StateVigilance Commission might enquire into allegations of corruptionagainst officials of the State Government. The State VigilanceCommission might also conduct detailed enquiry to fix theresponsibility for the loss of the file containing incriminatingmaterials handed over to the then Chief Secretary by the PrincipalDirector of Income Tax (Investigation) on 12.8.2016 and ensurethat the guilty are brought to book and appropriate action taken inaccordance with law. However, investigation by the Vigilancedepartment is from the angle of vigilance. The aim is to detectcorruption. The power of the Vigilance Commission to investigatewould not extend to an enquiry into the modus operandi of thegutkha mafia, the mode and manner of import from other States,distribution and sale of gutkha and other chewable forms oftobacco, and detection of the sources of supply. Enquiry by theVigilance Department would not unearth secret storage andmanufacturing units. Nor would such investigation be able to detectincidents of illegal import, supply and sale or nab those actuallymanufacturing, supplying, importing, selling or otherwise dealingwith prohibited food items containing tobacco and nicotine suchas gutkha.

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

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

E144. This order is, in our view, not only imperative to stop themenace of the surreptitious sale of gutkha and chewable forms oftobacco which pose health hazard to people in general and inparticular the youth and to punish the guilty, but also to instill faithof the people in the fairness and impartiality of the investigation.We see no reason for the State to view the entrustment ofFinvestigation to the CBI as an affront to the efficiency or efficacyof its own investigation system and we make it absolutely clearthat this direction is not to be construed as any definite finding ofthis Court of the complicity of any constitutional functionary or ofany specific official of the State Government.”

7. The view so taken by the High Court in the facts of the presentcase, in our opinion, being possible view, the ground underconsideration is devoid of merit. Suffice it to observe that it is not caseof disregarding the binding decision or precedent of the Coordinate Benchof the same High Court. We say so because, in the impugned judgmentHthe decision of the Coordinate Bench has been distinguished. Besides,

the question regarding the necessity to ensure fair and impartialinvestigation of the crime, whose tentacles were not limited to the Stateof Tamil Nadu but transcended beyond to other States and may beoverseas besides involving high ranking officials of the State as well asthe Central Government, has now been directly answered. For instillingconfidence in the minds of the victims as well as public at large, the HighCourt predicated that it was but necessary to entrust the investigation ofsuch crime to CBI. Viewed thus, there is no infirmity in the conclusionreached by the High Court in the impugned judgment, for havingentrusted the investigation to CBI.

8. As regards the second ground urged by the petitioner, we findthat even this aspect has been duly considered in the impugnedjudgment. In paragraph 129 of the impugned judgment, reliance has beenplaced on Dinubhai Boghabhai Solanki Vs. State of Gujarat and Ors.[2],wherein it has been held that in writ petition seeking impartialinvestigation, the accused was not entitled to opportunity of hearing as amatter of course. Reliance has also been placed in the case of NarenderG. Goel Vs. State of Maharashtra and Anr. [3], in particular, paragraph11 of the reported decision wherein the Court observed that it is wellsettled that the accused has no right to be heard at the stage ofinvestigation. By entrusting the investigation to CBI which, as aforesaid,was imperative in the peculiar facts of the present case, the fact that thepetitioner was not impleaded as party in the writ petition or for thatmatter, was not heard, in our opinion, will be of no avail. That per secannot be the basis to label the impugned judgment as nullity.9. Our attention was invited to the observations made inparagraph 73 in the State of Punjab (supra), which in turn adverts to theexposition in D. Venkatasubramaniam & Ors. Vs. M.K. MohanKrishnamachari & Anr.,[4] wherein it has been held that an order passedbehind the back of party is nullity and liable to be set aside only onthis score. That may be so, if the order to be passed behind the back ofthe party was to entail in some civil consequence to that party. But aperson who is named as an accused in the FIR, who otherwise has noright to be heard at the stage of investigation or to have an opportunity ofhearing as matter of course, cannot be heard to say that the direction

2(2014) 4 SCC 626

3(2009) 6 SCC 65

4(2009) 10 SCC 488

Aissued to transfer the investigation to CBI is nullity. This ground, in ouropinion, is an argument of desperation and deserves to be rejected.

10. The third contention urged by the petitioner, that neitherspecial reasons have been recorded nor the status report of theinvestigation already done by the Vigilance Commission has beenBconsidered, also does not commend us. As noted earlier, the High Courtin the impugned judgment has exhaustively analysed all aspects of thematter as can be discerned from paragraphs 84 to 87, 91 to 97, 100 to107; and again in paragraphs 141-144 which have been extractedhitherto. In our opinion, in the peculiar facts of the present case, theHigh Court has justly transferred the investigation to CBI after dueCconsideration of all the relevant aspects, which approach is consistentwith the settled legal position expounded in the decisions adverted to inthe impugned judgment, including the decision in Subrata Chattoraj Vs.Union of India and Ors.,[5] which predicates that transfer ofinvestigation to CBI does not depend on the inadequacy ofDinquiry/investigation carried out by the State police. We agree with theHigh Court that the facts of the present case and the nature of crimebeing investigated warrants CBI investigation.

11. In the case of Dharam Pal Vs. State of Haryana and Ors.,[6]this Court has underscored the imperativeness of ensuring fair andEimpartial investigation against any person accused of commission ofcognizable offence as the primary emphasis is on instilling faith in publicat large and the investigating agency. The dictum in paragraph 24 and25 of this reported decision is quite instructive which read thus:

“24. Be it noted here that the constitutional courts can direct forFfurther investigation or investigation by some other investigatingagency. The purpose is, there has to be fair investigation and afair trial. The fair trial may be quite difficult unless there is fairinvestigation. We are absolutely conscious that direction for furtherinvestigation by another agency has to be very sparingly issuedbut the facts depicted in this case compel us to exercise the saidGpower. We are disposed to think that purpose of justice commandsthat the cause of the victim, the husband of the deceased, deservesto be answered so that miscarriage of justice is avoided. Therefore,in this case the stage of the case cannot be the governing factor.

5(2014) 8 SCC 768H6(2016) 4 SCC 160

25. We may further elucidate. The power to order fresh, de novoor reinvestigation being vested with the constitutional courts, thecommencement of trial and examination of some witnessescannot be an absolute impediment for exercising the saidconstitutional power which is meant to ensure fair and justinvestigation. It can never be forgotten that as the great oceanhas only one test, the test of salt, so does justice has one flavour,the flavour of answering to the distress of the people without anydiscrimination. We may hasten to add that the democratic set-uphas the potentiality of ruination if citizen feels, the truth utteredby poor man is seldom listened to. Not for nothing it has beensaid that sun rises and sun sets, light and darkness, winter andspring come and go, even the course of time is playful but truthremains and sparkles when justice is done. It is the bounden dutyof court of law to uphold the truth and truth means absence ofdeceit, absence of fraud and in criminal investigation real andfair investigation, not an investigation that reveals itself as shamone. It is not acceptable. It has to be kept uppermost in mind thatimpartial and truthful investigation is imperative. If there isindentation or concavity in the investigation, can the “faith” ininvestigation be regarded as the gospel truth? Will it have thesanctity or the purity of genuine investigation? If grave suspicionarises with regard to the investigation, should constitutional courtclose its hands and accept the proposition that as the trial hascommenced, 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 courtscannot be stifled or smothered by bon mot or polemic. Of course,the suspicion must have some sort of base and foundation and nota figment of one’s wild imagination. One may think an impartialinvestigation would be nostrum but not doing so would be likeplaying possum. As has been stated earlier, facts are self-evidentand the grieved protagonist, person belonging to the lower strata.He should not harbour the feeling that he is an “orphan underlaw”.

12. Suffice it to observe that we do not intend to deviate from theconclusion reached by the High Court that in the peculiar facts andcircumstances of the case, it is but appropriate that investigation of thecrime in question must be entrusted to CBI.

CDEFG

A13. Reverting to the last contention that the High Court shouldhave been loath to entertain public interest litigation at the instance ofrespondent No.14, who happens to be member of the LegislativeAssembly in the State of Tamil Nadu or that he had pro-activelyparticipated in raising the issue in the Assembly, has also been answeredin the impugned judgment. The Court, while entertaining public interestBlitigation at the instance of respondent No.14, has relied upon the dictumin K. Anbazhagan Vs. Superintendent of Police and Ors.,[7] wherein itis observed that the political opponents play an important role both insideand outside the House and are the watchdogs of the Government inpower. They are the mouthpiece to ventilate the grievances of the publicCat large, if genuinely and unbiasedly projected. Referring to thisdecision, the Court noted in paragraph 70 of the impugned judgment thata petition filed by such persons (such as respondent No.14) cannot bebrushed aside on the allegation of political vendetta, if otherwise, it isgenuine and raises reasonable apprehension of likelihood of bias in thedispensation of criminal justice system. Accordingly, the ground ofDchallenge under consideration, in our opinion, is devoid of merits.

14. While parting, we may restate the observations made by theHigh Court in paragraph 144 of the impugned judgment to clarify thatthe transfer of investigation of the crime in question to CBI is noreflection on the efficiency or efficacy of the investigation done by the

EState Vigilance Commission. We reiterate that position.

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

Devika Gujral

Petition dismissed.

G7(2004) 3 SCC 767