E. SIVAKUMARversusUNION OF INDIA AND ORS.

522                      [2018]REPORTS
               SUPREME COURT   6 S.C.R. 522                 [2018] 6 S.C.R.


A                               E. SIVAKUMAR
                                        v.
                         UNION OF INDIA AND ORS.
                (Special Leave Petition (Civil) No.13817 of 2018)
B                                 MAY 18, 2018
            [DIPAK MISRA, CJI, A. M. KHANWILKAR AND
                   DR. D. Y. CHANDRACHUD, JJ.]
             Investigation: Transfer of investigation to CBI – The petitioner
      posted in the Ministry of Health was allegedly involved in the illegal
C
      manufacture and sale of Gutkha and Pan Masala and named as an
      accused in the FIR – The stated crime was being investigated by the
      State Vigilance Commission, constituted by the State of Tamil Nadu,
      headed by a Vigilance Commissioner – Writ of mandamus issued by
      High Court to transfer the investigation to CBI – Petitioner
D     challenged writ of mandamus on four counts – First, that the prayer
      for transfer of investigation of the crime in question to the CBI was
      already considered and negatived by the Coordinate Bench of the
      same High Court – 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
E
      impugned judgment was passed and third, 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
      – Held: High Court was alive to the fact that the Coordinate Bench
      of the same High Court had occasion to decide writ petition – The
F     Coordinate Bench had noted that the investigation of the crime was
      in progress and that it was not necessary to transfer the inquiry/
      investigation to CBI – These aspects were duly taken note of in the
      impugned judgment – Thus, it is not a case of disregarding the
      binding decision or precedent of the Coordinate Bench of the same
      High Court – Secondly, the question regarding the necessity to
G
      ensure a fair and impartial investigation of the crime, 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 for having
H
                                     522
       E. SIVAKUMAR v. UNION OF INDIA AND ORS.                          523


entrusted the investigation to CBI – By entrusting the investigation    A
to CBI which, 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, is of no avail –
That per se cannot be the basis to label the impugned judgment as
a nullity – Regarding last contention, the political opponents play
                                                                        B
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 – High Court noted in the impugned judgment
that a petition filed by such persons cannot be brushed aside on
the allegation of political vendetta, if otherwise, it is genuine and   C
raises a reasonable apprehension of likelihood of bias in the
dispensation of criminal justice system – Accordingly, the ground
of challenge under consideration is devoid of merits.
       Investigation: Right of hearing – A person who is named as
an accused in the FIR, who otherwise has no right to be heard at        D
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.
      Subrata Chattoraj v. Union of India and Ors.
      (2014) 8 SCC 768 : [2014] 6 SCR 783 ; Dharam Pal                  E
      v. State of Haryana and Ors. (2016) 4 SCC 160 :
      [2016] 1 SCR 194 ; K. Anbazhagan v. Superintendent
      of Police and Ors. (2004) 3 SCC 767: [2003] 5 Suppl.
      SCR 610 – relied on.
      D. Venkatasubramaniam & Ors. v. M.K. Mohan                        F
      Krishnamachari & 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 ; Dinubhai
      Boghabhai Solanki v. State of Gujarat and Ors. (2014)             G
      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.


                                                                        H
524            SUPREME COURT REPORTS                          [2018] 6 S.C.R.


A                              Case Law Reference
      [2011] 15 SCR 540                 referred to              Para 3
      [2014] 3 SCR 932                  referred to              Para 8
      [2009] 8 SCR 1004                 referred to              Para 8
B     [2009] 14 SCR 441                 distinguished            Para 9
      [2014] 6 SCR 783                  relied on                Para 10
      [2016] 1 SCR 194                  relied on                Para 11
      [2003] 5 Suppl. SCR 610           relied on                Para 13
C

             CIVIL APPELLATE JURISDICTION: Special Leave Petition
      (Civil) No.13817 of 2018.
            From the Order dated 26.04.2018 of the High Court of Madras in
D     W.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 by
E
             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 transfer the investigation
      of a criminal case concerning the illegal manufacture and sale of Gutkha
F
      and Pan Masala, 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
G
      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:
H
           E. SIVAKUMAR v. UNION OF INDIA AND ORS.                                525
                    [A.M. KHANWILKAR, J.]

         (i) First, that the prayer for transfer of investigation of the crime    A
             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
                                                                                  B
             completely disregarded in the impugned judgment.
         (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.              C

         (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,     D
              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           E
             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
                                                                                  F
       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            G
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.

1
    (2011) 14 SCC 770
                                                                                  H
526             SUPREME COURT REPORTS                            [2018] 6 S.C.R.


A           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
B     cogitated over all the issues exhaustively and being fully satisfied about
      the necessity to ensure fair investigation 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
C     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,
D     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 22 nd 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
E     and thus summarily rejected the petition vide judgment dated 27th
      January, 2017. As regards Writ 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
F     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 respon-
G     dent 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
H     CBI to take over the investigation by constituting a Special Investigating
        E. SIVAKUMAR v. UNION OF INDIA AND ORS.                             527
                 [A.M. KHANWILKAR, J.]

Team. The Court did advert to the question of entrusting the                A
investigation to CBI in paragraphs 25A to 25D 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
                                                                            B
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           C
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      D
      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      E
      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 action taken in
      accordance with law. However, investigation by the Vigilance
      department is from the angle of vigilance. The aim is to detect       F
      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             G
      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.                                                            H
528             SUPREME COURT REPORTS                            [2018] 6 S.C.R.


A           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
B
            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.
C           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
D           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.
E           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 State to view the entrustment of
F           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.”
G            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
H     the decision of the Coordinate Bench has been distinguished. Besides,
           E. SIVAKUMAR v. UNION OF INDIA AND ORS.                             529
                    [A.M. KHANWILKAR, J.]

the question regarding the necessity to ensure a fair and impartial            A
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
                                                                               B
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 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                 C
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        D
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       E
matter, was not heard, in our opinion, will be of no 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                      F
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             G
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
2
    (2014) 4 SCC 626
3
    (2009) 6 SCC 65
4
    (2009) 10 SCC 488                                                          H
530                SUPREME COURT REPORTS                             [2018] 6 S.C.R.


A     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 the
      investigation already done by the Vigilance Commission has been
B     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
C     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
D     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.
             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
E     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
F               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
G               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.
      5
          (2014) 8 SCC 768
      6
H         (2016) 4 SCC 160
        E. SIVAKUMAR v. UNION OF INDIA AND ORS.                                 531
                 [A.M. KHANWILKAR, J.]

       25. We may further elucidate. The power to order fresh, de novo          A
      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
                                                                                B
      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 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          C
      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
                                                                                D
      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    E
      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,
                                                                                F
      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             G
      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.                                     H
532                SUPREME COURT REPORTS                          [2018] 6 S.C.R.


A             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
B
      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
C     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 criminal justice system. Accordingly, the ground of
D
      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
E     State Vigilance Commission. We reiterate that position.
                15. As a result, this special leave petition is dismissed.


      Devika Gujral                                                  Petition dismissed.
F




G     7
          (2004) 3 SCC 767




H