Holding

The opinion on whether a case is made out for trial is exclusively the domain of the officer in charge of the police station (the SP), and the Director of CBI cannot refer the matter to the Attorney General where there is no genuine difference of opinion among CBI officers; the CBI must submit the investigation material and the SP’s report to the court under Section 173(2) CrPC.

Summary

The Supreme Court examined a Public Interest Litigation concerning the Taj Heritage Corridor project, which alleged irregularities and unauthorized release of Rs. 17 crore. The Court had earlier ordered a CBI inquiry and later directed the CBI to register an FIR and investigate senior officials. The Director of CBI submitted a status report stating that, based on the Attorney General's opinion, there was insufficient evidence to prosecute and sought to file a closure report under Section 173 CrPC. The Court held that the opinion on whether a case is made out for trial belongs solely to the officer in charge of the police station (the SP) and that the Director could not refer the matter to the Attorney General where no genuine difference of opinion existed among CBI officers. Consequently, the status report was rejected as a "charade" and the CBI was directed to place all material, including the SP’s report, before the appropriate Special Judge under Section 173(2) CrPC. The Court emphasized its role in ensuring proper and honest performance by the CBI, not adjudicating the merits of the allegations.

Issues considered

The Director of CBI's reliance on the Attorney General's opinion and filing of a closure report despite no difference of opinion among CBI officers.
Whether the formation of the opinion on the existence of a prosecutable case can be made by any CBI officer other than the officer in charge of the police station.
The applicability of Section 173(2) of the Code of Criminal Procedure to CBI investigations in Supreme Court‑monitored cases.
The role of the Central Vigilance Commission and its powers in supervising CBI investigations.

Legislation cited

Central Vigilance Commission Act, 2003s. 8(1)(a)
Code of Criminal Procedure, 1973s. 154, s. 157, s. 158, s. 159, s. 168, s. 169, s. 170, s. 172, s. 173(2), s. 190
Delhi Special Police Establishment Act, 1946s. 2, s. 3, s. 4
Indian Penal Code, 1860s. 120B, s. 420, s. 467, s. 468, s. 471
Prevention of Corruption Act, 1988s. 13(2), s. 13(i)(d)
Water (Prevention and Control of Pollution) Act, 1974

Subjects

environmental lawpublic interest litigationCBI investigationSection 173 CrPCTaj Heritage CorridorSupreme Court monitored caserole of SPAttorney Generaljudicial reviewCentral Vigilance Commission

Judgment

....
M.C.MEHTA A
v.
UNION OF INDIA AND ORS.

NOVEMBER 27, 2006

[S.B. SINHA, S.H. KAPADIA AND D.K. JAIN, JJ.) B

Environmental Law:

Public Interest Litigation-Taj Trapezium Zone (TTZ)-Taj Heritage
Corridor-Supreme Court monitored cases-Ordered a CBI enquiry as to C
who Cleared the Taj Heritage Corridor project, for what purpose it was
cleared and why it was cleared without the sanction of the competent
authority-In that order this Court had specifically directed the CBI Officer
lo interrogate the persons involved and also to verify their assets because
it was alleged that an amount of Rs. 17 crores was released without proper D
sanction-The Director, CBI filed a Status Report relying on the opinion of
the Attorney General for India and also indicated that action would be taken
to file a closure report under S. 173 Cr.P.C.-Correctness of-Held:
Investigation of an offence is the field exclusively reserved for the police-
But the court's jurisdiction to have control in this behalf is beyond any
controversy-The Magistrate alone has the final say in the matter-The E
Director, CBI has not given his independent opinion-He has merely relied
upon the opinion of the Attorney General-Since there was no difference of
opinion, there was no question of the Director, CBI referring the matter to
the Attorney Genera/for India-The Status Report dated 31.12.2004 is rejecte,d
as it is a charade of the performance of duty by the CBl~Bl directed to
place evidence/material collected during its investigation before Court in F
accordance with S. 173(2) Cr.P.C.-Delhi Special Police Establishment Act,
1946, S. 2-Code of Criminal Procedure, 1973, S. 173(2)~onstitution of
India, 1950, Arts. 32 and 142-CBl (Crime) Manual, 2005, Clauses 6.1 and
19.15.

The State Government started a project known as Taj Heritage Corridor G
to divert the Yamuna and to reclaim 75 acres between Agra Fort and the Taj
and use the reclaimed land for constructing food plazas, shops and amusement
activities in terms of development of heritage Corridor for Taj Trapezium Zone
(TTZ) at Agra. This led to the filing of an Interlocutory Application in a Civil
683 H
684 SUPREME COURT REPORTS [2006] SUPP. 9 S.C.R.

A Writ Petition pending before this Court. This Court ordered a Central Bureau
of Investigation (CBI) enquiry as to who cleared the project, for what purpose
it was cleared and why it was cleared without the sanction of the competent
authority. In that order this Court had specifically directed the CBI Officer
to interrogate the persons involved and also to verify their assets because it
B was alleged that an amount of Rs. 17 crores was released without proper
sanction.

Pursuant to the aforesaid order, a report was submitted by the CBI.
Considering the serious irregularities/illegalities committed in carrying out
the so-called Taj Heritage Corridor project, this Court, inter alia, directed
C the CBI to register an FIR and make further investigation in accordance with
law. By the said order, the CBI was directed to take appropriate steps for
holding investigations against the former Chief Minister and the former
Minister for Environment. The CBI was also directed to make investigations
against other officers and persons involved in the matter.

D The Director, CBI submitted his Status Report in which he opined that,
in view of the opinion of the Attorney General for India that in the absence of
any evidence to suggest criminal mens rea on the part of any individual and
due to lack of evidence, the evidence was not sufficient to launch prosecution.
He further submitted that action would be taken to file a closure report under
Section 173 of the Code of Criminal Procedure, 1963.
E
Disposing of the application, this Court

HELD: Per S.H. Kapadia, (for himself and Jain, J)

l. At the outset, it is stated that this Court has repeatedly emphasized
F that in the Supreme Court monitored cases this Court is concerned with
ensuring proper and honest performance of its duty by the Central Bureau of
Investigation (CBI) and that this Court is not concerned with the merits of
the accusations in investigation, which are to be determined at the trial on
the filing of the charge-sheet in the competent court, according to the ordinary
procedure prescribed by law. Therefore, the question which has to be decided
G is whether the administrative hierarchy of officers in the CBI, in the present
case, has performed their duties in a proper and honest manner.
(705-F, G, HJ
2. The formation of the opinion, whether or not.there is a case to place
the accused on trial, should be that of the officer-in-charge of the police station
H and none else. Under the CBI Manual, the officer-in-charge of the police
- M.C. MEHTA v. U.0.1. 685
station is the S.P. In this connection, the CBI Manual, though not binding on
this Court in Supreme Court monitored cases, nonetheless, throws light on
A

the controversy in hand. 1706-A, BJ

CBI (Crime) Manual, (2005), Clauses 6.1 and 19.15, referred to.

3. In the present case, the investigating team consisted of the 1.0., S.P., B
D.I.G., Joint Director and Additional Director CBI. In the present case, the
law officers consisted of D.L.A. and A.L.A. In the present case, the entire
investigating team as well as the said law officers are ad idem in their mind.
They have recommended prosecution. It is only the Director of Prosecution
and the Sr. P.P. who have opined that a closure report should be filed. It may C
be noted that the Sr. P.P. does not find place in clause 6.1 of the CBI Manual
which refers to the administrative hierarchy of the CBI. Further, the Director
of Prosecution is the only officer who had dissented from the opinion of the
investigating team including the S.P. It appears that this opinion is also based
only on the interpretation of legal evidence. Moreover, as can be seen from
the Status Report dated 31.12.2004, the Director, CBI has not given his D
independent opinion. He has merely relied upon the opinion of the Attorney
General. One can understand the Director, CBI expressing an opinion and
then referring the matter to the Attorney General. Under the above
circumstances, there was no difference of opinion in the matter of
investigation between the concerned officers of the CBI and, therefore, there
was no question of the Director, CBI referring the matter to the Attorney E
General for India. (706-G, H; 707-A, B, q

H.N Rishbud and Inder Singh v. State of Delhi, (1955) l SCR 1150;
Abhinandan Jha v. Dinesh Mishra, (1967) 3 SCR 668; Union ofIndia v. Sushi!
Kumar Modi, [1996] 6 SCC 500; Union ofIndia v. Sushi! Kumar Modi, (1997) F
4 SCC 770; Vineet Narain v. Union ofIndia, (1996] 2 SCC 199; Vineet Narain
v. Union ofIndia, [1998) 1 SCC 226 and Union of India v. Prakash P. Hinduja,
(2003] 6 SCC 195; K. Veeraswami v. Union of India, (1991) 3 SCC 655;
Kaplan Singh v. State of M.P., (1997) 6 SCC 185 and R. Sara/av. T.S. Velu,
(2000) 4 sec 459, relied on.
G
Satya Narain Musadi v. State of Bihar, (1980) 3 SCC 152 and Vijender
v. State of Delhi, (1997) 6 SCC 171, cited.

4. Under Article 142 of the Constitution, this Court is empowered to
take the aid and assistance of any Authority for doing complete justice in any
cause or matter pending before it. In the present case, at one stage of the H
686 SUPREME COURT REPORTS [2006] SUPP. 9 S.C.R.

A matter, voluminous records were placed by CBI before this Court along with
the recommendations of its officers. To vet and analyse the,material, this
Court essentially directed CVC to study the material, analyse the findings
and give its recommendations as to the manner in which the investigations
have been carried out Since CVC has fairly stated before this Court that its
advice is only in the nature of an opinion which is not a binding direction in
B this case, it is not required to examine the scope of the eve Act, 2003.
Secondly, in an earlier case, time was given to the CBI to complete legal
scrutiny as there was difference of opinion in the adm~nistrative hierarchy of
the CBI. However, after going through the recommendations of the above
officers, it is found that there was no difference of opinion of the concerned
C officers and, therefore, there was no question of reference to the Attorney
General. The Status Report dated 31.12.2004 is rejected as it is a charade of
the performance of duty by the CBI. Thus, a case for judicial review is made
out. (707-G, H; 708-A, B, CJ

5. The CBI is directed to place the evidence/material collected by the
D investigating team along with the report of the S.P. as required under Section
173(2) Cr.P.C. before the concerned court/Special Judge who will decide the
matter in accordance with law. It is necessary to add that, in this case, this
Court is concerned with ensuring proper and honest performance of duty by
the CBI and the above observations and reasons are confined only to that aspect
E of the case and they should not be understood as the opinion of this Court on
the merits of the accusation being investigated. No opinion is expressed on
the recommendations of the S.P. It is made clear that none of the opinions/
recommendations including those of the Attorney General for India and CVC
shall be forwarded to the concerned Court/Special Judge. (708-C, D, E)

F 6. In matters after matters, it is found that the efficacy and ethics of
the Governmental authorities are progressively coming under challenge
before this Court by way of PIL for failure to perform their statutory duties.
If this continues, a day might come when the rule of law will stand reduced to
"a rope of sand". (708-E, FJ

G Per Sinha, J, (concurring)

1. The Central Bureau oflnvestigation is subject to the Code of Criminal
Procedure, 1973. In case of conflict, although none has been pointed out,
evidently, the Code of Criminal Procedure shall prevail Even under ordinP.ry
law, the investigating officer has a statutory duty to investigate into an offence
H upon receipt of a First information Report as envisaged under Section 154 of
M.C. MEHTA v. U.0.1. 687
the Code of Criminal Procedure. Section 157 thereof provides for the A
procedure for investigation, whereof the only duty cast on the investigating
officer is to maintain his case diary in terms of Section 172 of the Code of
Criminal Procedure. [709-G, H; 710-A]

State of Bihar v. P.P. Sharma, [1992] Supp. 1 SCC 222, relied on.
Vineet Narain v. Union of India, [1998) 1 SCC 226 and State of Bihar B
v. JA.C. Sa/danha, (1980) 1 SCC 554, referred to.

2.1. It is beyond any doubt or dispute that investigation of an offence is
the field exclusively reserved for the police. It may be subject to supervision
of higher ranking officer(s) but the court's jurisdiction to have control in
this behalf is beyond any controversy. [710-BI C
2.2. It is the Magistrate alone who has the final say in the matter.
(711-D)
Sheonandan Paswan v. State of Bihar, (1987) 1 SCC 288; S.N. Sharma
v. Bipin Kumar Tiwari, (1970) 1SCC653 and Hemani Dhasmana v. CBI, (2001)
1 sec 536, relied on. D .
ClVIL ORIGINAL JURISDlCTlON : I. A. No. 43 I
IN
WRIT PETITION (CIVIL) NO. 13381of1984.
(Under Article 32 of the Constitution of India.) E
WITH
I.A. Nos. 45 I, I.A. Nos. 438, 439, 442-443, 445 and 447 in I.A. No. 43 I,
I.A. No.440 and I.A. No. 441 in I.A. No. 440 in W.P. (C) No. 13381/1984.
Ghoolam Vahanvati, S.G., S.M.A. Kazmi, Adv. Gen. Ajay Siwach, A.A.G., p
K.K. Venguopal S.C. Mishra, R.K. Jain, M.N. Rao, Krishan Mahajan (A.C.)
M.C. Mehta, Shipla Chohan, Jitendra Chaudhary, Lalita Kaushik, P.K.
Chakravarti, Shail Kr. Dwivedi, G.V. Rao, Nakul Dubey, Rakesh K. Khanna, Dr.
Rashmi Khanna, Surya Kant, S.B. Upadhyay, Shiraj C. Patodia, A.D.N. Rao,
U.S. Prasad, Atishi Dipankar, Nikhil Nayyar, P. Panneshwaran, Vijay Panjwani,
Pradeep Mishra, Nikhil Nayyar, Ankit Singhal, V.B. Balramdas, Ashok K. G
Srivastava, Saurabh Trivedi, Manjeet Singh, T.V. George, Ajay Kr. Aggarwal,
Binu Tamta, Sanjay R. Hegde, Anil Kr. Mishra, S. Wasim A. Qadri, Rajeev
Dubey, Kamlendra Mishra, Rashmi Singh, K.K. Mohan, Vishwajit Singh, Anil
Katiyar, Mridula Ray Bhardwaj and Aruneshwar Gupta, for the appearing
parties and Ajay K. Aggarwal Applicant/Petittioner-In-Person.
H
688 SUPREME COURT REPORTS [2006] SUPP. 9 S.C.R.

A The Judgment of the Court was delivered by

KAPADIA, J. Delay condoned in I.A. No. 443 in I.A. No. 431 in W.P.
(C) No. 13381/84.

A purported vertical difference of opinion in the administrative hierarchy
B in CBI between the team of investigating officers and the law officers on one
hand and Director of Prosecution on the other hand on the question as to
whether there exists adequate evidence for judicial scrutiny in the case of
criminal misconduct concerning Taj Heritage Corridor Project involving 12
accused including former Chief Minister has resulted in the legal stalemate
which warrants interpretation of Section 173(2) Cr. PC.
c
BACKGROUND FACTS:

On 25.3.2003, the Uttar Pradesh Government started a project known as
Taj Heritage Corridor Project (hereinafter referred to as "the project") to divert
the Yamuna and to reclaim 75 acres between Agra Fort anci the Taj and use
D the reclaimed land for constructing food plazas, shops and amusement activities
in tenns of development of Heritage Con-idor for Taj Trapezium Zone (hereinafter
referred to as the "TTZ") at Agra. This led to the filing of an I.A. No. 387
in Civil Writ Petition No. 13381/84 pending in this Court. Vide Order dated
16.7.2003 this Court observed that, it was painful that the concerned persons
E in power are trying to damage or endanger the World Heritage by their hasty/
irregular/ illegal activities. By the said order, this Court directed a detailed
inquiry as to who cleared the project, for what purpose it was cleared, and
why it was cleared without the sanction of the competent authority. This
Court also inquired as t? whether their exists any illegality or irregularity and,
if so, this Court called for the names of the concerned officers/ persons.
F Accordingly by the said order, a CBI inquiry was ordered. A report on the
preliminary inquiry was called for from CBI within four weeks.

By Order dated 21.8.2003 in I.A. No. 376 in Writ Petition (C) No. 13381/
84 this Court ordered CBI to verify from the assets of the officers/persons as
G to whether there was any flow of funds into their accounts from the state
exchequer. This order was passed on the basis of the confidential report
submitted by CBI to this Court under which it was reported that a sum of Rs.
17 crores were released from the state exchequer without proper sanction of
the competent authority.

H By Order dated 18.9.2003 in I.A. No. 376 in Writ Petition (C) No. 13381/
M.C. MEHTA v. U.0.1. [KAPADIA, J.] 689
'·
84 this Court after reciting the above facts noted the contents of the report A
submitted by CBI on 11.9.2003, which report recorded the following
conclusions:

"15. An amount of Rs. 17 crores was unauthorisedly released by Shri
R.K. Sharma, Secretary, Environment, U.P. without the approval
of the departmental Minister. (Ref. Para 3.1.E.4 page 64 and para B
3.l.E.31, page 81)

16. Contrary to the provisions existing in the State Government which
require that in case of every non-recurring expenditure of Rs. 5
crores and above, approval of the Expenditure Finance Committee
(EFC) of the State Government is required, no such approval was c
either soughl or obtained before sanctioning the amount of Rs.
17 crores (Ref. Para 3. l .E.11, page 67).

17. An amount of Rs. 20 crores was sanctioned by Shri Naseemuddin
Siddiqui, the then Minister of Environment, U.P. for release without
.. approval of DPRs and techno-feasibility reports and without D
clearance of the Expenditure Finance Committee (EFC) of the
State Government and CCEA, Government of India (Ref. Para
3. l.E.39, page 86).
18. Shri Siddiqui subsequently tampered with the file and made
interpolations in the Government records with an objective to E
cover up the fact that he had sanctioned Rs. 20 crores on 21 /05/
2003. (Ref. Para 3.1.E.40 (1 and 2) page 87).
19. Shri Siddiqui and Dr. V.K. Gupta, the present Secretary,
Environment, U.P. pressurized Shri Rajendra Prasad, Under
Secretary, Environment Department, U.P. who also tampered with
F
the file and made interpolations to cover the fact that the Minister
had sanctioned Rs. 20 crores. (Ref. Para 3.l.E.37, page 86).
20. Shri K.C. Mishra, Secretary, Environment and Forest Government
of India tampered with the file and made interpolations in
Government records in order to cover up his omissions of not
G
approving the proposals of his Joint Secretary and Special
Secretary for writing to the State Government for a report and to
ask them to carry out work only after necessary approvals and
clearances. He obscured some portions of the notes dated 2 \I\(}/
2002 and 08/05/2003 of Dr. Saroj, Additional Director, Ministry of
Environment and Forest so as to show that he was not a part of H
690 SUPREME COURT REPORTS [2006] SUPP. 9 S.C.R.

A the decision making and had not shown his consent to the
proposed project. (Ref. Para 3.1.E.42 page 89).
21. Central Forensic Science Laboratory has given a report that
interpolations were made in the files by Shri Naseemuddin Siddiqui,
the then Minister, U.P., Shri Rajendra Prasad, Under Secretary,
B U.P. and Shri K.C. Misra, Secretary, Environment and Forests,
Government oflndia (Ref. Para 3. l.G .21, pages 106-107 and 3. l.E.44
(5-6), page 90)."

Accordingly, this Court inter alia directed CBI to register an FIR and
make further investigation in accordance with law. By the said order, CBI was
C also directed to take appropriate steps for holding investigations against the
former Chief Minister, Ms. Mayawati, and Mr. Nasimuddin Siddiqui, former
Minister for Environment, U.P .. CBI was also directed to make investigations
against other officers mentioned hereinabove. By the said order the Income
Tax department was also directed to cooperate with CBI in further investigation.
By the said order, CBI was directed to take into consideration the provisions
D of the IPC, the Prevention of Corruption Act, 1988 and the Water (Prevention
and Control of Pollution) Act, 1974.

By order dated 19.7.2004 in I.A. No. 376 etc. in Writ Petition (C) No.
13381/84 this Court directed CBI to furnish a self-contained note in respect
E of its findings against the officers of the State Government/ Central
Government. CBI was given eight weeks time to complete the investigation
in respect of FIR No. RC.18 and three months time was granted to complete
the investigation in respect of FIR No. RC.19.

By Order dated 25. l 0.2004 in I.A. "No. 376 etc. in Writ Petition (C) No.
F 13381/84 this Court noted that two disciplinary enquiries were required to be
instituted by the State Government against Shri Punia, former Principal Secretary
to C.M., U.P .. This was because CBI had submitted two distinct notes. On
25.10.2004 the departmental enquiry on CBI note I stood completed. However,
learned counsel appearing for the State of U.P. submitted that in the absence
of CBI furnishing to the disciplinary authority the statement of the former
G Chief Minister, the second disciplinary proceeding could not be initiated by
the State against Shri Punia. This aspect is important. The case of Shri Punia
was that he had acted under oral instructions of the former Chief Minister.
This was required to be enquired into by the departmental enquiry, therefore,
the State requested CBI to furnish the statement of the former Chief Minister
H which CBI had collected during investigation under RC.18. At that stage, time
M.C. MEHTA v. U.0.I. [KAPADIA, J.] 691

was sought by the CBI on the ground that investigation into RC.18 was A
nearing completion and that CBI was awaiting legal scrutiny of the matter.
Therefore, this Court adjourned the matter stating that the second disciplinary
enquiry against Shri Punia arising out of CBI note II stands deferred until
availability of the statement of the former Chief Minister of the State. That
statement was ordered to be given to the State Government within three
weeks. It was further ordered that, if within three weeks CBI failed to make B
available the said statement then the State Government will proceed with the
initiation of disciplinary enquiry against Shri Punia on the basis of the material
available. Accordingly, tbis Court adjourned the matter stating that after legal
scrutiny the report shall be submitted before this Court.

In the meantime, CBI submitted its report with detailed Annexures
c
running into hundreds of pages.

By order dated 14.3.2005 in I.A. No. 431 in Writ Petition (Civil) No.
13381/84, since the report of CBI was voluminous, this Court after going
through the provisions of the Central Vigilance Commission Act, 2003 D
(hereinafter referred to as the "CVC Act") directed the records relating to
prosecution of twelve accused be placed before the Central Vigilance
Commission (hereinafter referred to as the "CVC") for scrutiny and
recommendation. CVC was added as a party. Basically this Court wanted CVC
to analyse the Report of CBI and give to the Court the summary of
recommendations of various officers in the administrative hierarchy of CBI as E
the Court was informed that there was divergence of opinion between them.

To complete the chronology of orders passed by this Court, we may
point out that the Director, CBI submitted his Status Report as on 31.12.2004
to this Court in which he stated as follows:
F
"5. As regards investigation ofRC0062003AOOl8, it is submitted that
as there was difference of opinion between the officers of CBI in
relation to the implication of individuals in the case, the matter was
referred to the learned Attorney General of India through the Ministry
of Law for obtaining his esteemed opinion in this case. The learned G
Attorney General has since given his considered opinion that in
absence of any evidence to suggest criminal mens rea on the part of
any individual and due to lack of evidence of any pecuniary benefit
to any of the officers or any other person, the proper course of action
would be to take disciplinary action against the officers for their
H
--·
692 SUPREME COURT REPORTS [2006] SUPP. 9 S.C.R.

A om1ss10n and misconduct. I have gone through the report of
investigation, comments of various officers including the opinion of
the Learned Attorney General and I am of the opinion that the evidence
is not sufficient to launch prosecution.

6. As disciplinary action has already been initiated by the authorities
B concerned on the direction of Hon'ble Supreme Court, action will be
taken by filing a closure report under section 173 Cr. PC in the
competent court incorporating all the facts/ circumstances revealed
during the course of investigation."

CONTENTIONS:
c
Shri Krishan Mahajan, learned amicus curiae would submit that in the
instant case, at the present stage, the question is of investigation and not of
prosecution. Under tqe Code of Criminal Procedure (Cr. PC), i'lvestigation
consists of : site inspection, ascertainment of the facts and circumstances of
the case, discovery and arrest of the suspected offender, collection of evidence
D relating to the commission of the offence which may consist of the examination
of various persons, the search and seizure and, lastly, formation of opinion
as to whether on the material collected there is a case to place the accused
before a Magistrate for trial, and if so, taking the necessary steps for the same
by the filing of a charge-sheet under Section 173 Cr. PC. Learned counsel
E submitted that the final step in the investigation, namely, formation of the
opinion is to be of the officer in charge of the police station. This authority
cannot be delegated although a provision entitling superior officers to supervise
or participate is there under Sections 158 and 173(3) Cr. PC. Learned Counsel
urged that the officer in charge of the police station or the investigating
officer is the sole person who has to form the opinion under Section 173 Cr.
F PC and file the police report. In this connection, learned counsel pointed out
that in this case Shri D.C. Dwivedi, Deputy Superintendent of Police, CBl,
Anti Corruption Bureau, Lucknow was the 1.0 .. He had filed the F.l.R. with
thirteen sheets attached to it, registering a regular case after series of preliminary
reports submitted to this Court in I.A. Nos. 376/03 and 431/05 filed by the
G amicus curiae. This case was assigned to the 1.0. by Shri K. N. Tiwari,
Superintendent of Police, CBI, Anti Corruption Bureau, Lucknow. According
to the learned counsel, the functions of the magistracy and the police are
entirely different and though in the circumstances of a given case the
Magistrate may or may not accept the report, he cannot infringe upon the
jurisdiction of the police by compelling the police to change its opinion.
H Learned counsel submits that a field of activity reserved for the police and
M.C. MEHTA v. U.O.I. [KAPADIA, J.] 693
the executive has been expressly carved out under the Cr. PC. A
Learned counsel further submitted that, the 1.0. works under the entire
CBI hierarchy; that the S.P. works under his supervisory officer of DIG rank
in terms of the CBI (Crime) Manual-2005 (hereinafter referred to as the
"Manual"). But this entire administrative structure of the CBI has to function
according to the provisions of the Cr.PC in the matter of investigation, in the B
matter of filing the charge-sheet/ final report under Section 173(2) and the
superior officers of CBI cannot substitute the opinion of the S.P. if that
opinion states that a case on the material gathered during the investigation
has been made out. Similarly, if the S.P. opines on the basis of the material
collected that no case is made out, such an opinion cannot be substituted C
by the higher hierarchy of the officers in CBI. In this connection, it is pointed
out that, in the present case, the FIR registered is for offences under Section
120B r/w Sections 420, 467, 468, 471 IPC as also under Section 13(2) r/w
Section 13(i)(d) of the P.C. Act, 1988. It was urged that there are no separate
provisions in the Delhi Special Police Establishment Act, 1946 or the P.C. Act,
1988 as to the manner or the steps to be taken in the investigation of such D
offences and, therefore, though the investigation is conducted by the CBI,
the provisions under Chapter XII of the Cr. PC would equally apply to such
investigation. Learned counsel submitted that the position of the entire
hierarchy of CBI in the matter of filing of police report by the S.P. and
formation of the opinion by the S.P. on the basis of the evidence collected E
during the investigation is to be seen in the context of fair and impartial
investigation. He is the Officer-in-charge of the police station. Learned counsel,
therefore, submitted that in a Supreme Court monitored investigation the S.P.
has to file his report before the Supreme Court only and not before the entire
hierarchy of CBI whose only role is to supervise investigation. This hierarchy
of CBI, according to the learned counsel, cannot make the S.P. to change his F
opinion. They cannot substitute the opinion of the S.P. with their own opinion.
Learned counsel further contend that, in a Supreme Court monitored
investigation even where the report of the S.P. is a closure report and the
Director, CBI and Attorney General agree with the opinion of the S. P., still
it is the duty of the CBI to olace the entire material before the Supreme Court
and it is for the Court to examine and be satisfied that the authorities have G
reasonably come to such conclusion.

It was next urged that the Director of Prosecution in the CBI has no role
to play at the stage of investigation which includes formation of an opinion
by the S.P. H
...,,

694 SUPREME COURT REPORTS [2006] SUPP. 9 S.C.R.

A Shri Rao, learned senior counsel on behalf of the eve submitted that
pursuant to the directions of the Supreme Court dated 14.3.2005 eve had·
examined the records of CBI made available to it. The CVC had also called
for further infonnation from CBI. After vetting the entire record, CVC had
submitted its report to this Court on 9.5.2005. Learned counsel submitted that
under Section 8(l)(a) of the CVC Act, the CVC is empowered to exercise
B superintendence over the functioning of CBI insofar as it relates to the
investigation of offences alleged to have been committed under the P.C. Act,
1988 and, therefore, when the CBI investigates under the P.C. Act, 1988
against public servants serving in connection with affairs of a State
Government, such investigation is subject to the superintendence of CVC.
c This submission was made on behalf of eve because it was argued on behalf
of some of the accused that CVC had no power of superintendence of cases
involving public servants employed in connection with affairs of the State
Government.

Learned counsel for CVC submitted that in order to fulfill the
D responsibility of exercising superintendence over the functioning of CBI
insofar as it relates to investigations of offences under the P.C. Act, 1988, the
CVC is entitled to scrutinize investigation reports of the CBI. at any stage
before filing of charge-sheets/ closure reports. For this purpose, eve is
empowered to issue suitable advice in cases under investigation. Such advice,
E according to the learned counsel, is in the natur\! of an opinion, and not a
binding direction.

On the facts of the case, learned counsel for CVC urged that, in the
present case the preliminary inquiry as well as the investigation were conducted
by the CBI against the former ChiefMinister, officers of the State Government
F and others under the direction of this Court. It was the Supreme Court which
had referred the matter to eve and, therefore, the eve was bound to submit
its report. In the circumstances, learned counsel submitted that, it cannot be
said that the report of the CVC is vitiated by any illegality or irregularity since
the Supreme Court has absolute power under Article l 42 of the Constitution
to pass any order as is necessary for doing complete justice in any cause or
G matter pending before it.

Shri Venugopal, learned senior counsel appearing on behalf of the
former Chief Minister submitted that this Court should be loathe to interfere ·
in investigation since it is a field of activity reserved for the police and the
executive. He submitted that, in the present case, we are still at the stage of
H . _;..l
M.C. MEHTA v. U.O.I. [KAPADIA, J.] 695
investigation and unless an extraordinary case of gross abuse of power is A
made out, no ·interference is called for under Article 32 of the Constitution.
Learned counsel fm1her submitted that, in the present case, CVC had no role
to play, particularly since the case pertains to conduct of the officers who are
the employees of the State Government. Learned counsel submitted that
public servants serving in connection with affairs Qf the State Government fell
outside the powers of eve. Learned counsel submitted that, in any event, B
CVC had no power to direct the manner in which CBI will conclude the
proceedings. Learned counsel ·submitted that the opinion as to whether the
case is made out for judicial scrutiny or not has to be the decision of CBI
and unless there is gross abuse of power this Court should not intervene in
the field of investigation under Article 32 of the Constitution. Learned counsel C
urged that, in the present case, there is no such gross abuse of power made
out, and, therefore, this Court should not interfere under Article 32 of the
Constitution.

ISSUE:
D
The key issue which arises for determination in this case is: whether on
the facts and the circumstance of this case, the Director, CBI, who has not
given his own independent opinion, was right in referring the matter for
opinion to the Attorney General of India, particularly when the entire
investigation and law officers' team was ad idem in its opinion on filing of
the charge-sheet and only on the dissenting opinion of the Director of E
Prosecution, whose opinion is also based on the interpretation of the legal
evidence, which. stage has not even arrived. The opinion of the Director, CBI
is based solely on the opinion of the Attorney General after the reference.

CASE LAW ON THE POWERS AND FUNCTIONS OF THE HIERARCHY F
IN CBI IN SUPREME COURT MONITORED CASES:

In the case of H.N. Rishbud and lnder Singh v. The State of Delhi 1, this
Court held that the Code of Criminal Procedure provides not merely for
judicial enquiry into or trial of alleged offences but also for prior investigation
thereof. Section 5 of the Code shows that all offences shall be investigated, G
inquired into, tried and otherwise dealt with in accordance with the Code.
When information of the commission of cognizable offence is received, the
appropriate police officer has the authority to enter on the investigation of
the same. Thus, investigation is a normal preliminary for an accused being put

I. (1995) I SCR 1150. H
696 SUPREME COURT REPORTS [2006) SUPP 9 S.C.R.

A up for trial for a cognizable offence. Investigation usually starts on information
relating to the commission of an offence given to an officer in charge of a
police station and recorded under Section 154 of the Code. If from information
so received or otherwise, the officer in charge of the police statlon has reason
to suspect the commission of an offence, he or his subordinate has to
proceed to the spot to investigate the facts and circumstances of the case,
B and if necessary to take measures for the discovery and arrest of the offender.
Under Section 155 the officer in charge of a police station has the power of
making a search in any place for the seizure of anything believed to be
necessary for the purpose of investigation. A subordinate officer may be
deputed by him for that purpose. The investigating officer has also the power
C to arrest the person under Section 54 of the .Code. It is important to notice
that where the investigation is conducted not by the officer in charge of the
police station but by a subordinate officer such subordinate officer has to
report the result. of the investigation to the officer in charge of the police
station. If, upon the completion of the investigation it appears to the officer
in charge of the police station that there is no sufficient evidence, he may
D decide to release the suspected accused. If, it appears to him that there is
sufficient evidence or reasonable ground to place the accused on trial, he has
to take necessary steps under Section 170 of the Code. In either case, on
completion of the investigation he has to submit a report to the Magistrate
under Section 173 of the Code in the prescribed form. Thus, under the Code,
E investigation consists of proceeding to the spot, ascertainment of the facts
and circumstances of the case, discovery and arrest of the suspected offender,
collection of evidence and formation of the opinion as to whether on the
material collected there is a case to place1he accused before a Magistrate for
trial, and if so, taking the necessary steps for the same by ~he filing of a
charge-sheet under Section 173. The 'scbeme of the Code shows that while
F it is permissible for an officer in charge of a police station to depute some
subordinate officer to conduct some of these steps in the investigation, the
responsibility for each one of the above steps is that of the officer in charge
of the police station (see Section 168 of the Code). This Court had categorically
stated in the above judgment that, the final step in the investigation, namely,
G the formation of the opinion as to whether or not there is a case to place the
accused on trial is to be of the officer in charge of the police station and this
function cannot be delegated. This Court unequivocally observed that, there
is no provision for delegation of the above function regarding formation of
the opinion but only a provision entitling the superior officers to supervise
or participate under Section 551 (corresponding to Section 36 of the present
H. Code). This Court further held that, a police report which results from an
M.C. MEHTA v. U.O.I. (KAPADIA,J.] 697
investigation as provided for in Section 190 of the Code is the material on A
which cognizance is taken. But from that it cannot be said that a valid and
legal police report is the foundation of the jurisdiction of the court to take
cognizance.

In the case of Abhinandan Jha & Ors. v. Dinesh Mishra 2 this Court
held that when a cognizable offence is reported to the police they may after B
investigation take action under Section 169 or Section 170 Cr. PC. If the police
thinks that there is no sufficient evidence against the accused, they may,
under Section 169 release the accused from custody or, if the police thinks
that there is sufficient evidence, they may, under Section 170, forward the
accused to a competent Magistrate. In either case the police has to submit C
a report of the action taken, under Section 173, to the competent Magistrate
who considers it judicially under Section 190 and takes the following action:

(a) If the report is a charge-sheet under Section 170, it is open to the
Magistrate to agree with it and take cognizance of the offence
tmder Section l90(l)(b); or decline to take cognizance. But he D
cannot call upon the police to submit a report that the accused
need not be proceeded against on the ground that there was no
sufficient evidence.
(b) If the report is of the action taken under Section 169, then the
Magistrate may agree with the report and close the proceedings. E
If he disagrees with the report, he can give directions to the
police under Section 156(3) to make a further investigation. Ifthe
police, after further investigation submits a charge-sheet, the
Magistrate may follow the procedure where the charge-sheet
under Section 170 is filed; but ifthe police are still of the opinion
that there was no sufficient evidence against the accused, the F
Magistrate may or may not agree with it. Where he agrees, the
case against the accused is closed. Where he disagrees and
forms an opinion that the facts mentioned in the report constitute
an offence, he can take cognizance under Section 190(1 )(c). But
the Magistrate cannot direct the police to submit a charge-sheet, G
because the submission of the report depends entirely upon the
opinion formed by the police and not on the opinion of the
Magistrate. If the Magistrate disagrees with the report of the
police he can take cognizance of the offence under Section

2. [1967] 3 SCR 668 H
698 SUPREME COURT REPORTS [2006] SUPP. 9 S.C.R.

A 190(l)(a) or (c), but, he cannot compel the police to fonn a
particular opinion on investigation and submit a report according
to such opinion.

This judgment shows the importance of the opinion to be fonned by the
officer in charge of the police station. The opinion of the officer in charge of
B the police station is the ~asis of the report. Even a competent Magistrate
cannot compel the. concerned police officer to form a particular opinion. The
formation of the opinion of the police on the material collected during the
investigation as to whether judicial scrutiny is warranted or not is entirely left
to the officer in charge of the police station. There is no provision in the Code
C empowering a Magistrate to compel the police to fonn a particular opinion.
This Court observed that, although the Magistrate may have certain
supervisory powers under the Code, it cannot be said that when the police
submits a report that no case has been made out for sending the accused for
trial, it is open to the Magistrate to direct the police to file a charge-sheet.
The formation of the said opinion, by the officer in charge of the police
D station, has been held to be a final step in the investigation, and that final
step has to be taken only by the officer in charge of the police station and
by no other authority.

In the case of Union of India and Ors. v. Sushi/ Kumar Modi and Ors., J
investigation was entrusted to CBI in the fodder scam case by the High Court
E to ensure proper and honest performance of duty by CBI. This Court directed
CBI officers to inform the Chief Justice of the Patna High Court about the
progress of the investigation and to obtain his directions if so required for
conducting the investigation. The Joint Director of CBI submitted his report
on the investigation carried out by him to the Chief Justice of the High Court.
F The High Court found that the Director was trying to interfere with the
investigation and, therefore, the High Court directed that all reports of the CBI
officers shall be submitted directly to the court without being forwarded to
the Director, CBI. This order of the High Court was challenged. It was held
that the Director, CBI was responsible and accountable for the proper
investigation of the case and, therefore, he cannot be excluded from the
G investigation. It was, however, observed that the Director, CBI was duty-
bound to make a fair, honest and complete investigation and officers associated
with the investigation have to function as members of a cohesive team
engaged in common pursuit of such an investigation so as to uphold the
majesty of the law and preserve the rule cf law. It was held that, in case of
H 3. [1996] 6 sec soo.
... M.C. MEHTAv. U.0.1. [KAPADIA, J.] 699
any difference of opinion between officers of CBI in respect of the A
investigation, final decision would not be taken by the Director himself or by
the Director merely on the opinion of Legal Department of the CBI, but the
matter would be decided according to the opinion of the Attorney General of
India for the purpose of investigation and filing of the charge-sheet against
any such individual. In that event, the opinion would be sought from the
Attorney General after making available to him of the opinions expressed on B
the subject by the persons associated with the investigation as a part of the
materials. We quote hereinbelow paras 13 and 14 of the said judgment:

"13. We make it clear that in case of any difference of opinion between
the officers of the CBI in relation to the implication of any individual C
in the crimes or any other matter relating to the investigation, the final
decision in the matter would not be taken by the Director, CBI, himself
or by him merely on the opinion of the Legal Department of the CBI;
and in such a situation, the matter would be determined according to
the opinion of the Attorney General of India for the purpose of the
investigation and filing of the charge-sheet against any such individual. D
In that event, the opinion would be sought from the Attorney General
after making available to him all the opinions expressed on the subject
by the persons associated with the investigation as a part of the
materials.

14. It appears necessary to add that the Court, in this proceeding, is E
concerned with ensuring proper and honest performance of its duty
by the CBI and not the merits of the accusations being investigated,
which are to be determined at the trial on the filing of the charge-sheet
in the competent court, according to the ordinary procedure prescribed
by law. Care must, therefore, be taken by the High Court to avoid F
making any observation which may be construed as the expression of
its opinion on merits relating to the accusation against any individual.
Any such observation made on the merits of the accusation so far by
the High Court, including those in Para 8 of the impugned order are
not to be treated as final, or having the approval of this Court. Such
observations should not, in any manner influence the decision on G
merits at the trial on the filing of the charge-sheet. The directions
given by this Court in its aforesaid order dated 19 .3 .1996 have to be
under.stood in this manner by all concerned, including the High Court."

This position was clarified in the case of Union of India and Ors. v.
H
700 SUPREME COURT REPORTS [2006] SUPP. 9 S.C.R.

A Sushi/ Kumar Modi and Ors. 4 • It was observed that the nature of the PIL
proceedings before the Patna High Court in the fodder scam case was
somewhat similar to the proceedings in Vineet Narain 's 5 case. It was observed
by this Court that, the performance of the PIL proceedings is essentially to
ensure performance of statutory duty by the CBI. The duty of the court in
such proceedings is to ensure that CBI and other government agencies do
B their duty in conformity with law. According to the Code, the formation of the
opinion as to whether or not there is a case to place the accused for trial is
that of the police officer making the investigation and the final step in the
investigation is. to be taken only by the police and by no other authority. It
was observed that, in order to ensure compliance of this aspect of the Code,
C the directions were issued from time to time to CBI that in case of difference
of opinion at any stage during the investigation, the final decision shall be
of the Attorney General on referrnce being made to him on the difference of
opinion between the officers concerned. This Court further observed in that
case that the High Court was only required to ensure that the Director, CBI
did not close any investigation based only upon his individual opinion, if
D there be any difference of opinion between the Director, CBI and the other
officers concerned in the CBI.

In Vineet Narain and Ors. v. Union of India and Anr., 6 certain measures
by way of checks and balances were recommended by this Court to insulate
E CBI from extraneous influence of any kind. It was observed that, unless a
proper investigation is made followed by a proper prosecution the rule of law
will lose significance. Accordingly, directions were issued.till such time as the
legislature steps in by way of proper legislation. One of the points which
arose for determination in that case was the significance of the word
"superintendence" in Section 4 of the Delhi Special Police Establishment Act,
F 1946. It was held that the overall superintendence of CBI vests in the Central
Government and, therefore, by virtue of Section 3 of that Act the power
vested in the Central Government to specify the offences or classes of
offences which are to be investigated by CBI. But once that jurisdiction is
attracted by virtue of the notification under Section 3, the actual investigation
is to be governed by the statutory provisions under the general law applicable
G to such investigation and the power of the investigator cannot be curtailed
by the executive instructions issued under Section 4 by the Central
4. [19971 4 sec no.

s. [1996] 2 sec 199.

H 6. [1998) 1 sec 226
M.C. MEHTA v. U.0.1. [KAPADIA, J.] 701
Government. The general superintendence over the functioning of the A
Directorate/department and specification of the offences to be investigated
by CBI is not the same thing, therefore, the Central Government is precluded
from controlling the initiation and the actual process of investigation. It was
held that, the word "superintendence" in Section 4( I) cannot be construed
in a wider sense to permit supervision of the actual investigation of an
offence by CBI. Therefore, the Central Government was precluded from issuing B
any direction to CBI to curtail or inhibit its jurisdiction to investigate an
offence specified in the notification issued under Section 3 by a directive
under Section 4(1) of the Delhi Special Police Establishment Act, 1946. The ·
constitution of the CVC flowed from the judgment of this Court in Vineet
Narain 6 (supra). It is in this judgment that a direction was given to the Central C
Government by this Court for granting statutory status to the CVC.
c'
In the case of Union of India v. Prakash P. Hinduja and Anr. 7 this Court
has held that the provision contained in Chapter XII Cr.PC shows that detailed
and elaborate provisions have been made for securing an investigation into
an offence of which information has been given. The manner and the method D
of conducting the investigation are left entirely to the officer in charge of the
police station. A Magistrate has no power to interfere with the same. The
formation of the opinion whether there is sufficient evidence or reasonable
ground of suspicion to justify the forwarding of the case to a Magistrate or
not, as contemplated by Sections 169 and 170, is to be that of the officer in E
charge of the police station and a Magistrate has absolutely no role to play
at this stage. Similarly, after completion of the investigation while making a
report to the Magistrate under Section 173, the requisite details have to be
submitted by the officer in charge of the police station without any kind of
interference or direction of a Magistrate and this will include an opinion
regarding the fact whether any offence appears to have been committed and, F
if so, by whom, as provided by clause (d) of sub-section (2)(i) of Section 173
Cr. PC. These provisions are applicable even in cases under the P.C. Act, 1988
vide Section 22 thereof. The Magistrate is not bound to accept the final report
submitted by the police and if he feels that the evidence and the material
collected during the investigation justify prosecution of the accused, he may G
not accept that report and take cognizance of the offence and summon the
accused, which would not constitute interference with the investigation as
such: ·rn the said judgment, it was further observed, relying upon the judgment
in Vineet Narain 6 (supra), that once the jurisdiction is conferred on CBI to

1. [2003] 6 sec 195. H
702 SUPREME COURT REPORTS [2006] SUPP. 9 S.C.R.

A investigate an offence by virtue of notification under Section 3 of the Act,
the powers of investigation are governed by the statutory provisions and
they cannot be curtained by any executive instruction issued under Section
4(1) of the Delhi Special Police Establishment Act, 1946.

Analysis of the above judgments show that there is a clear-cut and
B well-demarcated sphere of activities in the field of crime detection and crime
punishment. Investigation of an offence is the field reserved for the executive
through the police department, the superintendence over which vests in the
State Government. The executive is charged with a duty to keep vigilance
over law and order situation. It is obliged to prevent crime. If an offence is
C committed allegedly, it is the State's duty to investigate into the offence and
bring the offender to book. Once it investigates through the police department
and finds an offence having been committed, it is its duty to collect evidence
for the purposes of proving the offence. Once that is completed, the
investigating officer submits report to the court requesting the court to take
cognizance of the offence under Section 190 Cr.PC and his duty comes to an
D end. Therefore, there is a well-defined and well-demarcated functions in the
field of crime detection and its subsequent adjudication by the court. Lastly,
the term "investigation" under Section 173(2) of the Cr.PC includes opinion
of the officer in charge of the police station as to whether there is sufficient
evidence or reasonable ground of suspicion to justify the forwarding of the.
E case to the concerned court or not. This opinion is not legal evidence. At the
stage of Section 173(2) the question of interpretation of legal evidence does
not a(ise. In any event, that function is that of the courts.

CASE LAW ON THE ROLE OF OFFICER IN CHARGE OF THE POLICE
STATION
F In the case of K. Veeraswami v. Union of India and Ors. 8 this Court
observed vide para 76 as follows:

"76. The charge sheet is nothing but a final report of police officer
under Section 173(2) of the CrPC The Section l 73(2) provides that on
completion of the investigation the police officer investigating into a
G
cognizable offence shall submit a report. The report must be in the
form prescribed by the State Government and stating therein (a) the
names of the parties; (b) the nature of the information; (c) the names
of the persons who appear to be acquainted with the circumstances

H s. [1999] 3 sec 655.
M.C. MEHTA v. U.0.1. [KAPADIA, J.] 703
of the case; (d) whether any offence appears to have been committed A.
and, if so, by whom (e) whether the accused has been arrested; (f)
whether he had been released on his bond and, if so, whether with
or without sureties; and (g) whether he has been forwarded in custody
under Section 170. As observed by this Court in Satya Narain Musadi
and Ors. v. State of Bihar, [1980] 3 SCC 152; that the statutory
requirement of the report under Section 173(2) would be complied with B
if the various details prescribed therein are included in the report. This
report is an intimation to the magistrate that upon investigation into
a cognizable offence the investigating officer has been able to procure
sufficient evidence for the court to inquire into the offence and the
necessary information is being sent to the court. In fact, the report C
under Section 173(2) purports to be an opinion of the investigating
officer that as far as he is concerned he has been able to procure
sufficient material for the trial of the accused by the court. The report
is complete if it is accompanied with all the documents and statements
of witnesses as required by Section 175(5). Nothing more need be D
stated in the report of the Investigating Officer. It is also not necessary
that all the details of the offence must be stated. The details of the
offence are required to be proved to bring home the guilt to the
accused at a later stage i.e. in the course of the trial of the case by
adducing acceptable evidence."
E
(emphasis supplied)

In the case of Kaptan Singh and Ors. v. State of M.P. and Anr. 9 this
Court held vide para 5 as follows:

"5. From a conspectus of the above decisions it follows that the F
revisional power of the High Court while sitting in judgment over an
order of acquittal should not be exercised unless there exists a manifest
illegality in the judgment or order of acquittal or there is grave
miscarriage of justice. Read in the context of the above principle of
law we have no hesitation in concluding that the judgment of the trial
court in the instant case is patently wrong and it has caused grave G
miscarriage of justice. The High Court was therefore fully justified in
setting aside the order of acquittal. From the judgment of the trial
court we find that one of the grounds that largely weighed with it for
acquitting the appellants was that an Inspector of CID who had taken

9. [1997] 6 sec 1ss
H
704 SUPREME COURT REPORTS [2006] SUPP. 9 S.C.R.

A up the investigation of the case and was examined by the defence
(DW 3) testified that during his investigation he found that the story
as made out by the prosecution was not true and on the contrary the
plea of the accused (appellants) that in the night of the incident a
dacoity with murder took place in the house of Baijnath by unknown
criminals and the appellants were implicated falsely was true. It is trite
B that result of investigation can never be legal evidence; and this
Court in Vijender v. State ofDelhi, (1997] 6 SCC 171 made the following
comments while dealing with this issue:

'The reliance of the trial Judge on the result of investigation to
base his findings is again patently wrong. If the observation of
c the trial Judge in this regard is taken to its logical conclusion it
would mean that a finding of guilt can be recorded against an
accused without a trial, relying solely upon the police report
submitted under Section 173 CrPC, which is the outcome of an
investigation. The result of investigation under Chapter XII of
D the Criminal Procedure Code is a conclusion that an Investigating
Officer draws on the basis of materials collected during
investigation and such conclusion can only form the basis of a
competent court to take cognizance thereupon under Section
190(l)(b) CrPC and to proceed with the case for trial, where the
materials collected during investigation are to be translated into
E
legal evidence. The trial court is then required to base its
conclusion solely on the evidence adduced during the trial; and
it cannot rely on the investigation or the result thereof. Since this
is an elementary principle of criminal Jaw, we need not dilate on
this point any further'."
F
(emphasis supplied)

In the case of R. Sara/a v. T.S. Velu and Ors., 10 the facts were as
follows. A young bride committed suicide within seven months of her marriage.
An inquiry under Section 174(3) Cr;PC was held. The Magistrate conducted
G the inquiry and submitted a report holding that due to mental restlessness she
had committed suicide and no one was responsible. He further opined that
her death was not due to dowry demand. However, the police continued with
)

the investigation and submitted a challan against the husband of the deceased
and his mother for the offence under Sections 304 B and 498 A IPC. The father

H 10. c20001 4 sec 459.
M.C. MEHTA v. U.0.1. [KAPADIA, J.] 705
of the deceased was not satisfied with the challan as the sister-in-law and the A
father-in-law were not arraigned as accused. Therefore, the deceased's father
moved the High Court under Section 482 Cr.PC. A Single Judge of the High
Court directed that the papers be placed before the Public Prosecutor. He was
asked to give an opinion on the matter and, thereafter, the court directed that
an amended charge-sheet should be filed in the concerned court. This court B
held as follows:

"In this case the High Court has committed an illegality in directing
the final report to be taken back and to file a fresh report incorporating
the opinion of the Public Prosecutor. Such an order cannot stand legal
scrutiny. The formation of the opinion, whether or not there is a case C
to place the accused on trial, should be that of the officer in charge
of the police station and none else. There is no stage during which
the investigating officer is legally obliged to take the opinion of a
Public Prosecutor or any authority, except the superior police officer
in the rank as envisaged in Section 36 of the Code. A Public
Prosecutor is appointed, as indicated in Section 24 CrPC, for D
conducting any prosecution, appeal or other proceedings in the court.
He has also the power to withdraw any case from the prosecution with.
the consent of the court. He is the officer of the court. Thus the
Public Prosecutor is to deal with a different field in the administration
ofjustice and he is not involved in investigation. It is not the scheme E
of the Code for supporting or sponsoring any combined operation
between the investigating officer and the Public Prosecutor for filing.
the report in the court."

(emphasis supplied)
F
APPLICATION OF THE ABOVE CASE LAW TO THE FACTS OF THIS
CASE:

At the outset, we may state that this Court has repeatedly emphasized
in the above judgments that in Supreme Court monitored cases this Court is
concerned with ensuring proper and honest performance of its duty by CBI G
and that this Court is not concerned with the merits of the accusations in
investigation, which are to be determined at the trial on the filing of the
charge-sheet in the competent court, according to the ordinary procedure
prescribed by law. Therefore, the question which we have to decide in the
present case is whether the administrative hierarchy of officers in the CBI, in H
the present case, have performed their duties in a proper and honest manner.
706 SUPREME COlJRT REPORTS [2006] SUPP. 9 S.C.R.

A As stated above, the formation of the opinion, whether or not there is
a case to place the accused on trial, should be that of the officer in charge
of the police station and none else. Under the CBI Manual, the officer in
charge of the police station is the S.P .. In this connection, we quote hereinbelow
the CBI Manual, which though not binding on this Court in Supreme Court
B monitored cases, nonetheless, the said Manual throws light on the controversy
in hand. We quote clauses 6.1 and 19.15 of the CBI (Crime) Manual-2005
hereinbelow:

"DIRECTOR, CBI-Matters to be shown to DCB/

6.1. Director, CBI should be informed of all important matters and his
c advice or instructions obtained wherever this is considered necessary
by Special Director, Additional Director, Joint Directors, DisG, Director
of Prosecution, Director, CFSL and other Senior Officers. In particular,
the following matters should be referred to him."

"19.15 SP's Report is a very important document and should be
D
prepared personally by the SP in the prescribed format. The
concerned Departments/ Government Undertakings assess the CBI
investigation of their cases solely on the basis of the SP's Reports.
The report should be grammatically correct, clear and unambiguous.
The report should be brief without repetitions and should contain all
E necessary data. The inferno/ differences of opinion among CBI Officers
should not find mention in the SP 's Report, which should advance all
arguments to justify the final order passed by the Competent Authority
in the CBI. The final recommendation should be precise. If sanction
is required, the relevant Section (including sub-s~ction) of law under
which sanction is required should be mentioned with brief grounds.
F
In some of the cases, charge sheets cannot be filed and only complaints
by certain statutory authorities can be filed in the Court. In such
cases, the relevant section prescribing the filing of a complaint should
be mentioned in the SP's Report. It should be borne in mind by the
SP that the efficiency and the quality of work done by the CBI would
·G be viewed mainly on the basis of the SP's Report and, therefore, no
effort should be spared to make it factually correct, systematic, cogent
and logical." (emphasis supplied)

In the present case, the investigating team consisted of the 1.0., S.P.,
D.I.G., Joint Director and Additional Director CBI. In the present case, the law
-H officers consisted of D.L.A. and A.LA.. In the present case, the entire
M.C. MEHTA v. U.0.1. [KAPADIA. J.] 707
investigating team as well as the said law officers are ad idem in their mind. A
They have recommended prosecution. It is only the Director of Prosecution
and the Sr. P.P. who have opined that a closure report should be filed. It may
be noted that Sr. P.P. does not find place in clause 6. l which refers to the
administrative hierarchy of CBI. Further, the Director of Prosecution is the
only officer who had dissented from the opinion of the investigating team
including the S.P. It appears that this opinion is also based only on B
interpretation of legal evidence. Moreover, as can be seen from the Status
Report dated 3 l.12.2004, the Director, CBI has not given his independent
opinion. He has merely relied upon the opinion of the Attorney General. We
can understand the Director, CBI expressing an opinion and then referring the
matter to the Attorney General. Under the abov~ circumstances, we are of the C
view that, there was no difference of opinion in the matter of investigation
between the concerned officers of CBI and, tht•efore, there was no question
of the Director, CBI referring the matter to the Attorney General of India. As
stated by this Court in the case of R. Sar/a JO (supra), the formation of
opinion, whether or not there is a case to place the accused on trial has to
be of the officer in charge of the police station. One fails to understand why D
an opinion of Sr. P.P. had been taken in the present case. He is not a member
of the hierarchy. The S.P. is not legally obliged to take his opinion. In the
circumstances, when there was no difference of opinion in the concerned
team, the q~estion of seeking opinion of the Attorney General did not arise.
Lastly, even under clause 19. l 5 of the CBI ManuM it is expressly stated that E
the report of the S.P. should be prepared personally by the S.P. and that the
internal differences of opinion among CBI Officers should not find place in
the SP's Report. As stated above, CBI was required to follow the procedure
in Cr.PC. The result of the investigation by the police is not legal evidence.
Keeping in mind the scheme of Sections 168, 169,' 170 and 173 of the Cr.PC,
in the facts and circumstances of this case, we direct the entire material F
collected by CBI along with the report of the S.P. to be placed before the
concerned court/ Special Judge in tenns of Section 173(2) Cr.PC. The decision
to accept or reject the report of the S.P. shall be that of the concerned court/
Special Judge, who will decide the mc.:ter in accordance with law.

Before concluding two points need clarification. Under Article 142 of G
the Constitution, this Court is empowered to take aid and assistance of any
Authority for doing complete justice in any cause or matter pending before
it. In the present case, at one stage of the matter, voluminous records were
placed by CBI before this Court along with the recommendations of its
officers. To vet and analyse the material, this Court essentially directed CVC H
708 SUPREME COURT REPORTS [2006] SUPP. 9 S.C.R.

A to study the material, analyse the findings and give its recommendations as
to the manner in which the investigations have been carried out. Since CVC
has fairly stated before this Court that its advice is only in the nature of an
opinion which is not a binding direction in this case, we are not required to
examine the scope of the CVC Act, 2003. Secondly, in our earlier order, we.
have given time to CBI to complete legal scrutiny when we were told that
B there was difference of opinion in the administrative hierarchy of CBI. However,
after going through the recommendations of the above officers, we are of the
view, as stated above, that there was no difference of opinion of the concerned
officers and, therefore, there was no question of reference to the Attorney
General. We reject the Status Report dated 31.12.2004 as it is a charade of the
C performance of duty by the CBI. Thus, a case for judicial review is made out.
I
We, accordingly, direct the CBI to place the evidence/ material collected
by the investigating team along with the report of the S.P. as required under
Section 173(2) Cr.PC before the concerned Court/Special Judge who will decide
the matter in accordance with law. It is necessary to add that, in this case,
D we were concerned with ensuring proper and honest performance of duty by
the CBI and our above observations and reasons are confined only' to that
aspect of the case and they should not be understood as our opinion on the
merits of accusation being investigated. We do not wish Jo express any
opinion on the recommendations of the S.P .. It is made clear that none of the
E other opinions/ recommendations including that of the Attorney General of
India, eve shall be forwarded to the concerned Court/Special Judge.

In the matters after matters, we find that the efficacy and ethics of the
governmental authorities are progressively coming under challenge before
this Court by way of PIL for failure to perform their statutory duties. If this
p continues, a day might come when the rule of law will stand reduced to "a
rope of sand".

The above Interlocutory applications are accordingly disposed of.

S.B. SINHA, J. This Court entrusted investigation to the Central Bureau
G of Investigation (CBI) which was constituted under the Delhi Special Police
Establishment Act, 1946 (for short "the Act"). It was enacted to make provision
for the constitution of a special police force in Delhi for investigation of
certain offences in the Union territories for the superintendence and
administration of the said force and for extension to other of the powers and
jurisdiction of members of the said force in regard to the investigation of the
H said· offences.
M.C. MEHTA v. U.O.I. [SINHA, J.] 709
The said Act was enacted to make provision for the constitution of a A
special police force in Delhi for the investigation of certain offences in the
Union territories for the superintendence and administration of the said force
and for extension to other of the powers and jurisdiction of members of the
said force in regard to the investigation of the said offences. Section 2
empowers the Central Government to constitute a special force. Indisputably, B
the first respondent has been constituted in terms thereof. Sub section (2) of
Section 2 provides that subject to any orders which the Central Government
may make in this behalf, members of the said police establishment shall have
throughout any Union territory in relation to the investigation of such offences
and arrest of persons concerned in such offences, all the powers, duties,
privileges and liabilities which police officers of that Union territory have in C
connection with the investigation of offences committed therein. The said Act
indisputably applies in regard to charges of corruption made against the
public servants.

The Central Government has made a manual. It provides for hierarchy
of the officers who, having regard to the gravity or otherwise of the offence, D
would supervise investigation. It provides for appointment of the investigating
officer and the officers supervising the investigation. CBI Manual is based
on statutory provisions of the Code of Criminal Procedure. It provides for
essential guidelines for the functioning of the said body.

In Vineet Narain and Ors. v. Union ofIndia and Anr., [1998] 1 SCC 226, E
this Court directed that CBI to adhere scrupulously to the provisions of the
said Manual.

Even under the Code of Criminal Procedure, such hierarchy of the
supervising officers is contemplated. [See State of Bihar v. J.A.C. Saldanha, F
[1980] 1 sec 554].

This Court in Vineet Narain (supra) while opining, upon construction
of the provisions of the Act, that the jurisdiction of CBI to investigate an
offence is to be determined with reference to the notification under Section
3 of the Act and not by any separate order, not having that character, G
categorically held that the said view was not in conflict with the decision in
J.A.C. Saldanha (supra).

CBI Manual, thus, is subject to the provisions of the Code of Criminal
Procedure. In case of conflict, although none has been pointed out, evidently,

.~
the Code of Criminal Procedure shall prevail. Even under ordinary law, the H
·110 SUPREME COURT REPORTS [2006] SUPP. 9 S.C.R.

· A investigating officer has a statutory duty to investigate into an offence upon
receipt of a First Information Report as envisaged under Section 154 of the
Code of Criminal Procedure. Section 157 thereof provides for the procedure
for investigation, wherefor the only duty cast on the investigating officer is
to maintain his case diary in terms of Section 172 of the Code of Criminal
B Procedure. [See State ofBihar and Anr. v. P.P. Sharma, /AS and Anr., [1992]
Supp. I sec 2221

It is beyond any doubt or dispute that investigation of an offence. is
the field exclusively reserved for the police. It may be subject to supervision
of higher ranking officer (s) but the court's jurisdiction to have control in this
C behalf is beyond any controversy.

In Sheonandan Paswan v. State of Bihar and Ors., [ 1987] I SCC 288,
this Court opined:

" ... .In fact, in our constitutional scheme, conferment of such absolute
and. uncanalised discretion would be violative of the equality clause
D
of the Constitution. The Magistrate is therefore given the power ·to
structure and control the discretion of the police. If the Magistrate
finds from the report made by the police either on initial investigation
or on further investigation directed by the Magistrate, that prima .
facie an offenc·e appears to have been committed, the Magistrate is
E empowered to take cognizance of the offence notwithstanding the
contrary opinion of the police and equally if the Magistrate forms an
opinion that on the facts set out in the report no offence prima facie
appears to have been committed though the police might have come
to a contrary conclusion, the Magistrate can decline to take cognizance
of the offence. The discretion of the police to prosecute is thus
F cabined and confined and, subject to appeal or revision, and the
Magistrate is made the final arbiter on this question."

Yet again in S.N. Sharma v. Bipen Kumar Tiwari and Ors., [1970] 1 SCC
653, this Court held:
r
I·
G " ... The use of this expression makes it clear that Section 159 is primarily
meant to give to the Magistrate the power of directing an investigation
in cases where the police decide not to investigate the case under the
proviso to Section 157(1), and it is in those cases that, if he thinks
·fit, he can choose the second alternative. If the expression if he thinks
H fit had not been used, it might have been argued that this section was
M.C. MEHTA v. U.0.1. [SINHA, J.] 711
intended to give in wide terms the power to the Magistrate to adopt A
any of the two courses of either directing an investigation, or of
proceeding himself or deputing any Magistrate subordinate to him to
proceed to hold a preliminary enquiry as the circumstances of the case
may require ..... "

It was further held: B
" ...... .In our opinion, Section 159 was really intended to give a limited
power to the Magistrate to ensure that the police investigate all
cognizable offences and do not refuse to do so by abusing the right
granted for certain limited cases of not proceeding with the
investigation of the offence." C
The question came up also for consideration in Hemant Dhasmana v.
Central Bureau of Investigation and Anr., [200 I] 7 SCC 536 wherein it was
held that upon conclusion of the investigation, a report has to be filed by CBI
under Section 173(2) of the Code of Criminal Procedure to Special Judge who
takes the place of Magistrate when an offence falls under the Prevention of D
Corruption Act.

In view of the aforementioned decisions, it is the Magistrate alone who
has the final say in the matter.

Subject to the aforementioned, I respectfully concur with the opinion E
expressed by the learned Brother Kapadia, J.

v.s.s. Applications disposed of.