Supreme Court of India
STATE OF HARYANA AND ORSversusCH. BHAJAN LAL AND ORS.
- Citation
- 1990 INSC 363
- Decided
- 21 November 1990
- Disposal
- Disposed off
- Bench
- S RATNAVEL PANDIAN
Holding
The Supreme Court held that the FIR disclosed a cognizable offence and could not be quashed, but the investigation by the SHO was invalid because he lacked authority under Section 5A(1) of the Prevention of Corruption Act.
Summary
The State of Haryana filed a special leave appeal after the Punjab and Haryana High Court quashed a First Information Report (FIR) that had been lodged on a complaint alleging that former Chief Minister Ch. Bhajan Lal had amassed wealth through corrupt means. The Supreme Court examined whether the allegations disclosed a cognizable offence under the Code of Criminal Procedure and the Prevention of Corruption Act, and whether the High Court could quash the FIR under its extraordinary jurisdiction. It held that the FIR did prima facie disclose a cognizable offence, so the High Court was not justified in striking it down. However, the Court found that the investigation was undertaken by a Sub‑Inspector who lacked authority under Section 5A(1) of the Prevention of Corruption Act, as the Superintendent of Police had not given a valid, reasoned order. Consequently, the Court set aside the High Court’s order quashing the FIR, reinstated the FIR, and quashed the investigation conducted by the unauthorised officer, directing that any fresh investigation must be carried out by a duly authorised police officer. The appeal was disposed of.
Issues considered
- Whether the allegations in the complaint/FIR disclose a cognizable offence under the CrPC and the Prevention of Corruption Act.
- Whether the High Court was empowered to quash the FIR under Article 226 and Section 482 of the CrPC.
- Whether the Sub‑Inspector (SHO) had legal authority to investigate the offence under Section 5A(1) of the Prevention of Corruption Act.
- Interpretation of the phrase ‘reason to suspect’ in Section 157(1) of the CrPC.
- Whether investigation of offences under Sections 161 and 165 of the IPC can proceed without a magistrate’s order when conducted by a non‑designated officer.
Legislation cited
- Code of Criminal Procedure, 1973s. 154, s. 155, s. 156, s. 157, s. 159, s. 482
- Constitution of Indias. Article 226
- Prevention of Corruption Act, 1947s. 5, s. 5A(1)
Subjects
corruptioncognizable offenceFIRquashing of criminal proceedingsSection 5Apolice investigationinherent jurisdictionArticle 226Section 482reason to suspect
Judgment
STATE OF HARYANA AND ORS. A
v.
CH. BHAJAN LAL AND ORS.
NOVEMBER 21, 1990
[S. RATNAVEL PANDIAN AND K. JAYACHANDRA B
REDDY, JJ.]
Constitution of India, I950: Article 226-Quashing of criminal
proceedings-Circumstances under which power could be exercised-
Guidelines given.
Code of Criminal Procedure, 1973: Sections 154, 155, 156, 157,
c
159-Cognizable offence-Field of investigation-Exclusive domain of
investigating agencies-Court's interference-When justified.
Section 482-/nherent powers of courts-Exercise of-Circums-
tances necessitating quashing of criminal proceedings-Guidelines D
indicated.
Prevention of Corruption Act, 1947: Section 5-Investigation by
designated officers-Express prohibition of officers below certain
rank-Whether directory or mandatory-Exceptions only on adequate
reasons-To be disclosed-Authorising such non_designated officers E
without reasons-Whether legal and valid-Investigation carried on by
such officer-Quashing of.
Words & Phrases: "Reason to suspect"-Meaning of.
The First Respondent was a Minister and subsequently Chief F
Minister of Haryana State, Later he became Union Minister. On
12.11.1987 a complaint was presented before the Haryana Chief Minis-
ter, wherein serious allegations were leveUed against the First Respon-
dent. The main aUegations were that he accumulated huge properties
worth crores of rupees in the names of bis family members, relations
and persons close to him by misusing his power and position and by G
undervaluing the market price, and all those transactions were bena-
mi in character. According to the complainant, since the accumulation
of the properties by the First Respondent, in the shape of buildings,
land, shares, ornaments etc. was far beyond his legal means, an investi-
gation should be directed against him.
H
259
260 SUPREME COURT REPORTS [1990] Supp. 3 S.C.R.
The Chief Minister's Secretariat marked the complaint to the
A
Director General of Police, who in torn endorsed the same to the
Superintendent of Police concerned. On the direction from the Snperin·
tendent of Police, the SHO registered a case nnder Sections 161 and 165
of Indian Penal Code, 1860 and under section 5(2) of the Prevention of
Corruption Act, 1947 and took up the investigation.
B
Meanwhile, the First Respondent filed a Writ Petition before the
High Conrt for a direction to quash the First Information Report and
for restraining the appellants from proceeding further with the investi·
gation. The High Court quashed the entire criminal proceedings holding
that the allegations did not constitute a cognizable offence for commenc·
ing lawful investigation.
c
Aggrieved by the judgment of the High Court, the appellants
preferred the present appeal by special leave, contending that the alle·
gations contained in the complaint, either individually or collectively,
constituted a cognizable offence warranting the registration of a case as
D contemplated nnder Section 154(1) Cr. P.C., and a thorough investiga-
tion in compliance with various statutory provisions more particularly
Sections 156, 157 and 159 Cr. P.C.
On behalf of the Respondents, it was contended that on account of
the deep rooted political animosity and rivalry entertained by the then
E Chief Minister, he used the complainant, who was stooge in his hands,
to file the complaint containing false and scurrilous allegations against
the First Respondent and hence the criminal proceedings rightly
deserved to be quashed.
Disposing of the appeal, this Court,
F
HELD: 1. The judgment of the High Court quashing the First
Information Report is set aside as not being legally and factually SU!l·
tainable in law. However, the commencement as well as the entire
investigation, if any, so far done is quashed on the ground that the third
appellant °(SHO) is not clothed with valid legal authority to take up the
G investigation and proceed with the same within the meaning of Section
5A(l) of the Prevention of Corruption Act. [319A-C]
2. The observations made by the High Court are unwarranted
and the historical anecdote is out of context and inappropriate. If snch a
view is to be judicially accepted and approved, then it will be tant·
H amount to laying down an alarming pro!JOsition that an incoming
STATE OF HARYANA v. CH. BHAJAN LAL 261
Government under all circumstances, should put its seal of approval to
A
all the commissions and omissions of the outgoing Government ignoring
even glaring lapses and serious misdeeds and the deleterious and
destructive consequences that may follow therefrom. [318E-F]
Krishna Ballabh Sahay & Ors. v. Commissioner of Enquiry &
Ors., [1969] l SCR 387; A.R. Antu/ay v. R.S. Nayak and Anr., [1988] 2 B
SCC 602; State of Punjab v. Gurdial Singh, [1980] l SCR 1071; relied
on.
P. V. Jagannath Rao & Ors. v. State of Orissa & Ors., [1968] 3
SCR 789; Sheonandan Paswan v. State of Bihar and Ors., [1983] l SCC
438 and Sheonandan Paswan v. State of Bihar & Ors., [1987] l SCC
288; referred to. c
3.1. If any information disclosing a cognizable offence is laid
before an officer-in-Ch!'rge. Of a police station satisfying the require-
ments of Section 154(1) of the Criminal Procedure Code, the said police
officer has no other option except to enter the substance thereof in the D
prescribed form, that is to say, to register a case on the basis of such ·
information. [279Gr
3.2. Though a police officer canoot investigate a non-cognizable
offence on his own as in the case of cognizable offence, he can investi-
gate a non-cognizable offence nnder the order of a Magistrate having E
power to try such non-cognizable case or commit the same for trial
within the terms under Section 155(2) of the Code but subject to Section
155(3) of the Code. Further, under the newly introduced Sub-section (4)
to Section 155, where a case relates to two offences to which atleast one
is cognizable, the case shall be deemed to be a cognizable case notwith-
standing that the other offences are non-cognizable and, therefore, F
under such circumstances the police officers can investigate such off-
ences with the same pi>wers as be has while investigating a cogni•.able
offence. [2798; 280A-B]
4. The core of the Sections 156, 157 and 159 of the Code 11fCrimi-
nal Procedure is that if a police officer has reason to suspect the com- G
mission of a cognizable offence, he must either proceed with the investi-
gation or cause an investigation to be proceeded with by his subordi-
nate; that in a case where the police officer sees no sufficient ground for
investigation, he can dispense with the investigation altogether; that the
field of investigation of any cognizable offence is exclusively within the
domain of the investigation agencies over which the Courts canoot have H
262 SUPREME COURT REPORTS [ 1990] Supp. 3 S.C.R.
A control and have no power to stitlle or -impinge upon the proceedings in
the investigation so long as the investigation proceeds in compliance
with the provisions relating to investigation and that it is only in a case
wherein a police officer decides not to investigate an offence, the con-
cerned Magistrate can intervene and either direct an investigation or in
B the alternative, if he thinks fit, he himself can, at once proceed or
depute any Magistrate sub-ordinate to him to proceed to hold a prelimi-
nary inquiry into or otherwise to dispose of the case in the manner
provided in the Code. [283G-H; 284A-B]
State of Bihar and Anr. v. J.A.C. Saldanha and Ors., [1980] 1
SCC 554; S.N. Sharma v. Bipen Kumar Tiwari and Ors., [1970] 3 SCR
C 946; Emperor v. Khwaja Nazir Ahmad, A1R 1954 P.C. 18 and
Abhinandan v. Dinesh, [1967] 3 SCR 668; referred to.
5.1. The expression "reason to suspect the commission of an
offence" used in Section. 154(1) Cr. P.C. would mean the sagacity of
rationally inferring the commission of a cognizable offence based on the
0
specific articulate facts mentioned in the First Information Report as
well in the Annexures, if any, enclosed and any attending circumstances
which may not amount to proof. In other words, the meaning of the
expression "reason to suspect" has to be governed and dictated by the
facts and circumstances of each case and at that stage the question of
E adequate proof of facts alleged in the First Information .Report does not
arise. [286E-F]
5.2. The commencement of investigation by a police officer is
subject to two conditions, frrstly, the police officer should have reason
to suspect the commission of a cognizable offence as required by Section
f. 157(1) and secondly, the police officer should subjectively satisfy him-
self as to whether there is sufficient ground for entering on an investiga-
tion even before he starts an Investigation into the facts and circumst-
ances of the case as contemplated under clause (b) of the proviso to
Section 157(1) of the Code. [2888-C]
G Pakala Narayanaswami v. Emperor, AIR 1939 P.C. 47; Emperor
v. Vimlabai Deshpande, AIR 1946 P.C 123; United States v. Cortez, 66
L.Ed. (United States Supreme Court Reports) page 623; Dallison v.
Caffery, [1964] 2 All E.R. 610; State of Gujarat v. Mohan/al J. Porwal,
[1987] 2 SCC 364; Pukhraj v. D.R. Kohli, [1962] Supp. 3 SCR 866;
State of West Bengal & Ors. v. Swapan Kumar Guha & Ors., [1982] 3
H SCR 121; referred to.
STA1E OF HARYANA v. CH. BHAJAN LAL 263
Webster's Third International Dictionary; Corpus Juris Secon- A
dum, Vol. 83 pp. 923, 927; Words and Phrases, (Permanent Edition
40A) pp. 590, 591; referred to.
6. The investigation of an offence is the field exclusively reserved
for the police officers whose powers in that field are unfettered so long
as the power to investigate into the cognizable offences is legitimately B
exercised in strict compliance with the provisions falling under Chapter
XII of the Code and the Courts are not justified in obliterating the track
of investigation when the investigating agencies are well within their
legal bounds. A noticeable feature of the scheme under Chapter XlV of
the Code is that a Magistrate is kept in the picture at all stages of the
police investigation but he is not authorised to interfere with the actual
investigation or to direct the police how that investigation is to be con- C
ducted. But if a police officer transgresses the circumscribed limits and
improperly and illegally exercises his investigatory powers in breach of
any statutory provision causing serious prejudice to the personal liberty
and also property of a citizen, then the Court, on being approached by
the person aggrieved for the redress of any grievance has to consider the D
nature and extent of the breach and pass appropriate orders as may be
called for without leaving the citizens to the mercy of police echelons
since human dignity is a dear value of our Constitution. No one can
demand absolute immunity even if he is wrong and claim unquestion-
able right and unlimited powers exercisable upto unfathomable cosmos.
Any recognition of such power will be tantamount to recognition of E
'Divine Power' which no authority on earth can enjoy. [2900-G I
Emperor v. Khwaja Nazir Ahmad, AIR 1945 P.C. 18; R.P.
Kapur v. The State of Punjab, [1960] 3 SCR 388; Nandini Satpathy v.
P. L. Dani & Anr., [1978] 2 SCC 424; S.N. Sharma v. Ripen Kumar
Ti.Vari and Ors., [1970] 3 SCR 946; Prabhu Daya{ Deorath etc. etc. v. F
The District Magistrate, Kamrup & Ors., [1974] 2SCR12; State of West
Bengal and Ors. v. Swapan Kumar Guha and Ors., [1982] 3 SCR 121;
referred to.
7.1 The view of the High Court that the non-filing of a written
statement by a competent authority of the State Government by way of G
reply to the averments in the Writ Petition was serious flaw on the part
of the appellants and as such the averments of Respondent No. 1 should be
held as having disproved the entire .crimination alleged in the F.I.R.,.is
neither conceivable nor comprehensible. [2930]
7.2. It is true that some of the allegations do suffer from misty H
264 SUPREME COURT REPORTS [ 1990] Supp. 3 S.C.R.
vague~ess and lack of particulars. Further, there are no specific aver-
A
ments that either Respondent No. 1 or his relaticns and friends had no
source of income to accumulate the properties now standing in their
names and that Respondent No. 1 showed any favour to the1n by misus-
ing his official position. [294B-C]
B These are all matters which would be examined only during thr
course of investigation and thereafter by the court '" the materih.
collected and placed before it by the investigating agencies. The ques-
tion whether the relations and friends of Respondent No. 1 have inde-
-
pendently purchased the properties out of their own funds or not, also
cannot be decided by the Court at this stage on the denial statement of
Respondent No. 1 alone. [294C-D]
c
State of West Bengal and Ors. v. Swapan Kumar Guha and Ors.,
[1982] 3 SCR 121; distinguished.
State of Bihar and Anr. v. J.A.C. Sa!danha and Ors., [1980] 1
D SCC 554; relied on.
8.1. In the exercise of the extra-ordinary power under Article 226.
or the inherent powers under Section 482 of the Code of Criminal
Procedure, the following categories of cases are given by way of illustra-
tion wherein such power could be exercised either to prevent abuse of
E the process of any Court or otherwise to secure the ends of justice,
though it may uot be possible to lay down any precise, clearly defined
and sufficiently channelised and inflexible guidelines or rigid formulae
and to give an exhaustive list of myriad kinds of cases wherein such
power should be exercised:
p (a) where the allegations made in the First'lnformation Report or
the complaint, eveu if they are taken at their face value and accepted in
their entirety do not prima facie constitute any offence or .make out a
case against the accused;
(b) where the :dlegations in the First Information Report and
G other materials, if any, accompanying the •'.I.R. do not disclose a
cognizable offence, justifying an investigation by police officers under
Section 156(1) of the Code except u&der an order of a Magistrate within
the purview of Section 155(2) of the Code;
(c) where the uncontroverted allegations made in the FIR or com-
H plaint and the evidence collected in support of the same do not disclose
STATE OF HARYANA v. CH. BHAJAN LAL 265
the commission of any offence and make out a case against the accused;
A
(d) where the allegations in the FIR do not constitute a cognizable
offence but constitute only a non-cognizable offence, no investigation is
permitted by a police officer without an order of a Magistrate as con-
templated under Section 155(2) of the Code;
B
(e) where the allegations made in the FIR or complaint are so
absurd and inherently improbable on the basis of which no prudent
person can ever reach a jnst conclusion that there is sufficient ground
for proceeding against the accused;
(f) where there is an express legal bar engrafted in any of the
provisions of the Code or the concerned Act (under which a criminal C
proceeding is instituted) to the institution and continuance of the pro-
ceedings and/or where there is a specific provision in the Code or the
concerned Act, providing efficacious redress for the grievance of the
aggrieved party;
(g) where a criminal proceeding is manifestly attended with ma/a D
fide and/or where the proceeding is maliciously instituted with an
ulterior motive for wreaking vengence on the accused and with a view to
spite him due to private and personal grudge. [305D-H; 306A-E]
8.2. In the instant case, the allegations made in the complaint, do
clearly constitute a cognizable offence justifying the registration of a E
case and an investigation thereon and this case does not call for the
exercise of extraordinary or inherent powers of the High Court to quash
the F .I.R. itself. [307B]
State of West Bengal v. S.N. Basak, [1963]. 2 SCR 52;
distinguished. F
R.P. Kapur v. The State of Punjab, [1960] 3 SCR 388; S.N.
Sharma v. Bipen Kumar Tiwari and Ors., [1970] 3 SCR 946; Hazari
Lal Gupta v. Rameshwar Prasad and Anr. etc., [1972] 1 SCC 452;
Jehan Singh v. Delhi Administration, [1974] 3 SCR 794; Amar Nath v.
State of Haryana, [1977] 4 SCC 137; Madhu Limaye v. State of G
Maharashtra, [1977] 4 SCC 551; Kurukshetra University and Anr. v.
State of Haryana and Anr., [19771 4 SCC 451; State of Bihar and Anr.
v. J.A.C. Saldanha and Ors., [1980] 1 SCC 554; Municipal Corpora-
tion of Delhi v. Purshotam Dass Jhunjunwala and Ors., [1983] l SCC
9; State of West Bengal and Ors. v. Swapan Kumar Guha and Ors.,
[1982] 3 SCR 121; Smt. Nagawwa v. Veeranna Shivalingappa Konjalgi H
266 SUPREME COURT REPORTS [ 1990] Supp. 3 S.C.R.
& Ors., [1976] Supp. SCR 123; Pratibha Rani v. Suraj Kumar and
A Anr., [1985] 2 SCC 370; Madhavrao Jiwaji Rao Scindia µnd Ors. v.
Sambhajirao Chandrojirao Angre and Ors., [1988] l SCC 692; State of
Bihar v. Murad Ali Khan and Ors., [1988] 4 SCC 655; Ta/ab Haji
Hussain v. Madhukar Purshottam Mondekar and Anr., [1958] SCR
1226; L. U. Jadhav v. Shankarrao Abasaheb Pawar, [1983] 4 SCC 231;
B J.P. Sharma v. Vinod Kumar Jain and Ors., [1986) 3 SCC 67; State of
U.P. v. V.R.K. Srivastava and Anr., [1989) 4 SCC 59; Emperor v.
Khwaja Nazir Ahmad, AIR 1945 P.C. 18; referred to.
9.1. The entire matter is only at a premature stage and the
investigation has not proceeded with except some prelhltinary effort
taken on the date of the registration of the case. The evidence has to be
c gathered after a thorough investigation and placed before the Court on
the basis of which alone the Court can come to a conclusion one way or
the other on the plea of ma/a fides. If the allegations are bereft of truth
and made maliciously, the investigation will say so. At this stage, when
there are only allegations and recriminations but no evidence, this
D Court cannot anticipate the result of the investigation and render a
finding on the question of mala [ides on the materials at present avail·
able. Therefore, it cannot be said that the complaint should be thrown
overboard on the mere unsubstantiated plea of mala [ides. Even assum-
ing that the complainant has laid the complaint only on account of his
personal animosity that, by itself, will not be a ground to discard the
E complaint containing serious allegations which have to be tested and
weighed after the evidence is collected. [307G-H; 308A·DJ
9.2. The dominant purpose of registration of the case and the
intended follow up action are only to investigate the allegations and
present a case before the Court, if sufficient evidence in support of those
F allegations are collected but not to make a character assassination of the
person complained against. [308H; 309A)
S. Pratap Singh v. The State of Punjab, [1964) 4 SCR 733; State of
Haryana v. Rajindra Sareen, [1972) 2 SCR 452; Express Newspapers
Pvt. Ltd. & Ors. v. Union of India & Ors., [1985) Supp. 3 SCR 382;
G P. V. Jagannath Rao & Ors. v. State of Orissa & Ors., [1968) 3 SCR
789; The King v. Minister of Health, [1929) l K.B. 619; Rex v. Brigh-
ton Corporation Ex-parte Shoosmith, 96 L.T. 762; Earl Fitzwilliam's
Wentworth Estate Co. Ltd. v. Minister of Town and Country Planning,
[1951] 2 K.B. 284; referred to.
H 10.1. A police officer with whom an investip~ of an offence
STATE OF HARYAl>A v. CH. BHAJAN LAL 267
under Section 5(l)(e) of the Prevention of Corruption Act is entrusted
A
should not proceed with a pre-conceived idea of guilt of that person
indicated with such offence and subject him to any harassment and
victimisation, because in case the allegations of illegal accumulation of
wealth are found, during the course of investigation as baseless, the
harm done not only to that person but also to the office he held will be
incalculable and inestimable. [297C-E) B
10.2. In the instant case, the SP seems to have exhibited some
over-enthusiasm, presumably to please 'some one 1 and had directed the
SHO to register the case and investigate the same even on the very first
day of the receipt of the complaint-from the DGP, in whose office the
complaint was lying for merely 9 days. This unprecedented over-
enthusiasm shown by the S.P., without disclosing the reasons for mak- c
ing an order entrusting the investigation to the SHO who is not a
designated officer under Section 5A(l), really shocks ones' sense of
justice and fair play even though the 11ntested allegations made in the
complaint require a thorough investigation. Still, it is an inexplicable
riddle as to why the S.P. had departed from the normal rule and D
hastly ordered the SHO to investigate the serious allegations, level-
led against a former Chief Minister and a Minister in the Cabinet of
the Central Government on the face of the registration of the case.
However, this conduct of the SP can never serve as a ground for
quashing the FIR. [298C-E)
E
Sirajuddin v. State of Madras, [1970) 3 SCR 931; The State of
Uttar Pradesh v. Bhagwant Kishore Joshi, [1964) 3 SCR 71; relied on.
11.1. A police officer not below the rank of an Inspector of Police
authorised by the State Government in terms of the First proviso can
take up the investigation of an offence referred to in clause (e) of Section F
5(1) of the Prevention of Corruption Act, only on a separate and inde-
pendent order of a police officer not below the rank of a Superintendent
of Police. A strict compliance of the second proviso is an additional legal
requirement to that of the first proviso for conferring a valid authority
on a police officer not below the rank of an Inspector of Police to
investigate an offence falling under clause (e) of Section 5(1) of the Act. G
This is clearly spelt out from the expression "further provided" occur-
ring in the second proviso. Thus, investigation by the designated Police
Officers is the rule and investigation by an officer of a lower rank is an
exception. [311H; 312A-B)
11.2. The granting of permission under Section SA of the Preven- H
268 SUPREME COURT REPORTS [ 1990] Supp. 3 S.C.R.
lion of Corruption Act authorising an officer of lower rank to conduct
A
the investigation is not to be treated by a Megistrate as a mere matter of
routine, but it is an exercise of his judicial discretion having regard to
the policy underlying and the order giving the permission should, on the
face of it, disclose the reasons for granting such permission. The
Superintendent of Police or any police officer of higher rank while
B granting permission to a non-designated police officer in exercise of his
power under the second proviso to Section SA(l), should satisfy himself
that there are good and sufficient reasons to entrust the investigation
with such police officer of a lower rank and record his reasons for doing
so; because the very object of the legislature in enacting Section SA is to
see that the investigation of offences punishable under Sections 161, 16S
or 16SA of Indian Penal Code as well as those under Section S of the Act
c should be done ordinarily by the officers designated in clauses (a) to (d)
of Section SA(l). The exception should be for adequate reasons which
should be disclosed on the face of the order. Strict compliance with
Section SA(l) becomes absolutely necessary because it expressly pro-
hibits police officers below certain ranks, from investigating into off-
D ences nnder Sections 161, 16S and 16SA IPC and under Section S of the
Act without orders of Magistrates specified therein or without the
authorisation of the State Government in this behalf and from effecting
arrests for those offences without a warrant. [314H; 31SA-D]
11.3. The main object of Section SA is to protect the public
E servant against harassment and victimisation. Section SA of the Act is
mandatory and not directory and the investigation conducted in viola-
tion thereof bears the stamp of illegality but that illegality commited
in the course of an investigation does not affect the competence and
the jurisdiction of the Court for trial and where the cognizance of
the case has in fact been taken and the case is proceeded to termina-
F tion the validity of the proceedings with the preceding investigation
does not vitiate the result unless miscarriage of justice has been caused
thereby. [311C; 312D-E)
11.4. In the instant case, there is absolutely no reason, given by
the S.P. in directing the SHO to investigate and as such the order of the
G S. P. is directly in violation of the dictum laid down by this Court in
several decisions. The third appellant, SHO is not clothed with the
requisite legal authority within the meaning of the second proviso of
Section SA(l) of the Act to investigate the offence under clause (e) of
Section S(l) of the Act. [31SE-F)
H H.N. Rishbud and Inder Singh v. The State of Delhi, [1955] 1
STAIB OF HARYANA v. CH. BHAJAN LAL {PANDIAN. J.] 269
SCR llSO; The State of Madhya Pradesh v. Mubarak Ali, [1959]
A
Supp. 2 SCR 201; A.C. Sharma v. Delhi Administration, [1973] 3
SCR 477; A.R. Antulay v. R.S. Nayak, [1984] 2 SCR 914; Major E.G.
Barsay v. The State of Bombay, [1962] 2 SCR 195; Munna Lal v. State
of Uttar Pradesh, [1964] 3 SCR 88; S.N. Bose v. State of Bihar,
[1968] 3 SCR 563; Muni Lal v. Delhi Administration, [1971] 2 SCC 48;
Khandu Sonu Dhobi & Anr. v. State of Maharashtra, [1972] 3 SCR B
51 O; relied ou.
12. The Government order authorised the Inspector General of
Police to investigate only the offences falling under Section 5 of the Act.
Therefore, the SHO who has taken up the investigation of the offences
inclusive of those under Section 161 and 165 IPC is not at all clothed
with any authority to investigate these two offences, registered under c
the IPC, apart from the offence under Section 5(2) of the Act. However,
as the question relating to the legal authority of the SHO is raised even
at the initial stage, it would be proper and also desirable that the
investigation, if at all to be proceeded with in the opinion of the State
Government, should proceed only on the basis of a valid order in strict D
compliance with the mandatory pron.ion of Section 5A(l). [3 lSG-H; 316A-B]
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 5412
of 1990.
From the Judgment and Order dated 8.9.1988 of the Punjab and E
Haryana High Court in C.W.P. No. 9172 of 1987.
Rajinder Sachhar, S.C. Mohanta and Mahabir Singh for the
Appellants.
K. Parasaran, P. Chidambaram, R.K. Garg, Mrs. Ayasha F
Karim, Ms. lndu Malhotra, G. Subramanium and S. Srinivasan for the
Respondents.
The Judgment of the Court was delivered by
S. RATNAVEL PANDIAN, J. Leave granted. G
"The king is under no man, but under God and the law"-was
the reply of the Chief Justice of England, Sir Edward Coke when
Jam es-I once declared "Then I am to be under the law. It is treason to
affirm it"-so wrote Henry Bracton who was a Judge of the King's
Bench. H
270 Sl.!PREME COURT. REPORTS [ 1990] Supp. 3 S.C.R.
A The words of Bracton in his treatise in Latin "guod Rex non
debet esse sub homine, sed sub Dea et Legu" (That the king should not
be under man, but under God and the law) were quoted time and time
again when the Stuart Kings claimed to rule by divine right. We would
like to quote and requote those words of Sir Edward Coke even at the
B threshold.
In our democratic polity under the Constitution based on the
concept of 'Rule of Law' which we have adopted and given to
ourselves and which serves as an aorta in the anatomy of our demo-
cratic system, THE LAW IS SUPREME.
c Everyone whether individually or collectively is unquestionably
under the supremacy of law. Whoever he may be, however high he is,
he is under the law. No matter how powerful he is and how rich he may
be.
The heated and lengthy argument advanced in general by all the
D
learned counsel on the magnitude and the multi-dimensional causes of
corruption and also about the positive and constructive remedial mea-
sures and steps to be taken for its eradication has necessitated us to
give a brief exordium about its perniciousness, though strictly speak-
ing, we would be otherwise not constrained to express any opinion on
this.
E
At the outset we may say that we are not inclined to make an
exhaustive survey and analysis about the anatomy, dimensions and
causes of corruption. It cannot be gainsaid that the ubiguity of corrup-
tion is always associated with a motivation of private gain at public
expense.
F
Though the historical background and targets of corruption are
reviewed time after time; the definitional and conceptual problems are
explored and the voluminous causes and consequences of corruption
are constantly debated through out the globe, yet the evils of corrup-
tion and their autonarcotic effect _pose a great threat to the welfare of
G
society and continue to grow in menacing proportion. Therefore, the
canker of the venality, if not fought against on all fronts and at all
levels, checked and eradicated, will destablize and debilitate the very
foundations of democracy; wear away the rule of law through moral
decay and make the entire administration ineffective and dysfunc-
H tional.
STATE OF HARYANA v. CH. BHAJAN LAL [PAND!AN, J.] 271
Mere rhetorical preaching of apostolic sermons listing out the
A
evils of corruption and raising slogans with catch-words are of no use
in the absence of practical and effective steps to eradicate them; be-
cause 'evil tolerated is evil propagated'.
At the same time, one should also be alive to cases where false
and frivolous accusations of corruption are maliciously made against B
an adversary exposing him to social ridicule and obliquy with an
ulterior motive of wreaking vengence due to past animosity or
personal pique or merely-Out of spite regardless of the fact whether the
proceedings will ultimately culminate into conviction or not.
We would like to make it clear that the above exordial note is
given without casting any aspersion against any of the parties to the c
prese,nt proceedings or touching the individual merit of the case.
The relevant facts giving rise to this appeal, though have been set
out in great detail in the impugned judgment of the High Court, have
to be recapitulated in order to enable us to give our own reasons for D
the findings which we will be arriving at on the interpretation of cer-
tain provisions of the Criminal Procedure Code ('the Code' for short)
and of the Prevention of Corruption Act, 1947 ('the Act' for short).
This appeal by grant of special leave is directed by the appel-
lants, namely, the State of Haryana and two others assailing the judg- E
ment dated 8.9.1988 of a Division Bench of the High Court of Punjab
and Haryana rendered in Writ Petition No. 9172/87 quashing the en-
tire criminal proceedings inclusive of the registration of the Informa-
tion Report and directing the second respondent, Mr. Dharam Pal to
pay the costs to the first respondent, Ch. Bhajan Lal.
F
Ch. Bhajan Lal was a Minister in 1977 when Ch. Devi Lal was
the Chief Minister of Haryana state and he· became the Chief Minister
of the state o.f Haryana in 1982-87. During the initiation of this crimi-
nal proceeding in question, he was the Union Minister for Environ-
ment and Forests, Government of India.
• G
In the general election to the legislative assembly of the state of
Haryana in June 1987, Smt. Jasma Devi, the wife of Ch. Bhajan Lal
contested from Adampur constituency on being sponsored by the Con-
gress (I) party as against the second respondent, Mr. Dharam Pal who
was a nominee of the Lok Dal. Mrs. J as ma Devi was successfully
elected. Dharam Pal presented an election petition calling in question H
272 SUPREME COURT REPORTS [1990] Supp. 3 S.C.R.
the election of Smt. Jasma Devi on a variety of grounds. Ch. Devi Lal,
A
the third respondent in this appeal who was the second respondent in
the writ petition also contested on Lok Dal's ticket and became
successful. Thereafter Ch. Devi Lal became the Chief Minister of the
State of Haryana in 1987.
B It seems that after the general election there were a number of
criminal proceedings between the parties one of which being a criminal
prosecution against Dharam Pal under Section 307 !PC registered in
Adampur police station. On account of the political rivalry and the
institution of a number of criminal cases and counter cases there was
bad-blood between Ch. Bhajan Lal on the one hand and Ch. Devi Lal
on the other.
c
While it was so, on 12th November 1987 Dharm Pal presented a
complaint before Ch. Devi Lal making certain serious allegations
against Bhajan Lal, a brief note of which is given below:
D Before 1969 Ch. Bhajan Lal was a man of ordinary means and
did not have any definite source of income, but after he was inducted
in the Cabinet as a Minister and particularly after he became the Chief
Minister of the State, he accumulated huge properties worth crores of
rupees in the names of his family members, relations and persons close
to him by misusing his power and position and also by undervaluing
E the market price and all those transactions are benami in character. In
the complaint, Mr. Dharam Pai has given the details citing 20 indepen-
dent allegations, alleging that a palatial house is being constructed at
Hissar at the cost of about Rs.50 lakhs and that extensive lands at
various places have been purchased either in the name of his wife,
J as ma Devi, or in the names of his sons Kuldip and Chander Mohan or
F benami in the names of his relations etc. and that two petrol pumps
valuing about Rs.5 lakhs have been installed in the name of his wife,
and that certain shops have been constructed etc. Besides these allega-
tions, it is said that Bhajan Lal has acquired several other properties
either in his name or in the names of his benamidars such as shares in
the cinemas of Sirsa and Adampur, besides owning trucks, cars etc.
G and is possessing gold, silver and diamond ornaments valuing about
Rs.5 crores. The accumulation of all those properties in the shape of
buildings, land, shares and ornaments etc. is far beyond his legal
means and, therefore, an investigation should be directed and
appropriate action be taken against Ch. Bhajan Lal.
H On the complaint presented by Dharam Pal, the Officer on
STATE OF HARYANA v. CH. BHAJAN LAL [PANDIAN, J.] 273
Special Duty (OSD) in the Chief Minister's Secretariat made an
A
endorsement on 12. lL 1987 .in Hindi, the translation of which reads
"C.M. has seen. For appropriate action" and marked the same to the
Director General of Police (DGP), who in turn made an endorsement
on 12.11.1987 itself reading "Please look into this; take necessary
action and report" and marked it to the Superintendent of Police
(S.P.) Hissar. The said complaint along with the above endorsements B
of OSD and DGP was put up before the S.P., the second appellant on
21.11.1987, on which date itself the S.P. made his endorsement reaq-
ing "Please register a case and investigate".
The SHO (the third appellant) registered a case on the basis of
the allegations in the complaint under Sections 161 and 165 of the
Indian Penal Code and Section 5(2) of the Act on 21.11.1987 itself at c
6.15 P.M. and took up the investigation. On the foot of the First
Information Report (F.I.R.) the following- endorsement has been
made:
"Police proceeding that the S.P. Hissar after registering D
the case on the above application has ordered to investigate
the case. That FIR u/s 161, 165 IPC. 5.2.1947 P.C Act has
been registered at P.S. Sadar Hissar. An Inspector, along
with constables Sumer Singh 700, Randhir Singh 445, Attar
Singh 47 proceed to the spot. Constables Sumar Singh 700,
and Randhir Singh 445 were handed over one rifle along E
with 50 cartridges each and copy of the FIR as a special
report is being sent through Head constable Bhaktawar
Singh, 602 at the residence of Illaga Magistrate and other
offices.
Tara Chand, F
Inspector,
Police Station, Sadar."
The third petitioner (SHO) after forwarding a copy of the first
information report to the Magistrate and other officers concerned,
himself took up the investigation and proceeded to the spot accom- G
panied by three constables of whom two constables were handed over
one rifle each and 50 cartridges.
While the matter stood thus, the first respondent filed the writ
petition No. 9172/87 under Articles 226 and 227 of the Constitution of
India seeking issuance of a writ of certiorari quashing the first informa- H
274 SUPREME COURT REPORTS [ 1990] Supp. 3 S.C.R.
lion report and also.of a writ of prohibition restraining the petitioners
A herein from further proceeding with the ·investigation. It is stated that
the High Court granted an ex-parte stay which was thereafter made
absolute.
Initially 3 separate written statements were filed before the High
B Court, one by Inspector Kartar Singh (on behalf of the State of
Haryana, the S.P. and S.H.O. who were respondents 1, 3 and 4 in the
writ petition and who are the appellants herein); another by respon-
dent No. 2 Ch. Devi Lal (who is the third proforma respondent in this
appeal) and the third one by respondent No. 5 in the writ petition (who
is the complainant and the second respondent in this appeal). Subse-
quently realising that Kartar Singh was not competent to file the writ-
c ten statement on behalf of the State, SP and SHO in terms of the Rules
of Business, separate written statements one by the then S .P. Lekhi
Ram and another by Inspector Tara Chand (who registered the case)
were filed on 14.7.1988. However, no written statement was filed on
behalf of the State of Haryana. The High Court before which several
.D contentions were raised by the respective parties examined each of the
allegations in detail in the light of the explanatory and denial state-
ment which according to the High Court has not been either explained
or denied by the State and rejected the plea of the appellants 2 and 3
submitting that it is wholly premature to say anything with regard to
the truthfulness or otherwise of the allegations and observed as
E follows:
1. " ......... it is clear that the allegations made are just
imaginary and fantastic."
· 2. " ........ his (respondent No. 2 Dharam Pal) sole
F object in putting complaint Annexure P-9 was to set the
machinery of the criminal law in motion against the
petitioner without verifying the truth or otherwise of his
own allegations before levelling them against the petitioner
in the complaint Annexure P-9 and that he was solely
depending upon the fishing enquiry which may be underta-
G ken by the police in the course of its investigation without
being himself possessed or known to or seen any material
or documents justifying his allegations of benami pur-
chases, or under valuation of property allegedly purchased
by the petitioner."
H 3. "Allegations obtaining in Annexure P-9 are, therefore,
the outcome of a desparate, frustrated mind ..... "
STATE OF HARYANA v. .CH. BHAJAN LAL [PANDIAN, J.] 275
4. "Irresponsible manner in which indiscriminate allega-
A
tions have been levelled by Dharam Pal, respondent No. 5
against the petitioner in Annexure P-9 is patent from the
assertions made in respect of benami ownership of house
No. 1028, Friends Colony, New Delhi by the petitioner."
5. "Respondent No. 5 appears to have made these allega- B
tions only to curry favour with respondent No. 2 and to
avenge his own insult of defeat in elections against the
petitioner's wife. The charges levelled in the complaint
Annexure P-9 by respondent No. 5 against the petitioner
are, therefore, all groundless."
6. "It was only the S.P. Lekhi Ram and the Inspector Tara c
Chand both of whom filed. their individual written state-
ments on July 14, 1988 more than eight months after the
filing of the writ in December 1987, who tried to be more
loyal to the king than the king himself and in tum respec-
tively ordered the registration of the case against the D
petitioner and proceeded to the spot (God knows which
one and for what purpose) with duly armed constabulary.
Mala fides, if at all these can be attributed are attributable
to S.P. Lekhi Ram and Inspector Tara Chand but not to
Chaudhary Devi Lal, Chief Minister Haryana arrayed as
respondent No. 2 in the writ petition." E
With regard to the contention of non-application of mind on the
part of the police officials, the High Court held thus:
"It thus appears that the allegation regarding application of
mind by the S.H.O. Inspector Tara Chand of Police Station F
Sadar, Hissar has been made only because the S.P. was
feeling shaHow under his feet ..... that all was not well
with them and both of them were feeling cold under their
feet as to who amongst them would take the odium upon
himself for having done something which was in fact not
done by· either of them. Faced against the wall, they felt G
compelled on 14.7.1988 to put in hotch potch affidavits
aforesaid which do not indicate any application of mind by
either one of them, much less the Superintendent of Police,
Hissar, who was obliged in law to do so."
Finally after making reference to various decisions of this Court H
276 SUPREME COURT REPORTS [1990] Supp. 3 S.C.R.
A and in particular to State of West Bengal and Others v. Swapan Kumar
Guha and Others, [1982] 3 SCR 121, the High Court concluded that
the allegations do not constitute a congnizable offence for commenc-
ing the lawful investigation and granted the relief as prayed for and
mulcted the fifth respondent with the costs of the writ petition. In the
B penultimate paragraph of its judgment, the learned Judges cited a
historical event, namely, a challenge made by Pores before Alaxander
about which we will express our view at the appropriate place of this
judgment. The appellants on being aggrieved by the impugned judg-
ment of the High Court has preferred the present appeal. At this
juncture we would like to point out that one Chhabil Dass, a third
party has filed an application accompanied by an affidavit praying to
c implead him as a party and stating that he has got sufficient materials
to substantiate the allegations averred in the complaint of the second
respondent. As the applicant Chhabil Dass was not a party to the
proc€edings before the High Court, his application is rejected.
D Mr. Rajinder Sachhar, the learned senior counsel along with the
learned Advocate General of Haryana State assisted by Mr. Mahabir
Singh appeared for the appellants whilst Mr. R.K. Garg, the learned
senior counsel appeared for the second respondent, Dharam Pal on
whose complaint the impugned first information report had been
registered and the investigation was commenced. Mr. K. Parasaran,
the learned senior counsel along with Mr. P. Chidambaram, the
E
learned senior counsel assisted by Mr. Gopal Subramaniam appeared
on behalf of the first respondent. Mr. Rajinder Sachhar and Mr. R.K.
Garg made a cascade of vitriolic comments on the reasons assigned
and the conclusions drawn therefrom by the High Court and assailed
the impugned judgment by making a frontal brunt asseverating that
the instances of corruption cited in the complaint by Dharam Pal which
F
are in the increase both in volume and virulence, though so far hidden
from the public view, and those allegations taken either individually or
collectively, unerringly and irrefragably constitute a cognizable
offence warranting firstly the registration of a case as contemplated
under Section 154(1) of the Code and secondly imperatively demand-
ing a thorough investigation in compliance with the various statutory
G
provisions particularly Sections 156, 157, 159 etc., falling under Chap-
ter XII of the Code. According to them, the High Court has no justifi-
cation in riding its chariot over the track of investigation and thereby
obliterating the same and the High Court in doing so has committed a
grave and substantial illegality by quashing the First Information
H Report and the further proceedings of the investigation.
STATE OF HARYANA v. CH. BHAJAN LAL IPANDIAN, J.] 277
Mr. Parasaran vehmently urged that the impugned judgment is a A
well considered and well reasoned one and hence there can be no
justification for this Court in dislodging the unassailable conclusion.
According to him, the deep rooted political animosity and rivalry that
Ch. Devi Lal had entertained on account of his failure in his attempt to
become the Chief Minister of Haryana State in 1978 and 1982 which
blew in with hot weather had uplifted the subterranean heat resulting B
in the out-pourings of character assassination against Ch. Bhajan Lal.
The complainant, Dharam Pal who suffered a shameful defeat in the
general election held in 1988 at the hands of Jasma Devi, wife of Ch.
Bhajan Lal and who is a stooge in the hands of Ch. Devi Lal is used as
·an instrument to present this complaint containing false and scurilous
allegations.
c
All the learned counsel appearing for all the parties took much
pain and advanced their eloquent arguments with the aid of a series of
decisions of this Court, but occasionally punctured with inflamed
rhetoric and surcharged with emotions. In addition to their oral argu-
ments they also filed written submissions. We after carefully and D
assiduously examining the contentions and counter-contentions
advanced by all the parties both on the legal and factual aspects and
after scruplously scanning the materials placed on record and examin-
ing the written arguments submitted by the parties, would like to deal
with those contentions seriatim.
E
Before discussing which of the submissions ought to prevail, we
shall in the foremost deal wiih the legal principles governing the regist-
ration of a cognizable offence and the investigation arising thereon.
Section 154(1) is the relevant provision regarding the registration of a
cognizable offence and that provision reads as follows:
F
"Every information relating to the commission of a cogniz-
able offence, if given orally to an officer-in-charge of a
police station, shall be reduced to writing by him or under
his direction, and be read over to the informant; and every
such information, whether given in writing or reduced to
writing as aforesaid, shall be signed by the person giving it, G
and the substance thereof shall be entered in a book to be
kept by such officer in such form as the State Government
may prescribe in this behalf."
The above sub-section correspondents to Section 154 of the old
•• Code (Act of 1898 to which _various amendments are made by Act H
278 SUPREME COURT REPORTS (1990] Supp. 3 S.C.R.
XXVI of 1955 and also to Section 154 of the Code of Criminal Proce-
A dure of 1882 (Act X of 1882) except for the slight variation in that
expression 'Local Government' had been used in 1882 in the place of
'State Government'. Presently, on the recommendations of the 4 lst
Report of the Law CQlllll1ission_, the sub-Sections 2 and 3 have been
newly added but we are not concerned with those provisions as they
B are .not relevant for the purpose of the disposal of this case except for
making some reference at the appropriate places, if necessitated. Sec-
tion 154( 1) regulates the manner of recording the First Information
Report relating to the commission of a cognizable offence.
The legal mandate enshrined in Section 154( 1) is that every
information relating to the commission of a "cognizable offence" (as
c defined under Section Z(c) of the Code) if given orally (in which case it
is to be reduced into writing) or in writing to "an officer incharge of a
police station" (within the meaning of Section 2(o) of the Code) and
signed by the informant should be entered in a book to be kept by such
officer in such form as the State Government may prescribe which
D form is commonly called as "First Information Report" and which act
of entering the information in the said form is known as registration of
a crime or a case.
At the stage of registration of a crime or a case on the basis of the
information disclosing a cognizable offe·nce in compliance with the
E mandate of Section 154( 1) of the Code, the concerned police officer
cannot embark upon an enquiry as to whether the information, laid by
the informant is reliable and genuine or otherwise and refuse to regis-
ter a case on the ground that the information is not reliable or credible.
On the other hand, the officer incharge of a police station is statutorily
obliged to register a case andthen to proceed with the investigation if
F he has reason to suspect the commission of an offence which he is
empowered under Section 156 of the Code to investigate, subject to
the proviso to Section 157. (As we have proposed to make a detailed
discussion about the power of a police officer in the field of investiga-
tion of a cognizable offence within the ambit of Sections 156 and 157 of
the Code in the ensuing part of this judgment, we do not propose to
G deal with those sections in-extenso in the present context). In case, an
officer incharge of a police station refuses to exercise the jurisdiction
vested on him and to register a case on the information of a cognizable
offence, reported and thereby violates the statutory duty cast upon
him, the person aggrieved by such refusal can send the substance of the
information in writing and by post to the Superintendent of Police
H conerned who if satisfied that the information forwarded to him disc-
STATE OF HARYANA v. CH. BHAJAN LAL [PANDIAN, J.] 279
loses a cognizable offence, should either investigate the case himself or
A
direct an investigation to be made by any police officer subordinate to him
in the manner provided by sub-Section 3 of Section 154 of the Code.
Be it noted that in Section 154(1) of the Code, the legislature· in
its collective wisdom has carefully and cautiously used the expression
"information" without qualifying the same as in Section 41( l)(a) or (g) B
of the Code wherein the expressions, "reasonable complaint" and "cre-
dible information" are used. Evidently, the non-qualification of the
word "information" in Section 154(1) unlike in Section 41(1)(a) and
(g) of the Code may be for the reason that the police officer should not
refuse to record an information relating to the commission of a cogniz-.
able offence and to register a case thereon on the ground that he is not
satisfied with the reasonableness or credibility of the information. In c
other words, 'reasonableness' or 'credibility' of the said information is
not a condition precedent for registration of a case. A comparison of
the present Section 154 with those of the earlier Codes will indicate
that the legislature had purposely thought it fit to employ only the
word "information" without qualifying the said word. Section 139 of D
the Code of Criminal Procedure of 1861 (Act XXV of 1861) passed by
the Legislative Council of India read that 'every complaint or informa-
tion' preferred to an officer incharge of a police station should be
reduced into writing which provision was subsequently modified by
Section 112 of the Code of 1872 (Act X of 1872)·which thereafter read
that 'every complaint' preferred to an officer incharge of a police E
station shall be reduced in writing. The word 'complaint' which occur-
red in previous two Codes of 1861 and 1872 was deleted and in that
place the word 'information' was used in the Codes of 1882 and 1898
which word is now used. in Sections 154, 155, 157 and 190(c) of the
present Code of 1973 (Act II of 1974). An overall reading of all the
Codes makes it clear that the condition which is sine-qua-non for F
recording a First Information Report is that there must be an informa-
tion and that information must disclose a cognizable offence.
It is, therefore, manifestly clear that if any information disclosing
a '" gnizable offence is laid before an officer incharge of a police
tion satisfying the requirements of Section 154(1) of the Code, the G
id police officer has no other option except to enter the substance
.aereof in the prescribed form, that is to say, to register a case on the
basis of such information.
In this connection, it may be noted that though a police officer
cannot investigate a non-cognizable offence on his own as in the case H
280 SUPREME COURT REPORTS [ 1990] Supp. 3 S.C.R.
of cognizable offence, he can investigate a non-cognizable offence
A
under the order of a Magistrate having power to try such non-
cognizable case or commit the same for trial within the terms under
Section 155(2) of the Code but subject to Section 155(3) of the Code.
Further, under the newly introduced Sub-section (4) to Section 155,
where a case relates to two offences to w~ich atleast one is cognizable,
B the case shall be deemed to be a cognizable case notwithstanding that
the other offences are non-cognizable and, therefore, under such
circumstances the police officers can investigate such offences with the
same powers as he has while investigating a cognizable offence.
The next key question that arises for consideration is whether the
registration of a criminal case under Section 154(1) of the Code ipso
C facto warrants the setting in motion of an investigation under Chapter
XII of the Code.
Section 157{1) requires an Officer Incharge of a Police Station
who 'from information received or otherwise' has reason to suspect the
D commission of an offence-that is a cognizable offence-which he is
empowered to investigate under Section 156, to forthwith send a
report to a Magistrate empowered to take cognizance of such offence
upon a police report and to either proceed in person or depute any one
of his subordinate Officers not being below such rank as the State
Government may, by ·general or special order, prescribe in this behalf,
E to proceed to the spot, to investigate the facts and circumstances of the
case and if necessary, to take measures for the discovery and arrest of
the offender. This provision is qualified by a proviso which is in two
parts (a) and (b). As per clause (a) the Officer Incharge of a Police
Station need not proceed in person or depute a subordinate officer to
make an investigation on the spot if the information as to the commis-
F sion of any such offence is given against any person by name and the
case is not of a serious nature. According to clause (b ), if it appears to
the Officer Incharge of a Police Station that there is no sufficient
ground for entering on an investigation, he shall not investigate the
case. Sub-section {2) of Section 157 demands that in each of the cases
mentioned in clauses (a) and (b) of the proviso to sub-section {1) of
G Section 157, the Officer Incharge of the Police Station must state in his
report, required to be forwarded to the Magistrate his reasons for not
fully complying with the requirements of sub-section (1) and when the
police officer decides not to investigate the case for the reasons
mentioned in clause (b) of the proviso, he in addition to his report to
the Magistrate, must forthwith notify to the informant, if any, in such
H manner as may be prescribed by the State Government, the fact that
STATE OF HARYANA v. CH. BHAJAN LAL [PANDIAN, J.] 281
he will not investigate the case or cause the case to be investigated.
A
Section 156(1) which is to be read in conjunction with Section 157(1)
states that any Officer Incharge of a Police Station may without an
order of a Magistrate, investigate any cognizable case which a Court
having jurisdiction over the local area within the limits of the con-
cerned police station would have power to enquire into or try under
provisions of Chapter XIII. Section 156(3) vests a discretionery power B
on a Magistrate empowered under Section 190 to order an investiga-
tion by a police officer as contemplated in Section 156(1). It is perti-
nent to note that this provision does not empower a Magistrate to stop
an investigation undertaken by the police. In this context, we may
refer to an observation of this Court in State of Bihar and Another v.
J.A.C. Saldanha and Others, [1980] 1 SCC 554 at page 568 extending
the power of the Magistrate under Section 156(3) to direct further c
investigation after submission of a report by the investigating officer
under Section 173(2) of the Code. The said observation reads thus:
"The power of the Magistrate under Section 156(3) to di-
rect further investigation is clearly an independent power D
and does not stand in conflict with the power of the State
Government as spelt out hereinbefore. The power confer-
red upon the Magistrate under Section 156(3) can be exer-
cised by the Magistrate even after submission of a report by
the investigating officer which would mean that it would be
open to the Magistrate not to accept the conclusion of the E
investigating officer and direct further investigation. This
provision does not in any way affect the power of the
investigating officer to further investigate the case even
after submission of the report as provided in Section
173(8)."
F
The above two provisions-that is Sections 156 and 157 of the
Code are followed by Section 159 which empowers a Magistrate, on
receipt of a report forwarded by the police under Section 157 to direct
an investigation or if he thinks fit, at once to proceed or depute any
Magistrate subordinate to him to proceed, to hold a preliminary
enquiry into, or otherwise to dispose of, the case in the manner pro- G
vided in the Code. The expression "on receiving such a report" evi-
dently refers to the receipt of a report contemplated in Section 157(2),
because the question of directing an investigation by the Magistrate
cannot arise in pursuance of the report referred to under sub-Section
( 1) of Section 157 intimating that the police officer has proceeded with
the investigation either in person or by deputing any one of his subor- H
282 SUPREME COURT REPORTS [1990] Supp. 3 S.C.R.
dinate officers. This Court in S.N. Sharma v. Bipen Kumar Tiwari and
A
Ors., [1970] 3 SCR 946 while interpreting the scope of Section 159 of
the Code has stated thus:
"This Section first mentions the power of the Magistrate to
direct an investigation on receiving the report under
B Section 157, and then states the alternative that, if he
thinks fit, he may at once proceed, or depute any Magis-
trate subordinate to him to proceed, to hold a preliminary
enquiry into, or otherwise to dispose of, the case. On the
face of it, the first alternative of directing an investigation
cannot arise in a case where the report itself shows that
investigation by the police is going on in accordance with
c Section 156. It is to be noticed that the second alternative
does not give the Magistrate an unqualified power to pro-
ceed himself or depute any Magistrate to hold the prelimi-
nary enquiry. That power is preceded by the condition that
he may do so, "if he thinks fit". The use of this expression
D 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 thinks fit, he can choose the second alternative."
E The Privy Council in Emperor v. Khwaja Nazir Ahmad, AIR
1945 P. C. 18 while dealing with the statutory right of the police under
Sections 154 and 156 of the Code within its province of investigation of
a cognizable offence has made the following observation:
" . . . . . . . . . . . so it is of the. mmost importance that the
F judiciary should not interfere with the police in matters
which are within their province and into which the law
imposes upon them the duty of enquiry. In India as has
been shown there is a statutory right on the part of the
police to investigate the circumstances of an alleged cogniz-
able crime without requiring any authority from the judi-
G cial authorities, and it would, as their Lordships think, be
an unfortunate result if it should be held possible to
interfere with those statutory rights by an exercise of the
inherent jurisdiction of the Court. The functions of the
judiciary and the police are complementary not overlap-
ping and the combination of individual liberty with a due
H observance of law and order is only to be obtained by leav-
STATE OF HARYANA v. CH. BHAJAN LAL [PANDIAN, J.] 283
ing each to exercise its own function, always, of course,
A
subject to the right of the Court to intervene in an
appropriate case when moved under Section 491, Cr!minal
P.C. to give directions in the nature of habeas corpus. In
such a case as the present, however, the Court's functions
begin when a charge is preferred before it and not until
then." B
Justice D .A. Desai speaking for the Bench in State of Bihar and
Another v. I.A. C. Saldanha and Others, (albeit) while dealing with the
powers of investigation of a police officer as contemplated in Section
156 of the Code of Criminal Procedure has stated thus:
"There is a clear-cut and well demarcated sphere of activity c
in the field of crime detection and crime punishment.
Investigation of an offence is the field exclusively r~served
for the executive through the police department the
superintendence over which vests in the State Govern-
ment. The executive which is charged with a duty to keep D
vigilance over law and order situation is obliged to prevent
crime and if an offence is alleged to have been committed it
is its bounden duty to investigate into the offence and bring
the offender to book. Once it investigates and finds an
offence having been committed it is its duty to collect evi-
dence for the purpose of proving the offence. Once that is E
completed and the investigating officer submits report to
the Court requesting the Court to take cognizance of the
offence under Section 190 of the Code its duty comes to an
end."
See alsoAbhinandan v. Dinesh, [1967] 3 SCR 668. F.
The core of the above Sections namely 156, 157 and 159 of the
Code is that if a police officer has reason to suspect the commission of
a cognizable offence, he must either proceed with the investigation or
cause an investigation to be proceeded with by his subordinate; that in
a case where the police officer sees no sufficient ground for investiga- G
tion, he can dispense with the investigation altogether; that the field of
investigation of any cognizable offence is exclusively within the
domain of the investigating agencies over which the Courts cannot
have control and have no power to stiffle or impinge upon the proceed-
ings in the investigation so long as the investigation proceeds in comp-
liance with the provisions relating to investigation and that it is only in H
284 SUPREME COURT REPORTS [ 1990] Supp. 3 S.C.R.
a case wherein a police officer decides not to investigate an offence,
A
the concerned Magistrate can intervene and either direct an investiga-
tion or in the alternative, if he thinks fit, he himself can, at once
proceed or depute any Magistrate subordinate to him to proceed to
hold a preliminary inquiry into or otherwise to dispose of the case in
the manner provided in the Code.
B
We shall now examine as to what are the requirements to be
satisfied by an Officer incharge of a police station before he enters into
the realm of investigation of a cognizable offence after the stage of
registration of the offence under Section 154(1). We have already
found that the police have under Section 154( 1) of the Code a statutory
duty to register a cognizable offence and thereafter under Section
c 156( 1) a statutory right to investigate any cognizable case without
requiring sanction of a Magistrate. However, the said statutory right to
investigate a cognizable offence is subject to the fulfilment of a pre-
requisite condition, contemplated in Section 157(1). The condition is
that the officer incharge of a police station before proceeding to
D investigate the facts and circumstances of the case should have "reason
to suspect" the commission of an offence which he is empowered under
Section 156 to investigate. Section 135 of the Code of Criminal Pro.ce-
dure of 1861 (Act XXV of 1861) required the police officer on receipt
of a complaint or information constituting any of the offences specified
in column 3 of the schedule annexed to that Act should proceed with
E the investigation, but this Code did not require the condition of enter-
taining the reason to suspect the commission of an offence before
commencing the investigation. Subsequently, in the Code of Criminal
Procedure of 1872 a provision, namely, Section 114 which was more or
less similar to the present Section 157( 1) was introduced which provi-
sion required the police officer to have "reason to suspect" the com-
F mission of a cognizable offence before he proceeded to investigate the
facts and circumstances of the case. Thereafter in the Code of Criminal
Procedure of 1882 a provision, namely, Section 157 which was identi-
cal to that of the present Section 157 except for some variations in the
latter part of that Section was introduced which provision also requi-
red the police officer to have "reason to suspect" the commission of a
G cognizable offence. May it be noted that the Law Commission of India
in its 4 lst report expressed its opinion that Section 157 did not call for
any amendment.
The expression "reason to suspect" as occuring in Section 157(1)
is not qualified as in Section 41(a) and (g) of the Code, wherein the
H expression, "reasonable suspicion" is used. Therefore, it has become
STATE OF HARYANA v.. CH. BHAJAN LAL [PANDIAN, J.] 285
imperative to find out the meaning of the words "reason to suspect"
which words are apparently clear, plain and unambiguous. Consider- A
ing the context and the object of the procedural provision in question,
we are Of the view that only the plain meaning rule is to be adopted so
as to avoid any hardship or absurdity resulting therefrom and the
words are used and also to be understood only in common parlance.
We may, in this behalf, refer to a decision of the Privy Council in B
Pakala Narayanaswami v. Emperor, AIR 1939 P.C. 47 at pages 51-52
wherein Lord Atkin said as follows:
"When the meaning of the words is plain, it is not the duty
of Courts to busy themselves with supposed intentions
........ It, therefore, appears inadmissible to consider
the advantages or disadvantages of applying the plain c
meaning whether in the interests of the 'prosecution or
accused.,.,
The word 'Suspect' is laxically defined in Webster's Third Inter-
national Dictionary as follows: D
"Suspect-to look up at, suspect; the act of suspecting or
the condition of being suspected ...... to have doubts of;
be dubious or suspicions about; (2) to imagine (one) to be
guilty or culpable on slight evidence or without proof ....
(3) to imagine to be or be true, likely or probable: have a E
suspicion, intimation or inkling of:"
In Corpus Juris Secondum (Vol. 83) at page 923 the meaning of
the word 'Suspect' is given thus:
"The term 'suspect', which is not technical, is defined as p
meaning to imagine to exist; have some, although insuffi-
cient,' grounds for inferring; also to have a vague notiOn of°
the existence of, without adequate proof; mistrust; sur-
mise. It has been distinguished from 'believe.'
In the same volume, the expression "suspicion" is defined at G
page' 927 as follows:
"The act of suspect)ng or the state of being suspected; the
imagination, generally of something ill; the imagination of
the existence of something without proof, or upon very
slight evidence, or upon no evidence at all ...... ". H
286 SUPREME COURT REPORTS [ 1990] Supp. 3 S.C.R.
In words and Phrases (Parmanent Edition 40A) at page 590, the
A word 'suspicion' is defined thus:
'Suspicion' implies a belief or opinion as to guilt, based on
facts or circumstances which do not amount to proof. Scaf-
fido v. State, 254 N.W. 651. The state of mind which in a
B reasonable man would lead to inquiry is called mere 'suspi-
cion'. Stuartv. Farmers', Bank of Cuba City, 117 N.W. 820.
Again at page 591 the said word is expounded as follows:
"The word 'suspicion' is defined as being the imagination
of the existence of something without proof, or upon
c very slight evidence, or upon no evidence at all. Cook v.
Singer Sewing Mach. Co., 32 P. 2d 430, 431, 138 Cal. App.
418."
See also Emperor v. Vimlabai Deshpande, AIR 1946 P.C. 123;
D United States v. Cortez 66 L.Ed. 2d (United States Supreme Court
Reports) page 623 at page 628 (II (A (3); and Dallison v. Caffery, [1964]
2 All E.R. 610.
One should not lose sight of the fact that Section 157 (I) requires
the police officer to have reason to suspect only with regard to the
E commission of an offence which he is empowered under Section 156 to
investigate, but not with regard to the involvement of an accused in the
crime. Therefore, the expression "reason to suspect the commission of
an offence" would mean the sagacity of rationally inferring the com-
mission of a cognizable offence based on the specific articulate facts
mentioned in the First Information Report as well in the Annexures, if
F any, enclosed and any attending circumstances which may not amount
to proof. In other words, the meaning of the expression "reason to
suspect" has to be governed and dictated by the facts and circums-
tances of each case and at that stage the question of adequate proof of
facts alleged in the first information report does not arise. In this
connection, we would like to recall an observation of this Court made
G in State of Gujarat v. Mohan/a/ J. Porwal, [1987] 2 SCC 364 at 369
while interpreting the expression 'reasonable belief. It runs thus:
"Whether or not the officer concerned had entertained
reasonable belief under the circumstances is not a matter
which can be placed under legal microscope, with an over-
H indulgent eye which sees no evil anywhere within the range
STATE OF HARYANA v. CH. BHAJAN LAL [PANDIAN, J.} 287
of its eyesight. The circumstances have to be viewed from A
the experienced eye of the officer who is well equipped to
interpret the suspicious circumstances and to form a
reasonable belief in the light of the said circumstances."
See also Pukhrajv. D.R. Kohli, [1962] Supp. 3 SCR page 866.
B
Resultantly, the condition precedent to the commencement of
the investigation under Section 157( 1) of the Code is the existence of
the reason to suspect the commission of a cognizable offence which has
to be. prima facie disclosed by the allegations made in the first infor-
mation laid before the police officer under Section 154(1).
In State of West Bengal & Others v. Swapan Kumar Guha &
c
Others (albeit) Chandrachud, C.J. while agreeing with the judgment of
Justice A.N. Sen with which judgment Justice Vardarajan also agreed,
has expressed his view in his separate judgment on the above point
under discussion as follows:
D
"The position which emerges from these decisions and the
other decisions which are discussed by brother A.N. Sen is
that the condition precedent to the ·commencement of
investigation under Section 157 of the Code is that the FIR
must disclose, prima facie, that a cognizable offence has
been committed. It is wrong to suppose that the police have E
an unfettered discretion to commence investigation under
Section 157 of the Code. Their right of enquiry is condi-
tioned by the existence of reason to suspect the commission
of a cognizable offence and they cannot, reasonably, have
reason so to suspect unless the F.I.R., prima facie, dis-
closes the commission of such offence." F
As pointed out in the earlier part of this judgment, Section
157( 1) is qualified by a proviso which is in two parts (a) and (b ). Clause
(a) of the proviso is only an enabling provision with which we are not
very much concerned. However, clause (b) of the said proviso·imposes
a fetter on a police officer directing hini not to investigate a case where · G
it appears to him that there is no sufficient ground in entering on an
investigation. As clause {b) of the proviso permits the police officer to
satisfy himself about the sufficiency of the ground even before entering
on an investigation, it postulates that the police officer has to draw his
satisfaction only on the materials which were placed before him at that
stage, namely, the first information together with the documents, if H
288 SUPREME COURT REPORTS [ 1990] Supp. 3 :>.C.R.
A any, enclosed. In other words, the police officer has to satisfy himself
only on the allegations mentioned in the first information before he
enters on an investigation as to whether those allegations do constitute
a congnizable 6ffence warranting an investigation.
From the above discussion, it is pellucid that the commencement
B of investigation by a police officer is subject to two conditions, firstly,
the police officer should have reason to suspect the commission of a
cognizable offence as required by Section 157(1) and secondly, the
police officer should subjectively satisfy himself as to whether there is
sufficient ground for entering on an investigation even before he
starts an investigation into the facts and circumstances of the case as
C contemplated under clause (b) of the proviso to Section 157( 1) of the
Code.
The next point for consideration is whether Section. 157 of the
Code gives the police officers carte-blanche drawing no legal bounds in
the province of investigation and whether the powers of the police
D officers in the field of investigation are wholly immune from judicial
reviewability.
The above questions have been examined by the Courts on
several occasions and they have by judicial pronouncements carved
out an area, limited though it be, within which the legality of the
E exercise of powers by police officers in the realm of investigation and
yet be subjected to judicial reviewability and scrutiny and the immu-
nity enjoyed by the police officers is only a conditional immunity. The
Privy Council in Nazir Ahmad's case (albeit) though has ruled that it is
of the utmost importance that the judiciary should not interfere with
the police in matters which are within their province has provided an
F exception to that above observation to the effect that if no cognizable
offence or no case of any kind is disclosed, the police would have no
authority to undertake the investigation.
This Court on several occasions has expressed its concern for
personal liberty of a citizen and also has given warning about the
G serious consequences that would flow when there is non-observance of
procedure by the police while exercising their unfettered authority.
Gajendragadkar, J speaking for the Bench in R.P. Kapur v. The State
of Punjab, [1960] 3 SCR 388 at page 396 states as follows:
"It is of utmost importance that investigation into criminal
H offence must always be free from any objectionable
STATE OF HARYANA v. CH. BHAJAN LAL [PANDIAN, J.] 289
features or infirmities which may legitimately lead to the A
grievance of the accused that the work of investigation is
carried on unfairly and with a?y ulterior motive."
Krishna Iyer, J. in Nandini Satpathy v. P.L. Dani & Another,
[ 1978] 2 sec 424 at 430 has expressed his view thus:
B
'' .......... a police officer who is not too precise, too
sensitive and too constitutionally conscientious is apt to
trample under foot the gu~ranteed right of testimonials
tacitness."
Bhargava, J. speaking for the Bench in S.N. Sharma v. Ripen C
Kumar Tiwari and Ors., (albeit) has stated thus:
"It appears to us that, though the Code of Criminal Proce-
dure gives to the police unfettered power to investigate all
.::ases where they suspect that a cognizable offence has been
committed, in appropriate cases an aggrieved person can D
always seek a remedy by invoking the power of the High
Court under Article 226 of the Constitution under which, if
the High Court could be convinced that the power of invesii-
gation has been exercised by a police officer ma/a fide, the
High Court can always issue a writ of mandamus restrain-
ing the police officer from misusing his legal powers. The E
fact that the Code does not contain any other provision
giving power to a Magistrate to stop investigation by the
police cannot be a ground for holding that such a power
must be tead in Section 159 of the Code."
Mathew, J. in his majority judment in Prabhu Dayal Deorath etc. ·F
etc. v. The District Magistrate, Kamrup & Ors., [1974] 2 SCR 12 at
page 22 while emphasising the preservation of personal liberty has
expressed his view thus:
"We say, and we think it is necessary to repeat, that the
gravity of the evil to the community resulting from anti- G
social activities can never furnish an adequate reason for
invading the personal liberty of a citizen, except in accor-
dance with the procedure established by the Constitution
and the laws. The history of personal liberty is largely the
history of insistence on observance of procedure. Obser-
vance of procedure has been the bastion against wanton H
290 SUPREME COURT REPORTS [ 1990] Supp. 3 S.C.R.
assaults on personal liberty over the years. Under our Con-
A
stitution, the only guarantee of personal liberty for a
person is that he shall not be deprived of it except in
accordance with the procedure established by law."
Chandrachud, C.J. in Swapan Kumar Guha's case while examin-
B ing the power of a police officer in the field of investigation of a
cognizable offence has affirmed the view expressed by Mathew, J and
observed as follows:
"There is no s11ch thing like unfettered discretion in the
realm of powers defined by statutes and indeed, unlimited
discretion in that sphere can become a ruthless destroyer of
c personal freedom. The power to investigate into cognizable
offences must, therefore, be exercised strictly on the condi-
tion on which it is granted by the Code."
The sum and substance of the above deliberation" results to a
D conclusion that the investigation of an offence is the field exclusively
reserved for the police officers whose powers in that field are unfet-
tered so long as the power to investigate into the cognizable offences is
legitimately exercised in strict compliance with the provisions falling
under Chapter XII of the Code and the Courts are not justified in
obliterating the track of investigation when the investigating agencies
E are well within their legal bounds as aforementioned. Indeed, a notice-
able feature of the scheme under Chapter XIV of the Code is that a
Magistrate is kept in the picture at all stages of the police investigation
but he is not authorised to interfere with the actual investigation or to
direct the police how that investigation is to be conducted. But if a
police officer transgresses the circumscribed limits and improperly and
F illegally exercises his investigatory powers in breach of any statutory
provision causing serious prejudice to the personal liberty and also
property of a citizen, then the Court on being approached by the
person aggrieved for the redress of any grievance, has to consider the
nature and extent of the breach and pass appropriate orders as may be
called for without leaving the citizens to the mercy of police echelons
G since human dignity is a dear value of our Constitution. Needs no
emphasis that no one can demand absolute immunity even if he is
wrong and claim unquestionable right and unlimited powers exercis-
able upto unfathomable cosmos. Any recognition of such power will
be tantamount to recognition of 'Divine Power' which no authority '1n
earth can enjoy.
H
STATE OF HARYANA v. CH. BHAJAN LAL [PANDIAN, J.l 291
Here-to-Jore, we have dealt with the intendment of the various
A
statutory provisions relating to the registration of the First Informa-
tion Report, the statutory duty cast on the police officers to investigate
the cognizable offences, the such authority of the police officers in the
field of investigation and the circumscribed limits imposed on such
authority in the conduct of investigation.
B
The central issue involved for scrutiny is whether the order of
the Court in quashing the First Information Report and the proceeding
of the investigation is legally sustainable and if not, to what extent the
said order suffers from legal infirmity.
Mr. K. Parasaran forcefully contended that the allegations aver-
red in the complaint even if taken at their face value and accepted in its c
~ntirety do not constitute an offence demanding either the registration
of a case or commencement of an investigation; that it would be
mainfestly unjust to allow the procedure of crimin.al law to be pro-
ceeded with against Ch. Bhajan Lal and that the High Court on a
proper appreciation of the material placed before it has come to a D
correct and indisputable conclusion based on the logical reasonings
that no offence is disclosed and no case is made out. According to him
the allegations of corruption wrapped in a concoon of ambiguity,
falsity and vagueness demonstrate only the personal and old political
rivalry that existed over a period between Ch. Devi Lal and Ch.
Bhajan Lal rather than constituting a criminal offence. E
Reverting to the severe critical charges levelled against the vali-
dity of the impugned judgment and the recrimination made on behalf
of Ch. Bhajan Lal, we shall at the threshold anatomize the reasons
imputed by the High Court for quashing the First Information Report
in the back drop of the legal principles enunciated in the preceding F
part of this judgment.
-
The complainant Dharam Pal has cited as many as 20 instances in
his complaint with an exordial note that Ch. Bhajan Lal before 1969
was only a man of ordinary means without having any definite source
of income and that h~ after becoming a Minister and then as Chief G
Minister, accumulated enormous property worth crores of rupees un-
der shady transactions inclusive of benami transactions in the names of
his family members, relatives and persons close to him by misusing his
power and position. Added to that in the final part of the complaint he
has alleged "Besides this, Bhajan Lal has other properties in his name
or benami like shares in cinemas of Sirsa and Adampur, trucks and H
292 SUPREME COURT REPORTS [ 1990] Supp. 3 S.C.R.
cars at Adampur and Hissar and Fatehbad, petrol pump at Agroha
A
Mor and is possessing gold, silver and diamond ornaments valued
about Rs. 5 crores which are far beyond the legal means of Ch. Bhajan
Lal."
Both in the Writ Petition (Writ Petition No. 9172/87) filed before
B the High Court as well in the counter affidavit filed before this Court,
Ch. Bhajan Lal (the first respondent herein) has attempted to answer
those allegations levelled against him by ( 1) giving a detailed account
revealing a chronicle of the old political rivalry that existed between
him on the one hand and Ch. Devi Lal and Dharam Pal on the other
and a brief summary of a spate of criminal cases in which the parties to
this proceeding and their men were embroiled and (2) offering an
c explanation to some of the allegations and emphatically abjuring the
rest. In support of his assertions made on oath in the counter affidavit,
he has enclosed 11 annexures. An additional affidavit has been filed by
Dharam Pal by way of amplification alleging that Bhajan Lal is con-
structing a palatial house worth about Rs. 50 lakhs, the built-in area of
D which is not less than 21, 100 sq. ft.
During the course of the hearing of the case, an un-numbered
interlocutory application in the Special Leave Petition enclosed with a
copy of an un-numbered Writ Petition (Civil) of 1988 preferred before
the High Court of Delhi by Mis Bhanu Steels Pvt. Ltd., D-1028, New
E Friends Colony, New Delhi was filed on behalf of Dharam Pal for
establishing two facts namely ( 1) that the finding of the High Court
relating to the Instance No. 12 in the complaint alleging that the house
No. D-1028, New Friends Colony valuing about Rs. 75 lakhs has been
bought under benami transaction, holding 'This one glaring instance
shows how the mala fide and false First Information Report is recorded
F against the petitioner' is falsified and (2) that Bhanu Steels Pvt. Ltd.
had entered into an agreement of sale dated 22.9.1988 with Mrs.
Roshni Bishnoi (who is the 7th respondent in the said writ petition and
who is none other than the daughter of Ch. Bhajan Lal) in respect of
the above property namely D-1028, New Friends Colony, New Delhi
for a consideration of Rs.40 lakhs plus unearned increase payable to
G the D .D .A. which at present effective rates work out to Rs.14,05,515.
Mr. Chidambaram took a strong objection stating that these
untested allegations are introduced only to prejudice the Court and,
therefore, the Court should refrain from considering these allegations.
H
We may straightaway say that we do not take note of these new allega-
tions as we are not called upon at this stage to embark upon an enquiry
-
STATE OF HARYANA v. CH. BHAJAN LAL [PANDIAN, J.l 293
whether the allegations in the First Information Report are reliable or
A
not and thereupon to render a finding whether any of the allegations is
proved. These are matters which can be examined only by the con-
cerned Court after the entire materials are placed before it on a
thorough investigation.
As pointed out earlier no counter was filed before the High B
Court on behalf of the first appellant (the State of Haryana), but only
the second and third appellants filed separate written statements at a
later stage mainly contending that it. is wholly premature to give any
reply with regard to the averments made in the Writ Petition. The
High Court went in detail of the motive alleged by Ch. Bhajan Lal and
then examined the allegations in the light of the untested explanation
and denial made by Bhajan Lal and finally concluded that "The
charges levelled in the complaint Annexure P-9 by respondent No. 5
against the petitioner are, therefore, all groundsless." Since we have
already reproduced some of the observations of the High Court in the
earlier portion of this judgment, it is unnecessary to reproduce them in
this connection. The impugned judgment spells out that the learned D
Judges of the High Court had felt that the non-filing of a written
statement by a competent authority of the State Government by way
of reply to the averments made in the Writ Petition is a serious flaw on
the part of appellants and as such the averments of Ch.· Bhajan Lal
should be held as having disproved the entire crimination alleged in
the F.I.R. The above view of the High Court in our opinion, is neither E
conceivable nor comprehensible. Further no adverse inference could
be drawn on the mere non-filing of a written statement by the State of
Haryana in cases of this nature especially when the matter relates to
serious disputed facts, yet to be investigated. As rightly pointed out by
Mr. Rajlnder Sachhar the stage is pre-mature and as such the Govern-
ment could not be expected to have in its possession all the details in F
support of the allegations made in the complaint before any enquiry or
investigation is launched and completed. Similarly, the appellants 2
and 3 who· are only police officials also cannot be expected to give a
detailed reply to the averments made in the Writ Petition when the
investigation has not at all proceeded with. It will be appropriate to
refer to a decision of this Court in State of Bihar and Another v. J.A. C. G
Saldanha and Others, [1980] 1SCC554 at page 574 wherein this Court
has disapproved the exercise of the extra-ordinary power of the High
Court in issuing a prerogative writ quashing the prosecution solely on
the basis of the averments made in the affidavit in the following words:
"The High Court in exercise of the extraordinary jurisdic- H
294 SUPREME COURT REPORTS [1990] Supp. 3 S.C.R.
tion committed a grave error by making observations on
seriously disputed questions of facts taking its cue from
affidavits which in such a situation would hardly provide
any reliable material. In our opinion the High Court was
clearly in error in giving the direction virtually amounting
to a mandamus to close the case before the investigation is
B complete. We say no more."
It is true that some of the allegations do suffer from misty vague-
ness and lack of particulars. Further as urged by Mr. Parasaran, there
are n<l' specific averments that either Ch. Bha jan Lal or his relations
and friends had no source of income to accumulate the properties now
standing in their names and that Ch. Bhajan Lal showed any favour to
C them by misusing his official power. In our considered view, these are
<tll matters which would be examined only during the course of investi-
gation and thereafter by the court on the materials collected and
placed before it by the investigating agencies. The question whether
the relations and friends of Ch. Bhajan Lal have independently
D purchased the properties out of their own funds or not also cannot be
decided by the Court at this stage on the denial statement of Bhajan
Lal alone.
While Mr. Rajinder Sachhar and Mr. Gar_g took much pain to
show that the reasons given by the High Court in respect of each of the
E instances are not legally sustainable, Mr. Parasaran submitted a tabu-
lar statement by listing out each of the instances of the alleged corrup-
tion indicted in the complaint, the~ explamifion given in the Writ
Petition as well as in the counter affidavit related thereto and the reply
in the rejoinder and urged that the allegations in the F.I.R. are
nothing but a conglomeration of calumny and falsehood. As the entire
F matter stands only at the stage of the registration of the case and the
investigation has not at all proceeded with on account of the order of
stay granted by the High Court, we do not intend or propose to
examine the truth or otherwise of each of the instances in snippet form
and thereafter string them together and express any opinion either
way, since in our view any such opinion may affect the case of either
G party or cripple the course of investigation.
An argument was advanced by Mr. Parasaran submitting that the
proposition of law laid down by this Court in Swapan Kumar Guha's
case (albeit) holding that "the legal position appears to be that if an
offence is disclosed, the Court will not normally interfere with an in-
H vestigation into the case" clearly shows that this Court has carved out
STAIB OF HARYANA v. CH. BjiAJAN LAL [PANDIAN, J.] 295
an area wherein the Courts can interfere in criminal proceedings at any A
stage if ·circumstances so warrant and quash the same. Based on the
above proposition of law, he states that as the allegations in the pre-
sent case which demonstrably shown to be speculative and false the
judgment of the High Court quashing the proceedings has to be
sustained. In our considered view, this submission cannot be coun-
B
tenanced for the reasons-firstly we, at this premature stage, are
unable to share the view expressed by the High Court that the charges
levelled against Ch. Bhajan Lal are all groundless and secondly
Swapan Kumar Guha's case cannot be availed of by the first respon-
dent as the question that came up for determination was entirely diffe-
rent. The facts in Swapan Kumar Guha's case were as follows:
c
Sanchaita Investments, a partnership firm was carrying on busi-
ness as financiers and investors and in its business the firm accepted
loans or deposits from the general public for different periods repay-
able with interest, giving option to the depositors for premature with-
drawal. The firm was carrying on its business on a very extensive scale. D
While so, the Parliament passed the Prize Chits and Money Circula-
tion Schemes (Banning) Act, 1978. On 13.12.1980, the Commercial
Tax Officer, Bureau of Investigation, lodged a complaint of violation
of the said Act by the firm with the police on the ground that the
amount in excess of 12% interest so paid showed that the Money
Circulation Scheme was being promoted and conducted for the making E
of quick and/or easy money. Two of the partners were arrested. There-
after the firm and its two partners filed the Writ Petition in the High
Court challenging the validity of the First Information Report and the
proceedings arising out of the same. The question for consideration
was as to whether the First Information Report prima-facie disclosed
the offence under Section 4 read with Section 3 of the Act of 1978 in F
the light of the requirement of Section 2(c) of the Act defining the
expression "Money Circulation Scheme''. This Court examined that
question with reference to the facts therein and ultimately held that
the allegations did not attract the provisions of Act of 1978. The ques-
tion that arises for consideration in the present case is not the one as in
Swapan Kumar Guha's case.
G
The High Court while quashing the impugned proceedings has
made certain sweeping remarks by using the expression 'imaginary and
fantastic', 'the fishing enquiry', 'outcome of a desparate and frustrated
mind'. Except expressing our view that those iemarks are not
warrante.d, we refrain from making any more comment. H
296 SUPREME COURT REPORTS [ 1990] Supp. 3 S.C.R.
Mr. Parasaran made a mordacious criticism articulating that the
A
impassioned and impetuous police officers in order to show their loya-
lity to the third respondent, Ch. Devi Lal had over-stepped their
permissible limits in taking a rash decision in registering the F.1.R. and
commencing the investigation and that the said First Information
Report bears on its face 'the stamp of hurry and want of care'. He, in
B this connection, drew our attention to an observation of the High
Court which reads thus:
"Over zealous police officers, who tried to be more loyal to
the king i.e. respondent No. 2 than the king himself how-
ever fell into the trap laid by respondent No. 5 and ordered
registration of the case and its investigation without any
c clue, .......................... "
(Respondents 2 and 5 mentioned in the above observation are Ch.
Devi Lal and Dharam Pal respectively).
D In a perfect system of prevention and detection of crimes, unde-
niably the paramount duty of a police officer to whom the commission
of a cognizable offence is reported, is to register a case without causing
any delay and promptly commence the investigation without pervert-
ing or subverting the law. When such is the accepted principle, can it
be said that the police officers in the instant case have over-zealously
E taken a hasty decision by misusing their positions in registring the
case and commencing the investigation? To answer this query, let us
recapitulate some salient facts on this aspect. The complainant,
Dharam Pal, presented the complaint on 12.11.1987 before Ch. Devi
Lal whose officer on special duty marked it to the DGP on the same
day. The DGP sent it with his endorsement dated 12.11.1987 to the
F S.P. Hissar, who received it on 21.11.1987. The S.P. on the same day
made the endorsement "Please register a case and investigate". In the
affidavit filed before the High Court, the S.P. has stated that as there
were serious allegations of corruption against Ch. Bhajan Lal in the
complaint constituting a prima-facie case under Section 5(2) of the
Act, he made his endorsement on the same day and marked it to the
G SHO under his signature and that he, then, summoned the SHO and
handed over the complaint to him and the SHO also went through the
contents of the complaint and was of the opinion that a prima facie
case under Section 5(2) of the Act and under Sections 161 and 165 IPC
has been made out and that the SHO took the complaint and left for
his station for further necessary action. The SHO in his affidavit filed
H before the High Court has corroborated the version of the S.P. in its
STAIB OF HARYANA v. CH. BHAJAN LAL [PANDIAN, J.l 297
entirety. The conduct of the SHO indicates that he without losing any A
time registered the case and commenced the investigation by proceed-
ing to the 'spot' accompanied by armed constables. The allegations in
the complaint cover the period commencing from 1969 and ending
with 1986 as noted in the F.I.R. Be it noted that by June 1987, Ch.
Devi Lal became the Chief Minister. The complaint was presented by B
Dharam Lal nearly 5 months after Devi Lal became the Chief
Minister.
The gravamen of the accusation is that Ch. Bhajan Lal has amas-
sed huge assets by misusing his ministerial authority earlier to 1986
which assets are disproportionate to his known and licit sources of
income. It has been repeatedly pointed out that mere possession of any c
pecuniary resources or property is by itself not an offence, but it is the
failure to satisfactorily account for such possession of pecuniary
resources or property that makes the possession objectionable and
constitutes the offence within the ambit of Sec. 5( I)( e) of the Act.
Therefore, a police officer with whom an investigation of an offence D
under Section 5( 1)(e) of the Act is entrusted should not proceed with a ·· •
pre-conceived idea of guilt of that person indicted with such offence
and subject him to any harassment and victimisation, because in case . ,
the allegations of illegal accumulation of wealth are found during the
course of investigation as baseless, the harm done not only to that
perso.i but also to the office, he held will be incalculable and
E
inestimable.
In this connection, it will be appropriate to recall the views
expressed by Mitter, J. in Sirajuddin v. State of Madras, (1970] 3 SCR
931 in the following words:
F
"Before a public servant, whatever be his status, is publicly
charged with acts of dishonesty which amount to seriouc
misdemeanour or misconduct of the type alleged in this
case and a first information is lodged against him, there
must be some suitable preliminary enquiry into the allega-
tions by a responsible officer. The lodging of such a report G
against a person specially one who like the appellant ·
occupied the top position in a department, even if baseless,
would do incalculable harm not only to the officer in
particular but to the department he belonged to, in general
.............................. The means adopted no
less than the end to be achieved must be impeccable." H
298 SUPREME COURT REPORTS [1990] Supp. 3 S.C.R.
Mudholkar, J in a separate judgment in The State of Uttar
A
Pradesh v. BhagwantKishore Joshi, [1964] 3 SCR 71at86 while agree-
ing with the conclusion of Subba Rao, J (as he then was) has expressed
his opinion stating:
"In the absence of any prohibition in the Code, express or
B implied, I am of opinion that it is open to a police officer to
make preliminary enquiries before registering an offence
and making a full scale investigation into it."
We are in agreement with the views, expressed by Mitter, J and
Mudholker, Jin the above two decisions. ...
c Now coming to the present case, we regret to note that the SP
seems to have exhibited some over-enthusiasm, presumably to please
'some_one' and had directed the SHO to register the case and investi-
gate-the same even on the very first day of the receipt of the complaint
from the DGP, in whose office the complaint was lying for nearly 9
D days. This unprecedented over-enthusiasm shown by the S.P., without
disclosing the reasons for making an order entrusting the investigation
to the SHO who is not a designated officer under Section SA(!), about
which we shall advert to in detail in the ensuing part of the judgment,
really shocks ones' sense of justice and fair play even though the
untested allegations made in the complaint require a thorough investi-
E gation. Still, it is an inexplicable riddle as to why the S.P. had departed
from the normal rule and hastily ordered the S.H.O to investigate the
serious allegations, levelled against a former Chief Minister and a
Minister in the Cabinet of the Central Government on the date of the
registration of the case. However, this conduct of the S.P. can never
serve as a ground for quashing this F.I.R.
F
The nagging question that comes up for examination more often
than not is under what circumstances and in what categories of cases, a
criminal proceeding can be quashed either in exercise of the extra-
ordinary powers of the High Court under Article 226 of the Constitu-
tion of India or in the exercise of the inherent powers of the High
G Court under Section 482 of the Code. This question has often been
hotly debated before this Court and various High Courts. Though in a
series of decisions, this question has been answered on several occa-
sions by this apex court, yet the same still comes up for consideration
and is seriously agitated.
H Mr. Rajinder Sachhar and Mr. R.K. Garg vehemently attacked
STATE OF HARYANA v. CH. BHAJAN LAL [PANDIAN, J.] 299
-
the judgment under appeal contending that the High Court in the A
exercise of its extra-ordinary jurisdiction under Article 226 should not
have interfered with the unbridled power of the police officials and
quashed the entire proceedings from the stage of the registration of the
case especially when the allegations made in the complaint limpidly
constitute offences both under the Prevention of Corruption Act and
the Indian Penal Code and this unjustifiable interference is in clear B
violation of the principles laid down by this Court in a host of deci-
sions. In support of their submissions, they drew our attention to a
catena of decisions, of which we will presently refer to a few.
The Judicial Committee in its oft-quoted decision, namely, King
Emperor v. Khwaja Mazir Ahmad (Albeit) though strongly observed
that the judiciary should not interfere with the police in matters which
c
are within their province, has qualified the above statement of law by
saying:
"No doubt, if no cognizable offence is disclosed, and still
more, if no offence of any kind is disclosed, the police D
would have no authority to undertake an investigation."
The above observation shows that an investigation can be
quashed if no cognizable offence is disclosed by the F.I.R.
Gajendragadkar, J. speaking for the Court while considering the E
inherent powers of the High Court in quashing the First Information
Report under Section 561-A of the old Code (corresponding to Section
482 of the new Code) in R.P. Kapur v. The State of Punjab (cited
above) at page 393 made the following observation:
"Cases may also arise where the allegations in the First F
Information Report or the complaint, even if they are
taken at their face value and accepted in their entirety, do
not constitute the offence alleged; in such cases no question·
of appreciating evidence arises; it is a matter merely of
looking at the complaint or the First Information Report to
decide whether the offence alleged is disclosed or not. In G
such cases, it would be legitimate for the High Court to
hold that it would be mainfestly unjust to allow the process
of the criminal court to be issued against the accused
person."
In the case of State of West Bengal v. S.N. Basak, [1963] 2 SCR H
•
300 SUPREME COURT REPORTS [ 19901 Supp. 3 S.C.R.
52 the accused therein contended that the statutory power of investiga-
A tion given to police under Chapter XIV of the Code is not available in
respect of an offence triable under the West Bengal Criminal Law
Amendment (Special Courts) Act 1949 and that being so, the investi-
gation undertaken by the police was without jurisdiction. The Court
while negativing that contention and holding that the application filed
B by the accused under Section 439 and Sec. 561-A of the old Code was
liable to be dismissed, observed that the statutory powers given to the
police under Sections 154 and 156 of the Code to investigate into the
circumstances of an alleged cognizable offence without authority from
a magistrate cannot be interfered with by the exercise of power under
Section 439 or under the inherent power conferred by Section 561-A of
the old Code. But in that case, no question arose as to whether the
.
c allegations in the FIR disclosed any offence at all.
In S.N. Sharma v. Bipen Kumar Tiwari and Ors. (supra) a First
Information Report was lodged naming an Additional District Magis-
trate (Judicial) as a principal accused. His application under Section
D 159 of the Code asking that the Judicial Magistrate should himself
conduct a preliminary enquiry was dismissed. However, the Court has
pointed out thus: ·
"It appears to us that, though the Code of Criminal Proce-
dure gives to the police unfettered power to investigate all
E cases where they suspect that a cognizable offence has been
committed, in appropriate cases an aggrieved person can
always seek a remedy by invoking the power of the High
Court under Article 226 of the Constitution under which, if
the High Court could be convinced that the power of in-
vestigation has been exercised by a police officer ma/a fide,
F the High Conrt can always issue a writ of mandamus rest-
raining the police officer from misusing his legal powers.
The fact that the Code does not contain any other provision
giving power to a Magistrate to stop investigation by the
police cannot be a ground for holding that such a power
must be read in Section 159 of the Code."
G
In Hazari Lal Gupta v. Rameshwar Prasad and Another, etc.
[1972] 1SCC452 at page 455, this Court has stated thus:
"In exercising jurisdiction under Section 561-A of the
Criminal Procedure Code, the High Court can quash pro-
H ceedings if there is no legal evidence or if there is any
STATE OF HARYANA v. CH. BHAJAN LAL IPANDIAN. J.l 301
impediment to the institution or continuance of ,proceed- A
ings but the High Court does not ordinarily inquire as to
whether the evidence is 'reliable or not'. Where again,
investigation into the circumstances of an alleged cogniz-
able offence is carried on under the provisions of the Crimi-
nal Procedure Code, the High Court does not interfere
B
with such investigation because it would then be the imped-
ing investigation and jurisdiction of statutory authorities to
exercise power in accordance with the provisions of the
Criminal Procedure Code."
In Jehan Singh v. Delhi Administration, [1974] 3 SCR 794, the
application filed by the accused under Section 561-A of the old Code c
for quashing the investigation was dismissed as being premature and
incompetent on the finding thatprima facie, the allegations in the FIR,
if assumed to be correct, constitute a cognizable offence.
This Court in Amar Nath v. State of Haryana, [1977] 4 SCC 137
has pointed out that the inherent powers of the Court can ordinarily be D
exercised when there is no express provision on the subject matter and
that when there is an express provision, barring a particular remedy
the Court cannot resort to the exercise of inherent powers.
In this connection Madhu Limaye v. State of Maharashtra, [1977]
4 SCC 551 may be referred to, as this Court has explained the princi- E
ple, laid down in Amar Nath's case in somewhat modified and
modulated form.
In Kurukshetra University and Another v. State of Haryana and
Another, [1977] 4 SCC 451 on which Mr. Rajinder Sachhar has placed
strong reliance, Chandrachud, J as he then was, while disapproving F
the quashing of a First Information Report at premature stage has
expressed his view as follows:
"It surprises us in the extreme that the High Court thought
that in the exercise of its inherent powers under Section 482
of the Code of Criminal Procedure, it could quash a First G
Information Report. The Police had not even commenced
investigation into the complaint filed by the Warden of the
University and no proceeding at all was pending in any
Comt in pursuance of the F.I.R. It ought to be realised that
inherent powers do not confer an arbitrary jurisdiction on
H
he High Court to act according to whim or caprice. That
302 SUPREME COURT REPORTS [1990] Supp. 3 S.C.R.
statutory power has to be exercised sparingly, with cir-
A • ~umspection and in the rarest of rare cases."
The Supreme Court in State of Bihar and Another v. J.A.C.
Saldanha and Others (supra) examined the question whether, when
the investigation was in progress, the High Court was justified in
B interfering with the investigation and prohibiting or precluding further
investigation in exercise of its extraordinary jurisdiction under Article
226 of the Constitution. On the facts of that case, this Court set aside
the order of the High Court quashing the order of the Magistrate in
postponing the consideration of the report submitted to him till the
final report of completion of further investigation, directed by the
State Government was submitted to him and held that the High Court
c in exercise of its extraordinary jurisdiction committed a grave error in
giving the direction virtually amounting to mandamus to close the case
before the investigation was complete.
See also Municipal Corporation of Delhi v. Purshotam Dass
D JhunjunwalaandOthers, [1983) 1SCC9.
The classic exposition of the law is found in State of West Bengal
& Ors. v. Swapan Kumar Guha & Ors., (cited above). In this case,
Chandrachud, CJ in his concurring separate judgment has stated that
"if the FIR does not disclose the commission of a cognizable offence,
H the Court would be justified in quashing the investigation on the basis
of the information as laid or received". Justice A.N. Sen who wrote
the main judgment in that case with which Chandrachud, CJ and
Varadara jan, J. agreed has laid the legal proposition as follows:
" ............. the legal position is well-settled. The legal
F position appears to be that if an offence is disclosed, the
Conrt will not normally interfere with an investigation into
the case and will permit investigation into the offence
alleged to be completed; if, however, the materials do not
disclose an offence, no investigation should normally be
permitted ............................. .
0
Once an offence is disclosed, an investigation into the
offence mnst necessarily follow in the interests of justice.
If, however, no offence is diclosed, an investigation cannot
be permitted, as any investigation, in the absence of any
offence being disclosed, will result in unnecessary harass-
ment to a pa1iy' whose liberty and property may be put to
STATE OF HARYANA v. CH. BHAJAN LAL [PANDIAN, l.] 303
jeopardy for nothing. The liberty and property of any indi- A
vidual are sacred and sacrosanct and the Court zealously
guards them and protects them. An investigation is carried
on for the purpose of gathering necessary materials for
establishing and proving an offence which is disclosed.
When an offence is disclosed,. a proper investigation in the
interests of justice becomes necessary to collect materials B
for establishing the offence, and for bringing the offender
to book. In the absence of a proper investigation in a case
where an offence is disclosed, the offender may succeed in
escaping from the consequences and the offender may go
unpunished to the detriment of the cause of justice and
the society at large. Justice requires that a person who
commits an offence has to be brought to book and must be C
punished for the same. If the Court interferes with the
proper investigation in a case where an offence has been
disclosed, the offence will go unpunished to the serious
detriment of the welfare of the society and the cause of
justice suffers. It is on the basis of this principle that the D
Court normally does not interfere with the investigation of
a case where an offence has been disclosed ............. .
,,
Whether an offence has been disclosed or not must neces-
sarily depend on the facts and circumstances of each particu- E
Jar case ............... If on a consideration of the rele-
vant materials, the Court is satisfied that an offence is dis-
closed, the Court will normally not interfere with the
investigation into the offence and will generally allow the
investigation into the offence to be completed for collecting
materials for proving the offence. F
,, But in the above case, this Court as we have pointed out earlier,
quashed the proceedings on the ground that the allegations made in
the complaint did not constitute an offence within the ambit of the
provisions of the Act under which the respondents/accused therein
were prosecuted. G
Fazal Ali, J. reiterating his earlier view in Smt. Nagawwa v.
Veeranna Shiva/ingappa Konjalgi & Ors., [1976] Supp. SCR 123 whe-
rein he has given certain category of cases in which an order of the
Magistrate issuing process against the accused can be quashed or set
aside and further stating that the same principle laid down in that H
304 SUPREME COURT REPORTS [ 1990] Supp. 3 S.C.R.
decision would apply mutatis mutandis to a criminal complaint also,
A
has explained the position of law in Pratibha Rani v. Sura} Kumar and
Another, [ 1985] 2 SCC 370 at page 395 as follows:
"It is well settled by a long course of decisions of this Court
that for the purpose of exercising its power under Section
B 482 Cr. P.C. to quash a FIR or a complaint the High Court
would have to proceed entirely on the basis of the allega-
tions made in the complaint or the documents accompany-
ing the same per se. It has no jurisdiction to examine the
correctness or otherwise of the allegations."
Speaking for the Bench, Ranganath Mishra, J as he then was in
c Madhavrao Jiwaji Rao Scindia and Others v. Sambhajirao Chandro-
jirao Angre and Others, [ 1988] 1 SCC 692 has expounded the law as
follows:
"The legal position is well settled that when a prosecution
D at the initial stage is asked to be quahed, the test to be
applied by the court is as to whether the uncontroverted
allegations as made prima facie establish the offence. It is
also, for the court to take into consideration any special
features which appear in a particular case to consider
whether it is expedient and in the interest of justice to
E permit a prosecution to continue. This is so on the basis
that the wurt cannot be utilised for any oblique purpose
and where in the opinion of the court chances of an ulti-
mate conviction is bleak and, therefore, no useful purpose
is likely to be served by allowing a criminal prosecution to
continue, the Court may while taking into consideration
F the special facts of a case also quash the proceedings even
though it may be at a preliminary stage."
Venkatachaliah, J. in State of Bihar v. Murad Ali Khan and
Others, [ 1988] 4 SCC 655 has stated that the jurisdiction under Section
482 of the Code has to be exercised sparingly and with circumspection
G and has given the working that in exercising that jurisdiction, the High
Court should not embark upon an enquiry whether the allegations in
the complaint are likely to be established by evidence or not.
See also Talab Haji Hussain v. Madhukar Purshottam Mondekar
and Another, [1958] SCR 1226; L. U. Jadhav v. Shankarrao Abasaheb
H Pawar, [1983] 4 SCC 231 at page 240 and J.P. Sharma v. Vinod Kumar
STATE OF HARYANA v. CH. BHAJAN LAL [PANDJAN, J.] . 305
Jain and Others, [1986] 3 SCC 67. A
Mr. Parasaran, according to whom the allegations in the present
case do not make out an offence, drew our attention to a recent judg-
ment of this Court in State of U.P. v. V.R.K. Srivastava and Another,
[1989] 4 SCC 59 to which one of us (S. Ratnavel Pandian, J.) was a
party. In that case, it has been ruled that if the allegations made in the B
FIR, taken on the face value and accepted in their entirety, do not
constitute an offence, the criminal proceedings instituted on the basis
of such FIR should be quashed. The principle laid down in this case
does not depart from the proposition of law consistently propounded
in a line of decisions of this Court and on the other hand it reiterates
the principle that the Court can exercise its inherent jurisdiction of
quashing a criminal proceeding only when the allegations made in the
c
FIR, do not constitute an offence and that it depends upon the facts
and circumstances of each particular case.
In the backdrop of the interpretation of the various relevant
provisions of the Code under Chapter XIV and of the principles of Jaw D
I enunciated by this Court in a series of decisions relating to the exercise
of the extra-ordinary power under Article 226 or the inherent powers
under Section 482 of the Code wh' '.; we have extracted and repro-
duced above, we give the following categories of cases by way of
illustration wherein such power could be exercised either to prevent
abuse of the process of any Court or otherwise to secure the ends of E
justice, though it may not be possible to lay down any precise, clearly
defined and sufficiently channelised and inflexible guidelines or rigid
formulae and to give an exhaustive list of myriad kinds of cases
wherein such power should be exercised.
1. Where the allegations made in the First Information Report F
or the complaint, even if they are taken at their face value and
accepted in their entirety do not prima-facie constitute any off-
ence or make out a case against the accused.
2. Where the allegations in the First Information Report and
other materials, if any, accompanying the F.l.R. do not disclose G
a cognizable offence, justifying an investigation by police officers
under Section 156( 1) of the Code except under an order of a
Magistrate within the purview of Section 155(2) of the Code.
3. Where the uncontroverted allegations made in the FIR or
complaint and the evidence collected in support of the same do H
306 SUPREME COURT REPORTS [1990] Supp. 3 S.C.R.
not disclose the commission of any offence and make out a case
A against the accused.
4. Where, the allegations in the F.I.R. do not constitute a
cognizable offence but constitute only a non-cognizable offence,
no investigation is permitted by a police officer without an order
B of a Magistrate as contemplated under Section 155(2) of the
Code.
5. Where the allegations made in the FIR or complaint are so
absurd and inherently improbable on the basis of which no
prudent person can ever reach a just conclusion that there is
sufficient ground for proceeding against the accused.
c
6. Where there is an express legal bar engrafted in any of the
provisions of the Code or the concerned Act (under which a .
criminal proceeding is instituted) to the institution and conti- \
nuance of the proceedings and/or where there is a specific provi- ·
D sion in the Code or the concerned Act, providing efficacious
redress for the grievance of the aggrieved party.
7. Where a criminal proceeding is manifestly attended with ma/a
fide and/or where the proceeding is maliciously instituted with an
ulterior motive for wreaking vengence on the accused and with a
view to spite him due to private and personal grudge.
We also give a note of caution to the effect that the power of
quashing a criminal proceeding should be exercised very sparingly and
with circumspection and that too in the rarest of rare cases; that the
Court will not be justified in embarking upon an enquiry as to the
p reliability or genuineness or otherwise of the alleg~tions made in the
F.I.R. or the complaint and that the extraordinary or inherent powers
do not confer an arbitrary jurisdiction on the Court to act according to
its whim or caprice.
It may be true, as repeatedly pointed out by Mr. Parasaran, that
a in a given situation, false and vexatious charges of corruption and
venality may be maliciously attributed against any person holding a
high office and enjoying a respectable status thereby sullying his
character, injuring his reputation and exposing him to social ridicule
with a view to spite him on account of some personal rancour, pre-
dilections and past prejudices of the complaint. In such a piquant
H situation, the question is what would be the remedy that would redress
STATE OF HARYANA v. CH. BHAJAN LAL [PANDIAN, J.] 307
the grievance of the verily affected party? The answer would be that
A
the person who dishonestly makes such false allegations is liable to be
proceeded against under the relevant provisions of the Indian Penal
. Code-namely under Sections 182 or 211 or 500 besides becoming
Jiabk to be sued for damages.
Reverting to the present case, the allegations made in the comp- B
laint, in our considered opinion, do clearly constitute a cognizable
offence justifying the registration of a case and an investigation
thereon and this case does not fall under any one of the categories of
cases formulated above calling for the exercise of extraordinary or
inherent powers of the High Court to quash the F.l.R. itself.
It was then urged by Mr. Parasaran with a considerable force c
and insistence that the entire proceedings against Ch. Bhajan Lal on
account of the acrimonious political rivalary is vitiated either on being
tainted with a mala fides or due to lack of bona fide and, therefore, the
judgment impugned quashing the entire proceedings should not be
interfered with. Much reliance was placed in support of the above D
submission on three decisions, namely S. Pratap Singh v. The State of
Punjab, [1964] 4 SCR 733; State of Haryana v. Rajindra Sareen, [1972]
2 SCR 452 and Express Newspapers Pvt. Ltd. & Others v. Union of
India & Ors., [1985] Supp. 3 SCR~82.
We went through the entire materials very scrupulously but we E
are not persuaded to hold that the allegations of mala [ides or lack of
bona fide are substantiated and hence the decisions cited in this behalf
cannot be availed of. It may not be out of place to mention here that
when the third respondent, Ch. Devi Lal in the SLP was given up from
the array of parties by the appellant, no objection was raised on behalf
of Ch. Bhajan Lal. In fact, the learned Judge of the High Court before F
whom a similar contention was raised has rightly negatived that con-
tention and held that the plea of ma/a fide as against Ch. Devi Lal is
not available. Hence there is no merit in this contention.
No doubt, there was no love lost between Ch. Bhajan Lai and
Dharam Pal. Based on this strained relationship, it has been then G'
emphatically urged by Mr. K. Parasaran that the entire allegations
made in the complaint due to political vendetta are not only scurrilous
and scandalous but also tainted with mala [ides, vitiating the entire
proceedings. As it has been repeatedly pointed out earlier the entire
matter is only at a premature stage and the investigation is not yet
proceeded with except some preliminary effort taken on the date of f!
-·
308 SUPREME COURT REPORTS (1990] Supp. 3 S.C.R.
the registration of the case, that is on 21.11.1987. The evidence has to
A
be gathered after a thorough investigation and placed before the Court
on the basis of which alone the Court can come to a conclusion one
way or the other on the plea of malafides. If the allegations are bereft
of truth and made maliciously, we are sure, the investigation will say
so. At this stage, when there are only allegations and recriminations
B but no evidence, this Court cannot anticipate the result of the investi-
gation and render a finding on the question of ma/a fides on the mate-
rials at present available. Therefore, we are unable to see any force in
the contention that the complaint should be thrown overboard on the
mere unsubstantiated plea of ma/a fules. Even assuming that Dharam
Pal has laid the complaint only on account of his personal animosity,
that, by itself, will not be a ground to discard the complaint containing
c serious allegations which have to be tested and weighed after the evi-
dence is collected. In this connection, the following view expressed by
Bhagwati, CJ in Sheonandan Paswan v. State of Bihar and Others,
[ 1987] 1 sec 288 at page 319 may be referred to.
D "It is a well established proposition of law that a criminal
prosecution, if otherwise, justifiable and based upon ade-
quate evidence does not become vitiated on account of
mala ft.des or political vendetta of the first informant or the
complainant."
E Beyond the above, we do not wish to add anything more.
It was again contended that ma/a fides are writ large on the
extra-ordinary interest evinced by the police officers and the hasty
direction given by the S.P. Needless to say that the question of ma/a
fide exercise of power will assume significance only if an authority acts
F for unauthorised purpose. The proper test to be applied in such a case
is as to what is the dominant purpose for which the power is exercised.
The principle of dominant purpose is explained in the following
decisions:
The King v. Minister of Health, [1929] l K.B. 619; Rex v. Brigh-
G ton Corporation ex-parte Shoosmith, 96 L.T. 762; Earl Fitzwilliam's
Wentworth Estate Co. Ltd. v. Minister of Town and Country Planning,
(1951] 2 K.B. 284 and P. V. Jagannath Rao & Ors. v. State ofOrissa &
Ors., (1968] 3 SCR 789.
Applying the test, laid down in the above decisions to the present
H case, we are of the opinion that the dominant purpose of registration
STAIB OE HARYANA i<, CH. BHAJAN LAL !PANDIAN, J.] 309
of the case and the intended follow up action are only to investiga.te
A
the allegations and present a case before the Court, if sufficient
evidence in support of those allegations are collected but not to make a
character assassination of Ch. Bhajan Lal and their relatives. There-
fore, we are not able to see any substance in this submission.
We have, so far, made a detailed and searching analysis on the
legal issues with .regard to the statutory duty of an Officer Incharge of
a police station in registering the First Information Report and com-
mencing the investigation thereon as well the principles relating to the
exercise of extra-ordinary and inherent powers of the High Court in
quashing either the FIR or the entire criminal proceedings as the case
may be; and bearing in mind the enunciation of law, we have given our
anxious consideration and careful th9ught to all the contentions made c
by all the learned counsel with considerable force and emphasis. The
resultant and inescapable logical conclusion which we unreservedly
arrive at is that the order of the High Court quashing the First Infor-
mation Report, viewed from any angle, cannot be sustained both on
the question of law and facts. Consequently, we set aside that part of the D
judgment of the High Court quashing the First Information Report.
Lastly, a fervent, but inexorable plea was made requesting this
Co.urt to take judicial notice of the fact that the Justice Jaswant Singh
Commission, appointed to enquire into the allegations of dispropor-
tionate assets of Ch. Bhajan Lal through corrupt means found that E
these allegations were baseless. Both Ch. Devi Lal and Dharam Pal in
their affidavits filed before the High Court have stated that the allega-
tions in the FIR are quite different from those which was the subject
matter of enquiry before the Justice Jaswant Commission. Be that as it
may, we are not inclined to give any finding one way or other merely
on the report of the Justice Jaswant Singh Commission by taking judi- F
cial notice of the same.
During the course of the hearing of this appeal as we have
entertained a doubt as to the validity of the statutory power of the
Inspector of Police, the third appellant herein who is not a designated
officer to investigate this case registered under Section 5(2) of the Act G
(presumably Section 5(1)(e) read with Section 5(2) and under Sections
161 and 165 IPC in the teeth of the mandatory provisions of Section 5A
and in the light of the observations of this Court made in H.N. Rishbud
and Inder Singh v. The State of Delhi, [1955] 1 SCR 1150 and The State
of Madhya Pradesh v. Mubarak Ali, [1959] Supp. 2 SCR 201, all the
learned counsel addressed their arguments on this ~oint at the instance H
310 SUPREME COURT REPORTS [1990] Supp. 3 S.C.R.
of this Court. Though initially, it was submitted on behalf of the State
A
(the first appellant herein) that the order of the S.P. dated 2 l.11.1987
directing the Inspector to investigatt the case would fall within the
purview of the provisos to Section 5A, subsequently two Government
orders issued by the Government of Haryana-one dated 26.7.1975
authorising all the Inspectors of Police under the administrative
B control of the Inspector General of Police, Haryana, to investigate
offences under Section 5 of the Act and another dated 19th April 1988
authorising all the Inspectors of Police posted in the Chief Minister's
Flying Squad, Haryana, Chandigarh for the purpose of the first pro-
viso to Sec. 5A(l) of the Act. It is pertinent to note that both the
government orders were issued in exercise of the powers, conferred by
the first provisos to sub-section ( 1) of Section 5(A) of the Act.
c
Section 5A( 1) of the Act with the relevant provisos reads thus:
"Notwithstanding anything contained in the Code of Cri-
minal Procedure, 1898 (5 of 1898, no police officer below
D the rank,-
(a) in the case of the Delhi Special Police Establishment,
of an Inspector of Police;
(b) in the presidency-towns of Calcutta and Madras, of an
E Assistant Commissioner of Police;
(c) in the presidency town of Bombay of a Superintendent
of Police; and
(d) elsewhere, of a Deputy Superintendent of Police,
F
shall investigate any offence punishable under Section 161,
Section 165 or Section 165A of the Indian Penal Code (45
of 1860) or under Section 5 of this Act without the order of
a Presidency Magistrate or a Magistrate of the first class, as
the case may be, or make any arrest therefor without a
G warrant:
Provided that if a police officer not below the rank of an
Inspector of Police is authorised by the State Government
in this behalf by general or special order, he may also
investigate any such offence without the order of a Presi-
H dency Magistrate or a Magistrate of the first class, as the
STATE OF HARYANA v. CH. BHAJAN LAL IPANDIAN, J.] 311
case may be, or make arrest therefor without a warrant:
A
Provided further that an offence referred to in clause (e) of
sub-section (1) of Section 5 shall not be investigated with-
out the order of a police officer not below the rank of a
Superintendent of Police."
B
Section 5A of the Act as it originally stood, was inserted by the
(Second Amendment) Act 59 of 1952 based on the recommendations
of the Committee of Members of Parliament under the chairmanship
of Dr. Bakshi Tek Chand. The said section as it stands now was sub-
stituted by Act 40 of 1964, the main object of which is to protect the
public servant against harassment and victimisation. (See The State of
· M.P. v. Mubarak Ali (albeit). In A.C. Sharma v. Delhi Administra- c
tion, [ 1973] 3 SCR 477, Dua, J said that the scheme of this provision is
for effectively achieving the object of successful investigation into the
serious offences mentioneg in S!'ction 5 of the Act without umeason-
ably exposing the public servant concerned to frivolous and vexatious
proceedings. A Constitutional Bench of this Court in A.R. Antu/ay v. D
R.S. Nayak, [1984] 2 SCR 914 at page 941 has observed that "Section
SA is a safeguard against investigation .of offences by public servants,
by petty or lower rank police officer."
According to Section SA, notwithstanding anything contained in
the Code, no police officer below the rank specified in clauses (a) to E
(d) of Section 5A(l), shall investigate any offence punishable under
Sections 161, 165 or 165A of the IPC or under Section 5 of the Act
without the order of a Presidency Magistrate or a Magistrate of the
first class as the case may be or make arrest therefor without a
warrant. There are two provisos to that section. As per the first pro-
viso, if a police officer not below the rank of an Inspector of Police is F
authorised by the State Government, either by general or special
order, he may investigate any such offence without the order of a
Magistrate or make arrest therefor without a warrant. According to
the second proviso, an offence referred to in clause (e) of sub-section
( 1) of Section 5 shall not be investigated without the order of a police
officer not below the rank of a Superintendent of Police. G
It means that a police officer not below the rank of an Inspector
of Police authorised by the State Government in terms of the first
provisos can take up the investigation of an offence referred to in
clause (e) of Section 5( 1) only on a separate and independent order of
a police officer not below the rank of a Superintendent of Police. To H
312 SUPREME COURT REPORTS [1990] Supp. 3 S.C.R.
say in other words, a strict compliance of the second proviso is an
A
additional legal requirement to that of the first proviso for conferring a
valid authority on a police officer not below the rank of an Inspector of
Police to investigate an offence falling under clause (e) of Section S(l)
of the Act. This is clearly spelt out from the expression "further pro-
vided" occurring in the second proviso.
B
A conjoint reading of the main provision, SA(!) and the two
provisos thereto, shows that the investigation by the designated police
officers is the rule and the investigation by an officer of a lower rank is
an exception.
c SA ofItthe
has been ruled by this Court in several decisions that Section
Act is mandatory and not directory and the investigation
conducted in violation thereof bears the stamp of illegality but that
illegality committed in the course of an investigation does not affect
the competence and the jurisdiction of the Court for trial and where
the cognizance of the case has in fact been taken and the case is
D proceeded to termination the validity of the proceedings with the pre-
ceding investigation does not vitiate the result unless miscarriage of
justice has been caused thereby. See H.N. Rishbud and Inder Singh v.
The State of Delhi, (supra); Major E.G. Barsay v. The State of
Bombay, [ 1962] 2 SCR 19S; Munna Lal v. State of Uttar Pradesh,
(1964] 3 SCR 88; S.N. Bose v. State of Bihar, [1968] 3 SCR S63; Muni
E Lal v. Delhi Administration, [1971] 2 SCC 48 and Khandu Sonu Dhabi
& Another v. State of Maharashtra, [1972] 3 SCR S!O. However, in
Rishbud's case and Muni Lat's case it has been ruled that if any breach
of the said mandatory provision relating to investigation is brought to
the notice of the Court at an early stage of the trial, the Court will have
to consider the nature and extent of the violation and pass appropriate
F orders as may be called for to rectify the illegality and cure the defects
in the investigation.
Coming to the facts of the present case under consideration. the
investigation did not proceed and could not be proceeded with, since
the High Court by an interlocutory order restrained the investigation
G even at the initial stage, i.e. on the date when Rule Nisi was issued in
the Writ Petition. Therefore, it is the appropriate stage for examina-
tion of the question as to whether the necessary requirements contem-
plated under Section SA( 1) in permitting the Inspector of Police, are
strictly complied with or not.
H For the proper understanding of the reasoning which we would
STATE OF HARYANA v. CH. BHAJAN LAL [PANDIAN, J.] 313
like to give touching the question of the validity of the authority of the
third appellant, we would like to reproduce the Government order A
dated 26th July 1975 which reads as follows:
"HARYANA GOVERNMENT
HOME DEPARTMENT
ORDER
B
No. 4816-3H-75/22965 The 26th July 1975
Conferred by the first proviso to sub-section (1) of Section
SA of the Prevention of Corruption Act, 1947, the Gover-
nor of Haryana hereby authorises all the Inspectors of
Police under the administrative control of the Inspector C
General of Police, Haryana to investigate offences under
Section 5 of the said Act.
S.D. Bhandari
Secretary to Government, Haryana
Home Department."
The subsequent Government Order dated 19.4.1988 is on the
same line of the above Government Order.
On the strength of the above Government Order of 1975, it has
been rightly contended that the third appellant (Inspector of Police), E
though not a designated officer has been legally authorised by the
State Government in exercise of its powers under the first proviso of
Section SA(l) to investigate the offences falling under Section 5 of the
Act, namely, the offences enumerated in clauses (a) to (e) of Section
5(1) of the Act.
F
Now what remains for consideration is whether there is any valid
order of the S.P. permitting the third appellant to investigate the
offence falling under clause (e) of sub-section (1) of Section 5. As we
have already mentioned in the earlier part of this judgment, the S.P.
(the second appellant) has given the one word direction on 21.11.1987
'investigate'. The question is whether the one word direction 'investi- G
gate' would amount to an 'Order' within the meaning of second pro-
viso of Section SA(l).
In H.N. Rishbud's case (supra) at page 1165 while examining the
order of a Magistrate contemplated under Section·SA(l), it has been
H
observed:
314 SUPREME COURT REPORTS (1990] Supp. 3 S.C.R.
"When a Magistrate is approached for granting such per-
A mission he is expected to satisfy himself that there are good
and sufficient reasons for authorising an officer of a lower
rank to conduct the investigation. The granting of such
permission is not to be treated by a Magistrate as a mere
matter of routine but it is an exercise of his judicial discre-
B tion having regard to the policy underlying it. In our
opinion, therefore, when such a breach is brought to the
notice of the Court at an early stage of the trial the Court
will have to consider the nature and extent of the violation
and pass appropriate orders for such re-investigation as
may be called for, wholly or partly ................. .
"
c
The above dictum has been approved in Mubarak Ali's case the
facts of which disclose that the District Magistrate before whom an
application was submitted by the Sub-Inspector seeking permission
under Section SA passed the order reading "permission granted".
D Subba Rao, J. as he then was while speaking for the Bench disap-
proved such casual order and expressed that the Magistrate did not
realise the significance of this order giving permission but only
mechanically issued the order and stated thus:
" . . . . . . . in a case where an officer rather than the
E designated officer, seeks to make an investigation, he
should get the order of a Magistrate empowering him to do
so before he proceeds to investigate and it is desirable that
the order giving the permission should ordinarily, on the
face of it, disclose the reasons for giving the permission."
F Hegde, J in S.N. Bose's case following the maxim in Mubarak
Ali's case has expressed his opinion in the following words:
"It is surprising that even after this Court pointed out the
significance of Section SA in several decisions there are still
some Magistrates and police officers who continue to act in
G a casual manner. It is obvious that they are ignorant of the
decisions of this Court."
The conspectus of the above decisions clearly that the granting of
permission under Section SA authorising an officer of lower rank to
.conduct the investigation is not to be treated by a Magistrate as a mere
H matter of routine, but it is an exercise of his judicial discretion having
STATE OF HARYANA v. CH. BHAJAN LAL [PANDIAN, J.l · 315
regard to the policy underlying and the order giving the permission
A
should, on the face of it, disclose the reasons for granting such permis-
sion. It is, therefore, clear in the light of the above principle of law that
the Superintendent of Police or any police officer of above rank while
granting permission to a non-designated police officer in exercise of his
power under-the second proviso to Section 5A(l), should satisfy him-
self that there are good and sufficient reasons to entrust the investiga-
tion with such police officer of a lower rank and record his reasons for
doing so; because the very object of the legislature in enacting Section
SA is to see that the investigation of offences punishable under Section
161, 165 or 165A of Indian Penal Code as well as those under Section 5
of the Act should be done ordinarily by the officers designated in
clauses (a) to (d) of Section 5A(l). The exception should be for
adequate reasons which should be disclosed on the face of the order. C
In this connection, it is worthy to note that the strict compliance with
Section 5A(l) becomes absolutely necessary, because Section 5A(l)
expressly prohibits police officers, below certain ranks, from investi-
gating into offonces under Sections 161, 165 and 165A, IPC and
under Section 5 of the Act without orders of Magistrates specified D
therein or without authorisation of the State Government in this
behalf and from effecting arrests for those offences without a warrant.
See also A. C. Sharma v. Delhi Administration (supra).
In the present case, there is absolutely no reason, given by the
S.P. in directing the SHO to investigate and as such the order of the E
S.P. is directly in violation of the dictum laid down by this Court in
several decisions which we have referred to above. Resultantly, we
hold that the third appellant, SHO is not clothed with the requisite
legal authority within the meaning of the second proviso of Section
5A(l) of the Act to investigate the offence under clause (e) of Section
5( 1) of the Act. F
There is also one more legal hurdle which the prosecution has to
overcome in entrusting this investigation with the SHO. As has been
repeatedly mentioned the case under consideration is not only regis-
tered under Section 5(2) but also under Section 161and165 IPC. The
Government Order authorises the Inspector General of Police of G
Haryana state to investigate only the offences falling under Section 5
of the Act. Therefore, the SHO who has taken up the investigation of
the offences inclusive of those under Section 161 and 165 IPC is not at
all clothed with any authority to investigate these two offences,
registered under the IPC, apart from the offence under Section 5(2) of
the Act. When Mr. Sachhar was confronted with this legal issue, he H
316 SUPREME COURT REPORTS [ 1990] Supp. 3 S.C.R.
tried to extricate himself from this situation saying that the prosecu-
A
tion would approach the Magistrate of the first cla.ss for obtaining an
order under Section SA( l) authorising SHO to investigate the offences
under the provisions of the !PC. However. as the question relating to
the legal authority of the SHO is raised even at this initial stage, we
feel that it would be proper and also desirable that the investigation, if
B at all to be proceeded with in the opinion of the State Government,
should proceed only on the basis of a valid order in strict compliance
with the mandatory provision of Section SA( 1).
From the above discussion, we hold that ( 1) as the salutary legal
requirement of disclosing the reasons for according the permission is
C not complied with; (2) as the prosecution is not satisfactorily explaining
the circumstances which impelled the S.P. to pass the order directing
the SHO to investigate the case: (3) as the said direction manifestly
seems to have been granted mechanically and in a very casual manner,
regardless of the principles of law enunciated by this Court, probably
due to blissful ignorance of the legal mandate and (4) as, above all, the
D SHO has got neither any order from the Magistrate to investigate the
offences under Sections 161 and 165 !PC nor any order from the S.P.
for investigation of the offence under Section 5( I)( e) of the Prevention
of Corruption Act in the manner known to Jaw. we have no other
option, save to quash that order of direction, reading "investigate"
which direction suffers from legal infirmity and also the investigation,
E if any, so far carried out. Nevertheless, our order of quashing the
direction of the S.P. and the investigation thereupon will not in any
way deter the first appellant, the State of Haryana to persue the matter
and direct an investigation afresh in pursuance of the F.l.R., the
quashing of which we have set aside, if the State so desires, through a
competent police officer, clothed with the legal authority in strict com-
p pliance with Section 5A(l) of the Act.
The learned Judges of the High Court before parting with their
conclusions not being "able to resist temptation·· of making an obser-
vation with a textual passage which is more or Jess suggestive of an
advice have expressed as follows:
G
"Besides what has been said and observed above, before
parting with this case, we have not been able to resist the
temptation of saying that every politician in Haryana may
be the Chief Minister or otherwise, should not while hold-
ing office act on the maxim, 'Everything is fair in love and
H war' but should be sanguine and careful to meet out to his
STATE OF HARYANA v. CH. BHAJAN LAL [PANDIAN, J.l 317
predecessor, a treatment in the words of Porns, uttered
A
while in chains, on being brought before Alaxander the
Great, 'a treatment which a king should meet out to
another king' because it is often said 'as you sow, so shall
you reap'."
Mr. Rajinder Sachhar and Mr. R.K. Garg submitted with strong B
intensity of conviction that the above observation of the learned
Judges should not be countenanced because if such observations, espe-
cially in the context of this case receive judicial recognition, it will lead
only to the catastrophe of our democratic system to the detriment of
the welfare of the country and if such observations are accepted then
every successor Government should bury its head like an Ostrich
thereby freely allowing the malfeasance and misfeasance of the former c
Government to go un-noticed, un-rectified and the offenders un-
punished. According to them there is absolutely no material for hold-
ing that there was any campaign of villification for political gain based
on personal animus by the successor Government as against the outgo-
ing Government, particularly when the criminal proceedings are ini- D
tiated by an individual.
To buttre~s their submission, they r.elied on the following deci-
sions dealing with similar contentions attacking the institution of cri-
minal proceedings characterising them as the outcome of political
vendetta. Those observations being P. V. Jagannath Rao & Ors. v. E
State of Orissa & Ors., [1968] 3 SCR 789; Krishna Ballabh Sahay &
Ors. v. Commissioner of Enquiry & Ors., [1969] 1 SCR 387;
Sheonandan Paswan v. State of Bihar and Others, [1983] 1 SCC 438;
Sheonandan Pawan v. State of Bihar & Ors., [1987] l SCC 288 andA.R.
Antulay v. R.S. Nayak and Another, [1988] 2 SCC 602.
F
It would be appropriate to refer to the observation made by this
Court in two of the above decisions.
In Krishna Ballabh Sahay's case at page 393, Hidayatullah, C.J.
speaking for the Constitutional Bench has pofoted out:
G
"It hardly needs any authority to state that the inquiry will
be ordered not by the Minister against himself but by some
one else. When a Ministry goes out of office, its successor
may consider any glaring charges and may, if justified,
order an inquiry. Otherwise, each Ministry will become a
law unto itself and the corrupt conduct of its Ministers will H
remain beyond scrutiny."
318 SUPREME COURT REPORTS [1990] Supp. 3 S.C.R.
In A.R. Antulay's case at page 673, Sabyasachi Mukharji, J (as
A
he then was) speaking for himself and two other learned Judges expre-
ssed his opinion on a similar issue in the following words:
" ... we must remined ourselves that purity of public life is
one of the cardinal principles which must be upheld as a
B
matter of public policy. Allegations of legal infractions and
criminal infractions must be investigated in accordance
with law and procedure established under the Constitution.
Even if he has been wronged, if he is allowed to be left in
doubt that would cause more serious damage to the appel-
lant. Public confidence in public administration should not
c be eroded any further. One wrong cannot be remedied by
another wrong."
We feel that the following observation made by Krishna Iyer, J
in St/Jte of Punjab v. Gurdial Singh, [1980] 1 SCR 1071 may be
D recapitulated in this connection, that being:
"If the use of the power is for the fulfilment of a legitimate
object the actuation or catalysation by malice is not
legicidal."
In the light of the above decisions of this Court, we feel that the
said observations made in the impugned judgment are unwarranted
and the historical anecdote is out of context and inappropriate. We are
afraid if such a view is to be judicially accepted and approved, then it
will be tantamount to laying down as alarming proposition that an
incoming Government under all circumstances, should put its seal of
F approval to all the commissions and omissions of the outgoing Govern-
ment ignoring even glaring lapses and serious misdeeds and the·
deleterious and destructive consequences that may follow therefrom.
Hence we are constrained to express our disapproval since the text,
tenor and tone of the above observations leave us with the feeling that
such misplaced sympathy indicated therein appears to have consider-
G ably weighed with the learned Judges in taking the extreme step in
quashing the First Information Report. We do not like to make any
more comment except saying that as we have pointed out in our exor-
dial note, in our democratic polity where the 'Rule of Law" regins no
one-however highly placed he may be-can claim immunity, much-
H less absolute immunity from the Law, but he is always under the Law.
STATE OF HARYANA v. CH. BHAJAN LAL IPANDIAN, J.] 319
rn ,)L..11111u1;1on. A
We set aside the judgment of the High Court quashing the First
Information Report as not being legally and factually sustainable in
law for the reasons aforementioned; but, however, we quash tlie com-
mencement as well as the entire investigation, if any, so far done for B
the reasons given by us in the instant judgment on the ground that the
third appellant (SHO) is not clothed with valid legal authority to take
up the investigation and proceed with the same within the meaning of
Section 5A(l) of the Prevention of Corruption Act as indicated in this
judgment. Further we set aside the order of the High Court awarding
costs with a direction that the said costs is payable to the first respon-
dent (Ch. Bhajan Lal) by the second respondent (Dharam Pal). C
In the result, the appeal is disposed of accordingly but at the
same time giving liberty to the State Government to direct an investi-
gation afresh, if it so desires, through a competent Police Officer
empowered with valid legal authority in strict compliance with Section D
5A( 1) of the Act as indicated supra. No order as to costs.
G.N. Appeal disposed of.
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