Criminal Revision Petiton Nos. 322 & 272 of 2008. Case: 1. S.S. Ahluwalia, 2. Inderjit Singh Vs CBI. High Court of Delhi (India)
| Case Number | Criminal Revision Petiton Nos. 322 & 272 of 2008 |
| Counsel | For Appellant: Mr. Sudhir Nandrajog, Sr. Advocate with Mr. Anurag Ahluwalia, Advocate, Mr. Sidhartha Luthra, Sr. Advocate withMr. Anurag Ahluwalia, Advocate and For Respondent: Mr. Vikas Pahwa, Standing Counsel. Mr. Harish Gulati and Mr. Anindya Malhotra, Advocate |
| Judges | Sanjiv Khanna, J. |
| Issue | Indian Penal Code, 1860 - Sections 120(B), 419, 420, 467, 468, 471; Prevention of Corruption Act, 1947 - Sections 5(1)(e), 5(2); Delhi Special Police Establishment Act, 1946 - Section 6; Code of Criminal Procedure, 1973 - Section 173, 537; General Clauses Act - Section 2 (h), 21 |
| Judgement Date | September 29, 2010 |
| Court | High Court of Delhi (India) |
Judgment:
Sanjiv Khanna, J.
1. These two revision petitions by S.S. Ahluwalia and his brother Inderjit Singh are directed against the order on the point of charge dated 23rd February, 2008 passed by the Special Judge, Central Bureau of Investigation (CBI, for short). It has been held in the impugned order that a case is made out for framing of charges against the two petitioners under Section 120-B of the Indian Penal Code, 1860 (hereinafter referred to as IPC) read with Sections 419, 420, 467, 468 and 471 IPC read with Sections 5(1)(e) and 5(2) of Prevention of Corruption Act, 1947 (hereinafter referred to as PC Act for short). Substantive charges against S.S. Ahluwalia have also been framed under Sections 419, 420, 467, 468, 471 IPC as well as under Sections 5(1)(e) read with Section 5(2) of the PC Act.
2. The allegation is that during the check period 1st July, 1969 to 28th March, 1987, S.S. Ahluwalia, an officer of Indian Administrative Services, while working in Kohima/Nagaland and Delhi, had acquired assets worth Rs.67,96,601/- disproportionate to his known sources of income. It is also alleged against S.S. Ahluwalia that he had entered into a criminal conspiracy with Inderjit Singh, V. Bhaskaran (approver) and Nyamo Lotha (who has expired), at Kohima and Delhi and in furtherance of criminal conspiracy had committed several acts. Some of these acts have been discussed separately, while dealing with the petition of Inderjit Singh.
3. On behalf of S.S. Ahluwalia, it was submitted that the State of Nagaland by their letter dated 6th November, 1990 had withdrawn their general/open consent under Section 6 of the Delhi Special Police Establishment Act, 1946 (DSPE Act for short) and, therefore, charges should not have been framed in respect of the alleged acts/offences relating to the State of Nagaland. Reference was made to the decision dated 1st February, 1991 in C.W.No. 1844/1998, filed by the petitioner S.S. Ahluwalia, which is reported in 1991 Crl.L.J. 2583. It was submitted that this decision operates as res judicata. Relying on the decision of the Supreme Court in H.N. Rishbud and Another Vs. State of Delhi AIR 1955 SC 196, learned counsel for the petitioner S.S. Ahluwalia, had submitted that ''investigation'' includes formation of opinion by the police/prosecution as to whether on the material collected, there is a case to place the accused before a Magistrate for trial by filing charge sheet under Section 173 of the Code of Criminal Procedure, 1973 (Code for short). Reference was made to Section 2(h) of the Code, which defines investigation, and observations in paragraph 5 of the judgment of the Supreme Court in H.N. Rishbud (supra), which read:-
.....Thus, under the Code investigation consists generally of the following steps: (1) Proceeding to the spot, (2) Ascertainment of the facts and circumstances of the case, (3) Discovery and arrest of the suspected offender, (4) Collection of evidence relating to the commission of the offence which may consist of (a) the examination of various persons (including the accused) and the reduction of their statements into writing, if the officer thinks fit, (b) the search of places or seizure of things considered necessary for the investigation and to be produced at the trial, and (5) Formation of the opinion as to whether on the material collected there is a case to place the accused before a Magistrate for trial and if so taking the necessary steps for the same by the filing of a charge-sheet under Section 173...
Accordingly, on the basis of the charge sheet which was filed on 10th April, 1992, it is urged that charges cannot be framed for acts/omissions relating to the State of Nagaland after the letter dated 6th November, 1990.
4. S.S. Ahluwalia was inducted into IAS in 1969 and was allocated the State of Nagaland. During the check period 1st July, 1969 to 28th March, 1987, he had worked in the State of Nagaland and at Delhi. On 4th December, 1986, Chief Minister of the State of Nagaland wrote a letter to the Union Home Minister regarding questionable conduct of S.S. Ahluwalia relating to extortion of businessmen, involvement in shoddy gunny bags transaction, his conduct as a Director of State Lotteries, etc. It was alleged that the petitioner S.S. Ahluwalia had acquired assets, which were disproportionate to his known sources of income including immovable properties in Delhi and outside Nagaland. The Government of Nagaland had stated that they do not have proper machinery to conduct investigation into all ramifications of the case and a comprehensive inquiry by reputed agency like CBI was necessary.
5. The State of Nagaland has given general consent for conduct of investigation under DSPE Act vide their letter dated 8th November, 1967. On 24th March, 1987, an FIR was registered by the CBI against the petitioner S. S. Ahluwalia on information received from a reliable source that he was indulging in corrupt activities and mal-practices and had amassed assets disproportionate to his known sources of income. S.S. Ahluwalia does not question and challenge the registration of this FIR in view of the general consent dated 8th November, 1967. It is submitted that this general consent in relation to the petitioner S. S. Ahluwalia was withdrawn on 23rd November, 1989. It is accepted that by another order dated 9th May, 1990, the general consent in relation to S.S. Ahluwalia was restored. Subsequently, the Government of Nagaland issued another order dated 6th November, 1990 stating that the order dated 23rd November, 1989 withdrawing the consent was valid and by the order dated 6th November, 1990, the order dated 9th May, 1990 was cancelled. It is, thus, the contention of S.S. Ahluwalia that the consent for investigation by CBI was specifically withdrawn in his case and, therefore, the charge sheet for offences relating to the State of Nagaland has to fail.
6. S.S. Ahluwalia had raised similar contentions before the Court in C.W.No. 1844/1998, which was decided on 1st February, 1991. Paragraphs 6, 9 to 11 and 30 of the decision dated 1st February, 1991 read as follow;-
"6. Shri Satpal, learned counsel for respondents 1 to 3, on the other hand, submitted that......So, the FIR correlate with the offence u/S. 5(1)(e). He also submitted that the FIR is under investigation which is now almost complete and the CBI is ready to file a charge-sheet. It was urged that it is not a fit case for exercise of extraordinary power of this court for preventing the CBI to investigate the offence and for quashing the FIR. He submitted that there are good grounds for charging the petitioner of the said offence.
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9. It would appear from the provisions contained in S. 5 that the Central Government may by order extend the powers and jurisdiction to members of DSPE to any area for the investigation of any offences or classes of offences specified in a notification u/S. 3. While exercising that power the members of the DSPE would be deemed to be members of the police force of that area and be vested with the powers, functions and privileges and would be subject to the liabilities of a police officer belonging to the police force of that area, i.e. the members of the DSPE will discharge the functions of the police officer of that area. Further the members of the D.S.P.E. of or above the rank of Sub Inspector shall be deemed to be in charge of the police station discharging the functions of such an officer within the limits of his police station. So, for all purposes, the members of DSPE would be police officers of that particular area, exercising all powers, functions and privileges and subject to all liabilities of a police officer of that area. S. 6 is an overriding provision. It begins with a non obstante clause. It overrides the provisions of S. 5. According to this provision, the powers would not be exercisable by any member of the DSPE unless the Government of the State gives its consent. By virtue of S. 5, any member of DSPE would not be able to exercise power and jurisdiction in any area in a State, without the consent of the Government of that State. This consent of a State is a pre-condition for exercise of powers and jurisdiction in that area of the State by any member of the Delhi Special Police Establishment. Thus, it would appear that consent of the State of Nagaland is necessary for investigating the offence u/S.5(1)(e) in respect of the aforesaid FIR relating to the offences in the State of Nagaland.
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