V. Lakshmi v. The Government of Tamil Nadu

For Petitioner:R.Thiagarajan, Sr.Counselin WP:15646/2010for M/s.R.KarthikeyanFor Petitioner :Mr.Sriram Panchu, Sr.Counselin WP:24824/2010for M/s.M.Suresh KumarFor Respondents:Mr.N.Senthil Kumar1 to 4 in both WPs.Additional Government PleaderFor 5th respondent :Mr.N.Chandrasekaranin both WPs.Special Government Pleader (CBI)ORDERThese writ petitions are filed by the petitioners challengingthe government order in G.O.Ms.No.593, Home (Pol.VII) Department,dated 25.6.2010. By the impugned government order, the Governmenthas decided to transfer the case registered against the petitionersat Chromepet Police Station to the Central Bureau of Investigationand to accord consent to Central Bureau of Investigation underSection 6 of the Delhi Special Police Establishment Act, 1946 toenable the Government of India to extend jurisdiction of DelhiSpecial Police Establishment (CBI) to investigate the said caseagainst the petitioners, who are Deputy Warden (Ladies Hostel) andMaintenance Supervisor respectively of Sri Balaji Medical Collegeand Hospital, Chromepet, Chennai, a constituent of Bharath Instituteof Higher Education and Research, Chennai, a Deemed University.2.1.The petitioners are employed as Deputy Warden (LadiesHostel) and Maintenance Supervisor of Sri Balaji Medical College andHospital. The employer of the petitioners, viz., the Management,has lodged a criminal complaint with the fourth respondent(Inspector of Police, Chromepet Police Station) alleging that thepetitioners have induced a student promising admission in thecollege and attempted to receive huge amounts. The complaint of thede facto complainant was taken on file and a case was registered inCrime No.290 of 2009 against the petitioners for an offencepunishable under Section 420 read with Section 511 of the IndianPenal Code. The petitioners obtained anticipatory bail and arecomplying with the condition imposed therein by reporting to thefourth respondent and are co-operating with the fourth respondentfor investigation. It is stated that the management has initiateddisciplinary proceedings and the petitioners were dismissed fromservice.2.2. It is stated that the petitioner in W.P.No.15646 of 2010had filed Criminal Original Petition in Crl.O.P.No.11282 of 2010 for https://hcservices.ecourts.gov.in/hcservices/ quashing the first information report and that came to be dismissedby this Court, by order dated 13.5.2010, with a direction to thefourth respondent to file final report within a period of fourweeks. It is stated that the fourth respondent has completedinvestigation and a report was filed before the Judicial Magistrate,Tambaram and the same was taken on file as C.C.No.528 of 2010 andsummons have been issued for appearance of the petitioners(accused).2.3. It is stated that in the meantime, the impugned governmentorder came to be issued by the first respondent transferring thecase to Central Bureau of Investigation for investigation, observingas if the investigation is still pending with the fourth respondent.It is also stated that the criminal court has completed trial andconvicted the petitioners in the judgment dated 13.8.2010.Therefore, the impugned order is challenged on various grounds,including(i) that the same has been passed with total nonapplication of mind, with mala fide intention andarbitrarily;(ii) that as per the provisions of the Delhi SpecialPolice Establishment Act, 1946, the CentralGovernment's power to extend to any area in a State,not being a Union Territory, the powers andjurisdiction of members of the Delhi Special PoliceEstablishment itself is for investigation of offencesand in the facts of the present case, investigationhas already been completed, final report was filedbefore the competent criminal court, summons wereissued to the parties for hearing on 6.8.2010 by theJudicial Magistrate, Tambaram and in spite of it theimpugned order has been passed without taking note ofthese crucial facts;(iii) that such transfer of investigation under theprovisions of the Delhi Special Police EstablishmentAct, 1946 is possible only in cases where final reporthas not been filed and investigation was pending andeven in such cases, transfer should be for a properreason;(iv) that the impugned government order would amount tore-investigation of a case which has already ended inconviction and it is intended to drag on the issue andthe same is without jurisdiction and unwarranted;(v) that as per the pronouncement of the Supreme Court,at any stage of investigation, a case can betransferred under the Delhi Special PoliceEstablishment Act, 1946 only by an order of the Courtand such power is not conferred on the executive https://hcservices.ecourts.gov.in/hcservices/ authorities;(vi) that even as per the impugned order, it is not asif the fourth respondent has not conductedinvestigation properly, but the consent has been givenby the Government blindly stating as if the case isstill pending investigation on the file of the fourthrespondent, when, on fact, the final report has alreadybeen filed before the criminal court, and that isagainst the mandate of the Supreme Court; and(vii) that there is no necessity or specialcircumstance warranting transfer of investigation.3.1. In the counter affidavit filed by the fourth respondent,it is stated that on 4.6.2009, the Dean, Sree Balaji Medical Collegeand Hospital, Chromepet appeared before the Assistant Commissionerof Police, Tambaram and gave a complaint that the petitioners, whoare employees of Sree Balaji Medical College and Hospital, havedemanded money from a student/parent promising to get admission intothe Medical College. It is stated that the complainant learnt aboutthe same through newspaper report and based on that complaint wasgiven.3.2. On receipt of the complaint, the Assistant Commissioner ofPolice has forward it to the fourth respondent on the same day,viz., on 4.6.2009. The fourth respondent has obtained legal opinionand a case was registered under Section 420 read with Section 511 ofthe Indian Penal Code in Crime No.290 of 2009 on 23.6.2009 againstthe petitioners. It is during the course of investigation, thepetitioners have obtained anticipatory bail from this Court in theorder dated 5.10.2009 in Crl.O.P.No.21190 of 2009.3.3. It is stated that when investigation was in progress, thepetitioner in W.P.No.15646 of 2010 has filed a petition underSection 482 of the Code of Criminal Procedure, 1973 before thisCourt in Crl.O.P.No.11282 of 2010 to quash the first informationreport and this Court by order dated 13.5.2010, even though was notinclined to accept the same, directed the fourth respondent to filefinal report within four weeks from 13.5.2010. In compliance of theorder of this Court, after completing the investigation, the fourthrespondent filed a final report before the Judicial Magistrate,Tambaram on 6.6.2010. The final report was taken on file by thelearned Judicial Magistrate, Tambaram and the case was numbered asC.C.No.528 of 2010 on 7.6.2010 and summons were issued to theaccused persons on 8.7.2010 to appear on 6.8.2010. On 13.8.2010,the petitioners pleaded guilty and the trial Court has convictedthem.3.4. It is stated that the Inspector General of Police, CentralBureau of Investigation, in the letter dated 16.3.2010 addressed to https://hcservices.ecourts.gov.in/hcservices/ the Government, requested the Government to accord consent for thetransfer of the case in Crime No.290 of 2009 on the file of theChromepet Police Station to the Central Bureau of Investigation fortheir investigation. Thereafter, the Government has addressed tothe Director General of Police, Tamil Nadu for certain particulars,which were sent to the Government on 22.4.2010, wherein it wasmentioned that Crime No.290 of 2009 was pending investigation.However, in the meantime, after investigation, a final report wasfiled on 6.6.2010 before the Judicial Magistrate, Tambaram, incompliance of the order of this Court. 3.5. It is stated that pursuant to the communication of theDirector General of Police to the Government, after examination ofmaterials, the Government passed the impugned order on 25.6.2010according consent to the Central Bureau of Investigation underSection 6 of the Delhi Special Police Establishment Act, 1946 toenable the Central Bureau of Investigation to investigate the caseand therefore, it cannot be said that the impugned order has beenpassed with non application of mind or the order is withoutjurisdiction of the Government. 3.6. While denying that the impugned government order isarbitrary or illegal, it is stated that it is the prerogative powerof the State to give consent for the purpose of investigation to theCentral Bureau of Investigation. The Director General of Police hasstated in the report dated 22.4.2010 that investigation was pendingbefore the police on the said date and it was only based on that theGovernment has passed the impugned order. It is also stated thatthe Government has never stated that pending investigation, the caseis transferred to Central Bureau of Investigation, but it has onlyaccorded consent to enable the Government of India to extend thejurisdiction of Central Bureau of Investigation to investigate thecase.3.7. It is stated that the Delhi Special Police EstablishmentAct, 1946 has never prohibited the State Government to accordconsent in a case pending trial and it is not as if the transfer tothe Central Bureau of Investigation can be effected only duringinvestigation stage and therefore, it is not correct to state thatonce investigation is completed, final report is filed and thesame has been taken on file by the competent criminal court andsummons are issued, the State Government loses the jurisdiction torefer the case to Central Bureau of Investigation in exercise of thepowers conferred under Sections 5 and 6 of the Delhi Special PoliceEstablishment Act, 1946. It is also denied that the executiveauthorities have no power to transfer investigation to the CentralBureau of Investigation under the Delhi Special Police EstablishmentAct, 1946 and that it cannot be said that it is always the power ofthe Court to transfer cases to Central Bureau of Investigation. https://hcservices.ecourts.gov.in/hcservices/

4.1. In the counter affidavit of the fifth respondent, it isstated that it is on the allegation of capitation fees collectionthe charges were levelled and investigation was conducted and it wasserious in nature.4.2. It is stated that the enquiry by the Central Bureau ofInvestigation revealed a prima facie case against the petitionersunder Section 120-B of the Indian Penal Code and Sections 7 and 15read with Section 13(1)(d) of the Prevention of Corruption Act,1988. 4.3. It is stated that the State Government has alreadyaccorded consent for registration and investigation of a criminalcase by the Central Bureau of Investigationin a similar caseagainst one A.Subramanian, Deputy Registrar of Sri RamachandraMedical College, which is also a Deemed University, videG.O.Ms.No.225, dated 25.2.2010 under Section 6 of the Delhi SpecialPolice Establishment Act, 1946 and pursuant to the same,investigation was conducted. 4.4. It is stated that since the present case is also similarto the case already transferred to the Central Bureau ofInvestigation, the Central Bureau of Investigation has sought theState Government to give consent and thereafter, the Government hasgranted consent under the impugned government order dated 25.6.2010,extending the power and jurisdiction of the members of the DelhiSpecial Police Establishment in the whole of the State of Tamil Naduto investigate the case in Chromepet Police Station Crime No.290 of2009 under Section 420 read with Section 511 of the Indian PenalCode and the consent given by the Government is constitutional andlegal. It is stated that the government order is well within theambit and power of the State Government and it is the statutoryright of the State Government to direct investigation by the CentralBureau of Investigation and the judgment of the Supreme Courtreferred to by the petitioners are not applicable.4.5. It is stated that the Central Bureau of Investigation hasconducted a detailed enquiry and found that the petitioners havedemanded capitation fee from a student, which amounts to demand ofillegal gratification and therefore, the offence is deemed to be anoffence committed by a public servant within the meaning of Section2(c) of the Prevent of Corruption Act, 1988.5. It is the contention of Mr.R.Thiagarajan and Mr.SriramPanchu, learned Senior Counsel appearing for the petitioners thatpost investigation, when the matter is pending with the Court, thesame can be referred to the Central Bureau of Investigation only bythe Court and that cannot be done by the executive authorities and https://hcservices.ecourts.gov.in/hcservices/ therefore, the impugned government order has been passed withoutjurisdiction and transgressing its limitation. In support of thesaid contention, they relied upon the judgment of the Supreme Courtin Rubabbuddin Sheikh v. State of Gujarat and others, [2010] 2 SCC200.6. The learned Senior Counsel would submit that the stand takenby the fifth respondent as if the petitioners are public servants isbasically incorrect, as they are in the private employment of theprivate management. To substantiate the contention,Mr.R.Thiagarajan, learned Senior Counsel would rely upon thejudgment of the Supreme Court in State of West Bengal v. ManmalBhutoria and others, [1977] 3 SCC 440.7. It is the contention of Mr.R.Thiagarajan, learned SeniorCounsel that in spite of the fact that investigation has beencompleted and judgment has been pronounced, the Government haspassed order stating investigation is pending and this only showsthe total non application of mind on the part of the Government. Hewould rely upon the judgments in Rubabbuddin Sheikh v. State ofGujarat and others, [2010] 2 SCC 200, Rajiv Ranjan Singh 'Lalan'(VIII) v. Union of India and others, [2006] 6 SCC 613 and M.C.Mehtav. Union of India and others, [2008] 1 SCC 407.8. It is the contention of the learned Additional GovernmentPleader appearing for respondents 1 to 4 that even after theconviction, it is always open to the Government to file an appeal orrevision and it cannot be said to be a case of non application ofmind. He would submit that the judgment relied upon by the learnedSenior Counsel in Rubabbuddin Sheikh case, supra, has noapplication to the facts of the case.9. Mr.N.Chandrasekaran, learned Special Government Pleaderappearing for the fifth respondent also would submit that thepetitioners can be termed as public servants considering the natureof allegation made against them, which is serious in nature.10. On the factual matrix, it is not in dispute that on thecomplaint lodged by the employer of the petitioners, firstinformation report was registered by the fourth respondent as CrimeNo.290 of 2009 and thereafter, he has conducted investigation andfiled final report before the Judicial Magistrate, Tambaram, whereinthe case was taken on file as C.C.No.528 of 2010 and summons wereissued to the accused, posting the case on 6.8.2010. Therefore, ineffect, it is not in dispute that by the time the impugnedgovernment order came to be passed on 25.6.2010, the investigationby the fourth respondent in respect of the complaint given againstthe petitioners was completed and it is also not in dispute that https://hcservices.ecourts.gov.in/hcservices/ ultimately the case has ended in conviction by the judgment dated13.8.2010.11. At the time when the government order came to be passed,the final report was already laid before the Judicial Magistrate,Tambaram and the judicial authority was seized of the matter and thetrial was pending. It is also admitted that it was during that timethe Government, being the executive authority, has passed the orderby referring the matter to the Central Bureau of Investigation byaccording consent by virtue of Section 6 of the Delhi Special PoliceEstablishment Act, 1946. The impugned government order shows thatby virtue of the power conferred under Section 6 of the DelhiSpecial Police Establishment Act, 1946, the State Government hasgiven consent to extend the power and jurisdiction of the members ofthe Delhi Special Police Establishment in the State of Tamil Nadu toinvestigate the case in Chromepet Police Station Crime No.290 of2009 for the offences punishable under Section 420 read with Section511 of the Indian Penal Code.12. Section 2 of the Delhi Special Police Establishment Act,1946 provides for constitution of special police force to be calledDelhi Special Police Establishment for investigation in the UnionTerritories of offences notified under Section 3 of Delhi SpecialPolice Establishment Act, 1946, and by virtue of Section 5 of theDelhi Special Police Establishment Act, 1946 the power andjurisdiction of the members of the Delhi Special PoliceEstablishment regarding the investigation of the offences as to benotified by the Government of India under Section 3 of the said Actis extended to other areas. Section 6 of the Delhi Special PoliceEstablishment Act, 1946, which is relied upon by the StateGovernment for passing the impugned order, is as follows:"Section 6. Consent of State Government to exercise ofpowers and jurisdiction.- Nothing contained in section5 shall be deemed to enable any member of the DelhiSpecial Police Establishment to exercise powers andjurisdiction in any area in a State, not being a UnionTerritory of railway area, without the consent of theGovernment of that State."13. Independent of the said consent given by the StateGovernment, by which the State Government voluntarily refers theinvestigation by a special police force in Delhi, Section 5(1) ofthe Delhi Special Police Establishment Act, 1946, which is asfollows:"Section 5. Extension of powers and jurisdiction ofspecial police establishment to other areas. https://hcservices.ecourts.gov.in/hcservices/ (1) The Central Government may by order extend to anyarea (including Railway areas), in a State, not being aUnion Territory the powers and jurisdiction of membersof the Delhi Special Police Establishment for theinvestigation of any offences or classes of offencesspecified in a notification under section 3."also enables the Central Government by an order to extend in a Statearea the powers and jurisdiction of the members of the Delhi SpecialPolice Establishment for the investigation of any offences asnotified under Section 3 of the Delhi Special Police EstablishmentAct, 1946.14. In the matter of investigation by the police, which is anexecutive function in accordance with law, the process ofinvestigation completes the moment report is filed by theinvestigating authority to a competent criminal court. When onceinvestigation of criminal complaint is completed and a complaint orinformation or report is filed before the Magistrate, the Courttakes cognizance of offence as per Section 190 of the Code ofCriminal Procedure, 1973 on a prima facie conclusion that offencehas been committed. Thereafter, by way of commencement ofproceedings before the Magistrate, process is being issued to theaccused, followed by the charges to be framed by the Court andcommencement of trial, ultimately resulting in the final judgment.15. Therefore, when once the first information report has beenlodged to police, it becomes the predominant duty and privilege ofthe police to investigate and file its report to the court to enablethe court to take cognizance of the offence. Investigation is theprerogative of the police officer and on completion ofinvestigation, under Section 173(2) of the Code of CriminalProcedure, 1973, the officer in-charge of the police stationforwards a police report to the Magistrate, who is empowered to takecognizance of an offence, with various particulars. Section 173(8)of the Code of Criminal Procedure, 1973 gives special power to theMagistrate to order further investigation. In this regard, it isrelevant to extract Section 173 of the Code of Criminal Procedure,1973, which is as follows:"Section 173. Report of police officer on completion ofinvestigation. (1) Every investigation under this Chapter shall becompleted without unnecessary delay.(2)(i) As soon as it is completed, the officer incharge of the police station shall forward to aMagistrate empowered to take cognizance of the offence https://hcservices.ecourts.gov.in/hcservices/ on a police report, a report in the form prescribed bythe State Government, stating-(a) the names of the parties;(b) the nature of the information;(c)the names of the persons who appear to beacquainted with the circumstances of the case;(d)whether any offence appears to have beencommitted and, if so,by whom ;(e) whether the accused has been arrested;(f) whether he has been released on his bondand, if so,weather with or without sureties;(g) whether he has been forwarded in custodyunder section 170.(h) whether the report of medical examination ofthe woman has been attached where investigationrelates to an offence under sections 376, 376A,376B, 376C or 376D of the Indian Penal Code (45of 1860).(ii) The officer shall also communicate, in such manneras may be prescribed by the State Government, theaction taken by him, to the person, if any, by whom theinformation relating to the commission of the offencewas first given.(3) Where a superior officer of police has beenappointed under section 158, the report shall, in anycase in which the State Government by general orspecial order so directs, be submitted through thatofficer, and he may, pending the orders of theMagistrate, direct the officer in charge of the policestation to make further investigation.(4) Whenever it appears from a report forwarded underthis section that the accused has been released on hisbond, the Magistrate shall make such order for thedischarge of such bond or otherwise as he thinks fit.(5) When such report is in respect of a case to whichsection 170 applies, the police officer shall forwardto the Magistrate along with the report -(a) all documents or relevant extracts thereofon which the prosecution proposes to rely otherthan those already sent to the Magistrate duringinvestigation;(b) the statements recorded under section 161 of https://hcservices.ecourts.gov.in/hcservices/ all the persons whom the prosecution proposes toexamine as itswitnesses.(6) If the police officer is of opinion that any partof any such statement is not relevant to the subject-matter of the proceedings or that its disclosure to theaccused is not essential in the interests of justiceand is in expedient in the public interest, he shallindicate that part of the statement and append a noterequesting the Magistrate to exclude that part from thecopies to be granted to the accused and stating hisreasons for making such request.(7) Where the police officer investigating the casefinds it convenient so to do, he may furnish to theaccused copies of all or any of the documents referredto in sub-section (5).(8) Nothing in this section shall be deemed to precludefurther investigation in respect of an offence after areport under sub-section (2) has been forwarded to theMagistrate and, where upon such investigation, theofficer in charge of the police station obtains furtherevidence, oral or documentary, he shall forward to theMagistrate a further report or reports regarding suchevidence in the form prescribed; and the provisions ofsub-sections (2) to (6) shall, as far as may be, applyin relation to such report or reports as they apply inrelation to a report forwarded under sub-section (2)."16. It is thereafter the Magistrate takes cognizance ofoffences under Section 190(1) of the Code of Criminal Procedure,1973, which is as follows:"Section 190. Cognizance of offences by Magistrates. (1) Subject to the provisions of this Chapter, anyMagistrate of the first class, and any Magistrate ofthe second class specially empowered in this behalfunder sub-section (2), may take cognizance of anyoffence-(a) upon receiving a complaint of facts whichconstitute such offence ;(b) upon a police report of such facts;(c) upon information received from any personother than a police officer, or upon his ownknowledge, that such offence has been https://hcservices.ecourts.gov.in/hcservices/ committed."17. Even after receiving the report, while taking cognizance,if the Magistrate thinks fit, by postponing the issue of processagainst the accused, he can make inquiry by himself or direct aninvestigation to be made by a police officer, for the purpose ofdeciding whether or not there is sufficient ground for proceeding.That power is available under Section 202(1) of the Code of CriminalProcedure, 1973. This power of re-investigation lies with the Courtand as per the direction of the Court, the police may re-investigate. Therefore, after the investigation stage is over, onthe face of it, it is the Court which has to direct re-investigation, since it becomes the judicial power to be exercisedby the Court. In other words, after investigation is over as per theCode of Criminal Procedure, 1973 and the criminal court is seized ofthe matter, the further investigation can be directed only byjudicial order and cannot be by an executive fiat. 18. On the facts of the present case, the police based on acomplaint dated 4.6.2009 have taken the case on file and registereda case on 23.6.2009 in Crime No.290 of 2009 on the file of thefourth respondent Police Station for the offences punishable underSection 420 read with Section 511 of the Indian Penal Code. Oncompletion of investigation, a final report was filed on 6.6.2010,which was taken on file by the Judicial Magistrate, Tambaram inC.C.No.528 of 2010 on 7.6.2010, and summons were issued directingthe appearance of the accused on 6.8.2010 and ultimately, thepetitioners were convicted by the trial court on 13.8.2010.19. If the investigating agency of the State Government is ofthe opinion that the punishment is inadequate or it requires furtherinvestigation by the Central Bureau of Investigation, it has toproceed as per the Code of Criminal Procedure, 1973 by way of appealunder Section 377 or revision under Section 397 of the Code ofCriminal Procedure, 1973, in which event, it will be within thejurisdiction of the Appellate Court or Revisional Court to order re-investigation. Even in the impugned government order, the StateGovernment has presumed as if the investigation under the fourthrespondent was pending and it was in those circumstances, byinvoking the powers under Section 6 of the Delhi Special PoliceEstablishment Act, 1946, has given consent, while, on fact, on theday when consent was given, the investigation was not at all pendingbefore fourth respondent, and there was no occasion for the firstrespondent/Government to exercise its jurisdiction so as to enablethe members of the Delhi Special Police Establishment to investigatethe case under the Delhi Special Police Establishment Act, 1946.Therefore, it is a case of clear non application of mind on the partof the first respondent/ Government in passing the impugned order https://hcservices.ecourts.gov.in/hcservices/ directing investigation by the fifth respondent.19. The power of the Court to monitor investigation after thecharge-sheet has been laid and the power of the Supreme Court in theinterest of justice to make sure that justice is not only done, butalso is seen to be done has been emphasized by the Supreme Court inRubabbuddin Sheikh v. State of Gujarat and others, [2010] 2 SCC 200,while ordering investigation by the Central Bureau of Investigation.Paragraphs [79] and [80] of the judgment, which are as follows,would enlighten that after the charge-sheet is filed, it is thepower of the Court to order investigation:"79. In view of our discussions made herein earlier andthe submissions of the learned senior counsel for theparties and the amicus curiae and keeping in mind theearlier various directions given by this Court to thePolice Authorities of the State of Gujarat and thematerials on record, we are of the view that althoughthe charge sheet was submitted but considering thenature of crime that has been allegedly committed notby any third party but by the police personnel of theState of Gujarat, the investigation concluded in thepresent case cannot be said to be satisfactorily held. 80. We have already discussed the decisions cited fromthe Bar on the question that after the charge-sheetbeing filed whether the investigation could be handedover to the CBI Authorities or to any other independentagency from the State police authorities. We havealready distinguished the decisions cited by the Statethat they related to the power of the court to monitorthe investigation after the charge sheet was filed. Thescope of this order, however, cannot deal with thepower of this Court to monitor the investigation, buton the other hand in order to make sure that justice isnot only done, but also is seen to be done andconsidering the involvement of the State policeauthorities and particularly the high officials of theState of Gujarat, we are compelled even at this stageto direct the CBI Authorities to investigate into thematter. Since the high police officials of the State ofGujarat are involved and some of them had already beenin custody, we are also of the view that it would notbe sufficient to instil confidence in the minds of thevictims as well as of the public that still the StatePolice Authorities would be allowed to continue withthe investigation when allegations and offences weremostly against them."It is also relevant to refer to paragraph [60] of the said judgment, https://hcservices.ecourts.gov.in/hcservices/ which also enlightens that the Court has got inherent power for thepurpose of directing investigation to be handed over to the CentralBureau of Investigation even after the charge sheet is filed:"60. Therefore, in view of our discussions madehereinabove, it is difficult to accept the contentionsof Mr.Rohatgi learned senior counsel appearing for thestate of Gujarat that after the charge sheet issubmitted in Court in the criminal proceeding it wasnot open for this Court or even for the High Court todirect investigation of the case to be handed over tothe CBI or to any independent agency. Therefore, it cansafely be concluded that in an appropriate case whenthe court feels that the investigation by the policeauthorities is not in the proper direction and in orderto do complete justice in the case and as the highpolice officials are involved in the said crime, it wasalways open to the court to hand over the investigationto the independent agency like CBI. It cannot be saidthat after the charge sheet is submitted, the court isnot empowered, in an appropriate case, to hand over theinvestigation to an independent agency like CBI."20. Whether the petitioners, being outsiders (non publicservants), can be prosecuted under the provisions of the Preventionof Corruption Act, 1988 is held in affirmative by virtue of Section165-A of the Indian Penal Code, if the outsider abets a publicservant, as it was held in State of West Bengal v. Manmal Bhutoriaand others, [1977] 3 SCC 440. The Supreme Court has held as follows:19. Mr. De further submits that since the respondent isnot a public servant he is outside the provisions ofthe Bengal Act, as well as the Prevention of CorruptionAct. This argument is entirely misconceived. Even underthe Prevention of Corruption Act, an outsider can beprosecuted under Section 5(3) of the Act when a personhabitually commits an offence punishable under Section165A of the Indian Penal Code. Section 165A providesthat "whoever abets any offence punishable underSection 161 or Section 165, whether or not that offenceis committed in consequence of the abetment, shall bepunished ...". This section is clearly applicable to anoutsider who may abet a public servant."21. In any event, whether the petitioners can be prosecutedunder the said provision or not need not be an issue to be decidedin this case and even an outsider, who is not a public servant, whohas involved in corruption case along with the public servant is https://hcservices.ecourts.gov.in/hcservices/ liable for prosecution.22. The power of the Magistrate in directing investigationunder Section 173 of the Code of Criminal Procedure, 1973 has beenreiterated by the Apex Court with the seal of approval in M.C.Mehtav. Union of India and others, [2008] 1 SCC 407. Paragraphs [9] and[10] of the judgment, can be usefully extracted for the purpose ofthis case:"9. We have no doubt in our mind that judiciary maystep in where it finds the actions on the part of theLegislature or the Executive are illegal orunconstitutional but the same by itself would not meanthat public interest litigation, in a case of thisnature, should be converted into an adversariallitigation. The jurisdiction of the court to issue awrit of continuous mandamus is only to see that properinvestigation is carried out. Once the court satisfiesitself that a proper investigation has been carriedout, it would not venture to take over the functions ofthe Magistrate or pass any order which would interferewith its judicial functions. Constitutional scheme ofthis country envisages dispute resolution mechanism byan independent and impartial tribunal. No authority,save and except a superior court in the hierarchy ofjudiciary, can issue any direction which otherwise takeaway the discretionary jurisdiction of any court oflaw. Once a final report has been filed in terms ofSub-section (1) of Section 173 of the Code of CriminalProcedure, it is the Magistrate and Magistrate alonewho can take appropriate decision in the matter one wayor the other. If it errs while passing a judicialorder, the same may be a subject matter of appeal orjudicial review. There may a possibility of theprosecuting agencies not approaching the higher forumagainst an order passed by the learned Magistrate, butthe same by itself would not confer a jurisdiction onthis Court to step in. We should not entertain theapplication of the learned amicus curiae on suchpresupposition. A judicial order passed by a Magistratemay be right or wrong, but having regard to thehierarchy of the courts, the matter which would fallfor consideration before the higher court should not bea subject matter of a decision of this bench. In anunlikely event of the interested parties in notquestioning such orders before the higher forum, anindependent public interest litigation may be filed.Instances are not unknown where this Court hasentertained public interest litigation in casesinvolving similar question under Article 32 of the https://hcservices.ecourts.gov.in/hcservices/ Constitution of India. [See Rajiv Ranjan Singh 'Lalan'VIII v.Union of India, [2006] 6 SCC 613].10. It will not be out of place to mention that inVineet Narain v. Union of India, [1998] 1 SCC 226, thisCourt categorically stated that unless a properinvestigation is made followed by a proper prosecutionunder the general law applicable to such investigation,the rule of law will lose its significance. This Courtin its order dated 27.11.2006 upon noticing VineetNarain (supra) and Union of India v.Prakash P.Hindujaand Anr., [2003] 6 SCC 195 held:"26. Analysis of the above judgments shows thatthere is a clear-cut and well-demarcated sphereof activities in the field of crime detectionand crime punishment. Investigation of anoffence is the field reserved for the executivethrough the Police Department, thesuperintendence over which vests in the StateGovernment. The executive is charged with a dutyto keep vigilance over the law and ordersituation. It is obliged to prevent crime. If anoffence is committed allegedly, it is theState's duty to investigate into the offence andbring the offender to book. Once it investigatesthrough the Police Department and finds anoffence having been committed, it is its duty tocollect evidence for the purposes of proving theoffence. Once that is completed, theinvestigating officer submits report to thecourt requesting the court to take cognizance ofthe offence under Section 190 CrPC and his dutycomes to an end. Therefore, there are well-defined and well-demarcated functions in thefield of crime detect ion and their subsequentadjudication by the court. Lastly, the term"investigation" under Section 173(2) of theCriminal Procedure Code includes opinion of theofficer in charge of the police station as towhether there is sufficient evidence orreasonable ground of suspicion to justify theforwarding of the case to the court concerned ornot. This opinion is not legal evidence. At thestage of Section 173(2)the question ofinterpretation of legal evidence does not arise.In any event, that function is that of thecourts." https://hcservices.ecourts.gov.in/hcservices/

23. The power of the Magistrate under Section 173(8) of theCode of Criminal Procedure, 1973 has been reiterated by the SupremeCourt in Rajiv Ranjan Singh 'Lalan' (VIII) v. Union of India andothers, [2006] 6 SCC 613. By referring to various judgments inJanata Dal v. H.S.Chowdhary, [1992] 4 SCC 305, Dattaraj NathujiThaware v. State of Maharashtra, [2005] 1 SCC 590, Ashok KumarPandey v. State of West Bengal, [2004] 3 SCC 349, S.P.Gupta v. Unionof India, 1981 Supp. SCC 87 and Union of India v. Sushil Kumar Modi,[1998] 8 SCC 661, the Supreme Court has held as follows:"It is thus clear from the above judgment that once acharge-sheet is filed in the competent Court aftercompletion of the investigation, the process ofmonitoring by this Court for the purpose of making CBIand other investigative agencies concerned performtheir function of investigating into the offencesconcerned comes to an end and thereafter, it is onlythe Court in which the charge- sheet is filed which isto deal with all matters relating to the trial of theaccused including matters falling within the scope ofSection173(8)."24. Therefore, at the stage when the investigation wascompleted by the police, the Government certainly cannot have thepower of referring the investigation to the Central Bureau ofInvestigation by giving consent under Section 6 of the Delhi SpecialPolice Establishment Act, 1946. Such power of consent or even thepower of the Central Government under Section 5(1) of the DelhiSpecial Police Establishment Act, 1946 would be available as long asthe investigation process as per the Code of Criminal Procedure,1973 is on and when once the investigation is completed, thejurisdiction vests with the judiciary and it is for the Magistrateto pass judicial order as per the powers conferred under the Code ofCriminal Procedure, 1973 and not for the Government to exercise itsexecutive power for transferring the investigation to the CentralBureau of Investigation, which would amount to re-investigation of amatter which has been judicially settled by a competent court oflaw. 25. As stated above, if really the Government is not satisfiedabout the quantum of punishment imposed, it is for the firstrespondent/ Government to take appropriate steps by filing appeal orrevision and pending such appeal or revision, as the case may be, itis for the Appellate Court or Revisional Court to take note of thesituation for the purpose of deciding as to whether any furtherinvestigation is required and in which event, such investigation can https://hcservices.ecourts.gov.in/hcservices/ always be ordered and in those circumstances, it will be open to theexecutive to exercise its power under the Delhi Special PoliceEstablishment Act, 1946.For the foregoing reasons, I am of considered view that theimpugned government order has to be set aside for want ofjurisdiction. Accordingly, these writ petitions are allowed and theimpugned government order is set aside. No costs. Consequently,M.P.No.2 of 2010 in W.P.No.15646 of 2010 and M.P.No.2 of 2010 inW.P.No.24824 of 2010 are closed.Sd/Asst.Registrar/true copy/Sub Asst.RegistrarsasiTo:1. The Principal Secretary Home Department Government of Tamil Nadu Fort St.George, Chennai – 9.2. The Director General of Police Dr.Radhakrishnan Salai, Chennai – 4.3. The Commissioner of Police Suburban, Chennai – 16.4. The Inspector of Police S-13, Chromepet Police Station Chennai – 44.5. The Director Central Bureau of Investigation III Floor, Block No.3 CGO Complex, Lodhi Road New Delhi – 3.+1cc to Mr.M.Suresh Kumar, Advocate Sr 8556+1cc to Mr.R.Karthikeyan, Advocate Sr 8555+1cc to Mr.M.Sureshkumar, ADvocate Sr 8556RJ(CO)km/9.2.W.P.Nos.15646 and 24824 of 2010