C.Rajan Vs. Union of India - Court Judgment

Excerpt:

.....respondents from taking further action pursuant to the first information report and (ii) for interim compensation.5. in both the writ petitions, the writ petitioner originally impleaded the union of india, represented by the secretary to government, revenue department, the director general of revenue intelligence, the director of cbi, the deputy inspector general of cbi, the additional superintendent of police of anti corruption branch of cbi, the additional superintendent of police of cbi (investigation), the deputy superintendent of police of anti corruption branch of cbi, apart from impleading the de facto complainant f.ubaidullah and his friend by name stalin joseph. but subsequently, hyundai motor india limited filed a petition in m.p.no.3 of 2013 in the first writ petition seeking to implead themselves as parties to the first writ petition, on the ground that certain allegations have been made against them by the writ petitioner in his affidavit in support of the writ petition. since the writ petitioner did not have any objection to the application for impleadment, the petition for impleading was allowed.6. thereafter, the union of india represented by the revenue secretary.....

Judgment:

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED :

20. 12-2013 Coram : THE HONOURABLE MR. JUSTICE V.RAMASUBRAMANIAN Writ Petition Nos. 22373 and 22374 of 2012 and MP.Nos.1 and 1 of 2012 and 1 and 2 of 2013 C.Rajan ... Petitioner in both WPs Vs. 1.Union of India, rep.by the Secretary to Government, Revenue Department North Block, New Delhi-110001. 2.The Director General of Directorate of Revenue Intelligence, D-Block, I.P.Bhavan I.P.Estate, New Delhi-110002. 3.The Director, Central Bureau of Investigation CGO Complex, Lodhi Road, New Delhi-110003. 4.The Deputy Inspector General of Police Head of Branch, Central Bureau of Investigation Anti Corruption Branch, Shastri Bhavan Chennai-6. 5.L.S.Padmakumar, the Additional Superintendent of Police, Central Bureau of Investigation Anti Corruption Branch, Shastri Bhavan Chennai-6. 6.Vellai Pandi, the Additional Superintendent of Police Investigating Office, Central Bureau of Investigation, Anti Corruption Branch, Shastri Bhavan, Chennai-6. 7.C.S.Moni, the Deputy Superintendent of Police, Central Bureau of Investigation Anti Corruption Branch, Shastri Bhavan Chennai-6. 8.F.Ubaidullah 9.Stalin Joseph ... Respondents in both WPs 10.Hyundai Motor India Limited, rep.by R.Sethuraman, Director-Finance, SIPCOT Industrial Park, Irungattukottai, Sriperumbudur Kancheepuram-602117. (R10 impleaded as per order of court dated 21.2.2013 by VRSJ in MP.No.3 of 2013 in WP.No.22373 of 2012) ... Respondent in WP.No.22373/2012 PETITIONS under Article 226 of The Constitution of India praying for the issuance of Writs of Mandamus (i) directing investigation by a special investigation team, investigate the circumstances in which FIR in R.C.M.A.1 2012 A0011on the file of the fourth respondent was registered against the petitioner and take action against those responsible for fabricating false evidence and initiating the illegal criminal proceedings against the petitioner (W.P.No.22373 of 2012); and (ii) forbearing respondents 3 to 7 from taking any further action on the basis of FIR in R.C.M.A.1 2012 A0011on the file of the fourth respondent (W.P.No.22374 of 2012). For Petitioner in both WPs : Mr.V.Selvaraj For Respondents 1 & 2 in both WPs : Mr.K.Mohanamurali, CGSC For Respondents 3 to 7 in both WPs : Mr.N.Chandrasekaran For Respondents 8 & 9 in both WPs : Mr.Subramaniam Balaji For Respondent-10 :Mr.A.R.Karunakaran for M/s.IPN Associates COMMON

ORDER

On a complaint lodged on 5.3.2012, by a person by name F.Ubaidullah (8th respondent herein), to the effect that the petitioner, who was working as Additional Director General of Revenue Intelligence, demanded illegal gratification, a first information report was registered in R.C.No.11(A)/2012 on the file of the Central Bureau of Investigation, Chennai for alleged offence under Section 7 of the Prevention of Corruption Act, 1988. A trap was organised in pursuance of the first information report and the petitioner was arrested and remanded to judicial custody on 7.3.2012. Police custody was granted by the Special Court for CBI Cases during the period 9.3.2012 to 12.3.2012. Eventually, the petitioner was released on bail on 19.4.2012.

2. Thereafter, the petitioner sent representations to the Prime Minister with copies to the Minister of Finance. The petitioner also sent representations on 12/14.7.2012 to the Secretary to Government, Revenue Department as well as to the Director General of Revenue Intelligence. The grievance of the petitioner, as projected in his representations dated 12.7.2012 and 14.7.2012 was that he detected economic fraud of huge proportions by Hyundai Motors Limited and JSW Steels Ltd., and that with a view to stall the progress in the investigation into those huge economic frauds, a conspiracy was hatched to fix him in a false case of demand and acceptance of illegal gratification.

3. But, the representations given by the petitioner did not evoke any response. Therefore, the petitioner has come up with the above writ petitions. In W.P.No.22373 of 2012, the petitioner prays for the issue of a Writ of Mandamus to direct an investigation by a Special Investigation Team, to investigate the circumstances in which the first information report in R.C.M.A.No.1/2012 was registered against the petitioner and to take action against those responsible for fabricating false evidence and initiating illegal criminal proceedings against him. In the second writ petition W.P. No.22374 of 2012, the petitioner prays for a Writ of Mandamus to forbear the Director, the Director General of Police, the Additional Superintendent of Police and the Deputy Superintendent of Police of the CBI from taking any further action on the basis of the first information report registered against him in R.C.M.A.No.1/2012.

4. On 19.10.2012, both the writ petitions were admitted. Notices were ordered in the miscellaneous petitions, in which the petitioner prayed (i) for restraining the official respondents from taking further action pursuant to the first information report and (ii) for interim compensation.

5. In both the writ petitions, the writ petitioner originally impleaded the Union of India, represented by the Secretary to Government, Revenue Department, the Director General of Revenue Intelligence, the Director of CBI, the Deputy Inspector General of CBI, the Additional Superintendent of Police of Anti Corruption Branch of CBI, the Additional Superintendent of Police of CBI (Investigation), the Deputy Superintendent of Police of Anti Corruption Branch of CBI, apart from impleading the de facto complainant F.Ubaidullah and his friend by name Stalin Joseph. But subsequently, Hyundai Motor India Limited filed a petition in M.P.No.3 of 2013 in the first writ petition seeking to implead themselves as parties to the first writ petition, on the ground that certain allegations have been made against them by the writ petitioner in his affidavit in support of the writ petition. Since the writ petitioner did not have any objection to the application for impleadment, the petition for impleading was allowed.

6. Thereafter, the Union of India represented by the Revenue Secretary and the Director General of Revenue Intelligence filed a common counter affidavit in both the writ petitions. A separate counter affidavit was filed by the respondents 3 to 7 representing various officers of the CBI. The de facto complainant, who is the eighth respondent and his friend, who is the ninth respondent, did not choose to file any counter. The newly impleaded tenth respondent Hyundai Motors Private Limited filed a separate counter affidavit.

7. Thus, pleadings were completed and I have heard Mr.V.Selvaraj, learned counsel appearing for the writ petitioner, Mr.N.Mohana Murali, learned Central Government Standing Counsel appearing for the respondents 1 and 2, Mr.N. Chandrasekaran, learned Standing Counsel appearing for the CBI, whose Officers are arrayed as respondents 3 to 7 and Mr.A.R.Karunakaran, learned counsel appearing for the tenth respondent.

8. Before proceeding further, it is necessary to extract the prayer made in both the writ petitions, since a preliminary objection as to the maintainability of the writ petitions is raised by the respondents on the ground that a final report has already been filed before the Special Judge under Section 173 of the Code of Criminal Procedure and that therefore, the writ petitions are not maintainable. The prayers made in both the writ petitions are extracted as follows : ".W.P.No.22373 of 2012 : For the reasons stated in the accompanying affidavit it is prayed that this Hon'ble Court may be pleased to issue a Writ of Mandamus or any other appropriate writ or order or direction in the nature of a writ directing investigation by a special investigation team, investigate the circumstances in which FIR in R.C.M.A.1 2012 A0011on the file of the fourth respondent was registered against the petitioner and take action against those responsible for fabricating false evidence and initiating the illegal criminal proceedings against the petitioner; and W.P.No.22374 of 2012 : For the reasons stated in the accompanying affidavit it is prayed that this Hon'ble Court may be pleased to issue a Writ of Mandamus or any other appropriate writ or order or direction in the nature of a writ forbearing respondents 3 to 7 from taking any further action on the basis of FIR in R.C.M.A.1 2012 A0011on the file of the fourth respondent.".

9. In the final report filed under Section 173 of the Code of Criminal Procedure in Charge Sheet No.18/2012, the writ petitioner is cited as the first accused and his official car driver by name M.Murugesan is cited as the second accused. Both of them are charged with alleged offences punishable under Section 120-B, IPC read with Sections 7 and 13(2) read with 13(1)(d) of the Prevention of Corruption Act, 1988. But, it appears that the Special Court is yet to take cognizance and issue summons, in view of the pendency of the above writ petitions, though I have not granted any stay of the proceedings so far.

10. In the light of the above factual position, the respondents contend that the writ petitions are not maintainable in law. The question of maintainability of the writ petitions is raised by Mr.N.Chandrasekaran, learned Counsel for the CBI, on the following premise, namely:- (i) that the power of this Court to interfere with the investigation of a criminal complaint is extremely circumscribed; (ii) that in cases of this nature, there is an independent appraisal of all the material, by the authority competent to grant sanction to prosecute and hence no ground to interfere is available; (iii) that once a final report is filed under Section 173 of the Code of Criminal Procedure, the only remedy open to an accused is to approach the Trial Court for redressal of any grievance that he may have; (iv) that no allegation of mala fides is made out on facts as against the Officers of the Central Bureau of Investigation; (v) that this Court under Article 226 of the Constitution, cannot go into disputed questions of fact, by looking into any contra evidence that the petitioner may rely upon; and (vi) that once a trap was laid and a person caught red-handed, a presumption under Section 20 of the Prevention of Corruption Act arises and hence the same can be rebutted only by leading evidence before the Trial Court and not by pleadings before a Writ Court. In support of all the aforesaid submissions, the learned counsel for CBI also relied upon a few decisions of the Supreme Court.

11. Before considering the decisions relied upon by the learned counsel for the CBI and the decisions relied upon by the learned counsel for the petitioner, I must point out at the threshold that the petitioner is not seeking to quash either the FIR or the final report filed on the file of the Special Judge for CBI cases. I have extracted the prayers made in both the writ petitions, in paragraph 8 above. In the first writ petition, the petitioner prays for an investigation into the circumstances under which the FIR came to be lodged against him. In the second writ petition, the prayer is for forbearing the respondents from taking further action on the basis of the FIR. These prayers are made, as I have pointed out earlier, on the ground that the petitioner, as an honest, committed and pro-active Officer of the Indian Revenue Service, exposed multi million rupees tax evasion and fraud of two powerful industrial houses and that with a view to thwart further proceedings against those industrial houses, a conspiracy was hatched to fix him in a complaint of demand and acceptance of illegal gratification. All that the petitioner wants is only an investigation into the grievances that he had ventilated in his representations to various authorities, before proceeding further with the investigation/trial of the case against him. Therefore, it must be remembered that the case on hand is slightly different from the cases where the accused persons come up before Court for quashing the FIR/charge sheet or even for transfer of investigation from one agency to another.

12. I am conscious of the fact that time and again the Supreme court has cautioned the High courts from undertaking any adventurous course in cases of this nature and had advised the High courts to allow the steam of justice to flow like a river, within the bounds of the 2 banks. Any breach of this, like the breach of a river bank, would be destructive. Today, the CBI has already filed a final report in the Special Court. Therefore, I am aware of the consequences that may follow if any order other than the dismissal of the writ petitions is passed. In State of Maharashtra vs. Som Nath Thapa {AIR1996SC1744, the Supreme Court held that at the stage of framing of charges, the probative value of statements of witnesses cannot be gone into. It is a matter for trial. Again in State of Orissa vs. Debendra Nath Padhi {AIR2005SC359, the Supreme Court pointed out that at the stage of framing of charge, a roving and fishing enquiry is impermissible.

13. But nevertheless, I should point out that the case on hand does not belong to one of those run-of-the mill cases. The prayer in these writ petitions is not for quashing the proceedings. The prayer in these writ petitions is not even for transfer of investigation from one agency to another. A prayer for quashing the criminal proceedings or for transfer of investigation to another agency, stands on a different footing than a prayer for a detailed investigation into the circumstances surrounding the implication of a person in a criminal case. While the former may be used as a ruse by unscrupulous persons to escape the clutches of law, the latter does not benefit an accused in a criminal case, except enabling a detailed investigation. Keeping this in mind, let me now examine the decisions relied upon by the learned counsel on both sides.

14. The decisions relied upon by the learned Counsel on both sides, on the question of maintainability, could be divided into 2 categories. The first relates to the jurisdiction of this court to quash the criminal proceedings. The second relates to the power of this court either to order the transfer of investigation from one agency to another or to constitute a Special Investigation Team and to monitor/supervise the investigation. Though my focus is now required only to the second category of cases, I shall deal with the decisions arising out of both these 2 types of cases. PRINCIPLES GOVERNING QUASH PETITIONS15 In so far as cases seeking the quashing of criminal cases are concerned, the law is well settled and does not pose any problem.

16. In State of Bihar vs. P.P.Sharma {1992 SCC (Cri) 192}, the Supreme Court was concerned with a case where the High Court allowed certain writ petitions, quashing the FIR and the criminal proceedings against the accused. While allowing the appeals by the State of Bihar, both Kuldip Singh J., as well as K.Ramaswamy J., by separate, but concurrent decisions, traced the contours of the jurisdiction of this Court, while dealing with a plea for quashing of the FIR. First of all, the Supreme Court found in that case that there was no material to show that prior to the lodging of FIR, there was any enmity between the accused and the informant/ Investigating Officer. Citing the earlier decision in State of Bihar vs. J.A.C. Saldhana {1980 (1) SCC554, the Supreme Court pointed out that once an offence is registered, the mala fides of the informant would be of secondary importance. Since a Police Report, submitted by the Investigating Officer, has to pass through the judicial scrutiny of a Magistrate, the Supreme Court held that the accused person can always bring his grievances to the notice of the Magistrate.

17. In paragraph 23 of the Report, the Supreme Court held that the informant, being in a peculiar position, is bound to be looked down upon by the accused persons and that therefore the allegations of mala fides against the informant based on the facts after the lodging of the FIR are of no consequence and cannot form the basis for quashing the proceedings. Again in paragraph 27, the Supreme Court pointed out that the sanction granted under Section 197 of the Code, is not an empty formality. The object of obtaining sanction is to enable the Competent Authority to consider the material before the Investigating Officer, before it could come to a conclusion that the prosecution be sanctioned or forbidden. Therefore, the Supreme Court held finally that the High Court should not have assumed extraordinary jurisdiction under Article 226, at a stage when the Special Judge was seized of the matter.

18. Nevertheless, the Supreme Court pointed out in paragraph 37 that undoubtedly the arms of the High Court are long enough when it exercises prerogative discretionary power under Article 226, though hedged with self imposed limitations. After cautioning that the function of the judiciary in the course of investigation by the police should be complimentary, the Supreme Court indicated in paragraph 50 of the report as to what would constitute mala fides and in paragraph 59 as to what would constitute malice in law. Indicating that mala fides would mean want of good faith, personal bias, grudge or improper or oblique motive, the Court pointed out that for determining the plea of mala fides, two questions are to be addressed viz., (i) whether there is any personal bias or an oblique motive; and (ii) whether the administrative action is contrary to the objects, requirements and conditions of a valid exercise of administrative power. In so far as malice in law is concerned, the Supreme Court pointed out that it could be inferred from the doing of wrongful act intentionally without any just cause or excuse or without there being reasonable relation to the purpose of the exercise of statutory power.

19. In R.Thirugnanasambandam vs. Central Bureau of Investigation {2008 (1) LW (Cri.) 536}, I had an occasion to consider a writ petition filed under Article 226 of the Constitution for quashing a charge sheet filed by the Central Bureau of Investigation on the file of the Special Court for CBI cases. After referring to various decisions of the Supreme Court starting from R.P.Kapoor vs. State of Punjab {AIR1960SC866, State of Haryana vs. Bhajanlal {AIR1992SC604, P.S.Rajya vs. State of Bihar {1996 J.T. (6) SC480, Pepsi Foods Ltd vs. Special Judicial Magistrate {1998 (5) SCC749, State of Orissa vs. Debendra Nath Padhi {2005 (1) CTC134, Zandu Pharmaceutical Works Ltd vs. Md. Sharaful Haque {AIR2004SCW6185 and State of Bihar vs. P.P.Sharma {1992 SCC (Cri) 192}, I held that even a charge sheet can be quashed, if the time tested parameters laid down in Bhajanlal's case, are satisfied and that great care and caution is to be exercised while invoking the said power. One of the parameters laid down in Bhajanlal, is the question whether the criminal proceeding was manifestly attended with mala fide and/or whether the proceeding was maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.

20. But the bottom-line was well defined by the Supreme court, way back in 1970 in S.N.Sharma Vs. Bipen Kumar Tiwari {AIR1970SC786. In that case, the Supreme Court held that though the Code of Criminal Procedure gives unfettered powers to the police to investigate all cases where they suspect that a cognizable offence has been committed, it is always open to the aggrieved persons in appropriate cases, to seek a remedy by invoking the power of the High Court under Article 226. But, the Supreme Court cautioned that before interfering, the High Court should be convinced that the power of investigation has been exercised by a police officer mala fide. PRINCIPLES GOVERNING TRANSFER OF INVESTIGATION21 Having considered the cases relating to quashing of criminal proceedings, let me now consider cases where the victims or the accused seek transfer of investigation from one agency to another.

22. In Divine Retreat Centre Vs. State of Kerala {AIR2008SC1614, the question that came up for consideration before the Supreme Court was the scope, content and ambit of the inherent power of the High Court under Section 482 of the Code of Criminal Procedure. The Supreme Court was concerned in that case with the correctness of an order passed by the Kerala High Court transferring the investigation of a criminal complaint, to a Special Investigation Team headed by an Inspector General of Police. After analysing the decisions, which dealt with the power under Section 482, the Supreme Court came to the conclusion in paragraph 33 of the report that the investigation of an offence is the field exclusively reserved for the police officers, whose powers in that area are unfettered. But, the Court cautioned that the unfettered discretion does not mean any unaccountable or unlimited discretion and the power to act according to one's own choice. Consequently, the Supreme Court held that the High Court cannot change the Investigating Officer midstream, in exercise of the inherent jurisdiction under Section 482.

23. But even while holding so, the Supreme Court made a small distinction between cases, which arise under Section 482 of the Code and cases which arise under Article 226. The Court held in paragraph 35 of the report that under Article 226, the Court can always issue appropriate directions, if it is convinced that the power of investigation has been exercised by an Investigating Officer mala fide. However, the Court further held that the said power is to be exercised in the rarest of rare cases where a clear case of abuse of power and non compliance with the provisions of the Code is made out requiring the interference of the High Court. But even in such cases, the Supreme Court pointed out that the High Court cannot direct the police as to how the investigation is to be conducted.

24. In paragraph 43, the Supreme Court also added a rider by holding that setting the criminal law in motion is fraught with serious consequences and that the High Court in exercise of its whatever jurisdiction, cannot direct investigation by a Special Investigation Team on the strength of anonymous petitions. The High Court, according to the Supreme court, should not get converted into station houses.

25. Going a step further, the Supreme Court held in paragraph 47 of the report that though the nomenclature, under which a petition is filed, is quite irrelevant, the High Court cannot constitute any special investigating agency, to investigate into the allegations made for the first time in an anonymous petition. However the Court finally held that the remedy under Article 226 is a public law remedy and that the powers under Article 226 and Section 482 of the Code operate in different fields.

26. In National Human Rights Commission Vs. State of Gujarat {2009 (6) SCC342, the Supreme Court actually created a Special Investigation Team under the chairmanship of the Retired Director of the Central Bureau of Investigation.

27. In Centre for Public Interest Litigation Vs. Union of India {2011 (1) SCC560, a Division Bench of the Delhi High Court refused to entertain a writ petition at the instance of a NGO, praying for a Court Monitored Investigation by the Central Bureau of Investigation or by a Special Investigation Team into what was termed as ".2-G Spectrum Scam".. The matter was taken on appeal to the Supreme Court. After going through various documents and the records, the Supreme Court found fault with the Division Bench of the High Court for dismissing the writ petition at the threshold, ignoring the issues raised by the appellants, which were of great public importance. But though the Supreme Court recorded satisfaction that the allegations contained in the writ petition are supported not only by the documents produced by them, but also the report of the Central Vigilance Commission, the Court ultimately refused to appoint a Special Investigating Team. Keeping in view the law laid down in Vineet Narain's case, the Court agreed for a Court Monitored Investigation and issued various directions.

28. In Jakia Nasim Ahesan vs. State of Gujarat {2011 (12) SCC302, the Supreme Court was concerned with an appeal arising out of the decision of the Gujarat High Court, dismissing a writ petition in which a direction was sought by a hapless victim of the Godhra incident to register her private complaint. While passing orders, the Supreme Court quoted with approval the ratio laid down in Vineet Narain, which was followed in Union of India vs. Sushil Kumar Modi {1998 (8) SCC661. The Supreme Court also quoted the relevant passage from the decision in Sushil Kumar Modi, where it was pointed out that once a charge sheet is filed in the Competent Court after completion of the investigation, the process of monitoring, for the purpose of ensuring that the CBI or other Investigating Agencies performed their functions, comes to an end. Thereafter, it is only the Court in which the charge sheet is filed, which is to deal with all matters relating to the trial of the accused. The Court also cited a similar view expressed in Narmada Bai vs. State of Gujarat {2011 (5) SCC79, where the Supreme Court held that once the Investigating Agency completed its function, it is the Court in which the charge sheet is filed, which is to deal with all matters relating to the trial of the accused, including those falling within the scope of Section 173(8) of the Code.

29. In Disha vs. State of Gujarat {2011 (13) SCC337, a writ petition was filed under Article 32 of the Constitution before the Supreme Court, praying for the transfer, to the CBI, of an investigation into the financial transactions of the writ petitioner's husband and his associates through various firms and the cause of the mysterious death of the petitioner's husband. By the time the writ petition came up for hearing, the police had already filed a charge sheet against 13 persons. Therefore, the question that arose for consideration was whether after the charge sheet had been filed, the matter can and is required to be transferred for further investigation to CBI. After referring to the decision in Kashmeri Devi vs. Delhi Administration {1988 Supp. SCC482, wherein the Supreme Court directed the Trial Court to exercise powers under Section 173(8) of the Code and also the decision in Gudalure M.J.

Cherian vs. Union of India {1992 (1) SCC397, wherein the Supreme Court cautioned the exercise of any power of directing investigation by CBI after a charge sheet was filed, the Supreme Court held in paragraph 21 as follows:- ".21. Thus, it is evident that this Court has transferred the matter to CBI or any other special agency only when the Court was satisfied that the accused had been a very powerful and influential person or State authorities like high police officials were involved and the investigation had not been proceeded with in a proper direction or it had been biased. In such a case, in order to do complete justice and having belief that it would lend the final outcome of the investigation credibility, such directions have been issued.".

30. In K.V.Rajendran vs. Superintendent of Police {2013 (5) CTC310, the refusal of the High Court to transfer the investigation of a criminal complaint to the Central Bureau of Investigation came up before the Supreme Court for consideration. After referring to all the decisions of the past, the Supreme Court summarised the law on the point in paragraph 10 as follows:- ".10. In view of the above, the law can be summarised to the effect that the Court could exercise its Constitutional powers for transferring an investigation from the State Investigating Agency to any other independent Investigating Agency like CBI only in rare and exceptional cases. Such as where higher officials of State Authorities are involved, or the accusation itself is against the top officials of the Investigating Agency thereby allowing them to influence the investigation, and further that it is so necessary to do justice and to instil confidence in the investigation or where the investigation is prima facie found to be tainted/biased.".

31. A careful scrutiny of all the above decisions would lead us to the following doubtless propositions:- (i) Non-interference at the pre-trial stage is the rule and interference, an exception and that too in very rare and exceptional cases; (ii) There is a distinction between the scope of interference under Section 482 of the Code of Criminal Procedure and the scope of interference under Article 226; (iii) Interference on the ground of mala fides may be permissible in very rare and special cases, provided the existence of bias or oblique motive is writ large on the face of the record. (iv) A prayer for quashing the proceedings before the criminal court stands on a different footing than the prayer for transfer of investigation or for the constitution of a special investigation team.

32. Therefore, the most important thing to be seen is as to whether or not, the petitioner has made out a case of mala fides, so as to warrant interference. As pointed out by the Supreme Court in P.P.Sharma, the question of mala fides has to be tested on the touchstone of two questions viz., (i) whether there is any personal bias or an oblique motive and (ii) whether the administrative action is contrary to the objects, requirements and conditions of a valid exercise of administrative power.

33. In the affidavit in support of the writ petition, the petitioner has claimed that he detected import duty evasion, duty drawback fraud and export promotion capital goods fraud by Hyundai Motors Pvt. Ltd; and that in respect of another company by name J.S.W.Steel Ltd., he had issued a show cause notice dated 22.2.2012 for suspected duty evasion of Rs.302 crores, but that the same came to be put on hold by the Directorate of Revenue Intelligence. In paragraph 10 of the affidavit in support of the writ petition, the petitioner has given details of the allegations against Hyundai Motors Pvt. Ltd. He has claimed that the CBI Officials have taken possession of all the documents concerning the said company and that the documents are with the sixth respondent.

34. The sixth respondent has filed a counter affidavit both on his behalf and on behalf of the respondents 3 to 5 and 7. In paragraph 10 of the counter affidavit, the sixth respondent had denied the seizure of any documents concerning Hyundai Motors Pvt. Ltd. He had simply stated that during a search conducted at the Office of the petitioner, consequent to the trap, a file containing a complaint against Hyundai Motors Pvt. Ltd., was also seized. In addition, the sixth respondent has stated in paragraph 10 of the counter affidavit that the writ petitioner managed to secure employment to the son of his driver, in Mobis India Limited, by abusing his official position as Commissioner of Sea Customs.

35. To the above allegation, the petitioner has not chosen to file any reply. Therefore, in so far as the averments relating to Hyundai Motors are concerned, I do not think that a strong foundation of mala fides is made out. There must be a link between the action initiated by the petitioner against Hyundai Motors and between Hyundai Motors and someone in power to set up the CBI against the petitioner, so as to save Hyundai Motors Pvt Ltd. The allegations in paragraph 10 of the affidavit in support of the writ petition do not state in precise terms that the petitioner actually initiated any proceeding against Hyundai Motors. The petitioner simply states that a fraud committed by Hyundai Motors came to light one day before his arrest. But the date of his arrest was 7.3.2012. The complaint was lodged on 5.3.2012 itself. Therefore, the link between Hyundai Motors and the complaint against the petitioner is very weak, nay, almost absent.

36. The second aspect of the allegation of mala fides is with regard to J.S.W. Steel Limited. The sequence of events, on the basis of which the petitioner seeks to make out a case of mala fides, as narrated by him in paragraphs 12 to 17 of his affidavit, is as follows:- (i) that the petitioner issued a show cause notice on 22.2.2012 to JSW Steels Ltd, about the suspected duty evasion of Rs.302 crores; (ii) that he received a phone call from the second respondent viz., the Director General of Revenue Intelligence on 23.2.2012, instructing him not to issue show cause notice; (iii) that the Director General told him that he was in distress due to the initiation of show cause notice to JSW Steels and that one Ms. Omita Paul, working in the Ministry of Finance was intermeddling and pressurising him to withdraw the show cause notice; and (iv) that after the petitioner made it clear to the Director General on 23-2-2012, that he could not withdraw the show cause notice, the Directorate of Revenue Intelligence issued a letter dated 24.2.2012, directing the show cause notice to be kept in abeyance.

37. The above averments cannot be brushed aside wholly as the products of a figment of imagination. These averments are specific, with reference to dates, events and persons concerned. Since these averments directly relate to the second respondent, one would expect the second respondent to meet these averments by filing a counter. But the counter affidavit on behalf of the second respondent, who is at Delhi, has been filed by an Additional Director General at Chennai, who is also of the same rank as that of the writ petitioner. In the said counter affidavit filed on behalf of the second respondent, the deponent to the counter affidavit has stated the following:- (i) that once a show cause notice is issued, there is no provision to retrieve/ recall/cancel it under the Customs Act, 1962; (ii) that since the show cause notice was issued on 22.2.2012, the question of keeping it in abeyance does not merit any legal sanctity; (iii) that J.S.W. Steel Limited made a representation on the same issue on 14.2.2012 along with the legal opinion of the former Hon'ble Chief Justice of India; (iv) that the said representation along with the legal advise was duly forwarded to the Competent Authority in the Central Board of Excise and Customs on 24.2.2012; (v) that in view of the same, a letter dated 24.2.2012 was issued to the Chennai Zonal Unit, directing them to keep the show cause notice in abeyance until a clarification was received from the Competent Authority.

38. Paragraphs 3 and 4 of the counter affidavit filed on behalf of the second respondent, on the above crucial aspects, contain conflicting and contradictory statements and they are hardly convincing. First of all, the specific averment of the writ petitioner that the Director General called him on phone on 23.2.2012 and instructed the petitioner not to issue the show cause notice, is not even denied in paragraphs 3 and 4 of the counter affidavit filed on behalf of the second respondent. One would have expected, at least a formal denial, but the same is also missing in the counter affidavit. The counter affidavit, on behalf of the respondents 1 and 2, is filed by an Additional Director General, who has his Office only at Chennai. Therefore, obviously, he could not have had any personal knowledge as to whether the Director General spoke to the writ petitioner over phone on 23.2.2012 or not, as claimed by the petitioner in paragraph 13 of his affidavit. Since the Director General has not chosen to file any counter affidavit and also since he has not even instructed the deponent viz., the Additional Director General to make at least a formal denial, I have no option except to conclude that what is not denied is deemed to have been accepted.

39. I have not come to the above conclusion merely on a narrow technical view that the Director General did not choose to file a counter affidavit by himself or that even the counter affidavit filed on his behalf did not contain a formal denial. My conclusion that the averment relating to the phone call on 23.2.2012 should be taken to have been proved, is also on the basis of the admitted averment that the show cause notice issued by the writ petitioner on 22.2.2012 was directed to be kept in abeyance by a communication of the Director General dated 24.2.2012.

40. The speed with which the Director General (second respondent) had acted, in issuing the letter dated 24.2.2012, especially from Delhi, ordering to keep in abeyance, the show cause notice dated 22.2.2012 issued by the writ petitioner from Chennai, shows more than a mere probability that the averment relating to the phone call on 23.2.2012 could be true. This is why, the Director General has not chosen to file a counter affidavit either by himself or through the Additional Director General, denying the phone call and the conversation attributed to him.

41. Interestingly, paragraph 4 of the counter affidavit filed on behalf of the second respondent contains a categorical assertion in the first line that the question of keeping the show cause notice in abeyance, does not merit any legal sanctity. But towards the end of paragraph 4 of the counter affidavit, it is admitted that by the letter dated 24.2.2012, issued by the second respondent, the show cause notice was, in fact, directed to be kept in abeyance. I do not know why a reference is made in paragraph 4 of the counter affidavit, to the legal opinion allegedly obtained by J.S.W.Steel Limited from a former Chief Justice of India and enclosed to their representation dated 14.2.2012. If the law, as claimed in the first line of paragraph 4 of the counter affidavit, is to the effect that the question of keeping a show cause notice in abeyance does not merit any legal sanctity, the said position in law would not change merely because of the status of the person who gave the legal opinion.

42. The entire sequence of events viz.,--- (i) the admitted factum of issue of show cause notice dated 22.2.2012 by the writ petitioner alleging suspected duty evasion of Rs.302 crores by J.S.W. Steel Limited; (ii) the allegation of the writ petitioner about the phone call made by the Director General on 23.2.2012 pressurising him to withdraw the show cause notice; (iii) the failure of the second respondent to deny the said allegation in their counter, either formally or even informally either by himself or even through the Additional Director General; (iv) the claim made in one portion of the counter affidavit of respondents 1 and 2 that the question of keeping a show cause notice in abeyance does not merit legal sanctity; (v) the admission made in the latter portion of the counter affidavit that on the basis of the legal opinion of the former Chief Justice of India, a letter was issued on 24.2.2012 to keep the show cause notice in abeyance; and (vi) the failure of the respondents to make even a formal denial of the specific allegation that one Ms.Omita Paul, working in the Ministry of Finance, was pressurising the Director General-- all put together, confirms that at least those administratively superior to the writ petitioner, were not happy about the show cause notice issued by him to JSW Steels.

43. Therefore, the complaint allegedly lodged by the eighth respondent with the Central Bureau of Investigation on 5.3.2012, the trap organised subsequently by the Central Bureau of Investigation on 6.3.2012 and the alleged success of the trap, all may have to be viewed in the context of the above and I have to see whether the complaint and the trap were a mere coincidence like the fall of the fruit upon a crow landing on the branch of a tree or as to whether it was part of a conspiracy to fix the petitioner in a criminal case, with a view to thwart the initiation of any proceeding against the aforesaid company.

44. If everything had happened in the normal course, I would not even have ventured to look at the complaint and the trap, as having anything to do with the show cause notice issued by the petitioner to the aforesaid company. But before coming to Court, the petitioner has made these allegations in his representation dated 12.7.2012 to the Revenue Secretary and the Director General of Revenue Intelligence. It should be pointed out that the petitioner was arrested and detained in custody from 7.3.2012 and he was released on bail on 19.4.2012. The above writ petition was filed only in August 2012. At least a month before filing the writ petition, the petitioner submitted his representations to the above mentioned authorities. Therefore, the allegations of mala fides made in paragraphs 13 to 17 of the affidavit in support of the writ petition, are not brought by the petitioner, as an after thought, to scuttle the investigation. But what is very unfortunate is that this aspect has been overlooked, even while according sanction to prosecute, in December 2012 and the sanctioning authority has not taken note of the grievance of the writ petitioner, as made out in his representation dated 12.7.2012.

45. One more important aspect to be kept in mind is that the motive of the writ petitioner in making allegations of malafides, does not appear to be just to walk out of the criminal case unharmed. He is not even asking for quashing the proceedings. All that he is asking is only a fair investigation into the whole gamut of circumstances which led to the criminal complaint and the trap.

46. A significant feature in the whole drama also revolves around (i) the person who lodged the complaint alleging demand of illegal gratification (ii) the purpose for which the illegal gratification was allegedly demanded by the writ petitioner and (iii) the manner in which the trap was organised and claimed to be successful.

47. In paragraph 33 of the affidavit in support of the writ petition, the petitioner has claimed that the eighth respondent, who is the informant, was involved in several cases and that he was also detained twice under COFEPOSA. In paragraph 34, the petitioner has claimed that there are Customs cases pending against the ninth respondent as well. Three show cause notices are said to have been issued against the ninth respondent, one of which was from the Office of the writ petitioner himself.

48. The respondents 8 and 9 have been served with notices in the writ petitions. They have not chosen to enter appearance. Therefore, these averments have gone uncontroverted. In the counter affidavit filed on behalf of the respondents 1 and 2, the deponent has stated in paragraph 5 that the respondents 1 and 2 have nothing to say about the averments in paragraphs 33 and 34 of the affidavit in support of the writ petitioner. Similarly, the sixth respondent, who has filed a counter affidavit on behalf of the respondents 3 to 7, has also made it clear in paragraphs 29 and 30 of their counter that they have no comments to offer against the averments relating to respondents 8 and 9. Therefore, it is clear that the respondents 8 and 9, one of whom is the defacto complainant against the petitioner, are already involved in criminal cases, some of which were initiated from the Office of the writ petitioner.

49. Having considered the background of the defacto complainant, let me now move over to nature of the complaint lodged by the eighth respondent. The complaint of the eighth respondent to the Central Bureau of Investigation was that he has a friend by name Joseph, engaged in the import of mobile phones; that on 2.3.2012, he met him and told him that the Officers of the Directorate of Revenue Intelligence raided his place and took away the cheque leaves of one of his relatives by name Super King Myatzin; that the Officers also froze the bank accounts of the said Myatzin at Kotak Mahindra Bank, Second Line Beach; that since all the revenue generated by him would come only into those two bank accounts, he requested him to speak to someone to have de-freezing of the bank accounts; that therefore, on 3.3.2012, he met the writ petitioner in his Office; that the writ petitioner asked him to meet him at his residence on 4.3.2012; that accordingly, he met the writ petitioner on 4.3.2012 and requested for his help; that the petitioner informed him that he would detain Super King Myatzin under COFEPOSA; that the writ petitioner demanded Rs.10 lakhs for not detaining Super King Myatzin under COFEPOSA and also for de-freezing the bank accounts; that the writ petitioner also gave an offer that the eighth respondent could take Rs.2 lakhs out of the said amount for his own benefit; that as a first instalment, the writ petitioner demanded Rs.2 lakhs and a iPad to be handed over on 6.3.2012; that the writ petitioner told him that he would inform him the place and the method of delivery of the amounts, through his driver Murugesan on 5.3.2012; that he conveyed the message to Mr.Joseph; that however, Mr.Joseph did not want to give illegal gratification to the writ petitioner; that on the contrary, he wanted a complaint to be lodged against the writ petitioner before the Central Bureau of Investigation; that on 5.3.2012, Mr.Murugesan, the driver of the writ petitioner called the eighth respondent on his mobile phone 98411 48138 and asked him to hand over the money and the iPad at Sastri Bhavan at 8.30 A.M., the next morning; and that since he did not want to pay money, he lodged a complaint.

50. It is contended by Mr.V.Selvaraj, learned counsel for the writ petitioner that, at the outset, it is not within the domain of the writ petitioner to order the detention of any person under COFEPOSA and that it was also not within his power to de-freeze the accounts. The learned counsel for the petitioner brought to my attention, several orders of this Court whereby this Court has ordered the de-freezing of the accounts of many such persons under similar circumstances, as a matter of routine. (Of course, I was not a party to any of those orders passed by this court). In essence, the contention of the learned counsel for the petitioner is that the allegation that the writ petitioner demanded money for doing something that was not within his powers and also for doing something, which could have been easily obtained from this Court on the basis of judicial precedents, is completely unbelievable. In this connection, the learned counsel for the petitioner also relied upon the decision of a Division Bench of the High Court of Punjab and Haryana in MK International vs. Union of India {2007 (209) ELT15(P&H)}, where it was held that when there was no adjudication by any authority, determining any liability, provisional or final, the freezing of a bank account without any basis of a statutory provision and without following the procedure for effecting such freezing, cannot be accepted.

51. However, as rightly contended by Mr.N.Chandrasekaran, learned counsel for the Central Bureau of Investigation, demand and acceptance of illegal gratification need not necessarily be in connection with one's own official duty. As pointed out by the Supreme Court in Dhaneshwar Narain Saxena vs. The Delhi Administration {AIR1962SC195, duty and misconduct go ill-together. If a person has misconducted himself as a public servant, it would not ordinarily be in the discharge of his duty, but the reverse of it. The Supreme Court made it clear that even if a public servant takes money by corrupt or illegal means or otherwise abusing his official position, in such a manner as to give an impression to such third person that he would be able to do something, though that something may not fall within his own power or duty, then he is certainly guilty of an offence punishable under the Act.

52. But at the same time, we must remember the caution signalled by K.Subba Rao, J., in his opinion in M.Narayanan Nambiar vs. State of Kerala {AIR1963SC1116, that the desired object of the Prevention of Corruption Act, is not only to prevent corruption among the public servants, but also to prevent the harassment of the honest among them. Therefore, while it is not permissible to allow a public servant to escape on the mere premise that it was not within his powers to do favour to the person from whom illegal gratification was sought, it should be remembered, at the same time, that the Court is duty bound to see that the machinery under the Prevention of Corruption Act is not misused to harass an honest public servant, by or at the instance of persons against whom he takes action in the course of his official duties.

53. Keeping the above in mind, if we now go back to the pleadings, it is seen from paragraph 33 of the affidavit of the writ petitioner in support of the writ petition that in January 2012, he received a letter from the second respondent regarding an alleged complaint given by the eighth respondent against the writ petitioner. The writ petitioner claims to have sent a reply on 19.1.2012.

54. In other words, it is admitted by the writ petitioner that much before the show cause notice dated 22.2.2012 was issued by him to J.S.W. Steel Limited, the eighth respondent had purportedly sent a complaint against him to the second respondent and that the second respondent called upon the petitioner to respond. The writ petitioner also responded on 19.1.2012.

55. Though in paragraph 33 of the affidavit, the writ petitioner has not indicated the date of the complaint allegedly made by the eighth respondent against him, he has stated in paragraph 35 of the affidavit in support of the writ petition that the complaint given by the eighth respondent was during June 2010.

56. It is the specific case of the writ petitioner that the officers in the office of the second respondent, saw a great opportunity for fixing the petitioner, when they located the complaint of the eighth respondent. Though the petitioner does not claim that the 8th respondent was set up (i) either by the companies which are named by him in his affidavit (ii) or by Central Bureau of Investigation, his allegation is that at the instance of his superiors, the CBI identified the 8th respondent as a pliable person, to remove the irritant in the writ petitioner, who was persistent in pursuing with the show cause notice to JSW Steels.

57. The specific case of the petitioner in paragraph 35 of his affidavit is that the complaint already lodged by the eighth respondent against the petitioner, came handy for respondents 4 to 7 to implicate the writ petitioner. To put it differently, the respondents 4 to 7, according to the writ petitioner, exploited the situation, by making use of the complaint already lodged by the eighth respondent. In other words, the respondents 4 to 7, according to the writ petitioner, made use of the complaint already lodged by the eighth respondent, thereby getting into a nexus with him. The coming together of respondents 4 to 7 on the one hand and the eighth respondent on the other hand, had happened, according to the writ petitioner, after the superiors of the writ petitioner located the complaint made by the eighth respondent against the writ petitioner in 2010.

58. Keeping the above in mind, if we look at the case of the petitioner, the theme of his song is that he has been fixed and falsely implicated in a criminal case on account of his tirade against two powerful Industrial Houses. The simple case of the prosecution is that they have nothing to do with any action that the writ petitioner might have initiated against any Industrial House for tax evasion and fraud and that they simply acted, as they are obliged to do, on a criminal complaint lodged by the eighth respondent alleging demand of illegal gratification.

59. Between one extreme position that the petitioner seeks to project and the other extreme, simplified and straight jacket position that the prosecution seeks to project, there are several alternatively scenarios. Let me look at those possible alternative scenarios and the result that I would arrive at, under each one of them:- Alternative Scenario Emerging Picture Conclusion I Without any inducement, prompting enticement or undue influence from any Authority, the eighth respondent in the writ petition, could have been genuinely aggrieved by a demand of illegal gratification made by the petitioner and the eighth respondent could have triggered the prosecution by lodging a complaint. But the petitioner, with a view to escape prosecution, might have scripted a story, of fabrication of a false case, be making use of the action initiated by him against two Industrial Houses. If this is what had actually happened, the writ petitions are liable to be thrown out and no mercy shown to the petitioner.His only recourse would be to defend the criminal case in accordance with law. II Without any inducement, enticement, undue influence or force from any extraneous forces, the eighth respondent could have lodged a complaint, not out of a real grievance, but out of a desire to wreak vengeance on the petitioner, for the actions initiated by the petitioner against him in the past. The defacto complainant's motive in lodging a complaint, might have been mistaken or misunderstood by the writ petitioner as the motive of the prosecuting agency itself. Even in this alternative, there is nothing that this Court can do. As pointed out by the Supreme Court, the motive of a complainant is immaterial, in a criminal case. If the demand and acceptance is true, the motive of the defacto complainant is hardly of any significance. Some people who make allegations of corrupt practices against public servants, do so with the object of cleaning the system. Some people do so for wreaking vengeance against public servants at whose hands they have suffered earlier. In either case, it is not open to this Court to interfere at this stage. III At the instance of the Industrial Houses named by the writ petitioner, the eighth respondent could have lodged a complaint and could have triggered the trap. Neither the Department of Finance nor the Department of Revenue nor even the Central Bureau of Investigation might be aware of the conspiracy hatched by those two Industrial Houses with the eighth respondent. Even in respect of this alternative, the Writ Court cannot do anything, in view of the fact that neither the Superiors of the writ petitioner nor the Central Bureau of Investigation can be accused of acting with mala fide intentions. Despite the conspiracy that could have taken place behind the back of the Central Bureau of Investigation and the Departments of Revenue and Finance, the Authorities are obliged to act on a complaint of illegal gratification and they are not obliged to look beyond the complaint, if they themselves had no role to play, in the lodging of the complaint. IV At the instance of some Officer/ Officers in the Department of Revenue, the eighth respondent was made use of by CBI, for manufacturing a complaint and fixing him up. If this alternative is true, it is of serious consequence. This is not a matter which would lie entirely within the realm of the Criminal Court. Therefore, a Writ Court is duty bound to see if the petitioner has really made out a case under this alternative.

60. As a matter of fact, the fourth alternative theory is the only theory on which rests, the entire case of the writ petitioner. That it is so, is seen from the fact that the petitioner had addressed representations to the Revenue Secretary and the Finance Secretary.

61. While it is easy to reject the alternative theories I, II and III without battling an eye lid, it is not so easy to dismiss the alternative theory IV so easily. As I have pointed out earlier, the second respondent has not come out clean or at least clear in so far as the averments relating to the show cause notice dated 22.2.2012 issued by the petitioner to J.S.W. Steel Limited and the letter of the second respondent dated 24.2.2012, keeping it in abeyance. Therefore, the theory that the Office of the second respondent made use of the complaint sent by the eighth respondent in June 2010 and on which they started acting through the letter dated 19.1.2012, cannot be brushed aside, at least by the respondents 1 and 2.

62. I agree with Mr.N.Chandrasekaran, learned counsel for CBI that the writ petitioner has not alleged any motive against any particular officer of the Central Bureau of Investigation, other than alleging generally that they played into the hands of the others. But his grievance is that he, who was virtually a celebrity in the Department till the other day, with his name being recommended for a National Honour, suddenly fell out of grace, after the issue of a show cause notice to a leading Industrial House. The date of issue of the show cause notice (22.2.2012), the date on which the show cause notice was ordered to be put on hold (24.2.2012) and the timing of the criminal complaint (5.3.2012), together with the manner in which the trap was organised and executed, at least creates a suspicion. It is true that in a writ petition under Article 226 of the Constitution, there are any number of limitations on my ability or entitlement to have a roving enquiry conducted to find out the link in this tripad viz., the second respondent, the Central Bureau of Investigation and the eighth respondent. Nevertheless, the Secretary to Government of India, Revenue Department or the Secretary to Government of India, Ministry of Finance, to whom representations were made, could have, at least, found this out, if they had cared to look into the grievance of the petitioner. As a matter of fact, the sanction to prosecute had been accorded only on 3.12.2012, much after the representations were made by the petitioner to the concerned Secretaries in the Departments of Revenue and Finance. The sanction order does not reflect any consideration of the issues of mala fides raised by the petitioner in his representations sent in July 2012.

63. Keeping this aspect in mind, let me now move over to the next aspect viz., the manner in which the trap was organised and conducted. As rightly contended by Mr.N. Chandrasekaran, learned counsel for the Central Bureau of Investigation, at this stage, I cannot take the role of the Trial Court to see the loopholes in the case of the prosecution. I cannot also get into disputed questions of fact. But to the limited extent permissible for an enquiry under Article 226, I would first look into the Entrustment Mahazar and the Recovery Mahazar. The copies of the Entrustment Mahazar and the Recovery Mahazar, filed before me, reveal certain interesting facts, on which there can be no dispute. These Entrustment Mahazar and Recovery Mahazar are a part of the final report filed by the Central Bureau of Investigation before the Special Court and I would proceed on the basis that they contain the gospel truth.

64. As per the Entrustment Mahazar, the defacto complainant, the Central Bureau of Investigation officials and the independent witnesses assembled in the Office of the Additional Superintendent of Police at 6.00 A.M., on 6.3.2012. The defacto complainant allegedly produced two bundles of thousand rupee denominations, totalling to Rs.2 lakhs along with a iPad. The serial numbers of the currency notes and the IMEI number of the Apple iPad, were noted and Sodium Carbonate solutions were prepared, they were demonstrated to the witnesses and the currency notes were smeared with phenolphthalein powder kept in a plastic cover of Adyar Ananda Bhavan. According to the Entrustment Mahazar, the defacto complainant was instructed to proceed to the entrance of the residential quarters where the writ petitioner lived and where the driver of the writ petitioner allegedly asked the complainant to meet him. One of the independent witnesses was asked to accompany the defacto complainant to overhear the conversation. The Entrustment Mahazar states that the preparation of the Mahazar was concluded by about 7.55 A.M., in the morning of 6.3.2012.

65. After the Entrustment Mahazar, another Mahazar was allegedly prepared at 9.30 A.M., on 6.3.2012. As per this Mahazar, the car of the complainant went to the residential quarters of the writ petitioner at 9.00 A.M. The defacto complainant allegedly talked to the driver of the writ petitioner. Thereafter, the defacto complainant got into his car and returned to the Central Bureau of Investigation Office, stating that the writ petitioner had asked him through his driver to come to the DRI Office at T.Nagar by 4.00 P.M., in the Evening.

66. As Mr.V.Selvaraj, learned counsel for the petitioner pointed out, the Entrustment Mahazar, filed by the Central Bureau of Investigation, itself reveals that the body of the defacto complainant was searched by the independent witness Selvam and that except a wrist watch, a mobile phone, a colour purse, a hand kerchief and the key of a bike, nothing else was found on his body. The Entrustment Mahazar does not record that the defacto complainant was in possession of a car key.

67. But the defacto complainant, according to the next Mahazar, went only by car to the residential quarters of the writ petitioner. I do not know how this has happened. Anyway, I would not attach much importance to the same, since I am now dealing with a writ petition.

68. The third Mahazar viz., the Recovery Mahazar shows that at about 16.30 hours, the defacto complainant was allegedly informed by the driver of the writ petitioner that the writ petitioner had gone to the Roman Catholic Church in Mylapore opposite to the Music Academy. According to the Recovery Mahazar, all the team members along with independent witnesses proceeded to the Roman Catholic Church premises around 18.00 hours. The official vehicle of the writ petitioner was there inside the premises and the driver Murugesan was seen standing near the car. As per the Recovery Mahazar, the defacto complainant proceeded to meet the driver in the Church premises. But the driver came to the road and met the complainant. The tainted money and the iPad were allegedly handed over by the complainant to the driver at that time and the driver is stated to have taken them to his car. The defacto complainant was allegedly informed by the driver that the writ petitioner was not in the Church and that only his wife was inside the Church and that the driver had to drop the wife of the writ petitioner at her residence and to pick up the writ petitioner from his Office at T.Nagar.

69. In other words, even as per the Recovery Mahazar, (i) the tainted money was entrusted to the driver of the writ petitioner, neither in the Office premises nor at the residential quarters, but at the premises of a Church; and (ii) the money was handed over, with full knowledge that the writ petitioner was not there in the car and was not even there in the Church premises at that time. The Recovery Mahazar then proceeds on the basis that by about 18.45 hours, the official car of the writ petitioner started moving out of the Church premises. But for some inexplicable reasons, the team members of the Central Bureau of Investigation did not follow the car. On the contrary, they reached the Office of the writ petitioner around 19.20 hours. The official car of the writ petitioner, even according to the Recovery Mahazar, reached the DRI Office, T.Nagar only at 19.50 hours. At that time, the wife of the writ petitioner was not in the car. It means that the driver of the writ petitioner took the wife of the writ petitioner from the Church, dropped her at her residential quarters and thereafter reached the Office of the writ petitioner. After picking up the writ petitioner by about 19.50 hours, the car reached the residential quarters. It was followed by the team members and the witnesses. What happened there, is stated in the Recovery Mahazar on the following lines:- ".When Shri Rajan's car reached the GPRA, Nungambakkam, it went towards his quarters and parked his car in front of his building. The CBI car containing the witnesses and the trap team reached the CBI Office within a few minutes and parked the official car in the Shastri Bhawan premises. The team members and the witnesses proceeded on foot to the residence of Shri Rajan. On seeing the team members, Shri Rajan hurriedly came down the stairs with Shri Murugesan, his driver. He came out of the building and on seeing the strangers became tense and agitated and asked his driver Shri Murugesan to throw the plastic carry bag into the car. At the instance of Shri Rajan, Shri Murugesan threw the plastic carry bag containing the tainted amount and the iPad in the front seat of the car. On being asked, why he did so, Shri Rajan stated that Shri Murugesan had brought the bag to his house without his knowledge and pretended not to know the contents of the plastic bag. Thereafter, Shri Rajan and Shri Murugesan were asked to go up the stairs to the quarters of Shri C.Rajan in the 2nd floor. The plastic carry bag was recovered from the front seat of the car and was handed over to Shri C.Selvam, one of the independent witnesses who brought it with him to the residence of Shri Rajan.".

70. In other words, the positive case of the prosecution is that the tainted money was handed over to the driver of the petitioner - (i) at a public place viz., a Church premises; (ii) when the petitioner was not there either in the Church premises or in the Car; (iii) during the period between 18.00 hours to 18.45 hours. The driver of the car is supposed to have received the Adyar Ananda Bhavan carry bag containing the tainted currency and the iPad, kept it in the car and eventually arrived at the Office of the writ petitioner only by about 19.50 hours. The writ petitioner thereafter proceeded to his residence, followed by the team members of the Central Bureau of Investigation. But in this whole episode, as narrated by the prosecution in their recovery mahazar, there is no whisper at all as to when the writ petitioner handled the tainted money. What is surprising is that there is no whisper at all in the entire mahazar as to whether the writ petitioner handled the money at all at any point of time. Even according to the Recovery Mahazar, the plastic bag carrying the currency notes was received by the driver of the writ petitioner during the period between 18.00 hours and 18.45 hours and it was taken to the car and kept inside the car at least till about 19.50 hours, even without the writ petitioner being in the car.

71. It must also be pointed out that according to the prosecution, the tainted money was kept in a plastic carry bag of Adyar Ananda Bhavan. Therefore, whatever has happened to the writ petitioner, during the period from 18.00 hours to 19.50 hours or even later, can easily happen to anyone, without that public servant ever coming to know about it. Today, the case of the prosecution rests solely on the following things:- (i) The complaint made by the eighth respondent that the writ petitioner made a demand; (ii) The call that allegedly emanated from the cellphone of the driver of the writ petitioner to the eighth respondent; (iii) The recovery of the plastic carry bag from the front seat of the car; and (iv) The Sodium Carbonate Solution turning to light pink after the petitioner dipped his right hand fingers.

72. In all the above 4 things, there is something more than what meets the naked eye. We have seen the credentials of the defacto complainant. The petitioner has produced the call log of the mobile phone of his driver to show that no call emanated from his driver's mobile number to the defacto complainant. The handing over of money to the driver, had happened at least 2 hours before its recovery. The handing over of tainted money has happened at the Church premises when the writ petitioner was not there. With the tainted money, the driver is alleged to have travelled from the Church premises to the residence of the writ petitioner to drop the writ petitioner's wife and thereafter he is stated to have proceeded to the Office of the writ petitioner. The tainted money and the iPad are supposed to have travelled all the way without the petitioner's wife ever noticing it or handling it. Interestingly, the tainted money was in the car when it reached the Office of the writ petitioner by about 19.50 hours. Therefore, one would have expected the trap to have materialised at least there. But it did not. This is perplexing. The trap materialises after the writ petitioner reaches home. There is no indication in the Recovery Mahazar as to whether the writ petitioner ever handled the tainted money at all, except the statement of the witnesses that the solution turned light pink.

73. Normally one would have expected the Central Bureau of Investigation to instruct the defacto complainant to hand over the money, even if it be to an agent or a trusted lieutenant of the accused, only in the presence of the accused or at least when the accused is somewhere around in the vicinity. If the accused is not present at the spot when the money is handed over to his representative, the prosecution should have at least ensured that they caught hold of the accused when the money was transferred to him by the recipient.

74. Again I am conscious of the fact that I am not the Trial Court dealing with these aspects. But what bothers me is that this kind of a trap can be organised even against anyone, including an honest Officer, without such honest Officer having a scent of what is happening behind his back. If an honest Officer is to be fixed, it can be done by the very same procedure that the CBI had followed in this case. I make it clear that I am not giving a certificate of good character to the writ petitioner. All that I am trying to point out is that if people want to fix somebody, they can easily do it in this manner.

75. In order to demonstrate that he has been a committed and honest Officer throughout his career, the writ petitioner has made certain specific averments in his affidavit. From the averments contained in paragraphs 4 to 9, it appears that the petitioner joined as a Probationer Trainee in October 1980, completed his training in January 1982 and got posted as Senior Superintendent of Central Excise, Baroda. After working in various capacities, he was appointed as Additional Director General of the Directorate of Revenue Intelligence on 1.4.2010. According to the petitioner, his name was recommended by the Chief Commissioner of Customs, in the year 2007 for the award of Padmashree. His name was again recommended for presidential award on the occasion of the Republic Day in the year 2012 for specially distinguished record of service. Therefore, it is his case that he has been fixed, for stalling the enquiry initiated by him against two companies.

76. In response to the above averments contained in paragraphs 4 to 10 of the affidavit of the writ petitioner, it is stated in the counter affidavit of the respondents 1 and 2 that they are part and parcel of records. In paragraph 2 of the counter affidavit, filed on behalf of the respondents 1 and 2, it is simply stated that the contents of paragraphs 1 to 12 are part and parcel of records. Therefore, I have to presume that the averments relating to the career of the petitioner, have gone uncontroverted.

77. Therefore, if what the petitioner claims is true that he has had an impeccable record of service for more than 30 years, making his superior to recommend him even for the award of Padmashree, then the allegations made by him that the present episode is an attempt to fix him for an oblique motive, cannot be brushed aside.

78. Unfortunately, in a writ petition under Article 226 of the Constitution, it is not possible for me, merely on the basis of the pleadings, to come to a conclusion whether the petitioner has been fixed deliberately, to scuttle any investigation initiated by him against an Industrial House or not. The petitioner himself appears to realise this. This is why the petitioner is seeking only a fair investigation into the whole circumstances under which he has come to be implicated in a criminal case. As pointed out earlier, the petitioner is not using this as a ruse or shield to escape from the criminal case. He has not actually prayed for quashing the charge sheet. He has also not approached the Court directly but had earlier sent representations on 14.7.2012 to the Secretaries to the Government of India, Revenue and Finance Department as well as to the Directorate of the Central Bureau of Investigation. The respondents 1 and 2 have not denied the fact that the petitioner had sent representations. In paragraph 47 of the affidavit in support of the writ petition, the petitioner has clearly pleaded that he had sent representations not only to the Prime Minister and the Finance Minister, but also to the respondents 1 and 2. In the counter filed on behalf of the respondents 1 and 2, there is no denial of the same.

79. Today, it is possible for me to easily dismiss the writ petition and allow the petitioner to prove his innocence before the Criminal Court. But even if the petitioner proves his innocence before the Criminal Court and gets acquitted, the allegations made by him that he was fixed in a case to save an industrial house, will never get enquired into. This may not be within the domain of the Criminal Court even if the procedure under Section 173 (8) of the Code is taken recourse to.

80. On the other hand, by allowing the writ petition and ordering an investigation, the only thing that would happen at the worst, is the postponement of the trial of the criminal case against the writ petitioner. The postponement of the trial of the criminal case against the petitioner is not even in the interest of the writ petitioner. He has already completed 58 years of age and if the criminal case is prolonged, he will not be permitted to retire and he will not get any terminal benefits. But the respondents will not in any way be prejudiced. On the contrary, if an investigation into the complaint of the petitioner is undertaken, it is possible, however remote it may be, that national interest may get subserved.

81. One serious contention raised by Mr.N.Chandrasekaran, learned counsel for the Central Bureau of Investigation is that as per the Recovery Mahazar, the trap was successful and the phenolphthalein solution turned light pink. Therefore, under Section 20 of the Prevention of Corruption Act, a presumption arises against the writ petitioner and the said presumption has to be rebutted only by evidence in the course of trial. The learned counsel for the Central Bureau of Investigation also contended that the writ petitioner has not come out clean with any statement as to whether he handled the tainted money at all and as to the circumstances under which he handled the currency notes. In support of these contentions, the learned counsel relied upon the decision of the Supreme Court in V.D.Jhingan vs. Uttar Pradesh {AIR1962SC1762, where it was pointed out that the mere receipt of money is sufficient to raise the presumption.

82. It is true that the petitioner has not stated anything in his writ affidavit as to whether he handled the currency notes or not. But, unfortunately, even the Recovery Mahazar does not state whether the writ petitioner handled the currency notes at any point of time at all or not. On the contrary, it is clear that his driver received the carry bag containing the tainted currency, near a Church premises when the petitioner was not there and this carry bag was in the car for nearly 2 hours till the writ petitioner got into it. As pointed out by me earlier, the currency notes were smeared with phenolphthalein powder, between 06.00 hours and 07.55 hours in the morning of 6.3.2012. The trap was originally planned, even according to the prosecution, to take place at about 09.00 hours near the residential quarters of the writ petitioner. But it did not materialise. Therefore, the trap team got dispersed at 10.15 A.M., on 6.3.2012. Thereafter, the team again assembled by about 18.00 hours in the evening at the Roman Catholic Church premises where the carry bag of Adyar Ananda Bhavan was handed over to the driver of the writ petitioner's official car by about 18.45 hours. As per the Recovery Mahazar, the driver took the bag to the car and the car carrying the writ petitioner's wife, left the Church premises by about 18.45 hours. Even as per the Recovery Mahazar, the writ petitioner was not inside the car. Actually he was in his Office at T.Nagar. The Adyar Ananda Bhavan carry bag containing the tainted money was actually in transit from 07.55 hours in the morning. After being with the Central Bureau of Investigation team members till about 18.45 hours, the tainted money allegedly got transferred to the driver of the petitioner's car. The money was in transit again in the writ petitioner's car from 18.45 hours till about 19.50 hours. What happened after the writ petitioner got into his car in the evening by 19.50 hours is not mentioned in the Recovery Mahazar. In the entire Recovery Mahazar, the crucial portion of which I have extracted earlier, it is not stated that the writ petitioner handled the currency notes at any point of time. But the only thing that is stated in the Recovery Mahazar is that upon the petitioner dipping his right hand fingers, the colourless solution turned to light pink. The front seat cover of the car was also subjected to phenolphthalein test and as per the Recovery Mahazar, it also turned to very light pink. Therefore, the manner in which the entire trap has taken place raises more questions than they seek to answer.

83. As I have made clear earlier, I am not for a moment giving a good conduct certificate to the writ petitioner or pronouncing the writ petitioner not guilty. He has to face trial and get honourably acquitted, to come out clean. But in the background in which the complaint was given and the trap was organised, it is impossible for me to white wash the whole background and leave it to the fate of the petitioner to come out clean in the criminal case.

84. In a decision pronounced just a few days ago on 17.12.2013, in Manoharlal Sharma vs. The Principal Secretary {CDJ2013SC1109, the Supreme Court observed as follows:- ".A proper investigation into crime is one of the essentials of the criminal justice system and an integral facet of rule of law. The investigation by the police under the Code has to be fair, impartial and uninfluenced by external influences. Where investigation into crime is handled by the CBI under the DSPE Act, the same principles apply and CBI as an investigating agency is supposed to discharge its responsibility with competence, promptness, fairness and uninfluenced and unhindered by external influences.". The Court also added that the monitoring by the Court aims to lend credence to the inquiry/investigation and to eliminate any impression of bias, lack of fairness and objectivity. But it does not mean that the Court supervises such investigation/enquiry.

85. Though in the said decision the Supreme Court drew a fine distinction between ".Court Monitored Cases". and ".Court Supervised Investigation"., I do not even wish to go so far. Even a direction to the Secretary to Government, Ministry of Finance, Department of Revenue, to investigate into the grievance of the petitioner and investigate into the circumstances surrounding the registration of the criminal complaint against the petitioner, would in my view, meet the ends of justice. If while granting sanction for prosecution on 3.12.2012, the Department had taken note of the grievance of the petitioner and had enquired into this matter, I might not even have ventured to undertake this exercise. Today, this exercise has become essential, in order to ensure that Officers of integrity and honesty, wherever they are, do not get demoralised.

86. As held by the Supreme Court in M.Narayanan Nambiar, the object of the Prevention of Corruption Act, is not only to prevent corruption among the public servants, but also to prevent the harassment of the honest among them. If the petitioner is really honest, as he proclaims to be, but about which I am not competent to pronounce an opinion, the Department is duty bound to protect him from harassment. This is the only reason why I would venture to direct the Department to undertake an enquiry into his complaint.

87. In view of the above, the writ petitions are disposed of, directing the first respondent, either to inquire by himself, into the representation of the petitioner dated 12.7.2012 about the circumstances under which the writ petitioner was allegedly fixed or in the alternative, to forward a copy of the petitioner's representation dated 12.7.2012 to the third respondent viz., the Director of the Central Bureau of Investigation, for a detailed inquiry into the same. In either case, the result of such inquiry shall be communicated to the petitioner within a period of 8 weeks. If the outcome of such inquiry is indicative of any foul play, it will be open to the petitioner to seek appropriate remedy either in terms of the provisions of the Criminal Procedure Code or in terms of Article 226. There will be no order as to costs. Consequently, connected miscellaneous petitions are closed. 20-12-2013 Index : Yes. Internet : Yes. Svn To 1.The Secretary to Government, Union of India, Revenue Department North Block, New Delhi-110001. 2.The Director General of Directorate of Revenue Intelligence, D-Block, I.P.Bhavan I.P.Estate, New Delhi-110002. 3.The Director, Central Bureau of Investigation CGO Complex, Lodhi Road, New Delhi-110003. 4.The Deputy Inspector General of Police Head of Branch, Central Bureau of Investigation Anti Corruption Branch, Shastri Bhavan Chennai-6. V. RAMASUBRAMANIAN, J.

Svn Common Order in W.P.Nos.22373 and 22374 of 2012 20-12-2013