Central Bureau of Investigation and Another Vs. Rajesh Gandhi and Another - Court Judgment

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criminal - recording of reasons - sections 5 and 6 of delhi special police establishment act, 1946 and indian penal code, 1860 - appeal against order quashing notification on grounds of non-mentioning of reasons for entrusting investigation to delhi special police establishment (dspe) - notification issued whereby central government with consent of state government of bihar extended powers and jurisdiction of members of dspe to whole of bihar for investigation of certain offences - no provision of law under which while granting consent or extending powers and jurisdiction of dspe to specified state any reasons required to be recorded on face of notification - material on record showed that investigation by local police not satisfactory - subsequently central bureau of investigation (cbi) directed to further investigate offences registered under first information report with consent of state government and in accordance with law - impugned notifications justified - appeal allowed. - [] the government of mysore by an order defined backward classes and directed that 30 per cent of the seats in professional and technical colleges and institutions shall be reserved for them and 18 per cent to the schedule castes and scheduled tribes. it was laid down that classification of socially and educationally backward classes should be made on the basis of economic condition and occupation. by a letter the government informed the director of technical education that it had been decided that 25% of the maximum marks for the examination in optional subjects shall be fixed as interview marks. the selection will be conducted by a committee composed of heads of technical institutions aid in allotting marks for interview factors like general knowledge, personality and extracurricular activities of the candidates should be' taken into consideration. on the basis of the above criteria selections were made for admission to engineering and medical colleges. thereupon some of the candidates whose applications for admission were rejected filed writ petitions before the high court of mysore for quashing the orders issued by the government and for directing that they shall be admitted in the colleges strictly in the order of merit. the high court rejected the contentions raised on points of law but found that the selection committee has abused its power and directed that the petitioners be interviewed afresh and admissions be made in accordance with the government order and letter which were declared valid. before this court it was contended that the government letter was invalid inasmuch as it did not comply with the provisions of art. 166 of the constitution. the next contention was that the government had no power to appoint a selection committee for admitting students to colleges on the basis of higher or different qualifications than those prescribed by the university. another contention was that selection by viva voce examination was illegal by reason of the fact that it enables the interviewers to act arbitrarily and therefore it contravenes art. 44 of the constitution. lastly it was contended that unless the observation of the high court that the classification was not perfect since the government has not applied the caste test as well as the economic test is corrected it will mislead the government. held: (per b. p. sinha, c.j., subba rao, raghubar dayal and rajagopala ayyangar jj.) (i) the provisions of art. 166 of the constitution are only directory and not mandatory and, if they are not complied with, it can be established as a question of fact that the impugned order was issued in fact by the state government or the governor. in the present case the impugned order though it does not conform to the provisions of art. 166 ex facie says that an order to the effect mentioned therein was issued by the government and it is not denied by the appellants that the order was made by the government and neither it is denied that it was communicated to the selection committee. therefore it is valid. 134-159 s.c.-24 dattatraya moreshwar pangarkar v. state of bombay [1952] s.c.r. 612, state of bombay v. purushottam log naik, [1952] s.c.r. 74, ghaio mall & sons v. state of delhi, [1959] s.c.a. 1424 and bachittar singh v. state of punjab, [1962] supp. 3 s.c.r. 713, referred to. (ii) if the impact of the state law providing for standards of education on entry 66 of list i is so heavy and devastating as to wipe out or appreciably abridge the central field it may be struck down. but that is a question of fact to be ascertained in each case. if a state law prescribes higher percentage of marks for extra-curricular activities in the matter of admission to colleges it cannot be said that it would be directly encroaching on the field covered by entry 66 of list i. the government orders do not contravene the minimum qualification prescribed by the mysore university; what the government did was to appoint a selection committee and prescribe for selection of students who have the minimum qualifications prescribed by the university. since they cannot admit all the students who have secured the minimum marks prescribed by the university they had necessarily to select the applicants on some reasonable basis. the state government is therefore entitled to prescribe a machinery and also the criteria for admission of qualified students to medical and engineering colleges run by the government and with the consent of the management of the government aided colleges, to the said colleges also. gujarat university v. shri krishna, [1963] supp. 1 s.c.r. 112, distinguished. (iii) the selection by viva voce is one of the methods suggested by modern authorities on education in preference to written tests. it is no', for the court to say which method should be adopted, it should be left to the authorities concerned. the fact that one particular method is capable of abuse is not sufficient ground for quashing it as being violative of art. 14. if in a given case the selection committee abuses its powers in violation of art. 14 the selection will be held invalid and will be set aside as the high court has done in the present case. (iv) a classification of backward classes based on economic conditions and occupation is not bad and does not offend art. 15(4). the caste of a group of citizens may be a relevant circumstance in ascertaining their social backwardness and though it is a relevant factor to determine social backwardness of a class, it cannot be the sole or dominent test in that behalf. if in a given selection caste is excluded in ascertaining a class within the meaning of art. 15(4) it does not vitiate the classification if it satisfied other tests. the inference to the contrary which may be drawn from the observation of the high court in the impugned judgment will not be correct in law or a correct reading of the observations of this court in m. r. balaji v. state of mysore, [1963] supp. 1 s.c.r. 439. (v) various provisions of the constitution like arts. 15, 29, 46, 341 and 342 which recognise the factual existence of backward classes in our country and which make a sincere attempt to promote the welfare of the weaker sections thereof should be construed to effectuate that policy and not to give weightage to progressive sections of the society under the false colour of caste to which they happen to belong. under no circumstances a "class" can be equated to a "caste" though the caste of an individual or group of individuals may be a relevant factor in putting him in a particular class. if in a given situation caste is excluded in ascertaining a class within the meaning of art. 15(4) it would not violate the classification if it satisfied other tests. if an entire sub-caste by and large, is backward, it may be included in the scheduled castes by following the appropriate procedure laid down by the constitution. per mudholkar, j. (dissenting): (i) the decisions of this court dealing with art. 166 of the constitution have definitely held that where the' existence of a government order itself is challenged by a person who is affected by it the burden is upon the government to establish that an order was in fact made by the governor in the manner provided for in the rules of business framed by the governor under cl. (3) of art. 166. (ii) it is not correct to say, in this case, that the appellants have not denied the existence of the order. right from the beginning they have been saying that there was no "government order" in so far as admission to the medical college was concerned. since both the appellants were concerned only with the admission to a medical college they had no necessity to deny the existence of the government order regarding admission to an engineering college. the document which is relied on the state to establish that there was a government order is nothing but a communication from the secretary to government of mysore addressed to the selection committee and deans medical college mysore. it is thus not an order of the kind contemplated by art. 166. except a statement in that communication that the under secretary is "directed to state" that the government has taken a decision there is no evidence or averment that the governor has made an order providing for interview. in no case has this court held that such a document. can be treated as the governor's order or even evidence of the existence of the governor's order. (iii) the decision of this court in gujarat university v. shri krishna, [1963] supp. 1 s.c.r. 112, establishes that the power to provide for coordination and determination of standards in certain institutions like the medical colleges is vested in the parliament and even though parliament may not have exercised that power the state legislature cannot step in and provide for the determination and coordination of standards by requiring that marks on the basis of interviews be awarded to the applicants for admission of candidates to,-such institutions as is done in the present case. it constitutes an interference with the standards of admission laid down by the university. (iv) the executive power of the state which is co-extensive with legislative power under art. 162 of the constitution cannot be exercised where such exercise is contrary to law or where it has been assigned to other authorities or bodies. section 23 of the mysore university act, provides that the acadamic council shall have power to prescribe the conditions of admission to the university and therefore the executive cannot encroach on this power. rai sahib ram jawaya kapur v. state of punjab, [1955] 2 s.c.r. 225 and motilal v. government of state of uttar pradesh, a.i.r. 1951 all 259 (f.13.). (v) it would not be in accordance with cl. (1) of art. 15 or cl. (2) of art. 29 to require the consideration of the caste of persons to be borne in mind for determining what are socially and educationally backward classes.   - continental transport and construction corporation limited and first respondent as well as the other directors of the said company. we fail to appreciate how another learned single judge of the same high court has quashed the same notifications in disregard of the earlier judgment. secondly, there is a clear attempt on the part of first respondent as well as the other accused to stall investigation by the c. we also fail to see any provision of law for recording reasons for such a decision. the learned single judge of the patna high court was clearly in error in holding so. 9. we fail to see any requirement of law under which the reasons for further investigation by the c.ordersujata v. manohar, j.1. leave granted. 2. respondent no. 1 is a director of m/s. continental transport and construction corporation limited. some of the other directors of the company are one ramesh gandhi and mahesh gandhi. the first respondent and the said two directors are brothers. in or about february, 1993 a raid was conducted by the income tax department, dhanbad on the office, residence and the factory premises of m/s. continental transport and construction corporation limited and first respondent as well as the other directors of the said company. certain documents were seized during the raids. the documents so seized were stored by the then assistant director (investigation), department of income tax, dhanbad in one of the steel almirahs kept in his chamber. during the night of 8th/9th march, 1993 the documents seized were burnt after braking open the office's steel almirah in which documents were kept in respect of this incident local police registered an fir bearing no. 159 dated 9.3.1993 in police station, dhanbad. dhansar under section 457, 436, 427, 202 and 120-b of the indian penal code and under section 4 of the prevention of damage to the public properties act, 1984 against, inter alia, the first respondent and other persons. the investigation was carried on by the local police. 3. thereafter, at the request and with the consent of the state of bihar as per notification dated 2.6.1994 the central government by its notification/order dated 26.10.1994 issued under section 6 of the delhi special police establishment act, 1946 authorised the first appellant, central bureau of investigation, to investigate the said offences. hence the investigation of the said offence was transferred to the first appellant and a fresh case rc. 1(s)/95(d) was registered on 3.1.1995 against the first respondent and other accused persons incorporating the offences mentioned in fir no. 159/93. the first respondent filed a writ petition in the patna high court challenging the said notifications of 2.6.1994 and 26.10.1994. the present appeal arises from an order of a learned single judge of the patna high court quashing the said notifications. 4. this is, however, not the first such proceeding. earlier respondent no. 1 herein and other accused persons filed a writ petition on or about 7.2.1995 in the high court of calcutta in respect of the same criminal proceedings. the calcutta high court by its order dated 9.2.1995 disposed of the writ petition by directing that the venue of the investigation be shifted from dhanbad to ranchi and investigating officers be changed. this order, however, was set aside by this court in s.l.p. (crl.) no. 1155 of 1995. 5. thereafter, m/s. continental transport and construction corporation limited and one of the directors, ramesh gandhi, the brother of respondent no. 1. filed a writ petition before the ranchi bench of the patna high court praying, inter alia, for a writ quashing the fir dated 3rd of january, 1995 lodged in the court of the special judicial magistrate, c.b.i. cases, dhanbad and quashing the notification of 2.6.1994 and 26.10.1994. the ranchi bench of the patna high court, however, dismissed the writ petition by a reasoned judgment and order dated 10.5.1995. 6. the first respondent then filed a writ petition before the patna high court for identical reliefs of quashing the said notifications. the patna high court allowed the writ petition holding that the impugned notifications must disclose reasons as to why the investigation was being entrusted to the delhi special police establishment. this decision is under challenge before us. 7. in the first place, the same two notifications were challenged before the ranchi bench of the same high court. a learned single judge of the high court by a reasoned order declined to quash the two notifications. we fail to appreciate how another learned single judge of the same high court has quashed the same notifications in disregard of the earlier judgment. secondly, there is a clear attempt on the part of first respondent as well as the other accused to stall investigation by the c.b.i., looking to the course of conduct adopted by them starting with the filing of a writ petition in the calcutta high court when c.b.i. had registered an f.i.r. before the special judicial magistrate, c.b.i. cases, at dhanbad. 8. there is no merit in the pleas raised by the first respondent either. the decision to investigate or the decision on the agency which should investigate, does not attract principles of natural justice. the accused cannot have a say in who should investigate the offences he is charged with. we also fail to see any provision of law for recording reasons for such a decision. the notification dated 2.6.1994 is issued by the government of bihar (police department) by which in exercise of power under section 6 of the delhi special police establishment act, 1946, governor of bihar was pleased to consent and extend the power and jurisdiction of the members of the delhi special police establishment to the whole of the state of bihar in connection with investigation of the concerned police station case no. 159 of 9.3.1993 in the district of dhanbad, under section 457, 436, 427, 201 and 120-b, indian penal code and conspiracy arising out of the same and any other offence committed in course of the same. the notification of 26.10.1994 is issued by the government of india, ministry of personnel in exercise of the power conferred by sub-section (1) of section 5 read with section 6 of the delhi special police establishment act, 1946 whereby the central government with the consent of the state government of bihar in their notification dated 2.6.1994 extended the powers and jurisdiction of the members of the delhi special police establishment to the whole of the state of bihar for investigation of offences under section 457, 436, 427/120-b and 201 ipc and section 4 of the prevention of damages to public property act, 1984 registered at dhanbad police station, dhansar, bihar in their case no. 159 dated 9.3.1993 and any other offences, attempts, abatement and conspiracy in relation to or in connection with the said offence committed in the course of the same transactions or arising out of the same fact or facts in relation to the said case. there is no provision in law under which, while granting consent or extending the powers and jurisdiction of the delhi special police establishment to the specified state and to any specified case any reasons are required to be recorded on the face of the notification. the learned single judge of the patna high court was clearly in error in holding so. if investigation by the local police is not satisfactory, a further investigation is not precluded. in the present case the material on record shows that the investigation by the local police was not satisfactory. in fact the local police had filed a final report before the chief judicial magistrate, dhanbad. the report, however, was pending and had not been accepted when the central government issued the impugned notification. as a result, the c.b.i. has been directed to further investigate the offences registered under the said f.i.r. with the consent of the state government and in accordance with law. under section 173(8) of the cr. pc 1973 also, there is an analogous provision for further investigation in respect of an offence after a report under sub-section (2) has been forwarded to the magistrate. 9. we fail to see any requirement of law under which the reasons for further investigation by the c.b.i. are required to be recorded in the notifications of the kind in question. the reasons can be shown independently. 10. the appeal is, therefore, allowed and the impugned judgment and order of the single judge of the patna high court is set aside and the writ petition is dismissed.

Judgment:
ORDER

Sujata V. Manohar, J.

1. Leave granted.

2. Respondent No. 1 is a Director of M/s. Continental Transport and Construction Corporation Limited. Some of the other directors of the company are one Ramesh Gandhi and Mahesh Gandhi. The first respondent and the said two directors are brothers. In or about February, 1993 a raid was conducted by the Income Tax Department, Dhanbad on the office, residence and the factory premises of M/s. Continental Transport and Construction Corporation Limited and first respondent as well as the other directors of the said company. Certain documents were seized during the raids. The documents so seized were stored by the then Assistant Director (Investigation), Department of Income Tax, Dhanbad in one of the steel almirahs kept in his chamber. During the night of 8th/9th March, 1993 the documents seized were burnt after braking open the office's steel almirah in which documents were kept In respect of this incident local police registered an FIR bearing No. 159 dated 9.3.1993 in Police Station, Dhanbad. Dhansar under Section 457, 436, 427, 202 and 120-B of the Indian Penal Code and under Section 4 of the Prevention of Damage to the Public Properties Act, 1984 against, inter alia, the first respondent and other persons. The investigation was carried on by the local police.

3. Thereafter, at the request and with the consent of the State of Bihar as per notification dated 2.6.1994 the Central Government by its notification/order dated 26.10.1994 issued under Section 6 of the Delhi Special Police Establishment Act, 1946 authorised the first appellant, Central Bureau of Investigation, to investigate the said offences. Hence the investigation of the said offence was transferred to the first appellant and a fresh case RC. 1(S)/95(D) was registered on 3.1.1995 against the first respondent and other accused persons incorporating the offences mentioned in FIR No. 159/93. The first respondent filed a writ petition in the Patna High Court Challenging the said notifications of 2.6.1994 and 26.10.1994. The present appeal arises from an order of a learned Single Judge of the Patna High Court quashing the said notifications.

4. This is, however, not the first such proceeding. Earlier respondent No. 1 herein and other accused persons filed a writ petition on or about 7.2.1995 in the High Court of Calcutta in respect of the same criminal proceedings. The Calcutta High Court by its order dated 9.2.1995 disposed of the writ petition by directing that the venue of the investigation be shifted from Dhanbad to Ranchi and investigating officers be changed. This order, however, was set aside by this Court in S.L.P. (crl.) No. 1155 of 1995.

5. Thereafter, M/s. Continental Transport and Construction Corporation Limited and one of the directors, Ramesh Gandhi, the brother of respondent No. 1. filed a writ petition before the Ranchi Bench of the Patna High Court praying, inter alia, for a writ quashing the FIR dated 3rd of January, 1995 lodged in the court of the Special Judicial Magistrate, C.B.I. cases, Dhanbad and quashing the notification of 2.6.1994 and 26.10.1994. The Ranchi Bench of the Patna High Court, however, dismissed the writ petition by a reasoned judgment and order dated 10.5.1995.

6. The first respondent then filed a writ petition before the Patna High Court for identical reliefs of quashing the said notifications. The Patna High Court allowed the writ petition holding that the impugned notifications must disclose reasons as to why the investigation was being entrusted to the Delhi Special Police Establishment. This decision is under challenge before us.

7. In the first place, the same two notifications were challenged before the Ranchi Bench of the same High Court. A learned Single Judge of the High Court by a reasoned order declined to quash the two notifications. We fail to appreciate how another learned Single Judge of the same High Court has quashed the same notifications in disregard of the earlier judgment. Secondly, there is a clear attempt on the part of first respondent as well as the other accused to stall investigation by the C.B.I., looking to the course of conduct adopted by them starting with the filing of a writ petition in the Calcutta High Court when C.B.I. had registered an F.I.R. before the special Judicial Magistrate, C.B.I. cases, at Dhanbad.

8. There is no merit in the pleas raised by the first respondent either. The decision to investigate or the decision on the agency which should investigate, does not attract principles of natural justice. The accused cannot have a say in who should investigate the offences he is charged with. We also fail to see any provision of law for recording reasons for such a decision. The notification dated 2.6.1994 is issued by the Government of Bihar (Police Department) by which in exercise of power under Section 6 of the Delhi Special Police Establishment Act, 1946, Governor of Bihar was pleased to consent and extend the power and jurisdiction of the members of the Delhi Special Police Establishment to the whole of the State of Bihar in connection with investigation of the concerned Police Station case No. 159 of 9.3.1993 in the District of Dhanbad, under Section 457, 436, 427, 201 and 120-B, Indian Penal Code and conspiracy arising out of the same and any other offence committed in course of the same. The notification of 26.10.1994 is issued by the Government of India, Ministry of Personnel in exercise of the power conferred by Sub-section (1) of Section 5 read with Section 6 of the Delhi Special Police Establishment Act, 1946 whereby the Central Government with the consent of the State Government of Bihar in their notification dated 2.6.1994 extended the powers and jurisdiction of the members of the Delhi Special police Establishment to the whole of the State of Bihar for investigation of offences under Section 457, 436, 427/120-B and 201 IPC and Section 4 of the Prevention of Damages to Public Property Act, 1984 registered at Dhanbad Police Station, Dhansar, Bihar in their case No. 159 dated 9.3.1993 and any other offences, attempts, abatement and conspiracy in relation to or in connection with the said offence committed in the course of the same transactions or arising out of the same fact or facts in relation to the said case. There is no provision in law under which, while granting consent or extending the powers and jurisdiction of the Delhi Special Police Establishment to the specified State and to any specified case any reasons are required to be recorded on the face of the notification. The learned Single Judge of the Patna High Court was clearly in error in holding so. If investigation by the local police is not satisfactory, a further investigation is not precluded. In the present case the material on record shows that the investigation by the local police was not satisfactory. In fact the local police had filed a final report before the Chief Judicial Magistrate, Dhanbad. The report, however, was pending and had not been accepted when the Central Government issued the impugned notification. As a result, the C.B.I. has been directed to further investigate the offences registered under the said F.I.R. with the consent of the State Government and in accordance with law. Under Section 173(8) of the Cr. PC 1973 also, there is an analogous provision for further investigation in respect of an offence after a report under Sub-section (2) has been forwarded to the Magistrate.

9. We fail to see any requirement of law under which the reasons for further investigation by the C.B.I. are required to be recorded in the notifications of the kind in question. The reasons can be shown independently.

10. The appeal is, therefore, allowed and the impugned judgment and order of the Single Judge of the Patna High Court is set aside and the writ petition is dismissed.