Table of Content:-
- Background of the case
- Issues Raised
- Statutory Provisions Involved
- Submissions of the Parties
- Judgment Analysis
- Case Laws:-
- N. Rishbud and Inder Singh v. State of Delhi [AIR 1955 SC 196]
- Muni Lal v. Delhi Administration [AIR 1971 SC 1525]
- Superintendent of Police v. T. Nathamuni [(2014) 16 SCC 285]
Central Bureau of Investigation vs M/S Bhushan Power & Steel Limited & Ors. [(2021) SCC Online Del 4085]
Background of the case
In the petition, it was alleged that the respondent company M/S Bhushan Power & Steel Limited & Ors. Becomes a part of criminal conspiracy with the intention to cheat the bank or financial institutes or government exchequer by dishonestly and fraudulently diverting the huge sum of money from the bank funds. The present case was registered under section 120B of IPC read with sections 420, 468, 471, and 477A of the Indian Penal Code, 1860 and section
13 (2) which is also read with section 13 (1) (d) of the Prevention of Corruption Act, 1988 against the respondent company.
The present petition was filed under section 482 of the Crpc for setting aside the order passed by the learned Special Judge of Rouse Avenue Court on 7th February 2020 under the Prevention of the Corruption Act, 1988. With the help of the petition filed before the Learned Special Judge the petitioner seeking the permission of the court to allow sub-inspector Amit Kumar to assist the main investigating officer in the investigation which was declined.
Whether a person below the rank of the inspector can assist the main investigating officer in conducting the investigation?
Statutory Provision Involved
- Section 17 of the Prevention of Corruption Act, 1988
“Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), no police officer below the rank,—
(a) In the case of the Delhi Special Police Establishment, of an Inspector of Police;
(b) in the metropolitan areas of Bombay, Calcutta, Madras and Ahmedabad and in any other metropolitan area notified as such under sub-section (1) of section 8 of the Code of Criminal Procedure, 1973 (2 of 1974), of an Assistant Commissioner of Police;
(c) Elsewhere, of a Deputy Superintendent of Police or a police officer of equivalent rank, shall investigate any offence punishable under this Act without the order of a Metropolitan Magistrate or a Magistrate of the first class, as the case may be, or make any arrest therefor without a warrant:
Provided that if a police officer not below the rank of an Inspector of Police is authorised by the State Government in this behalf by general or special order, he may also investigate any such offence without the order of a Metropolitan Magistrate or a Magistrate of the first class, as the case may be, or make arrest therefor without a warrant:
Provided further that an offence referred to in 1 [clause (b) of sub-section (1)] of section 13 shall not be investigated without the order of a police officer not below the rank of a Superintendent of Police.”
- Section 13 (1) (d) of the Prevention of Corruption Act, 1988
(i) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage; or
(ii) by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or
(iii)while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest; or”
- Section 13 (2) of the Prevention of Corruption Act, 1988
“Any public servant who commits criminal misconduct shall be punishable with imprisonment for a term which shall be not less than 2 [four years] but which may extend to 3 [ten years] and shall also be liable to fine.”
- Section 5 (4) of the Prevention of Corruption Act, 1988
“In particular and without prejudice to the generality of the provisions contained in sub-section (3), the provisions of sections 326 and 475 of the Code of Criminal Procedure, 1973 (2 of 1974), shall, so far as may be, apply to the proceedings before a special Judge and for the purposes of the said provisions, a special Judge shall be deemed to be a Magistrate.”
- Section 482 of the code of criminal procedure, 1973
“Whoever uses 1[***] any false property mark shall, unless he proves that he acted without intent to defraud, be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both.]”
- Section 120 B of the Indian Penal Code, 1870
“Punishment of criminal conspiracy.—
(1) Whoever is a party to a criminal conspiracy to commit an offence punishable with death, 2[imprisonment for life] or rigorous imprisonment for a term of two years or upwards, shall, where no express provision is made in this Code for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence.
(2) Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an offence punishable as aforesaid shall be punished with imprisonment of either description for a term not exceeding six months, or with fine or with both.]”
Submissions of the Parties
The contention of the petitioner
Learned SPP Mr. Anupam S. Sharma on behalf of the CBI had submitted the following:-
- It was submitted that inspector Kapil Dhanked the main investigation office was engaged in other cases and proceeding to go on in different courts.
- Further, it was submitted that the present case involved a huge fraud that required proper investigation throughout the country.
- It was contended that firstly the application was presented before the Trial Court whereby the petitioner was seeking permission of the court to allow Sub Inspector Amit Kumar to assist the Investigating Officer Inspector Kapil Dhanked for the perusal of investigation as the bank documents which needs to be examined are voluminous and the investigation needs to be conducted rapidly.
The Contention of the Respondents
Learned Counsel Ms. Nishtha Chaturvedi on behalf of the respondents had submitted the following:-
- It was submitted that the respondent does not have any objection with respect to the prayer made in the present application as there is no prejudice caused to the rights and contentions to challenge the entire investigation in the appropriate proceeding being contrary to section 32A of the Insolvency and Bankruptcy Code.
- NCLT had initiated the Corporate Insolvency Resolution Process in respect of the application filed by the Punjab National Bank under section 7 of the insolvency and Bankruptcy Code.
- Further, it was also submitted that NCLAT had approved the resolution plan with effect from 26th March 2021 when the new management has taken over the management control.
The court observed that the issue raised in the present case was an interpretation of section 17 of the Prevention of Corruption Act, 1988. The court stated that the provision of section 17 corresponds to the section 5A of the Prevention of the Corruption Act, 1988 and the same was also consider in the case of H.N. Rishbud and Inder Singh v. State of Delhi [AIR 1955 SC 196] in which the Supreme Court held that the officer in charge of Police Station can get the investigation done by the subordinate officer but the responsibility of all the steps taken by the subordinate officer is still upon the officer in charge of the police station and the subordinate officer need to report the officer in charge of the police station with respect to all the steps taken by him or her during the investigation.
A similar issue was also deal with in the case of Muni Lal v. Delhi Administration [AIR 1971 SC 1525] in which the Supreme Court had held that
“The High Court found irregularity in the investigation on the basis, as pointed out earlier, that some of the statements are in the hand writing of Ved Prakash. We are of the view that this was a wrong approach made by the High Court. It is clear front the evidence that PW 6 was in complete charge and control of the investigation and he has never withdrawn from the same at any stage. He was the officer who was controlling and giving necessary directions in the course of investigation. Though it is clearly implicit in Section 5-A that the investigation should be conducted by the officer of the appropriate rank, we do not think it is absolutely necessary that every one of the steps in the investigation has to be done by him in person or that he cannot take the assistance of his deputies or that he is bound to go through each and everyone of the steps in the investigation in every case. The above proposition also has been laid down by this Court in H.N. Rishbud and Inder Singh v. The State of Bihar 1955CriLJ526. We are referring to the above aspect to emphasise that the mere fact that some of the statements have been written by Ved Prakash to the dictation of PW 6 will not make the investigation as one not conducted by PW 6. Therefore, under the circumstances, we are not inclined to agree with the view of the High Court that there has been any irregularity or illegality in the conduct of the investigation.”
In Union of India and Others represented through Superintendent of Police v. T. Nathamuni [(2014) 16 SCC 285] has held that for the investigation done by the officer below the rank of the inspector it is required to take permission of the competent magistrate.
The court held that the Trial Court while passing the impugned order is failed to appreciate the mandate of section 17 of the Prevention of the Corruption Act, 1988 as well its duty to import the above-referred exposition of law.
It was also stated by the court that the special judge is empowered under section 17 of the Prevention of the Corruption Act, 1988 to permit the officer below the rank f the inspector to conduct the investigation need to submit the report of all the steps taken by him and under the supervision of the investigating officer and the investigating officer shall be responsible for the act of such officer.
And hence in the absence of any objection by the respondent the present petition is allowed.