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REPORTABLE  

IN THE SUPREME COURT OF INDIA  

CIVIL APPELLATE JURISDICTION  

SPECIAL LEAVE PETITION (CIVIL) NO.                 OF  2018                 (Diary No.17180/2018)  

 E. SIVAKUMAR            ....Petitioner(s)          

:Versus:    

UNION OF INDIA AND ORS.           ....Respondent(s)    

O R D E R  

A.M. Khanwilkar, J.  

1. This special leave petition takes exception to the  

judgment and order of the High Court of Judicature at Madras  

dated 26th April, 2018 in Writ Petition No.19335 of 2017,  

whereby the High Court has issued a writ of mandamus to  

transfer the investigation of a criminal case concerning the  

illegal manufacture and sale of Gutkha and Pan Masala,

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containing Tobacco and/or Nicotine, to the Central Bureau of  

Investigation (“CBI”).  

 2. The petitioner has been named as an accused in the FIR  

because of his alleged involvement in the crime under  

investigation. The petitioner at the relevant time was posted on  

deputation as Food Safety Officer in the Food Safety and Drug  

Administration Department, Ministry of Health. The stated  

crime was being investigated by the State Vigilance  

Commission, constituted by the State of Tamil Nadu, headed  

by a Vigilance Commissioner. The gravamen of the challenge  

to the impugned judgment is on four counts:   

(i) First, that the prayer for transfer of investigation of  

the crime in question to the CBI has already been  

considered and negatived by the Coordinate Bench  

of the same High Court in Writ Petition No.1846 of  

2017 vide judgment dated 27th January, 2017 and  

again in Writ Petition No.12482 of 2017 vide  

judgment dated 28th July, 2017. These decisions  

have been completely disregarded in the impugned  

judgment.   

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(ii) Second, the petitioner though named as an accused  

in the FIR was not given an opportunity of hearing  

nor was made a party in the public interest  

litigation in which the impugned judgment has been  

passed. Resultantly, the judgment under appeal is a  

nullity and liable to be set aside only on this score.    

(iii) Third, no special circumstances have been noted by  

the High Court in the impugned judgment for  

transferring the investigation to CBI. The High  

Court has not even bothered to examine the efficacy  

of the status report regarding the investigation done  

by the Vigilance Commission. In other words, there  

was no tangible ground for directing investigation of  

the crime in question by the CBI.    

(iv) Lastly, it is contended that the writ petition filed as  

public interest litigation was politically motivated  

having been filed by a member of the Legislative  

Assembly in the State of Tamil Nadu.   

3. To buttress the above-mentioned grounds of challenge,  

reliance is placed on the decision of this Court in the case of  

State of Punjab Vs. Davinder Pal Singh Bhullar and Ors.1  

                                                           1   (2011) 14 SCC 770

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4. The admission of this special leave petition is opposed by  

respondent No.14 (writ petitioner). It is urged on behalf of  

respondent No.14 that the High Court has considered all  

aspects of the matter and being satisfied about the  

imperativeness of a fair investigation of the crime in question  

involving high ranking officials and the tentacles of the  

conspiracy in commission of the crime transcending beyond  

the State of Tamil Nadu and into different States,  it deemed it  

appropriate to issue a writ of mandamus to transfer the  

investigation to CBI.  It is contended that there is no merit in  

the objections raised on behalf of the petitioner.   

 5. We have heard Mr. Mukul Rohatgi, learned senior  

counsel appearing on behalf of the petitioner and Mr. P.  

Wilson, learned senior counsel appearing on behalf of  

respondent No.14.    

6. On a careful consideration of the impugned judgment, we  

agree with respondent No.14 (writ petitioner) that the High  

Court has cogitated over all the issues exhaustively and being  

fully satisfied about the necessity to ensure fair investigation

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of the crime in question, justly issued a writ of mandamus to  

transfer the investigation to CBI.  As regards the first point  

raised by the petitioner, we find that the High Court was alive  

to the fact that the Coordinate Bench of the same High Court   

had occasion to decide Writ Petition No.1846 of 2017 and Writ  

Petition No.12482 of 2017, as can be discerned from the  

discussion in paragraphs 107 to 122 of the impugned  

judgment. As regards Writ Petition No.1846 of 2017, that was  

filed by one P. Wilson, a lawyer by profession.  Indeed, it was  

filed as public interest litigation to initiate an  

inquiry/investigation into the allegation of corruption,  

investigate, prosecute and ferret out the truth regarding the  

connivance of senior police officers as noted by the  

Commissioner of Police, Chennai City, in his letter dated 22nd  

December, 2016 addressed to the Principal Secretary, Home  

Department, Government of Tamil Nadu.  The Court, however,  

found that the said petition lacked specific ground and  

material and, more so, the Court doubted the bona fides of the  

petitioner therein and thus summarily rejected the petition  

vide judgment dated 27th January, 2017. As regards Writ

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Petition No.12482 of 2017, filed by one K. Kathiresan, a lawyer  

by profession, as public interest litigation, the relief claimed  

was primarily to quash an order dated 30th June, 2017  

granting extension of service to respondent No.5 therein and  

further, to direct registration of a case in reference to the  

communication sent by the Commissioner of Police, Chennai,  

in respect of sale of banned substances, namely, Gutkha and  

Pan Masala in the State of Tamil Nadu and to constitute a  

Special Investigation Team to investigate the case under the  

direct monitoring of the High Court. Thus, the primary  

concern in the said writ petition was about the appointment of  

respondent No.5 therein as Director General of Police on  

account of his name being referred to in the incriminating  

documents seized by the Income Tax Department from the  

partners of a gutkha manufacturing concern.  In the analysis  

of the case, the Coordinate Bench vide its judgment dated 28th  

July, 2017 noted the prayer of the said writ petitioner to direct  

the CBI to take over the investigation by constituting a Special  

Investigating Team. The Court did advert to the question of  

entrusting the investigation to CBI in paragraphs 25A to 25D

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of the said judgment. However, after perusal of the case diary  

of the Director of Vigilance and Anti Corruption, the Court  

opined that the investigation of the crime was in progress.  

Therefore, it only issued directions to strengthen the  

investigation by Vigilance Commissioner in paragraph 30 of  

the said judgment. In that context the Court noted that it was  

not necessary to transfer the inquiry/investigation to CBI.  

That is the thrust of the analysis of the previous judgments, if  

read in proper perspective.  These aspects have been duly  

taken note of in the impugned judgment in paragraphs 107  

onwards, including the legal position on the doctrine of res  

judicata and finally answered in paragraphs 141 to 144 of the  

impugned judgment in the following words:   

 “141. As observed by K.K. Sasidharan and G.R.  

Swaminathan,JJ. in K. Kathiresan, supra, the Vigilance  Commission headed by the Vigilance Commissioner has  extensive powers to curb corruption and initiate action  

against government servants and servants of public sector  undertakings for acceptance of illegal gratification and  

matters incidental thereto. The State Vigilance Commission  might enquire into allegations of corruption against officials  of the State Government. The State Vigilance Commission  

might also conduct a detailed enquiry to fix the responsibility  for the loss of the file containing incriminating materials  handed over to the then Chief Secretary by the Principal  

Director of Income Tax (Investigation) on 12.8.2016 and  ensure that the guilty are brought to book and appropriate

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action taken in accordance with law. However, investigation  by the Vigilance department is from the angle of vigilance.  

The aim is to detect corruption. The power of the Vigilance  Commission to investigate would not extend to an enquiry  

into the modus operandi of the gutkha mafia, the mode and  manner of import from other States, distribution and sale of  gutkha and other chewable forms of tobacco, and detection  

of the sources of supply. Enquiry by the Vigilance  Department would not unearth secret storage and  manufacturing units. Nor would such investigation be able  

to detect incidents of illegal import, supply and sale or nab  those actually manufacturing, supplying, importing, selling  

or otherwise dealing with prohibited food items containing  tobacco and nicotine such as gutkha.   

 142. Investigation by a centralized agency like the CBI would  

be more comprehensive and cover all aspects of the illegal  manufacture, import, supply, distribution and sale of  

banned chewable tobacco items, including the detection of  all those involved in such illegal import, manufacture,  supply, distribution and sale, as also the detection of  

corruption and complicity of public servants and/or  government servants in this regard. As observed above, there  is no conflict between CBI investigation and investigation by  

the State machinery. Investigation can be carried out more  effectively with the CBI and the Vigilance Department  

working in cooperation.   

 143. The underground gutkha business is a crime against  society which needs to be curbed. We, therefore, deem it  

appropriate to direct the CBI to investigate into all aspects of  the offence of illegal manufacture, import, supply,  

distribution and sale of gutkha and other forms of chewable  tobacco which are banned in the State of Tamil Nadu and  the Union Territory of Puducherry, including detection of  

and action against those involved in the offence as aforesaid,  whether directly or indirectly, by aiding abetting the offence  

or interfering with attempts to curb the offence.   

 144. This order is, in our view, not only imperative to stop the  menace of the surreptitious sale of gutkha and chewable  

forms of tobacco which pose a health hazard to people in  general and in particular the youth and to punish the guilty,  

but also to instill faith of the people in the fairness and  impartiality of the investigation. We see no reason for the

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State to view the entrustment of investigation to the CBI as  an affront to the efficiency or efficacy of its own investigation  

system and we make it absolutely clear that this direction is  not to be construed as any definite finding of this Court of the  

complicity of any constitutional functionary or of any specific  official of the State Government.”  

 7. The view so taken by the High Court in the facts of the  

present case, in our opinion, being a possible view, the ground  

under consideration is devoid of merit. Suffice it to observe  

that it is not a case of disregarding the binding decision or  

precedent of the Coordinate Bench of the same High Court. We  

say so because, in the impugned judgment the decision of the  

Coordinate Bench has been distinguished. Besides, the  

question regarding the necessity to ensure a fair and impartial  

investigation of the crime, whose tentacles were not limited to  

the State of Tamil Nadu but transcended beyond to other  

States and may be overseas besides involving high ranking  

officials of the State as well as the Central Government, has  

now been directly answered.  For instilling confidence in the  

minds of the victims as well as public at large, the High Court  

predicated that it was but necessary to entrust the  

investigation of such a crime to CBI.  Viewed thus, there is no  

infirmity in the conclusion reached by the High Court in the

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impugned judgment, for having entrusted the investigation to  

CBI.  

   8. As regards the second ground urged by the petitioner, we  

find that even this aspect has been duly considered in the  

impugned judgment. In paragraph 129 of the impugned  

judgment, reliance has been placed on Dinubhai Boghabhai  

Solanki Vs. State of Gujarat and Ors.2, wherein it has been  

held that in a writ petition seeking impartial investigation, the  

accused was not entitled to opportunity of hearing as a matter  

of course.  Reliance has also been placed in the case of  

Narender G. Goel Vs. State of Maharashtra and Anr. 3,  in  

particular, paragraph 11 of the reported decision wherein the  

Court observed that it is well settled that the accused has no  

right to be heard at the stage of investigation. By entrusting  

the investigation to CBI which, as aforesaid, was imperative in  

the peculiar facts of the present case, the fact that the  

petitioner was not impleaded as a party in the writ petition or  

for that matter, was not heard, in our opinion, will be of no  

                                                           2   (2014) 4 SCC 626  

3   (2009) 6 SCC 65

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avail. That per se cannot be the basis to label the impugned  

judgment as a nullity.    

9. Our attention was invited to the observations made in  

paragraph 73 in the State of Punjab (supra), which in turn  

adverts to the exposition in D. Venkatasubramaniam & Ors.  

Vs. M.K. Mohan Krishnamachari & Anr.,4  wherein it has  

been held that an order passed behind the back of a party is a  

nullity and liable to be set aside only on this score. That may  

be so, if the order to be passed behind the back of the party  

was to entail in some civil consequence to that party. But a  

person who is named as an accused in the FIR, who otherwise  

has no right to be heard at the stage of investigation or to have  

an opportunity of hearing as a matter of course, cannot be  

heard to say that the direction issued to transfer the  

investigation to CBI is a nullity.  This ground, in our opinion,  

is an argument of desperation and deserves to be rejected.   

10. The third contention urged by the petitioner, that neither  

special reasons have been recorded nor the status report of  

                                                           4   (2009) 10 SCC 488

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the investigation already done by the Vigilance Commission  

has been considered, also does not commend us.  As noted  

earlier, the High Court in the impugned judgment has  

exhaustively analysed all aspects of the matter as can be  

discerned from paragraphs 84 to 87, 91 to 97, 100 to 107;   

and again in paragraphs 141-144 which have been extracted  

hitherto. In our opinion, in the peculiar facts of the present  

case, the High Court has justly transferred the investigation to  

CBI after due consideration of all the relevant aspects, which  

approach is consistent with the settled legal position  

expounded in the decisions adverted to in the impugned  

judgment, including the decision in Subrata Chattoraj Vs.  

Union of India and Ors.,5 which predicates that transfer of  

investigation to CBI does not depend on the inadequacy of  

inquiry/investigation  carried out by the State police. We agree  

with the High Court that the facts of the present case and the  

nature of crime being investigated warrants CBI investigation.       

                                                           5   (2014) 8 SCC 768

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11. In the case of Dharam Pal Vs. State of Haryana and  

Ors.,6 this Court has underscored the imperativeness of  

ensuring a fair and impartial investigation against any person  

accused of commission of cognizable offence as the primary  

emphasis is on instilling faith in public at large and the  

investigating agency.  The dictum in paragraph 24 and 25 of  

this reported decision is quite instructive which read thus:  

“24. Be it noted here that the constitutional courts can direct  for further investigation or investigation by some other  investigating agency. The purpose is, there has to be a fair  

investigation and a fair trial. The fair trial may be quite  difficult unless there is a fair investigation. We are absolutely  

conscious that direction for further investigation by another  agency has to be very sparingly issued but the facts depicted  in this case compel us to exercise the said power. We are  

disposed to think that purpose of justice commands that the  cause of the victim, the husband of the deceased, deserves to  

be answered so that miscarriage of justice is avoided.  Therefore, in this case the stage of the case cannot be the  governing factor.  

25. We may further elucidate. The power to order fresh, de  novo or reinvestigation being vested with the constitutional  

courts, the commencement of a trial and examination of  some witnesses cannot be an absolute impediment for  

exercising the said constitutional power which is meant to  ensure a fair and just investigation. It can never be forgotten  that as the great ocean has only one test, the test of salt, so  

does justice has one flavour, the flavour of answering to the  distress of the people without any discrimination. We may  

hasten to add that the democratic set-up has the potentiality  

                                                           6   (2016) 4 SCC 160

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of ruination if a citizen feels, the truth uttered by a poor man  is seldom listened to. Not for nothing it has been said that  

sun rises and sun sets, light and darkness, winter and  spring come and go, even the course of time is playful but  

truth remains and sparkles when justice is done. It is the  bounden duty of a court of law to uphold the truth and truth  means absence of deceit, absence of fraud and in a criminal  

investigation a real and fair investigation, not an  investigation that reveals itself as a sham one. It is not  acceptable. It has to be kept uppermost in mind that  

impartial and truthful investigation is imperative. If there is  indentation or concavity in the investigation, can the “faith”  

in investigation be regarded as the gospel truth? Will it have  the sanctity or the purity of a genuine investigation? If a  grave suspicion arises with regard to the investigation,  

should a constitutional court close its hands and accept the  proposition that as the trial has commenced, the matter is  

beyond it? That is the “tour de force” of the prosecution and  if we allow ourselves to say so it has become “idée fixe” but  in our view the imperium of the constitutional courts cannot  

be stifled or smothered by bon mot or polemic. Of course, the  suspicion must have some sort of base and foundation and  not a figment of one’s wild imagination. One may think an  

impartial investigation would be a nostrum but not doing so  would be like playing possum. As has been stated earlier,  

facts are self-evident and the grieved protagonist, a person  belonging to the lower strata. He should not harbour the  feeling that he is an “orphan under law”.  

12. Suffice it to observe that we do not intend to deviate from  

the conclusion reached by the High Court that in the peculiar  

facts and circumstances of the case, it is but appropriate that  

investigation of the crime in question must be entrusted to  

CBI.   

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13. Reverting to the last contention that the High Court  

should have been loath to entertain a public interest litigation  

at the instance of respondent No.14, who happens to be a  

member of the Legislative Assembly in the State of Tamil Nadu  

or that he had pro-actively participated in raising the issue in  

the Assembly, has also been answered in the impugned  

judgment. The Court, while entertaining public interest  

litigation at the instance of respondent No.14, has relied upon  

the dictum in K. Anbazhagan Vs. Superintendent of Police  

and Ors.,7 wherein it is observed that the political opponents  

play an important role both inside and outside the House and  

are the watchdogs of the Government in power. They are the  

mouthpiece to ventilate the grievances of the public at large, if  

genuinely and unbiasedly projected. Referring to this decision,  

the Court noted in paragraph 70 of the impugned judgment  

that a petition filed by such persons (such as respondent  

No.14) cannot be brushed aside on the allegation of political  

vendetta, if otherwise, it is genuine and raises a reasonable  

apprehension of likelihood of bias in the dispensation of  

                                                           7   (2004) 3 SCC 767

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criminal justice system. Accordingly, the ground of challenge  

under consideration, in our opinion, is devoid of merits.   

 14.  While parting, we may restate the observations made by  

the High Court in paragraph 144 of the impugned judgment to  

clarify that the transfer of investigation of the crime in  

question to CBI is no reflection on the efficiency or efficacy of  

the investigation done by the State Vigilance Commission.  We  

reiterate that position.   

 15. As a result, this special leave petition is dismissed.   

.………………………….CJI.  

     (Dipak Misra)   

…………………………..….J.                (A.M. Khanwilkar)  

…………………………..….J.               (Dr. D.Y. Chandrachud)  

New Delhi;  

May 18,  2018.