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REPORTABLE  

IN THE SUPREME COURT OF INDIA  

CIVIL APPELLATE JURISDICTION   

CIVIL APPEAL NOS. 5987-5989   OF  2018  (Arising out of SLP(C) Nos. 6769-6771/2018)  

 Union of India and Anr.         …..Appellant(s)          

:Versus:    

Sunil Tripathi etc. etc.         ....Respondent(s)    

J U D G M E N T  

A.M. Khanwilkar, J.  

1. By the impugned judgment and order dated 20th July,  

2017 passed by the High Court of Delhi at New Delhi in Writ  

Petition (Civil) No.12313 of 2015, Writ Petition (Civil) No.602 of  

2017 & C.M. No.2775 of 2017, the appellant No.2 Central  

Bureau of Investigation (“CBI”) has been directed to take  

immediate steps to convert preliminary enquiry (PE)  

No.2172014A0003 dated 7th May, 2014, PE No.4(A) dated 8th  

May, 2014 and PE No. AC12014 A0006 dated 12th May, 2014  

into FIRs/RCs and to ensure that investigation is

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expeditiously completed and taken to its logical end in  

accordance with law. In addition, consequential directions  

have been issued to the appellant CBI.  

 2. The appellants have assailed the aforesaid decision on  

the ground that such directions to the CBI are untenable in  

law and would require the investigating agency to ignore its  

limits and functions and act beyond the statutory  

dispensation.  According to the appellants, the effect of the  

directions given by the High Court is to call upon the CBI to  

act in a particular manner de hors the material facts and the  

conclusion recorded in the enquiry report. The thrust of the  

contention urged by the appellants is that since the CBI, after  

conducting preliminary enquiry, was of the prima facie opinion  

that there was no involvement of any public servant or any  

loss to the public funds, it was not a fit case for the CBI to  

take over the investigation and that the investigation thereof  

can be conveniently carried out by the State police. In this  

context, a note was submitted by the CBI to the concerned  

department to proceed with the matter in accordance with law.  

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It is urged by the appellants that the High Court misdirected  

itself in relying upon the allegations adverted to in the PE  

registered by the CBI pursuant to the orders passed by the  

High Court on 8th January, 2014 in Writ Petition  

No.5578/2013 and mistook it as the conclusion arrived at by  

the Inquiry Officer. If that basis is discarded, then it would  

necessarily follow that the investigation of the alleged offence  

can be conveniently done by the State police as it does not  

involve any instance of national or international ramifications  

as well. In substance, it is urged by the appellants that it was  

not a fit case for entrusting the investigation of the alleged  

crime to CBI and that the High Court decision has failed to  

analyse all the relevant aspects placed before it in that regard.   

 3.  The respondents, on the other hand, would contend that  

the appellants having failed to challenge the order dated 8th  

January, 2014 passed in Writ Petition No.5578/2013, cannot  

be heard to contend that CBI was not required to take over the  

investigation of the alleged crimes. In that, an unambiguous  

stand was taken by the appellants before the High Court in

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the said writ petition that the investigation of the alleged  

crimes referred to in the writ petition was already entrusted to  

the CBI and the investigation thereof was in progress.   

Notably, the CBI registered three separate P.Es. on 7th, 8th and  

12th of May, 2014, reflective of the offence having been  

committed by unknown officials of the Directorate General of  

Resettlement (“DGR”) and Ex-Servicemen (ESM) and including  

relating to undue peculiar benefit to private firms and other  

persons mentioned in the accused list and corresponding loss  

to public exchequer and Government undertakings. In light of  

the allegations, preliminary enquiry in respect of each of these  

alleged offences came to be registered against the firms and  

other unknown persons mentioned in the PEs.  The concerned  

official who undertook the preliminary enquiry eventually  

submitted notes which were reproduced in the Status Report  

dated 17th October, 2016 filed before the High Court, stating  

thus:  

“2.  That in compliance of order dated 08.01.2014 the  

Respondent No.2 took up preliminary inquiry after receiving  

the writ petition from the Ministry of Defence through the  

Department of Ex-Servicemen Welfare.

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3.  It is also submitted that during the course of enquiry  

in all the three Preliminary Enquiries, the issues raised by  

the Petitioner in his writ petition were covered and inquired  

into by Respondent No.2/CBI. The Inquiry revealed the  

involvement of private persons in the matter of submission of  

false affidavits/information/documents to obtain „SECOND  

CAREER FACILITY‟ through the Directorate General of  

Resettlement.  

4.  During the course of inquiry, the Respondent CBI  

did not come across sufficient evidence to substantiate  

the involvement of public servants to bring the case  

under Prevention of Corruption Act. Since, inquiry did  

not establish the involvement of public servants, the  

Respondent No.2 sent Self Contained Notes to the  

authorities as mentioned below in relation to the  

preliminary inquiries as detailed below:-  

i.  PE2172014A0003/ACU-IV  

Directorate General of Resettlement, Ministry of Defence,  

Government of India, with the request to refer the matters to  

the local police by the concerned Directorates in the matter  

of misrepresentation, forged affidavits and other issues in  

which forgery was revealed during enquiry and take  

necessary action as per the prevalent extant provisions of the  

department on the subject at the relevant point of time.  

ii.  PE AC-I2014A0006  

Director General (Vigilance), Directorate General of Vigilance,  

Customs and Central Excise, Chanakayapuri, New Delhi for  

initiating necessary action as per the provision of Finance  

Act, 1994 against erring service providers on the instances of  

irregularities in deposit of service tax by service providers.  

iii.  PE 04(A)/2014/AC-III NEW DELHI  

Chief Vigilance Officer, Employees Provident Fund  

Organization, Bhikaji Cama Place, New Delhi, Chief Vigilance  

Officer, Ministry of Defence and Chief Vigilance Officers of  

PSUs viz. National High Authority of India and Central

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Warehousing Corporation of India for taking appropriate  

action against the erring ESM companies for committing  

irregularities in depositing PF dues of Security Guards, who  

are employed by them in PSUs.  

5.  In this regard it is submitted that the short affidavit  

filed by CBI be kindly read as part of this status report.  

6.  It is further most respectfully submitted that the CBI  shall abide any further direction(s) passed by this Hon‟ble  Court.”  

      (emphasis supplied)  

 According to the respondents, it was not open to the  

appellants to act upon the aforementioned notes in view of the  

previous statement made before the High Court as recorded in  

the order dated 8th January, 2014, that the CBI has already  

commenced investigation into the alleged crimes.  

Furthermore, the stated notes implicitly conceded that there  

was enough material to suggest commission of cognizable  

offence. The fact that the official submitting stated notes was  

of the view that the offence was committed by persons other  

than public servants, would make no difference.  As a matter  

of fact, the nature of allegations regarding misuse of official  

position and also causing loss to public exchequer, inevitably  

would involve role of public servants and officials.  In either

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case,  it was not open to CBI to resile from the statement made  

before the High Court on 8th January, 2014 and, therefore, the  

Court was justified in directing the CBI to investigate the  

alleged offence after registration of FIRs/RCs. The respondents  

would contend that no material was produced by the CBI  

before the High Court so as to completely rule out the  

involvement of public servant in the commission of the alleged  

offence. The respondents have also invited our attention to  

other criminal cases, which on being investigated by CBI, such  

as RC-19(S)/2013(R) under Section 120B read with Sections  

420, 468 and 471 of IPC at PS CBI/ACB/Ranchi, RC-

009/2016/A0011 dated 20th December, 2016 under Section  

13(2), 13(1)(d) PC Act and Section 120B read with Section 420  

IPC and FIR No.RC-028/2017/A0003 dated 31st January,  

2017 under Section 120B and Section 120B read with Section  

420 IPC.  It is contended that the CBI had investigated these  

offences irrespective of the involvement of public servants.  

According to the respondents, the High Court was justified in  

directing the CBI to register FIRs/RCs and investigate the  

same and take it to its logical end. To buttress the arguments,

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the respondents have placed reliance on the decisions of this  

Court in State of West Bengal and Ors. Vs. Committee for  

Protection of Democratic Rights, West Bengal and Ors.,1  

Manohar Lal Sharma Vs. Principal Secretary and Ors.,2  

and Subramanian Swamy Vs. Director, Central Bureau of  

Investigation and Anr.3     

 4. We have heard Mr. R. Balasubramanium, learned  

counsel appearing for the appellants and Mr. Abhimanue  

Shrestha, learned counsel appearing for the respondents.   

 5. After analysing the impugned judgment, it is noticed that  

the High Court allowed the writ petitions and issued directions  

mainly for the following reason:   

 “10. Given the nature of allegations made in para 9(H) of  

W.P.(C) No.12313/2015  and the observations of the CBI  

upon its preliminary examination as placed before this court  

in the affidavit dated 27th January, 2016, it cannot be denied  

that the present case meets the bar of „exceptional  

situations‟ when it is essential to provide credibility and  

instill confidence in investigations. It also cannot be denied  

that the incident may have national and international  

ramifications. We are also of the view that grant of the prayer  

                                                           1   (2010) 3 SCC 571  

2   (2014) 2 SCC 532  

3   (2014) 8 SCC 682

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made by the writ petitioner is essential for doing complete  

justice and enforcing fundamental and basic rights of the ex-

servicemen. Furthermore, ensuring benefits under a special  

scheme of the Government.”    

 6. As regards the allegations in paragraph 9(H) of Writ  

Petition (Civil) No.12313 of 2015, we find force in the plea  

taken by the appellants that the same is a virtual reproduction  

of the contents of the three PEs registered by the CBI, which  

were based on the allegations contained in the previous writ  

petition and other materials furnished to the CBI consequent  

to the order passed on 8th January, 2014. The appellants, in  

the Status Report as well as in the reply affidavit, had placed  

on record that after the enquiry undertaken consequent to  

registration of three PEs, it was revealed that there was no  

involvement of any public servant and loss to public exchequer  

nor the offences involved national and international  

ramifications necessitating investigation by the CBI. This  

contention has not been properly analysed by the High Court.   

The High Court, however, discarded the argument of the  

appellants in one paragraph, as can be discerned from  

paragraph 10 of the impugned judgment reproduced earlier.

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The High Court has also not dealt with the argument of the  

respondents that after the statement made by the appellants  

before the High Court on 8th January, 2014 that the CBI was  

investigating into the alleged offences and the investigation  

was in progress, it was not open to the appellants to take a  

different position.  Moreso because material became available  

during the enquiry, suggesting commission of alleged offences.  

The respondents would further contend that irrespective of the  

involvement of the public servant, the offences in question  

could be and ought to be investigated by the CBI in terms of  

the provisions of the Delhi Special Police Establishment Act,  

1946 in light of the undertaking given before the High Court  

as recorded in the order dated 8th January, 2014.    

7. Instead of examining all these contentious issues for the  

first time in these appeals, we deem it appropriate to set aside  

the impugned judgment and relegate the parties before the  

High Court for reconsideration of all aspects of the matter  

afresh on its own merits and in accordance with law.  We may  

not be understood to have expressed any opinion, either way,  

on the issues that may require adjudication by the High Court.  

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  8. Accordingly, these appeals are allowed.  The impugned  

judgment and order is set aside and Writ Petition (Civil)  

No.12313 of 2015, Writ Petition (Civil) No.602 of 2017 and  

C.M. No.2775 of 2017  are restored to its original numbers on  

the file of the High Court of Delhi at New Delhi, for being  

decided de novo by the High Court, uninfluenced by any  

observations made in the impugned judgment. All questions  

are left open.   

9. The appeals are disposed of in the aforementioned terms.  

No costs.   

.………………………….CJI.  

     (Dipak Misra)    

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

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

New Delhi;  

July 31, 2018.