STATE OF ORISSA Vs UJJAL KUMAR BURDHAN
Bench: D.K. JAIN,ANIL R. DAVE
Case number: Crl.A. No.-000546-000546 / 2012
Diary number: 16711 / 2008
Advocates: SURESH CHANDRA TRIPATHY Vs
RANDHIR SINGH JAIN
REPORTABLE IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
C RIMINAL APPEAL NO.546 OF 2012 (Arising out of S.L.P. (Criminal) No. 5667 of 2008)
STATE OF ORISSA & ORS. — APPELLANTS
VERSUS
UJJAL KUMAR BURDHAN — RESPONDENT
J U D G M E N T
D.K. JAIN, J. :
1. Leave granted.
2. This appeal by special leave, assails the judgment
dated 12th February, 2008, rendered by a learned Single
Judge of the High Court of Orissa at Cuttack. By the
impugned order, on a petition under Section 482 of the
Code of Criminal Procedure, 1973 (for short “the
Code”), the investigation initiated by the Vigilance
Department of the State Government into the
allegations of irregularities in the receipt of excess
quota, recycling of rice and distress sale of paddy by
one M/s Haldipada Rice Mill, a proprietary concern of
the respondent, has been quashed.
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3. On receipt of a complaint, the civil supply department
of the State Government initiated an inquiry against the
said concern, relating to the processing of paddy for
and on behalf of the Food Corporation of India.
Preliminary inquiry conducted by the Food and Supply
department revealed certain irregularities in the
procurement and milling of paddy by the respondent. A
subsequent departmental inquiry recommended
initiation of a proper administrative action against the
respondent. Consequently, the State Government
directed the Vigilance Cell of the Police department to
conduct a preliminary inquiry regarding the alleged
criminal acts.
4. In the meantime, on filing of a Writ Petition, being W.P.
No.8315 of 2005, by the respondent, a Division Bench
of the High Court while ordering the issue of the
enforcement certificate to the respondent pending the
ongoing inquiry, directed the completion of the said
inquiry within twelve weeks of the receipt of that order.
In compliance with that order, the Civil Supply
Department of the State Government issued
enforcement certificate to the respondent. However,
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the respondent filed yet another Writ Petition, being
W.P. No.10761 of 2005, inter-alia, praying for quashing
of inquiry proceedings initiated by the State vigilance
department on the ground that an inquiry had already
been conducted on the same complaint by the
department concerned. By way of an interim order, the
High Court directed the State Government not to take
any coercive action against the respondent till further
orders. As a result thereof, the preliminary inquiry came
to a standstill. For a similar relief, respondent filed
another petition, being Crl.M.C.No.2808 of 2006 under
Section 482 of the Code in which the impugned order
has been passed. Aggrieved by the said order, the
State Government as also its two functionaries, viz.
Director-cum-Addl. D.G.P., Vigilance and Dy.
Superintendent of Police, Vigilance Cell have preferred
this appeal.
5. Mr. Suresh Chandra Tripathy, learned counsel
appearing for the appellants submitted that it is settled
law that a preliminary inquiry ought not to be quashed
by the High Court in exercise of its jurisdiction under
Section 482 of the Code. He argued that the High Court
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was not at all justified in interfering with the
investigation at the threshold even before the
registration of an FIR, particularly when in his report
dated 4th June 2005, the civil supply officer had reported
fabrication and forgery of accounts maintained by the
respondent as also violation of the guidelines laid down
in the Food and Procurement Policy for the marketing
season 2004-2005. Referring us to the order dated 18th
July 2005, passed by a Division Bench of the High Court
in W.P.(C) No.8315 of 2005, whereby, as aforesaid, a
direction was issued for expediting the inquiry, learned
counsel stressed that having observed that if in the
inquiry any irregularity is established, the respondent
could be proceeded under the relevant provisions of
law, the High Court committed a serious illegality in law
in quashing the same inquiry/investigation.
6. Per contra, Mr. Randhir Jain, learned counsel appearing
for the respondent supported the impugned judgment
and submitted that the respondent was being harassed
by repeated investigations on the same set of facts. It
was alleged that the inquiry was ordered at the behest
of an Ex-M.L.A. who belonged to the ruling party and
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with whom the respondent shared a long history of
animosity and antagonism. He thus, contended that the
appeal deserved to be dismissed.
7. It is true that the inherent powers vested in the High
Court under Section 482 of the Code are very wide.
Nevertheless, inherent powers do not confer arbitrary
jurisdiction on the High Court to act according to whims
or caprice. This extra-ordinary power has to be
exercised sparingly with circumspection and as far as
possible, for extra-ordinary cases, where allegations in
the complaint or the first information report, taken on
its face value and accepted in their entirety do not
constitute the offence alleged. It needs little emphasis
that unless a case of gross abuse of power is made out
against those incharge of investigation, the High Court
should be loath to interfere at the early/premature
stage of investigation.
8. In State of West Bengal and Ors. Vs. Swapan
Kumar Guha and Ors.1, emphasising that the Court
will not normally interfere with an investigation and will
permit the inquiry into the alleged offence, to be 1 (1982) 1 SCC 561: 1982 SCC (Cri) 283: (1982) 3 SCR 121
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completed, this Court highlighted the necessity of a
proper investigation observing thus:
“An investigation is carried on for the purpose of gathering necessary materials for establishing and proving an offence which is disclosed. When an offence is disclosed, a proper investigation in the interests of justice becomes necessary to collect materials for establishing the offence, and for bringing the offender to book. In the absence of a proper investigation in a case where an offence is disclosed, the offender may succeed in escaping from the consequences and the offender may go unpunished to the detriment of the cause of justice and the society at large. Justice requires that a person who commits an offence has to be brought to book and must be punished for the same. If the court interferes with the proper investigation in a case where an offence has been disclosed, the offence will go unpunished to the serious detriment of the welfare of the society and the cause of the justice suffers. It is on the basis of this principle that the court normally does not interfere with the investigation of a case where an offence has been disclosed....Whether an offence has been disclosed or not must necessarily depend on the facts and circumstances of each particular case....If on a consideration of the relevant materials, the court is satisfied that an offence is disclosed, the court will normally not interfere with the investigation into the offence and will generally allow the investigation into the offence to be completed for collecting materials for proving the offence. ”
(emphasis supplied by us)
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9. On a similar issue under consideration, in Jeffrey J.
Diermeier & Anr. Vs. State of West Bengal & Anr.2,
while explaining the scope and ambit of the inherent
powers of the High Court under Section 482 of the
Code, one of us (D.K. Jain, J.) speaking for the Bench,
has observed as follows:
“20……The section itself envisages three circumstances under which the inherent jurisdiction may be exercised, namely, (i) to give effect to an order under the Code; (ii) to prevent abuse of the process of Court; and (iii) to otherwise secure the ends of justice. Nevertheless, it is neither possible nor desirable to lay down any inflexible rule which would govern the exercise of inherent jurisdiction of the Court. Undoubtedly, the power possessed by the High Court under the said provision is very wide but it is not unlimited. It has to be exercised sparingly, carefully and cautiously, ex debito justitiae to do real and substantial justice for which alone the court exists. It needs little emphasis that the inherent jurisdiction does not confer an arbitrary power on the High Court to act according to whim or caprice. The power exists to prevent abuse of authority and not to produce injustice.”
10. Bearing in mind the afore-said legal position with
regard to the scope and width of the power of the High
Court under Section 482 of the Code, we are
constrained to hold that in the fact-situation at hand, 2 (2010) 6 SCC 243
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the impugned decision is clearly indefensible. In the
present case, the S.P., Vigilance Cell, had merely
approved the opening of an inquiry and converted it
into a Cell File. The preliminary inquiry was yet to
commence and an FIR was yet to be lodged. In the first
instance, the High Court stayed the preliminary inquiry
by an interim order in the Writ Petition, and then by the
impugned judgment quashed the same. It goes without
saying that commencement and completion of an
investigation is necessary to test the veracity of the
alleged commission of an offence. Any kind of
hindrance or obstruction of the process of law from
taking its normal course, without any supervening
circumstances, in a casual manner, merely on the
whims and fancy of the court tantamounts to
miscarriage of justice, which seems to be the case here.
11.We are convinced that the circumstances that have
weighed with the High Court, do not justify the
conclusion it has arrived at. The High Court has allowed
the petition under Section 482 of the Code, inter-alia,
on the following grounds; firstly, the enforcement
certificate had been issued to the respondent which
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evidences compliance with the Rice and Paddy
Procurement (Levy) and Restriction on sale and
Movement Order, 1982. The observation came to be
made by losing sight of the fact that the said
enforcement certificate had been issued pursuant to
the order dated 18th July 2005, passed by the High
Court in W.P. (C) No.8315 of 2005. Secondly, two
inquires on the same facts had already been conducted,
wherein the respondent had been exonerated. The High
Court has committed a grave error of fact in observing
that the respondent had been exonerated in the two
inquiries held previously as both the inquiry reports had
in fact concluded that the respondent had committed
serious irregularities and proper action needs to be
initiated against him. As far as the two previous
inquiries are concerned, it may also be noted that those
inquiries were departmental inquiries and what has
been quashed by the impugned judgment is the
initiation of police investigation. Both the inquiries are
entirely different in nature; operate in different fields
and have different object and consequences.
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12.Further, the impugned order also notes that in view of
the arbitration agreement between the agent and the
Government, all the alleged violations fell within the
purview of Arbitration and Conciliation Act, 1996 and
therefore, the respondent could not be held liable for
any criminal offence. This observation is against the
well settled principle of law that the existence of an
arbitration agreement cannot take the criminal acts out
of the jurisdiction of the courts of law. On this aspect, in
S.W. Palanitkar & Ors. Vs. State of Bihar & Anr.3,
this Court has echoed the following views:
“22. Looking to the complaint and the grievances made by the complainant therein and having regard to the agreement, it is clear that the dispute and grievances arise out of the said agreement. Clause 29 of the agreement provides for reference to arbitration in case of disputes or controversy between the parties and the said clause is wide enough to cover almost all sorts of disputes arising out of the agreement. As a matter of fact, it is also brought to our notice that the complainant issued a notice dated 3- 10-1997 to the appellants invoking this arbitration clause claiming Rs.15 lakhs. It is thereafter the present complaint was filed. For the alleged breach of the agreement in relation to commercial transaction, it is open to the Respondent 2 to proceed against the appellants for his redressal for recovery of money by way of damages for the loss
3 (2002) 1 SCC 241
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caused, if any. Merely because there is an arbitration clause in the agreement, that cannot prevent criminal prosecution against the accused if an act constituting a criminal offence is made out even prima facie .”
(Emphasis supplied)
13.The High Court has also adversely commented upon the
progress of the preliminary inquiry and has recorded
that no new material has been placed on record by the
Vigilance Cell. This has been recorded without having
regard to the fact that the High Court by another order,
dated 5th September 2005, had, by way of an interim
order, directed the State Government not to take any
coercive steps against the respondent, with the result
that there was no occasion for the department
concerned to bring to the fore any material to unravel
the truth. It is also pertinent to note here that the High
Court had itself, by order dated 18th July, 2005 directed
the completion of inquiry within a set time-frame of
twelve weeks, which was subsequently interjected by
an interim order and finally the entire
investigation/inquiry came to be quashed by the
impugned judgment. It seems incongruous that in the
first instance the court set into motion the process of
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law only to ultimately quash it on the specious plea that
it would cause unnecessary embarrassment to the
respondent.
14. For all these reasons, in our opinion, High Court’s
interference with the investigation was totally
unwarranted and therefore, the impugned order cannot
be sustained. We, accordingly, allow the appeal, quash
and set aside the impugned judgment and restore the
investigation initiated against the respondent and direct
the Vigilance Cell of the State to proceed with and
complete the investigation expeditiously, in accordance
with law.
.........…..……………………………… (D.K. JAIN, J.)
..……………………………..………… (ANIL R. DAVE, J.)
NEW DELHI; MARCH 19, 2012
ARS
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