Thursday, October 3, 2024

Supreme Court yet to pronounce verdict on constitutionality of CBI, and CBI's challenge against Madras High Court's verdict on non-compliance with CBI Manual

“When the people fear the government, there is tyranny. When the government fears the people, there is liberty.”
-Thomas Jefferson, the principal author of the Declaration of Independence (1776) and the third President of the United States (1801–1809) quoted by the Division Bench of Gauhati High Court

The Supreme Court's bench of Justices Abhay S Oka and Justice Augustine George Masih heard a quashing petition related to a CBI led corruption case quashed by the Madras High Court's Dr. Justice T. Mathivanana in the State through the Inspector of Police CBI vs. S.Murali Mohan on October 1, 2024. Although two days have passed since the hearing but no order has not been uploaded on the Supreme Court's website as of 4.46 PM on October 3, 2024. A careful reading of Justice Mathivanana's judgement shows that its reasoning is unambiguous and impeccable. CBI has failed to comply with the procedure laid down in the CBI Manual.    

Notably, Supreme Court is yet to decide the constitutionality of CBI, which claims to be exercising functions and powers of police under the Delhi Special Police Establishment (DSPE) Act, 1946. In a reasoned judgement Gauhati High Court's Division Bench has concluded:" we do hold that the CBI is neither an organ nor a part of the DSPE and the CBI cannot be treated as a ‘police force’ constituted under the DSPE Act, 1946. 180. We hereby also set aside and quash the impugned Resolution, dated 01.04.1963, whereby CBI has been constituted. We further set aside and quash the impugned charge-sheet, submitted by the CBI, against the appellant and, consequently, the trial, which rests on the impugned charge-sheet, shall stand set aside and quashed" on November 6, 2011. 

Almost eleven years have passed since the "un-reasoned order of stay" by the Supreme Court on this "reasoned judgment" from the Gauhati High Court which declared its formation to be "unconstitutional". Hearing the matter at his residence on a Saturday (November 9, 2013), Justice P Sathasivam, the 40th Chief Justice of India (2013 to 2014). Chief Justice had passed an "un-reasoned order" to stay the "reasoned judgement" of Gauhati High Court without hearing both the parties. Notices were also issued to all parties involved in the case. The order reads: "Issue notice returnable on 6th December, 2013....In the meantime, there shall be stay of operation of the final judgment and impugned order dated 06.11.2013 passed by the Gauhati High Court in Writ Appeal No. 119 of 2008 in Writ Petition (Civil) No. 6877 of 2005." The stay was reiterated by an order dated December 6, 2013 by a 3-Judge bench of the Chief Justice and Ranjana Prakash Desai and Ranjan Gogoi (who did not participate).  

40th Chief Justice of India Sathasivam retired without deciding the constitutionality of the CBI. After retirement, Sathasivam was appointed the 21st Governor of Kerala from September 5, 2014 for five years. 

In February 2019, Justice I.A. Ansari, former Chief Justice of Patna High Court and the author of the Gauhati High Court's verdict observed: “The CBI was never constituted under any statute, but under an executive order of the Union Home Ministry in the year 1963, and that too, with no backing from the Constitution.” He added, “the very constitutionality of the CBI is questionable, and this question has to be answered by the Supreme Court”. So far the case has been listed for hearing only once on June 26, 2019 before the vacation bench of Justices Sanjiv Khanna and B.R. Gavai. The order reads:"List after vacation." Several vacations have passed but the case regarding the unconstitutionality of the CBI is yet to be decided through a reasoned order.

Notably, 50th Chief Justice of India is all set to retire on November 10, 2024 possibly without deciding the constitutionality of CBI.

Meanwhile, the Supreme Court's bench heard CBI's challenge to an order dated May 15, 2017 passed by Dr. Justice T. Mathivanana, a Single Judge of the High Court of Judicature at Madras on October 1, 2024. The case made out by the petitioner is that the Judge pronounced a one line order in the Court on May 15, 2017. The petitioner applied for grant of a certified copy of the order on the same day. The petitioner submitted that as per the oral information from the Registry of the Madras High Court, the Judge had not issued a detailed order. It was pointed out in the Special Leave Petition that the Judge demitted the office on May 26, 2017. The case made out in the Special Leave Petition is that a certified copy of the impugned judgment was furnished to the petitioner on July 26, 2017. The case made out in the Special Leave Petition is that the detailed reasoned order of the Judge was not available till the date on which he demitted the office.

The Court's order records that another contention has been raised on the basis of a letter dated May 11, 2018 addressed by the Special Public Prosecutor of CBI, Chennai to the Joint Director of CBI, Chennai Zone, Chennai. The said letter records that as per the directions  of the Chief Justice of the Madras High Court, 9 cases, which were heard by the said Judge, were ordered to be heard afresh. Though the letter does not mention the case number of the present case, the submission of the senior counsel appearing for the petitioner is that the present case is also included in the list of 9 cases. The senior counsel appearing for the respondents invited Court's attention to a query made by the respondents under the Right to Information Act, 2005 on December 17, 2018 seeking information about the date of the detailed order in Criminal O.P. No.2245/2017 which is the case subject-matter of this Special Leave Petition. The reply furnished by the Registrar (Administration)/PIO records that the correct date of the order passed in the said case is May 15, 2017.

The dispute raised by the petitioner is not about the date mentioned on the reasoned judgment. The contention of the petitioner is that on May 15, 2017, only a single line order was pronounced by the Judge and till the date on which the Judge demitted the office, the reasoned judgment was not available.

After hearing these submissions, the Court passed an order. It reads: "We, therefore, direct the Registrar General of the High Court of Judicature at Madras at Chennai to furnish following information: (a) What is the date on which the detailed judgment/order dated 15th May, 2017 was received by the Registry from the Office/Chamber of the learned Single Judge; (b) When the detailed judgment/order was uploaded on the website of the High Court; and (c) Whether there was any administrative direction issued by the Hon’ble Chief Justice of the Madras High Court at Chennai for de novo hearing of 09 cases heard by the learned Single Judge and, if such a direction was issued, whether the case subject-matter of this Special Leave Petition has been included in the list of 09 cases." 

It also directed that the Registrar (Judicial) of the Supreme Court to forward a copy of its order to the Registrar General of the High Court of Judicature at Madras at Chennai. The Registrar General was requested to submit a report to this Court by the end of this month. Only for the purposes of considering the report of the Registrar General, the Special Leave Petition was listed under the caption of “Orders/Directions” on the top of the cause list on October 1, 2024. The case was filed on August 11, 2018. It was verified on October 22, 2018 and registered on October 31, 2018. 

Prior to this in S.Murali Mohan and S.Srikala vs. State by The Inspector of Police CBI/ACB/Chennai before the Madras High Court, the petitioners had invoked the provisions of Section 482 of the Code of Criminal Procedure to quash the criminal proceedings of the case which is registered against them on the file of the SP/Inspector of Police, CBI, ACB, Chennai. S.Murali Mohan, the first petitioner is an IRS Officer belonging to 1999 batch in the Income Tax Department and as Additional Commissioner of Income Tax, Range CR-3 Chennai. S.Srikala, the second petitioner is his wife. It is alleged that during the check period i.e., from 01.01.2002 to 30.08.2014, Mohan amassed assets and pecuniary resources to the tune of Rs.3,28,00,029/- in his name as well as in the name of his wife and also in the name of other family members, which is disproportionate to his known and lawful source of income, for which he has not satisfactorily accounted. According to the FIR, the assets in their names prima facie discloses the commission of offences punishable under Sections 120-B IPC r/w.Section 13(2) r/w. 13(1)(e) of the Prevention of Corruption Act,
1988. 

In its 74 page long judgement dated May 15, 2017,  Madras High Court observed: "This Court would like to place it on record that this is a vexation litigation which amounts to abuse of process of Court....This Court, on perusal of the entire allegations made against the petitioners in the FIR is of considered opinion that all the allegations are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the petitioners. Finally, the criminal proceedings initiated by the respondent is manifestly attended with malafide with an
ulterior motive for wreaking vengeance on the petitioners with a view to spite them due to private and personal grudge." The judgement was authored by Dr. Justice T. Mathivanan. 

The judgement records that the source of information regarding corruption by the petitioners was received on December 20, 2016 at 11.00 AM. "The case was registered on the very same date and within half an hour of its registration i.e. at 11.30 AM, the FIR was dispatched to the learned Principal Special Judge for CBI Cases, Chennai. It is thus made clear that the procedure enunciated in the CBI Manual has not been followed." Chapters 8 and 9 of the CBI Manual are relevant in this regard. It also noted that "Admittedly no preliminary enquiry was conducted in this case to ascertain the genuineness of the source information."

Although the case in question from the pre July 1, 2024 era, it is noteworthy that Section 173 (i) and (ii) of Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023 has made preliminary enquiry mandatory. It states: "on receipt of information relating to the commission of any cognizable offence, which is made punishable for three years or more but less than seven years, the officer in charge of the police station may with the prior permission from an officer not below the rank of Deputy Superintendent of Police, considering the nature and gravity of the offence,—(i) proceed to conduct preliminary enquiry to ascertain whether there exists a prima facie case for proceeding in the matter within a period of fourteen days; or (ii) proceed with investigation when there exists a prima facie case." The spirit of this provision is already there in the CBI Manual which does not seem to have been adhered to.

Justice Mathivanan relied on Supreme Court's decision in the State of Haryana and Ors. Vs. Bhajan Lal and Ors. [1992 Supp. (1) SCC 335], to infer that "the allegations made in the FIR, even their taken on their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the petitioners." He concluded: "Keeping in view of the above fact, this Court is of considered view that the criminal proceedings in FIR bearing No. RC MA1 2016 A 0045, on the file of the SP/Inspector of Police, CBI, ACB, Chennai, is deserved to be quashed by exercising inherent jurisdiction of this Court conferred under Section 482 Cr.P.C. In the result, the criminal original petition is allowed and the FIR bearing No. RC MA1 2016 A 0045 on the file of the SP/Inspector of Police, CBI, ACB, Chennai is quashed. The assets seized including the freezed Bank accounts of the petitioners shall be released forthwith by the respondent." The High Court also observed: "This Court has gone through the records and is of the considered opinion that the second petitioner had recognisable independent income and she had been regularly complying with all the statutory requirements."

Isn't there a logical compulsion to decide the constitutionality of CBI before deciding whether or CBI's challenge to a judgement of Madras High Court? Why should the latter get priority over the former?


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