This judgment of mine shall dispose of three Crl. Misc. Nos. M-38570,37001 and 39482 of 2018 as identical
question of law is involved in all the three cases. However, for the sake of convenience, the facts have been extracted from Crl. Misc. No. M-38570
of 2018.
The present petition has been filed by petitioner-Gurinder Singh Dhillon under Section 482 Cr.P.C. for constituting a Special Investigating Team (SIT)
of the CBI to conduct an independent inquiry to probe the nexus between complainant-Shiv Kumar Sharma and accused-Ashok Goyal to falsely
implicate him in the case. A further prayer has also been made to give a prior/advance notice of seven days to him in case the investigating agency
requires/seeks his arrest in case FIR No. RCCHG2018A0017 dated 14.8.2018 registered under Section 7-A of the Prevention of Corruption
(Amendment) Act, 2018 (hereinafter referred to as 'the Act, 2018') at Police Station CBI, ACB, CHG, Chandigarh.
Briefly, the facts of the case as made out in the present petition are that the petitioner is presently posted as Inspector General of Police, Human
Rights, Punjab, Chandigarh. Earlier he was posted as Inspector General of Police, Ferozepur Range, Ferozepur. A notice under Section 160 Cr.P.C.
was served upon him by Deputy Superintendent of Police, CBI (respondent No.2) to join investigation as a witness in aforesaid FIR dated 14.8.2018
directly,whereas, the same was required to be served upon him through his superior controlling officer. Said notice was accepted by the petitioner and
sought time to join investigation within a period of four to five days preferably on 4.9.2018 just to bring this fact to the notice of DGP, Punjab and for
seeking approval for the same. Thereafter, he filed the present petition, which came up for hearing on 4.9.2018, wherein, it was stated that in
pursuance of notice issued under Section 160 Cr.P.C., he was ready to join investigation as required but apprehended that chances were there of his
arrest during joining of investigation. However, an undertaking was given that the petitioner was ready to appear and cooperate with the investigation
but atleast an opportunity be given before taking any action against him and not to arrest all of a sudden during period of joining investigation. While
issuing notice of motion a direction was also issued by this Court to respondent-CBI not to adopt any coercive method during investigation.
After hearing the parties and on perusal of doucments, it appears that during the posting of the petitioner as IGP, Ferozepur Range, Ferozepur, the
Director General of Police, Punjab marked an inquiry to the petitioner to look into the allegations against complainant-Ex. SSP-Sh. Shiv Kumar
Sharma (respondent No.4) and Surjit Grewal etc. relating to registration of a case bearing FIR No. 1/12 dated 11.1.2012 at Police Station Vigilance
Bureau, Ferozepur against one Mohan Singh, Patwari and his arrest at the instance of Shiv Kumar Sharma. An inquiry was conducted by Sh. Kahan
Singh Pannu, IAS, Principal Secretary to C.M., Punjab. On the basis of inquiry report dated 30.4.2012 conducted by Sh. Kahan Singh Pannu, FIR No.
184 dated 23.8.2012 under Sections 167,211,355 and 506 IPC was registered at Police Station, Sadar Ferozepur against various police officials
including Shiv Kumar Sharma-SSP Vigilance Bureau, Surjit Singh Grewal-Joint Director Vigilance Bureau, Punjab, Surinder Pal Singh Virk-SSP
Vigilance Bureau, Jaspal Singh-SP Vigilance Bureau and one Banarsi Dass. In the inquiry, it was found that Shiv Kumar Sharma, Jaspal Singh,
Ishwar Singh and S.P. Singh were jointly liable for implicating Mohan Singh Patwari in a false case and legal action was recommended to be taken
against them. Thereafter, Mohan Singh, Patwari made a complaint against the aforesaid police officers, on which an inquiry was conducted and report
was submitted to the petitioner on 4.7.2018, wherein, it was mentioned that Shiv Kumar Sharma, Surjit Grewal (Both ex-SSPs) and other police
officials were found to be involved in harassing Mohan Singh. It was also found that Mohan Singh, Patwari was falsely implicated in a corruption case
i.e. FIR No. 1/12, Vigilance Bureau, Ferozepur and said officers were also responsible for disappearance of FSL report from judicial file of FIR No.
184/12. Further investigation as well as action against the investigating officer i.e. the then S.P.(D), Ferozepur was recommended. On perusal of
aforesaid report, SSP, Ferozepur was directed to constitute a Special Investigating Team of Amarjit Singh, SP/H, Ferozepur, Sh. Bhupinder Singh
Bhullar, DSP/Investigation, Ferozepur, Inspector Gurvinder Singh, SHO, Police station City, Ferozepur under his supervision. The petitioner also
recommended departmental action against the then SP/D, Ferozepur, the investigating officer of case FIR No. 184/12 to DGP, Punjab for exonerating
the accused and for not bringing on record the relevant material evidence and for not examining the important witnesses and also ignoring the relevant
statements of witnesses.
During course of investigation, Sections 193,295-A,377,511 IPC were added and DDR No. 43 dated 9.7.2018 was recorded at Police Station Sadar,
Ferozepur and it was forwarded to the concerned Magistrate. In pursuance of investigation conducted by SIT, a raid was conducted at the residence
of Shiv Kumar Sharma, Ex-SSP (respondent No.4) and a large number of documents relating to benami properties were recovered, which were taken
into possession. It was found that the properties of respondent No.4 were disproportionate to the known sources of the income and photocopies of the
property documents alongwith recommendation of Vigilance Inquiry were sent to Chief Director Vigilance Bureau, Punjab.
Learned Senior counsel for the petitioner contends that the petitioner is likely to be involved in a false case by calling him as a witness and
subsequently by making him as an accused by alleging certain allegations for demand of bribe. He further contends that documents pertaining to
property of complainant-Shiv Kumar Sharma were taken into possession vide recovery memo dated 13.7.2018 and the same were dispatched to the
office of Chief Director Vigilance on 6.8.2018, which were duly received in the office on 6/7.8.2018 by entering into diary of CDV on 7.8.2018. The
petitioner has been alleged to demand bribe on 2.8.2018 just to dilute the case against the complainant in case FIR No. 184 dated 23.8.2012 registered
under Sections 167,211,355,506,193,377, 511,295-A, 120-B,201 and 195 IPC but in case such demand of illegal gratification was made on 2.8.2018,
then there was no necessity for the petitioner to dispatch the documents of the property to the Chief Director Vigilance to initiate the appropriate
proceedings against Shiv Kumar Sharma relating to disproportionate assets. Learned Senior counsel also contends that the documents were taken into
custody against proper recovery memo and question of being returning the same to the complainant did not arise. As per allegations, the complainant
had paid an amount of Rs. 5 lacs to Ashok Goyal on 9.8.2018 to get a clean chit from the SIT constituted by the petitioner, whereas, the respondent-
CBI has not considered the fact that vide DDR No. 30 dated 11.8.2018, offences under Sections 204,420,465,471 IPC were added against the
complainant at the instance of petitioner, wherein, the punishment is graver than the sections already added. In case the amount was demanded on
2.8.2018 and part payment was also received by alleged conduit on 9.8.2018 then there was no necessity for the petitioner to add the offences on
11.8.2018. It is also the argument of learned senior counsel that there was no reason for the complainant to approach the petitioner or SIT when
property documents were already sent and received by the office of CDV against proper acknowledgment. The petitioner had also informed orally to
the higher authorities that complainant-Shiv Kumar Sharma was approaching him to offer the bribe and to influence the investigation carried out by
SIT. Learned senior counsel also contends that whatsapp messages were alleged to be sent on 14.8.2018, wherein, demand of money was there at the
instance of accused-Ashok Goyal, while he was in custody of CBI. Said Ashok Goyal was arrested in the evening of 14.8.2018 and while in custody
he was directed to make call to the petitioner and the messages were one sided. Learned senior counsel also submits that foul play on the part of CBI
is also clear from the fact that Ashok Goyal was in illegal detention till 16.8.2018 and prepared his arrest memo. Thereafter, an application for remand
of Ashok Goyal was moved on 17.8.2018. The order passed by Special Judge, CBI Chandigarh clarifies the factual position as the Public Prosecutor
himself submitted that they had arrested Ashok Goyal on 14.8.2018. The order by Special Judge, CBI was passed on 17.8.2018 while seeking police
custody of accused-Ashok Goyal for five days. Learned senior counsel submits that messages by Ashok Goyal were shown to have been sent to the
petitioner just to create an evidence and to implicate the petitioner in the case falsely. There was no response from the side of the petitioner. At the
end learned senior counsel submits that State of Punjab has also admitted in its status report dated 7.10.2018 that as per communication of the office
of Chief Director Vigilance, Punjab, the factum of petitioner communicating to the Chief Director Vigilance the attempt to influence him was found to
be correct. Learned senior counsel has also relied upon the judgments of Hon'ble the Apex Court in the cases of Ritesh Sinha Vs. State of Uttar
Pradesh and another 2013 (1) RCR (Criminal) 629, State of West Bengal and others Vs. The Committee for Protection of Democratic RightsWest
Bengal and others 2010 (2) RCC (Criminal) 141, Mohan Lal Vs. State of Punjab 2018 AIR (SC) 385,3 Nirmal Singh Kahlon Vs. State of Punjab and
others 2009 (1) RCR (Criminal) 3, Bahubhai Vs. State of Gujarat and others 2010 (4) RCR (Criminal) 311, Mithilesh Kumar Singh Vs. State of
Rajasthan 2015 (1) RCR (Criminal) 437, Dashrath Singh Chauhan Vs. Central Bureau of Investigation in Crl. Appeal No. 1276 of 2010 decided on
9.10.2018, Jamuna Chaudhary and others Vs. State of Bihar 1974 (3) SCC 77 4and K. Chandrasekhar Vs. State of Kerala 1998 (2) RCR (Criminal)
719, in support of his contentions.
Mr. Sumeet Goel, learned counsel for CBI has raised a preliminary objection about the maintainability of this petition that the petitioner has no right to
claim transfer of the investigation. The petitioner has been called as witness and no prejudice has been caused to him. Learned counsel further
submits that after registration of the FIR, a trap was laid at Ludhiana and accused-Ashok Goyal was caught red handed by the CBI in the presence of
independent witnesses while demanding and accepting bribe on behalf of the petitioner. Learned counsel further contends that notices under Section
160 Cr.P.C. were issued to the petitioner directly and through SSP, Ferozepur and W/DGP, Punjab on 18.8.2018, 19.8.2018 and 21.8.2018 but he
avoided the process of law deliberately. Thereafter again notice was served upon the petitioner on 28.8.2018 and he showed his willingness to join
investigation on 4.9.2018 but he did not join the investigation. Learned counsel also contends that the petitioner has mentioned wrong facts in the
petition, whereas, the inquiry relating to disproportionate assets was already closed by Vigilance Bureau, Punjab as the allegations being not
sustainable during inquiry and finally order dated 10.8.2016 was conveyed by Chief Director Vigilance Bureau, Punjab to Secretary, Punjab
Government, Vigilance Deprtment, Chandigarh. The petitioner being senior officer of the Punjab Police was well aware about the facts but still in
order to harass the complainant, instructed SSP, Ferozepur to forward the property documents of the complainant to Chief Director Vigilance Bureau,
Punjab. Learned counsel has also brought to the notice of this Court that when CBI officials visited IGP office on 16.8.2018, the property documents
of the complainant were found in the almirah of his office. Mr. Goel further submits that accused-Ashok Goyal was caught red handed in presence of
independent witnesses while demanding and accepting bribe money, which was recovered from his possession. This factum of demanding bribe of Rs.
10 lacs on the direction of the petitioner has been admitted by accused-Ashok Goyal in presence of independent witnesses. He also disclosed that he
had accepted Rs. 5 lacs from the complainant on 9.8.2018 at Chandigarh and made whatsapp call to the petitioner. Learned counsel also submits that
there is sufficient evidence on record in the form of conversation and CCTV footage that accused-Ashok Goyal had demanded and accepted bribe of
Rs. 5 lacs as part payment from the complainant on 9.8.2018 in the Hotel at Sector 35, Chandigarh on behalf of the petitioner and made a phone call
from his mobile informing the petitioner with regard to acceptance of whole of the amount of bribe. After verification report dated 14.8.2018, the case
was registered under Section 7-A of the Act, 2018. Learned counsel also submits that after disclosure statement made by Ashok Goyal, the presence
of Ayush Bhalla and Satdev Jindal was secured at Hotel Mahal, Ferozepur Road, Ludhiana where the post trap proceedings were conducted by the
CBI team just to verify the role of aforesaid both the persons. As Ayush Bhalla and Satdev Jindal were well acquainted with the facts of the case,
they were also served notices under Section 160 Cr.P.C. to join investigation. Learned counsel also submits that in pursuance to the investigation of
the case, CBI team met the petitioner at his residence adjoining to his office and got the documents produced from the wooden cabinet placed in his
office room. The documents so produced and mobile phone of the petitioner used in exchanging whatsapp messages with accused-Ashok Goyal were
taken into possession vide production cum seizure memo dated 17.8.2018 duly signed by all persons including independent witnesses. Learned counsel
also submits that due procedure of law was followed while taking over the documents. Learned counsel also submits that a baseless story has been
concocted by the petitioner just to evade investigation, whereas, he appears to be involved in the case. He was called to join the investigation but his
intention was never to join investigation. By relying upon latest judgment of Hon'ble the Apex Court in the case of Romila Thapar and others Vs.
Union of India and others (Writ Petition (Criminal) No. 260 of 2018 decided on 28.9.2019), learned counsel for CBI submits that there are no
allegations against the investigating officer and no personal malice is there against the petitioner. The Court is to look into the documents collected
during investigation to satisfy its conscious and to see as to whether arrest of concerned accused is justified or not. In case the petitioner is having
apprehension of any sort, he could have moved an application for anticipatory bail but no such application/petition has been filed. Learned counsel
further submits that as per provisions of Section 41 Cr.P.C., the police may arrest any person against whom even a reasonable suspicion is there to
show that he has committed a cognizable offence. Mr. Goel also submits that the accused has no right to challenge the manner and method of the
investigation conducted by the investigating agency. The accused has no right of being heard by claiming the same as a matter of right. At the end,
learned counsel for CBI submits that it is a consistent view of Hon'ble the Apex Court as well as of this Court that the accused cannot ask for
transfer of investigation to some other investigating agency or to do the investigation in a particular manner. In the present case, neither any allegations
are there against the investigating officer nor any malafide and the petition is liable to be dismissed on this ground only. Mr. Goel has also relied upon
the judgments of Hon'ble the Apex Court in the cases of Central Bureau of Investigation and another Vs. Rajesh Gandhi and another 1996 (11) SCC
253, Union of India and another Vs. W.N. Chadha 1993 AIR (SC) 108,2 State of Telangana Vs. Habib Abdullah Jeelani and others 2017 (1) RCR
(Criminal) 537, E. Sivakumar Vs. Union of India and others 2018 (3) RCR (Criminal) 111, Narender G. Goel Vs. State of Maharashtra (Crl. Appeal
No. 1058 of 2009 with No. 1059 of 2009 decided on 8.5.2009), State represented by the CBI Vs. Anil Sharma 1997 (4) RCR (Criminal) 26,8 of this
Court in the cases of Sadhvi Deva Thakur Vs. State of Haryana (Crl. Misc. No. M-16922 of 2017 (O&M) decided on 26.2.2018), Bal Krishan
Fauzdar Vs. State of Haryana 2018 (1) RCR (Criminal) 789, Sajni Bala and another Vs. CBI ACB, Sector 30-A, Chandigarh (Crl. Misc. No. M-
20741 of 2018 decided on 16.5.2018) and of Delhi High Court in the case of Mahender Yadav Vs. Central Bureau of Investigation 2016 (10) AD
(Delhi) 397, in support of his contentions.
Mr. V.K. Jindal, learned senior counsel appearing for respondent No.4-S.K. Sharma has opposed the submissions made by learned counsel for the
petitioner and submits that on the basis of representation made by Mohan Singh, Patwari, re-investigation of the case was initiated in the supervision of
the petitioner while he was posted as IGP, Ferozepur without taking prior permission from the trial Court. The re-investigation of the case was
initiated, whereas, there is a specific bar as no reinvestigation can be done after the presentation of the challan. Even in case of further investigation,
the prior permission of the trial Court was required to be sought by moving proper application under Section 173 (8) Cr.P.C., which clearly shows that
the petitioner was carrying out the investigation with malafide intention just to extract money from the retired police officer. On 13.7.2018, the house
of the complainant was raided at his back so as to arrest him but he was not found present there. No independent witness was present at the time of
search. The documents of the property were taken into possession without giving memo of recovery to the family members, who were present at that
time. Learned senior counsel also submits that the documents recovered were not remotely connected with the investigation of the case. Thereafter,
respondent No.4 approached this Court by way of filing Crl. Misc. No. M-30268 of 2018, wherein, his arrest was stayed by this Court, which is still
pending. Learned senior counsel also contends that mala fide intention of the petitioner is also clear from the fact that security provided to respondent
No.4 was withdrawn at his instance. The petitioner had to approach this Court by way of filing Crl. Misc. No. M-31252 of 2018 for providing security
before this Court, wherein, vide order dated 25.7.2018, respondent No.2 therein was directed to take a conscious decision for providing protection to
the life and liberty of the complainant in pursuance to the representation/letter dated 20.7.2018. Learned Senior counsel also submits that a specific
representation was moved by respondent No.4 on 30.7.2018 for transfer of investigation from the present petitioner as a specific demand of bribe was
there on his part. The amount of bribe was demanded by Ashok Goyal in presence of Ashok Thapar. The conversation was also recorded in the
mobile, which was handed over to the CBI during investigation of the case. Accused-Ashok Goyal demanded Rs. 22 lacs at the instance of petitioner
and Rs. 5 lacs was accepted in a hotel at Chandigarh. The coversation is also reflected in the CCTV cameras. Learned Senior counsel has also relied
upon the judgments of Hon'ble the Apex Court in the case of State of West Bengal and others Vs. Sampat Lal and others 1985 (1) RCR (Criminal)
202, State of Punjab Vs. Davinder Pal Singh Bhullar and other 2012 (1) RCR (Criminal) 12, 6M.C. Abraham and another Vs. State of Maharashtra
and others 2003
(1) RCR (Criminal) 452, Popular Muthiah Vs. State represented by Inspector of Police 2006 (3) RCR (Criminal) 527 and D. Venkatasubramaniam and others Vs.
M.K. Mohan Krishnamachari and another 2009 (4) RCR (Criminal) 318, in support of his contentions.
Mr. Atul Nanda, learned Advocate General, Punjab submits that the petitioner acted in his official capacity while sending the recommendation to Chief
Director Vigilance Bureau, Punjab and proceeded against the complainant. There was no malafide in any manner. The petitioner was regularly
updating about the progress in the investigation of case FIR No. 184/12 registered at Police Station Sadar Ferozpur to the competent authority. The
action on the part of the petitioner was within his jurisdiction and provisions of Section 17 of the Act 2018 are attracted. In view of said provisions of
Section 17-A of the Act 2018, it was mandatory to have prior sanction before proceeding further as the petitioner was discharging his duties as a
public servant but no such approval was sought before taking any action against him. Learned Advocate General further contends that it is a case of
over reaching by the CBI authorities and has exceeded its jurisdiction without following the mandatory provisions. The action taken by the petitioner in
his official capacity was in the knowledge of the State authorities. Learned Advocate General also contends that Section 17-A was added in the Act
by way of amendment, which is applicable in case the official is arrested on the spot while accepting bribe but the present one is not a case where any
bribe was accepted or he was found to be accepting bribe or was arrested by the CBI authorities. As per proviso to Section 8 of the PC Act also, the
matter was not reported to the police within a period of seven days from the alleged acceptance of amount of demand. Learned Advocate General
has also relied upon the judgments of Hon'ble the Apex Court in the cases of S.M.D. Kiran Pasha Vs. Govt. of Andhra Pradesh and others (1990) 1
SCC 328, Manohar Lal Sharma Vs. Principal Secretary and others (2014) 2 SCC 53,2 and S.N. Sharma Vs. Bipen Kumar Tiwari and others 1970 (1)
SCC 653 and Raninder Singh and another Vs. State of Punjab and others 2008 (2) ILR (P&H), in support of his contentions.
Heard the arguments advanced by learned counsel for the parties and have also carefully gone through the documents available on the file including
the petition, replies, status report filed from time to time and written submissions.
The prayer in the present petition is for issuance of direction to constitute a Special Investigating Team (SIT) of the CBI or to conduct the
investigation by some other senior officer to probe the nexus between complainant-Shiv Kumar Sharma and accused-Ashok Goyal as the petitioner
has falsely been implicated on the basis of false allegations made by complainant-Shiv Kumar Sharma. A further prayer has also been made to give
advance notice of seven days to the petitioner in case the investigating agency wants his arrest in case FIR No. RCCHG2018A0017 dated 14.8.2018
registered under Section 7-A of the Act, 2018 at Police Station CBI, ACB, CHG, Chandigarh.
As per grievance of the petitioner, he is being called as a witness but efforts are being made by the CBI to make him as an accused after collecting
some false evidence against him. The intention of the CBI is not fair as neither any sanction has been sought nor any evidence has been collected to
show involvement of the petitioner. It is also the grievance of the petitioner that neither any demand was made by him nor any bribe was accepted.
Certain persons have been made as witnesses to connect the petitioner with the commission of offence. The matter was already referred to SIT by
the petitioner and there was no occasion for him to demand bribe. Even more serious offences were added. The whatsapp messages were created by
the investigating agency while accused-Ashok Goyal was in custody and there was no response from his side. It was one sided story concocted at the
instance of investigating agency. It is also the case of the petitioner that no ingredients for attracting provisions of the Act, 2018 are there as neither
the demand nor any acceptance of bribe was there. The petitioner is also aggrieved by the action of the investigating agency as prior sanction was
required to prosecute a public servant but no such sanction was sought and the investigating agency has exceeded its jurisdiction. The incident has
been shown to be in the jurisdiction of Chandigarh, whereas, neither the amount was recovered nor paid to the petitioner at Chandigarh.
On the other hand, Mr. Sumeet Goel, learned counsel for CBI has raised a preliminary objection that the petitioner has no right/locus standi to file a
petition for change of investigating officer in the absence of any specific allegation or bias against him. It is also the stand of the CBI that the
petitioner has been called as a witness and not as an accused. However, he submits that the petitioner can be made accused in case some evidence is
there against him. In case the petitioner is having any apprehension of any sort, he is at liberty to move an application for anticipatory bail or to avail
any other appropriate remedy available under law.
Similarly, Mr. Atul Nanda, learned Advocate General, Punjab has also stated that no prior sanction to prosecute the petitioner was taken. The
petitioner was regularly conveying the progress of the investigation of case FIR No. 184/12. The action taken by the petitioner was within his
jurisdiction and provisions of Section 17 of the Act, 2018 are attracted. Learned Advocate General further contends that it is a case of over reaching
by the CBI authorities in exceeding its jurisdiction without following the mandatory provisions. The action was not taken in personal capacity by the
petitioner rather it was well within the knowledge of the State authorities.
Undisputedly, the investigation conducted in a criminal offence must be free and fair and not with any ulterior motive. It is the duty of the investigating
officer to conduct the investigation avoiding any kind of mischief and harassment to any of the accused. The investigating officer should be fair and
conscious so as to rule out any possibility of fabrication of evidence and his impartial conduct must be above suspicion. The accused is presumed to be
innocent till he is proved guilty. The alleged accused is entitled for fair and impartial investigation. The prosecution is expected to play balanced role
not only during investigation but during trial also. It is also the observation of Hon'ble the Apex Court in a number of judgments that investigation
should be judicious, fair, transparent and expeditious to ensure compliance with the basic rule of law. It should be in conformity with the constitutional
mandate contained in Articles 20 and 21 of the Constitution of India.
It is not only the responsibility of the investigating agency but as well as of the Courts to ensure that the investigation is fair and does not in any way
hamper the freedom of an individual except in accordance with law. The investigation should not prima facie be fair but impartial and just to draw a
balance between citizen's right under Articles 19 and 21 of the Constitution of India. In some of the important judgments of Hon'ble the Apex Court, it
has been emphasised that where the Court comes to the conclusion that there was a serious irregularity in the investigation, the Court may direct
further investigation under Section 173 (8) of the Cr.P.C., even transferring the investigation to an independent agency, rather than directing re-
investigation by an independent agency. However direction of re-investigation is forbidden in law and the same can be under very rare circumstances
by recording reasons.
Hon'ble the Apex Court in the case of Manu Sharma Vs. State (NCT of Delhi) 2010 (2) RCR (Criminal) 69 2has held that criminal justice
administration system in India places human rights and dignity for human life at a much higher pedestal. Even the accused is also entitlted to true
investigation and fair trial. The fundamental canons of criminal jurispudence should be in conformity with the constitutional mandate contained in
Articles 20 and 21 of the Constitution of India.
The observation made by Hon'ble the Apex Court in S.M.D. Kiran Pasha's case (supra) in para 14 is relevant in the present case and the same is
reproduced as under:-
“.........The question is at what stage the right can be enforced?
Does a citizen has to wait till the right is infringed? Is there no way of enforcement of the right before it is actually infringed? Can the obligation or
compulsion on the part of the State to observe the fight be made effective only after the right is violated or in other words can there be enforcement of
a fight to life and personal liberty before it is actually infringed? What remedy will be left to a person when his right to life is violated? When a right is
yet to be violated, but is threatened with violation can the citizen move the court for protection of the right? The protection of the right is to be
distinguished from its restoration or remedy after violation. When right to personal liberty is guaranteed and the rest of the society, including the State,
is compelled or obligated not to violate that right, and if someone has threatened to violate it or its violation is imminent, and the person whose right is
so threatened or its violation so imminent resorts to Article 226 of the Constitution, could not the court protect observance of his right by restraining
those who threatened to violate it until the court examines the legality of the action? Resort to Article 226 after the right to personal liberty is already
violated is different from the pre-violation protection. Post-viola- tion resort to Article 226 is for remedy against violation and for restoration of the
right, while pre-violation pro- tection is by compelling observance of the obligation or compulsion under law not to infringe the right by all those who
are so obligated or compelled. To surrender and apply for a writ of habeas corpus is a post-violation remedy for restoration of the right which is not
the same as restraining potential violators in case of threatened violation of the right. The question may arise what precisely may amount to threat or
imminence of violation. Law surely cannot take action for internal thoughts but can act only after overt acts. If overt acts towards violation have
already been done and the same has come to the knowledge of the person threatened with that violation and he approaches the court under Art. 226
giving sufficient particulars of proximate actions as would imminently lead to violation of right, should not the court call upon those alleged to have
taken those steps to appear and show cause why they should not be restrained from violating that right? Instead of doing so would it be the proper
course to be adopted to tell the petitioner that the court cannot take any action towards preventive justice until his right is actually violated whereafter
alone he could file petition for a writ of habeas corpus? .......The difference of the two situations have different legal significance. If a threatened
invasion of a right is removed by restraining the potential violator from taking any steps towards violation, the rights remain protected and the
compulsion against its violation is enforced. If the right has already been violated, what is left is the remedy against such violation and for restoration
of the right.â€
It is also not disputed that in criminal justice system, the investigation of an offence is the domain of the police. The power to investigate into the
cognizable offence by the police officer is ordinarily not interfered. However, as the power has to be exercised consistent with the statutory provisions
and for legitimate purpose, the Courts ordinarily do not interfere in the matters of investigation by the police, particularly when the facts and
circumstances do not indicate that the investigating officer is not functioning bona fide but under the exceptional circumstances and when the Court
finds that the police officer has exercised his investigatory powers in breach of statutory provisions putting the personal liberty of the person by illegal
and improper use of the power or there is abuse of the investigatory powers and process by police officer or the investigating agency, the Court may
interfere to protect the personal rights of the persons.
In the Constitutional Bench in State of West Bengal's case (supra) the question that arose was whether the High Court could direct the CBI to
investigate a cognizable offence, which is alleged to have taken place within the territorial jurisdiction of a State, without the consent of the State
Government. Apart from the constitutional issue relating to separation of powers, the other issue related to the statutory bar on investigation, without
the consent of the State Government imposed by Section 6 of the Special Police Act, was considered. The Constitutional Bench also discussed the
issue of separation of powers and later dealt with statutory bar in the context of judicial review. The Constitutional Bench held (in para 68
(vii) of the judgment) that the power of judicial review exercisable by a constitutional court cannot be restricted by a statutory provision. It was held as
follows:-
“68. (vii) When the Special Police Act itself provides that subject to the consent by the State, the CBI can take up investigation in relation to the
crime which was otherwise within the jurisdiction of the State Police, the court can also exercise its constitutional power of judicial review and direct
the CBI to take up the investigation within the jurisdiction of the State. The power of the High Court under Article 226of the Constitution cannot be
taken away, curtailed or diluted by Section 6 of the Special Police Act. Irrespective of there being any statutory provision acting as a restriction on the
powers of the Courts, the restriction imposed by Section 6 of the Special Police Act on the powers of the Union, cannot be read as restriction on the
powers of the Constitutional Courts. Therefore, exercise of power of judicial review by the High Court, in our opinion, would not amount to
infringement of either the doctrine of separation of power or the federal structure.â€
By considering the arguments advanced by learned counsel for the parties and on perusal of documents available on the file, the link evidence appears
to be missing as there is no connectivity of the facts to attract the provisions of the Act, 2018. The twin requirement of demand and acceptance of
bribe amount is missing as in the present case, the amount of bribe has not been accepted by the petitioner and the same has been alleged to be given
to said alleged conduit. Alleged bribe amount has been shown to be paid in two parts and the message in this regard was also sent on whatsapp by the
alleged conduit to the petitioner. It has also come in the arguments raised by learned senior counsel for the petitioner that said conduit was in custody
of CBI and message was sent on whatsapp of the petitioner on asking of the CBI. Meaning thereby, requirement of demand and acceptance of bribe
amount is not fulfilled. Only the presumption is there that the amount was kept in brief case. Said alleged amount has not been shown to have been
accepted by any person. The conversation between the alleged conduit and the petitioner through whatsapp message has been shown to be in
connivance with the petitioner. All these things are required to be carefully inquired/scrutinized after taking into consideration the facts and
circumstances of the case as pointed out by learned counsel for the parties.
Accordingly, after considering the submissions made by learned counsel for the parties, facts as mentioned above and the law position explained
above, the present petition deserve to be allowed. The matter be got investigated further by Special Investigating Team (SIT) headed by a senior
officer in the rank of Superintendent of Police.
Accordingly, Director, CBI is directed to constitute a SIT for the said purpose. The SIT is also directed to conclude the investigation within a period of
four months. The Registry of this Court is also directed to hand over the complete record of the case including the petition filed by the petitioner,
replies filed by all the parties including status report from time to time to the office of Director, CBI, Chandigarh for further handing over the same to
the SIT.
It is also directed that in case any incriminating evidence is collected against the petitioner and the investigating agency comes to a conclusion that he
is involved in any manner, he be given an advance notice of seven days. However, the petitioner is also directed to appear before the SIT as and
when required as a witness or otherwise. It is also directed that in case the investigating agency comes to the conclusion after thorough investigation
that the petitioner is involved in commission of any offence, an appropriate sanction from the State Government be sought before proceeding further .
However, any observation made here-in-above shall not be constructed as an expression of opinion on merits of the case.
