VICTIM’S RIGHT TO A FAIR INVESTIGATION NIRMAL SINGH KAHLON –VS- STATE OF PUNJAB AND OTHERS [2009 SCC 1 441]

 

VICTIM’S RIGHT TO A FAIR INVESTIGATION

NIRMAL SINGH KAHLON –VS- STATE OF PUNJAB AND OTHERS [2009 SCC 1  441]

The following is the case analysis of Nirmal Singh Kahlon v. the State of Punjab. The judgment was delivered by a two-judge division bench of the Supreme Court and a number of important issues of law were addressed. In this case, a former minister was accused of allegedly abusing his power in the appointment of panchayat secretaries. The High Court directed the Central Bureau of Investigation to undertake further investigation of the case and a second FIR was subsequently lodged. The main contention that was raised was whether the High Court of Punjab has the authority to hand over the investigation of the case to the Central Bureau of Investigation and whether the orders of reinvestigation and lodging of a second FIR are maintainable. The court analysed the facts and contentions in great detail and gave a very appreciable decision. However, the main highlight of the case is the Supreme Court’s view that a victim of a crime also has an equal right to a fair investigation as per Article 21 of the Indian Constitution just as an accused has a fundamental right to a fair trial under the Article.

FACTS OF THE CASE

On June 14, 2002, FIR was lodged against the appellant Nirmal Singh Kahlon (exminister in the Punjab Government) for committing offences under Section 420, 467, 468, 120-B of the Penal Code and Section 13(1)(d) (e) and 13(2) of the Prevention of Corruption Act, 1998.  He was alleged to have misused his power to make wrong appointments to underserving candidates for his personal gains for the post of Panchayat Secretaries.

High Court directed the government to take Suo Motu cognizance of the matter of making any further investigation and directed the CBI to probe the entire scandal. CBI expressed its inability to take up the investigation on the grounds of a deficiency of

manpower and infrastructure. On May 2, 2003 the State Government issued a notification under Section 6 of the Delhi Special Police Establishment Act, 1946 and directed the director of CBI to conduct a probe by requesting the central government for more funds. The Central Bureau of Investigation sent a special team for an investigation into the matter and on June 26, 2003 registered a first information report. The appellants filed then filed an application praying for recalling the order April 30,

2003 and May 7, 2003 which resulted in the State Government handing over the case to the Central Bureau of Investigation and the second FIR but these prayers were dismissed by the court.

ISSUES INVOLVED IN THE CASE

I. Whether the High Court of Punjab has the authority to hand over the investigation of the case to the Central Bureau of Investigation?

II. Whether the orders of reinvestigation and lodging of a second FIR is maintainable in the present case?

Plea of the Petitioner

The counsel on the behalf of the petitioner contended that the High Court of Punjab acted illegally in directing the investigation to the CBI as such an action was outsideits jurisdiction. It was contended that the Delhi Special Police Establishment Act, 1946 do not provide for the state government to give consent for an investigation by the Central Bureau of Investigation in respect of an offence for which investigation has been completed and the charge sheet is filed and submitted. It was contended that the Section 173(8) of the Code of Criminal Procedure does not

provide for any further investigation by any central agency after the charge sheet has been filed and that in such an event only the Magistrate has the authority to issue orders for further investigation. The counsel present on behalf of the petitioner also contended since a first-hand report was already lodged by the Vigilance department, a second FIR and a further investigation in the matter by the CBI is impermissible in law. It was further contended that in the Section 36 of CrPC on which reliance has been put by the State is inapplicable because the term ‘superior police officer’ is meant for an officer superior in the same hierarchy i.e., in the State Police and not an officer from the Central Bureau of Investigation.

Plea of the Respondent

It was contended that the High Court did have the concurrent jurisdiction along with the state government to direct the investigation in the hands of an agency. It was contended that the term “rank” as used in Section 36 of the Code of Criminal

Procedure is not confined to the same agency but can also mean the investigating agency. It was also argued that according to the terms of Section 6 of Delhi Special Police Establishment Act, 1946, the state has the ultimate authority to hand over the

investigation to the Central Bureau of Investigation. It was also contended that the earlier FIR was general in character but the second one was specific and was in respect to the scam in context to the appointment of panchayat secretaries. Thus, it will be permissible.

LEGAL ASPECTS INVOLVED IN THE CASE

Constitution of India

Article 21

“No person shall be deprived of his life or personal liberty except according to procedure established by law”

Code of Criminal Procedure

Section 36

“Police officers superior in rank to an officer in charge of a police station may exercise the same powers, throughout the local area to which they are appointed, as may be exercised by such officer within the limits of his station.”

Section 173(8)

“Nothing in this section shall be deemed to preclude further investigation in respect of an offence after a report under sub- section (2) has been forwarded to the Magistrate and, where

upon such investigation, the officer in charge of the police station obtains further evidence,  oral or documentary, he shall forward to the Magistrate a further report or reports regarding such evidence in the form prescribed; and the provisions of sub- sections (2) to (6) shall, as far as may be, apply in relation to such report or reports as they apply in relation to a report

forwarded under sub- section (2).”

Section 3 of the Police Act, 1861

“The superintendence of the police throughout a general police-district shall vest in and shall be exercised by the State Government to which such district is subordinate; and except as

authorised under the provisions of this Act, no person, officer, or Court shall be empowered by the State Government to supersede, or control any police functionary.”

Section 6 of the Delhi Special Police Establishment Act, 1946

“Nothing contained in Section 5 shall be deemed to enable any member of the Delhi Special Police Establishment to exercise powers and jurisdiction in any area in a State, not being a Union territory or railway area, without the consent of the Government of that State.”

JUDGEMENT

The Court held that law and order as being a state subject, the Central Bureau of Investigation can derive its jurisdiction only when consent for it is given by the statute (i.e., The Delhi Special Police Establishment Act, 1946). The Court further said that both High Court and Supreme Court can also refer investigation by CBI and the same is also recognised by the

Union Government under the provisions of the CBI manual. The Court also stated that according to Section 3 of the Police Act, 1861, State has the final say in the supervision of the investigation. According to the court, Section 36 CrPC should be read in conjunction with Section 3 of the Police Act, and the words "in rank" in Section 36 should be given a purposive construction. Further, it was stated that an accused has the right to a fair trial under Article 21 of the Indian Constitution but the state is also responsible for maintaining public order, law and order and maintaining peace and harmony in the society. Therefore, as a result, a victim also has an equal right to a fair investigation. On the issue of the second FIR, the court held that the same would be maintainable as a discovery was made in the investigation under factual grounds. The supreme court stated that if one aspect of the matter is left out in an investigation and

when that aspect of the matter comes to light which is distinct from the one for which the FIR was lodged, the state can order further investigation. Further, the court said that section 173(8) of the Code of Criminal Provision which refers to the further investigation, is an enabling provision. It is only after the cognizance of the offence has been taken, the magistrate can have a say. The Court stated that “it is one thing to say that the court will have supervisory jurisdiction in order to have fair investigation, but it is another thing to say that the investigating officer will have no jurisdiction to make further investigation without the permission of the magistrate.” The Court further held that the state has ultimate jurisdiction over the investigation and it may hand over the investigation even after filing the charge sheet

if it wants to do so. The State has two different jurisdictions in the Police Act and CrPC. The power of the state vested under Section 3 is absolute and can’t be restricted by Section 36 or

otherwise. The court also stated that if, while conducting a preliminary investigation under the authority vested in it by the state government's notification, the CBI discovers the commission of further offences by a larger number of people involving a wider conspiracy that was not previously investigated by the local police before, a second FIR can be filed.

Therefore, the Court held that there was no merit in the appeal and the appeal was consequently dismissed.