REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
C
RI
MINAL 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,
the respondent filed yet another Writ Petition, being W.P.
No.10761 of 2005, inter-alia, praying for quashing of inquiry
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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 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
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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 with whom the
respondent shared a long history of animosity and
antagonism. He thus, contended that the appeal deserved to
be dismissed.
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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 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
1 (1982) 1 SCC 561: 1982 SCC (Cri) 283: (1982) 3 SCR 121
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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)
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
2 (2010) 6 SCC 243
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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, 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
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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 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
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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.
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
3 (2002) 1 SCC 241
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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 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
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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 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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