After going through the verdict in The Vigilance and Anti-Corruption Bureau Directorate Vs. Neyyattinkara P. Nagaraj and Others – 2015 (5) KHC 532 which had virtually de-throned a Cabinet Minister of the State, I am penning down the legalities and illegalities of the said verdict which, in my opinion, could have been rendered after deeper study and research. Some of the findings recorded in favour of the writ petitioner (Directorate of Vigilance and Anti-corruption Bureau) and some of the findings recorded against the writ petitioner, are in my view, wrong.
“It was categorically held by the Constitution Bench that the provisions of the CBI Manual overrides the provisions of the Code of Criminal Procedure”.
I did not find such a proposition of law laid down in Lalitha Kumari. In para 89 of Lalita Kumari itself what is observed is that the CBI Manual is not a statute, but only a set of administrative instructions for the internal guidance of the CBI officers and it cannot supersede the Cr.PC. The further observation in Lalita Kumari that the CBI is constituted under the Delhi Special Police Establishment Act, 1946, (‘ DSPE Act” for short) and derives its power to investigate under that Act and the powers of the CBI under the DSPE Act cannot be equated with the powers of the regular State Police under the Cr.PC, does not mean that the CBI Manual overrides the Cr.PC. This is particularly so, since neither the DSPE Act nor the P.C. Act, 1988, prescribe a different procedure for investigation by the police and, therefore, by virtue of Section 4(2) Cr.PC, it is the Cr.PC which will apply regarding the procedure for investigation. In para 4 of M.C. Mehta Vs. Union of India (2007) 1 SCC 110 a three Judge Bench of the Apex Court has categorically held that the CBI Manual is subject to the provisions of Cr.PC and in case of a conflict between the two, the Cr.PC shall prevail.
“72(1) After completion of the investigation a report giving the facts, evidence and circumstances in each case (both for and against the prosecution) shall be forwarded by the Deputy Superintendent of Police to the Superintendent of Police concerned, who will forward the same along with his Forwarding Endorsement to the Director, through the IGP/DIP of Police concerned for further transmission to Government ( In cases personally investigated by the Superintendent of Police or other senior officers, the Factual Report will be prepared by them.). The final decision on a Factual Report either to prosecute an accused or subject him/them to an enquiry by Vigilance Tribunal or otherwise will be taken at the Directorate after assessing the quality and quantum of evidence”.
After extracting Section 173(3) Cr.PC in para 27, the learned Judge observes in para 28 that the Superior Police Officer appointed under Section 158(1) Cr.PC has got the power to scrutinise the final report in case of a general or special order to that effect. In para 29 of the verdict in question the learned Judge specifically held that there is no conflict with regard to the power of the Director under para 72(1) (wrongly mentioned as Section 72(1) of the Vigilance Manual and Section 173 (3) Cr.PC. But the learned Judge had already held in para 24 that the Factual Report submitted by the I.O. is not the final report under Section 173(2) Cr.P.C. If the Factual Report is not the final report and if what the Director, as superior Police Officer, can scrutinise under Section 173(3) Cr.PC is only the final report and not the Factual Report, then there is an apparent conflict between para 72(1) of the Vigilance Manual and Section 173(3) Cr.PC. In para 29 itself the learned Judge has found that the Director has not gone through the final report in this case. If as a matter of fact, there is no conflict between para 72(1) of the Vigilance Manual and Section 173(3) Cr.PC, then there is no dispute that as per para 72(1) of the Manual the final decision on a Factual Report either to prosecute the accused or to subject him to an enquiry by the Vigilance Tribunal or otherwise, will have to be taken at the Directorate and not by the I.O. That was precisely what the Director did in this case. If, as found by the learned Judge, there is no conflict between Para 72 (1) of the Vigilance Manual and Section 173(3) Cr.PC., then what the Director did, namely, directing the I.O. to file the final report before Court after considering the foregoing discussion in the Scrutiny Report of the Director would be perfectly valid. But the learned Judge has contradicted himself by saying in para 31 of the verdict that the Director has virtually substituted the opinion of the I.O. with his opinion in the final report. In the last paragraph the learned Judge has remarked that as per para 72(1) of the Vigilance Manual and Section 158(2) Cr.PC the Director can give timely directions to the I.O. only during investigation and not after that. Accordingly the learned Judge concluded that the Special Judge was right in ordering further investigation which ought to have been ordered by the Director instead of directing the I.O. to file a final report in tune with the scrutiny report.
“39. I am reminded of the Shakespearian saying that ‘Caesar’s wife must be above suspicion ‘. The fundamental principle that justice is not only done but it should appear that it is done, is applicable not to the judiciary alone; whereas, it is equally applicable to the other two pillars of the State also. In a case like this, it is quite natural that the common man may entertain a feeling that there cannot be a proper investigation by a State Machinery when the accused, against whom fingers are pointed out, is continuing as a Minister.”
Thereafter, the learned Judge left the question to the conscience of the accused. The invent message is loud and clear. While it is unfortunate that in this country the media presumes every person accused of an offence to be guilty, a court of justice should be free from any such predilection. I am not on the question of legality, morality or propriety of the above observation made in a writ petition filed by the Directorate of Vigilance and Anti-Corruption Bureau. My objection is regarding the authorship of the statement attributed to Shakespeare that Caesar’s wife must be above suspicion. As far as I could gather, William Shakespeare never made any such statement; nor did he doubt the nuptial fidelity of Pompeia. The statement comes from Plutarch’s account of Julius Caesar’s justification for his decision to divorce his wife Pompeia consequent on the scandal which was spread pursuant to the detection of the libertine Publius Clodius (who was in love with Pompeia.), in the house in which the women of Caesar’s household were celebrating a festival.