ARAN SHOURIE Vs. STATE

JUDGEMENT

(1.) THIS is an application under S. 482 Cr. P.C. for quashing the order passed by Shri Om Prakash Sharma, Chief Judicial Magistrate (Economic Officers), Jaipur dated December 14, 1987, by which he directed the Central Bureau of Investigation to conduct investigation into the allegations levelled in a complaint filed by one Shri Manibhadra Bagra, former General Secretary, Rajasthan N.S.U.I, Jaipur the non-petitioner No. 2

(2.) BRIEF facts leading to this petition are that one Shri Manibhadra Bagra filed a complaint in the court of Chief Judicial Magistrate (Economic Offences), Rajasthan Jaipur, alleging that the accused persons named therein committed offences under Ss. 420, 467, 468, 409 and read with S. 120B IPC and also under Official Secrets Act (O.S. Act), Foreign Exchange Regulation Act (FERA) Prevention of Corruption Act (P.C. Act), Import and Export Act (( & E). Act) and Customs Act. The complainant arrayed besides the two petitioners as accused, six others who have been joined as respondents in this application, and they are Shri V.P. Singh, former Defence Minister. Shri Bherulal, former Director of Enforcement, Government of India, Shri Nasli Wadia, Chairman, Bombay Dyeing and Manufacturing Company, Shri Vinod Pandey, former Secretary Ministry of Finance, Government of India, Shri Ram Nath Goyanka of Express Group and Mr. Micheal Harshman, President, Fairfax, U.S.A. The complainant's allegations are mainly based on the report of Justices Thakkar-Natrajan Commission of Inquiry which was submitted to the Government of India on December 10, 1987. The complainant has alleged that after going through this report and recommendations made therein coupled with the day to day activities of Shri Vishwanath Pratap Singh, he was convinced that the accused persons have entered into a criminal conspiracy and are engaged in the task of defaming the Central Government. It is alleged that Shri V.P Singh, former Finance and Defence Minister in the Government of India was bound by the oath of allegiance and secrecy which he had taken while entering the office. Sarva Shri Vinod Pandey and Bhurelal both were civil servants being I AS. Officer were also obliged to maintain secrecy and allegiance to the country as they were holding important posts in the Government of India. It was further alleged that Sarva Shri Nasli Wadia, Bhurelal and Vinod Pandey, in conspiracy with the two petitioners Arun Shourie and S. Gurumurthy agreed to promote the claim of Shri V.P. Singh for Prime Ministership of this country and in pursuance of that conspiracy, they wanted to defame the present Prime Minister of India, Shri Rajeev Gandhi. It was further alleged that with this view in mind, services of Mr. Micheal Harshman, President of Fairfax a detective agency in United States of America were solicited to investigate into certain matters. It was therefore, alleged that the engagement of Mr. Harshman was not only in violation of law but it threatened the security of the country as important information had been passed over to him. It was alleged that Mr. Nasli Wadia played an important role in securing the services of Harshman and there is possibility that somebody else might have said for the engagement of this agency as no money had been paid by the Government of India. It was also alleged that the engagement of the company and payment to it were kept secret and no record was maintained at the behest of Shri V. P. Singh, Shri Bhurelal, Shri Gurumurthy and Shri Vinod Pandey. It was alleged that all the accused used to meet in hotels and private organisations and used to transmit secrets out side the country and thus they were administering slow poison to the whole country. It was alleged that accused persons also fabricated and forged documents and thereby fraudulently obtained public funds and property for their selfish motives. It was alleged that in this task accused No. 1 mis-used foreign exchange in conspiracy with other accused persons for this purpose and thus, committed offences which are punishable under FERA. It was further alleged that the accused Shri V.P. Singh along with Sarva Shri Bhurelal and Vinod Pandey gave illegal concessions to Mr. Nasli Wadia for importing polyester yarn etc. and there by committed offences punishable under import and Export Control Act. It was further alleged that the accused persons particularly the petitioners along with Shri Ram Nath Goyanka imported printing machinery without payment of any customs duty and, therefore, violated the provisions of Customs Act and the Import and Export Control Act. The complainant further alleged that the accu-sed persons entered into the criminal conspiracy by holding regular meeting at Mohangarh, Devgarh, Jaisalmer,. Bikaner and Jaipur in many prestigious hotels and it was at these places that final shape to the criminal conspiracy was given and the plans prepared. It was also alleged that Mr. Harshman also met Shri Bhurelal, Shri Ramnath Goyanka and others. Hence, the court at Jaipur had jurisdiction to take cognizance. This complaint was filed on December 14, 1987 by the complainant himself as per the order-sheet. He also filed power of Shri Mahesh Chandra Sharma (Dausawala) whose arguments were heard on the same day and the learned C.J.M. (E.O.), Jaipur sent the complaint for investigation to the Superintendent of Police,C.B.I, Jaipur by a detailed order.

(3.) MR. Mahesh Chand Dausawala submitted that basis of the complaint is Justices Thakkar Natrajan Commission's Report. He has made reference to observations made in the report at various places. His submission is that application filed by the accused is pre mature inasmuch as the CBI has not yet even registered the case and the order passed by the Magistrate cannot be interfered with it is submitted that if the Magistrate has power to take cognizance under S. 190 Cr.P.C he has also power to direct investigation under S. 156(3) Cr.P.C. It is submitted that under S. 155 Cr.P.C . if the Magistrate has to be informed and his sanction is obtained by CBI for investigating the non-cogni-zable case under S. 355 Cr.P.C; then it is equally permissible that he can direct the CBI under S. 156 (3) Cr.P.C. to investigate a cognizable offence. In this respect reference was made to Gopal Das Sindhi vs. State of Assam (4). Refer ence was also made to S. 460 (c) Cr.P.C. Learned counsel also submitted that the word 'Court' read with S.3 of the Indian Evidence Act with reference to State of West Bengal Vs. Sampat Lal (5). It is then submitted that it is distinct offence under S 27(1) of the FERA is made out. Similarly an offence under S 5(l)(d) read with S. 5(2) of the Prosecution of Corruption Act is also made out. It is submitted that for each of the offence a specific allegation has been made in the complaint and this court cannot substitute its satisfaction for the satisfaction of the learned Magistrate. It is submitted that this is a matter of public importance where persons highly placed in the society have committed serious offences and have endangered the safety and security of the entire country. It is submitted that High Court should not interfere at the investigation stage and that S 482 Cr.P.C. should not be invoked particularly when a revision was maintainable against the order. Reference was made to S.N. Sharma Vs. Bipen Kumar Tiwari (6), Badaku Joti Swant Vs. State of Mysore (7), Balkishan Vs. State of Maha-rashtra, (8), State of U.P. Vs. Ballabh Das (9) and Eastern Spinning Mills Shri Virendra Sharda Vs. Shri Rajiv Poddar (l0). On the second proposition the learned counsel relied on Phoolchand Vs. State of Raj (11), Ashok Dev. Vs. Bishan Swarup (12) and Raj Kappor Vs. State (Delhi Administration) (13).