Nirmal Singh Khalon v. State of Punjab

The court in this case discusses whether the high court has the power to handover the investigation to CBI or whether reinvestigation and second FIR are maintainable in the case with the relevant provisions.

Introduction

On 22nd October 2008, an appeal was filed by Nirmal Singh Khalon in the Supreme court of India. He is the ex-minister of rural development and panchayats in the state of Punjab. He was accused of scam and corruption in the recruitment of panchayat secretaries of the state. The appeal involved several important questions of law like whether the high court has the power to hand over the investigation to CBI or whether reinvestigation and second FIR are maintainable in the case. These questions were discussed at length by the court and exhaustive answers were provided. The decision pronounced in this case has been instrumental for deciding a number of later cases and has been highly relied upon by the courts.

Facts

In Nirmal Singh Khalon vs. State of Punjab[1] two appeals involving similar facts and question of law were taken up together by the court. Nirmal Singh Khalon (ex-minister rural development and panchayat) was accused of commission of offences under Section 420[2], 467[3], 468[4] and 120 b IPC[5] and Section 13(1) (d), (e)[6] and 13(2)[7] of the Prevention of corruption of act because of his alleged involvement in the recruitment of panchayat secretaries. It was argued that post the written examination for the post, no interview or further communication was conducted and the people were appointed on ad hoc basis for the post. In an appeal, the high court directed the government to conduct a probe into the selection made by the department. The nature of litigation was also changed from private to public. Later, the High Court directed the government to take suo motu cognizance of the matter and ordered the CBI to probe the entire matter. Initially, CBI expressed its inability to take up the case on account of lack of manpower and infrastructure. By intervention of the High Court, the State government issued a notification under Section 6 of the Delhi Special Police Establishment Act, 1946[8] and directed the director of CBI to conduct probe by requesting the central government for more funds. CBI sent a special team for investigation and filed a second a second FIR. Appellant filed for recalling the orders of High court dated 30.04.2003 and 07.05.2003 which had resulted in handing over the investigation to CBI. These applications were dismissed by the court.

Arguments

Arguments of the petitioner

  1. First argument put forth by the appellant is that the High Court had acted illegally and outside jurisdiction by handing over the investigation to CBI.
  2. The lodging of a second FIR and reinvestigation is not permissible.

Arguments of the respondent

  1. First contention is that High Court has a concurrent jurisdiction along with the state government to direct the investigation in the hands of an agency.
  2. Appellant is accused of taking bribe for transfers, promotions and recruitments and having assets disproportionate to his source of income.

Summary of the Judgment

The Supreme Court dismissed the appeal by stating that the argument that as per section 36 CrPC[9], the investigating officer appointed by CBI would not be superior to the police officer of the state government is not applicable to the current case. The court discussed that Delhi Special Police Establishment Act, 1946 which provides for constituting CBI and its jurisdictions. Law and order is the subject of state list, due to which CBI can derive its jurisdiction only when the consent for the same is given. CBI investigation can be referred by 1. Prime Minister of India. 2. Cabinet ministers of the government or Chief Ministers of the state or their equivalent. 3. State government 4. High Court/ Supreme Court.

Section 3 of the Police Act, 1861[10] states that the State has the final say in the superintendence of investigation. The court said that therefore Section 36 CrPC[11] should be read harmoniously with section 3 of the police act[12] and thus, the phrase “in rank” in section 36 should be given a purposive construction. Basic ingredients of this provision are: 1. The investigation has to be carried out by an officer in-charge. 2. Investigation must be supervised an officer superior in rank. 3. This is in respect with the local area to which they are appointed but in context with the power of the state and provisions of the act, they can have a wider application.

 The state has ultimate jurisdiction over the investigation and it may handover the investigation even after filing charge sheet, if it wants to do so. The state has two different jurisdiction 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[13] or otherwise.

The court further stated that if while making a preliminary enquiry by the power vested in it by the notification issued by state government, the CBI comes across the commission of further offences by a larger number of people involving bigger conspiracy, which was not proceeded by the local police at all, a second FIR can be filed.

Further it was stated that an accused has the right to a fair trial as per the fundamental rights of an accused person laid down under article 21 of the constitution of India[14].but state also has to maintain the public order and law and order, and preserve peace and harmony in the society. Thus a victim of a crime also has an equal right to a fair investigation. The state has the obligation to handover the investigation to an appropriate agency, which can include a central agency specialising in the particular matter, when serious allegations were made against the former minister of state except for the cases political revenge.

 If it is seen that the police officers have not made a fair investigation and have left out the aspect of conspiracy from its investigation, the state or the high court can direct investigation for the offence which is separate from the one for the FIR has been lodged already. Only factual foundations and new discover on same facts cannot make the second FIR admissible, in order to make it admissible it has to be shown that after detailed preliminary enquiry the CBI found offence of a wider nature with a bigger conspiracy involved. A large enquiry was undertaken by the CBI in which it found 15 categories of irregularities involving 14 accused persons. Court stated that an offence cannot be proved by merely mentioning section, the mode, manner and the nature of the offence need to be considered. In the first FIR, section 420, 467, 468 and 120 (b) of the IPC along with section 13(1) (d), (e) and 13(2) of the prevention of corruption act were mentioned but no allegation of conspiracy was made. The court said that there is a difference between saying that an offence was committed by a singular person and saying that the offence was conspired by a large number of people who gained unlawful gains. The court said that normally the High Court should not direct the CBI to investigate in a particular matter but the offence in this case is not ordinary in nature. It includes a systematic commission of offences of fraud. A private interest litigation is different from PIL, in a PIL the court need not follow the ordinary procedure strictly and can issue directions to the state from time to time. On the question of reinvestigation the court said that the second FIR being permissible render this question insignificant. It is stated that a further investigation should be carried out by an independent agency and the officers of the state should not be able to get away with the offences. The court said that section 173(8) CrPC[15] which talks of further investigation is an enabling provision. The magistrate can have a say only when cognizance of the offence has been taken. The court said 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.”

Analysis

The Supreme Court has been clearly justified in dismissing the appeal and pronouncing the above written judgement.

In this judgement, the court discussed the disputed provisions at length. The court has given expansive meanings of the sections in order to avoid concentration of power. The court while pronouncing this judgement also relied upon case laws and judgments like court cited Indian Bank vs. Godhara Nagrik Co.[16] and Raju Ramsingh Vasave v. Mahesh Devrao Mahapurkar and others[17] while stating the crux of the judgement “The High Court while entertaining the writ petition formed a prima facie opinion as regards the systematic commission of fraud. While dismissing the writ petition filed by the selected candidates, it initiated a suo motu public interest litigation. It was entitled to do so. The nature of jurisdiction exercised by the High Court, as is well known, in a private interest litigation and in a public interest litigation is different. Whereas in the latter it is inquisitorial in nature, in the former it is adversarial. In a public interest litigation, the court need not strictly follow the ordinary procedure. It may not only appoint committees but also issue directions upon the State from time to time.” The court also relied on many other judgements to reach to its decision.

The judgement pronounced in this case have been cited by the courts in many following cases. In Khomanlal v. State of Chhattisgarh[18], the court stated that “while dealing with the same question relating to recording of subsequent FIR, the Supreme Court in Nirmal Singh case[19] that e second FIR would be maintainable when a discovery is made on factual foundations.” The court further said “ as per dicta of Nirmal Khalon case, normally there can’t be two FIRs against the same accused in the same case, but when there are rival versions of the same episodes, thy would probably take the form of two FIRsand investigation can be carried on under both of them by the same investigating agency.”

In State of Gujarat v. Bilal Ismail Abdul Majid Sujela Bilal Haji[20] the court relied on Nirmal Khalon judgement and said that “in this case it was held that a conspiracy maybe a general one and a separate one, meaning thereby, a larger conspiracy and a smaller one which may develop in successive stages.”

And it was also cited in various other judgements delivered by the courts. These judgements help us to understand that Nirmal Khalon decision has helped in clear understanding of the concerned provisions of the law and has provided clarity on important questions of law in order to prevent any ambiguity and misuse of power.

Conclusion

In this judgement the court has basically given these basic statements – firstly, it said that the nature of jurisdiction exercised by the high court in public interest litigation is different from private interest litigation. Former is inquisitorial in nature and the latter is adversarial. In a Public Interest Litigation, the court need not adhere to the ordinary procedure strictly and can appoint committees and issue directions upon the state. Secondly, the court stated that a second FIR can be maintainable when a discovery on factual grounds is made. Thirdly, a conspiracy can be general or separate, which means a large conspiracy and smaller ones can develop in successive stages. Further, the court stated that the concepts of fair investigation and fair trial are essential features of the fundamental rights of both the accused person and victim of crime given under article 21 of the constitution[21]. These observations and declarations made by the court have been grounds for deciding many further disputes. This judgement has helped in better understanding of section 36 CrPC[22] and section 3 of the police act[23] as well as section 190 CrPC[24] and section 173(8) of the Indian Penal Code[25]. This case has provided a comprehensive explanation of all the disputed provisions of law and has provided a deep and clear understanding of the same.

Also read Zigomanis v. 2156775 Ontario Inc. (D’angelo Brands)


[1]Nirmal Singh Khalon v. State of Punjab, AIR 2009 SC 984.

[2] Indian Penal Code, 1860, § 420.

[3] Indian Penal Code, 1860, § 467.

[4] Indian Penal Code, 1860, § 468.

[5] Indian Penal Code, 1860, § 120 b.

[6]Prevention of Corruption Act, 1988, § 13(1) (d).

[7]Prevention of Corruption Act, 1988, § 13 (2).

[8] Delhi Special Police Establishment Act, 1946, Section 6.

[9] Code of Criminal Procedure, 1973, Section 36.

[10] The Police Act, 1861, § 3.

[11] Supra Note 9.

[12] Supra Note 10.

[13] Supra Note 9.

[14] India Const. art. 21.

[15] Code of Criminal Procedure, 1973, § 173 (8).

[16] Indian Bank vs. GodharaNagrik Co., AIR 2008 SC 2585.

[17] Raju RamsinghVasave vs. Mahesh DevraoMahapurkar and others, (2005) 7 SCC 177.

[18] Khomanlal vs. State of Chhattisgarh, AIR 2012 SC 485.

[19] Supra Note 1.

[20] State of Gujarat vs. Bilal Ismail Abdul Majid Sujela Bilal Haji, 2017 SCC OnLineGuj 1325.

[21] Supra Note 1

[22] Supra Note 1

[23] Supra Note 1

[24] Code of Criminal Procedure, 1973, § 190.

[25] Indian Penal Code, 1860, § 173(8).