Sushil Kumar Modi v. State of Bihar — 1996 DIGILAW 828 (PAT)

Order During course of hearing of this case on 13.11.96 we, prima facie, took the view that the C.B.I. had submitted an 'edited' report dated 11.11.96. We expressed doubt as to whether in terms of the order of the Supreme Court dated 5.11.96 in Civil Appeal Nos. 14164-65 of 1996 it is open to the Director, CBI, to edit any part of the report submitted by the Joint Director and/or other CBI officers, and submit a truncated report before the Court. It was observed that if the High Court has to monitor the investigation in terms of the order of the Supreme Court, it is not supposed to do so on the basis of incomplete/truncated reports. We carne to the conclusion that the Director, CBI, had certain misgiving about the import of the Supreme Court's orders aforesaid. We thought it would be appropriate and in the interest of proper investigation into the crimes to discuss the aforesaid aspect of the matter as well as other aspects relating to the course of investigation in his presence. The Director CBI, appeared in person on 11.12.96 and made submissions. We also had the benefit of hearing Mr. T.R. Andhyarujina, Solicitor General of India, appearing on his behalf as well as on behalf of the CBI. 2. At the outset of the hearing we told Mr. Andhyarujina that there was a marked difference between the two reports, the one dated 11.11.96 and the other dated 10.18.96, submitted in connection with the hearing on 11.12.96, and reading the two together hardly leaves any room for doubt that the former report had been materially edited, and that the same was not in consonance with the order of the Supreme Court. Both Mr. T.B. Andhyarujina and the Director requested the Court to forget the past and stated in unequivocal terms that no part of the report submitted to the Director, CBI, would be withheld nor any edited or truncated report shall be submitted. Mr. Andhyarujina also filed written submissions in paragraphs 4 and 5 of which it has been stated, "no report of any officer will be withheld from the Court at any stage, and the High Court may call for any report or document and the CBI is bound to obey such direction of this Court forthwith. Mr. Andhyarujina also filed written submissions in paragraphs 4 and 5 of which it has been stated, "no report of any officer will be withheld from the Court at any stage, and the High Court may call for any report or document and the CBI is bound to obey such direction of this Court forthwith. As the CBI will not withhold any report of any officer which this Hon'ble Court requires, there will be no question of the Director "editing" the report submitted by any officer or submitting a "truncated report" before the Court or withholding any report. In paragraph 3 of the written submissions it has also been stated, "Accordingly, CBI Director has to vet the report submitted by his officers and submit a report to this Court as a report of the. CBI and be responsible for the report." 3. We indicated to Mr. Andhyarujina that there is a very thin line of demarcation between vetting and editing. Mr. Andhyarujina submitted that the Director is the head of the organisation and both in terms of the provisions of the Delhi Special Police Establishment Act as well as in terms of the order of the Supreme Court, wherein he has been made answerable and accountable to the Court for fair, honest and complete investigation, it is necessary that the report to be submitted to this Court should be his report. He pointed out that although there is a hierarchy of officers in the CBI, the Agency functions as one body, at the helm of offairs of which is the Director, and therefore, the report has to be submitted on behalf of the CBI as a whole and it would not be appropriate to direct that the reports submitted by different officers be separately submitted to the Court. 4. We have considered the submissions. It is not necessary to axamine the hierarchical set up in the CBI and the inter se relationship of the CBI officers. The present case is the only case of its kind in which investigation is being monitored by the High Court. Therefore, whatever may be the position in regard to the hierarchical set up of the CBI, in the interest of proper and effective monitoring of the case we think it appropriate to direct that the final report which is submitted to the CBI Headquarters/Director be submitted in its original form. Therefore, whatever may be the position in regard to the hierarchical set up of the CBI, in the interest of proper and effective monitoring of the case we think it appropriate to direct that the final report which is submitted to the CBI Headquarters/Director be submitted in its original form. By our order dated 7.10.96 we had excluded the Director from the investigation. The Supreme Court modified this part of the order. By virtue of the order of the Supreme Court the Director in now not only to be associated with the investigation but is also accountable and answerable to the Court for fair, honest and complete investigation. The correct position, which emerges from the order of the Supreme Court, is that the report of the Joint Director is not to be submitted to this Court directly, the same has to be sent to the Director, CBI/Headquarters and then the same is to be filed in this Court. As indicated above, there is a very thin line of distinction between vetting and editing and if this authority to vet the report submitted to him is given to the Director, he may as well edit a part of it. The proper course, no doubt, would be to hold discussions across the table between the Director, Joint Director and others whose presence may be considered necessary so that differences, it any, between them are ironed out and an unanimous report is submitted. However, if such unanimity is not possible to arrive at, the Director must submit the original report as submitted to him along with his comments/views so that this Court may consider that too and issue appropriate directions. 5. Coming to the course of investigation, we indicated to the Director that period of nine months has already elapsed but end of investigation is not in sight, except in three to four cases in which chargesheets have been submitted. In those cases also the conspiracy angle does not appear to have been gone into, which is so vital for proper investigation into the crimes and in respect of which judicial finding has been recorded in the main judgment. We also indicated that by lapse of time there is possibility of the evidence being destroyed and the guilty persons released on bail by default under Section 167(2) of Criminal Procedure Code. The Director mentioned about the magnitude of the case. We also indicated that by lapse of time there is possibility of the evidence being destroyed and the guilty persons released on bail by default under Section 167(2) of Criminal Procedure Code. The Director mentioned about the magnitude of the case. We do not feel satisfied with the explanation. If the magnitude of the case requires deployment of more man power, the Director should have thought about it earlier and made provisions. The Director informed the Court that the Government of India has sanctioned additional posts. He, however, agreed that it would take a long time to make appointments. Besides, we do not think, investigation would be safe in the hands of new inexperienced recruits. We would, accordingly, direct the CBI to provide adequate man power/personnel at the disposal of the Joint Director (East) within one week of this order. If he has any constraints at the Government level, he should file application seeking direction in that regard. We will, however, in the meantime, direct the competent authority of the Central Government to issue appropriate order in the light of the request as may be made by the Director in this behalf. We made this suggestion to Mr. Andhyarujina pointing out that he represents not only the CBI, but being Solicitor General of India, the Central Government as well and he should give necessary advice to the authority in this regard. 6. In this connection we would also like to impress upon the Director to consider in consultation with the Joint Director the desirability of posting/retaining officers, who do not belong to this State or the State cadre. Keeping in view the involvement of a very large number of persons of different hue and kind, chances of their influencing persons having local background cannot be ruled out. It was one of the reasons why the investigation by local police was not considered proper and the same was entrusted to the CBI. Report submitted to him in this regard must be considered in the correct perspective and appropriate decision taken thereon at the earliest. 7. From the reports submitted by the CBI from time to time it appears that they have interrogated large number of persons and scrutinised indefinite number of documents. They have, however, not been able to unearth a large part of the money which has been swindled by the accused persons. 7. From the reports submitted by the CBI from time to time it appears that they have interrogated large number of persons and scrutinised indefinite number of documents. They have, however, not been able to unearth a large part of the money which has been swindled by the accused persons. The amount involved is said to be in the vicinity of 1000 crores of rupees. The entire money could not have been consumed by them. A large portion must have been invested in real estates or spent otherwise or lying in liquid form. The Agency should make more vigorous efforts to find out as to how and where the money has gone, spent or utilised, and to unearth the hidden money. We would also direct the Agency to involve the Directorate of Enforcement as in some reports submitted earlier instances of violation of Foreign Exchange Regulations have been mentioned. It may be stated here that in the reports submitted by the Income Tax Department also particulars of FERA violations have been given and it has been stated that reference has been made to the Director of Enforcement. We would direct both the CBI and the Income Tax Department to act cohesively to secure appropriate action by the Enforcement Directorate in the matter. 8. In response to the question as to within what time the investigation into the cases can be completed, the Director appeared to be non-commital. He, however, stated that so far as the conspiracy aspect is concerned, investigation will be completed within the period of three months. We do appreciate the fact that going by the number of suspects/accused, witnesses and the documents involved, the CBI has to perform a stupendous task. At the same time we would like to remind the CBI of the fact that this is perhaps the biggest case in terms of money involved and scale-which the CBI has so far been called upon to investigate. While, thus, there may be justification for giving more time, unnecessary delay has to be avoided. We have reasons to believe that at times the pace of investigation becomes slow, as it appears to have happened in the month of November, 1996 and also earlier, and the same gets momentum only at or about the time of next hearing of this case. We have reasons to believe that at times the pace of investigation becomes slow, as it appears to have happened in the month of November, 1996 and also earlier, and the same gets momentum only at or about the time of next hearing of this case. The reports contain materials which constitute prima facie case against the persons concerned and it is not understandable as to why chargesheet cannot be submitted on the basis of the materials referred to therein. In the meantime, in order to ensure expeditious investigation we would direct the CBI to submit a timeframe indicating the stage-wise conclusion of the investigation. 9. A suggestion was made by both the Director, CBI, and the Joint Director (East) that the hearing of this case should take place every 37th day. They pointed out that a tangible progress can be made if a month's time is allowed to the Investigating Officers while the next 7 days may be required for preparation of the report. We have considered the suggestion and we have decided to give the desired time, taking the suggestion to be bona fide and true on its face value. The next extension, if necessary, will be considered on the progress of investigation, in the meantime we would fix this case for further hearing on 17.1.97. 10. We have perused the reports submitted by the Income Tax Department. After we took up the hearing of this case in its current phase, same action has been taken by the Department which cannot be said to be satisfactory. We may mention that we on our own,. keeping in view the public interest involved, thought it proper in our main Judgment to associate the Income Tax Department with this case. We are sorry to say that until the current phase of hearing commenced the Department had done virtually nothing. It is only after we passed interim orders that it rose from slumber. Steps which have been taken by it are far from satisfactory. Never the less, this Court cannot do the work of the Department. During course of hearing on previous occasion we had expressed our dismay as to the manner in which the assessments relating to the suspects/accused of this case and their near relatives had been completed - most of them within the jurisdiction of the Commissioner of Income Tax, Ranchi. Never the less, this Court cannot do the work of the Department. During course of hearing on previous occasion we had expressed our dismay as to the manner in which the assessments relating to the suspects/accused of this case and their near relatives had been completed - most of them within the jurisdiction of the Commissioner of Income Tax, Ranchi. We would like the Department to consider the desirability of reopening the assessments already made. The Department, like the CBI, has been able to unearth part of the wealth/money involved in the crime but that is only small portion of the total amount involved. We would ask the Income Tax Department, as we have done in the case of CBI, to make vigorous endeavours to unearth the hidden money/wealth. They should realise that in doing so they shall not only be doing their statutory duty but also serving the public interest. We would also direct the Department to pursue the matter with the Enforcement Directorate, take the enquiry/investigation being held under Section 131 (1A) of the Income Tax Act to its logical end. We would also take this opportunity of reiterating our previous directions as contained in order 13.11.96 restraining the Settlement Commission from proceeding with any settlement proceeding relating to the so called Income from the Animal Husbandry Department of the Government of Bihar in any form, till further orders. 11. Fix this case for further orders on 17.1.97. 12. Let a copy of this order be handed over to Mr. Rakesh Kumar, counsel for the CBI, Mr. L.N. Rastogi, counsel for the Income Tax Department, and Mr. Ravi Shankar Prasad, counsel for the petitioners.