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2012 DIGILAW 1299 (JHR)

Durga Oraon v. State of Jharkhand

2012-09-03

APARESH KUMAR SINGH, PRAKASH TATIA

body2012
ORDER No.69 Dated 3rd September, 2012 I. A. No. 2161 of 2012 1. The applicant, Ashok Kumar, has moved this Court in I.A. No. 2161 of 2012. His grievance is that in pursuance of the order passed in PIL, the C.B.I. has registered the cases and is investigating in the matter as per the order of this court in this petition. But as per the applicant the C.B.I. is proceeding against the persons, who had taken money illegally/gratification, but is not proceeding against the persons, who had given the money. Learned counsel for the applicant submitted that he wants that investigation should include those persons also who have paid the money to the guilty persons against whom the C.B.I. is proceeding. The presence of the applicant is hardly needed as C.B.I. must be knowing against whom cases can be registered and against whom the cases must be registered. Therefore, the I.A. No. 2161 of 2012 is rejected. I. A. No. 2208 of 2012 2. This I.A. No. 2208 of 2012 has been filed by respondent no. 21, Madhu Koda, former Chief Minister of the State. In para 1 of I. A. No. 2208 of 2012, it has been stated that this I.A has been filed for placing on record the additional documents for passing appropriate orders in the interest of justice. 3. It has been stated that Vigilance Department after thorough investigation submitted a charge-sheet against the present applicant Sri Madhu Koda, the then Chief Minister, State of Jharkhand and made out a case of disproportionate asset to the tune of Rs. 1.40 crores. However, the C.B.I. investigated the matter and chargesheet has been filed for involvement of money of Rs. 13 crores. It is also submitted that the matter is pending before the Income Tax Department and now according to the learned counsel for the respondent no.21, the involvement of money is alleged to have been shown as Rs.3000 Crores. Learned counsel for the respondent no. 21 submitted that the C.B.I. should not be influenced by any inquiry made by the Income Tax Department or the statement recorded by the said department. It is also submitted that the C.B.I. should not at all feel pressurized because of the various orders passed by this Court. Learned counsel for the respondent no. 21 submitted that the C.B.I. should not be influenced by any inquiry made by the Income Tax Department or the statement recorded by the said department. It is also submitted that the C.B.I. should not at all feel pressurized because of the various orders passed by this Court. It is also submitted that one R. C. Case No. 219 of 2011 is being delayed because of noncompletion of the investigation by the C.B.I. 4. We have considered the submission of the learned counsel for respondent no. 21, Sri Madhu Koda, the former Chief Minister, State of Jharkhand. In the application, although, there is no merit and we are of the considered opinion that there is no reason to question the intention of the C.B.I. and the apprehension of the respondent no. 21 is not well founded that C.B.I. will work under pressure of any of the departments or because of the orders of this Court only, without there being actual crime. 5. Therefore, we do not find any reason to pass any direction to the C.B.I. so far as the above contention is concerned. We are making it clear that during the course of investigation if the investigating agency comes across very many things and some of the facts which may come to the notice of the Department subsequently, the Department like C.B.I. will proceed according to the fact that they may have found during the course of the investigation. 6. So far as the contention of the learned counsel for the respondent no. 21 with respect to the completion of the investigation by the C.B.I. is concerned, it is the total endeavor of this Court to see that not only investigation be completed expeditiously but also it must be completed fairly and therefore, C.B.I is directed to expedite the pending investigations. 7. The aforesaid I.A. No. 2208 of 2011 is disposed of. W.P.(PIL) Nos.4700/2008 & 2252/2009 8. Heard learned counsel for the writ petitioner and learned counsel for the C.B.I as well as learned counsel for the State Vigilance, Enforcement Department, Income Tax Department and learned counsel for respondent no.17. 9. 7. The aforesaid I.A. No. 2208 of 2011 is disposed of. W.P.(PIL) Nos.4700/2008 & 2252/2009 8. Heard learned counsel for the writ petitioner and learned counsel for the C.B.I as well as learned counsel for the State Vigilance, Enforcement Department, Income Tax Department and learned counsel for respondent no.17. 9. Today learned counsel for the writ petitioner has raised objection that C.B.I has misinterpreted the order of this Court dated 4th August, 2010 and proceeded to investigate in Vigilance P.S Case No.26/2008 dated 26.11.2008 and Vigilance P.S Case No.9/2009 dated 2.7.2009, whereas there are many more accused who may not be accused in those vigilance cases. It is also submitted that this Court in detail, in order dated 4th August, 2010 considered the reasons for sending the matter to C.B.I for investigation and has not passed the order for sending only the aforesaid two cases for C.B.I investigation. 10. Learned counsel for C.B.I submitted that C.B.I has filed chargesheet in two of the cases, which have been referred to C.B.I by the order dated 4th August, 2010, and so is specifically mentioned in paragraph 26 and paragraph 31 of the above order. 11. We considered the submissions of the learned counsel for the parties and perused the order dated 4th August, 2010. At the outset, we may observe that in the writ petition, which was registered as Public Interest Litigation, a few persons have been added as party respondents. The allegation were of very serious nature which have been taken note in paragraph 10 of the order dated 4th August, 2010 and it has been noticed that the allegation is of amassing illicit wealth by various former Ministers, including a former Chief Minister of this State and the money alleged to have been so earned is of unprecedented amounts; however, there is no clear allegation so far about its laundering in the sense mentioned therein but there is an allegation of its investment in property, shares etc., not only in India but also abroad. 12. Thereafter in paragraph 11 and 12, this Court observed as under: “11. 12. Thereafter in paragraph 11 and 12, this Court observed as under: “11. Therefore, the basic investigation requires to determine whether money has been acquired by abuse of official position amounting to an offence under the Prevention of Corruption Act and under the Indian Penal Code, the persons by whom this has been done, the amount of money which has been so earned and places where it has been invested. 12. The amount is alleged to run into several hundred Crores. The investigations done so far allege that the amount unearthed so far in one case is about one and half Crore and in other case is about six and half Crores, which would appear to be merely the tip of iceberg. The investments having been made not only in various States of this country outside the State of Jharkhand but also in other countries means that the investigation called for is not only multiState but also multiNational.” 13. In paragraph 13, the names of 32 companies have been mentioned, for which this Court observed in paragraph 13 that “the matter on the face of it requires a systematic, scientific and analyzed investigation by the expert hand like CBI”. This Court in paragraph 14 observed that money acquired illicitly is alleged to have been invested in five different countries, names of which have been mentioned in paragraph 14. The allegation of involvement of foreign companies was taken note of in paragraph 15 and names of four foreign companies have been mentioned in paragraph 14. In paragraph 17, it has been observed that the Investigating Agency of the State has neither the expertize nor the experience of this kind of investigation, as compared to the Central Bureau of Investigation. Then it has been further observed that the persons involved held high offices in the State Government and there always remains a possibility of their returning back to those offices in foreseeable feature, which would obviously be an impediment in the way of an impartial, fearless, proper and thorough investigation by the officers of the State Investigating Agency. Then it has been further observed that the persons involved held high offices in the State Government and there always remains a possibility of their returning back to those offices in foreseeable feature, which would obviously be an impediment in the way of an impartial, fearless, proper and thorough investigation by the officers of the State Investigating Agency. In paragraph 18, it has clearly been observed that from the exchange of affidavits, it is found that repeated efforts of the Investigating Agencies, which have been investigating the matter so far, including the Income Tax Department and the Enforcement Directorate, have failed to procure the attendance of some of the accused, despite lapse of such a long time. Thereafter in paragraph 19, it has been observed that “Considering all these circumstances we are of the opinion that having regard to the larger public interest, it would be appropriate to have a comprehensive, proper and thorough investigation by an agency, which is independent of the State Government.” Then in paragraph 20, it has further been observed that according to Supreme Court, in an appropriate case, when the Court feels that the investigation by the police authorities is not in proper direction and in order to do complete justice in the case, it is always open to the Court to hand over investigation to independent agency like CBI, even after chargesheet has been submitted. In paragraph 21, it has been observed that in the present case where Ex. Ministers, including Ex. Chief Minister, are involved, investigation by the State Investigating Agency suffers from the same problem as in the case of Rubabbuddin Sheikh v. State of Gujarat & ors., reported in [ (2010)2 SCC 200 ]. Therefore, this Court felt that for a proper investigation inspiring public confidence, it is necessary to hand over the investigation to an independent agency like CBI. In paragraph 22, it has been observed that the kind of resistance that is being offered to a probe by CBI, relying upon the existing investigation which, as pointed out, has not been able to uncover anything below the tip of iceberg, further reenforces the impression that the probe by the independent agency like CBI is likely to uncover much more. This Court, thus, rejected the objection that investigation cannot be ordered merely on the basis of the allegation leveled by media after observing that the Court finds media report stands corroborated at least in part. Therefore, all reasons have been given for sending the entire matter to C.B.I and since, at that time, there were two vigilance cases already registered, those two vigilance cases were also transferred specifically to C.B.I after referring two vigilance cases as mentioned in paragraph 26, which says that “The CBI will take charge of the materials collected so far by the existing investigating agencies for conducting comprehensive, complete and thorough investigation.” In paragraph 31 also, this Court directed and expected from C.B.I to expedite the investigation “into this matter” to the extent to which it is possible having regard to the resources of the C.B.I. The Court is, thus, very conscious and has observed in paragraph 29 that “what is being transferred is investigation into an offence and not in respect of a particular accused”. Therefore, the order dated 4th August, 2010 is unambiguous and clear and it has clearly directed the C.B.I to investigate into the matter and not into two vigilance cases only. Therefore, C.B.I was directed to take charge of the materials collected so far by the existing investigating agencies for conducting comprehensive, complete and thorough investigation. 15. In view of the above reasons, there should not be any ambiguity in the matter of investigation by the C.B.I as the entire matter has been referred to C.B.I and not two vigilance cases. 16. Learned counsel for the petitioner submitted that it is strange that the persons, who came in power for few years, amassed wealth of the public by illegal means while holding public office may have been booked and some of them may have not yet been booked but the persons, like the bureaucrats, who are fully involved in the matter, have not been touched by the C.B.I for the reasons best known to the C.B.I. 17. Since the investigation is pending before the C.B.I, we are not inclined to comment on this issue and the issue can be considered when the C.B.I, after investigation, finds criminality and involvement of the persons, then only this question can come for consideration whether other persons have been left out by the C.B.I in spite of the fact that without their involvement, the offence could not have been committed or they themselves were responsible for commission of any offence individually. Therefore, we are expecting from the C.B.I now to expedite the investigation and complete the same as early as possible so that there may not be any harassment of those persons who have nothing to do with any of the offence. 18. At this juncture, it will be appropriate to mention that learned counsel for respondent no.17 vehemently submitted that even as per the stand of the Income Tax Department and the State Vigilance, respondent no.17 is not involved in any of the criminal cases. Learned counsel for the respondent no.17 submitted that he is being harassed because of the pendency of the investigation pending before the State Vigilance. 19. So far as the case of respondent no.17 is concerned, respondent no.17 is party respondent in the petition. In the Public Interest Litigation of the nature, which is before us, the Court could have referred the matter to the C.B.I without even giving any notice to any of the respondents because of the reason that during investigation, the accused has no right to put his defence and this issue has already been taken note of in the order dated 4th August, 2010 in paragraph 23 and therefore, if the respondent 17 wants to appear in the petition to know the progress of the proceeding and about the orders, he can do so but if he feels, he may not come and the Court may pass appropriate order because of the reason that in course of investigation by the C.B.I or even any of the Departments, no order of exoneration can be passed by the High Court in writ petition, wherein High Court is not investigating any of the matter and is only seeing fair and impartial investigation being made, may it be by the State Vigilance or may it be by the Income Tax Department or by the C.B.I or by the Enforcement Department. 20. 20. We are making it clear that the C.B.I now should proceed expeditiously in investigating the matter so that the evidence may not be lost sight of by the time C.B.I files chargesheet against any of the accused. The C.B.I will submit its progress report on the next date (26.11.2012). 21. Counsel appearing for the Enforcement Department has submitted a comprehensive report today in Court, which is taken on record. 22. We have perused the facts stated in the said report and it has been mentioned in the report that with respect of the properties of value to the tune of Rs.120 crores, attachment order has been issued and under section 45 of P.M.L Act, complaints have been filed and at present involvement of money is Rs.3536.34 crores and US Dollar 24,29,990. Report has also been submitted with respect to ongoing investigation outside India in 8 cases and ongoing investigation in India with respect to several persons already named in the report. 23. The Enforcement Department may expedite investigation which is pending and may see that the investigation is properly conducted in the cases which have been filed. 14. Put up these cases on 26.11.2012. 15. Copies of this order be given to the counsel for the State Vigilance and for C.B.I. Ordered accordingly.