1. Heard Sri Amarjeet Singh Rakhra, learned counsel for the revisionist i.e. Central Bureau of Investigation (hereinafter referred to as the CBI) and Sri Sanjay Kumar, learned counsel for the opposite party.
2. By means of this criminal revision which has been filed under section 394/401 read with section 482 Cr.P.C. the order dated 26.3.2003 passed by the then Special Judicial Magistrate (CBI), Lucknow in Case No. 68/98 : CBI vs. Manish Kumar has been impeached. As per aforesaid impugned order the learned court below has discharged the opposite party hereto from the charges which has arisen in Case Crime No. 68/98 under section 420 IPC, P.S. C.B.I. for the reason that no, prima-facie, evidences were available with the CBI against the accused -applicant during the course of the investigation and CBI has got no jurisdiction to make investigation in the issue in question without seeking prior approval from the State Government.
3. The facts and circumstances giving rise to the instant criminal revision, in brief, are that in compliance of the order dated 28.4.1997 passed by this court in Civil Misc. Writ Petition No. 23899 of 1994 filed by one Sri Jiut Lal Jaiswal, CBI had taken up investigation by registering Case RC.10 (A)/97-SIU.I / SIC.I New Delhi on 4.6.1997. In the said writ petition it was alleged that Manish Kumar, the respondent hereto did not have income of his own and if the income of his parent was taken into account, the same would be amounted to Rs. 70,000/- per annum. It was further alleged that Manish Kumar was the student of Engineering at Pune and he was not resident of Chunar for last five years but he had misrepresented himself in his application, for getting allotment of Liquefied Petroleum Gas (LPG) Distributorship, submitted to Indian Oil Corporation.
4. While considering aforesaid allegations this court was pleased to observe vide order dated 28.4.1997 as under:-
"...On these facts, and circumstances of contradictions of declarations made on record by the franchise seekers and the granters, it is contended on behalf of the petitioners that an independent inquiry is required. Such circumstances leave the Court with no option but to have the issues enquired into on the allegations made by the petitioners, as a satisfactory defence or an inclination to present it is not coming from the respondents. Such an inquiry can only be made by an independent but official agency which inquiry the Court can direct. Such an independent agency can only be the Central Bureau of Investigation.
Thus, these matters are assigned to the Central Bureau of Investigation (C.B.I.) for inquiry and submitting a report to the Court within three months..."
5. Pursuant to the aforesaid order dated 28.4.1997 the CBI has carried out the investigation. However, this Court was pleased to direct that the issue in question to be enquired into by the CBI, but the CBI investigated the matter registering the first information report.
6. After making thorough investigation of the issue in question the CBI produced the enquiry report along with all relevant material before this Court and this Court passed the judgment and order dated 13.11.1997 canceling the allotment so given in favour of Manish Kumar and other persons holding that Manish Kumar and other respondents have obtained the license of L.P.G. Distributorship through illegal means and the said writ petition was allowed with cost.
7. In the judgment and order dated 13.11.1997 this court was pleased to take cognizance of the fact that the CBI has registered F.I.R. against Manish Kumar and others and thereafter conducted the investigation. In the internal page 15 of the aforesaid judgment of this Court the reference of the aforesaid fact has been given as under:-
"....In pursuance to the order dated 28.4.1997 by Hon'ble Mr. Justice Ravi S. Dhawan and Hon'ble Mr. V.P. Goel in the Civil Misc. Writ Petition mentioned above, the Central Bureau of Investigation has registered three cases on 4.6.1997...."
8. The relevant portion on the internal page no. 16 and 17 of the judgment and order dated 13.11.1997 is being reproduced herein below:-
"....The Central Bureau of Investigation has conducted the investigation relating to the aforesaid three cases and submitted status reports dated 29.8.1997 and 13.10.1997 before the Hon'ble High Court. The Hon'ble High Court was pleased to pass the order and directed CBI to complete the investigation by 6.11.1997 and file the report u/s 173 Cr.P.C. in the competent court...."
9. The relevant portion on the internal page 38 of the judgment and order dated 13.11.1997 is being reproduced as under:-
"....The analysis of the facts and circumstances as have come on record during the course of investigation have established the following fact:-...."
10. The relevant portion on the internal page 40 of the judgment and order dated 13.11.1997 is being reproduced as under:-
"....Thus the investigation has established that Manish Kumar willfully misrepresented his status of domicile and income but for which he was not eligible; for applying for the LPG distributorship. It has also been established that said Manish Kumar did not submit the proof of his income in the proforma prescribed by Indian Oil Corporation. As per the requirement he was required to give income of his parents. He, however, mentioned the income as that of his uncle that too without specifying the name of his uncle. However, the authorities of Indian Oil Corporation Ltd. and Oil Selection Board entertained his application on he basis of defective affidavit declaring his income.....
11. The relevant portion on the internal page 43 of the judgment and order dated 13.11.1997 is being reproduced as under:-
"....The report u/s 173 Cr.P.C. will be filed against Manish Kumar and / or public servants after observing statutory provisions of sanction for prosecution...."
12. While considering the aforesaid investigation being carried out by the CBI this Court has observed in the internal page no. 45 of the judgment and order dated 13.11.1997 which is being reproduced as under:-
"......In essence, the CBI, after inquiry and investigation has come to the conclusion that the contesting respondents to whom franchises have been given either by the Indian Oil Corporation or Bharat Petroleum, were not eligible to receive the franchise and had received it for extraneous considerations. The CBI has examined the allegations in cases regarding these businessmen who received franchises and retail outlets from the oil corporations, concerned, but while applying did not truthfully give details on the information sought on the eligibility criteria, but with-held essential information....."
13. The relevant portion on internal page 51 of the judgment and order dated 13.11.1997 is being reproduced as under :-
"....The court will take up each of the submissions one by one. In so far as providing the contesting respondents the statements and records on the basis of which the report is based, the Supreme Court had settled this matter in re, Director, CBI and others v. Niyamavedi and others. The High Court should not seem to be affecting the enquiry of the CBI during the course of the investigation by asking the CBI to provide, in effect, statements or records or case diaries. The question of supplying such records, during investigation to the person who is being inquired upon does not arise. This will virtually amount to providing case diaries to the contesting respondents which this court has no intention of doing. Until the final report is filed or a charge sheet, as the case may be, access to the statements or records collected by the CBI during the course of investigation cannot be had by those who are being enquired into....
14. The relevant portion on the internal page 54 of the judgment and order dated 13.11.1997 is being produced as under:-
"...These are the facts on record as have been collected by the CBI, as this Court, at present, is not concerned on who has suppressed how and with what degree. Whether the criminal cases against them for material suppression of facts, when the law obliged them to make a correct disclosure, fail or success not the Court's concern. But today, one thing is clear that on the state of nation where unemployment is rampant, a State run franchise requires very strict standards in selecting the suitors...."
15. In the operative portion of the judgment and order dated 13.11.1997 on internal page 55 is being reproduced as under:-
"....The cases which will be processed by the CBI, when a charge sheet is filed, each of these respondents, concerned, will have a right to file their defence. The Court, thus, can make no comment on the further course of the investigation. But on what the petitioners petitioned to the Court and the consequential inquiry with what has been reported upon by the CBI the petitions are not without cause...."
16. The aforesaid observations being made by this Court makes it abundantly clear that this Court had taken cognizance of the investigation so carried out by the CBI and the learned counsel for the opposite parties have not raised any objection before the writ court that the CBI could have not made investigation in the garb of inquiry. Therefore, from the perusal of the judgment and order of this Court dated 13.11.1997 it reveals that the CBI has not only conducted the investigation by registering the F.I.R. pursuant to the order of this Court but also the entire material was put up before this Court which was looked into and consequential order was passed by this Court.
17. This court vide judgment and order dated 13.11.1997 has referred at some places that pursuant to the direction of this court the CBI was to complete the investigation within three months w.e.f. 28.4.1997, the order passed by this court and thereafter to file report under section 173 Cr.P.C. Therefore, it would be relevant to consider the provision of section 173 Cr.P.C. which is being reproduced herein below:
"173. Report of police officer on completion of investigation.
(1) Every investigation under this Chapter shall be completed without unnecessary delay.
(2) (i) As soon as it is completed, the officer in charge of the police station shall forward to a Magistrate empowered to take cognizance of the offence on a police report, a report in the form prescribed by the State Government, stating-
(a) the names of the parties;
(b) the nature of the information;
(c) the names of the persons who appear to be acquainted with the circumstances of the case;
(d) whether any offence appears to have been committed and, if so, by whom;
(e) whether the accused has been arrested;
(f) whether he has been released on his bond and, if so, weather with or without sureties;
(g) whether he has been forwarded in custody under section 170.
(ii) The officer shall also communicate, In such manner as may be prescribed by the State Government, the action taken by him, to the person, if any, by whom the information relating to the commission of the offence was first given.
(3) Where a superior officer of police has been appointed under section 158, the report shall, in any case in which the State Government by general or special order so directs, be submitted through that officer, and he may, pending the orders of the Magistrate, direct the officer in charge of the police station to make further investigation, (4) Whenever it appears from a report forwarded under this section that the accused has been released on his bond, the Magistrate shall make such order- for the discharge of such bond or otherwise as he thinks fit.
(5) When such report is in respect of a case to which section 170 applies, the police officer shall forward to the Magistrate alongwith the report-
(a) all documents or relevant extracts thereof on which the prosecution proposes to rely other than those already sent to the Magistrate during investigation;
(b) the statements- recorded under section 161 of all the persons whom the prosecution proposes to examine as its witnesses.
(6) If the police officer is of opinion that any part of any such statement is not relevant to the subject- matter of the proceedings or that its disclosure to the accused is not essential in the interests of justice and is inexpedient in the public interest, he shall indicate that part of the statement and append a note requesting the Magistrate to exclude that part from the copies to be granted to the accused and stating his reasons for making such request.
(7) Where the police officer investigating the case finds it convenient so to do, he may furnish to the accused copies of all or any of the documents referred to in sub- section (5).
(8) Nothing in this section shall be deemed to preclude further investigation in respect of an offence after a report under sub- section (2) has been forwarded to the Magistrate and, where upon such investigation, the officer in charge of the police station obtains further evidence, oral or documentary, he shall forward to the Magistrate a further report or reports regarding such evidence in the form prescribed; and the provisions of sub- sections (2) to (6) shall, as far as may be, apply in relation to such report or reports as they apply in relation to a report forwarded under sub- section (2).
18. The bare perusal of the provisions of section 173 Cr.P.C. makes it abundantly clear that the report under section 173 Cr.P.C. shall be filed only after completiion of investigation, meaning thereby, the intent of order dated 28.4.1997 of this court was that CBI should undertake the investigation in the issue and thereafter file a report under section 173 Cr.P.C. The CBI, thereafter filed its complete report along with relevant material thereof before this court and this court took cognizance of the aforesaid report filed by the CBI. and passed consequential order as referred herein above.
19. Learned counsel for the respondent, Sri Sanjay Kumar has defended the impugned order dated 26.3.2003 passed by the Special Judicial Magistrate (CBI) on the pretext that since this court vide order dated 28.4.1997 (supra) had directed the CBI to make enquiry in the matter and submit a report before the court within three months, therefore, the CBI could have not conducted the investigation as has been done in the instant case. It has further been submitted by the learned counsel for the opposite party that since CBI could have not conducted the investigation in the matter, therefore, the entire investigation being carried out by the CBI is per se illegal and the learned trial court concerned has rightly discharged the opposite party hereto from the charges which had been leveled against him pursuant to the chargesheet being filed by the CBI in Case Crime No. 68/1998.
20. Sri Sanjay Kumar has further submitted that since the High Court had not directed for making investigation in the issue, therefore, if the CBI was at all willing to make investigation in the matter, a prior permission either from the High Court or from the State Government should have been obtained by the CBI for conducting proper investigation strictly in accordance with law. As per learned counsel for the opposite party, since the aforesaid persmission has not been sought either from the High Court or from the State Government, therefore, the entire investigation and the charge-sheet which was filed in Case Crime No. 68/1998 against the opposite party hereto is not sustainable in the eyes of law and, therefore, the same is liable to be rejected.
21. Sri Sanjay Kumar, learned counsel for the opposite party has cited the judgment of the Hon'ble Apex Court reported in (2009) 1 SCC 441 : Nirmal Singh Kahlon vs. State of Punjab and others referring para nos. 66 and 72 thereof, which are being reproduced herein below:
"66. The Act is a special statute. By reason of the said enactment, the CBI was constituted. In relation to the matter which were to come within the purview thereof, the CBI could exercise its jurisdiction. The law and order, however, being a State subject, the CBI derives jurisdiction only when a consent therefor is given by the statute. It is, however, now beyond any controversy that the High Court and this Court also direct investigation by the CBI. Our attention has been drawn to the provisions of the CBI Manual, from a perusal whereof it appears that the Director, CBI exercises his power of superintendence in respect of the matters enumerated in Chapter VI of the CBI Manual which includes reference by the State and/ or reference by the High Courts and this Court as also the registration thereof. The reference thereof may be received from the following:
"(a) Prime Minister of India
(b) Cabinet Ministers of Government of India/ Chief Ministers of State Governments or their equivalent
(c) The State Governments
(d) Supreme Court/ High Courts"
The CBI Manual having been framed by the Union of India, evidently, it has accepted that reference for investigation to the CBI may be made either by this Court or by the High Court. Thus, even assuming that reference had been made by the State Government at the instance of the High Court, the same by itself would not render the investigation carried out by it to be wholly illegal and without jurisdiction as assuming that the reference had been made by the High Court in exercise of its power under Article 226 of the Constitution of India in a public interest litigation, the same would also be valid."
72. If lodging of the second FIR is legally permissible, only because the same has been done at the instance of the High Court could not lead this Court to arrive at a conclusion that its direction in that behalf was wholly without jurisdiction. It will bear repetition to state that law as it stands permits the High Court and this Court to direct investigation made by the CBI. As indicated hereinbefore, it is also recognised by the Central Government, as would appear from the provisions of the CBI Manual referred to hereinbefore.
22. The perusal of the aforesaid paras of the judgment of Hon'ble Apex Court reveals that these paragraphs of Hon'ble Apex Court are not supporting the submission of learned counsel for the opposite party rather a careful perusal of the aforesaid para of the judgment of Hon'ble Apex Court are supporting the case of the CBI.
23. The learned counsel for the opposite party has also cited the judgment of Hon'ble Apex Court in the judgment reported in (1985) 1 SCC 317 : State of West Bengal vs. Sampat Lal and others citing paragraphs no. 18, 20 and 21 thereof, which are being reproduced herein below:
"18. Borooah, J. did not describe the DIG, CBI as a Special officer. It is in the judgment of Pyne, J. that we find reference to this term. In his judgment Pyne, J. noted;
"In view of what has been stated here in before and in the facts and circumstances of the case, I appoint Deputy Inspector General, Central Bureau of Investigation as the Special officer in this case."
Having thus appointed him as a Special officer, he proceeded to indicate that the Special officer will make an enquiry about the correctness of the facts, allegations and inferences contained in the reports of 'Secret Eye' dated the 8th and the 14th May 1983 as well as those in the two letters of the respondents both dated 1 June, 1983, copies whereof are Annexures A' and 'B' respectively to the affidavit of Bappaditya Roy affirmed on 20th June, 1983, and in the reports published in the two issues of Ananda Bazar Patrika dated May 12 and 18, 1983. Sen, J. in his separate judgment made it clear that under the order proposed to be passed, the CBI or other agency of the Central Government was not being entrusted with the job of investigation.
20. 'Inquiry' and 'investigation' are statutory terms defined in the Code. We were told in the course of hearing by counsel for the parties that under the West Bengal Police Manual the terms have different meanings given to them. It is not necessary for our purpose to go into the question any further. By whatever name the work entrusted to the Special officer be called, there can be no dispute that he was required to ascertain facts from the witnesses and documents, if any, in regard to the death of the two boys. This process necessarily involved a fact finding inquiry by ordinarily tapping the same sources as the investigating agency was expected to contract. This, therefore, necessarily involved a duplicate investigation.
21. The police had already commenced investigation into the allegations. Under the patronage of the Ananda Bazar Patrika the private defective agency had also started investigating into the matter and as would appear from the two reports in the Ananda Bazar Patrika and the materials now placed on the records of the High Court and this Court, some investigation had definitely been carried out by the State agency. This meant that three separate channels were put into operation almost contemporaneously. Over the activity of the private detective agency the Court would ordinarily have no jurisdiction to exercise but in view of the fact that there were two separate channels placed in active charge of investigation to be conducted contemporaneously, confusion was bound to occur and working of the two channels at a time was likely to prejudice the proper investigation making the exposing of the truth buried under mystery more difficult. Carrying this duplicate process, in our opinion, was not likely to serve the cause of justice nor help in achieving the object for which it had been set up. The Special officer was not to exercise the powers under Section 5 of the Act and if he wanted any real assistance in the matter of investigation, it had to be carried through the police officers of the State administration. This was likely to bring in further confusion inasmuch as the witnesses were likely to be contacted by the same police officer on more than one occasion-once in the course of investigation conducted by the police and again to meet the requirements of the Special officer. We are sure that the High Court never intended the cause of justice to be prejudiced and the serious attempt to find out the truth to be aborted."
24. It is noted that the aforesaid paragraphs of the Hon'ble Apex Court are not supporting the submission of the learned counsel for the opposite party, more particularly, in view of the facts and circumstances of the instant issue where the investigation was carried out by the CBI pursuant to the direction being issued by this court and thereafter charge-sheet was filed. Further, in the operative portion of the order of this Court it has been observed that 'when the charge-sheet is filed, each of these respondents concerned will have a right to file their defense. The court, thus, can make no comment on the further course of investigation.' It is also noted that the charge-sheet in this issue has been filed on 29.5.1998, after the judgment and order dated 13.11.1997 passed by this Court. Therefore, the aforesaid facts make it abundantly clear that the investigation, so carried out by the CBI was an outcome of the direction being issued by this court dated 24.4.1997, thus, the case laws cited by the learned counsel for the opposite party are not applicable in the issue in question.
25. The Hon'ble Apex Court in re: Union of India and others vs. T. Nathamuni reported in (2014) 16 SCC 285 has held that even if the investigation conducted by any agency which was irregular or without jurisdiction, it will not vitiate the trial unless a miscarriage of justice has been caused. Relevant paragraphs thereof are para nos. 13,15,16 and 17, which are being reproduced herein below:
"13. The question raised by the respondent is well answered by this Court in a number of decisions rendered in a different perspective. The matter of investigation by an officer not authorized by law has been held to be irregular. Indisputably, by the order of the Magistrate investigation was conducted by Sub-Inspector, CBI who, after completion of investigation, submitted charge-sheet. It was only during the trial, objection was raised by the Respondent that the order passed by the Magistrate permitting Sub- Inspector, CBI to investigate is without jurisdiction. Consequently, the investigation conducted by the officer is vitiated in law. Curiously enough the respondent has not made out a case that by reason of investigation conducted by the Sub-Inspector a serious prejudice and miscarriage of justice has been caused. It is well settled that invalidity of investigation does not vitiate the result unless a miscarriage of justice has been caused thereby.
15. In the case of Muni Lal vs. Delhi Administration, AIR 1971 SC 1525, this Court was considering the question with regard to the irregularity in investigation for the offence under the Prevention of Corruption Act. Following earlier decisions, this Court held:-
"14. From the above proposition it follows that where cognizance of the case has in fact been taken and the case has proceeded to termination, the invalidity of the preceding investigation will not vitiate the result unless miscarriage of justice has been caused thereby and the accused has been prejudiced. Assuming in favour of the appellant, that there was an irregularity in the investigation and that Section 5-A of the Act, was not complied with in substance, the trial by the Special Judge cannot be held to be illegal unless it is shown that miscarriage of justice has been caused on account of illegal investigation. The learned counsel for the appellant has been unable to show us how there has been any miscarriage of justice in this case and how the accused has been prejudiced by any irregular investigation."
16. In the case of State of Haryana vs. Bhajan Lal, AIR 1992 SC 604, this Court while considering Section 5A of the Act, held as under:
"125. It has been ruled by this Court in several decisions thatSection 5-A of the Act is mandatory and not directory and the investigation conducted in violation thereof bears the stamp of illegality but that illegality committed in the course of an investigation does not affect the competence and the jurisdiction of the court for trial and where the cognizance of the case has in fact been taken and the case is proceeded to termination, the invalidity of the preceding investigation does not vitiate the result unless miscarriage of justice has been caused thereby. See (1)H.N. Rishbud and Inder Singh v. State of Delhi (AIR 1955 SC 196); (2) Major E.G. Barsay v. State of Bombay (1962) 2 SCR 195; (3) Munna Lal v. State of Uttar Pradesh, ((1964) 3 SCR 88; (4) S.N. Bose v. State of Bihar, (1968) 3 SCR 563; (5) Muni Lal v. Delhi Administration, 1971 (2) SCC 48, 6)Khandu Sonu Dhobi v. State of Maharashtra, 1972 (3) SCR 510. However, in Rishbud [pic]case and Muni Lal case, it has been ruled that if any breach of the said mandatory proviso relating to investigation is brought to the notice of the court at an early stage of the trial, the court will have to consider the nature and extent of the violation and pass appropriate orders as may be called for to rectify the illegality and cure the defects in the investigation."
17. In the case of A.C. Sharma vs. Delhi Admn., (1973) 1 SCC 726, provisions of Section 5A were again considered by this Court and held as under:
"15. As the foregoing discussion shows the investigation in the present case by the Deputy Superintendent of Police cannot be considered to be in any way unauthorised or contrary to law. In this connection it may not be out of place also to point out that the function of investigation is merely to collect evidence and any irregularity or even illegality in the course of collection of evidence can scarcely be considered by itself to affect the legality of the trial by an otherwise competent court of the offence so investigated. In H.N. Rishabud and Inder Singh v. State of Delhi (supra) it was held that an illegality committed in the course of investigation does not affect the competence and jurisdiction of the court for trial and where cognizance of the case has in fact been taken and the case has proceeded to termination of the invalidity of the preceding investigation does not vitiate the result unless miscarriage of justice has been caused thereby. When any breach of the mandatory provisions relating to investigation is brought to the notice of the court at an early stage of the trial the Court will have to consider the nature and extent of the violation and pass appropriate orders for such reinvestigation as may be called for, wholly or partly, and by such officer as it considers appropriate with reference to the requirements of Section 5-A of the Prevention of Corruption Act, 1952. This decision was followed in Munna Lal v. State of U.P where the decision in State of Madhya Pradesh v. Mubarak Ali, AIR 1959 SC 707 was distinguished. The same view was taken in the State of Andhra Pradesh v. M. Venugopal, 1964 (3) SCR 742 and more recently in Khandu Sonu Dhobi v. State of Maharashtra(supra). The decisions of the Calcutta, Punjab and Saurashtra High Courts relied upon by Mr Anthony deal with different points: in any event to the extent they contain any observations against the view expressed by this Court in the decisions just cited those observations cannot be considered good law."
26. The Hon'ble Apex Court in re: Dr. M.C. Sulkunte vs. State of Mysore reported in 1970(3) SCC 513 has held that the accused person has to show that some prejudice was caused to him as a result of irregular investigation before he can require the Court to interfere in the same. The relevant paragraphs thereof are 8,11,15 and 17 which are being reproduced herein below:
"8.The matter was taken up in revision to the High Court of Mysore. The High Court dismissed the revision petition. In rejecting the appeal the High Court relying upon the decision in Rishbud and Another vs. State of Delhi, that the illegality, if any, had not resulted in miscarriage of justice observed the Magistrate was satisfied about the urgency of the matter and had therefore sanctioned permission to investigate.
11.However, the question still remains as to whether any prejudice was caused to the appellant by reason of the investigation being conducted and the trap being laid by the Inspector of Police in the way it was done. According to the High Court even if there was any irregularity committed at the early stage no miscarriage of justice had been caused thereby as re-investigation from April 1, 1961, had been made by P.W.21, a Superintendent of Police, Bellary. It must b added here that the trap could not be laid for a second time and therefore the Special Judge could not have done anything about the initial investigation. He did all that was possible to be done on the facts of the case, namely, order investigation from April 1, 1961, that is to say, immediately after the happening of the incident and the carrying out of the trap.
15. Although laying the trap was part of the investigation and it had been done by a Police Officer below the rank of a Deputy Superintendent of Police, cannot on that ground be held that the sanction was invalid or that the conviction ought not to be maintained on that ground. It has been emphasized in a number of decisions of this Court that to set aside a conviction it must be shown that there has been miscarriage of justice as a result of an irregular investigation. The observations in the State of Madhya Pradesh v. Mubarak Ali to the effect that when the Magistrate without applying his mind only mechanically issues the order giving permission the investigation is tainted cannot help the appellant before us.
17. In the result, the appeal fails and the conviction is maintained. The Appellant's bail bond is cancelled and he must surrender himself for serving out the sentence awarded by the High Court."
27. I have perused the order dated 26.3.2003 which has been impeached and the perusal thereof reveals that the order has not been passed properly inasmuch as the impugned order says that during the course of investigation the CBI had got no, prima-facie, evidences and secondly it was beyond the jurisdiction of CBI to make investigation of the issue without seeking prior sanction / permission from the State Government. On the basis of aforesaid reasons the learned court-below has passed the order dated 26.3.2003. It would not be out of place to indicate here that both the aforesaid reasons so indicated by the learned court-below in the operative portion of the order dated 26.3.2003 are per se illegal and it appears that the aforesaid reason has been given by the learned court-below without careful reading of the judgment and order dated 13.11.1997 (supra) passed by this Court. As a matter of fact had the learned court-below gone through the order dated 28.4.1997 passed by this Court in Misc. Writ Petition No. 23899 of 1994 and the judgment and order dated 13.11.1997 passed by this Court in the aforesaid writ petition carefully, both the aforesaid reasons would have not been given, for the reason that during the course of investigation the CBI had collected ample evidences and the CBI had conducted the aforesaid investigation in compliance of the order dated 28.4.1997 passed by this court and vide judgment and order dated 13.11.1997 this Court had taken cognizance of the aforesaid investigation, so carried out by the CBI.
28. In the light of what has been discussed herein above and also in the light of the decisions of Hon'ble Apex Court as cited above I am of the considered view that the order dated 26.3.2003 passed by the Special Judicial Magistrate ( CBI), Lucknow in Case Crime No. 68/1998 is not sustainable in the eyes of law and the same is liable to be set aside.
29. Accordingly, the revision is hereby allowed. The order dated 26.3.2003 passed by the then Special Judicial Magistrate (CBI), Lucknow in Case No. 68/98 : CBI vs. Manish Kumar is hereby set aside. The learned trial court concerned i.e. the Special Judicial Magistrate (CBI), Lucknow (the then trial court) is hereby directed to pass a fresh order on the discharge application of the opposite party by affording an opportunity of hearing to the parties concerned and by considering the judgment and order dated 13.11.1997 passed by this Court in Civil Misc. Writ Petition No. 23899 of 1994 and also considering the settled propositions of law on the issue of the Hon'ble Apex Court as has been discussed herein above, within a period of three months from the date of production of the certified copy of this order.
30. No order as to cost.
31. Let the lower court record be send back within a week along with certified copy of this order.
Order Date :- 7.9.2018 Om [Rajesh Singh Chauhan, J.]