CITED BY THE PETITIONER: 21. The petitioner placed heavy reliance on the judgment rendered by a Division Bench of the Bombay High Court in R.R.Tripathi vs. Union of India [2008(3) AIR Bom.404]. The said decision has no application to the facts of the present case. The issue before the Bombay High Court was in respect of the extension of service granted to a few police officers in violation of the statutory Rules and without considering the string of incriminating materials available on record and which was the subject matter of ongoing enquiry. The judgment has nothing to do with the extension of service based on Prakash Singh case. The State of Maharastra made a proposal to the Government of India for the extension of service of two tainted officers, working as Commissioner of Police and Director General of Police, during the verge of their retirement on 30 November, 2017. The Bombay High Court held that their appointment was contrary to Rules and against public interest. In short, the issue before the Bombay High Court was not in relation to the appointment of the Head of the Police Force in the State of Maharastra in accordance with the Direction in Prakash Singh. Since the facts are totally different, we reject the contention taken by the petitioner on the strength of the Division Bench judgment rendered by the Bombay High Court.
THE PRECEDENT:
22(A). In Central Bureau of Investigation v. V.C.Shukla [1998(3) SCC 410], which is otherwise called as "JAIN HAWALA DIARY" Case, the issue before the Hon'ble Supreme Court was whether on account of the entries made in the books of Jain Brothers with regard to the payments made to Sri.L.K.Advani and Shri.V.C.Shukla, the then members of Parliament, criminal prosecution can be launched against them. The Supreme Court found that the entire edifice of the prosecution case was built on the diaries and files and the related entries. The Hon'ble Supreme Court, after considering elaborately
Section 34 of the Indian Evidence Act, indicated that even if the book of account has been regularly kept in the course of business, still it would not be sufficient to frame charges against the alleged beneficiaries. The Supreme Court said:
"17. From a plain reading of the section it is manifest that to make an entry relevant thereunder it must be shown that it has been made in a book, that book is a book of account and that book of account has been regularly kept in the course of business. From the above section it is also manifest that even if the above requirements are fulfilled and the entry becomes admissible as relevant evidence, still, the statement made therein shall not alone be sufficient evidence to charge any person with liability........................"
(B) The Supreme Court in V.C.Shukla's case, after scanning the earlier decisions, opined that the Members of Parliament accused of receiving illegal gratification cannot be charged on the basis of the entries found in the account books.
"39. A conspectus of the above decisions makes it evident that even correct and authentic entries in books of account cannot without independent evidence of their trustworthiness, fix a liability upon a person. Keeping in view the above principles, even if we proceed on the assumption that the entries made in MR 71/91 are correct and the entries in the other books and loose sheets (which we have already found to be not admissible in evidence under Section 34) are admissible under Section 9 of the Act to support an inference about the former's correctness still those entries would not be sufficient to charge Shri Advani and Shri Shukla with the accusations levelled against them for there is not an iota of independent evidence in support thereof.............................."
SAHARA AND ADITYA BIRLA GROUP CASE:
23. Most recently, in Common Cause (A Registered Society) vs. U.O.I. 2017(1) Scale 573, the issue that came up for consideration before the Hon'ble Supreme Court was as to whether the entries made in the Books of the two Companies regarding illegal gratification paid to certain politicians would be sufficient to direct investigation against them. Before the Supreme Court, in answer to the contention taken by the learned counsel for the petitioner, by placing reliance on Lalita Kumari's case that such entries are sufficient for registering First Information Report and initiating investigation, the Attorney General submitted that in case cognizance is taken on the basis of such inadmissible evidence, it is open to any unscrupulous person to make an entry any time against anybody's name unilaterally on any sheet of paper or computer excel sheet. The Supreme Court, taking note of the said submission and placing reliance on V.C.Shukla's case, opined that to direct investigation in such cases, there must be some relevant and admissible evidence. The Supreme Court, while negativing the request for initiating investigation by CBI, observed thus:
"21. We are constrained to observe that the Court has to be on guard while ordering investigation against any important constitutional functionary, officers or any person in the absence of some cogent legally cognizable material. When the material on the basis of which investigation is sought is itself irrelevant to constitute evidence and not admissible in evidence, we have apprehension whether it would be safe to even initiate investigation. In case we do so, the investigation can be ordered as against any person whosoever high in integrity on the basis of irrelevant or inadmissible entry falsely made, by any unscrupulous person or business house that too not kept in regular books of accounts but on random papers at any given point of time. There has to be some relevant and admissible evidence and some cogent reason, which is prima facie reliable and that too, supported by some other circumstances pointing out that the particular third person against whom the allegations have been levelled was in fact involved in the matter or he has done some act during that period, which may have co- relations with the random entries. In case we do not insist for all these, the process of law can be abused against all and sundry very easily to achieve ulterior goals and then no democracy can survive in case investigations are lightly set in motion against important constitutional functionaries on the basis of fictitious entries, in absence of cogent and admissible material on record, lest liberty of an individual be compromised unnecessarily........."
RELEVANCY OF V.C.SHUKLA AND SAHARA CASE:
24. In V.C.Shukla's case, the CBI investigated the matter and filed the final report, resulting in taking cognizance by the Special Court. The charge framed against Sri.V.C.Shukla was quashed by the High Court and it was confirmed by the Supreme Court. The order framing charge against Sri.L.K.Advani was set aside by the High Court and upheld by the Supreme Court. In Sahara and Aditya Birla Case, the Supreme Court negatived the request even to direct the Special Investigating Team of CBI to register a case and hold enquiry. In the present case, the allegation against the fifth respondent is not that he received money directly from the Gutkha Manufacturer. The entries indicate the payment made to an intermediary and only on that basis, the partner of the Gutkha Manufacturing Concern in his statement given to the Income Tax Department stated that money was given to the Commissioner of Police. The intermediary has denied such payment to the Police. In case the yardstick adopted in V.C.Shukla and Sahara case is followed, it can very well be said that the alleged material against the fifth respondent is weak and inadmissible. The Vigilance enquiry is still pending. It is too premature to arrive at a definite conclusion on the basis of available materials that money was paid to the fifth respondent. In any case, the incriminating materials seized by the Income Tax Department would not be sufficient to declare that the fifth respondent is unfit to hold the post of Director General of Police.
CBI INVESTIGATION:
25(A). The petitioner seeks a further direction to the CBI to constitute a special investigation team to investigate the case of corruption involving the public servants taking into account the materials seized by the Income Tax Department. In view of the said prayer, we have sent for the Case Diary from the Director of Vigilance and Anti-Corruption. It is found from the Case Diary that pursuant to the letter sent by the Commissioner of Police dated 22 December, 2016, the Principal Secretary to Government, Home Department, who is also the Vigilance Commissioner, directed the Directorate of Vigilance and Anti-Corruption to conduct a preliminary enquiry into the allegations of corruption. The Additional Superintendent of Police, Vigilance and Anti-Corruption, City Special Unit-I, Chennai, registered a preliminary enquiry on 27 January, 2017.
(B). The Special Investigation Team formed by the Director of Vigilance and Anti-Corruption has already identified the alleged middle man, by name Mr.Rajendran and recorded his statement on 20 March, 2017. The statement of Mr.Rajendran was recorded well before initiating action by the State Government for appointing the Head of Police Force.
(C). The enquiry by the Directorate of Vigilance and Anti-Corruption is in progress. There is no need for a change of enquiry or investigation by entrusting the matter with the Central Bureau of Investigation. There is no basis for the apprehension that it would not be possible for the Directorate of Vigilance and Anti-Corruption to hold impartial enquiry, in view of the involvement of a Minister and high ranking police officers.
(D) The Directorate of Vigilance and Anti-Corruption is an independent Organization and its officers are not answerable to the State Police or political executive. We are informed that in the neighbouring State of Kerala, the Vigilance and Anti-Corruption Department registered a case against the Minister of the former Government for corruption after holding preliminary enquiry and the same resulted in the resignation of the concerned Minister. Similarly, another Minister in the present Cabinet of the Government of Kerala also resigned recently pursuant to the registration of a case against him by the Directorate of Vigilance and Anti-Corruption, Kerala, for corruption and favoritism. This would clearly indicate that the Directorate of Vigilance and Anti-Corruption has been functioning independently and without any interference from those who are in power. In any case, there are no materials before us to suggest that a thorough investigation would not be conducted by the Directorate of Vigilance and Anti-Corruption in the subject case. However, taking into account the apprehension raised by the leader of the opposition in his representation dated 01 July, 2017 addressed to the Chief Secretary that it would not be possible to oversee the enquiry by the Vigilance Commissioner, who is also the Home Secretary, under whom the Director General of Police is functioning and to conduct an impartial and fair enquiry, we are constrained to direct the State Government to streamline the functioning of the Vigilance Organization and to ensure that enquiry by the Vigilance and Anti-Corruption in the Gutkha Scam is conducted in an unbiased manner and without the intervention of those against whom allegations are made, besides others in power.
APPOINTMENT OF VIGILANCE COMMISSIONER:
26. The Government has constituted the State Vigilance Commission headed by a Vigilance Commissioner. The Vigilance Commissioner has jurisdiction and power in respect of matters to which the executive power of the State extends. The Vigilance Commissioner is an independent authority vested with extensive powers to curb corruption and initiate action against the Government servants/servants of Public Sector Undertaking for acceptance of illegal gratification and matters incidental thereto. It is the apprehension of the petitioner that it would not be possible for the Vigilance Commissioner to hold enquiry against high ranking police officers and other public servants including a Minister through the Directorate of Vigilance and Anti- Corruption, as he is also holding the post of Home Secretary and in the said capacity, he is dealing day in and day out with the Director General of Police and other senior police officers.
27. The Vigilance Commissioner must act as a watch-dog. The Vigilance Commissioner must be chosen in such a manner that he would be in a position to function independently and without any kind of Government control. The Chief Secretary, the Home Secretary and the Director General of Police are members of the State Security Commission. Similarly, the Home Secretary and the Director General of Police are the members of the Committee constituted to assess the "threat perception" and to provide security to those who are under threat. The Home Secretary and the Director General of Police are expected to function in a coordinated manner to maintain law and order in the State. The enquiry by the Vigilance and Anti-Corruption must inspire confidence in the general public. The common man would be justified, in case there is an apprehension that the Directorate of Vigilance and Anti- Corruption would not hold enquiry independently and in a fair manner, in the event of the enquiry being monitored by an authority, who is also the administrative head of the Home Department, under whom, the Director General of Police is functioning. The enquiry by the Directorate of Vigilance and Anti-Corruption must not only be done in a fair manner, but, it should also appear to be done fairly. Therefore, it would neither be fit nor proper to designate the Home Secretary as the Vigilance Commissioner. Since the present enquiry relates to the allegation of acceptance of illegal gratification by high ranking public servants, we are of the view that the State must appoint a Vigilance Commissioner with independent charge.
CONCLUSION:
28. For the reasons aforesaid, we hold that "(a) the State was correct in its decision selecting and appointing the fifth respondent as the Director General of Police;
(b) the entries made in the records seized from the Gutkha Manufacturer by the Income Tax Department are not sufficient to deny appointment to the fifth respondent as the Head of the Police Force; and
(c) the case on hand does not warrant transfer of enquiry/investigation to the Central Bureau of Investigation."
29. We make it clear that the observations made in this order would not stand in the way of the Directorate of Vigilance and Anti-Corruption from conducting enquiry/investigation independently and to take appropriate action in accordance with law.
30. DIRECTION TO THE STATE:
"(i) We direct the second respondent to appoint a Vigilance Commissioner with independent charge and professional independence to head the State Vigilance Commission. The Vigilance Commissioner should be in a position to function without fear or favour and without answerable to the political executive. The Vigilance Commissioner must be an upright officer and a person of unimpeachable integrity and good track records. He should not be associated with any other department and in particular, the Home Department, under whom the Director General of Police and the Police Force in general, are functioning. The commitment, devotion and accountability of the Vigilance Commissioner must be to the rule of law and not to the executive Government. There should not be any kind of political interference in the discharge of lawful function by the Vigilance Commissioner. The appointment should be made as expeditiously as possible and in any case, within a period of two weeks from today, so as to enable the Vigilance Commissioner to monitor the enquiry conducted by the Directorate of Vigilance and Anti- Corruption.
(ii) The Director, Vigilance and Anti-Corruption shall constitute a special team and conduct enquiry in this matter under his personal supervision. He should take orders only from the Vigilance Commissioner. He shall not share the materials collected during the enquiry/investigation with any of the public servants. He should report directly to the Vigilance Commissioner. There should not be any kind of interference in the course of enquiry by political executive or public servants and more particularly, the Director General of Police, the Minister concerned or any of the other officers against whom allegations are made. The status and position of the parties should not be a relevant factor while conducting enquiry.
(iii) The Director, Vigilance and Anti-Corruption must scrupulously follow the Vigilance Manual while conducting enquiry, submission of timely report and final report to the authority named in the Manual of the Directorate of Vigilance and Anti-Corruption, Tamil Nadu.
(iv) The time limit stipulated for completion of enquiry/investigation as prescribed by the Hon'ble Supreme Court in Lalita Kumari v. Govt. of U.P. [2014(2) SCC 1] and the Vigilance Manual shall be strictly adhered to by the Director of Vigilance and Anti-Corruption.
(v) The Principal Director of Investigation, Income Tax Department, Chennai, is directed to provide the entire incriminating materials seized from the Gutkha Manufacturer to the Director, Vigilance and Anti-Corruption forthwith for taking follow-up action.
(vi) The Director of Vigilance and Anti-Corruption is directed to hold a detailed enquiry relating to the missing of incriminating materials handed over to the then Chief Secretary by the Principal Director of Income Tax (Investigation) on 12 August, 2016, fix responsibility for the loss of file and ensure that the guilty are brought to book and appropriate action is taken in accordance with law."
DISPOSITION:
31. The Writ Petition is disposed of with directions as indicated above. No costs. Consequently, the connected miscellaneous petitions are closed.
To
1.The Secretary to Government of India, The Union of India, Ministry of Home Affairs, New Delhi.
2.The Chief Secretary to Government, State of Tamil Nadu, Secretariat, Chennai-600 009.
3.The Secretary to Government, The State of Tamil Nadu, Home Department, Secretariat, Chennai-600 009.
4.The Director General of Police, No.4, Dr.Radhakrishnan Salai, Mylapore, Chennai-600 004.
5.The Director of Vigilance & Anti Corruption (DVAC), No.293, MKN Road, Alandur, Chennai-600 016.
.