AKHILESH YADAV VS VISHWANATH CHATURVEDI & ORS
Supreme Court of India (Division Bench (DB)- Two Judge)
Writ Petition (Civil), 272 of 2007, Judgment Date: Dec 13, 2012
The scope of a review petition is very limited and
the submissions advanced were made mainly on questions of fact. As has
been repeatedly indicated by this Court, review of a judgment on account of
some mistake or error apparent on the face of the record is permissible,
but an error apparent on the face of the record has to be decided on the
facts of each case as an erroneous decision by itself does not warrant a
review of each decision.
10. As far as Smt. Dimple Yadav is concerned, Mr. Dwivedi submitted that
except for the fact that she is the wife of Akhilesh Yadav, who had been a
Member of Parliament since 2000, there is no other ground to treat her as a
public servant for the purposes of inquiry by the CBI. Mr. Dwivedi
submitted that Smt. Dimple Yadav carried on her own business in
agricultural produce and had her own income which had been wrongly clubbed
by the Writ Petitioner with the assets of Shri Akhilesh Yadav to bring her
within the ambit of the investigation by the CBI under the provisions of
the Prevention of Corruption Act. It was further submitted that there is
also no allegation that Smt. Dimple Yadav had, in any way, aided or abetted
any public servant to commit any act which could have attracted the
provisions of the Prevention of Corruption Act and including Smt. Dimple
Yadav in the inquiry against those who could be said to be public servants,
amounts to harassment of a private individual having a separate source of
income in respect of which no offence under the aforesaid Act could be made
out.
a specific issue was raised by
Mr. Mukul Rohatgi as to whether the investigation and/or inquiry could also
be extended to the assets of Smt. Dimple Yadav, wife of Shri Akhilesh
Yadav, since she had neither held any post under the Government nor was she
involved in the activities of her husband or father-in-law, Shri Mulayam
Singh Yadav. The acquisition of wealth by her was attributed to her
agricultural income and not to any source of income through her husband and
her father-in-law.
29. In addition, the submissions made qua Smt. Dimple Yadav merits consideration, since when the order under review was passed, she had neither held any public office nor Government post and was essentially a private person notwithstanding her proximity to Shri Akhilesh Yadav and Shri Mulayam Singh Yadav. On reconsideration of her case, we are of the view that the investigation launched against her on the issue of amassing wealth beyond her known source of income, is liable to be dropped. The review petition, so far as Smt. Dimple Yadav is concerned, is, accordingly, allowed and the investigation conducted by the CBI against her should, therefore, be dropped.
i) The CBI shall drop the inquiry into the assets of the
Respondent No.4, Smt. Dimple Yadav, wife of Shri Akhilesh Yadav;
ii) The CBI may take such independent action, as it considers
fit, on the basis of the inquiry conducted by it pursuant to the
directions given by this Court in the judgment under review, without
seeking any direction from the Union of India or on the basis of any
direction that may be given by it.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
REVIEW PETITION (CIVIL) NO.272 OF 2007
IN
WRIT PETITION (CIVIL)No.633 of 2005
1 AKHILESH YADAV … PETITIONER
VS.
2 VISHWANATH CHATURVEDI & ORS. … RESPONDENTS
WITH
REVIEW PETITION (CIVIL) NO.339 OF 2007
IN
WRIT PETITION (CIVIL)No.633 of 2005
1 MULAYAM SINGH YADAV … PETITIONER
VS.
3 VISHWANATH CHATURVEDI & ORS. … RESPONDENTS
WITH
REVIEW PETITION (CIVIL) NO.347 OF 2007
IN
WRIT PETITION (CIVIL)No.633 of 2005
1
2 PRATEEK YADAV … PETITIONER
VS.
4 VISHWANATH CHATURVEDI & ORS. … RESPONDENTS
WITH
REVIEW PETITION (CIVIL) NO.348 OF 2007
IN
WRIT PETITION (CIVIL)No.633 of 2005
1 SMT. DIMPLE YADAV … PETITIONER
VS.
5 VISHWANATH CHATURVEDI & ORS. … RESPONDENTS
J U D G M E N T
ALTAMAS KABIR, CJI.
1. Certain questions of fact and law were raised on behalf of the
parties when the review petitions were heard. Review petitions are
ordinarily restricted to the confines of the principles enunciated in Order
47 of the Code of Civil Procedure, but in this case, we gave counsel for
the parties ample opportunity to satisfy us that the judgment and order
under review suffered from any error apparent on the face of the record and
that permitting the order to stand would occasion a failure of justice or
that the judgment suffered from some material irregularity which required
correction in review. The scope of a review petition is very limited and
the submissions advanced were made mainly on questions of fact. As has
been repeatedly indicated by this Court, review of a judgment on account of
some mistake or error apparent on the face of the record is permissible,
but an error apparent on the face of the record has to be decided on the
facts of each case as an erroneous decision by itself does not warrant a
review of each decision. In order to appreciate the decision rendered on
the several review petitions which were taken up together for
consideration, it is necessary to give a background in which the judgment
and order under review came to be rendered.
2. One Vishwanath Chaturvedi, claiming to be an Advocate by profession
and unconnected with any political party or parties, filed Writ Petition
(Civil) No.633 of 2005, inter alia, for the following relief :-
“(a) issue an appropriate writ in the nature of mandamus directing
Respondent No.1 to take appropriate action to prosecute Respondent
Nos.2 to 5 under the Prevention of Corruption Act, 1988, for acquiring
amassed assets more than the known source of their income by misusing
their power and authority;”
3. In the Writ Petition, the Writ Petitioner provided instances of the
wealth allegedly acquired by the said Respondents beyond their known source
of income. After a contested hearing, this Court was of the view that the
inquiry should not be shut out at the threshold because political elements
were involved. The prayer in the Writ Petition was, therefore, moulded and
the same was disposed of on 1st March, 2007, with a direction upon the
Central Bureau of Investigation, hereinafter referred to as the “CBI”, to
inquire into the allegations relating to acquisition of wealth by the
Respondent Nos.2 to 5. The CBI was also directed to find out as to whether
there was any truth in the allegations made by the Petitioner regarding
acquisition of assets by the said Respondents disproportionate to their
known source of income and to submit a report to the Union of India which
could take further steps in the matter.
4. Soon, thereafter, the Respondent Nos.2 to 5 filed Review Petitions for
review of the aforesaid judgment dated 1st March, 2007 in Writ Petition
(Civil) No.633 of 2005 and the same was directed to be posted before the
Court on 16th March, 2007. Subsequently, the Review Petitions were placed
for hearing before the Court on 20th March, 2007 and ultimately on 10th
February, 2009, the Court directed notice to issue thereupon. On 1st
April, 2009, when the Review Petitions were taken up for hearing, a
submission was made on behalf of the Review Petitioners that one of the
questions, which could have a vital bearing on the matters, related to the
question as to whether the Court could issue directions to the CBI,
notwithstanding the provisions of Section 6 of the Delhi Special Police
Establishment Act, 1946, which was under consideration of the Constitution
Bench in Civil Appeal Nos.6249-6250 of 2001 filed by the State of West
Bengal. The hearing of the Review Petitions was, therefore, adjourned till
a decision was pronounced by the Constitution Bench in the above Appeals.
The Constitution Bench ultimately held that the High Court was within its
jurisdiction in directing the CBI to investigate into a cognizable offence
alleged to have been committed within the territory of a State without the
consent of that State and the same would neither impinge upon the federal
structure of the Constitution nor violate the doctrine of separation of
powers and would be valid in law. However, a note of caution was also
given and it was further observed that the extra-ordinary power conferred
by Articles 32 and 226 of the Constitution of India has to be exercised
sparingly, cautiously and in exceptional situations where it becomes
necessary to provide credibility and instill confidence in investigations
or where the incident may have national and international ramifications or
where such an order may be necessary for doing complete justice and
enforcing fundamental rights.
5. Thereafter, the Review Petitions were again taken up for hearing on
8th February, 2011.
6. Five broad propositions were canvassed on behalf of the Review
Petitioner, Shri Akhilesh Yadav, namely,
i) Can this Court direct a CBI inquiry without the consent of
the State concerned?
ii) Does a Court have jurisdiction to refer the matter to the
CBI for investigation without forming a opinion as to whether a
prima facie case of the commission of an offence had been made
out?
iii) Can the Supreme Court order a CBI investigation without
expressly invoking its jurisdiction under Article 142 of the
Constitution of India?
iv) Could the Supreme Court have entertained the Writ Petition
filed by the Respondent No.1 in the Review Petition under the
garb of a public interest litigation? and
v) Does the judgment and order dated 1st March, 2007,
passed in Writ Petition (Civil) No.633 of 2005 warrant a review
thereof?
7. Mr. Rakesh Dwivedi, learned Senior Advocate, appearing for the Review
Petitioners, Shri Akhilesh Yadav and Smt. Dimple Yadav did not press the
first proposition, since, as indicated hereinbefore, the said question had
been settled by the Constitution Bench.
8. On the second proposition, Mr. Dwivedi urged that in the decision
rendered by this Court in Common Cause, A Registered Society Vs. Union of
India & Ors. [(1999) 6 SCC 667], a Bench of three Judges of this Court had
specifically held that the CBI should not be involved in an investigation
unless a prima facie case is found and established against the accused.
Mr. Dwivedi pointed out that this Court had inter alia observed that the
right to life engrained in Article 21 of the Constitution means something
more than mere survival or animal existence. A man had, therefore, to be
left alone to enjoy life without fetters and should not be allowed to be
hounded either by the police or CBI only to find out as to whether he had
committed any offence or was living as a law abiding citizen. This Court
also observed that even under Article 142 of the Constitution, this Court
could not issue such a direction ignoring the substantive provisions of law
and the constitutional rights available to a person.
9. On the third proposition relating to cases where this Court had
directed the CBI to investigate, Mr. Dwivedi submitted that there were
cases involving gross atrocities and State apathy and there were also cases
which stand on a different footing and are concerned with corruption.
Learned counsel submitted that in the present case no prima facie case of
corruption had been established against the review petitioners and/or any
of the proforma respondents and, accordingly, the direction given to the
CBI to conduct investigations against them was ex facie illegal. Referring
to various judgments in which directions had been given by this Court to
the CBI to conduct investigation, there were special reasons for doing so
in each case and not without a prima facie case having been made out
against them in such cases. Mr. Dwivedi urged that the CBI has no
jurisdiction to inquire or investigate into a matter where there is no
material to show prima facie that an offence has been committed. Mr.
Dwivedi submitted that in the case of A.R. Antulay Vs. R.S. Nayak [(1988) 2
SCC 602], this Court had held that no jurisdiction can be conferred beyond
the scope of the Act by Courts of law even with consent. He also urged that
in the case of Supreme Court Bar Association Vs. Union of India [(1998) 4
SCC 409], this Court had observed that even the powers under Article 142 of
the Constitution vested in this Court could not be exercised in a manner
which was contrary to the Statute. It is only on account of special reasons
where it was felt that an investigation by the local police would prove to
be ineffective, that directions had been given to the CBI to take up the
investigation. Mr. Dwivedi submitted that there were no such special
reasons in the instant case which warranted the directions being given to
the CBI to conduct investigation into the allegations of corruption and
police excesses as well as human rights violations.
10. As far as Smt. Dimple Yadav is concerned, Mr. Dwivedi submitted that
except for the fact that she is the wife of Akhilesh Yadav, who had been a
Member of Parliament since 2000, there is no other ground to treat her as a
public servant for the purposes of inquiry by the CBI. Mr. Dwivedi
submitted that Smt. Dimple Yadav carried on her own business in
agricultural produce and had her own income which had been wrongly clubbed
by the Writ Petitioner with the assets of Shri Akhilesh Yadav to bring her
within the ambit of the investigation by the CBI under the provisions of
the Prevention of Corruption Act. It was further submitted that there is
also no allegation that Smt. Dimple Yadav had, in any way, aided or abetted
any public servant to commit any act which could have attracted the
provisions of the Prevention of Corruption Act and including Smt. Dimple
Yadav in the inquiry against those who could be said to be public servants,
amounts to harassment of a private individual having a separate source of
income in respect of which no offence under the aforesaid Act could be made
out. Mr. Dwivedi contended that the inquiry directed to be conducted by
the CBI in relation to the assets held by Shri Adkhilesh Yadav and Smt.
Dimple Yadav was contrary to the procedure established by law and could not
have been ordered even upon invocation of powers under Article 142 of the
Constitution and was, therefore, liable to be set aside in review.
11. As far as the fourth proposition is concerned, as to whether the
Supreme Court could have entertained the writ petition filed by the
Respondent No.1 in the review petition in the garb of Public Interest
Litigation, Mr. Dwivedi submitted that the writ petitioner had not made any
specific allegation against the review petitioners which merited a
direction by the Court to the CBI to conduct an investigation into the
allegations relating to acquisition of wealth by the Respondent Nos.2 to 5
in the writ petition, beyond their known sources of income. Furthermore,
the Writ Petitioner had links with the Indian National Congress, although,
he had denied any connections with the Congress Party. Mr. Dwivedi urged
that the Respondent No.1 herein had no locus standi to maintain the writ
petition as a Public Interest Litigation, since it was more of a personal
enmity rather than a public cause which had resulted in the filing of the
writ petition. Mr. Dwivedi submitted that the entire exercise had been
undertaken to malign the Respondent Nos.2 to 5 and was without any factual
basis and the writ petition had been filed only to harass the Respondent
No.2 to 5 therein and to tarnish their reputation amongst the people of
Uttar Pradesh and also other parts of the country. Mr. Dwivedi submitted
that the writ petition had been filed with the mala fide intention of
discrediting the Review Petitioner and his family members in the eyes of
the local public and to adversely affect their political fortunes in the
State.
12. In addition to Mr. Dwivedi’s submissions, Mr. Mukul Rohatgi, learned
Senior Advocate, who also appeared for Smt. Dimple Yadav, submitted that
merely because she belongs to a family of politicians, she had been
included within the ambit of the scope of the investigation which was
unwarranted, since it did not have any nexus with the objects sought to be
achieved by such an inquiry.
13. Mr. Rohatgi also submitted that since despite his denial it was amply
clear that the Writ Petitioner, Mr. Vishwanath Chaturvedi, was a
representative of the Congress Party, the Writ Petition ought to have been
dismissed in limine. Mr. Rohatgi submitted that the explanation given in
the judgment under review for invoking the Court’s powers under Article 142
of the Constitution relying on the decision of this Court in Mohd. Anis Vs.
Union of India [(1994) Supp. 1 SCC 145], needed a second look in view of
the decision in the Supreme Court Bar Association case (supra). Mr.
Rohatgi submitted that in Mohd. Anis’s case (supra), it had been held that
in order to do complete justice, the Supreme Court’s power under Article
142 of the Constitution was not circumscribed by any statutory provision,
and the Supreme Court could direct an investigation by the CBI into an
offence committed within a State without a notification or order having
been issued in that behalf, in public interest, to do complete justice in
the circumstances of a particular case. However, in exercise of its powers
under Article 142 of the Constitution, the Supreme Court should not direct
a fishing inquiry without reference to the facts and circumstances of the
offence of disproportionate assets under the Prevention of Corruption Act,
1988. Mr. Rohatgi urged that subsequently in the Supreme Court Bar
Association case (supra), this Court held that the powers conferred on this
Court under Article 142 of the Constitution are inherent in the Court and
are complementary to those powers which are specifically conferred on the
Court by various Statutes, though not limited by those Statutes. These
powers exist independent of the Statutes with a view to do complete justice
between the parties. However, the powers conferred on the Court under
Article 142 of the Constitution, being curative in nature, cannot be
construed as powers which authorize the Court to ignore the substantive
rights of a litigant while dealing with the cause pending before it. It was
further observed that “Article 142, even with the width of its amplitude,
cannot be used to build a new edifice where none existed earlier, by
ignoring express statutory provisions dealing with a subject and thereby to
achieve something indirectly which cannot be achieved directly. The very
nature of the power must lead the Court to set limits for itself within
which to exercise those powers and ordinarily it cannot disregard a
statutory provision governing a subject, except perhaps to balance the
equities between the conflicting claims of the litigating parties by
‘ironing out the creases’ in a cause or matter before it.” It was submitted
that the decision in the Supreme Court Bar Association case (supra) cannot
be reconciled with the reasoning of the decision in Mohd. Anis’s case
(supra). Mr. Rohatgi submitted that all the decisions rendered subsequent
to the decision rendered in the Supreme Court Bar Association case (supra),
following the earlier decision in Mohd. Anis’s case (supra), were per
incuriam. In support of his submission, Mr. Rohtagi referred to the
decision of this Court in Textile Labour Association Vs. Official
Liquidator [(2004) 9 SCC 741] wherein while examining the plenary power of
this Court under Article 142 of the Constitution, it referred to the
decision in the Supreme Court Bar Association case (supra). Mr. Rohatgi
concluded on the note that under Article 142 of the Constitution, the
Supreme Court could always correct any error made by it and to that effect
it could recall its own order, as was held in M.S. Ahlawat Vs. State of
Haryana [(2000) 1 SCC 278].
14. Mr. Ashok Desai, learned Senior Advocate, who appeared for Shri
Mulayam Singh Yadav, the Review Petitioner in Review Petition (C) No.339 of
2007, based his submissions mainly on the powers of the Supreme Court to
direct the CBI to conduct an investigation in respect of an offence
committed within a State, without the consent of the State Government as
envisaged in Section 6 of the Delhi Special Police Establishment Act, 1946,
hereinafter referred to as ‘the 1946 Act’. Mr. Desai attempted to
distinguish the decisions rendered by this Court in the case of Advance
Insurance Company Vs. Gurudasmal [(1970) 3 SCR 881 = (1970) 1 SCC 633] and
in the case of Kazi Lhendup Dorzi Vs. CBI [(1994) Supp. 2 SCC 116]. Mr.
Desai submitted that while in the first case, the Government of Maharashtra
had given its consent to the investigation by the CBI, in the latter case
the question involved was not of grant of permission to investigate into
the case, but withdrawal of such consent which had already been granted.
15. Mr. Desai reiterated the contentions, both of Mr. Dwivedi and Mr.
Rohatgi, that powers under Article 142 of the Constitution could not be
invoked in contravention of the provisions of a Statute and a fortiori the
provisions of the Constitution. Mr. Desai also urged that in the Supreme
Court Bar Association case (supra) not only had the decision in Mohd.
Anis’s case (supra) been referred to, but this Court had expressly
disapproved the observation made therein by Mr. V.C. Misra that the law
laid down in Prem Chand Garg Vs. Excise Commissioner, U.P., Allahabad
[(1962) Supp. 1 SCR 885], in which it had been observed that despite the
width of the powers conferred on the Supreme Court by Article 142(1), even
this Court could not under the said provision make an order which was
plainly inconsistent with the express statutory provisions of substantive
law, much less, inconsistent with any constitutional provision, was no
longer good law.
16. Mr. Desai submitted that since the decision in the Supreme Court Bar
Association case (supra) had not been considered by this Court while
rendering the judgment under review and the relief had been moulded without
any discussion on such issue, the judgment was liable to be reviewed.
17. Dr. Rajiv Dhawan, Senior Advocate, who appeared for the Respondent
No.5, Shri Prateek Yadav, reiterated the submissions made by Mr. Dwivedi,
Mr. Rohatgi and Mr. Desai in relation to the decision rendered by this
Court in the Supreme Court Bar Association case (supra). Dr. Dhawan
submitted that the CBI, as a statutory body for the purpose of conducting
criminal investigation in extra-ordinary circumstances with the consent of
the State Government, could exercise powers within the limits and
constraints of the Delhi Special Police Establishment Act, 1946, which fact
had not been considered in the decisions rendered in State of West Bengal
Vs. Sampat Lal [(1985) 1 SCC 317], Bihar State Construction Co. Vs. Thakur
Munendra Nath Sinha [(1988) Supp. SCC 542] and also in Mohd. Anis’s case
(supra). Dr. Dhawan submitted that within the constitutional framework,
the CBI could not encroach upon the powers of the police of several States.
Referring to Entry 80 in List I of the Seventh Schedule to the
Constitution and Article 239AA, Dr. Dhawan submitted that the Central
Government was not entitled to extend the powers and jurisdiction of the
members of the police force belonging to any area outside the State so as
to enable the police of one State to exercise powers and jurisdiction in
any area outside that State without the consent of the State Government of
that State in which such area is situated. Dr. Dhawan submitted that it
was, therefore, clear that the direction given by this Court to the CBI,
which is a creation of the Delhi Special Police Establishment Act, 1946, to
investigate into a State subject, was contrary to the constitutional
safeguards engrafted in Entry 80 of List I of the Seventh Schedule to the
Constitution. Reference was also made by Dr. Dhawan to the principles
evolved by the Privy Council in King Emperor Vs. Khwaja Nazir Ahmed [AIR
1945 PC 18] and Bhajan Lal Vs. State of Haryana [(1992) Supp. 1 SCC 335],
wherein it was observed that judicial review is subject to the principles
of judicial restraint and must not become unmanageable in other aspects
relating to the power of the Union or State Governments. Reference was
also made to Section 5 of the 1946 Act which listed the classes of offences
which may be inquired into by the CBI.
18. Dr. Dhawan also contended that while entertaining a public interest
litigation, it was always necessary for the Court to be extra cautious
since at the very initial stage no opportunity is given to the Respondent
to state his case before notice is issued and at times it could result in
premature reference to the CBI on a view short of a prima facie case,
particularly where the public interest litigation was politically motivated
to adversely affect the political consequences of the persons involved. Dr.
Dhawan lastly submitted that the direction given to the CBI after
completion of the inquiry to submit its report to the Union of India was
clearly contrary to law and could not be sustained under any circumstances.
19. In addition to the above petitions, we had also considered I.A.
Nos.16 and 17 of 2009 which had been filed by one Shri Ashutosh Srivastava,
who appeared in-person in support of his application for being impleaded.
Having heard learned counsel for the Respondents and the Applicant in-
person, we had reserved orders on the same.
20. In the facts and circumstances of the case, we are not inclined to
implead Shri Srivastava in these proceedings and his application for being
impleaded stands rejected.
21. Appearing for the Writ Petitioner, Vishwanath Chaturvedi, Mr. K.T.S.
Tulsi, learned Senior Advocate, submitted that every order in which a
mistake may be noticed does not automatically call for a review and that
the power of review could be invoked only in circumstances as contained in
Order 47 Rule 1 of the Code of Civil Procedure (CPC). Referring to the
decision dated 16th June, 2008 of this Court in State of West Bengal Vs.
Kamal Sengupta and Anr. in Civil Appeal No.1694 of 2006, Mr. Tulsi
submitted that the term “mistake or error apparent” which finds place in
Order 47 Rule 1 CPC, by its very connotation signifies an error which is
evident per se from the record of the case and does not require any
detailed examination, scrutiny and elucidation either of the facts or legal
position. In fact, in Parsion Devi Vs. Sumitri Devi [(1997) 8 SCC 715] it
was observed that if an error is not self-evident and detection thereof
requires long debate and process of reasoning, it cannot be treated as an
error apparent on the face of the record for the purpose of Order 47 Rule 1
CPC. In other words, an order or decision or judgment cannot be corrected
merely because it is erroneous in law or on the ground that a different
view could have been taken on a point of fact or law, as the Court could
not sit in appeal over its own judgment. Similar views were expressed by a
Five-Judge Bench of the Federal Court in Sir Hari Shankar Pal and Anr. Vs.
Anath Nath Mitter & Ors. [(1949) FCR 36], wherein it was, inter alia,
observed that a decision being erroneous in law is certainly no ground for
ordering review.
22. Various other decisions were also referred to which will only serve
to duplicate the decisions of this Court on the said issue.
23. As has been indicated in paragraph 5 of this judgment, five broad
propositions were canvassed on behalf of the review petitioner, Shri
Akhilesh Yadav, which were mainly confined to the jurisdiction of the High
Court and the Supreme Court to direct a CBI inquiry in respect of an
offence alleged to have been committed within a State, without the consent
of the State concerned. Along with the above, the locus standi of the writ
petitioner to maintain the writ petition was also raised on behalf of Shri
Yadav. While the submissions on behalf of all the review petitioners were
centered around the said two propositions, a specific issue was raised by
Mr. Mukul Rohatgi as to whether the investigation and/or inquiry could also
be extended to the assets of Smt. Dimple Yadav, wife of Shri Akhilesh
Yadav, since she had neither held any post under the Government nor was she
involved in the activities of her husband or father-in-law, Shri Mulayam
Singh Yadav. The acquisition of wealth by her was attributed to her
agricultural income and not to any source of income through her husband and
her father-in-law.
24. Same were the submissions made by Dr. Rajiv Dhawan, appearing for
Shri Prateek Yadav, and, in addition, it was submitted that the said
Respondent did not get a reasonable opportunity of stating his case before
the judgment was delivered in Writ Petition (C) No.633 of 2005 on 1st
March, 2007.
25. As far as the first contention is concerned, the same has been set at
rest by the Constitution Bench in State of West Bengal & Ors. Vs. The
Committee for Protection of Democratic Rights, West Bengal & Ors., being
Civil Appeal Nos.6249-6250 of 2001. In the very first paragraph of its
judgment the Constitution Bench set out the issue, which had been referred
to it for its opinion in the following terms :
“The issue which has been referred for the opinion of the
Constitution Bench is whether the High Court, in exercise of its
jurisdiction under Article 226 of the Constitution of India, can
direct the Central Bureau of Investigation (for short “the CBI”),
established under the Delhi Special Police Establishment Act, 1946
(for short “the Special Police Act”), to investigate a cognizable
offence, which is alleged to have taken place within the territorial
jurisdiction of a State, without the consent of the State Government.”
26. After considering the various decisions on this point, as also
Article 246 of the Constitution, the Constitution Bench ultimately answered
the reference in the manner following :
“In the final analysis, our answer to the question referred is
that a direction by the High Court, in exercise of its
jurisdiction under Article 226 of the Constitution, to the CBI to
investigate a cognizable offence alleged to have been committed
within the territory of a State without the consent of that State will
neither impinge upon the federal structure of the Constitution nor
violate the doctrine of separation of power and shall be valid in law.
Being the protectors of civil liberties of the citizens, this Court
and the High Courts have not only the power and jurisdiction but also
an obligation to protect the fundamental rights, guaranteed by Part
III in general and under Article 21 of the Constitution in particular,
zealously and vigilantly.”
27. A note of caution was also given by the Constitution Bench, which, in
fact, finds place in all the decisions relating to this issue, namely, that
the power which is vested in the superior courts should be exercised
sparingly, cautiously and in exceptional situations where it becomes
necessary to provide credibility and instill confidence in investigations
or where the incident may have national and international ramifications or
where such an order may be necessary for doing complete justice and
enforcing fundamental rights. The said note of caution is an echo of the
observations made by this Court in Supreme Court Bar Association Vs. Union
of India & Anr. [(1998) 4 SCC 409], that such an inquiry by the CBI could
be justified in certain circumstances to prevent any obstruction to the
stream of justice.
28. That this Court had jurisdiction to direct the CBI to make an inquiry
into the accumulation of wealth by Shri Mulayam Singh Yadav and his family
members in excess of their known source of income, based on the allegations
made in the writ petition, cannot be questioned. By its judgment dated 1st
March, 2007, this Court merely directed an investigation into the
allegations made in the writ petition and to submit a report to the Union
Government. The submissions made on behalf of the review petitioners in
this regard, must, therefore, be rejected, except in regard to the
direction given to the CBI to submit a report of its inquiry to the Union
Government.
29. In addition, the submissions made qua Smt. Dimple Yadav merits
consideration, since when the order under review was passed, she had
neither held any public office nor Government post and was essentially a
private person notwithstanding her proximity to Shri Akhilesh Yadav and
Shri Mulayam Singh Yadav. On reconsideration of her case, we are of the
view that the investigation launched against her on the issue of amassing
wealth beyond her known source of income, is liable to be dropped. The
review petition, so far as Smt. Dimple Yadav is concerned, is, accordingly,
allowed and the investigation conducted by the CBI against her should,
therefore, be dropped.
30. As far as the other review petitioners are concerned, we have to keep
in mind the fact that the scope and ambit of a review proceeding is limited
and the order dated 1st March, 2007, in respect of which review has been
sought, was neither irregular nor without jurisdiction and was passed after
considering the submissions made on behalf of the respective parties. The
review proceedings cannot be converted into an appeal.
31. The judgment under review does not, in our view, suffer from any
error apparent on the face of the record, except for the directions given
in the case of Smt. Dimple Yadav. There is another error which we
ourselves are inclined to correct. While disposing of the writ petition
and directing the CBI to inquire into the alleged acquisition of wealth by
the Respondent Nos.2 to 5, the CBI was directed to submit a report to the
Union of India and on receipt of such report, the Union of India was given
the liberty to take further steps depending upon the outcome of the
preliminary inquiry into the assets of the said respondents. Since, the
CBI is an independent body and is under no obligation to report to the
Union of India in regard to investigations undertaken by it, the direction
to submit a report of the inquiry to the Union of India and the liberty
given to the Union of India to take further steps on such report is not
contemplated in the scheme of the Delhi Special Police Establishment Act,
1946. It is for the CBI to decide what steps it wishes to take on the basis
of the inquiry conducted. We, therefore, modify the order dated 1st March,
2007, and direct that the directions given to the CBI to submit a report of
its inquiry to the Union of India and the liberty given to the Union of
India to take further steps on such report, be deleted from the order.
32. The review petitions are disposed of with the following directions :
i) The CBI shall drop the inquiry into the assets of the
Respondent No.4, Smt. Dimple Yadav, wife of Shri Akhilesh Yadav;
ii) The CBI may take such independent action, as it considers
fit, on the basis of the inquiry conducted by it pursuant to the
directions given by this Court in the judgment under review, without
seeking any direction from the Union of India or on the basis of any
direction that may be given by it.
…………………………………………………CJI.
(ALTAMAS KABIR)
………………………………………………………J.
(H.L. DATTU)
New Delhi
Dated: December 13, 2012.
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