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The Calcutta High Court has dismissed a Public Interest Litigation (PIL) seeking transfer of the investigation of the FIR alleging family members of an MLA have been illegally employed in All India Institute of Medical Sciences (AIIMS), Kalyani to the Central Bureau of Investigation (CBI).
On the basis of the complaint dated May 20, 2022, the Inspector-in-charge, Kalyani Police Station, the First Information Report for offence under Sections 420/406/120B/34 of the IPC and Sections 7/7A/8/11/13 of the Prevention of Corruption Act, 1988 (the PC Act) has been registered. The allegation in the FIR is that employment has been illegally provided to family members of the MLA in AIIMS, Kalyani. The allegation is that leaders of one of the political parties including the accused public servant and Director of the AIIMS, Kalyani have misused their position and powers to make appointments of their near and dear ones in AIIMS, Kalyani. The FIR and allegation are based upon newspaper reports.
The submission of the counsel for the petitioner, Sujit Chakraborty, is that the AIIMS has been constituted under the Act of the Parliament. Referring to various provisions of the All India Institute of Medical Sciences Act, 1956, and All India Institute of Medical Sciences Rules, 2019, he has submitted that the AIIMS is financially, functionally and administratively controlled by the Central Government. His further submission is that the offence under the PC Act has been registered involving the officers and employees of the Central Government and the Central Vigilance Commission (CVC) has been vested with the power to exercise superintendence over the functioning of Delhi Special Police Establishment (DSPE) for investigation of offences committed under the PC Act and CVC has superintendence and control over the DSPE and CBI may act as an extended arm of CVC, therefore, in respect of establishment owned and controlled by the Central Government, the investigation should be carried out by the CBI. In support of his submission, the counsel for the petitioner has placed reliance upon the Single Bench judgment of this Court in the matter of Vinay Mishra vs. Central Bureau of Investigation and Others reported in 2021 SCC OnLine Cal 2160.
The counsel for the state has opposed the petition by submitting that under the List II, investigation is primarily a State subject and there is no allegation of bias against the investigating agency and also there is no legal bar to conduct the investigation by the State investigating agency in such cases. He has also questioned the locus of the petitioner to file the present public interest petition.
The CBI counsel has raised an issue that provisions contained in Section 17(A) of the PC Act have not been complied with and that the investigation by the Sub-Inspector is in contravention of the provisions contained in Section 17 of the PC Act.
The AIIMS counsel has also submitted that single source selection is permissible under the Rule 194(iv) of the General Financial Rules, 2017 and no illegality has been committed in making the appointment.
The Division Bench of Chief Justice Prakash Shrivastava and Justice Rajarshi Bharadwaj noted that in terms of the first proviso to the Section 17 of the PC Act , Inspector of Police authorized by the State Government by general or special order is competent to investigate. It has been disclosed by the State that vide Control Org No. 385/CS dated 21.05.2022, the State of West Bengal has empowered the Inspector of Police to conduct the investigation of offence under the PC Act in the State of West Bengal. The investigation in the present case is being carried out by one Ashim Mondal who is an Inspector of Police.
So far as the DSPE Act is concerned, the Court noted that under Section 2, the Central Government is empowered to constitute a special force to be called Delhi Special Police Establishment for investigation in any Union Territory. In terms of Section 5, the jurisdiction of members of Delhi Special Police Establishment to investigate the specified offences can be extended to any area in a State not being a Union Territory. Section 6 of the Act relates to consent of the State Government to exercise powers and jurisdiction.
“None of the provisions of PC Act or DSPE Act exclude the jurisdiction of the State investigating agency to investigate the offence registered against the employees of the Central Government or employees working in an establishment owned or controlled by the Central Government, if otherwise the State investigating agency is empowered to do so,” the Bench observed.
The Court found that the competent officer of the State police can investigate the offence in question. Another question raised by the counsel for the petitioner is that AIIMS, Kalyani, is effectively controlled by the Central Government and CVC has the power to exercise control over the function of Delhi Special Police Establishment for investigation of the offence alleged to have been committed under the PC Act and that CBI may act as an extended arm of CVC. We have been taken through the provisions of the AIIMS Act, 1956, Rules, DSPE Act and Central Vigilance Commission Act, 2003, but none of the provisions from these Acts and Rules have been pointed out to show that only the CBI has the jurisdiction to investigate the offence in such a case.
That apart, the Bench noted that the respondents in their affidavit in opposition have placed on record the progress of investigation in the matter. There is no allegation of bias or lapse in investigation in the present case which could furnish a ground to transfer the investigation to the CBI.
Further, the High Court observed that Counsel for the petitioner has placed reliance upon the Single Bench judgment in the case of Vinay Mishra (supra), but in that case the question examined was “pursuant to the withdrawal notification dated 16.11.2018 whether the investigation by the CBI in respect of FIR which was subsequently registered was valid and legal?” Hence, the judgment relates to an altogether different issue in different fact situations.
The counsel for the respondents have also raised the issue of locus of the petitioner placing reliance upon the judgments of the Supreme Court in the matter of Rajiv Ranjan Singh ‘Lalan’ (VIII) and Another vs. Union of India and Others reported in (2006) 6 SCC 613, Simranjit Singh Mann vs. Union of India and Another reported in (1992) 4 SCC 653, Subramanian Swamy and Others vs. Raju Through Member, Juvenile Justice Board and Another reported in (2013) 10 SCC 465, Janata Dal vs. H.S. Chowdhary and Others reported in (1992) 4 SCC 305, Ashok Kumar Pandey vs. State of W.B. reported in (2004) 3 SCC 349. The petitioner has failed to disclose his full credential in the petition to satisfy the test of locus.
So far as the issue of compliance of Section 17A of the PC Act is concerned, the Court has no doubt that the said provision will be duly taken note of by the investigating agency.