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The Code Of Criminal Procedure, 1973
Article 21 in The Constitution Of India 1949
Article 226 in The Constitution Of India 1949
the Delhi Special Police Establishment Act, 1946
Section 482 in The Code Of Criminal Procedure, 1973

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Gauhati High Court
Ek Mawlong vs State Of Meghalaya And Ors. on 28 January, 2008
Equivalent citations: 2008 (1) GLT 1083
Author: T Vaiphei
Bench: T Vaiphei

JUDGMENT T. Vaiphei, J.

1. This is an unusual writ petition. Unusual, because all the writ petitions and criminal petitions filed under Article 226 of the Constitution and Section 482, Cr.P.C. respectively taken up by me heretofore, were for seeking the intervention of this Court either for quashing FIRs or for quashing criminal proceedings, but in this case, neither FIR nor criminal proceeding has been registered against the petitioner. The prayers in the writ petition are as follows:

...(T) Why writ in the nature of certiorari should not issue and the impugned letter dated 19.12.2002 (Annexure-3F), be not set aside and quashed and/or why a writ in the nature of Mandamus should not be issued directing the Respondents to cancel, recall and/or for-bear from giving any further effect to the aforesaid impugned letter dated 19.12.2002 (Annexure-3F), if any action has been taken thereunder and further be pleased to direct the respondents to publicly remove the stigma cast against your petitioner's name, and upon cause or causes shown and upon hearing the parties, be pleased to make the Rule absolute and/or to pass such further order or orders as to this Hon'ble Court may seem fit and proper.

2. The brief facts of the case leading to the filing of this writ petition are that the petitioner, a politician by occupation, was initially elected as Member of the Khasi Hills Autonomous District Council, Shillong in the year 1972 and was thereafter elected from time to time as Member of the Meghalaya Legislative Assembly till 2003. He also held the post of Chief Minister of the State till 9.12.2001, when he was forced to tender his resignation to the Governor due to the issue concerning the Kolkatta Meghalaya House Deal, which is the subject-matter of this writ petition. According to the petitioner, the idea of reconstruction of Meghalaya House at Kolkatta was mooted in the year 1999, when he was not yet in the Government, and the same was initiated by the General Administration Department (GAD), which was of the view that the House required reconstruction, but paucity of fund stood in the way and suggested that some interested parties be invited to work with the Government in a Joint Venture Project. It is the case of the petitioner that the proposal was approved by the then Minister of GAD, and not by him, as he came Chief Minister only on 8.3.2000 and that the related file was placed before him as Chief Minister sometime in the month of August-September, 2000, when the Chief Secretary requested his approval for extension of time for calling the tender on the ground that some more time was required to study the terms and conditions of the draft tender, which were found not satisfactory. Though he did approve the extension proposal, further extension was, however, sought for as the matter was required to be consider by the High Power Committee to be constituted for the purpose comprising of key departments of the Government to be chaired by the Chief Secretary. The State Cabinet eventually constituted the High Power Committee as suggested. According to the petitioner, the High Power Committee, after several sittings and after obtaining the views of the Department of Finance, GAD, PWD and Revenue, ultimately approved the idea of sitting up the Joint Venture Project.

3. It is the further case of the petitioner that in the aftermath of the approval by the High Power Committee, a fresh tender was called on 15.1.2001 by giving thirty days 'time to interested parties for submission of their bids. In response to the NIT, as many as 13 parties submitted their bids, an after evaluating the various bids by preparing a comparative statement, M/s. Asian Housing Construction Ltd. (AHCL) was found to be the most suitable and was accordingly recommended for acceptance of its offer. It is asserted by the petitioner that the recommendation was discussed by the Cabinet a couple of times, but due to the objection made by Shri T. H. Rngad, MLA, the matter was referred to him, and other experts by the GAD. After this exercise, according to the petitioner, the GAD was of the opinion that the Joint Venture Project with AHCL was a good project and thereafter endorsed the file to the Planning and Finance Departments, which eventually approved the project, whereupon the matter was placed before him in his capacity as the Chief Minister for final approval. It is the specific plea of the petitioner that he having full confidence in his ministerial colleagues and officials of the concerned Departments, duly endorsed his approval whereafter the agreement with AHCL came to be executed on 29.5.2001. According to the petitioner, till then, there was no question raised on the soundness of the agreement from any quarters.

4. It is also the case of the petitioner that one Patrica Mukhim, a free lance journalist, in her article published in the local daily, namely "Shillong Times" in the issue dated 12.10.2001, accused him and his colleagues of outright corruption and termed the Joint Venture Project as a complete sell out of the precious property of the State of Meghalaya. The petitioner in the meantime received a copy of the letter dated 15.10.2001 written by the said T.H. Rngad requesting the Chief Secretary, who was also the Chairman of the State Vigilance Commission, to send the dispute raised by him to the Anti-Corruption Branch for necessary investigation. According to the petitioner, the said T. H. Rngad, who was otherwise his colleague, never met him to discuss his allegations.

5. It is also the case of the petitioner that he summoned a Cabinet Meeting on 20.10.2001 at his residence and directly questioned the said T.H. Rngad, in the meeting, the reasons for his objection to the project when he himself as a member of the Cabinet, approved of the same, to which the latter vaguely replied that there were many loopholes, mistakes inherent defects and shortcomings in the terms and conditions of the agreement, which called for correction rectification. When the petitioner is stated to have asked the said Rngad to point out specifically those inherent defects or shortcomings to enable him to cause correction, the latter expressed his inability to do so on that day and would do so in the future meeting. The Cabinet thereupon decided that the complaints of inherent defects in the agreement be taken care of in the next meeting stated for 19.11.2001. However, before the next meeting, an occurrence of significant political consequence for the petitioner took place and sensing that it had the potential of toppling his Government, he convened an emergency meeting of the Parliamentary Party of the UDP on 29.10.2001 at his residence in which the political situation was reviewed by the participants while at the same time some of his colleagues wants change of leadership. It is the case of the petitioner that what emerged from the meeting was that only two out on the twenty members present therein supported did not support him while the rest expressed their faith and confidence in him and, therefore, pleaded him not to resigned from the party with the result that he continued to remain as the leader of the party. However, on 30.10.2001, the petitioner received a letter of resignation from Shri Martle N. Mukhim as Minister, who refused to withdraw his resignation letter despite repeated requests made by him to that effect. On 29.10.2001, the said Patricia Mukhim, alleged to be dismissed Government employee, called a public rally at Madan Malki, Shillong, for forming PRAC an NGO condemning the Government, in particular, the petitioner, for making the Meghalaya House, Kolkatta deal by terming the same as a complete sell out, without first, according to the petitioner, verifying the facts from the Government. The said Patricia Mukhim is thus stated to have exhorted NGOs in here movement against the deal. On 1.11.2001, Shri P.A. Sangma, convened a meeting of his party, namely, NCP to discuss the political situation arising out of the ongoing political situation.

6. It is the further case 67 the petitioner that he, noticing the potentially dangerous situation for him, pre-pone the Cabinet meeting earlier stated for 9.11.2001 to 3.11.2001, in which Meghalaya House, Kolkatta deal was discussed again and due to the stiff opposition from Members like the said Rngad and Shri A. H. Scott Lyngdoh, the then Minister of Finance, he proposed that the project be withdrawn and the AHCL informed accordingly with the result that the whole project came to be cancelled by the Cabinet. This apparently did not satisfy some of the agitating NGOs and even some of the colleagues of the petitioner, who pressed for his resignation from the Chief Ministership and for constituting a Commission of Inquiry to prove the irregularities alleged by them in the deal. The petitioner averts that he agreed to constitute a Commission of Inquiry and accordingly requested the Chief Justice to provide one sitting judge for the same. However, the Chief Justice proposed the names of retired Judges as no sitting Judge was available for the task. The petitioner thereafter appointed Mr. Justice S. Haque (Retired) to head the Commission of Inquiry to enquire into the matter as his name happened to be the fist in the list of the retired Judges so empanelled. It would appear that by the time the political situation turned for the worse. The coalition partners in the Government such as BJP and NCP withdrew their support to the petitioner, which was followed by the split in his party i.e. MDP, which ultimately resulted in introducing of noconfidence motion against the Government led by him. One thing then led to another and ultimately, the petitioner was forced to tender his resignation when he lost the majority votes in the House. It further appears that following his resignation, the Government appointed one-man Commission of inquiry headed by Justice S. P. Rajkhowa, a retired Judge of Calcutta High Court, to probe the allegations against the petitioner.

7. In the meantime, the Commission of Inquiry headed by Justice S. Haque appeared to have died a natural death. According to the petitioner, following the withdrawal of representations by most of the NGOs, the Government also eventually de-notified the Commission of Inquiry headed by Justice S. P. Rajkhowa before any Report could be submitted, which, according to the petitioner, suggested that the allegations made against him could not be established. His request to the Chief Minister to revive the Rajkhowa Commission was rejected by the latter stating that the Government was waiting for the report of the CBI, which had been entrusted to investigate the case. The further grievance of the petitioner is that he was not given an opportunity by the Speaker of the Meghalaya Assembly to project his case at the time of the debate on the No-Confidence Motion against his Government and that the Shillong Times also refused to publish the two articles written by him to clarify the facts about the Meghalaya House issue, which were later on published by "Meghalaya Guardian" in August, 2002.

8. It is contended by the petitioner that the fact that no action has been taken by the CBI, which was entrusted by the State Government to investigate the case vide the letter dated 19.12.2002, till date despite the lapse of about 5 years, is an indication that no case is made out against him in respect of the deal, which was subsequently settled by the present Government with certain modification in the agreement. According to the petitioner, his political career has in the meantime been shattered and his family members also sustained image problems in the eyes of the public. The General Election to the Meghalaya Legislative Assembly is due in the first part of 2008. As he is keen to contest the election, it is imperative that his name be cleared by the Government and unless the stigma cast upon him is duly removed by the Government, his election prospect is doomed. He was already defeated in the General Election to the Meghalaya Legislative Assembly held in 2003 due to unfounded and malicious allegations made against him in connection with the same deal. It is contended by the petitioner that in view of the undue delay in initiating the proceedings through the CBI, the air must necessarily be cleared and the public be informed that there is no CBI case pending against him so as to enable him to contest the ensuing Assembly election without having once again to fact the wrath of the electorate, which was in the first place uncalled for. Finally, the petitioner contends that he has been maligned without reasonable cause and his political career is again being destroyed by the impugned letter dated 19.12.2002, which is liable to be quashed to restore his honour and standing in public.

9. The State-respondents appear to have made a half-hearted opposition to the writ petition. To say the least, the affidavit-in-opposition filed by them through the Deputy Secretary to the Government of Meghalaya, General Administration (A) Department, left much to be desired. The averments made by the petitioner, which have been reproduced by me in detail in the foregoing paragraphs claiming his innocence and denying any wrongdoing, much less, commission of crimes, which have also been reproduced by me earlier, have not been denied or controverted by the respondents. All that the respondents have pleaded is that the State Government had already de-notified the Commission of Inquiry headed by Justice S. P. Rajkhowa following the withdrawal of NGOs, and that the terms of the Commission was not extended after it expired on 31.8.2002. They however, point out that though the State Government had requested the Govt. of India in the Ministry of Personnel, Public Grievances and Pension to consider taking up the case for investigation by the CBI, the decision taken has not been communicated to them despite repeated reminders. For better appreciation of the controversy, it may, at this stage, be useful to refer to and reproduce herein below the cents of the impugned letter:

No. 206/2001/Pt.III/181 Dated Shillong December 19.2002 From: Smti R.V. Suchiang, IAS Secretary to the Govt. of Meghalaya To: The Secretary, Government of India, Ministry of Personnel & Public Girevances and Pension (Department of P&T) New Delhi-I Subject: Transfer of Cases to CBI Sir, With reference to the above, I am directed to say that since the ACB of the State Police is not fully equipped to handle major cases of financial irregularities, the Government has decided to refer the matter to the CBI for detailed enquiry and further necessary action on the Meghalaya House Kolkatta Deal.

Though no FIR has been registered with any PS in the State, however as the case is of grave importance and the matter involves various allegation against some officers and elected representatives in the highest position in the State, it is therefore requested that the Government of India may kindly consider taking up the case for investigation by the CBI on the following issues:

1. Whether there was some motive in not taking the present market value of the property while working out and fixing the 'Lease Rent'.

2. What was the consideration for reducing the Annual Lease Rent from Rs. 5.00 lakhs (as per the First offer of the property) to Rs. 2.50 lakhs.

3. Was there any motive involved in reducing the 'build-up area for the Government of Meghalaya from 78,238 sq.ft. (as per the First offer of the party) to 64,500 sq. ft. by the Technical Committee/Official Committee.

4. Was there any motive for 'undue gain' involved in the Joint Venture Agreement.

5. While drawing this agreement, why Advocates/Chartered Accountants from Kolkatta were engaged when the Advocate General of the State Government and other High Court Advocates of repute are available in the State including Chartered Accountants.

6. Whether the Advocates/Chartered Accountants engaged for drafting the Lease Deed had business connection with the Asian Housing & Construction Ltd.(AHCL).

CBI may also be assured that all the logistic and support (within the State) shall be provided by the State Government for conducting this Enquiry.

All relevant deeds/documents will be made available as and when required. However, a background note along with enclosures is sent herewith.

Yours faithfully, Sd/-

(R.V. Suchiang, IAS) Secretary to the Government of Meghalaya Political Department.

10. The impugned letter observes that the ACB of the State Police was not fully-equipped to handle major cases of financial irregularities and that no FIR has been registered in connection with what is alleged to be a scandal of major proportion. The letter dated 18.2.2003 (Annexure-3G) indicates that the Secretary to the Government of Meghalaya, Political Department requested the Ministry of Personnel & Public Grievances and Pension (Department of P&T) to inform the State Government of the decision taken by the Government of India on the matter i.e. transfer of the case in question to the CBI. This was followed by the letter dated 9.8.2006 (Annexure-3H) of the Political Department, Govt. of Meghalaya addressed to the Secretary, Govt. of India, Ministry of Personnel & Public Grievances and Pension (Department of P&T) to let the State Government to know of the status of the matter i.e. transfer of the case to CBI. In this connection, the letter dated 15.10.2007 of the Deputy Secretary to the Government of India, Ministry of Personnel, Public Grievances and Pensions (Department of P&T) addressed to the Chief Secretary, Government of Meghalaya, a copy whereof is made available to this Court (the genuineness whereof is also not disputed by the counsel for the State), is illuminating, and is extracted hereunder:

No. 228/38/2007-AVD-II Government of India Ministry of Personnel, Public Grievances and Pensions (Department of Personnel and Training) New Delhi dated the 15th Oct 2007 To The Chief Secretary Government of Meghalaya Main Secretariat Building Shillong-793001.

Subject : Request from the State Govt. of Meghalaya for CBI investigation regarding allegations of financial irregularities into development of Meghalaya House Kolkatta. Sir, I am directed to refer to your d.o. letter No. POL.206/2001/Pt.III/203 dated 5th June 2007 on the above subject and to say that the Central Bureau of Investigation has intimated that a Commission of Enquiry headed by Mr. Justice S. P. Rajkhowa had already been appointed by the State Govt. to look into the alleged financial irregularities. If the Commission of Enquiry have since submitted its report by now, a copy of the same may be sent to this Department, so that the matter could be examined further.

Yours faithfully, Sd/-

(Manisha Saxena) Deputy Secretary to the Government of India

11. The contents of the aforesaid letter plainly shows that no investigation has been initiated by the CBI till now. Nor has any FIR been registered. On the contrary, the letter unambiguously makes clear that the CBI is still now waiting for the report of the Commission of Enquiry headed by Mr. Justice S. P. Rajkhowa and that the matter could be examined further on receipt of the copy of the report. In other words, the question of investigating the case by CBI would be considered by the CBI after receipt of the report of the S.R Rajkhowa Commission. Therefore, I take it that the CBI, at this stage is not able to form an opinion that there is prima facie case against the petitioner to enable it to proceed with investigation of the case. On the other hand, the admitted position of the parties in this case is that Justice S.R Rajkhowa Commission of Inquiry had become defunct after 31.8.2002 even before it could submit its report on the ground that following the withdrawal of the NGOs. Therefore, it is also safe to presume that there is not even a prima facie finding on the allegations made against the petitioner even after the lapse of five years. The question to be determined by this Court is whether the CBI should be directed to investigate the case even when FIR has not even been registered in connection with the Meghalaya House deal. I may also at this juncture notice that the original agreement executed between the State Government and AHCL upon which financial irregularities were alleged against the petitioner had obviously fallen through and subsequently modified by the new Government. In this connection, the observations of the Apex Court in Common Cause. A registered Society v. Union of India are instructive:

174. The other direction, namely, the direction to CBI to investigate "any other offence" is wholly erroneous and cannot be sustained. Obviously, direction for investigation can be given only if offence is, prima facie, found to have been committed or a person's involvement is prima facie establishment, but a direction to CBI to investigate whether any person has committed an offence or not cannot be legally given. Such a direction would be contrary to the concept an philosophy of "LIFE" and "LIBERTY" guaranteed to a person under Article 21 of the Constitution. This direction is in complete negation of various decision of this Court in which the concept of "LIFE" has been explained in a manner which has infused "LIFE" into the letters of Article 21.

175. "Right to Life", set out in Article 21, means something more than mere survival or animal existence. (See: State of Meghalaya v. Chandrabhan Tale ). This right also includes the right to live with human dignity and all that goes along with it, namely, the bare necessities of life such as adequate nutrition, clothing and shelter over the head and facilities of reading, writing and expressing oneself in different forms, freely moving about and mixing and commingling with fellow human beings. (See: Francies Coralie Mullin v. Administrator, Union Territory of Delhi ; Olga Tellis v. Bombay Municipal Corporation ; Delhi Transport Corporation v. DTC Mazdoor Congress 1991 Supp. (1) SCC 600). In Kharak Singh v. State of U.P. , demiciliary visit by the police was held to be violative of Article 21.

176. A man has, therefore, to be let alone to enjoy "LIFE" without fetters. He cannot be hounded by the police of CBI merely to find out whether he has committed any offence or is living as a law abiding citizen. Even under Article 142 of the Constitution, such a direction cannot be issued. While passing an order under Article 142 of the Constitution, this Court cannot ignore the substantive provision of law much less the constitutional rights available to a person (See: Supreme Court Bar Association v. Union of India ).

12. The proposition of law that police investigation cannot be ordered by High Court under Article 226 of the Constitution on the basis of mere suspicion is reiterated by the Apex Court in State of Karnataka v. Arun Kumar Agarwal in the following manner:

16. It is difficult to visualize that when an agreement has been entered into with a foreign company it has been done under suspicious circumstances, particularly, when it has stood the test of scrutiny under three different Governments headed by at least three different Chief Ministers and when the examination of the project and its approval was considered by different statutory and other agencies of the Government of India. Could it still be stated that there had been kick backs to any of them or all of them in the matter of entering into a memorandum of understanding or in continuation of the same? The law, in fact, is otherwise. The acts of persons will not be the subject of criminal investigation unless a crime is reported to have been committed or reasonable suspicion thereto arises. On mere conjecture or surmise as a flight of fancy that some crime might have been committed somewhere by somebody but the crime is not known, the persons involved in it or the place of crime unknown, cannot be termed to be a reasonable basis at all for starting a criminal investigation. However condemnable be the nature or extent of corruption in the country, not all acts could be said to fall in that category. The attempt made by the High Court in this case appears to us to be in the nature of a blind shot fired in the dark without even knowing whether there is a prey at all. That may create sound and fury but not result in hunting down the prey (emphasis supplied). The High Court has looked at different circumstances in the case with a jaundiced eye, particularly when we look at the comments made by it in relation to the amount of paper used and standing of the learned Counsel appearing in the case. Naturally when the stakes are high one would not like to take a risk in allowing a matter to go by default. The persons concerned will take all precautions by putting forth every point in their favour and to be represented by the best of counsel they can engage. Even that circumstance is taken to against the parties concerned. We think, the High Court has gone too far. We would not have made this comment at all had the High Court given due weight to the rival submissions made-by the parties. The High Court has not at all analysed the contentions put forth by either party. Hardly any reasons are forthcoming in the order. What is stated by the writ petitioners and the respondents is summarized. When the High Court steers itself clear of expressing any opinion one way or the other even as to whether a prima facie case exists or not and whether there is a reasonable ground for suspicion of any crime having been committed, it is difficult to accept the view taken by the High Court.

13. It was on the basis of the aforesaid legal principles that the Apex Court set aside the directions of the High Court of Karnataka to the State Government to get an FIR registered with CBI under the provisions of the Delhi Special Police Establishment Act for various cognizable offences without naming any person or group of persons as accused and upon such registration, to require the Director General of CBI to direct the investigation to be conducted by an officer under the supervision and control of an official not below the rank of Deputy Director General of CBI, etc. It is true that even without registering a case, it is open to the police officer or CBI to collect information containing details about occurrence so that they can consider whether cognizable offence has been committed warranting investigation therein. The duty of the police is to prevent and detect crime and to bring the accused to justice. If, on the basis of facts stated in the FIR, the police officer or CBI suspect the commission of cognizable offence, investigation machinery is bound to take up investigation and collect all necessary evidence and thereafter take action in accordance with law. However, investigation would not be taken up before registration of the case. In the instant case, on the admitted facts of the case that no FIR has been registered till date, that the withdrawal of NGOs led to the de-notification of the justice S.P. Rajkhowa Commission of Inquiry, upon whose report the CBI is to consider the question of investigating the case and further that the impugned original agreement for the Joint Venture Project has since then been modified by the subsequent Government and coupled with the fact that no prima facie case has been made out against the petitioner even at this stage, it will neither be expedient nor desirable to direct the C 31 to register a regular case and upon such registration, to investigate the case. Conversely, in the absence of definite materials against the petitioner, it will be unfair, vexatious as well as illegal on the part of the State-respondents to entrust the CBI to investigate the case qua the petitioner.

14. It may at this stage be beneficial to refer to the observations the Apex Court in T. T. Anthony v. State of Kerala with respect to the powers and limitations of the police to investigate cognizable offences, which are in the following terms:

23. The right of the police to investigate into a cognizable offence is a statutory right over which the court does not possess any supervisory jurisdiction under Cr.P.C. In Emperor v. Khwaja Nazir Ahmed the Privy Council spelt out the power of the investigation of the police, as follows (AIR p. 22):

In India, as has been shown, there is a statutory right on the part of the police to investigate the circumstances of an alleged cognizable crime without requiring any authority from the judicial authorities, and it would, as their Lordships think, be an unfortunate result if it should be held possible to interfere with those statutory rights by an exercise of the inherent jurisdiction of the court.

24. This plenary power of the police to investigate a cognizable offence is, however, not unlimited. It is subject to certain well recognized limitations. One of them, is pointed out by the Privy Council, thus:

If no congnizable offence is disclosed, and still more if no offence of any kind is disclosed; the police would have not authority to undertake an investigation....

25. Where the police transgresses its statutory power of investigation the High Court under Section 482 CrPC or Article 226/227 of the Constitution and this Court in an appropriate case can interdict the investigation to prevent abuse of process of the court or otherwise to secure the ends of justice.

Again, in State of Haryana v. Bhajan Lal 1992 Supp. (1) SCC 335, the Apex Court observes:

102. In the backdrops of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of process of court the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.

(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accept in their entirety do not prima facie constitute any offence or make out a case against the accused.

(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the code except under an order of a Magistrate within the purview of Section 155 (2) of the Code.

(3) Where the uncontroverted allegations made in the FIR of complaint and the evidence collected in support of the same do to disclose the commission of any offence and make out a case against the accused.

(4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.

(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.

(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the Act concerned (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the Act concerned, providing efficacious redress for the grievance of the aggrieved party.

(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.

16. As already indicated by me earlier, even though there might have been a case of impropriety bordering upon abuse or misuse of power of misconduct/wrong doing/bad faith on the part of the petitioner, but these acts of commission or omission may not necessarily constitute criminal offences. As a matter of fact, no specific allegations, any, any whisper of allegation, which can, at this stage, disclose cognizable offences against the petitioner have been made out. Unless an offence of any kind against the petitioner is disclosed, neither the police nor the CBI would have the authority to undertake an investigation against him.

17. A just balance between the fundamental rights of a citizen under Articles 19 and 21 of the Constitution and the expansive powers of the police to investigate a cognizable offence has to be struck by this Court. After all, the sweeping power of investigation does not warrant subjecting a citizen to investigation and the consequential harassment, mental agony and loss of reputation inherently and inevitably associated therewith. For five long years, the machinery of investigation has not been activated, and whatever action taken by the authorities hitherto has been confined to a series of correspondences exchanged between the State Government and the Ministry of Personnel, Government of India without tangible result. In the meanwhile, the petitioner is left in the lurch. He is neither here nor there. Perhaps, the initial euphoria has apparently died down. This is only natural when public memory is proverbially short. On the other hand, the petitioner is unable to prove his innocence or is being successfully prosecuted due to the half-hearted action taken by the authorities. Therefore, there is considerable force in the grievances projected by the petitioner.

18. For the reasons stated in the foregoing, I have no alternative but to allow the writ petition.

19. Consequently, the State-respondents are directed not to pursue the impugned letter dated 19.12.2002 (Annexure-3F). However, this order will not preclude the State-respondents or other concerned persons, on finding appropriate material, to place the same before any authorized investigating agencies including the CBI to register the case and investigate the matter and, in the event there is any inaction on their part may seek relief in an appropriate Court.

20. On the peculiar facts and circumstances of this case, I pass no order as to costs.