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In July 2007, the Board of Trustees adopted a new organizational structure for all the Rules of the State Bar of California. The rules, which are now organized in seven Titles along with the California Rules of Professional Conduct and appendixes, are being revised to be simpler, clearer, and more uniform.

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State of Gujarat ( 2009 6 SCC 332).

In Vineet Narain & Others V. Union of India (1988) 1 SCC 266 , Supreme Court entertained the petition filed under Art. 32 of the Constitution; and ordered investigation by CBI into what came to be known as ‘Hawala Case’ . A brief narration of the facts of this case is; on 25th March, 1991, one Ashfak Hussain Lone, alleged to be an official of the terrorist organisation Hizbul Mujahideen, was arrested in Delhi. Consequent upon his interrogation, raids were conducted by the Central Bureau of Investigation (CBI) on the premises of Surrender Kumar Jain, his brothers, relations and businesses. Along with Indian and foreign currency, the CBI seized two diaries and two note books from the premises. They contained detailed accounts of vast payments made to persons identified only by initials. The initials corresponded to the initials of various high ranking politicians, in power and out of power, and of high ranking bureaucrats. Nothing having been done in the matter of investigating the Jains or the contents of their diaries, the present writ petitions were filed on 4th October, 1993, in the public interest under Article 32 of the Constitution of the India. The gist of the allegations in the writ petitions is that Government agencies like the CBI and the revenue authorities had failed to perform their duties and legal obligations inasmuch as they had failed to investigate matters arising out of the seizure of the "Jan diaries"; that the apprehension of terrorists had led to the discovery of financial support to them by clandestine and illegal means using tainted funds obtained through `havala' transactions; that this had also disclosed a nexus between politicians, bureaucrats and criminals, who were recipients of money from unlawful sources, given for unlawful consideration that the CBI and other Government agencies had failed to investigate the matter, take it to its logical conclusion and prosecute all persons who were found to have committed and offence; that this was done with a view to protect the persons involved, who were very influential and powerful; that the matter disclosed a nexus between crime and corruption at high places in public life and it posed a serious threat to the integrity, security and economy of the nation; that probity in public life, the rule of law and the preservation of democracy required that the Government agencies the compelled to duly perform their legal obligations and to proceed in accordance with law against every person involved, irrespective of where he was placed in the political hierarchy. The writ petitions prayed, inter alia, for the following reliefs:

The first class relates to investigations in the matter of the 'Jain diaries". The second class relates to the manner in which investigations of offences of a similar nature that may occur hereafter should be conducted. Procedure adopted.

The Supreme Court held “We have taken the view that, given the political personalities of the propel to be investigated in the "Jain diaries" case and the time already lost in commencing the investigation it was advantageous not to hear the matter through and issue a writ of mandamus, leaving it to the authorities to comply with it, but to keep the matter pending while the investigations were being carried on, ensuring that this was done by monitoring them from time to time and issuing orders in this behalf. Our reasoned orders are dated. 18.4.1995, 16.1.1996 [1996 (2) Scale (SP) 42], 30.1.1996 [1996 (2) SCC 199], 22.2.1996 [1996 (2) Scale (SP) 84], 1.3.1996 [1997 (4) SCC 778], 13.3.1996 [1996 (4) Scale (SP) 3], 1.5.1996 [1996 (4) Scale (SP) 56], 26.7.1996 (6) Scale (SP) 24], 9.7.1997 [1997 (5) Scale 254]. Orders in similar matters, being the orders dated 12.2.1996 [1996 (3) Scale (SP) 35], 2.14.1996, 26.4.1996 [1996 (4) Scale (SP) 71], 26.7.1996 [1996 (6) Scale (SP) 23] and 7.10.1996 [1996 (6) SCC 354] in Writ Petition (Civil) No. 640 of 1995 - Anukul Chandra Pradhan vs. Union of India and Others- and orders dated 24.2.1997 and 18.3.1997 in Writ Petition (Civil) No. 38 of 1997 - Dr. Subramaniam Swamy vs. Director, CBI & Ors., are also relevant”.

The sum and substance of these orders is that the CBI and other Governmental agencies had not carried out their public duty to investigate the offences disclosed; that none stands above the law so that an alleged offence by him is not required to be investigated; that we would monitor the investigations, in the sense that we would do what we permissibly could to see that the sense that we would do what we permissibly could to see that the investigations progressed while yet ensuring that we did not direct or channel those investigations or in any other manner prejudice the right of those who might be accused to a full and fair trial. We made it clear that the task of the monitoring court would and the moment a charge-sheet was filed in respect of a particular investigation and that the ordinary processes of the law would then take over. Having regard to the direction in which the investigations were leading, we found it necessary to direct the CBI not to report the progress of the investigations to the person occupying the highest office in the political executive this was done to eliminate any impression of bias or lack of fairness or objectivity and to maintain the credibility of the investigations. In short, the procedure adopted was of "continuing mandamus".

Thus Supreme Court directed:-

1. The Central Vigilance Commission (CVC) shall be given statutory status.

2. Selection for the post of Central Vigilance Commissioner shall be made by a Committee comprising the Prime Minister, Home Minister and the Leader of the Opposition from a panel of outstanding civil servants and others with impeccable integrity to be furnished by the Cabinet Secretary. The appointment shall be made by the President on the basis of the recommendations made by the Committee. This shall be done immediately.

3. The CVC shall be responsible for the efficient functioning of the CBI. While Government shall remain answerable for the CBI's functioning, to introduce visible objectivity in the mechanism to be established for over viewing the CBI's working, the CVC shall be entrusted with the responsibility of superintendence over the CBI's functioning. The CBI shall report to the CVC about cases taken up by it for investigation; progress of investigations; cases in which charge sheets are filed and their progress. The CVC shall review the progress of all cases moved by the CBI for sanction of prosecution of public servants which are pending with competent authorities, especially those in which sanction has been delayed or refused.

4. The Central Government shall take all measures necessary to ensure that the CBI functions effectively and efficiently and is viewed as a non-partisan agency.

5. The CVC shall have a separate section in its Annual Report on the CBI's functioning after the supervisory function is transferred to it.

6. Recommendations for appointment of the Director, CBI shall be made by a Committee headed by the Central Vigilance Commissioner with the Home Secretary and Secretary (Personnel) as members. The views of the incumbent Director shall be considered by the Committee for making the best choice. The Committee shall draw up a panel of IPS officers on the basis of their seniority, integrity, experience in investigation and anti - corruption work. The final selection shall be made by Appointments Committee of the Cabinet (ACC) from the panel recommended by the Selection Committee. If none among the panel is found suitable, the reasons the reasons thereof shall be recorded and the Committee asked to draw up a fresh panel.

7. The Director, CBI shall have a minimum tenure of two years, regardless of the date of his superannuation. This would ensure that an officer suitable in all respects is not ignored merely because he has less than two years to superannuate from the date of his appointment.

8. The transfer of an in cumber Director, CBI in an extraordinary situation, including the need for him to take up a more important assignment, should have the approval of the Selection Committee.

9. The Director, CBI shall have full freedom for allocation of work within the agency as also for constituting teams for investigations. Any change made by the Director, CBI in the Head of an investigative team should be for cogent reasons and for improvement in investigation, the reasons being recorded.

10. Selection/extension of tenure of officers up to the level of Joint Director (JD) shall be decided by a Board comprising the central Vigilance Commissioner, Home Secretary and Secretary (Personnel) with the Director, CBI providing the necessary inputs. The extension of tenure or premature repatriation of officers up to the level of Joint Director shall be with final approval of the Board. Only cases pertaining to the appointment or extension of tenure of officers of the rank of Joint Director or above shall be referred to the Appointments Committee of the Cabinet (ACC) for decision.

11. Proposals for improvement of infrastructure, methods of investigation, etc. should be decided urgently. In order to strengthen CBI's in-house expertise, professionals from the revenue, banking and security sectors should be inducted into the CBI.

12. The CBI Manual based on statutory provisions of the Cr. P.C. provides essential guidelines for the CBI's functioning. It is imperative that the CBI adheres scrupulously to the provisions in the Manual in relation to its investigative functions, like raids, seizure and arrests. Any deviation from the established procedure should be viewed seriously and severe disciplinary action taken against the concerned officials.

13. The Director, CBI shall be responsible for ensuring the filing of charge sheets in courts within the stipulated time limits, and the matter should be kept under constant review by the Director, CBI

14. A document on CBI's functioning should be published within three months to provide the general public with a feedback on investigations and information for redress of genuine grievances in a manner which does not compromise with the operational requirements of the CBI.

15. Time limit of three months for grant of sanction for prosecution must be strictly adhered to. However, additional time of one month may be allowed where consultation is required with the Attorney General (AG) or any other law officer in the AG's office.

16. The Director, CBI should conduct regular appraisal of personnel to prevent corruption and/or inefficiency in the agency.

9.1 Limitations of power of the High Court under Article 226

State of W. Bengal & another V. Moh. Khalid & Others (1995 AIR 785 / 1995 SCC 91( 684 )was a set of writ petitions filed in the High Court of Calcutta challenging the validity of sanction and taking cognizance of the cases against each of the respondents by the Designated Court under the Terrorist and Disruptive Activities (Prevention) Act, 1987 (hereinafter referred to as 'TADA').It was held that the High Court must assume each of the allegations made in the charge-sheet to be factually correct and examine the ingredients of the offence without adding or subtracting anything there from.Further hold that the High Court has clearly exceeded its powers under Article 226 of the Constitution in quashing the orders of sanction and taking of cognizance. ‘Therefore, we set aside the impugned judgment of the High Court and direct the Designated Court to proceed with the case in accordance with the law with utmost expedition’.

In the State of Maharashtra v. Abdul Hamid Haji Mohammed, 1994 (2) SCC 664: (1994 AIR SCW 2930) , after holding that the High Court in writ petition under Article 226 can interfere only in extreme cases where charges ex facie do not constitute offence under TADA it was held in paragraph 7 at pages 669-70: (at p. 2934 of SCW) as under:

"The first question is: Whether the High Court was empowered in the present case to invoke its jurisdiction under Article 226 of the Constitution to examine the correctness of the view taken by the Designated Court and to quash the prosecution of the respondent under the TADA Act? Shri Jethmalani contended, placing reliance on the decisions in R. P. Kapur v. State of Punjab, (1960) 3 SCR 388 : (AIR 1960 SC 866) and State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335 : (1992 AIR SCW 237), that in the facts of this case, the High Court had such a jurisdiction since there is no accusation against the respondent in the charge-sheet filed in the Designated Court which, if believed, must result in his conviction for an offence punishable under TADA Act. We are not impressed by this argument of Shri. Jethmalani. It is no doubt true that in an extreme case if the only accusation against the respondent prosecuted in the Designated Court in accordance with the provisions of TADA Act is such that ex facie it cannot constitute an offence punishable under TADA Act, then the High Court may be justified in invoking the power under Article 226 of the Constitution on the ground that the detention of the accused is not under the provisions of TADA Act. We may hasten to add that this can happen only in extreme cases which would be rare and that power of the High Court is not exercisable in cases like the present where it may be debatable whether the direct accusation made in conjunction with the attendant circumstances, if proved to be true, is likely to result in conviction for an offence under TADA Act. The moment there is a debatable area in the case, it is not amenable to the writ jurisdiction of the High Court under Article 226 of the Constitution and the gamut of the procedure prescribed under TADA Act must be followed, namely, raising the objection before the Designated Court and, if necessary, challenging the order of the Designated Court by appeal in the Supreme Court as provided in Sec. 19 of TADA Act. In view of the express provision of appeal to the Supreme Court against any judgment, sentence or order, not being an interlocutory order of a Designated Court, there is no occasion for the High Court to examine merits of the order made by the Designated Court that the Act applies. We have no doubt that in the present case wherein the High Court had to perform the laboured exercise of scrutinising the material containing the accusation made against the respondent and the merits of the findings recorded by the Designated Court holding that the provisions of TADA Act were attracted, there was sufficient indication that the writ jurisdiction of the High Court under Article 226 of the Constitution was not available. The ratio of the decisions of this Court in R. P. Kapur and Bhajan Lal on which reliance is placed by Shri. Jethmalani, has no application to the facts of the present case. There was thus no justification for the High Court in the present case to exercise its jurisdiction under Article 226 of the Constitution for examining the merits of the controversy much less for quashing the prosecution of respondent Abdul Hamid in the Designated Court for offences punishable under TADA Act."

In State of Bihar v. P.P. Sharma, 1992 (I) SCC 222: (1991 AIR SCW 1034) , Supreme Court had ruled that writ petition should not be entertained against charge-sheet while exercising jurisdiction. If the matter is considered on merits in the guise of prima facie evidence, it would amount to a pre-trial. To the same effect are the following rulings:

(1) State of Maharashtra v. Abdul Hamid,1994 (2) SCC 664, para 7 : (1994 AIR SCW 2930); (2) State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335 : (1992 AIR SCW 237); (3) State of Bihar v. P. P. Sharma, 1992 Supp (1) SCC 222, para 68 at p. 269 : (1991 AIR SCW 1034); (4) Mahinder Kaur v. Rajinder Singh, 1992 Suppl (2) SCC 25; (5) Radhey Shyam Khemka v. State of Bihar; 1993 (3) SCC 54 : (1993 AIR SCW 2427); (6) State of Bihar v. Murad Ali, 1988 (4) SCC 655 at 662 : (AIR 1989 SC 1).

In State of Bihar v. P.P. Sharma, 1992 Supp (1) SCC 222 at pp. 224-225: (1991 AIR SCW 1034) (at pp. 1052, 1067, 1068), the Supreme Courtheld:

"At a stage when the police report under Section 173, Cr. P. C. has been forwarded to the Magistrate after completion of the investigation and the material collected by the Investigating Officer is under the gaze of judicial scrutiny, the High Court would do well to discipline itself not to undertake quashing proceedings in exercise of its inherent jurisdiction. In this case the High Court fell into grave error in appreciating the documents and affidavits produced before it by treating them as evidence , delving into the disputed questions of fact in its jurisdiction under Article 226/227 and pronouncing the respondents to be innocent and quashing the criminal proceedings by converting itself into a trial Court. This was not at all a case where High Court should have interfered in the exercise of its inherent jurisdiction. The appreciation of evidence is the function of the criminal Courts the Special Judge was seized of the matter. He had heard the argument on the question of cognizance and had reserved the orders. The High Court did not even permit the Special Judge to pronounce the orders. The High Court, under the circumstances, could not have assumed jurisdiction and put an end to the process of investigation and trial provided under the law.

....Entertaining the writ petitions against charge-sheet and considering the matter on merit on the guise of prima facie evidence to stand an accused for trial amounts to pre-trial of a criminal trial under Article 226 or 227 even before the competent Magistrate or the Sessions Court takes cognizance of the offence. The charge-sheet and the evidence placed in support thereof form the base to take or refuse to take cognizance by the competent Court. It is not the case that no offence had been made out in the charge sheets and the first information report. Grossest error of a criminal case in exercising its extraordinary jurisdiction under Art. 226. ....."

10.0 Investigation by Special Agencies like CB-CID , CBI and NIA

The Police Commission of 1902-03 , recommended the formation of a Criminal Investigation Department for each of the provinces, and that the Criminal Investigation Department (CID) should be constituted under Deputy Inspector General of Police for the purpose of collecting and distributing information regarding organized crimes as well as to undertake the investigation of specialized crimes that require technical expertise. On 21 March, 1905, Government of India accepted the proposal of the Commission and implemented the same.

The CB-CID takes over matters usually by a request from the State government and, or on the Directives of Director General of Police of the concerned State. Other than these, CB-CI D conducts investigation under the Supreme Court or High Court Orders

The Central Bureau of Investigation traces its origin to the Special Police Establishment (SPE) which was set up in 1941 by the Government of India. The functions of the SPE then were to investigate cases of bribery and corruption in transactions with the War & Supply Department of India during World War II. Superintendence of the S.P.E. was vested with the War Department.

Even after the end of the War, the need for a Central Government agency to investigate cases of bribery and corruption by Central Government employees was felt. The Delhi Special Police Establishment Act was therefore brought into force in 1946. This Act transferred the superintendence of the SPE to the Home Department and its functions were enlarged to cover all departments of the Govt. of India. The jurisdiction of the SPE extended to all the Union Territories and could be extended also to the States with the consent of the State Government concerned.

The DSPE acquired its popular current name, Central Bureau of Investigation (CBI) , through a Home Ministry resolution dated 1.4.1963. Initially the offences that were notified by the Central Government related only to corruption by Central Govt. servants. In due course, with the setting up of a large number of public sector undertakings, the employees of these undertakings were also brought under CBI purview. Similarly, with the nationalization of the banks in 1969, the Public Sector Banks and their employees also came within the ambit of the CBI.

The CBI takes over matters usually by a request from State government to Central government, and Central government agrees based on CBI comments. Other than these, CBI conducts investigation under the Supreme Court or High Court Orders.

Central Vigilance Commission is the authority of superintendence of CBI in the matter of Prevention of Corruption Act, 1988; and in other matters, by Department of Personnel and Training (D O P T).

National Investigation Agency (N I A), was formed after the terrorist attack in Mumbai, for exclusive investigation into Terrorist and anti-national activities.

Subject to the fact and situation of each case the superior courts, at any time, can direct investigation by the superior agency of the country. In Uma Shankar Sitani v. Commissioner of Police, Delhi, 1995 Cri. L J 3612 P. 3613 9 SC), the Supreme Court was of the opinion that the matter was to be investigated by an Independent Agency. Further, in Nirmal Singh Kahlon V. State of Pujab & Others ( 2009 1 SCC 441 ), the Supreme Courthas sustained the order of High Court , directing investigation by the CBI even after the filing of charge –sheet by the State Police. In P&H High Court Bar Association v. State of Punjab, 1994 Cr. L.J 1368, A.I.R 1994 SC 1023 it was held that the facts and circumstances of the case on hand, and to do complete justice in the matter and further to instill confidence in the public mind it is necessary to have fresh investigation in the case through a specialized agency like the Central Bureau of Investigation (CBI).

In A. Nallasivam V. State of Tamil Nadu, 1995 Cri L J 2754 ., writ petition filed by a RAJYA SABHA MEMBER and Secretary of the Tamil Nadu State Committee of the Communist Party of India (Marxist), filed as a public interest litigation with a complaint that the people of Vachathi had been victims of brutal attacks by the Forest and Police personnel, for about three days since 20-6-1992. The village has become totally deserted and the immediate requirement is to enable the inhabitants to come back and settle in the village. The village has about 200 small houses and the people are engaged in agriculture, poultry, bee-keeping and cattle rearing. On 17-7-1992, the petitioner came to know through P. Shanmugam, the Secretary of the Tamilnadu Tribals Association, who had visited Vachathi on 14-7-1992, about the above said attack and the fact that 200 men and women had been arrested and remanded to judicial custody. After gathering all details, the petitioner wrote a letter to the Chief Minister of Tamil Nadu on 18-7-1992, demanding judicial enquiry into the incident of violence on 20-6-1992 at Vachathi and demanding action against the Officials, who had committed offences of looting the houses and raping women and also demanding compensation for the loss, suffered by the said villagers. The above said Shanmugam also sent similar representation to the Chief Minister. But, there was no reply to either of the representations. Hearing in this matter, the Madras High Court relied mainly on two case laws:-

It observed that in Syed Kaleenullah v. The Appraising Officer, Special Investigation Branch, Customs House, Madras - 1 Crl. O.P. No. 5540 of 1993 , in a similar situation the High Court of Madras directed investigation by the Central Bureau of Investigation and the relevant observation therein is as follows :-

"To my mind, it appears that an effective and impartial investigation is totally necessary. No useful purpose will be served by allowing the customs officials to investigate the matter any further. Therefore, I am firmly of the view that further investigation must be conducted by the CBI quickly and effectively, to find out all those involved in this crime of very great magnitude and place them before the Judicial authority for trial.

In State of West Bengal v. Sampatlal , 1985 A I R 195 / SCR (2) 256, the Supreme Court has held that when a direction is issued by the Court to the CBI to conduct investigation in the crime, sanction under Section 6 of the Delhi Special Police Establishment Act was not necessary.

Likewise in Inder Singh v. State of Punjab, 1997 8 SCC 372 , the Supreme Court has ordered investigation by directing, the Central Bureau of Investigation, when the allegation was abduction of seven persons ranging in age from 85 to 14 years by a senior police officer and some policemen, using official machinery for the purpose and when the Court found that the State police was acting leisurely and in irresponsible manner.

Thus the Madras High Court in A. Nallasivam’s case held that the Central Bureau of Investigation has to find out all those involved in the relevant crimes and place them before the Judicial Authority for trial. The Central Bureau of Investigation was also directed to submit a report to this court as to what it has done in the matter

The Supreme Court can exercise its powers under Art. 142 to order a CBI enquiry without State government consent where such consent was required by the Statue. In Association of Protection...V. St. of West Bengal and others 2007 (4) CHN 842 , The Calcutta High Court held that the powers of the High Court under Article 226 of the Constitution and of the Supreme Court under Article 32 or Article 142(1) of the Constitution can be invoked, though sparingly, for giving such direction to CBI to investigate in certain cases, (vide Kashmiri Devi V. Delhi Administration and another 1988 AIR 1323). A two-Judge Bench of the Supreme Court has by an order dated 10.03.1989, referred the question whether the High Court can order CBI to investigate a cognizable offence committed within a State without the consent of that State Government or without any notification or order having been issued in that behalf under Section 6 of the Delhi Act.

10. Power to take suo moto cases by Superior Courts.

The facts of State of Punjab V. Central Bureau of Investigation & Others , SLP Criminal No. 792 / 2008, (2011) 11 SCR 281 was :- On 13.11.2007, a news item

was published in the Hindustan Times headlined ‘Moga Sex Scandal’ and two ladies, namely, respondent no.3 of Village Varsaal and her relative Manjeet Kaur of Village Badduwal had been arrested. This news was also published in the Tribune dated 12.11.2007:-- The High Court took suo motu notice of the news items and issued notices t o the State of Punjab, Senior Superintendent of Police, Moga and Deputy Inspector General of Police, Ferozpur Range and directed the Deputy Superintendent of Police, Bhupinder Singh, who was investigating into the case, to file the status report of the investigation on the next date of hearing .

Matter was taken up the State of Punjab under Article 136 of the Indian Constitution.

The Supreme Court refereed case laws as to: - Vineet Narain v. Union of India (1998) 1 SCC 226: 1997(6) Suppl.SCR 595; Mithabhai Pashabhai Patel v. State of Gujarat (2009) 6 SCC 332: 2009 (7) SCR 1126; Ram Lal Narang v. State (Delhi Administration (1979) 2 SCC 322;Nirmal Singh Kahlon v. State of Punjab and Ors. (2009) 1SCC 441: 2008 (14) SCR 1049; State of West Bengal and Ors.