The Superintendent of Police CBI ACB Pune Vs Satish
Sampatlal Surana and Ors on 18 June, 2015 Bombay High Court Bench at Aurangabad
The Code of Criminal Procedure, 1973:
[Section 2] Section 2(o), Section 2(s), Section 14, [Section
156], Section 156, Section 156(3), Section 190, Section 193
The Delhi Special Police Establishment Act, 1946: Section 5,
Section 6
The Prevention of Corruption Act, 1988: Section 4
______________________________________________________
Criminal P.C. (1973), S. 156(3)
- Investigation
-Direction for, by Special Judge dealing with
anti-corruption matters
- Legality
- Court of Special Judge is a Court of original criminal
jurisdiction
- As such, direction u/s. 156(3) by the Special Judge is
legal.
After having considered the relevant provisions of the Code,
we have no doubt in our mind that the Special Judge, Aurangabad exceeded his
jurisdiction in directing investigation under Section 156(3) of the Code by CBI
by the impugned order.
The learned Special Judge failed in appreciating that
CBI is an independent establishment created under the provisions of Delhi
Special Police Establishment Act and in view of the provisions of Section and
of the said Act, he was not empowered to direct investigation by it.
The
learned Special Judge further did not appreciate that CBI is not a local police
station within his jurisdiction so as to invoke section 156(3) of the Code in
directing investigation by it.
______________________________________________________
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO.1166 OF 2010
The Superintendent of Police,
Central Bureau of Investigation (ACB)
Vidya Kulkarni,
Age: 40 years, Occu.: Service,
Central Bureau of Investigation (ACB)
In front of Akordi Railway Station,
Kenriya Sadan, A-Wing, 3rd Floor,
Akrodi, Pune. ... PETITIONER.
VERSUS
1. Satish s/o. Sampatlal Surana
Age : 37 years, Occu. Service,
R/o. Nutan Colony, Aurangabad,
Tq. & Dist. Aurangabad.
2. V.K. Sharma,
Age 49 years, Occu. Service
R/o. Manushabai Vikas Mantralaya
Pradh Shiksahn Vibhag, Rastriy
Saksarta Mission, Shastri Bhavan,
New Delhi.
3. Subhash s/o. Shivchandra Zhavar
Age 58 years, Occu. Service,
R/o : Sachin Hospital, Khadkeshwar
Aurangabad.
4. Mohan s/o Vajudev Fule
Age 45 years, Occu. Service,
R/o : Satam Nagar, N-5 CIDCO,
Aurangabad.
5. Smita w/o. Ramesh Waghmare,
Age 48 years, Occu. Service,
R/o. UMA Housing Society behind
Youth Hospital, Padamapura,
Aurangabad.
6. Vitthal s/o. Sadashiv Kadam,
Age 50 years, Occu. Service,
R/o. Mukundwadi, Aurangabad.
7. The State of Maharashtra
through its Secretary
Ministry of Home Department,
Mantralaya, Mumbai.... RESPONDENTS.
*****
Mr. Alok Sharma, Asstt. Solicitor General of India, for
Petitioner;
Mr. PB Shirsath, Adv. For Respondent No.1;
Mrs. MA Deshpande,APP for State.
CORAM: R.M.BORDE & P.R.BORA, JJ.
DATE: 18 th JUNE, 2015.
ORAL JUDGMENT (PER:- P.R.BORA,J.)
1) Heard. Rule. Rule made returnable forthwith with consent
of parties.
2) A question that arises for consideration in the present
petition is, "Whether the directions given by the learned Special Judge,
Aurangabad under Section 156(3) of Code of Criminal Procedure, directing CBI,
i.e. the present petitioner to make an investigation into the complaint filed
by Respondent No.1 and to submit report thereof, is legal and within the powers
of the learned 3 Cr.WP 1166/2010 special Judge.?"
3) Respondent No.1 herein had preferred an
application/complaint bearing Criminal Misc.
Application No.170/2010 before the Special Court at
Aurangabad, dealing with anti-corruption cases and had sought in the said
application/complaint, a direction against CBI, i.e. present petitioner to
investigate into the said complaint under Section 156(3) of Code of Criminal
Procedure (for short, the Code)
4) The learned Special Judge, vide impugned order has
accordingly directed such investigation under Section 156(3) of the code by the
present petitioner. By order passed on 6 th January, 2011, this Court has
stayed the implementation and operation of the impugned order.
5) In the present petition, it is the contention of the
petitioner that the order so passed by the learned Special Judge is patently
illegal, unsustainable and without jurisdiction.
6) Shri Deshpande, learned Assistant Solicitor
General of India (ASGI) appearing for the petitioner
submitted that the Central Bureau of Investigation (CBI) is an independent
investigating agency, established under the Delhi Special Police Establishment
Act, 1946 (for short, DSPE Act) and is controlled solely by the Union of India.
The learned ASGI has further submitted that from the provisions of Sections 5
and 6 of DSPE Act, it is clear that the officers of CBI cannot operate within
the territory of the state without notification and consent of the State
Government. The learned ASGI further submitted that the CBI is not a local
police station within the jurisdiction of the concerned Special Judge,
Aurangabad, so as to issue directions under Section 156(3) of Cr.P.C. The
learned ASGI further submitted that Section 193 of Cr.P.C. Bars the Sessions
Court from taking direct cognizance of the offences and Section 190 of Cr.P.C.
Also contemplate that the Judicial Magistrate, First Class can only take
cognizance of offence on a complaint filed before him. The learned ASGI
reiterated that since the office of the petitioner is not situated within the
local jurisdiction of the learned Special 5 Cr.WP 1166/2010 Judge, the order
passed by the learned Special Judge, directing investigation under Section
156(3) Cr.P.C. by the petitioner is patently illegal and in excess of the
jurisdiction vested in the said Court.
7) The learned ASGI, in support of his contentions, relied
upon two Judgments of the Hon'ble Apex court; first in the matter of CBI Vs.
State of Rajasthan - (2001) 3 SCC 333 and the another in the case of Sakiri
Vasu Vs. State of U.P. And Others -(2008) 2 SCC 409 and prayed for setting
aside the impugned order.
8) The learned counsel appearing for Respondent No.1 supported
the impugned order. The learned Counsel submitted that it was well within
jurisdiction of the learned Special Judge to direct investigation by the
present petitioner under Section 156(3) Cr.P.C. He, therefore, prayed for
dismissal of the writ petition.
9) We have carefully considered the submissions advanced on
behalf of the petitioner as well as Respondent No.1. We have also perused the
impugned 6 Cr.WP 1166/2010 order. We have also gone through the relevant
provisions in Cr.P.C. And the Prevention of Corruption Act as well as the
provisions of Delhi Police Special Police Establishment Act.
10) We would first deal with the argument of the learned
ASGI that the Special Judge is not a `Magistrate' and, therefore, cannot pass
order under Section 156(3) of the Code. This controversy is set at rest long
back by a decision of five-judges Bench of the Hon'ble Apex Court in the case
of A.R.Antule Vs. Ramdas Nayak and Anr. - AIR 1984 SC 718. In paragraph 27 of
the said decision, the Hon'ble Apex court has ruled as under, -
"The Court of a Special Judge is a Court of original
criminal jurisdiction. As a Court of original criminal jurisdiction in order to
make it functionally oriented some powers were conferred by the statute setting
up the Court. Except those specifically conferred and specifically denied, it
has to function as a Court of original criminal jurisdiction not being hide-
bound by the terminological status description of Magistrate or a Court 7 Cr.WP
1166/2010 of Session. Under the Code it will enjoy all powers which a Court or
original criminal jurisdiction enjoys save and except the ones specifically
denied."
In view of the aforesaid Supreme court dicta, it becomes
abundantly clear that the Special Judge has power to pass order under Section
156(3) of the Code as a Court of original criminal jurisdiction. His this power
is not restrained or specifically denied by any statute.
11) Moreover, in view of the fact that the complaint was
pertaining to the offences under the Prevention of Corruption Act, the only
court which has jurisdiction to take cognizance of such offences is the Special
Court. This is clear from Section 4 of the Prevention of Corruption Act, 1988,
which says that notwithstanding anything contained in the Code, the offences
specified in the Act shall be tried only by a Special Judge. The Prevention of
Corruption Act, provides that only a person who is or has been a Sessions Judge
shall be qualified for appointment as a Special Judge. The cumulative effect of
such 8 Cr.WP 1166/2010 provisions is that only a Special Judge is competent to
take cognizance of the offences specified in the Act. No Magistrate can
therefore take cognizance of such offences. If a Magistrate cannot take
cognizance of certain offences, he has no power to order investigation under
Section 156(3) of the Code in respect of such offences.
12) In the instant case, thus only the Special Judge was
competent to take cognizance of the complaint filed by Respondent No.1
involving allegations pertaining to the offences under the Prevention of
Corruption Act. The objection raised by the learned ASGI therefore must be
rejected.
13) Now, regarding the second and main controversy raised in
the matter as about the competence of the Special Judge, Aurangabad to direct
investigation under Section 156(3) of the Code by CBI. As has been submitted by
the learned ASGI, the learned Special Judge could not have directed CBI to
carry out the investigation under Section 156(3) of the Code. To substantiate
his said contention, the learned ASGI has relied upon the judgment of the 9
Cr.WP 1166/2010 Hon'ble Apex court in the case of Central Bureau of
Investigation through S.P.Jaipur Vs. State of Rajasthan (cited supra). In the
said matter, the facts were thus : a complaint was filed before the Magistrate
alleging serious offences, whereupon the concerned Magistrate ordered
investigation to be conducted by CBI and on completion of the investigation,
final report was required to be filed. The CBI challenged the order of the
Magistrate before the High Court of Delhi, contending that the Magistrate has
no jurisdiction to order CBI to conduct investigation at least without
obtaining the consent of the State Government concerned, as required under
Section 6 of the Delhi Special Police Establishment Act, 1946. The Division
Bench of the Delhi High court held that the Magistrate has power to do so.
Thereafter the matter was taken to the Apex Court. The Hon'ble Apex Court,
after having interpreted the powers of the Magistrate under Section 156(3) of
the Code, set aside the order passed by the Magistrate as well as by the High
court and ruled that it was not within the competence of the Magistrate to
direct the investigation by CBI.
14) As observed by the Hon'ble Apex court in the Judgment
(cited supra) what is contained in sub-section (3) of Section 156 of the Code
is the power to order the investigation referred to in sub-section (1) because
the words `order such an investigation as above mentioned' in sub-section (3)
are unmistakably clear as referring to the other sub-section. Thus, the power
is to order an `officer in charge of a police station' to conduct
investigation.
15) For better appreciation, we would like to reproduce Section
156 of the Code, which reads thus,-
"156. Police officer's power to investigate cognizable
case:-
(1) Any officer in charge of a police station may, without
the order of a Magistrate, investigate any cognizable case which a Court having
jurisdiction over the local area within the limits of such station would have
power to inquire into or try under the provisions of Chapter XIII.
(2) No proceeding of a police officer in any such case shall
at any stage be called in question on the 11 Cr.WP 1166/2010 ground that the
case was one which such officer was not empowered under this section to
investigate.
(3) Any Magistrate empowered under section 190 may order
such an investigation as above mentioned."
16) It is also necessary to look into the definitions of `police
station and 1office in charge of a police station' as provided in the Code. .
Section 2(o) of the Code defines `officer in charge of a
police station' as under, -
"officer in charge of a police station" includes,
when the officer in charge of the police station is absent from the
station-house or unable from illness or other cause to perform his duties, the
police officer present at the station-house who is next in rank to such officer
and is above the rank of constable or, when the State Government so directs,
any other police officer so present;". Section 2(s) of the Code defines a
`police station' as under, -
"police station" means any post or 12 Cr.WP
1166/2010 place declared generally or specially by the State Government, to be
a police station, and includes any local area specified by the State Government
in this behalf"
From the conjoint reading of the aforesaid definitions, it
is evident that the primary responsibility of conducting investigation into
offences in cognizable cases, vests with `officer in charge of a police
station'. Section 156(3) of the Code empowers a Magistrate to direct such
officer in charge of the police station to investigate any cognizable case over
which such Magistrate has jurisdiction. As provided under Section 14 of the
Code, `subject to control of the High Court, the Chief Judicial Magistrate may,
from time to time, define local limits of the ares within which the Magistrate
appointed under Section 11 or under Section 13, may exercise all or any of the
powers with which they may respectively be invested under this Code. The
magisterial power thus cannot be stretched under sub-section (3) of Section 156
of the Code beyond directing the officer in charge of the police station
falling within the jurisdiction of the 13 Cr.WP 1166/2010 said Magistrate. In
other words, the Magistrate cannot order any police officer, other than one,
who is in-charge of the police station within his jurisdiction to conduct the
investigation. Such powers of the Magistrate under sub-section (3) of Section
156 of the Code, does not authorize the Magistrate to give direction to any
other officer to cause inquiry.
17) It need not be stated that the principles involved in so
far as powers of the Magistrates under Section 156(3) of the Code are concerned,
the same as well would apply to the Special Judge dealing with the
anti-corruption matters as the court of original criminal jurisdiction.
18) After having considered the relevant provisions of the
Code, we have no doubt in our mind that the Special Judge, Aurangabad exceeded
his jurisdiction in directing investigation under Section 156(3) of the Code by
CBI by the impugned order. The learned Special Judge failed in appreciating
that CBI is an independent establishment created under the provisions of Delhi
Special Police Establishment Act 14 Cr.WP 1166/2010 and in view of the
provisions of Section 5 and 6 of the said Act, he was not empowered to direct
investigation by it. The learned Special Judge further did not appreciate that
CBI is not a local police station within his jurisdiction so as to invoke
section 156(3) of the Code in directing investigation by it. The impugned order
is, therefore, liable to be set aside and the same is accordingly set aside.
However, the original complainant, i.e. respondent No.1 in the present
petition, is at liberty to move again to the Special Court, if he so desires,
for appropriate orders for investigation of the offences alleged by him in the
said complaint against Respondent Nos. 2 to 6 in the present petition. Rule is
made absolute in above terms.
sd/-
(P.R.BORA), JUDGE
R.M.BORDE), JUDGE
bdv/
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