The Superintendent of
Police CBI ACB Pune Vs Satish Sampatlal Surana and Ors on 18 June, 2015 Bombay
High Court Bench at Aurangabad
Trial Court is not
having jurisdiction in directing investigation under Section
156(3) of the Code by CBI by the impugned order.
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.
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.
____________________________________________
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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