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whether the learned Special Judge for CBI Cases is empowered to refer the complaint under Section 156(3) Cr.P.C to the CBI for investigation?

THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY

English: Hight court of the state of Andhra pr...

English: Hight court of the state of Andhra pradesh located at hyderabad. self-photographed. (Photo credit: Wikipedia)

Criminal Petition No.8003 of 2010

05.10.2012

Central Bureau of Investigation, rep. by Superintendent of Police, Hyderabad

Dr.G.Venkateshwar Rao S/o late G.Gopal Rao Naidu, Secunderbad

Counsel for the petitioner: Sri P.Keshava Rao SC for CBI Cases

Counsel for respondent : Sri K.Srinivasa Kumar

<Gist:

>Head Note:

?Cases referred:
AIR 2001 SUPREME COURT 668
(1998) 1 Supreme Court Cases 226
AIR 1985 SC 195: (1985 Cri LJ 516)
AIR 2001 SC 668

ORDER:

Challenge in this criminal petition is the order dated 12.03.2010 passed
by the Special Judge for CBI Cases, Hyderabad in S.R.No.948 of 2010, whereby and
whereunder, the learned Special Judge referred the complaint filed by the
respondent to the C.B.I, Hyderabad, for investigation under Section 156(3)
Cr.P.C.

2. Respondent-Dr.G.Venkateshwar Rao is the complainant in S.R.No.948 of 2010.
He filed the complaint against Dr.Seyed E Hasnain S/o late Sri Seyed Mohd.
Hasnain and sixteen others complaining various acts of misappropriation of the
funds of the Centre for DNA Fingerprinting and Diagnostics (“CDFD”). The
learned Special Judge for CBI Cases perused the complaint and proceeded to refer
the same to CBI, Hyderabad, for investigation under Section 156(3) Cr.P.C., by
order dated 12.03.2010. The order dated 12.03.2010 passed by the learned Special
Judge for CBI Cases, Hyderabad reads as hereunder:-
” This is to inform you that Dr.G.Venkateshwar Rao s/o late Sri Gopala Rao
Naidu, aged about 43 years, occ: Scientist, r/o 1-11-90, Golnaka, Alwal,
Secunderabad filed a private complaint on 10-3-2010 vide S.R.No.948/2010 against
Dr.Seyed E Hasnain, s/o late Sri Seyed Mohd. Hasnain, aged about 56 years, Occ:
Vice Chancellor, University of Hyderabad and sixteen others.
On 11-3-2010 the above said private complaint came on bench and heard
arguments of counsel for complainant and perused the complaint and documents
filed along with complaint, the same is referred to CBI, Hyderabad for
investigation U/s. 156(3) Cr.P.C.
Hence, you are hereby directed to receive the private complaint along with
the documents and investigate into the matter according to law and intimate
the court the result of investigation at an early date”.

The said order is assailed in this criminal petition by the C.B.I represented by
it’s Superintendent of Police, Hyderabad.

3. Heard Sri P.Keshava Rao, learned Standing Counsel for CBI Cases appearing
for the petitioner and Sri Kaka Srinivasa Kumar appearing for the respondent-
complainant.

4. Sri P.Keshava Rao, learned Standing Counsel submit that referring the
complaint for investigation to C.B.I is not in accordance with the provisions of
Section 156(3) Cr.P.C and therefore, the order impugned in the criminal petition
is liable to be set aside. He further contends that the C.B.I cannot take up
the complaint for investigation unless the State Government accords consent, as
provided under Section 6 of the Delhi Special Police Establishment Act, 1946 and
as there being no consent of the State Government, any investigation on the
complaint would be infraction of Section 6 of the Delhi Special Police
Establishment Act, 1946. In support of his submissions, reliance has been
placed on the judgment of the Supreme Court in Central Bureau of Investigation
v. State of Rajasthan1. Much emphasis has been laid on para (12) of the cited
judgment by the learned counsel and it reads thus:-
“12. Section 5 of the Delhi Act enables the Central Government to extend the
powers and jurisdiction of members of the Delhi Police Establishment to any area
in a State. Section 6 of the Delhi Act says “nothing contained in Section 5
shall be deemed to enable any member of the Delhi Special Police Establishment
to exercise powers and jurisdiction in any area in a State, not being a Union
Territory or railway area, without the consent of the Government of that State”.
A contention was made before us that when the State Government gives consent for
the CBI to investigate any offence within the area of the State it would be
permissible for the Magistrate to direct the officer of the CBI to conduct such
investigation. What is envisaged in Sections 5 and 6 of the Delhi Act is not
one of conferring power on a Magistrate to order the CBI to conduct
investigation in exercise of Section 156(3) of the Code”.

5. Sri K.Srinivasa Kumar, learned counsel submits that the respondent-
complainant made serious allegations which require a detailed investigation by
the competent authority like the C.B.I and therefore, the learned Special Judge
of the C.B.I Court is justified in referring the complaint to C.B.I. He would
also contend that under Section 3 of the Delhi Special Police Establishment Act,
1946, the Central Government by notification in the official Gazette is
competent to specify offences or classes of offences which are to be
investigated by the Delhi Special Police Establishment Act and indeed a
notification has been issued under Section 3, wherein offences which are alleged
against the accused, viz., 405, 409, 418, 420, 465, 468, 471 and 120 B IPC are
included and in which case, the order passed by the CBI Court referring the
complaint to the CBI cannot be found fault. In support of his contentions,
reliance has been placed on the decision of the Supreme Court in Vineet Narain
v. Union of India2, wherein it has been held as follows:-
” There is no similarity between a mere executive order requiring prior
permission or sanction for investigation of the offence and the sanction needed
under the statute for prosecution. The requirement of sanction for prosecution
being provided in the very statute, which enacts the offence, the sanction for
prosecution is a prerequisite for the Court to take cognizance of the offence.
In the absence of any statutory requirement of prior permission or sanction for
investigation, it cannot be imposed as a condition precedent for initiation of
the investigation once jurisdiction is conferred on the CBI to investigate the
offence by virtue of the notification under Section 3 of the Act. The word
“superintendence” in Section 4(1) of the Act in the context must be construed in
a manner consistent with the other provisions of the Act and the general
statutory powers of investigation, which govern investigation, even by the CBI.
The necessity of previous sanction for prosecution is provided in Section 6 of
the Prevention of Corruption Act, 1947 (Section 19 of the 1988 Act) without
which no court can take cognizance of an offence punishable under Section 5 of
that Act. There is no such previous sanction for investigation provided for
either in the Prevention of Corruption Act or the Delhi Special Police
Establishment Act or in any other statutory provision. The above is the only
manner in which Section 4(1) of the Act can be harmonized with Section 3 and
other statutory provisions.”

6. The question that arises for consideration in this Criminal Petition is
whether the learned Special Judge for CBI Cases is empowered to refer the
complaint under Section 156(3) Cr.P.C to the CBI for investigation?

7. There are three provisions under the Code of Criminal Procedure by which a
Magistrate can order investigation to be conducted. They are Sections 155, 156
and 202 Cr.P.C. Section 155 Cr.P.C relates to the investigation in the non
cognizable offences whereas Section 202 Cr.P.C only enables a Magistrate to have
assistance of an investigation conducted either by the police or any other
person for the limited purpose of deciding whether or not there is sufficient
ground to proceed with the complaint. Section 156 Cr.P.C empowers the
Magistrate to send the case for investigation. Before proceeding further, it is
necessary to peruse the provisions of Sections 5 and 6 of Delhi Special Police
Establishment Act, 1946 (“the Act”) and they read thus:-
“5. Extension of powers and jurisdiction of Special Police Establishment to
other areas – (1) The Central Government may by order extend to any area
(including Railway areas) [in (a State, not being a Union Territory)] the powers
and jurisdiction of members of the Delhi Special Police Establishment for the
investigation of any offences or classes of offences specified in a notification
under Section 3.
(2) When by an order under sub-section (1) the powers and jurisdiction of
members of the said police establishment are extended to any such area, a member
thereof may, subject to any orders which the Central Government may make in this
behalf, discharge the functions of a police officer in that area and shall,
while so discharging such functions, be deemed to be a member of a police force
of that area and be vested with the powers, functions and privileges and be
subject to the liabilities of a police officer belonging to that police force.
(3) Where any such order under sub-section (1) is made in relation to any area,
then, without prejudice to the provisions of sub-section (2) any member of the
Delhi Special Police Establishment of or above the rank of Sub-Inspector may
subject to any orders which the Central Government may make in this behalf,
exercise the powers of the officer- in-charge of a police station in that area
and when so exercising such powers, shall be deemed to be an officer-in-charge
of a police station discharging the functions of such an officer within the
limits of his station.
6. Consent of State Government to exercise of powers and jurisdiction – Nothing
contained in Section 5 shall be deemed to enable any member of the Delhi Special
Police Establishment to exercise powers and jurisdiction in any area in [a
State, not being a Union territory or railway area], without the consent of the
Government of that State.”
8. A perusal of Section 5 of the Act would show that it has authorized the
Central Government to extend the powers and jurisdiction of the members of the
Delhi Special Police Establishment in a State for the investigation of any
offences or classes of offences specified in a notification under Section 3, but
Section 6 debars the exercise of any of the functions by members of the Delhi
Special Police Establishment without the consent of the Government of that
State.
9. The Supreme Court in State of West Bengal v. Sampat Lal3, as well as in
Central Bureau of Investigation v. State of Rajasthan4, has held that only High
Court and Supreme Court can direct for investigation by an agency of the CBI.
The Magisterial power cannot be stretched under sub-section (3) of Section 156
Cr.P.C beyond directing the officer-in-charge of the police station to conduct
the investigation. Section 156(3) of the Code empowers a Magistrate to direct
such officer incharge of a police station to investigate any cognizable case
over which such Magistrate has jurisdiction. It is clear that a place or post
declared by the Government as Police Station must have a Police Officer in
charge of it and if he, for any reason, is absent in the station house, the
officer who is next junior rank present in the police station shall perform the
functions as an officer in charge of that police station. The primary
responsibility for conducting investigation in cognizable cases vests with such
police officer. Section 156(3) of the Code empowers the Magistrate to direct
such officer in charge of the Police Station to investigate any cognizable case
over which such Magistrate has jurisdiction. Directing to investigate, a police
officer in terms of the provisions of law is restricted to police officer of the
police station over which the concerned Magistrate has jurisdiction. This
would reveal that a Magistrate cannot issue direction for investigation by
police officer of the Police Station situated beyond the territorial
jurisdiction of his Court.
10. During the course of hearing, learned counsel appearing for the
respondent-complainant placed on record the CBI Manual. As seen from the CBI
Manual, CBI is a successor organization to Delhi Special Police Establishment
with an enlarged Charter of functions. In fact, with the establishment of CBI
on 1st April, 1963, the Delhi Special Police Establishment was made one of its
Divisions, viz., `Investigation and Anti-Corruption Division’. The DSPE then had
14 Branches, each under the charge of a Superintendent of Police. Except in the
States of Jammu & Kashmir and Kerala, there has been an S.P.E. Branch in every
State and the jurisdiction of that Branch was co-terminus with the State
boundaries.

11. CBI Courts at Hyderabad and Visakhapatnam have been established by the
Government of Andhra Pradesh under G.O.Ms.No.296, Home (Courts.A) Department,
dated 26.5.1989 to try CBI Cases. Territorial jurisdiction of the Courts
established at Hyderabad and Visakhapatnam have been notified by the Government
of Andhra Pradesh, vide G.O.Ms.No.95, Law (L.A.&J-COURTS.A) Department, dated
8.7.1995. The Central Government by notification in the official Gazette
specified the offences or classes of offences, which are to be investigated by
the Delhi Special Police Establishment. The offences punishable under Sections
409, 418, 420, 466, 468 and 471 are some of the offences notified by the Central
Government under Section 3 of the Delhi Special Police Establishment Act. The
zones, regions of CBI have been divided on functional as well as territorial
basis. The branches located in different states work under the Regional DIGs.
The regional headquarters of the DIGs are located at Lucknow, Bhopal, Jaipur,
Chandigarh, Mumbai, Kolkata, Guwahati, Ranchi, Patna, Chennai, Hyderabad and
Delhi. The Regional DIGs function under the control of Joint Directors, North,
Central, Delhi located at New Delhi, Joint Director West at Mumbai, South at
Chennai and East at Kolkata.

12. Section 156 of the Code of Criminal Procedure, 1973 reads as hereunder:-
“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 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”.

13. The CBI Court situated at Hyderabad has jurisdiction over the area in
which the offences alleged in the complaint presented by the respondent-
complainant took place. Since the area wherein the offences alleged in the
complaint comes within the jurisdiction of CBI Court at Hyderabad, the learned
Judge of the CBI Court, Hyderabad is justified in referring the complaint of the
respondent-complainant to the CBI, Hyderabad for investigation.

14. Learned counsel appearing for the respondent-complainant placed on record
copy of the F.I.R in Rc.No.10(A)/2009, dt.21.7.2009 to buttress his submission
that the CBI has station house office at Hyderabad. I have gone through the
FIR in Rc.No.10(A)/2009. The case in Rc.No.10(A)/2009 has been registered by
the Inspector of Police, CBI, ACB, Hyderabad. It indicates that the CBI has
station house office at Hyderabad. Therefore, I do not see any procedural
irregularity in referring the complaint presented by the respondent-complainant
by the learned Judge of the CBI Court to CBI, Hyderabad, for investigation.
15. Accordingly, the Criminal Petition is dismissed.
_____________________
B.SESHASAYANA REDDY, J
Dt.05-10-2012

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