2013 (1) ALD (Cri)
136 (A.P.)
IN THE HIGH COURT
OF JUDICATURE OF ANDHRA PRADESH
AT HYDERABAD
THE HON’BLE
SRI JUSTICE B.SESHASAYANA REDDY
Criminal
Petition No.8003 of 2010
05.10.2012
Central Bureau of Investigation,
rep. by Superintendent of
Police, Hyderabad
....Petitioner
A
n d
Dr.G.Venkateshwar Rao
S/o late G.Gopal Rao Naidu, Secunderbad
….Respondent
! Counsel for the petitioner: Sri
P.Keshava Rao
SC for CBI Cases
^ Counsel for respondent : Sri
K.Srinivasa Kumar
? 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 Rajasthan[1]. 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 India[2], 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 Lal[3], as well
as in Central Bureau of Investigation v. State of Rajasthan[4],
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
Note:- L.R
copy to be marked
(B/o) RAR
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