Delhi High Court
Central Bureau Of Investigation Thr ... vs Smt Isha Devi & Ors on 10 January, 2013
Author: Mukta Gupta
Bench: Mukta Gupta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(CRL) 1833/2012
% Decided on: 10th January, 2013
CENTRAL BUREAU OF INVESTIGATION THR RAVI GAMBHIR
..... Petitioner
Through Mr. P.K. Sharma, SC for CBI.
Mr. Vivek Sood, Amicus curiae.
versus
SMT ISHA DEVI & ORS ..... Respondent
Through Mr. S.L. Gupta, Mr. Ram Ashray,
Advs. for R-3.
Coram:
HON'BLE MS. JUSTICE MUKTA GUPTA
MS. MUKTA GUPTA, J (ORAL)
1. By the present petition the Petitioner challenges the order dated 20 th July, 2012 passed by the learned Motor Accidents Claim Tribunal directing Director CBI to register FIR on the basis of two certificates given one to the Petitioner's counsel and the other to the counsel for Insurance company and after investigating the criminal conspiracy in the official record to file a charge-sheet against the person/ persons and to complete the investigation within four months from the date of the order.
W.P.(CRL) 1833/2012 Page 1 of 9
2. The grievance of the Petitioner is that before passing an order against the Petitioner no notice was issued to the CBI and thus no hearing was afforded to it. Further the investigation sought to be conducted was not of an exceptional nature warranting investigation by CBI as held in Sakiri Basu Vs. State of Uttar Pradesh AIR 2008 SC 907, CBI Vs. State of Rajasthan & Anr. (2001) 3 SCC 333 and T.C. Thangaraj Vs. V. Engammal & Ors. (2011) 12 SCC 328. Further the directions have been given not only to register the FIR but to file the charge-sheet within four months leaving no scope for investigation. The only recourse available to the Tribunal on finding forged documents being produced before it was to Sections 340 and 195 Cr.P.C. which lay down a comprehensive procedure. The Tribunal is not even a Civil Court much less a criminal Court which could direct registration of FIR.
3. Since adequate assistance was not forthcoming, this Court requested Mr. Vivek Sood, Advocate present in the Court to act as amicus curiae who stated that it is well settled that criminal law can be set into motion by any person with reference to a cognizable offence and once a cognizable offence is found to be made out locus-standi is insignificant. As per the law settled by the Hon'ble Supreme Court, the Magistrate cannot direct the CBI to W.P.(CRL) 1833/2012 Page 2 of 9 investigate under Section 156(3) Cr.P.C., however the Hon'ble Supreme Court and the High Court while exercising its constitutional jurisdiction can direct the CBI to register and investigate a cognizable offence, subject to the rider that this jurisdiction should be exercised sparingly in cases of exceptional nature. In CBI Vs. State of Gujarat (2007) 6 SCC 156 the Hon'ble Supreme Court appears to have implicitly accepted the power of a Chief Judicial Magistrate to direct investigation by CBI de-hors Section 156(3) Cr.P.C., though in the facts of that case the Hon'ble Supreme Court did not find it to be a fit case for CBI investigation. Since a District Civil Court/ Tribunal can file a criminal complaint as a citizen can with the CBI for investigation of a case and the law relating to locus-standi is liberal in criminal jurisprudence, it cannot be said that such a complaint would not be maintainable or would be beyond the jurisdiction of the Civil Court/ Tribunal.
4. I have heard learned counsel for the parties. Indubitably the impugned order passed by the learned Tribunal suffers from gross illegalities as besides directing the CBI to register FIR on the basis of two certificates given i.e. one to the Petitioner's counsel and the other to the counsel for Insurance company, it directs CBI to complete the investigation within four months W.P.(CRL) 1833/2012 Page 3 of 9 from the date of order and file a charge-sheet against the person/ persons. The culmination of an investigation into a charge-sheet is the sole prerogative of the Investigating officer and no Court can direct that a charge- sheet be filed in the matter. It is for the Investigating Officer to come to the conclusion whether a case for a charge-sheet or a closure report is made out after collecting the evidence. Thus, the impugned order is liable to be set aside on this ground alone.
5. Though the learned Tribunal has gone beyond its jurisdiction however the issue raised by the learned Tribunal is also of concern wherein two certificates have been produced by tampering with official records through the computer. This certainly requires investigation/ inquiry where after the guilty is liable to be punished. The issues for consideration before this Court are whether the learned Tribunal can direct CBI to register FIR, while setting aside the impugned order whether this Court should relegate the Tribunal to the procedure laid down under Section 340 / 195 Cr.P.C. or in exercise of its jurisdiction under Article 226 of the Constitution of India it should direct CBI or the Police to register the FIR and investigate. W.P.(CRL) 1833/2012 Page 4 of 9
6. In Nirmal Singh Kahlon Vs. State of Punjab and Ors. AIR 2009 SC 984 the Hon'ble Supreme Court while considering the provisions of Delhi Special Police Establishment Act held:
"57. The Act is a special statute. By reason of the said enactment, the CBI was constituted. In relation to the matter which were to come within the purview thereof, the CBI could exercise its jurisdiction. The law and order, however, being a State subject, the CBI derives jurisdiction only when a consent therefore is given by the statute. It is, however, now beyond any controversy that the High Court and this Court also direct investigation by the CBI. Our attention has been drawn to the provisions of the CBI Manual, from a perusal whereof it appears that the Director, CBI exercises his power of superintendence in respect of the matters enumerated in Chapter VI of the CBI Manual which includes reference by the State and/ or reference by the High Courts and this Court as also the registration thereof. The reference thereof may be received from the following:
(a) Prime Minister of India
(b) Cabinet Ministers of Government of India/ Chief Ministers of State Governments or their equivalent
(c) The State Governments
(d) Supreme Court/ High Courts The CBI Manual having been framed by the Union of India, evidently, it has accepted that reference for investigation to the CBI may be made either by this Court or by the High Court.
58. Thus, even assuming that reference had been made by the State Government at the instance of the High Court, the same by itself would not render the investigation carried out by it to be wholly illegal and without jurisdiction as assuming that the reference had been made by the High Court in exercise of its W.P.(CRL) 1833/2012 Page 5 of 9 power under Article 226 of the Constitution of India in a public interest litigation, the same would also be valid.
7. Thus as regards the power of Hon'ble Supreme Court or the High Court there is no dispute as they can direct CBI to register FIR and investigate, though the said discretion should be exercised sparingly, but the issue is whether a Tribunal can pass such a direction. Even assuming that for the limited purpose a Tribunal is a Civil Court and can for that purpose exercise jurisdiction under Section 151 CPC, however this inherent power is complementary to the power specifically conferred and does not vest in the Court and cannot be used to exercise discretions which are not specifically provided in the Code or are specifically prohibited. The law relating to the scope and ambit of Section 151 CPC has been summarized by the Hon'ble Supreme Court in K.K. Velusamy Vs. N. Palanisamy (2011) 11 SCC 275 as under:
"12. The respondent contended that Section 151 cannot be used for reopening evidence or for recalling witnesses. We are not able to accept the said submission as an absolute proposition. We however agree that Section 151 of the Code cannot be routinely invoked for reopening evidence or recalling witnesses. The scope of Section 151 has been explained by this Court in several decisions [see Padam Sen v. State of U.P. [ AIR 1961 SC 218 : (1961) 1 Cri LJ 322] , Manohar Lal Chopra v. Seth Hiralal [ AIR 1962 SC 527] , Arjun Singh v. Mohindra Kumar [ AIR 1964 SC 993] , Ram Chand and Sons Sugar Mills (P) Ltd. v. Kanhayalal Bhargava [ AIR 1966 SC 1899] , Nain Singh v.W.P.(CRL) 1833/2012 Page 6 of 9
Koonwarjee [(1970) 1 SCC 732] , Newabganj Sugar Mills Co. Ltd. v. Union of India [(1976) 1 SCC 120 : AIR 1976 SC 1152] , Jaipur Mineral Development Syndicate v. CIT [(1977) 1 SCC 508 : 1977 SCC (Tax) 208 : AIR 1977 SC 1348] , National Institute of Mental Health & Neuro Sciences v. C. Parameshwara [(2005) 2 SCC 256] and Vinod Seth v. Devinder Bajaj [(2010) 8 SCC 1 : (2010) 3 SCC (Civ) 212] ]. We may summarise them as follows:
(a) Section 151 is not a substantive provision which creates or confers any power or jurisdiction on courts. It merely recognises the discretionary power inherent in every court as a necessary corollary for rendering justice in accordance with law, to do what is "right" and undo what is "wrong", that is, to do all things necessary to secure the ends of justice and prevent abuse of its process.
(b) As the provisions of the Code are not exhaustive, Section 151 recognises and confirms that if the Code does not expressly or impliedly cover any particular procedural aspect, the inherent power can be used to deal with such situation or aspect, if the ends of justice warrant it. The breadth of such power is coextensive with the need to exercise such power on the facts and circumstances.
(c) A court has no power to do that which is prohibited by law or the Code, by purported exercise of its inherent powers. If the Code contains provisions dealing with a particular topic or aspect, and such provisions either expressly or by necessary implication exhaust the scope of the power of the court or the jurisdiction that may be exercised in relation to that matter, the inherent power cannot be invoked in order to cut across the powers conferred by the Code or in a manner inconsistent with such provisions. In other words the court cannot make use of the special provisions of Section 151 of the Code, where the remedy or procedure is provided in the Code.
(d) The inherent powers of the court being complementary to the powers specifically conferred, a court is free to exercise them for the purposes mentioned in Section 151 of the Code when the matter is not covered by any specific provision in the Code and the exercise of those powers would not in any way be W.P.(CRL) 1833/2012 Page 7 of 9 in conflict with what has been expressly provided in the Code or be against the intention of the legislature.
(e) While exercising the inherent power, the court will be doubly cautious, as there is no legislative guidance to deal with the procedural situation and the exercise of power depends upon the discretion and wisdom of the court, and in the facts and circumstances of the case. The absence of an express provision in the Code and the recognition and saving of the inherent power of a court, should not however be treated as a carte blanche to grant any relief.
(f) The power under Section 151 will have to be used with circumspection and care, only where it is absolutely necessary, when there is no provision in the Code governing the matter, when the bona fides of the applicant cannot be doubted, when such exercise is to meet the ends of justice and to prevent abuse of process of court.
8. The legal position as regards the direction under Section 156(3) Cr.P.C. is well settled, in view of the decisions of Hon'ble Supreme Court that while exercising its jurisdiction under Section 156(3) Cr.P.C. the Magistrate cannot direct registration of FIR to the CBI, however, in the present case the Tribunal was not exercising jurisdiction under Section 156(3) Cr.P.C. and when the issue of two certificates one of which is a forged one comes before it, it cannot be a silent spectator and has to take action in accordance with law. In such a situation the recourse available to the Tribunal was to refer the matter to the learned CMM/ ACMM under Section 340/195 Cr.P.C. who is thereafter required to W.P.(CRL) 1833/2012 Page 8 of 9 proceed in accordance with law. The present is not a case involving unearthing of a scam involving large sum of money or of interstate or international ramification. An enquiry/ investigation into the matter can be directed by the learned CMM/ ACMM. Thus, the facts of the case do not even warrant a direction by this Court under Article 226 of the Constitution to CBI to investigate the offence.
9. Petition is disposed of setting aside the impugned order. The Tribunal will take recourse to the provisions under Sections 340/195 Cr.P.C.
10. Order dasti under signature of the Court Master.
(MUKTA GUPTA) JANUARY 10, 2013 'ga' W.P.(CRL) 1833/2012 Page 9 of 9