Delhi High Court
C.B.I. vs Shiv Kumar Singh & Anr. on 15 July, 1998
Equivalent citations: 1998CRILJ4131, 1998(46)DRJ611
Author: A.K. Srivastava
Bench: A.K. Srivastava
JUDGMENT Jaspal Singh, J.
1. Can a Metropolitan Magistrate or, for that matter, a Special Judge transfer investigation to the C.B.I? This, precisely, is the question posed before us in a reference made by none else but one of us.
A.K. Srivasatava, J.
2. Mr. A.K. Datta, who appears for the C.B.I. feels that in the absence of consent obtained under Section 6 of the Delhi Special Police Establishment Act, neither a Metropolitan Magistrate nor a Special Judge has any such power and in support relies upon two judgments. One from this Court itself and the other coming from Karnataka High Court.
3. The judgment of this court is reported as C.B.I. Vs. Satpal & Ors. Crl. P.257/95 and 315/95. It comes from the pen of Hon'ble Mr. Justice J.K. Mehra and is dated May 22, 1997. It was observed therein that the C.B.I. being the creation of the Delhi Special Police Establishment Act, consent of the concerned State Government would be required in accordance with Section 6 of the Act before assigning investigation to it and that consequently a Metropolitan Magistrate has no jurisdiction to order such transfer without such consent.
4. Sections 5 and 6 of the Delhi Special Police Establishment Act run as under:-
"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 offence 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 without 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."
5. Before we proceed ahead, it may be noticed that in Satpal's case (supra) Mehra J., in support of the view taken by him, sought to drew force from two judgments of this court. The first is reported as Personal Point Vs. State , while the second is reported as Capt., Har Charan Singh Vs. The Commissioner of Police 1996 JCC 695. The said two judgments, if we may say so with respect, had nothing to do with the question raised. The first was a Criminal Misc.(Main) petition wherein a request was made to the Court for transfer of investigation from the local police to the C.B.I. The request was turned down as it was not shown that the investigation being carried on by the local police was not satisfactory or was partisan or inadequate. Capt. Har Charan Singh Kohli's case was a petition under Article 226/227 of the Constitution of India. The question as to whether a Metropolitan Magistrate or a Special Judge can refer investigation to the C.B.I. or not was not even remotely in issue in that petition.
6. The other judgment emanating from Karnataka High Court and authored by Hon'ble Mr. Justice K. Ramachandriah holds that a Magistrate acts "improperly and illegally" in referring a complaint to the C.B.I. for investigation and that Section 156(3) of the Code is a bar to such reference.
7. The petitioner says that the Supreme Court itself has held that a Magistrate has the power under Section 156(3) of the Code to order investigation by the C.B.I. and in support our attention has been drawn to State of West Bengal Vs. Sampathlal .
8. The Supreme Court in West Bengal Vs. Sampath had an occasion to deal with Sections 5 and 6 of the Delhi Special Police Establishment Act. In the said case relating to a mysterious death, as investigation by the local police was found to be unsatisfactory a learned single judge of the Calcutta High Court transferred it to the C.B.I. Question arose as to whether before such direction to conduct investigation sanction under Section 6 of the Act was necessary. The Supreme Court observed:
"One of the controversies which loomed large before the Division Bench of the Calcutta High Court was as to the appointment of the DIG, CBI to inquire into the matter in the absence of proper consent of the State Government. That question has not been recanvassed before us and it has been accepted by counsel for all the parties including the Additional Solicitor General that while Section 6 of the Delhi Special Police Establishment Act, 1946 ('Act' for short) would require the consent of the State Government before jurisdiction under S.5 of that Act is exercised by officers of that establishment, when a direction is given by the court in appropriate case, consent envisaged under S.6 of the Act would not be a condition precedent is compliance with the Court's direction. In our considered opinion S.6 of the Act does not apply when the Court gives a direction to the CBI to conduct an investigation and counsel for the parties rightly did not dispute this position. In this view, the impugned order of the learned single judge and the appellate decision of the Division Bench appointing DIG, CBI to inquire into the matter would not be open to attack for want of sanction under Section 6 of the Act."
9. Does it not provide a complete answer? Does it not show that no consent of the State Govt. is required when the court gives the directions? Mr. A.K. Datta appearing for the C.B.I. says 'No'. According to him when the Supreme Court talks of "the Court" it refers to the High Court and not to the court of a Metropolitan Magistrate and, in support he seeks to lean heavily on the judgment of the Karnataka High Court in Criminal petition No. 916/1989 Between C.M. Iqbal and Smt. Vijaya Alias Geetha and another decided on the second day of November, 1989 and to which reference has already been made above. In the said case a Magistrate had transferred investigation to the C.B.I. Question arose as to whether he could do so and in that context the judgment of the Supreme Court in Sampath's case came to be noticed. The learned single Judge observed:
"According to Sri N. Santosh Hegde, the words "the court" used by the Supreme Court in the case of State of West Bengal Vs. Sampathlal means the High Court and not any court including the court of a Magistrate.
In my opinion, the said argument appears to be a sound one as if it was the intention of the Lordships of the Supreme Court that the consent envisaged under Section 6 of the Act is not necessary, when the court gives a direction for the investigation, their lordships would have used the words "a court" or "any court" and not the words "the court".
10. Of course, in Sampath Lal's case the order under challenge was passed by Calcutta High Court. It is also true that one judgment of the Supreme Court while dealing with the legality of the order, was repeatedly used the definite article "the" before 'court" but then, with due respect, we do not tend to agree that the Supreme Court, while using that definite article before "court" meant to refer to the powers of a High Court only. Had it been so, in paragraph 16 of the judgment the Supreme Court instead of using the definite article "the" before "court" would have used the indefinite article "a" before "Court". We feel that in paragraph 16, as the Supreme Court was referring to the procedure laid down in the Code of Criminal Procedure and more particularly in Section 173, when it used the expression "the court", it did not mean "the High Court" only but had in mind "a court" or "any court" empowered to act under that provision. For ready reference, we reproduce below the said paragraph extracted from the judgment of the Supreme Court:
"The procedure laid down in the Code is clear and definite. It may be that in a given case the court on being prima facie satisfied from circumstances appearing from the record that the statutory agency has not worked in an effective way or the circumstances are such that it may reasonably be presumed or inferred that the statutory agency may not be able to discharge its function of investigation fairly and impartially might reasonably consider supplementing the procedure but as we have already indicated, there was no adequate material on the record for the learned single judge to be satisfied that the facts warranted appointment of a Special Officer."
11. We feel tempted to refer to yet another judgment of the Supreme Court reported as Kashmeri Devi Vs. Delhi Administration & Anr. . The case related to serious allegations of murder by torture against the police and further about the haphazard manner in which the investigation against the accused police officers was investigated with a view to shield the guilty members of the Delhi Police. The Supreme Court, having been satisfied that the police had not acted in a forthright manner in investigating the case, passed the following order:
"Since according to the respondents charge-sheet has already been submitted to the Magistrate we direct the trial court before whom the charge-sheet has been submitted to exercise his powers under Section 173(8) Cr.P.C. to direct the Central Bureau of Investigation for proper and thorough investigation of the case. On issue of such direction the Central Bureau of Investigation will investigate the case in an independent and objective manner and it will further submit additional charge-sheet, if any, in accordance with law. The appeal stands disposed of accordingly."
12. Does it not clinch the issue? Does it not show that the trial court before whom the charge-sheet is submitted has powers under Section 173(8), Cr.P.C. to direct the Central Bureau of Investigation to investigate? Mr. Dutta however, feels otherwise, and, in support, he again seeks to lean on the judgment of the Karnataka High Court already referred to above.
13. The Karnataka High Court in C.M. Iqbal's case (supra) has, after noticing the passage reproduced above, proceeded to deal with the same as follows:
"Sri Tomy Sebastian, learned counsel for the first respondent-complainant, placed emphasis on the words to exercise "his powers" under Section 173(8) Cr.P.C. to direct the Central Bureau of Investigation for proper and thorough investigation of the case, (emphasis is added) and contended that it is clear from the use of the words "his powers" with reference to the Magistrate concerned in that case that he had powers under Section 173(8) of the Code to direct the CBI to make a proper and thorough investigation of the case.
I find it difficult to accept the said argument inasmuch as their Lordships of the Supreme Court have directed the magistrate to direct the CBI to make proper and thorough investigation of the case in exercise of the powers vested in him under Section 173(B) of the Code as in my opinion, the words "his powers" cannot be interpreted to mean that he himself had powers to direct the CBI under Section 173(B) of the Code to make a proper and thorough investigation of the case. Therefore, the said decision is also of no assistance to the point canvassed by Sri Tomy Sebastian."
14. With respect, we do not subscribe to the view taken. The learned Judge, with respect, gives no reason in support of his "opinion". To us the order passed by the Supreme Court is clear as sunshine. It is not the order of the Supreme Court which invests the Magistrate with powers to refer the matter to the C.B.I. It is only a reminder to the Magistrate that he has such powers under Section 173(8) of the Code, and a direction to exercise the said powers so vested in him. The order does not create power. It merely proclaims powers which already exist and merely ordains its exercise. If the Supreme Court or a High Court directs a Magistrate to exercise the powers already vested in him by the Code, such a direction, given in exercise of supervisory powers, would not imply, in the absence of any provision to the contrary, that the Magistrate cannot himself proceed to exercised those powers. Section 173(8) nowhere provides that the Magistrate can exercise his powers under that provision only on direction by the High Court or by the Supreme Court. With respect we find ourselves unable to agree with the view of the Karnataka High Court that the words "his powers" as used by the Supreme Court "cannot be interpreted to mean that he himself had powers to direct the C.B.I. under Section 173(8) of the Code" to make investigation.
15. In short, we feel that a Magistrate has powers under Section 156(3) or under Sec. 173(8), as the case may be to direct the C.B.I., to make investigation and that in face of such an order the question of obtaining sanction under Section 6 of the Delhi Special Police Establishment Act does not arise. We are also of the opinion that since a Special Judge is empowered to take cognizance without the case against the accused being committed and in trying the accused he is required to follow the procedure for trial of warrant cases by a Magistrate, he would be deemed to be a Magistrate for purposes of Section 173(8) of the Code of Criminal Procedure.
16. This answers the reference. However, a few more words need to be necessarily added before drawing the curtain.
17. A magistrate, before he proceeds to exercise his powers, must be prima facie satisfied "from circumstances appearing from the record that the statutory agency has not worked in an effective way or the circumstances are such that it may reasonably be presumed or inferred that the statutory agency may not be able to discharge its function of investigation fairly and impartially" [See State of W.B. Vs. Sampath Lal (supra)]
18. We may also say that no order should be passed without prior notice to the State.
19. What further needs to be added is that the power conferred under Section 156(3) of the Code of Criminal Procedure is exercisable at the pre-cognizance stage. In a case where cognizance of an offence has been taken by the Magistrate under Sec. 190(1)(a) of the Code, he cannot go back to the pre-cognizance stage and thus cannot, of his own, order further investigation by banking upon sec. 156(3) of the Code.
20. As for a complaint case, we may point out that Sec. 202 of the Code of Criminal Procedure comes in at a stage when some evidence has already been collected by the Magistrate. We fell that in such a situation the Magistrate is surely empowered but well within the limits prescribed by Sec. 202 of the Code of direct an investigation by the C.B.I. for the purpose only of deciding 'whether or not there is sufficient ground for proceeding" and with a view to completing proceedings already instituted upon the complaint pending before him. But this would further be subject to the satisfaction of the Magistrate, on the basis of the material placed before him, that the statutory agency may not be able to investigate effectively, fairly and impartially.
21. Let the petitions be posted before a learned single Judge for disposal in the light of what has been observed by us.