Jammu & Kashmir High Court
State Through Cbi vs Rita Devi And Ors on 30 September, 2022
Author: Sanjay Dhar
Bench: Sanjay Dhar
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
CRMC No. 411/2018
Reserved on 27.09.2022
Pronounced on 30.09.2022.
d
State through CBI
..... petitioner (s)
Through :- Ms Monika Kohli Advocate
V/s
Rita Devi and ors .....Respondent(s)
Through :-
Coram: HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE
JUDGEMENT
1 The petitioner-CBI has challenged order dated 21.12.2017 passed by the learned CJM Jammu as also order dated 18.04.2017 passed by the Additional Sessions Judge, Jammu.
2 It appears that the petitioner-CBI, after conducting investigation into FIR bearing No. RC0042016A0001 dated 18.02.2016 for offences under Sections 120-B/420/467/468/471 RPC registered with Police Station CBI, ACB Jammu, presented a chargsheet against respondents No.1 and 2 before the Court of CJM Jammu. Since some of the offences alleged to have been committed by the accused are exclusively triable by the Court of Sessions, the learned CJM, Jammu committed the case to the Court of Principal Sessions Judge, Jammu, who assigned the case to the Court of learned Additional Sessions Judge, Jammu.
3 Vide impugned order dated 18.04.2017, the learned Additional Sessions Judge, Jammu observed that because the offences which are subject 2 matter of the challan, have been committed within the territorial jurisdiction of Sessions Judge, Udhampur and not within the territorial jurisdiction of Sessions Judge, Jammu, as such, the said Court did not have jurisdiction to enquire into and try the case. Accordingly, the committal order dated 23.08.2016 passed by the CJM, Jammu was set aside and the case was remanded back to the CJM, Jammu. Upon receipt of the file by the CJM Jammu, impugned order dated 21.12.2017 came to be passed by the said Court whereby the case was committed to the Court of Principal Sessions Judge, Udhampur. Both these orders are under challenge before this Court in the present proceedings.
4 It has been contended in the petition that the CJM, Jammu was conferred the powers of a Special Judicial Magistrate to try the cases investigated by the Delhi Special Police Establishment and, as such, the said Magistrate could commit the case only to the Court of Sessions situate in the District where the Court of CJM Jammu is ordinarily located. According to the petitioner, in this view of the matter, the challan could not have been committed by the learned CJM Jammu to the Court of Principal Sessions Judge, Udhampur and for the same reason, the impugned order passed by the Additional Sessions Judge, Jammu whereby the first committal order of CJM, Jammu has been set aside, is also not sustainable in law.
5 I have heard learned counsel for the petitioner and perused the record of the case.
6 It has been contended by Ms. Monika Kohli, learned counsel for the petitioner that the Court of Principal Sessions Judge, Udhampur is not located within the territorial jurisdiction of the District in which headquarter of CJM Jammu is located, as such, the learned CJM could not commit the case to the Court of Sessions at Udhampur. She has further submitted that the CBI is a 3 Specialized Investigating Agency and the Government has conferred powers of a Special Magistrate upon the CJM Jammu and CJM Srinagar to try the cases investigated by the CBI, as such, the Appellate Revisional and Committal Forums in respect of cases investigated by the CBI are mandatorily located either at Srinagar or at Jammu. In support of her contentions, learned counsel for the petitioner has relied upon a judgment of Punjab and Haryana High Court rendered in the case of State of Haryana vs. Shri Ram Niwas Birla and another, 1973 PLR 541, judgment of Allahabad High Court rendered in the case of Mohd Mahir vs. State of U.P, 1986 (23) ACrC 80 and a Judgment of Orrisa High Court rendered in the case of Prafulla Chandra Ghadei vs. Union of Republic of India, 1997 CriLJ 201 7 Before testing the merits of submissions made by learned counsel for the petitioner, it would be apt to have a look at the Notification bearing SRO No. 277 dated 24.05.1978 whereby the CJM Jammu has been conferred the powers of a Special Judicial Magistrate in respect of cases investigated by the CBI which is an agency established under the Delhi Special Police Establishment Act 1946. The said Notification reads as under:
"SRO 277:
In exercise of the powers conferred by sub-Section (1) of Section 14 of the Code of Criminal Procedure, Samvat 1989 and in supersession of all previous notifications issued on the subject, the Government in consultation with the High Court hereby appoint the CJM OF Jammu and Srinagar to be Special Magistrate respectively for trial of the cases investigated by the Delhi Special Police Establishment constituted under the DSPE Acts 1946 and for this purpose confer upon them all the powers of Judicial Magistrate of the 1st Class".
8 A perusal of the aforesaid notification, it is clear that the said notification has been issued by the Government in exercise of its powers conferred by Sub-Section (1) of Section 14 of the Code of Criminal Procedure, 1989. The said provision reads as under:
4
"Special Judicial Magistrates and Special Executive Magistrates.--
(1) The Government may, in consultation with the High Court, confer upon any person who holds or has held any Judicial post under the State or possesses such other qualifications as may, in consultation with the High Court, be specified in this behalf by the Government by notification in the Government Gazette, all or any of the powers conferred or conferrable by or under this Code on a Judicial Magistrate in respect to particular cases or to a particular class or classes of cases, or in regard to cases generally in any local area. Such Magistrates shall be called special Judicial Magistrates and shall be appointed for such term as the Government may, in consultation with the High Court, by general or special order direct.
(2) The Government may also appoint Executive Magistrates for particular areas or for the performance of particular functions and confer upon them such powers as it deems fit. Such Magistrates shall be called Special Executive Magistrates and shall be appointed for such term as the Government may, by general or special order, direct :
Provided that no power shall be conferred under this sub-section on any police officer below the grade of Assistant Superintendent and no powers shall be conferred on a police officer except so far as may be necessary for preserving the peace, preventing time and detecting, apprehending and detaining offenders in order to their being brought before a Magistrate, and for the performance by the officer of any other duties imposed upon him by any law for the time being in force"
9 A perusal of the aforesaid provision reveals that the Government has jurisdiction to confer upon any Judicial Magistrate all or any of the powers under the Code in respect to a particular case or a particular class of cases or in regard to cases generally in any local area and such Magistrates are to be called as Special Judicial Magistrates. Thus, the CJM Jammu and CJM Srinagar as per the aforequoted Notification have been conferred powers of Special Judicial Magistrates and they have jurisdiction to exercise all powers under the Cr.P.C in respect of cases investigated by the CBI.
510 Admittedly, in the instant case, the offences which are subject matter of the challan in question have been committed within the territorial jurisdiction of District Udhampur. So, even if these offences had taken place beyond the territorial jurisdiction of CJM Jammu, he was well within his jurisdiction to entertain the challan that was investigated by the CBI and to pass orders thereon.
11 The question that arises for consideration is, as to which Court the CJM Jammu was obliged to commit the challan once it came to his notice that some of the offences alleged in the Challan are exclusively triable by the Court of Sessions. No difficulty would arise in a case where the offences alleged to have been committed by the accused have taken place within the territorial limits of District Jammu, but the difficulty arises in a case where the offences have been committed beyond the territorial limits of District Jammu. 12 If we go by the ratio laid down by the Different High Courts in the judgments relied upon by the learned counsel for the petitioner, it comes to fore that a Special Judicial Magistrate has to commit the case to the Court of Sessions of the District in which the seat of Special Judicial Magistrate is ordinarily located, but there is a clear and important distinction in the provisions contained in the Code of Criminal Procedure, 1989 and the provisions contained in the Code of Criminal Procedure,1973 which govern the appointment of Special Judicial Magistrates.
13 While we have noticed the provision contained in Section 4 of J&K Cr. PC which governs the appointment of Special Judicial Magistrates, Section 13 and 14 of the Code of Criminal Procedure, 1973 dealing with the appointment of Special Judicial Magistrates and their local jurisdiction are also required to be noticed. The same read as under:
"13. Special Judicial Magistrates.--6
(1) The High Court may, if requested by the Central or State Government so to do, confer upon any person who holds or has held any post under the Government, all or any of the powers conferred or conferrable by or under this Code on a Judicial Magistrate of the first class or of the second class, in respect to particular cases or to particular classes of cases, in any local area, not being a metropolitan area:
Provided that no such power shall be conferred on a person unless he possesses such qualification or experience in relation to legal affairs as the High Court may, by rules, specify.
(2) Such Magistrates shall be called Special Judicial Magistrates and shall be appointed for such term, not exceeding one year at a time, as the High Court may, by general or special order, direct. (3) The High Court may empower a Special Judicial Magistrate to exercise the powers of a Metropolitan Magistrate in relation to any metropolitan area outside his local jurisdiction.
14. Local jurisdiction of Judicial Magistrates.--
(1) Subject to the control of the High Court, the Chief Judicial Magistrate may, from time to time, define the local limits of the areas within which the Magistrates 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:
Provided that the Court of Special Judicial Magistrate may hold its sitting at any place within the local area for which it is established.
(2) Except as otherwise provided by such definition, the jurisdiction and powers of every such Magistrate shall extend throughout the district.
(3) Where the local jurisdiction of a Magistrate, appointed under section 11 or section 13 or section 18, extends to an area beyond the district, or the metropolitan area, as the case may be, in which he ordinarily holds Court, any reference in this Code to the Court of Session, Chief Judicial Magistrate or the Chief Metropolitan Magistrate shall, in relation to such Magistrate, throughout the area within his local jurisdiction, be construed, unless the context otherwise requires, as a reference to the Court of Session, Chief Judicial Magistrate, or Chief Metropolitan Magistrate, as the case may be, exercising jurisdiction in relation to the said district or metropolitan area".7
14. From a perusal of Section 13 of Cr.P.C quotedabove, it becomes clear that the High Court upon a request of the State or Central Government has jurisdiction to confer upon any Judicial Magistrate powers under the Code in respect of a particular case or a particular class of cases. Sub-Section (3) of Section 14 which governs the local jurisdiction of Judicial Magistrates provides, inter alia, that where the local jurisdiction of a Magistrate appointed under Section 13 extends to an area beyond the District in which he ordinarily holds the Court, any reference to the Court of Sessions shall in relation to such Magistrate be construed, unless the context otherwise requires, as a reference to the Court of Sessions exercising jurisdiction in relation to the said District. This means a that a special provision has been made in the Central Cr.PC in relation to local jurisdiction of Special Judicial Magistates which provides that for the purposes of such Magistrates even if their area of jurisdiction spreads beyond the District in which the seat of Special Judicial Magistrate is located, the Court of Sessions means the Court located in the District where it is ordinary place of sitting is located.
15 On the basis of interpretation of the aforesaid provision, the different High Courts in the cases relied upon by learned counsel for the petitioner, have held that, for Special Magistrates, who have been conferred powers to try cases investigated by the CBI, the Court of Sessions would mean the Court which is located in the District in which the Special Magistrate ordinarily holds the Court. In the Jammu and Kashmir Cr.PC that is admittedly applicable to the instant case, there is no provision akin to Section 14(3) of Central CRPC. As per the provision contained in Section 177 of Cr.P.C, every offence has ordinarily to be enquired into and tried by a Court within whose local jurisdiction it was committed. So, in normal circumstances, the place of enquiry or trial of an offence is the Court within whose local jurisdiction, the 8 offence was committed. It is only in case there is any exception to the aforesaid provision that departure can be made with regard to the place of enquiry or trial of an offence. While Sub-Section (3) of Section 14 of Cr.PC is an exception to Section 177 of Cr.PC, but no such exception is provided in the J&K Cr.PC. Therefore, even after appointment of Special Judicial Magistrates in terms of SRO 277 dated 24.05.1978, the place of enquiry and trial in respect of those offences which are triable exclusively by the Court of Sessions would be governed by the provision contained in Section 177 of Cr.PC. 16 In the instant case, admittedly the offences alleged in the challan which is subject matter of the instant petition have been committed within the territorial limits of District Udhampur, as such, while CJM Jammu in view of SRO No. 277 dated 24.05.1978 had the jurisdiction to entertain and commit the challan, yet the Court of Sessions at Jammu does not have jurisdiction to enquiry into and try the said case. Learned Additional Sessions Judge has, therefore, rightly set aside the first committal order dated 23.08.2016 of CJM Jammu and remanded the case back to the CJM Jammu, who has thereafter rightly committed the case to the Court of Principal Sessions Judge, Udhampur within whose local limits the offences are alleged to have taken place. 17 For the foregoing reasons, I do not find any ground to interfere in the impugned orders passed by the Court below. The petition lacks merit and the same is, accordingly, dismissed.
(SANJAY DHAR)
JUDGE
JAMMU
30 .09.2022
Sanjeev Whether order is speaking:Yes
Whether order is reportable:Yes