Calcutta High Court (Appellete Side)
Binod Kumar Kabra vs State Of West Bengal & Ors on 12 November, 2013
Author: Joymalya Bagchi
Bench: Joymalya Bagchi
1
IN THE HIGH COURT AT CALCUTTA
Criminal Revisional Jurisdiction
Corum :The Hon'ble Justice Joymalya Bagchi.
C.R.R.1882 of 2013
Binod Kumar Kabra
Vs.
State of West Bengal & Ors.
For Petitioner : Mr. Y. K. Dastoor
Ms. Devi Priya Mitra.
For Respondents : Mr. Himangshu De,
Mr. Mritunjoy Chatterjee.
Heard on : November 12, 2013
Judgement on : November 12, 2013
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JOYMALYA BAGCHI, J. Order dated 2nd March, 2013 passed by the
learned Judge, 3rd Special Court, CBI in Special Case No. 29 of 2007 arising out of RCCCAA 2003A0032, CBI/SPE/ACB Kolkata dated 14th August, 2003 under Sections 120B, 420, 467, 468 and 471 of the Indian Penal Code read with Section 13(2), 13(1) ( c ) and 13 (1)(d) of the Prevention of Corruption Act, 1988 corresponding to Special Case No. 29 of 2007 has been challenged.
The factual matrix is as follows:
The instant case was being RCCCAA 2003A0032, CBI/SPE/ACB Kolkata dated 14th August, 2003 underSections 120B, 420, 467, 468 and 471 of Indian Penal Code read with Sections 13(2), 13 (1)( c ) and 13 (1)(d) of the Prevention of Corruption Act, 1988 corresponding to Special Case No. 29 of 2007 was registered against the petitioner and others on the basis of a written complaint written by Sri S. Roy, Chief Vigilance Officer, Allahabad Bank, Kolkata. The gist of the allegation in the first information report is to the effect that the Chief Manager and Manager Advance of Park Street Branch, Allahabad Bank entered into a criminal conspiracy with various accused persons including the petitioner and thereby unauthorizedly provided cash credit facilities to the companies/firms of the accused persons causing wrongful loss to the tune of Rs.1.95 crores to the Bank and wrongful gain to the said accused persons. The said first information report was addressed to 3 the Superintendent of Police, Central Bureau of Investigation, Anti- Corruption Branch who upon receipt of the same at Calcutta Zonal Office, Anti-Corruption Branch of CBI registered in the instant case.
Upon the direction of Superintendent of Police, CBI, Investigation of the instant case was initially conducted by Shri B. N. Sharma, Additional Superintendent of Police, CBI. Subsequently pursuant to order dated 2nd June, 2005 issued by the said Superintendent of Police, CBI the investigation was transferred to the present investigating officer, Sri S. R. Majumdar, Additional Superintendent of Police, CBI. In conclusion of the investigation, charge sheet was filed against the petitioner and other accused persons, inter alia, under sections 120B, 420, 467, 468 and 471 read with Sections 13 (2), 13 (1) ( c ) and 13 (1)(d) of the Prevention of Corruption Act. The petitioners had prayed for discharge before the Trial Judge on the following counts:
i) The first information report in the instant case was registered by the Central Bureau of Investigation at Calcutta Zonal Office. However, the Calcutta Zonal Office has not been declared as a police station by a notification by the State of West Bengal under Section 2 ( s) of the Code of Criminal Procedure, 1973. Hence, registration of FIR and the investigation commenced thereupon was illegal and hence the accused persons were entitled to be discharged.4
ii) The Additional Superintendent of Police did not have the requisite power to file the charge sheet in the instant case which was vested in the Superintendent of Police as per CBI Manual.
The Trial Judge by order dated 2nd March, 2013 negated such submissions and held that the investigation in the instant case was validly conducted and the qustion of discharge of the petitioners on such score did not arise at ll.
Mr. Dastoor, learned Senior Counsel appearing for the petitioners submitted that the registration of the first information report in the instant case at the behest of CBI was not in accordance with Section 154 pf the Code of Criminal Procedure. He submitted that as per the aforesaid provisions of law, the first information report can only be lodged at a police station and hence the registration of the first information report at Calcutta Zonal Office which admittedly has not been notified as a 'police station' in terms of Section 2 (s) of the Code of Criminal Procedure cannot be said to be legal. Accordingly he submitted that the initiation of investigation was on the basis of an unauthorized first information report could not have resulted in a valid prosecution. He further submitted that the police report was submitted under Section 173 of the Code of Criminal Procedure by the Additional Superintendent of Police although the later did not have the power to form requisite opinion to submit the police report under Section 170 of the Code of Criminal Procedure. In support of his contention he referred to the CBI Manual that it was the Superintendent of Police only who is deemed to be the Officer-in-Charge of a police station and accordingly was entitled to form the requisite opinion for submission of charge sheet under Section 170 of Code of Criminal Procedure.
Mr. Dey, learned Senior Counsel appearing for C. B. I. submitted that the first information report in fact was registered in terms of the CBI Manual. He drew my attention to 5 paragraph 1.7 of CBI Manual and also to Chapter 10 of the said Manual relating to regular cases particularly the paragraphs pertaining to registration of first information report. He further submitted that the Additional Superintendent of Police has been duly authorized to investigate the crime by the Superintendent of Police and that the latter after forming requisite opinion under Section 170 of the Code of Criminal Procedure forwarded the charge sheet to the Court for taking cognizance of the CBI. In this regard he relied on paragraphs 7.9 and 7.10 of the Manual relating to the powers/responsibilities of Superintendent of Police and Additional Superintendent of Police of the CBI.
The issue which falls for decision is whether Calcutta Zonal Office of the Central Bureau of Investigation was required to be notified by the State of West Bengal as a police station under Section 2(s) of the Code of Criminal Procedure for the purpose of registration of the first information report by the Central Bureau of Investigation. Let us examine various provisions of the Delhi Special Police Establishment Act, 1946 (hereinafter referred to as the Act of 1946) which empowers CBI to investigate offences for resolving the controversy. Section 2 of the Act of 1946 speaks of constitution of a special police force for investigating offences in any Union Territory as notified by the Central Government. Sub-section (3) of Section 2 of the Act of 1946 provides that any member of such force of the rank of sub- inspector or above, subject to any order passed by the Central Government while exercising his powers in an Union Territory would be deemed to an Officer-in-Charge of that area and shall be entitled to discharge the functioning of such an officer within the limits of his police station. Section 5 empowers the Central Government to extend the power and jurisdiction of the members of the force to investigate notified offences within the territory of a State Government. Such power is, however, subject to a consent granted by the State Government in that regard under section 6 of the said Act. Section 5 and 6 of the Act reads as follows:-
"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 6 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 the police force of the 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 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 of Railway, area, without the consent of the Government of that State."
Sub-Section (3) of Section 5 of the Act of 1946, therefore empowers all members of the force of or above the rank of Sub-Inspector, while exercising power and jurisdiction in an area within the territory of a State, subject to any order passed by the Central Government in that behalf, to exercise the powers of an Officer-in-Charge of a police station in that area and such member of the force shall be deemed to be a Officer in Charge of a police station discharging the function of such an officer within the limits of his police station. The aforesaid provisions is in the nature of a deeming clause which empowers members of the force above a particular rank subject to any order passed by the Central Government in that regard, while exercising the powers of investigation within the area of a State to exercise all powers of the Officer-in-Charge of a police station in that area and be deemed to be the officer in charge of a police station and discharge all functions of such an officer within limits of his police station. The provision, therefore, empowers the Superintendent of Police, CBI to receive and register a written information as FIR inasmuch as he is deemed to be an officer in charge of the police station in the area where he exercises such power. There is no controversy that consent has 7 been granted by the State Government under Section 6 of the Act of 1946 for investigate the offences in this case. Notification of the office of CBI where the Superintendent receives the written information as a police station under section 2 (s) of the Code is not necessary as such status and empowerment is conferred on him by way of the aforesaid legal fiction. Creation of a police station by executive order of the State Government under the Code is therefore not a sine qua non for vesting powers of an officer in charge of a police station on the members of the force. Act of 1946 is a special law relating to investigation of notified offences by a special police force and would undoubtedly override the general provisions of the Code. The deeming provisions has been read in that perspective and given its fullest expression. It cannot be subject to any restriction other than what appears from the provision itself.
I am unable to accept the submission of the petitioner that such deeming provision cannot be effectuated within notifying the office of the Special Police establishment as a "Police Station" under section 2 (s) of the Code. Acceptance of such interpretation would render the deeming provision nugatory and make its effect conditional on the creation of a new police station by the State Government - a proposition alien to the Scheme of the Special Statute.
For the aforesaid reason, I am in agreement with the reasons recorded in the impugned order that in view of the deeming provision contained in Section 5 (3) of the Act of 1946, the reception of written complaint and its registration as a first information report by the Superintendent of Police at Calcutta Zonal Office of Central Bureau of Investigation cannot be said to be an action contrary to the statutory mandate contained in Section 154 of the Code of Criminal Procedure or any other provision of the Code. Officers of Central Bureau of Investigation in the exercise of their investigational powers are regulated by the provisions of CBI Manual. Paragraphs 10.l and 10.2 of the Manual provides the procedure of registration of FIR by CBI. Paragraph 10.1 and 10.2 reads as follows: 8
" 10.1 On receipt of a complaint or after verification of an information or on completion of a Preliminary Enquiry taken up by CBI if it is revealed that prima facie a cognizable offence has been committed and the matter is fit for investigation to be undertaken by Central Bureau of Investigation, a First Information Report should be recorded under Section 154 Criminal Procedure Code and investigation taken up While considering registration of an FIR, it should be ensured that at least the main offence/s have been notified under Section 3 of the Delhi Special Police Establishment Act. The registration of First Information Report may also be done on the direction of Constitutional Courts, in which case it is not necessary for the offence to have been notified for investigation by DSPE. The FIRs under investigation with local police or any other law enforcement authority may also be taken over for further investigation either on the request of the State Government concerned or the Central Government or on the direction of a Constitutional Court. As the resources of CBI are limited, administrative arrangements have been worked out vis-à-vis local police as detailed in this Manual and Policy Division instructions as regards registration of cases. The guidelines regarding the type of petty cases, which should normally not be taken up for investigation, are also mentioned in the Manual and instructions of the Policy Division.
10.2 While registering the FIR, the legal requirements of section 154 Cr.
P.C. should be fully complied with. If the information is given orally, it shall be reduced into writing verbatim and shall include the answers to any question put to the informant. If a written complaint is received, an exact copy must be reproduced in the FIR. Every such information, whether reduced into writing or given in writing, which forms basis of the FIR, shall be signed by the person giving it. In case, the person is illiterate, his thumb impression will have to be secured. The refusal to sign or give thumb impression, as the case may be, on the First Information Report is an offence under Section 180 IPC."
In the instant case, the first information report has in fact been registered in terms of paragraph 10.1 and 10.2 of the CBI Manual. It has been held in State Vs. N. S. Ghaneswaran (2013) 3 S.C.C. 594 that when a member of CBI registers a FIR in accordance with such provisions of CBI Manual, legality thereof cannot be brought into question on that score. That apart, I also do not find any prejudice or failure of justice which has been occasioned to the petitioner in the manner in which the first information report has been registered. It is trite law that defect in the investigation shall not affect a prosecution until and unless such defect is of most fundamental nature and prejudicially affects the accused and occasions failure of justice.
From the records placed before me, I find that by order dated 2nd June, 2005 the Additional Superintendent of Police was duly authorized by the Superintendent of Police to 9 investigate the crime in terms of paragraph 7.10 of the Manual. Upon conclusion of investigation, police report was placed before by the Superintendent of Police, who after formation of requisite opinion forwarded the same to the Court for taking cognizance. Accordingly, there is no force in the submission of Mr. Dastoor that submission of charge sheet was not by the Superintendent of Police, CBI in terms of Section 170 of the Code of Criminal Procedure read with the provisions of the Manual.
Hence, I do not find any merit in the instant application and the same is accordingly dismissed.
(JOYMALYA BAGCHI, J.)