Delhi High Court - Orders
Central Bureau Of Investigation Anti ... vs Sumeet Kumar & Anr on 31 December, 2021
Author: Anu Malhotra
Bench: Anu Malhotra
$~15
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(CRL) 2608/2021
CENTRAL BUREAU OF INVESTIGATION
ANTI CORRUPTION BRANCH,NEW DELHI ..... Petitioner
Through: Mr. Anupam S Sharrma, SPP-CBI
with Mr. Prakarsh Airan, Adv., Ms.
Harpreet Kalsi, Adv., Mr. Anurag
Andley, Adv. with DSP CB Ojha in
person
versus
SUMEET KUMAR & ANR. ..... Respondents
Through Mr. Archit Upadhayay, Advocate
CORAM:
HON'BLE MS. JUSTICE ANU MALHOTRA
ORDER
% 31.12.2021 In terms of proceedings dated 29.12.2021, the learned legal aid counsel Mr. Archit Upadhayay, counsel for respondent no.1 has joined the proceedings and has submitted a catena of verdicts to oppose the prayer made by the petitioner vide the present petition seeking the setting aside of the impugned order dated 28.12.2021 passed by the learned Special Judge, CBI Delhi with the prayer that the police remand qua the accused Sumeet Kumar be allowed to the CBI for expeditious and fair investigation in RC- DAI-2021-A-0044-CBI-ACB-DLI.
A catena of verdicts has been relied upon equally on behalf of the petitioner, whereby it has been submitted on behalf of the petitioner that the Courts at Delhi and at Mumbai would have concurrent jurisdiction in the Signature Not Verified Digitally Signed By:SUMIT GHAI Signing Date:06.01.2022 14:55:13 This file is W.P.(CRL) 2608/2021 Page 1 of 16 digitally signed by PS to HMJ ANU MALHOTRA.
matter both in relation to the alleged commission of offences punishable under the Indian Penal Code as well as those under the Prevention of Corruption Act, 1988. It is the avowed contention on behalf of the respondent no.1 to the effect that the territorial jurisdiction in the instant case would lie at Mumbai in as much as the alleged commission of offences of forgery and fabrication of public documents in relation to the purported arrest that was sought to be made, were done allegedly by the public servant Sumeet Kumar at Mumbai and thus there is no question of registration of any Zero FIR at Delhi.
It has further been submitted on behalf of the respondent no.1 that the registration of the Zero FIR in the instant case by the petitioner is also only as per averments made in the petition itself to overcome the difficulty as mentioned in the petition itself that the State of Maharashtra does not give a general consent for registration of cases under the PC Act.
It has further been submitted on behalf of the respondent no.1 that the petitioner having been aggrieved by the impugned order dated 28.12.2021 of the learned Vacation Judge/RADC could have filed a revision petition in relation to which it is submitted on behalf of the petitioner placing reliance on para 57 of Gautam Navlakha v. National Investigation Agency, (AIR OnLine 2021 SC 246), which reads to the effect: -
"57. Thus, an order under Section 167 is purely an interlocutory order. No revision is maintainable. A petition under Section 482 cannot be ruled out."
A further submission is made on behalf of the respondent no.1 by the learned legal aid counsel for the respondent no.1 that the parameters of the registration of the Zero FIR at the instance of the victim are not applicable to Signature Not Verified Digitally Signed By:SUMIT GHAI Signing Date:06.01.2022 14:55:13 This file is W.P.(CRL) 2608/2021 Page 2 of 16 digitally signed by PS to HMJ ANU MALHOTRA.
the instant case. Reliance is also placed on behalf of the respondent no.1 on the verdict dated 30.11.2021 of this Court in W.P.(Crl.) 481/2020 (Neelu Shrivastava v. State & Ors.) to submit to the effect that the Zero FIR could not be registered in Delhi.
A further submission is made on behalf of the respondent no.1 by the learned legal aid counsel for the respondent no.1 that even if the submissions as sought to be made by the petitioner are accepted in relation to the alleged commission of a conspiracy at Delhi on the basis of the averments made in the complaint and as averred in the petition, of transmission electronically of documents by respondent no.1 Sumeet Kumar to the respondent no. 2 to the petition, i.e. Mohit Kumar, the same would also be hit by the provisions of Section 27 of the Indian Evidence Act, 1872 and would not fall within the domain of admissibility.
It is the avowed contention on behalf of the petitioner that the respondent no.1, an LDC in CBI, ACB, Mumbai in connivance with respondent no. 2 and unknown others was involved in illegal activities of falsification and forgery of documents with an intention and attempt to obtain undue advantage from M/s. Indiabulls and committed theft in respect of the property in the possession of the Superintendent of Police, CBI, ACB, Mumbai and hence a regular case was registered u/Sections 120-B, 381, 465, 466 and 474 of the IPC and Section 7 of the PC Act, 1988 at CBI, ACB, Mumbai vide FIR No.RC0262021A0000 dated 21.12.2021 as a Zero FIR and was transferred through email from the SP, CBI, ACB, Mumbai to the PS, CBI, ACB, Delhi and the instant case RC-DAI-2021-A-0044-CBI-ACB- DLI was registered on 21.12.2021 u/Sections 120-B, 381, 465, 468 and 474 of the IPC and u/Section 7 of the PC Act, 1988 on the basis of the complaint Signature Not Verified Digitally Signed By:SUMIT GHAI Signing Date:06.01.2022 14:55:13 This file is W.P.(CRL) 2608/2021 Page 3 of 16 digitally signed by PS to HMJ ANU MALHOTRA.
of Sh. Rajesh Kumar, Dy. Supdt. of Police, CBI, ACB, Mumbai against respondent no.1 Sumeet Kumar, LDC (Crime Clerk), CBI, ACB, Mumbai and respondent no. 2 Mohit Kumar, Proprietor, Mohit Trading Company at Lal Flat, near Ramdeo Chowk, Narela New Delhi.
The CBI contends to the fact that the jurisdiction of Delhi is derived from the facts that falsified notesheets were transmitted electronically by the accused Sumit Kumar to accused Mohit Kumar who had his office in Delhi and the intended victim who was to be pressurised by use of these images of the falsified notesheet had his office in Delhi. Inter alia the CBI submits that it is essential to investigate the matter as both intended victims of the case are subject matter of the investigation in cases being investigated by the CBI.
The averments in the complaint of Shri Rajesh Kumar Deputy Superintendent of Police, CBI, ACB, Mumbai dated 21.12.2021 addressed to the Superintendent of Police CBI, ACB, Mumbai read to the effect:-
" It is to inform that WP No. 3294/2021 in RC. 04(A)2020, CBI, ACB, Mumbai was listed for hearing on 21.12.2021 i.e. today and for the purpose of discussion with the Retainer Counsel, the Crime File was called from the Crime Section. During perusal of Crime File it was noticed that an additional note sheet has been kept in the file with the following remarks.
"Shri Sammir Galout and Smt Bindu Rana Kapoor is arrest is put up for Kind perusal Pls". This note has been shown to have been signed by Sp-l, approved by DIG and accepted by Rajesh Kumar/ DSP. Perusals of the said note revealed that all the noting have been written by only one person. The file was shown to Shri Anil, Crime Assistant. He identified the handwriting to be that of Shri Sumeet Kumar, LDC, dealing hand for the trial matters. Signature Not Verified Digitally Signed By:SUMIT GHAI Signing Date:06.01.2022 14:55:13 This file is W.P.(CRL) 2608/2021 Page 4 of 16 digitally signed by PS to HMJ ANU MALHOTRA.
In order to confirm the same, an inspection of CCTV footage was made. During its inspection it was clearly identified that Shri Sumeet Kumar created and wrote the above said frivolous note sheet and he even took the pictures of note sheet written by him and also other note sheet pages of the Crime File.
On being asked Shri Sumeet Kumar disclosed that photos of note sheets have been sent to Shri Mohit Kumar R/o. Lal Flat Near Ramdeo Chowk, Narela, New Delhi of M/s. Mohit Trading Company, a House Keeping Agency working with Indiabulls. He further disclosed that the images of the Note sheets have been sent to Shri Mohit Kumar to impress upon M/s. Indiabulls to extend their contract of work of House keeping being undertaken by them, by giving favour in the matter of possible arrest of Shr Sameer Gehlot, the then Promoter and Managing Director of Indiabulls Housing Finance Ltd.
It was also revealed that Shri Sumeet Kumar has sent and image of blank Note sheet with impression of Stamp of SP-I through his mobile whatsapp message to some Deepak, SIT. On enquiry from PA to SP-I, it was revealed that the said stamp is missing from their possession since yesterday. From the above it is revealed that the said Shri Sumeet Kumar, LDC, CBI, ACB, Mumbai in connivance with Shri Mohit Kumar and unknown other are involved in illegal activities of falsification and forgery of documents with an intention and attempt to obtain undue advantage from M/s. Indiabulls and committed theft in respect of property in the possession of Superintendent of Police, CBI, ACB, Mumbai.
It is therefore requested that appropriate legal action may please be taken against them."
It is the contention on behalf of the respondent no.1 and the learned Legal Aid Counsel for the respondent no.1 that in terms of Section 4 (2) of Signature Not Verified Digitally Signed By:SUMIT GHAI Signing Date:06.01.2022 14:55:13 This file is W.P.(CRL) 2608/2021 Page 5 of 16 digitally signed by PS to HMJ ANU MALHOTRA.
the Prevention of Corruption Act, 1988 the offences are to be tried by the Special Judge of the area within which the offence was committed and thus it has rightly been observed by the impugned order that since the offence was committed within the jurisdiction of the Mumbai Court, the Mumbai Court alone had the territorial jurisdiction and that this Court at Delhi has no territorial jurisdiction to deal with the matter. Inter alia it was also submitted on behalf of the respondent no.1 placing reliance on the verdict in State of Jharkhand vs. Lalu Prasad Yadav (2017) 8 SCC 1 and in CBI vs. Braj Bhushan Prasad & Ors.(2001) 9 SCC 432 to submit to the effect that in as much as the main offence of the fabrication and forgery has been committed at Mumbai, the commission of the conspiracy allegedly would not confer any territorial jurisdiction to a Court at that place in relation to the main offence punishable under the provision of the Prevention of Corruption Act,1988, which has already been refuted on behalf of the CBI as already observed hereinabove.
On behalf of the CBI reliance is placed on the verdict in Anand Agarwal v. Union of India and Ors. AIROnline 2018 Del 1757 with specific reliance on observations in para 21 27 and 28, which reads to the effect:
"21. At first blush, it would appear that any investigation carried out in a State other than the State where the case is registered would require the CBI to take the prior permission of the State in which the investigation is sought to be carried out. Thus, in the hypothetical situation of a case registered by the CBI in Kolkata, West Bengal requiring investigations to be carried out in four other States, if one went by the contention of the Petitioner then prior permission would have to be sought from the Governments of each of those four States before the CBI proceeds to take any step in any of those respective States by way of investigation. Signature Not Verified Digitally Signed By:SUMIT GHAI Signing Date:06.01.2022 14:55:13 This file is W.P.(CRL) 2608/2021 Page 6 of 16 digitally signed by PS to HMJ ANU MALHOTRA.
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27. In the present case, the actions of the Petitioner spoken of in the charge sheet, though performed at Raipur, were pursuant to the criminal conspiracy entered into between some of the accused in New Delhi. According to the CBI, those actions of the Petitioner were in continuation of and, in a sense, a completion of the criminal acts that were planned to be undertaken in that conspiracy. They are inseparable from the main criminal conspiracy itself. According to the CBI, it is not, therefore, as if separate and distinct offences unconnected with the main criminal conspiracy in New Delhi were undertaken by the Petitioner in Raipur. Also, a reading of the charge sheet shows that the case of the CBI is that the Petitioner was aware that he was acting pursuant to and in furtherance of such criminal conspiracy.
28. The CBI's case is that offence of criminal conspiracy for which the case has been registered was committed not in Chhattisgarh but in New Delhi. That explains why the CBI has registered the case in New Delhi. The Court finds merit in the contention of the CBI that merely because the further acts pursuant to that criminal conspiracy were performed by the co- accused in a place outside Delhi, in this case Raipur, there would be no necessity for the CBI to seek the prior sanction of Respondent no.1 No.3 under Section 6 DSPE Act to take further steps to investigate that case in Raipur or other places in Chhattisgarh."
The CBI also places reliance on the verdict of the Hon'ble Supreme Court in Kanwal Tanuj v. State of Bihar AIR 2020 SC 2023 with specific reliance on observations in para 19 and 20, which read to the effect:
"19. The appellant, however, would rely on the allegations in the subject FIR to contend that the role of the appellant at best is in respect of certain official duty in connection with the affairs of the Government of Bihar. This submission overlooks the Signature Not Verified Digitally Signed By:SUMIT GHAI Signing Date:06.01.2022 14:55:13 This file is W.P.(CRL) 2608/2021 Page 7 of 16 digitally signed by PS to HMJ ANU MALHOTRA.
substratum of the allegations in the FIR, as registered by the CBI against the CEO of BRBCL - Shri C. Sivakumar and the appellant being co- accused (party to the conspiracy) regarding defrauding the Government of India undertaking (BRBCL) having its registered office at Delhi (Union Territory) and siphoning of its funds. The alleged role played by the appellant may be a means to facilitate the commission of crime of defrauding and siphoning of funds. The FIR in that sense is not limited to an offence of manipulation of official records of the State of Bihar as such, but is about the means used by the different actors who were party to the conspiracy in defrauding the Government of India undertaking (BRBCL) and siphoning of its funds.
20. Indisputably, the registered office of BRBCL is within the jurisdiction of Union Territory of Delhi (National Capital Territory of Delhi) and allegedly the offence has been committed at Delhi, for which reason the Delhi Court will have jurisdiction to take cognizance thereof. To put it differently, the offence in question has been committed outside the State of Bihar. The investigation of the stated offence may incidentally transcend to the territory of State of Bihar because of the acts of commission and omission of the appellant who is resident of that State and employed in connection with the affairs of the State of Bihar. That, however, cannot come in the way of special police force (DSPE) from investigating the offence committed at Delhi and has been so registered by it and is being investigated. Had it been an offence limited to manipulation of official record of the State and involvement of officials of the State of Bihar, it would have been a different matter. It is not the case of the appellant or the State of Bihar that even an offence accomplished at Delhi of defrauding of the Government of India undertaking (having registered office at Delhi) and siphoning of the funds thereof at Delhi can be investigated by the State of Bihar. If the State police has had no jurisdiction to investigate the offence in question, as registered, then, seeking consent of the State in respect of such offence does not arise. Any other approach would render the special provisions of the 1946 Act otiose."
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as well as placing reliance on the verdict of the Hon'ble Supreme Court in PK Thungon vs. CBI in Special Leave to Appeal (Crl) No(s).4990- 4991/2009, a verdict dated 03.08.2009 with observations therein to the effect.
"We have been taken through the First Information Report as also the judgment of the learned Trial Judge. In the facts and circumstances of the case, it is difficult to come to the conclusion that the main offence is only under the Prevention of Corruption Act. The accused persons have been charged with conspiracy of commission of a crime inter alia under Section 409 and other provisions of the Indian Penal Code as well."
to submit and contend to the effect that the Courts at Delhi would have territorial jurisdiction to inquire into the matter especially as the contention raised by the CBI is that the main offence in the instant case is of the commission of the conspiracy between the respondent nos.1 and 2 for commission of offences which are punishable under the Indian Penal Code in order to commit the offence punishable under the PC Act, with further submissions also made on behalf of the petitioner that the offence punishable under Section 7 of the PC Act, would also stand completed on the transmission of the electronic documents by the respondent no.1 to Delhi and to the respondent no.2.
Reliance is also sought on behalf of the petitioner on the provision of the Section 167 (2) of the Cr.P.C. 1973, which reads to the effect:-
"(2) The Magistrate to whom an accused person is forwarded under this section may, whether he has or has not jurisdiction to try the case, from time to time, authorise the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole; and if he has no jurisdiction to try the case or commit it for trial, and considers Signature Not Verified Digitally Signed By:SUMIT GHAI Signing Date:06.01.2022 14:55:13 This file is W.P.(CRL) 2608/2021 Page 9 of 16 digitally signed by PS to HMJ ANU MALHOTRA.
further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction: Provided that-
(a) the Magistrate may authorise the detention of the accused person, otherwise than in the custody of the police, beyond the period of fifteen days; if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorise the detention of the accused person in custody under this paragraph for a total period exceeding,-
(i) ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years;
(ii) sixty days, where the investigation relates to any other offence, and, on the expiry of the said period of ninety days, or sixty days, as the case may be, the accused person shall be released on bail if he is prepared to and does furnish bail, and every person released on bail under this sub- section shall be deemed to be so released under the provisions of Chapter XXXIII for the purposes of that Chapter;]
(b) no Magistrate shall authorise detention in any custody under this section unless the accused is produced before him;
(c) no Magistrate of the second class, not specially empowered in this behalf by the High Court, shall authorise detention in the custody of the police. Explanation I.- For the avoidance of doubts, it is hereby declared that, notwithstanding the expiry of the period specified in paragraph (a), the accused shall be detained in custody so long as he does not furnish bail;]. 2 Explanation II.- If any question arises whether an accused person was produced before the Magistrate as required under paragraph (b), the production of the accused person may be proved by his signature on the order authorising detention.]"
to submit to the effect that in as much as it matters not as to the whether the Magistrate's Court at Delhi would have territorial jurisdiction or not for the grant of the remand by the Magistrate (with it being essential to observe that the original jurisdiction in cases under the P.C. Act, 1988 lies in the Court of Signature Not Verified Digitally Signed By:SUMIT GHAI Signing Date:06.01.2022 14:55:13 This file is W.P.(CRL) 2608/2021 Page 10 of 16 digitally signed by PS to HMJ ANU MALHOTRA.
the Special Judge and the provision of the Cr.P.C, 1973) and in terms of the Section 5(3) of the Prevention of Corruption Act,1988 the provisions of the Cr.P.C. would be applicable to proceedings even under the P.C. Act, 1988.
On a consideration of the submissions that have been made on behalf of either side, without any observations on the merits or demerits of the trial if any that takes place on submission of the charge sheet in the matter even qua the aspect of the territorial jurisdiction after conclusion of the investigation, at this stage taking into account the provision of Section 5(3) of the Prevention of Corruption Act as well as the aspect that offences other than offences punishable under the Prevention of Corruption Act are also to be investigated by the investigating agency with the contention raised on behalf of the CBI that the main offence in the instant case is in relation to the commission of the offence of conspiracy for the inter alia commission of offences even under the P.C. Act, it cannot be held that the Court at Delhi does not have territorial jurisdiction to deal with the matter and thus it is held that the Special Judge, CBI at Delhi would for the purpose of consideration of a prayer u/Section 167(2) of the Cr.P.C, 1973 have territorial jurisdiction to consider the aspect of the grant of police remand as prayed by the petitioner qua the accused Sumeet Kumar for investigation in RC-DAI-2021-A-0044-CBI-ACB-DLI, in view of the verdict of the Hon'ble Supreme Court in Rhea Chakraborty vs. State of Bihar AIROnline 2020 SC 685 with specific reliance on the observations in para 28 thereof, which reads to the effect:
"28. Once again, in Rasiklala Dalpatram Thakkar Vs. State of Gujarat (2010) 1 SCC 1, while approving the earlier decisions in Satvinder Kaur(supra) in the judgment rendered by Justice Altamas Kabir as he was then, the Supreme Court made it very Signature Not Verified Digitally Signed By:SUMIT GHAI Signing Date:06.01.2022 14:55:13 This file is W.P.(CRL) 2608/2021 Page 11 of 16 digitally signed by PS to HMJ ANU MALHOTRA.
clear that a police officer cannot refrain from investigating a matter on territorial ground and the issue can be decided after conclusion of the investigation. It was thus held:- "27. In our view, both the trial court as well as the Bombay High Court had correctly interpreted the provisions of Section 156 CrPC to hold that it was not within the jurisdiction of the investigating agency to refrain itself from holding a proper and complete investigation merely upon arriving at a conclusion that the offences had been committed beyond its territorial jurisdiction."
and the verdict in Satvinder Kaur vs. State (Govt. of N.C.T. of Delhi) & Anr. , AIR 1999 SC 3596 with specific reliance on the observations on the paragraphs 8 and 10, 11, 12, 13 which reads to the effect:-
8. In our view, the submission made by the learned counsel for the appellant requires to be accepted.The limited question is whether the High Court was justified in quashing the FIR on the ground that Delhi Police Station did not have territorial jurisdiction to investigate the offence. From the discussion made by the learned Judge, it appears that learned Judge has considered the provisions applicable for criminal trial. The High Court arrived at the conclusion by appreciating the allegations made by the parties that the S.H.O., Police Station Paschim Vihar, New Delhi was not having territorial jurisdiction to entertain and investigate the F.I.R. lodged by the appellant because the alleged dowry items were entrusted to the respondent no.1 at Patiala and that the alleged cause of action for the offence punishable under S. 498-A, I.P.C. arose at Patiala. In our view, the findings given by the High Court are, on the face of it, illegal and erroneous because :-
(1) The S.H.O. has statutory authority under S. 156 of the Criminal Procedure Code to investigate any cognizable case for which an F.I.R. is lodged.
(2) At the stage of investigation, there is no question of interference under S. 482 of the Criminal Procedure Code on the ground that the Investigating Officer has no territorial jurisdiction.
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(3) After investigation is over, if the Investigating Officer arrives at the conclusion that the cause of action for lodging the F.I.R. has not arisen within his territorial jurisdiction, then he is required to submit a report accordingly under S. 170 of the Criminal Procedure Code and to forward the case to the Magistrate empowered to take cognizance of the offence. ...
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10. It is true that territorial jurisdiction also is prescribed under sub-section (1) to the extent that the officer can investigate any cognizable case which a Court having jurisdiction over the local area within the limits of such police station would have power to inquire into or try under the provisions of Chapter XIII. However, sub-section (2) makes the position clear by providing that 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 to investigate. After investigation is completed, the result of such investigation is required to be submitted as provided under Ss. 168, 169 and 170. Section 170 specifically provides that if, upon an investigation, it appears to the officer-in-charge of the police station that there is sufficient evidence or reasonable ground of suspicion to justify the forwarding of the accused to a Magistrate, such officer shall, forward the accused under custody to a Magistrate, empowered to take cognizance of the offence upon a police report and to try the accused or commit for trial. Further, if the Investigating Officer arrives at the conclusion that the crime was not committed within the territorial jurisdiction of the police station, then F.I.R. can be forwarded to the police station having jurisdiction over the area in which crime is committed. But this would not mean that in a case which requires investigation, the police officer can refuse to record the FIR and/or investigate it.
11. Chapter XIII of the Code provides for "Jurisdiction of the Criminal Courts in inquiries and trials." It is to be stated that under the said chapter there are various provisions which empower the Court for inquiry or trial of a criminal case and Signature Not Verified Digitally Signed By:SUMIT GHAI Signing Date:06.01.2022 14:55:13 This file is W.P.(CRL) 2608/2021 Page 13 of 16 digitally signed by PS to HMJ ANU MALHOTRA.
that there is no absolute prohibition that the offence committed beyond the local territorial jurisdiction cannot be investigated, inquired or tried. This would be clear by referring to Ss. 177 to 188. For our purpose, it would be suffice to refer only to Ss. 177 and 178 which are as under :-
"177. Ordinary place of inquiry and trial.- Every offence shall ordinarily be inquired into and tried by a court within whose local jurisdiction it was committed.
178. Place of inquiry or trial.- (a) When it is uncertain in which of several local areas an offence was committed, or
(b) where an offence is committed partly in one local area and partly in another, or
(c) where an offence is continuing one, and continues to be committed in more local areas than one, or
(d) where it consists of several acts done in different local areas, it may be inquired into or tried by a Court having jurisdiction over any of such local areas."
12. A reading of the aforesaid sections would make it clear that S. 177 provides for "ordinary" place of inquiry or trial. Section 178 inter alia provides for place of inquiry or trial when it is uncertain in which of several local areas an offence was committed or where the offence was committed partly in one local area and partly in other and where it consisted of several acts done in different local areas, it could be inquired into or tried by a Court having jurisdiction over any of such local areas. Hence, at the stage of investigation, it cannot be held that S.H.O. does not have territorial jurisdiction to investigate the crime.
13. This Court in the State of West Bengal v. S. N. Basak, (1963) 2 SCR 52 : (AIR 1963 SC 447 : 1963 (1) Cri LJ 341) dealt with a similar contention wherein the High Court had held that the statutory powers of investigation given to the police under Chapter XIV were not available in respect of an offence triable under the West Bengal Criminal Law Amendment (Special Courts) Act, 1949 and hence the investigation was without jurisdiction. Reversing the said finding, it was held thus (para 3 of AIR and Cri LJ) :-
"The powers of investigation into cognizable offences are Signature Not Verified Digitally Signed By:SUMIT GHAI Signing Date:06.01.2022 14:55:13 This file is W.P.(CRL) 2608/2021 Page 14 of 16 digitally signed by PS to HMJ ANU MALHOTRA.
contained in Chapter XIV of the Code of Criminal Procedure. Section 154 which is in that chapter deals with information in cognizable offences and S. 156 with investigation into such offences and under these sections the police has statutory right to investigate into the circumstances of any alleged cognizable offence without authority from a Magistrate and this statutory power of the police to investigate cannot be interfered with by the exercise of power under S. 439 or under the inherent power of the Court under S. 561-A of Criminal Procedure Code. As to the powers of the judiciary in regard to statutory right of the police to investigate, the Privy Council in Khwaja Nazir Ahmad v. King Emperor (1944) LR 71 Ind App 203, 212 : (AIR 1945 PC 18 at p. 22 : 1945 (46) Cri LJ 413) observed as follows :
"The functions of the judiciary and the police are complementary, not overlapping, and the combination of individual liberty with a due observance of law and order is only to be obtained by leaving each to exercise its own function, always, of course, subject to the right of the Court to intervene in an appropriate case when moved under S. 491 of the Criminal Procedure Code to give directions in the nature of habeas corpus. In such a case as the present, however, the Court's functions begin when a charge is preferred before it, and not until then. It has sometimes been thought that S. 561-A has given increased powers to the Court which it did not possess before that section was enacted. But this is not so, the section given no new powers, it only provides that those which the Court already inherently possesses shall be preserved and is inserted as their Lordship think, lest it should be considered that the only powers possessed by the Court are those expressly conferred by the Criminal Procedure Code and that no inherent powers had survived the passing of that Act." With this interpretation, which has been put on the statutory duties and powers of the police and of the powers of the Court, we are in accord. The High Court was in error therefore in interfering with the powers of the police in investigating into the offence which was alleged in the information sent to the officer-in-charge of the police station.", Signature Not Verified Digitally Signed By:SUMIT GHAI Signing Date:06.01.2022 14:55:13 This file is W.P.(CRL) 2608/2021 Page 15 of 16 digitally signed by PS to HMJ ANU MALHOTRA.
to contend to the effect that the investigation cannot be truncated by the accused nor by the learned trial Court.
In view thereof, the directions of the learned Vacation Judge/RADC New Delhi dated 28.12.2021 to the extent that the accused that is respondent no.1 is directed to be produced before the concerned Judge, Mumbai qua the prayer made by the petitioner herein seeking grant of remand in the matter is set aside with directions to the learned Special Judge, CBI Delhi to consider the prayer made by the petitioner herein qua police remand of the respondent no.1 in relation to RC-DAI-2021-A-0044-CBI-ACB-DLI in accordance with law.
As regards the prayer that has been made by the petitioner seeking the grant of police remand for the accused Sumeet Kumar in relation to RC- DAI-2021-A-0044-CBI-ACB-DLI, the same shall be considered by the learned Special Judge, CBI in accordance with law in relation to which the matter is remanded to the learned Special Judge, CBI Delhi.
The petition is disposed of accordingly. The Court expresses its appreciation to the learned counsel for either side for their valuable assistance especially to Mr. Archit Upadhayay, counsel for the DHCLSC, who has joined in the proceedings at very short notice.
ANU MALHOTRA, J DECEMBER 31, 2021 j/hd Signature Not Verified Digitally Signed By:SUMIT GHAI Signing Date:06.01.2022 14:55:13 This file is W.P.(CRL) 2608/2021 Page 16 of 16 digitally signed by PS to HMJ ANU MALHOTRA.