Calcutta High Court (Appellete Side)
Central Bureau Of Investigation vs Pranab Kumar Mukherjee on 17 June, 2016
Author: Joymalya Bagchi
Bench: Joymalya Bagchi
In The High Court at Calcutta
Criminal Appellate Jurisdiction
Present :
The Hon'ble Justice Joymalya Bagchi
G.A. 8 of 2014
Central Bureau of Investigation
Vs.
Pranab Kumar Mukherjee
with
G. A. 9 of 2014
Central Bureau of Investigation
Vs.
Hiranmoy Chakraborty
with
G. A. 10 of 2014
Central Bureau of Investigation
Vs.
Gopal Jee
with
G. A. 11 of 2014
Central Bureau of Investigation
Vs.
Manish Kumar
with
G. A. 12 of 2014
Central Bureau of Investigation
Vs.
Sanjib Halder
Mr. Ashraf Ali ... for the appellant (in all matters).
Mr. Ujjal Ray ... for the respondent (in G.A. 8 of 2014).
Mr. Abhra Mukherjee,
Mr. Sudip Banerjee ... for the respondent (in G.A. 9 of 2014,
G.A.10 of 2014 & G.A.12 of 2014).
Mr. Sudipta Moitra,
Mr. Abhra Mukherjee,
Mr. Sudip Banerjee,
Mr. Biplab Das,
Mr. Vijoy Verma ... for the respondent (in G.A. 11 of 2014).
Heard on: June 16 & 17, 2016.
Judgment on: June 17, 2016.
Joymalya Bagchi, J.:
All the appeals are taken up together and disposed of by a common judgment and order as they involve the same question of law.
In all these appeals the trial judge prior to conclusion of trial by judgment and orders dated 14.12.2012 (in R.C. Case No. 27 of 2008), 21.12.2012 (in R.C. Case No. 46 of 1997, 22.03.2013 (in R.C. Case No. 22(A) of 2006, 06.12.2013 (in R.C. Case No. 30 of 2003) and 31.01.2013 (in R.C. Case No. 40 of 2005) acquitted the opposite parties of the charges levelled against them on the premise that the Central Bureau of Investigation had not registered first information report at any police station duly notified by the State of West Bengal under Section 2(s) of the Code of Criminal Procedure.
Although the aforesaid issue had been answered by me in Binod Kumar Kabra -Vs.- State of West Bengal and Ors., (2015)2 C Cr.LR (Cal) 693, learned counsels for the appellants submitted that various aspects of the matter had not been considered in the said report and such issues require to be heard out at length. Accordingly, I adjourned the matter for further hearing till today.
Mr. Sudipta Moitra, learned senior counsel with Mr. Abhra Mukherjee, learned advocate appearing for the appellants in G.A. 8 of 2014 submitted that commencement of a valid investigation must be preceded by registration of a first information report at a police station notified under Section 2(s) of the Code. As the first information report has not been registered in any police station notified in the State of West Bengal under the Code, the investigation and prosecution ensuing therefrom are illegal and without jurisdiction. Hence, the order of acquittal did not call for interference.
In support of his contention he has relied on the following decisions in Central Bureau of Investigation through S.P., Jaipur -Vs.- State of Rajasthan & Anr., 2001 C Cr. LR (SC) 116, State of West Bengal & Ors.
-Vs.- Committee for Protection of Democratic Rights, West Bengal and Ors., (2010)2 SCC (Cri) 401, Dr. S.M. Kaligudd and Ors. -Vs.- State of Karnataka & Ors., 1998 Cri L.J. 1183, Srimanta Manna -Vs.- The State, AIR 1960 Cal 519, and Sharanappa -Vs.- State of Karnataka, 2016 Cri L.J. 764.
Mr. Mukherjee, learned advocate appearing for the appellants in G.A. No.9 of 2014, G.A. No.10 of 2014 and G.A. 12 of 2014 adopted the argument of Mr. Moitra. Mr. Ray, learned advocate appearing for the appellant in G.A. 8 of 2014 also submitted that as the FIR was not registered at a police station duly notified under the Code, consequential investigation was illegal and the trial court was wholly within its jurisdiction to acquit the accused person.
Mr. Ali, learned advocate for the appellants has relied on a decision in State represented by Inspector of Police, Chennai -Vs.- N.S. Gnaneswaran, (2013) 3 SCC 594 and submitted that such issue is no longer res integra in view of the aforesaid authority. He further submitted that the ratio in N.S. Gnaneswaran (supra) has further been approved by the Constitution Bench in Lalita Kumari -Vs.- Government of U.P. & Ors., 2014 Cri L.J. 470.
In reply, Mr. Moitra argued that in N.S. Gnaneswaran (supra) is not an authority for the proposition that the investigation is rendered illegal due to non registration of first information report at a police station. He further argued that in the said report the issue which cropped up was non supply of copy of the first information report to the informant and the present controversy did not fall for decision in the said report.
The issue which falls for decision in these appeals is whether the trial court was justified in acquitting the accused persons on the ground that the first information report in the aforesaid cases had not been registered at a police station notified by the State of West Bengal under Section 2(s) of the Code. It is undisputed that Central Bureau of Investigation had authority to investigate the offences in the instant case. It is also not in dispute that first information report was drawn up by an officer attached to Central Bureau of Investigation before commencing investigation. The bone of contention that the said first information reports in these cases were was drawn up at the office of the Central Bureau of Investigation and not in a police station notified by the State of West Bengal under Section 2(s) of the Code.
In N.S. Gnaneswaran (supra) similar issue had cropped up and the High Court while considering Sections 154/156 Cr.P.C. was of the opinion that failure to draw up the first information report in terms of the aforesaid provisions of law and supply a copy thereof to the informant rendered investigation illegal and consequential investigation was accordingly quashed.
In this factual background, the Apex Court formulated the following issues for consideration.
"3.1. Whether the High Court in the facts and circumstances of the case was justified in allowing the petition under Section 482 Cr.P.C.?
3.2. Whether an FIR registered on the basis of recorded information disclosing commission of cognizable offence and under Section 154(1) CrPC for the purposes of conducting investigation of the case under Sections 156 and 157 CrPC is permissible in law?
3.3. Whether the High Court in its impugned decision has correctly interpreted Section 154 CrPC with reference to its ambit and scope of and has correctly read the said section in juxtaposition with Sections 156 and 157 CrPC?"
While answering the aforesaid issues the Apex Court held as follows :-
26. In Shashikant v. CBI, in para 20, after referring to its earlier decision in State of U.P. v. Bhagwant Kishore Joshi referring to the provisions of Section 5-A of the Prevention of Corruption Act, this Court has opined:
(Shashikant case, SCC pp. 637-38) "20. ... '8. ... Even so the said police officer received a detailed information of the offences alleged to have been committed by the accused with necessary particulars, proceeded to the spot of the offence, ascertained the relevant facts by going through the railway records and submitted a report of the said acts. The said acts constituted an investigation within the meaning of the definition of "investigation" under Section 4(1) of the Code of Criminal Procedure as explained by this Court. The decisions cited by the learned counsel for the State in support of his contention that there was no investigation in the present case are rather wide off the mark. In Nandamuri Anandayya, In re a Division Bench of the Madras High Court held that an informal enquiry on the basis of a vague telegram was not an investigation within the meaning of Section 157 of the Code of Criminal Procedure. In M. Rangarajulu Naidu, In re Ramaswami, J. of the Madras High Court described the following three stages a policeman has to pass in a conspiracy case: (M. Rangarajulu Naidu, In re case, AIR pp. 371-72, para 29) "29. ... hears something of interest affecting the public security and which puts him on the alert; makes discreet enquiries, takes soundings and sets up informants and is in the second stage of qui vive or lookout; and finally gathers sufficient information enabling him to bite upon something definite and that is the stage when first information is recorded and when investigation starts."
This graphic description of the stages is only a restatement of the principle that a vague information or an irresponsible rumour would not in itself constitute information within the meaning of Section 154 of the Code or the basis for an investigation under Section 157 thereof. In State of Kerala v. M.J. Samuel a Full Bench of the Kerala High Court ruled that:
"it can be stated as a general principle that it is not every piece of information, however vague, indefinite and unauthenticated it may be that should be recorded as the first information for the sole reason that such information was the first, in point of time, to be received by the police regarding the commission of an offence."
The Full Bench also took care to make it clear that whether or not a statement would constitute the first information report in a case is a question of fact and would depend upon the circumstances of that case.' (Bhagwant Kishore Joshi case, AIR p. 224, para 8)
27. The said observations are made in the above decisions on the basis of the clarification made by this Court regarding the provisions of Sections 154, 156 and 157 CrPC in State of U.P. v. Bhagwant Kishore Joshi upon which CBI rightly placed reliance in justification of the procedure followed by CBI regarding the registration of FIR, the same is traceable to the procedure laid down in the CBI Manual, 2005, which has been prepared by CBI for registration of cases under the Delhi Special Police Establishment Act. Therefore, non-compliance with the mandatory provisions under Section 154 CrPC if the case is registered on the basis of the information received suo motu after specifying that the information reveals prima facie cognizable offence against the respondent herein and found that the matter is fit for investigation to be taken by the appellant herein, in not following the provisions of Section 154 does not vitiate the registration of FIR and further proceedings in the matter of registration. Therefore, the request made by the appellant to set aside the impugned order specifying the aforesaid procedure laid down under the Manual and also the decision of this Court referred to in Shashikant and not complying with the mandatory procedure under Section 154 does not vitiate the registration of FIR against the respondent and further there is no need for this Court to await the larger Bench decision on the issue in Lalita Kumari v. State of U.P."
Perusal of the aforesaid paragraphs would clearly show that legality of registration of first information report by Central Bureau of Investigation in terms of C.B.I. Manual vis-à-vis Section 154 Cr.P.C. fell for decision in the said report and was answered accordingly in paragraph 27 thereof. The Apex Court held non-compliance of mandatory provisions of Section 154 Cr.P.C. and adoption of a procedure of registration of first information report in terms of C.B.I. Manual, 2005 does not vitiate registration of first information report and further proceeding arising therefrom.
Relying on the aforesaid report in Binod Kumar Kabra -Vs.- State of West Bengal and Ors., (2015)2 C Cr.LR (Cal) 693, this Court had held as follows :-
"7. 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 F.I.R. 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 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 much status and empowerment is conferred on him by way of the aforesaid legal friction. 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 overwrite 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. "
Moreover, the view expressed in N.S. Gnaneswaran (supra) was approved by a Constitution Bench of the Apex Court in Lalita Kumari (supra) as follows:-
"79. Besides, learned senior counsel relied on the special procedures prescribed under the CBI manual to be read into Section 154. It is true that the concept of "preliminary inquiry" is contained in Chapter IX of the Crime Manual of the CBI. However, this Crime Manual is not a stature and has not been enacted by the legislature. It is a set of administrative orders issued for internal guidance of the CBI officers. It cannot supersede the Code. Moreover, in the absence of any indication to the contrary in the Code itself, the provisions of the CBI Crime Manual cannot be relied upon to import the concept of holding of preliminary inquiry in the scheme of the Code of Criminal Procedure. At this juncture, it is also pertinent to submit that the CBI is constituted under a Special Act, namely, the Delhi Special Police Establishment Act, 1946 and it derives its power to investigate from this Act.
80. It may be submitted that Sections 4(2) and 5 of the Code permit special procedures to be followed for special Acts. Section 4 of the Code lays down as under:
"Section 4. Trial of offences under the Indian Penal Code and other laws. (1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.
(2) All offences under any other law shall be investigated, inquired into, tried, and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences."
It is thus clear that for offences under laws other than IPC, different provisions can be laid down under a special Act to regulate the investigation, inquiry, trial etc., of those offences. Section 4(2) of the Code protects such special provisions.
81. Moreover, Section 5 of the Code lays down as under:
"Section 5. Saving - Notwithstanding contained in this Code shall, in the absence of a specific provision to the contrary, affect any special or local law for the time being in force, or any special jurisdiction or power conferred, by any other law for the time being in force."
Thus, special provisions contained in the DSPE Act relating to the powers of the CBI are protected also by Section 5 of the Code.
82. In view of the above specific provisions in the Code, the powers of the CBI under the DSPE Act, cannot be equated with the powers of the regular State Police under the Code."
It is, therefore, clear that power of the members of Central Bureau of Investigation under Delhi Special Police Establishment Act, 1946 cannot be equated with the powers of the regular police under the Code and the act of registration of the F.I.R. in terms of the C.B.I. Manual by an officer cannot be called into question on the ground that the First Information Report was lodged at the office of the Central Bureau of Investigation which is not notified as police station under Section 2(s) of the Code.
In view of the aforesaid law declared by the Constitution Bench the authorities cited by Mr. Moitra, I am of the opinion that the decisions are of little assistance.
In Central Bureau of Investigation through S.P. Jaipur -Vs.- State of Rajasthan & Anr., 2001 C Cr.L.R. (SC) 116, the Apex Court had held that a Magistrate in exercise of powers under Sections 156(3) Cr.P.C. could not direct a member of Central Bureau of Investigation to investigate a crime inasmuch as investigation done by an officer of the said agency cannot be said to be an investigation commenced by an officer in-charge of the police station in terms of Section 156(1) Cr. P.C. The ratio of the said report, in fact, supports the contention of Mr. Ali that the powers of the officers of the Central Bureau of Investigation are derivable from the Delhi Special Police Establishment Act, 1946 and investigation commenced by them cannot be said to be an investigation under Section 156(1) Cr.P.C. If that were so, then the question of registration of F.I.R. at a police station notified by the State of West Bengal under section 2(s) of the Code cannot be said to be a sine qua non for commencement of investigation by a member of the central agency under the DSPE Act, 1946.
In State of West Bengal & Ors. -Vs.- Committee for Protection of Democratic Rights, West Bengal and Ors., (2010)2 SCC (Cri) 401, the Apex Court had held that the Constitutional powers of the Supreme Court and the High Courts under Article 32 and 226 of the Constitution of India were wide enough to direct the members of the Central Bureau of Investigation to commence investigation in cases where the State had not given consent under section 6 of the Delhi Special Police Establishment Act, 1946. The aforesaid report, however, did not equate the members of the central agency with that of the state police so as to necessitate them to register of first information report at a local police station notified by the State of West Bengal for commencing investigation and, therefore, clearly the said report is of no help to the accused persons.
In Sharanappa -Vs.- State of Karnataka, 2016 Cri L.J. 764, the Karnataka High Court had held that a Vigilance cell of the High Court was not a police station and the enquiry conducted by the officers of the Vigilance cell could not be held to be an investigation under the Code of Criminal Procedure. In the instant cases, the investigations were conducted by members of the Delhi Special Police Establishment Act, 1946 who have ample powers to conduct such investigations. That apart, as the first information reports were registered in terms of the C.B.I. Manual, I hold that the ratio of this report is inapplicable to the facts of the these cases.
In Srimanta Manna -Vs.- The State, AIR 1960 Cal.519, an information given to the beat house was not construed to be a first information report as the beat house was not notified as a police station. However, on that premise acquittal had not been recorded in the said case but a subsequent report was treated as the first information report. Hence, the ratio of the said report is of no assistance to the accused persons in the factual matrix of these cases.
In Dr. S.M. Kaligudd and Ors. -Vs.- State of Karnataka & Ors., 1998 Cri L.J. 1183, a police station which was notified for a specialized category of offences was held not to be a police station for the purpose of registration of first information report under other offences. As I have held that Central Bureau of Investigation is empowered to register first information report in terms of its Manual under the provisions of Delhi Special Police Establishment Act, 1946, the ratio of the said decision in inapplicable to the instant cases.
In view of the aforesaid discussion, I am of the opinion that the learned Judge erred in law in coming to a finding that the prosecutions against the appellants were void ab initio as the first information reports had not been registered at a police station notified by the State of West Bengal. Hence the orders of acquittal are liable to be set aside.
Before conclusion I would like to record my disapproval as to the procedure adopted by the learned Judge in conducting the trial in the instant case. In all these cases, charges had been framed and trial was in progress. Once the trial is in progress, it is not within the ambit of a trial court to prematurely foreclose a trial save and except the manner as laid down in the Code. There is nothing in the Code which empowers the trial court to exercise its inherent power to acquit the accused person even before conclusion of prosecution evidence. Only in rare cases, where after taking the prosecution evidence and examining the accused but before the accused enters his defence, if the Judge considers that the case is one of "no evidence", he may record an order of acquittal under section 232 of the Code.
Such a situation had not come into being in the instant cases. On the other hand, the learned trial Judge before conclusion of prosecution evidence and in some cases even before the commencement of such evidence, recorded the impugned orders of acquittal on the ground that the first information reports had not been registered properly. Such course adopted by the Judge is clearly contrary to the Code and without any sanction of law whatsoever.
It must be borne in mind that the trial Court does not possess inherent powers arbitrary to section 151 Civil Procedure Code and cannot invent a new procedure which is unknown to the Code of Criminal Procedure in the matter of conducting trial of criminal cases.
For the aforesaid reasons, I set aside the orders of acquittal passed by the learned Judge.
In view of the fact that prosecution are pending for about a decade, I direct the trial court to take all necessary steps to proceed with the trial from the stages they had arrived at and to conclude them at an early date without granting any unnecessary adjournment to either of the parties.
All the appeals are allowed.
Let photostat certified copy of this order be given to the parties, if applied for, on urgent basis upon compliance of all formalities.
(Joymalya Bagchi, J.) ss. & PA to J. Bagchi, J.
249-253