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[Cites 30, Cited by 0]

Madras High Court

K.Srinivasan vs Deputy Superintendent Of Police on 22 July, 2009

Author: G.Rajasuria

Bench: G.Rajasuria

       

  

  

 
 
 IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED:22.07.2009
CORAM:
THE HONOURABLE MR.JUSTICE G.RAJASURIA
Crl.R.C.No.106 of 2007

K.Srinivasan						  	    ...  Petitioner 
vs.
Deputy Superintendent of Police
CBI, SCB Chennai.						            ...  Respondent

Prayer:  Petition filed under Section 397 and 401 of Cr.P.C. against the order dated 13.04.2006 passed by the Additional Chief Metropolitan Magistrate E.O.II, Egmore, Chennai in Crl.M.P.No.322 of 2006.

		For Petitioner 	: Mr.B.Kumar,S.C.
					 For Mr.S.Peer Mohamed

		For Respondent	: Mr.N.Chandra Sekaran,( Spl.P.P.for CBI)
		
		   		O R D E R

Animadverting upon the order dated 13.04.2006 passed by the Additional Chief Metropolitan Magistrate E.O.II, Egmore, Chennai in Crl.M.P.No.322 of 2006, this criminal revision is focussed.

2. A 'resume' of facts which are absolutely necessary and germane for the disposal of this revision would run thus:

The Deputy Superintendent of CBI, SCB, Chennai lodged the complaint before the Additional Chief Metropolitan Magistrate, E.O.II, Chennai as against as many as eight persons. At the stage of framing charge, the revision petitioner herein/A7 filed Crl.M.P.No.322 of 2006 under Section 239 of Cr.P.C. for discharging him from the case. Whereupon after hearing both sides, the learned Magistrate dismissed the application.

3. Being aggrieved by and dissatisfied with the order of the lower Court, this revision is filed on various grounds, the gist and kernel of them would run thus:

The learned Magistrate failed to consider that the charges levelled as against the revision petitioner are groundless without any material, the CBI has chosen to lodge the complaint as against the revision petitioner also. No recovery of article or material from the petitioner was effected simply because one approver, namely Sambandam, in this case implicated the petitioner in a vague manner, CBI roped him also at the belated stage in this case.

4. Even A1 has not implicated the petitioner herein. Nonetheless with asperity, CBI roped in A7. There is nothing to clue up CBI to fasten A7 with criminal liability. As such, without proper materials, the learned Magistrate decided to frame charges as against A7 also, which is against law. However, during the pendency of this revision, a petition has been filed to raise additional grounds of revision. The additional grounds of revision would run thus:

CBI had no jurisdiction to investigate the offence under Section 3 of the Delhi Special Police Establishment Act, 1946. The CBI can investigate into the offences which could normally be investigated by police officers and not relating to offences which could only be investigated by the customs officers unless CBI officer is specially empowered in that behalf. As such, the investigation conducted consequent to the filing of the complaint is vitiated. The procedure adopted by the CBI is illegal and without any back up of the law. The Collector under Section 137 of the Customs Act cannot empower a person other than a customs officer to file a complaint under the Customs Act. Accordingly, the revision petitioner prayed for setting aside the order of the lower Court, by allowing Crl.M.P.No.322 of 2006 and also for quashing the complaint filed by the CBI as against the revision petitioner. Since CBI counsel took notice of that petition. In the interest of justice, the revision petitioner is also permitted to raise the additional grounds also.

5. Heard both sides at length. The learned Senior Counsel for the revision petitioner has made a submission that he restricts his argument only based on the additional grounds of revision filed by him.

6. The points for consideration are as to:

(1) Whether CBI possesses no jurisdiction to investigate into the customs offences without obtaining authorisation or empowerment from the Board of Revenue as contemplated under the Customs Act and lay the police report like a Customs Officer?
(2) Whether the Collector had no authority to sanction the CBI to lodge the complaint?

POINT NO.1:

7. At this juncture, I would like to narrate the background of the case:

The customs officials initiated action relating to the smuggling of sandalwood by some of the accused persons and in that connection, a few accused were arrested and detained. Whereupon, those accused persons, namely, Syed Kaleemullah, R.D.Sethuraman and Chandrasekaran also filed Crl.O.P.Nos.5540 of 1993 etc., batch, seeking bail. This Court, while dismissing the bail applications, by order dated 18.05.1993, directed as under:
"The CBI is directed to take take up investigation in this mamooth crime forthwith and forward a final report in accordance with law."

Whereupon, CBI took up the matter and investigated into the crime and after obtaining sanction from the Collector, lodged the complaint before the Magistrate concerned, who took cognizance of the offences.

8. Animadverting upon the very investigation conducted by the CBI, the learned Senior Counsel for the revision petitioner would set forth and put forth his argument as under:

Simply because the Central Government published two Notifications under the Delhi Special Police Establishment Act, 1946, empowering the CBI to investigate into the offences under the Customs Act, that does not mean that automatically they acquired the power to investigate without obtaining necessary authorisation from the said Board. Merely because this Court vide the order dated 18.05.1993 directed the CBI to investigate, the CBI was not absolved from its responsibility to approach the Board and get authorisation or empowerment to investigate into the offence under the Customs Act. The CBI official being a police officer can only act as a police officer and not as a customs officer, that is the purport of Sections 3 and 5 of the Delhi Special Police Establishments Act and the notifications made thereunder.

9. The Court in its previous order dated 18.05.1993 passed direction without hearing both sides on the issue relating to directing CBI to investigate into the matter. Virtually the High Court's order tantamounts to transfer of interrogation from the customs officer to CBI which should not have been passed without hearing the accused on that point. The revision petitioner/A7 was not at all a party in the said bail applications. He was roped in only at the time of filing the charge sheet. He did not have the opportunity to prefer appeal or SLP as against the said order of this Court directing further investigation. On coming to know of such a direction by this Court, he now agitates before this Court which has got ample powers not only under Section 401 of Cr.P.C., but also under Sections 482 and 483 Cr.P.C. The non investigation by the statutory authority, namely the customs officer affected the fundamental right of the revision petitioner and it is in violation of Articles 14 and 21 of the Indian constitution. When the statutory provision is to the effect that an investigation has to be conducted in a particular manner, the accused without proving in what manner he is prejudiced, is entitled to get the investigation conducted as well as the subsequent filing of the complaint quashed. Failure of justice and prejudice are presumed once an agency which is not empowered to investigate and file the complaint did so. The revision petitioner cannot be compelled to undergo the ordeal of trial, when the very investigation itself is fraught with illegality and impropriety. The order dated 18.05.1993 passed by this Court is only per incuriam and this Court is not bound by it. Further more, the decision of the Hon'ble Apex Court reported in 1996 Crl.L.J.3480 [Central Bureau of Investigation v. State of Rajastan and others] (in short Rajasthan case) would clearly point out that the notifications referred to supra passed by the Central Government are not enough and it should be followed by special issuance of notification by the Board concerned empowering CBI to investigate into the offence. This Court while exercising its powers now based on the decision of the Hon'ble Apex Court, can simply ignore the earlier direction given by this Court as per incuriam and discharge the accused from the case concerned.

10. Per contra, denying and refuting, challenging and impugning the arguments projected on the side of the revision petitioner, the learned Special Public Prosecutor, (CBI), would advance and put forth his arguments as under:

CBI was bound by the Court order dated 18.05.1993 and it cannot commit contempt of Court by taking a stand that this Court had no power to direct CBI and that CBI would not investigate into the crime. The notifications referred to supra passed by the Central Government amply empower the CBI to investigate even into the customs offences under the Customs Act and various other special enactments. Once higher authority, namely, the Central Government itself empowered CBI to investigate into the offences under special enactment, viz. the Customs Act, the question of CBI going and approaching the authorities under the Customs Act, seeking permission to investigate under those special enactments would be merely a futile exercise and it would be an empty formality also. In the recent decision of the Hon'ble Apex Court reported in (2006) 3 SCC (cri) 233 [Central Bureau of Investigation v. Ravi Shankar Srivastava, IAS and another], the earlier judgment of the Apex Court referred to by the learned Senior Counsel for the revision petitioner was not followed, but still an earliest judgment of the Supreme Court reported in AIR 1961 SC 1762 [Major E.G.Barsay v. State of Bombay] was followed by pointing out that the point raised on the side of the revision petitioner was no more res integra. Even though the complaint was filed as early as in the year 1998 and the revision petitioner was in receipt of the summons during 1998 itself, nonetheless, he kept quiet and only during the year 2006, he did choose to file the M.P. for discharge and over and above that, only during the year 2009, by way of additional grounds, he chose to challenge the very capacity and propriety of CBI who investigated into the offence and these pleas are also untenable due to laches on the part of the petitioner. According to the Special Public Prosecutor, the accused person in this case, constantly, interminably and unremittingly, one after another resort to dilatory tactics of filing petition after petition and delaying the matter being proceeded further by the trial Court.

11. In this factual matrix, it is just and necessary to analyse each and every objection and contention raised by the revision petitioner.

12. At the first instance, I would like to refer to the order dated 18.05.1993 passed by this Court. While I am exercising my powers in this revision, I am only acting as successor to the then Hon'ble Judge who passed the said order as above directing the CBI to take up the investigation. It is not a precedent of a single Judge of this Court cited before me for being followed; if so at least the revision petitioner could invoke that concept "per incuriam". I would like to distinguish and differentiate a precedent being cited and describing the said precedent for being ignored on the basis of the principle "per incuriam" from that of the order which emerged earlier in the course of the same proceedings. The distinction which I try to make is one not that of tweedledum and tweedledee, but it is one that of chalk and cheese. The said order dated 18.05.1993 passed by my learned predecessor was made in the same matter earlier and that constitutes an earlier step ordered by this Court in this case. In such a case, in the same matter, that earlier order cannot be termed as "judgment/order per incuriam" and I, being the successor Judge cannot hold, that the previous order of my learned Predecessor was no order at all, as per the concept "per incuriam." That concept per incuriam emerges only under law of precedents.

13. At this juncture, I would like to extract the relevant portion relating to per incuriam in Salmond's jurisprudence 12th edition:

(3) Ignorance of statute: A precedent is not binding if it was rendered in ignorance of a statute or a rule having the force of statute, i.e., delegated legislation. This rule was laid down for the House of Lords by Lord Halsbury in the leading case, and for the Court of Appeal it was given as the leading example of a decision per incuriam which would not be binding on the court. The rule apparently applies even though the earlier court knew of the statute in question, if it did not refer to, and had not present to its mind, the precise terms of the statute. Similarly, a court may know of the existence of a statute and yet not appreciate its relevance to the matter in hand; such a mistake is again such incuria as to vitiate the decision. Even a lower court can impugn a precedent on such grounds.

The mere fact that (as is contended) the earlier court misconstrued a statute, or ignored a rule of construction, is no ground for impugning the authority of the precedent. A precedent on the construction of a statute is as much binding as any other, and the fact that it was mistaken in its reasoning does not destroy its binding force.

(4) Inconsistency with earlier decision of higher court. It is clear law that a precedent loses its binding force if the court that decided it overlooked an inconsistent decision of a higher court. If, for example, the Court of Appeal decides a case in ignorance of a decision of the House of Lords which went the other way, the decision of the Court of Appeal is per incuriam, and is not binding either on itself or on lower courts; on the contrary, it is the decision of the House of Lords that is binding. The same rule applies to precedents in other courts, such as the Divisional Court.

(5) Inconsistency between earlier decisions of the same rank. A court is not bound by its own previous decisions that are in conflict with one another. This rule has been laid down in the Court of Appeal, Court of Criminal Appea and Divisional Court, and it obviously applies also to the House of Lords. There may at first sight seem to be a difficulty here; how can a situation of conflict occur, if the court is bound by its own decisions? At least two answers may be given. First, the conflicting decisions may come from a time before the binding force of precedent was recognised. Secondly, and more commonly, the conflict may have arisen through inadvertence, because the earlier case was not cited in the later. Owing to the vast number of precedents, and the heterogeneous ways in which they are reported  or are not reported  it is only too easy for counsel to miss a relevant authority. Whenever a relevant prior decision is not cited before the court, or mentioned in the judgments, it must be assumed that the court acts in ignorance or forgetfulness of it. If the new decision is in conflict with the old, it is given per incuriam and is not binding on a later court.

Although the later court is not bound by the decision so given per incuriam, this does not mean that it is bound by the first case. Perhaps in strict logic the first case should be binding, since it should never have been departed from, and was only departed from per incuriam. However, this is not the rule. The rule is that where there are previous inconsistent decisions of its own, the court is free to follow either. It can follow the earlier, but equally, if it thinks fit, it can follow the later. This rule has been laid down for the Court of Appeal, and it is submitted that it applies also to other courts. It will be seen, therefore, that this exception to the binding force of precedent belongs both to the category of abrogation by subsequent facts and to the category of what is here called inherent vice. The earlier case the court before whom the precedent is cited may be reluctant to hold that its predecessor failed to consider a point directly raised in the case before it, and this reluctance will be particularly pronounced if the sub silentio attack is levelled against not one case but a series."

14. As such, I cannot countenance and uphold the argument of the learned Senior counsel for the revision petitioner that the said order dated 18.05.1993 passed by my learned Predecessor directing CBI to investigate into the matter should be treated as per incuriam by me, while in the same matter I am exercising my powers as successor to my learned Predecessor. To the risk of repetition, without being tautologous I would hold that the earlier decision dated 18.05.1993 by my learned Predecessor cannot be termed as per incuriam by ushering the said concept "per incuriam" which forms part of the realm of "law of precedents". Not to put too fine a point on it, the judgment of a Court can be bye passed by ushering the concept per incuriam, but the earlier order passed in one and the same matter cannot be bye passed by the same Court on the ground of per incuriam.

15. Day in and day out, it is the practice of this Court to give direction to CBI to investigate into serious cases and the said order dated 18.05.1993, was one in that line. However, the learned Senior Counsel for the revision petitioner placed reliance on the aforesaid decision reported in Rajasthan case (1996 Crl.L.J.3480) and developed his argument that already the Hon'ble Apex Court clearly held that in a case relating to FERA, that the aforesaid two notifications of the Central Government would not be sufficient and over and above that, empowerment of CBI by the authority concerned under FERA is required.

16. The learned Special Public Prosecutor tried to distinguish and differentiate the said judgment of the Hon'ble Apex Court on various grounds. At the first instance, he would like to point out that the cited decision emerged in relating to a set of facts where CBI attempted to investigate in a foreign country without authorisation of the Central Government and in that factual matrix, it emerged. It is also the contention of the learned Special Public Prosecutor that the recent judgment of the Hon'ble Apex Court in (2006) 3 SCC (Cri) 233 (cited supra) virtually did not follow the judgment in Rajasthan case (1996 Crl.L.J.3480), but followed the earlier judgment. There is considerable force in the submission made by the learned Special Public Prosecutor on this aspect. It is therefore just and necessary to extract hereunder the relevant portion of the decision reported in (2006) 3 SCC (cri) 233 [Central Bureau of Investigation v. Ravi Shankar Srivastava, IAS and another] . Certain excerpts from it would run thus:

"11. Coming to the question as to whether specific order in respect of each of the officer, the position is no longer res integra. In CBI v. State of Rajasthan it was held as follows: paras 21-23 & 27) 21. On a careful consideration of the facts and circumstances of the case and submissions made by the learned counsel for the parties, it appears to us that under Section 3 of the DSPE Act, the Central Government may, by notification, specify the offences which are to be investigated by the members of DSPE. It is not disputed that notification under Section 3 of the DSPE Act has been issued by the Central Government specifying the offences under FERA to be investigated by the members of DSPE. It is also not in dispute that a notification dated 26-10-1977 by the Government of India, Ministry of Home Affairs, Department of Personnel and Administrative Reforms, has been issued in exercise of the powers conferred by sub-section (1) of Section 5 read with Section 6 of the DSPE Act. By the said notification the Central Government, with consent of the various State Governments as mentioned in the said notification including the State Government of Rajasthan, has extended the powers and jurisdiction of the members of DSPE, inter alia, to the State of Rajasthan for the investigation of the offences specified in the Schedule to the said notification. In the Schedule under clause (a), offences punishable under the FERA and under clause (b) attempts, abetments and conspiracies in relation to or in connection with any offence mentioned in clause (a) and any other offence committed in the course of the same transaction arising out of the same facts have been mentioned.
22. It is, however, to be noted that under Section 2 of the DSPE Act, the Central Government has been empowered to constitute a special police force to be called DSPE for the investigation in any Union Territory of offences notified under Section 3. Under Section 5(1) of the DSPE Act the Central Government may by order extend to any area including railway areas in a State, not being Union Territory, the powers and jurisdiction of the members of DSPE for the investigation of any of the offences or classes of offences specified in a notification under Section 3. Under Section 5(2), when by an order under sub-section (1), the powers and jurisdiction of the members of the said police establishment are extended to any such area, a member thereof may, subject to any order 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.
23. It is quite evident that members of DSPE are members of special police force constituted under Section 2 of the DSPE Act by the Central Government. The question that arises for decision in this case is whether or not a member of DSPE, which is also a member of special police force constituted by the Central Government, even if authorised under Section 3 and Section 5 of the DSPE Act to investigate in respect of offences under FERA in a particular State other than the Union Territory, with the consent of such State Government, can investigate the offences for violation of FERA, more so, when the offence is alleged to have been committed outside Indian territory. It will be apposite at this stage to refer to the provisions of Sections 3, 4 and 5 of FERA:
3. Classes of officers of Enforcement.There shall be the following classes of officers of Enforcement, namely
(a) Directors of Enforcement;

(b) Additional Directors of Enforcement;

(c) Deputy Directors of Enforcement;

(d) Assistant Directors of Enforcement;

(e) such other class of officers of Enforcement as may be appointed for the purposes of this Act.

4. Appointment and powers of officers of Enforcement.(1) The Central Government may appoint such persons as it thinks fit to be officers of Enforcement.

(2) Without prejudice to the provisions of sub-section (1), the Central Government may authorise a Director of Enforcement or an Additional Director of Enforcement or a Deputy Director of Enforcement or an Assistant Director of Enforcement to appoint officers of Enforcement below the rank of an Assistant Director of Enforcement.

(3) Subject to such conditions and limitations as the Central Government may impose, an officer of Enforcement may exercise the powers and discharge the duties conferred or imposed on him under this Act.

5. Entrustment of functions of Director or other officer of Enforcement.The Central Government may, by order and subject to such conditions and limitations as it thinks fit to impose, authorise any officer of Customs or any Central Excise Officer or any police officer or any other officer of the Central Government or a State Government to exercise such of the powers and discharge such of the duties of the Director of Enforcement or any other officer of Enforcement under this Act as may be specified in the order.

27. In our view, such notifications under Sections 3 and 5 of the DSPE Act are necessary for the purpose of exercising powers by a member of DSPE in respect of offence or offences and in respect of areas outside the Union Territory. It may however be noted here that by a general notification, members of DSPE may be authorised to exercise power of investigation in respect of offence or offences and in areas as specified in the notification under Sections 3 and 5. As already indicated, although officers of Enforcement Directorate are clothed with the powers and duties to enforce implementation of the provisions of FERA, the Central Government has been authorised to impose on other officers including a police officer, power and authority to discharge such of the duties and functions as may be specified by it. It is nobodys case that any notification has been issued under FERA authorising the member of DSPE to discharge the duties and functions of an officer of Enforcement Directorate. In our view, in the absence of such notification under FERA, a member of DSPE, despite the aforesaid notifications under Sections 3 and 5 of the DSPE Act, cannot be held to be an officer under FERA and therefore is not competent to investigate into the offences under FERA. (emphasis in original)

12. Nearly four decades back the position was succinctly stated by this Court in Major E.G. Barsay v. State of Bombay at AIR para 29 as follows:

It was contended before the High Court and it was repeated before us that the consent should have been given to every individual member of the Special Police Establishment and that a general consent would not be a good consent. We do not see any force in this argument. Under Section 6 of the Delhi Special Police Establishment Act, no member of the said Establishment can exercise powers and jurisdiction in any area in a State without the consent of the Government of that State. That section does not lay down that every member of the said Establishment should be specifically authorised to exercise jurisdiction in that area, though the State Government can do so. When a State Government can authorise a single officer to exercise the said jurisdiction, we do not see any legal objection why it could not authorise the entire force operating in that area belonging to that Establishment to make such investigation. The authorisation filed in this case sufficiently complies with the provisions of Section 6 of the Delhi Special Police Establishment Act, 1946, and there are no merits in this contention.
17. A plain reading of the above excerpts would display and demonstrate that in the said recent judgment, the Hon'ble Apex Court has not chosen to place reliance on Rajasthan case (1996 Crl.L.J.3480), but preferred to place reliance on the earlier decision of the Hon'ble Apex Court reported in AIR 1961 SC 1762 (cited supra). The learned Special Public Prosecutor also convincingly submitted one point to the effect that as on the date of my learned Predecessor passing the order dated 18.05.1993, the decision of the Hon'ble Apex Court in Rajasthan case did not emerge, and it is quiet obvious from the respective dates referred to supra. However, my learned Predecessor having in his mind, the earlier decision of the Hon'ble Apex Court reported in AIR 1961 SC 1762, might have passed such direction. The learned Senior Counsel for the revision petitioner would try to torpedo the argument of the learned Special Public Prosecutor by pointing out that no "prospective over ruling" theory could be ushered in relating to the judgment of the Apex Court in Rajasthan case reported in 1996 Crl.L.J.3480. I would like to point out that as on the date of my learned Predecessor passing the order, the decision in Rajasthan case did not emerge.
18. Based on this Court's order dated 18.05.1993, CBI had already started the investigation and the expectation of the revision petitioner is that no sooner the decision of the Apex Court in Rajasthan case emerged declaring the existing law, CBI atleast at that point of time i.e. in the year 1996 should have taken remedial measures, but they did not do so, but they proceeded with the investigation.
19. At this juncture, avoiding discursive discussion, it has to be pointed out that the investigation already commenced based on the direction of this Court which was presumably based on the earlier decision of the Apex Court reported in AIR 1961 SC 1762, cannot be rendered nugatory by citing the subsequent decision of the Apex Court and that too when the recent judgment of the Apex Court reported in (2006) 3 SCC (cri) 233 follows only the earliest judgment of the Apex Court reported in AIR 1961 SC 1762. In the facts involved in the Rajasthan case, there was no High Court direction to CBI to investigate into the matter, however, the factual matrix in that case was to the effect that CBI approached initially the Chief Judicial Magistrate concerned seeking permission to investigate a case under the FERA Act, which describes the offences as non-cognizable. The Chief Judicial Magistrate rejected the request of CBI, whereupon CBI approached the High Court, which also rejected the request and thereafter, they approached the Supreme Court, which also rejected the request of the CBI. But here, the very investigation itself had been started by CBI only on the direction of this Court and as such, while this Court exercising its revision power now, as against the order passed by the Magistrate dismissing the CMP, cannot have a volte face and turn turtle and that too quite antithetical to what this Court directed earlier on 18.05.1993, and decide as though the said earlier order is bad in law.
20. My mind is redolent and reminiscent of the following maxims:
1. Actus Curiae Neminem Gravabit [An act of the Court shall prejudice no man].
2. Actus Legis Nemini Est Damnosus [An act in law shall prejudice no man].
3. Executio Juris Non Habet Injuriam [Legal process, if regular, does not afford a cause of action].
21. However, the learned Senior Counsel for the revision petitioner would submit that this Court's very order passed by my learned Predecessor was not having the back up of law and it is deemed to have prejudiced the revision petitioner. To the risk of repetition and pleonasm, but without being tautologous, I would like to point out that the said order of this Court was passed as early as in the year 1993, the revision petitioner/A7 was served with accused summons in the year 1998, but he has waited for nearly eight years or so to file M.P.No.322 of 2006. Over and above that, during the pendency of the Crl.R.C. Alone, i.e., in the year 2009, these additional grounds have been filed impugning and challenging the order of this Court directing investigation by CBI. The learned Senior Counsel for the revision petitioner would point out that any stage, before framing of charge and even thereafter, an accused can challenge if the investigation done is faulty and illegal and cuts at the very root of the matter. Here, I would like to point out alternis visbus as to what was missing as per the decision of the Hon'ble Apex Court reported in 1996 Crl.L.J.3480, in getting empowerment by the CBI from the said Board, was supplied by this Court as per its order dated 18.05.1993. It would be wrong on the part of the revision petitioner to expect that this Court's order could be made meaningful and enforceable only after the authorisation from the lower authority, namely the said Board.
22. The learned Senior Counsel for the revision petitioner cited the following decision of the Apex Court to point out that when a procedure is contemplated under law, non adherence to that procedure would be in violation of Articles 14 and 21 of the Indian Constitution. In this connection, the decision of the Hon'ble Apex Court reported in (1988) 2 SCC 602 [A.R.Antulay v. R.S.Nayak and another] has been cited.
23. The learned Senior Counsel for the petitioner would point out that earlier in Antulay's case, five Bench decision of the Apex Court ordered a single High Court judge should be empowered as the special Judge under the Prevention of Corruption Act to try the case concerned. Subsequently when the accused challenged it, the Hon'ble nine Bench decision of the Apex Court by its majority decision felt that the earlier order of the Hon'ble Apex Court, bye passed and ignored the valuable right of the accused losing one appeal in the event of conviction. No doubt absolutely there can be no quarrel over such a proposition, as right of Appeal is a valuable right and in the earlier order of the Hon'ble Apex Court, that was denied to the accused and hence the Hon'ble Apex Court, by its majority decision, subsequently revised the said order. But the ratio decidendi as well as the observation in that case, cannot be pressed into service in the facts and circumstances of this case as it is quite obvious here, that it is this High Court which directed the CBI to investigate and thereupon CBI conducted the investigation and filed the complaint and it cannot now be, at this distant point of time, challenged by the revision petitioner.
24. The one other decision cited on the side of the revision petitioner is reported in (2000)8 SCC 590 [Roy V.D. v. State of Kerala]. The learned Senior Counsel for the revision petitioner would by placing reliance on the said judgment point out that under the NDPS Act, the Apex Court held that if any investigation is commenced by an unauthorised officer, then the investigation is illegal.
25. I would like to distinguish and differentiate the said judgment to the facts and circumstances of this case, as here over and above what the Central Grovernment empowered CBI to investigate into the customs offences, the High Court au fait with law and au courant with facts actually by virtue of its powers directed the CBI to investigate into the case for the reason that a mammoth crime was committed and that it should be investigated properly by the highest investigating agency in India, namely CBI.
26. Here customs officials initiated the action and the CBI took up the matter as per this Court's order. Infact the interest of the accused is well protected by the highest investigating agency probing into the matter. If the authority lower than the authority contemplated under the Act is authorised to investigate, then certainly some rethinking is required. But on the other hand, CBI is an organisation which has the requisite wherewithal to investigate deeply into the customs offences and also the allied IPC offences in this case and simply because the customs officials have not investigated into the matter, it cannot be found fault with.
27. There is also one other point which I would like to highlight that the accused is having no vested right that the offences under the Customs Act should be investigated only by the Customs officials, for the reason that already the Central Government by virtue of delegated legislation passed the said two notifications that CBI could investigate those offences. At the most, what the revision petitioner expects is a formal authorisation to CBI by the Board. Hence the question of the accused insisting that the offence as against him should be investigated only by customs official is beyond the question.
28. In this case the gist and kernel, the pith and marrow, the warp and woof of the contention on the side of the revision petitioner, which I could understand, is that the CBI officials should have approached the said Board for getting the formal authorisation. The question arises whether the Board of Revenue could have refused such authorisation quite against the direction given by this Court dated 18.05.1993. Certainly the Board had no power to decide as against this Court's order. When such is the situation, as against the order of the Court which marked CBI out for investigation into such mammoth, elephentine and braggadocion chessman type of crime, the Board of Revenue could not have refused authorisation to the CBI, consequently and as a sequela what follows logically is that the insistence of the revision petitioner for a Board order empowering CBI to investigate is untenable. Wherefore, I could see no merit in the contention on the side of the revision petitioner.
29. The learned Special Public Prosecutor would also cite the decision of the Apex Court reported in 1998 (1) SCC 226 [Vineet Narain and others v. Union of India and another]. An excerpt from it would run thus:
"40. It is, therefore, the notification made by the Central Government under Section 3 which confers and determines the jurisdiction of the CBI to investigate an offence; and once that jurisdiction is attracted by virtue of the notification under Section 3, the actual investigation is to be governed by the statutory provisions under the general law applicable to such investigations. This appears to us the proper construction of Section 4(1) in the context, and it is in harmony with the scheme of the Act, and Section 3 in particular. The word superintendence in Section 4(1) cannot be construed in a wider sense to permit supervision of the actual investigation of an offence by the CBI contrary to the manner provided by the statutory provisions. The broad proposition urged on behalf of the Union of India that it can issue any directive to the CBI to curtail or inhibit its jurisdiction to investigate an offence specified in the notification issued under Section 3 by a directive under Section 4(1) of the Act cannot be accepted. The jurisdiction of the CBI to investigate an offence is to be determined with reference to the notification issued under Section 3 and not by any separate order not having that character."
30. The above dictum of the High Court would highlight that once CBI is empowered to investigate into the offence it has got the powers to investigate as per the general law. There could be no quarrel over such a proposition cited by him.
31. The learned Senior Counsel for the revision petitioner would also cite the one other decision of the Hon'ble Apex Court reported in 1997 SC 987 [Krishnan and another v. Krishnaveni and another] an excerpt from it would run thus:
"14. In view of the above discussion, we hold that though the revision before the High Court under sub-section (1) of S.397 is prohibited by sub-section (3) thereof, inherent power of the High Court is still available under S.482 of the Code and as it is paramount power of continuous superintendence of the High Court under S.483, the High is justified in interfering with the order leading to miscarriage of justice and in setting aside the order of the Courts below. It remitted the case to the Magistrate for decision on merits after consideration of the evidence. We make it clear that we have not gone into the merits of the case. Since the High Court has left the matter to be considered by the Magistrate, it would be inappropriate at this stage to go into that question. We have only considered the issue of power and revisional power u/s 397(1) read with S.397(3) and the inherent powers. We do not find any justification warranting interference in the appeal."

A plain reading of the said decision would highlight and spotlight the fact that the Court could entertain even second revision application if situation warrants. Absolutely there is no doubt about such a proposition. In view of the ratiocination adhered to by me supra, that there was nothing wrong in the direction of this Court dated 18.05.1993 and that there is also nothing wrong on the part of the CBI in not obtaining specific approval or empowerment from the Board in the special circumstances of this case, I am not inclined to quash or set aside the order of the lower Court.

32. The learned Senior Counsel for the revision petitioner would also submit that as per Section 137 of the Customs Act, the Collector himself was not empowered to issue sanction order to the CBI to lodge the complaint and furthermore, in this case, sanction was not given to CBI specifically also. When the Central Government itself contemplates CBI also could investigate, the question of Collector not having the power to sanction to CBI to prosecute the offender, does not arise at all. The fact remains that as per the order of this Court alone, the CBI investigated into the offence and considering the same, the Collector issued sanction in the normal circumstances, as though the Customs Officer investigated into the offence. In my opinion, there are also laches on the part of the petitioner in raising all these points, as absolutely there is no rhyme or reason on the part of the revision petitioner in challenging the very investigation, belatedly after receipt of summons in the year 1998 and virtually this revision is antithetical to pie ponderous. It is a trite proposition of law that trial in matters of this nature, should be conducted speedily, but it is otherwise , so far this case is concerned. Hence in the result, I am of the considered opinion that there is no merit in this revision case and it is dismissed. This revision is turned out to be an ill wind that blew no one any good.

gms To

1. The Additional Chief Metropolitan Magistrate E.O.II, Egmore, Chennai

2. The Public Prosecutor, Madras