Powers of CBI Special Judge
Powers of CBI Special Judge
Powers of CBI Special Judge
com
..... Petitioner
Ms. Sonia Mathur, Standing Counsel
for CBI with Mr. Sushil Dubey, Adv.
versus
R.K. YADAV
Through:
..... Respondent
Mr. SatishTamta, Advocate
CBI
Through:
..... Petitioner
Ms. Sonia Mathur, Standing Counsel
for CBI with Mr. Sushil Dubey, Adv.
versus
..... Respondent
Mr. Dinesh Malik, Advocate
CORAM:
HONBLE MR JUSTICE SIDDHARTH MRIDUL
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JUDGMENT
SIDDHARTH MRIDUL, J
1.
The present petitions raise a common issue of law and are being
disposed of by this common order. By way of the present writ petitions, the
Central Bureau of Investigation (hereinafter referred to as the CBI) assails
the orders passed by Special Judge, CBI dated 18.02.2013 and 07.05.2014
whereby the CBI was directed to conduct investigation and proceed with the
complaint of the respondents herein.
2.
follows:A.
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D.
filed
an
application
under
Right
to
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any enquiry. Hence, the same was dropped and the file
pertaining to his complaint was not traceable.
F.
3.
follows:A.
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C.
In this regard, a
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D.
E.
F.
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H.
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Ms. Sonia Mathur, learned Standing Counsel appearing for the CBI
contended that the orders impugned herein passed by the learned Special
Judge, CBI are in complete violation of the principle of law laid down by the
Honble Supreme Court in CBI vs. State of Rajasthan, reported as (2001) 3
SCC 333 that a Special Judge, CBI cannot direct the CBI to register an FIR
and investigate into the offence. Only the High Courts and the Supreme
Court can so direct the CBI in rare and exceptional circumstances. It was
further contended that no party can insist that an offence be investigated by a
particular agency. It was urged that if the Special Judge, CBI after perusing
the evidence would arrive at an opinion that there are other persons who
prima facie appear to be guilty of an offence, they could be tried together
with the respondents as per Section 319 of the Code.
5.
appearing for the CBI that the CBI ought not be directed to conduct
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investigation as the present case does not fall into the category of cases
involving national and international ramification, and in view of the fact that
the alleged complaints are not of such extraordinary and exceptional nature
that no agency other than the CBI can be trusted upon to carry out
investigation in a just and proper manner. It was urged that merely because
the allegations pertain to Government officials does not make it a case that
would have to be investigated by the CBI only. It was stated that if every
case involving allegations of corruption by Government officials are
assigned to the CBI, then there will be flood of cases to be investigated by
the CBI and the latter with its limited manpower, would find it difficult to
properly investigate cases involving serious allegations. In order to buttress
her submissions, Ms. Mathur relied upon the decisions of the Supreme Court
in State of West Bengal vs. Committee for Protection of Democratic Rights
reported as (2010)3 SCC 571and T.C. Thangaraj vs Engammal & Others
reported as 2011 (8) SCALE 488.
6.
Per contra, Mr. Satish Tamta and Mr. Dinesh Malik, learned counsel
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8.
The law laid down by the Supreme Court in C.B.I. vs. State of
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10.
Vasu vs. State of U.P. reported as (2008) 2 SCC 409 wherein it was held as
follows:31. No doubt the Magistrate cannot order
investigation by CBI vide CBI v. State of
Rajasthan [(2001) 3 SCC 333 : 2001 SCC (Cri) 524]
but this Court or the High Court has power under
Article 136 or Article 226 to order investigation by
CBI. That, however, should be done only in some rare
and exceptional case, otherwise, CBI would be flooded
with a large number of cases and would find it
impossible to properly investigate all of them.
(Emphasis supplied)
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11.
The Apex Court thus held that a Magistrate can only direct an officer
Ramdas Srinivas Nayak & Anr. reported as AIR 1984 SC 718, the court of
Special Judge is a court of original criminal jurisdiction under administrative
and judicial superintendence of the High Court. Thus, the status of the
Special Judge is of a magistrate while dealing with an application under
Section 202 or Section 156(3) of the Code. The powers of a Special Judge
cannot be exaggerated so largely so as to include the power to direct the CBI
to conduct an investigation for which only a High Court or the Supreme
Court are empowered.
13.
In view of the aforesaid, I agree with the view taken by the High
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whereby the Court after specifically referring to the powers of Special Judge
under Prevention of Corruption Act, observed as follows:
8. In view of this clear verdict of the Apex Court,
there remains little scope for holding to the contrary
that a Special Judge can pass such an order. Shri BM
Gupta, learned counsel for the respondent no.2 tried to
distinguished this verdict of the Apex Court on the
ground that in that case, the order was passed by a
Magistrate, whereas in the case before me the order has
been passed by the learned Special Judge and that the
powers of a Special Judge cannot be equated with the
powers of a Magistrate. This distinction cannot be
accepted. No doubt, when allegation is for commission
of an offence under sec.13(1)(3) or 13(2) of the
Prevention of Corruption Act, the Special Judge has to
conduct the trial and committal proceedings do not
take place in such cases. But, for that matter, it cannot
be said that the Special Judge, in the instant case, could
not have acted as if a Magistrate was acting on a
private complaint. Undisputedly, a private complaint
was filed by the respondent no.2. It was not a case
brought before the learned Special Judge by the Police.
If, the Special Judge was to entertain a private
complaint, he was to act in accordance with the
provisions of secs. 200, 201, 202, 203 and 204 of the
Code of Criminal Procedure. Under sec. 202 of the
Code, the Special Judge could have directed for further
inquiry if he thought that further inquiry was required.
The order to make such further inquiry could be given
to the Police and not to the CBI. While dealing with
such complaint, a Special Judge could not have ignored
the provisions of sec. 156(3) of the Code. Even, the
impugned order shows that the first order passed on
31-7-2000 was directing the CBI, Gandhinagar to
investigate the complaint under sec. 156(3) of the
Code. Thus, if, jurisdiction was exercised under
sec. 156(3) of the Code by the learned Special Judge, it
cannot be said that his direction was given by another
court and not by a Magistrate. Even, a Special Judge is
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14.
Supreme Court in CBI vs. State of Rajasthan (Supra) in Kishwar Jahan vs.
State of West Bengal, reported as 2008 (3) CHN 857 whilst dealing with the
powers of a magistrate, held as follows:
136. No Magistrate discharging duties under the Code
has the power to direct investigation of any particular
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15.
Further, on the issue as to whether the CBI comes under the definition
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16.
does not fall within the meaning of the officer-in-charge of a police station
can be directed to investigate any case by the Special Judge, CBI. In the
present case, it is observed that the Special Judge, CBI exceeded its
jurisdiction whilst directing the CBI to investigate into the alleged offence.
The CBI is not an investigating agency of the Court presided over by the
Special Judge under Prevention of Corruption Act, 1988. The status of the
CBI cannot be de-escalated to that of an officer- in-charge of the police
station" under Section 156(3) of the Code.
17.
07.05.2014 passed by the Special Judge, CBI are erroneous. The Special
Judge has been designated to try the offences under The Prevention of
Corruption Act, 1988 which are investigated by the CBI by virtue of Delhi
Special Police Establishment Act, 1946. The Special Judge takes the seat of
a magistrate as a court of original criminal jurisdiction while dealing with an
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application under Section 156(3) or 202 of the Code and does not have the
power to direct the CBI to investigate into a matter. Further, nothing has
been brought to my notice to establish that the present case is exceptional
and extra ordinary in nature which requires to be investigated by a
specialized agency like the CBI. Merely because the allegations pertain to
government officials, does not make it a case which should be investigated
by the CBI. The power to direct investigation to the CBI is to be exercised
with caution and in select few recherch cases, keeping in mind that the CBI
should not be overburdened with matters that do not require such expertise.
18.
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19.
did not consider or rather failed to appreciate the dictum of the Apex Court
in CBI vs State of Rajasthan (Supra) as reiterated in Sakiri Vasu (Supra) in
the correct perspective. The Supreme Court has clearly delineated that only
the Supreme Court of India and the High Courts in their inherent jurisdiction
can issue such a direction to the CBI. Hence this order, in my considered
view, does not come in aid to the Respondents, inasmuch as, it runs contrary
to the ratio of the decisions of the Hon'ble Supreme Court in CBI vs. State of
Rajasthan (supra) and Sakiri Vasu (supra).
20.
Under Article 141 of the Constitution of India, the law declared by the
Supreme Court shall be binding on all courts within the territory of India. It
is impermissible for this court to ignore the clear dictum as contained in the
decisions of the Apex court. In the case of conflict between a decision of the
High Court and the decisions of the Supreme Court, the latter to state the
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21.
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22.
07.05.2014 passed by the Special Judge, CBI whereby the CBI was directed
to conduct investigation and proceed with the complaints of the respondents
are untenable and without jurisdiction. The impugned orders are liable to
be set aside and quashed.
24.
Ordered accordingly.
25.
The writ petitions are allowed. Pending applications, if any, also stand
disposed of.
SIDDHARTH MRIDUL, J.
DECEMBER 23, 2015
dn
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