Allowed

Central Bureau of Investigation Anti-Corruption Branch,Mumbai v. Shri.Devendra S.Doctor and Anr.

Bombay HC3 Sept 2007WP/235/2007

Case brief

AI extract

What is this about?

In a Criminal Writ Petition, the petitioner challenging an order directing CBI investigation argued the Magistrate lacked jurisdiction. The Court held that a Magistrate cannot direct CBI investigation under Section 202 CrPC or Section 156(3) CrPC due to jurisdictional limits. It quashed the impugned order allowing the writ petition.

What did the court decide?

The writ petition was allowed; the impugned order directing CBI investigation was quashed; the rule was made absolute.

Central Bureau of Investigation Anti-Corruption… — Criminal Trial and Appeal | Bombay HC (2007)

¶1

 -(1)-

¶2

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

¶3

 CRIMINAL APPELLATE JURISDICTION

¶4

 CRIMINAL WRIT PETITION NO.235 OF 2007

¶5

 Central Bureau of Investigation ]
 Anti-Corruption Branch, ]
 Tanna House, 11-A, N.P.Marg, ]
 Colaba, Mumbai. ] ..PETITIONER.

¶6

 Versus

¶7

 1. Shri.Devendra S. Doctor, ]
 C/2, Ground Floor, ]
 Sonawala Building, ]
 Tardeo, Mumbai-400 007. ]

¶8

 2. The State of Maharashtra. ] ..RESPONDENTS.

¶9

 ..
 Mr.R.B.Raghuwanshi, A.S.G. with S.Bhattacharya,
 Spl.P.P./CBI, i/b. Manoranjan Sahu, for the
 Petitioner.

¶10

 Mrs.A.S.Pai, Adv. appointed as ammicus curie.

¶11

 Respondent No.1 present in-person.

¶12

 Mr.M.S.Mhambre, APP, for the State.

¶13

CORAM : R.M.S.KHANDEPARKAR AND
 SMT.V.K.TAHILRAMANI,JJ.

¶14

 DATED : SEPTEMBER 03, 2007.

¶15

ORAL JUDGMENT : (PER R.M.S.KHANDEPARKAR,J.)

¶16

 1. Heard. Rule. By consent, the rule is

¶17

 made returnable forthwith. The respondent No.1

¶18

 in person and learned APP waives service.

¶19

 -(2)-

¶20

 2. The only point which is sought to be

¶21

 raised in the matter is that the Judicial
 Magistrate is not empowered to direct the CBI to
 investigate into the matter. In that regard
 reliance is sought to be placed in the decision
 in the matter of Central Bureau of Investigation

¶22

Vs. State of Rajasthan and Another, (2001) 3
Supreme Court Cases 333 and Surendra Nath Swain
Vs. State of Orissa & Ors., 2006 Cri.L.J.462.
 The original complainant-respondent No.1 herein
 who is appearing in person however stated that
 the said decisions are in relation to section
 156(3) of Criminal Procedure Code, whereas the
 impugned order has been passed in exercise of
 powers under Section 202 of the said Code. He
 has further submitted that the expression "such
 other person" appearing in Section 202 of
 Criminal Procedure Code clearly empowers the
 Magistrate to direct investigation by CBI as the
 said expression would include CBI.

¶23

 3. The Apex Court in the decisions which are
 sought to be relied upon on behalf of the

¶24

 -(3)-

¶25

 petitioner has clearly ruled that the Magistrate
 exercising power under the Code to direct the
 investigation by the police authorities is not
 empowered to direct the investigation by CBI.
 In Paragraph 12 of the decision in the State of
 Rajasthan’s case (supra) it has been ruled thus
 :-

¶26

 12. In a decision rendered by the
 Kerala High Court the complaint was
 forwarded by a Magistrate to the
 Inspector General of Police (Crimes)
 for investigation under Section
 156(3) of the Code. When the State
 challenged the said order of the
 Magistrate the High Court held that
 a Magistrate cannot order any police
 officer, other than one who is in
 charge of a police station to
 conduct the investigation, though
 the Government in exercise of their
 executive powers can authorise any
 superior police officer to
 investigate a case and such

¶27

 -(4)-

¶28

 direction can be issued by the
 higher officer to his subordinate
 officer in the police department.
 The said decision is reported in
State of Kerala v. Kolakkacan Moosa

¶29

Haji. A two-Judge Bench of this
 Court (G.N. Ray and G.B.
 Pattanaik, JJ.) has affirmed the

¶30

 said decision of the Kerala High
 Court as per order dated 8-4-1997 in
 Criminal Appeal No.410 of 1994. The

¶31

 principle involved in the said case
 would as well be applicable when the
 Magistrate is approached to direct

¶32

 CBI for conducting investigation."

¶33

 4. The decision of the Apex Court is very
 clear on the point of law that the Magistrate
 cannot ask CBI to investigate into an offence.
 Though the decision was delivered in a case
 where the Magistrate had sought to refer the
 matter for investigation under Section 156(3) of
 the Code; nevertheless it was in relation to
 "investigation" and in exercise of powers of

¶34

 -(5)-

¶35

 Magistrate to order investigation. Being so,
 whether such power is exercised under Section
 156(3) or 202(1) of the Code, it will not make
 any difference.

¶36

 5. Section 202(1) of Criminal Procedure Code
 provides that any Magistrate on receipt of a
 complaint of an offence of which he is
 authorised to take cognizance or which has been
 made over to him under section 192, may, if he
 thinks fit, postpone the issue of process
 against the accused, and either inquire into the
 case himself or direct an investigation to be
 made by a police officer or by such other person
 as he thinks fit, for the purpose of deciding
 whether or not there is sufficient ground for
 proceeding. In other words, even under Section
 202(1) the order would be for the purpose of
 "investigation". The decision of the Apex Court
 is undoubtedly on the point of power of
 Magistrate to order investigation by the police
 authorities.

¶37

 6. Besides Section 192 of the Code deals with

¶38

 -(6)-

¶39

 the power of the Chief Judicial Magistrate to
 make over a case in terms of sub-section (1).
 Any Chief Judicial Magistrate may, after taking
 cognizance of an offence, make over the case for
 inquiry or trial to any competent Magistrate
 subordinate to him. Sub-section (2) thereof
 provides for any Magistrate of the first class
 empowered in this behalf by the Chief Judicial
 Magistrate may, after taking cognizance of an
 offence, make over the case for inquiry or trial
 to such other competent Magistrate as the Chief
 Judicial Magistrate may, by general or special
 order, specify, and thereupon such Magistrate
 may hold the inquiry or trial. Section 12(1) of
 the Code provides that in every district (not
 being a metropolitan area), the High Court shall
 appoint a Judicial Magistrate of the first class
 to be the Chief Judicial Magistrate. Section
 12(3)(b) provides that subject to the general
 control of the Chief Judicial Magistrate, every
 sub-divisional Judicial Magistrate shall also
 have and exercise, such powers of supervision
 and control over the work of the Judicial
 Magistrate (other than Additional Chief Judicial

¶40

 -(7)-

¶41

 Magistrate) in the sub-division as the High
 Court may, by general or special order, specify
 in that behalf. Section 14(1) of the Code
 provides that subject to the control of the High
 Court, the Chief Judicial Magistrate may, from
 time to time, define the local limits of the
 areas within which the Magistrates appointed
 under section 11 or under section 13 may
 exercise all or any of the powers with which
 they may respectively be invested under this
 Code provided that the Court of a Special
 Judicial Magistrate may hold its sitting at any
 place within the local area for which it is
 established. Sub-section 2 thereof provides
 that except as otherwise provided by such
 definition, the jurisdiction and powers of every
 such Magistrate shall extend throughout the
 district.

¶42

 7. Reading the above provisions of law, it
 would also be clear that the power which has
 been provided for the Judicial Magistrate under
 Section 202 of the Code to order investigation
 relates to the area within which he can exercise

¶43

 -(8)-

¶44

 his jurisdiction and obviously, therefore, the
 direction to investigate can be to the police
 officers and such other persons who can be
 subjected to his jurisdiction.

¶45

 8. Considering the above provisions of law,
 and as CBI cannot be said to be within the
 jurisdiction of the Magistrate, therefore, and
 bearing in mind the decision of the Apex Court
 in the case relied upon on behalf of the
 petitioner, it is clear that the Magistrate does
 not enjoy any jurisdiction under the Code to
 refer a matter for investigation by CBI. Viewed
 from this angle, therefore, the impugned order
 is not sustainable and is liable to be
 set-aside. The Petition, therefore, succeeds
 and is accordingly allowed. The impugned order
 is hereby quashed. The rule is made absolute in
 above terms, with no order as to costs.

¶46

 [R.M.S.KHANDEPARKAR,J.]

¶47

 -(9)-

¶48

 [SMT.V.K.TAHILRAMANI,J.]

Central Bureau of Investigation Anti-Corruption Branch,Mumbai v. Shri.Devendra S.Doctor and Anr.

Case brief

What is this about?

What did the court decide?

Central Bureau of Investigation Anti-Corruption Branch,Mumbai v. Shri.Devendra S.Doctor and Anr.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Kishor M. Kothari Vs State of Maharashtra and Ors.

Vijay Vikram Dande and Anr. Vs Mukhtar Mahamud Shaikh and Ors.

Waman Raghunath Shelke Vs the Superintendant and Ors.

Sanjeev Surinderkumar Kochar and Ors. Vs Varsha Shrivastav and Anr.

Nirav Harshadrai Shah Vs the State of Maharashtra

Avtarsingh Harnamsingh Sethi Vs the State of Maharashtra and Anr.