Full Judgment Text
A-20
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Judgment:24.01.2014
+ CRL.REV.P. 286/2013
MAJ.GEN. V.K.SINGH RETD. ..... Petitioner
Through: Mr.Chander M. Maini, Advocate.
versus
THE DIRECTOR CBI ..... Respondent
Through: Mr.B.R.Handa, Sr. Advocate,
SPP for CBI.
CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR
INDERMEET KAUR, J. (Oral)
Crl.M.A. No.5993/2013 ( for condonation of delay of 95 days)
1 Petitioner by way of this application seeks condonation of delay
of 95 days in filing this revision petition.
2 Notice of this application had been issued on 13.5.2014.
Respondent has chosen not to file reply. He has not opposed the
application. The delay is accordingly condoned. Application is
allowed.
CRL.REV.P. N.286/2013
3 Petitioner is aggrieved by the impugned order dated 16.10.2012
passed by the court of Special Judge, CBI wherein an application filed
by the petitioner under Section 156(3) of the Code Criminal Procedure
Crl.Rev.Pet. No.286/2013 Page 1 of 5
(hereinafter referred to as the Code) seeking directions to the CBI to
register FIR had been dismissed.
4 Record shows that an application under Section 156(3) Cr.P.C.
had been filed by the present petitioner before the Special Judge. The
averments in the said application have been perused. Submission being
that he had filed a complaint dated 29.5.2008 before the CBI Director
bringing to his notice instances of corruption in Research and Analysis
Wing (RAW). Contention of the complainant being that he had held
several important posts and last being of Chief Signal Officer of
Western Command; he was thereafter posted on a deputation to the
Cabinet Secretariat, RAW, as Joint Secretary where he remained till
30.6.2002 when he superannuated. Contention is that in spite of notice
to the CBI no action was taken on the specific instances of corruption in
the RAW which had been brought to their notice.
5 Status report had been filed by the CBI dated 16.4.2012 as also a
second report dated 7.8.2012. Request for dismissal of the complaint
had been made.
6 The Special Judge by the impugned order had dismissed the
complaint holding that a Special Judge, CBI does not have the power
under Section 156(3) Cr.P.C. to pass an order for registration of an FIR
and order further investigation. It had noted that such directions can be
given by a Magistrate to an officer in-charge of the police station and a
Special Judge neither being a Magistrate and nor exclusively a court of
session but being akin to a court of session, the powers enjoyed by a
magistrate under Section 156(3) Cr.P.C. were not bestowed upon the
Crl.Rev.Pet. No.286/2013 Page 2 of 5
court of the Special Judge. Relying upon a judgment of the Supreme
Court report as 2001 CRI L.J. 968 CBI Vs. State of Rajathan ; it had
noted that magisterial powers cannot be extended and an order directing
the CBI to investigate an offence vested exclusively with the High Court
and Supreme Court. The application of the present petitioner was
accordingly dismissed.
7 This is the grievance of the petitioner. His submission is that there
is a legal question involved and the moot submission being that a
Special Judge is also a court of original jurisdiction; he in fact has the
same powers which are vested in a magistrate which is also a court of
original jurisdiction. The powers enjoyed by a magistrate under Section
156 (3) Cr.P.C. are also available to the Special Judge and nothing
prevented the Special Judge from ordering the registration of an FIR and
investigation in the matter. Learned counsel for the petitioner has
placed reliance upon a judgment of a Coordinate Bench of this Court in
W.P.(Crl.) 1626/2011 decided on 20.4.2012 titled Dr.A.S. Narayan Rao
Vs. CBI . It is submitted that while relying upon the Constitutional
Bench Judgment of the Apex Court reported as AIR 1984 SC 718 A.R.
Antulay Vs. Ramdas Srinivas Nayak & Anr. a Bench of this Court while
distinguishing the judgment of State of Rajasthan (supra) had held that
where a complaint has been filed before a Special Judge, the Special
Judge has the power to proceed under Section 156(3) Cr.P.C.; in that
case the impugned order had been set aside and the matter has been
remanded back to the Special Judge.
8 Learned counsel for the CBI while not refuting this submission of
Crl.Rev.Pet. No.286/2013 Page 3 of 5
the learned counsel for the petitioner submits that the judgment of the
State of Rajasthan has answered this question and it is later in time that
the judgment in the case of A.R.Antulay (supra). This judgment has to
be followed.
9 In the case of State of Rajasthan (supra) magisterial powers of a
magistrate under Section 156(3) Cr.P.C. were the issue. As is evident
from the judgment, the question in that case was that when a complaint
which was before a magistrate had alleged serious offences could the
magistrate order an investigation to be conducted into the offence. The
words time and again used in the judgment refer to the words
“magistrate” and “magisterial powers”; it was not dealing with the
powers of a Special Judge. A Special Judge as the terminologically
itself suggests is a Special Judge who has been appointed under a special
Statute. In this case the statute is the Prevention of Corruption Act.
10 The judgment of A.R.Antulay (supra) was dealing with offences
under Sections 7,8,12 and 13 of the Prevention of Corruption Act, 1988.
It was in this context that the following observations had been made by
the Constitutional Bench. It had noted as follows:
“Shorn of all embellishment, the court or a special Judge is a
court of original jurisdiction. As a court of original criminal
jurisdiction in order to make it functionally oriented some powers
were conferred by the statute setting up the court. Except those
specifically conferred and specifically denied, it has to function as
a court of original criminal jurisdiction not being hide-bound by
the terminological status description of Magistrate or a Court of
Sessions. Under the Code it will enjoy all powers which a court
of original criminal jurisdiction enjoys save and except the ones
specifically denied.”
Crl.Rev.Pet. No.286/2013 Page 4 of 5
11 A Special Judge thus has all the powers vested in the court of an
original jurisdiction except those which are specifically prohibited. The
jurisdiction under Section 15(3) Cr.P.C. has not been denied to the
Special Judge. As already noted supra it is a court of original
jurisdiction. This was also noted by the Coordinate Bench of this Court
in Dr.A.S.Narayana Rao (supra). In the judgment of State of Rajasthan
as noted supra the words used were “magistrate”/ “magisterial power”;
they were under issue.
12 In view thereof the impugned order is liable to be set aside. It is
accordingly set aside. Matter is remanded back to the Special Judge
who will consider as to whether the present case is a fit case for
directing registration of an FIR under Section 156(3) Cr.P.C. or not.
13 Parties to appear before the learned Special Judge on 12.02.2014.
14 With these directions, petition stands disposed of.
INDERMEET KAUR, J
JANUARY 24, 2014
ndn
Crl.Rev.Pet. No.286/2013 Page 5 of 5
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Judgment:24.01.2014
+ CRL.REV.P. 286/2013
MAJ.GEN. V.K.SINGH RETD. ..... Petitioner
Through: Mr.Chander M. Maini, Advocate.
versus
THE DIRECTOR CBI ..... Respondent
Through: Mr.B.R.Handa, Sr. Advocate,
SPP for CBI.
CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR
INDERMEET KAUR, J. (Oral)
Crl.M.A. No.5993/2013 ( for condonation of delay of 95 days)
1 Petitioner by way of this application seeks condonation of delay
of 95 days in filing this revision petition.
2 Notice of this application had been issued on 13.5.2014.
Respondent has chosen not to file reply. He has not opposed the
application. The delay is accordingly condoned. Application is
allowed.
CRL.REV.P. N.286/2013
3 Petitioner is aggrieved by the impugned order dated 16.10.2012
passed by the court of Special Judge, CBI wherein an application filed
by the petitioner under Section 156(3) of the Code Criminal Procedure
Crl.Rev.Pet. No.286/2013 Page 1 of 5
(hereinafter referred to as the Code) seeking directions to the CBI to
register FIR had been dismissed.
4 Record shows that an application under Section 156(3) Cr.P.C.
had been filed by the present petitioner before the Special Judge. The
averments in the said application have been perused. Submission being
that he had filed a complaint dated 29.5.2008 before the CBI Director
bringing to his notice instances of corruption in Research and Analysis
Wing (RAW). Contention of the complainant being that he had held
several important posts and last being of Chief Signal Officer of
Western Command; he was thereafter posted on a deputation to the
Cabinet Secretariat, RAW, as Joint Secretary where he remained till
30.6.2002 when he superannuated. Contention is that in spite of notice
to the CBI no action was taken on the specific instances of corruption in
the RAW which had been brought to their notice.
5 Status report had been filed by the CBI dated 16.4.2012 as also a
second report dated 7.8.2012. Request for dismissal of the complaint
had been made.
6 The Special Judge by the impugned order had dismissed the
complaint holding that a Special Judge, CBI does not have the power
under Section 156(3) Cr.P.C. to pass an order for registration of an FIR
and order further investigation. It had noted that such directions can be
given by a Magistrate to an officer in-charge of the police station and a
Special Judge neither being a Magistrate and nor exclusively a court of
session but being akin to a court of session, the powers enjoyed by a
magistrate under Section 156(3) Cr.P.C. were not bestowed upon the
Crl.Rev.Pet. No.286/2013 Page 2 of 5
court of the Special Judge. Relying upon a judgment of the Supreme
Court report as 2001 CRI L.J. 968 CBI Vs. State of Rajathan ; it had
noted that magisterial powers cannot be extended and an order directing
the CBI to investigate an offence vested exclusively with the High Court
and Supreme Court. The application of the present petitioner was
accordingly dismissed.
7 This is the grievance of the petitioner. His submission is that there
is a legal question involved and the moot submission being that a
Special Judge is also a court of original jurisdiction; he in fact has the
same powers which are vested in a magistrate which is also a court of
original jurisdiction. The powers enjoyed by a magistrate under Section
156 (3) Cr.P.C. are also available to the Special Judge and nothing
prevented the Special Judge from ordering the registration of an FIR and
investigation in the matter. Learned counsel for the petitioner has
placed reliance upon a judgment of a Coordinate Bench of this Court in
W.P.(Crl.) 1626/2011 decided on 20.4.2012 titled Dr.A.S. Narayan Rao
Vs. CBI . It is submitted that while relying upon the Constitutional
Bench Judgment of the Apex Court reported as AIR 1984 SC 718 A.R.
Antulay Vs. Ramdas Srinivas Nayak & Anr. a Bench of this Court while
distinguishing the judgment of State of Rajasthan (supra) had held that
where a complaint has been filed before a Special Judge, the Special
Judge has the power to proceed under Section 156(3) Cr.P.C.; in that
case the impugned order had been set aside and the matter has been
remanded back to the Special Judge.
8 Learned counsel for the CBI while not refuting this submission of
Crl.Rev.Pet. No.286/2013 Page 3 of 5
the learned counsel for the petitioner submits that the judgment of the
State of Rajasthan has answered this question and it is later in time that
the judgment in the case of A.R.Antulay (supra). This judgment has to
be followed.
9 In the case of State of Rajasthan (supra) magisterial powers of a
magistrate under Section 156(3) Cr.P.C. were the issue. As is evident
from the judgment, the question in that case was that when a complaint
which was before a magistrate had alleged serious offences could the
magistrate order an investigation to be conducted into the offence. The
words time and again used in the judgment refer to the words
“magistrate” and “magisterial powers”; it was not dealing with the
powers of a Special Judge. A Special Judge as the terminologically
itself suggests is a Special Judge who has been appointed under a special
Statute. In this case the statute is the Prevention of Corruption Act.
10 The judgment of A.R.Antulay (supra) was dealing with offences
under Sections 7,8,12 and 13 of the Prevention of Corruption Act, 1988.
It was in this context that the following observations had been made by
the Constitutional Bench. It had noted as follows:
“Shorn of all embellishment, the court or a special Judge is a
court of original jurisdiction. As a court of original criminal
jurisdiction in order to make it functionally oriented some powers
were conferred by the statute setting up the court. Except those
specifically conferred and specifically denied, it has to function as
a court of original criminal jurisdiction not being hide-bound by
the terminological status description of Magistrate or a Court of
Sessions. Under the Code it will enjoy all powers which a court
of original criminal jurisdiction enjoys save and except the ones
specifically denied.”
Crl.Rev.Pet. No.286/2013 Page 4 of 5
11 A Special Judge thus has all the powers vested in the court of an
original jurisdiction except those which are specifically prohibited. The
jurisdiction under Section 15(3) Cr.P.C. has not been denied to the
Special Judge. As already noted supra it is a court of original
jurisdiction. This was also noted by the Coordinate Bench of this Court
in Dr.A.S.Narayana Rao (supra). In the judgment of State of Rajasthan
as noted supra the words used were “magistrate”/ “magisterial power”;
they were under issue.
12 In view thereof the impugned order is liable to be set aside. It is
accordingly set aside. Matter is remanded back to the Special Judge
who will consider as to whether the present case is a fit case for
directing registration of an FIR under Section 156(3) Cr.P.C. or not.
13 Parties to appear before the learned Special Judge on 12.02.2014.
14 With these directions, petition stands disposed of.
INDERMEET KAUR, J
JANUARY 24, 2014
ndn
Crl.Rev.Pet. No.286/2013 Page 5 of 5