Full Judgment Text
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PETITIONER:
UNION OF INDIA & ANR.
Vs.
RESPONDENT:
B. N. ANANTI PADMABIAH ETC.
DATE OF JUDGMENT22/04/1971
BENCH:
RAY, A.N.
BENCH:
RAY, A.N.
GROVER, A.N.
HEGDE, K.S.
GROVER, A.N.
SIKRI, S.M. (CJ)
VAIDYIALINGAM, C.A.
CITATION:
1971 AIR 1836 1971 SCR 460
1971 SCC (3) 278
ACT:
Code of Criminal Procedure, 1898, s. 429-Difference of
opinion between two judges of High Court-Reference to third
judge-Third judge can deal with whole case and entertain new
plea.
Prevention of Corruption Act, 1947, s. 5A and Code of
Criminal Procedure, s. 12-Jurisdiction of Magistrate under
s. 5A does not extend to whole of India-Magistrate can
exercise jurisdiction under s. 5A throughout district in
which he holds charge but not outside district.
HEADNOTE:
The appellants were charged with offences under s. 5(2) &
5(1) (c) and 5(1) (d) of the Prevention of Corruption Act,
1947 as well as under ss. 467 and 471 of the Indian Penal
Code by the Special Judge, Gauhati. The appellants filed
revision petitions in the High Court of Assam & Nagaland.
On difference of opinion arising between the two Judges of
the Division Bench reference was made to a third Judge under
s. 429 of the Code of Criminal Procedure. Before the third
Judge a new plea was advanced on behalf of the appellants,
namely that the Magistrate at Delhi had no jurisdiction to
accord sanction to an Inspector of the Delhi Special Police
Establishment to investigate the case in Assam. The third
Judge held that an order of a Magistrate of the local
jurisdiction was necessary and excepting a Magistrate of the
District where the crime was committed no other Magistrate
outside the jurisdiction could make an order for investi-
gation. In the result the proceedings before the Special
Judge were quashed. In appeal by certificate to this Court,
HELD:(i) The contention that the third learned Judge
could only deal with the difference between the two learned
Judges and not with the whole case could not be accepted.
The language of s. 429 of the Code of Criminal Procedure is
explicit that the case with the opinion of the Judges
comprising the court of appeal shall be laid before another
Judge of the same court. The other noticeable feature in s.
429 of the Code of Criminal Procedure is that the judgment
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or order shall follow the opinion of the third learned
Judge. Further more, the appeal is from the order of the
third learned Judge as it must be by reason of the divided
opinion of the Bench. [463D]
Hethuba & Ors. v. State of Gujarat, Cr. A. No. 100/67 dt.
13-3-1970, followed.
(ii)Section 12 of the Code of Criminal Procedure empowers
the State Government to appoint besides the District
Magistrate, Magistrates of the first, second or third class
in any district and the State Government may from time to
time define local areas within which such Magistrate may
exercise all or any of the powers with which they may be
invested under the Code. Section 12(2) of the Code of
Criminal Procedure enacts that except as otherwise provided
the jurisdiction and powers of such Magistrates shall extend
throughout such district. It therefore follows that the
Magistrates of the first class of a district have powers
within defined local areas within the district and their
jurisdiction and powers may in certain
461
cases extend throughout such district. The Magistrate at
Delhi can in certain cases exercise jurisdiction and power
throughout the district where he is appointed. [464E-G]
It will not be’ in consonance with the jurisdiction and
structure of courts of Magistrates to allow an order of
investigation to be made by a Magistrate of Delhi for
investigation of a case in the State of Assam. The reason
is that a Magistrate orders investigation in a case which he
has power to inquire into or try. The real import of s. 5A
of the Prevention of Corruption Act is that investigation is
to be done by Police Officers of a certain rank to ensure
protection against frivolous, prosecution, and it is only
with the order of Presidency Magistrate or a Magistrate of
the first class that Police Officers below the rank
mentioned in the section are allowed to investigate. It is
therefore appropriate that Magistrates in Presidency towns
or District will order investigation of cases within their
respective jurisdiction. The effect of s. 5A of the
Prevention of Corruption Act, is that it is a special Act
which confers power on Presidency Magistrates throughout the
Presidency town and Magistrates of the first class through-
out the District when they exercise powers under the Code of
Criminal Procedure. Therefore in cases governed by s. 5A of
the Prevention of Corruption Act, Magistrates of the first
class will exercise jurisdiction throughout the district
irrespective of defined areas of their jurisdiction within
the district by reason of s. 12(2) of the Code of Criminal
Procedure. [465A-E]
In the present appeals, the order of investigation made by
the Magistrate at Delhi for investigation of cases in the
State of Assam was not a valid and competent order within
the powers of the Magistrate at Delhi. Ile orders of
investigation were therefore rightly quashed by the High
Court. [465E-F]
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION : Criminal Appeals Nos. 158
to 160 of 1970.
Appeals from the judgment and order dated March 31, 1969 of
the Assam and Nagaland High Court in Criminal Revision
Applications Nos. 53, 62 and 71 of 1968.
D.Mookherjee, Avtar Singh and R. N. Sachthey, for the
appellants (in both the appeals).
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Gobind Das and Lily Thomas, for respondent (in Cr. A. No.
158/1970).
J. P. Mitter and Sukumar Ghose, for respondent (in Cr. A.
No. 159/ 1970).
A. S. R. Chari, Naunit Lal and Swaranjit Sodhi, for
respondent (in Cr. A. No. 160 of 1970).
The Judgment of the Court was delivered by:
Ray, J.---These three appeals are by certificate from the
judgment and order dated 31 March, 1969 of the High Court of
Assam and Nagaland.
462
These three appeals arise out of special cases No. 16 and
16A of 1964 pending in the court of the Special Judge,
Gauhati. In Special Case No. 16 of 1964 Major J. S. Prosad,
B. N. Ananthapadamanabhiah and Motiur Rahman were charged
under section 120B of the Indian Pencil Code read with
sections 5(2), 5(1) (c) and 5(1)(d) of the Prevention of
Corruption Act, 1947 and section 467/ 471 of the Indian
Penal Code. In Special Case No. 16A of 1964 charges were
framed against S. Chatterjee and Motiur Rehman under section
120B of the Indian Penal Code read with sections 5(2),
5(1)(c) and 5(1)(d) of the Prevention of Corruption Act and
sections 467 and 471 of the Indian Penal Code.
The appellants filed three separate criminal revision
petitions in the High Court. Four contentions were advanced
before the High Court. First, that the Special Judge at
Gauhati had no jurisdiction to try offences investigated by
the Delhi Special Police Establishment as the Delhi Special
Establishment.Act was not extended to NEFA. Secondly, that
under section 6 of the Delhi Special Police Establishment
Act, the Delhi Special Police Establishment cannot
investigate in a case in any area which is not a Union
territory or a railway area without the consent of the
Government of the State. It was contended that the consent
of the Government of Assam was not taken. Thirdly, the
investigation was carried out by an Inspector of Police
under section 5(2) of the Prevention of Corruption Act under
an order of a Magistrate of the First-class at Delhi but the
Magistrate did not apply his mind to the matter and
mechanically gave the permission., Fourthly, no sanction was
taken under section 196A of the Code of Criminal Procedure
before cognisance was taken by the court.
The Division Bench consisting of C. J. and Goswami, J.
unanimously rejected the first two contentions but were
divided in their opinion as to whether the Magistrate
applied. his mind. to allow the investigation by an
Inspector of Police and whether sanction under section 196A
of the Code of Criminal Procedure was necessary. The matter
was thereafter placed before the third learned Judge Sen, J.
Before the third learned Judge another contention was
advanced as to whether the Magistrate at Delhi.had
jurisdiction to accord sanction to an Inspector of Police of
the Delhi Special Police Establishment to investigate the
case in Assam. The third learned Judge held that. an order
of a Magistrate of the local jurisdiction was necessary and
excepting a Magistrate of the district where the crime was
committed no other Magistrate outside the jurisdiction could
make an; order for investigation The third learned Judge
also held that the Magistrate at Delhi did not apply his
mind to allow the inspector of. police to do the
investigation In the result, the proceedings before the
Special Judge were quashed.
463
A question arose as to whether a new contention as to the
competency of the Magistrate at Delhi to sanction
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investigation could have been raised before the third
learned Judge when it had not been raised before the
Division Bench. Counsel for the respondents contended that
under section 429 of the Code of Criminal Procedure the case
was to be laid before the third learned Judge and the third
learned Judge was empowered to deal with the entire case and
the judgment and order would follow the opinion of the third
learned Judge.
This question came up for consideration in the recent unre-
ported decision in Hethubha & Ors. v. The state of Gujarat
(1). it was contended in that case on behalf of the
appellants that the third learned Judge could only deal with
the differences between the two learned Judges and not with
the whole case. This Court held that the third learned
Judge could deal with the whole case. The language of
section 429 of the Code of Criminal Procedure is explicit
that the case with the opinion of the Judges comprising the
Court of Appeal shall be laid before another Judge of the
same Court. The other noticeable feature in section 429 of
the Code of Criminal Procedure is that the judgment or order
shall follow the opinion of the third learned Judge.
Furthermore, the appeal is from the order of the third
learned Judge as it must be by reason of the divided opinion
of the Bench.
The more important question in the present appeals is
whether the Magistrate at Delhi was competent to authorise
the investigation of the case. The relevant provision is to
be found in section 5A of the Prevention of Corruption Act,
1947 as it stood prior to its amendment in 1964 and is as
follows :-
"Notwithstanding anything contained in the
Code of Criminal Procedure, 1898, no Police
Officer below the rank-
(a)in the Presidency towns of Madras and
Calcutta, of an Assistant Commissioner of
Police;
(b)in the presidency town of Bombay of a
Superintendent of Police; and
(c)elsewhere, of a Deputy Superintendent of
Police,
shall investigate any offence punishable under
section 161, section 165 or section 165A of
the Indian Penal Code or under sub section (2)
of this Act, without the order of the
Presidency Magistrate or a Magistrate of the
first class, as the case may be. or make any
arrest therefore without a warrant".
(1) Cr. A.No. 100 of 1967 dt. 13-3-1970.
464
The words "Presidency Magistrate or a :Magistrate of the
First Class, as the case may be" were construed by counsel
for the appellants to mean that except in the case of
Presidency Magistrate it could be any first class Magistrate
of any area inasmuch as there was no limitation with regard
to any area of territorial jurisdiction by a Magistrate of
the first class under section 5A of the Prevention of
Corruption Act, 1947. Reliance was placed by counsel for
the appellants on section 5 of the Code of Criminal
Procedure that the investigation under section 5(2) of the
Code of Criminal. Procedure could be according to the
provisions of the Code of Criminal Procedure but subject to
any enactment regulating the manner or place of
investigation. It was said that section 5A of the
Prevention of Corruption Act was a special Act regulating
the manner of investigation and therefore the Code of
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Criminal Procedure would not apply to that extent.
Presidency Magistrate under sections 6 and 18 of the Code of
Criminal Procedure are for each of the Presidency towns. A
Presidency Magistrate exercises jurisdiction within the
presidency towns for which he is appointed and within the
limits of the port of such town. Magistrates of the first
class are dealt with under sections 6, 10, 11, 12 and 13 of
the Code of Criminal Procedure and their powers of sentence
are dealt with by section 32 of the Code of Criminal
Procedure. Section 6 speaks of magistrates of the first
class, Magistrates of the second class and magistrates of
the third class. Section 10 of the Code of Criminal
Procedure speaks of district magistrate in every district
outside the presidency town. Section 12 of the Code of
Criminal Procedure empowers the State Government to appoint
besides the District Magistrate, Magistrates of the first,
second or third class in any district and the State
Government may from time to time define local areas within
which such Magistrates may exercise all or any of the powers
with which they may be invested under the Code. Section
12(2) of the Code of Criminal Procedure enacts that except
as otherwise provided the jurisdiction and powers of such
Magistrates shall extend throughout such district. It
therefore follows that the Magistrates of the first class of
a district have powers within defined local areas within the
district and their jurisdiction and powers may in certain
cases extend throughout such district. The Magistrate at
Delhi can in certain cases exercise jurisdiction and power
throughout the district where he is appointed.
The words "Presidency Magistrate or a Magistrate of the
first class, as the case may" in section 5A of the
Prevention of Corruption Act indicate that a Presidency
Magistrate refers to the Presidency town where he exercises
jurisdiction and similarly a Magistrate of the first class
refers to a Magistrate of the first class of a district
exercising power in that district. A Magistrate does not
exercise jurisdiction throughout the length and breadth of
India for
465
purposes of Code of Criminal Procedure or of Prevention of
Corruption Act. The Code of Criminal Procedure defines the
territorial jurisdiction of Magistrates. It will not be in
consonance with the jurisdiction and structure of Courts of
Magistrate to allow an order of investigation to be made by
a Magistrate of Delhi for investigation of a case in the
State of Assam. The reason is that a Magistrate orders
investigation in a case which he has power to inquire into
or try. The real import of section 5A of the Prevention of
Corruption Act is that investigation is to be done by Police
Officers of a certain rank to ensure protection against
frivolous prosecution and it is only with the order of
Presidency Magistrate or a Magistrate of the first class
that Police Officers below the rank mentioned in the section
are allowed to investigate. It is therefore appropriate
that Magistrates in Presidency towns or District will order
investigation of cases within their respective jurisdiction.
The effect of section 5A of the Prevention of Corruption Act
is that it is a special Act which confers powers on
Presidency Magistrates exercisable throughout the Presidency
town and Magistrates of the first class throughout the
District where they exercise powers under the Code of
Criminal Procedure. Ordinarily, Magistrates of the first
class may have defined areas within the meaning of section
12(1) of the Code of Criminal Procedure but in cases
governed by section 5A of the Prevention of Corruption Act,
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Magistrates of the first class will exercise jurisdiction
throughout the district irrespective of defined areas of
their jurisdiction within that district by reason of section
12(2) of the Code of- Criminal Procedure.
In the present appeals, the order of investigation made by
the Magistrate at Delhi for investigation of cases in the
State of Assam was not a valid and competent order within
the powers of the Magistrate at Delhi. These orders of
investigation are therefore rightly quashed by the High
Court.
The contention on behalf of the appellants that the order of
the Magistrate allowing the Inspector of Police to
investigate was proper and that he applied his mind is not
required to be gone into in the present appeals in view of
the decision that the Magistrate at Delhi was not competent
to authorise the investigation.
It is also not necessary to express any opinion on the
other contention as to whether sanction under section 196A
of the Code of Criminal Procedure was necessary before the
courts could take cognizance of the matter.
We are of opinion that the order of the Magistrate at Delhi
is not a valid and proper order and therefore the
investigation was bad. We need not express any opinion as
to whether there should be a fresh investigation. For these
reasons, the appeals fail and are dismissed.
G.C. Appeals dismissed.
30-1 S.C. India/71
466