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CASE NO.: Appeal (crl.)  1181 of 2001

PETITIONER: CENTRAL BUREAU OF INVESTIGATION

RESPONDENT: STATE OF GUJARAT

DATE OF JUDGMENT: 21/06/2007

BENCH: Dr. ARIJIT PASAYAT & B.P. SINGH

JUDGMENT: JUDGMENT

Dr. ARIJIT PASAYAT, J.

1.      Challenge in this appeal by the Central Bureau of  Investigation (in short CBI") is to the order passed by a learned  Single Judge of the Gujarat High Court dismissing the petition  filed to set aside the orders dated 29.9.1999 and 26.10.1999  passed by the learned Chief Judicial Magistrate, Nadiad. By  the first order, the learned Chief Judicial Magistrate had  directed the investigation of the case to be undertaken by CBI.  By the latter order, the prayer to recall the earlier order was  rejected.  2.      The brief facts are as follows:

Special A.C. B. Case No.2 of 1996 came up for hearing  and evidence for the first time on 7.1.1999 before Additional  Sessions Judge, Nadiad and at that time the Bench Clerk of  the aforesaid court called for Muddamal from the office of  Nazir, which was given to the clerk Shri Shukla and in turn  given to Shri Kiran Joshi, Senior Clerk. During the recording  of the evidence of the witnesses when Muddamal was required  to be identified, in the bag containing Muddamal article No. 2  (Rs. 35000/- i.e. 70 notes of Rs.500/- denomination) could not  be found therein. Though rigorous search was made but the  said Muddamal was not found and ultimately a criminal  complaint was filed in Nadiad Town Police Station which was  registered as ICR No. 22/99 for the offence punishable under  Section 381 of the Indian Penal Code, 1860 (in short the ’IPC’)  by the Court Officer. The Investigating Officer, Nadiad Town  Police Station, Nadiad could not get any fruitful result in the  matter for about 9 months. The  Nazir of the District Court of  Kheda at Nadiad wrote a letter dated 29.9.1999 to the learned  Chief Judicial Magistrate, Nadiad requesting therein to hand  over the investigation of the case to the CBI. On 29.9.1999 the  Chief Judicial Magistrate, Nadiad passed an order directing  the CBI to investigate the matter and report to him at the  earliest. The CBI through its Public Prosecutor filed an  application in the Court of Chief Judicial Magistrate, Nadiad  praying therein for recalling of the order dated 29.9.1999. This  application was rejected by the Chief Judicial Magistrate,  Nadiad under its order dated 6.10.1999.  The High Court was  moved against both the orders.

3. The High Court observed that the CBI was a litigant before  the Court like any other litigant and it cannot be placed in a  special category or in a privileged category. According to the

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High Court, prima facie that appears to be the claim of the  appellant.  It was held that the petition was not maintainable  and the orders of the learned Chief Judicial Magistrate could  have been challenged before the Sessions Court in terms of  Section 397 of Code of Criminal Procedure (in short ’Cr.PC’).    It was held that the CBI ought to have taken care to move the  proper court and instead of that the CBI, bypassed the  alternative remedy and moved the High Court directly. After  having said so, the High Court felt that the approach of the  CBI deserved to be deprecated and was deprecated. A cost of  Rs. 1000/- was imposed holding that the CBI had chosen a  wrong path and it was not respecting and adhering to law. The Director of CBI was directed to hold an inquiry in the matter  and whoever was found responsible for filing the petition  before the High Court was to reimburse the cost to be  deposited by the CBI. It was further directed that the inquiry  as directed by the learned Chief Judicial Magistrate was to be  completed within six months.

4. In support of the appeal, learned counsel for the appellant  submitted that the approach of the High Court is clearly  erroneous. The CBI was not a litigant.  In fact without giving  an opportunity to it, the order was passed by the learned Chief  Judicial Magistrate directing it to take over the investigation.  Had an opportunity been granted, it could have been shown to  the court that the concerned case was of a routine nature and  did not involve any specialised investigation. Therefore, it was  not proper for the Court to direct the CBI to investigate in  such a routine matter overlooking the fact that the CBI  normally investigates complex matters. The case in which  direction was given did not involve any complexity. It is  pointed out that under Section 397 Cr.P.C. either the Sessions  Court or the High Court could be approached.  In that sense,  the High Court was not justified in holding that the CBI had  bypassed the remedy. It is brought to our notice that the CBI  is aggrieved by the criticism levelled against it and the cost  imposed. There was no occasion for the High Court to doubt  the bona fides of CBI in filing the petition before it. In any  event, the learned Sessions Judge was moved as was directed  by the High Court and by order dated 17.5.2001, the orders  passed by the learned Chief Judicial Magistrate were set-aside.

5. We find that the High Court was not right in its approach.  This Court in Central Bureau of Investigation through S.P.  Jaipur Vs. State of Rajasthan & another [2001) 3 SCC 333]  has laid down the principles as to whether direction can be  given to the CBI under Section 156(3) Cr.P.C. It was held that  magisterial power cannot be stretched under the said  provision beyond directing the officer incharge of a police  station to conduct the investigation and no such direction can  be given to the CBI.  In the instant case, the first information  report was already registered and in that sense Section 156(3)  Cr.P.C. had no application. There is substance in the plea of  learned counsel for the CBI that routine matters should not be  entrusted to the CBI as the investigating agencies of various  States can effectively investigate such matters. Of course,  where it is shown that the investigating agency is not doing  proper investigation and/or that there is reason to believe that  there is laxity in the investigation, a direction may be given to  the CBI to investigate the matter in appropriate cases. This  case is not one where any complexity was involved. It was a  routine case of theft of Muddamal property. The learned  Sessions Judge, therefore, rightly appears to have set aside  the orders passed by the learned Chief Judicial Magistrate.  The High Court had no basis to doubt the bona fides of the

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CBI in moving the application before it under Section 397  Cr.P.C. There was no bar for the High Court to entertain the  said petition. The criticism levelled against the CBI and its  officers and cost imposed do not have any legal sanction. They  are accordingly set-aside.  

6.      Appeal is allowed.