http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 6  

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 6  

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).

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 6  

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 6  

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 6  

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,

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 6  

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