* HON’BLE SRI JUSTICE L.NARASIMHA REDDY
+ CRIMINAL PETITION NO. 662 OF 2012
% 12-01-2012
# 1. V.Vijaya Sai Reddy
S/o Late V.Sundar Rami Reddy,
Aged about 52 years,
Occ: Chartered Accountant,
R/o 43-1, Film Nagar,
Road No.71, Jubilee Hills,
Hyderabad.
… Petitioner
Vs.
$ 1. Central Bureau of Investigation,
Anti Corruption Branch,
Dilkush Guest House,
Raj Bhavan Road, Somajiguda,
Hyderabad.
… Respondent
! Counsel for the Petitioner: Sri S.Niranjan Reddy,
Advocate.
Counsel for the Respondent: Sri P.Kesava Rao,
Standing Counsel for CBI
< Gist:
> Head Note:
? Cases referred:
1. 2008 CRI.L.J. 337(1)
2. 1976 CRI.L.J. 1511
3. 2001 CRI.L.J. 3678
THE HON’BLE MR. JUSTICE L. NARASIMHA REDDY
CRIMINAL PETITION No.662 of 2012
ORDER:
The petitioner challenges the order dated 10.01.2012 in Crl.M.P.No.58 of 2012 in Crl.M.P.No.27 of 2012 in R.C.No.19(A) of 2011 CBI HYD., on the file of the Court of Special Judge for CBI Cases, Hyderabad (for short “the CBI Court”).
The respondent herein registered an F.I.R. bearing R.C.No.19(A) of 2011 CBI HYD against the petitioner (A-2) and others alleging crimes punishable under various provisions of the Prevention of Corruption Act, 1988 (for short “the Act”). Petitioner was produced before the CBI Court on 03.01.2012. That Court remanded the petitioner to judicial custody for 15 days. On the same day, the respondent filed Crl.M.P.No.27 of 2012, seeking police custody. Hearing of that application was taken up on 04.01.2012 and the custody of the petitioner was given to the respondent for a period of five days, by imposing certain conditions. A direction was issued to the effect that the petitioner shall be produced before the Court on 10.01.2012 to, and the question as to whether the police custody needs to be extended, shall be considered on that day. The respondent filed Crl.M.P.No.58 of 2012 seeking extension of police custody for further period of 7 days. On that day, the learned Presiding Officer of the CBI Court was on leave. The Special Judge for Economic Offences-cum-VIII Metropolitan Sessions Judge, Hyderabad (for short “Incharge Judge”) was placed incharge of that Court. Crl.M.P.No.58 of 2012 was taken up for hearing, on that day.
The respondent raised an objection as to the jurisdiction of the Incharge Judge to deal with the application. Reliance was placed upon an order passed by this Court in Crl.P.No.7134 of 2010. Overruling the objection, the incharge Court proceeded to hear the application and extended the police custody of the petitioner, by 7 days, through the order under challenge.
Sri S.Niranjan Reddy, learned counsel for petitioner submits that the learned Incharge Judge did not have jurisdiction to hear the Crl.M.P.No.58 of 2011. He contends that the CBI Court is constituted under a Notification issued by the Central Government in exercise of power under Section 3 of the Act and it is only the learned Presiding Officer of that Court, who can deal with the applications for custody or for other reliefs. He submits that the Sub-Section (2) of Section 167 of the Criminal Procedure Code, 1973 (for short “the Code”) will get attracted only when an accused is produced for the first time, before a Court, not having jurisdiction; on account of non-availability of the Presiding Officer of the Court, which is specially constituted and not when the judicial custody as well as police custody were already ordered by the Court, so constituted. Learned counsel submits that even on merits, the impugned order cannot be sustained.
Sri P.Kesava Rao, learned Standing Counsel for CBI, on the other hand, submits that the impugned order does not suffer from any legal or factual infirmity. He contends that Sub-Section (2) of Section 167 of the Code cannot be given a restricted interpretation. He contends that except that the custody cannot exceed 15 days, it is competent for a Magistrate, who does not have jurisdiction to deal with the matter, to grant police custody even if the initial production was before the specially constituted Court. He submits that the order passed by this Court in Crl.P.No.7134 of 2010 is referable to a case in post-trial stage and that the ratio laid down therein, does not apply to a case at the pre-trial stage. He has placed reliance upon the judgment of the Supreme Court in Dinesh Dalmia v. C.B.I.[1].
The point that arises for consideration is as to whether the Special Judge for Economic Offences (Incharge Judge) had the jurisdiction to pass the order challenged in the petition filed under Section 482 of the Code.
It is not in dispute that the case against the petitioner is triable by the CBI Court. As a matter of fact, not only the petitioner was produced before that Court and the police custody was sought before it by filing Crl.M.P.No.27 of 2012 custody of 5 days was given to the respondent. Crl.M.P.No.58 of 2012 was filed seeking extension of police custody. This application was allowed by the learned Incharge Judge.
It becomes relevant to take note of Sub-Sections (1) and (2) of Section 167 of the Code:
167. Procedure when investigation cannot be completed in twenty-four hours
(1) Whenever any person is arrested and detained in custody, and it appears that the investigation cannot be completed within the period of twenty-four hours fixed by section 57, and there are grounds for believing that the accusation or information is well-founded, the officer in charge of the police station or the police officer making the investigation, if he is not below the rank of sub-inspector, shall forthwith transmit to the nearest Judicial Magistrate a copy of the entries in the diary hereinafter prescribed relating to the case, and shall at the same time forward the accused to such Magistrate.
(2) The Magistrate to whom an accused person is forwarded under this section may, whether he has or has not jurisdiction to try case, from time to time, authorise the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole; and if he has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction:
A perusal of Sub-Section (2) of Section 167 of the Code makes it clear that in case an accused was liable to be produced before a particular Court and the Presiding Officer of that Court is not available at the time of production, he can be produced before a Magistrate, who does not have jurisdiction and such Court is conferred with the power to order custody of whatever type, for a period, not exceeding 15 days.
The CBI Court is a specially constituted one, under the Act, through a notification issued by the Central Government. Other Courts cannot be kept incharge of it, to discharge the same functions as does the regular Court. On 10.01.2012 the petitioner was produced before the Court. On that day the Presiding Officer was not available and the petitioner was produced before the Special Judge for Economic Offences, who was kept incharge of the CBI Court.
Had the production before the Special Judge been at the initial stage, no exception could have been taken. The petitioner was already produced before the regular CBI Court and his custody was to the police given for a limited period. Once the matter is in session of the CBI Court, it was not competent for the Special Judge, who was only an incharge, to exercise powers under Sub-Section (2) of Section 167 of the Code, and grant extension of police custody.
In Singeshwar Singh And Ors. V. State of Bihar And Ors.[2], a Division Bench of the Patna High Court explained the purport of Sub-Section (2) of Section 167 of the Code. The same High Court examined the question as to whether a Vacation Judge can grant anticipatory bail to a person, accused of committing offences defined under the Prevention of Corruption Act, 1988. In its judgment in State of Bihar v. Braj Nandan Raut[3], the High Court held as under:
“16. From the facts discussed above, it is manifestly clear that the learned Vacation/Sessions Judge, Gaya was not vested with the power of Special Judge, as required under S.3 of the Act and, therefore, it was not the Court of the Special Judge under the meaning of S.4 of the Act and therefore, it necessarily follows that the learned Vacation/Sessions Judge, Gaya had no jurisdiction to dispose of the anticipatory bail applications so filed by the accused persons. The question is answered accordingly. The order impugned, in that view of the matter, must be held to be wholly without jurisdiction as the power under S.438 of the Code of Criminal Procedure in the given case was exercised by the Court concerned admittedly who had no power to do so as the case was relating to the offences under the P.C. Act of 1988.”
This Court followed the said ratio in Crl.P.No.7134 of 2010 through order dated 01.10.2010. The facts of this case warrant application of the said principle.
Sri P.Kesava Rao, learned counsel for the respondent sought to distinguish by pleading that it pertains to the stage, after the cognisance was taken, that however hardly makes any difference.
Sub-Section (2) of Section 167 of Cr.P.C. does not give scope for any conferment of power upon a Court, which otherwise has no jurisdiction, to intervene in the proceedings, which are already before the regular Court constituted under the Act. The only occasion on which a Magistrate can order custody is if the Presiding Officer of the regular Court i.e. CBI Court not available, when an accused is produced for the first time. Once the accused was produced before the CBI Court, it is only for that Court, to take further steps, be it as regards the grant of police custody, or extension thereof. Whatever be the permissibility for a Court, that is kept incharge of another ordinary criminal Court to take various steps in a case pending before such criminal Court, an exercise of that nature can not be undertaken, in respect of a case pending before a Court, specially constituted under a specific provision of law.
The judgment of the Supreme Court in Dinesh Dalmia’s case is not directly on the point.
Though the submissions are made on merits also, this Court is not inclined to delve into the same. Even now the respondent can move an application before the CBI Court for extension of police custody.
For the foregoing reasons, the criminal petition is allowed and the order under challenge is set aside. It is left open to the respondent to move an application seeking extension of the police custody before the Court of Special Judge for CBI Cases, Hyderabad. In view of the fact that the police custody cannot be sought after expiry of 15 days from the date of initial production, the learned Presiding Officer of the Special Court for CBI Cases, shall take up the application if presented and pass appropriate orders on the same day.
______________________
L.NARASIMHA REDDY, J
12-01-2012
Note: LR copy to be marked
B/o MR.
THE HONOURABLE SRI JUSTICE L. NARASIMHA REDDY
CRIMINAL PETITION No. 662 of 2012
DATE: 12-01-2012
MR
