Moti Lal
Vs. Central Bureau of Investigation & Anr [2002] Insc 189 (9 April 2002)
M.B.
Shah & B.N. Agrawal Shah, J.
Leave
granted.
The
short question involved in this appeal iswhether the Central Bureau of
Investigation (CBI) was authorised to investigate an offence, which is
punishable under the Wild Life (Protection) Act, 1972 (hereinafter referred to
as `the Wild Life Act') as is contended that the said Act is a self contained
Code? Before deciding the said question we would narrate brief facts of the case.
The
appellant, who is resident of Delhi, was
arrested in connection with the offence punishable under Sections 9, 39(3), 44,
49, 50, 51, 57 and 58 of the Wild Life Act. It is alleged that the officers of
the Sales Tax Department conducted checking of a truck at Mohan Nagar barrier
in District Ghaziabad on the night of 18th/19th December, 1999 and a bundle of
cotton cloth was found therein, which according to the documents, was being
transported from Delhi to Siliguri. On opening the bundle, it was found that it
contained 50 skins of leopard, 3 skins of tiger and 5 skins of jungle fox. On
receipt of the said information, officers of the Forest Department, Ghaziabad arrived on the spot and seized the
skins of animals under Section 50 of the Wild Life Act. Driver and the
conductor of the truck were taken into custody and thereafter FIR was lodged
and the case was registered as Crime No. 915 of 1999 under the Wild Life Act.
By notification dated 21st
March, 2000 issued by
the Central Government, the investigation of the case was subsequently
transferred to Delhi Special Police Establishment.
The
order passed by the Central Government transferring the investigation to Delhi
Special Police Establishment was challenged by filing Criminal Misc. Writ
Petition No. 6830 of 2000 before the High Court of Allahabad with the prayer
that the appellant be released forthwith. The High Court, by the impugned
judgment and order dated 7th
February, 2001,
rejected the said petition. Hence, this appeal.
At the
time of hearing of this matter, Mr. D.N. Goburdhan, learned counsel appearing
for the appellant submitted that the Wild Life Act is a special law as
understood under Section 5 of the Code of Criminal Procedure, 1973 and it
contains comprehensive provisions for investigation, inquiry, search, seizure,
compounding of offences, trial and punishment and, therefore, the Police Force
Establishment under the Delhi Special Police Establishment Act (hereinafter
referred to as `the Act') was not empowered to investigate the case.
He also
submitted that under the Act jurisdiction of the Special Police Force is
limited in relation to the investigation of offences within the Union Territories as specified in the Notification issued under Section 3 of
the Act. In support of his contention he relied upon the decision rendered by
this Court in Central Bureau of Investigation vs. State of Rajasthan & Ors.
[(1996) 9 SCC 735]. As against this, learned counsel appearing on behalf of the
respondents submitted that before transferring the investigation, the Central
Government has issued Notification, as required under Section 5 of the Act and
the State of U.P. has also issued necessary consent order, as required under
Section 6 of the said Act. Hence, the CBI is having jurisdiction to investigate
the offence.
For
appreciating the said contentions, we would refer to relevant parts of Sections
3, 5(1) and 6 of the Act which read as under: - "3. Offences to be
investigated by special police establishment.The Central Government may, by
notification in the Official Gazette, specify the offences or classes of
offences which are to be investigated by the Delhi Special Police
Establishment.
5.
Extension of powers and jurisdiction of special police establishment to other
areas.
(1)
The Central Government may by order extend to any area (including Railway
areas), in a State, not being a Union Territory the powers and jurisdiction of
members of the Delhi Special Police Establishment for the investigation of any
offences or classes of offences specified in a notification under section 3.
(2)
(3).
6.
Consent of State Government to exercise of powers and jurisdiction.Nothing
contained in section 5 shall be deemed to enable any member of the Delhi
Special Police Establishment to exercise powers and jurisdiction in any area in
a State, not being a Union territory or railway area, without the consent of
the Government of that State." Admittedly, in exercise of the powers
conferred by Section 3 of the Act, notification dated 24.1.1996 was issued by
the Central Government specifying that offences punishable under Section 51 of
the Wild Life Act could be investigated by the Delhi Special Police
Establishment. Thereafter, the State of U.P. has issued the Notification, as
required under Section 6 of the Act wherein it has been stated that the State
of Uttar Pradesh is pleased to accord the consent to the extension of powers
and jurisdiction of the members of the Delhi Special Police Establishment in
the investigation of the Offence(s) punishable relating to the seizure of skin
of Tiger and Leopard under Schedule 1 of the Wild Life Act, namely, case Crime
No. 915/99 under Sections 9/39(3), 44, 48, 49, 50, 51, 57, 58 of the Wild Life
Act and also case Crime No. 11/2000 under Section 429/379/411 IPC and Section
49B/51 of the Wild Life Act and also under Section 10/15 of the Animal Cruelty
Act. Subsequently, the Central Government had issued a Notification, as
contemplated under Section 5 of the Act empowering members of Delhi Special
Police Establishment for investigating the aforesaid cases. In view of the
Notifications issued by the Central Government under Section 5 of the Act and
the Notification issued by the State of U.P. according consent to the extension
of powers and jurisdiction of the members of the Delhi Special Police Establishment
to investigate the offences, the contention raised by the learned counsel for
the appellant that the CBI does not have jurisdiction to investigate the matter
is without any substance.
Keeping
the aforesaid Notifications in mind, we would first refer to the relevant
provisions of the Wild Life Act. It is the contention of the learned counsel
for the appellant that Section 50 prescribes exhaustive procedure to
investigate and seize the articles specified therein. It also provides the
procedure for the arrest of the persons, who are found in possession of the
articles mentioned therein. It is his contention that sub-sections (1), (8) and
(9) of Section 50 make the position abundantly clear that the officers
mentioned and authorised under the Act, would only have jurisdiction to
investigate the offences under the Wild Life Act. He also contended that
sub-section (9) of Section 50 makes a departure and provides that evidence
recorded by the officer empowered under sub- section (8) of Section 50 is made
admissible in any subsequent trial before the magistrate and, therefore, also
the police officer would not be entitled to investigate the offence because the
evidence recorded by the police officer is inadmissible at the trial under the
Evidence Act.
For
appreciating the said contention, we would refer to the relevant provisions of
Sections 50 and 55:
"Chapter
VIPrevention and Detection of Offences.
50.
Power of entry, search, arrest and detention.
(1)
Notwithstanding anything contained in any other law for the time being in
force, the Director or any other officer authorised by him in this behalf or
the Chief Wild Life Warden or the authorised officer or any Forest Officer or
any Police Officer not below the rank of a sub- inspector, may, if he has
reasonable grounds for believing that any person has committed an offence
against this Act,-
(a)
require any person to produce for inspection any captive animal, wild animal,
animal article, meat, trophy, uncured trophy, specified plant or part or
derivative thereof in his control, custody or possession, or any licence,
permit or other document granted to him or required to be kept by him under the
provisions of this Act;
(b)
stop any vehicle or vessel in order to conduct search or inquiry or enter upon
and search any premises, land, vehicle or vessel, in the occupation of such
person, and open and search any baggage or other things in his possession;
(c)
seize any captive animal, wild animal, animal article, meat trophy or uncured
trophy, or any specified plant or part or derivative thereof, in respect of
which an offence against this Act appears to have been committed, in the
possession of any person together with any trap, tool, vehicle, vessel or
weapon used for committing any such offence and, unless he is satisfied that
such person will appear and answer any charge which may be preferred against
him, arrest him without warrant and detain him:
Provided
that where a fisherman, residing within ten kilometres of a sanctuary or
National Park, inadvertently enters on a boat, not used for commercial fishing,
in the territorial waters in that sanctuary or National Park, a fishing tackle
or net on such boat shall not be seized.]
(4)
Any person detained, or things seized under the foregoing power, shall
forthwith be taken before a Magistrate to be dealt with according to law.
(5)
Any person who, without reasonable cause, fails to produce anything, which he
is required to produce under this section, shall be guilty of an offence
against this Act.
(8)
Notwithstanding anything contained in any other law for the time being in
force, any officer not below the rank of an Assistant Director of Wild Life
Preservation or Wile Life Warden shall have the powers, for purposes of making
investigation into any offence against any provision of this Act,-
(a) to
issue a search warrant;
(b) to
enforce attendance of witnesses;
(c) to
compel the discovery and production of documents and material objects; and (d)
to receive and record evidence.
(9)
Any evidence recorded under clause (d) of sub- section (8) shall be admissible
in any subsequent trial before a Magistrate provided that it has been taken in
the presence of the accused person."
55.
Cognizance of offences.No Court shall take cognizance of any offence against
this Act on the complaint of any person other than
(a) the
Director of Wild Life Preservation or any other officer authorised in this
behalf by the Central Government; or
(b) the
Chief Wild Life Warden, or any other officer authorised in this behalf by the
State Government; or
(c) any
person who has given notice of not less than sixty days, in the manner
prescribed, of the alleged offence and of his intention to make a complaint, to
the Central Government or the State Government or the officer authorised as
aforesaid."
At this
stage, we would mention that the Central Government has issued notification
dated 7th April 2000 under the provisions of clause (a) of Section 55 of the
Wild Life Act, authorizing the officers of Delhi Special Police Establishment
not below the rank of Deputy Superintendent of Police, to file complaints with
regard to the offences punishable under the Act in the areas in their
respective jurisdiction. Therefore, it cannot be said that the CBI was not
entitled to file the criminal complaint against the appellant.
Further,
considering sub-section (1) of Section 50, it is apparent that under the Wild
Life Act, the Director or any other officer authorised by him in this behalf or
the Chief Wild Life Warden or the authorised officer or any Forest Officer are empowered
to exercise the powers mentioned in sub-clauses (a), (b) and (c). Not only
this, but it specifically empowers the Police Officer not below the rank of
sub- inspector to inspect, conduct search or hold inquiry or seize articles, as
provided in clauses (a), (b) and (c). This would certainly mean that the Police
Officers are not excluded from investigating the offences under the Act.
Sub-section (1) starts with a non-obstante clause that 'notwithstanding
anything contained in any other law for the time being in force' which would
include the Code of Criminal Procedure and the Officers mentioned therein are
also entitled to inspect, search or seize the articles mentioned in clauses
(a), (b) and (c). This would mean that apart from the Police Officers not below
the rank of Sub- Inspector, other officers as mentioned above are given special
powers for the purpose of prevention and detection of the offence under the
Act.
Similarly,
sub-section (8) empowers the officer not below the rank of an Assistant Director
of Wild Life Preservation or Wild Life Warden for the purposes of making
investigation into any offence against any provision of the Act:to issue search
warrant; to enforce the attendance of witnesses; to compel the discovery and
production of documents and material objects; and to receive and record
evidence. Further, sub-section (9) provides that evidence recorded by such
officer would be admissible in the trial if it is taken in presence of the
accused person. But this would have no bearing on the question whether the
Police Officers are entitled to investigate the case or not.
As
provided under sub-section (1) of Section 50, 'police officers' are not
excluded for the purpose of investigation including inspection, search and
seizure of the offending articles. No doubt, special powers are conferred to
other officers but that is in consonance with sub-section (2) of Section 4 of
Code of Criminal Procedure.
Section
4 of the Code reads thus:
"4.
Trial of offences under the Indian Penal Code and other laws.
(1)
All offences under the Indian Penal Code (45 of 1860) shall be investigated,
inquired into, tried and otherwise dealt with according to the provisions
hereinafter contained.
(2)
All offences under any other law shall be investigated, inquired into, tried,
and otherwise dealt with according to the same provisions, but subject to any
enactment for the time being in force regulating the manner or place of
investigating, inquiring into, trying or otherwise dealing with such offences.
The
aforesaid section inter alia specifically provides that all offences under any
other law shall be investigated, inquired into, tried and otherwise dealt with
according to the Code of Criminal Procedure but it shall be subject to any
enactment for the time being in force regulating the manner or place of
investigation, inquiring into, trying or otherwise dealing with such offences.
In view of specific provision under the Wild Life Act, apart from the police
officer not below the rank of sub-inspector, the Director or any other officer authorised
by him in this behalf or the Chief Wild Life Warden or authorised officer or
any Forest officer can inspect, conduct search or inquire, seize article
mentioned in the clauses (a), (b) and (c) of sub-section (1). To this extent,
there is contrary provision under the Wild Life Act and would prevail as
provided under sub-section (2) of Section 4 of Code of Criminal Procedure.
Learned
counsel for the appellant referred to the decision in the case of State of
Rajasthan (supra) wherein this Court dealt with the questionwhether the CBI can
investigate the offences for violation of the Foreign Exchange (Regulation)
Act, 1973 ("FERA" for short), more so, when the offence is alleged to
have been committed outside the Indian territory? After referring to Sections
3, 4 and 5 of FERA, the Court held that the Act enacts that for implementing
and enforcement of provisions of FERA, different classes of officers of
Enforcement have been constituted in Section 3. The Court observed that from a
combined reading of sections 3, 4 and 5 of FERA, it was clear that primarily
officers of Enforcement Directorate as mentioned in Sections 3 and 4 have been
empowered to exercise the powers and discharge the duties conferred or imposed
on such officers of the Enforcement Directorate under FERA. And, in such cases,
the Central Government under Section 5 can authorise any officer of the Customs
or Central Excise Officer or Police Officer or any officer of the Central
Government or State Government to exercise such of the powers and discharge
such of the duties of the Director of Enforcement or any other officer of
Enforcement under FERA as may be specified subject to such conditions and
limitations as deemed fit by the Central Government. The Court also held that
as it was nobody's case that any notification has been issued under FERA authorising
the member of Delhi Special Police Establishment to discharge the duties and
functions of an officer of Enforcement Directorate and in absence of such
notification under FERA, a member of Delhi Special Police Establishment cannot
be held to be an officer under FERA and, therefore, is not competent to
investigate into the offences under FERA. The Court further observed that FERA
being a special law containing provisions for investigation, inquiry, search,
seizure, trial and imposition of punishment for offences under FERA, section 5
of the Code of Criminal Procedure is not applicable in respect of offences
under FERA.
In our
view, the aforesaid judgment has no bearing in the present case. As stated
above, the Central Government has issued notification dated 21.3.2000 under
Section 5 read with Section 6 of the Act empowering the CBI for investigation
of the case against the appellants under the Wild Life Act and Indian Penal Code.
The scheme of Section 50 of the Wild Life Act makes it abundantly clear that
Police Officer is also empowered to investigate the offences and search and
seize the offending articles. For trial of offences, Code of Criminal Procedure
is required to be followed and for that there is no other specific provision to
the contrary. Special procedure prescribed is limited for taking cognizance of
the offence as well as powers are given to other officers mentioned in Section
50 for inspection, arrest, search and seizure as well of recording statement.
The power to compound offences is also conferred under Section 54. Section 51
provides for penalties which would indicate that certain offences are
cognizable offences meaning thereby police officer can arrest without warrant.
Sub-section (5) of Section 51 provides that nothing contained in Section 360 of
the Code of Criminal Procedure or in the Probation of Offenders Act, 1958 shall
apply to a person convicted of an offence with respect to hunting in a
sanctuary or a national park or of an offence against any provision of Chapter
5A unless such person is under 18 years of age. The aforesaid specific
provisions are contrary to the provisions contained in Code of Criminal
Procedure and that would prevail during the trial. However, from this, it
cannot be said that operation of rest of the provisions of the Code of Criminal
Procedure are excluded.
In
this view of the matter, there is no substance in the contention raised by the
learned counsel for the appellant that Section 50 of the Wild Life Act is
complete code and, therefore, CBI would have no jurisdiction to investigate the
offences under the said Act.
Hence,
it cannot be said that the judgment and order passed by the High Court
rejecting the petition filed by the appellant is in any way illegal or
erroneous.
In the
result, appeal is dismissed.
.J.
(M. B.
SHAH) .J.
(B. N.
AGRAWAL) April 9, 2002.
Back
