Mehta Vs. Union of India & Ors  Insc 870 (27 November 2006)
No. 431 IN WRIT PETITION (CIVIL) NO. 13381 OF 1984 WITH
I.A. Nos. 440 and 451 in Writ Petition No.13381 of 1984 I.A. Nos. 438, 439,
442-443, 445 and 447 IN I.A. No. 431 in Writ Petition No.13381 of 1984 I.A. No.
441 in I.A. No. 440 in Writ Petition No.13381 of 1984 S.B. Sinha, J.
Court entrusted investigation to the Central Bureau of Investigation (CBI)
which was constituted under the Delhi Special Police Establishment Act, 1946
(for short "the Act"). It was enacted to make provision for the
constitution of a special police force in Delhi for investigation of certain offences in the Union territories for the
superintendence and administration of the said force and for extension to other
of the powers and jurisdiction of members of the said force in regard to the
investigation of the said offences.
said Act was enacted to make provision for the constitution of a special police
force in Delhi for the investigation of certain offences in the Union
territories for the superintendence and administration of the said force and
for extension to other of the powers and jurisdiction of members of the said
force in regard to the investigation of the said offences. Section 2 empowers
the Central Government to constitute a special force.
the first respondent has been constituted in terms thereof. Sub section (2) of
Section 2 provides that subject to any orders which the Central Government may
make in this behalf, members of the said police establishment shall have
throughout any Union territory in relation to the investigation of such
offences and arrest of persons concerned in such offences, all the powers,
duties, privileges and liabilities which police officers of that Union
territory have in connection with the investigation of offences committed
therein. The said Act indisputably applies in regard to charges of corruption
made against the public servants.
Central Government has made a manual. It provides for hierarchy of the officers
who, having regard to the gravity or otherwise of the offence, would supervise
investigation. It provides for appointment of the investigating officer and the
officers supervising the investigation. CBI Manual is based on statutory
provisions of the Code of Criminal Procedure.
provides for essential guidelines for the functioning of the said body.
Narain and Others v. Union of India and Another [(1998) 1 SCC 226], this Court
directed that CBI to adhere scrupulously to the provisions of the said Manual.
under the Code of Criminal Procedure, such hierarchy of the supervising
officers is contemplated. [See State of Bihar v. J.A.C. Saldanha, (1980) 1 SCC 554].
Court in Vineet Narain (supra) while opining, upon construction of the
provisions of the Act, that the jurisdiction of CBI to investigate an offence
is to be determined with reference to the notification under Section 3 of the
Act and not by any separate order, not having that character, categorically
held that the said view was not in conflict with the decision in J.A.C. Saldanha
Manual, thus, is subject to the provisions of the Code of Criminal Procedure.
In case of conflict, although none has been pointed out, evidently, the Code of
Criminal Procedure shall prevail. Even under ordinary law, the investigating
officer has a statutory duty to investigate into an offence upon receipt of a
First Information Report as envisaged under Section 154 of the Code of Criminal
Procedure. Section 157 thereof provides for the procedure for investigation, wherefor
the only duty cast on the investigating officer is to maintain his case diary
in terms of Section 172 of the Code of Criminal Procedure. [See State of Bihar and Another v. P.P. Sharma, IAS and
Another 1992 Supp. (1) SCC 222] It is beyond any doubt or dispute that
investigation of an offence is the field exclusively reserved for the police.
It may be subject to supervision of higher ranking officer (s) but the court's
jurisdiction to have control in this behalf is beyond any controversy.
Paswan v. State of Bihar and Others [(1987) 1 SCC 288], this
fact, in our constitutional scheme, conferment of such absolute and uncanalised
discretion would be violative of the equality clause of the Constitution. The
Magistrate is therefore given the power to structure and control the discretion
of the police. If the Magistrate finds from the report made by the police
either on initial investigation or on further investigation directed by the
Magistrate, that prima facie an offence appears to have been committed, the
Magistrate is empowered to take cognizance of the offence notwithstanding the
contrary opinion of the police and equally if the Magistrate forms an opinion
that on the facts set out in the report no offence prima facie appears to have
been committed though the police might have come to a contrary conclusion, the
Magistrate can decline to take cognizance of the offence. The discretion of the
police to prosecute is thus cabined and confined and, subject to appeal or
revision, and the Magistrate is made the final arbiter on this question."
Yet again in S.N. Sharma v. Bipen Kumar Tiwari and Others [(1970) 1 SCC 653],
this Court held:
use of this expression makes it clear that Section 159 is primarily meant to
give to the Magistrate the power of directing an investigation in cases where
the police decide not to investigate the case under the proviso to Section
157(1), and it is in those cases that, if he thinks fit, he can choose the
second alternative. If the expression if he thinks fit had not been used, it
might have been argued that this section was intended to give in wide terms the
power to the Magistrate to adopt any of the two courses of either directing an investigation,
or of proceeding himself or deputing any Magistrate subordinate to him to
proceed to hold a preliminary enquiry as the circumstances of the case may
require" It was further held:
our opinion, Section 159 was really intended to give a limited power to the
Magistrate to ensure that the police investigate all cognizable offences and do
not refuse to do so by abusing the right granted for certain limited cases of
not proceeding with the investigation of the offence." The question came
up also for consideration in Hemant Dhasmana v. Central Bureau of Investigation
and another [(2001) 7 SCC 536] wherein it was held that upon conclusion of the
investigation, a report has to be filed by CBI under Section 173(2) of the Code
of Criminal Procedure to Special Judge who takes the place of Magistrate when
an offence falls under the Prevention of Corruption Act.
view of the aforementioned decisions, it is the Magistrate alone who has the
final say in the matter.
to the aforementioned, I respectfully concur with the opinion expressed by the
learned Brother Kapadia, J.
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