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2002 DIGILAW 491 (PNJ)

Karam Chand v. Union of India

2002-05-02

AMAR DUTT

body2002
JUDGMENT Amar Dutt, J. - The petitioner-Karam Chand seeks to assail the order dead 10.3.2000, by which the Special Judge, Chandigarh, has accepted the cancellation report filed by the Central Bureau of Investigations (hereinafter referred to as "the C.B.I.") in a case investigated by it, on he request of the Government of Punjab, as incorporated in notification No. SSCS/97/40 dated 7th February, 1997 to this effect. 2. According to the above notification, the Governor of Punjab had accorded his consent to the extension of the powers and jurisdiction of the members of the Delhi Special Police Establishment to the whole of the State of Punjab for the "investigation of the matter concerning transfer of about 15 Acres of government land in Mohali by the Sports Department to the Punjab Cricket Association as also for other matters connected with the utilisation of the land and the funds granted by the Government to the Punjab Cricket Association to see whether any culpable offences, attempts, abetments and misuse of officials position, have been made for private benefit." This investigation was ordered despite the fact that on the land so transferred, the Cricket Stadium had already been built, whose ambience matched that of any Stadium in the World, probably on the analogy that the end product did not justify the means adopted for setting up the same. The C.B.I. was also required to enquire into whether any culpable offences are made out under the existing laws against concerned officers in the Department of Sports, the Department of Housing and Urban Development and Industries, during the period extending from 1991 to 1996. The copy of the notification dated 7.2.1997 issued by the Chief Secretary and Secretary to the Government of Punjab, Department Vigilance was forwarded to the Director, C.B.I. by D.O. No. SSCS-97/41 of the same date. On 25th February, 1997, the Under Secretary to the Government of India, Ministry of Personnel, Public Grievances and Pensions (Department of Personnel and Training), New Delhi, issued a notification in pursuance of powers conferred on him under sub-section (1) of Section 5 read with Section 6 of the Delhi Special Police Establishment Act, 1946 extending the powers and the jurisdiction of the Delhi Special Police Establishment, Delhi, for whole of the Punjab for investigation into the above case. The formal FIR was registered by the CBI, Chandigarh on the basis of the above notification on 25.2.1997 and about three years elapsed before the investigations were finalised and a report submitted on 10.2.2000. Soon after the initiation of the investigation, there was a change of the government whereupon an effort was made to withdraw the notification which was successfully contested by the C.B.I. It is probably the delay in the finalisation of the report coupled with an apparent effort to mellow down the gravity of the misdemeanour that seems to have encouraged the filing of the present petition. 3. Ordinarily, this Court would be reluctant to scrutinize judicial orders passed by Criminal Courts functioning within its jurisdiction at the behest of busy bodies, whose only interest apparently appears to be a desire to project themselves as watch dogs of society, who try to ensure that nothing goes wrong therein. As a matter of fact it is this diffidence which was sought to be worked upon by the respondents for urging that this Court should avoid scrutinizing the validity of the order as such a course may encourage frivolous litigants like the petitioner to poke their nose into the affairs which are of no concern of theirs. According to them, the Special Judge, Chandigarh having applied his all judicial acumen to scrutinise the request of the C.B.I. to cancel the F.I.R., this Court should refrain from re-evaluating the material collected by the Investigating Agency for the purpose of finding out whether, in fact, the recommendations made by the Investigating Agency are warranted by the records. 4. In order to appreciate the purport of the objections raised by the respondents, it may be necessary to refer to judicial precedents, which fix the scope of enquiry that this Court can launch upon in exercise of its revisional and inherent powers in cases being dealt with under the Code of Criminal Procedure. The scope, no doubt, is limited to examine the records for satisfying itself with regard to the correctness, illegality and propriety of any finding, sentence or order recorded in a criminal case. The scope, no doubt, is limited to examine the records for satisfying itself with regard to the correctness, illegality and propriety of any finding, sentence or order recorded in a criminal case. While dealing with this aspect of the case, the Apex Court in Janta Dal v. H.S. Chowdharty and others, (1992) 4 S.C.C. 305, observed as under :- "Sections 397, 401 and 482 of the new Code are analogous to Sections 435, 439 and 561-A of the old Code of 1898 except for certain substitutions, omissions and modifications. Under Section 397, the High Court processes the general power of superintendence over the actions of courts subordinate to it which discretionary power when administered on administration side, is known as the power of superintendence and on the judicial side as the power of revision. In exercise of the discretionary powers conferred on the High Court under the provisions of this section, the High Court can, at any stage, on its own motion, if it so desires and certainly when illegalities and irregularities resulting in injustice are brought to its notice, call for the records and examine them. The words in Section 435 are, however, very general and they empower the High Court to call for the record of a case not only when it intends to satisfy itself about the correctness of any finding, sentence or order but also as to the regularity of any proceeding of any subordinate court." and further stated that :- "The object of the revisional jurisdiction under Section 401 is to confer power upon superior criminal courts - a kind of paternal or supervisory jurisdiction - in order to correct miscarriage of justice arising from misconception of law, irregularity of procedure, neglect of proper precaution or apparent harshness of treatment which has resulted, on the one hand, or on the other hand in some undeserved hardship to individuals. The controlling power of the High Court is discretionary and it must be exercised in the interest of justice with regard to all facts and circumstances of each particular case, anxious attention being given to the said facts and circumstances which vary greatly from case to case." In the same judgment, it was observed that :- "The Criminal courts are clothed with inherent power to make such orders as may be necessary for the ends of justice. Such power though unrestricted and undefined should not be capriciously or arbitrarily exercised, but should be exercised in appropriate cases, ex debito justiae to do real and substantial justice for the administration of which alone the courts exist. The powers possessed by the High Court under Section 482 of the Code are very wide and the very plenitude of the power requires great caution in its exercise. Courts must be careful to see that its decision in exercise of this power is based on sound principles." 5. During the course of arguments and while going through the records of the case, it was felt that the questions whether the cancellation report had actually been filed before the Special Judge competent to take cognizance of the report, as also whether while doing so, the Court was not obliged to scrutinise the validity of the conclusions arrived at by the C.B.I. that no criminal misconduct was reflected from the action of the officers involved, are two aspects, which require closer scrutiny by the Court, in view of the fact that there is an increasing tendency in the judicial officers to ignore both these aspects while dealing with the final reports. 6. The plea of the petitioner in relation to this aspect of the case appears to be that in a case where the C.B.I. had been conferred the power by the Punjab Government to investigate, throughout the State of Punjab, into the circumstances which led to the transfer of about 15 Acres of land in Mohali by the Sports Department of Punjab to the Punjab Cricket Association, (hereinafter referred to as "P.C.A.") on which request, it had registered a case under Section 120-B read with Section 420 of the Indian Penal Code and under Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption, Act, 1988 (hereinafter referred to as "the 1988 Act"), the Special Judge, C.B.I. Court, Patiala would be the competent Court where the challan or cancellation report should have been filed. The petitioner has submitted that the C.B.I. could, in these circumstances, have not filed the cancellation report before the Special Judge, C.B.I. at Chandigarh and, therefore, the impugned order is without jurisdiction and has to be set aside. 7. The petitioner has submitted that the C.B.I. could, in these circumstances, have not filed the cancellation report before the Special Judge, C.B.I. at Chandigarh and, therefore, the impugned order is without jurisdiction and has to be set aside. 7. On behalf of the respondents, shelter was sought to be taken behind the principle that objections regarding territorial jurisdiction have got to be taken at the first instance and if this is not done in any trial after its conclusion, the appellate Court would refrain from interfering. 8. While there is no dispute about this proposition of law which is based on the principle that after having consented to the assumption of territorial jurisdiction by a Court, it would not lie in the month of the party to challenge the proceedings so finalised by asserting that the decision has been taken by a Court not having territorial jurisdiction to try the same, yet, in view of the increased tendency of the Investigating Officers to file challans in Courts not having territorial jurisdiction and the reluctance of Presiding Officers trying the cases to examine this aspect of the case and embark on the trial merely on account of the fact that on completion of trial their judgments would be protected by the view taken in State of Rajasthan v. Dr. J.P. Sharma and others, 1983 Crl.L.J. 858, that wrong assumption of territorial jurisdiction would not vitiate the trial, impels this Court to examine this aspect more carefully in this case where the principle, which is invoked for rejecting the objection of territorial jurisdiction may not be applicable as no trial has taken place. Further more, as in the present case not only the question of territorial jurisdiction will have to be gone into but this Court would also have to examine the question as to whether the Special Judge, who has dealt within the matter, was duly notified under Section 4 of the 1988 Act, to deal with the case persuades this Court to delve deeper into this aspect of the case. In the present case, the question which would fall for determination is which Special Judge designated under the 1988 Act would have jurisdiction to try the case on the basis of the notification issued under Sections 3 and 4 of the 1988 Act, as a wrong assumption of jurisdiction in such cases can be interfered with by the High Court and the directions issued to the Court not having jurisdiction to refrain from proceeding with the trial as has been held in Yalagurd Ananthashayanacharya Dambal v. the State of Mysore and another, 1964(2) Crl.L.J. 486. It is this view which encourages me to go into the question of territorial jurisdiction of the Special Courts at Chandigarh in the present case as also to examine the necessity of judicial officers scrutinizing every case, which comes up before them from this angle at the initial stage, rather than relying upon the view taken in State of Rajasthan v. Dr. J.P. Sharma and others case (supra) for justifying an error consciously committed by them. 9. As already indicated above, the parameters within which the investigation was required to be conducted, were set out in the Punjab Government notification dated 7th of February, 1997. It is this notification alone which was incorporated in F.I.R. No. 8 on the basis of which the C.B.I. started the probe. On going through the records, which have been made available by Shri Rajan Gupta, Advocate, appearing on behalf of the C.B.I., it was found that immediately after the registration of the case an application was moved by the P.C.A. before the Chief Judicial Magistrate, Chandigarh, for grant of hearing to the P.C.A. before initiating an inquiry or process and issuance of any warrants including search warrants, production warrant, arrest warrants etc. in respect of alleged crime No. RC.8/97-HSC said to be under Section 120-B read with Section 420 of the Indian Penal Code and Section 13(1)(d) read with Section 13(2) of the 1988 Act, allegedly registered at the SPE, Chandigarh. This application before the Chief Judicial Magistrate, Chandigarh, was dismissed on 15.3.1997. in respect of alleged crime No. RC.8/97-HSC said to be under Section 120-B read with Section 420 of the Indian Penal Code and Section 13(1)(d) read with Section 13(2) of the 1988 Act, allegedly registered at the SPE, Chandigarh. This application before the Chief Judicial Magistrate, Chandigarh, was dismissed on 15.3.1997. The P.C.A., it appears, had simultaneously moved a similar application dated 11.3.1997 before the Special Judicial Magistrate, C.B.I., Punjab, at Patiala, which application was dismissed by the Special Judicial Magistrate, C.B.I. Punjab on 17.3.1997 in view of reply filed by the C.B.I. and the statement made by the counsel for the P.C.A. to the effect that the Chief Judicial Magistrate, Chandigarh, had, vide order dated 15.3.1997, dismissed a similar application filed before him. Thereafter, it appears that the C.B.I. had moved an application under Section 91 of the Code of Criminal Procedure (in short "the Code") against the State of Punjab and the P.C.A., for producing documents that were in their possession on 31st March, 1997. This application was allowed and directions were issued by the Special Judicial Magistrate, C.B.I. Punjab, Patiala to the State of Punjab as well as the P.C.A. for making available the documents sought for by the C.B.I. On 7th April, 1997, the Inspector, incharge of the investigation moved an application under Section 17 of the 1988 Act before the aforesaid Court seeking permission of the Court for enabling Shri D.S. Chauhan, Sub Inspector of Police, C.B.I. Chandigarh to assist him in the investigation of the case. From these three applications, which have been moved by the C.B.I., it is evident that the investigating agency was always approaching the Special Judge, C.B.I. Patiala for orders which it required for facilitating the investigation of the case and was treating the said Court as the Court which had territorial jurisdiction over the case which was registered by it on the basis of the notification dated 7th February, 1997. 10. Before proceeding any further, it would be appropriate to refer to the bare facts, which have been gathered by the investigating agency and incorporated in the final report for submitting that "no evidence was forthcoming to prove his criminal misconduct hence RDA (Regular Departmental Action) for major penalty was recommended against Sh. I.S. Bindra. No irregularity on the part of Sh. R.S. Mann has come to light during investigation. I.S. Bindra. No irregularity on the part of Sh. R.S. Mann has come to light during investigation. Smt. Tejinder Kaur was responsible for irregularity enhancing the land allotment to PCA and RDA major penalty was recommended against her. No evidence was forthcoming to prove the criminal misconduct on the part of any of the accused officials hence this case may kindly be allowed to be closed and orders may kindly be passed for return of documents." According to the final report, the Punjab Government had, in the year 1976, constituted an allotment committee consisting of Joint Secretary of Govt. Punjab Housing and Development, Punjab; Director, Local Government, Punjab, Chandigarh; Chief Town Planner, Punjab; Chief Co-ordinator and Planner, Punjab; Senior Architect, Punjab; and Director, Housing and Urban Development, Punjab, for allotment of lands to various institutions, educational and social welfare organisations in various urban estates. The Urban Development Scheme was thereafter transferred to the Punjab Housing Development Board, which revised the allotment policy as under :- (i) Utility of proposed institution is to be checked. (ii) Importance and priorities on the institution be determined. (iii) Institutions should be broad bases. (iv) Institutions should be for use and benefit of all the residents. (v) To ensure allotted land is quickly untilised and purposes which is allotted. All allotments to organisation shall be made on lease basis for 99 years. (vi) All institutions to construct at least four storeyed buildings. (vii) Cluster type allotment is to be made. (viii) Three time the reserve price be charged from private/semi Govt. organisation for office, commercial or similar purposes. (ix) Genuine parties who are in a position to construct and start the institution immediately are allotted land. (x) Premium of the land will be Rs. 100/- per Sq. Yard. 25% will be payable at the time of allotment and balance in four annual equated instalments. (xi) Charitable Trust Institutions shall be allotted land primarily for setting up of Education Institutions, hospitals, dispensary, serin and Janj- ghar etc. 11. According to the investigation, the P.C.A. is a body registered under the Societies Registration Act, 1860. Shri I.S. Bindra had remained its Vice President from 1976 to 1978 and was elected for the first time as its President in 1978 and continued to hold its office. Majority of the members of the executive were all senior officers of the Indian Administrative Services. Shri I.S. Bindra had remained its Vice President from 1976 to 1978 and was elected for the first time as its President in 1978 and continued to hold its office. Majority of the members of the executive were all senior officers of the Indian Administrative Services. In 1988, the P.C.A., it appears, had requested for allotment of site in Sector 62, Mohali for Cricket Stadium and this request was hanging fire till September, 1990, when Shri I.S. Bindra, had requested Shri S.K. Naik, Secretary, Local Government, Punjab, to transfer land measuring 10.31 Acres free of cost. The Governor-in-Council, it appears, had met on 7th March, 1991 and had taken a decision that "in so far as the provision of Sports facilities are concerned, the land earmarked for Sports Complex in Sec-59 be transferred to the Dept. of Sports, free of cost. But the sites earmarked for a sports college and the Velodrome in Sec-63 will be handed over to the Sports Deptt. only on a long lease basis at a nominal rates for the setting up of a Sports Complex in lieu of the site earlier earmarked for the purpose in Sec-62 which has already been converted, used and developed as leisure valley. The conversion of Sports College into a Sports Complex is necessary to take advantage of the Central Govt. assistance for 80% cost of construction of the complex". 12. On 7th March 1991, Shri I.S. Bindra, who was Secretary of Sports and Youth Affairs, had written the following note :- 1. In the meeting held under the Chairmanship of the Governor, it was decided that the area earmarked for Velodrome and Sports College of more than 28 acres will be transferred on a nominal long term lease to the Sports Council. The land use will be changed from Sports College to Sports Complex and Velodrome to Cricket Stadium. 12 acres of land will be required for Cricket Stadium and 16 acres for Sports Complex. Director Sports should get in touch with CTP today and get land use changed accordingly. 13 acres of land meant for Cricket Stadium be transferred to PCA and in the remaining area a plan for state level Sports Complex which should include a multipurpose Stadium, a Gymnasium and a Swimming Pool. We should try and get SPDA project sanctioned for Mohali also. 2. D.S. may please pursue this matter at personal level. 3. 13 acres of land meant for Cricket Stadium be transferred to PCA and in the remaining area a plan for state level Sports Complex which should include a multipurpose Stadium, a Gymnasium and a Swimming Pool. We should try and get SPDA project sanctioned for Mohali also. 2. D.S. may please pursue this matter at personal level. 3. This land is being transferred to the Housing Development Board. Application for giving land on lease to Sport Council and PCA may be made immediately to Housing Development Board with reference to decision taken in the meeting under the Chairmanship of Governor today." 13. In pursuance to the above note, it appears that the Director Sports Shri T.C. Gupta, issued a letter on 8.5.1991 to the Commissioner, Punjab Housing Development Board for transferring of 20 acres of land to the Sports Council on lease basis and simultaneously utilisation of land for Sport College, Velodrome and Sports Complex be allowed for Sports Stadium as decided in the meeting held on 7.3.1991. During the investigation, it is alleged to have been found that vide order of the Governor-in-Council as communicated by Shri R.S. Mann vide Endorsement No. 3/40/90-CHG-I/6154-84 dated 29.4.1991, it had been decided that the land earmarked for Sports Complex in Sector 59 be transferred to the Department of Sports free of cost and the site earmarked for Sports College and Velodrome in Sector 63 be handed over to the Sports Department on a long lease basis for setting up Sports Complex, which fact, according to the investigating agency, was not mentioned as has been mentioned by Shri I.S. Bindra in his note dated 7.3.1991. It has further been stated in the cancellation report that on the basis of undated letter of Shri M.P. Pandove, Honorary Secretary of the P.C.A., for transferring of a site for the Cricket Stadium, the Director Sports had requested the Sports Secretary for giving a Single to the P.C.A. for the construction of the Stadium vide his letter dated 26.7.1991. Shri I.S. Bindra, in his order dated 26.7.1991 observed that the possession be handed over to the P.C.A. in order to enable the Governor to lay down foundation stone on 28.7.1991. Shri I.S. Bindra, in his order dated 26.7.1991 observed that the possession be handed over to the P.C.A. in order to enable the Governor to lay down foundation stone on 28.7.1991. The Chief Administrator, Urban Estates Punjab, had, thereafter, in her notes dated 19.12.1991 and 13.2.1992 indicated that it had been decided to allot 20.11 acres of land in Sector 63, Mohali for development of Sports Complex free of cost out of which 13.56 acres have been earmarked for the Cricket Stadium to be given on long lease at the rate of Rs. 100/- per acre per annum to the Sports Department. On 19.5.1992 the Director Sports, again wrote a letter to the Secretary to Government of Punjab, Sports Department (the post at the relevant time was manned by Shri I.S. Bindra) stating that the Housing Commissioner, Punjab had allotted 20.11 acres of land at Mohali for Sports Complex free of cost and 13.56 acres of land for construction of Cricket Stadium by the P.C.A. on 99 years lease. The proposal was ultimately finalised despite the objection, which has been raised by Shri Harbhajan Singh Karkra, the then Senior Assistant, Shri R.D. Sharma, Superintendent, and the then Joint Secretary Education, to refer the matter for approval by the Finance Department. Shri I.S. Bindra, in his note, observed as under :- "This is in accordance with decision of Governor-in-Council. No need of FDs approval. Approval be conveyed." 14. It is further mentioned in the cancellation report that "under the Rules of Business of the Govt. of Punjab the Secretary Govt. of Punjab, Sports Department was not competent to lease out land to a private body like PCA. Not only did he lack official authority to take such a decision on his level but this action was highly objectionable from another angle, namely that the land was leased out to the PCA of which he himself was the President. There is a direct conflict of interest here which shows that Sh. Bindra had no qualms about gifting public property to a private organisation in which he had a direct and controlling interest. The proper procedure under the rules of businesses has to be taken at the level of Council of Minister/Governor-in- Council. There is a direct conflict of interest here which shows that Sh. Bindra had no qualms about gifting public property to a private organisation in which he had a direct and controlling interest. The proper procedure under the rules of businesses has to be taken at the level of Council of Minister/Governor-in- Council. Schedule 2 of the Rules of the Business, 1991 lists the cases which must be put up to the Cabinet for Council of Ministers for decision as required by Rule 5 of the Rules. Item No. 13 of Schedule II reads as follows :- "Proposals involving the alienation, either temporary or permanent or of sale, grant/lease of Govt. property exceeding Rs. 75,000/- of rupees in value of the revenue exceeding that amount except when such alienation, sale, grant/lease of Govt. property or abandonment/reduction of revenue is in accordance with the rule approved by the Council." 15. The procedure for taking a matter to the Council of Ministers for its consideration and decision is quite rigid and elaborate. The Administrative Department has the responsibility for taking the matter to Council of Ministers and to prepare what is called a "Cabinet Note". This note contains the following :- a) The complete background and all relevant facts of the matter. b) Discussion pros and cons of the proposal as well as its clear definition, spelling out all its implications. c) The view of the concerned Department i.e. Finance, Law Services etc., as the case may be, have to be referred to them and their concurrence formally sought and obtained and thereafter incorporated in the Cabinet Note, so that the Cabinet can consider the proposal from all angles. The proposal to which approval is sought is spelt out in a distinct paragraph. After the Cabinet Note is prepared, permission of the C.M. to put it before the Council is obtained. The note is circulated to all members of the Council of Ministers and taken up for discussion in a meeting for which a regular notice along with agenda is circulated. In the meeting the matter is discussed and a decision taken. The decision taken is put on record". 16. The note is circulated to all members of the Council of Ministers and taken up for discussion in a meeting for which a regular notice along with agenda is circulated. In the meeting the matter is discussed and a decision taken. The decision taken is put on record". 16. The proper procedure, therefore, was for the concerned Secretary to prepare a detailed Cabinet Note after following the prescribed procedure and seek the approval of the Council of Ministers to clearly spell out the proposal to transfer the land to the concerned entity. If the Council has approved the proposal, the decision would have been taken on record by the Chief Secretary and conveyed to the concerned Department, which would then have taken action to implement the decision of the Council faithfully. 17. It is also mentioned in the report that investigation further revealed that in the approval conveyed by the Governor-in-Council there is no mention of the utilisation of land for a Cricket Stadium and that the land should be given to PCA. It only says that some land is given to the Sports Department free of cost and some on long lease basis at a nominal rate for the setting up of the Sports Complex. It is significant that the reason for setting up the Sports Complex was that it would help the State Government to avail of Central Govt. Assistance for 80% cost of the construction of the Sports Complex. It is clear that the decision of the Governor-in-Council was not faithfully implemented. 18. The cancellation report further states that the investigation regarding the allegation relating to the grant-in-aid given to PCA by the PUDA Govt. has disclosed that as per Punjab Housing Development Board Act, 1972, there is no provision for release of funds to any private body like PCA. However, the funds have been released by the Punjab Housing Development Board (PHDB) now Punjab Urban Development Authority (PUDA) to the Punjab Cricket Association (PCA) as per the decision taken by the Directors. The funds were released without any agreement which is an essential part of the financial transactions. 19. The cancellation report after giving details of various financial transactions goes on to say that no evidence was forthcoming to prove his criminal misconduct hence RDA for major penalty was recommended against Sh. I.S. Bindra. No irregularity on the part of the Sh. The funds were released without any agreement which is an essential part of the financial transactions. 19. The cancellation report after giving details of various financial transactions goes on to say that no evidence was forthcoming to prove his criminal misconduct hence RDA for major penalty was recommended against Sh. I.S. Bindra. No irregularity on the part of the Sh. R.S. Mann has come to light during investigation. Smt. Tejinder Kaur was responsible for irregularly enhancing the land allotment to PCA and RDA major penalty was recommended against her. No evidence was forthcoming to prove the criminal misconduct on the part of the any of the accused officials hence this case may kindly be allowed to be closed and orders may kindly be passed for return of documents. 20. The report, it appears, was filed before the Special Judge, Chandigarh in spite of the fact that, as indicated hereinbefore, for all interim orders the C.B.I. had been invoking the jurisdiction of Special Magistrate attached with the C.B.I. Court at Patiala, for assistance in the matter. The Special Judge, Chandigarh, after the receipt of the report had, on 22.2.2000, issued notice of the same to the complainant, Chief Secretary and to Government of Punjab and on 8.3.2000, Shri Gurminder Singh, Deputy Advocate General, Punjab, appeared on behalf of the Chief Secretary and the Government of Punjab and made a statement that the Chief Secretary and the Government of Punjab have no objections if the report is accepted. After hearing the counsel for the parties, the Special Judge accepted the report vide impugned order, which is being assailed in the present petition. 21. I have heard Sarvshri D.S. Nehra, Sr. Advocate, appearing on behalf of the petitioner, S.S. Saron, Advocate, S.K. Maini, Deputy Advocate General, Punjab, Rajan Gupta, Advocate and H.S. Riar, Sr. Advocate, on behalf of the respondents and with their assistance have gone through the record of the case. 22. The present case brings into focus a sad unfortunate situation, which has come into existence on account of internal rivalries in between various members of bureaucratic set up in the State of Punjab. Advocate, on behalf of the respondents and with their assistance have gone through the record of the case. 22. The present case brings into focus a sad unfortunate situation, which has come into existence on account of internal rivalries in between various members of bureaucratic set up in the State of Punjab. This is inferable from the fact that the zeal with which a set of bureaucrats heading the administrative set up of the State of Punjab in the year 1997 set into motion with the blessings of the political leaders heading the State at the relevant time, the machinery of the premier Investigating Agency to delve into the administrative irregularities committed by some of their colleagues which only after the lapse of few days was equally matched by the zeal with which their successors after the change of Government tried to scuttle the process of the investigation so started. The end product of this battle of titans was that the process which normally should have been completed within three months was spread over three years and the end result was half hearted and half baked report, in which for all practical purposes an effort has been made more to conceal than to bare the truth. The professional investigators instead of submitting a clear cut report as to whether the criminal offence has been committed or not have arrogated upto themselves the task of the judicial officer who was to have taken cognizance thereon by suggesting that the circumstances indicate an administrative misconduct calling for major penalty rather than a criminal misconduct. The justification for doing this, according to the counsel appearing for the Investigators, is that this is a procedure which they are following in all cases. A procedure of this type, in my humble opinion, is totally uncalled for as it is likely to encourage the Courts of law to pull down their guards and approach the task entrusted to them with such casual indifference that encourages them to abdicate the duty cast on them by law and fall into the trap of overlooking some defects which ordinarily may be so glaring that they would immediately be caught by a discerning eye. I say this because a perusal of the proceedings conducted by the Special Judge indicates a failure on his part to avoid pitfalls which he would normally have been able to visualize. 23. I say this because a perusal of the proceedings conducted by the Special Judge indicates a failure on his part to avoid pitfalls which he would normally have been able to visualize. 23. It is settled law that on completion of the investigation when a report is submitted under sub-Section (2) of Section 173 of the Code and the Magistrate decides not to take cognizance of the offence and to drop the proceedings or takes the view that there is no sufficient ground for proceeding against some of the persons mentioned in the First Information Report, he/she must give notice to the informant and provide him an opportunity to be heard at the time of consideration of the report. However, either from the provisions of the Code or from the principles of natural justice, no obligation on the Magistrate to issue notice to the injured person or to a relative of the deceased for providing such person an opportunity to be heard at the time of consideration of the report can be spelt out, unless such person is the informant who has lodged the F.I.R. But even, if such person is not entitled to notice from the Magistrate, he can appear before the Magistrate and make his submissions when the report is considered by the Magistrate for the purpose of deciding what action he should take on the report. 24. It is also settled proposition of law what while examining a cancellation report, the Magistrate has three options which he can follow. The Magistrate can pass an order in agreement with the police report which would not call for any hearing or production of any evidence on the part of the accused as it goes in his favour. He can also disagree with the report submitted by the police and take cognizance of the offence or direct further investigation under Section 173(8) of the Code. While doing so, the Magistrate would also necessarily have to take into consideration the fact whether he has jurisdiction to try the case or not. He can also disagree with the report submitted by the police and take cognizance of the offence or direct further investigation under Section 173(8) of the Code. While doing so, the Magistrate would also necessarily have to take into consideration the fact whether he has jurisdiction to try the case or not. From the perusal of the proceedings, which took place after receipt of the cancellation report, it is apparent that in spite of the fact, as already indicated by me hereinbefore, during investigation, the C.B.I. had submitted to the territorial jurisdiction of the Special Judge C.B.I., Patiala in relation to obtaining orders under Section 91 of the Code and under Section 17 of the 1988 Act, for reasons which are discernible from the record they chose to file the cancellation report before the Special Judge, C.B.I. having jurisdiction in relation to offences committed in the Union Territory, Chandigarh. While there is no doubt that the Special Judge, Chandigarh, following the principles laid down in Bhagwant Singh v. Commissioner of Police and another, AIR 1985 Supreme Court 1285, did issue notice of Chief Secretary, Punjab, who according to the record was the complainant in the case, yet while doing so he overlooked the fact that this Chief Secretary immediately after the change of the Government moved for the rescinding of the notification entrusting the investigation to the C.B.I. Shri R.S. Mann, had indicated the No Objection of the Punjab Government to the dropping of the proceedings, a position which would be quite consistent with the stand of the Government which had taken the rein after Smt. Rajinder Kaur Bhattal lost elections. The effort of the petitioner to find fault with the stand taken by the Chief Secretary and the Punjab Government in these circumstances cannot be appreciated because it was consistent with the initial stand of the Government which had replaced the Government headed by Mrs. Rajinder Kaur Bhattal, which was responsible for the initiation of the investigation. In this view of the matter no fault can be found with the judgment of the Special Judge, Chandigarh, on this account and the same has got to be rejected. 25. Rajinder Kaur Bhattal, which was responsible for the initiation of the investigation. In this view of the matter no fault can be found with the judgment of the Special Judge, Chandigarh, on this account and the same has got to be rejected. 25. As already indicated by me, in my opinion, the validity of the judgment of the Special Judge, Chandigarh has got to be scrutinised from two angles, namely, (i) whether the Special Judge, Chandigarh was a Court competent to try the case and, therefore, passed the orders on the cancellation report, and (ii) whether while doing so, the Court was not obliged to scrutinize the validity of the conclusions arrived at by the C.B.I. that no criminal misconduct was reflected from the actions of the officers involved. 26. In relation to the first point, it would not be out of place to mention here that as required by law in cases of such complaints, the Special Judge had issued notice to the complainant and on behalf of the Chief Secretary, Government of Punjab, a statement was made by the Deputy Advocate General to the effect that the Government did not have any objection to the acceptance of the report. This consent of the complainant, the petitioner also seeks to assail on the ground that the Chief Secretary was none other than Shri R.S. Mann, one of the persons suspected of having allegedly committed impropriety in the sanctioning of the lease to the Punjab Cricket Association. However, this question need not detain me any further because even during the hearing of the revision, the stand of the State of Punjab remained the same and it did no choose to indicate that the consent given by the Deputy Advocate General before the trial Court did not have its approval. 27. For deciding the main issue, which has been causing concern, I may advert to the provisions of the Code relating to the investigation of a crime, the finalisation thereof and the submission of a report by the Investigating Agency. Section 156 of the Code, which reads as under :- "156. 27. For deciding the main issue, which has been causing concern, I may advert to the provisions of the Code relating to the investigation of a crime, the finalisation thereof and the submission of a report by the Investigating Agency. Section 156 of the Code, which reads as under :- "156. Police Officers power to investigate cognizable cases :- (1) Any officer in charge of a Police Station may, without the order of a Magistrate, to castigate (investigate ?) any cognizable case which a Court having the limits over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter XIII. (2) No proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this section to investigate. (3) Any Magistrate empowered under Section 190 may order such an investigation as above-mentioned." requires the officer-in-charge of the police station within whose jurisdiction over the local area in which the offence is committed to enquire into the offence. The investigation thereafter proceeds in accordance with Sections 157, 158 and 159 of the Code. Section 160 of the Code empowers the police officer to require the attendance of witnesses and examine them as per the requirement of Section 161 of the Code. During the investigation, the officer is obliged to ensure that he shall not offer or make, or cause to be offered or made any such inducement, threat or promise as is mentioned in Section 24 of the Indian Evidence Act and he is also empowered to record the confession as per Section 164 of the Code. On completion of the investigation, the Investigating Officer is required to submit a report under Section 173 of the Code before the Magistrate, who has jurisdiction over the local area in which the crime is committed. In view of Sub-sections (3) and (4) of Section 173 of the Code, the Magistrate can in cases where a cancellation is recommended either accept the cancellation report or direct the investigating agency to carry out further investigation or take cognizance of the crime in spite of the recommendations contained therein. In view of Sub-sections (3) and (4) of Section 173 of the Code, the Magistrate can in cases where a cancellation is recommended either accept the cancellation report or direct the investigating agency to carry out further investigation or take cognizance of the crime in spite of the recommendations contained therein. The decision has got to be taken by the Magistrate after appraisal of the material which has been collected by the Investigating Agency and as a matter of propriety, before accepting such a report, the officer may normally issue notice to the complainant so as to obviate any apprehension in his mind that he has not been given a fair deal by the Investigating Agency as also to enable him in the event of such a report being accepted to file a criminal complaint, if he is so advised. The scheme of the Act makes it clear that not only investigation has normally to be conducted by an officer-in-charge of the area where the offence is alleged to have been committed but also that the final report has got to be presented before the Magistrate, who exercise jurisdiction over that area, who, in the event of coming to a conclusion that a case is made out, will be entitled to proceed with the trial himself or commit the case for trial by a Court having territorial jurisdiction to try the same as per the provisions of Section 177 of the Code. 28. In the present case, since the F.I.R. was registered under Section 120-B, read with Section 420 of the Indian Penal Code and under Section 13(2) read with Section 13(1)(d) of the 1988 Act, the Court competent to try the case would be the Court of Special Judge appointed for the purpose in terms of Sections 3 and 4 of the 1988 Act, which reads as under :- "3. Power to appoint Special Judges :- (1) The Central Government or the State Government may, by notification in the Official Gazette, appoint as many Special Judges as may be necessary for such area or areas or for such case or group of cases as may be specified in the notification to try the following offences, namely :- (a) any offence punishable under this Act; and (b) any conspiracy to commit or any attempt to commit or any abetment of any of the offences specified in clause (a). (2) A person shall not be qualified for appointment as a Special Judge under this Act unless he is or has been a Sessions Judge or an Additional Sessions Judge or an Assistant Sessions Judge under the Code of Criminal Procedure, 1973." "4. Cases triable by Special Judges :- (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973, or in any other law for the time being in force, the offences specified in sub-section (1) of Section 3 shall be tried by special Judges only. (2) Every offence specified in sub-section (1) of section 3 shall be tried by the Special Judge for the area within which it was committed, or, as the case may be, by the Special Judge appointed for the case, or where there are more Special Judges than one for such area, by such one of them as may be specified in this behalf by the Central Government. (3) When trying any case, a special Judge may also try any offence, other than an offence specified in Section 3, with which the accused may, under the Code of Criminal Procedure, 1973 be charged at the same trial. (4) Notwithstanding anything contained in the Code of Criminal Procedure, 1973, a Special Judge shall, as far as practicable, hold the trial of an offence on day-to-day basis." 29. As the Special Judge under the Act also exercise magisterial powers, therefore, he would be the person before whom the Investigating Agency was required to file a charge sheet/cancellation report. 30. It is not disputed before me that the Special Judge, Chandigarh, exercises jurisdiction in relation to offences committed within the Union Territory. The notification appointing a Special Judge for the Union Territory, Chandigarh reads as under :- "Chandigarh Administration Home Department Notification The 1 December, 1994 No. 8/1/35-HID(1)-94/24671. In exercise of the powers conferred by sub-section (1) of Section 3 of the Prevention of Corruption Act, 1988, the Administrator, Union Territory, Chandigarh, is pleased to appoint the Sessions Judge as well as the first and second Additional Sessions Judges as Special Judges for the Union Territory of Chandigarh and further to specify the first Additional Sessions Judge as the Special Judge in terms of Sub-section (2) of Section 4 of the said Act, in whose courts the cases arising within the Union Territory of Chandigarh shall be instituted and tried. This supersedes the Chandigarh Administration, Home Department, notification bearing No. 3/1/35-HII(3)/6703 dated 5.5.1993." 31. It is also not disputed before me that the Special Judge empowered to try cases under the Act which have been investigated by the Delhi Special Police Establishment is conferred on Special Judge and the notification in respect whereof reads as under :- "No. 228/13/97-AVD.II Government of India Ministry of Personnel, Public Grievances and Pensions (Department of Personnel and Training) New Delhi. Dated 25.2.1997 Order S.O.........In exercise of the powers conferred by sub-section (1) Section 5 read with Section 6 of the Delhi Special Police Establishment Act, 1946 (25 of 1946), the Central Government, with the consent of the State of Punjab, Department of Vigilance vide Notification No. SSCS/97/40, dated 17th February, 1997, hereby extends the powers and jurisdiction of the members of the Delhi Special Police Establishment to the whole of the State of Punjab for the investigation of the offences relating to transfer of about 15 acres of Government land in Mohali by the Sports Department to the Punjab Cricket Association, as also for any other matters connected with the utilisation of the land and the funds granted by the Government and for any offence at attempt, abetment and conspiracy in relation to or in connection with the said offence committed in the course of same transaction or arising out of the same fact or facts in relation to the aforesaid matter." 32. The learned counsel Shri Rajan Gupta, appearing on behalf of respondent No. 7, the C.B.I., seeks to justify the presentation of the charge sheet before the Special Judge, Chandigarh on the ground that the F.I.R. was registered in Chandigarh and the conspiracy to commit the crime was hatched in Chandigarh and, therefore, the Courts at Chandigarh would have jurisdiction in the matter. Before dealing with the submission, it would be appropriate to refer to certain portions of the 41st report of the Law Commission of India regarding the revenue of the trial, which reads as under :- "A :- Place of inquiry or Trial. Introductory - "Venue" in English common law :- 15.1 Sections 177 to 189 lay down general principles for determining which shall be the proper Court to inquire into or try an offence. Introductory - "Venue" in English common law :- 15.1 Sections 177 to 189 lay down general principles for determining which shall be the proper Court to inquire into or try an offence. Following the old rule of English common law pertaining to the "venue" of a trial section 177, provides that every offence shall ordinarily be inquired into and tried by a court within the local limits of whose jurisdiction the offence was committed. In England this territorial principle of criminal law was closely connected with the institution of the grand jury who, as neighbours, gave their testimony concerning crimes committed in the locality. "Venue", as a term of law originally meant the place where the jury was summoned to come for the trial of a case; and the jurors had to be from the same parish or neighbourhood where the crime had taken place. Apart from the fact that material witnesses might be expected to be available in that locality and consequently it would be convenient both to the prosecution and to the defence if the trial took place there, the sense of social security was better maintained by requiring the dispensation of criminal justice to be done in the vicinity of the crime. xxx xxx xxx xxx xxx xxx xxx xxx Venue rules desirable in Indian conditions : 15.3. We do not think, however, that the rules relating to the proper place of inquiry and trial contained in this chapter should be dispensed with. Considering the size of the country, the distance of courts from the place of crime and difficulties of transport in the interior, it is, in our view, desirable that the inquiry and trial should ordinarily take place in the vicinity of the crime and some venue rules must be provided in the Code. General rule in section 177 not exclusive : 15.4. As the word "ordinarily" used in section 177 of the Code indicates, the general rule laid down in this section is neither exclusive nor peremptory. In the subsequent sections alternative venues for inquiry and trial are provided for in regard to certain types of offences. General rule in section 177 not exclusive : 15.4. As the word "ordinarily" used in section 177 of the Code indicates, the general rule laid down in this section is neither exclusive nor peremptory. In the subsequent sections alternative venues for inquiry and trial are provided for in regard to certain types of offences. Barring section 178 which empowers the State Government to supersede the normal rule in regard to certain sessions trials, the other provisions supplement that rule and either authorise certain venues different from the place of commission of the offence even where it is known or can be determined, or authorise different venues where the place of commission of the offence is prima facie not determinable." 33. Section 177 of the Code incorporates the principles enunciated in the above observations, which makes it clear that normally the venue of a trial would be fixed according to the place where the crime is committed. Seen in the light of this, we find that investigation in the present case was started at the behest of the Punjab Government which had apprehensions of criminal misdemeanour having been committed by certain officers in connection with its property which is situated in Mohali, Punjab. The fact that some decisions regarding the transfer of the property are taken in Chandigarh, would not, in my opinion, take the crime which has been ultimately committed in relation to a property at Mohali out of the territorial jurisdiction of Punjab, for it is not the proposal for transfer which is illegal but the actual transfer which is effected at Mohali would, if at all, attract the provisions of Section 12(2) read with Section 13(1)(d) of the 1988 Act and Section 120-B read with Section 420 of the Indian Penal Code. The jurisdiction to decide whether or not any offence has been committed by respondent Nos. 3 and 4 would, therefore, vest with the Special Judge, Patiala and not the Special Judge, Chandigarh. 34. In relation to the second question which has been framed by me, which should have been determined by the Special Judge, it would be suffice to say that on scrutinizing the judgment, it appears that he has merely reproduced the cancellation report which has been forwarded by the C.B.I. This, in my opinion, would not be sufficient discharge of the obligation conferred on him by the Code. An officer scrutinising a cancellation report will have to ensure that by executive fiat the Investigating Agency is not trying to magnify or minimise the misconduct of the persons involved and while doing so the officer is required to bear in mind the provisions of the offences which were alleged to have been committed by the persons involved. While discharging his duty, the Magistrate is not only required to ensure that no injustice is done to the accused but also that the complainant does not have any valid grievance of excessive latitude on the part of the investigating agency. In a case where the investigating agency was giving a definite opinion regarding the administrative misconduct having been committed by the persons involved, the Magistrate would be required to prima facie address himself to the question as to whether the thin line which would separate administrative misconduct from criminal misconduct has not actually been crossed. A perusal of the order shows that the Special Judge was oblivious of this task which he was required to perform and to that extent also the order would call for interference. 35. For the reasons recorded above, the Criminal Revision is allowed and order dated 10.3.2000, is set aside. The papers be sent to the Special Judge, Patiala, who shall proceed to decide the same in accordance with law. 36. Before parting with the judgment, it would be but appropriate for me to observe that it may be advisable for the Courts of law, while processing any charge sheet/final reports presented before them, to scrutinize the cases from the angle of territorial jurisdiction also, in the light of Sections 177 to 1989 of the Code, so as to ensure that the Investigating Agency does not, for the reasons best known to it, try to file the papers in a Court not having jurisdiction to try the same, rather than relying upon the provisions of Section 465 of the Code, for sustaining an irregularity that may be committed in he trial consciously or unconsciously, on account of their failure to do so. Revision allowed.