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2017 DIGILAW 412 (SC)

CENTRAL BUREAU OF INVESTIGATION v. PRAKASHAN C.

2017-03-07

ADARSH KUMAR GOEL, UDAY UMESH LALIT

body2017
ORDER In Crl.A.No.519 OF 2017 @ SLP(Crl.) No(s).6854/2015 1. Leave granted. Heard learned counsel for the parties. 2. The short question for consideration is whether the case investigated by the Central Bureau of Investigation (CBI) has to be tried in respect of offences in question under Section 15(1)(a)(i) read with Sections 16(a) and 19 of the Unlawful Activities (Prevention) Act, 1967 (hereinafter referred to as “UAP Act”) by the Special Court constituted by the State of Kerala in terms of notification dated 30.05.2014. 3. FIR No.780/2014 has been registered at P.S. Kadirur in Kerala in respect of an offence committed on 01.04.2014 inter-alia attracting the provisions of the UAP Act. The Central Government vide notification dated 27.10.2014 directed that the said offences be investigated by the CBI. In a matter which arose out of refusal of bail to the accused, the High Court directed the Chief Judicial Magistrate, Ernakulam to transmit the record of the case to the Sessions Court, Thalassery. It is against this order that the present appeal has been preferred. 4. Mr. Tushar Mehta, learned Additional Solicitor General appearing for the appellant, submitted that the case was required to be tried by Additional Special Sessions Court at Ernakulam in terms of notification dated 30.05.2014 issued by the State of Kerala for trial of offences investigated by the Delhi Special Police Establishment (CBI). It is submitted that though under Sections 11 and 22 of the NIA Act, 2008 (hereinafter referred to as “NIA Act), Special Courts can be constituted by the Central Government and the State Government respectively, if offences are investigated by the NIA or if offences are investigated by the State Investigating Agency. If the offence is investigated by the CBI, the jurisdiction will be with the Court constituted in terms of the above notification by the State Government. It is pointed out that it is not a case where investigation has been carried out either by the NIA or by the State Investigating Agency so as to attract Section 11 or 22 of the NIA Act. 5. On the other hand, Mr. Siddharth Luthra, learned senior counsel appearing for the accused submitted that in absence of a Special Court constituted under Section 11, the jurisdiction is either with the Special Court constituted under Section 22 or with the regular Session Court under Section 22(3) of the NIA Act. 5. On the other hand, Mr. Siddharth Luthra, learned senior counsel appearing for the accused submitted that in absence of a Special Court constituted under Section 11, the jurisdiction is either with the Special Court constituted under Section 22 or with the regular Session Court under Section 22(3) of the NIA Act. It is submitted that even if case is investigated by the CBI, the investigation in law is at par with the investigation by the State Investigating Agency and thus the procedure is governed under Section 22 of the NIA Act. It is also submitted that in absence of any applicability of Section 22, Sections 16, 17 and 19 of the NIA Act may stand excluded which will defeat the object of the NIA Act. 6. Mr. C.U. Singh, learned senior counsel appearing for the State of Kerala, submitted that there is no jurisdiction with the State Government to constitute a Special Court other than a Special Court under Section 22 of the NIA Act. Under Sections 3 and 5 of the Prevention of Corruption Act, 1988, Special Court can be constituted only to deal with the offences under the said Act or other linked offences. 7. Sections 6, 11 and 22 of the NIA Act are as follows:- “6. Investigation of Scheduled Offences.— (1) On receipt of information and recording thereof under section 154 of the Code relating to any Scheduled Offence the officer-in-charge of the police station shall forward the report to the State Government forthwith. (2) On receipt of the report under sub-section (1), the State Government shall forward the report to the Central Government as expeditiously as possible. (3) On receipt of report from the State Government, the Central Government shall determine on the basis of information made available by the State Government or received from other sources, within fifteen days from the date of receipt of the report, whether the offence is a Scheduled Offence or not and also whether, having regard to the gravity of the offence and other relevant factors, it is a fit case to be investigated by the Agency. (4) Where the Central Government is of the opinion that the offence is a Scheduled Offence and it is a fit case to be investigated by the Agency, it shall direct the Agency to investigate the said offence. (4) Where the Central Government is of the opinion that the offence is a Scheduled Offence and it is a fit case to be investigated by the Agency, it shall direct the Agency to investigate the said offence. (5) Notwithstanding anything contained in this section, if the Central Government is of the opinion that a Scheduled Offence has been committed which is required to be investigated under this Act, it may, suo motu, direct the Agency to investigate the said offence. (6) Where any direction has been given under sub-section (4) or sub-section (5), the State Government and any police officer of the State Government investigating the offence shall not proceed with the investigation and shall forthwith transmit the relevant documents and records to the Agency. (7) For the removal of doubts, it is hereby declared that till the Agency takes up the investigation of the case, it shall be the duty of the officer-in-charge of the police station to continue the investigation. ....... 11. Power of Central Government to constitute Special Courts.— (1) The Central Government shall, by notification in the Official Gazette, for the trial of Scheduled Offences, constitute one or more Special Courts for such area or areas, or for such case or class or group of cases, as may be specified in the notification. (2) Where any question arises as to the jurisdiction of any Special Court, it shall be referred to the Central Government whose decision in the matter shall be final. (3) A Special Court shall be presided over by a judge to be appointed by the Central Government on the recommendation of the Chief Justice of the High Court. (4) The Agency may make an application to the Chief Justice of the High Court for appointment of a Judge to preside over the Special Court. (5) On receipt of an application under sub-section (4), the Chief Justice shall, as soon as possible and not later than seven days, recommend the name of a judge for being appointed to preside over the Special Court. (6) The Central Government may, if required, appoint an additional judge or additional judges to the Special Court, on the recommendation of the Chief Justice of the High Court. (6) The Central Government may, if required, appoint an additional judge or additional judges to the Special Court, on the recommendation of the Chief Justice of the High Court. (7) A person shall not be qualified for appointment as a judge or an additional judge of a Special Court unless he is, immediately before such appointment, a Sessions Judge or an Additional Sessions Judge in any State. (8) For the removal of doubts, it is hereby provided that the attainment, by a person appointed as a judge or an additional judge of a Special Court, of the age of superannuation under the rules applicable to him in the service to which he belongs shall not affect his continuance as such judge or additional judge and the Central Government may by order direct that he shall continue as judge until a specified date or until completion of the trial of the case or cases before him as may be specified in that order. (9) Where any additional judge or additional judges is or are appointed in a Special Court, the judge of the Special Court may, from time to time, by general or special order, in writing, provide for the distribution of business of the Special Court among all judges including himself and the additional judge or additional judges and also for the disposal of urgent business in the event of his absence or the absence of any additional judge. ....... 22. Power of State Government to constitute Special Courts.—(1) The State Government may constitute one or more Special Courts for the trial of offences under any or all the enactments specified in the Schedule. (2) The provisions of this Chapter shall apply to the Special Courts constituted by the State Government under sub-section (1) and shall have effect subject to the following modifications, namely — (i) references to “Central Government” in sections 11 and 15 shall be construed as references to State Government; (ii) reference to “Agency” in sub-section (1) of section 13 shall be construed as a reference to the “investigation agency of the State Government”; (iii) reference to “Attorney - General for India” in sub- section (3) of section 13 shall be construed as reference to “Advocate - General of the State”. (3) The jurisdiction conferred by this Act on a Special Court shall, until a Special Court is constituted by the State Government under sub-section (1) in the case of any offence punishable under this Act, notwithstanding anything contained in the Code, be exercised by the Court of Session of the division in which such offence has been committed and it shall have all the powers and follow the procedure provided under this Chapter. (4) On and from the date when the Special Court is constituted by the State Government the trial of any offence investigated by the State Government under the provisions of this Act, which would have been required to be held before the Special Court, shall stand transferred to that Court on the date on which it is constituted. ............” 8. Notification of Kerala Government dated 30.05.2014 is as follows:- “Government of Kerala Home (C) Department NOTIFICATION G.O.(Ms.) No.110/2014/Home. Dated, Thiruvananthapuram, 30th May, 2014 16th Idavam, 1189. S.R.O. No.328/2014. – In exercise of the powers conferred by section 3 and section 5 of the Prevention of Corruption Act, 1988 (Central Act 49 of 1988), read with section 9 of the Code of Criminal Procedure, 1973 (Central Act 2 of 1974), the Government of Kerala, with the concurrence of the High Court of Kerala, hereby establish, with effect from 31st May, 2014, an Additional Special Sessions Court at Ernakulam, for the trial of offences under the Prevention of Corruption Act, 1988 investigated by the Delhi Special Police Establishment, and also other offences notified under section 3 of the Delhi Special Police Establishment Act, 1946, investigated by the Delhi Special Police Establishment (Central Bureau of Investigation Cases), as shown in the column (1) of schedule below with place of sittings an local area of jurisdiction as shown in column (2), (3) and (4), namely:- Name of the Court Place of sitting Local area of jurisdiction Revenue District Judicial District (1) (2) (3) (4) Additional special Sessions Court (Special Police Establishment/ Central Bureau of Investigation Cases)-III, Ernakulam. Ernakulam Idukki, Ernakulam, Thrissur, Palakkad, Malappuram, Kozhikkode, Wayand, Kannur and Kasaragod. Thodupuzha, Ernakulam, Thrissur, Palakkad, Manjeri, Kozhikkode, Kalpetta, Thalassery and Kasaragod. By order of the Governor, DR. NIVEDITA P. HARAN, Additional Chief Secretary to Government. Ernakulam Idukki, Ernakulam, Thrissur, Palakkad, Malappuram, Kozhikkode, Wayand, Kannur and Kasaragod. Thodupuzha, Ernakulam, Thrissur, Palakkad, Manjeri, Kozhikkode, Kalpetta, Thalassery and Kasaragod. By order of the Governor, DR. NIVEDITA P. HARAN, Additional Chief Secretary to Government. Explanatory Note (This does not form part of the notification, but it is intended to indicate its general purport.) On the basis of the directions of the Supreme Court in the case of Central Bureau of Investigation Vs. Saurin Rasiklal Shah, the Government of India has decided to set up 22 more Additional Special Sessions Courts in various States, for the trial of Central Bureau of Investigation cases. As per G.O. (Ms.) No.58/2013/Home dated 5th March, 2014, Government have sanctioned the establishment of an Additional Special Court at Enrnakulam. The offences under the Prevention of Corruption Act, 1988 and the other offences notified under section 3 of the Delhi Special Police Establishment Act, 1946 have to be tried before the Special Court. Hence, it is proposed to start the functioning of the above Court with effect from 31st May, 2014. It is also proposed to fix the local limits of the areas to which the jurisdiction of the court shall extend. The notification is intended to achieve the above object.” 9. In view of above provisions, it is clear that every scheduled offence covered by the NIA Act is not investigated by the NIA. Decision in this regard is taken by Central Government as per prescribed statutory procedure. If investigation is by NIA, Special Court under Section 11 tries the offence. If investigation is by State agency, trial is by regular Court or Special Court under Section 22. Though NIA Act is silent for cases investigated by CBI, the notification issued by Kerala State provides for such a situation. 10. In view of the notification dated 30.05.2014, constituting the Special Court for trying of offences investigated by the CBI under the Prevention of Corruption Act, 1988 or other offences specified under Section 3 of the Special Police Establishment Act, 1946, such Special Court has to try the offence. There is no conflict of any of the statues with the said notification. It is also clear that the notification has been issued with the concurrence of the Kerala High Court. 11. There is no conflict of any of the statues with the said notification. It is also clear that the notification has been issued with the concurrence of the Kerala High Court. 11. In view of above, we allow this appeal and direct that the proceedings be transferred to the Special Court constituted in terms of notification dated 30.05.2014 i.e. Additional Special Sessions Court at Eranakulam. 12. The parties are directed to appear before the Special Court for further proceedings on Monday, the 10th April, 2017. Application for intervention stands rejected. Pending applications, if any, are also stand disposed of. In T.P.(Crl.) D No.21931/2016 At this stage, learned counsel for the petitioner seeks permission to withdraw the transfer petition. The transfer petition is disposed of as withdrawn.