ORDER
Rakesh Saksena, J.
1. Applicants have filed this revision against the order dated 30-4-2008 passed by the Special Judge (Prevention of Corruption Act), Bhopal, in MJC No. 45/2008, under Section 156(3) of the Code of Criminal Procedure directing the Inspector General, Special Police Establishment, Lokayukt, Bhopal to investigate the matters alleged in the complaint filed by the respondent/complainant and to proceed under the provisions of Chapter XII of the Code of Criminal Procedure.
2. The facts of the case, in short, are that, applicant No. 1-Vivek Aggarwal, an IAS Officer belonging to the Madhya Pradesh Cadre, was posted as Collector at Indore. Applicant No. 2-Smt. Sapna Aggarwal is his wife. Complainant Premchand Guddu, who is a Member of the Legislative Assembly, filed a complaint against the applicants in the Court of Special Judge (Prevention of Corruption Act), Bhopal making allegations of corruption in high places of administration attracting the penal provisions of Sections 13(1)(d), 13(1)(e) and 13(2) of the Prevention of Corruption Act read with Sections 120-B, 420, 467, 471 and other provisions of the Indian Penal Code and praying that a First Information Report be registered and an investigation be ordered against the applicants. According to complainant, applicant No. 1-Vivek Aggarwal was appointed as Collector of District Indore on 1-6-2005, since then various builders and other persons were enjoying illegal favours from him. By indulging in illegal activities, Mr. Vivek Aggarwal earned huge property in the name of his wife Smt. Sapna Aggarwal whereby it could be assumed that his income and assets were disproportionate. On 24-3-2008, Mr. Vivek Aggarwal purchased a property situated at 7th Floor, BCM Heights, Indore for huge consideration of Rs. 26 lakhs in the name of his wife, and in the registered sale deed instead of mentioning his Indore address, mentioned the address of Panchkulla, Haryana. In the registry, there was mention of false PAN number which in fact belonged to a person who resided at Pune, Maharashtra. Applicant No. 2, who is a house wife, had no income whereby she could have purchased the property worth Rs. 26 lakhs. According to complainant, whole episode was concocted with the story of corrupt favours by Mr. Vivek Aggarwal to the builder of building BCM Heights, who had gifted a flat to him in the name of his wife. Besides the above allegations, other allegations about commission of offences of cheating the State exchequer under the Indian Stamps Act, of committing fraud and of under-valuing of the property were also made.
3. Along with the complaint, an application under Section 156(3) of the Code of Criminal Procedure was also filed by the complainant seeking direction to the Police and other Competent Authorities to investigate the matter.
4. On 30-4-2008, learned Special Judge, Bhopal heard the Counsel of complainant on the question of jurisdiction and holding that in view of the provisions of Section 179 of the Code of Criminal Procedure, an offence can be tried even at a place where a consequence of an act has ensued, despite the fact that the offence was committed at some other place, entertained the complaint and allowed the said application. Though, even according to him, on perusal of the facts averred in the complaint and the documents annexed with it, it was clear that the alleged act was not done in the territorial jurisdiction of his Court, but, since by that act a loss of State revenue was caused which was the subject-matter of inquiry, and the principal administrative office of the State Government and the head office of investigating agency was also situated at Bhopal, the Special Court, Bhopal had territorial jurisdiction to entertain the complaint. It was also considered that though the applicant No. 1 was a public servant and cognizance against him could have been taken only if the sanction under Section 19 of the Prevention of Corruption Act is granted, but it did not restrict the jurisdiction of Court to pass an order under Section 156(3) of the Code of Criminal Procedure to direct investigation into the allegation made against him. Learned Special Judge further observed that in the facts and circumstances of the case, it was necessary that there should be a high level inquiry in the matter. Since the head offices of Special Police Establishment, Lokayukt and the State Economic Offences Bureau are situated at Bhopal, they could investigate and probe the realities. For the above reasons, learned Special Judge allowed the application filed by the complainant under Section 156(3), Cr.PC, and sent the copy of complaint and the documents filed with it, to the Inspector General, SPE, Lokayukt to investigate the matter either himself or get it done by any other Competent Subordinate Officer and to proceed under the provisions of Chapter XII of the Code of Criminal Procedure.
5. Learned Senior Counsel Shri Mathur for the applicants submits that the learned Special Judge, Bhopal has misinterpreted the provisions of Section 179 of the Code of Criminal Procedure in holding that he had jurisdiction to entertain the complaint filed by the complainant on the ground that a consequence of the act done at Indore ensued at Bhopal. Though the Special Judge had himself noticed that the alleged acts had not been committed within his territorial jurisdiction, yet he assumed the jurisdiction on the ground that there occurred loss of revenue to the Government whose Head Quarter and the Head Quarter of investigating agency were situated at Bhopal. According to Shri Mathur, the view taken by the learned Special Judge is wholly contrary to law and concepts of the criminal jurisdiction. Though, it was very well on record that the applicant No. . 1 was Collector at Indore, the property purchased by his wife is situated in Indore and the concerned Sub-Registrar is also at Indore, even then the learned Special Judge, Bhopal wrongly entertained the complaint. The residence of complainant, the head quarter of the Government or the head quarter of Lokayukt being at Bhopal, cannot be made ground for fixing the territorial jurisdiction for inquiry or trial of an offence under the provision of Section 179 of the Code of Criminal Procedure. He submits that even the complainant himself in Paragraph No. 31 of the complaint averred that the commission of offence took place at Indore.
6. Shri Mathur further submits that the learned Special Judge, Bhopal before passing the order under Section 156(3), Cr.PC did not consider that the facts narrated in the complaint disclose commission of any cognizable offence. As such, the learned Judge passed the order mechanically without application of mind. He placed on record the notification F. No. 1-1-88-XXI-B, dated 24-1-1991 issued by the Madhya Pradesh Government in exercise of the powers conferred by Sub-section (1) of Section 3 of the Prevention of Corruption Act, 1988, according to which, the State Government after consultation with the High Court of Madhya Pradesh established the Special Courts of the Additional Sessions Judge for different local areas. According to notification, the cases put up by the Lokayukt organization and the State Economic Offences Bureau, are to be tried before the Special Courts notified in the schedule for specified particular local area. In the Schedule, the Court of Special Additional Sessions Judge, Indore has been notified to be the Special Court for trial of the offences occurred in local area of Indore. Learned Senior Counsel submits that under Section 156(3) of the Code of Criminal Procedure, any Magistrate empowered under Section 190 to take cognizance, has jurisdiction to order such investigation as could have been done by the Officer-in-charge of the Police Station in respect to a cognizable case which the Court having jurisdiction over the local area within the limits of such Police Station would have power to inquire into or try under the provisions of Chapter XIII, Cr.PC. Thus, the Magistrate was empowered to direct the investigation only by the officer-in-charge of Police Station who had jurisdiction over the local area within the limits of his territorial jurisdiction. According to him, in view of the provisions of Sections 3 and 4(2) of the Prevention of Corruption Act, learned Special Judge, Bhopal had no jurisdiction to entertain the complaint as neither any part of the said offence was committed within his territorial jurisdiction nor any consequence thereof had ensued in his territorial jurisdiction. In support of his arguments, learned Senior Counsel for the applicants placed reliance on the following decisions:
(1) Central Bureau of Investigation through S.P., Jaipur v. State of Rajasthan and Anr. : 2001CriLJ968 ;
(2) Maksud Saiyed v. State of Gujarat and Ors. : (2008)5SCC668 ;
(3) Deepak Agro Foods v. State of Rajasthan and Ors. : 2008(228)ELT510(SC) .
7. Shri Imtiyaz Husain, learned Counsel for the respondent/complainant, on the other hand, submits that the learned Special Judge, Bhopal did not commit error in entertaining the complaint filed by the complainant and in passing the order under Section 156(3), Cr.PC directing the Inspector General, Lokayukt to investigate into the allegations made therein. He submits that in view of the provisions of Section 462, Cr.PC it cannot be said that the learned Special Judge, Bhopal had inherent lack of jurisdiction. According to him, since there occurred no failure of justice, the order passed by the learned Special Judge cannot be set aside. Even if the learned Special Judge did not specifically say that a cognizable offence was disclosed from the facts in the complaint, the order passed by him directing investigation under Section 156(3), Cr.PC cannot be said to be illegal. Learned Counsel placed reliance on the following decisions:
(1) Ram Chandra Prasad v. State of Bihar : 1961CriLJ811 ;
(2) State of West Bengal v. S.N. Basak : [1963]2SCR52 .
8. Shri Imtiyaz Husain, learned Counsel further submits that under the provisions of Section 17 of the Prevention of Corruption Act, since no Police Officer below the rank of Deputy Superintendent of Police or the Police Officer of the equivalent rank is authorized to investigate the offence punishable under that Act, learned Special Judge was fully justified in directing investigation by the Inspector General, SPE or by any officer subordinate to him.
9. I have heard the Counsel of both the parties at length and perused the impugned order and the material on record carefully.
10. Before reaching any conclusion, it is necessary to advert to the relevant provisions, Section 156 of the Code of Criminal Procedure which reads as under:
156. Police Officer's power to investigate cognizable case.
(1) Any officer in charge of a police station may, without the order of a Magistrate, investigate any cognizable case which a Court having jurisdiction 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.
11. From the wording of the above provision, it is apparent that Sub-section (1) of Section 156 confers un-restricted powers on the officer-in-charge of the police station to investigate a cognizable offence without the order of Magistrate. The Police is empowered to investigate a cognizable offence either on the information under Section 154, Cr.PC or on its own motion, on its own knowledge or from any other reliable information. This statutory right to investigate a cognizable offence cannot be interfered with or controlled by any Court. The Court's function begins after the charge-sheet is filed. Sub-section (3) of Section 156 empowers the Magistrate to refer and direct the police to investigate a cognizable offence, but there is restriction on the Magistrate before directing the Police to investigate under Sub-section (3) that he should form an opinion that the complaint before him discloses a cognizable offence. When the allegations made in the complaint do not disclose commission of a cognizable offence, the Magistrate has no jurisdiction to order the Police investigation under Sub-section (3) of Section 156, Cr.PC. If the Magistrate passes any order under Sub-section (3) without application of mind, it would be without jurisdiction. Besides that, under Section 156(3) of the Code of Criminal Procedure, any Magistrate empowered under Section 190 to take cognizance, only had jurisdiction to order such investigation as could have been done by the officer-in-charge of the police station in respect to a cognizable case which the Court having jurisdiction over the local area within the limits of such police station would have power to enquire or try under the provisions of Chapter XIII of the Code of Criminal Procedure. Thus, the Magistrate is empowered to direct the investigation only by the officer-in-charge of the police station who has jurisdiction over the local area within his territorial jurisdiction.
12. In Maksud Saiyed v. State of Gujarat (supra), the Apex Court held 'Where a jurisdiction is exercised on a complaint petition filed in terms of Section 156(3) or Section 200 of the Code of Criminal Procedure, the Magistrate is required to apply his mind'. It is true that the learned Special Judge did not, in so many words, mention in its order that the complaint disclosed commission of a cognizable offence, but at the same time it can be gathered on perusal of it that he applied mind to the material on record. In Paragraph Nos. 2 and 5 of the impugned order, he mentioned that after perusal of the complaint and the documents annexed with the complaint he reached the conclusion that the matter deserved to be investigated at high level. However, he kept on reeling round the point of jurisdiction and made much endeavours to justify that he had territorial jurisdiction to entertain the complaint.
13. As far as the question, whether, a Magistrate under Section 156(3) of the Code of Criminal Procedure can order an investigation by any other or higher police officer than the officer-in-charge of the police station, it stands squarely covered by the decision rendered by the Apex Court in Central Bureau of Investigation through S.P., Jaipur v. State of Rajasthan (supra), where the Apex Court observed:
6. If the power of a Magistrate to order investigation by the CBI in non-cognizable cases cannot be traced in the above provision, it is not possible to trace such power in any other provision of the Code. What is contained in Sub-section (3) of Section 156 is the power to order the investigation referred to in Sub-section (1) because the words 'order such an investigation as above-mentioned' in Sub-section (3) are unmistakably clear as referring to the other sub-section. Thus the power is to order an 'officer-in-charge of a police station' to conduct investigation.
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8. It is clear that a place or post declared by the Government as police station, must have a police officer-in-charge of it and if he, for any reason, is absent in the station-house, the officer who is in next junior rank present in the police station, shall perform the function as officer-in-charge of that police station. The primary responsibility for conducting investigation into offences in cognizable cases vests with such police officer. Section 156(3) of the Code empowers a Magistrate to direct such officer-in-charge of the police station to investigate any cognizable case over which such magistrate has jurisdiction.
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10. This means any other police officer, who is superior in rank to an officer-in-charge of a police station, can exercise the same powers of the officer-in-charge of a police station and when he so exercises the power he would do it in his capacity as officer-in-charge of the police station. But when a Magistrate orders investigation under Section 156(3) he can only direct an officer-in-charge of a police station to conduct such investigation and not a superior police officer, though such officer can exercise such powers by virtue of Section 36 of the Code. Nonetheless when such an order is passed, any police officer, superior in rank of such officer, can as well exercise the power to conduct investigation, and all such investigations would then be deemed to be the investigation conducted by the officer-in-charge of a police station. Section 36 of the Code is not meant to substitute the magisterial power envisaged in Section 156(3) of the Code, though it could supplement the powers of an officer-in-charge of a police station. It is permissible for any superior officer of police to take over the investigation from such officer-in-charge of the police station either suo motu or on the direction of the superior officer or even that of the Government.
11. In a decision rendered by the Kerala High Court the complaint was forwarded by a Magistrate to the Inspector General of Police (Crimes) for investigation under Section 156(3) of the Code. When the State challenged the said order of the Magistrate the High Court held that a Magistrate cannot order any police officer, other than one who is in charge of a police station to conduct the investigation, though the Government in exercise of their executive powers can authorize any superior police officer to investigate a case and such direction can be issued by the higher officer to his subordinate officer in the police department. The said decision is reported in State of Kerala v. Moosa Haji, Kolakkacan (1993) 2 KLT 609 and also in 1994 CLJ 1288. A two Judge Bench of this Court (G.N. Ray and G.B. Pattanaik, JJ.) has affirmed the said decision of the Kerala High Court as per order dated 8-4-1997 in Criminal Appeal No. 410 of 1994. The principle involved in the said case would as well be applicable when the Magistrate is approached to direct the CBI for conducting the investigation.
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15. As the present discussion is restricted to the question whether a Magistrate can direct the CBI to conduct investigation in exercise of his powers under Section 156(3) of the Code it is unnecessary for us to travel beyond the scope of that issue. We, therefore, reiterate that the Magisterial power cannot be stretched under the said sub-section beyond directing the officer-in-charge of a police station to conduct the investigation.
14. Thus, the submission made by the learned Counsel of the complainant cannot be accepted that the learned Magistrate was justified in ordering investigation by the Inspector General of SPE Lokayukt.
15. The submission made by Shri Imtiyaz Husain, learned Counsel for the respondent that since under the provisions of Section 17 of the Prevention of Corruption Act, an offence under the said Act can be investigated only by a police officer not below the rank of Deputy Superintendent of Police or police officer of the equivalent rank, the order of learned Magistrate directing investigation by the Inspector General of SPE Lokayukt is not illegal; cannot be accepted. Section 17 of the Prevention of Corruption Act, 1988 reads as under:
17. Persons authorised to investigate. Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), no police officer below the rank-
(a) in the case of the Delhi Special Police Establishment, of an Inspector of Police;
(b) in the metropolitan areas of Bombay, Calcutta, Madras and Ahmedabad and in any other metropolitan area notified as such under Sub-section (1) of Section 8 of the Code of Criminal Procedure, 1973 (2 of 1974), of an Assistant Commissioner of Police;
(c) elsewhere, of a Deputy Superintendent of Police or a Police Officer of equivalent rank,
shall investigate any offence punishable under this Act without the order of a Metropolitan Magistrate or a Magistrate of the first class, as the case may be, or make any arrest therefor without a warrant:
Provided that if a police officer not below the rank of an Inspector of Police is authorised by the State Government in this behalf by general or special order, he may also investigate any such offence without the order of a Metropolitan Magistrate or a Magistrate of the first class, as the case may be, or make arrest therefor without a warrant:
Provided further that an offence referred to in Clause (e) of Sub-section (1) of Section 13 shall not be investigated without the order of a police officer not below the rank of a Superintendent of Police.
(Emphasis supplied by me)
16. perusal of the above provision reveals that no police officer below the rank of Deputy Superintendent of Police or Police Officer of the equivalent rank is empowered to investigate any offence punishable under this Act without the order of a Metropolitan Magistrate or a Magistrate of the first class as the case may be. In my opinion, therefore, it can legitimately be assumed that the officer-in-charge of a police station even if he might be below the rank of Deputy Superintendent of Police, would be empowered to investigate the offence under this Act under the order of a Magistrate of the first class or the Metropolitan Magistrate as the case may be.
17. The argument advanced by Shri Imtiyaz Husain, learned Counsel for the respondent that in view of the provision of Section 179 of the Code of Criminal procedure the present complaint could be entertained and proceeded at Bhopal also because consequence of the acts of accused persons ensued there; in my opinion, is misconceived. Section 179 of the Code of Criminal Procedure reads as under:
179. Offence triable where act is done or consequence ensues. - When an act is an offence by reason of anything which has been done and of a consequence which has ensued, the offence may be inquired into or tried by a Court within whose local jurisdiction such thing has been done or such consequence has ensued.
18. In my opinion, the provision of Section 179, Cr.PC cannot be stretched to the extent that any act which amounts to an offence resulting in loss or damage to the State, committed in any part of the State, can be inquired into or tried by a Court where the head office of administration of the State or the head office of investigating agency is situated. Such an interpretation of the provision would be preposterous as it will tend to open a flood-gate for trials of many offences involving the element of loss to State, in the capital town of the State. The words 'consequence which has ensued' as occurring in Section 179, Cr.PC cannot be interpreted to give such a meaning that all the acts amounting to an offence resulting in loss to the State exchequer shall be triable at Bhopal (Capital of State).
19. According to the learned Counsel for the respondent, in view of the provisions of Section 462 of the Code of Criminal Procedure, the impugned order passed by the Special Judge cannot be set aside merely on the ground that it was passed on a complaint filed before the Special Judge of a wrong sessions division. According to him, Section 462, Cr.PC provides that no order, finding or sentence passed by any Criminal Court can be set aside merely on the ground that the inquiry, trial or other proceeding in which the order was passed took place in a wrong sessions division, unless it appears that such error in fact occasioned a failure of justice.
20. Section 462 of the Code of Criminal Procedure provides:
462. Proceedings in wrong place. - No finding, sentence or order of any Criminal Court shall be set aside merely on the ground that the inquiry, trial or other proceedings in the course of which it was arrived at or passed, took place in a wrong session, division, district, sub-division or other local area, unless it appears that such error has in fact occasioned a failure of justice.
21. In Deepak Agro Foods v. State of Rajasthan and Ors. (supra), the Apex Court observed 'All irregular or erroneous or even illegal orders cannot be held to be null and void as there is a fine distinction between the orders which are null and void and orders which are irregular, wrong or illegal. Where an authority making order lacks inherent jurisdiction, such order would be without jurisdiction, null, non est and void ab initio as defect of jurisdiction of an authority goes to the root of the matter and strikes at its very authority to pass any order and such a defect cannot be cured even by consent of the parties'.
22. By the notification F. No. 1-1-88-XXI-B, dated 24th January, 1991, issued by the State Government in exercise of the powers conferred by Sub-section (1) of Section 3 of the Prevention of Corruption Act, 1988, the State Government prescribed the local areas for the Courts to try the cases put up by the Lokayukt organization and the State Economic Offences Bureau and provided that the said Courts shall have exclusive jurisdiction for trial of such cases. In view of the above notification, in my opinion, the Special Judge, Bhopal lacked inherent jurisdiction to entertain any complaint involving an offence under the prevention of Corruption Act which is said to have taken place at Indore and was triable exclusively by the Special Additional Sessions Judge, Indore only as per the notification.
23. Learned Counsel for the respondent placing reliance on State of West Bengal v. S.N. Basak AIR 1963 SC 447, submits that the statutory powers of the police to investigate cannot be interfered with by exercise of the powers under Section 439 of the Code of Criminal Procedure (old) or under the inherent powers of the Court under Section 561 (A), Cr.PC (old), when there was no case pending at the time excepting that the person against whom the investigation had started had appeared before the Court. There is no dispute about the said principle, but with due respect, the question involved in the case in hand is different. The investigation in the present case was ordered under Section 156(3), Cr.PC on the orders of the Special Judge having no territorial jurisdiction with respect to the offences alleged.
24. Lastly, placing reliance on the case of Ram Chandra Prasad v. State of Bihar (supra), learned Counsel for the respondent submits that the provisions of Section 526, Cr.PC (old) empowered the High Court to transfer any case from a Criminal Court subordinate to it to any other Court which is competent to try it and that principle also applied to the case in hand. In my opinion, in the peculiar facts and circumstances of the case, an order of transfer of the case would not be just and proper.
25. Taking into consideration all the circumstances, I am of the considered opinion that the learned Special Judge, Bhopal illegally entertained the complaint filed by the respondent for which he had no territorial jurisdiction. For entertaining the complaint he gave extraneous reasons which were not germen for conferring jurisdiction to him. He also acted beyond jurisdiction in ordering investigation by the Inspector General, Special Police Establishment, Lokayukt, Bhopal in exercise of powers under Section 156(3) of the Code of Criminal Procedure. Consequently, the order dated 30-4-2008 passed by the Special Judge (Prevention of Corruption Act), Bhopal in MJC No. 45/2008 is set aside. The proceeding of complaint is quashed. The complaint is directed to be returned to respondent/complainant Premchand Guddu, who if so wishes, may file the same in the appropriate Court at Indore to be dealt in accordance with law.
26. Revision allowed.