ORDER
Deepak Verma, J.
1. This order shall also govern disposal of M.Cr.C. No. 10497/2005 (Shankar Mihani and Ors. v. State of M.P.) and M.Cr.C. No. 10538/2005 (Jitendra Bhawsar and Ors. v. State of M.P.) as common question of law as to applicability of the provisions of Chapter VII-A of the Code of Criminal Procedure (hereinafter referred to as 'the Code') is involved in all the aforesaid petitions.
2. The Station House Officer, Police Station, Itarsi, moved applications before Judicial Magistrate First Class, Itarsi for initiating proceedings against the petitioners under Chapter VII-A of the Code and to pass appropriate orders for attachment and forfeiture of the properties which could be identified to have been derived from or used in commission of offence and out of their criminal activities. According to police, petitioners were involved in criminal activities since long and had accumulated huge wealth derived directly or indirectly by or such criminal and unlawful activities. According to police, the same were held either in their names or in the names of their relatives, which were required to be traced out and identified. Hence, a prayer was made by police for a direction under Section 105D of the Code, authorizing them to take all necessary steps for tracing out and identifying such properties. Almost on identical facts, similar proceedings were initiated against other petitioners in the aforesaid connected M.Cr.Cs.
3. According to petitioners, police was harassing and humiliating them and were trampling upon their rights guaranteed to them under the Constitution of India. Thus, they were constrained to move this Court with a prayer to exercise the inherent jurisdiction conferred on this Court under Section 482 of the Code.
4. During the pendency of these petitions at the main seat, while considering an identical matter registered as M.Cr.No. 1042/2006 (Ashok v. State of M.P.), at Indore, learned Single Judge (W.A. Shah, J.), in his order dated 28-3-2006 took the view that the provisions of Section 105C, 105D and 105G as appearing in Chapter VII-A of the Code apply to the territories which are foreign territories and in which by reciprocal arrangements, provisions thereof are made applicable.
5. These connected matters came up for consideration at the main seat before learned Single Bench (Rakesh Saksena, J.). While advancing arguments, the learned Counsel for the petitioners placed reliance on the following observations made by W.A. Shah, J., in the matter of Ashok (supra):
6. It appears that the learned Magistrate had passed the order impugned under the provisions of Sections 105C, 105D and 105G of the Code. The order impugned does not show that the learned Magistrate ever considered the provisions of Section 105 of the Code applies only in cases where there is reciprocal arrangement with the foreign countries for extension of Code of Criminal Procedure to their territories. These provisions under Section 105 as well as provisions applied by the Magistrate only apply to the territories which are foreign territories and in which by reciprocal arrangement, provisions of the Code are applicable. Under these circumstances, the impugned order which the learned Magistrate passed in clearly without jurisdiction as the provisions to which he has resorted are not available to be applied to the local areas.
6. However, after hearing both the parties, learned Single Judge (Rakesh Saksena, J.), expressed his disagreement with the view taken by W.A. Shah, J. in the aforesaid matter of Ashok (supra), by observing that Sections 105A to 105J of the Code apply to the local area in India as well as to the foreign territories in which, by reciprocal arrangements, provisions of the Code are made applicable and, referred the following question for a decision by a Larger Bench. Hon. Chief Justice was pleased to assign the job to this Bench. That is how, the matter has been placed before us. The question reads as under:.whether the provisions of Sections 105A to 105L, incorporated in Chapter VII-A of the Code of Criminal Procedure, are applicable only to the territories which are foreign territories and in which by reciprocal agreement provisions of the Code are made applicable or the provisions are applicable within the territories of India also.
7. We have heard the learned Counsel for the petitioners and the learned Additional Advocate General for the State.
8. Chapter VII-A containing Sections 105A to 105L has been inserted in the Code by the Code of Criminal Procedure (Amendment) Act, 1993 (Act No. 40 of 1993), which has come into force w.e.f. 20-7-1993.
9. Section 105A deals with definitions. 'Contracting State' has been defined in Section 105A(a) which reads as under:
(a) 'contracting State'means any country or place outside India in respect of which arrangements have been made by the Central Government with the Government of such country through a treaty or otherwise.
Section 105B deals with assistance in securing transfer of persons. This section has Sub-sections (1) to (5) in it. The words under Sub-section (1) starts with the following words : 'Where a Court in India...'. Similarly, Sub-section (3) of the aforesaid section also starts with the aforesaid words.
Section 105C takes into its ambit assistance in relation to orders of attachment or forfeiture of property. It has 3 sub-section into it. Again Sub-section (1) starts with the words: 'whether a Court in India....
Section 105D gives a power to the Court to direct any police officer not below the rank of Sub-Inspector of Police to take all steps necessary for tracing and identifying such property on receipt of letter of request under Sub-section (3) of Section 105C.
Section 105E gives a power to the officer conducting an enquiry or investigation under Section 105D to make an order for seizure such property where he has reason to believe that any property in relation to which such enquiry or investigation is being conducted is likely to be concealed, transferred or dealt with in any manner which will result in disposal of such property. However, any order made under Sub-section (1) shall have no effect unless the said order is confirmed by an order of the said Court, within a period of 30 days of its being made.
Section 105F postulates power of the Court to appoint the District Magistrate of any area where the property is situated or any other officer to be nominated by District Magistrate to perform the functions of an Administrator of such property. Other Sub-sections (2) and (3) of the aforesaid section give powers to the Administrator appointed under Sub-section (1) to deal with the property as enumerated in the said sub-section.
Notice of forfeiture of property is required to be served on such persons calling upon him to reply within 30 days indicating the source of income, earning or assets, out of which or by means of which he has acquired such property, the evidence and other relevant information and particulars on which he places reliance has to be given under Section 105G.
Section 105H deals with the forfeiture of property in certain cases.
Section 105I gives power to the Court to make an order giving an option to the person affected to pay. In lieu of forfeiture, fine equal to the market value of such part. Other sub-sections deal with power of the Court to give reasonable opportunity to the person affected to be heard and with regard to revocation of the declaration of forfeiture under Section 105H and thereupon such property shall stand released.
Section 105J deals with the contingency where, after the making of an order under Sub-section (1) of Section 105E of the issue of notice under Section 105G, if any property referred to in the said order or notice is transferred by any mode whatsoever such transfers shall, for the purposes of the proceedings under this Chapter, can be ignored and in case such property is subsequently forfeited to the Central Government, then the transfer of such property shall be deemed to be null and void.
Under Section 105K procedure is prescribed in respect of letter of request to the contracting States and the form under which such a request is to be sent.
Section 105L deals with applications and powers in this Chapter. It confines application of this Chapter in relation to a contracting States with which reciprocal arrangements have been made subject to such conditions, exceptions or qualifications as are specified in the said notification.
10. It is relevant to note that these provisions, as now contained in Chapter VII-A of the Code, are prefixed by the heading RECIPROCAL ARRANGEMENTS FOR ASSISTANCE IN CERTAIN MATTERS AND PROCEDURE FOR ATTACHMENT AND FORFEITURE OF PROPERTY, whereas Section 105 of the Code is controlled by the heading RECIPROCAL ARRANGEMENT REGARDING PROCESSES.
11. Statement of objects and reasons for bringing the Chapter VII-A of the Code into statute book are mentioned herein below:
The Government of India has signed an agreement with the Government of United Kingdom of Great Britain and Northern Ireland for extending assistance in the investigation and prosecution of crime and the tracing, restraint and confiscation of the proceeds of crime (including crimes involving currency -transfer) and terrorist funds, with a view to check the terrorist activities in India and the United Kingdom. For giving full effect to this agreement, it is proposed to amend the Code of Criminal, 1973 to provide for-
(a) the transfer of persons between the contracting States including persons in custody for the purpose of assisting in investigation or giving evidence in proceedings;
(b) attachment and forfeiture of properties obtained or derived from the commission of an offence that may have been or has been committed in the other country; and
(c) enforcement of attachment and forfeiture orders issued by a Court in the other country.
(2) The Bill seeks to achieve the above object.
12. The then Minister of Home Affairs Shri S.B. Chbuhan, while moving the Bill to amend the Code delivered the following speech in Lok Sabha:
I beg to move: That the Bill further to amend the Code of Criminal Procedure, 1973, as passed by Rajya Sabha, be taken into consideration. There is an increasing realization all over the world that acts of crime and terrorism are fast acquiring international complexion. This trend has been substantially facilitated by the rapid strides made in recent years in the field of transportation and communication. The nexus across countries between the perpetrators and supporters of crime and terrorism can be destroyed and guilty brought to book only if widest measure of cooperation is established between the actions of law enforcing agencies of different countries. As a first step in this direction, an agreement between the Government of India and the Government of United Kingdom of Great Britain and Northern Ireland was signed in London on 22nd September, 1922 to cooperate mutually in the investigation and prosecution of crime and the tracing, restraint and confiscation of the proceeds and instruments of crime and terrorist funds. The agreement between contracting States provides inter alia for search, attachment and forfeiture of property derived from the commission of an offence, assistance in search and transfer of persons wanted for criminal activity, assistance in investigation and furnishing of evidence, etc. In order to implement this agreement it has become necessary to amend the Criminal Procedure Code.
This Bill seeks to amend the Code of Criminal Procedure, 1973 to provide for this.
I command the Bill for consideration of this august House.
13. The answer to the question referred to us, in essence, requires consideration of the following questions:
(1) Whether the provisions of Chapter VII-A are the ordinary law of the land or these are applicable to only specified offence.
(2) Whether the provisions of Chapter VII-A override the provisions of Chapters V, VI and VII of the Code relating to search and seizure etc. during investigation.
14. The learned Additional Advocate General while placing reliance on Ram Das Naik v. A.R. Antulay : 1984CriLJ613 , has strenuously contended that when the language of the statute is clear recourse of the statement of objects and reasons or any other aid to construction of the provisions of Chapter VII-A of the Code is not permissible. According to him, where the words in a statute are ambiguous and may be open to more than one meaning or sense, debate in the Parliament or the report of the commission or the committee, which preceded the amending Act cannot be used for cutting down the plain meaning of the words in the provisions. However, as further explained by Hon'ble the Apex Court, the Court may look at the surrounding circumstances when the statute was enacted. In this regard, the following illuminating observations made by Hon'ble the Supreme Court in an earlier precedent (S.P. Gupta v. President : [1982]2SCR365 ), also deserve reference:
It is elementary that law does not operate in a vacuum. It is not an antique to be taken down, dusted admired and put back on the shelf, but rather it is a powerful instrument fashioned by society for the purpose of adjusting conflicts and tensions which arise by reason of clash between conflicting interests. It is, therefore, intended to serve a social purpose and it cannot be interpreted without taking into account the social, economic and political setting in which it is intended to operate.
15. Accordingly, when the material words are capable of bearing two or more constructions, it is desirable to consider the following matters in construing various sections of the Act:
1st - What was the law before the making of the amendment ?
2nd - What was the mischief and defect for which the law did not provide ?
3rd - What is the remedy that the amendment has provided and
4th - What is the reason of the remedy ?
16. Sans the powers as contained in Chapter VII-A, ordinary law of the land under the Code existed for 108 years, under which police investigates and no Judicial Magistrate has any power of control over such investigation. See AIR 1970 SC 786 (S.H. Sharma v. Bipin Kumar Tiwari). But under the provisions as contained in Chapter VII-A of the Code, Court has been given power and jurisdiction to monitor and control investigation with regard to properties which might have been derived or obtained directly or indirectly by any person as a result of criminal activities (including crime involving currency transfers). This is the basic difference between the powers contained in the Code and the powers contained in Chapter VII-A of the Code.
Section 41 of the Code falling in Chapter V of the Code deals with the powers of the police officer who arrests any person without an order from the Magistrate or without a warrant.
17. General provisions relating to search, seizure and forfeiture are contained in Sections 91 to 101 of the Code. Section 102 envisages power to police officer to seize certain properties whereas the power to search a place even without a search warrant is given to police officer under Section 165 of the Code.
18. Sections 451 and 452 falling in Chapter XXXIV of the Code, deal with order of custody and disposal of property pending trial in certain cases and order for disposal of property at conclusion of trial respectively. Further, Section 457 of the Code the Magistrate has the power to pass order of disposal of a property seized by the police but not produced before him during enquiry or trial.
19. Now, let us also have a general conspectus of such provisions of the Code as are applicable to investigation relating to an offence committed outside India, an offence subject matter or proceeds of which are situated in a foreign territory and other similar type of offences.
20. At the outset, reference may be made to Section 41(1)(g) of the Code, which is reproduced hereinbelow:
(g) who has concerned in or against whom a reasonable complaint has been made, or credible information has been received or a reasonable suspicion exists, of his having been concerned in, any act committed at any place out of India which, if committed in India would have been punishable as an offence, and for which he is, under any law relating to extradition or otherwise, liable to be apprehended or detained in custody in India.
21. The other relevant provisions are contained in the Sections 166A and 166B of the Code which were inserted by Criminal Procedure Code (Amendment Act) 10 of 1990. These provisions read as under:
166-A. Letter of request of Competent Authority for investigation in a country or place outside India.- (1) Notwithstanding anything contained in this Code, if, in the course of an investigation into an offence, an application is made by the Investigating Officer or any officer superior in rank to the Investigating Officer that evidence may be available in a country or place outside India, any Criminal Court may issue a letter of request to a Court or an Authority in that country or place competent to deal with such request to examine orally any person supposed to be acquainted with the facts and circumstances of the case and to record his statement made in the course of such examination and also to require such person or any other person to produce any document or thing which may be in his possession pertaining to the case and to forward all the evidence so taken or collected or the authenticated copies thereof or the thing so collected to the Court issuing such letter.
(2) The letter of request shall be transmitted in such manner as the Central Government may specify in this behalf.
(3) Every statement recorded or document or thing received under Sub-section (1) shall be deemed to the evidence collected during the course of investigation under this Chapter.
166-B. Letter of request from a country or place outside India to a Court or an Authority for investigation in India.- (1) Upon receipt of a letter of request from a Court or an Authority in a country or place outside India competent to issue such letter in that country or place for the examination of any person or production of any document or thing in relation to an offence under investigation in that country or place, the Central Government may, if it thinks fit-
(i) forward the same to the Chief Metropolitan Magistrate or Chief Judicial Magistrate or such Metropolitan Magistrate or Judicial Magistrate as he may appoint in this behalf, who shall thereupon summon the person before him and record his statement or cause the document or thing to be produced; or
(ii) send the letter to any police officer for investigation, who shall thereupon investigate into the offence in the same manner,
as if the offence had been committed within India.
(2) All the evidence taken or collected under Sub-section (1), or authenticated copies thereof or the thing so collected, shall be forwarded by the Magistrate or police officer, as the case may be, to the Central Government for transmission to the Court or the Authority issuing the letter or request, in such manner as the Central Government may deem fit.
22. In Union of India and Anr. v. W.N. Chadha 1993 Supp (4) SCC 260, Hon'ble the Apex Court while laying down the principle that, before issuing Letter Rogatory, under Section 166A of the Code, to a Foreign Court or Judge, opportunity of being heard is not required to be afforded to the accused, also took cognizance of the fact that the relevant ordinance namely Criminal Procedure Code (Amendment) Ordinance, 1990, which was promulgated from Feb. 19, 1990 had authorized the Investigating Officer or an Officer superior in rank to the Investigating Officer to issue a letter of request but the Amendment Act conferred the power only on the Criminal Court.
23. The scope of Section 166A of the Code also came up for consideration by the Madras High Court in Jayalalitha v. State 2002 Cri.LJ 3026. It was observed:
Section 166A of Code of Criminal Procedure expressly provides that the evidence so taken or gathered pursuant to the Letters Rogatory issued thereunder should be forwarded to the Court issuing such letter. If that be so, the intention of the legislature expressly provided under Section 166A of Code of Criminal Procedure cannot be supplemented by any other procedure. It is also well settled in law that there can be no justification in adding or ignoring any word to make the provision of law more or less stringent than the legislature has made it. Therefore, any violation to the procedure prescribed under Section 166A, Code of Criminal Procedure would render the proceedings improper and unfair resulting in miscarriage of justice.
24. Thus, the special provisions of Sections 166A and 166B operate in a different field of investigation relating to a particular class of offences where international cooperation is needed for a successful completion thereof.
25. Section 166A deals with letter of request to the Competent Authority for investigation in a country or place outside India and Section 166B deals with letter of request from a country or place outside India to a Court or an Authority for investigation in India. Apparently, the purpose of insertion of Chapter VII-A of the Code was to give full and complete effect to the provisions contained in Sections 166A and 166-B.
26. As mentioned hereinabove, these provisions had come into operation w.e.f. 19-2-1990 but in absence of relevant and corresponding provisions available in the Code, it had been found difficult to give full effect to the aforesaid sections.
27. Heading is generally regarded as a preamble to the Sections, which follow under it, and is considered a part of the Act itself: Bhinka v. Charan Singh : [1959]35ITR55(SC) . The preamble of a statute like the long title is a part of the Act and is an admissible aid to construction. Although, not an enacting part, the preamble is expected to express the scope, object and purpose of the Act more comprehensively than the long title. It may recite the ground and cause of making the statute, the evils sought to be remedied or the doubts, which may be intended to be settled.
28. It is equally true that the preamble in itself is not an enacting provision and is not of the same weight as an aid to construction of a section of the Act as are other relevant enacting words to be found elsewhere in the Act, but the same can still be looked into to arrive at the conclusion the purpose for which the provisions have been enacted.
29. It is also too well settled that the Courts must adopt that construction, which shall suppress the mischief and advance the remedy. Critical examination of Sections 105A to 105L falling in Chapter VII-A of the Code would make it abundantly clear that they have been incorporated with an intention to curb mischief or completely eliminate terrorist activities and international crimes, otherwise there was no reason to have enacted Chapter VII-A in the Code. Provisions of this Chapter are in effect supplemental to the special provisions contained in Sections 166A and 166B and have nothing to do with investigation into offences in general.
30. There is yet another reason for coming to the aforesaid conclusion that Chapter VII-A of the Code applies only to terrorist activities or to international crime. The reason is that in no other section or provision in the Code, the words 'where the Court in India...' have been used. These words have direct relevance with the definition of Contracting States. Contracting State has been defined as a country through a treaty or otherwise. The conjoint reading of the definitions of 'Contracting State' and other provisions of Chapter VII-A of the Code, would show that the same can be invoked only with regard to crime or such criminal activities within those two countries between whom reciprocal arrangements exist or treaties have been executed and not for those offences which are committed within the territory of India.
31. No doubt, it is true that the words terrorist activities or international crime or crime including crimes involving currency transfers, have not been used in any of the sections falling in Chapter VII-A of the Code, but that alone would not be sufficient to hold that the provisions can be invoked even when any other cognizable offence has been committed by an accused within the territory of India. The true, correct and proper interpretation of the sections falling under Chapter VII-A of the Code, would be that the same can be invoked only when it pertains to two Contracting States. Contracting States would mean that any country or place outside India on the one hand and Indian territory on the other hand, if there exists a treaty between the two countries.
32. For the aforesaid reasons, with utmost respect, we disagree with the views expressed by Hon'ble Shri Rakesh Saksena, J. and subscribe to the views expressed by Hon'ble Shri W.A. Shah, J. in Ashok (supra), even though no details and valid reasons have assigned for quashment of the proceedings before the Magistrate, but in the net result it has been held, that the provisions contained in Chapter VII-A of the Code, would apply to the territories which are foreign territories and with which reciprocal arrangements have been made.
33. Thus, the question as projected hereinabove is answered by saying that the provisions of Chapter VII-A of the Code are applicable only to the territories which are foreign territories and in which, by reciprocal arrangements, provisions of the Code arc made applicable.
34. The matter shall now be placed before learned Single Judge for proceeding further in accordance with the aforesaid opinion expressed by us. A copy of the order be retained in each connected cases.