The Central Bureau Of ... vs Anup Majee And Others
2021 Latest Caselaw 1397 Cal

                IN THE HIGH COURT AT CALCUTTA
                            (Appellate Side)
                  CONSTITUTIONAL WRIT JURISDICTION



                            MAT No.158 of 2021
                                   with
                             CAN No. 1 of 2021
                    The Central Bureau of Investigation
                                   Vs.
                         Anup Majee and Others

                                    With

                           MAT No.167 of 2021
                                    with
                            CAN No. 1 of 2021
                               Anup Majee
                                    Vs.
                         Union of India and Others



             Mr. Tushar Mehta, Solicitor General of India,
             Mr. Y.J. Dastoor, Additional Solicitor General,
             Mr. S.V. Raju, Additional Solicitor General with
             Ms. Kanu Agarwal and Mr. Samrat Goswami, Advocates
                                   ...Advocates for Appellant in MAT
                                   158/2021 and Respondent No.2 in MAT
                                   No.167/2021

             Mr. Siddharth Luthra,
             Mr. Siddharth Dave, Senior Advocates with
             M/s Ayan Bhattacharya, Sabir Ahmed, Aniruddh Agarwalla,
                Amit Agarwalla, Advocates
                                   ...Advocates for the Appellant in MAT
                                   No.167 of 2021/Respondent No.1 in MAT
                                   No.158 of 2021

             Mr. Kishore Dutta, Advocate General,
             Mr. Abhratosh Majumder, Additional Advocate General with
             Mr. Subhabrata Dutta and Debashis Sarkar, Advocates
                                   ... Advocates for the State

             M/s Phiroze Edulji and Debu Chowdhury, Advocates
                                   ...for the U.O.I.


                                  ORDER

1. Challenge in both the aforesaid appeals is to the order dated February 03,

2021 passed by the learned Single Judge in W.P.A. No.10457 of 2020.

2. The writ petition was filed praying for quashing of F.I.R. and further

proceedings thereto by one of the accused. The F.I.R. was registered by the

Central Bureau of Investigation (for short, 'CBI') on November 27, 2020. All

the three parties to the litigation, namely, one of the accused, the State of

West Bengal and the CBI are aggrieved by the judgment of the learned Single

Judge. As all the three parties to the litigation before the learned Single

Judge are aggrieved by the judgment raising different grounds. Two appeals

have been filed and as stated by learned Advocate General on February 09,

2021, the State is also contemplating to either file or cross objections. In our

opinion, it makes out a case for admission of the appeals, which in any case

raise legal issues to be considered. The writ petition was decided without

even granting opportunity to the parties to file affidavits. Hence, even the

pleadings will have to be completed.

3. The appeals are accordingly admitted. The respondents shall be at liberty to

file their affidavits on or before March 23, 2021 with copy in advance to the

Counsels opposite. Reply, if any thereto, be filed on or before April 12, 2021.

The matter will appear in the list for hearing on April 27, 2021.

4. At the time of arguments much stress was laid by Mr. Tushar Mehta,

learned Solicitor General of India appearing for CBI and Mr. Siddharth

Luthra and Mr. Siddharth Dave, learned Senior Advocates appearing for the

appellant/writ petitioner for grant of interim relief.

5. Inter-alia, the arguments raised by the learned Solicitor General of India are

that the direction of the learned Single Judge is restricting the course of

investigation to only the Railway areas is total without jurisdiction, as

investigation of a case cannot be circumscribed by territorial jurisdiction. A

conjoint reading of Sections 5 and 6 of the Delhi Special Police

Establishment Act, 1946 (for short, 'the 1946 Act') provides that no

permission of the State Government is required for registration of a case for

carrying out investigation in the Railway area, which necessarily would

mean the property in which the Railways has right, title or interest, in any

manner. As far as applications of the 1946 Act to the State of West Bengal,

reference was made to the notification issued under Section 5 thereof on

February 18, 1963. An accused cannot choose the agency which will carry

out investigation of the case. Any criminal offence is an offence against the

State where the accused has to be brought before the Court.

6. Issue sought to be raised by the writ petitioner or the State of West Bengal is

regarding jurisdiction of CBI to carry investigation, for which there is no

dispute otherwise. The issue can be examined in present appeals. However,

if the process of investigation is stalled at this stage, material evidence which

may have to be collected, may be lost and the accused may be able to

achieve the objectives for which frivolous litigation has been filed. He further

submitted that no prejudice as such will be caused to the writ petitioner. In

case he finally succeeds, entire material collected during investigation will be

transferred to the investigating agency which is found to be competent to

carry out investigation but the delay will not be in the interest of anyone

except the writ petitioner. Process of investigation against other accused

arrayed in the FIR will also be jeopardized.

7. He further referred to various Entries in List I of the Schedule VII to the

Constitution of India with reference to investigation by the Central

Investigating Agency and also pertaining to Railways, namely, Entry Nos.8,

22 and 80. With reference to Railway area, reference was sought to be made

to definitions contained in Sections 2(31) and 2(32A) of the Railways Act,

1989 (for short 'the 1989 Act'). It was further argued that coal has been held

to be a natural resource for which the 'Doctrine of Public Trust' has also

applied by the Hon'ble Supreme Court of India. The case in hand pertains to

illegal mining and transportation of coal through Railways in connivance

with officers of the Eastern Coalfield Limited, Railways, C.I.S.F. and some

other private persons including the writ petitioner. During investigation

carried so far it has come on record that the area of offence is not limited to

the State of West Bengal as it has offshoots in other States as well. However,

the matter is still being investigated.

8. The argument raised by Mr. Kishore Datta, learned Advocate General, inter-

alia related to the constitutional scheme of federal system in our country. He

submitted that for application of the provision of the 1946 Act consent of the

State Government is required under Section 6 thereof. The same was

granted vide notification dated August 2, 1989, however, was withdrawn

later on vide notification dated November 16, 2018. Hence, no investigation

for any offence committed within the territorial jurisdiction of the State of

West Bengal can be carried out by the CBI. He further referred to various

provisions of the 1989 Act, the Railway Protection Force Act, 1957 and Rules

framed thereunder to submit that, there is complete machinery provided for

investigation of offences even pertaining to Railway property. Hence, there

was no occasion for registration and investigation of the case by CBI He did

not dispute of the fact that if any offence takes place in the area within the

jurisdiction of Railways, Railway Protection Force will take cognizance and

have jurisdiction to investigate and not the State police. The judgments

relied upon by the learned Solicitor General of India, were sought to be

distinguished stating that in those cases consent of the State had been given

under Section 6 of the 1946 Act.

9. Mr. Siddharth Luthra, learned Senior Counsel appearing for the

appellant/writ petitioner submitted that the 1946 Act has limited

jurisdiction. In terms of section 3 thereof initially investigation was

permitted in connection with matters concerning departments of the Central

Government. However, the words 'in connection with matters concerning

Departments of the Central Government' were deleted vide Amendment Act

No.26 of 1952 with effect from March 06, 1952. He further submitted that

even in the notification issued under section 5 of the 1946 Act the Railway

Area has not been specifically mentioned as it simply mentions State of West

Bengal. In the absence thereof the provisions of the 1946 Act cannot be

made applicable to the Railway Areas within the State of West Bengal. In

fact, the words 'Railway Areas' have not been defined under the 1946 Act.

Hence, the statute to that extent is vague and the CBI cannot be given

unlimited powers to investigate the cases where no territorial jurisdiction is

defined. It was further argued that a plain reading of the FIR shows that the

offence was committed within the territorial jurisdiction of State of West

Bengal as it was in the mining area of Eastern Coalfield Ltd. It may have

extended to the Railway Area but the primary offence being within the

jurisdiction of the State of West Bengal, protection of the 1946 Act cannot be

taken by CBI to investigate the offence. Place of occurrence of the offence is

also shown in the mining area of Eastern Coalfield Ltd. The question raised

in the writ petition was regarding jurisdiction of authority, which will

investigate the offence. As it goes to the root of the case, the investigation

and any coercive action against Anup Majee deserves to be stayed.

10. In addition to the submission made by Mr. Siddharth Luthra, learned

Senior Counsel, Mr. Siddharth Dave learned Senior Counsel appearing for

appellant/writ petitioner submitted that jurisdiction of the investigating

agency under the 1946 Act extends to the Union Territories and for any

investigation in a state consent of the state concern is required. Initially, the

word 'state' was mentioned in the Preamble to the 1946 Act, however, the

same was deleted with effect from April 01, 1951.

11. In response, Mr. Tushar Mehta, learned Solicitor General of India

submitted that once notification has been issued under section 5(1) of the

1946 Act including the State of West Bengal therein, the Railway Area which

is part of the state is automatically included therein. If read along with

section 6 of the 1946 Act even if the state has withdrawn the consent for

investigation of the cases in terms of the 1946 Act, the same cannot be

withdrawn with reference to the Railway Areas. He further referred to

various provisions of Cr.P.C. in terms of which investigation, arrest of the

accused can be made even beyond the boundaries of the state in which the

FIR is registered, after following due process. Even trial of an offence can be

held at any place where a part of the offence is committed. He further

submitted that no prejudice as such will be caused to the accused herein if

the offence is investigated by the CBI. In case finally this court comes to the

conclusion that CBI had no jurisdiction to investigate the offence, the

material collected by that time will be transferred to the investigating agency

having jurisdiction to investigate. However, any delay in the process will

certainly hamper the investigation as during the interregnum the witnesses

may be won over or the case property or records destroyed or tampered with.

12. Learned Counsels have referred to various judgments in support of their

arguments. However, we are refraining ourselves to discuss those in detail at

this stage as the same may prejudice the case of either of the parties at

interim stage. At this stage we are only considering the matter on the

principles for grant of interim relief.

13. After hearing learned Counsels for the parties we find prima facie merit in

the submissions made by learned Solicitor General of India. FIR is not an

encyclopaedia. It is merely information of an offence. Learned Counsels for

the parties sought to explain word by word thereof. A perusal of the facts

stated in the FIR shows that certain facts regarding illegal mining and

transportation of the coal by the railways, came to the notice of CBI.

Involvement of the officers of the Eastern Coalfields Ltd., Railways, CISF and

other departments was found, besides private persons. A reading of the FIR

shows that part of stolen coal was recovered from the railway siding.

Investigation of the case certainly relates to the various facets, which have

concern with the railways. The FIR cannot be dissected at this stage. In

terms of the notification issued under section 5(1) of the 1946 Act dated

February 18, 1963 the Act has been made applicable to the State of West

Bengal. Notification under section 5(1) can be issued for the extension of the

provisions of the 1946 Act in any state not being Union Territory for

investigation of any offence or class of offence specified in a notification

issued under section 3 thereof. A separate notification has been issued

under section 3 of the 1946 Act on February 18, 1963 prescribing various

offences committed under different laws including the offence under which

the FIR in question has been registered. Section 6 of the 1946 Act which

overrides section 5 provides the jurisdiction to investigate any offence in

terms of the provision of 1946 Act will not be available to the investigating

agency concern within the jurisdiction of a state without the consent of that

state. It specifically excludes Union Territories or Railway Areas. Grant or

withdraw of consent by the State Government for investigation of offences

under the 1946 Act will not have any effect on the Railway Areas. In the case

in hand investigation into the railway areas is one of the major parts of the

investigation as the coal illegally removed from the mines was transported

through railways starting from the railway siding in the mining area to

different places. It cannot be disputed that the property of railways is

interconnected throughout the country. Even if the term 'Railway Area' has

not been defined under the 1946 Act but in our opinion, prima facie

guidance can be taken from the 1989 Act, section 2(31) of which defines

'Railway' and 2(32A) defines 'Railway Land'.

14. From a plain reading of the FIR it cannot be suggested that the offence has

been committed at one place as these are chain of events, which are inter-

linked with the railways and other officers, including those of Para-Military

Force, namely, CISF, who are drawing salaries from the Central

Government. Proper investigation cannot be carried out if the investigation

in such cases is divided in parts, drawing lines on territories once the

premier central agency is in the process of investigation.

15. No prejudice as such is going to be caused to one of the accused/the writ

petitioner at this stage who is before the Court as none other has

approached the Court. In case during the pendency of the present appeals,

investigation being carried out by the CBI is hampered, the process of

investigation at this stage will certainly be prejudiced, which will not be in

the interest of justice as any delay in the process may be fatal, as it is the

question of protection of natural resources for which 'Doctrine of Public

Trust' is applicable. Even if at present the investigation is with any other

agency the process of investigation in accordance with law has to be

followed. It is nobody's case that process is not being followed by CBI.

Apparently, the case sought to be set up by the appellant/ writ petitioner is

to choose the investigation agency, for which he has not right. His only

concern can be fair investigation and trial. Fair investigation in any case will

not prejudice the writ petitioner.

16. For the reasons mentioned above, we find prima facie case is made out in

favour of the appellant in MAT No.158 of 2021. Accordingly, the impugned

order passed by the learned Single Judge shall remain stayed. CAN No.1 of

2021 in MAT No.158 of 2021 is allowed. Prayer for grant of interim relief in

MAT No.167 of 2021 is rejected. The stay application bearing CAN No.1 of

2021 in MAT No.167 of 2021, is dismissed.

(Rajesh Bindal, J.)

(Aniruddha Roy, J.)

Kolkata 12.02.2021

PA(SM&SG)