Rk Garg vs Centaral Bureau Of Investigation
2022 Latest Caselaw 4 MP

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  HIGH COURT OF MADHYA PRADESH: BENCH AT INDORE
      (SINGLE BENCH: HON. Mr. JUSTICE VIVEK RUSIA)

                       M.Cr.C.No.9856/2017
   Petitioners    1.    R.K. Garg
                        S/o Late Shri D.P. Garg, aged about 66
                        years, Occupation- Business, R/o 42/43
                        Fourth Floor, C Wing, Troica Building, 3rd
                        Cross Lane, Lokhandwala Market Andheri
                        West Mumbai.
                  2.    Henry Garg
                        S/o R.K. Garg, aged about 41 years,
                        Occupation- Business, R/o 404 Fourth
                        Floor Casurina B Wing Evershine Green,
                        New Link Road, Andheri West Mumbai.
                  3     Smt. Kavita Garg W/o Henry Garg, aged
                        about 40 years, Occupation- House Wife,
                        R/o 404 Fourth Floor Casurina B Wing
                        Evershine Green, New Link Road, Andheri
                        West Mumbai

                        ~:Versus:~

   Respondent           Central Bureau of Investigation,
                        Anveshan Parisar Char Imli, Bhopal, M.P.

                         ***********

Date : 03.01.2022/ Indore :

Shri Deepesh Joshi, learned counsel for the Petitioners. Shri Milind Ramesh Phadke, learned ASG for the Respondent. With the consent of parties heard finally.

The petitioners have filed the present petition under Section 482 of Cr.P.C. against the order dated 11.08.2017 passed in Criminal Appeal No.866/2015 passed by Special Judge (Central Bureau of Investigation), Indore (M.P.) whereby an application filed under Section 386 (b) (i) of Cr.P.C. has been dismissed.

The facts of the case in short are as under:

After registration of the FIR under Section 420, 467, 468, 471 R/w Section 120-B of I.P.C., the Central Bureau of Investigation ( in short ''CBI") has filed the charge-sheet before the Special Judicial

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Magistrate (CBI) Indore against all the petitioners. The CBI has examined 23 witnesses in order to prove the charges against the petitioners. In defence, the petitioners have examined two witnesses. The learned Judicial Magistrate heard the final argument but transferred the trial to the Chief Judicial Magistrate, Indore in exercising the power under Section 325 (3) of Cr.P.C. The petitioners filed the petition under Section 482 of Cr.P.C. before this High Court challenging the validity of the order dated 27.03.2014 passed by Chief Judicial Magistrate (CBI). The said petition was registered as M.Cr.C. No.7328/2014. This Court vide order dated 06.04.2015 has held that nothing appears wrong if CJM has made over the case to ACJM, who is equally competent in the matter and no prejudice would be caused to the petitioners whether the case is heard by CJM or ACJM but set aside the order dated 27.03.2014 as it was passed mechanically. After the aforesaid order, the learned Chief Judicial Magistrate did not make over the case and passed the judgment dated 20.10.2015 by convicting the petitioners under Section 420, 120-B, 467 & 471 of I.P.C. and sentenced them to undergo 3 years R.I. and 1 year R.I. respectively with fine of Rs.5,000/- and Rs. 2,000/- respectively.

Being aggrieved by the aforesaid conviction, the petitioners have preferred an appeal before the Special Judge (CBI). Vide order dated 06.11.2015, the criminal appeal has been admitted for final hearing and the petitioners were granted bail.

In the pending appeal, petitioners have moved an application under Section 386 (b) (i) of Cr.P.C. raising preliminary objection regarding the jurisdiction of learned Chief Judicial Magistrate in passing the order of conviction in view of the specific bar contained in the proviso of section 11 of Cr.P.C. The learned Special Judge,

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CBI, Indore has dismissed the application vide order dated 11.08.2017. Hence, present petition before this Court.

Shri Joshi, learned counsel for the petitioners submits that proviso of section 11 of Cr.P.C. specific prohibits other courts of Magistrate to try any particular case where one or more Special Court of Judicial Magistrate class or second class has been constituted. In the State of Madhya Pradesh Special, Judicial Magistrate has been designated to try the offences investigated by Special Police Establishment and CBI, hence by virtue of aforesaid provision no other Court of Magistrate in the local area including CJM shall have jurisdiction to try offences against the petitioners. Shri Joshi, learned counsel for the petitioners has referred the provision of Section 461 (l) and (n) of Cr.P.C. and submitted that if any Magistrate not being empowered by law on this behalf, act and conduct the trial and tries an offender and pass an order of sentence under Section 325 on proceedings recorded by another Magistrate, such irregularity vitiates the entire trial. In support of his contention, he has placed reliance on the judgment passed by the Apex Court in the case of Kaushik Chatterjee Vs. State of Haryana and Ors (2020) 10 SCC 92, hence, prays for quashment of the impugned order.

Shri Phadke learned ASG appearing for the respondent submits that the order passed by this Court in M.Cr.C. No.7328/2014 has attained finality as the petitioners did not challenge the same before the Supreme Court of India. In the said order this Court has already held that nothing appears wrong if the CJM has made over this case to ACJM, who is equally competent in the matter but grounds of making over should be articulated. It has also been held that CJM and ACJM both are having equal judicial competence and no

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prejudice would be caused to the petitioner whether the case is heard by CJM and ACJM . After the above order, the ACJM did not make over the case, heard finally and pass the judgment, therefore, provision of section 461 of Cr.P.C. would not apply in this case and there is no substance in the petition and same is liable to be dismissed.

I have heard the learned counsel for the parties and perused the record.

So far as filing of an application under Section 386 (b) (i) of Cr.P.C. is concerned, there is no such provision in Cr.P.C. of filling such an interlocutory application for final disposal of appeal on the preliminary ground. Section 386 of Cr.P.C. gives power to the Appellate Court to decide the appeal filed under Section 377 or Section 378 of Cr.P.C after perusing the record of the trial court and hearing the appellant. After hearing the parties, the Appellate Court may, if it considers that there is no sufficient ground for interfering, dismiss the appeal if it is filed against acquittal and if the appeal is preferred against the order of conviction, the Appellate court may reverse the finding and sentence and acquit or discharge the accused etc. Such power is liable to be exercised after perusing the record and hearing of the parties or pleader finally. The petitioners have wrongly filed an application under Section 386 (b) (i) of Cr.P.C. and obtained the adverse order dated 11.08.2017 although the learned Special Judge has dismissed the application and fixed the case for final argument on 28.08.2017. The petitioners have taken the stay on 11.09.2017 by filing this M.Cr.C. and the said stay is in operation till today, therefore, filing of non-maintainable application followed by this petition has delayed the disposal of appeal for almost 4-5 years which could have been decided in the year 2017 itself.

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So far as the applicability of provisions of section 461 of Cr.P.C. is concerned, the petitioners did not raise this in the interlocutory application under Section 386 (b) (i) of Cr.P.C. even no such ground has been raised in this petition also. The first time such ground is being raised by Shri Joshi learned counsel today. So far as the power of Additional Chief Judicial Magistrate trying offences against the petitioners is concerned this issue has already been decided in M.Cr.C. No.7328/2014. Provisions of section 461 apply where the Magistrate is not having the power to try an offender or passes an order under section 325 on proceeding recorded by any other Magistrate. Since this Court has already held that Chief Judicial Magistrate or ACJM both are empowered to try the offences against the petitioners, therefore, section 461 of Cr.P.C. would not apply. The present petition is absolute misconceived, misuse of process of law, hence same is hereby dismissed. Special Judge is directed to decide the appeal within 30 days from the date of receipt of this order.

The registry is directed to send a copy of this order to the concerned Court.

( VIVEK RUSIA ) JUDGE praveen/-

PRAVEEN NAYAK 2022.01.05 15:35:06 +05'30'