Madras High Court
A.Syed Ibrahim @ Bhai vs State Rep. By on 24 September, 2021
Crl.R.C.No.956 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 07.01.2022
PRONOUNCED ON : 21.02.2022
CORAM
THE HONOURABLE MR.JUSTICE M.NIRMAL KUMAR
Crl.R.C.No.956 of 2021 and
Crl.M.P.No.12917 of 2021
A.Syed Ibrahim @ Bhai ... Petitioner
Vs.
1.State Rep. by,
The Superintendent of Police,
HoB/CBI/ACB/Madurai.
2.State Rep. by,
The Superintendent of Police,
HoB/CBI/ACB/Chennai.
3.The Inspector of Police,
V6 Kolathur Police Station,
Kolathur, Chennai. ... Respondents
PRAYER: Criminal Revision is filed under Section 397 r/w 401 of the Code of
Criminal Procedure, to set-aside the order dated 24.09.2021 passed by the
Special Court No.I For Trial of Criminal Cases related to Elected Members of
Parliament and Members of Legislative Assembly of Tamil Nadu, Chennai in
Crl.M.P.No.15471/2021 in S.C.No.34/2020 and consequently direct the
Learned Judge to refer the legal questions raised by the petitioner to this Court
to take final decision.
For Petitioner : Mr.A.Kalaiselvan
For Respondents : Mr.K.Srinivasan,
Special Public Prosecutor
*****
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Crl.R.C.No.956 of 2021
ORDER
This Criminal Revision Case has been filed by the petitioner to set aside
the order, dated 24.09.2021, made in Crl.M.P.No.15471 of 2021 in S.C.No.34
of 2020 by the learned Special Judge No.I for trial of Criminal Cases related to
Elected Members of Parliament and Members of Legislative Assembly of
Tamil Nadu, Chennai (trial Court) and consequently, direct the learned Judge
to refer the legal questions raised by the petitioner to this Court to take final
decision.
2.The primary ground on which the petitioner put forth his case is that
whether the Union Government Resolution No.4/31, 61-T, dated 01.04.1963,
under which the Central Bureau of Investigation formed, ultra-vires Article 14
and 21 of the Constitution of India is neither decided by the High Court of
Madras under which the trial Court is Subordinate nor by the Hon'ble Supreme
Court of India finally. The Hon'ble Apex Court is to decide the question finally
in view of the High Court of Gauhati in the case of “Sh Navendra Kumar
Versus Union of India & others in W.A.No.119 of 2008, dated 06.11.2013”
had quashed the notification. The Apex Court in SLPS.No.Ac/Ac/Ac of 2013,
dated 09.11.2013 had stayed the order of Gauhati High Court order. In view
of the same, the petitioner has filed a petition before the trial Court invoking
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Crl.R.C.No.956 of 2021
Section 395 Cr.P.C., in Crl.M.P.No.15471 of 2021 in S.C.No.34 of 2020 and
the same was dismissed, by order, dated 24.11.2021, against which the present
petition.
3.The learned counsel for the petitioner submitted that the trial Court
failed to consider the Union Government Resolution No.4/31, 61-T, dated
04.01.1963 cannot be considered as Indian Law under Sections 3(29) and
3(50) of General Clauses Act, 1897. The trial Court failed to consider that it
has no jurisdiction or competency under Section 395 Cr.P.C., to decide legal
issue regarding the maintainability of petition filed under Section 395 Cr.P.C.,
in Crl.M.P.No.15471 of 2021 in S.C.No.34 of 2020. Since it involves
substantial question of law under Article 288 of Constitution of India and
Sections 395 and 396 Cr.P.C., the trial Court ought to have referred the legal
issue regarding the maintainability of petition filed under Section 395 Cr.P.C.
He further submitted that the respondents 1 and 2 are not constitutionally
formed Police force empowered to investigate the crime under the Code of
Criminal Procedure. The Central Bureau of Investigation would not be termed
as a Police force empowered to investigate the crime in as much as it has been
created and constituted by a mere resolution of Ministry of Home Affairs,
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Crl.R.C.No.956 of 2021
Government of India under their executive powers. In view of the same, the
Central Bureau of Investigation is not a Police force and got no power to
conduct search, seizure and investigate the crimes, submitting charge sheet,
prosecuting the offenders. The creation and constitution of the Central Bureau
of Investigation by the executive force is against the dictum of the
Constitutional Bench in case of “Menaka Gandhi Versus Union of India
reported in 1978 SCC (1) 248”.
4.He further submitted that the 3rd respondent Police is not declared as
Police Station under Section 2(s) of Cr.P.C., and as such the FIR registered
against the accused cannot be construed as FIR and all subsequent actions
taken by respondents 1 and 2 are not legally valid. The respondents 1 and 2
had no source of power to Act under the Code of Criminal Procedure. Since
there is no declaration under 2(s) of Cr.P.C., the final report filed by the
respondent Police cannot be construed as a report or charge sheet filed under
Section 173 Cr.P.C. Further, the trial Court has no jurisdiction to try the
offence in the absence of any order under Section 2(j) of Cr.P.C., and the
notification under 2(m) of Cr.P.C. Hence, he prayed for setting aside the order
of the trial Court.
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Crl.R.C.No.956 of 2021
5.The learned Special Public Prosecutor appearing for the respondents
submitted that the accused cannot invoke Section 395 Cr.P.C., and only the
concerned Court can invoke the power under Section 395 Cr.P.C. If the
concerned Court is subjectively satisfied that the question relating to the
validity of any Act or ordinance has to be referred to High Court for the
determination. In view of the same, this petition filed by the petitioner to be
dismissed at the threshold. He further submitted that the case was registered
on 27.11.2014 by the 2nd respondent, as per order of this Court in
Crl.O.P.No.7994 of 2014, dated 09.10.2014. Originally, the case in Crime
No.19 of 2012 was registered by the 3rd respondent for offence under Sections
341 and 302 IPC, after completion of investigation, final report was filed
before the learned V Metropolitan Magistrate, Egmore, Chennai on
30.03.2012 as against A1 to A10 and taken on file as P.R.C.No.131 of 2012.
Since the defacto complainant was not satisfied with the investigation
conducted by the 3rd respondent Police, he filed Crl.O.P.No.7994 of 2014
before this Court, wherein this Court finding that the investigation is not
proper and the grievance of the defacto complainant to be real, in the interest
of justice, this Court transferred the investigation to the file of the Central
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Crl.R.C.No.956 of 2021
Bureau of Investigation. The Central Bureau of Investigation on completion of
investigation filed the final report before the learned Additional Chief
Metropolitan Magistrate, Egmore, Chennai against A1 to A12, for offence
under Section 120(b) r/w 341, 342, 149, 150 and 302 of IPC. After that, the
accused have been filing petitions one by one and thereby, stalled the progress
of the trial.
6.It is further submitted that in this case, A11 and A12 filed discharge
petition under Section 227 of Cr.P.C., in C.M.P.No.3271 of 2020, which was
dismissed by the trial Court, against which, they preferred a revision before
this Court in Crl.R.C.No.209 of 2021 and the same was dismissed by this
Court on 08.06.2021 and directed the trial Court to give top priority and to
conclude the trial within stipulated time preferably within a period of six
months. Now, A1 has taken a turn and filed the above petition before the trial
Court, on appeal now he is before this Court and thereby, successfully stalled
the progress of the trial. He further contended that Article 21 of the
Constitution of India not only safeguards the rights of the accused, but also the
rights of the victims, which has been confirmed in the judgment by the Hon'ble
Apex Court in the case of “State West Bengal and others Versus Committee
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Crl.R.C.No.956 of 2021
reported in 2010 (3) SCC 571”. Further, the learned Special Public
Prosecutor narrated the events in formation of the Central Bureau of
Investigation and its powers and jurisdiction to investigate cases. The Hon'ble
Apex Court and various High Courts in many cases confirmed the power and
jurisdiction of the Central Bureau of Investigation to investigate the case. As
regards the doubts raised by the Gauhati High Court, the Hon'ble Apex Court
had stayed the judgment. The jurisdiction of the Central Bureau of
Investigation extended to Union Territories and also extended to the States
with the consent of the concerned State Government. Section 6 of the Delhi
Special Police Establishment Act, 1946, states the consent of State
Government to exercise of powers and jurisdiction. In this case, it is not in
dispute that the State of Tamil Nadu had given consent to exercise powers and
jurisdiction under the Delhi Special Police Establishment Act, 1946. Further
more, as far as this case is concerned, this case has been investigated as per the
order of this Court in Crl.O.P.No.7994 of 2014, dated 09.10.2014. Hence, the
doubt caused by the petitioner is not sustainable.
7.He further submitted that the High Court of Bombay in the case of
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Crl.R.C.No.956 of 2021
“Shirish Suresh Welling Versus Smt.Sangeeta Avinash Marathe reported in
2001(2) BOM LR 99”, had held that the accused cannot invoke Section 395
Cr.P.C., and file a petition under it. In this case, the one of the accused is the
former Member of Legislative Assembly and he is powerful person. In view of
the same, the case is before the Special Judge No.I for trial of Criminal Cases
related to Elected Members of Parliament and Members of Legislative
Assembly of Tamil Nadu, Chennai. By filing one petition or other by the
accused, the very purpose of formation of the Special Court is defeated and the
progress of the trial is stalled. Hence, he strongly opposed this petition.
8.This Court considered the rival submissions and perused materials
available on record.
9.In this case, the offence is of the year 2012. Now, it is more than a
decade, till date the trial is not commenced due to filing of petitions by the
accused alternatively. Earlier, A11/Former Member of Legislative Assembly
and A12 filed discharge petition under Section 227 of Cr.P.C., in
C.M.P.No.3271 of 2020, which was dismissed by the trial Court, against
which they preferred a revision before this Court in Crl.R.C.No.209 of 2021
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Crl.R.C.No.956 of 2021
and the same was dismissed by this Court on 08.06.2021.
10.The accused cannot invoke Section 395 Cr.P.C., and it is only the
concerned Court can invoke the power under Section 395 Cr.P.C. Thus, the
accused persons without any merit, filed the petition in Crl.M.P.No.15471 of
2021 in S.C.No.34 of 2020 and the same was rightly dismissed by the trial
Court, by order, dated 24.09.2021, which is well reasoned and detailed one
and the same is hereby confirmed. Accordingly, this Criminal Revision Case
stands dismissed. The Hon'ble Apex Court as on date not questioned the
formation, function and power of the Central Bureau of Investigation to
investigate the cases.
11.The trial Court is reminded to the decision of the Apex Court in the
case of “State of Uttar Pradesh Vesus Shamphy Nathsingh and others
reported in JT 2001 (4) SC 319” and the direction of this Court in
Crl.R.C.No.209 of 2021, dated 08.06.2021.
12.The trial Court is directed to conduct the trial and complete the same
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Crl.R.C.No.956 of 2021
within a period of four months, from the date of receipt of a copy of this order.
If the trial could not be completed within the time, the trial Court to inform this
Court and seek extension of time. Consequently, the connected Criminal
Miscellaneous Petition is closed.
21.02.2022
Speaking order/Non-speaking order
Index: Yes/No
Internet: Yes/No
vv2
To
1.The Special Court No.I For Trial of Criminal Cases
related to Elected Members of Parliament and Members of Legislative
Assembly of Tamil Nadu,
Chennai.
2.The Superintendent of Police,
HoB/CBI/ACB/Madurai.
3.The Superintendent of Police,
HoB/CBI/ACB/Chennai.
4.The Inspector of Police,
V6 Kolathur Police Station,
Kolathur, Chennai.
5.The Public Prosecutor,
High Court, Madras.
Note: Issue Order Copy on 21.02.2022.
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Crl.R.C.No.956 of 2021
M.NIRMAL KUMAR, J.
vv2
PRE-DELIVERY ORDER IN
Crl.R.C.No.956 of 2021
21.02.2022
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