Holding

The Supreme Court held that there is no bar for the CBI to approach the High Court under Section 397 CrPC, routine investigations should not be assigned to the CBI, and the High Court's criticism and cost order are without legal sanction.

Summary

The Chief Judicial Magistrate ordered the Central Bureau of Investigation (CBI) to investigate a theft of cash (Muddamal) and later rejected the CBI's request to recall that order. The CBI challenged both orders before the Gujarat High Court, which held the petition non‑maintainable, directing that the CBI should have first approached the Sessions Court under Section 397 of the CrPC, and imposed a cost of Rs 1,000. On appeal, the Supreme Court held that the High Court was wrong: a routine matter need not be assigned to the CBI, and the CBI could approach either the Sessions Court or the High Court under Section 397, so there was no bar to the petition. The Court reiterated that direction to the CBI is permissible only when the local investigating agency is ineffective, which was not the case here. Consequently, the criticism and cost imposed by the High Court were held to have no legal sanction and were set aside. The appeal was allowed.

Issues considered

Whether a Chief Judicial Magistrate can direct the CBI to investigate a routine case under Section 156(3) CrPC.
Whether the CBI must first approach the Sessions Court before filing a petition under Section 397 CrPC in the High Court.
Whether the High Court's criticism of the CBI and the imposition of costs have any legal basis.

Legislation cited

Code of Criminal Procedure, 1973s. 156(3), s. 397

Subjects

CBIinvestigationroutine caseSection 397 CrPCjurisdictioncost orderHigh CourtSupreme Courtcriminal procedure

Judgment

A CENTRAL BUREAU OF INVESTIGATION
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STA TE OF GUJARAT

JUNE 21, 2007

B [DR. ARIJIT PASA YAT AND B.P. SINGH, JJ.]

Code of Criminal Procedure, 1973:

s.397-0rder passed by CJM directing CBI to undertake investigation-
c Petition before High Court by CBI challenging the order-High Court held
that CBI ought to have moved Sessions Court-Further imposed cost of
Rs. /000 holding that CBI had chosen wrong path and it was not respecting
and adhering to law-On appeal, held: High Court had no basis to doubt
the bona fides of CBI in moving the said petition-There was no bar for High
D Court to entertain the same-Criticism leveled against CBI and its officers
and cost imposed do not have any legal sanction and are set aside.

Investigation:

Investigation by CBI-Held: Not to be ordered in routine matters.
E In a criminal case relating to theft of Muddamal, the Chief Judicial
Magistrate passed an order directing CBI to undertake investigation. The
prayer by CBI to recall the order was rejected. CBI moved High Court against
both the orders. The High Court held that the petition was not maintainable
and the CBI ought to have challenged the orders of the Chief Judicial
F Magistrate before the Sessions Court in terms of s.397 Cr.P.C and that thus,
had bypassed the alternative remedy and moved the High Court directly. A
cost of Rs. 1000/- was also imposed holding that the CBI had chosen a wrong
path and it was not respecting and adhering to law.

In appeal to this court, the grievance of CBI is that the concerned case
G was of routine nature and did not involve any specialized investigation; that
under s.397 Cr.P.C. either the Sessions Court or the High Court could be
approached hence the High Court was not right in holding that the CBI had
bypassed the remedy. ,.
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Allowing the appeal, the Court
H 1174
CENTRALBUREAUOFINVESTIGATION,·.STATEOFGUJARAT[PASAYAT.J] 1175

HELD: The High Court was not right in its approach. The routine A
matters should not be entrusted to the CBI as the investigating agencies of
various States can effecti\·ely im·estigate such matters. Of course, where it
is shown that the investigating agency is not doing proper investigation and/
or that there is reason to believe that there is laxity in the investigation, a
direction may be given to the CBI to investigate the matter in appropriate B
cases. This case is not one where any complexity was involved. It was a routine
case of theft of Muddamal property. The High Court had no basis to doubt the
bona fides of the CBI in moving the application before it under s.397 Cr.P.C.
There was no bar for the High Court to entertain the said petition. The
criticism leveled against the CBI and its officers and cost imposed do not have
any legal sanction and are set aside. (Para 5111177-C, E, F, GI c
Central Bureau of Investigation through SP. Jaipur v. State of Rajasthan
and Anr., f 20011 3 SCC 333, relied on.

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 1181 of
2001. l)

From the Judgment & Order dated 17.04.200 l of the High Court of
Gujarat at Ahmedabad in Special Criminal Application No. l 078 of 1999.

Ashok Bhan, Tufaii A. Khan and P. Panneswaran for the Appellant.
E
The Judgment of the Court was delivered by

DR. ARIJIT PASA Y AT, J. 1. Challenge in this appeal by the Central
Bureau of Investigation (in short CBI") is to the order passed by a learned
Single Judge of the Gujarat High Court dismissing the petition filed to set
aside the orders dated 29.9.1999 and 26.10.1999 passed by the learned Chief F
Judicial Magistrate, Nadiad. By the first order, the learned Chief Judicial
Magistrate had directed the investigation of the case to be undertaken by
CBI. By the latter order, the prayer to recall the earlier order was rejected.

2. The brief facts are as follows:
G
Special A.C. B. Case No.2of1996 came up for hearing and evidence for
the first time on 7.1.1999 before Additional Sessions Judge, Nadiad and at that
time the Bench Clerk of the aforesaid court called for Muddamal from the
· office of Nazir, which was given to the clerk Shri Shukla and in tum given to
Shri Kiran Joshi. Senior Clerk. During the recording of the evidence of the
witnesses when Muddamal was required to be identified, in the bag containing H
1176 SUPREME COURT REPORTS (2007) 7 S.C.R. '.
A Muddamal article No. 2 (Rs. 35000/- i.e. 70 notes of Rs.500/- denomination)
could not be found therein. Though rigorous search was made but the said
Muddamal was not found and ultimately a criminal complaint was filed in
Nadiad Town Police Station which was registered as ICR No. 22/99 for the
offence punishable under Section 381 of the Indian Penal Code, 1860 (in short
B the 'IPC) by the Court Officer. The Investigating Officer. Nadiad Town Police
Station. Nadiad could not get any fruitful result in the matter for about 9
months. The Nazir of the District Court of Kheda at Nadiad wrote a letter
dated 29.9.1999 to the learned Chief Judicial Magistrate, Nadiad requesting
therein to hand over the investigation of the case to the CBI. On 29.9.1999
the Chief Judicial Magistrate, Nadiad passed an order directing the CBI to
C investigate the matter and report to him at the earliest. The CBI through its
Public Prosecutor filed an application in the Court of Chief Judicial Magistrate,
Nadiad praying therein for recalling of the order dated 29.9.1999. This
application was rejected by the Chief Judicial Magistrate, Nadiad under its
order dated 6.10.1999. The High Court was moved against both the orders.

D 3. The High Court observed that the CBI was a litigant before the Court
like any other litigant and it cannot be placed in a special category or in a
privileged category. According to the High Court, prima facie that appears
to be the claim of the appellant. It was held that the petition was not
maintainable and the orders of the learned Chief Judicial Magistrate could
E have been challenged before the Sessions Court in terms of Section 397 of
Code of Criminal Procedure (in short 'Cr.PC'). It was held that the CBI ought
to have taken care to move the proper court and instead of that the CBI,
bypassed the alternative remedy and moved the High Court directly. After
having said so, the High Court felt that the approach of the CBI deserved to
be deprecated and was deprecated. A cost of Rs. 1000/- was imposed holding
F that the CBI had chosen a wrong path and it was not respecting and adhering
to law. The Director of CBI was directed to hold an inquiry in the matter and
whoever was found responsible for filing the petition before the High Court
was to reimburse the cost to be deposited by the CBI. It was further directed
that the inquiry as directed by the learned Chief Judicial Magistrate was to
G be completed within six months.

4. In support of the appeal, learned counsel for the appellant submitted
that the approach of the High Court is clearly erroneous. The CBI was not
a litigant. In fact without giving an opportunity to it, the order was passed
by the learned Chief Judicial Magistrate directing it to take over the
H investigation. Had an opportunity been granted, it could have been shown
CENTRAL BUREAU OF INVESTIGATION,.. STA TE OF GUJARAT [PASAYA T. J.) 1177
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to tht court that the concerned case was of a routine nature and did not A
involve any specialised investigation. Therefore. it was not proper for the
Court to direct the CBI to investigate in such a routine matter overlooking
the fact that the CBI normally investigates complex matters. The case in
which direction was given did not involve any complexity. It is pointed out
that under Section 397 Cr.P.C. either the Sessions Court or the High Court
could be approached. In that sense. the High Court was not justified in
B
holding that the CBI had bypassed the remedy. It is brought to our notice
that the CBI is aggrieved by the criticism levelled against it and the cost
imposed. There was no occasion for the High Court to doubt the bona fides
of CBI in filing the petition before it. In any event, the learned Sessions
Judge was moved as was directed by the High Court and by order dated c
17.5.2001, the orders passed by the learned Chief Judicial Magistrate were
set-aside.

5. We find that the High Court was not right in its approach. This Court
in Central Bureau of Investigation through S.P. Jaipur v. State of Rajasthan
& Anr., [2001] 3 SCC 333 has laid down the principles as to whether direction D
can be given to the CBI under Section 156(3) Cr.P.C. It was held that magisterial
power cannot be stretched under the said provision beyond directing the
officer incharge of a police station to conduct the investigation and no such
direction can be given to the CBI. In the instant case, the first information
report was already registered and in that sense Section 156(3) Cr.P.C. had no
application. There is substance in the plea of learned counsel for the CBI that
E
routine matters should not be entruste-0 to the CBI as the investigating
agencies of vadous States can effectively investigate such matters. Of course,
where it is shown that the investigating agency is not doing proper
investigation and/or that there is reason to believe that there is laxity in the
investigation, a direction may be given to the CBI to investigate the matter F
in appropriate cases. This case is not one where any complexity was involved.
It was a routine case of theft of Muddamal property. The learned Sessions
Judge, therefore, rightly appears to have set aside the orders passed by the
learned Chief Judicial Magistrate. The High Court had no basis to doubt the
bona tides of the CBI in moving the application before it under Section 397
Cr.P.C. There was no bar for the High Court to entertain the said petition. The
G
criticism levelled against the CBI and its officers and cost imposed do not
have any legal sanction. They are accordingly set-aside .
...(

6. Appeal is allowed.

D.G. Appeal allowed.
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