Case Note & Summary
The petitioners, the Police Inspector and Superintendent of Police of the Central Bureau of Investigation (CBI), challenged an order dated 3.5.2014 passed by the Special Judge, CBI Court for Goa at Mapusa in Criminal Miscellaneous Application No. 2/2014. The impugned order directed the petitioners to register an FIR against one Shri Caetano Silva under Section 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 and other penal provisions, subject to certain conditions. The background of the case involves a complaint filed by respondent nos. 2 and 3 (Kashinath Jairam Shetye and Dr. Ketan Govekar) against MLAs, MPs, and other public servants alleging that they were holding public offices despite being foreign nationals or having lost their Indian citizenship, which allegedly violated the Indian Citizenship Act, 1955 and constituted criminal misconduct under the Prevention of Corruption Act. The Special Judge, purportedly exercising powers under Section 156 of the Code of Criminal Procedure, 1973 (CrPC), directed the CBI to register an FIR. The petitioners contended that the Special Judge had no jurisdiction to pass such an order under Section 156 CrPC as no complaint was filed before the court, and the power under Section 156 CrPC is exercisable only by a Magistrate upon a complaint. The respondents argued that the Special Judge has the powers of a Magistrate under the CrPC and could direct investigation. The court analyzed the provisions of Section 156 CrPC and the scheme of the Prevention of Corruption Act, 1988. It held that the power under Section 156 CrPC to direct investigation is available only to a Magistrate who has taken cognizance of an offence upon a complaint. A Special Judge under the Prevention of Corruption Act is not a Magistrate and cannot exercise powers under Section 156 CrPC in the absence of a complaint. The court further noted that the allegations regarding citizenship did not fall within the purview of the Prevention of Corruption Act without specific averments of corrupt practices. Consequently, the court allowed the writ petition, quashed the impugned order, and held that the Special Judge acted without jurisdiction.
Headnote
A) Criminal Procedure Code - Section 156 CrPC - Power to Order Investigation - The Special Judge under the Prevention of Corruption Act, 1988 does not have the power under Section 156 CrPC to direct registration of an FIR without a complaint being filed before the court. The power under Section 156 CrPC is exercisable only when a complaint is presented to the Magistrate. In the absence of a complaint, the order directing investigation is without jurisdiction. (Paras 4-10) B) Prevention of Corruption Act - Section 13(1)(d) read with Section 13(2) - Criminal Misconduct - The complaint alleged that public servants holding office despite being foreign nationals or having lost Indian citizenship constitutes criminal misconduct under the Prevention of Corruption Act. The court held that such allegations do not fall within the purview of the Act without specific averments of corrupt practices. (Paras 5-6) C) Criminal Procedure Code - Section 156(3) CrPC - Magistrate's Power - The power under Section 156(3) CrPC to direct investigation is available only to a Magistrate who has taken cognizance of an offence. A Special Judge under the Prevention of Corruption Act is not a Magistrate and cannot exercise powers under Section 156 CrPC. (Paras 8-10)
Issue of Consideration
Whether the Special Judge, CBI Court, has jurisdiction under Section 156 of the Code of Criminal Procedure, 1973 to direct the police to register an FIR in the absence of a complaint filed before the court?
Final Decision
Writ petition allowed. Impugned order dated 3.5.2014 passed by Special Judge, CBI Court at Mapusa in Criminal Miscellaneous Application No. 2/2014 is quashed and set aside.
Law Points
- Section 156 CrPC does not empower a Special Judge to direct registration of FIR without a complaint
- Special Judge's powers under Section 156 CrPC are limited to cases where a complaint is filed
- Order directing FIR registration without complaint is without jurisdiction
