whether the Special Judge for Economic Offences (Incharge Judge) had the jurisdiction to pass the order challenged in the petition filed under Section 482 of the Code. Sub-Section (2) of Section 167 of Cr.P.C. does not give scope for any conferment of power upon a Court, which otherwise has no jurisdiction, to intervene in the proceedings, which are already before the regular Court constituted under the Act. The only occasion on which a Magistrate can order custody is if the Presiding Officer of the regular Court i.e. CBI Court not available, when an accused is produced for the first time. Once the accused was produced before the CBI Court, it is only for that Court, to take further steps, be it as regards the grant of police custody, or extension thereof. Whatever be the permissibility for a Court, that is kept incharge of another ordinary criminal Court to take various steps in a case pending before such criminal Court, an exercise of that nature can not be undertaken, in respect of a case pending before a Court, specially constituted under a specific provision of law. The judgment of the Supreme Court in Dinesh Dalmia's case is not directly on the point. Though the submissions are made on merits also, this Court is not inclined to delve into the same. Even now the respondent can move an application before the CBI Court for extension of police custody.

HON'BLE SRI JUSTICE L.NARASIMHA REDDY        

CRIMINAL PETITION NO. 662 OF 2012    

12-01-2012

V.Vijaya Sai Reddy

Vs.

Central Bureau of Investigation,Anti Corruption Branch

Counsel for the Petitioner: Sri S.Niranjan Reddy


Counsel for the Respondent: Sri P.Kesava Rao, Standing Counsel for CBI


 ? Cases referred:
1. 2008 CRI.L.J. 337(1)
2. 1976 CRI.L.J. 1511
3. 2001 CRI.L.J. 3678

ORDER:

        The petitioner challenges the order dated 10.01.2012 in Crl.M.P.No.58 of
2012 in Crl.M.P.No.27 of 2012 in R.C.No.19(A) of 2011 CBI HYD., on the file of
the Court of Special Judge for CBI Cases, Hyderabad (for short "the CBI Court").

The respondent herein registered an F.I.R. bearing R.C.No.19(A) of 2011 CBI HYD
against the petitioner (A-2) and others alleging crimes punishable under various
provisions of the Prevention of Corruption Act, 1988 (for short "the Act").
Petitioner was produced before the CBI Court on 03.01.2012.  That Court remanded
the petitioner to judicial custody for 15 days.  On the same day, the respondent
filed Crl.M.P.No.27 of 2012, seeking police custody.  Hearing of that
application was taken up on 04.01.2012 and the custody of the petitioner was
given to the respondent for a period of five days, by imposing certain
conditions.  A direction was issued to the effect that the petitioner shall be
produced before the Court on 10.01.2012 to, and the question as to whether the
police custody needs to be extended, shall be considered on that day.   The
respondent filed Crl.M.P.No.58 of 2012 seeking extension of police custody for
further period of 7 days.  On that day, the learned Presiding Officer of the CBI
Court was on leave.  The Special Judge for Economic Offences-cum-VIII
Metropolitan Sessions Judge, Hyderabad (for short "Incharge Judge") was placed
incharge of that Court.  Crl.M.P.No.58 of 2012 was taken up for hearing, on that
day.

        The respondent raised an objection as to the jurisdiction of the Incharge
Judge to deal with the application.  Reliance was placed upon an order passed by
this Court in Crl.P.No.7134 of 2010.  Overruling the objection, the incharge
Court proceeded to hear the application and extended the police custody of the
petitioner, by 7 days, through the order under challenge.

        Sri S.Niranjan Reddy, learned counsel for petitioner submits that the
learned Incharge Judge did not have jurisdiction to hear the Crl.M.P.No.58 of
2011.  He contends that the CBI Court is constituted under a Notification issued
by the Central Government in exercise of power under Section 3 of the Act and it
is only the learned Presiding Officer of that Court, who can deal with the
applications for custody or for other reliefs.  He submits that the Sub-Section
(2) of Section 167 of the Criminal Procedure Code, 1973 (for short "the Code")
will get attracted only when an accused is produced for the first time, before a
Court, not having jurisdiction; on account of non-availability of the Presiding
Officer of the Court, which is specially constituted and not when the judicial
custody as well as police custody were already ordered by the Court, so
constituted.  Learned counsel submits that even on merits, the impugned order
cannot be sustained.

        Sri P.Kesava Rao, learned Standing Counsel for CBI, on the other hand,
submits that the impugned order does not suffer from any legal or factual
infirmity.  He contends that Sub-Section (2) of Section 167 of the Code cannot
be given a restricted interpretation.  He contends that except that the custody
cannot exceed 15 days, it is competent for a Magistrate, who does not have
jurisdiction to deal with the matter, to grant police custody even if the
initial production was before the specially constituted Court.  He submits that
the order passed by this Court in Crl.P.No.7134 of 2010 is referable to a case
in post-trial stage and that the ratio laid down therein, does not apply to a
case at the pre-trial stage.  He has placed reliance upon the judgment of the
Supreme Court in Dinesh Dalmia v. C.B.I.1.
       
The point that arises for consideration is as to whether the Special Judge for
Economic Offences (Incharge Judge) had the jurisdiction to pass the order
challenged in the petition filed under Section 482 of the Code.
       
It is not in dispute that the case against the petitioner is triable by the CBI
Court.  As a matter of fact, not only the petitioner was produced before that
Court and the police custody was sought before it by filing Crl.M.P.No.27 of
2012 custody of 5 days was given to the respondent.  Crl.M.P.No.58 of 2012 was
filed seeking extension of police custody.  This application was allowed by the
learned Incharge Judge.
        It becomes relevant to take note of Sub-Sections (1) and (2) of Section
167 of the Code:
167. Procedure when investigation cannot be completed in twenty-four hours
(1) Whenever any person is arrested and detained in custody, and it appears that
the investigation cannot be completed within the period of twenty-four hours
fixed by section 57, and there are grounds for believing that the accusation or
information is well-founded, the officer in charge of the police station or the
police officer making the investigation, if he is not below the rank of sub-
inspector, shall forthwith transmit to the nearest Judicial Magistrate a copy of
the entries in the diary hereinafter prescribed relating to the case, and shall
at the same time forward the accused to such Magistrate.
(2) The Magistrate to whom an accused person is forwarded under this section
may, whether he has or has not jurisdiction to try case, from time to time,
authorise the detention of the accused in such custody as such Magistrate thinks
fit, for a term not exceeding fifteen days in the whole; and if he has no
jurisdiction to try the case or commit it for trial, and considers further
detention unnecessary, he may order the accused to be forwarded to a Magistrate
having such jurisdiction:

        A perusal of Sub-Section (2) of Section 167 of the Code makes it clear
that in case an accused was liable to be produced before a particular Court and
the Presiding Officer of that Court is not available at the time of production,
he can be produced before a Magistrate, who does not have jurisdiction and such
Court is conferred with the power to order custody of whatever type, for a
period, not exceeding 15 days.

        The CBI Court is a specially constituted one, under the Act, through a
notification issued by the Central Government.  Other Courts cannot be kept
incharge of it, to discharge the same functions as does the regular Court.  On
10.01.2012 the petitioner was produced before the Court.  On that day the
Presiding Officer was not available and the petitioner was produced before the
Special Judge for Economic Offences, who was kept incharge of the CBI Court.

        Had the production before the Special Judge been at the initial stage, no
exception could have been taken.  The petitioner was already produced before the
regular CBI Court and his custody was to the police given for a limited period.
Once the matter is in session of the CBI Court, it was not competent for the
Special Judge, who was only an incharge, to exercise powers under Sub-Section
(2) of Section 167 of the Code, and grant extension of police custody.

        In Singeshwar Singh And Ors. V. State of Bihar And Ors.2, a Division Bench
of the Patna High Court explained the purport of Sub-Section (2) of Section 167
of the Code.  The same High Court examined the question as to whether a Vacation
Judge can grant anticipatory bail to a person, accused of committing offences
defined under the Prevention of Corruption Act, 1988.  In its judgment in State
of Bihar v. Braj Nandan Raut3, the High Court held as under:
"16.    From the facts discussed above, it is manifestly clear that the learned
Vacation/Sessions Judge, Gaya was not vested with the power of Special Judge, as
required under S.3 of the Act and, therefore, it was not the Court of the
Special Judge under the meaning of S.4 of the Act and therefore, it necessarily
follows that the learned Vacation/Sessions Judge, Gaya had no jurisdiction to
dispose of the anticipatory bail applications so filed by the accused persons.
The question is answered accordingly.  The order impugned, in that view of the
matter, must be held to be wholly without jurisdiction as the power under S.438
of the Code of Criminal Procedure in the given case was exercised by the Court
concerned admittedly who had no power to do so as the case was relating to the
offences under the P.C. Act of 1988."

       
This Court followed the said ratio in Crl.P.No.7134 of 2010 through order dated
01.10.2010.  The facts of this case warrant application of the said principle.

Sri P.Kesava Rao, learned counsel for the respondent sought to distinguish by
pleading that it pertains to the stage, after the cognisance was taken, that
however hardly makes any difference.

        Sub-Section (2) of Section 167 of Cr.P.C. does not give scope for any
conferment of power upon a Court, which otherwise has no jurisdiction, to
intervene in the proceedings, which are already before the regular Court
constituted under the Act.  The only occasion on which a Magistrate can order
custody is if the Presiding Officer of the regular Court i.e. CBI Court not
available, when an accused is produced for the first time.  Once the accused was
produced before the CBI Court, it is only for that Court, to take further steps,
be it as regards the grant of police custody, or extension thereof.  Whatever be
the permissibility for a Court, that is kept incharge of another ordinary
criminal Court to take various steps in a case pending before such criminal
Court, an exercise of that nature can not be undertaken, in respect of a case
pending before a Court, specially constituted under a specific provision of law.

        The judgment of the Supreme Court in Dinesh Dalmia's case is not directly
on the point.

Though the submissions are made on merits also, this Court is not inclined to
delve into the same.  Even now the respondent can move an application before the
CBI Court for extension of police custody.

For the foregoing reasons, the criminal petition is allowed and the order under
challenge is set aside.  It is left open to the respondent to move an
application seeking extension of the police custody before the Court of Special
Judge for CBI Cases, Hyderabad.  In view of the fact that the police custody
cannot be sought after expiry of 15 days from the date of initial production,
the learned Presiding Officer of the Special Court for CBI Cases, shall take up
the application if presented and pass appropriate orders on the same day.
       
______________________  
L.NARASIMHA REDDY, J    
12-01-2012