CENTRAL BUREAU OF INVESTIGATION Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Relying on the decision of the apex court in the case of C.B.I. through S.P., Jaipur Vs. State of Rajasthan & Ors. reported in 2001(1) Scale 250 the learned counsel for the petitioner submitted that the Judicial Magistrate has no power to direct C.B.I. under Section 156(3) of the Criminal Procedure Code to conduct investigation into any offence committed within his territorial jurisdiction. The facts of the case are that Spl. A.C.B. case No.2 of 1996 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 court aforesaid called for Muddamal from the Office of Nazir, which was given to the clerk Shri Shukla and in turn given to Shri Kiran Joshi, Senior Clerk. During the recording of the statement of the witnesses when Muddamal was required to be identified it was searched in the bag containing Muddamal and at that time article No.2 Rs.35,000/- i.e. 70 notes of Rs.500/= denomination could not be found therein. Though rigorous search has been made but the said Muddamal is not found and ultimately a criminal complaint was filed in Nadiad Town Police Station, which was registered as I. C.R. No.22/99 for the offences under Section 381 of the I.P.C. by the Court officer. It is the say of the petitioner that Investigation Officer, Nadiad Town Police Station, Nadiad for about 9 months could not get any fruitful result in the matter. the Nazir of the District Court of Kheda at Nadiad written a letter dated 29.9.99 to the learned Chief Judicial Magistrate, Nadiad requested therein to hand over the investigation of the case to C.B.I. On 29.9.99 the Chief Judicial Magistrate, Nadiad passed an order directing the C.B.I. to investigate the matter and report to him at the earliest. The C.B.I. through its Public Prosecutor filed an application in the court of Chief Judicial Magistrate, Nadiad praying therein for recalling of the order dated 29.9.99. This application was came to be rejected by the Chief Judicial Magistrate, Nadiad under its order dated 6.10.99. Hence this petition under Article 226 of the Constitution of India.

(2.) This petition is wholly misplaced and misconceived at the instance of none other than C.B.I. The C.B.I. is a litigant before the court like other litigant. It cannot be put in any special category or in a privileged category which prima facie appears to have been claimed by the petitioner in this petition. Leaving apart the merits of the matter, this petition is not maintainable in this court. The order of the Chief Judicial Magistrate challenged in this petition is revisable by the Sessions Court and reference in this respect may have to Section 397 of the Cr.P.C. Efficacious alternative remedy is available to the petitioner in the matter against that order of Chief Judicial Magistrate but the C.B.I. instead of availing that remedy has chosen this path of filing this petition which is not only costly but also it consumes long time. The C.B.I. has to take all the care that in the matter where the order which is appealable or revisable that remedy is first availed of before coming up in this court. Instead of availing that remedy the C.B.I. by filing this petition has not only unnecessarily burdened the public exchequer but this court also by a litigation which was otherwise avoidable. This approach of the C.B.I. deserves to be deprecated and accordingly the same is deprecated. Against the order of the Chief Judicial Magistrate it has no remedy except to approach this court by this petition under Article 227 of the Constitution of India is not the case of C.B.I. also. The petitioner has efficacious alternative remedy in the matter against the order of Chief Judicial Magistrate and only on this ground this petition deserves to be dismissed.

(3.) A layman litigant who directly approach to this court in a matter where he has efficacious alternative remedy available under statute may be understandable and which may be taken to be a case of ignorance of the legal position by the litigant and lack of proper advice by the professional to whom he approached. But the C.B.I. cannot be put at par with that litigant. The C.B.I. may have its own legal advisors and otherwise also the officers attached to it are supposed to know these basic principles of law. Though in a case, where against the order impugned in this petition revision lies but the C.B.I. files the petition directly circumventing that remedy this cannot be tolerated by the court. At the cost of repetition it is to be stated that it is also not the case of the C.B.I. that against the order of the Chief Judicial Magistrate impugned in this petition the revision application before the Sessions Court is not maintainable. In the petition under Articles 226 or 227 of the Constitution of India it is the duty of the petitioner to state that in the matter he, she or it has no efficacious alternative remedy available. In this petition, the C.B.I. has not stated that in the matter i.e. against the impugned order it has no other efficacious alternative remedy. Non-mentioning of this fact concludes that the C.B.I. admitted that against the impugned order it has efficacious alternative remedy available. Despite of this admission which can be safely inferred from the petition it is really shocking, surprising and difficult to digest of this approach of the C.B.I. circumventing the statutory efficacious alternative remedy available against the impugned order. The C.B.I., as said earlier, is a litigant like other litigants before this court which should not have felt shy or degraded to go before Sessions Court against the impugned order if it really felt aggrieved of the same. This approach of C.B.I. is certainly against well settled law laid down by catena of decisions of Hon'ble Supreme Court as well as High Courts. In the case of Shyam Kishore V. Municipal Corporation of Delhi, (1993) 1 SCC 22, the Lordships of Hon'ble Supreme Court held that "where adequate remedy can be read in the statute plea of resort to writ remedy under Arts. 226 and 227 must be discouraged." In a case where statutory alternative remedy is available to the litigant court would not interfere and direct the party to recourse to the alternative remedy available under statute. In this case, the alternative efficacious remedy is available to the petitioner and without any justification whatsoever it has directly come up in this court and this conduct of the C.B.I. deserves to be depricated. The C.B.I. is not respecting and adhering to the law laid down by Hon'ble Supreme Court and this court and despite of availability of efficacious alternative remedy directly approached this court minimum what is to be done by the court is to dismiss the petition. As this petition deserves to be dismissed only on the ground of availability of efficacious alternative remedy to the petitioner I do not consider it to be in the interest of petitioner itself to touch the merits of matter. Even if the petitioner has a strong case on merits but where against the impugned order it has efficacious alternative remedy, that remedy has to be first availed of.