Judgment

RAY, J:- These three appeals are by certificate from the judgement and order dated 31 March, 1969 of the High Court of Assam and Nagaland.

2. These three appeals arise out of special cases Nos. 16 and 16-A of 1964 pending in the Court of the Special Judge, Gauhati. In Special Case No. 16 of 1964 Major J.S. Prosad, B.N. Ananthapadamanabhiah and Motiur Rahman were Charged under Section 120-B of the Indian Penal Code read with Sections 5(2), 5 (1) (c) and 5(1) (d) of the prevention of Corruption Act, 1947 and Section 467/471 of the Indian Penal Code. In special Case No. 16-A of 1964 charges were framed against S. Chartterjee and Motiur Rahman under Section 120-B of the Indian Penal Code read with Ss. 5(2), 5 (1) (c) and 5(1) (d) of the Prevention of Corruption Act and Sections 467 and 471 of the Indian Penal Code.

3. The appellants filed three separate criminal revision petitions in the High Court. Four contentions were advanced before the High Court. First, that the Special Judge at Gauhati had no jurisdiction to try offences investigated by the Delhi Special Police Establishment as the Delhi Special Establishment Act was not extended to NEFA. Secondly, that under Section 6 of the Delhi Special Police Establishment Act the Delhi Special Police Establishment cannot investigate in a case in any area which is not a Union territory or a railway area without the consent of the Government of the State. It was contended that the consent of the Government of Assam was not taken. Thirdly, the investigation was carried out by an Inspector of Police under Section 5 (2) of the Prevention of Corruption Act, under an order of an Magistrate of the First class at Delhi, but the Magistrate did not apply his mind to the matter and mechanically gave the permission. Fourthly, no sanction was taken under Section 196-A of the Code of Criminal Procedure before cognisance was taken by the Court.

4. The Division Bench, consisting of C.J. and Goswami, J. unanimously rejected the first two contentions but were divided in their opinion as to whether the Magistrate applied his mind to allow the investigation by an Inspector of Police and whether sanction under Section 196-A of the Code of Criminal Procedure was necessary. The matter was thereafter placed before the third learned Judge Sen, J. Before the third learned Judge another contention was advanced as to whether the Magistrate at Delhi had jurisdiction to accord sanction to an Inspector of Police of the Delhi Special Police Establishment to investigate cases in Assam. The third learned Judge held that an order of a Magistrate of the local jurisdiction was necessary and excepting a Magistrate of the district where the crime was committed no other Magistrate outside the jurisdiction could make an ruder for investigation. The third learned Judge also held that the Magistrate at Delhi did not apply his mind to allow the Inspector of Police to do investigation. In the result, the proceedings before the special Judge were quashed.

5. A question arose as to whether a new contention as to the competency of the Magistrate at Delhi to sanction investigation could have been raised before the third learned Judge when it had not been raisd before the Division Bench Counsel for the respondents contended that under section 429 of the Code of Criminal Procedure the case was to be laid before the third learned Judge and the third learned Judge was empowered to deal with the entire case and the judgment and order would follow the opinion of the third learned Judge.

6. This question came up for consideration in the recent unreported decision in Hethubha v. state of Gujarat (Criminal Appeal No. 100 of 1967 D/-13-3-1970) . It was contended in that case on behalf of the appellants that the third learned Judge could only deal with the differences between the two learned Judges and not with the whole case. This Court held that the third learned Judge could deal with the whole case. The language of Section 429 of the Code