Back
2001 Supreme(Pat) 407
PATNA HIGH COURT
Nagendra Rai, Aftab Alam and Shiva Kirti Singh JJ.
C.B.I.(A.H.D.)
Versus
Braj Bhushan Prasad
Criminal Reference No. 1 of 2001 ; 2 of 2001 ;
Decided On : MAY 04, 2001
Headnote:Bihar Reorganisation Act, 2000-Section 89(2)-More of Reference-There is no basis in law to hold that a reference u/s 89(2) can be made in no other way but by an order passed by the trial court-Reference made on the basis of a resolution of the Standing Committee is a perfectly valid reference and there is no reason for the Full Bench not to answer it-What might happen ordinarily cannot be held to be the only legal and valid course-Section 89(2) does not lay down any particular manner in which a reference is to be made-There was no legal bar precluding the Standing Committee from taking the decision that the issue in dispute should be decided by the judicial side of the Court and making a reference accordingly. (Para 10)
Bihar Reorganisation Act, 2000-Section 89(1)-A proceeding can be said to relate exclusively to a territory if the court in that territory would have the exclusive jurisdiction to try that proceeding-Correlation between a territory and a proceeding can be satisfactorily understood in the context of the Act only with reference to courts jurisdiction-A proceeding can be said to relate to a territory if the court established in that territory would have jurisdiction to try that proceeding under the relevant procedural laws-Section 89(1) clearly intended to take care of cases which were instituted in courts beyond the territories to which the proceedings related in deviation of normal rule of procedures which requires that a proceeding relating to a certain place should be instituted in the court at that place-What is implicit in Section 89(1) is that even in the unified State of Bihar it was possible that proceedings relating exclusively to the territory now forming State of Jharkhand could be instituted in courts outside that territory and as a consequence on the date the new State came into being certain proceedings relating exclusively to the territory of the new State may be found lying in courts which as a result of the division of the State may stand denuded of their jurisdiction to try those proceedings any longer. (Paras 23 to 25)
Bihar Reorganisation Act, 2000-Section 89(1) r/w Section 16 of Code of Civil Procedure, 1908 and Section 177 of Code of Criminal Procedure, 1973-Proceedings relating to those territories now forming Jharkhand could be instituted in courts outside those territories only when (i) part of cause of action arose outside that territories with the result that jurisdiction was created also for courts established in areas where part of the cause of action arose outside those territories-Proceedings falling in this category cannot be described exclusively to Jharkhand since relevant procedural law permitted their institution in courts outside the territories now in Jharkhand even before the division of Bihar-All such proceedings, though relating to the territories of Jharkhand, the institution of which in courts remaining in the truncated State of Bihar was lawful and valid because of the nature of offences or because of a part of the cause of action had arisen outside those territories will not be covered by Section 89(1) and shall continue to be tried by the respective courts in Bihar-(ii) other circumstance in which a proceeding though relating exclusively to the territory of Jharkhand could be instituted in courts outside those territories would be that the proceedings arose under special Acts, the court, tribunal, authority or officer under which it had its seat outside those territories proceedings falling in the first category will not be covered by Section 89(1) and only the proceedings under the second category which alone would stand transferred to Jharkhand. (Paras 28 to 30)
Delhi Special Police Establishment Act, 1946-Sections 5 and 7-It is not for the investigating agency to decide the forum of trial-Decisive factor is the nature of offence-Court before whom a case would go for trial has got nothing to do with the agency which might have investigated the case. (Paras 33 and 34)
Bihar Reorganisation Act, 2000-Section 89(1)-Place of trial of AHD Scam Cases-Cases instituted by C.B.I. at Patna not due to any legal compulsion but on the basis that the Special Court at Patna had equal jurisdiction to try those cases along with the Special Courts at Dhanbad and Ranchi-At no stage the special courts at Ranchi and Dhanbad, appointed under Notification dated 19.4.94, were lawfully divested of their jurisdiction to try those cases which related to fraudulent withdrawals made within the territorial jurisdiction of those courts and yet those cases were instituted at Patna where they are lingering for more than four years-Fraudulent withdrawals from the district treasuries were only allusion of the branches of the massive tree of scam, the roots of which lay in Patna-Fountain head of the conspiracy and the resultant criminal acts, were at Patna- These cases do not relate exclusively to the territory now forming part of Jharkhand and therefore they will continue to proceed before the Special Judge at Patna. (Paras 51 to 55, 67 and 73)
(1999) 5 SCC 138-Distinguished.
1996(1) PLJR 561; 1996(1) PLJR (SC) 97-Referred.
Per Shiva Kirti Singh. J. (Majority view)
Bihar Reorganisation Act, 2000-Section 89-Fodder Scam-None of the cases relate exclusively to the territory of Jharkhand in the sense that only courts in Jharkhand can have jurisdiction to try those cases-The letters through which fraudulent allocations and withdrawals were made were created and handed over at Patna. (Para 108)
Per Nagendra Rai. J. (Minority view)
Prevention of Corruption Act, 1988-Sections 3 and 4-Once a Special Judge is appointed for a case or group of cases then he alone is competent to proceed with the trial-Exercise of power u/s 4(2) arises Only when there are more Special Judges than one for an area or areas-Such power is not to be exercised in a routine manner but only when it becomes necessary. (Paras 79 and 80)
1995(1) PLJR 561; (1999) 5 SCC 138-Referred
Delhi Special Police Establishment Act, 1946-Sections 5 and 7-Branch of CBI at Patna deals with all cases registered in the State of Bihar, which do not pertain to public Undertakings and the C.B.I. Branches at Dhanbad and Ranchi deal with cases only in respect of Public Undertakings-Only because a case has been registered at Patna by the C.B.I., it cannot be presumed or inferred that C.B.I. believe that the part of action has been committed within the jurisdiction at Patna-After bifurcation of the erstwhile State of Bihar and creation of Jharkhand State, the Special Court, Patna ceased to have any jurisdiction over areas falling within the territory of Jharkhand State. (Paras 84 and 88)
Judicial Control Over Investigation-AHD Scam Cases-Registrar General‘s letter dated 13.6.96 giving direction to the Designated Judge, Patna to deal with AHD scam cases does not mean that High Court has come to a conclusion that the Patna Court has equal jurisdiction to deal with the matter as part of the offences having been committed at Patna-The said direction was issued on the consideration that as monitoring of the cases was being done at Patna, it would be better to confer power on the designated Judge at Patna to try the cases-Non-issuance of formal notification in accordance with the decision taken by High Court on administrative side regarding allocation of cases can only be an irregularity and that will not make the direction ineffective. (Paras 86 and 87)
Code of Criminal Procedure, 1973-Sections 154 and 156-The jurisdiction of a police officer depends upon the fact as to whether the Court, within whose jurisdiction area of the police station falls, has power to enquire or try the case under the provisions of the Code or not-It cannot be said that question of Investigation has no relevancy to the question of enquiry and trial by a court. (Para 91)
Bihar Reorganisation Act, 2000-Section 89- The word "exclusively" used in Section 89-means exclusion of all others-Only those cases which exclusively belong to the territory of State of Jharkhand shall alone be transferred-If offences have been committed partly in Bihar and partly in Jharkhand, then such cases may be tried by courts located in both the States-If different and, unconnected conspiracy has been entered by the accused persons at different places, not part of the main conspiracy, then it cannot be held that the offences were committed as a result of conspiracy entered into at Patna or those are part of the offences, which have taken place at Patna. (Paras 91 to 96, 101)
AIR 1970 SC 45-Referred
Aftab Alam, J.
1. These two proceedings before the Full Bench are on reference made under Sec. 89(2) of the Bihar Re-organisation Act, 2000. The object of the reference is to determine whether by virtue of Sec. 89(1) of the Act the criminal cases, commonly known as the Animal Husbandry Scam cases, stand transferred to the Court in Jharkhand, the newly-created State of Jharkhand, or whether those cases would continue to proceed before the Special Court at Patna where they were instituted and where they have been hitherto proceeding. According to Sec. 89(1) of the Act upon the creation of the State of Jharkhand, every proceeding pending before a Court in this State shall stand transferred to the corresponding Court in Jharkhand if it is a proceeding relating exclusively to the territory of Jharkhand. Subsection (2) of Sec. 89 provides that if a question arises as to whether any proceeding should stand transferred under Sub-sec. (1), it would be referred to the Patna High Court and the decision of this Court would be final.
2. It is well known by an order passed by a bench of this Court, the investigation of all the Animal Husbandry cases was made over to the Central bureau of Investigation (C.B.I. for short). Further, by an order passed by the Supreme Court, the investigation by the C.B.I. was put under the over-all control and supervision of a bench of this Court. The matter, thus, periodically comes before the monitoring bench of this Court. On one such occasion, the matter came up before the monitoring bench on 10-11-2000, that is to say, five days before the new State of Jharkhand was to come into being under the Bihar Re-organisation Act. On that date the monitoring bench recorded an order simply adjourning the matter to 12-1-2000 with the direction to the agency to file the progress report as usual. The C.B.I. then filed a petition before the Supreme Court seeking clarification of its order dated 19-3-1996 consequent upon re-organisation of the State of Bihar and stating that the petition was being filed pursuant to the oral observation made by the monitoring bench of the Patna High Court, monitoring the Animal Husbandry Department scams whereby the Bench on 10-11-2000 directed the Central bureau of Investigation to seek the clarification from the Hon ble Court, the order of this Hon ble Court, the order of this Hon ble Court dated 19-3-1996 with regard to further monitoring. In paras 6 and 7 of that petition, it was represented before the Supreme Court as follows:
6. It is submitted that out of the 61 cases registered by Central bureau of Investigation (C.B.I.) so far 52 cases stand deemed to be transferred to the corresponding Courts in the new State of Jharkhand.
7. Thus, the monitoring bench has sought clarification as to whether the monitoring bench still have jurisdiction to monitor the investigation of the aforesaid 52 cases also or a separate monitoring bench will have to be constituted by Hon ble High Court of Jharkhand for the aforesaid period.
3. It will be appropriate to indicate here that at that time out of the 52 cases which according to the C.B.I. stood transferred to Jharkhand by virtue of Sec. 89(1) of the Act, in 35 cases the Special Court at Patna had already passed orders taking cognizance on the basis of charge-sheets submitted by the C.B.I. in one case though charge-sheet was submitted by the C.B.I. the Court was yet to take cognizance and in the remaining 16 cases the C.B.I. was yet to submit charge-sheets.
4. The petition filed by the C.B.I. was disposed of by the Supreme Court by order dated 13-12-2000 and from that order, it appears that when the petition was taken up a dispute was raised on behalf of some of the accused, at least in respect of the number of cases suggested by the C.B.I. as having stood transferred to Jharkhand. It will be useful to reproduce here portions of the order of the Supreme Court in-so-far as relevant for the present:
It was the stand of the C.B.I. that out of 6
