IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:22.07.2009 CORAM: THE HONOURABLE MR.JUSTICE G.RAJASURIA Crl.R.C.No.106 of 2007 K.Srinivasan ... Petitioner/Accused vs. Deputy Superintendent of Police CBI, SCB Chennai. ... Respondent/Complainant Prayer: Petition filed under Section 397 and 401 of Cr.P.C. against the order dated 13.04.2006 passed by the Additional Chief Metropolitan Magistrate E.O.II, Egmore, Chennai in Crl.M.P.No.322 of 2006 in Eocc No.78 of 1998. For Petitioner : Mr.B.Kumar,S.C. For Mr.S.Peer Mohamed For Respondent : Mr.N.Chandra Sekaran, ( Spl.P.P.for CBI) O R D E R Animadverting upon the order dated 13.04.2006 passed by the Additional Chief Metropolitan Magistrate E.O.II, Egmore, Chennai in Crl.M.P.No.322 of 2006, this criminal revision is focussed. 2. A 'resume' of facts which are absolutely necessary and germane for the disposal of this revision would run thus: The Deputy Superintendent of CBI, SCB, Chennai lodged the complaint before the Additional Chief Metropolitan Magistrate, E.O.II, Chennai as against as many as eight persons. At the stage of framing charge, the revision petitioner herein/A7 filed Crl.M.P.No.322 of 2006 under Section 239 of Cr.P.C. for discharging him from the case. Whereupon after hearing both sides, the learned Magistrate dismissed the application. 3. Being aggrieved by and dissatisfied with the order of the lower Court, this revision is filed on various grounds, the gist and kernel of them would run thus: The learned Magistrate failed to consider that the charges levelled as against the revision petitioner are groundless without any material, the CBI has chosen to lodge the complaint as against the revision petitioner also. No recovery of article or material from the petitioner was effected simply because one approver, namely https://hcservices.ecourts.gov.in/hcservices/ Sambandam, in this case implicated the petitioner in a vague manner, CBI roped him also at the belated stage in this case. 4. Even A1 has not implicated the petitioner herein. Nonetheless with asperity, CBI roped in A7. There is nothing to clue up CBI to fasten A7 with criminal liability. As such, without proper materials, the learned Magistrate decided to frame charges as against A7 also, which is against law. However, during the pendency of this revision, a petition has been filed to raise additional grounds of revision. The additional grounds of revision would run thus: CBI had no jurisdiction to investigate the offence under Section 3 of the Delhi Special Police Establishment Act, 1946. The CBI can investigate into the offences which could normally be investigated by police officers and not relating to offences which could only be investigated by the customs officers unless CBI officer is specially empowered in that behalf. As such, the investigation conducted consequent to the filing of the complaint is vitiated. The procedure adopted by the CBI is illegal and without any back up of the law. The Collector under Section 137 of the Customs Act cannot empower a person other than a customs officer to file a complaint under the Customs Act. Accordingly, the revision petitioner prayed for setting aside the order of the lower Court, by allowing Crl.M.P.No.322 of 2006 and also for quashing the complaint filed by the CBI as against the revision petitioner. Since CBI counsel took notice of that petition. In the interest of justice, the revision petitioner is also permitted to raise the additional grounds also. 5. Heard both sides at length. The learned Senior Counsel for the revision petitioner has made a submission that he restricts his argument only based on the additional grounds of revision filed by him. 6. The points for consideration are as to: (1) Whether CBI possesses no jurisdiction to investigate into the customs offences without obtaining authorisation or empowerment from the Board of Revenue as contemplated under the Customs Act and lay the police report like a Customs Officer? (2) Whether the Collector had no authority to sanction the CBI to lodge the complaint? POINT NO.1: 7. At this juncture, I would like to narrate the background of the case: The customs officials initiated action relating to the smuggling of sandalwood by some of the accused persons and in that connection, a few accused were arrested and detained. Whereupon, those accused persons, namely, Syed Kaleemullah, R.D.Sethuraman and Chandrasekaran also filed Crl.O.P.Nos.5540 of 1993 etc., batch, seeking bail. This Court, while dismissing the bail applications, by order dated 18.05.1993, directed as under: https://hcservices.ecourts.gov.in/hcservices/ "The CBI is directed to take take up investigation in this mamooth crime forthwith and forward a final report in accordance with law." Whereupon, CBI took up the matter and investigated into the crime and after obtaining sanction from the Collector, lodged the complaint before the Magistrate concerned, who took cognizance of the offences. 8. Animadverting upon the very investigation conducted by the CBI, the learned Senior Counsel for the revision petitioner would set forth and put forth his argument as under: Simply because the Central Government published two Notifications under the Delhi Special Police Establishment Act, 1946, empowering the CBI to investigate into the offences under the Customs Act, that does not mean that automatically they acquired the power to investigate without obtaining necessary authorisation from the said Board. Merely because this Court vide the order dated 18.05.1993 directed the CBI to investigate, the CBI was not absolved from its responsibility to approach the Board and get authorisation or empowerment to investigate into the offence under the Customs Act. The CBI official being a police officer can only act as a police officer and not as a customs officer, that is the purport of Sections 3 and 5 of the Delhi Special Police Establishments Act and the notifications made thereunder. 9. The Court in its previous order dated 18.05.1993 passed direction without hearing both sides on the issue relating to directing CBI to investigate into the matter. Virtually the High Court's order tantamounts to transfer of interrogation from the customs officer to CBI which should not have been passed without hearing the accused on that point. The revision petitioner/A7 was not at all a party in the said bail applications. He was roped in only at the time of filing the charge sheet. He did not have the opportunity to prefer appeal or SLP as against the said order of this Court directing further investigation. On coming to know of such a direction by this Court, he now agitates before this Court which has got ample powers not only under Section 401 of Cr.P.C., but also under Sections 482 and 483 Cr.P.C. The non investigation by the statutory authority, namely the customs officer affected the fundamental right of the revision petitioner and it is in violation of Articles 14 and 21 of the Indian constitution. When the statutory provision is to the effect that an investigation has to be conducted in a particular manner, the accused without proving in what manner he is prejudiced, is entitled to get the investigation conducted as well as the subsequent filing of the complaint quashed. Failure of justice and prejudice are presumed once an agency which is not empowered to investigate and file the complaint did so. The revision petitioner cannot be compelled to undergo the ordeal of trial, when the very investigation itself is fraught with illegality and impropriety. The order dated 18.05.1993 passed by this Court is only per incuriam and this Court is not bound by it. Further more, the decision of the Hon'ble Apex Court reported in 1996 Crl.L.J.3480 https://hcservices.ecourts.gov.in/hcservices/ [Central Bureau of Investigation v. State of Rajastan and others] (in short Rajasthan case) would clearly point out that the notifications referred to supra passed by the Central Government are not enough and it should be followed by special issuance of notification by the Board concerned empowering CBI to investigate into the offence. This Court while exercising its powers now based on the decision of the Hon'ble Apex Court, can simply ignore the earlier direction given by this Court as per incuriam and discharge the accused from the case concerned. 10. Per contra, denying and refuting, challenging and impugning the arguments projected on the side of the revision petitioner, the learned Special Public Prosecutor, (CBI), would advance and put forth his arguments as under: CBI was bound by the Court order dated 18.05.1993 and it cannot commit contempt of Court by taking a stand that this Court had no power to direct CBI and that CBI would not investigate into the crime. The notifications referred to supra passed by the Central Government amply empower the CBI to investigate even into the customs offences under the Customs Act and various other special enactments. Once higher authority, namely, the Central Government itself empowered CBI to investigate into the offences under special enactment, viz. the Customs Act, the question of CBI going and approaching the authorities under the Customs Act, seeking permission to investigate under those special enactments would be merely a futile exercise and it would be an empty formality also. In the recent decision of the Hon'ble Apex Court reported in (2006) 3 SCC (cri) 233 [Central Bureau of Investigation v. Ravi Shankar Srivastava, IAS and another], the earlier judgment of the Apex Court referred to by the learned Senior Counsel for the revision petitioner was not followed, but still an earliest judgment of the Supreme Court reported in AIR 1961 SC 1762 [Major E.G.Barsay v. State of Bombay] was followed by pointing out that the point raised on the side of the revision petitioner was no more res integra. Even though the complaint was filed as early as in the year 1998 and the revision petitioner was in receipt of the summons during 1998 itself, nonetheless, he kept quiet and only during the year 2006, he did choose to file the M.P. for discharge and over and above that, only during the year 2009, by way of additional grounds, he chose to challenge the very capacity and propriety of CBI who investigated into the offence and these pleas are also untenable due to laches on the part of the petitioner. According to the Special Public Prosecutor, the accused person in this case, constantly, interminably and unremittingly, one after another resort to dilatory tactics of filing petition after petition and delaying the matter being proceeded further by the trial Court. 11. In this factual matrix, it is just and necessary to analyse each and every objection and contention raised by the revision petitioner. 12. At the first instance, I would like to refer to the order dated 18.05.1993 passed by this Court. While I am exercising https://hcservices.ecourts.gov.in/hcservices/ my powers in this revision, I am only acting as successor to the then Hon'ble Judge who passed the said order as above directing the CBI to take up the investigation. It is not a precedent of a single Judge of this Court cited before me for being followed; if so at least the revision petitioner could invoke that concept "per incuriam". I would like to distinguish and differentiate a precedent being cited and describing the said precedent for being ignored on the basis of the principle "per incuriam" from that of the order which emerged earlier in the course of the same proceedings. The distinction which I try to make is one not that of tweedledum and tweedledee, but it is one that of chalk and cheese. The said order dated 18.05.1993 passed by my learned predecessor was made in the same matter earlier and that constitutes an earlier step ordered by this Court in this case. In such a case, in the same matter, that earlier order cannot be termed as "judgment/order per incuriam" and I, being the successor Judge cannot hold, that the previous order of my learned Predecessor was no order at all, as per the concept "per incuriam." That concept per incuriam emerges only under law of precedents. 13. At this juncture, I would like to extract the relevant portion relating to per incuriam in Salmond's jurisprudence 12th edition: (3) Ignorance of statute: A precedent is not binding if it was rendered in ignorance of a statute or a rule having the force of statute, i.e., delegated legislation. This rule was laid down for the House of Lords by Lord Halsbury in the leading case, and for the Court of Appeal it was given as the leading example of a decision per incuriam which would not be binding on the court. The rule apparently applies even though the earlier court knew of the statute in question, if it did not refer to, and had not present to its mind, the precise terms of the statute. Similarly, a court may know of the existence of a statute and yet not appreciate its relevance to the matter in hand; such a mistake is again such incuria as to vitiate the decision. Even a lower court can impugn a precedent on such grounds. The mere fact that (as is contended) the earlier court misconstrued a statute, or ignored a rule of construction, is no ground for impugning the authority of the precedent. A precedent on the construction of a statute is as much binding as any other, and the fact that it was mistaken in its reasoning does not destroy its binding force. (4) Inconsistency with earlier decision of higher court. It is clear law that a precedent loses its binding force if the court that decided it overlooked an inconsistent decision of a higher court. If, for example, the Court of Appeal decides a case in ignorance of a decision of the House of Lords which went the other way, the decision of the Court of Appeal is https://hcservices.ecourts.gov.in/hcservices/ per incuriam, and is not binding either on itself or on lower courts; on the contrary, it is the decision of the House of Lords that is binding. The same rule applies to precedents in other courts, such as the Divisional Court. (5) Inconsistency between earlier decisions of the same rank. A court is not bound by its own previous decisions that are in conflict with one another. This rule has been laid down in the Court of Appeal, Court of Criminal Appea and Divisional Court, and it obviously applies also to the House of Lords. There may at first sight seem to be a difficulty here; how can a situation of conflict occur, if the court is bound by its own decisions? At least two answers may be given. First, the conflicting decisions may come from a time before the binding force of precedent was recognised. Secondly, and more commonly, the conflict may have arisen through inadvertence, because the earlier case was not cited in the later. Owing to the vast number of precedents, and the heterogeneous ways in which they are reported – or are not reported – it is only too easy for counsel to miss a relevant authority. Whenever a relevant prior decision is not cited before the court, or mentioned in the judgments, it must be assumed that the court acts in ignorance or forgetfulness of it. If the new decision is in conflict with the old, it is given per incuriam and is not binding on a later court. Although the later court is not bound by the decision so given per incuriam, this does not mean that it is bound by the first case. Perhaps in strict logic the first case should be binding, since it should never have been departed from, and was only departed from per incuriam. However, this is not the rule. The rule is that where there are previous inconsistent decisions of its own, the court is free to follow either. It can follow the earlier, but equally, if it thinks fit, it can follow the later. This rule has been laid down for the Court of Appeal, and it is submitted that it applies also to other courts. It will be seen, therefore, that this exception to the binding force of precedent belongs both to the category of abrogation by subsequent facts and to the category of what is here called inherent vice. The earlier case the court before whom the precedent is cited may be reluctant to hold that its predecessor failed to consider a point directly raised in the case before it, and this reluctance will be particularly pronounced if the sub silentio attack is levelled against not one case but a series." 14. As such, I cannot countenance and uphold the argument of the learned Senior counsel for the revision petitioner that the said order dated 18.05.1993 passed by my learned Predecessor directing CBI https://hcservices.ecourts.gov.in/hcservices/ to investigate into the matter should be treated as per incuriam by me, while in the same matter I am exercising my powers as successor to my learned Predecessor. To the risk of repetition, without being tautologous I would hold that the earlier decision dated 18.05.1993 by my learned Predecessor cannot be termed as per incuriam by ushering the said concept "per incuriam" which forms part of the realm of "law of precedents". Not to put too fine a point on it, the judgment of a Court can be bye passed by ushering the concept per incuriam, but the earlier order passed in one and the same matter cannot be bye passed by the same Court on the ground of per incuriam. 15. Day in and day out, it is the practice of this Court to give direction to CBI to investigate into serious cases and the said order dated 18.05.1993, was one in that line. However, the learned Senior Counsel for the revision petitioner placed reliance on the aforesaid decision reported in Rajasthan case (1996 Crl.L.J.3480) and developed his argument that already the Hon'ble Apex Court clearly held that in a case relating to FERA, that the aforesaid two notifications of the Central Government would not be sufficient and over and above that, empowerment of CBI by the authority concerned under FERA is required. 16. The learned Special Public Prosecutor tried to distinguish and differentiate the said judgment of the Hon'ble Apex Court on various grounds. At the first instance, he would like to point out that the cited decision emerged in relating to a set of facts where CBI attempted to investigate in a foreign country without authorisation of the Central Government and in that factual matrix, it emerged. It is also the contention of the learned Special Public Prosecutor that the recent judgment of the Hon'ble Apex Court in (2006) 3 SCC (Cri) 233 (cited supra) virtually did not follow the judgment in Rajasthan case (1996 Crl.L.J.3480), but followed the earlier judgment. There is considerable force in the submission made by the learned Special Public Prosecutor on this aspect. It is therefore just and necessary to extract hereunder the relevant portion of the decision reported in (2006) 3 SCC (cri) 233 [Central Bureau of Investigation v. Ravi Shankar Srivastava, IAS and another] . Certain excerpts from it would run thus: "11. Coming to the question as to whether specific order in respect of each of the officer, the position is no longer res integra. In CBI v. State of Rajasthan it was held as follows: paras 21-23 & 27) “21. On a careful consideration of the facts and circumstances of the case and submissions made by the learned counsel for the parties, it appears to us that under Section 3 of the DSPE Act, the Central Government may, by notification, specify the offences which are to be investigated by the members of DSPE. It is not disputed that notification under Section 3 of the DSPE Act has been issued by the Central Government specifying the offences under FERA to be https://hcservices.ecourts.gov.in/hcservices/ investigated by the members of DSPE. It is also not in dispute that a notification dated 26-10-1977 by the Government of India, Ministry of Home Affairs, Department of Personnel and Administrative Reforms, has been issued in exercise of the powers conferred by sub-section (1) of Section 5 read with Section 6 of the DSPE Act. By the said notification the Central Government, with consent of the various State Governments as mentioned in the said notification including the State Government of Rajasthan, has extended the powers and jurisdiction of the members of DSPE, inter alia, to the State of Rajasthan for the investigation of the offences specified in the Schedule to the said notification. In the Schedule under clause (a), offences punishable under the FERA and under clause (b) attempts, abetments and conspiracies in relation to or in connection with any offence mentioned in clause (a) and any other offence committed in the course of the same transaction arising out of the same facts have been mentioned. 22. It is, however, to be noted that under Section 2 of the DSPE Act, the Central Government has been empowered to constitute a special police force to be called DSPE for the investigation in any Union Territory of offences notified under Section 3. Under Section 5(1) of the DSPE Act the Central Government may by order extend to any area including railway areas in a State, not being Union Territory, the powers and jurisdiction of the members of DSPE for the investigation of any of the offences or classes of offences specified in a notification under Section 3. Under Section 5(2), when by an order under sub-section (1), the powers and jurisdiction of the members of the said police establishment are extended to any such area, a member thereof may, subject to any order which the Central Government may make in this behalf, discharge the functions of a police officer in that area and shall, while so discharging such functions, be deemed to be a member of a police force of that area and be vested with the powers, functions and privileges and be subject to the liabilities of a police officer belonging to that police force. 23. It is quite evident that members of DSPE are members of special police force constituted under Section 2 of the DSPE Act by the Central Government. The question that arises for decision in this case is whether or not a member of DSPE, which is also a member of special police force constituted by the Central Government, even if authorised under Section 3 and Section 5 of the DSPE Act to investigate in respect of offences under FERA in a particular State other than the Union Territory, with the consent of https://hcservices.ecourts.gov.in/hcservices/ such State Government, can investigate the offences for violation of FERA, more so, when the offence is alleged to have been committed outside Indian territory. It will be apposite at this stage to refer to the provisions of Sections 3, 4 and 5 of FERA: ‘3. Classes of officers of Enforcement.—There shall be the following classes of officers of Enforcement, namely— (a) Directors of Enforcement; (b) Additional Directors of Enforcement; (c) Deputy Directors of Enforcement; (d) Assistant Directors of Enforcement; (e) such other class of officers of Enforcement as may be appointed for the purposes of this Act. 4. Appointment and powers of officers of Enforcement.— (1) The Central Government may appoint such persons as it thinks fit to be officers of Enforcement. (2) Without prejudice to the provisions of sub-section (1), the Central Government may authorise a Director of Enforcement or an Additional Director of Enforcement or a Deputy Director of Enforcement or an Assistant Director of Enforcement to appoint officers of Enforcement below the rank of an Assistant Director of Enforcement. (3) Subject to such conditions and limitations as the Central Government may impose, an officer of Enforcement may exercise the powers and discharge the duties conferred or imposed on him under this Act. 5. Entrustment of functions of Director or other officer of Enforcement.—The Central Government may, by order and subject to such conditions and limitations as it thinks fit to impose, authorise any officer of Customs or any Central Excise Officer or any police officer or any other officer of the Central Government or a State Government to exercise such of the powers and discharge such of the duties of the Director of Enforcement or any other officer of Enforcement under this Act as may