1 WP1737_09.sxw IN THE HIGH COURT OF JUDICATURE OF BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO. 1737 OF 2009 Central Bureau of Investigation (At the instance of Mr.N.S.Raju, PI, CBI) Economic Offences Wing, 3rd Floor, Kitab Mahal, 192, Dr.D.N.Road, Fort, Mumbai ... Petitioner Versus 1. Dilip Sudhakar Pendse 2. Nalini Properties Pvt. Ltd. 3. Anuradha Dilip Pendse All having their address at 602, Royal Grave, L.T.Colony, Road No.2, Dadar (East), Mumbai - 400 014 4. State of Maharashtra ... Respondents Mr. D. N. Salvi with Mr. A. S. Gadkari, Advocates for the Petitioner. Mr. H. H. Nagi with Mr. Nam Joshi, Advocates for Respondent Nos. 1 and 2. Mrs. M. R. Tidke, APP for the State. CORAM: B. R. GAVAI, J. Reserved on: 29th June, 2011 Pronounced on : July, 2011 JUDGMENT: Rule. Rule made returnable forthwith. Heard by consent. 2. The petitioner Central Bureau of Investigation (hereinafter referred to as the “CBI” for short) challenges the order dated 7th March 2009 passed by 2 WP1737_09.sxw the learned Special Judge for CBI Cases, Greater Mumbai thereby allowing the miscellaneous application filed by the respondents (original accused Nos. 1, 6 and 8) for remanding back the case to the Court of Chief Metropolitan Magistrate (hereinafter referred to as the “CMM” for short), Mumbai. 3. The facts in brief giving rise to the present petition are as under: 4. The petitioner i.e. CBI, Economic Offence Wing has filed a charge-sheet against eight accused including the respondents bearing RC No. 1/ E/2004-CBI/EOW/Mumbai for the offences punishable under Section 120-B read with Sections 420, 468, 471 and 477-A of the Indian Penal Code (hereinafter referred to as the “IPC” for short). In the said case, the petitioner had filed an application for tendering pardon to the accused No. 2 namely Mr. Rajendra K. Jhunjhunwala. After examining the said accused No. 2, the learned Additional Chief Metropolitan Magistrate (hereinafter referred to as the “ACMM” for short) vide order dated 10th September 2008 granted tender of pardon to the said accused. Vide order dated 16th September 2008, the learned ACMM passed the order of committal to the Court of Session as provided under Section 306(4) of the Code of Criminal Procedure (hereinafter referred to as the “Code” for short). An application came to be filed by the present respondents seeking remand of the said special case to the Court of CMM, Mumbai. The said application was opposed by the petitioner. However, vide 3 WP1737_09.sxw the order impugned herein, the learned Special Judge for CBI allowed the application. 5. Mr. Salvi, the learned Special Prosecutor appearing on behalf of the petitioners submits that the learned Sessions Judge has passed the order by misreading the provisions of Sections 17, 29 and 306 (5) of the Code. He submits that the learned ACMM is bestowed with all the powers of CMM but since the order of committal of case to the Court of Session was a judicial order, the learned Sessions Judge has erred in interfering with the same and remanding the matter to the Court of CMM. 6. Mr. Nagi, the learned Counsel, appearing on behalf of the respondents, on the contrary, submits that the ACMM cannot be equated with the CMM. He submits that the ACMM is not on par with the CMM, and therefore, under the provisions of Section 306 of the Code, the learned ACMM ought to have made over the case to the CMM instead of committing the same to the Court of Session. He, therefore, submits that no interference is warranted in the impugned order. 7. For appreciating the rival submissions, it may be necessary to quote Sections 17, 19, 29 and sub-section (5) of Section 306 of the Code which read thus, 4 WP1737_09.sxw 17. Chief Metropolitan Magistrate and Additional Chief Metropolitan Magistrate.- (1) The High Court shall, in relation to every metropolitan area within its local jurisdiction, appoint a Metropolitan Magistrate to be the Chief Metropolitan Magistrate for such metropolitan area. (2) The High Court may appoint any Metropolitan Magistrate to be an Additional Chief Metropolitan Magistrate, and such Magistrate shall have all or any of the powers of a Chief Metropolitan Magistrate under this Code or under any other law for the time being in force as the High Court may direct. 19. Subordination of Metropolitan Magistrates.- (1) The Chief Metropolitan Magistrate and every Additional Chief Metropolitan Magistrate shall be subordinate to the Sessions Judge; and every other Metropolitan Magistrate shall, subject to the general control of the Sessions Judge, be subordinate to the Chief Metropolitan Magistrate. (2) The High Court may, for the purposes of this Code, define the extent of the subordination, if any, of the Additional Chief Metropolitan Magistrates to the Chief Metropolitan Magistrate. (3) The Chief Metropolitan Magistrate may, from time to time, make rules or give special orders, consistent with this Code, as to the distribution of business among the Metropolitan Magistrates and as to the allocation of business to an Additional Chief Metropolitan Magistrate. 29. Sentences which Magistrates may pass.- (1) The Court of a Chief Judicial Magistrate may pass any sentence authorised by law except a sentence of death or of imprisonment for life or of imprisonment for a term exceeding seven years. (2) The Court of a Magistrate of the first class may pass a sentence of imprisonment for a term not exceeding three years, or of fine not exceeding ten thousand rupees, or of both. (3) The Court of a Magistrate of the second class may pass a sentence of imprisonment for a term not exceeding one year, or of the fine not exceeding five thousand rupees, or of both. (4) The Court of a Chief Metropolitan Magistrate shall have the powers of the Court of a Chief Judicial Magistrate and that of a Metropolitan Magistrate, the powers of the Court of a Magistrate of the first Class. 5 WP1737_09.sxw 306. Tender of pardon to accomplice.- (1) ... (2) ... (3) ... (4) ... (5) Where a person has accepted a tender of pardon made under sub-section (1) and has been examined under sub-section (4), the Magistrate taking cognizance of the offence shall, without making any further inquiry in the case,- (a) commit it for trial- (i) to the Court of Session if the offence is triable exclusively by that Court or if the Magistrate taking cognizance is the Chief Judicial Magistrate; (ii) to a Court of Special Judge appointed under the Criminal Law Amendment Act, 1952, if the offence is triable exclusively by that Court. (b) in any other case, make over the case to the Chief Judicial Magistrate who shall try the case himself. Perusal of the said provisions would reveal that, sub-section (1) of Section 17 provides that, for every metropolitan area, the High Court shall appoint a Metropolitan Magistrate (hereinafter referred to as the “MM” for short) to be the CMM for such metropolitan area. Perusal of sub-section (2) of Section 17 would reveal that the High Court may also appoint any MM to be an ACMM, and such Magistrate shall have all or any of the powers of a CMM under the Code or under any other law for the time being in force as the High Court may direct. Perusal of Section 29 would reveal that the Chief Judicial Magistrate (hereinafter referred to as the “CJM” for short) can pass any sentence authorised by law except a sentence of death or imprisonment for life or of imprisonment for a term exceeding seven years. The Court of a Magistrate of the first class can pass a sentence of imprisonment for a term not 6 WP1737_09.sxw exceeding three years or of fine not exceeding ten thousand rupees. Perusal of sub-section (4) would reveal that the Court of a CMM shall have the powers of the Court of a CJM and that of a MM, the powers of the Court of Magistrate of the first class. A conjoint reading of these provisions would reveal that in case of CJM and CMM, the power to award sentence is upto seven years imprisonment. It is not in dispute that the judicial powers exercised by CMM and ACMM are same. Perusal of sub-section (5) of Section 306 would reveal that where a person has accepted a tender of pardon under sub-section (1) and he has been examined under sub-section (4), the Magistrate taking cognizance of the offence is forthwith required to commit it for trial to the Court of Session, if the Magistrate taking cognizance is the CJM. When an offence is exclusively triable by a Special Judge appointed under the Criminal Law Amendment Act, 1952, the case has to be committed to such a Judge, and in all other cases, the case is required to be made over to the CJM who is required to try the case himself. Perusal of section 19 would reveal that the CMM and every ACMM are subordinate to the Sessions Judge and every other MM, subject to the general control of the Sessions Judge, is subordinate to the CMM. No doubt that the High Court, for the purposes of the Code, is entitled to define the extent of the subordination, if any, of the ACMMs to the CMM and that the CMM is also entitled to make rules or the special orders consistent with the Code, as to the distribution of business among the MMs and the allocation of business to an ACMM. It is, thus, clear that primarily the CMM as also the 7 WP1737_09.sxw ACMM are subordinate to the Sessions Judge with a rider that the High Court may, for the purposes of the Code, define the extent of the subordination of ACMMs to the CMM. However, the fact remains that the judicial powers which the ACMM exercises are the same as that of CMM. As already discussed hereinabove, the powers to award sentence to be exercised by the CMM and ACMM is upto seven years imprisonment. 8. It is to be noted that the order dated 16th September 2008 passed by the learned ACMM of committing the case to the Sessions Judge was a judicial order passed under sub-section (5) of Section 306 of the Code. It was not an order of transfer of the case to the learned Sessions Judge as observed by the learned Sessions Judge in his order. The Apex Court in the case of Central Talkies Limited Vs. Dwarka Prasad reported in AIR 1961 SC page 606 had an occasion to consider the question as to whether the word 'District Magistrate' used in Section 3 of U.P. (Temporary) Control of Rent and Eviction Act would also include an Additional District Magistrate. Under the provisions of the said Act, under Section 3, the permission of the District Magistrate was required to file a suit in a civil court for the eviction of a tenant. The permission was granted by the Additional District Magistrate. The contention was raised that since the permission was granted by the Additional District Magistrate and not by the District Magistrate, the said permission was not valid in law. The said contention was rejected by the High Court. The Apex Court held thus, 8 WP1737_09.sxw “(9) The argument that the District Magistrate was a persona designata cannot be accepted. Under the definition of “District Magistrate”, the special authorisation by the District Magistrate had the effect of creating officers exercising the powers of a District Magistrate under the Eviction Act. To that extent, those officers would on authorisation, be equated to the District Magistrate. A persona desginata is “a person who is pointed out or described as an individual, as opposed to a person ascertained as a member of a class, or as filling a particular character.” (See Osborn's Concise Law Dictionary, 4th Edn., p. 253). In the words of Schwabe, C.J. in Parthasaradhi Naidu v. Koteswara Rao, ILR 47 Mad 369 : (AIR 1924 Mad 561) (FB), personae designatae are “persons selected to act in their private capacity and not in their capacity as Judges”. The same consideration applies also to a well-known officer like the District Magistrate named by virtue of his office, and whose powers the Additional District Magistrate can also exercise and who can create other officers equal to himself for the purposes of the Eviction Act.” It can, thus, be clearly seen that the Apex Court held that the District Magistrate was not a persona designata, and an Additional District Magistrate, on authorisation, was included in the definition of the District Magistrate. It is not in dispute that in the present case, all the offences charged with are punishable with the sentence for a term upto seven years. As such, in a metropolitan area, these offences could be tried either by the CMM or ACMM. Therefore, in my considered view, upon a conjoint reading of Sections 17, 29 and sub-section (5) of Section 306, the word used “Chief Judicial Magistrate” in sub-section (5) clause (a) (i) cannot be termed as Chief Judicial Magistrate alone and would include the Additional Chief Metropolitan Magistrates. In my view, if the tender of pardon is accepted by the ACMM, the case would be required to be committed for trial to the Court of Session. No doubt that the 9 WP1737_09.sxw CMM would alone be entitled to exercise the administrative powers of transfers from one MM to another or from one ACMM to another. However, the power under Section 306(5) is not a power of transfer. It is a judicial power mandating the Magistrate taking cognizance to commit the case either to the Court of Session or the Special Judge, if the Magistrate taking cognizance is the CJM. In my considered view, it is only when the Magistrate taking cognizance is a MM, the case will be required to be made over to the Chief Metropolitan Magistrate. I find that the learned Special Judge has erred in holding that the ACMM had transferred the case to the Sessions Judge which power he did not possess and only the CMM possesses. At the costs of repetition, the order dated 16th September 2008 passed by the learned ACMM was not an order of transfer but was an order of committal of the case to the Court of Sessions. 9. In that view of the matter, the impugned order is not sustainable in law. Rule is, therefore, made absolute in terms of prayer clauses (b) and (c). (B. R. GAVAI, J)