K.Srinivasan v. Deputy Superintendent of Police CBI, SCB Chennai

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 clueup CBI to fasten A7 with criminal liability. As such, without propermaterials, the learned Magistrate decided to frame charges as againstA7 also, which is against law. However, during the pendency of thisrevision, a petition has been filed to raise additional grounds ofrevision. The additional grounds of revision would run thus:CBI had no jurisdiction to investigate the offence underSection 3 of the Delhi Special Police Establishment Act, 1946. TheCBI can investigate into the offences which could normally beinvestigated by police officers and not relating to offences whichcould only be investigated by the customs officers unless CBI officeris specially empowered in that behalf. As such, the investigationconducted consequent to the filing of the complaint is vitiated. Theprocedure adopted by the CBI is illegal and without any back up ofthe law. The Collector under Section 137 of the Customs Act cannotempower a person other than a customs officer to file a complaintunder the Customs Act. Accordingly, the revision petitioner prayedfor setting aside the order of the lower Court, by allowingCrl.M.P.No.322 of 2006 and also for quashing the complaint filed bythe CBI as against the revision petitioner. Since CBI counsel tooknotice of that petition. In the interest of justice, the revisionpetitioner is also permitted to raise the additional grounds also.5. Heard both sides at length. The learned Senior Counsel forthe revision petitioner has made a submission that he restricts hisargument only based on the additional grounds of revision filed byhim.6. The points for consideration are as to:(1) Whether CBI possesses no jurisdiction to investigate intothe customs offences without obtaining authorisation or empowermentfrom the Board of Revenue as contemplated under the Customs Act andlay the police report like a Customs Officer?(2) Whether the Collector had no authority to sanction theCBI to lodge the complaint?POINT NO.1:7. At this juncture, I would like to narrate the backgroundof the case:The customs officials initiated action relating to thesmuggling of sandalwood by some of the accused persons and in thatconnection, a few accused were arrested and detained. Whereupon,those accused persons, namely, Syed Kaleemullah, R.D.Sethuraman andChandrasekaran also filed Crl.O.P.Nos.5540 of 1993 etc., batch,seeking bail. This Court, while dismissing the bail applications, byorder dated 18.05.1993, directed as under: https://hcservices.ecourts.gov.in/hcservices/ "The CBI is directed to take take upinvestigation in this mamooth crime forthwith andforward a final report in accordance with law."Whereupon, CBI took up the matter and investigated into the crime andafter obtaining sanction from the Collector, lodged the complaintbefore the Magistrate concerned, who took cognizance of the offences.8. Animadverting upon the very investigation conducted by theCBI, the learned Senior Counsel for the revision petitioner would setforth and put forth his argument as under:Simply because the Central Government published twoNotifications under the Delhi Special Police Establishment Act,1946, empowering the CBI to investigate into the offences under theCustoms Act, that does not mean that automatically they acquired thepower to investigate without obtaining necessary authorisation fromthe said Board. Merely because this Court vide the order dated18.05.1993 directed the CBI to investigate, the CBI was not absolvedfrom its responsibility to approach the Board and get authorisationor empowerment to investigate into the offence under the Customs Act.The CBI official being a police officer can only act as a policeofficer and not as a customs officer, that is the purport of Sections3 and 5 of the Delhi Special Police Establishments Act and thenotifications made thereunder.9. The Court in its previous order dated 18.05.1993 passeddirection without hearing both sides on the issue relating todirecting CBI to investigate into the matter. Virtually the HighCourt's order tantamounts to transfer of interrogation from thecustoms officer to CBI which should not have been passed withouthearing the accused on that point. The revision petitioner/A7 wasnot at all a party in the said bail applications. He was roped inonly at the time of filing the charge sheet. He did not have theopportunity to prefer appeal or SLP as against the said order of thisCourt directing further investigation. On coming to know of such adirection by this Court, he now agitates before this Court which hasgot ample powers not only under Section 401 of Cr.P.C., but alsounder Sections 482 and 483 Cr.P.C. The non investigation by thestatutory authority, namely the customs officer affected thefundamental right of the revision petitioner and it is in violationof Articles 14 and 21 of the Indian constitution. When the statutoryprovision is to the effect that an investigation has to be conductedin a particular manner, the accused without proving in what manner heis prejudiced, is entitled to get the investigation conducted as wellas the subsequent filing of the complaint quashed. Failure ofjustice and prejudice are presumed once an agency which is notempowered to investigate and file the complaint did so. The revisionpetitioner cannot be compelled to undergo the ordeal of trial, whenthe very investigation itself is fraught with illegality andimpropriety. The order dated 18.05.1993 passed by this Court is onlyper incuriam and this Court is not bound by it. Further more, thedecision 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] (inshort Rajasthan case) would clearly point out that the notificationsreferred to supra passed by the Central Government are not enough andit should be followed by special issuance of notification by theBoard concerned empowering CBI to investigate into the offence. ThisCourt while exercising its powers now based on the decision of theHon'ble Apex Court, can simply ignore the earlier direction given bythis Court as per incuriam and discharge the accused from the caseconcerned.10. Per contra, denying and refuting, challenging andimpugning the arguments projected on the side of the revisionpetitioner, the learned Special Public Prosecutor, (CBI), wouldadvance and put forth his arguments as under:CBI was bound by the Court order dated 18.05.1993 and itcannot commit contempt of Court by taking a stand that this Court hadno power to direct CBI and that CBI would not investigate into thecrime. The notifications referred to supra passed by the CentralGovernment amply empower the CBI to investigate even into the customsoffences under the Customs Act and various other special enactments.Once higher authority, namely, the Central Government itselfempowered CBI to investigate into the offences under specialenactment, viz. the Customs Act, the question of CBI going andapproaching the authorities under the Customs Act, seeking permissionto investigate under those special enactments would be merely afutile exercise and it would be an empty formality also. In therecent decision of the Hon'ble Apex Court reported in (2006) 3 SCC(cri) 233 [Central Bureau of Investigation v. Ravi ShankarSrivastava, IAS and another], the earlier judgment of the Apex Courtreferred to by the learned Senior Counsel for the revision petitionerwas not followed, but still an earliest judgment of the SupremeCourt reported in AIR 1961 SC 1762 [Major E.G.Barsay v. State ofBombay] was followed by pointing out that the point raised on theside of the revision petitioner was no more res integra. Even thoughthe complaint was filed as early as in the year 1998 and the revisionpetitioner was in receipt of the summons during 1998 itself,nonetheless, he kept quiet and only during the year 2006, he didchoose to file the M.P. for discharge and over and above that, onlyduring the year 2009, by way of additional grounds, he chose tochallenge the very capacity and propriety of CBI who investigatedinto the offence and these pleas are also untenable due to laches onthe part of the petitioner. According to the Special PublicProsecutor, the accused person in this case, constantly, interminablyand unremittingly, one after another resort to dilatory tactics offiling petition after petition and delaying the matter beingproceeded further by the trial Court.11. In this factual matrix, it is just and necessary toanalyse each and every objection and contention raised by therevision petitioner. 12. At the first instance, I would like to refer to theorder 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 thenHon'ble Judge who passed the said order as above directing the CBI totake up the investigation. It is not a precedent of a single Judgeof this Court cited before me for being followed; if so at least therevision petitioner could invoke that concept "per incuriam". Iwould like to distinguish and differentiate a precedent being citedand describing the said precedent for being ignored on the basis ofthe principle "per incuriam" from that of the order which emergedearlier in the course of the same proceedings. The distinction whichI try to make is one not that of tweedledum and tweedledee, but it isone that of chalk and cheese. The said order dated 18.05.1993 passedby my learned predecessor was made in the same matter earlier andthat constitutes an earlier step ordered by this Court in this case.In such a case, in the same matter, that earlier order cannot betermed as "judgment/order per incuriam" and I, being the successorJudge cannot hold, that the previous order of my learned Predecessorwas no order at all, as per the concept "per incuriam." Thatconcept per incuriam emerges only under law of precedents.13. At this juncture, I would like to extract the relevantportion relating to per incuriam in Salmond's jurisprudence 12thedition:(3) Ignorance of statute: A precedent is notbinding if it was rendered in ignorance of a statute ora rule having the force of statute, i.e., delegatedlegislation. This rule was laid down for the House ofLords by Lord Halsbury in the leading case, and for theCourt of Appeal it was given as the leading example of adecision per incuriam which would not be binding on thecourt. The rule apparently applies even though theearlier court knew of the statute in question, if it didnot refer to, and had not present to its mind, theprecise terms of the statute. Similarly, a court mayknow of the existence of a statute and yet notappreciate its relevance to the matter in hand; such amistake is again such incuria as to vitiate thedecision. Even a lower court can impugn a precedent onsuch grounds.The mere fact that (as is contended) the earliercourt misconstrued a statute, or ignored a rule ofconstruction, is no ground for impugning the authorityof the precedent. A precedent on the construction of astatute is as much binding as any other, and the factthat it was mistaken in its reasoning does not destroyits binding force.(4) Inconsistency with earlier decision ofhigher court. It is clear law that a precedent losesits binding force if the court that decided itoverlooked an inconsistent decision of a higher court.If, for example, the Court of Appeal decides a case inignorance of a decision of the House of Lords which wentthe 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 onlower courts; on the contrary, it is the decision of theHouse of Lords that is binding. The same rule appliesto precedents in other courts, such as the DivisionalCourt.(5) Inconsistency between earlier decisions ofthe same rank. A court is not bound by its own previousdecisions that are in conflict with one another. Thisrule has been laid down in the Court of Appeal, Court ofCriminal Appea and Divisional Court, and it obviouslyapplies also to the House of Lords. There may at firstsight seem to be a difficulty here; how can a situationof conflict occur, if the court is bound by its owndecisions? At least two answers may be given. First,the conflicting decisions may come from a time beforethe binding force of precedent was recognised.Secondly, and more commonly, the conflict may havearisen through inadvertence, because the earlier casewas not cited in the later. Owing to the vast number ofprecedents, and the heterogeneous ways in which they arereported – or are not reported – it is only too easy forcounsel to miss a relevant authority. Whenever arelevant prior decision is not cited before the court,or mentioned in the judgments, it must be assumed thatthe court acts in ignorance or forgetfulness of it. Ifthe new decision is in conflict with the old, it isgiven per incuriam and is not binding on a later court.Although the later court is not bound by thedecision so given per incuriam, this does not mean thatit is bound by the first case. Perhaps in strict logicthe first case should be binding, since it should neverhave been departed from, and was only departed from perincuriam. However, this is not the rule. The rule isthat where there are previous inconsistent decisions ofits own, the court is free to follow either. It canfollow the earlier, but equally, if it thinks fit, itcan follow the later. This rule has been laid down forthe Court of Appeal, and it is submitted that it appliesalso to other courts. It will be seen, therefore, thatthis exception to the binding force of precedent belongsboth to the category of abrogation by subsequent factsand to the category of what is here called inherentvice. The earlier case the court before whom theprecedent is cited may be reluctant to hold that itspredecessor failed to consider a point directly raisedin the case before it, and this reluctance will beparticularly pronounced if the sub silentio attack islevelled against not one case but a series."14. As such, I cannot countenance and uphold the argument ofthe learned Senior counsel for the revision petitioner that the saidorder 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 byme, while in the same matter I am exercising my powers as successorto my learned Predecessor. To the risk of repetition, without beingtautologous I would hold that the earlier decision dated 18.05.1993by my learned Predecessor cannot be termed as per incuriam byushering the said concept "per incuriam" which forms part of therealm of "law of precedents". Not to put too fine a point on it, thejudgment of a Court can be bye passed by ushering the concept perincuriam, but the earlier order passed in one and the same mattercannot 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 togive direction to CBI to investigate into serious cases and the saidorder dated 18.05.1993, was one in that line.However, thelearned Senior Counsel for the revision petitioner placed reliance onthe aforesaid decision reported in Rajasthan case (1996 Crl.L.J.3480)and developed his argument that already the Hon'ble Apex Courtclearly held that in a case relating to FERA, that the aforesaid twonotifications of the Central Government would not be sufficient andover and above that, empowerment of CBI by the authority concernedunder FERA is required.16. The learned Special Public Prosecutor tried todistinguish and differentiate the said judgment of the Hon'ble ApexCourt on various grounds. At the first instance, he would like topoint out that the cited decision emerged in relating to a set offacts where CBI attempted to investigate in a foreign country withoutauthorisation of the Central Government and in that factual matrix,it emerged. It is also the contention of the learned Special PublicProsecutor that the recent judgment of the Hon'ble Apex Court in(2006) 3 SCC (Cri) 233 (cited supra) virtually did not follow thejudgment in Rajasthan case (1996 Crl.L.J.3480), but followed theearlier judgment. There is considerable force in the submission madeby the learned Special Public Prosecutor on this aspect. It istherefore just and necessary to extract hereunder the relevantportion of the decision reported in (2006) 3 SCC (cri) 233 [CentralBureau 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 orderin respect of each of the officer, the position is nolonger res integra. In CBI v. State of Rajasthan it washeld as follows: paras 21-23 & 27)“21. On a careful consideration of the facts andcircumstances of the case and submissions made by thelearned counsel for the parties, it appears to us thatunder Section 3 of the DSPE Act, the CentralGovernment may, by notification, specify the offenceswhich are to be investigated by the members of DSPE.It is not disputed that notification under Section 3of the DSPE Act has been issued by the CentralGovernment specifying the offences under FERA to be https://hcservices.ecourts.gov.in/hcservices/ investigated by the members of DSPE. It is also not indispute that a notification dated 26-10-1977 by theGovernment of India, Ministry of Home Affairs,Department of Personnel and Administrative Reforms,has been issued in exercise of the powers conferred bysub-section (1) of Section 5 read with Section 6 ofthe DSPE Act. By the said notification the CentralGovernment, with consent of the various StateGovernments as mentioned in the said notificationincluding the State Government of Rajasthan, hasextended the powers and jurisdiction of the members ofDSPE, inter alia, to the State of Rajasthan for theinvestigation of the offences specified in theSchedule to the said notification. In the Scheduleunder clause (a), offences punishable under the FERAand under clause (b) attempts, abetments andconspiracies in relation to or in connection with anyoffence mentioned in clause (a) and any other offencecommitted in the course of the same transactionarising out of the same facts have been mentioned.22. It is, however, to be noted that underSection 2 of the DSPE Act, the Central Government hasbeen empowered to constitute a special police force tobe called DSPE for the investigation in any Union Territory of offences notified under Section 3. UnderSection 5(1) of the DSPE Act the Central Governmentmay by order extend to any area including railwayareas in a State, not being Union Territory, thepowers and jurisdiction of the members of DSPE for theinvestigation of any of the offences or classes ofoffences 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 thesaid police establishment are extended to any sucharea, a member thereof may, subject to any order whichthe Central Government may make in this behalf,discharge the functions of a police officer in thatarea and shall, while so discharging such functions,be deemed to be a member of a police force of thatarea and be vested with the powers, functions andprivileges and be subject to the liabilities of apolice officer belonging to that police force.23. It is quite evident that members of DSPE aremembers of special police force constituted underSection 2 of the DSPE Act by the Central Government.The question that arises for decision in this case iswhether or not a member of DSPE, which is also amember of special police force constituted by theCentral Government, even if authorised under Section 3and Section 5 of the DSPE Act to investigate inrespect of offences under FERA in a particular Stateother than the Union Territory, with the consent of https://hcservices.ecourts.gov.in/hcservices/ such State Government, can investigate the offencesfor violation of FERA, more so, when the offence isalleged to have been committed outside Indianterritory. It will be apposite at this stage to referto the provisions of Sections 3, 4 and 5 of FERA:‘3. Classes of officers of Enforcement.—There shall bethe 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 maybe appointed for the purposes of this Act.4. Appointment and powers of officers of Enforcement.—(1) The Central Government may appoint such persons asit thinks fit to be officers of Enforcement.(2) Without prejudice to the provisions of sub-section(1), the Central Government may authorise a Directorof Enforcement or an Additional Director ofEnforcement or a Deputy Director of Enforcement or anAssistant Director of Enforcement to appoint officersof Enforcement below the rank of an Assistant Directorof Enforcement.(3) Subject to such conditions and limitations as theCentral Government may impose, an officer ofEnforcement may exercise the powers and discharge theduties conferred or imposed on him under this Act.5. Entrustment of functions of Director or otherofficer of Enforcement.—The Central Government may, byorder and subject to such conditions and limitationsas it thinks fit to impose, authorise any officer ofCustoms or any Central Excise Officer or any policeofficer or any other officer of the Central Governmentor a State Government to exercise such of the powersand discharge such of the duties of the Director ofEnforcement or any other officer of Enforcement underthis Act as may be specified in the order.’27. In our view, such notifications under Sections 3and 5 of the DSPE Act are necessary for the purpose ofexercising powers by a member of DSPE in respect of https://hcservices.ecourts.gov.in/hcservices/ offence or offences and in respect of areas outsidethe Union Territory. It may however be noted here thatby a general notification, members of DSPE may beauthorised to exercise power of investigation inrespect of offence or offences and in areas asspecified in the notification under Sections 3 and 5.As already indicated, although officers of EnforcementDirectorate are clothed with the powers and duties toenforce implementation of the provisions of FERA, theCentral Government has been authorised to impose onother officers including a police officer, power andauthority to discharge such of the duties andfunctions as may be specified by it. It is nobody’scase that any notification has been issued under FERAauthorising the member of DSPE to discharge the dutiesand functions of an officer of EnforcementDirectorate. In our view, in the absence of suchnotification under FERA, a member of DSPE, despite theaforesaid notifications under Sections 3 and 5 of theDSPE Act, cannot be held to be an officer under FERAand therefore is not competent to investigate into theoffences under FERA.” (emphasis in original)12. Nearly four decades back the position was succinctlystated by this Court in Major E.G. Barsay v. State ofBombay at AIR para 29 as follows:“It was contended before the High Court and it wasrepeated before us that the consent should have beengiven to every individual member of the Special PoliceEstablishment and that a general consent would not bea good consent. We do not see any force in thisargument. Under Section 6 of the Delhi Special PoliceEstablishment Act, no member of the said Establishmentcan exercise powers and jurisdiction in any area in aState without the consent of the Government of thatState. That section does not lay down that everymember of the said Establishment should bespecifically authorised to exercise jurisdiction inthat area, though the State Government can do so. Whena State Government can authorise a single officer toexercise the said jurisdiction, we do not see anylegal objection why it could not authorise the entireforce operating in that area belonging to thatEstablishment to make such investigation. Theauthorisation filed in this case sufficiently complieswith the provisions of Section 6 of the Delhi SpecialPolice Establishment Act, 1946, and there are nomerits in this contention.”17. A plain reading of the above excerpts would display anddemonstrate that in the said recent judgment, the Hon'ble Apex Court https://hcservices.ecourts.gov.in/hcservices/ has not chosen to place reliance on Rajasthan case (1996Crl.L.J.3480), but preferred to place reliance on the earlierdecision of the Hon'ble Apex Court reported in AIR 1961 SC 1762(cited supra). The learned Special Public Prosecutor alsoconvincingly submitted one point to the effect that as on the date ofmy learned Predecessor passing the order dated 18.05.1993, thedecision of the Hon'ble Apex Court in Rajasthan case did not emerge,and it is quiet obvious from the respective dates referred to supra.However, my learned Predecessor having in his mind, the earlierdecision of the Hon'ble Apex Court reported in AIR 1961 SC 1762,might have passed such direction. The learned Senior Counsel for therevision petitioner would try to torpedo the argument of the learnedSpecial Public Prosecutor by pointing out that no "prospectiveover ruling" theory could be ushered in relating to the judgment ofthe Apex Court in Rajasthan case reported in 1996 Crl.L.J.3480. Iwould like to point out that as on the date of my learned Predecessorpassing the order, the decision in Rajasthan case did not emerge. 18. Based on this Court's order dated 18.05.1993, CBI hadalready started the investigation and the expectation of the revisionpetitioner is that no sooner the decision of the Apex Court inRajasthan case emerged declaring the existing law, CBI atleast atthat point of time i.e. in the year 1996 should have taken remedialmeasures, but they did not do so, but they proceeded with theinvestigation.19. At this juncture, avoiding discursive discussion, it hasto be pointed out that the investigation already commenced based onthe direction of this Court which was presumably based on the earlierdecision of the Apex Court reported in AIR 1961 SC 1762, cannot berendered nugatory by citing the subsequent decision of the Apex Courtand that too when the recent judgment of the Apex Court reported in(2006) 3 SCC (cri) 233 follows only the earliest judgment of the ApexCourt reported in AIR 1961 SC 1762. In the facts involved in theRajasthan case, there was no High Court direction to CBI toinvestigate into the matter, however, the factual matrix in thatcase was to the effect that CBI approached initially the ChiefJudicial Magistrate concerned seeking permission to investigate acase under the FERA Act, which describes the offences as non-cognizable. The Chief Judicial Magistrate rejected the request ofCBI, whereupon CBI approached the High Court, which also rejected therequest and thereafter, they approached the Supreme Court, which alsorejected the request of the CBI. But here, the very investigationitself had been started by CBI only on the direction of this Courtand as such, while this Court exercising its revision power now, asagainst the order passed by the Magistrate dismissing the CMP, cannothave a volte face and turn turtle and that too quite antithetical towhat this Court directed earlier on 18.05.1993, and decide as thoughthe said earlier order is bad in law.20. My mind is redolent and reminiscent of the followingmaxims:1. Actus Curiae Neminem Gravabit [An act of the Court shall https://hcservices.ecourts.gov.in/hcservices/ prejudice no man].2. Actus Legis Nemini Est Damnosus [An act in law shallprejudice no man].3. Executio Juris Non Habet Injuriam [Legal process, ifregular, does not afford a cause of action].21. However, the learned Senior Counsel for the revisionpetitioner would submit that this Court's very order passed by mylearned Predecessor was not having the back up of law and it isdeemed to have prejudiced the revision petitioner. To the risk ofrepetition and pleonasm, but without being tautologous, I would liketo point out that the said order of this Court was passed as early asin the year 1993, the revision petitioner/A7 was served with accusedsummons in the year 1998, but he waited for nearly eight years or soto file M.P.No.322 of 2006. Over and above that, during the pendencyof the Crl.R.C. Alone, i.e., in the year 2009, these additionalgrounds have been filed impugning and challenging the order of thisCourt directing investigation by CBI. The learned Senior Counsel forthe revision petitioner would point out that any stage, beforeframing of charge and even thereafter, an accused can challenge ifthe investigation done is faulty and illegal and cuts at the veryroot of the matter. Here, I would like to point out alternis visbusas to what was missing as per the decision of the Hon'ble Apex Courtreported in 1996 Crl.L.J.3480, in getting empowerment by the CBI fromthe said Board, was supplied by this Court as per its order dated18.05.1993. It would be wrong on the part of the revision petitionerto expect that this Court's order could be made meaningful andenforceable only after the authorisation from the lower authority,namely the said Board.22. The learned Senior Counsel for the revision petitionercited the following decision of the Apex Court to point out that whena procedure is contemplated under law, non adherence to thatprocedure would be in violation of Articles 14 and 21 of the IndianConstitution. In this connection, the decision of the Hon'ble ApexCourt reported in (1988) 2 SCC 602 [A.R.Antulay v. R.S.Nayak andanother] has been cited. 23. The learned Senior Counsel for the petitioner would pointout that earlier in Antulay's case, five Bench decision of the ApexCourt ordered a single High Court judge should be empowered as thespecial Judge under the Prevention of Corruption Act to try the caseconcerned. Subsequently when the accused challenged it, the Hon'blenine Bench decision of the Apex Court by its majority decision feltthat the earlier order of the Hon'ble Apex Court, bye passed andignored the valuable right of the accused losing one appeal in theevent of conviction. No doubt absolutely there can be no quarrelover such a proposition, as right of Appeal is a valuable right andin the earlier order of the Hon'ble Apex Court, that was denied tothe accused and hence the Hon'ble Apex Court, by its majoritydecision, subsequently revised the said order. But the ratiodecidendi as well as the observation in that case, cannot be pressedinto service in the facts and circumstances of this case as it is https://hcservices.ecourts.gov.in/hcservices/ quite obvious here, that it is this High Court which directed the CBIto investigate and thereupon CBI conducted the investigation andfiled the complaint and it cannot now be, at this distant point oftime, challenged by the revision petitioner.24. The one other decision cited on the side of the revisionpetitioner is reported in (2000)8 SCC 590 [Roy V.D. v. State ofKerala]. The learned Senior Counsel for the revision petitionerwould by placing reliance on the said judgment point out that underthe NDPS Act, the Apex Court held that if any investigation iscommenced by an unauthorised officer, then the investigation isillegal.25. I would like to distinguish and differentiate the saidjudgment to the facts and circumstances of this case, as here overand above what the Central Grovernment empowered CBI to investigateinto the customs offences, the High Court au fait with law and aucourant with facts actually by virtue of its powers directed the CBIto investigate into the case for the reason that a mammoth crime wascommitted and that it should be investigated properly by the highestinvestigating agency in India, namely CBI.26. Here customs officials initiated the action and the CBItook up the matter as per this Court's order. Infact the interest ofthe accused is well protected by the highest investigating agencyprobing into the matter. If the authority lower than the authoritycontemplated under the Act is authorised to investigate, thencertainly some rethinking is required. But on the other hand, CBI isan organisation which has the requisite wherewithal to investigatedeeply into the customs offences and also the allied IPC offences inthis case and simply because the customs officials have notinvestigated into the matter, it cannot be found fault with. 27. There is also one other point which I would like tohighlight that the accused is having no vested right that theoffences under the Customs Act should be investigated only by theCustoms officials, for the reason that already the Central Governmentby virtue of delegated legislation passed the said two notificationsthat CBI could investigate those offences. At the most, what therevision petitioner expects is a formal authorisation to CBI by theBoard. Hence the question of the accused insisting that the offenceas against him should be investigated only by customs official isbeyond the question.28. In this case the gist and kernel, the pith and marrow,the warp and woof of the contention on the side of the revisionpetitioner, which I could understand, is that the CBI officialsshould have approached the said Board for getting the formalauthorisation. The question arises whether the Board of Revenuecould have refused such authorisation quite against the directiongiven by this Court dated 18.05.1993. Certainly the Board had nopower to decide as against this Court's order. When such is thesituation, as against the order of the Court which marked CBI out forinvestigation into such mammoth, elephentine and braggadocion https://hcservices.ecourts.gov.in/hcservices/ chessman type of crime, the Board of Revenue could not have refusedauthorisation to the CBI, consequently and as a sequela what followslogically is that the insistence of the revision petitioner for aBoard order empowering CBI to investigate is untenable. Wherefore, Icould see no merit in the contention on the side of the revisionpetitioner.29. The learned Special Public Prosecutor would also cite thedecision of the Apex Court reported in 1998 (1) SCC 226 [VineetNarain and others v. Union of India and another]. An excerpt from itwould run thus:"40. It is, therefore, the notification made by theCentral Government under Section 3 which confers anddetermines the jurisdiction of the CBI to investigate anoffence; and once that jurisdiction is attracted by virtueof the notification under Section 3, the actualinvestigation is to be governed by the statutory provisionsunder the general law applicable to such investigations.This appears to us the proper construction of Section 4(1)in the context, and it is in harmony with the scheme of theAct, and Section 3 in particular. The word“superintendence” in Section 4(1) cannot be construed in awider sense to permit supervision of the actualinvestigation of an offence by the CBI contrary to themanner provided by the statutory provisions. The broadproposition urged on behalf of the Union of India that itcan issue any directive to the CBI to curtail or inhibitits jurisdiction to investigate an offence specified in thenotification issued under Section 3 by a directive underSection 4(1) of the Act cannot be accepted. Thejurisdiction of the CBI to investigate an offence is to bedetermined with reference to the notification issued underSection 3 and not by any separate order not having thatcharacter."30. The above dictum of the High Court would highlight thatonce CBI is empowered to investigate into the offence it has got thepowers to investigate as per the general law. There could be noquarrel over such a proposition cited by him.31. The learned Senior Counsel for the revision petitionerwould also cite the one other decision of the Hon'ble Apex Courtreported in 1997 SC 987 [Krishnan and another v. Krishnaveniand another] an excerpt from it would run thus:"14. In view of the above discussion, we holdthat though the revision before the High Court undersub-section (1) of S.397 is prohibited by sub-section(3) thereof, inherent power of the High Court is stillavailable under S.482 of the Code and as it isparamount power of continuous superintendence of the https://hcservices.ecourts.gov.in/hcservices/ High Court under S.483, the High is justified ininterfering with the order leading to miscarriage ofjustice and in setting aside the order of the Courtsbelow. It remitted the case to the Magistrate fordecision on merits after consideration of the evidence.We make it clear that we have not gone into the meritsof the case. Since the High Court has left the matterto be considered by the Magistrate, it would beinappropriate at this stage to go into that question.We have only considered the issue of power andrevisional power u/s 397(1) read with S.397(3) and theinherent powers. We do not find any justificationwarranting interference in the appeal."A plain reading of the said decision would highlight and spotlightthe fact that the Court could entertain even second revisionapplication if situation warrants. Absolutely there is no doubtabout such a proposition. In view of the ratiocination adhered to byme supra, that there was nothing wrong in the direction of this Courtdated 18.05.1993 and that there is also nothing wrong on the part ofthe CBI in not obtaining specific approval or empowerment from theBoard in the special circumstances of this case, I am not inclinedto quash or set aside the order of the lower Court.32. The learned Senior Counsel for the revision petitionerwould also submit that as per Section 137 of the Customs Act, theCollector himself was not empowered to issue sanction order to theCBI to lodge the complaint and furthermore, in this case, sanctionwas not given to CBI specifically also. When the Central Governmentitself contemplates CBI also could investigate, the question ofCollector not having the power to sanction to CBI to prosecute theoffender, does not arise at all. The fact remains that as per theorder of this Court alone, the CBI investigated into the offence andconsidering the same, the Collector issued sanction in the normalcircumstances, as though the Customs Officer investigated into theoffence. In my opinion, there are also laches on the part of thepetitioner in raising all these points, as absolutely there is norhyme or reason on the part of the revision petitioner in challengingthe very investigation, belatedly after receipt of summons in theyear 1998 and virtually this revision is antithetical to pieponderous. It is a trite proposition of law that trial in matters ofthis nature, should be conducted speedily, but it is otherwise , sofar this case is concerned. Hence in the result, I am of theconsidered opinion that there is no merit in this revision case andit is dismissed. This revision is turned out to be an ill wind thatblew no one any good.Sd/Asst.Registrar/true copy/Sub Asst.Registrargms https://hcservices.ecourts.gov.in/hcservices/ To1. The Additional Chief Metropolitan Magistrate E.O.II, Egmore,Chennai.2.The Deputy Ssuperintendent of Police,CBI, SCB, Chennai. 3. The Public Prosecutor, Madras.1 cc To Mr.S.Peer Mohamed, Advocate, SR.33533Crl.R.C.No.106 of 2007kk(co)pmk.21.8.2009.