Central Bureau Of Investigation vs The State Of Gujarat on 17 April, 2001

JUDGMENT

S.K. Keshote, J.

1. Relying on the decision of the apex court in the case  of C.B.I.  through S.P., Jaipur Vs.  State of Rajasthan &  Ors.  reported in 2001(1) Scale 250 the  learned  counsel  for the petitioner submitted that the Judicial Magistrate  has no  power  to  direct C.B.I.  under Section 156(3) of  the Criminal Procedure Code to conduct investigation into  any   offence   committed    within    his    territorial  jurisdiction.   
 

2. The facts of the case are that Spl.  A.C.B.  case  No.2 of 1996 came up for hearing  and  evidence  for  the  first  time on 7.1.1999 before Additional Sessions Judge,  Nadiad and at that time the  Bench  Clerk  of  the  court  aforesaid  called  for Muddamal from the Office of Nazir,  which was given to the clerk  Shri  Shukla  and  in  turn  given to  Shri  Kiran  Joshi,  Senior  Clerk.  During the  recording of the statement of the witnesses when Muddamal  was required to be identified it was searched in the  bag  containing   Muddamal  and  at  that  time  article  No.2  Rs.35,000/- i.e.  70 notes of Rs.500/= denomination could  not be found therein.  Though rigorous  search  has  been  made  but the said Muddamal is not found and ultimately a  criminal  complaint  was  filed  in  Nadiad  Town  Police  Station, which was  registered  as I.  C.R.  No.22/99 for  the offences under Section 381 of  the  I.P.C.    by  the  Court officer.    It  is  the  say of the petitioner that  Investigation Officer, Nadiad Town Police Station, Nadiad  for about 9 months could not get any fruitful  result  in  the matter.   the Nazir of the District Court of Kheda at  Nadiad written a letter  dated  29.9.99  to  the  learned  Chief  Judicial  Magistrate,  Nadiad requested therein to  hand over the investigation of the case  to  C.B.I.    On  29.9.99  the  Chief Judicial Magistrate, Nadiad passed an  order directing the C.B.I.  to investigate the matter and  report to him at the earliest.  The C.B.I.   through  its  Public  Prosecutor  filed  an application in the court of  Chief Judicial Magistrate,  Nadiad  praying  therein  for  recalling of  the  order dated 29.9.99.  This application  was came to be rejected by the Chief Judicial Magistrate,  Nadiad under  its  order  dated  6.10.99.    Hence   this  petition under Article 226 of the Constitution of India.   
 

3.  This petition is wholly misplaced and misconceived at  the instance of none other than C.B.I.  The C.B.I.  is  a  litigant before the court like other litigant.  It cannot  be  put  in  any  special  category  or  in  a privileged  category which prima facie appears to have  been  claimed  by the  petitioner  in  this petition.  Leaving apart the  merits of the matter, this petition is  not  maintainable  in this   court.     The  order  of  the  Chief  Judicial  Magistrate challenged in this petition  is  revisable  by  the Sessions Court and reference in this respect may have  to Section  397  of  the Cr.P.C.  Efficacious alternative  remedy is available  to  the  petitioner  in  the  matter  against  that  order of Chief Judicial Magistrate but the  C.B.I.  instead of availing that remedy has  chosen  this  path of filing this petition which is not only costly but  also it consumes  long time.  The C.B.I.  has to take all  the care that in the matter  where  the  order  which  is  appealable  or  revisable that remedy is first availed of  before coming up in this court.  Instead of availing that  remedy the C.B.I.  by filing this petition has  not  only  unnecessarily  burdened  the  public  exchequer  but this  court also by a litigation which was otherwise avoidable.  This approach of the C.B.I.  deserves  to  be  deprecated  and accordingly  the  same  is  deprecated.   Against the  order of the Chief Judicial Magistrate it has  no  remedy  except  to  approach  this  court  by this petition under  Article 227 of the Constitution of India is not the  case  of C.B.I.    also. The  petitioner  has  efficacious  alternative remedy in the matter  against  the  order  of  Chief  Judicial  Magistrate  and only on this ground this  petition deserves to be dismissed.   
 

 4.  A layman litigant who directly approach to this court  in a matter where he has efficacious  alternative  remedy  available  under  statute may be understandable and which  may be taken to be a  case  of  ignorance  of  the  legal  position by the litigant and lack of proper advice by the  professional to  whom  he  approached.    But  the C.B.I.  cannot be put at par with that litigant.  The C.B.I.  may  have its  own  legal  advisors  and  otherwise  also  the  officers  attached to it are supposed to know these basic  principles of law.  Though in a case, where  against  the  order  impugned  in  this  petition revision lies but the  C.B.I.  files the petition  directly  circumventing  that  remedy this  cannot  be  tolerated  by the court.  At the  cost of repetition it is to be stated that it is also not  the case of the C.B.I.  that against  the  order  of  the  Chief  Judicial  Magistrate impugned in this petition the  revision application before the  Sessions  Court  is  not  maintainable.   In the petition under Articles 226 or 227  of the Constitution of  India  it  is  the  duty  of  the  petitioner  to state that in the matter he, she or it has  no efficacious alternative remedy  available.    In  this  petition, the  C.B.I.   has not stated that in the matter  i.e.   against  the  impugned  order  it  has  no   other  efficacious alternative  remedy.   Non-mentioning of this  fact concludes that the C.B.I.  admitted that against the  impugned order  it  has  efficacious  alternative  remedy  available.  Despite of this admission which can be safely  inferred   from  the  petition  it  is  really  shocking,  surprising and difficult to digest of  this  approach  of  the C.B.I.     circumventing  the  statutory  efficacious  alternative remedy available against the impugned  order.  The  C.B.I.,  as  said  earlier, is a litigant like other  litigants before this court which should  not  have  felt  shy  or  degraded to go before Sessions Court against the  impugned order if it really felt aggrieved of  the  same.  This approach  of  C.B.I.    is  certainly  against  well  settled law laid down by catena of decisions  of  Hon'ble  Supreme Court  as  well  as  High Courts.  In the case of  Shyam Kishore V.  Municipal Corporation of Delhi,  (1993)  1  SCC  22,  the  Lordships of Hon'ble Supreme Court held  that "where adequate remedy can be read  in  the  statute  plea of  resort  to  writ remedy under Arts.  226 and 227  must  be  discouraged."  In  a   case   where   statutory  alternative  remedy  is  available  to the litigant court  would not interfere and direct the party to  recourse  to  the alternative  remedy available under statute.  In this  case, the alternative efficacious remedy is available  to  the  petitioner  and without any justification whatsoever  it has directly come up in this court and this conduct of  the C.B.I.  deserves to be depricated.  The  C.B.I.    is  not  respecting  and  adhering  to  the  law laid down by  Hon'ble Supreme Court  and  this  court  and  despite  of   availability  of  efficacious alternative remedy directly  approached this court minimum what is to be done  by  the  court is  to  dismiss  the  petition.    As this petition  deserves  to  be  dismissed  only  on   the   ground   of  availability  of  efficacious  alternative  remedy to the  petitioner I do not consider it to be in the interest  of  petitioner itself to touch the merits of matter.  Even if  the  petitioner  has  a  strong  case on merits but where  against the impugned order it has efficacious alternative  remedy, that remedy has to be first availed of. 
 

  5.  In the result, this petition fails and  the  same  is  dismissed.  Rule  is discharged.  Interim relief, if any,  granted earlier stands vacated.  The C.B.I.  is  directed  to  pay  the  costs  of  this  petition  to  the State of  Gujarat.  I consider it to be a  fit  case  for  awarding  costs  of  the  petition  to  the State of Gujarat as the  C.B.I.  has unnecessarily dragged it in  this  litigation  which  is  otherwise avoidable in case the officer of the  C.B.I.  would have  gone  into  the  provisions  of  well  settled law  re.  maintainability of the writ petition in  the court  where  against  the  impugned  order  adequate  alternative   efficacious   remedy   under   statute   is  available.  The learned counsel for the  respondent-State  states  that  he  shall  be  paid  Rs.400/=  as  fees for  appearing in this matter.  However, this is not only  the  cost  which  would  have  been  incurred  by the State of  Gujarat in defending this case but  incidental  costs  of  litigation  of the State Government may be much more than  what the amount towards professional fees to be  paid  to  the Government advocate.  The amount which is paid to the  Government Advocates by the State of Gujarat is really in  these  days of high prices of the cost of living is very,  very meagre.  In defending this  petition  certainly  the  State  of  Gujarat would have born incidental charges and  the interest of justice will be met in case this cost  is  quantified at Rs.1,000/=.  This cost is to be paid by the  C.B.I.   not  for  any of its own fault, default or error  but for the approach  of  its  officer.    In  case,  the  officer  who has advised to file this petition would have  taken little care to look into  the  matter,  the  C.B.I.  would  not  have  been  saddled with these costs and this  court would not have been burdened with this  unwarranted  litigation.  The  Director of C.B.I.  is directed to hold  inquiry in this matter and whosoever is found responsible  for filing this petition, this amount of the cost  is  to  be recovered  from  him.  This inquiry is to be completed  within a period of  six  months  from  the  date  of  the  receipt of  the  writ  of  this order.  Compliance of the  order be reported to this court by the Director, C.B.I.