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  1. INTRODUCTION-

In the case of Rasiklal Dalpatram Thakkar v. State Of Gujarat & Ors of 2009 the question before the apex court arose as to whether an Investigating Authority pursuant to Section 156(1) of the Code of Criminal Procedure, 1973 was inhibited from conducting an investigation into a complaint when it did not in the first place have the territorial jurisdiction to do so and whether an Investigating Agency was empowered to decide if a court had the jurisdiction to entertain a complaint.

  • BACKGROUND OF THE CASE-

The Madhavpura Mercantile Cooperative Bank Ltd was a cooperative bank governed by the provisions of the Multi-State Cooperative Societies Act, 2002, having its registered Head Office at Madhavpura Market, Shastribaug, Ahmedabad. The said bank carried out its banking operations in the State of Gujarat, Maharashtra among other States within the country. The said Bank reiterated that all its activities concerning the disbursement of loans were conducted from the Head Office in Ahmedabad. In 1992, the appellant’s company took a loan from the said Bank which subsequently shut down its business operations in 2001. Following this, a Scheme of reconstruction approved by the Reserve Bank of India was formulated and a new Board of Management came to be being to implement this scheme. Innumerable irregularities concerning the grant of loans to borrowers were discovered which were fueled by and in the notice of the then Chief Executive Officer, Managing Director and Chairman of the Bank. Several complaints were registered against the said officers including five complaints against the appellant before the Chief Metropolitan Magistrate, Ahmedabad dated 9th July, 2003. The Chief Metropolitan Magistrate directed the Economic Offences Wing, State Crime Investigation Department, Ahmedabad to undertake an investigation under Section 156(3) of the Code of 1973. The State C.I.D submitted a report citing complaint’s allegations were in fact true and the said offences had been committed within the territorial limits of Mumbai, Maharashtra, thus stating that the investigation be transferred to the Investigation Agency in Mumbai, Maharashtra. The Chief Metropolitan Magistrate, Ahmedabad, however, rejected this report on grounds that the Investigating Agency does not have the authority to decide as to who will investigate a complaint forwarded such agency by the magistrate under Section 156 (3) Code of 1973 citing that such offence complained of was allegedly committed outside the territorial jurisdiction of the Investigating Agency. By an order dated 31.5.2006, the Magistrate directed the Investigating Agency to carry out a further investigation and, in the report, affirm or deny the commission of the offence alleged in the complaints. This order of the Chief Judicial Magistrate, Ahmedabad, was challenged by the appellant before the City Civil and Sessions Court at Ahmedabad which was dismissed by the latter. Further, the appellant filed a writ petition in the High Court on 21.11.2006 Writ Petition No.2366 of 2006, challenging the Session Court’s decision contending before the court that the loan had been availed of by the appellant’s company from the Mandvi Branch of the Bank in Mumbai which had an independent identity as a registered co-operative Society under the Maharashtra Co-operative Societies Act while also contending that the loan amount had been disbursed from the said Branch in Mumbai and since the cause of action for the alleged offence had arisen outside the territorial jurisdiction of the Chief Judicial Magistrate, Ahmedabad the said magistrate could not direct the Investigating Agency under his jurisdiction to investigate the complaint made against the appellant. The High Court accepted the views expressed by the Chief Metropolitan Magistrate that the Investigating Agency was only required to state the outcome of an investigation pursuant to an order under Section 156(3) Code, 1973 and had no authority to state which Court had jurisdiction to inquire into the alleged offence. Thus, a judgment dated 15.3.2007 dismissed the writ petition so filed by the appellant the writ was dismissed. The cause of dismissal was on the grounds that there was a delay in making a prayer before the High Court and that the order of the Magistrate dated 09.07.2003 had not been challenged for four years. Thus, the said matter was taken to the apex court by way of a criminal appeal.

  • ISSUES RAISED-

The issues raised before the court by the parties to the matter at hand are as follows,

  1. Whether pursuant to an order passed under Section 156(3) of the Code of 1973 an investigating agency is empowered under Sub-Section (1) of Section 156 to decide not to conduct an investigation on the grounds that there is no territorial jurisdiction to do so?
  2. Whether the Investigating Agency can in its report decide as to which court has the jurisdiction to try a matter?
  3. Whether the High Court had committed an error of law in dismissing the writ before it?
  4. ARGUMENTS OF THE APPELLANT-

Mr. I.H. Syed, the counsel appearing for the appellant contended that the High Court had incorrectly interpreted the provisions Section 156(3) and 181(4) of the Code, 1973. Further stating that the aforementioned court had failed to notice that Section 156 (2) of the Code, 1973 upon the investigating officer’s exclusive jurisdiction to investigate into a case and that no proceeding of a police officer thereof in any case in which he is entitled to make an investigation shall at be called in question. The counsel stated that the Magistrate under Sub-section (3) was circumscribed by the powers vested in the Investigating Agency under Sub-Section (2) of Section 156 Code, 1973, and that it was only an Investigating Agency that could decide the question of territorial jurisdiction with respect toa crime so committed. The appellant argued that once an Investigating Agency has submitted a final report pursuant to an order under Section 156(3) of the Code of 1973 and has concluded that it did not have territorial jurisdiction in the matter, the High Court cannot direct a fresh investigation into the matter on the ground that deciding the jurisdiction is a prerogative of the court and not the investigating agency. While citing the Agencia Commercial International Ltd. vs. Custodian of the Branches of Banco National Ultramarino [(1982) 2 SCC 482], Naresh Kavarchand Khatri vs. State of Gujarat [(2008) 8 SCC 300], inter alia the counsel for the Appellant contended before the court that although the Registered Office and Head Office of the Bank were in Ahmedabad in Gujarat, the other branches of the bank were in different states and were an independently registered Co-operative Society being a distinct unit of its own under the Maharashtra Co-operative Societies Act. The loan was availed of and disbursed in Mumbai. Consequently, since the entire cause of action relating to the application and disbursement of the loan had arisen in Mumbai, the Gujarat High Court had committed an error of law in passing the order and the same was liable to be quashed.

  • ARGUMENTS OF THE RESPONDENTS-

Mr L.N. Rao, Senior Advocate, counsel for the respondents contended that barring the disbursement of the loan amount to the appellant through the Mandvi Branch of the Bank, Mumbai, the entire transaction had been proceeded with and dealt with by the Head Office in Ahmedabad stating that even the loan applications had been made directly to the Head Office at Ahmedabad and not the Mandvi Branch, Mumbai. The counsel for the respondents reiterated that the concerns of the appellant as to the question regarding Section 156 of the Code of 1973 had no substance as the said provision only put forth the powers of a police officer to investigate a cognizable case and the power of a Magistrate to order such an investigation to be made. Additionally stating that no investigation by a police officer at any stage of such investigation could be questioned on the ground that such officer was not empowered to conduct such investigation as under the aforementioned provision. The counsel submitted before the apex court that it was a settled proposition of law that when an investigating agency is directed by a Magistrate to conduct an investigation pursuant to his powers under Section 156(3) of Code, 1973, it is the duty of the Investigating Agency to submit a report as to the whether an offence was committed or not thereafter, it shall be the court power to decide on acquiring such report the question of jurisdiction, thus, reiterating that the  Magistrate had rightly rejected the Final Report and so was the High Court in dismissing such writ petition before it.

  • JUDGEMENT: –

The apex court in the matter at hand observed that on the bare reading of Section 156 Code, 1973 it is clear that a police officer in charge of a police station can, without the order of a Magistrate, investigate any matter concerning the commission of a cognizable offence which a Court having jurisdiction over such police station can inquire into or try under Chapter III of the Code. While Section 156(2) ensures that once an investigation is commenced under Sub-section (1), the same cannot be interrupted on the ground that the police officer was not empowered to investigate under the said provision. Further, the apex court reiterated that by virtue of Section 190 of the Code of 1973. the magistrate is empowered to order an investigation under Sub-section (1) of Section 202 of the said code and the magistrate is also empowered to order an investigation on a complaint filed before him in sub-section (3) of Section 156. The court refused to accept the submission made by the appellant that an Investigating Officer in the course of investigation may decide whether a given Court has jurisdiction to entertain a complaint or not thus, dismissing the appeal.

  • CONCLUSION

In the matter at hand, the question raised before the apex court by the appellant was if an investigating officer on being ordered under Section 156 of the Code of Criminal Procedure, 1973 could conduct an investigation with respect to a case which was not within its jurisdiction and whether an investing agency could decide the question if jurisdiction if the court in the final investigation report. The answer of the Supreme Court of India in this respect was that the powers so vested with the Investigating Authorities pursuant to Sections 156(1) of the Code of 1973 did not inhibit the Investigating Agency’s jurisdiction to investigate a complaint even if it did not have territorial jurisdiction to do so and that it was for the Court to decide whether it had the jurisdiction to entertain a complaint as and when the complete facts of the case were placed before it.

written by ANANYA GOSAIN, LAW COLLEGE DEHRADUN, DEHRADUN, (VIII SEMESTER)


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