Rajesh Thakur @APPELLANT@Hash Central Bureau of Investigation & Others

Sanjay Karol, J.

In terms of the impugned order dated 24.04.2017, passed by the Chief Judicial Magistrate, Shimla, H.P., in Cr.MA No.13-4 of 2015, titled as

Central Bureau of Investigation vs. Rajesh Thakur, petitioner’s application filed under Section 306 (5) of the Code of Criminal Procedure

(hereinafter referred to as Cr.P.C.), seeking acquittal from the charges framed under the provisions of Sections 420, 467, 468 and 471 read with

Section 120-B of the Indian Penal Code, against the several persons, including the present petitioner, stands rejected.

The trial Judge dismissed the application holding that similar payer made by a co-accused, namely, Dilesh Kumar, stands considered and rejected by

this Court vide judgment dated 15.09.2014, passed in Criminal Revision No.168 of 2014, titled as Dilesh Kumar vs. Central Bureau of Investigation &

others, as also the application is misconceived inasmuch as the trial Judge is the Special Judicial Magistrate, a designated Court, for the Central

Bureau of Investigation (CBI).

The brief background leading to the filing of challan is as noticed in Dilesh Kumar (supra), is reproduced as under:-

“On 22.04.2010 a complaint came to be lodged with the Superintendent of Police, State Vigilance and Anti Corruption Bureau, Dharamshala,

District Kangra. In crux, a grievance was made out that Rajesh Thakur, Director, Thakur College of Education, Kangra, H.P., sought job at

Government College, Dhaliara (H.P.) on the basis of false/forged certificates of Magadh University Bodh Gaya. Also his family members obtained

forged certificates from the Bihar Intermediate Education Council Patna, used again for seeking employment with the Government of Himachal

Pradesh. On the asking of the original complainant, this Court vide judgment dated 03.05.2012 in CWP No.6453 of 2010, titled as V.P. Alhuwalia

Versus State of H.P. & others, directed the investigation to be conducted by the Central Bureau of Investigation. Accordingly regular case FIR

No.RC0962012S0007 dated 06.06.2012 was registered with the Central Bureau of Investigation, Shimla Branch. With the completion of investigation,

final report dated 15.05.2013 was presented before the Court of Chief Judicial Magistrate, Shimla-cum-Special Judicial Magistrate, CBI, Shimla

naming the present petitioner Dilesh Kumar to be one of the accused persons. Allegedly he is the kingpin and issued/procured fake and forged

degrees and certificates in favour of gullible persons of the State. On 24.10.2013, Court of Chief Judicial Magistrate, Shimla, in an application filed

under Section 306 of the Code of Criminal Procedure, 1973 (hereinafter referred to as Cr.P.C.), for grant of tender of pardon, passed order(s) in

favour of applicants, accused Mohd. Mazahar and Lal Bihari Singh (Annexures P-3 and P-4). Applicants were examined on oath by the concerned

Magistrate at the time of grant of tender of pardon.

Subsequently on 25.10.2013, supplementary final report was filed by the Investigating Agency, specially recording grant of tender of pardon in

favour of accused Mohd. Mazahar and Lal Bihari Singh. It appears that perhaps this fact escaped attention of the Court and as such on 29.10.2013,

the concerned Court also took cognizance, amongst others, against them. As such, cognizance against all eleven accused persons was erroneously

taken, which mistake was subsequently rectified with the passing of order dated 12.11.2013, when names of the approvers (Mohd. Mazahar and Lal

Bihari Singh) were deleted from the column of accused persons who were then added as witnesses in the column of witnesses. Noticeably there was

no challenge to this order. Also propriety and legality of such order is not a subject matter of challenge in these proceedings.â€​

Coming to the instant case, trial Judge has also observed that the instant petitioner Rajesh Thakur, had submitted false and forged documents and in

connivance with the officers/officials of NCTE, Jaipur, managed to get recognition for 100 seats of B.Ed and 25 seats for M.Ed Course â€" 2007-08,

in its educational institution by the name of Thakur College of Education.

It is also not in dispute that with the registration of FIR No.RC0962011A0002 dated 08.03.2011, challan was presented in the Court and charges

framed on 20.12.2013, whereafter, 19 witnesses stand examined by the trial Court. During trial, plea of one of the co-accused, namely, Mohd.

Mazahar, for grant of pardon, was accepted with the passing of order dated 24.10.2013.

Noticeably, contentions raised by the petitioner herein, are similar to the one raised in Dilesh Kumar (supra). In fact, present petition stands filed

and pursued by the very same counsel. Relevant portion of the judgment rendered in Dilesh Kumar (supra) is reproduced as under:-

“6. Mr. K.S. Thakur, learned counsel for the petitioner, has urged that (1) Under Section 306(5) (a) (i) Cr.P.C. when cognizance is taken by the

Chief Judicial Magistrate, case has to be committed for trial to the Court of Sessions, irrespective of the fact whether it is triable as a warrant trial or a

Sessions trial. (2) Under sub clause (a) of Section 306(4) Cr.P.C. at the time of taking cognizance by the Court below, both the approvers were

required to be examined with an opportunity afforded to the accused, for cross-examination. This was not done in the present case. Thus according to

the learned counsel trial stands vitiated. In support, he refers to decision reported in Bawa Faqir Singh Versus Emperor, AIR 1938 Privy Council 266;

Suresh Chandra Bahri Versus State of Bihar, AIR 1994 SC 2420 and Sitaram Sao alias Mungeri Versus State of Jharkhand, (2007) 12 SCC 630.

Mr. Sandeep Sharma, learned Senior counsel appearing on behalf of Central Bureau of Investigation, vehemently opposed the petition and invited

my attention to the decision in Dilip Sudhakar Pendse & another Versus Central Bureau of Investigation, (2013) 9 SCC 391.

Dealing with the first contention, it be only observed that in the present case, only the Chief Judicial Magistrate, Shimla is the concerned designated

Court to hear and try matters arising out of investigation conducted by the Central Bureau of Investigation. Thus Mr. Sandeep Sharma, learned Senior

counsel is right in contending that in the given facts and circumstances, relevant provisions applicable are sub-Section 5(b) of Section 306 Cr.P.C, for

in the instant case, Chief Judicial Magistrate, being the designated Court alone had the jurisdiction to conduct the trial. Neither the matter was triable

by the Court of Sessions nor was cognizance taken by any Magistrate. In the instant case question of committal does not arise. The apex Court in

Dilip Sudhakar (supra) has also dealt with the issue holding that :-

“12. Mr. Rakesh K. Khanna, learned Additional Solicitor General appearing for the respondent, on the other hand, contended that under sub-

section (5)(a)(i) two options were available. He submitted that the matter has to be committed to the Court of Sessions undisputedly if the offence

was triable exclusively by that court. He, however, maintained that even if the matter was not exclusively triable by the Court of Session, it could still

be committed to that court, if the cognizance is taken by the Chief Metropolitan Magistrate. In the facts of the present case, the charges which are

leveled against the appellants are all triable by the Magistrate’s court, and there is no dispute about that, the cognizance is taken by the Additional

Chief Magistrate and not by the Chief Metropolitan Magistrate. That being so, it is not possible to accept this submission of Mr. Khanna.â€​

It be only observed that trial is being conducted by a Magistrate, who stands designated to deal with the cases of CBI. Such officer is otherwise

designated as the Chief Judicial Magistrate and as such, authorized to conduct trial and as is so argued, is not required to commit the case for trial to

any other Court, as specified under sub-Section 5 of Section 306 of Cr.P.C.

In Harshad S. Mehta and others vs. State of Maharashtra, (2001) 8 SCC 257, the Apex Court observed as under:-

“61. The Full Bench accordingly held that the Special Magistrate could try the case himself even after grant of pardon and it does not follow that

the absence of power to commit the accused to the Court of Session or the High Court would show that the Special Magistrate has no power to

tender pardon. The position here also is almost identical. To the extent the provisions of sub-sections (4) and (5) of Section 306 cannot be followed by

the Special Court, they are not required to be followed. As already held these sub - sections do not control the power to grant pardon. Under these

circumstances, Mr. Jethmalani contended that the minority opinion expressed by Mukherji, J. in the Full Bench decision lays down the law correctly.

For the reasons already indicated, we do not agree. The majority decision of the Full Bench, with which we are in agreement, is almost a complete

answer to the submissions of Mr. Jethmalani.

It has held the field for more than half a century. It seems evident that the power to tender pardon stands alone and others are matter of procedure. If

in such situation, the matters of procedure are not applicable, it would not negate the power to grant pardon. Insofar as procedural matters are

concerned, it would only mean that the same apply to the extent applicable. We are, therefore, unable to accept the contention that there was any

implied repeal. It is also not possible to accept that it was intended by necessary implication that the Special Court under the Act shall not have the

power to grant pardon. All powers of Sections 306 to 308 to the extent applicable and can be complied are available to the Special Court under the

Act. The provision of the Act and the Code can stand together. There is no inconsistency. The two statutory provisions can harmoniously operate

without causing any confusion or resulting in absurd consequences and the scheme of Code can, without any difficulty, fit in the scheme of the Act. In

the end, we may also note that jurisdiction to try a case is conferred on the Special Court not by committal but by the statute which has established

that court.

Our conclusion, therefore, is that the Special Court established under the Act is a court of exclusive jurisdiction. Sections 6 and 7 confer on that

court wide powers. It is a court of original criminal jurisdiction and has all the powers of such a court under the Code including those of Section 306 to

308.â€​

Further in State through Central Bureau of Investigation, Chennai vs. V. Arul Kumar, (2016) 11 SCC 733 ,under somewhat similar circumstances,

following observations were made by the Apex Cort:-

Sub-section (1) of Section 5, while empowering a Special Judge to take cognizance of offence without the accused being committed to him for

trial, only has the effect of waiving the otherwise mandatory requirement of Section 193 of the Code. Section 193 of the Code stipulates that the Court

of Session cannot take cognizacne of any offence as a Court of original jurisdiction unless the case has been committed to it by a Magistrate under the

Code. Thus, embargo of Sectino 193 of the Code has been lifted. It, however, nowhere provides that the cognizance cannot be taken by the

Magistrate at all. There is thus, an option given to the Special Judge to straightaway take cognizance of the offences and not to have the committal

route through a Magistrate. However, normal procedure prescribed under Section 190 of the Code empowering the Magistrate to take cognizance of

such offence, through triable by the Court of Sessions, is not given a go-by. Both the alternatives are available. In those cases where charge-sheet is

filed before the Magistrate, he will have to commit it to the Special Judge.

In this situation, the provisions of Section 306 of the Code would be applicable and the Magistrate wold be empowered to exercise the power under

the said provisions. In contrast, in those cases where Special Judge takes cognizance of offence directly, as he is authorized to do so in view of

Section 5(2) of the PC act, 1988, Section 306 of the Code would get bypassed and as the Special Judge has taken cognizance, it is Section 307 of the

Code which would become applicable, Sub - section (2) of Section 5 of the PC Act, 1988 makes this position clear by prescribing that it is the Special

Judge who would exercise his powers to tender of pardon as can clearly be spelled out by the language employed in that provision. Section 5(2) is to

be read in conjunction with Section 5(1) of the PC Act, 1988. The aforesaid legal position would also answer the argument of the learned counsel for

the respondent based on the judgment of this Court in A. Devendran vs. State of T.N., (1997) 11 SCC 720. In that case, this Court held that once the

proceedings are committed to the Court of Session, it is that court only to which commitment is made which can grant pardon to the approver. The

view taken by us is, rather, in tune with the said judgment.

We, therefore, do not find merit in the aforesaid contention of the learned counsel for the respondent. For these reasons, we also do not agree with

the view taken by the Rajasthan High Court in Rajendra Singh vs. State of Rajasthan, 2002 SCC OnLine Raj 471 and overrule that judgment.â€​

Learned counsel have referred to several other decisions, which though reflective of their industry, are not being referred to for being not relevant

for adjudication of the present petition.

Further, Mr.Anshul Bansal, learned counsel, argues that by virtue of sub-Section (g) of Section 460 of Cr.P.C., irregularities, if any, would not

vitiate the proceedings more so on the ground that the concerned Magistrate is not otherwise empowered in law.

Hence, for all the aforesaid reasons, present petition, being devoid of any merit, is dismissed, so also pending application(s), if any.