Anand Verma vs State of U.P. and Others

J.C. Gupta and U.S. Tripathi, JJ.—We have heard learned Counsel for the Petitioner and learned A.G.A. By means of this writ petition the Petitioner has prayed for issuing a writ of certiorari quashing the order dated 28.4.2000 passed by the Ist A.C.J.M., Kanpur Dehat, on the surrender application made before him by the Petitioner in connection with the Case Crime No. 33 of 2000, u/s 394, I.P.C., P.S. Shivrajpur, District Kanpur Nagar. A further prayer has been made for issuing a writ of mandamus commanding the Investigating Officer to ignore the aforesaid order of the Magistrate while conducting investigation of the aforesaid case crime number.

Some undisputed relevant facts are that on the basis of the F.I.R. a case u/s 394, I.P.C. was registered and the police is investigating the same. On 2.5.2000, the Investigating Officer obtained non-bailable warrant of arrest and process u/s 82, Cr. P.C. against the Petitioner. Since the offence punishable u/s 394, I.P.C. is a scheduled offence under the Dacoity Affected Area Act, the said processes were obtained from the Court of Special Judge (Dacoity Affected Area). The Petitioner moved surrender application before the 1st A.C.J.M., Kanpur Dehat whereupon a report was called for from the Station Officer of police station concerned who submitted his report on 10.6.2000 to the effect that against the Petitioner only offences punishable under Sections 323, 325, 504 and 506, I.P.C. have been made out during investigation of the F.I.R. registered u/s 394, I.P.C. Thereafter, the learned Magistrate passed the impugned order.

It was argued by the learned Counsel for the Petitioner that the learned Magistrate had no jurisdiction to interfere with the investigation and direct the Investigating Officer to act in a particular manner. It was further submitted that when the Investigating Officer found that no offence u/s 394, I.P.C. was made out during investigation it was not within the powers of the Magistrate to direct him to convert the case u/s 394, I.P.C. On the other hand the learned A.G.A. argued that Magistrates have power of superintendence over investigation and since in the present case warrant of arrest and process u/s 82, Cr. P.C. have been issued by special Judge neither the police nor Magistrate had any power to override the said powers of the special Judge until the warrant of arrest and process u/s 82, Cr. P.C. were recalled. We find force in the submission of learned A.G.A.

It is an undisputed fact that offence u/s 394, I.P.C. is cognizable by the Special Judge (Dacoity Affected Area) being a scheduled offence under the said Act. Under the provisions of the said Act, the Special Judge has been vested with the powers of Magistrate. Therefore, in our opinion the surrender application made by the Petitioner before 1st A.C.J.M. was not maintainable. Once a case was registered as a scheduled offence it is only the Court of special Judge which could deal with the matters relating to such offence. Therefore, any direction or observation contained in the order of the learned Magistrate has no legal sanctity. As warrant of arrest and process u/s 82, Cr. P.C. had been issued by the special Judge and were in operation, the Investigating Officer was bound to give effect to them and produce the Petitioner before the concerned court of special Judge and the Investigating Officer himself had no power to overlook the said order of the learned special Judge by treating the case to be under Sections 223, 325, 504 and 506, I.P.C. only.

In the circumstances this writ petition is disposed of with the observation that the Petitioner may avail the legal remedy before the Court of special Judge as may be available to him under law.