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Judgment
A. P. Lavande, J.—Heard learned Counsel for the parties. All these three Writ Petitions filed by the petitioners u/s 482 of Cr.P.C. have been registered as Criminal Writ Petitions. The petitioners in all the three Writ petitions in addition to seeking quashing and setting aside the proceedings in Criminal Cases, seek direction for constitution of Special Investigation Team to investigate Crime Nos.57/2008, 58/2008 and 59/2008 together with the petitioner''s report dated 22nd February, 2008 after registering the said report as F.I.R.
In terms of the interim orders passed in these petitions, further proceedings in Criminal Case No.230/2009/A and Criminal Case No.92/2010/A pending before the Judicial Magistrate, First Class, Panaji have been stayed. The closure report filed by respondent no.1 in Crime No.59/2008 has been also stayed. All three Writ Petitions, which are interconnected, have been fixed for final disposal.
Today when the matters are called out, Mr. Gupte, Mr. Jethmalani and Mr. Nadkarni, learned Senior Counsel for the petitioners in all three Writ Petitions submitted that having regard to the reliefs sought in the petitions, more particularly the relief of constitution of Special Investigation Team to investigate Crime Nos.57, 58 and 59 of 2008 together with the report of petitioner no.1 dated 22nd February, 2008 and report of petitioner no.2 dated 23rd February, 2008 in Criminal Writ Petition No.2/2011 after registering the said reports as F.I.Rs, all these Writ Petitions would lie before the Division Bench in terms of the Bombay High Court Appellate Side Rules, 1960 (''The Rules'' for short) and the judgment of the Apex Court in the case of Divine Retreat Centre Vs. State of Kerala and Others, . According to learned Counsel, the relief of constitution of Special Investigation Team cannot be granted in exercise of inherent jurisdiction u/s 482 of Cr.P.C. and / or Article 227 of the Constitution of India which is supervisory jurisdiction and such relief can only be granted under Article 226 of the Constitution of India and as such, all these Writ Petitions would lie before the Division Bench.
Mr. Ferreira, learned Public Prosecutor appearing for the State of Goa also supported the submissions made by the learned Senior Counsel appearing on behalf of the petitioners.
Mr. Vaz, learned Special Public Prosecutor appearing on behalf of C.B.I. submitted that in case the petitions are held to be maintainable before the Division Bench, interim reliefs granted by this Court in these Writ Petitions, be vacated since this Court would have no jurisdiction to grant any interim reliefs in the matters, which would lie before the Division Bench.
Having considered the submissions made by the learned Counsel for the parties and having perused the record, I am of the considered opinion that there is merit in the submission made by the learned Senior Counsel appearing on behalf of the petitioners.
In the case of Divine Retreat Centre (supra), the Supreme Court held that in exercise of inherent jurisdiction, the High Court cannot change the investigating officer in the midstream and appoint any agency of its own choice to investigate into a crime. The Apex Court further held that the High Court in exercise of power under Article 226 of Constitution of India can always issue appropriate directions at the instance of an aggrieved person, if the High Court is convinced that the power of investigation has been exercised by an investigating officer mala fide, although such a power has to be exercised in rarest of rare case where clear case of abuse of power and non-compliance of the provisions falling under Chapter XII of Cr.P.C. is clearly made out requiring interference by the High Court. The Apex Court further held that the decision in Pepsi Foods Ltd. and Another Vs. Special Judicial Magistrate and Others, does not lay down any law that the High Court in exercise of its power u/s 482 of the Code of Criminal Procedure or Article 227 may be resorted to constitute any special investigation agency to investigate into the allegations made in an anonymous petition. The Apex Court further held that the powers to issue writs and pass appropriate orders u/s 482 of the Code of Criminal Procedure are conferred upon the High Court but they operate in different fields.
Chapter I, Rule II of The Rules prescribes the criminal matters which can be taken up by the Single Judge. In terms of Clause (i) and (j) of Rule II, all the applications under Article 227 of Constitution of India challenging the orders and decisions of the Courts constituted under the Code of Criminal Procedure and all applications u/s 482 of Cr. P.C. except those seeking review, modification or setting aside of any order passed by the Division Bench, would lie before the Single Judge. Chapter XVII, Rule 18 of The Rules provides that notwithstanding anything contained in Rule 1, 4 and 17 of this Chapter, the applications under Article 226 or under Article 227 of the Constitution of India (or applications styled as application under Article 227 of the Constitution of India read with Article 226 of the Constitution) arising out of the orders mentioned in Clauses 1 to 43 may be heard by the Single Judge appointed in this behalf by the Chief Justice. The relief of constitution of Special Investigation Team sought by the petitioners in all these three Writ Petitions does not fall under any of the Clauses of Chapter XVII, Rule 18 of The Rules and, therefore, obviously, this Court would have no jurisdiction to grant the relief of constitution of Special Investigation Team as sought by the petitioners.
Thus, although Writ Petitions are purportedly filed u/s 482 of Cr.P.C., the petitions are in substance Writ Petitions under Article 226 of the Constitution of India and, therefore, would lie before the Division Bench.
No doubt, interim reliefs were granted by this Court in two of these petitions. I am of the considered opinion that instead of vacating the interim orders straightway, interest of justice would be served by directing all the three petitions to be placed before Division Bench and further directing the petitioners to supply the second set of the petitions which the learned Counsel appearing for the petitioners have agreed to supply within the time stipulated by this Court. In view of the above, I pass the following order :
(i) Criminal Writ Petition nos.81/2010, 2/2011 and 42/2011 be placed before the Division Bench on 17th August, 2011.
(ii) The petitioners to supply second set of the three Writ Petitions by 10th August, 2011. In case of failure to supply the second set of the petitions by 10th August, 2011, interim orders passed by this Court shall stand vacated.