Central Crime Branch(CCB) Not A 'Police Station'; Chargesheet Filed By It Invalid : Karnataka High Court

A single bench of Justice B A Patil on January 18, allowed two petitions filed by Dr.M.G.Gopal Principal & Dean of KIMS and Dr. Appaji Gowda M.S., President Rajya Vakkaligara Sangha and Dr.Nisarga, Chairman, Governing Council Kempegowda Institute of Medical Sciences, challenging the order passed by the magistrate court, dismissing the discharge application and taking cognizance of the final report filed by the CCB and ordering process against them.

The bench in its order noted that:

"It is fairly conceded by the respondents that no such authorization has been given by the State to declare CCB as a police station. As per Section 2(s) of the Code the State Government has to declare either generally or specially any post or place to be a police station, but no such declaration is forthcoming before this Court. In that light, admittedly the investigation has been done by the CCB and it is he who had submitted the report in terms of Section 173 of the Code and in view of the discussion made by me above, he cannot be considered to be an officer-incharge. In that light, the trial Court ought not to have taken cognizance of the report submitted by the CCB".

Case Details:

As per the complaint Kempegowda Institute of Medical Sciences ('KIMS') is one among several other educational institutions run by Rajya Vakkaligara Sangha. For the academic year 2014-15, in respect of allotment of medical seats, though under the management quota there was scope for admission, accused no 1 (Gopal), by misusing his power, got admitted six medical students by directing accused No.3, by taking an amount of Rs.30 Lakhs.

Subsequently, on 3.6.2014, an amount Rs.17 Lakhs was paid for getting the son of the complainant admitted to the first Year MBBS Course. For the purpose of recommendation from accused No.2-the Director of Vakkalagira Sangha, a reference letter has been given. Subsequently, instead of admission of the son of the complainant, they admitted the niece of accused No.5. and thereby they have committed an offence of breach of trust, cheating and other offences.

Senior Advocate C V Nagesh appearing accused Gowda and Nisarga submitted that as per Section 173(2) of the Code, it is the officer-in-charge of the police station who shall forward the report to the Magistrate empowered to take the cognizance and as such, admittedly the present case has been filed with a final report by CCB which has not been declared as a police station as contemplated under Section 2(s) of the Criminal Procedure Code.

When the CCB Inspector is not in-charge of the police station, he is not competent to file the report. CCB being a specialized Investigating Agency can investigate a particular crime which is referred to it either by judicial order of the Court or by an administrative order.

Reliance was placed on the order of the High Court in the case of Rakesh Shetty Vs. State of Karnataka & others, in which it was held that CCB not being a police station, neither a person in-charge of CCB nor an officer forming part of CCB can register any complaint. In that light, there is no report filed by the Investigating Officer in-charge of the police station and cognizance taken by the learned Magistrate, is not sustainable in law.

A reference to Supreme Court order in the case of State of Bihar and another Vs. Lalu Singh, (2014, 4 SCC 663) was also made in which the court held that under Section 36 of the Code, CCB is not the Officer in-charge of the police station for the purpose of submitting the report contemplated under Section 173(2) of the Code.

Senior Advocate Nagesh submitted that "Cognizance taken without there being any proper report by the in-charge Officer is not sustainable in law. The interpretation of Section 173 of the Code is no more res-integra and it is the officer in-charge of the police station who shall forward the report to the Magistrate empowered to take cognizance."

Further it was contended that the Magistrate has not applied his mind while taking cognizance. In order to issue notice under Section 204(2) of the Code, the Magistrate has to satisfy himself that there exists prima facie case and there must be sufficient grounds made out by the complainant. But in the instant case, no such material is available. To support this contention, reliance was placed upon the decision of the Supreme Court in the case of Sunil Bharti Mittal Vs. Central Bureau of Investigation, reported in (2015)4 SCC 609.

Special Public Prosecutor V.M.Sheelvant submitted that police officers in CCB police station have been authorized to investigate and they step into the shoes of the Station House Officers and as such the contention of the petitioners-accused is not sustainable in law.

Further, he submitted as per Section 156(2) of the Code, no proceedings of the police officer shall be challenged on the ground that the officer was not empowered for the purpose of investigation. The order of the trial Court shows that there is application of mind of the Magistrate though he has not referred to the statement of the witnesses. There is no illegality or irregularity in taking the decision.

Moreover, it was argued that CCB police is the specially constituted branch for investigation, they are superior in rank and as such they can investigate the case. CCB is attached to Central police station and the FIR filed indicates that it is Central Police who has filed the charge sheet.CCB police are authorized to file the report and as such the Investigating Agency's report filed before the Court is valid though not constituted as police station under the Code.

In order to substantiate the said contention, he relied upon a decision of Calcutta High Court in case of Chittaranjan Das Vs. State of West Bengal & others, reported in AIR 1963 Calcutta 191; and the decision of the Hon'ble Apex Court State of Bihar and another Vs. Lalu Singh.

The court referred to section 2 (o) of the code which reads thus:

As per Section 2(o) of the Code, "officer in charge of a police station" includes, when the officer in charge of the police station is absent from the station house or unable from illness or other cause to perform his duties, the police officer present at the station-house who is next in rank to such officer and is above the rank of constable or, when the State Government so directs, any other police officer so present."

Accordingly, the court noted:

"Section 173(2) of the Code contemplates submission of report of investigation. From plain reading of the said provision it is evident that it is the officer in-charge of a police station who is authorized to forward and submit the report in the prescribed form to the jurisdictional Magistrate to take cognizance. The words used in Section 173(2) are "shall forward" which themselves give the meaning that it is the officer in-charge of the police station to file the final report."

It also recorded that "It is the police officers superior in rank to an officer-in-charge of the police station who have been conferred with such power as that of the officer in-charge of the police station. But in the case on hand, CCB police are not the officers superior in rank to an officer in-charge of the police station in the local jurisdiction. In that light, the contention which has been taken up by the learned SPP-I is not acceptable."

The court held that "When CCB is not a police station then admittedly the final report filed by CCB which is an Investigating Agency is not in contemplation with the provisions of Section 173(2) of the Code."

The bench also said "Though the learned Magistrate has observed that he has perused the statement of the witnesses and material on record, but as discussed above, while taking cognizance if he has not kept in view the provisions of Sections 190(1) and 173(2) of the Code whether the CCB is having any authority to file the report or not, that itself shows that he has not applied his mind properly to the proposition of law and factual matrix of the case on hand. I am of the considered opinion that the order passed by the trial Court is not in accordance with law."

Justice Patil accordingly ordered "I am of the considered opinion that the petitioners-accused Nos.1, 3 and 4 have made out a case so as to allow the petitions and to set aside the impugned orders dated 7.12.2017 and 1.6.2016."