S. R. Bhargava, J. - (1.) THIS revision is directed against the following short order passed by Sri S. K Gupta. Additional Chief Metropolitan Magistrate, Oehradun on charge sheet submitted by CBI against regisionists Dr. Virendra Singh and Dr. Ralsem Singh in a case under sections 147/148/149/302 IPC, as Incharge Special Magistrate, CBI SPE Dehradun. "Cognizance taken. Register. Abhiyukt gan ke sambandh waste hajri dinanak 27-7-1990 ke liye jari ho".
(2.) BY notification no. 6152/VH/A. N. 308/76 dated November 16, 1976, in exercise of powers under sub-sections (i) and (1-A) of section 11 of the code of Criminal Procedure, 1973 (Act no. 2 of 1974) as amended in its application to Uttar Pradesh by the Code of Criminal Procedure (Uttar Pradesh Amendment) Act, 1976 (U. P. Act 16 of 1976) read with section 21 of the General Clauses, Act, 1897 (Act No. X of 1987) and in supersession of Government Notification No. 1592/VII-AN 209-74, dated April 20, 1974 in consultation with the High Court, U. P. State established the court of Judicial Magistrate at Dehradun to try or enquire into and commit to the court of Sessions all such cases arising within the local area allotted to it by this notification in which investigations are made or charge sheet filed by Special Police establishment constituted under Delhi Special Police Establishment Act, 1946. This notification allotted several districts to the court of aforesaid Judicial Magistrate including District Sahranpur part of which is now District Hardwar. Commonly known investigating agency CBI is a part of Special Police Establishment constituted under Delhi Special Police Establishment Act, 1946. The case relating to police station Kotwali, Roorkee in district Hardwar was entrusted to CBI for investigation. CBI Submitted charge sheet to the court of Judicial Magistrate constituted" under aforementioned notification- This court has not been having magistrate from February, 1990. Sri S. K. Gupta acting as incharge of that court as Magistrate passed the impugned order on the charge sheet submitted by CBI. In this revision it has been contended that Sri Gupta though a Magistrate has not been appointed Magistrate of - the aforesaid court of Judicial Magistrate under section 11 (2) of Criminal Procedure Code and has no jurisdiction to take cognizance or to summon the revisionists. The summoning order in normal course could have been passed under section 204 CrPC. This section lies in Chapter XVIII having title "commencement of proceedings before Magistrates." A bare reading of this section makes it clear that it is in aid of enquiry or trial for all types of criminal cases. Section 204 (1) (b) makes it clear that the Magistrate taking cognizance is of the opinion that there is sufficient ground for proceedings, can pass an order summoning the accused of a warrant case. A case falling under section 302 IPC is undoubtedly a warrant case because it is punishable with death or imprisonment for life. Words occurring in section 204 (1) (b) "(if he has no jurisdiction himself)" show that even Magistrate not having jurisdiction over the case can pass a summoning order requiring the accused to appear before the Magistrate having jurisdiction. It was contended on behalf of the revisionists that Sri S. K. Gupta had no territorial jurisdiction over the case and he was also not appointed by the High Court as Magistrate of the court constituted under aforementioned notification. Hence he could not take cognizance of the offence and unless cognizance was validly taken, summoning order could not have been passed. There can be no doubt that as incharge of the court of Judicial Magistrate constituted under the aforementioned notification Sri Gupta was not empowered to take cognizance of the case. Section 460 of the Code of Criminal Procedure 1973 is identical with section 529 of Criminal Procedure Code of 1898. In the case of Parsottam Jetha Nand v. State of Kutch, AIR 1954 SC 700, it was held that where a Magistrate is not empowered to do so, takes in good faith cognizance of offence under Sec. 190 (1) (a) and (b), the defect in the absence of any prejudice to the accused is cured by section 529. Although on behalf of the revisionists affidavit was filed but no malafide was attributed to Sri S. K. Gupta. For judicial acts presumption is of regularity. Hence it will have to be said that the cognizance was taken by Sri Gupta bona fidely.
(3.) ALL that the revisionists can complain is that the court of Judicial Magistrate constituted for CBI cases is vacant and if the revisionists are made to appear before the court, it would simply result into harassment of the revisionists because in absence of any Magistrate, no enquiry is possible. I am of the view that the grievance expressed about harassment is genuine. Nevertheless this grievance can be redressed by proper order under section 205 (1) CrPC. There is reason to believe that so long as no Magistrate is appointed for the court of CBI cases at Dehradun, personal attendance of the revisionists will simply amount to harassment. Even then their legal appearance before that court would be a step in aid of enquiry which may be subsequently held by the Magistrate appointed in that court. Hence for this reason personal attendance of the revisionists before that court can be dispensed with until a Magistrate in that court is appointed and starts functioning. In view of the above discussions I maintain the impugned order and direct that until the Magistrate in the court of CBI cases at Dehradun is appointed and starts functioning the revisionists shall be at liberty to appear before that court through counsel. After the Magistrate in that court is appointed and starts function he may pass suitable order about the attendance of the revisionists before him according to the provisions of section 205 (ii) CrPC.;