Ravindra Singh, J. - (1.) HEARD Sri Daya Shankar Mishra, Sri Chandrakesh Mishra, learned counsel for the applicant, learned A.G.A. for the State of U.P. and Sri N.I. Zafri, learned counsel for the C.B.I. This application under Section 482 Cr.P.C. has been filed by the applicant Lal Singh with a prayer to quash the orders dated 21.9.2001, 1.10.2001, 11.10.2001, 1.11.2001, 6.11.2001 and 4.12.2001 passed by the Incharge Special Judicial Magistrate/Magistrate, Dehradun in case No. 1288 of 2001 C.B.I. v. Lal Singh and others, under Section 302/234, 193/34, 201/34 IPC. The orders dated 7.1.2002 and 26.2.2004 passed by learned Special Judicial Magistrate/Magistrate CB.I. Dehradun and the order dated 2.4.2004 passed by learned Special Judge (Anti corruption) U.P. (East), Ghaziabad and the further proceedings proceedings pending in the Court of Special Judge (Anti Corruption) U.P. (East), Ghaziabad in Special case No. 12 of 2004 under Section 302/234, 193/34 and 201/34 IPC. The facts in brief of this case are that an FIR in case crime No. 138 of 1996 under Section 302 IPC, P.S. Bhojpur, District Ghaziabad was registered against the accused Ranpal, Bhagwat, Vinod and Surendra in which one Jageshwar was killed. On 8.11.1996 the applicant who was officer incharge of P.S. Bhojpur, District Ghaziabad alongwith police personal Suryabhan, Ranveer Singh, Subhash Chandra and the accused persons Ranpal, Bhagwat, Vinod and Surendra proceeded from the police station in a police jeep driven by its driver Sukhpal Singh for the purpose of recovering the weapons used in the commission of the alleged offence by making its entry in G.D. No. 22 at 15.10 O'clock, when they reached near the sugar cane filed of one Charmu at about 3.30 p.m. they saw four miscreants sitting one bridge. The miscreants were asked to stop by the police party, they fired at the police party but fortunately nobody sustained any injury from the side of the police. In defence the applicant constable Ranveer, constable Suryabhan and constable Subhash Chandra also fired towards the miscreants consequently two of the miscreants died on the spot but remaining two miscreants entered into the sugar can field of Charmu. The firing was going on from both the sides, in the meantime the message was given to the control room by the driver of the jeep. The additional police force was also came at the place of the incident, the miscreants who had entered into a sugar cane field, on which the firing was done by the miscreants ultimately both the miscreants after sustaining the injury also died on the spot. In the said police encounter all the four miscreants had died. Its FIR was lodged in case crime No. 142 of 1996, 143 of 1996, 144 of 1996, 145 of 1996 and 146 of 1996 under Sections 307 IPC and 25 Arms Act. In the said incident fire arms used by the miscreants were also recovered by the police. Its investigation was entrusted to Officer Incharge of P.S. Hapur, District Ghaziabad, The statements of the witnesses of case crime No. 138 of 1996 were recorded under Section 161 Cr.P.C. in which they categorically stated that there had been a police encounter with the miscreants, after concluding the investigation the final report was submitted in the Court of learned Magistrate concerned, the same was accepted by Addl. C.J.M. (North), Ghaziabad on 5.4.1997 but the State Government ordered for Magisterial enquiry, the inquiry was entrusted to A.D.M. Ghaziabad who forwarded the inquiry report dated 27.11.1997 to Home Secretary, U.P. Government, Lucknow. Thereafter the State Government referred the matter to CBI, the CBI registered the FIR in case crime No. RC 7 (R/37/97/SIC -4/Lucknow) on 10.4.1997 at 10 a.m. The CBI concluded the investigation and submitted the charge -sheet dated 10.9.2001 before Incharge Special Judicial Magistrate CBI (Anti Corruption), Dehradun on which the cognizance was taken on 1.10.2001, subsequently the orders dated 1.10.2001, 11.10.2001, 6.11.2001 and 4.12.2001 were passed by Incharge Special Judicial Magistrate (Anti Corruption), Dehradun. The sanction of the prosecution was obtained from the Government, the same was produced before the Court of Special Judicial Magistrate (CBI), Dehradun on 7.1.2002. Thereafter the applicant and one other co -accused filed a transfer petition before the Supreme Court of India for transferring the case from the Court of CBI Dehradun to the competent Court of Uttar Pradesh, the same was allowed by the Supreme Court of India on 19.12.2003 by transferring the case from the Court of Special Magistrate (CBI). Dehradun, Uttranchal to the Court of Special Judge (Anti Corruption) U.P. (East) Ghaziabad), U.P. vide order dated 19.12.2003. In pursuance of the order dated 19.12.2003 the case has been transferred to the Court of Special Judge (Anti Corruption) U.P. (East), Ghaziabad by the Judicial Magistrate C.B.I. Dehradun, Uttranchal vide order dated 26.2.2004 The record of the above mentioned case was received in the Court of Special Judge (Anti Corruption), U.P. (East) Ghaziabad on 2.4.2004 whereby the case was registered and warrant of the arrest was issued against the accused person. The proceedings pending in the Court of Special Judge (Anti Corruption), U.P. (East), Ghaziabad have been challenged by filing the present application under Section 432 Cr.P.C.
(2.) IT is contended by learned counsel for the applicant that the offence in which the applicant is accused is triable by Court of sessions. The Special Judge (Anti Corruption), U.P. (East), Ghaziabad is a Court of sessions. The proceedings of the applicant were pending in the Court of Special Magistrate (Anti Corruption)/CBI Dehradun, Uttranchal. The case has not been committed to the Court of sessions under Section 209 Cr.P.C. It is a necessary requirement, without committal of the case the Special Judge (Anti corruption U.P. (East), Ghaziabad may not proceed further against the applicant, the warrant of the arrest issued by Special Judge (Anti Corruption), U.P. (East), Ghaziabad is also illegal. It is a case in which the copies of the police report and other documents have not been supplied to the applicant as required under Section 207 Cr.P.C. The provision of Section 193 Cr.P.C., does not empower the sessions Court to take the cognizance directly, the language of Section 193 Cr.P.C. is - 'except as otherwise expressly provided by this Court or by any other law for the time being enforced, no Court of sessions shall take cognizance of any offence as a Court of original jurisdiction unless the case has been committed to it by a Magistrate under this Court". For taking the cognizance otherwise has not been provided. In view of Section 193 Cr.P.C. the Special Judge (Anti Corruption), U.P. (East), Ghaziabad is not empowered to take the cognizance against the applicant. In the present case the provision of Section 207 and 209 Cr.P.C. have not been followed. In such circumstances, the order passed by Special Magistrate (Anti Corruption)/CBI Dehradun, Uttranchal and the orders passed by Special Judge (Anti Corruption), U.P. East, Ghaziabad are also illegal, because the Court of Special Judge (Anti Corruption), U.P. (East), Ghaziabad is not empowered to take the cognizance which is barred by provisions of Section 193 Cr.P.C., therefore, the order passed by the special Judge (Anti Corruption) may be quashed. In reply of the above contention, it is submitted by Sri N.I. Zafri, learned counsel for the CBI that it is a case in which the proceedings have been transferred from the Court of Special Magistrate (Anti Corruption)/CBI Dehradun to the Court of Special Judge (Anti Corruption), U.P. (East), Ghaziabad by the Supreme Court of India on 19.12.2009 in exercise of the powers conferred under Section 406 Cr.P.C. on the transfer petition moved by the applicant and co -accused Subhash Chandra, The applicant if having any grievance with regard to the Section 207 and 209 Cr.P.C., may approach the Supreme Court of India to modify the order dated 19.12.2003. The order dated 19.12.2003 passed by the Supreme Court of India may not be corrected or modified by any other Court of country. The question raised in the present case with regard to the Section 193 Cr.P.C. has been decided by the Supreme Court of India in the case of P.C. Gulati v. Lajyaram and others,, AIR 1996 SC 595. by holding that Court of criminal procedure empowers the Supreme Court to direct any particular case or appeal be transferred from one High Court to another High Court or from the criminal Court subordinate to one High Court to another High Court or from a criminal Court subordinate to one High Court to another Criminal Court of equal or superior jurisdiction subordinate to another High Court. The Section 406 Cr.P.C. empowers the Supreme Court to transfer the case from the Court of Magistrate to the Court of Sessions also. In the present case formal order under Section 209 Cr.P.C., by the learned Magistrate concerned has not been passed, the matter has been transferred by the Supreme Court of India to Special Judge (Anti Corruption), U.P. (East), Ghaziabad. The case has been transferred by the Supreme Court of India, in such a circumstance, the proceedings are not barred by the Section 193 of the code of criminal procedure. There is no illegality in the impugned orders passed by Special Magistrate (Anti Corruption)/CBI Dehradun and orders passed by Special Judge (Anti Corruption) UP (East) Ghaziabad, The present application is devoid of the merits, the same may be dismissed.
(3.) CONSIDERING the submissions made by learned counsel for the applicant, counsel for the C.B.I. and perusing the records it appears that in the present case the applicant was accused in a case pending in the Court of Special Magistrate (Anti Corruption)/CBI Dehradun. On a transfer petition, filed by the applicant and co -accused Subhash Chandra the Supreme Court of India transferred the proceedings of case pending against the applicant from the Court of Special Magistrate CBI, Dehradun to Special Judge (Anti Corruption), U.P. (East), Ghaziabad, vide order dated 19.12.2003. The case was not committed to the Court of Special Judge (Anti Corruption) by any Magistrate but it has come to the Court of Special Judge (Anti corruption) in pursuance of order dated 19.12.2003 passed by the Supreme Court of India. In crucial circumstances the requirement of committal of the case triable by the Court of session be done by learned Magistrate concerned and without proper committal, the cognisance is barred by the provisions of Section 193 of the code of Criminal Procedure. The Section 193 Cr.P.C. reads as under: 193. Cognizance of offences by Courts of Session. - -Except as otherwise expressly provided by this Code or by any other law far the time being in force, no Court of Session shall take cognizance of any offence as a Court of original jurisdiction unless the case has been committed to it by a Magistrate under this Code. According to the provision of Section 193 Cr.P.C. no Court shall lake cognizance of any offence as a Court of original jurisdiction unless the case has been committed by a Magistrate under this Act, except as otherwise expressly provided by this Act or by any other law for the time being enforced. In the present case the Special Judge (Anti Corruption) has taken the cognizance when the case was transferred to his Court by the Supreme Court of India. The Supreme Court of India is empowered to transfer the cases and appeals from one High Court to another High Court or from a criminal Court subordinate to one High Court to another Criminal Court of equal or superior jurisdiction subordinate to another High Court, under the provision of Section 406 of Code of Criminal Procedure, 1973. The Section 406 Code of Criminal Procedure, 1973 reads as under: "406. Power of Supreme Court to transfer cases and appeals. - - (1) Whenever it is made to appear to the Supreme Court that an order under this section is expedient for the ends of justice, it may direct that any particular case or appeal be transferred from one High Court to another High Court or from a Criminal Court subordinate to one High Court to another Criminal Court of equal or superior jurisdiction subordinate to another High Court. (2) The Supreme Court may act under this section only on the application of the attorney -General of India or of a party interested, and every such application shall be made by motion, which shall, except when the applicant is the attorney -General of India or the Advocate -General of the State, be supported by affidavit or affirmation. (3) Where any application for the exercise of the powers conferred by this section is dismissed, the Supreme Court may, if it is of opinion that the application was frivolous or vexatious, order the applicant to pay by way of compensation to any person who has opposed the application such sum not exceeding one thousand rupees as it may consider appropriate in the circumstances of the case.";