POWER OF A SPECIAL JUDGE TO ORDER AN INVESTIGATION UNDER S. 156(3) OF THE CR.P.C.

N Chandrashekharayya

In the case of Surendra Nath Swain v. State of Orissa & Ors (2006 Cri L J 462), the High Court of Orissa held that a Special Judge appointed under the Prevention of Corruption Act, 1988  is not a Magistrate within the meaning of Section 156(3) of  the Code of Criminal Procedure. Such a Special Judge is incompetent to refer a complaint to the police for investigation.
The writ petition arose out of a complaint filed by the eventual petitioner, Surendra Nath Swain before the Special Judge (Vigilance), Bhubaneshwar, alleging certain offences punishable under the provisions of the Prevention of Corruption Act, 1988 against Shri Naveen Patnaik, Chief Minister of Orissa and others. The petitioner prayed that the Special Judge issue direction to the Superintendent of Police (Vigilance), Bhubaneshwar to treat the complaint as an F.I.R. and to investigate the same. The Special Judge rejected the prayer and proceeded under Section 200 of the Code. Challenging the said order the petitioner approached the High Court through a writ petition.
The Hon'ble High Court considered the powers of the Special Judge with reference to the provisions of Section 190 of the CrPC and Section 5 of the Prevention of Corruption Act, 1988. It took the view that Section 156(3) of the CrPC empowers any Magistrate competent to take cognizance under Section 190 of the Code to order for such investigation and that the Special Judge appointed under the provisions of the Prevention of Corruption Act, 1988 is not a Magistrate within the meaning of sub-section 3 of Section 156 of the Code and therefore the Special Judge was incompetent to refer such complaint to the police to investigate such case.  
In my opinion the judgment of the High Court of Orissa is incorrect because the Court misconstrued the provisions of the Code and the Prevention of Corruption Act. Sub-section (1) of Section 5 of the Prevention of Corruption Act, 1988  empowers the Special Judge to take cognizance of the offences under the said Act without the accused being committed to him.  Sub-section (4) provides that in particular and without prejudice to the generality of the provisions contained in sub-section (3), the provisions of section 326 and 475 of the Code of Criminal Procedure shall, so far as may be, apply to proceedings before a special Judge and for the purposes of the said provisions, a Special Judge shall be deemed to be a Magistrate. When a person is “deemed to be” some thing, a statute requires him/her to be treated as if he were something he is not.
Thus, there can be no doubt that the Legislature requires a Special Judge to be treated as the Magistrate as he will be able to exercise powers that include the powers under Sub -Section (3) of Section 156(3) of the Code. The correct position has been stated by the  High Court of Karnataka in P.R.Venugopal v. G.P.Rajashekhar and others (ILR 2003 KAR 801). Unlike the State of Orissa , where the Vigilance Department investigates the offences under the Prevention of Corruption Act, 1988, in the state of Karnataka, the Lokayukta Police investigates these offences. The case in Karnataka had arisen from the complaints filed by P.R.Venugopal against certain public servants in the Court of the Principal Sessions Judge in Raichur, designated as a Special Judge under the Prevention of Corruption Act, 1988 and were in respect of offences punishable under section 13(1)(d). The Special Judge referred the complaints filed by complainant P.R.Venugipal to the Lokayukta Police for investigation and report. While the investigation was in progress, the legal cell of the Karnataka Lokayukta headed by a District Judge issued an office note to the effect that the Special Judge who is a Sessions Judge can not take cognizance and hence he can not refer a complaint to the police for investigation. The Inspector General of Police, Karnataka Lokayukta circulated the office note to all the subordinates in the state. On the basis of the office note of legal Section of the office of the Karnataka Lokayukta and the circular the police wing of the Lokayukta   returned the complaints back to the Special Judge in Raichur without investigation - stating that the Special Judge did not have power to refer the complaint to the Lokayukta Police as he was not a Magistrate and he did not have the power to take cognizance of the offence. On the basis of the memos submitted by the Lokayukta Police returning the complaints the Special Judge Raichur withdrew the order of referring the complaints to the Lokayukta Police.
The complainant filed Criminal Petitions before the High Court of Karnataka and challenged the order of the Special Judge and also the office note and circular of the Investigation Wing of the Lokayukta Office. The High Court of Karnataka considered all the aspects of Code of Criminal Procedure and the Prevention of Corruption Act, 1988 in so far they related to the powers of the Special Judge in respect of the offences under the Act.

The offences under the Act are special offences. No Court can take cognizance of the same except the Special Judge. Under sub-section (3) of Section 156 of the Code, any Magistrate empowered under Section 190 may order investigation. Under Section 5(1), the Special Judge can take cognizance and under Section 5(3), the Special Judge is deemed to be a Magistrate. Thus, Section 5(3) gives the Special Judge the same powers that are given to a Magistrate under Section 156(3) of the Code. It implies that the Special Judge can exercise the powers of a magistrate, which include the power to order investigation.

Considering all the above facts and the law, the High Court held that the designated Judge under the Prevention of Corruption Act, 1988 is the Special Judge. When a Sessions Judge is designated as a Special Judge under the Act, and while functioning as a Special Judge, he is vested with all the original powers of Magistracy and deemed to be a Magistrate for the purpose of trial. The court set aside the order of the Special Judge withdrawing the complaints referred to the Police for investigation and directed that the complaint referred for investigation under Section 156(3) of the Cr.P.C., should be sent again to the Inspector of Lokayukta, who would register the cases and proceed further in the matter in accordance with law.   
This is the correct position of law regarding the power of the Special Judge under Section 156(3) of the Code of Criminal Procedure.