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1980 DIGILAW 219 (PAT)

Ram Dayal Ram v. State of Bihar

1980-11-12

BRISHKETU SARAN SINHA

body1980
JUDGMENT : Brishketu Saran Sinha, J. 1. This application is directed against the ORDER :dated 20.1.1977 passed in Hathidah P.S. case no 12(8)75 by Shri A.N. Sahay, Sub-divisional Judicial Magistrate, Barh, by which cognizance has been taken of offences under Section 161 of the Indian Penal Code and Section 5 of the Prevention of Corruption Act, 1947. It appears that on 8.8.1975 at. 1.10 A.M. Madan Rai of village Gangapar, police station Sarairanjan district Samastipur gave his fardbeyan before Raj Gobind Singh Officer-in-charge of Hathidah police-station stating that his truck bearing no. BHA-1477 loaded with five she-buffaloes and their calves stopped near Hathidah check-post and one Excise Constable came near the truck and other remained near the barrier. The Excise Constable demanded Rs. 2/- and as soon as the informant was giving that money a jeep came from the Hathidah check post side and stopped near the Excise barrier which was lifted. In the jeep was the Superintendent of Police who asked the constable to take out two rupee note from the pocket of the Excise constable. The Excise constable gave that two rupee note and thereupon his person was searched by an armed constable and a further recovery of 21/-- rupees and a diary was made. The Excise constable i.e. petitioner was then interrogated and he disclosed his name. He was brought to Hathidah police station where a seizure list was prepared. On the basis of the above fardbeyan a case was instituted under Section 161 of the Indian Penal Code and Section 5 of the Prevention of Corruption Act against the petitioner and was registered as Hathidah P.S. case no. 12(8)75. The investigation was carried on by Shri Raj Gobind Singh who had the rank of Sub-Inspector of Police. On 9.8.1975 he handed over the investigation to Sri A.Z. Ahmad, Police Inspector, Mokameh who conducted the investigation and subsequently handed it over to his successor in office. Final charge-sheet was submitted on 28.12.1976 by the Investigating Officer who was an Inspector of Police. 2. In support of this application it has been submitted that the cognizance taken must be set aside as it has been taken on the basis of a charge-sheet submitted on illegal investigation. There is substance in the submissions. Reliance for this submission is placed upon Section 5A of the Prevention of Corruption Act. Sub-section (1) reads thus:-- 5 (A) (1). In support of this application it has been submitted that the cognizance taken must be set aside as it has been taken on the basis of a charge-sheet submitted on illegal investigation. There is substance in the submissions. Reliance for this submission is placed upon Section 5A of the Prevention of Corruption Act. Sub-section (1) reads thus:-- 5 (A) (1). Notwithstanding anything contained in the Code of Criminal Procedure 1898, no police officer below the rank-- (a) in the case of the Delhi Special Police Establishment, of an Inspector of Police; (b) In the presidency towns of Calcutta and Madras, of an Assistant Commissioner of Police; (c) in the presidency-town of Bombay of a Superintendent of Police, and elsewhere, of a Deputy Superintendent of Police. shall investigate any offence punishable under Section 161, Section 165 or Section 165A of the Indian Penal Code or under Section 5 of this Act, without the ORDER :of a Presidency Magistrate or a Magistrate of the first class, as the case may be, or make any arrest therefor without a warrant; Provided that if a Police Officer not below the rank of an Inspector of Police is authorised by the State Government in this behalf by general or special ORDER :, he may also investigate any such offence without the ORDER :of a Presidency Magistrate or a Magistrate of the first class as the case may be, or make arrest therefor without a warrant: provided further that an offence referred to in clause (e) of Sub-section (I) of Section 5 shall not be investigated without the ORDER :of a Police Officer not below the rank of a Superintendent of Police. By reading the aforesaid provision it is obvious that normally in an investigation in such cases has to be conducted by a Deputy Superintendent of Police where Sub-clauses (a), (b) and (c) do not apply. However a Magistrate of the first class or a Presidency Magistrate can direct that the investigation may be carried out by some other officer. The first proviso further authorises that the State Government by Notification might authorise Inspectors of Police to conduct such investigation. The learned Government Pleader has not been able to produce any such notification authorising Inspectors of Police to conduct investigation. There is no ORDER :of a Magistrate either directing investigation by an officer below the rank of Deputy Superintendent of Police. The learned Government Pleader has not been able to produce any such notification authorising Inspectors of Police to conduct investigation. There is no ORDER :of a Magistrate either directing investigation by an officer below the rank of Deputy Superintendent of Police. In the present case I have already indicated above that a substantial part of the investigation was conducted by a Sub-Inspector of Police and subsequently the investigation was completed by Officers of the rank of Inspectors of Police. It is manifest that the investigation having been conducted by an Inspector of Police and a Sub-Inspector of Police is in violation of the provisions of Section 5A, inasmuch as, there is neither an ORDER :of a Magistrate nor a Notification of the State Government. In the case of (1) H.N. Rishbud & another. Vrs.. State of Delhi reported in A.I.R. 1955 S.C. 196 it has been pointed out that when a breach of the mandatory provision of Section 5A of the Prevention of Corruption Act is brought to the notice of a Court at an early stage of the trial the Court will have to consider the nature and extent of the violation and pass appropriate ORDER :s for such investigation as may be called for wholly or partly by such officer as it considers appropriate with reference to the requirements of Section 5A of the Act. There is no gainsaying fact that in the instant case the aforesaid mandatory provisions have been violated and cognizance has been taken on a charge-sheet submitted by Officers who were not competent to investigate the case. Therefore in the circumstances of the case I would set aside the cognizance and direct that the case be investigated afresh by an officer of the rank of Deputy Superintendent of Police. The case will proceed in accordance with law thereafter. In the result this application is allowed. In view of the fact that it is a very old case the authorities should see that the investigation in the present case is completed within three months from today. The ORDER :has been passed in the presence of the learned Government Pleader appearing for the State who will inform the authorities concerned. Application allowed.