C. M. PRASAD AND v. STATE OF KARNATAKA — 1983 DIGILAW 148 (KAR)

JAGANNATHA SHETTY, J. ( 1 ) THESE appeals are directed against the orders of the learned single judge made in WP No. 25970/82, 307-16/82, 35708/82 and 3941/83. ( 2 ) THE appellants who were some of the top Government Officers are being prosecuted in the Courts below for offences falling under the provisions of the Prevention of Corruption Act: 1947. The Special judge constituted under the said Act has taken cognizance of the offences upon a police report under S. 190 (1) (b) of the Code of Criminal Procedure (Shortly called "the Code" ). Those reports were submitted by the police Officers of the State Vigilance commission. The appellants challenged the validity of the prosecution in writ petitions under Article 226 of the Constitution on the principal ground that the Police Officers who filed such reports under S. 190 (1) (b) of the Code were not the Police Officers of the State Police Department, but deputed Police Officers who have been functioning under the Control of the Vigilance commissioner and they therefore, have no power to file the charge sheets against the appellants. The learned Single Judge while largely depending upon the judgment of the supreme Court in State of Bihar v. J. A. C. Saldanna, AIR 1980 SC 326 did not accept the writ petitions. His conclusions may conveniently be summarised in the following terms : (1) That the Superintendent of police or the Deputy Superintendent of Police who investigated the respective cases of the appellant and filed charge sheets against them did not cease to be the Police officers on their deputation to the vigilance Commission. (2) That the Government notification dated June 2, 1981 issued under S. 2 (S) of the Code declares the respective places of the said police Officers as Police Stations and consequently the said Police officers became the officers in charge of the respective police stations within the meaning of S. 2 (S) of the Code with the powers to investigate Offences committed by the Civil Servants. They could also enquire into the misconduct of the civil Servants if directed by the vigilance Commissioner and (3) That the officers who filed the charge sheets were not directly under the control of the Inspector general of Police. They could also enquire into the misconduct of the civil Servants if directed by the vigilance Commissioner and (3) That the officers who filed the charge sheets were not directly under the control of the Inspector general of Police. But his control over the Police Force is only penultimate and ultimate control over the Police Force including those in the Vigilance Commission is vested in the State Government under S. 4 of the Kasnataka Police act. The Control of the Vigilance commissioner, therefore makes no difference. ( 3 ) THE common question that falls for decision in these appeals is whether the Officers who investigated the alleged offences and filed reports of such facts in the courts below are Police Officers within the meaning of S. 190 (1) (b) of the Code. ( 4 ) WE agree with Mr. Ram jethmalani, learned Counsel for the appellant in W. A. No. 344 of 1983 that the question raised is not entirely covered by the decision of the Supreme Court in Saldana's case. The two questions determined in that case were : (i) Whether the government was competent to direct further investigation in a Criminal case in which a report was submitted by the agency under S. 173 (2) of the code, and (ii) Whether the Magistrate having jurisdiction to try the case committed an illegality in postponing consideration of the report submitted to him upon a request made by the Assistant Public prosecutor. The Supreme Court found the first question in the affirmative and the second question in the negative. We are not concerned with the like questions in these appeals. Moreover, the Inspector General vigilance, who was asked in that case by the Government to carry on the investigation was an officer superior in rank of an Officer in charge of a police station and his office was an inter-se departmental division set up for administrative convenience ard efficiency. The position in these cases is quite different. The Vigilance commissioner under whose guidance the said Officers carried on the investigation is an independent authority and not a departmental division of the Karnataka Police Force. ( 5 ) MR. The position in these cases is quite different. The Vigilance commissioner under whose guidance the said Officers carried on the investigation is an independent authority and not a departmental division of the Karnataka Police Force. ( 5 ) MR. Rama Jethmalani urged that the 'police Officer' envisaged under S. 190 (1) (b) must be an officer of the police Department He must be a regular member of the Police force and not an officer working in other departments upon deputation with no control or supervision by the Director General of the karnataka Police Force. The learned advocate General while supporting the orders under apptals, however, submitted that the parties formulation of points before the learned single judge started in the wrong place. The police officers concerned in these cases were not the Officers deputed to the Vigilance Commission, but only transferred from the karnataka Police Force and posted in the Vigilance Commission. Since they have been declared to be the officers in charge of the respective police Stations, their right to investigate into the offences and file charge sheets against the appellants cannot be denied or be denied or disputed. He has also made available to us Government Orders issued from time to time in relation to the creation of posts and appointment of Officers in the Vigilance commission. ( 6 ) THE term 'police Officer' has not been defined anywhere in the code. S. 2 (16) of the Karnataka police Act, 1963 defines the said term to mean 'any member of the police Force appointed or deemed to be appointed under the said Act and includes a Special or Additional police Officer appointed under Ss. 19 or 20. This definition, however, appears to be not decisive in the matter. The decisions of the Courts as to the meaning of the said term do not sptak with one voice. There has been difference of opinion among the High Courts as to the precise meaning of the term 'police Officer'. One view has been that those words must be construed in a broad way and all officers whether they are police officers properly so called or not would be police officers within the meaning of these words, it they have all the powers of a police officer with respect to investigation of offences. One view has been that those words must be construed in a broad way and all officers whether they are police officers properly so called or not would be police officers within the meaning of these words, it they have all the powers of a police officer with respect to investigation of offences. The leading case in support of this view is Manoo Sheikh Aluned v. Emperor 51| (1927) ILR Bombay, page 78, AIR. 1929 Bombay, 4 (FB ). The other view which may be called the narrow view is that the term 'police officer' should be understood as connotating nothing more or less than a "member of the Police Force", The leading case in support of this view is Kadhakisan Murwari v. Emperor AIR 1932 Patna, 293 (S. B ). The Supreme court in Badakujoti v. State of Mysore air 1966 SC 1746 after noticing these views did not state which of the two is more sound and acceptable. The question raised in these appeals, therefore has to be considered on the nature of the posts occupied by and the powers conferred upon the officers who investigated the alleged offences and filed reports under S. 190 (1) (b) of the Code against the appellants. ( 7 ) LITTLE needs to be added regarding the antecedent duties responsibilities and status of officers who filed reports under S. 190 (1) (b) of the Code. They were Police Officers properly belonging to the State police Force. They were indubitably the Police Officers in every sense of the term before they were transferred and posted in the Vigilance Commission. The question then narrows down to this : Whether such Officers ceased to be Police officers while serving in the Vigilance Commission. ( 8 ) 'police report' is defined under S. 2 (r) of the Code to mean a report forwarded by a Police Officer to a Magistrate under sub-sec. (2) of s. 173. Chapter XII deals with investigation of a cognizable case. ( 8 ) 'police report' is defined under S. 2 (r) of the Code to mean a report forwarded by a Police Officer to a Magistrate under sub-sec. (2) of s. 173. Chapter XII deals with investigation of a cognizable case. S. 156 (I) provides :"any Officer in charge of a police station may, without the order of a Magistrate, investigate any cognizable case which a court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter XIII", officer incharge of Police Station' is defined under S. 2 (o) to include : '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 Govennments directs any other police officer so present". Under S. 190 (1) of the Code a magistrate can take cognizance of any offence either (A) Upon receiving a complaint of facts which constitutes such offence, or (B) Upon a report in writing of such facts made by any police officer, or (C) Upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed. ( 9 ) KARNATAKA State Vigilance commission Rules 1980 made under the proviso to Art. 309 of the constitution provide that the Vigilance commissioner shall have a Secretary and such officers and employees as the Government may from time to time determine, to assist the vigilance Commissioner in the discharge of his functions, [rule 3 (3)]. The secretary and other Officers and employees of the Vigilance Commission shall be appointed by the Government in consultation with the vigilance Commissioner [rule 3 (4) ]. The Vigilance Commission shall have jurisdiction and powers in respect of matters to which the executive powers of the State extends (Rule 4 ). The Commission may undertake, among other things, any complaint of corruption, misconduct, lack of integrity or any other kind of malpractice on the part of the Government Servant [rule 4 (a) (b)]. The Vigilance Commission shall have jurisdiction and powers in respect of matters to which the executive powers of the State extends (Rule 4 ). The Commission may undertake, among other things, any complaint of corruption, misconduct, lack of integrity or any other kind of malpractice on the part of the Government Servant [rule 4 (a) (b)]. After considering the report of any such investigation the Vigilance Commissioner may ;" (A) advice the appropriate authority to prosecute the government Servant concerned : or (b) advice the appropriate authority to take disciplinary proceedings against the Government Servant concerned; or (c) advice the appropriate authority that no action may be taken against the Government Servant concerned [rule 4 (2)]. ( 10 ) THE Vigilance Commission constituted under the aforesaid Rules has inherited the officers and other employees of the Lokayukta constituted under the karnataka Lokayukta (Second Ordinance) 1979 and the Vigilance Commission constituted by the Karnataka State Vigilance commission Rules 1965. R. 8 (2) of the Karnataka State Vigilance Commission Rules, 1980 provides :"not withstanding anything contained in Rule 3, initially the staff of the Vigilance Commission shall consist of the posts of secretary and other officers and employees of the aforesaid Lokayukta immediately before the commencement of these rules and appointment to the said posts is hereby made by the transfer of the Secretary and other officers and emloyees of the said Lokayukta holding corresponding posts. The salary, allowance and other terms and conditions of service of the said secretary, Officer and other employees shall, until it is varied. be the same as to which they were entitled to immediately before the date of commencement of these rules ". It is seen from this R. 8 (2) that the initial staff of the Vigilance Commission shall consist of the Post of secrotary and other officers and employees of the Karnataka Lokayukta. Again going back it will be seen that prior to 1965 there was only a Directorate of Anti-Corruption with the officers from the Karnataka Police force. By order No. GAD 45 CAC 65 dated June 26, 1965 the Government approved the scheme for setting up vigilance Commission with the staff of the Directorate of Anti-Corruption excluding those of the Inspection branch. In 1979, the Lokayukta was constituted by promulgating the Karnataka Lokayukta (2nd) Ordinance, 1979. By order No. GAD 45 CAC 65 dated June 26, 1965 the Government approved the scheme for setting up vigilance Commission with the staff of the Directorate of Anti-Corruption excluding those of the Inspection branch. In 1979, the Lokayukta was constituted by promulgating the Karnataka Lokayukta (2nd) Ordinance, 1979. By order No: DPAR 32 KLU 79, bangalore, dated January 18, 1980, the government accorded sanction to the transfer of the Officer of that Vigilance Commission to the Lokayukta organisation, When the Lokayukta could not be continued due to the lapse of the said ordinance and without a corresponding Act, its establishment with the Officers including the Police Officers was transferred to the Vigilance Commission constituted under the Karnataka State vigilance Commission Rules, 1980. ( 11 ) THE posts of Police Officers in various cadres transferred to the present Vigilance Commission from the Lokayukta do not form a separate cadre, but always have been in the cadre strength of the State Police force. We really do not need to look at anything else in this regard except the order by which such officers were transferred and posted. We may refer to one such order. Mr. H. M. Mariswamy who investigated the case and filed the chargesheet against the appellant in W. A. No ; 344/83 was a Police Inspector in the State Police Force. He was promoted as Deputy Superintendent of Police and then posted in the public interest, as Deputy Superintendent of police in the Vigilance commission. The relevant extract of the order made by the Inspector general of Police runs as follows -"no. CB4/300/80-81 office of the Inspector Genl. of Police, karnataka State, Bangalore, dated, 19-12-1980. MEMO sub : Transfer and postings of Deputy supdt. of Police. Ref: 1. Govt. Notification No. HD. 229 PEG. 80 (1) dated 12-12-1980 ; 2. Govt. Notification No. HD 229 PEG 80 (2) dated 12-12-1980 promoting Police Inspectors as Dy. Supdts. of Police (Copy of Notifications (1) and (2) dated 12-12-1980 are enclosed ). The transfers and postings of the following : Deputy Superintendents of Police are ordered with immediate effect, in the interest of public service. SI. NO. Name from to remarks 1 to 31 32 xx h. M. Mari-swamy PI/svc, B'lore. XX on promotion as DSP xx dsp Bor/ SVC, b'lore. i xx vice Sri. The transfers and postings of the following : Deputy Superintendents of Police are ordered with immediate effect, in the interest of public service. SI. NO. Name from to remarks 1 to 31 32 xx h. M. Mari-swamy PI/svc, B'lore. XX on promotion as DSP xx dsp Bor/ SVC, b'lore. i xx vice Sri. H. R. Belaga-li Pro-moted as S. P. Note: The Unit Officers will arrange to relieve the Deputy superintendents of Police forthwith with instructions to report at their places of postings immediately. No representations will be entertained on these transfers. The c. T. Cs for handing and taking over charge should be sent immediately. (Sd.) G. V. Rao, inspector General of Police. "the Officers who filed reports against the other appellants were likewise transferred and posted in the Vigilance Commission. All of them are occupying the posts similar to those which they are entitled to in their parent department. ( 12 ) IT may not be correct to contend that the police Officers upon transfer from their parent department to the Vigilance Commission would not continue to be police officers. Our meticulous methods of construction should not cloud the issue or should not lead us astray. It is immaterial where those Officers are posted and under whom they are asked to work. We must only take into account the nature of duties and the kind of powers which the Code enables them to perform or exercise, and not under whom they are asked to work. So long as such powers and duties remain unaltered, they must be held to be police Officers. Any conclusion to the contrary, in our opinion, would be non-sequitur. It will be seen that the nature of the investigative powers exercisable by the Police Officers of the vigilance Commission are not in any way different from the powers of an officer-in-charge of a Police Station under the Code. S. 2 (S) defines 'police Station' to mean 'any post or place declared, generally or specially by the State Government, to be a police Station, and includes any local area specified by the local Government in this behalf. In exercise of the powers conferred by s. 2 (a) the Government issued a notification dated June 2, 1981 declaring the places mentioned in column (1) thereunder as 'police Stations'. By reason of this notification the said officers became the Officers-in-charge of the Police Stations. In exercise of the powers conferred by s. 2 (a) the Government issued a notification dated June 2, 1981 declaring the places mentioned in column (1) thereunder as 'police Stations'. By reason of this notification the said officers became the Officers-in-charge of the Police Stations. They could, therefore, exercise, all the powers located under Ch. XII of the Code in relation to offences which they are empowered to investigate. Moreover, they continue to be the members of the 'police Force' as envisaged under S. 2 (16) of the Karna- taka Police Act, 1963. They therefore, fall even within the narrow view supported by the decision of the Patna High Court in Radhakishan marvari's case. ( 13 ) IT is admitted that the Officers who investigated the Offences alleged against the appellants were the officers in-charge of the respective police stations specified under the and notification. It may be that police officrrs have power to investigate only specified offences like corruption or any other malpractice on the part of the Government servants and they may not have the duty to maintain law and order. They may not have the power to investigate the offences under the general law, But then, as observed by the supreme Court in Raja Ram Jaiswal v. State of Bihar, (A. I. R. 1964 S. C. 828 at 833) it is not the totality of the powers which in Officer enjoys would be definite in the matter. In that case, it was observed : "in our judgment, what is pertinent to bear in mind for the purpose of determining as to who can be regarded a 'police Officer' for the purpose of this provision is not the locality of the powers which an officer enjoys but the kind of powers which the law enables him to exercise". Even within one police station it is not uncommon to find several officers charged with different duties like the officer for law and order, the Officer for crimes investigation and the Officer for traffic regulations. But when any one of them becomes an officer in charge of a police station or an Officer superior in rank, he automatically gets the powers under Chapter XII of the Code. But when any one of them becomes an officer in charge of a police station or an Officer superior in rank, he automatically gets the powers under Chapter XII of the Code. We are, therefore, of the opinion that the Police Officers of the Vigilance commission in view of the Government Notification dated June 2, 1981 are not any less Police Officers for the purpose of S. 190 (l) (b) of the code. ( 14 ) THE decision of the Supreme Court in Rajaram Jaiswal case would further dispel the doubts, if anv, in the matter. Therein the question arose whether the Inspectors and sub-Inspectors of Excise under the bihar and Orissa Excise Act with powers to arrest, investigate and obtain statements with a view to facilitate the investigation of the offences under the Excise act would be considered as Police Officers and whether the confession made to them would be relevant under S. 25 of the Evidence Act. S. 25 of the Evidence Act provides, that no confession made to a Police officer shall be proved as against the person accused of any offence. There a confession was made by a person to Excise Officer and not to a Police officer in the sense that he did not belong to the Police Force or Police establishment. But under S. 78 (3) of the Bihar and Orissa Excise Act, 1915 an Excise Officer empowered under S. 17 of that Act was deemed to be an officer in charge of a Police station with respect to the area to which his appointment as Excise officer extends. Considering the scope and effect of that notification and the power conferred on the Excise Inspectors, the Supreme Court observed at page 832, para-10:"it would thus follows that an excise Inspector or Sub-Inspector in the State of Bihar shall be deemed to be an Officer incharge of a police station with respect to the area to which he is appointed and is in that capacity entitled to investigate any offence under the excise Act within that area without the order of a Magistrate. Thus he can exercise all the powers which an officer in charge of a police station can exercise under chapter XIV of the Code of Criminal Procedure. . . . . . . . . . . . . . . Thus he can exercise all the powers which an officer in charge of a police station can exercise under chapter XIV of the Code of Criminal Procedure. . . . . . . . . . . . . . . No doubt unlike an officer in charge of a police station he is not charged with the duty of the maintenance of law and order nor can he exercise the powers of such Officer with respect to offences under the general law or under any other special laws. But all the same, in so far as offences under the excise Act are concerned, there is no distinction whatsoever in the nature of the powers he exercises and those which a police officer exercises in relation to offences which it is his duty to prevent and bring to light. It would be logical, therefore, to hold that a confession recorded by him during an investigation into an excise offence cannot reasonably be regarded as anything different from a confession to a Police Officer. " ( 15 ) IN the result and for the reasons stated above, these appeals fail and are dismissed with costs. Advocate's fee Rs. 500 one set. --- *** --- .