JUDGMENT 1. - This is an appeal against the judgment of Special Judge (Anti corruption Cases), Kota, dated May 18, 1981, convicting the accused-appellant for offence under S. 161 Indian Penal Code and S. 5(l)(d) read with S. (2) of the Prevention of Corruption Act (hereinafter referred to as "the Act"), and sentencing him to one year's rigorous imprisonment and a fine of Rs. 100/- on each of the count. In default of payment of fine the appellant was directed to further undergo two months' simple imprisonment. 2. Brief facts leading to this appeal are that on March 2, 1979 at 11.50 a.m. PW 1 Shankerlal (hereinafter referred to as "the decoy"), went to the office of the Anti Corruption Department, Kota and made an oral report to PW. 6, H.P. Katara, Circle Inspector, who reduced the same in writing. He reported that he is suffering from T. B. for last 3 months and came to Kota for treatment. He was directed to go to X-ray department for chest X-ray by the Doctor in T.B. Clinic. His x-ray was taken at about 11.00 in the morning. He asked the concerned person (Babu) as to when he will get the report who replied that bring some money for tea etc. (Chai-pani). The decoy was accompanied with Anil Kumar who told Babu that he is a poor man but he repeated that in case he arranges money for tea etc. he will get the report soon otherwise it will take 3-4 days. He demanded Rs. 20/- by 12.00 or 1.00 in the noon. Since the complainant was not willing to pay the money and wanted him to be trapped reported the matter. This report was taken down in writing by Shri Katara who verified the same and recorded that a case for demand of the bribe is made out, hence trap is being arranged. At 12.00 noon a memo was given to Devi Sahai constable for calling motbirs, who were brought from the office of Panchayat Samiti and Co-operative Society and they are Teekamlal Goswani and Khundilal Bairwa respectively. By 12.10 they were informed about the trap. At 12.15 demonstration of use of phenolphthalein powder was given and at 12.30 memorandum about sprinkling of phenolphthalein powder on the currency notes was prepared. By 12.10 they were informed about the trap. At 12.15 demonstration of use of phenolphthalein powder was given and at 12.30 memorandum about sprinkling of phenolphthalein powder on the currency notes was prepared. At 12.35 the party left for laying down the trap and at 12.45 the trap was laid and currency notes recovered. One composite document Ex. P. 1 was prepared which is termed as F.I.R. along with various other documents like Ex. P. 2, memo of supardgi currency notes. Ex. P.3, memo about washing of the hands, Ex. P. 4, memo of recovery of currency notes, Ex. P. 5, memo of washing of pent pocket, Ex. P. 6, memo about demonstration of phenolphthalein powder, Ex. P. 7, memo of arrest and other documents. Shri Katara also recorded the statements of the witnesses under S. 161 Criminal Procedure Code and sent the papers for sanction to the Director, Medical and Health Services, Jaipur. After receipt of the sanction, charge-sheet was submitted in the court of Special Judge, Anti corruption Cases, Kota by the Addl. Superintendent of Police, Anti-corruption Department, Kota. Charge was read over to the accused for offences under S. 161 Indian Penal Code and S. 5,1) (d) read with S. 5(2) of the Act and on denial by the accused who claimed to be tried, the prosecution examined six witnesses in support of its case. Accused gave an explanation that he has been falsely implicated in the case at the instance of Anil Kumar PW. 4 and he examined two witnesses in his defence. The learned trial court accepted the prosecution story in part and convicted and sentenced the accused-appellant as indicated above. Aggrieved by the same this appeal has been preferred. 3. Shri P. K. Sharma, learned counsel for the appellant submitted that in this case there is serious prejudice caused to the appellant in as much as even the investigation in the case is most unfair. The submission of the learned counsel is that according to S. 5A of the Act the legislature has laid down the procedure of investigation and no office below the rank of Dy. S.P. of police is authorised to investigate into and fence punishable under S. 161 Indian Penal Code or under S. 5 (2) of the Act. He submitted that Shri H.P. Katara was admittedly not Dy. S.P. He was only a Circle Inspector according to his own statement. S.P. of police is authorised to investigate into and fence punishable under S. 161 Indian Penal Code or under S. 5 (2) of the Act. He submitted that Shri H.P. Katara was admittedly not Dy. S.P. He was only a Circle Inspector according to his own statement. It is submitted that in his enthusiasm to make out a case he acted in hot haste and has not even taken down the report in writing. What Shankerlal deposed before him he has written on a separate piece of paper which is a composite document prepared subsequently, which he has termed as F.I.R. Ex. P.1. Taking down of this report on the same paper which was prepared after completion of the trap and arrest of the accused in the same writing, with same pen and having same strokes, clearly suggests that he has anti- timed report Ex. P.1. It is also important to note in this case that even the name of the accused was not disclosed in Ex. P.I and none knew who is to be trapped till the actual trap was laid down. The only word written in the entire report is 'Canteen Vale Baboo which necessarily cannot relate to the accused appellant. Unless the investigating officer first investigated and verified as to which person has demanded the bribe how he knew who is to be trapped. It is then contended that even time, date and place of acceptance was not mentioned. It is then contended that the whole case is made out at the behest of one Anil Kumar who was running a Tea-stall outside the T.B. Sanitariam and it was being removed from there. The next submission of the learned counsel is that the statement of decoy is not at all convincing in as much as he has refiled from own examination-in-chief in his cross-examination and has denied the demand by the accused -appellant. It is submitted that decoy has been filed an affidavit contradicting the story which shows that he is a man of easy virtues. It is also submitted the findings of the trial court are not based on intelligent reading of the record and proper appreciation of the evidence. 4. It is submitted that decoy has been filed an affidavit contradicting the story which shows that he is a man of easy virtues. It is also submitted the findings of the trial court are not based on intelligent reading of the record and proper appreciation of the evidence. 4. The learned Public Prosecutor supports the judgment of the trial court and submits that unless it is shown that prejudice has been caused, conviction cannot be set aside merely on the ground that a person not authorised by law has investigated into the case. He has submitted in the instant case the statement of Anil Kumar is of great importance which is corroborated by the F. I. R. as well as the statement of the decoy. It is also submitted that there is no warrant for disbelieving the testimony of motbirs PW. 2 Teekamlal and PW. 3 Phundilal. 5. I have given my earnest consideration to the rival contentions and have perused the entire record. 6. Before coming to the merits of the case I will deal with the question of fair investigation into the case. Investigating Officer Shri H.P. Katara PW. 6 has stated that he was posted on 2nd March, 1979. as Inspector, Anti corruption Department, Kota when the decoy Shankerlal PW.1 accompanied with Anil Kumar PW. 4, came to his office and gave an oral report which he had taken down as Ex.P. 1. He read out the same report to Shanker Lal who has signed it at A to B and he himself signed it at G to H and I to J and got it also signed by Anil Kumar at E to F. Nowhere in his statement he has stated that he had made any effort to take the decoy to the Addl S P. Anti corruption Deptt., Kota or the Dy. S.P. He also does not say that he himself proceeded to take down the report and proceeded for trap as his superior officers were not available in police station at that point of time or that they were not available for the said purpose. He has also not stated in the statement that there was no time left with him for obtaining the sanction of the Magistrate for investigating into the case As document Ex. He has also not stated in the statement that there was no time left with him for obtaining the sanction of the Magistrate for investigating into the case As document Ex. P.1 shows he has taken upon the task, himself from the very beginning and his over enthusiasm is facie borne out from a bare perusal of this document which runs in as many as six full scape pages. There is one thing interesting to note in this document that these pages have been torn out from some register as they are paged as numbered 6, 7 and 8 at their top and, therefore, obviously Ex. P.1 recorded at 11.50 a.m. could not have been recorded in a manner required by law. A bare look on this document shows that from beginning to end it has been prepared at one time and obviously earlier part of it is anti-timed. In enthusiasm in preparing this document it appears that the investigating officer even did not care to find out the name of the person who was demanding the bribe nor his description. The perusal of Ex. P.1 makes it absolutely clear that it is silent and vague as to who was the person against whom the trap was to be laid. Even Anil Kumar Shrivastava who was knowing the accused from before, had signed this document, yet conspicuously the name of the accused is missing. It appears that this all happened because the investigating officer in enthusiasm at the end when he prepared this document he remained unmindful of the entire facts as the other documents has already been prepared. Ex. P.2 memo of supardgi of currency notes has mentioned about X-ray Technician of the T.B. Clinic which is not phraseology used in Ex. P.1. As against this Shanker Lal PW.1 has named the accused as Premsukh from the very beginning and PW. 4 Anil Kumar has categorically stated that he knew the accused Prem Sukhdas who was X-ray Technician in M.B.S. Hospital, Kota. There is yet another factor and that is that no effort was made to get it verified first from the accused before laying the trap by the decoy as to whether he is still intending to accepting the illegal gratification and if at all for whom. There is yet another factor and that is that no effort was made to get it verified first from the accused before laying the trap by the decoy as to whether he is still intending to accepting the illegal gratification and if at all for whom. Because the case developed at trial is that five rupees out of the amount paid to Prem Sukh accused was given to Doctor Mathur who was Doctor In-charge of the X-ray. It is borne out from the cross examination of PW. 4 Anil Kumar Shrivastava who was throughout with the decoy that he handed over two currency notes of Rs. 10/- each to Shri Prem Sukhdas and the accused returned Rs. 5/- to the decoy who passed over five rupees to Dr. D.N. Mathur and immediately then the C.I. and the trapping party entered the office. PW. 1 Shanker Lal also states to the effect that he paid Rs. 5/- to Dr. D. N. Mathur but according to him he paid the money from his own pocket but at the instance of the accused-appellant. H. P. Katara PW. 6 has admitted in his cross examination that he could not even pay Rs. 5/- though it was told to him by Shanker Lal that Shankerlal had retained Rs. 15/- and refunded Rs. 5/- to him for onward payment to Dr. Mathur which he paid. He has also admitted that he had taken the bail of Dr. Mathur and he did not proceed against him because the Addl. I G.P. did not consider it proper. This means that the story was something else which has not been correctly investigated and brought forward. Had Shri Katara passed investigation of the case immediately after trap to the authority competent under the law possibly blurred area could not have been left on record. For what reasons he decided by himself to investigate the case is not known from the record but suffice it to say that he ought not to have done so unless he had obtained permission of the competent Magistrate as contemplated by proviso to sub-s. (1) (d) of S. 5A of the Act. For what reasons he decided by himself to investigate the case is not known from the record but suffice it to say that he ought not to have done so unless he had obtained permission of the competent Magistrate as contemplated by proviso to sub-s. (1) (d) of S. 5A of the Act. Relevant portion of S. 5A of the Act reads as under : "5-A. Investigation into cases under this Act - (l) 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 (d) elsewhere, of a Deputy Superintendent of Police. shall investigate any offence punishable under S. 161, 165 or S. 165-A of the Indian Penal Code or under S. 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-s. (1) of S. 5 shall not be investigated without the order of a police officer not below the rank of a Superintendent of Police". 7. Their Lordships of the Supreme Court in A. R. Antule v. R. S. Nayak, AIR 1984 S.C. 718 considered the leading case of H.N. Rishid and Inder Singh v. State of Delhi, AIR 1955 SC 196 , and held that section 5-A of the Act of 1947 is a safeguard against investigation of offences committed by public servants, by petty or lower rank police officer. It has nothing to do directly or indirectly with the mode and method of taking cognizance of offences by the court of Special Judge. It has nothing to do directly or indirectly with the mode and method of taking cognizance of offences by the court of Special Judge. Thus, provision of S. 5A is not a condition precedent to initiation of proceedings before the Special Judge who acquires power under S. 8(l) to take cognizance of offences, but at the same time held considering the observations in Rishid's case that this observation will leave no room for doubt that safeguard incorporated in S. 5-A is one against investigation by police officer of a rank lower than the designated rank and further that so far as investigation of a case is concerned this court has recorded a definite opinion that investigation by a police officer in contravention of the provisions contained in S. 5A bears the stamps of illegality. Their Lordships considered the various stages and considering that case held that though it cannot be said that the entire proceedings taken by the learned Special Judge are illegal but at the same time this court is free to consider as to whether an illegal investigation done has caused prejudice to the case of the appellant or not and I have no hesitation in holding that in the circumstances of this case the prejudice is writ large inasmuch as from stage of recording of the initial document till the arrest and release of the Doctor, the story of the prosecution is self-contradictory and inconsistent. 8. There is yet another aspect of looking the entire case and that is that a rustic villager who was sick and had come from a village has been made a scape goat by Anil Kumar Shrivastava PW. 4 in getting a trap made against the accused-appellant Premsukh for some internal dispute interse them. Anil Kumar's role in the entire case is of extremely duvious. He was running a Tea-stall outside the T. B. Sanitariam which has been closed for last few days prior to the incident as it was unauthorised. He is not known to the decoy from before but yet helps him out and for that purpose also one can understand that a kind hearted person may lend assistance to a villager who comes for treatment to the city. But advancing money on loan for the purpose of giving money as illegal gratification is something which cannot be easily digested. But advancing money on loan for the purpose of giving money as illegal gratification is something which cannot be easily digested. Evasive answers have been given by Anil Kumar Shrivastava in cross-examination and so far as the decoy is concerned he has made a fool of himself in as much as he was asked to furnish an affidavit subsequently supporting the accused and he even did know what are the contents of the affidavit. His innocence about the entire matter is brought out in court questions when he makes a candid statement that he cannot say which of the fact is correct about demand of bribe He was absolutely unable to explain any circumstance supporting the prosecution in questions posed by the learned Special Judge and in my humble opinion he was not making a false statement but was making a frank and candid submission as he did not understand the implication with which he was faced. In this eventuality it was also important that this case ought to have been investigated independently by a senior officer as contemplated by S. 5-A of the Act. It is surprising that except for filing the charge-sheet Addl. S. P. has not been associated with the case and for reasons best known the Addl. S. P. did not appear in the witness-box. I have already mentioned above that demand is not corroborated by the recovery and other circumstances inasmuch as according to the statement of P. W. 6 H. P. Katara the Doctor was also shown to be implicated as an accused in the case which has been dropped at the instance of Addl. I. G. P. Looking the case from any angle I am not convinced with the case as placed before the court by the prosecution and am inclined to extend benefit of doubt to the accused-appellant. 9. The result is that the appeal is allowed. The conviction of the accused- appellant is set aside and he is granted benefit of doubt. He is acquitted of the charge under S. 161 Indian Penal Code and S. 5 (1) (d) read with S. 5 (2) of the Act. He is on bail and need not surrender to the bail bonds. The bail bonds are discharged.Appeal allowed. *******