G. Parameswaran Nair v. State Of Kerala — 1990 DIGILAW 231 (KER)

Judgment :- Appellant is the accused in C.C. 13 of 1987 of the Court of Enquiry Commissioner and Special Judge, Trivandrum. Accused challenges the conviction and sentence entered against him by the Special Judge. 2. The Special Judge held that in respect of transactions 5 to 11 there is absolutely no acceptable evidence. With regard to items 1 to 4 the Special Judge held that the prosecution has succeeded in establishing its case against the accused. 3. Appellant raised three contentions before this Court. His first contention is that Special Judge had no jurisdiction to try the case as when the Court framed charge on 18-1-1984 the accused was not a Government servant as he had already retired from service. Accused retired from service on 30-4-1983. The Court framed charge on 18-1-1984. The prosecution case is that the accused misappropriated Rupees 9,781.60 during 21-3-1978 to 23-3-1978. Admittedly during that period accused was a Government servant and as the offences were committed by him as a Government servant there is no merit in the contention that the Special Judge had no jurisdiction to try the case. If the argument of the appellant's counsel is accepted, it will lead to ridiculous result. It may be then open to a Government servant to misappropriate any amount on a day prior to his retirement and take up the stand that no action can be taken against him under the Prevention of Corruption Act. Merely because the charge as framed only after his retirement the accused cannot contend that the Special Judge had no jurisdiction to try him. As investigation preceded the framing of the charge and as the accused happened to retire at a time prior to the charge it is not possible to hold that he Court lacked jurisdiction to try him under the Act. 4. The second contention is that under S. 17(c) of the Act the investigation has to be done by a Deputy Superintendent of Police or a police officer of equivalent ranks and as the investigation was not so done the consequent trial is vitiated. 4. The second contention is that under S. 17(c) of the Act the investigation has to be done by a Deputy Superintendent of Police or a police officer of equivalent ranks and as the investigation was not so done the consequent trial is vitiated. First proviso to S. 17 states that a police officer not below the rank of an Inspector of Police can be authorised by the State Government by general or special order to investigate any offence under the Act even without the order of a Metropolitan Magistrate or a Magistrate of the First Class, as the case may be, or make any arrest therefor without a warrant. S. 17(c) postulates investigation by a Deputy Superintendent of Police or a police officer of equivalent rank. But the investigation can be done by a police officer below that rank if it is ordered by a Matropolitan Magistrate or a Magistrate of the First Class. The first proviso enables the Government also to order investigation by an officer not below the rank of an Inspector of Police even without Magistrate's order. The Government can do so either by a special order or by general order. The learned Public Prosecutor invited my attention to the Government Notification No. 43837/F4/65/Home dated 12-9-1966 which shows that in exercise of the powers conferred by the first proviso to sub-sec. (1) of S. 5A of the Prevention of Corruption Act, 1947 the Government authorised police officers not below the rank of Inspector of Police to investigate any offence punishable under S. 161, 165 or 165A of the I.P.C. or under S. 5 of the P.C. Act, 1947 without the order of a Magistrate of the First Class or to make any arrest therefor without a warrant within the area of jurisdiction of the particular Police Station to which the police officer is attached for purpose of investigation provided that an offence referred to in Clause (e) of sub-sec. (1) of S. 5 of the Act shall not be investigated without the order of a police officer not below the rank of a Superintendent of Police. In view of the above notification, there is no merit in the contention of the accused that the investigation being not done by a Deputy Superintendent of Police or any other officer of equivalent rank the trial is vitiated. 5. In view of the above notification, there is no merit in the contention of the accused that the investigation being not done by a Deputy Superintendent of Police or any other officer of equivalent rank the trial is vitiated. 5. The third contention is that in view of S. 219 of the Cr.P.C. the trial of four items of offences against the accused was bad. S. 219(1) provides that when a person is accused of more offences than one of the same kind committed within the space of twelve months from the first to the last of such offences, whether in respect of the same person or not, he may be charged with, and tried at one trial for any number of them not exceeding three. In view of S. 23 of the Prevention of Corruption Act, 1988 such a contention is not tenable. This section corresponds to S. 6A of the Prevention of Corruption Act, 1947. S. 23 provides that when an accused person is charged with an offence under Cl. (c) of sub-sec. (1) of S. 13, it shall be sufficient to describe in the charge the property in respect of which the offence is alleged to have been committed and the date between which the offence is alleged to have been committed, without specifying particular items or exact dates. According to the proviso, the time included between the first and last of such dates shall not exceed one year. This section removes the restriction under S. 219 of the Cr.P.C. prescribing that only three offences of the same kind within a year may be charged together. Provisions of S. 212 of the Cr.P.C. are analogous to the provisions of S. 23 of the P.C. Act. Even under the P.C. Act, 1947 the position is not in any way different. S. 13 of the present Act (P.C. Act, 1988) corresponds to S. 5 of the old Act with amendments. S. 13(1)(c) of the present Act is verbatim same as S. 5(1)(c) of the previous Act. Contention of the accused that there has been an infraction of S. 219 of the Cr.P.C. and on that score he is entitled to be acquitted is untenable as the restriction under the section that only three offences of the same kind within a year may be charged is removed by S. 23 of the Prevention of Corruption Act, 1988. Contention of the accused that there has been an infraction of S. 219 of the Cr.P.C. and on that score he is entitled to be acquitted is untenable as the restriction under the section that only three offences of the same kind within a year may be charged is removed by S. 23 of the Prevention of Corruption Act, 1988. Prevention of Corruption Act being a self-contained Code the action taken under that Act cannot be challenged on the ground that there was infringement on the provisions of the Criminal Procedure Code especially when S. 23 contains the non obstante clause. 6. On the factual finding of the Court below counsel for the appellant did not address any arguments. There is no merit in the appeal. Appeal is dismissed. Appeal dismissed.