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Madhya Pradesh High Court · body

1999 DIGILAW 615 (MP)

MAHAVIR PRASAD SHRIVASTAVA v. STATE OF M. P.

1999-08-19

R.P.GUPTA

body1999
R. P. GUPTA, J. ( 1 ) THE petitioner is being prosecuted for an offence punishable under Section 13 (1) (e) r/w 13 (2) of the Prevention of Corruption Act, 1988 in Special Case No. 22/97 before the Special Judge, Jabalpur. The Special Judge vide impugned order dated 15-12-1998 directed framing of charge under those provisions and have actually framed charges under those provisions alleging that the petitioner in his public capacity as Superintending Engineer, Madhya Pradesh Electricity Board possessed assets amounting to Rs. 4,02,037. 10 disproportionate to his known source of income during the period March 1965 to December, 1993. ( 2 ) THE petitioner approaches this Court in revisional jurisdiction with two-fold assertion; (i) that section 17 proviso 2 requires pre- authorization by Superintendent of Police to investigate into offence punishable under Section 13 (1) (e) r/w 13 (2) of the Act. It is urged in this case although there purports to be such an authorization dated 19-1-1993 by S. P. , Special Police Establishment Office, it is only a mechanical authorization by filling in blanks the names of this accused and the rest is the mere typed order or it may have been even cyclostyled and there was no application of mind. For this one pronouncement of the Supreme Court in case of State of Haryana v. Bhajanlal cited at AIR 1992 SC 604 : (1992 Cri LJ 527) and a judgment of single Bench of this Court of Gwalior Bench in Cr. R. 1983/96 titled Jagdish Prasad Gupta v. State of M. P. decided on 6-1-1977 are relied upon, (ii) the second leg of the argument is regarding merits that there is no prima facie inference that the accused was possessed of assets disproportionate to his known source of income as the assets in the names of the family members have also been included which should not have been included without reason. ( 3 ) AS regard the first objection : Section 17 of the P. C. Act is in following terms :"17. ( 3 ) AS regard the first objection : Section 17 of the P. C. Act is in following terms :"17. Persons authorised to investigate.- Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), no police officer below the rank,- (A) in the case of Delhi Police Establishment, of an Inspector of Police; (B) in the metropolitan areas of Bombay, Calcutta, Madras and Ahmedabad and in any other metropolitan area notified as such under sub-section (1) of Sec. 8 of the Code of Criminal Procedure, 1973 (2 of 1974), of an Assistant Commissioner of Police; (C) elsewhere, of a Deputy Superintendent of Police or a Police Officer of equivalent rank, shall investigate any offence punishable under this Act, 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 :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 Metropolitan 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 Cl. (e) of sub-section (1) of Sec. 13 shall not be investigated without the order of a police officer not below the rank of a Superintendent of Police. " ( 4 ) THE judgment in the case of Bhajanlal (1992 Cri LJ 527) (SC) turned on the point whether an order given by the Magistrate under proviso one, in favour of an officer who was not ordinarily empowered to investigate under the main section, without giving reason, and, as it appeared, without application of mind and mechanically, could be said to be proper authorization in favour of the lower rank officer i. e. a sub-inspector. The Supreme Court said the policy in the section provides that the officer of a particular higher rank should investigate ordinarily. The Magistrate could authorise investigation by lower rank officer, but, it should be implicitly understood that such authorization by the Magistrate should be for good reason and not mechanically merely because of a prayer of that type has been made, he should authorize a lower rank officer. The Magistrate could authorise investigation by lower rank officer, but, it should be implicitly understood that such authorization by the Magistrate should be for good reason and not mechanically merely because of a prayer of that type has been made, he should authorize a lower rank officer. In that case the Magistrate had simply written a word "investigate". That was found bad and illegal. All the observations made have to be understood in that light. ( 5 ) THAT judgment was never concerned with the authorization or non-authorization by S. P. under the second proviso. The reference to the case at para 129 of the judgment pertains to authorization which amounted to no authorization. ( 6 ) THE single Bench of this Court at Gwalior was concerned with facts and circumstances of the case before it singularly and cannot be said to be laying down a general law that in every case when an order of authorization to investigate is passed, the name of the S. P. , name of the accused and the name of the investigating officer are filled in blanks and otherwise the order is speaking, is no order in the eye of law. That is never the intention of the judgment nor of the law. There is no special mechanism or form of an order by the S. P. authorizing investigation for offence under Section 13 (1) (e) anywhere mentioned. We have to understand this second proviso in this light that at that stage when the investigation is being authorized the full facts are not before the S. P. The allegations are there. The necessity of authorization by a S. P. according to this proviso arose because it has been thought in the public interest and in the interest of the concerned public servant that at least a responsible officer of the rank of S. P. should authorize investigation and it should not start otherwise. The S. P. is not required to write a judgment or a reasoned order. He is to satisfy himself that it is necessary to investigate, but, he need not record the reason of that satisfaction. ( 7 ) THE order is before this Court. The S. P. is not required to write a judgment or a reasoned order. He is to satisfy himself that it is necessary to investigate, but, he need not record the reason of that satisfaction. ( 7 ) THE order is before this Court. This Court has looked into the order of the S. P. In this case prima facie purpose at the stage of charge, the trial Court was justified in accepting it as a proper authorization and holding that the investigation was not without authorization as required under the second proviso to Section 17. Of course it will be open to the accused during the stage of trial to examine or cross-examine the S. P. as to whether actually he granted this authorization in accordance with all the requirements of law. But, that sort of a trial, of validity of such authorisation, cannot be allowed to be entered into at pre-charge stage. This Court finds no infirmity in the order of the trial Court on that account. ( 8 ) AS regards the merits, the trial Court had considered all the materials for prima facie purposes and also considered in detail the assertions of the accused. The prosecution allegations were that there were dis-proportionate assets to the tune of more than Rs. 5 lac. On prima facie consideration of the material and going through the documents the Special Judge noticed that the extent of disproportion in the assets was not more than Rs. 4 lacs and a few thousands as per the charge-sheet. So the trial Court has certainly looked into all the details. ( 9 ) AT the charge stage, the trial Court is to go by the material on record to see if there is ground to proceed against the accused. The accused is entitled to show his source of income and legal accusation of all his assets, during the trial. He may be able to show that certain assets in the name of his son are not Benami or are the result of toil of his son, although the prosecution may be alleging that he is in fact the source of those assets. All these are matters of trial in a charge under Section 13 (1) (e) of the Act. There is no scope for interference in the impugned order. The revision petition is dismissed. Revision dismissed. .