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2001 DIGILAW 559 (KAR)

VASANT ARJUNRAO BHANDAK v. STATE OF KARNATAKA

2001-07-19

MOHAMED ANWAR

body2001
MOHAMED ANWAR, J. ( 1 ) ON being charge-sheeted by the respondent-police, the petitioner is being prosecuted in the Court of Principal Sessions Judge in Special case No. 22 of 1994 for the offences punishable under Sections 7 and 13 (1) (d) read with Section 13 (2) of the Prevention of Corruption Act, 1988 (for short the 'act of 1988' ). During the pendency of the proceeding, petitioner filed an application i. e. , I. A. II under Sections 3, 4 and 17 of the Act of 1988, read with Sections 173, 190 and 216 of the Criminal procedure Code praying to discharge him, on the grounds that the learned Trial Judge had no jurisdiction to entertain and try the case against him since the learned Judge was not duly appointed as a Special judge under Section 3 of the Act and also because the Investigating officer who filed the charge-sheet was not duly authorised under Section 17 thereof to investigate the case and challan the accused. On hearing both sides, the learned Trial Judge rejected the petitioner's said I. A. II by his considered and speaking order dated 25-10-2000 impugned herein. ( 2 ) LEARNED Additional State Public Prosecutor representing the respondent state, has produced the Government Notification No. HD 236 peg 97, dated 20-8-1997 issued under Section 17 of the Act of 1988 authorising all the Inspectors of Police attached to the Office of Karnataka lokayuktha meeting for the requirement of the first proviso to section 17, subject to the general and overall control and supervision by the Lokayuktha or Upalokayuktha, as the case may be. Another State government Notification dated 19-11-1981 was also produced by him in s. C. No. 3754, which was issued in exercise of the powers conferred by section 6 of the Criminal Law Amendment Act, 1952 (Central Act 46 of 1952) appointing the Sessions Judge in the State of Karnataka, specified in column (2) of the Table below as Special Judges for the areas specified in the corresponding entry of column (3) of that table. ( 3 ) ACCORDING to the said notification table, the Principal District and sessions Judge, Belgaum, has been appointed as a Special Judge for belgaum District. The Act of 1988 which came into force with effect from 9th September, 1988. ( 3 ) ACCORDING to the said notification table, the Principal District and sessions Judge, Belgaum, has been appointed as a Special Judge for belgaum District. The Act of 1988 which came into force with effect from 9th September, 1988. Section 3 thereof contemplates the need and mode of appointment of Special Judge for the purpose of trial of offences under the Act. The point which now calls for determination is whether the said notification dated 19-11-1981 by which the Principal District and Sessions judge, Belgaum, was appointed as the Special Judge for Belgaum district in exercise of the powers under Section 6 of the Criminal Law amendment Act, 1952 (Central Act 46 of 1952) holds good for the purpose of Section 3 of the Act of 1988. ( 4 ) THE contention of learned Counsel for petitioner was that it does not. He argued that a fresh notification under Section 3 of the Act of 1988 by the Government was essential for appointing the learned Trial judge as a Special Judge, for trial of the offences made punishable thereunder. To support his proposition, he proposed to rely on a decision of the Himachal Pradesh High Court in case of Tula Ram and Another v state of Himachal Pradesh. It is the Single Bench decision. The learned judge, while adverting to and without analysing Section 26 of the Act of 1988, has observed as under:"there is no dispute that Special Judges vested with the powers under Section 3 read with Section 4 of the Prevention of corruption Act, 1947 (hereinafter called the 'old Act'), were competent to deal with the offences under the old Act. However, with respect to the offences committed prior to coming into force of the new Act, but challans filed after it came into force, the powers of the Special Judges have been taken away except in pending cases from the date of commencement of the new Act". ( 5 ) IN the above Tula Ram's case, no notification issued by the State government in exercise of its powers under Section 6 of the Criminal law Amendment Act, 1952, was the subject of consideration of the court. In this regard, we need to keep in view the dictate of Section 26 of the Act of 1988 which states:"section 26. Special Judges appointed under Act 46 of 1952 to be Special Judges appointed under this Act. In this regard, we need to keep in view the dictate of Section 26 of the Act of 1988 which states:"section 26. Special Judges appointed under Act 46 of 1952 to be Special Judges appointed under this Act. Every special Judge appointed under the Criminal Law Amendment act, 1952, for any area or areas and is holding office on the commencement of this Act shall be deemed to be a Special Judge appointed under Section 3 of this Act for that area or areas and, accordingly, on and from such commencement, every such Judge shall continue to deal with all the proceedings pending before him on such commencement in accordance with the provisions of this act". ( 6 ) THE provision in Section 26 clearly postulates that any notification issued by the State Government under Section 26 are the Criminal Law amendment Act, appointing the Special Judge for any specified area, to try the offences under the Prevention of Corruption Act, 1947, would hold good for the purpose of Section 3 of the Act of 1988 as well. The ambit of Section 26 does not admit narrow interpretation so as to restrict its area of operation of only to those cases under the old Act 1987 which were actually pending before the Special Judge as on the date of commencement of the new Act of 1988. Therefore, the State Government notification dated 19-11-1981 has to held as a valid notification for the purpose of Section 3 of the Act of 1988, and that the Principal District and Sessions Judge, Belgaum, who is appointed thereunder as the Special judge has jurisdiction and is competent to try the offences under the act. The conclusion so arrived at by the learned Trial Judge by his impugned order, is therefore, entitled to be upheld. ( 7 ) THE next objection raised for the petitioner-accused is that the investigating Officer who was the Police Inspector in the present case was not authorised and competent to investigate the alleged offence under the Act and file the charge-sheet, since by virtue of Section 17 (c), a police officer below the rank of a Deputy Superintendent of Police or a police officer of equivalent rank is prohibited from investigating into any offence under the Act. I find the same untenable in view of the Government notification No. HD 236 PEG 97, dated 20-8-1997, authorising all the Inspectors of Police attached to the Office of the Karnataka lokayuktha to investigate any offences punishable under the Act of 1988, in fulfilment of the requirement of first proviso to Section 17 thereof which reads:"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 therefore without a warrant". The learned Trial Judge has rightly so concluded in his order impugned herein. ( 8 ) THEREFORE, I find no merit in the objection. Hence the same is dismissed. --- *** --- .