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2001 DIGILAW 71 (RAJ)

Shambhoogiri v. State of Rajasthan

2001-01-16

V.G.PALSHIKAR

body2001
JUDGMENT 1. - This appeal is directed against the order dated 3.5.1983 passed by the Special Judge, Anti Corruption Cases, Udaipur in Criminal Case No. 47/78 (25/79), convicting the appellant for the offence under section . 161 Indian Penal Code and Section 5(1)(d)(2) of the Prevention of Corruption Act and sentencing him to undergo two years R.I. and a fine of Rs. 250/- on each count and in default of payment of fine to further undergo six months simple imprisonment. Both the sentences were ordered to run concurrently. 2. With the assistance of the learned counsel for the accused and learned Public Prosecutor, I have gone through the records of the case and scrutinised the evidence on record. On appreciation of the evidence, the prosecution story as disclosed is that; one Fakir Chand resident of Lupdi submitted a written application before the Sub - Divisional Magistrate, Pratapgarh and stated therein that proceedings under section 110 Criminal Procedure Code. are pending against him which were lodged by Police Station Arnod. It was further stated that the Constable Shambhoogiri (appellant has threatened him for lodging more complaints and for not doing so has demanded illegal gratification of Rs. 200/-. Shri Raghuraj Singh - Advocate went to the house of the S.D.M. during lunch hours and produced before him currency notes of Rs. 200/- and after getting the initials of the S.D.M., gave them to Fakir Chand and directed him to give the notices to the appellant. Consequently Fakir Chand handed-over Rs. 200/- currency notes to the appellant and thereafter the S.D.M. called the appellant in his Chamber and told him that Rs. 200/- received by him from Fakirchand be produced. The appellant is said to have produced that Rs. 200/- before the S.D.M. The S.D.M., prepared a recovery memo of those notes and thereafter sent the memo of recovery along with the notes to the Collector, Chittorgarh and also sent the information to the Superintendent of Police, Chittor. Thereafter the Anti-Corruption Department registered a case under section. 161 Indian Penal Code and Secs. 5(1)(d) & 5(2) of the Prevention of Corruption Act and later on submitted a charge-sheet in the Court of Special Judge, Anti-Corruption Cases, Udaipur. 3. Thereafter the Anti-Corruption Department registered a case under section. 161 Indian Penal Code and Secs. 5(1)(d) & 5(2) of the Prevention of Corruption Act and later on submitted a charge-sheet in the Court of Special Judge, Anti-Corruption Cases, Udaipur. 3. The prosecution examined as many as 8 witnesses in support of its case and the learned trial Court on appreciation of the evidence came to the conclusion that the accused-appellant was guilty of having accepted Rs. 200/- as bribe. He, therefore, proceeded to convict the accused as aforesaid. 4. Apart from other grounds raised in memo of appeal as also verablly canvassed before me, the appeal is liable to be allowed on the substantial question of law raised by the learned counsel in relation to the entire trial. The learned counsel submitted that as per Section 5(a) of the Prevention of Corruption Act, 1947, the investigation has to be undertaken by a person riot below the rank of Dy. Superintendent of Police. It can be taken up even by Inspector of Police provided that there is a special authorisation in that regard by the State Government generally or specially for a particular case. In any event, according to the learned counsel, no such special authorisation is proved and no such authorisation can even be made in favour of a Sub-Divisional Officer or Sub-Divisional Magistrate in the employment of the Government of Rajasthan. 5. The learned counsel has pointed out that the complaint was lodged before Shri Kuldeep Sharma, S.D.M. Pratapgarh who is examined as PW-6. Even in his deposition, the Sub-Divisional Magistrate does not state anywhere how he has acquired power of investigation generally or particularly in case of Anti-Corruption. It is true that this aspect was placed before the trial Court, but since questions of the power of law are raised, correctness of trial and conviction can always be agitated in appellate Court. 6. Even in his deposition, the Sub-Divisional Magistrate does not state anywhere how he has acquired power of investigation generally or particularly in case of Anti-Corruption. It is true that this aspect was placed before the trial Court, but since questions of the power of law are raised, correctness of trial and conviction can always be agitated in appellate Court. 6. It would, therefore, be better to note in extenso the provision of Section 5-A of the Prevention of Corruption Act, 1947 : "5-A. Investigation into cases under this Act.-(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1998, 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 sections. 161, 165 or Section 165-A of the IPC or under section. 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 therefore without a warrant : Provide 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 therefore without a warrant : Provided further that an offence referred to in Cl. (e) of sub-section (1) of Section 5 shall not be investigate without the order of a police officer not below the rank of a Superintendent of Police. 7. From the provisions stated above, it will be clear that an offence under the provisions of Prevention of Corruption Act is to be investigated by the adequate Superintendent of Police and no other officer shall investigate any such offence without the order of the Sub-Divisional Magistrate or First Class Magistrate. The other exception being a special or general order by the State Government authorising an Inspector of Police to investigate in which case an Inspector of Police, with such general or special authorisation, may also investigate without order of the Magistrate. The other exception being a special or general order by the State Government authorising an Inspector of Police to investigate in which case an Inspector of Police, with such general or special authorisation, may also investigate without order of the Magistrate. It will be seen from these provisions that the investigation under the Prevention of Corruption Act is required to be taken up by the responsible high ranking officer. Even the Inspector of Police is not competent to take the investigation without order of the Judicial Magistrate to that effect. The investigation under the Act is, therefore, to be taken up by (i) Dy. Superintendent of Police, (ii) Inspector of Police, specially and generally authorised by the State Government, (iii) any other police officer not below the rank of Police Inspector with prior order of the Judicial Magistrate, First Class with permission to investigate the complaint of commission of offence under the Act. 8. It is a settled position in law that in the matter of Prevention of Corruption Act investigation includes laying of trap. Even for laying of a trap, it is therefore, necessary that the officer so doing is either empowered by a Magistrate of First Class to do so or as a general or special order for that purpose by the State Government or Dy. Superintendent of Police. In the present case the trap has admittedly been laid by the Sub-Divisional Magistrate. In his entire deposition, he has nowhere stated that he has generally or specially authorised to investigate the crime under the Prevention of Corruption Act. There is no such circular put on record. There is also no order of the Magistrate on record specially authorising or ordering or empowering the Sub-Divisional Magistrate to take up the investigation on the complaint of the complainant in the present case. It will thus is been that the entire investigation is vitiated by the fact that it has been undertaken by a person who is authorised in law to do so. The prosecution based on investigation, which is without jurisdiction and faulty, cannot be sustained. There is, therefore, no need to re appreciate the factual evidence in the matter and the prosecution is liable to be quashed for the reasons that the entire investigation is, unsustainable in law having been commenced at the instance of a person is not authorised for that purpose. 9. There is, therefore, no need to re appreciate the factual evidence in the matter and the prosecution is liable to be quashed for the reasons that the entire investigation is, unsustainable in law having been commenced at the instance of a person is not authorised for that purpose. 9. In the result, the appeal succeeds and is allowed. The order of conviction is set aside. The accused is already on bail, his bail bonds are cancelled.Appeal allowed. *******