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2003 DIGILAW 1046 (MP)

MANOJ KOSHTA v. STATE OF M. P.

2003-09-02

S.L.KOCHAR

body2003
JUDGMENT S.L. Kochar, J. The applicant has filed this revision aggrieved by order dated 23-1-2003 passed by learned Special Judge (Prevention of Corruption Act) Indore in Special Case No. 03/03 thereby dismissing the application filed by the applicant for his discharge u/s 239 of the Code of Criminal Procedure. By the same order learned trial Court has framed charge u/s 13(l)(e)/13(2) of the Prevention of Corruption Act, 1988 (for short, "the Act".) According to the prosecution case, D.S.P. Mr. A.K. Jain received complaint against applicant Manoj on 13-6-2000. The applicant, at that time, was working as Upper Division Clerk in the Income Tax Department. He was trapped while accepting Rs. 40,000/- cash and 2000 shares of Rs. 10/- each of Goyal Financial Company and was arrested. Upon his personal search, two bank passbooks were seized. It is, further alleged that for the purpose of seizing transfer deed of shares, search of the house of the applicant was conducted and during this search an inventory of household articles was prepared and articles were seized in the presence of S.D.M., Tehsildar and Panchas. Prima facie, seized articles were estimated to be valued at Rs. 2,37,475/-. Upon this, DEHATINALISHI No. 0/2000 was drawn. The matter was placed before the Superintendent of Police, Special Establishment, Lokayukta Office at Indore, who on perusal found that the case of disproportionate assets, was made out against the applicant and the same was to be investigated. Therefore, exercising his power as per provision u/s 17 of the Act, he passed the order deputing Mr. Mohan Singh Yadav, Inspector of Special Police Establishment, Lokayukta Office Indore for investigation of the case. Before this Court, learned counsel for the applicant has canvassed solitary legal question that the investigation done by the D.S.P. Mr. A.K. Jain, Special Police Establishment Office, Indore is without jurisdiction. Therefore, on the basis of such investigation, the applicant cannot be prosecuted and liable to be discharged as per provision u/s 239 of the Code of Criminal Procedure. Learned counsel has placed reliance on the judgment passed by Single Judge of the Principal Bench in the case of Umesh Kumar Chaubey Vs. State of Madhya Pradesh, . He further relied on the judgments passed by the Apex Court in the case of H.N. Rishbud and Inder Singh Vs. The State of Delhi, and the State of Haryana and others Vs. Ch. Bhajan Lal and others, . State of Madhya Pradesh, . He further relied on the judgments passed by the Apex Court in the case of H.N. Rishbud and Inder Singh Vs. The State of Delhi, and the State of Haryana and others Vs. Ch. Bhajan Lal and others, . To combat with this, Mr. Girish Desai, learned Deputy Advocate General, has submitted that according to the provision of section 17 of the Act, it is clearly spelt out that II Proviso under I Proviso itself, suggests that IInd Proviso is prescribing an additional requirement for the Police Officer mentioned in I Proviso and not that of main section. According to him, if intention of the legislature was not so, then instead of IInd Proviso the same would have been placed as sub-section (2), the main section is complete by itself. Therefore, in the present case, as per provision u/s 17 sub-section (c) a Deputy Superintendent of Police or a police officer of equivalent rank, is authorized to investigate the crime who are posted other than Delhi Special Police Establishment and in the metropolitan area of Bombay, Calcutta, Madras and Ahmedabad and in any other metropolitan area notified as such under subsection (1) of section 8 of the Code of Criminal Procedure, 1973 of an Assistant Commissioner of Police. His second limb of argument is that in the present case the actual investigation has been done and charge sheet has been filed by the authorized Inspector Mr. Mohan Singh Yadav vide order dated 23-6-2000. The D.S.P. Mr. Jain has not investigated offence u/s 13(1)(e) of the Act. The D.S.P. Mr. Jain went to trap the applicant/accused and in continuation of that investigation he searched the house of the applicant and prepared inventory memo as well as registered the crime at Zero number. In both the documents he has mentioned the offence u/s 7, 13(1)(d) and section 13(2) of the Act. He has not prepared inventory memo for the offence u/s 13(1)(e) of the Act of which as per argument of the learned counsel of the applicant under IInd Proviso, the order of police officer not below the rank of Superintendent of Police is required. Lastly, learned Deputy Advocate General, Mr. Girish Desai, has placed reliance on the Apex Court judgment of 3 Criminal Appeals reported in 2000 (5) SCC 881, State of M.P. and Ors. Lastly, learned Deputy Advocate General, Mr. Girish Desai, has placed reliance on the Apex Court judgment of 3 Criminal Appeals reported in 2000 (5) SCC 881, State of M.P. and Ors. vs. Ramsingh, Jagdish Prasad Gupta and Kedarilal and submitted that in view of the object of an enactment which is a social legislation to curb illegal activities of public servant should liberally construe so as to advance its object and not liberally in favour of the accused. To bolster his argument, he also placed reliance on Supreme Court Judgments in the case of State of Haryana vs. Bhajanlal and Ors. (supra) and the The State of Madhya Pradesh Vs. Mubarak Ali, . First of all it would be apposite to consider the submissions of the learned Deputy Advocate General, Mr. Girish Desai, regarding interpretation of second Proviso i.e. whether Second Proviso of section 17 of the Act is in addition to first Proviso or for the main section. For this purpose it would be apt to see paragraphs 123 and 124 of the decision by the Supreme Court in case of State of Haryana and others Vs. Ch. Bhajan Lal and others, which reads as follows: It means that a police officer not below the rank of an Inspector of Police authorised by the State Government in terms of the first Proviso can take up the investigation of an offence referred to in clause (e) of section 5(1) only on a separate and independent order of a police officer not below the rank of a Superintendent of Police. To say in other words, a strict compliance of the second proviso is an additional legal requirement to that of the first proviso for conferring a valid authority on a police officer not below the rank of an Inspector of Police to investigate an offence falling under clause (e) of section 5(1) of the Act. This is clearly spelt out from the expression "further provided" occurring in second proviso. In this Judgment, the Supreme Court has further ruled in paragraph 124 as follows : A conjoint reading of the main Provision, 5A(1) and the two provisos thereto, shows that the investigation by the designated police officers is the rule and the investigation by an officer of a lower rank is an exception. In this Judgment, the Supreme Court has further ruled in paragraph 124 as follows : A conjoint reading of the main Provision, 5A(1) and the two provisos thereto, shows that the investigation by the designated police officers is the rule and the investigation by an officer of a lower rank is an exception. The above mentioned observations have been made by the Supreme Court on the basis of the judgment passed in the The State of Madhya Pradesh Vs. Mubarak Ali, (Para 5). The offence referred to in clause (e) of section 5(1) of the Act, 1947 is equivalent to section 13(e) of the Act and section 5A is analogous to section 17 of the Act. Therefore, in view of above mentioned observations in Bhajanlal's case (supra) a strict compliance of second proviso is additional legal requirement that of the first proviso, for conferring the valid authority on a police officer not below the rank of Inspector of police to investigate the offence under clause (e) of section 13(1) of the Act. In the case on hand, first of all, Deputy Superintendent of Police has not investigated the offence u/s 13(1)(e) of the Act but while investigating the offence u/s 7 read with section 13(1)(d) and section 13(2) of the Act on suspicion took the search of the house of the applicant and seized the property. The inventory memo, seizure memo are clearly indicative of this fact. Immediately after few days, the Superintendent of Police Special Establishment Lokayukta, Indore, has passed order on 23-6-2000 authorising Inspector Mohansingh Yadav to investigate the offence punishable u/s 13(l)(e) read with section 13(2) of the Act. This is a speaking order in which Superintendent of Police has mentioned that on the basis of perusal of First Information Report, prima facie case was made out against the applicant punishable u/s 13(l)(e) of the Act, therefore, the same is required to be investigated. No challenge has been made by the applicant to this order and investigation was done by the authorised Inspector, who recorded the statement of witnesses made a complete calculation about disproportionate assets and filed charge sheet. The decision relied upon by the counsel for the applicant passed in Umesh Kumar's case (supra) has no bearing in the facts and circumstances of the present case. The decision relied upon by the counsel for the applicant passed in Umesh Kumar's case (supra) has no bearing in the facts and circumstances of the present case. In this decision, Single Judge of this Court (Principal Bench) has held that the order dated 6-5-1996 passed by the Superintendent of Police Special Establishment was not in fact passed on 6-5-1996 and concocted it on 6-5-1997 or of some other date in favour of Shri Bisen. It is held in paragraph 24 that order of Superintendent of Police was not in existence on 6-5-1996. At best it came into existence on 6-5-1997. In fact it appears to be a total concoction. Except certain formal activities entire investigation was completed before 6-5-1997 by the Inspector who was not having jurisdiction to investigate the case. In this Judgment interpretation of both provisos to section 17(c) has not been considered in the light of the Supreme Court Judgment in the case of State of Haryana vs. Bhajanlal (supra). Thus, this Court is of the opinion that if the offence punishable u/s 13(1)(e) of the Act has been investigated by the Deputy Superintendent of Police other than officers specified in clause (a) and (b) of section 17 of the Act, there is no requirement of the order of police officer not below the rank of Superintendent of Police authorising Deputy Superintendent of Police or police officer of equivalent rank to investigate the offence under clause (e) of sub-section (1) of section 13 of the Act. In the present case, first of all Deputy Superintendent of Police has not done investigation for the offence punishable u/s 13(1)(e) of the Act but the same has been done by the authorised Inspector by the concerned Superintendent of Police as per Provision of section 17 of the Act. Apart from this for the sake of argument if the contention of the learned counsel for the applicant is accepted that some part of investigation has been done by the Deputy Superintendent of Police, Mr. Jain, same would not be illegal because he is fully authorised to do so as per provision u/s 17(c) of the Act. The Supreme Court in the case of H.N. Rishbud and Inder Singh Vs. Jain, same would not be illegal because he is fully authorised to do so as per provision u/s 17(c) of the Act. The Supreme Court in the case of H.N. Rishbud and Inder Singh Vs. The State of Delhi, the Supreme Court has held as under: It is only when the material so collected disclosed the commission of an offence u/s 5(2) of the Act by public servants, that any question of taking the sanction of the Magistrate for the investigation arose. In such a situation the continuance of such portion of the investigation as remained, as against the public servants concerned by the same officer after obtaining the permission of the Magistrate was reasonable and legitimate. We are, therefore, of the opinion that there has been no such defect in the investigation in this case as to call for interference. This means that the order of investigation by the Inspector may be passed by the Superintendent of Police only when the material so collected disclosed the commission of offence u/s 13(1)(e) of the Act while authorising the Inspector Mr. Yadav. In the case on hand, the Superintendent of Police has passed the order on 23-6-2000 satisfying himself on the basis of the perusal of the First Information Report. In view of the above mentioned factual and legal position, investigation was not done by unauthorised officer, therefore, there is no substance in this revision. Thus, the same is hereby dismissed. Final Result : Dismissed