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2005 DIGILAW 822 (RAJ)

State of Rajasthan v. Sardar Singh

2005-03-16

H.R.PANWAR

body2005
Judgment H.R. Panwar, J.-This revision petition is filed by the State of Rajasthan against the order impugned dated 16.03.2002 passed by learned Special Judge, (Anti-corruption Act) Cases, Jodhpur (for short the trial Court hereinafter) discharging the accused non-petitioner from the offences under Section 13(1)(d)(e)(2) of the Prevention of Corruption Act, 1988 (for short the Act of 1988). Aggrieved by the order discharging the non-petitioner, the State of Rajasthan has filed the instant criminal revision petition. 2. I have heard learned Public Prosecutor for the State. Perused the order impugned. 3. The facts and circumstances giving rise to the instant revision petition are that on 27.04.2000 at about 1.05.05 AM, the Deputy Superintendent of Police, Rajasthan State Bureau of Investigation, Jodhpur suddenly inspected the bus No. RJ-10-P-1620 belonging to the Rajasthan State Road Transport Corporation (for short the RSRTC hereinafter). On checking the bus, no passenger was found travelling without ticket. Non-petitioner Sardar Singh, who was the Conductor of the bus, was searched and a sum of Rs. 2,294/-was found in his possession beyond permissible limit. Non-petitioner failed to satisfactorily explain the same. Therefore, the said amount was seized and the crime report No. 196/2000 for the offences noticed above was registered against him. After usual investigation, the police filed the challan against the non-petitioner. The trial Court by an elaborate and well reasoned order, came to the conclusion that neither the provision of Section 165, Criminal Procedure Code (for short the Code hereinafter) nor the second proviso to Section 17 of the Act of 1988 have been complied with. It was further held that second proviso to Section 17 of the Act of 1988 is mandatory in nature. It was also held that since no passenger travelling in the bus was found without ticket, therefore, no question of connecting a sum of Rs. 2,294/-, found in possessions of the non-petitioner, with the amount alleged to have been paid by the passengers and on these premises, the trial Court came to the conclusion that there is no ground to presume that the non-petitioner has committed the offence and accordingly, he was discharged. 4. It was contended by the learned Public Prosecutor that the non-petitioner has received the money from the passengers and retained the same with him for which no satisfactory explanation was given by him. 4. It was contended by the learned Public Prosecutor that the non-petitioner has received the money from the passengers and retained the same with him for which no satisfactory explanation was given by him. It was also contended that the non-compliance of provisions of Section 165 of the Code is not fatal. He has relied on a decision of the Honble Supreme Court in Lal Singh vs. State of Gujarat & Anr., 2001 CrLJ 978 , wherein the Honble Supreme Court held that the Police Officers were entitled to carry out the search and seizure under Section 165 of the Criminal Procedure Code. The search and seizure was carried out by higher officer, namely, S.P. CID, Crime Branch. Further, exercise of such power by the District Magistrate does not take away the authority of the police officer to search under Section 165 of the CrPC. It was further held that being cognizable offence, on the basis of information received that large quantity of arms and explosive substances were stored in the premises, the police officer was entitled to exercise power under Section 165, CrPC and on these premises, the contentions raised by the learned Counsel appearing in that case were rejected. .5. Second proviso to Section 17 of the Act of 1988 provides that an offence referred to in Clause (e) of Sub-section (1) of Section 13 shall not be investigated without the order of a police officer not below the rank of a Superintendent of Police. In the instant case, the investigation was not carried out by a Police Officer not below the rank of Superintendent of Police. .6. Section 165 of the Code reads as under:-"165. In the instant case, the investigation was not carried out by a Police Officer not below the rank of Superintendent of Police. .6. Section 165 of the Code reads as under:-"165. Search by Police Officer.-(1) Whenever, an officer-in-charge of a police station or a Police Officer making an investigation has reasonable grounds for believing that anything necessary for the purposes of an investigation into any offence which he is authorised to investigate may be found in any place within the limits of the police station of which he is incharge, or to which he is attached, and that such thing cannot in his opinion be otherwise obtained without undue delay, such officer may, after recording in writing the grounds of his belief and specifying in such writing, so far as possible, the thing for which search is to be made, search, or cause search to be made, for such thing in any place within the limits of such station. .(2) A Police Officer proceeding under Sub-section (1), shall, if practicable, conduct the search in person. .(3) If he is unable to conduct the search in person, and there is no other person competent to make the search present at the time, he may, after recording in writing his reasons for so doing, require any officer subordinate to him to make the search, and he shall deliver to such subordinate officer an order in writing, specifying the place to be searched, and so far as possible, the thing for which search is to be made; and such subordinate officer may thereupon search for such thing in such place. .(4) The provisions of this Code as to search-warrants and the general provisions as to searches contained in Section 100 shall, so far as may be, apply to a search made under this section. .(5) Copies of any record made under Sub-section (1) or Sub-section (3) shall forthwith be sent to the nearest Magistrate empowered to take cognizance of the offence, and the owner or occupier of the place searched shall, on application, be furnished, free of cost, with a copy of the same by the Magistrate." 7. .(5) Copies of any record made under Sub-section (1) or Sub-section (3) shall forthwith be sent to the nearest Magistrate empowered to take cognizance of the offence, and the owner or occupier of the place searched shall, on application, be furnished, free of cost, with a copy of the same by the Magistrate." 7. Sub-section (1) of Section 165 of the Code provides that whenever an officer-in-charge of a police station or a Police Officer making an investigation has reasonable grounds for believing that anything necessary for the purposes of an investigation into any offence which he is authorised to investigate may be found in any place within the limits of the police station of which he is incharge, or to which he is attached, and that such thing cannot in his opinion be otherwise obtained without undue delay, such officer may, after recording in writing the grounds of his belief and specifying in such writing, so far as possible, the thing for which search is to be made, search, or cause search to be made, for such thing in any place within the limits of such station. Sub-section 5 of Sections 165 of the Code provides that copies of any record made under Sub-section (1) or Sub-section (3) shall forthwith be sent to the nearest Magistrate empowered to take cognizance of the offence, and the owner or occupier of the place searched shall, on application, be furnished, free of cost, with a copy of the same by the Magistrate. 8. In this instant case, nothing is shown that the Officer, who conducted the search had a reasonable ground for believing that the thing cannot in his opinion be otherwise obtained without undue delay. 9. It was further contended by the learned Public Prosecutor that the non-petitioner was found in his possession of Rs. 2,294/-in violation of Section 8 of the Rajasthan State Road Transport Service (Prevention of Ticketless Travel) Act, 1975 (for short the Act of 1975 hereinafter). It is contended that according to the Government Circular, the non-petitioner, who is the Conductor of the bus of RSRTC, is required to disclose the money, which he carries with him at the time of boarding the bus on duty. This controversy came to be considered by this Court in a group of revision petitions being S.B. Cr. It is contended that according to the Government Circular, the non-petitioner, who is the Conductor of the bus of RSRTC, is required to disclose the money, which he carries with him at the time of boarding the bus on duty. This controversy came to be considered by this Court in a group of revision petitions being S.B. Cr. Revision Petition No. 394/2002 and eight others decided on 16.02.2004, wherein it was held that if there is any breach of any circular, Government may proceed departmentally against the accused-person. In the instant case, there is absolutely no material on record to show that any money out of the payment made to the non-petitioner in lieu of tickets was pocketed by the non-petitioner. On the contrary, it is the case of prosecution that none of the passengers travelling in the bus was found ticketless. At any rate, it is nobodys case that the non-petitioner charged in excess of ticket amount from any of the passengers as there is no statement of any of the passenger recorded by the prosecution. Viewed from any point, prima facie, essential ingredients of the offences noticed above have not been made out in the instant case. Since, the identical bunch of revision petitions were dismissed by a Co-ordinate Bench of this Court and the case of the present petitioner is not on different footing, I find no reason to take a different view than the one taken in the similar revision petitions. 10. Consequently, I do not find any merit in the instant revision petition and the same is hereby dismissed.