1. This Writ Petition has been filed for quashing the order dated 27.3.2002 passed by the court of the Special Judge, Manipur East in Special Trial No. 1 of 1998 and also for giving direction to the respondent No. 2 (Superintendent of Police, CBI, SPE Division, Silchar Branch) to re-investigate the case in accordance with the provision of section 17 of the Prevention of Corruption Act, 1988. 2. Heard Mr. A. Rupchand, learned counsel appearing for the petitioner and Mr. K.L. John, learned counsel appearing for the respondents. 3. Necessary facts leading up of the present writ petition are that the Central Bureau of Investigation OCBF) registered a case being RC 2 (A)/96-SLC on 2.1.1996 against the petitioner and one another namely, Shri Seizamang Singson for commission of offences punishable under sections 120B, 409, 467, 468, 471 and 477A, IPC and section 13(2) read with section 13(1)(c) and (d) of the Prevention of Corruption Act, 1988. On completion of the investigation, a charge sheet bearing No.4/ 97 dated 31.12.1997 was submitted to the Court of Special Judge, Manipur East and the same was registered as Special Trail No. 1 of 1998 on 14.1.1998. When the said case was fixed for charge consideration, an objection was raised orally from the side of the petitioner that the major portion of the investigation was conducted by a Sub-Inspector of Police in violation of the provision of section 17 of the Prevention of Corruption Act and prayed for passing an order to re-investigate the case by a designated officer. In view of the said objection, the learned Special Judge fixed 16.8.2000 for consideration of the aid objection. Thereafter, the case was adjourned for one reason or the other, as reflected in the day-to-day order sheets of the proceeding, for more than 18 months. On 27.3.2002 the learned Special Judge, Manipur East, after hearing the parties at length and considering the materials on record, passed the impugned order declining to order for re-investigation of the case mainly on the ground that the learned Special Judge had already taken the cognizance of the offences, the alleged illegality in the investigation of the case will not affect the competence and jurisdiction of the court to proceed with the case and that the case as against the accused persons is based mainly on documentary evidences. The learned Special Judge has also observed that having regards to all the relevant consideration including the extent and nature of violation of section 17 of the Prevention of Corruption Act, to pass an order for re-investigation at the relevant stage of the proceeding after about 9 years of the commission of the alleged offences will not serve the interest of the justice. 4. Mr. A. Rupchand, the learned counsel appearing for the petitioner has submitted that the Magistrate granted permission to investigate the case by a non-designated officer mechanically, as a routine matter and without disclosing any tenable reason in his order. The learned Magistrate did not realise the significance of his order, rather the learned Magistrate had surrendered his discretion to a police officer of lower rank instead of his exercising the discretion having regard to the relevant materials available before him. According to the learned counsel the Superintendent of Police, CBI had not disclosed any reason for his inability to carry out the investigation of the case himself and that the prosecution could not explain any circumstance impelling the Superintendent of Police not to undertake the investigation of the case himself. The learned Special Judge failed to consider the requirement of section 17 of the Prevention of Corruption Act while passing the impugned order and as a result of which, a great prejudice and failure of justice has been caused to the petitioner. The impugned judgment is otherwise erroneous, irrational and unsustainable in the eyes of law. 5. Per contra, Mr. K.L. John, learned counsel appearing for the respondents submits that the investigation of the case was carried out strictly in accordance with the law and thiat the investigation was started after obtaining permission from the Judjgial Magistrate First Class, Jiribam as per provision of section 17 of the Prevention of Corruption Act. The learned counsel further submits that full facts of the case were placed before the learned JMFC, Jiribam along with the application filed for grant of permission to investigate the case by a non-designated officer. The learned JMFC, Jiribam after considering the materials available before him and the reasons given in the application, granted permission to investigate the case by a non-designated officer in exercise of his judicial discretion. The learned JMFC, Jiribam after considering the materials available before him and the reasons given in the application, granted permission to investigate the case by a non-designated officer in exercise of his judicial discretion. According to the learned counsel appearing for the respondents the learned Special Judge has rightly rejected the prayer for re-investigation of the case and that no prejudice has been caused in any manner whatsoever to the petitioner by the above investigation. 6. The learned counsel appearing for the petitioner, in support of his contention, cited the decisions of the hon'ble Apex Court passed in (1) A.R. Antulay v. Ramdas Sriniwas Nayak and Another, AIR 1984 SC 718 ; (2) State of M.P. v. Mubarak Alt, AIR 1959 SC 707 ; (3) Sailendranath Bose v. State of Bihar, AIR 1968 SC 1292 ; (4) State of Andhra Pradesh, v. P.V. Narayana, AIR 1971 SC 811 ; (5)A.C. Sharma v. Delhi Administration, AIR 1973 SC 913 (6) State of Haryana and Others v. Ch. Bhajan Lal and Others, AIR 1992 SC 604 ; (7) SmtiNaseem Bano v. State of U.P., AIR 1993 SC 2592 ; (8) Uma Devi Nambiar and Ors. v. T.C. Sidhan, AIR 2004 SC 1772 ; and (9) Suresh Budharmal Kalani v. State of Maharashtra, AIR 1998 SC 3258 . I have gone through the decisions of the above cited cases. Section 17 of the Prevention of Corruption Act, 1988 is section 5A as it stood .in the Prevention of Corruption Act, 1947. 7. The aim and object of the enactment of section 5A of the Prevention of Corruption Act was discussed by the hon'ble Apex Court in Mubarak Ali (supra) and Ch. Bhajan Lal (supra). In Mubarak All's case (supra) the hon'ble Apex Court in para No. 5 of the judgment observed that "the act was passed, as the preamble indicates, to make more effective provision for the prevention of bribery and corruption among public servants. Section SAwas inserted in the Act to protect the public servants against harassment and victimisation. If it was in the interest of the public that corruption should be eradicated, it was equally in the interest of the public that honest public servants should be able to discharge their duties free from false, frivolous and malicious accusations. Section SAwas inserted in the Act to protect the public servants against harassment and victimisation. If it was in the interest of the public that corruption should be eradicated, it was equally in the interest of the public that honest public servants should be able to discharge their duties free from false, frivolous and malicious accusations. In the said case one Sub-Inspector of Police without obtaining prior permission of a First Class Magistrate started investigation of the case and after 10 days of the investigation, he filed an application before the Magistrate seeking the permission to investigate the case. In the said application, he simply stated that he had been deputed to investigate the case. On that application, the Magistrate passed the order "permission given". Neither the application nor the order made thereon discloses that any materials was placed before the magistrate on the basis of which he gave the permission. In the above facts and circumstances of the case, the hon'ble Apex Court held that the Magistrate did not realise the significance of his order giving permission, but only mechanically issued the order on the basis of the application which did not disclose any reason, presumably because he thought that what was required was only a formal compliance with the provision of the section. 8. In H.N. Rishbut v. State of Delhi, AIR 1955 SC 196 , the hon'ble Supreme Court emphasised the necessity to adhere strictly to the provision of section 5 A of the Act, and held that the provisions of section 5 A of the Act are mandatory and not directors' and that an investigation conducted in violation thereof bears the stamp of illegality. In a case where an officer, other than the designated officer, seeks to make an investigation, he should get the order of a Magistrate empowering him to do so before he proceeds to investigate and it is desirable that the order giving the permission should ordinarily, on the face of it, disclose the reasons for giving the permission. If the said salutary practice is not adopted in a particular case, it is the duty of a prosecution to establish, if that fact is denied, that the Magistrate in fact has taken into consideration the relevant circumstances before granting the permission to a subordinate officer to investigate the case. 9. In the Ch. If the said salutary practice is not adopted in a particular case, it is the duty of a prosecution to establish, if that fact is denied, that the Magistrate in fact has taken into consideration the relevant circumstances before granting the permission to a subordinate officer to investigate the case. 9. In the Ch. Bhajan Lal (supra), the hon'ble Apex Court reiterating the ratio laid down in Mubarak All's case further held that the granting of permission under section 5A authorising an officer of lower rank to conduct the investigation is not to be treated by a Magistrate as a mere matter of routine, but it is an exercise of his judicial discretion and the order giving the permission should, on the face of it, disclose the reasons for granting such permission. The ratio laid down in Sailendranath Bose (supra) is that except for the good reasons the Magistrate would not accord permission to the non-designated officers to investigate the case. If any case is to be investigated by a non-designated officers due to exigencies of administrative convenience, prior permission of a First Class Magistrate should be obtained. 10. In Uma Devi Nambiar (supra), the hon'ble Apex Court discussed the words and phrases "judicial discretion" and held that when a statute gives a Judge a discretion, what is meant is a judicial discretion, regulated according to the known Rules of Law, and not the mere whim or caprice of the person to whom it is given on the assumption that he is discreet. InA.R. Antulay (supra) the hon'ble Apex Court (Constitution Bench), referring to the earlier decisions of the Apex Court observed that an investigation contemplated by section 5A must ordinarily be undertaken by a police officer of the designated rank and except with the pel-mission of a Magistrate bars the investigation of the police officers of lower rank. And that any defect or illegality in investigation, however serious, has no direct bearing on the competence or procedure relating to cognizance or trial. The court would not attach any importance to any illegality in the matter of investigation if it is relied upon at the conclusion of a trial in the absence of prejudice pleaded and proved. The said case arises out of a private complaint filed before the Special Judge. The court would not attach any importance to any illegality in the matter of investigation if it is relied upon at the conclusion of a trial in the absence of prejudice pleaded and proved. The said case arises out of a private complaint filed before the Special Judge. The question for consideration was whether the Special Judge had jurisdiction to take cognizance of offences on the basis of the complaint filed by a private party or not. The Supreme Court held that the cognizance taken by the Special Judge is legal. 11. Section 17 of the Prevention of Corruption Act, 1988 runs as follows : "Notwithstanding anything contained in the Code of Criminal Procedure, 1973, no police officer below the rank, - (a) in the case of Delhi Special Police Establishment, of an Inspector of Police, (b) ................. (c) .................. 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." 12. On a plain reading of the above provision of section 17 of the Prevention of Corruption Act, 1988, it is quite clear that the investigation of the RC2(A)/96-SLC was to be conducted by police officer not below the rank of an Inspector of Police without the order of the First Class Magistrate. Corollary is that an officer below the rank of Inspector may also investigate the case with the prior order or permission of a Magistrate of First Class. In the case in hand, the Superintendent of Police, CBI, SPE Silchar submitted an application dated 19.1.1996 to the Judicial Magistrate First Class, Jiribam, Manipur to accord permission as required under section 17 of the Prevention of Corruption Act in favour of one Shri L. Hangshing, Sub-Inspector of Police to investigate the case stating that the Inspectors and the Dy. S.Ps. posted under the said Branch had been engaged in many enquiries and investigations taken up by the said Branch. A copy of the FIR of the case was also enclosed along with the said application. The said application was registered as Crl. Misc. S.Ps. posted under the said Branch had been engaged in many enquiries and investigations taken up by the said Branch. A copy of the FIR of the case was also enclosed along with the said application. The said application was registered as Crl. Misc. Case and on 20th February, 1996, i.e., after about one month of the presentation of the said application, the learned Judicial Magistrate First Class, Jiribam granted permission to the said Shri. L. Hangshing, Sub-Inspector, CBI for taking up investigation of the said case. The order dated 20th February, 1996 passed by the Judicial Magistrate First Class, Jiribam runs as follows : - "ORDER The 20th February, 1996 This is an application filed by the SP, CBI, SPE Silchar in C/W RC 2(A)/ 96-SLC praying for order of this court to enable Shri. L. Hangshing, S.I,, CBI, SPE, Silchar to take up the investigation of the above mentioned case. Register it as Crl. Misc. Case. Perused the petition. Heard S.I., L. Hangshing in person. I am satisfied with the prayer. Accordingly, permission under section 17 of the PC Act is hereby given to the said Shri. L. Hangshing, S.I., CBI, SPE Silchar, for taking up investigation of the above referred case. A copy of this order be made available to Shri. L. Hangshing and a copy be sent to the S.P., CBI, SPE, Silchar for information. Cril. Asstt. is to take step. Sd/- (S. Imocha Singh) Judicial Magistrate First Class Jiribam, Manipur." 13. Equipped with the permission so accorded by the Judicial Magistrate First Class, Jiribam Shri L. Hangshing, Sub-Inspector, CBI took up the investigation of the case. Pending completion of the enquiry, Shri L. Hangshing was promoted to the rank of Inspector and he was also transferred from Silchar Branch to Guwahati Branch. Thus, on 30.1.1997 the Superintendent of Police, CBI, SPE, Silchar again submitted another application to the Judicial Magistrate First Class, Jiribam to accord permission for further investigation of the case by one Shri. M.T. Mang, Sub-Inspector of Police, CBI, Silchar Branch. Thus, on 30.1.1997 the Superintendent of Police, CBI, SPE, Silchar again submitted another application to the Judicial Magistrate First Class, Jiribam to accord permission for further investigation of the case by one Shri. M.T. Mang, Sub-Inspector of Police, CBI, Silchar Branch. In the said application the Superintendent of Police, CBI, Silchar Branch stated that Shri L. Hangshing does not have the authority to investigate the case any longer as he has been posted out from the Silchar Branch and the shortage of legally competent investigation officer is still persisting in the Silchar Branch and that Shri. M.T. Mang, Sub- Inspector would be able to undertake the investigation only when the permission is accorded by the court. On 11th February, 1997 the Judicial Magistrate First Class, Jiribam accorded permission to Shri M.T. Mang for taking up further investigation of the case. The order dated 11th February, 1997 is re-produced herein below : "ORDER The 11th February, 1997 This is an application filed by the S.R, CBI, SPE, Silchar in C/W R.C. (AJ/96-SLC praying for order of this court to enable Shri M.T. Mang, S.I., CBI, Silchar to take up the investigation of the above mentioned case in place of Shri. L. Hangshing, S.I. on his promotion to the rank of Inspector recently and had been transferred out from Silchar Branch to Guwahati Branch. Register it as Cril Misc. Case. Perused the petition. Heard Mr. S.I., M.T. Mang in person. I am satisfied with the prayer. Accordingly, permission under section 17 of the PC. Act is hereby given to the said Shri M.T. Mang, CBI Silchar for taking up investigation of the above referred case. A copy of this order be made available to Shri M.T. Mang and a copy be sent to the S.P., CBI, SPE, Silchar for information. Cril Asstt. is to take step. Sd/- (S. Imocha Singh) Judicial Magistrate First Class, Jiribam, Manipur." 14. Records reveal-that on completion of the enquiry, the Superintendent of Police, CBI, SPE Silchar Branch submitted the charge sheet dated 31.12.1997 to the learned Court of Special Judge, Manipur East for taking cognizance of the offences. Cril Asstt. is to take step. Sd/- (S. Imocha Singh) Judicial Magistrate First Class, Jiribam, Manipur." 14. Records reveal-that on completion of the enquiry, the Superintendent of Police, CBI, SPE Silchar Branch submitted the charge sheet dated 31.12.1997 to the learned Court of Special Judge, Manipur East for taking cognizance of the offences. Now, the question for adjudication is as to whether the learned Judicial Magistrate First Class, Jiribam passed the aforesaid orders of granting permission under section 17 of the Prevention of Corruption Act, 1988 casually, mechanically, as a mere matter of routine, without giving reasons for grant of such permission and in violation of the provision of section 17 of the Prevention of Corruption Act, 1988. 15. What has emerges from various decisions of the hon'ble Apex Court are that the provisions of section 5A of the PC Act are mandatory and not directory, section 5A of the PC Act is one of the safeguards provided under the PC Act to protect the public servants against harassment and victimization so as to enable the honest public servants to discharge their duties free from false, frivolous and malicious accusations, the statutory safeguards must be strictly complied with, the Magistrate should pass the order of granting permission to investigate the case by a non-designated officer only in exercise of his judicial discretion and that it is desirable to disclose the reasons for giving such permission in the order itself. 16. The applications dated 19.1.1996 and 30.1.1997 filed by the Superintendent of Police for grant of permission to investigate the case by an officer below the rank of Inspector of Police demonstrate the reasons for seeking permission of a Magistrate of First Class and that a copy of the FIR was also placed before the Magistrate along with the application dated 19.1.1996. The orders dated 20th February, 1996 and 11th February, 1997 passed by the Judicial Magistrate First Class, Jiribam, further reveal that the learned Judicial Magistrate First Class, Jiribam passed the orders of granting permission to investigate the case by the officers below the rank of an Inspector of Police after perusal of the applications as well as hearing of the non-designated officers in person. It is not the case of the petitioner that the non-designated officers investigated the case without obtaining the permission of the Magistrate First Class and/or in violation of the provision of section 17 of the Prevention of Corruption Act, 1988. 17. The main point raised by the learned counsel appearing for the petitioner is that the Judicial Magistrate First Class, Jiribam granted the permissions without application of mind and disclosing reasons in the orders. The learned counsel has also submitted that the Superintendent of Police has not given any reasons in the applications for his inability to. investigate the case himself. On the other hand, the learned counsel appearing for the respondents, in reply to the above submission of the learned counsel appearing for the petitioner, submits that the CBI, Silchar Branch is/was under the supervision of the Superintendent of Police, there was no other higher officer above the Superintendent of Police in the said Branch and as such the Superintendent of Police, CBI, Silchar Branch was always heavily booked with the supervisory works and the investigations of the cases which were specifically directed by the courts and the higher authorities to investigate by "the Superintendent of Police himself. In the above situation, the Superintendent of Police, CBI normally did not assign any reasons about his inability to take up the case while filing application under section 17 of the Prevention of Corruption Act, 1988 for allowing to investigate any particular case by non-designated officer. Since non-designated officers can also investigate the case with the prior permission of a Magistrate of First Class, what is more important to be considered by a Magistrate of First Class before granting permission is the competency of the lower rank officer in investigating the particular case as well as to see whether there is prima facie case or not. If the Magistrate is satisfied about the existence of the prima facie case on the basis of the materials placed before him and the lower rank officer would be able to investigate the particular case, the failure on the part of the Superintendent of Police to explain the reasons for his inability to investigate the case himself shall have no material bearing in granting permissions by the Magistrate under section 17 of the Prevention of Corruption Act. There cannot be any proposition that the Magistrate should pass the order of granting permission only when it is proved that "all the designated officers and above are unable to investigate the case. 18. True, in the instant case, the learned Judicial Magistrate First Class, Jiribam did not elaborately disclose the reasons in the relevant orders of granting permissions to investigate the case by non-designated officers. However, the learned Judicial Magistrate First Class precisely stated that he was satisfied for grant of permission and, thus, it cannot be said that the learned Judicial Magistrate First Class, Jiribam passed the relevant orders mechanically without considering the materials placed before him. In both the orders, the learned Judicial Magistrate First Class clearly mentioned that he had perused the applications and also heard both the non-designated officers before granting permissions under section 17 of the Prevention of Corruption Act, 1988. It shows that the learned Judicial Magistrate First Class, Jiribam had considered the materials placed before him thoroughly and also tested the competency of the officers below the rank of Inspector of Police by examining them-in person and that upon such considerations, the Magistrate was satisfied for passing the orders under section 17 of the Prevention of Corruption Act. Admittedly, the hon'ble Apex Court observed that it is desirable to disclose the reasons for giving permission in the order itself. The non-disclosure of elaborate reasons in the above orders, in my considered view, will not ipso facto vitiate the entire investigation as illegal nor the investigation so carried out can be said to have been done completely in violation of the section 17 of the Prevention of Corruption Act. In both the orders, the Magistrate expressed his satisfaction for grant qf permission on the basis of the materials placed before him. On perusal of the orders mentioned above, I am of the firm view that the learned Judicial Magistrate First Class, Jiribam passed the orders of granting permissions to investigate the case by the officers below the rank of Inspector of Police, in exercise of his judicial discretion for good and sufficient reasons. 19. On perusal of the orders mentioned above, I am of the firm view that the learned Judicial Magistrate First Class, Jiribam passed the orders of granting permissions to investigate the case by the officers below the rank of Inspector of Police, in exercise of his judicial discretion for good and sufficient reasons. 19. For the reasons and the findings recorded in the above paragraph, I do not find sufficient force to the argument put forward by the learned counsel appearing for the petitioner that the learned Magistrate First Class, Jiribam passed the orders of granting permission to investigate the case by the officers below the rank of Inspector of Police mechanically, without application of mind and in violation of the provision of section 17 of the Prevention of Corruption Act. In the facts and circumstances of the case, I cannot persuade myself to pass an order for re-investigation of the case by an officer of the rank of Inspector of Police. I also do not find any ground to interfere with the order dated 27.3.2002 passed by the learned Special Judge, Manipur East in Special Trial No. 1 of 1988. Resultantly, the present writ petition is dismissed being devoid of merit. 20. Before parting with this case, I am compelled myself to give direction to the learned Special Judge, Manipur East for expeditious disposal of the said case in accordance with law preferably within a period of 12 months from the date of receipt of the LC records as the said case is pending without any progress for more than 12 years. Accordingly, I do. Registry is directed to transmit the LC records forthwith. _____________ HHHH 2013 (2) GAUHATI LAW REPORTS 452 AGARTALA B.K. SHARMA, J JAYANTA SARKAR Versus STATE OF TRIPURA AND ORS. Accordingly, I do. Registry is directed to transmit the LC records forthwith. _____________ HHHH 2013 (2) GAUHATI LAW REPORTS 452 AGARTALA B.K. SHARMA, J JAYANTA SARKAR Versus STATE OF TRIPURA AND ORS. WP(C) No. 572 of 2011 26.7.2011 Labour and services - TCS (Conduct) Rules, 1988 - Charge levelled against petitioner not established - Whether inquiry officer or the disciplinary authority could have held the petitioner guilty of another charge - Held : No. Labour and services - Suspension and penalty - Delay in framing charges - Disciplinary authority and appellate authority held petitioner guilty of lack of supervision and control over the activities of particular unit of cooperative society unmindful of that petitioner was never charged for lack of supervision and control -Appellate authority appreciated the fact of there being delay of more than 11V2 years in framing charges -Petitioner accordingly made entitled to get the entire period of suspension treated on duty but at the same time upheld order of penalty imposed against the petitioner - Order depicts total non-application of mind - Writ petition allowed - Impugned orders of disciplinary authority and appellate authority set aside - Petitioner held to be entitled to all the consequential benefits. _____________ HHHH 2013 (2) GAUHATI LAW REPORTS 457 SHILLONG T.VAIPHEI, J MELONIA KHARKAMNI Versus STATE OF MEGHALAYA AND ORS. WP(C) No. (SH) of 123 of 2011 26.8.2011 Constitution of India -- Article 226 - Doctrine of laches - Principles of constructive res judicata - Where there is inordinate and unexplained delay and third party rights are created in the intervening period, a writ court would not interfere even if State action complained of is unconstitutional being violative of article 14 of the Constitution or illegal -Petitioner filed the petition challenging the order and corrigendum approving her termination after two years of dismissal of earlier writ petition - Petitioner was aware, of the order and the corrigendum when the State respondents filed their affidavit-in-opposition in the earlier petition - Petitioner did not challenge the same by amending her writ petition - Petitioner barred from, raising the issue in the writ petition by the principles of constructive res judicata - To quash the order and corrigendum was a relief which was to be claimed by the petitioner in the earlier writ petition - Writ petition held to be not maintainable and accordingly dismissed. _______________