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2017 DIGILAW 1105 (MP)

Arvind Jain v. State of Madhya Pradesh

2017-10-26

H.P.SINGH, HEMANT GUPTA, V.K.SHUKLA

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ORDER : Vijay Kumar Shukla, J. The Division Bench of this court in M.Cr.Case No. 17270/2016 (Bhawana Kale v. State of M.P.) doubted the correctness of earlier order of Division Bench in M.Cr.Case No. 9915/2015 (Ravindra Kumar Dubey v. State of Madhya Pradesh) and the matter was referred to the Larger Bench. However, when the matter was placed before the Full Bench, it was held that the question of law has not been formulated for its opinion and the petitioner had moved an application to withdraw the petition, therefore, the Full Bench did not address on merit and the matter was ordered to be placed before the Division Bench. On 08-09-2017, when the matter was placed before the Division Bench, this court formulated the following question of law, which is required to be decided by this Larger Bench:- "Whether in view of Section 3 of Madhya Pradesh Special Police Establishment Act, 1947, the police has jurisdiction to investigate and conduct trial for the offences under the Prevention of Corruption Act, 1988?" 2. Before we advert to question of law to be answered by this Bench, it is pertinent to mention here that in the case of Ravindra Kumar Dubey v. State of Madhya Pradesh (supra), the Division Bench of this Court observed that in view of the provision of Section 3 of Madhya Pradesh Police Establishment Act, 1947, the local police has no jurisdiction to investigate and file charge-sheet under the provisions of Prevention of Corruption Act. The said order passed in the case of Ravindra Kumar Dubey (supra) was challenged before the Hon'ble Apex Court by filing a SLP No. 6437/2016, which was disposed of by Hon'ble the Apex Court by an order dated 03-05-2017. In paras 3 and 4 of its order, the Hon'ble Apex Court observed as under : "3. In our opinion, the High Court mis-adventured in quashing the proceedings in the manner in which the order has been passed. The High Court should have been little more careful while quashing the proceedings. Be that as it may, as agree to, the impugned order is set aside." 4. In our opinion, the High Court mis-adventured in quashing the proceedings in the manner in which the order has been passed. The High Court should have been little more careful while quashing the proceedings. Be that as it may, as agree to, the impugned order is set aside." 4. The respondents to raise the question about competency of the office to investigate the matter before the trial court as and when occasion arises during the course of trial." As such the order passed by the Division Bench of this court in the case of Ravindra Kumar Dubey (supra) has been set aside and therefore, the observations made by the Division Bench in the case of Ravindra Kumar Dubey (supra) no more exists. 3. Now we advert to the question of law, which is to be answered by this Bench. It is apposite to refer certain provisions of the statute. Section 3 of the Madhya Pradesh Special Police Establishment Act, 1947 (hereinafter referred to as Act, 1947) provides that the State Government may, by notifications specify the offences or classes of offences, which are to be investigated by (Madhya Pradesh) Special Police Establishment, however, there is no provision in the Act to bar the investigation, vested in the local police. The investigation of the offence under the provisions of Prevention of Corruption Act, 1988 (hereinafter referred to ac Corruption Act) is governed by Section 17 of the Corruption Act, which provides as under : "17. The investigation of the offence under the provisions of Prevention of Corruption Act, 1988 (hereinafter referred to ac Corruption Act) is governed by Section 17 of the Corruption Act, which provides as under : "17. Persons authorized to investigate.- Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), no police officer below the rank.- (a) in the case of the Delhi Special Police Establishment, of an Inspector of Police; (b) in the metropolitan areas of Bombay, Calcutta, Madras and Ahmedabad and in any other metropolitan area notified as such under sub-section (1) of section 8 of the Code of Criminal Procedure, 1973 (2 of 1974), of an Assistant Commissioner of Police; (c) elsewhere, of a Deputy Superintendent of Police or a police officer of equivalent rank, 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: 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 therefor without a warrant. Provided further 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." 4. It is luminescent that in this section Deputy Superintendent of Police is empowered to investigate. He has to obtain an order from Judicial Magistrate First Class and also he has to obtain a warrant before arresting the accused, and therefore, taking relevant provisions of Act 1947 and the provisions of Corruption Act into consideration, it is apparent that the Deputy Superintendent of Police or an officer of equal rank is empowered to investigate the crime under the provisions of Section 17 of the Corruption Act after obtaining prior order from the concerning Judicial Magistrate. 5. 5. Section 17 refers to the Police Officers of certain ranks, who alone can investigate the offences under the Act without making any reference to the offender as to whether he is connected with the affairs of the Union or of the State. Except in clause (a) which refers to the Inspectors of Delhi Special Police Establishment, the entire investigation machinery referred to under section 17 is the State police and the only rider placed is that the investigating officer has to be of the rank of Dy. S.P./A.C.P. or atleast Inspector authorized in this behalf by the State Government by general or special order. There is absolutely no provision in the Act making any discretion between the employees of the Union or the State in the matter of investigation. 6. Section 156 of the Code of Criminal Procedure, 1973 authorizes the police to investigate the cognizable offence without the order of a Magistrate. The offences under the P.C. Act are also cognizable and can, therefore, be investigated by the Police. The only rider is that investigation can be had only by a police officer of the rank specified in Section 17. The word "Police Station" has been defined in clauses of section 2 of Criminal Procedure Code, 1973 to mean "any post or place declared generally or specially by the State Government to be a Police Station". M.P. Special Police Establishment is also a wing of State Police created under section 2 of the M.P. Act of 1947. The State Government by Notification No. F/15-2(ii)-89-XLIX-10 dated 28th November, 1989 has declared the Office of the Director of Special Police Establishment, M.P. Bhopal, to be the Police Station for the purposes of certain offences including those under the P.C. Act. Further by a separate Notification No. F/15-2(iii)-89-XLIX-10 dated 28th November, 1989 issued in exercise of power conferred by First Proviso to section 17 of the P.C. Act, all Inspectors of Special Police Establishment have been authorized to investigate the offences under the Act. 7. Learned State Counsel referred the various notifications issued under the provisions of Corruption Act and under the provisions of M.P. Special Police Establishment Act, 1947. He referred to the Notification dated 11-03-1947, which is unamended provision of P.C. Act, 1947. 7. Learned State Counsel referred the various notifications issued under the provisions of Corruption Act and under the provisions of M.P. Special Police Establishment Act, 1947. He referred to the Notification dated 11-03-1947, which is unamended provision of P.C. Act, 1947. Another notification has been produced before us is the Prevention of Corruption (Second Amendment) Act, 1952 and also the notification dated 28th July, 1952, which is an amendment of the Criminal Law (Amendment) Act, 1952 (No.46 of 1952) which was Parliament Amendment Act further to amend the provisions of the Indian Penal Code and the Code of Criminal Procedure and to provide for more speedy trial of offences. Preamble and the statement of Object and Reasons of M.P. Special Police Establishment Act, 1947, which has received the assent of the Governor on 12th May 1947; assent first published in the " Central Provinces and Bearer Gazette on 23rd May 1947. The said enactment was brought to make provisions for the constitution of a special police force for the investigation of certain offences affecting the public administration, for the superintendence and administration of the said force and jurisdiction of members of the said force in regard to the investigation of the said offences. 8. By notification dated 14-09-2000, in exercise of the powers conferred by section 3 of the Act 1947 and in super-session of all the previous notifications, the State Government has specified the following offences to be the offences of class of offences which are to be investigated by the M.P. Special Police Establishment namely Section-3:- "(a) Offences punishable under the Prevention of Corruption Act, 1988 (No. 49 of 1988)' (b) Offences under Section 409 and 420 and Chapter XVIII of the Indian Penal Code, 1860 (No. XLV of 1860) when they are committed, attempted or abetted by Public Servants or employees of a local authority or a statutory corporation, when such offences adversely affect the interests of the State Government or the local authority or the statutory corporation, as the case may be; (c) Conspiracies in respect of offences mentioned in item(a) and (b) above; and (d) Conspiracies in respect of offences mentioned in item(a) and )b) shall be charged with simultaneously in one trial under the provisions of Criminal Procedure Code, 1973 (No.2 of 1974)." 9. Learned counsel for the State produced before us the Notification dated 28-11-1989 issued by the State Government in exercise of the powers conferred by clauses of section 2 of the Code of Criminal Procedure, 1973 whereby the office of the Director of Special Police Establishment, Madhya Pradesh Bhopal has been declared to be police station for the purpose of the following offences, namely : (a) offences punishable under the Prevention of Corruption Act, 1988 (No.49 of 1988); (b) offences under sections 409 and 420 and chapter XVIII of the Indian Penal Code, 1860 (XLV of 1860) when they are committed, attempted or abetted by public servants or the employees of a local authority or a statutory corporation, when such offences adversely affect the interest of the State Government or the local authority or the statutory corporation, as the case may be; and (c) conspiracies in respect of offences mentioned in item (a) above," 10. By notification dated 28-11-1989 in exercise of the powers conferred by the first proviso to section 17 of the Prevention of Corruption Act, 1988 (Bo.49 of 1988), the State Government has authorized all the Inspectors of police attached to the Madhya Pradesh Special Police Establishment for the purpose of the section 17. 11. Before proceedings further to consider the issue involved in the present case, it is apt to refer in short the facts of the present case and for the sake of convenience the facts are noted from the case of Criminal Revision No. 544/2016 (Arvind Jain v. State of Madhya Pradesh). On 18-07-2010, on a written representation and after its inquiry on the said complaint, first information report given by informant Umesh Sharan Tiwari, Crime No. 91/2010 at police station Sendri, District Tikamgarh for the commission of offence under sections 420, 120-B/34 of IPC was registered against the following persons: (1) Smt. Sangeeta Verma (2) Nathuram Kushwaha (3) Arvind Jain. On 31-08-2014 after investigation, the police has filed the Charge Sheet/Final Report under sections 173 of Cr.P.C., 1973, under sections 420, 120-B/34 of IPC and under section 13(1)(B),13(1)(D) and 13(2) of Prevention of Corruption Act, 1988 against the present applicant. Vide order dated 10-02-2016, the learned Trial Court has framed the charges under sections 467/120-B, 468/120-B, 471/120-B, 420/120-B, and 201 of IPC and Section and sections 13(1)(D) and 13(2) of the Prevention of Corruption Act, 1988. 12. Vide order dated 10-02-2016, the learned Trial Court has framed the charges under sections 467/120-B, 468/120-B, 471/120-B, 420/120-B, and 201 of IPC and Section and sections 13(1)(D) and 13(2) of the Prevention of Corruption Act, 1988. 12. In all these criminal revisions, a challenge has been made to the charge sheet on the ground that the investigation was carried out by the Local Police in respect of the offences under the P.C. Act and therefore, the notification as well as the charges are illegal and contrary to the provisions of the P.C. Act. 13. Learned counsel for the State submitted that there is no illegality either in the investigation carried out by the Local Police in the light of the provisions of Section 3 of M.P. Special Police Establishment Act, 1947 and various notifications issued under section 17 of the Prevention of Corruption Act, 1988. 14. Learned counsel for the State relied on the judgment passed in the case of State of Madhya Pradesh and others v. Ram Singh, (2000) 5 SCC 88 , the judgment passed by this court in the case of Ashok Kumar Kirtiwar v. State of M.P., 2001(2) MPLJ, 264 and also unreported judgment of the Division Bench of this court passed in Criminal Revision No. 1512/2016 (Rakesh Singh Rathore v. State of Madhya Pradesh. It is not in dispute that so far the observations made in the case of Ravindra Kumar Dubey (supra) is no more a law in existence in the light of the order passed by the Apex Court in Special Leave Petition (CRL) No. 6437/2016. 15. In view of the consideration of Section 3 of M.P. Special Police Establishment Act, 1947 read with the provisions of Section 17 of the Prevention of Corruption Act and also taking into consideration the provisions of section 156 of the Code of Criminal Procedure, 1973 there is no even a slightest indication of any of the provisions of the Act that it was meant to deal with the offence of bribery and corruption by the State Government employees only and to exclusion of the offences committed by the Central Government employees. No such exclusion is found in the Act either expressly or by implication. No such exclusion is found in the Act either expressly or by implication. The contention that the Delhi Special Police Establishment Act, 1946 confers exclusive jurisdiction on the Special Police force created under the Act to investigate the offences of bribery and corruption committed by the Central Government Employees, is wholly unfounded and misplaced. While Central Act does provide for an agency for investigation of such offences committed by the Central Government employees, there is however, no provision in the Act to exclude jurisdiction of the Police Officer of the various states to investigate the said offences when committed by such employees in their state. The scope of Central Act of 1946 is rather limited in as much as it provides for the investigation of such offences when committed by the Central Government employees only. The Special Police Force under this Central Act cannot investigate the offence committed by the State Government employees. 16. The legal position in the matter is made luculent by the Supreme Court in A.C. Sharma v. Delhi Administration, AIR 1973 SC 913 , wherein almost similar fact situation, the Apex Court held : "The setting up of Delhi Special Police Establishment by the Central Government under the D.S.P.E. Act does not by itself deprive the anti- corruption branch (Delhi Administration) of its jurisdiction to investigate the offence of bribery and corruption against Central Government employees in Delhi. The P.C. Act of 1988 is a social legislation intended to curb illegal activities of public servants. As observed in Ramsingh 2000(5) SCC 88 , "The Act is designed to be liberally construed so as to advance its object, Procedural delays and technicalities of law should not be permitted to defeat the object sought to be achieved by the Act. The over-all public interest and the social object is required to be kept in mind while interpreting various provisions of the Act and deciding cases under it." Our view of the matter is also consistent with the object of the P.C. Act. 17. The ancillary question which arises for consideration is effect of an illegal investigation on filing of a charge sheet before the court or law. 17. The ancillary question which arises for consideration is effect of an illegal investigation on filing of a charge sheet before the court or law. Three Judges Bench of the Apex Court in the case of H.N. Rishbud v. State of Delhi, AIR 1955 SC 196 has held that a defect or illegality in investigation, however serious, has no direct bearing on the competence or the procedure relating to cognizance or trial. Referring to the provisions of Sections 190, 193, 195 to 199 and 537 of the Code of Criminal Procedure (1898) in the context of an offence under the Prevention of Corruption Act, 1947, the court held: "A defeat or illegality in investigation, however serious, has no direct bearing on the competence or the procedure relating to cognizance or trial. No doubt in a public report which results from an investigation is provided in section 190 CrPC, 1973 as the material on which cognizance is taken. But, it cannot be maintained that a valid and legal police report is the foundation of the jurisdiction of the court to take cognizance section 190 CrPC, 1973 is one out of a group of sections under the heading 'Conditions requisite for initiation of proceedings'. The language of this section is in marked contrast with that of the other sections of the group under the same heading i.e. Sections 193 and 195 to 199." The same was reiterated in the case of State of M.P. and others v. Ram Singh (supra) 18. In the case of Union of India v. Prakash P. Hinduja, AIR 2003 SC 2612 , it was held that once the charge sheet is filed merely because the Investigating Agency had no jurisdiction to investigate the matter, the charge sheet cannot be quashed as it is not possible to say that "cognizance on a in-valid police report is prohibited and is therefore quashed" 19. In the conspectus of above discussion, it is held that in view of Section 3 of M.P. Special Police Establishment Act, 1947, the police has jurisdiction to investigate and conduct the trial for the offences under the Prevention of Corruption Act, 1988. The offence of bribery and corruption against the Central Government employees posted in the State of M.P. can be investigated by regular police force or Special Police Establishment. 20. The offence of bribery and corruption against the Central Government employees posted in the State of M.P. can be investigated by regular police force or Special Police Establishment. 20. In view of the reference answered by us, the matter be placed for consideration on merit as per roster.