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Lt. Col. G.K. Apte and ors. Vs. Union of India (Uoi) and ors. - Court Judgment

LegalCrystal Citation
Subject;Criminal
CourtGuwahati High Court
Decided On
Judge
AppellantLt. Col. G.K. Apte and ors.
RespondentUnion of India (Uoi) and ors.
Prior history
S.K. Dutta, C. J.
1. This is a revision petition. The petitioner's case is that he had been serving in the Indian Army as a Commissioned Officer for 23 years and pensioned off since 1st December, 1967. In the year 1960 the Central Government decided to construct roads on the northern corners of India with one of the headquarters at Tezpur under the command of Brigadier O.M. Mani, Chief Engineer and with such headquarters at Dibrugarh, Along and other places in North East Frontier Agency under
Excerpt:
.....could be taken for want of sanction, the second charge must also fail. in that case the charge of conspiracy referred to certain cognizable as well as to non-cognizable offences......is pointed out that section 5a of the act lays down that notwithstanding anything contained in the code of criminal procedure, no police officer below the rank far in the presidency towns of madras and calcutta, of an assistant commissioner of police (b) in the presidency town of bombay, of a superintendent of police, and (c) elsewhere, of a deputy superintendent of police shall investigate any offence punishable under section 161, section 165, or section 165a of the indian penal code or under sub-section (2) of 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.8. in section 4 (n) of the criminal procedure code, non-cognizable offence is defined as an offence for which.....
Judgment:

S.K. Dutta, C. J.

1. This is a revision petition. The petitioner's case is that he had been serving in the Indian Army as a Commissioned Officer for 23 years and pensioned off since 1st December, 1967. In the year 1960 the Central Government decided to construct roads on the northern corners of India with one of the headquarters at Tezpur under the command of Brigadier O.M. Mani, Chief Engineer and with such headquarters at Dibrugarh, Along and other places in North East Frontier Agency under En gineer Commanders. The petitioner was one of such Engineer Commanders and posted at Dibrugarh from November 1960 to 2nd April 1962 under the said Chief Engineer, as a Division Commander, local purchases of stores required for the construction of roads, bashas, bridges and culverts, materials like bricks, broken bricks, bamboos thatch, timbers and sand etc. These materials had to be removed from Dibrugarh to Lekhabali, Sonarighat, Deo-righat and other places beyond the river Brahmaputra and to be airlifted to Along and other places in North East Frontier Agency from Mohanbari. The petitioner was authorised to direct local purchases of the said materials up to the extent of Rs. 10,000/- per each supply order to be issued by the petitioner under his signature only and he was also authorised to enter into a contract to the extent of Rs. 5,00,000/-. The construction of the roads was treated as an emergency work and hence acceptance of the supply quo tations and purchases on negotiations from suppliers were permitted and quotations from the suppliers were not insisted upon.

On the 5th July, 1963 that is more than one year after the petitioner was transferred to Roorki as Commander of the G. R. E. F. Centre, the Superintendent of Police of the Special Police Establishment, C. I. A., New Delhi filed a first information report alleging that the petitioner and one Israil Khan had by manipulation of quotations caused supply orders to be issued in the name of Israil Khan and Sons in which they were interested, giving exorbitant rates. It was alleged that the petitioner abused his position as a public servant in the matter of purchase of materials and also in carriage of stores by boats across the Brahmaputra and thereby committed misconduct in the discharge of his duties. On these allegations a Special Judge by order dated the 29th April, 1968, framed charges against the petitioner and this revision petition has been filed for quashing the same.

2. It is necessary to mention certain dates to show how the case progressed during the course of nearly six years. The first information report was submitted on 5-7-63, and the accused was put under suspension in October of that year. The statements of witnesses were recorded from the 10th July up to the 13th October, 1964. Sanction for prosecution under Section 6 of the Prevention of Corruption Act 1947 (hereinafter called the Act} was granted by the Government on 3-9-64 and on 21-10-64 charge sheet was filed in Court. The accused was summoned to appear in Court in June, 1965 and some documents under Section 173, Criminal Procedure Code were filed on the 18th November, 1966. As the accused was not given copies of the said documents, in April 1967, he filed an application for supply of relevant documents and the Court passed an order on 15-5-67 for the supply of such documents to the accused.

The prosecution moved this Court against the order of the Judge dated 15-5-67 and this Court dismissed the petition on 12-9-67. The accused also moved this Court for quashing the proceedings and this Court dismissed the petition on (12-4-68. The charges were framed on 29-4-68 and against this order framing the charges, this Court was moved on 1-5-68 by a petition which is before us now. the accused has first been charged of conspiracy to commit an offence punishable under Section 5(2) of the Act. Secondly he has been charged for committing that offence in pursuance of the conspiracy.

3. The first point raised by Mr. Mai-kani is that under Section 549 of the Criminal Procedure Code the Central Government may make rules as to the cases in which persons subject to military, naval or air force law shall be tried by a Court to which the Code applies or by court-martial. The Central Government framed rules under the said section called the Criminal Courts and Court Martia (Adjustment of Jurisdictic) Rules 1952. It is not necessary to quote all the rules. It will suffice to say that under Rule 3- of the said rules, when a person subject to military, naval or air force law, is brought before a Magistrate on accusation of an offence for which he is liable to be tried by court martial the Magistrate is not to proceed with the case unless he is moved to do so by the relevant military authority. He can, however, proceed with the case when he is of the opinion, for reasons to be recorded, that he should so proceed without being moved in that behalf by a competent authority.

Even in such a case, the Magistrate has to give notice of his opinion to the Commanding Officer and he is not to pass any order of conviction or acquittal or frame charge or commit the accused until the expiry of seven days from the service of the notice. The Commanding Officer can inform the Magistrate that in his opinion the accused should be tried by court-martial. Subsequent rules prescribe the steps to be taken thereafter. It is an admitted fact that in the instant case these rules were not followed.

It is conceded that Section 549, Criminal Procedure Code did not formerly apply to proceedings before a Special Judge: However, by the Criminal Law Amendment Act of 1966 (hereinafter called the Act of 1966), it is declared that for the purposes of the Criminal Law Amendment Act of 1952, by which the appointment of Special Judges is provided, the Court of a Special Judge shall be deemed to be a Court of ordinary criminal justice. Then Sub-section (1) of Section 5 of the Act of 1966 reads as follows:

5. (1) Notwithstanding anything contained in this Act or in the principal Act as amended by this Act,--

(a) cases pending immediately before the 30th day of June, 1966, before a special Judge in which one or more persons subject to military, naval or air force law is or are charged with and tried for an offence under the principal Act together with any other person or persons not so-subject, and

(b) cases pending immediately before the said date before a special Judge in which one or more persons subject try military, naval or air force law is or are alone charged with and tried for an offence under the principal Act and charges have already been framed against such person or persons, shall be tried and disposed of by the special Judge.'

4. In the case before us the charge-sheet was submitted on 21-10-64 and the charge was framed on 29-4-68. The petitioner is charged and being tried together with a person who is not subject to military, naval or air force law. The learned Advocate-General therefore submits that as the accused was charge-sheeted and his trial commenced before 30-6-66, clause (a) of the above Section 5(1) applies in this case and the proceedings can be continued before the Special Judge. Mr. Malkani's first contention is that the word 'charged' means framing of charge and therefore the above provision does not save the present proceedings as admittedly the charge was framed after the 30th June, 1966. There is no force in this argument. The word 'charged' can only mean the submission of the charge-sheet.

It is obvious from Sub-section (2) that where the accused is subject to military, naval or air force law. and is alone charged and tried for an offence and charges have already been framed against such person before 30-6-66, the case shall be disposed of by the special Judge. This shows that a distinction is made between 'charged' and 'framing of charge.'

5. Mr. Malkani next argues that 'trial' begins only after the magistrate satisfies himself under Section 251-A (1) that all the documents referred to in Section 173, Criminal Procedure Code have been furnished to the accused. He points out that even long after the 30th June, 1966, some of the documents were not so furnished and the magistrate had to order the prosecution to furnish the same. Therefore, he contends that the trial did not begin before the 30th June, 1966. There is no force in this argument either. The word 'trial' was defined in the Criminal Procedure Code of 1872 to mean proceedings after the framing of charge. This definition was dropped and now there is no fixed or universal meaning of the said word. It must be construed according to the particular context and intendment of each individual section. Under Section 251-A (1), the documents are to be given at the commencement of the trial when the accused appears or is brought before a magistrate. Therefore, obviously the trial under the section begins as soon as the accused appears or is brought before a magistrate. In this view of the matter the trial of the accused in the present case began long before the 30th June, 1966 and clause (a) of Section 5(1) of the Act of 1966 applies to it.

6. The second contention of Mr. Malkani is that under Section 196A (2) of the Criminal Procedure Code, sanction of the State Government or a Chief Presidency Magistrate or District Magistrate specially empowered is necessary for a Court to take cognizance of an offence of conspiracy where the object of the conspiracy is to commit any non-cognizable offence. In the present case charges have been framed on the allegation that the accused entered into a conspiracy to commit an offence under as. 5 (2)/5(1)(d) of the Prevention of Corruption Act (hereinafter called the Act). A second charge has been framed on the allegation that the accused in pursuance of the said conspiracy committed offences under the said sections.

7. It is pointed out that Section 5A of the Act lays down that notwithstanding anything contained in the Code of Criminal Procedure, no police officer below the rank far in the Presidency towns of Madras and Calcutta, of an Assistant Commissioner of Police (b) in the Presidency town of Bombay, of a Superintendent of Police, and (c) elsewhere, of a Deputy Superintendent of Police shall investigate any offence punishable under Section 161, Section 165, or Section 165A of the Indian Penal Code or under Sub-section (2) of 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.

8. In Section 4 (n) of the Criminal Procedure Code, non-cognizable offence is defined as an offence for which a Police officer may not arrest without a warrant. It is submitted that an offence under Section 5 of the Act is non-cognizable as a police officer, which means any police officer, cannot make an arrest for it without a warrant.

9. Civil Revn. No. 53 of 1968 was heard by this Bench and it was submitted in that case on behalf of the petitioner that when the offence under Section 5 of the Act was investigated by an Inspector of Police, it would be non-cognizable, as the Inspector could not make an arrest without a warrant. But when it was investigated by a Deputy Superintendent of Police, who could arrest without a warrant, it would be cognizable. This argu-nient was accepted. Now the contention is that an offence under Section 5 of the Act is always non-cognizable. It may be noted that in Civil Kula No. 53 of 1968 the offence was investigated by an Inspector of Police and in the present case it was investigated by a Deputy Superintendent of Police. The new contention is now for our consideration.

10. At this stage we may deal with the history of the offence of bribery by public officers. under the criminal procedure Code, most of the offences relating to public servants as such were non-cognizable. As pointed out by the Supreme Court in H.N. Bishbud v. State of Delhi : 1955CriLJ526 , the underlying policy was that public servants who had to discharge their functions often under difficult circumstances, should not be exposed to the harassment of investigation against them on informations levelled, possibly by persons affected by their official acts, unless a magistrate was satisfied that an investigation was called for and on such satisfaction authorised the same.

There was widespread corruption among the public servants in the wake of the second World War due to various controls, licenses etc. introduced for regulating trade and commerce. So, the Act was passed in 1947 and it was laid down in Section 3,' that offences under Sections 161, 165 and 165A of the Indian Penal Code would be deemed to be cognizable offences for the purposes of the Criminal Procedure Code notwithstanding anything to the contrary contained therein. It was also provided that a police officer below the rank of a Deputy Superintendent of Police would not investigate such an offence without the order of a Magistrate or make any arrest without warrant. This proviso was omitted when Section 5-A of the Act was inserted.

Then by the Code of Criminal Procedure (Amendment) Act 1955, as. 161 and 165 were made cognizable and these sections were therefore omitted from Section 3 of the Act by an amendment of 1955. The result is that the offences under Sections 161, 165 and 165-A of the Indian Penal Code have become cognizable for the purposes of the Criminal Procedure Code. But it is laid down in Section 5-A of the Act that no police officer below the rank of a Deputy Superintendent of Police can investigate any offence punishable under the above sections or Section 5(2) of the Act without the order of a Presidency Magistrate or Magistrate of the first class, as the case may be, or make any arrest therefor without a warrant.

11. In the Rishbud case, : 1955CriLJ526 mentioned above, the Supreme Court observed as follows:

'When, therefore, the Legislature thought fit to remove the protection of the public servants, in so far as it relates to investigation of the offences of corruption comprised in the Act, by making them cognizable, it may be presumed that it was considered necessary to provide a substituted safeguard from undue harassment by requiring that the investigation is to be conducted normally by a police officer of a designated high rank.'

12. The learned Advocate-General contends that the above observation means that an offence punishable under Section 161 or 165 or 165A, Indian Penal Code is cognizable and Section 5A of the Act. only provides a safeguard to public officers. He further contends that an offence punishable under Section 5(2) of the Act is also cognizable under the Criminal Procedure Code as the punishment prescribed by it may extend to imprisonment for seven years and Section 5A only provides a safeguard.

13. We do not think that the interpretation given by the learned Advocate-General to the observation in question is correct. The offences of bribery and corruption on the part of public officers, have been made cognizable for the purposes of the Criminal Procedure Code, But when investigation is made into such an offence under the Act, a safeguard is provided in Section 5A of the said Act. The Supreme Court does not say that such an investigation will be an investigation into a cognizable offence.

14. The Criminal Law Amendment Act of 1952 provides for appointment of Special Judges for the trial of offences punishable under Sections 161 or 165 or 165A, Indian Penal Code or Section 5(2) of the Act. As said above, the question is whether an offence punishable under Section 5(2) of the Act is cognizable or non-cognizable. In the Rishbud case, : 1955CriLJ526 the Supreme Court observed that offences were divided into two categories, cognizable and non-cognizable 'for the purposes of investigation'. Section 155(2) of the Criminal Procedure Code lays down that no police-officer shall investigate a non-cognizable case without the order of a magistrate. Section 156 of the said Code confers powers on any officer in charge of a police-station to investigate a cognizable case without any order of a magistrate. Hence if an offence punishable under Section 161 or 165 or 165A, Indian Penal Code is investigated under Section 156, Criminal Procedure Code as a cognizable offence, the court can punish only under those sections and the prescribed punishment is imprisonment of either description for a term which may extend to three years or with fine or with both.

15. The offence of 'misconduct' punishable under Section 5(2) of the Act is defined in Section 5. 'Misconduct' as defined there includes not only the offences under as. 161, 165 and 165A of the Indian Penal Code, but also some new offences. Hence a man who commits an offence under Section 161 or 165 or 165A of the Indian Penal Code can be punished either under Section 5(2) of the Act or under the said section of the Indian Penal Code. The punishment prescribed by Section 5(2) of the Act is imprisonment for a term which shall not be less than one year and may extend to seven years and also fine. The Court may, however, for special reasons to be recorded in writing impose a sentence of imprisonment of less than one year.

If an offence under Section 161 or 165 or 165A, Indian Penal Code is to be punished under Section 5(2) of the Act, the investigation must be under the Act and in that case no police-officer below the rank of a Deputy Superintendent of Police can investigate it without the order of a Presidency Magistrate or magistrate of the first class, as the case may be. An offence punishable under Section 5(2) of the Act is non-cognizable as Section 15b. Criminal Procedure Code which authorises an officer in charge of a police-station to investigate a cognizable offence without the order of a magistrate, will not apply to investigation of an offence made under the Act. Thus, if a public servant is accused of accepting bribe, an investigation can be made under Section 156 of the Cr. P. C. followed by a trial in which he can be convicted under Section 161, Indian Penal Code. But investigation may also be made under Section 5A of the Act followed by a trial in which Sections 4 and 5(3) of the Act may be applied and the accused convicted under Section 5(2) of the Act. The investigation under Section 156 Cr. P. C. will be an investigation into a cognizable offence whereas investigation under Section 5A of the Act will be an investigation into a non-cognizable offence punishable under Section 5(2) of the Act.

16. The above interpretation appears to be in conformity with the policy of the legislature to give protection to the public officers. As explained above, the offence of 'misconduct' as defined in Section 5 of the Act has a very wide meaning. It includes the offences under Sections 161, 165 and 165A, Indian Penal Code and some more offences. As pointed out by the Supreme Court in the Rishbud case, : 1955CriLJ526 the Act creates two new rules of evidence, one under Section 4 and the other Section 5(3) of an exceptional nature and contrary to the accepted canons of criminal jurisprudence. These sections introduce an exception to the general rule as to the burden of proof in criminal cases and shift the onus on to the accused. Section 5(2) prescribes a very severe punishment. In view of all these, the investigation into an offence of 'misconduct' which is punishable under Section 5(2) has been left to police-offi cers of high rank and consequently such an offence is non-cognizable.

17. In the instant case, two charges were framed against the petitioner. The first charge is for conspiracy to commit an offence punishable under Section 5(2) of the Act. As such an offence is non-cognizable, sanction under Section 196A (2) of the Criminal Procedure Code was necessary. No such sanction was obtained. Hence the charge for conspiracy cannot stand. The second charge was for commission of offence punishable under Section 5(2) of the Act 'pursuant to the conspiracy.' As no cognizance of any case of conspiracy could be taken for want of sanction, the second charge must also fail.

18. The learned Advocate-General submits that if the charges are found to be invalid, the case should be sent back for reframing the charges. In this connection he cites the judgment of the Supreme Court in The State of Andhra Pradesh v. Kandimalla Subbiah : 1961CriLJ302 in which the case was sent back for reframing of charges. In that case the charge of conspiracy referred to certain cognizable as well as to non-cognizable offences. Hence the question of reframing of the charge could arise. But in the case before us the charge of conspiracy refers to a non-cognizable offence only viz. an offence punishable under Section 5(2) of the Act. Such a charge cannot exist in the eye of law as the Court could take no cognizance of such a conspiracy without sanction under Section 196-A (2) of the Criminal Procedure Code. Hence the charges must be quashed.

19. Mr Malkani has strenuously argued that the materials before the Special Judge disclosed no offence for which any charge could be framed and that the charges are so vague that the accused could not defend himself properly. He submits that several distinct offences, arising out of different transactions have been amalgamated in one charge. He further submits that the trial has been conducted in a most dilatory and vexatious manner and hence the entire proceedings are liable to be quashed.

20. We need not go into the above questions as we are quashing the charges on the ground already stated.

21. The petition is allowed and the charges are quashed. The rule is made absolute.

22. Criminal Revisions Nos. 87. 112 & 143 of 1968--Criminal Revisions Nos. 87, 112 and 143 of 1968 are also heard with this petition as they all arise out of the same case. The Delhi Special Police Establishment submitted charge sheet against Lt. Col. G. K. Apte (petitioner in Criminal Revision No. 63 of 1968). Major Sappn Hamid, K.K. Banerjee, who was the Ordnance Officer, Contractor Israil Khan and three employees of the said contractor. The learned magistrate discharged K.K. Banerjee and the employees of the contractor but framed charges of conspiracy against Lt. Col. G.K. Apte, Major Sappa Hamid and Israil Khan. Major Sappa Haraid and Israil Khan have aied Criminal Revisions Nos. 143 and 87 of 1968 respectively for quashing of the charges and the State has filed Criminal Revision No. 112 of 1968 against the order of discharge of K.K. Banerjee and the three employees of the contractor. All these cases are covered by our judgment In Criminal Revision No. 63 of 1968. In the result the petitions in Criminal Revi-sions Nos. 143 and 87 of 1968 are allowed and the charges framed against the petitioners are quashed. The petition in Criminal Revision No. 112 of 1968 is rejected.

K.C. Sen, J.

23. I agree.


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