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Vithoba Vs. State of Maharashtra - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai High Court
Decided On
Judge
Reported in1976CriLJ1281
AppellantVithoba
RespondentState of Maharashtra
Excerpt:
.....frivolous and vexatious proceedings, that a magistrate cannot surrender his discretion to a police officer but must exercise it having regard to the relevant material made available to him at the stage of granting permission and he must also be satisfied that there is a reason owing to exigencies of the administrative convenience to entrust a subordinate officer with the investigation. 3 kothe is clearly one sided as he appears to be impressed only by whatever the complainant who happened to be his batch-fellow (p. 26. it is difficult to dispel the impression one gets of want of proper and thorough investigation, and the criticism has to be accepted as well founded. korpe insisted on seizing the cash from the accused asking him to take out his shirt and making a seizure thereof,..........including the one under section 165-a of the indian penal code and in express terms prohibits the police officer below the rank of a deputy superintendent of police as in the present case, to investigate into it. if such a police officer is required to investigate, he has to do so after obtaining the order from the magistrate mentioned in the section. he has also to effect arrests after taking the order. this provision in section 5-a and the provisions of the code of criminal procedure pertaining to investigation have been considered by the supreme court authoritatively, and it has been pointed out what are the steps such investigation would constitute. in h. n. rishbud v. state of delhi : 1955crilj526 it was pointed out that proper investigation by an appropriate police officer was the.....
Judgment:

Masodkar, J.

19. Now all this criticism requires a serious consideration. It must be pointed out that the offence contemplated by Section 165-A of the Indian Penal Code is by its very nature a serious one and every care must be taken that the same is properly and thoroughly investigated. If merely the word of a public servant has to be acted upon without anything more, the very purpose for which special provisions as to investigation have been made are likely to be rendered nugatory. It is not unlikely that persons going with the ostensible purpose of selling tickets for their own cause to the citizens at large, may be motivated by various and extraneous reasons for making allegations against them. Every care, therefore, must be disclosed by the authority charged with the statutory duty of investigating an offence of this kind to remove all traces of doubts about such matters and further put every material before the Court which will enable it to come to only one conclusion about the culpability or the guilt of the accused.

20. Provisions of Section 5-A of the Prevention of Corruption Act, 1947, deal with investigation into the cases for the offences including the one under Section 165-A of the Indian Penal Code and in express terms prohibits the police officer below the rank of a Deputy Superintendent of Police as in the present case, to investigate into it. If such a police officer is required to investigate, he has to do so after obtaining the order from the Magistrate mentioned in the section. He has also to effect arrests after taking the order. This provision in Section 5-A and the provisions of the Code of Criminal Procedure pertaining to investigation have been considered by the Supreme Court authoritatively, and it has been pointed out what are the steps such investigation would constitute. In H. N. Rishbud v. State of Delhi : 1955CriLJ526 it was pointed out that proper investigation by an appropriate police officer was the normal preliminary to the trial in respect of such offences. While explaining the scheme of the Code of Criminal Procedure and the investigation, the Court pointed out that it consisted of taking following steps:

(1) Proceeding to the spot,

(2) Ascertainment of the facts and circumstances of the case,

(3) Discovery and arrest of the suspected offender,

(4) Collection of evidence relating to the commission of the offence which may consist of (a) the examination of various persons (including the accused) and the reduction of their statements into writing, if the officer thinks fit, (b) the search of places or seizure of things considered necessary for the investigation and to be produced at the trial, and

(5) Formation of the opinion as to whether' on the material collected there is a case to place the accused before a Magistrate for trial and if so taking the necessary steps for the same by the filing of a charge-sheet under Section 173 of the Criminal Procedure Code. It is further stated that when an officer of a lower rank seeks the permission to conduct the investigation, the Magistrate is expected to satisfy himself that there are good and sufficient reasons for authorising such an officer to investigate. The granting of such permission was not a matter of mere routine, but is an exercise of the judicial discretion having regard to the policy underlying it. The very same propositions and principles were reiterated by the Supreme Court in State of Madhya Pradesh v. Mubarakali : 1959CriLJ920 .

21. In Sailendranath Bose v. State of Bihar AIR 1968 SC 1292 : 1968 Cri LJ 1484, it was observed that the provisions of Section 5-A must strictly be complied with for they are conceived in public interest and are provided as a guarantee against frivolous and vexatious proceedings, that a Magistrate cannot surrender his discretion to a police officer but must exercise it having regard to the relevant material made available to him at the stage of granting permission and he must also be satisfied that there is a reason owing to exigencies of the administrative convenience to entrust a subordinate officer with the investigation. It is desirable that the order giving permission should ordinarily on the face of it disclose the reasons for giving such permission. It may be mentioned that in Sailendranath's case, the order did not state the reasons and the learned Magistrate had merely written permission granted. In the application filed for seeking permission, no special reason for permitting him to investigate was disclosed. With reference to these facts, the Court observed:.It is surprising that even after this Court pointed out the significance of Section 5-A in several decisions there are still some Magistrates, and police officers who continue to act in a casual manner. It is obvious that they are ignorant of the decisions of this Court.

However, their Lordships did not interfere with the conviction by observing that the illegality in the investigation had not been challenged in the trial Court.

22. In this appeal, therefore, when this question was argued, some such similar stand was taken on behalf of the State with an addition that even if there is any illegality no prejudice appears to have been caused to accused and reliance was placed on Khandu Sonu v. Stale of Maharashtra : 1972CriLJ593 . There the Supreme Court observed that where the trial of the case has proceeded to termination the invalidity of the preceding investigation would not vitiate the conviction of the accused as a result of the trial unless the illegality in the investigation has caused prejudice to the accused. While considering this aspect of the matter, the Court took into account the submission that the permission to make investigation was granted on November 12, 1966 and before that date certain evidence was already collected, While repelling that this constituted a vice which reached the root of the matter, the Court observed that it must be shown that the illegality in the investigation has brought about a miscarriage of justice, The following passage may usefully be extracted:.The underlying reason for the above dictum is that an illegality committed in the course of investigations does not affect the competence and jurisdiction of the Court to try the accused. Where, therefore, the trial of the case has proceeded to termination, the invalidity of the preceding investigation would not vitiate the conviction of the accused as a result of the trial unless the illegality in the investigation has caused prejudice to the accused.

23. These authorities, therefore, indicate that if an illegality in the matter of investigation conceivably results in miscarriage of justice or, in other words, causes prejudice to the defence, then that can be set up by the accused as a plea against his conviction for offences mentioned in Section 5-A of the Prevention of Corruption Act. In every case such a submission logically has to be based on the prejudice or miscarriage of justice that may be apparent or possible of being inferred as a result of faulty investigation.

24. Viewed from this angle, the facets that come forth in this particular investigation of the offence do indicate that there is such a possibility of miscarriage of justice. The application Exh. 28 is made on July 28, 1971 after as admitted by Mr. Kothe he had lodged the first-information report with the Tumsar Police Station which was under the charge of P. S. I. Korpe the complainant and it did not mention nor indicate any circumstances so as to presume that the authority mentioned in Section 5-A of the Act was not in a position to investigate the offence concerned. The entire application is ominously silent on this aspect. It merely states that one Shri Ramrao Korpe had lodged the complaint which constitutes an offence under Section 165-A of the Indian Penal Code, in that the accused attempted to offer a bribe of Rs. 50/- to Shri Korpe. No reasons are given why the permission was sought by Mr. Kothe for investigation. When he was asked about it he has simply said that there were no reasons for not mentioning in that application as to why the Deputy Superintendent of Police, Anti-Corruption, was not in a position to investigate. In fact, there is no evidence on this aspect of the matter. The Magistrate has made an order which suffers from the clear vice indicated by the Supreme Court in Sailendrartath's case 1968 Cri LJ 1484. There are no reasons obtainable in the text of the order itself nor any material is placed on record by the prosecution in that regard. The investigation has naturally proceeded only on the line indicated by P.W. 1 Korpe the complainant which consists of recording six statements. Thus there is hardly any investigation carried on by the Investigating Officer P.W. 8 Kothe as was required by law. Except recording the statements and seizing the five notes, he has not even gone to the spot nor thought it fit to record the statement even of the owner of the Rice Mill. There is no effort whatsoever made to find out whether there were any independent witnesses available when the alleged occurrence took place. It is further clear that during the investigation no material has been gathered which will have indicated that really the accused was involved in some such offences under the Bombay Prohibition Act for hushing of which he was offering bribe. This basic fact is not even touched. The alleged bottle containing liquor has not been seized nor produced. The impression given by the investigation carried on by P.W. 3 Kothe is clearly one sided as he appears to be impressed only by whatever the complainant who happened to be his batch-fellow (P.W. 1 Korpe) had stated.

25. This has, therefore, enabled the accused in this case to say that there has resulted serious miscarriage of justice, firstly, there being clear illegality in obtaining the permission by the officer of the lower rank without disclosing sufficient reasons in the application Exh. 27 and secondly, the order made by the Magistrate at Exh. 27-A on the face of it coming within the vice indicated by the Supreme Court in Sailendranath's case following the dicta laid down in Mubarakali's case.

26. It is difficult to dispel the impression one gets of want of proper and thorough investigation, and the criticism has to be accepted as well founded. The possibility of prejudice because of the illegality in the matter of investigation is not ruled out. One cannot predicate nor can pre-empt one's view what would have been the result of proper investigation had it been carried on by the authority of the rank of Deputy Superintendent of police as is normally required to be done under Section 5-A of the Prevention of Corruption Act.

27. This is more so for though there was independent evidence that could have been available the same has not been procured. Case of the defence had been that P.W. 1 Korpe was behaving in a most high-handed manner and was in fact making a show of his prowess. He had entered the premises with an ostensible purpose to sell the tickets, but it has not been shown that he has sold any tickets on the premises. His method of seizure of things on the premises of the Rice Mill which include taking off the shirt of the present accused, taking of all his currency notes and even his note-book and further more and which is really astonishing, even to seize the truck No. BYY 1434 from the Tukaram Rice Mill, which can have possibly no connection with any of the offences, were rightly pressed in aid to show that here was a witness who was behaving in a manner showing no circumspection or regard for the rights of others. It was throughout suggested to P.W. 1 Korpe that he was forcing the accused there to part with money and may be for the purpose of the police welfare fund. In fact, it was suggested to him that he gave two slaps to the accused which he denied. In the evidence of other two witnesses similar such suggestion was made and P.W. 5 Veljibhai stated that he does not remember.

28. All this makes a very sorry comment on the conduct of P.W. 1 Korpe. No doubt, he being a police officer was entitled to investigate into any offence if it comes to his notice. If it was as offence under the Bombay Prohibition Act that came to his notice, the investigation could have been restricted to taking out the blood and sending it for chemical findings. It would have also been expected of Mr. Korpe to call independent witnesses to record a panchanama if at all he was so minded so as to have corroborative evidence as to the condition of these persons. Nothing of this kind has been done. There is no explanation whatsoever why Mr. Korpe insisted on seizing the cash from the accused asking him to take out his shirt and making a seizure thereof, and further there is no good reason to understand why he also seized the truck on the premises of Tukaram Rice Mill unconcerned with any offence. In fact, the record of this case is absolutely silent about any step being taken by Mr. Korpe to collect the blood of the accused and to get it chemically analysed to find out whether the accused could even be held to be guilty under the Bombay Prohibition Act, As stated earlier, even the alleged bottle has not been produced nor there is any evidence to indicate that its contents were chemically analysed,

29. All this lends support, therefore, to the suggestion and thereby the possibility is raised, that the evidence of P.W. 1 Korpe along with his two companions i. e. P.W. 2 Daryaosingh and P.W. 5 Veljibhai, cannot be accepted as disinterested and proving the guilt beyond reasonable doubt. In fact, P.W. 5 Veljibhai states that Rajaram, the third person ran away from the spot. It was put to him that Sulemankhan was present at the spot and he says he does not know whether he was so present. According to P.W. 1 Korpe, Rajaram did not go out. According to him, liquor bottle was in the hand of the accused, while according to P.W. 5 Veljibhai, it was on the ground in front of these persons. While the panchanama was being written, P.W. 1 Korpe says, Rajaram ran away, while according to P.W. 5 Veljibhai, as soon as they entered Rajaram came out of the office and went away and thereafter Korpe pushed the door and opened the office. In cross-examination, Veljibhai says that when Rajaram came out he was caught. According to P.W. 5 Veljibhai the liquor bottle, the glass and the pud of Shevchiwada were lying near a Khoka. He does not know whether Sulemankhan had come on the spot, but he is sure that the working of the Mill was going on. It is also in evidence of P.W. 1 Korpe and other two companion witnesses P.W. 2 Daryaosingh and P.W. 5 Veljibhai, that this accused along with the others was not in a position to talk coherently and were smelling liquor. Thereby they are suggesting that those persons including the accused were under the influence of liquor. These are all the matters therefore, that go to show that even the accused who was under the influence of liquor might not be knowing what he was talking about and it is difficult to attribute a conscious animus to the accused in offering the alleged bribe as is said by P.W. 1 Korpe.

30. Taking, therefore, the overall view of the evidence, it is difficult to sustain the conviction of the accused. There is no independent evidence on record. The evidence of P.W. 1 Ramrao Korpe, P.W. 2 Daryaosingh and P.W. 5 Veljibhai is interested one and came within the caution sounded in Darshan-lal's case : 1974CriLJ307 and does not inspire confidence so as to hold the accused guilty beyond reasonable doubt. There are variations too in the statements of all these witnesses taken together and it does appear from the evidence of P.W. 2 Daryaosingh and P.W. 5 Veljibhai that they are usual visitors of the police Station, Tum-sar. P.W. 3 P. S. I. Kothe, who has been the investigating officer, is a batch fellow of the complainant Ramrao Korpe. He has been mainly guided in the investigation by what was told to him by the complainant and there is no independent investigation of the entire matter. I have already pointed out that the permission taken for investigation and the order made also suffers from the illegality having clear tendency to prejudice the search of truth in these matters.

31. All this, therefore, leads me to conclude that the prosecution has failed to establish the guilt of the accused beyond reasonable doubt. The truth may be lying midway to what P.W. 1 Korpe states on one hand and what Sulemankhan (D. W. 1) states on the other.

32. In the result, the present appeal is allowed, the order of conviction and sentence is set aside and the accused-appellant is acquitted of the offences with which he stood charged and was tried. Bail bond of the accused-appellant to stand cancelled. Fine, if paid, shall be refunded. The currency-notes admittedly being the property of the accused are directed to be returned to him.


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