1. This is an appeal against the judgment of the Special Judge, Dharwar, in Special C. No. 6 of 1960 on his file convicting the appellant under S. 161 of the Indian Penal Code and S. 5(2) of the Prevention of Corruption Act, 1947, and sentencing him to suffer simple imprisonment for six months under S. 161 of the Indian Penal Code and six months' simple imprisonment and a fine of Rs. 500 and in default of the payment of fine to suffer simple imprisonment for two months for the offence under S. 5(2) of the Prevention of Corruption Act, 1947, with a further direction that the substantive sentences of imprisonment awarded should run concurrently.
2. At the time this appeal came up for admission on 27 June, 1961 this Court found that the sentences awarded to the appellant by the learned Special Judge were less than the sentences prescribed under the statute and, therefore, a notice was ordered to be issued to the appellant to show cause as to why the sentence should not be enhanced in the event of the conviction being sustained. Accordingly a notice was issued to the appellant. Subsequently the respondent-State also filed an application for enhancement of the sentences and same has been registered as Criminal Revision Petition No. 433 of 1961. As the appeal and the criminal revision petition arise out of the same judgment they are heard together and are disposed of by this common judgment.
3. The charge against the appellant is that he demanded and accepted an illegal gratification of a sum Rs. 25 for issuing a medical certificate to P.W. 2, Marthawa Gowdar, from P.W. 1, G. A. Jahagirdar, while being a public servant and as such committed offences punishable under S. 161 of the Indian Penal Code and S. 5(2) of the Prevention of Corruption Act, 1947. The defence of the appellant was one of a denial. His case is that some of his subordinates bore ill-will towards him and they had all joined hands to unnecessarily involve him with the assistance of P.W. 1, Jahagirdar, and P.W. 2, Marthawa, and had enlisted the service of P.W. 18, Kallur, the inspector of police, and involved him in this case.
4. It is undisputed that the appellant was working as the Civil Surgeon in the civil hospital at Dharwar on the relevant date and as such he is a public servant. It is also not disputed that P.W. 2, Marthawa Gowdar, had approached the appellant on 5 March, 1960 for the issue of a medical certificate and that he examined her and directed her to come to the civil hospital on 7 March, 1960 for receiving the medical certificate. Similarly it is undisputed that the police party raided the Civil Surgeon's office room at Dharwar at about 3-30 p.m. on 7 March, 1960 and after search found M.Os. 1 to 3, the three currency notes, to which phenolphthalein power had been smeared, under a pad on the table in front of which the appellant was working and seized them under a mahazar drawn up in the presence of the panchas. It is the case of the prosecution that Marthawa Gowdar, who was a school mistress and a resident of Hubli, had applied for leave on medical grounds to the school board under the control of the Dharwar-Hubli Municipal Borough and had produced Ex. 17, a medical certificate, issued by a private doctor along with her application for leave; that P.W. 2, Marthawa Gowdar, was directed by the school board authorities to get herself examined by a Civil Surgeon attached to the civil hospital at Dharwar on 2 March, 1960 and accordingly she went to the hospital on the said date. It is alleged that Dr. Kulkarni, who was in sub-charge of the hospital whom she met in the hospital, demanded an illegal gratification for the issue of the certificate and endorsed on the letter that she had brought from the school board office that she should bring the certificate that had been issued by the private doctor. Subsequently on 2 March, 1960 according to the prosecution case Marthawa Gowdar met P.W. 1, Jahagirdar, near Dharwar Municipality and informed him that her attempt to get a certificate from doctors in the civil hospital had failed and requested him to help her in the matter of securing a certificate. P.W. 1, Jahagirdar, directed her to meet him on the following day, that is, on 3 March, 1960. Accordingly P.W. 2, Marthawa Gowdar, met P.W. 1, Jahagirdar, near the civil hospital on the afternoon of 3 March, 1960. It is alleged that P.W. 1, Jahargirdar, took P.W. 2, Marthawa Gowdar, to the appellant and requested him to issue a certificate after examining her to enable her to get the leave sanctioned and that the appellant went through the papers and demanded a sum of Rs. 60 as illegal gratification for the issue of the certificate. It is further alleged that the appeal made by P.W. 1, Jahagirdar, to the appellant to issue the certificate without expecting any money from P.W. 2, Marthawa Gowdar, on the grounds that she was poor, fell on his deaf ears and he threw away the papers saying emphatically that he will not issue a medical certificate unless the said sum of Rs. 60 was paid to him. It is alleged that P.W. 2, Marthawa Gowdar, felt helpless and began to weep and that P.W. 1, Jahagirdar, consoled her and asked her to meet him on the next day and assured her that he will be able to persuade the Civil Surgeon, to issue her a certificate after examining her. Accordingly on 4 March, 1960 P.W. 2, Marthawa Gowdar, came to Dharwar from Hubli and met P.W. 1, Jahagirdar, and both of them proceeded to the civil hospital. It is alleged that they were informed by the peon of the Civil Surgeon that the appellant was asleep and that he did know when he would get up from his bed. It is further stated that P.W. 1, Jahagirdar, peeped through the office window and found the appellant actually asleep on a cot in his room and therefore both them went away from the place. P.W. 1, Jahagirdar, and P.W. 2, Marthawa Gowdar, once again met the Civil Surgeon in the matron's room in the civil hospital on 5 March, 1960 and requested him to issue a certificate. It is stated that after some bargain the appellant agreed to reduce the demand from Rs. 60 to Rs. 25 and issue a certificate on the assurance held out to him by P.W. 1, Jahagirdar, that he would make the payment and take the certificate. The appellant made an endorsement of the result of his examination on the letter issued by the school board authorities and directed his stenographer a certificate and keep it ready for delivery on Monday, that is, on 7 March, 1960. P.W. 2, Marthawa Gowdar, went back to Hubli assuring P.W. 1, Jahagirdar, that she would get Rs. 25 on Monday and pay the same to the appellant and collect the certificate. It is stated that on 6 March, 1960 she sent a letter to P.W. 1, Jahagirdar, pleading her inability to raise the amount of Rs. 25 for paying the bribe to the appellant and requesting him to pay the amount on her behalf and collect the certificate and deliver the same to the school board authorities to enable her to get her salary. It is also stated that in the said letter she indicated that she would have arranged to get the appellant trapped if only she could afford to do that. According to the version of the prosecution, P.W. 1, Jahagirdar, took hint from the suggestion made by P.W. 2, Marthawa Gowdar, in the letter which he received on the afternoon of 6 March, 1960 and approached P.W. 18, Kallur, the inspector of police, attached to the Anti-Corruption Department, and who was camping in the police club at Dharwar and orally complained to him that the appellant was demanding illegal gratification for issuing a certificate to P.W. 2, Marthawa Gowdar, though under the rules he was bound to issue a certificate without any fees. P.W. 18, Kallur, recorded the statement of P.W. 1, Jahagirdar, and secured his signature. He collected Ex. 12 (the chit) that had been sent P.W. 2, Marthawa Gowdar, to P.W. 1, Jahagirdar, on the same day. He then proceeded to Hubli and applied to the Judicial Magistrate, First Class, for according sanction to him to investigate the charges that had been levelled against the appellant by P.W. 1, Jahagirdar. The learned Magistrate accorded sanction. On 6 March, 1960 P.W. 18, Kallur, had directed P.W. 1, Jahagirdar, to be ready to see him in the police club with a sum of Rs. 25 to arrange for a trap on the following day. Accordingly P.W. 1, Jahagirdar, met P.W. 18, Kallur, on the morning of 7 March, 1960 with a sum of Rs. 25. Thereafter necessary steps were taken by P.W. 18 to secure the panchas and to draw up a mahazar in their presence. P.W. 1, Jahagirdar, produced two ten-rupee and one five-rupee currency notes before panchas. One of the head constables smeared phenolphthalein powder on those notes and demonstrated to the panchas present at the place that when phenolphthalein powder is treated with soda bicarbonate solution, it would turn pink. A mahazar nothing all these things was drawn up in the police club. The currency notes were then handed over to P.W. 1, Jahagirdar, with instruction to him that he should go to the Civil Surgeon's office along with P.W. 5, Kori, and deliver them in case the Civil Surgeon demanded illegal gratification for issuing the certificate. P.W. 1, Jahagirdar, and P.W. 5, Kori, were instructed to give a signal in case the appellant demanded and accepted the illegal gratification from P.W. 1, Jahagirdar. The other panchas and the police staff proceeded to the civil hospital and were lying in wait round about the office of the Civil Surgeon. They all reached the Civil Hospital, Dharwar, at about 11-30 a.m. or at 12 noon. It is alleged that they were so waiting near the civil hospital till about 3-30 p.m. when the appellant came to his officer after his rounds and on being informed by P.W. 3, Kshira Sagar, stenographer, that P.W. 1 was waiting for him, asked him to secure P.W. 1, Jahagirdar, to his room of the Civil Surgeon along with P.W. 5, Kori, and on being questioned by the appellant told him that he had brought the money. In the meanwhile, according to the version of the prosecution, P.W. 3, Kshira Sagar, had brought the certificate and other connected papers and placed them on the table of the appellant for his signature. On being informed by P.W. 1, Jahagirdar, that he had brought the money, the appellant affixed his signature to the certificate and delivered the papers to P.W. 3, Kshira Sagar, with a direction that he may put the outward number and deliver the same to P.W. 1, Jahagirdar. It is also stated that the appellant demanded P.W. 1, Jahagirdar, to pay him the money and P.W. 1 took out from his pocket M.Os. 1 to 3 and placed them in his hands. On being informed by the appellant that the certificate will be delivered to P.W. 1, Jahagirdar, by P.W. 2, Kshira Sagar, after nothing the outward number on it, all the three persons, namely, P.W. 3, Kshira Sagar, P.W. 1, Jahagirdar, and P.W. 5, Kori, went out of the office. The complainant and P.W. 5, Kori, gave the pre-arranged signal; then the police party raided the office of the Civil Surgeon. It is alleged that P.W. 18, Kallur, disclosed his identity to the appellant and directed him to produce the money that he had received from P.W. 1, Jahagirdar, and that appellant denied having received any money. Thereafter P.W. 18, Kallur, directed P.W. 6, M. G. Patil, one of the panchas, to search the person of the appellant. Accordingly P.W. 6, Patil, searched the person of the appellant. A sum of Rs. 29 and odd was found in one of the pockets of the pant of the appellant and the same was taken out by P.W. 6, Patil, and placed on the table. On verification they found that the numbers of none of the currency notes in the pockets tallied with the numbers of notes which had been tainted with the powder and recorded in the mahazar drawn at the time when the currency notes were entrusted to P.W. 1, Jahagirdar. Thereafter P.W. 6, Patil, searched the pockets of the bush coat of the appellant which had been hung in the room and no amount was found in any one of those packets. P.W. 18, Kallur, then directed P.W. 6, Patil, to search the drawers of the table and the files of papers that were lying on the table. Nothing was found in the drawers. It is alleged that when the several files that were lying on the table which was in front of the appellant were being searched P.W. 6, Patil, found some currency notes in between a pad and a register kept and took them out. On verification they found that those notes were the notes that had been entrusted to P.W. 1, Jahagirdar, in the police club for being delivered to the appellant in case he demanded any illegal gratification as agreed previously. In the meanwhile the appellant had been directed to wash his hands in the soda bicarbonate solution prepared by inspector, Kalaswar, one of the members of the raid party, and they had become pink in colour. This experiment had been carried out even before the search for the money was conducted by P.W. 6, Patil. The inspector of police seized the currency notes and the necessary papers. It is stated that the appellant produced the requisition which had been brought by P.W. 2, Marthawa Gowdar, requesting him to examine her and issue a certificate. Ex. 17, the certificate issued by a private doctor which she had brought along with the said papers and the certificate signed by him on the date of the incident. Thereafter the investigating officer applied to the Judicial to the Magistrate, First Class Hubli, for necessary permission to conduct the investigation. The sanction was granted.
5. After necessary investigation a chargesheet for offences punishable under S. 161 of the Indian Penal Code and S. 5(2) of the Prevention of Corruption Act of 1947 was placed against the appellant. Dr. Kulkarni, the sub-charge of the civil hospital, was also arrayed as accused on the ground that he induced the appellant to reduce his demand from Rs. 60 to Rs. 25 and had to answer the charges of abetment. The inspector of police had obtained sanction of the Government to prosecute the accused persons. A chargesheet was placed on 22 December, 1960 against the accused in the Court of the Special Judge, Dharwar. A Special Public Prosecutor was appointed by the State to conduct the prosecution. Charges under S. 5(2) of the Prevention of Corruption Act of 1947 and S. 161 of the Indian Penal Code were framed against the appellant and charges under S. 165A of the Indian Penal Code, and S. 5(2) of the Prevention of Corruption Act 1947, read with S. 109 of the Indian Penal Code, were framed against the second accused on 14 April, 1961. The appellant and the other accused pleaded not guilty and desired to be tried. It is in respect of the charges so framed by the learned Special Judge that the appellant and the other accused were tried before him.
6. The prosecution examined eighteen witnesses including the investigating office to substantiate the charges against the accused. The appellant did not examined any witness on his behalf. The defence of the appellant was that the clerks who were working under him were disgruntled on account of the disciplinary action that he had taken against them and that P.W. 1, Jahagirdar, had his own grudge against him and these disgruntled persons had foisted a false case against him to avenge their grievances with the assistance and active co-operation of P.W. 18, Kallur. He denied having demanded and accepted M.Os. 1 to 3 from P.W. 1, Jahagirdar. The learned Special Judge who recorded the evidence and heard the statement of the accused came to the conclusion that the prosecution had established a clear case against the appellant on both the charges and found him guilty and convicted and sentenced him as above stated. The learned Special Judge acquitted the second accused (Kulkarni) giving him the benefit of doubt. In view of the fact that the appellant was on the verge of his retirement and the convictions would entail his dismissal from service and deprivation of his pension and other benefits that had accrued to him, the learned Special Judge was of the opinion that the ends of justice would be met by sentencing the appellant to suffer simple imprisonment for six months on each of the counts in addition to the payment of fine of Rs. 500 for the offence under S. 5(2) of the Prevention of Corruption Act, 1947, and in default of the payment of fine to suffer simple imprisonment for two months. He ordered accordingly. It is against this judgment that this appeal has been filed by the appellant. As already stated, the State has preferred a criminal revision petition for enhancement of the sentence after this Court issued a notice to the appellant to show cause as to why the sentence should not be enhanced in the event of the conviction being sustained by this Court.
7. Mr. Shamanna, the learned counsel appearing for the appellant, challenged the correctness and legality of the convictions of the appellant on several grounds. He contended that the investigation conducted by P.W. 18, Kallur, who is an inspector of police attached to the Anti-Corruption Department at Belgaum, on the basis of an authority given to him by the Judicial Magistrate, First Class, Hubli, was highly biased and had gravely prejudiced the appellant in his trial because of the lack of fair play and good conscience on his part; that the authority given by the Judicial Magistrate, First Class, to P.W. 18, Kallur, to investigate the case against the appellant was vitiated and the same had led to miscarriage of justice and an erroneous conviction of the appellant and that the learned Special Judge was not justified in relying upon the highly interested and discrepant evidence of the several partisan witnesses in reaching the conclusion that the appellant demanded and a accepted a sum of Rs. 25 as illegal gratification on 7 March, 1960. He also contended that the learned Special Judge erred in holding that the action of investigating officer in directing the appellant to wash his hands at the time of Ex. 32 did not amount to testimonial compulsion under Art. 20(3) of the Constitution. He lastly urged that the learned Special Judge erred in holding that certain documents called for from the Director of Medical Services were privileged documents even without looking into those documents and shutting out the evidence that the appellant intended to put forward in support of his defence that the entire case had been falsely foisted against him as a result of the conspiracy on the part of his disgruntled subordinated, P.W. 1, Jahagirdar, who had criminal intimacy with Hawalad, a nurse against whom the appellant had taken action, with the active support and connivance of P.W. 2, Marthawa Gowdar, and P.W. 18, Kallur, the inspector of police.
8. I will now proceed to examine these contentions. It cannot be disputed that under S. 5A of the Prevention of Corruption Act, 1947, only an officer of and above the rank of a Deputy Superintendent of Police is entitled to carry on the investigation relating to the allegations made against a public servant. As pointed out by the Supreme Court in State of Madhya Pradesh v. Mubarak Ali [1960 - I L.L.J. 36], S. 5A of the Prevention of Corruption Act was introduced presumably on the basis of the experience gained to protect a public servant against harassment and victimization. Their lordships, dealing with the intention of the legislature under S. 5 of the Prevention of Corruption Act, observed as follows in the course of their judgment :
'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. To achieve this object Ss. 5A and 6 introduced the following two safeguards :
(1) no police officer below the rank
(a) 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 S. 161, 165 or 165A of the Indian Penal Code (45 of 1860) or under Sub-section (2) of S. 5 of the 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 - see S. 5A :
(2) no Court shall take cognizance of an offence punishable under S. 161 or 164 or 165 of the Indian Penal Code (Act 45 of 1960) or under S. 5(2) of the Act alleged to have been committed by a public servant except with the previous sanction of the 'appropriate Government' - see S. 6.
9. These statutory safeguards must be strictly complied with for they were conceived in public interests and were provided as a guarantee against frivolous and vexatious prosecutions. While in the case of an officer of assured status and rank, the legislature was prepared to believe them implicitly, it prescribed an additional guarantee in the case of police officers below that rank, namely, the previous order of a Presidency Magistrate or a Magistrate of the First Class, as the case may be. The Magistrate's status gives assurance to the bona fides of the investigation. In such circumstances, it is self-evident 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 that stage. He must also be satisfied that there sufficient reason owing to the exigencies of administrative convenience, to entrust a subordinate officer with the investigation. This Court in H. N. Rishbud v. State of Delhi : 1955CriLJ526 emphasized the necessity to adhere strictly to the provisions of S. 5A of the Act. Jagannadha Das, J., who delivered the judgment of the Court, observed at p. 1159 :
'When therefor the legislature thought fit to remove the protection from the public servants in so far as it relates to the 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 substitute safeguard from undue harassment by requiring that the investigation is to be conducted normally by a police officer of a designated high rank. 'Having regard therefore to the peremptory language of Sub-section (4) of S. 5 of the Act as well as to the policy apparently underlying it, is reasonably clear that the said provision must be taken to be mandatory''.
10. After adverting to the arguments advanced on behalf of the State, the learned Judge closed the discussion thus at p. 1162 :
'We are, therefore, clear in our opinion that S. 5(4) and proviso to S. 3 of the Act and the corresponding S. 5A of the Act LIX of 1952 are mandatory and not directory and that the investigation conducted in violation thereof bears the stamp of illegality.'
11. Bearing the above principles in mind, I will now proceed to consider the contention of Mr. Shamanna, the learned counsel for the appellant, and find out whether there were sufficient grounds for P.W. 18, Kallur, to take upon himself the investigation in this case. It was strenuously contended by Mr. Shamanna that the facts in the case clearly disclose an anxiety on the part of P.W. 18, Kallur, to clutch at its jurisdiction and to prevent the Deputy Superintendent of Police from taking up the investigation. He urged that P.W. 18, Kallur, was a non-gazette offer and the appellant was a Class I gazetted officer and that when serious allegations of corruption were levelled against the appellant, it was incumbent on the part of P.W. 18, Kallur, to have requisitioned the services of a Superintendent of Police or Deputy Superintendent of Police to conduct the investigation. He urged that the fact that P.W. 18, Kallur, proceeded to investigate into the allegations made by P.W. 1, Jahagirdar, even without verifying from P.W. 2, Marthawa Gowdar, from whom the appellant is alleged to have demanded bribe, and even without contacting the Deputy Superintendent of Police of telephone or otherwise and rushed at once to Hubli for obtained sanction of the Magistrate to investigate the case against the appellant, exhibited his anxiety to involve the appellant. He also urged that the subsequent conduct of P.W. 18, Kallur, clearly demonstrated that he kept the Deputy Superintendent of Police in darkness about the progress of the investigation and took upon himself the sole responsibility lends support to his contention that he had done so deliberately.
12. It is the case of the prosecution that the appellant demanded bribe from P.W. 2, Marthawa Gowdar, on 5 March, 1960 and that she agreed to pay the amount on 7 March, 1960 before taking delivery of the medical certificate. P.W. 2, Marthawa Gowdar, did not lodge any complaint in the matter of the appellant having demanded a bribe from her. P.W. 1, Jahagirdar, who is a casual acquaintance of P.W. 2, Marthawa Gowdar, lodged the complaint with P.W. 18, Kallur, on 6 March, 1960. P.W. 18 Kallur, wants us to believe that he did not know P.W. 1, Jahagirdar, prior to 6 March, 1960 and it is for the first time that he came to know when he came and complained to him about the alleged illegal act of demanding a bribe from P.W. 2, Marthawa Gowdar, by the appellant for issuing a medical certificate which he was bound to issue without any fees. P.W. 18, Kallur then knew that very serious allegations, which if proved, would affect the official career of a senior officer of the Medical Department were being made by an utter stranger or at any rate, a man who is not directly connected with the allegations. In these circumstances, one would normally except any officer with a sense of responsibility to make an honest attempt to verify the allegations by contracting and examining P.W. 2, Marthawa Gowdar, before embarking upon further investigation. Admittedly P.W. 18, Kallur, did not do so. On the other hand, according to the assertion made by him in the course of his cross-examination, he thought it unnecessary to verity the matter and believed the version of P.W. 1, Jahagirdar, as recorded in Ex. 13, to be true and proceeded to Hubli for obtaining sanction. He was aware that P.W. 2, Marthawa Gowdar, from whom the appellant was alleged to have demanded the bribe, was resident of Hubli at the relevant point of time. He made no attempt to get at her and examine her on the night of 6 March, 1960. His explanation that he made confidential enquiries is, to say the least, unacceptable. What kind of 'confidential enquiries' he made has not been disclosed. All that he states is that he sent one of the police constables to find out P.W. 2, Marthawa Gowdar, and he came and informed him that she was not found in her house and the house was locked. P.W. 18, Kallur, did not make any honest attempt to secure P.W. 2, Marthawa Gowdar, and examine her to verify the statement made by P.W. 1, Jahagirdar, in Ex. 13. The purpose for which P.W. 18, Kallur, proceeded to Hubli on the evening of March 1960 was, as is clear from his own statement, to secure the sanction of the Judicial Magistrate, first Class, and not to contact P.W. 2, Marthawa. Admittedly there were two Judicial Magistrates and an Additional District Magistrate at Dharwar (which is the district headquarters) where P.W. 1, Jahagirdar, lodged the information as per Ex. 13 before P.W. 18, Kallur. In the normal course P.W. 18. Kallur, should have approached one of the First Class Magistrates or the District Magistrate of Dharwar for sanction to investigate into the allegations. He did not do so. On the other hand, he proceeded to Hubli and approached the Judicial Magistrate, First Class, Hubli, for the sanction. The reasons assigned by P.W. 18, Kallur, for proceeding to the Judicial Magistrate, Hubli, to obtain the sanction is most unsatisfactory and not complimentary either to the Judicial Magistrate at Dharwar or to the Judicial Magistrate, First Class, Hubli, who accorded sanction to him to investigate into the matter. The above circumstances, as rightly contended by Mr. Shamanna, lead to the inference that P.W. 18, Kallur, was anxious to obtain sanction at the hands of a Magistrate at Hubli and it is for that purpose only he proceeded to Hubli and not with a view to verify whether the information given to him by P.W. 1, Jahagirdar, is true or not. Even after obtaining the sanction of the Judicial Magistrate, Hubli, P.W. 18, Kallur, made no honest attempt to contact the Deputy Superintendent of Police and request him to take up the investigation. This is what P.W. 18, Kallur, states in this regard in the course of his cross-examination :
'Then my immediate superior officer was one Doraiswami at Bangalore. He was Deputy Superintendent of Police. I did not contact him by wireless or phone in connexion with the present case. He was engaged in other enquiries and so there was no necessity for me to ascertain if he was free to handle this case. In fact I knew as he was busy in other enquiries he could not come over here for this case. I knew this personally. I had come to know about this even five days before the incident in question. I knew that he was busy then. I cannot enumerate the enquiries which he had to attend to ... It is not true to say that I did not entrust the investigation of this case to my superior officer only with a view to assist P.W. 1 in foisting this case. [The witness adds : 'There was no necessity to entrust the investigation to my superior officer because I was myself empowered to investigate it.'] It is not true that corruption cases are generally handled by the Deputy Superintendent of Police only. There is no law requiring that such cases should be handled only by the Deputy Superintendent of Police.'
13. The above statements give out the mind of P.W. 18, Kallur, and indicate to me beyond all doubt that he was all out to clutch at the jurisdiction to investigate into the allegations as rightly contended by Mr. Shamanna. It is in this background that the evidence of P.W. 18, Kallur, and the several witnesses should be examined to ascertain as to whether the investigation and the subsequent prosecution have in any way gravely prejudiced the appellant in his trial because of lack of fair play and good conscience on the part of the investigating officer.
14. I will next consider the contention of Mr. Shamanna, the learned counsel for the appellant, that the sanction to lay the trap and the sanction to investigate the case accorded to P.W. 18, Kallur by the Judicial Magistrate, First Class, are in valid and they have led to miscarriage of justice. As already stated, P.W. 18, Kallur, did not approach the two Judicial Magistrates, First Class, and the District Magistrate who were stationed at Dharwar where he recorded Ex. 13, the statement of P.W. 1, Jahagirdar, but proceeded to Hubli on 6 March, 1960 and approached the Judicial Magistrate, First Class, for according sanction to lay a trap and to find out whether the appellant would demand and accept the illegal gratification from P.W. 1, Jahagirdar. It is well-settled that when a Magistrate is approached for granting permission to lay a trap or to investigate a case under the Prevention of Corruption Act, he is expected to satisfy himself that there are good and sufficient reasons for authorizing an officer of a rank lower than the designated officer to conduct the investigation. A Magistrate should not surrender his discretion to a police officer but must exercise it having regard to the relevant material made available to him at stage. He must be satisfied that there is sufficient reason owing to the exigencies of administration convenience to entrust a subordinate officer with the investigation. He cannot mechanically accord sanction without applying his mind to be the facts of the case and satisfying himself that it is necessary in the circumstances of the case that an officer below the rank of a Deputy Superintendent of Police should be permitted to investigate the case. As observed by their lordships of the Supreme Court in State of Madhya Pradesh v. Mubarak Ali [1960 - I L.L.J. 36] (vide supra) that in a case of a designated officer the Parliament was prepared to believe him implicitly but in a case of an officer below the rank of a Deputy Superintendent of Police it prescribes an additional guarantee that previous order of a Magistrate of the First Class was necessary to empower him to investigate the case. It is therefore necessary that when a police officer below the rank of a Deputy Superintendent of Police approaches a Magistrate for permission to investigate into the allegations against a public servant, he should give all the necessary facts in his application to enable the Magistrate to apply his mind to them and accord his sanction. The order passed by the Magistrate should also contain the necessary facts which induced him to permit a police officer below the rank of a Deputy Superintendent of Police to investigate the case. In other words, the order passed by the Magistrate permitting the officer should be a speaking order. If the facts are not disclosed in the sanction, the prosecution is entitled to proof aliunde of the said facts. It is urged by Mr. Shamanna, the learned counsel for the appellant, that for reasons best known to the investigating officer and the learned Magistrate the said salutary practice was not adopted in the instant case. He urged that the investigating officer did not place any material before the Magistrate which should induce him to permit P.W. 18, Kallur, to investigate the case. He contended that the order passed my the learned Magistrate ex facie appeared that the learned Magistrate did not realize the significance or importance of his order giving permission but only mechanically issued the order on the application which did not disclose any reason presumably because he thought that what was required was only a formal order under S. 5A of the Prevention of Corruption Act. Exhibit 49 is the application made by P.W. 18, Kallur, to the Judicial Magistrate, First Class, for according sanction to him to lay a trap stating that he recorded the statement of P.W. 1, Jahagirdar, in respect of the alleged demands of bribe of Rs. 25 by the appellant from P.W. 2, Marthawa Gowdar, a primary school teacher, and that the facts disclosed offences under S. 161 of the Indian Penal Code and S. 5(2) read with S. 5(1)(d) of the Prevention of Corruption Act. This is what P.W. 18, Kallur, has stated in his application :
'The superior offers of the State level Anti-Corruption, Bangalore, have been busy in other urgent enquiries and cases and hence I have to take up that case.'
15. Who were the superior officers and in what work they were engaged in and whether there were any communications from any of them informing P.W. 18, Kallur, that they were otherwise busy and as he could take up the investigation are not stated in the application. P.W. 18, Kallur, referred to one Mr. Doraiswami, Deputy Superintendent of Police at Bangalore, in his evidence, Who is the other 'officer' or 'officers' referred to in Ex. 49 who could have taken up the investigation has not been made clear. The fact that P.W. 18, Kallur, has stated in Ex. 49 that 'the superior officers of the State level Anti-Corruption are otherwise busy' indicates that there were more than one officer empowered to take up the investigation in the instant case. It was submitted by Mr. Shamanna, the learned counsel for the appellant, that there is a Superintendent of Police attached to the Anti-Corruption Department at the State level and there are more than one Deputy Superintendents of Police also. This assertion is supported from the statement made in Ex. 49. After receiving Ex. 49 the learned Magistrate passed the following order :
'Read the report of the police inspector Sri Kallur, and the complaint of Sri G. A. Jahagirdar and the letter of Marthawa Gowdar. I am satisfied that there are grounds for investigation into the alleged offence under S. 161, Indian Penal Code, and S. 5(2) of the Prevention of Corruption Act. Hence I accord sanction to investigate into the said offence and to carry on searches of person and premises and seize the necessary incriminating articles.'
16. It is clear from the above order that the learned Magistrate did not realize his responsibilities and the implications of his order. The point before him was not whether the grounds urged in the petition disclosed an offence punishable under S. 161 of the Indian Penal Code, and S. 5(2) of the Prevention of Corruption Act, and whether it was necessary to investigate into the matter but whether it was necessary in the circumstances of the case to empower an officer below the designated rank to carry on the investigation and to lay the trap. The order passed by the learned Magistrate, as rightly contended by Mr. Shamanna, the learned counsel for the appellant, is a mechanical one and leaves an impression in my mind that the learned Magistrate was under the impression that he was obliged to pass an order at the request of the police officer. Exhibit 50 is the next order passed by the Judicial Magistrate on 8 March, 1960 according sanction to P.W. 18, Kallur, to carry on the further investigation of the case. Even this order does not disclose that the learned Magistrate was aware of the fact that the Parliament had entrusted the investigation to an officer of a designated rank and that it is only in case such an officer was not available and the exigencies of administrative convenience required an officer below that rank should be empowered to take up the investigation and the grounds placed before him were sufficient to pass an order empowering an officer of a lower rank to perform those duties that the Magistrate should pass an order. The order passed by the learned Magistrate on Ex. 50 is as follows :
'After going through the contents of the panchanamas showed by the police inspector, Sri S. G. Kallur, and after seeing the corpus delicti (the currency notes and the bottle containing liquid of pink colour) which were shown by him to me, I am satisfied that there are sufficient grounds for according sanction under S. 5A of the Prevention of Corruption Act for investigation into an offence of acceptance of illegal gratification by the abovementioned accused.
I, therefore, hereby accord sanction to Sri S. G. Kallur, Police Inspector, Anti-Corruption Measures, State level, Belgaum, under S. 5A of the Prevention of Corruption Act to investigate into an offence of acceptance of illegal gratification by M. J. Rajanna, Civil Surgeon, Dharwar Civil Hospital, Dharwar.'
17. There is absolutely nothing in the abovesaid orders which indicates that the learned Magistrate was satisfied that the investigation of the case could not be taken by a Deputy Superintendent of Police or a Superintendent of Police who were the designated officers and it was necessary in the interest of administrative convenience or otherwise that he should empower an officer below the rank of a Deputy Superintendent of Police to investigate into the matter. Doubtless these two orders passed by the learned Magistrate according sanction to P.W. 18, Kallur, are invalid.
18. It has been laid down by the Supreme Court in Major E. G. Barsay v. State of Bombay : 1961CriLJ828 that the mere fact that the pre-trial proceedings like the invalid sanctions to an officer are not sufficient to hold that the conviction of a person who underwent the trial is illegal unless it is demonstrated that the invalidity of the sanctions prejudiced the appellant and led to the miscarriage of justice. It is urged by Mr. Shamanna, the learned counsel for the appellant, that there is ample material on record which will demonstrate beyond all doubt that the invalid sanctions accorded by the learned Magistrate to P.W. 18, Kallur, led to the miscarriage of justice on account of concoction of evidence and shutting out the defence evidence during the course of investigation conducted by P.W. 18, Kallur. He urged that the facts of the case clearly disclosed that P.W. 18, Kallur, short-circuited the Deputy Superintendent of Police and the Superintendent of Police and was anxious to snatch the opportunity to investigate the case against the appellant. He pointed out to me that P.W. 18, Kallur, had almost ignored the existence of the Superintendent of Police attached to the Anti-Corruption Department and the P.W. 18, Kallur, did not register a case and submit the first information report to the Special Judge till 18 December, 1960, that is, for over nine months indicates his dare-devil attitude. It is submitted that he kept back Ex. 13 with a view to incorporate Ex. 13(a) in it with a view to enlist the services of P.W. 3, Kshira Sagar, and to concoct his evidence. I will refer to this aspect of the case at a later stage. However, there is force in the contention of the learned counsel for the appellant that P.W. 18, was over-anxious to take up the investigation against the appellant for reason best known to him and that the investigation conducted by him has prejudiced the appellant to a great extent and has led to the miscarriage of justice.
19. It is argument by the learned counsel for the appellant that the evidence adduced by the prosecution is highly interested and, if it is carefully scrutinized, clearly shows that the several important prosecution witnesses had their own axes to grind against the appellant and that they jointed their hands and foisted a false case against the appellant. I will now examine how far this contention of Mr. Shamanna is well-founded.
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20. The appellant has stated in his statement under S. 342, Criminal Procedure Code, that he had issued a circular order to the clerks not to permit strangers to visit them during office hours and to chit-chat with them and that he did so when he received complaints from the sub-charge and the matron that P.W. 1, Jahagirdar, who was related to two of the officials working in the hospital and was a friend of P.W. 3, Kshira Sagar, was constantly visiting the office and spending his time chit-chatting with them. The circular order issued is marked as an exhibit in the case.
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21. Admittedly nurse Hawalad is related to P.W. 2, Marthawa Gowdar and was working in the hospital during the relevant period. It is in evidence that the appellant had taken disciplinary action against nurse Hawalad and had got her transferred. The appellant summoned the file of the correspondence relating to the transfer of nurse Hawalad from the civil hospital and her re-transfer to the same hospital on the basis of a communication or report sent by the investigating officer. The prosecution claimed privilege and those documents were not produced. The learned Judge appears to have upheld the claim of privilege. In my opinion, the learned Judge was not at all justified in allowing the claim of privilege even without those documents being produced before him. He should have insisted that those documents should be produced particularly when they were said to be documents that would go to support the defence of the appellant. The statement made by the investigation officer during the course of his cross-examination supports the case of the defence that the transfer of nurse Hawalad was effected by the appellant on account of her intimacy with P.W. 1, Jahagirdar, and that after the incident in this case her transfer was cancelled on the basis of the report made by the investigating officer in that regard.
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22. Having thus reviewed the evidence and the circumstances placed on record I am of the opinion that the prosecution had failed to establish a case against the appellant on any one of the charges. After taking into consideration everything that can legitimately be considered in favour of the prosecution and giving it due weight room still exists for taking the view that however strong the suspicion raised against the appellant may be, every reasonable possibility of innocence of the appellant has not been excluded and therefore he is entitled for an acquittal. The convictions of the appellant are therefore liable to be set aside and the appellant should be acquitted.
23. In the result, therefore, for the reasons stated above this appeal is allowed and the convictions and sentence passed against the appellant are set aside and he is acquitted. The fine amount, if it is already paid, shall be refunded to him. The surety bounds are ordered to be cancelled. It follows that the notice issued to the appellant to show cause why the sentence awarded to him should not be enhanced in the event of his conviction being sustained should be dropped and the Criminal Revision Petition No. 433 of 1961 filed by the State for enhancement of the sentences should be dismissed. It is ordered accordingly.