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Bhuwaneshwar Prasad Gupta Vs. the State - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAllahabad High Court
Decided On
Case NumberCriminal Revn. No. 192 of 1967
Judge
Reported inAIR1969All503; 1969CriLJ1217
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 156(1), 161, 161(3) and 173(4); Prevention of Corruption Act, 1947 - Sections 5A
AppellantBhuwaneshwar Prasad Gupta
RespondentThe State
Appellant AdvocateJ.N. Chaturvedi, Adv.
Respondent AdvocateGovt. Adv.
DispositionRevision dismissed
Excerpt:
criminal - investigation - section 161 of criminal procedure code, 1898 - case investigated by police officer not authorised to investigate the case - fresh investigation by authorised police officer - charge sheet filed after fresh investigation - application by applicant for copy of statement which was recorded by police officer not authorised to investigate the case - held, investigation by police officer not authorised to investigate is no investigation in eyes of law and applicant not authorised to copy of statement recorded by such police officer. - .....5-a of the prevention of corruption act ii of 1947 this investigation could not be made by a police officer below the rank of thedeputy superintendent of police without the order of a magistrate of a first class. he, therefore, directed the investigation being made afresh by circle officer, sri ram kumar lal, who probably obtained the orders of the magistrate and investigated the case and thereafter submitted a charge sheet against the applicant which came up for hearing before the special judge of mirzapur. 3. before the special judge the applicant moved an application that the copies of the statements recorded by vishwanath singh under section 161 of the code of criminal procedure had not been furnished to him and that orders might be passed for the aforesaid copies being given.....
Judgment:
ORDER

S.D. Singh, J.

1. This is an application in revision, against an order passed by the Special Judge, Mirzapur under Section 165-A of the Indian Penal Code against the applicant Bhuwaneshwar Praead Gupta.

2. The case against Bhuwaneshwar Prasad Gupta under Section 165-A of the Indian Penal Code was first investigated by Vishwanath Singh, Station Officer of Police Station Kon district Mirzapur. He prepared charge sheet and forwarded it to the Superintendent of Police for onward transmission to the Magistrate. The Superintendent of Police seems to have realised that under Section 5-A of the Prevention of Corruption Act II of 1947 this investigation could not be made by a Police officer below the rank of theDeputy Superintendent of Police without the order of a Magistrate of a first class. He, therefore, directed the investigation being made afresh by Circle Officer, Sri Ram Kumar Lal, who probably obtained the orders of the Magistrate and investigated the case and thereafter submitted a charge sheet against the applicant which came up for hearing before the Special Judge of Mirzapur.

3. Before the Special Judge the applicant moved an application that the copies of the statements recorded by Vishwanath Singh under Section 161 of the Code of Criminal Procedure had not been furnished to him and that orders might be passed for the aforesaid copies being given to him. This application was opposed on behalf of the State and under the order against which this revision has been filed the Special Judge has rejected the application holding that the statements recorded by Vishwanath Singh could not be deemed to be statements recorded under Section 161 of the Code of Criminal Procedure during the investigation of the case. The contention of the learned counsel for the applicant was that even though Sri Vishwanath Singh had no authority to investigate the case, he did actually investigate it and even submitted a charge sheet against the applicant and therefore the statements recorded by Vishwanath Singh should be under Section 161 of the Code and that the applicant is entitled to the copies thereof under Sub-section (4) of Section 173 of the Code.

4. Sections 161 and 173 of the Code fall under the same Chapter XIV. Subsection (1) of Section 161 begins with the words 'Any police officer making investigation under this Chapter' and Sub-section (1) of Section 173 begins with the words 'Every investigation under this Chapter'. An investigation under this Chapter XIV can be conducted by any officer incharge of a police station without the order of a Magistrate in a cognizable case under Sub-section (1) of Section 156. The restriction on the power of a Police officer so far as investigations are concerned is only that contained in Sub-section (2) of Section 155 under which no police officer shall investigate a non-cognizable offence without the order of a Magistrate of the first or second class. Section 5-A of the Prevention of Corruption Act provides a special law in this respect. Under that section 'Notwithstanding anything contained in the Code of Criminal Procedure, 1898, no police officer below the rank of a Deputy Superintendent of Police shall investigate any offence' punishable under certain sections, Section 165-A of the Indian Penal Code being one of them, without the order of a Magistrate of the first class. An investigation under Chapter XIV underSection 161 can therefore be made even under Sub-section (1) of Section 156 by only a police officer who has the requisite sanction under Section 5-A of the Prevention of Corruption Act and only that officer can record the statements of the witnesses under Sub-section (1) of Section 161. If any police officer other than the one having the requisite authority under Section 5-A of the Prevention of Corruption Act starts investigation of the case, it is no investigation in the eye of law much less can it be said to be an investigation under Chapter XIV of the Code, even though that police officer purports to act under the aforesaid provision. As I have said earlier any investigation which he might make or might have made would be no investigation in the case. It was exactly because of this that when the charge sheet prepared by Vishwanath Singh came to the notice of the Superintendent of Police, he withheld the same and directed the investigation being taken, by C. I. Ram Kumar Lal.

5. Sub-section (4) of Section 173 certainly speaks of copies of the statements recorded under Sub-section (3) of Section 161 being given to the accused person before the beginning of his trial, but when Sub-section (4) of Section 173 speaks of statements recorded under Sub-section (3) of Section 161 of the Code it naturally means the statements recorded by a police officer making an investigation and it is only that officer who can be said to have made investigation and recorded statements of the witnesses in the course ofj the investigation who had the authority or sanction to do so under the provisions of Section 5-A of the Prevention of Corruption Act. The statements recorded by Vishwanath Singh were not the statements recorded by a police officer making investigation and the applicant was consequently not entitled to the copies thereof. In that view of the law, therefore, the view taken by the Sessions Judge was correct.

6. There is no force in this revisionwhich is consequently dismissed.


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