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M.B. Kharade and anr. Vs. State of Gujarat - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtGujarat High Court
Decided On
Case NumberCriminal Revn. Appln. Nos. 95 and 102 of 1969
Judge
Reported inAIR1970Guj157; 1970CriLJ1090; (1970)0GLR781
ActsBombay Police Act, 1951 - Sections 2(11), 3 and 5; ;Prevention of Corruption Act, 1947 - Sections 5-A
AppellantM.B. Kharade and anr.
RespondentState of Gujarat
Appellant Advocate R.J. Shethna, Adv.
Respondent Advocate G.T. Nanavati, Assistant Govt. Pleader
Excerpt:
criminal - investigation - sections 2 (11), 3 and 5 of bombay police act, 1951 and section 5a of prevention of corruption act, 1947 - matter pertaining to granting permission to investigate offence - section 5a of act enable either an officer of designated rank to investigate offence of bribery or an officer below designated rank to do so provided he obtains permission of magistrate to investigate offence - section do not provide that magistrate shall not grant permission to investigate offence to an officer of lower rank because officers designated in sections are available to investigate crime - no infirmity in order passed by court below. - - solanki to get himself satisfied not merely about the absence of superior officers in the anti-corruption branch but also the.....desai, j.1. both these matters have been referred to a division bench by our brother sarela, j., on account of the questions of law raised. the order in criminal revn. appln. no. 95 of 1969 which is challenged before us was passed by mr. d. j. dave, as special judge, ahmedabad (rural) at narol on 17-12-68 and the order in criminal revn. appln. no. 102 of 1969 was passed by mr. m. p. thakar, special judge, ahmedabad city, on 28-2-1969. these two orders were passed in special case n. 5 of 1968 and special case no. 15 of 1968 pending before the respective special judges.2. in criminal revn. appln. no. 95 of 1969, the facts are that the government appointed mr. d. j. dave, assistant judge and additional sessions judge, ahmedabad (rural) at naol, to be a special judge for the district of.....
Judgment:

Desai, J.

1. Both these matters have been referred to a Division Bench by our brother Sarela, J., on account of the questions of law raised. The order in Criminal Revn. Appln. No. 95 of 1969 which is challenged before us was passed by Mr. D. J. Dave, as Special Judge, Ahmedabad (Rural) at Narol on 17-12-68 and the order in Criminal Revn. Appln. No. 102 of 1969 was passed by Mr. M. P. Thakar, Special Judge, Ahmedabad City, on 28-2-1969. These two orders were passed in Special Case N. 5 of 1968 and Special Case NO. 15 of 1968 pending before the respective Special Judges.

2. In Criminal Revn. Appln. No. 95 of 1969, the facts are that the Government appointed Mr. D. J. Dave, Assistant Judge and Additional Sessions Judge, Ahmedabad (Rural) at Naol, to be a Special Judge for the District of Ahmedabad (Rural) to try the offnces specified in Section 6 of the Criminal Law Amendment Act, 1952, by notification dated June 30, 1966. Then by notification dated May 13, 1968, Mr. D. J. Dava was appointed by Government to officiate as Chief Magistrate for the City of Ahmedabad vice Mr. D. C. Mehta who proceeded on leave from 29th April,. 1968 to 7th June, 1968 with permission to suffix 8th and 9th june, 1968 which were holidays. Thereafter by notification dated May 29, 1966, the High Court reposted Mr. D. C. Mehta as Chief City Magistrate for the City of Ahmedabad on his return from leave and reposted Mr. D. J. Dave as Assistant Judge, Ahmedabad (Rural) at Narol,on his relief by Mr. D. C. Mehta. The charge-sheet against the petitioner in Criminal Revn. Appln. No. 95 of 1969 was submitted by the police on October 28, 1968. Thereafter on November 22, 1968, the Government Section 6(1) of the Criminal Law Amendment Act 1952, in supersession of the previous notification dated June 20, 1966. By this notification Mr. D. J. Dave, Assistant Judge and Additional Sessions Judge, Ahmedabad (Rural) at Narol was appointed to be the Special Judge for the Ahmedabad Revenue District excluding the City of Ahmedabad. By the same notification Mr. S. L. Talati, Joint Judge and Additional Sessions Judge, was appointed as Additional Special Judge for Sabarkantha Revenue District. It was after this notification that the petitioner submited application dated November 30, 1968, in Special Case No. 5 of 1968 questioning the jurisdiction of Mr. D. J. Dave to commence the trial against him on the gorund that on his appointment as Chief City Magistrate for the City of Ahmedabad, he ceased to be the Assistant Judge and Additional Sessions Judge, Ahmedabad (Rural) at Narol and, therefore, ceased to be the Special Judge for that area. As per the submission in this application the reposting of Mr. D. J. Dave as Assistant Judge, Ahmedabad (Rural) at Narol did not automatically confer power on him as the Special Judge of that area 'in the absence of a fresh appointment in accordance with the provisions of Section 6 of the Criminal Law Amendment Act, 1952'. Another contention was also taken in this application which raises a common question of law in both these revision applications before us. That contention was that the Anti-Corruption Branch of the State Government having been made independent from the local Police force under the control of the Inspector-General of Police, its officers cannot be said to be the Police officers because the Anti-Corruption Branch was made independent by the State Government without any authority of law and in contravention of the provisions of the Bombay Police Act, 1951 (hereafter referred to as 'the Act') under which there can be only one police force. It was further submitted that the police oficer of Anti-Corruption Branch who had submitted police report or charge-sheet on October 28, 1968, was thus not a police officer and the charge-sheet submitted by him could not be said to be a plice report upon which the Special Judge could take cognizance of the offences disclosed in the police report. In view of these two contentions it was prayed that appropriate orders made be passed on the ground that the Special Judge has no jurisdiction to commence the trial.

3. In Criminal Revn. Appln. No. 102 of 1969 the charge-sheet was submitted by Mr. Solanki, P.S. I., Anti-Corruption Bureau, before the Special Judge for the City of Ahmedabad. In that case being Special Case No. 15 of 1968 the petitioner-accused gave application to the Special Judge objecting to the investigation by Mr. Solanki on the ground that Mr. Solanki was not a police officer because of creation of Anti-Corruption Bureau as an independent force in contravention of the provisions of law. This ground is similar to the second ground which was urged before Mr. Dave at Narol. A further ground was also taken before the Special Judge at Ahmedabad as regards the legality of the investigation and it was the duty of the learned Magistrate who granted permission to investigate the offence to Mr. Solanki to get himself satisfied not merely about the absence of superior officers in the Anti-Corruption Branch but also the non-availability of other officers of the general police force in the City of Ahmedabad. In the course of argument on this application before the Special Judge of Ahmedabad it was urged that the learned Magistrate acted mechanically in granting permission to P.S. I. Solanki because he did not satisfy himself about the non-availabilty of other police officers of the general police force who were entitled under the law to investigate this offence. Another contention was also taken up and it was this. According to Mr. Solanki the date of giving bribe was fixed between the bribe-giver and bribe-taker as June 29, 1968, whereas the suprior police officers, no doubt, were out of station on June 28, 1968, but there was nothing to show that they were to continue to remain out of station on June 29, 1968.it was urged that the learned Magistrate failed to realise that the material date with reference to which the date of availability of the superior police officers had to be judged was June 29, 1968. It was urged that in overlooking this aspect the learned Magistrate failed to apply his mind in granting permission.

4. In passing the order from which Criminal Revision Application No. 95 of 1969 arises, Mr. Dave held that his powers as Special Judge were not withdrawn by the State Government while he was officiating as Chief City Magistrate and therefore those powers continued as conferred upon him under the original notification of 1966. He also pointed out that thereafter by notification published in the Gazette dated 5-12-1968 the Government of Gujarat have appointed him as Special Judge for Ahmedabad Revenue District excluding the City of Ahmedabad. He, therefore, held that he had power to take cognizance of the offences in question. He overruled the contention that the investigation in this case was not by a police officer and that the report submitted by him was not a police report.

5. The learned Special Judge of Ahmedabad also came to the conclusion that P.S. I. Solanki wsa a police offcer and did not cease to be so by setting up of the Anti-Corruption Bureau as an independent unit. He also came to the conclusion that the Magistrate had not acted mechanically in granting permission to investigate the offence. Thus, in both the cases the applications by the accused-petitioners were rejected by the respective Judges and against those orders the accused have come in revision.

6. At the hearing of those applications, Mr. Shethna for the petitioners in both the applications contended that the independence given to the Anti-Corruption Bureau from the control of the Inspector General of Police by the Gujarat State by its resolution dated September 30, 1963 is ultra vires the provisions of the Bombay Police Act, 1951. Therefore, the officers attached to the Anti-Corruption Bureau were not police officers and no cognizane could have been taken on the report submitted by such officers as a result of an illegal investigation carried out by them. The second submission of Mr. Shethna was that Mr. Dave, Additional Sessions Judge at Narol ceased to be a Special Judge on his appointment as officiating Chief City Magistrate for the city of Ahmedabad from the moment he took charge of that post. Therefore, in the submission of Mr. Shethna unless and until there was a fresh notification issued by the State Government under Section 6 of the Criminal Law Amendment Act, 1952, the powers of Special Judge were lost to Mr. Dave and he has no jurisdiction to take cognizance of the offence in the case submitted to him. Lastly, Mr. Shethna contended that the investigation carried out by P.S.I. Solanki in the case pending before the Special Jude of Ahmedabad was illegal because the city Magistrate who granted permission under Section 5A of the Prvention of Corruption Act, 1947 did not satisfy himself about the requirement of Section 5A. In developing his submission, on the first point Mr. Shethna contended that the provisions of Section 3 of the Bombay Police Act, 1951 which laid down that there shall be one police force for the whole of the State of Gujarat were mandatory. He then invited our attention to the provisions of Sections 4, 5 and 6 of that Act and laid particular emphasis on the provisions of Section 6(1) which provided for the appointment of an Inspector General of Police for the direction and supervision of the police force. These provisions will be set out at a later stage. Mr. Shethna's contention is that by notification dated 30-9-1963 the State Government set up a separate Anti-Corruption Bureau under the direct control of the Government in the Home Department and in doing so set at naught the powers of the Inspector General of Police under Section 6(1) to direct and supervise the police force. In his submission this power could not be taken away by the State Government even if it purported to organise the polie force because it was the statutory power. At one stage he also submitted that on account of creation of the Anti-Corruption Bureau as an independent unit, the power which the Inspector General of Police had, as police officer of the superior rank under Section 551 of the Criminal Procedure Code, was also taken away. In his submission the entire police force of the State should be under the direction and supervision of the Inspector General of Police and the police force cannot be so organised so as to take away this power of direction and supervision and vest it in some other authority. That according to Mr. Shethna, would tantamount to creation of another police force in the State which would be in clear violation of Section 3 of the Act. He, therefore, urged that the Anti-Corruption Bureau has been created in violation of these mandatory provisions and therefore any officer of that Bureau cannot be considered to be police officer. If that is the position then in the submission of Mr. Shetha such an officer has no power to investigate the offences in question and the investigation by such an officer would be illegal. It was also contended that the formation of opinion by such an officer and the submission of report on the basis of that opinion would not be a police report under Section 173 of the Criminal Procedure Code and therefore on such a report the Special Judge cannot take cognizance of the offences in question. It was Mr. Shethna's contention that power of direction and supervision of the polie fore in the State is conferred in express terms by Section 6(1) of the Act and in the alternative he submitted that in any case that power can necessarily be implid from the provisions of Section 6(1). Therefore, in his submission any power of direction and supervision conferred on any officer other than the Inspector General of Police being inconsistent with the power of Inspector General of Police is not legal.

7. As against these submissions, Mr. Nanavati, Assistant Government Pleader, relied upon the definition of police officer contained in Section 2(11) of the Act and submitted that the question that we have to determine is whether the investigating officer in each of these cases is a police officer as defined by these provisions. In his submission if that officer is a police officer as defined by these provisions then the fact that he is subject to the control of authority (A) or authority (B) does not affect his status as a police officer. He also relied upon Sections 3, 4, 5 and 6 of the Act and submitted that the superintendence of the police force throughout the State of Gujarat was in express terms vested in a State and the purported exercise of power of direction and supervision by the Inspector General of Police or its conferment would not restrict the power of superintendence conferred upon the State Government under Sectino 4 of the Act. He then pointed out that Section 5A of the Act provides that the State Government had power to determine the number, ranks and organization of the police force as well as its powers and functions and duties subject to the provisions of the Act. In his submission Section 6 provided for appointment of an Inspector General of Police so that the State which has the final control in the matter relating to the police force may act through the agency of the Inspector General of Police. In his submission no powers of direction and supervision have been conferred upon the Inspector General of Police under Section 6 of the Act which cannot be determined or taken away by the State Government. In this connection he urged that we should read Section 4 of the Act along with Section 6 and that Section 4 is the overriding provision of the Act which controls Section 6. He submitted that there was nothing to show that the State polic force must be subject to the control of the Inspector General of Police alone and urged that Section 6 of the Act was enacted merely for the purpose of administrative convenience and it could not affect the status of a police officer. He then pointed out that the Act itself contemplated appointments of the various officers who would not be under the control of Inspector General of Pollllice but under the control of the State Government. In this connection he drew our attention to Sections 7 and 8-A of the Act. He also referred to Section 6(2)(b) of the Act which in his submission enabled the State Government to confer the powers of Inspector General of Police on the Additional Inspector-General of Police or Deputy Inspector-General of Police. He then relied upon the terms of the impugned resolution dated September 30, 1963 and pointed out that the object of this resolution was to set up Anti-Corruption unit under the direct control of the Government for the purpose of strengthening the organization and streamlining the machinery for better and more effective handling of Anti-Corruption work. This in his submission pertains to organisation of the Police force within the power of the State Government and does not amount to creation of a separate police force as urged by Mr. Shethna.

8. Before we come to these respective contentions it would be necessary to set out the relevant provisions of the Act. Section 2(11) defines 'police officer' and reads:

'2(11). Police officer means any member of the police foce appointed or deemed to be appointed under this Act, and includes a special or an additional police officer appointed under Section 21 or 22.'

Sections 3, 4,5, 6, 7(a), 7(c) and 8(a) of the Act read as under:

'3. There shall be one police force for the whole of the State of Gujarat; provided that the members of the police forces constituted under any of the Acts mentioned in Schedule I, immediately before the coming into force of this Act in the relevant part of the State shall be deemed to be the members of the said police force.'

4. The superintendence of Police force throughout the State of Gujarat vests in and is exercisable by the State Government and any control, direction or supervision exercisable by any officer over any member of the police force shall be exercisable subject to such superintendence.

5. Subject to the provisions of this Act;

(a) the police force shall consists of such number in the several ranks and have such organization and such powers, functions and duties as the State Government may by general or special order determine;

(b) the recruitment pay, allowances and all other conditions of service of the police force shall be such as may from time to time be determined by the State Government by general or special order:

Provided that (i) the rules and orders governing the recruitment, pay, allowances and other conditions of service of the members of the police force constituted under any of the Acts mentioned in Part I or II of Schedule I and deemed to be the members of the police force under Section 3, shall continue in force until altered or cancelled under clause (b); but in the case of members of the police force constituted under any of the Acts mentioned in Part II of that Schedule such alteration or cancelation shall be subject to the proviso to sub-section (7) of Section 115 of the States Re-organization Act, 1956, (ii) nothing in this clause shall apply to the recruitment, pay, allowances and other conditions of service of the members of the Indian Police and Indian Police Service.'

6. (1) 'For the direction and supervision of the police force, the State Government shall appoint an Inspector General of Police who shall exercise such powers and perform such functions and duties and shall have such responsibilities and such authority as may be provided by or under this Act or orders made by the State Government.

(2) (a) The State Government may appoint an Additional Inspector General and one or more Deputy Inspectors General of Police.

(b) The State Government may direct that any of the powers, functions, duies and responsibilities and the authority of the Inspector General of Police may be exercised, performed or discharged as the case may be, by the Additional Inspector General or a Deputy Inspector General.

(c) The State Government may also by a general or special order direct that the Additional Inspector General or Deputy Inspector General shall assist and aid the Inspector General in the performance, exercise and discharge of his powers, functions, duties, respoinsibilities and authoirty in such manner and to such extent as may be specified in the order.'

7. (A) 'The State Government may appoint a Police officer to be the Commissioner of Police for any area specified in a notification issued by the State Government in this behalf and published in the Official Gazette.'

7. (C) 'The Commissioner shall exercise such powers, perform such functions and duties and shall have such responsibilities and authority as are provided by or under this Act or as may otherwise be directed by the State Government by a general or special order:

Provided that the State Government may direct that any of the powers, functions, duties, responsibilities or authority exercisable or to be performed or discharged by the Commissioner shall be exercised, performed or discharged subject to the control of the Inspector General;

Privided further that the area for which a Commissioner has been appointed under this section shall not, unless otherwise provided by or under this Act, be under the charge of the District Magistrate or the District Superintendent for any of the purposes of this Act, notwithstanding the fact that such area forms part of a district within the territorial jurisdiction for which a District Magistrate or a District Superintendent may have been appointed.'

8 (a) 'The State Government may appoint for the whole of the State of Gujarat or for any part thereof one or more Superintendents of Police as it may think fit;

(1) for the Police Wireless System,

(2) for the Police Motor Transport system, or

(3) for the performance of such specific duties as the State Government may from time to time determine in this behalf, and the Superintendent so appointed shall exercise such powers and perform such functions as the State Government may from time to time assign to him.;

Provided that such powers and functions shall be exercised or performed subject to the control of the INspector-General.'

9. Now the material point for our decision is whether the persons who submitted charge-sheet before the two learned Special Judges in these two cases, were police officers or not and for that purpose, the definition of that term as contained in section 2(11) is very relevant. According to the definition, police officer would mean any member of the police force appointed or deemed to be appointed under the Act. It would also include a special or an additional police officer appointed under Sections 21 and 22. In deining the term 'police officer' the Legislature has not indicated that the police officer should not only be appointed or deemed to have been appointed under the Act but should also be under the control of the Inspector General of Police. The word has reference to the status of the officer and for that purpose all that is to be seen is whether he is a member of the police force appointed under the Act. Now it is not the case of the petitioners that the officers who investigated these cases were not appointed as members of the police force under the Act. Therefore, it seems that in order to show that these two persons are not police officers, Mr. Shethna has to rely upon a long line of reasoning in order to bring us to the conclusion that the persons working as officers in the Anti-Corruption Dureau cannot be said to be police officers. For this purpose Mr. Shethna starts with the provisions of Section 6(1) of the Act and in his submission any police officer belonging to the single police force in the State Government must necessarily be under the direction and supervision of the Inspector General of Police. In dealing with this ubmission we have to take notice of the singnificant difference between the provisions of Sections 4 and 6(1) of the Act. Section 4 in express terms states that the power of superintendence of the police force throughout the State of Gujarat vests in and is exercisable by the State Government. As against this there is no express enactment in Section 6 similarly worded viz., that the power of direction and supervision of the police force in the State of Gujarat vests in the Inspector General of Police. Therefore, the contention of Mr. Shetha that Section 6(1) in express terms confers power of direction and supervision of the police force on the Inspector General of Police cannot be accepted. It is also not possible to imply by way of necessary implication that this power of direction and supervision is vested exlclusively in the Inspector General of Police. The provision of sub-section (2) (b) of Section 6 of the Act in itself shows that no such power can vest exclusively in the Inspector General of Police under the enactment in question because the powers, functions, duties and responsibilities and the authority of the Inspector General of Police can also be conferred upon the Additional Inspector General of Police or Deputy Inspector General of Police. If we read Section 6(1) as it is, it is clear that the first part of that section reading 'for the direction and supervision of the Police Force, the State Government shall appoint an Inspector General of Police' only shows the object of the creation of the post of the Inspector General of Police. It is true that this post is a statutory post but in creating it, the legislature has merely specified the object of the creation of that post. So far as the powers exercisable by the incumbent of that post are concerned, the latter part of Section 6(1) in itself makes the position clear viz., that the incumbent can exercise powers as may be provided by or under the Act or as may be directed by orders made by the State Government. The word 'such' with reference to exercise of powers by the Inspector General of Police as contained in Section 6(1) of the Act is also significant. So far as the powers exercisable by the Inspector General of Police under the Act are concerned, they maybe found in Sections 16, 20, 23, 24, 25, 28 and 29 of the Act. Section 6(1) enables the State Government to confer such other powers on the Inspector General of Police as maybe directed by orders made by the State Government. Therefore, for the purpose of direction and supervision of the police force, the legislature enabled the State Government to confer poers upon the Inspector General of Police and that in itself would indicate that the first part of Section 6(1) does not amount to conferment of absolute powers of direction and supervision on the Inspector General of Police in express terms or by necessary implication. Now the resolution in question deals with the control over the Anti-Corruption Bureau and vests that control in the Home Department. Section 6(1) of the Act does not lay down that all the police officers belonging to the single police force in the State shall be under the control of the Inspector General of Police. There is indication in the Act itself to the contrary. Thus when we read Section 7(a) and the first proviso of Section 7(c) of the Act, it becomes clear that the State Government can appoint a police officer to be the Comissioner of Police and confer upon him such powers, functions and responsibilities and make him subject to such duties as may be directed by the State Government by a general or special order. Then the first proviso lays down that the State Government may direct that any of the powers, functions, duties, responsibilities or authority exercisable or to be performed or discharged by the Commissioner of police shall be exercised, performed or discharged subject to the control of Inspector General of Police. We find another insances in Section 8 of the Act which provides for the appointment by the State Government for the whole of the State or for any part thereof one or more Superintendents of Police either for the Police Wireless system or for the Police Motor Transport system or for the performance of such specific duties as the State Government may from time to time determine in this behalf. That sction also provides that the Superintendents so appointed shall exercise such powers and perform such functions as the State Government may from time to time assign to them. Then the proviso states that such powers and such functions shall be exercised or performed subject to the control of the Inspector General of Police. Thus in case of appointment of the Police Commissioner the powers conferred upon him may be exercised subject to the control of the Inspector General of Police, if the State Government so directs. This would show that in the absence of such a direction the Police Commissioner is not subject to the control of Inspector General of Police which exercising the powers conferred upon him and performing duties. The proviso to Section 8(a) in itself shows that whenever exercise of powes by a particular police officer was intended to be made subject to the control of the Inspector General, specific provision was made in the section. We may turn to the latter part of Section 4 of the Act which says that any control, direction or supervision exercisable by any officer over any member of the police force shall be exercisable subject to such superintendence of the State Government. When we read these different provisions, one thing becomes clear and it is this. It is not that the legislature provided that the Inspector General of Police had the overall power of direction and supervision over the police foce and that this power was so sacrosanct that it could not be touched by the State Government even though the power of superintendence of the police force throughout the State was expressly vested in the State Government. The word 'superintendence' would also take in the control over the police force. Thereis other indication in the Act itself which would show that what is material is the ultimate superintendence of the State Government over the police force. The act itself contemplates existence of two distinct superior police officers exercising within their respective jurisdiction the powers of direction and supervision conferred upon them under the Act, and for that purpose we may reproduce Sections 23 and 24 of the Act.

23. 'Subject to the orders of the State Government the Commissioner in the case of the police force allocated to areas for which he has been appointed and the Inspector General in the case of the police force allocated to other areas may make rules or orders not inconsistent with this Act or with anyother enactment for the time being in force;

(a) regulating the inspection of Police Force by his subordinates;

(b) determining the description and quantity of arms, accoutrements, clothing and other necessaries to be furnished to the police;

(c) prescribing the places of residence of members of the police force;

(d) for institution,management and regulation of any police fund for any purpose connected with police administration.

(e) regulating, subject to the provisions of Section 17,the distribution, movements and locations of the police;

(f) assigning duties to police officers of all ranks and grades, and prescribing;

(i) the manner in which, and

(ii) the conditions subject to which, they shall exercise and perform their respective powers and duties;

(g) regulating and collection and communication by the police of intelligence and information;

(h) generally, for the purpose of rendering the police efficient and preventing abuse or neglect of their duties.'

'24. (1) The Inspector General may, subject to the rules and orders of the State Government, call for such returns, reports and statements on subject connected with the suppression of crime, the maintenance of order and the performance of their duties as his subordiantes may be able to furnish to him. The Inspector General shall communicte to the District Magistrate and the Revenue Commissioner any general orders issued by him for the purpsoes aforesaid as in consequences of the information furnished to him, and also any orders which the State Government may direct

(2) The Commissioner may subhect as aforesaid with reference to the area under his charge call for such reports, returns and statements as are provided for in sub-section (1).'

According to Section 23 the Commissioner of Police is given powers to make rules or orders in respect of matters specified in that section, in case of police force allocated to areas for which he has been appointed. The same rule-making power is conferred upon the Inspector General or Police in respect of these matters, 'in the cae of police force allocated to other areas,'; the words 'other areas' are very important in this connection. They will show that for the are for which the Commissioner has been appointed he has the power to make rules or orders not inconsistent with the Act or with any other enactment for the time being in force, with regard to the matters specified in Section 23 and in respect of police force allocated to other areas, that power is conferred upon the Inspector General of Police. Similarly Section 24(1) confers powers upon the Inspector General to call for the returns, reports etc., and sub-section (2) of Section 24 confers the same powers on the Commissioner of Police with reference to the areas under his charge. The exercise of these powers is also subject to the rules and orders of the State Government. These two sections would, therefore, show that in single police force the law contemplated two distinct authorities and conferred upon them the rule-making power with regard to the police force within their respective jurisdiction in respect of matters specified in Section 23 and conferred power to call for returns etc., in respect of these areas, under Section 24. This provision would, therefore, show that the powe of direction and supervision over the entire police force in the State is not only not conferred in express terms by Section 6 but the legislature had provided for contingencies in which the Police Commissioner may act independently from the Inspector General of Police in respect of the powers conferred upon him under Sections 23 and 24 of the Act. So far as the ultimate control of the State Government is concerned, these powers of making rules or orders conferred by Section 23 and the power of calling for returns etc., are subject to the orders of the sG. Then we may reproduce Sections 25(1), 25(2)(a), 25(c) of the Act.

25(1). 'The State Government or any officer authorised by sub-section (2) in that behalf may suspend, reduce, dismiss or remove an inspector or any member of the subordinate ranks of the Police force whom he shall think cruel, perverse, remiss or negligent in the discharge of his duty or unfit for the same and may fine to an amount not exceeding one month's pay, any member of the subordinate ranks of the police force, who is guilty of any breach of discipline or misconduct or any act rendering him unfit for the discharge of his duty, which does not require his suspension or dismissal.'

25(2) (a) 'The Inspector-General, the Commissioner and the Deputy Inspector-General shall have authority to punish an Inspector or any member of the subordinate ranks under sub-section (1). A District Superintendent shall have the like authority in respect of any Police officer subordinate to him below the grade of Inspector and may suspend an Inspector who is subordinate to him pending inquiry into a complaint against such Inspector and until an order of the Inspector-General or Deputy Inspector-General can be obtained.'

25 (c) 'The exercise of any power conferred by this sub-section shall be subject always to such rules and orders as may be made by the State Government in that behalf.'

These provisions deal with a power of considerable magnitude inasmuch as they provide for suspension, reduction, dismissal or removal of an Inspector of Police or any member of subordnate ranks of the police force. Sub-section (1) confers these powers on the State Government in the first instance. Sub-section (2) (a) provides that the Inspector-General, the Commissioner and the Deputy Inspector-General shall have authority to punish a police officer or any member of the subordiante rank under sub-section (1). Now the exercise of this authority or power to punish conferred upon the Inspector General of Police bysub-section (2) (a) is also made subject to such rules and orders as may be made by the State Government in that behalf. Therefore, so far as the control over the police force in the State is concerned, there is nothing in Section 6 of the Act to show that that control vests exclusively in the Inspector General of Police. If we bear in mind the various provisions of the Act then it becomes clear that the first part of Section 6 only sets out the object for appointment of an Inspector General of Police and that object is direction and supervision of the police force. But so far as the powers enabling the carrying out of that object are concerned, they must either be found in other provisions of the Act or in the orders made by the State Government. It is in this context that we must now turn to Section 5(a) of the Act which confers powers upon the State Government the power to determine the ranks and the power of organization of the police force as well as the authority to determine the powers, functions and duties which may have to be exercised by members of the police force. It is pursuant to this power of organization that the State Government appears tohave made the resolution dated September 30, 1963. This resolution reads as under:

'Anti-Corruption Bureau,

Establishment of Government of Gujarat,

Home and Civil Supplies Department,

Resolution No. ACB. 3263/B,

Sachivalaya, Ahmedabad.

Dated the 30th September, 1963.

Resolution:

The Anti-Corruption work in the State forms part of the responsibilities of the Inspector General of Police and is looked after by him with the assistance of an Assistant inspector General of Police. With a view to strengthening this organizatino and streamlining this machinery for better and more effective handling of Anti-Corruption work, Government has decided to set up a separate Anti-Corruption Bureau under the direct control of Government in the Home Department for work in connection with the collection of intelligence and investigation of cases of bribery and corruptin, embezzlement of Government money and other malpractices and making enquiries into complaints made by members of the Public or Government officals relating to such matters. Government is pleased to direct that the following posts should be created, for a period of 11 (months up to?) the 30th September, 1964 in the first instance to man the Anti-Corruption Bureau

1. One post of Director, Anti-Corruption Bureau in the rank of Deputy Inspector General of Police.

2. One Armed Head Constable

3. Two Armed Constables.

4. Three posts of Peons in the usual scale of pay.

The post of Director, Anti-Corruption Bureau, is created by virtue of powers vested in the State Government under Rule 4(2) of the Indian Police Service (Cadre) Rule 1954, and should be treated as a temporary addition to the I.P. S. Cadre of the state. In addition, the following posts existing in the office of the I.G.P., G.S. Ahmedabad for work pertaining to Anti-Corruption in the respective pay scales should be deemed to b be transferred to the new Anti-Corruption Bureau with effect from the date of Bureau starts functionining:-

1. 1 Dy. S. P.

2. 1. Reader P.I.

3. 1 Head Clerk

4. 1 Stenographer.

5. 2 Senior Clerks.

6. 4 Junior Clerks.

The two existing regional units of the Anti-corruption orgnizations one at Ahmedabad and the other at Rajkot with their existing staff will continue to exist under the new scheme and should be deemed to have been transferred to the new Bureau.

Due to the separation of function of Anti-Corruption from the office of the Inspector General of Police there will be considerable reduction in the work of the A.I.G.P. in the office of the I.G.P. Government is, therefore, pleased to direct that the post of officer on Special Duty in the office of the I.G.P., G.S., Ahmedabad, should be abolished with effect from the date the new Bureau comes into effect and the work in the Inspector General of Police's office should be redistributed among the A.I.G.P. and the A.O.

The Budget provisions made for Anti-Corruption work in the office of the Inspector General of Police should also be deemed to have been transferred to the new Bureau from the date the new Bureau comes into being.

By order and in the name of the Government of Gujarat.

P.P. SINGALA.

Deputy Secretary to the Government of Gujarat,

Home and Civil Supplies Department.'

There is nothing in this resolution to suggest that the State Government had taken upon itself the task of creating another police force. The resolution in itself shows that the Anti-Corruption work in the State formed part of the responsibilities of the Inspector General of Police and was looked after by him with the assistance of an Assistant Inspector General of Police before the resolution. Then the resolution refers to the decision of the Government to set up a separate Anti-Corruption Bureau under the direct control of the Government in the Home Department with ta view to stengthen the Anti-Corruption Organization and streamline that machinery for better and more effective handling of Anti-Corruption work. The constitution of this separate unit under the direct control of the Home Department is consistent with Sections 4 and 5(a) of the Act. The resoluton in question nowhere shows that the State Government intended to create a separate or a second police force in the form of Anti-Corruption Bureau for the State of Gujarat. The grievance of Mr. Shethna arises from the fact that this Bureau is placed under the direct control of the Home Department. We see nothing objectionable in that case. If this unit was formerly under the indirect control of the State Government, there is nothing in law prohibiting the State Government to bring the unit under its direct control pursuant to the express power to organise the police force conferred upon it under Section 5(a) of the Act. This only means that so far as Anti-Corruption work is concerned, the State Government instead of acting through an agency of the Inspector General of Police, has decided to act directly.

10. Now it is true that the power of organization and determination of ranks and number, conferred upon the State Government under Section 5(a) is subject to the provisions of the Act but there is no provision contained in this Act to show that the State Government cannot bring a section of police force for a specific purpose, within its direct control from the indirect control that it exercises through the Inspector General of Police and Police Commissioner.

11. For the purpose of construing Section 6(1) of the Act, Mr. Shethna urged before us that we may put a 'full stop' after Inspector General of Police in the first part of Section 6(1) and we may substitute the pronoun 'he' instead of 'who' in the beginning of the second part. When so read Sectino 6(1) will read as under:

'For the direction and supervision of police force, the State Government shall appoint an Inspector General of Police. He shall exercise such powers and perform such functions and duties and shsll have such responsibilities and such authoirty as may be provided by or under this Act or orders made by the State Government.'

In Mr. Shethna's submission if these two parts are read separately then the first part would confer the power of direction and supervision on the Inspector General of Police and second part would refer to the conferment of such other powers upon the Inspector General Of Police as may be provided by orders made by the State Government. In our opinion, in reading section 6(1) as submitted by Mr. Shethna makes no difference. In that case also the first part will only show the object of the appointment of the I.G. of Police and the second part will refer to the powers pertaining to direction and supervision which may be conferred upon him by the State Government or which are already conferred upon him under the statute. This construction of Section 6(1) will therefore, not be helpful to Mr. Shethna. Mr. Shethna also referred to Bombay Police Punishment and Appeal Rules and the provisions contained therein and urged that the power to hear appeals and the power to transfer inquiries as well as the power to revise the orders of subordinate officers in these matters were taken away by the impugned resolution as the Anti-Corruption Bureau was made an independent unit. In our opinion this argument has no relevance to the question which we are called upon to answer and we must not lose sight of that question viz., whether the investigating officers who submitted charge-sheets in these two cases can be said to be poilce officers or not. Besides, the exercise of the power of punishment conferred upon the Inspector General of Police under Section 25(2)(a) of the Act is made subject to the rules and orders which the State Government may make in this behalf as can be seen from Section 25(2)(c). And the Punishment and Appeal Rules are made by the State Government under this enabling provision. Therefore, the various powers under these rules to which reference was made by Mr. Shethna have been derived by the Inspector General of Police from the State Government. Then Mr. Shethna tried to point out by reading Section 551 of the Criminal Procedure Code that the power conferred upon the Inspector General of Police as a Police Officer superior in rank to an officer-in-charge of a police station was taken away by the resolution. Section 551 of the Criminal Procedure Code reads as under:

551. 'Poilce officers superior in rank to an officer in charge of a police station may exercise the same powers, throughout the local area to which they are appointed as may be exercised by such officer within the limits of his station.'

Now there is nothing in the impugned resolution to show that by setting up of Anti-Corruption Bureau as a separate unit, the powers of the police officer superior in rank to an officer in charge of a police station as conferred by Section 551 of the Code are in any way affected. Mr. Shethna also contended that the power to organise conferred by Section 5(a) of the Act does not mean the power to bifurcate the police force. That may be so, but in the present caes, no bifurcation of the police force has been brought about. On that point, the resolution in itself is clear. The penultimate paragraph of the resolution shows that the separation of the function of Anti-Corruption from the office of the Inspector General of Police was brought about by the resolution in question. And this is a matter which permits to organization of the police force. In view of these reasons, it is not possible to accept the first contention of Mr. Shethna hat the impugned resolution is ultra vires the provisions of the Bombay Police Act, 1951 and that it contravenes the provisions of Section 3 thereof.

12. That brings us to the second contention of Mr. Shethna which arises in Criminal Revision Application No. 95/69 only. In this connection the contention raised in itself shows that by the appointment of Mr. Dave as Chief City Magistrate, the powers that he had as a Special Judge under the first notification dated June 20, 1966, were lost to him and therefore he had no jurisdiction to take cognizance of the offences in question unless these powers were conferred upon him after his reposting as Additional Sessions Judge Ahmedabad (Rural) at Narol. Now the notification dated November 22, 1968 has superseded the first notification dated June 20, 1966. This notiication, in terms appoints Mr. D. J. Dave as Special Judge for Ahmedabad Revenue District excluding the City of Ahmedabad and Mr. S.S. Talati as Additional Special Judge for Saberkantha Revenue District. This notification is dated November 22, 1968 and on the date when Mr.DAve's jurisdiction to take cognizance was challenged by application dated November 30, 1968. Mr. Dave was already appointed as Special Judge for Ahmedabad Revenue District excluding the city of Ahmedabad. Therefore, at that point of time, it could not be said that he had no jurisdiction to take cognizance of these offences. As regards the effect of what he did in the eye of law prior to the notification dated November 22, 1968 it is not necessary for us to give any decision because this later notification in terms appoints Mr. Dave as Special Judge. The charge in this case has been framed by Mr. Dave after the date of this notification and therefore, it can be said that he had taken cognisance of this case after November 22, 1968. Therefore, the second contention of Mr. Shethna also fails. In view of this notification we do not express any opiinion on the point that Mr. Dave vacated his office as Special Judge on his appointment as the Chief City Magistrate, Ahmedabad.

13. That brings us to the second contention which is raised in Criminal Revision Application No. 102/69 with regard to the legality of the investigation. So far as the contention that P.S.I. Solanki was not a police officer is concerned, we have already dealt with it and according to our conclusion Mr. Solanki did not cease to be a police officer when he investigated the case. Then it was urged that the learned City Magistrate who granted permission to P.S.I. Solanki to investigate the offence in question did not apply his mind to the facts of the case before granting permission under Section 5-A (1) of the Prevention of Corruption Act, which reads as under:

5-A (1). 'Notwithstanding anything contained in the Code of Criminal Procedure, 1898 (Act V of 1898), no police officer below the rank:

(a) in the case of Delhi Special Police Establishment, of an Inspector of Police,

(b) in the presidency-towns of Calcutta and Madras, of an Assistant Commissioner of Police;

(c) in the presidency town of Bombay, of a Superintendent of Police; and

(d) elsewhere, of a Deputy Superintendent of Police;

shall investigate any offence punishable under Section 161, Section 165 or Section 165-A of the Indian Penal Code, 1860 (Act XLV of 1860) or under Section 5 of this Act, without the order of a Presidency Magistrate or a Magistate of the first class, as the case may be, or make any arrest therefor without a warant;

Provided that if a police officer not below the rank of an Inspector of Police is authorised by the State Government in this behalf by general or special order, he may also investigate any such offence without the order of a Presidency Magistrate or a Magistrate of the first class as the case may be, or make arrest therefor without a warrant;

Provided further that an offence referred to in clause (e) of sub-section (1) of Section 5 shall not be investigated without the order of a police officer not below the rank of a Superintendent of Police.'

The relvant portion of the application given by the P.S.I. Solanki to the City Magistrate, 11th Court, Ahmedabad as reproduced in the application given to the lower Court by the petitioner is as under:

'Our Deputy Superintendent of Police, A.C.B. Ahmedabad and Police Inspector, A.C.B. Ahmedabad are engaged in other important investigation and therefore, they will not be able to investigate this case. Therefore, it is requested that permission to investigate this case be given to me.'

On this application the learned Magistrate made the following endorsement as found from the order of the learned Special Judge. 'I have examined the complainant on S.A. He is P.S.I. Shri R.M. Solanki, P.I.Shri T.D. Patel of Anti-Corruption Burearu, Ahmedabad is out of station. He has gone out of the station today. I have also seen the complaint and interrogated the complainant regarding the contents of the complaint. For the aforesaid reasons I give sanction to investigate under Section 5-A of the Prevention of Corruption Act, 1947 read with Section 161 of the I.P.Code to P.S. I. Shri R.M. Solanki of Anti-Corruption Bureau, Ahmedabad.'

So far as the satisfaction of the learned Magistrate as regards the question that there was a prima facie case which required investigation is concerned, no grievance has been made before us by the learned Advocate for the petitioner. But the grievance is that the learned Magistrate should also have satisfied himself that this is a fit case in which investigation should be permitted to be carried out by a police officer below the rank of police officer specified in Section 5-A of the Prevention of Corruption Act, 1947. The endorsement of the learned Magistrate shows that he had satisfied himself on this point also. In fact it shows that he had examined the complainant on solemn affirmation. This complainant is P.S.I. Solanki. He has also mentioned that P.I.Shri T.D. Patel is out of station. Therefore in entrusting this investigation to a subordiante police officer the learned Magistrate has satisfied himself. But the contention raised before us is that the learned Magistrate did not inquire whether any superior police officer belonging to the general police force in the City of Ahmedabad was available for investigation. In view of this, it was urged that the learned Magistrate failed to apply his mind to the provisions of section 5-A of the Act. A similar contention was raised in Criminal Revn. Appln. NO. 270 of 1968 = (reported in AIR 1969 Guj 362), before the Division Bench consisting of my learned brothers A.D. Desai, J., and J.M. Sheth, J. In that case it was observed as under:

'The Magistrate when he considers the question of granting permission to investigate has to satisfy himself that a prima facie case exists and there are circumstances in the case which would justify him to grant a permission to an officer below the designated rank to investigate the offence of bribery. If the intention of the Legislature was to restrict the power of the Magistrate in granting the sanction to investigate the offence to the availability or non-availability of officers of the designated rank, different expression would have been used by the Legislature to carry out the said intention. In our opinion the provisions of Section 5-A of the Act enable either an officer of the designated rank to investigate the offence of the bribery or an officer below the designated rank to do so provided he obtains the permission of the Magistrate to investigate the offence. The provisions of the section do not provide that the Magistrate shall not grant a permission to investigate the offence to an officer below the rank designated in the section because the officers designated in the section are available to investigate the crime.'

The matter is thus concluded by the decision of a Division Bench with which we respectfully agree. Theefore, the contention that the learned Magistrate did not examine the question whether any other officer was available will have no bearing upon the legality of the permission granted by him. In this view the investigation in Special Case NO. 15/68 cannot be said to be illegal.

14. In the result both the applications fail. They are rejected and the rule issued in each application is discharged.

15. Applications rejected.


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