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M.B. Tharada Vs. State of Gujarat - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtGujarat High Court
Decided On
Case NumberCriminal Revn. Appln. No. 270 of 1968
Judge
Reported inAIR1969Guj362; 1969CriLJ1503; (1969)GLR1027
ActsPrevention of Corruption Act, 1947 - Sections 5, 5(4), 5A and 6; Transfer of Property Act, 1882 - Sections 8; Indian Penal Code (IPC), 1860 - Sections 161, 165, 165A, 419 and 420; Bombay Police Act, 1951 - Sections 161; Code of Criminal Procedure (CrPC) - Sections 172
AppellantM.B. Tharada
RespondentState of Gujarat
Appellant Advocate K.J. Shethna, Adv.
Respondent Advocate G.N. Desai, Govt. Pleader and; G.T. Nanavati, Asstt. Govt. Pleader
DispositionRevision allowed
Cases ReferredAbhinandan Jha v. Dinesh Mishra.
Excerpt:
.....which satisfied him that this was a case wherein he should have given permission to police sub inspector erulkar to carry out the investigation in the case. official acts, unless a magistrate is satisfied that an investigation is called for, and on such satisfaction authorises the same. having regard therefore to the peremptory language of sub-section (4) of section 5 of the act as well as to the policy apparently underlying it, it is reasonably clear that the said provision must be taken to be mandatory. p, anti corruption branch, ahmeda-bad is not available for working out this case and our branch being an independent unit, this investigation cannot be entrusted to any other local dy. shethna was that this ground clearly indicated that the police sub inspector believed that the..........of the illegal gratification. on july 21, 1963, kalidas khodidas patel approached police sub-inspector erulkar, anti-corruption branch and informed him that the applicant demanded illegal gratification and the last instalment of the illegal gratification was to be paid to him on that day. police sub inspector erulkar recorded his complaint. therafter police sub inspector erulkar submitted an application to the judicial magistrate. first class, ahmedabad (rural) at narol for permission to investigate into the offence. the learned judicial magistrate, first class, granted the permission under section 5a of the act. police sub inspector erulkar thereafter lodged a trap and carried out further investigation into the case. on the completion of the investigation he obtained sanction to.....
Judgment:

Desai, J.

1. This is a criminal revision application filed against the judgment and order passed by the Special Judge, Ahmedabad (Rural) at Narol. Shri D. J. Dave, rejecting an application of the applicant requesting the Court to order reinvestigation in the criminal case against him, on the ground that the investigation carried out by the police officers was contrary to the provisions of Section 5A of the Prevention of Corruption Act, 1947 (hereinafter referred to as the Act).

2. The short facts leading to this prosecution are that the applicant in the month of July 1963 was working as a Police Head Constable at the Police Station, Dehgam. The offences punishable under Sections 419 and 420 of the Indian Penal Code were alleged to have been committed by one person. That offence was registered at the Police Station, Dehgam as criminal register No, 98 of 1963. The present applicant was investigating the said offence. One Karsandas Jividas, the resident of village Motipura was suspected to have committed this offence. Karsandas is brother-in-law of Kalidas Khodidas Patel. The present applicant in his capacity as a public servant was alleged to have made a demand of illegal gratification of an amount of Rs. 300 from Kalidas Khodidas Patel as a motive or a reward from forbearing to do an official act i.e. for not pressing the case or showing favour in the case which he was investigating against Karsandas. Some amount was alleged to have been already paid to the applicant by Kalidas Khodidas Patel towards the said demand of the illegal gratification. On July 21, 1963, Kalidas Khodidas Patel approached Police Sub-Inspector Erulkar, Anti-Corruption Branch and informed him that the applicant demanded illegal gratification and the last instalment of the illegal gratification was to be paid to him on that day. Police Sub Inspector Erulkar recorded his complaint. Therafter Police Sub Inspector Erulkar submitted an application to the Judicial Magistrate. First Class, Ahmedabad (Rural) at Narol for permission to investigate into the offence. The learned Judicial Magistrate, First Class, granted the permission under Section 5A of the Act. Police Sub Inspector Erulkar thereafter lodged a trap and carried out further investigation into the case. On the completion of the investigation he obtained sanction to prosecute the applicant and filed a charge-sheet in the Court of the Special Judge, Ahmedabad (Rural) at Narol. The case was numbered as Special Case No. 2 of 1964. In that case the applicant gave an application stating that the prosecution against him for offences under Section 161 of the Indian Penal Code and Section 5 of the Prevention of Corruption Act was barred by limitation in view of the provisions of Section 161 of the Bombay Police Act, 1951. The learned Special Judge accepted the contention and passed an order discharging the applicant. The State of Gujarat preferred criminal Revision Application No. 449 of 1965 in this Court against the said order. The said application came for hearing before my brother Sheth J. on August 10, 1967 who took the view that the proceedings were not barred by limitation and remanded the case for trial before the Special Judge. In the said case the applicant again filed another application contending that a proper sanction to prosecute was not obtained and the Court of the Special Judge had no jurisdiction to take cognizance of the case in view of the provisions of Section 6 of the Act. The learned Special Judge rejected the said application. The applicant being aggrieved by the said judgment filed Criminal Revision Application No. 405 of 1967 in this Court. The said criminal revision application was heard by Shelat J. who held that the sanction to prosecute was not legal and, therefore, pa sed an order dropping the prosecution. Thereafter Police Sub Inspector Zala Anti-Corruption Branch took charge of the investigation of the case against the accused. Police Sub Inspector Zala went through the record of investigation carried out by Mr. Erulkar obtained the permission to prosecute the accused from Inspector General of Police and ultimately filed a charge sheet in the Court of the Special Judge. Ahmedabad (Rural) at Narol. This case was numbered as Special Case No. 3 of 1968. In this case the applicant filed an application contending that the investigation carried out by Police Sub Inspector Erulkar and Police Sub Inspector Zala was in contravention of the provisions of Section 5A of the Act and, therefore, illegal, and requesting the Court to order re-investigation into the case. The application was rejected by the learned Special Judge holding that the permission granted by the Judicial Magistrate, First Class, to Police Sub Inspector Erulkar to investigate in the case was valid one and that the investigation carried on by Mr. Zala was only formal and there was no contravention of the provisions of Section 5A of the Act. It is against this judgment and order that the applicant has filed this Criminal Revision Application No. 270 of 1968 in this Court. The revision application came up for hearing before Thakor J. who referred the matter to Division Bench and it has now reached hearing before us.

3. Mr. Shethna appearing for the applicant contended that the investigation carried out by Police Sub Inspector Erulkar and Police Sub Inspector Zala was not in accordance with the provisions of Section 5A of the Act and, therefore, a fresh investigation of the case should have been ordered by the trial Court before the commencement of the trial. The argument advanced is thus two-fold. The investigation carried out by Police Sub Inspector Erulkar was illegal, submitted Mr. Shethna, because no valid sanction to investigate as required under Section 5A of the Act was obtained by the officer. The argument was that the provisions of Section 5A of the Act are mandatory and the Magistrate before he granted the permission to investigate as required by the provisions of the section had to apply his mind and satisfy himself that there was a prima facie case against the accused, in other words, (1) the case against the accused was not vexatious or frivolous and (2) that there were circumstances which satisfied him that this was a case wherein he should have given permission to Police Sub Inspector Erulkar to carry out the investigation in the case. Section 5A of the Act, so far is relevant to our case, provides that notwithstanding anything contained in the Code of Criminal Procedure, no police officer below the rank of Deputy Superintendent of Police shall investigate any offence punishable under Section 161, Section 165 or Section 165A of the Indian Penal Code or Section 5 of the Act, without the order of the Magistrate of the First Class. In the present case the investigation was to be carried out by Police Sub Inspector Erulkar and, therefore, he had made an application to the learned Judicial Magistrate, First Class, Ahmedabad (Rural) to obtain permission to investigate as required by law. It was contended by Mr. Shethna that the learned Magistrate passed an order granting permission under Section 5-A of the Act and this order ex facie did not mention any reason why the learned Magistrate granted the permission to Police Sub Inspector Erulkar to investigate the offence. The order prima facie indicated that the learned Magistrate had not applied his mind while granting the permission to investigate and, therefore, the investigation carried out by Police Sub Inspector Erulkar was in contravention of the provisions of S. 5A of the Act, In support of this argument the learned advocate relied on the two decisions of the Supreme Court. The decisions relied upon are H. N. Rishbud v. State of Delhi, AIR 1955 SC 196 and State of Madhya Pradesh v. Mubarak Ali, AIR 1959 SC 707. Mr. Shethna also relied on two decisions of this Court and they are Naginlal Nandlal v. State of Gujarat, 2 Guj LR 664 = (1962 (1) Cri LJ 142) and the decision in Criminal Appeal No. 200 of 1981 (Guj.) delivered by J. N. Shelat (as he then was) and Bakshi JJ. on January 30, 1962. The argument of Mr. Shethna, so far as the investigation carried out by Mr. Zala, was that he had not obtained any permission as required under Section 5A of the Act. Mr. Zala had carried out the investigation viz. formation of opinion that the accused had committed the offences on the basis of the materials collected by Police Sub Inspector Erulkar, of filing a charge-sheet in the Court against the accused and arresting the accused during the course of the investigation. Thus the investigation carried out by Mr. Zala was in contravention of the provisions of section 5A of the Act.

4. In order to understand the argument of Mr. Shethna, it is necessary to refer the judgment of the Supreme Court in Rishbud's case, AIR 1955 SC 196 wherein their Lordships examined and considered in details all the provisions of Section 5A of the Act. The relevant observations are as under:

'To appreciate that policy it is relevant to observe that under the Code of Criminal Procedure most of the offences relating to public servants as such, are non-cognizable. A cursory perusal of Schedule II of the Criminal Procedure Code discloses that almost all the offences which may be alleged to have been committed by a public servant, fall within two chapters, Chapter IX 'offences by or relating to public servants', and Chapter 11 'offences against public justice' and that each one of them is non-cognizable, (Vide entries in Schedule II under Sections 161 to 169, 217 to 233, 225-A as also 128 and 129).

The underlying policy in making these offences by public servants non-cognizable appears to be that public servants who have to discharge their functions -- often enough in difficult circumstances--should not be exposed to the harassment of investigation against them on information levelled, possibly, by persons affected by their; official acts, unless a Magistrate is satisfied that an investigation is called for, and on such satisfaction authorises the same. This is meant to ensure the diligent discharge of their official functions by public servants, without fear or favour.

When, therefore, 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 substituted 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 Section 5 of the Act as well as to the policy apparently underlying it, it is reasonably clear that the said provision must be taken to be mandatory.'

In case of AIR 1959 SC 707, the Supreme Court observed as under:--

'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.'

The decisions in Naginlal's case, 2 Guj LR 664= (1962 (1) Cri LJ 142) and in Criminal Appeal No. 200 of 1961 (Guj) also emphasise the same propositions.

5. Thus it is clear that the provisions of Section 5A are mandatory and they lay down that no offences under Sections 161, 165 and 165-A of the Indian Penal Code and Section 5A of the Prevention of Corruption Act be investigated by a police officer below the designated rank unless a permission to investigate is obtained from the Magistrate. It is also evident from the observations made in the aforesaid authorities that the Magistrate before he grants the sanction has to apply his mind and come to a conclusion that a prima facie case is made out against the accused and that there are circumstances in the case which satisfy him that there is a case wherein he should grant permission to the officer below the designated rank to investigate the case.

6. The question is whether in the present case the provisions of Section 5A of the Act have been complied with. It wag argued by Mr. Shethna that under the provisions of Section 5A of the Act officers have been designated who could investigate cases relating to bribery. Therefore, as long as the said designated officers are available to investigate the crime, the officers below the designated rank cannot investigate into the offences and the Magistrate has no authority or power to give sanction to investigate the crime to an officer below the designated rank. The argument was that in the present case, local District Superintendents of Police, were available to investigate the offence and, therefore, the sanction granted by the learned Magistrate to Police Sub Inspector Erulkar to investigate the offence alleged to have been committed by the accused, was illegal. The argument cannot be accepted. The Legislature has made offences, punishable under Section 161 of the Indian Penal Code and Section 5A of the Act, cognizable. As these offences are made cognizable ordinarily Police Station Officer, who is generally a Police Sub Inspector, can investigate the offences. In order to see that public servants are not unnecessarily harassed the legislature enacted Section 5A of the Act and provided that an officer of the designated rank can investigate into the offences and the officers below the designated rank can investigate the offences only on obtaining a permission to do so from the Judicial Magistrate. Thus under the provisions of Section 5A of the Act, the officers of the rank designated therein and officers below that rank, provided they had obtained permission of the Magistrate, can investigate the offence of bribery. The rights and power to investigate which is confirmed by the Criminal Procedure Code on the officer in charge of Police Station to investigate a cognizable case are restricted by the provisions of Section 5A of the Act, The said provisions are of a disabling nature so far as the officers in charge of the Police Stations are concerned. It puts a limitation on their power to investigate the offence of bribery, even though the said offence is made cognizable. The provisions of the section empower a Magistrate to authorise an officer below the designated rank to investigate the offence. The power or authority of the Magistrate to grant sanction to investigate to an officer below the rank designated in the section, is thus, not absolutely dependent on the availability or non-availability of the officers whose authority to investigate is recognised by the provisions of the section. 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 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 5A 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.

7. Mr. Shethna then argued that the order of the learned Magistrate permitting Police Sub-Inspector Erulkar to investigate into the offence does not ex facie contain any reasons for granting the permission and, therefore, was illegal or in-valid. - It is true that the order itself does not contain any reasons but it is a fundamental rule of construction that the document must be read as a whole. Applying the principle to the present case, the order granting permission to investigate to Mr, Erulkar is passed on the application presented by Mr. Erulkar to the Magistrate for obtaining sanction under Section 5A of the Act. In the application Mr. Erulkar had given reasons why he should be entrusted with the investigation of the crime and, to quote his very words:

'The sanction is sought because by Dy. S. P, Anti Corruption Branch, Ahmeda-bad is not available for working out this case and our Branch being an independent Unit, this investigation cannot be entrusted to any other local Dy. S. P. of the Executive Force. It is, therefore, requested to kindly grant me the sanction under Section 5A Prevention of Corruption Act .........'

It is thus clear that two reasons have been given by the Police Sub Inspector as to why he should be given the permission to investigate the offence. The first is that the Deputy Superintendent of Police, Anti Corruption Branch, Ahmedabad was not available to work out the case. There is nothing on the record to show that this statement is incorrect. It is thus apparent that when the learned Magistrate granted the permission to investigate, he took this circumstance into consideration. So far as the second ground mentioned in the application is concerned, the argument of Mr. Shethna was that this ground clearly indicated that the Police Sub Inspector believed that the local Deputy Superintendent of Police of the Executive Force could not be entrusted with the investigation of the case because a Special Branch was established by the State Government to carry out the investigation into the offence. The argument was that provisions of section 5A of the Act recognised the power of certain officers designated thereunder to investigate the offence and further provided that the officers below the designated rank should obtain previous sanction to investigate the offence. The section, argued Mr. Shethna did not lay down that only officers of the Anti Corruption Branch could carry out the investigation into the offence of bribery. The State Government has established a special unit of the State Police Force to investigate the offence and the effect of this is that the local District Superintendents of Police cannot be entrusted with the investigation of the crime and are disabled to do so. The argument cannot be accepted. The object of enacting the provisions of the Prevention of Corruption Act was to eradicate corruption and to achieve the object, the State Government established an independent unit known as Anti Corruption Branch so that the offences relating to bribery could be investigated expeditiously and with secrecy. By the establishment of the Special Branch to investigate the cases relating to bribery, the powers of the local District Superintendent of Police are not taken away. In the present case Police Sub Inspector Erulkar brought to the notice of the learned Magistrate, from whom he had to take the permission to investigate the crime, the fact that the State had established a special independent unit to investigate such crime, that he wag an officer of such special unit and thus suitable to investigate the crime. He also brought to the notice of the learned Magistrate that he had verified the facts of the complaint and satisfied himself that the same was genuine. It was emphasized by Police Sub Inspector Erulkar in his letter for obtaining the sanction to investigate that the State had established a special unit to investigate the case, that he was officer of that unit and thus the case could be investigated expeditiously and with secrecy. It is important to note that no legal matter by virtue of any provision of law, was suggested by the Police Sub Inspector on the powers of Deputy Superintendent of Police to investigate the crime. The application was made by the Police Sub Inspector to obtain an authority to investigate the bribery case and, therefore, he emphasized on the fact of the estabishment of a Special Branch and that he was a member of the Branch. There is nothing in the application to show that he had negatived the powers or authority of the local District Superintendent of Police to investigate such offences. He had merely stated therein that the investigation could not be entrusted to the local District Superintendent of Police, meaning -- if these words are read in context with what precedes and not divorced from it -- that such officers might not investigate the case as a special branch has been established by the State Government for the purpose of investigating such offences. He emphasized that it would be expedient to entrust him with the investigation of the case, he being a member of the independent unit established by the State for the purpose of investigating bribery cases. The learned Magistrate, it appears, has taken into consideration while granting, the permission to the Police Sub Inspector to investigate, the fact of establishment of a special independent unit set up by the State for the investigation of bribery cases, the circumstance that Police Sub-Inspector Erulkar was a member of that unit and being satisfied that a prirna facie case was made out for the purpose of investigation, granted the permission to Police Sub Inspector Erulkar, It cannot, therefore, be said that he had not applied his mind or had taken into consideration extraneous factors while granting the permission to Police Sub Inspector Erulkar to investigate the offence. The learned Magistrate while granting the sanction to investigate had taken into consideration the advisability to permit the Police Sub Inspector who was a member of the special and independent unit to investigate the crime and thus granted the permission to investigate the same on the basis of administrative convenience. This circumstance cannot be said to be extraneous or irrelevant. The same view has been taken by Mehta J. in Criminal Revn. Applns. Nos. 161, 167 and 162 of 1964, D/- 4-8-1964 (Guj). The learned Magistrate on being satisfied about the existence of a prima facie case against the applicant and the circumstances why he should grant the permission to investigate to Police Sub Inspector Erulkar, granted the permission to investigate to him and we see no ground to hold that such permission was not yalidly granted. The result is that the investigation carried out by Mr. Erulkar cannot he said to be in contravention of provisions of Section 5A of the Act.

8. We next come to investigation carried out by Mr. Zala. The learned Special Judge came to the conclusion that the filing of the charge sheet, and arresting the accused cannot be said to be a part of investigation but they were formal and routine acts and. therefore, held that the investigation carried out by Mr. Zala was a legal one. The learned Government Pleader also argued that the filing of a charge sheet and arresting the accused cannot be said to be a part of the investigation and, therefore, the investigation carried out by Mr. Zala was not in contravention of the provisions of Section 5A of the Act. Now it is clear that on the completion of the investigation, Section 172 of the Criminal Procedure Code requires an investigating officer to file a report. This report consists of formation of opinion as to whether on the materials collected, there is a case to place the accused before the Court of the Magistrate for a trial or not. This is an important step in the course of investigation. It has been held by the Supreme Court in Rishbud's case, AIR 1955 SC 196 (supra) that the formation of opinion by the police officer on the materials collected by him is an integral part of the investigation. The same view was taken in AIR 1959 SC 707 (supra). The Supreme Court in the case of Abhinandan Jha v. Dinesh Mishra. AIR 1968 SC 117 has observed that:

'The Investigation under the Code, takes in several aspects, and stages ending ultimately with the formation of an opinion by the police as to whether, on the material covered and collected, a case is made out to place the accused before the Magistrate for trial, and the submission of either a charge-sheet, or a final report is dependent on the nature of the opinion, so formed. The formation of the said opinion, by the police, is the final step in the investigation, and that final step is to be taken only by the police and by no other authority.'

Thus it is clear that the filing of a charge-sheet and arresting the accused by Mr. Zala formed a part of the investigation and it was necessary for Mr. Zala to obtain sanction under the provisions of Section 5A of the Act. It was then contended by the learned Government Pleader that in this case permission granted by the learned Magistrate to Mr. Erulkar to investigate the case was a general one, could be taken advantage of by Mr. Zala and it was not necessary for Mr. Zala to obtain a fresh permission to investigate the crime. A prima facie reading of the application shows that the officer was asking for himself a permission to investigate the crime. The provisions of Section 5A of the Act also indicate that the Magistrate has to apply his mind before he grants a permission to investigate to an officer below the designated rank. The learned Magistrate has, therefore, to take into consideration the factors personal to the individual who makes an application to obtain an authority to investigate the crime. The provisions of the section indicate that a general sanction to the investigation is not contemplated by it. The same view was taken by the Division Bench of this Court in Criminal Revn. Appln. No. 200 of 1961 (Guj) (supra) wherein it has been observed as under:

'The observations made in Rishbud's case AIR 1955 SC 196 as also in Mubarak Ali's case, AIR 1959 SC 707 would seem to indicate that when a permission is granted by a Magistrate to a particular officer of the lower rank to conduct the investigation, such permission would not extend to another officer even though such an officer may belong to the same Police Station. It is to the officer who makes an application for permission that the learned Magistrate grants permission on being satisfied that he is a proper officer to carry out the investigation. In that view it would not be permissible to another police officer to conduct the investigation, taking advantage of the permission granted to another officer.'

Thus the permission to investigate the crime granted to Mr. Erulkar cannot enure for the benefit of Mr. Zala. The provisions of Section 5A are mandatory and it was incumbent on Police Sub Inspector Zala to obtain a permission to investigate the crime.

9. There is no dispute that Police Sub Inspector Zala had not obtained permission to investigate the crime under Section 5A of the Act. It is, therefore, clear that the investigation carried out by him was not in accordance with the provisions of Section 5A of the Act. It is to be noted that an illegal investigation does not affect the jurisdiction of the Court to try the case. The result is that the investigation carried out by Police Sub-Inspector Erulkar was valid and legal and the investigation carried out by the Police Sub Inspector Zala was in contravention of the provisions of Section 5A of the Act. That being the position in our view it would be proper in the interest of justice and fairness that the case should be remanded to the trial Court for ordering a reinvestigation of the case in accordance with the provisions of Section 5A of the Act from the stage at which Mr. Erulkar had left and Mr. Zala commenced the investigation and thereafter to proceed with the trial of the case in accordance with law.

10. Criminal Revision allowed.


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