M.L. Shrimal, J.
1. The petitioner is a member of Rajasthan Administrative Service. He was appointed as Land Acquisition Officer, at Jaisalmer on April 25, 1974. He continued on that post upto April 16, 1976. During this period he re-opened a number of cases already decided by his predecessor in office and paid an amount of about Rs. 7,00,000/-to various land holders. An F. I. R. (Annexure 2) was lodged before the C. B. I. against Suresh Chandra, K. G. Karnal, K. I. Hansraj Soni and N. K. Tripathi under Sections 120, read with Section 420 I. P. C., 5 (2) read with Section 5(1) (d) of Prevention of Corruption Act, 1947, and Sections 420, 468, 477A I. P. C. and 5 (2) read with Section 5 (1) (d), Prevention of Corruption Act, 1947. In the course of investigation the petitioner was interrogated on February 19, 1977. After investigating the case for about a year the Investigating Agency placed the papers before Honourable the Chief Minister of Rajasthan for granting sanction for prosecuting the petitioner and the same was granted on April 13, 1978, as mentioned in para 19 of the writ petition. Now it is feared by the petitioner that he would be prosecuted before a proper court of law and for that purpose unecessary steps as provided in the Code of Criminal Procedure for making arrest, searches and other things would be taken. It will perhaps not be out of place to mention here that in the course of investigation the petitioner submitted a number of representations to various authorities, the copies of which have been filed along with the writ petition. But in spite of these representations, the Government considered it advisable to issue sanction to prosecute the petitioner.
2. It is a question of fact whether or not the petitioner is guilty or bad mens rea or had acted in a bona fide manner in re-opening the decided cases and paying an amount of about Rs. 7,00,000/-. It is neither expedient nor is it possible for this court at this stage to arrive at a definite conclusion one way or the other on the material placed on the record. It will primarily and essentially be within the domain of the trial court to examine and appreciate the evidence gathered by the C. B. I., and then arrive at the conclusion whether the petitioner has prima facie committed any offence or not or whether or not there are sufficient grounds to proceed against him. The person prosecuted under the law of the land undoubtedly has adequate opportunity to defend himself to show that ingredients which are necessary to make out a case have not been made out and for that the Code of Criminal Procedure which stood the test of time provides sufficient safe-guard. In State of Bihar v. Ramesh Singh 1977 Cri LR (SC) 375 : (AIR 1977 SC 2018) the question before their Lordships of the Supreme Court, was whether there were sufficient grounds to proceed against the accused and frame a charge against him. Their Lordships, after giving due weight to the arguments advanced, laid down the law as follows:
'At the initial stage if there is strong suspicion which leads the court to think that there is ground for presuming that the accused has committed an offence then it is not open to the Court to say that there is no sufficient ground for proceeding against the accused.'
These observations made by their Lord-ships of the Supreme Court apply with greater force to a case where the matter is still at the stage of investigation. Mere allegation of mala fide by a person against whom criminal investigation is pending and sanction for prosecution has been accorded is no ground for issuance of a writ restraining the Government from proceeding against an accused in the matter. Vehement claim for innocence put forward by a person against whom serious charges are made, at the stage of investigation, are manifestly insufficient for arriving at the conclusion that the proceedings are based on no evidence. To put the prosecution to proof at this stage i. e. at the very inception of the case, will be running counter to the whole scheme of the investigation. Investigation as defined in Section 2(h) Cr. P. C. includes all the proceedings under the Code for the collection of evidence conducted by the police or by any person authorised by a Magistrate in this behalf. Its object is to search for the truth and not to collect evidence to secure a false conviction. See Shukul v. Emperor: AIR 1933 All 314 : (34 Cri LJ 689). Well known maxim of criminal law that the burden of proof always rests upon the prosecution conies into operation only when a case is challaned and the accused is being prosecuted and not prior to that.
3. Learned counsel appearing on behalf of the petitioner placing reliance on Kundan Singh Jhala v. State of Rajasthan: 1976 WLN (UC) 175, and Bhagwat Swaroop v. State of Rajasthan: 1977 WLN 496, has vehemently urged that the petitioner while awarding an additional amount of near about Rupees 7,00,000/- was discharging certain statutory functions and as such he cannot be prosecuted even if he has made any irregularity and illegality in discharge of those functions. He further brought to my notice the fact that at one stage of those cases, the matter was referred to the Collector, and the Collector stayed the proceedings but later on the same authority allowed him to make the payment. It will be for the concerned court to decide whether the act of the petitioner in re-opening the cases and paying nearly Rupees 7,00,000 is such which can bear relation to his duty and he can by a reasonable but not a pretended or fanciful claim.
4. Following observations in Satwant Singh v. State of Punjab; AIR 1960 SC 266 are instructive on the point (at p. 271 of AIR):
'It appears to us to be clear that some offences cannot by their very nature be regarded as having been committed by public servants while acting or purporting to act in the discharge of their official duty. For instance, acceptance of a bribe, an offence punishable under Section 161 of the Indian Penal Code, is one of them and the offence of cheating or abetment thereof is another. We have no hesitation in saying that where a public servant commits the offence of cheating or abets another so to cheat, the offence committed by him is not one while he is acting or purporting to act in the discharge of his official duty, as such offences have no necessary connection between them and the performance of the duties of a public servant, the official status furnishing only the occasion or opportunity for the commission of the offences.'
5. A bare perusal of the F. I. R. (Annexure 2) shows that the cases were reopened after the expiry of the period of limitation- A man of petitioner's experience is expected to know the position of law and I am not here to decide whether the orders passed by him are in accordance with law or not. Question of bona fide and mala fide as stated supra will be ultimately decided by a proper court. Any observations by this court at this stage might prejudice the case of either party.
6. As regards discrimination, suffice it to say that simply because the State Government has not chosen to prosecute other persons, who are alleged to have committed serious offences punishable under Sections 120B, 420, 468, 477A I. P. C. and Section 5 (1) (d) of the Prevention of Corruption Act, 1947, it does not give licence to the petitioner to first commit the offences and swindle public property and come to this court and say that as other persons have not been prosecuted for their mis-deeds or crimes so he should also be treated equally and not have been prosecuted. The fact that the State has not been vigilant in prosecuting some persons would not justify a claim by the petitioner that in his case also the same wrong should be repeated. The guarantee under Article 14 cannot be understood as requiring the authorities to act illegally in one lease because they have acted illegally in other cases, T. Venkatasubbiah Setty v. Cotnmr. Corporation of the City of Banglore AIR 1968 Mys 251. The cases relied upon by the learned counsel for the petitioner, Bidi Supply Co. v. Union of India, AIR 1956 SC 479, and Ram Khilari v. Union of India 1976 (2) Serv LR 827 : (AIR 1976 Raj 219), have no bearing on the point at dispute. The weighty observation made by his Lordship Lord Porter in Emperor v. Nazir Ahmad : AIR 1945 PC 18 (at p. 22) : (46 Cri LJ 413) aptly apply to this case: The relevent portion reads as under:
'In their Lordships' opinion, however, the more serious aspect of the case is to be found in the resultant interference by the Court with the duties of the police. Just as it is essential that every one accused of a crime should have free access to a court of justice so that he may be duly acquitted it found not guilty of the offence with which he is charged, so it is of the utmost importance that the judiciary should not interfere with the police in matters which are within their province and into which the law imposes upon them the duty of enquiry. In India as has been shown there is a statutory right on the part of the police to investigate the circumstances of an alleged cognizable crime without requiring any authority from the judicial authorities, and it would, as their Lordships think, be an unfortunate result it it should be held possible to interfere with those statutory rights by an exercise of the inherent jurisdiction of the Court.'
With the Interpretation which has been put by the Privy Council on the statutory duties and powers of the police the Supreme Court was in full agreement vide State of West Bengal v. S. N. Basak : AIR 1963 SC 417 : (1963 (1) Cri LJ 341). I accordingly hold (that the police had the statutory right to investigate into the circumstances of the alleged cognizable offences and the statutory power of the police to investigate and file a challan and thereafter prosecute cannot be interfered with by the exercise of powers under Article 226 of the Constitution. Consequently, the writ application, stands dismissed.
7. Before parting with the case I will like to caution that nothing which may have to be said in support of my order white answering the question raised is meant and should be understood to prejudice in the least the case of either party at the trial in case a challan is filed.