1. This revision petition arises out of proceedings taken under the Prevention of Corruption Act, Central Act II of 1947 (as amended by Act 59 of 1952) hereinafter called the Act. The petitioner herein, one Manickam Chettiar, was the Superintendent of Central Excise at Tiruppur. On the ground that information was received by the Special Police Establishment, that the petitioner had received illegal gratification in the course of discharge of his official duties from the licencees of power-looms in connection with the grant of licences, in Somanur and surrounding areas, one Sri T. Raghavan, Inspector of Police, Special Police Establishment, Madras applied to the District Magistrate (Judicial) Coimbatore for sanction for investigation of the matter under Section 5-A(c) of the Act.
In that application for sanction, it was mentioned that one Mr. Lakshminarayanan, Superintendent of Police, and one Mr. J.A. Harries, Deputy Superintendent of Police, who could investigate the cases without the prior sanction of the Magistrate were unavoidably engaged at Madras in important administrative matters and supervision of important cases, and that sanction should therefore 1be granted to Mr. Raghavan to investigate the case for offences under Section 161 I.P.C. read with Section 5(1)(d) and Section 5(2) of the Act. The District Magistrate accorded the requisite sanction for investigation by his order dated 2.5.1964 in which he has stated that after having gone through the papers and heard Mr. T. Raghavan, he was satisfied that the investigation in the above case may be done by Mr. Raghavan. During investigation, a search of the house of the petitioner was made, and in the course of the search a sum of Rs. 15410 in the shape of currency notes mostly of the denomination of Rs. 100 was recovered. As a result of the investigation, C.C. 11 of 1965 was registered (and filed) and is now pending on the file of the Court of the Additional Special Judge, Madras Division.
2. The petitioner filed a petition before the Additional Special Judge Crl.M.P. 27 of 1966 on 25.1.1966 for dropping the entire proceedings and for an order directing a proper investigation of the case by a proper authority. The learned Judge dismissed that application. Even though several objections were raised before the lower Court, Mr. G. Ramaswami, learned Counsel for the petitioner, confined himself to and urged the following two points. (1) As the entire occurrence and the offences, if any, alleged to have been committed by the petitioner were all within the sub-division of Tiruppur, the District Magistrate, Coimbatore has no jurisdiction to grant the sanction for investigation of the case, and that it is only the First Class Magistrate, having jurisdiction over the sub-division of Tiruppur that will have jurisdiction to grant the sanction for investigation. (2) Assuming that the District Magistrate, Coimbatore, had jurisdiction to accord the requisite sanction, the learned Magistrate has acted in a mechanical manner without realising the seriousness and the implications of the mandatory character of Section 5-A(c) of the Act, that the reasons given by the Inspector of Police as to why the Superintendent of Police and the Deputy Superintendent, who should normally investigate the case could not do so, would not justify the grant of the requisite sanction.
The District Magistrate should have made further enquiries into the matter about the nature and the details of the other official work which demanded the attention of the Superintendent and the Deputy Superintendent of Police and ought not to have accepted the ipse dixit of Mr. Raghavan, the Inspector of Police.
3. Before I deal with the points raised it is necessary to make a brief reference to the scheme or object and the relevant provisions of the Prevention of Corruption Act, Central Act II of 1947, the Criminal Law (Amendment) Act, Central Act 46 of 1952 and the important amendments made therein from time to time, After the World War No. II corruption amongst public servants posed a serious problem to the Government, and it was realised that the existing law in the Indian Penal Code relating to bribery and corruption amongst public servants was wholly inadequate to meet the exigencies of the time and the imperative need was felt to introduce a special legislation with a view to eradicate the evil of bribery and corruption. The Prevention of Corruption Act, Act II of 1947, was enacted creating a new offence called 'criminal misconduct' in the discharge of duties by public servants.
Offences under Sections 161 and 165 I.P.C. were made cognisable along with the offence of criminal misconduct, with the condition that the investigation could be carried on only by certain designated police officers of a particular rank and investigation by officers of a lower rank with the previous sanction of the Magistrate. The punishment for the offence was made deterrent. Further, the main object was to secure a speedy procedure to dispose of the cases expeditiously and without any delay. After watching the progress of the working of the Prevention of Corruption Act of 1947, Parliament enacted the Criminal Law Amendment Act of 1952.
4. In order to deal with the question whether the power of the District Magistrate to order investigation should be delimited within any particular area or local jurisdiction, it is necessary to have a precise idea of the legislative background of Section 5-A of the Act of 1947, When the Prevention of Corruption Act was originally enacted Section 3 contained the provision that offences punishable under Sections 161 and 165 I.P.C. shall be deemed to be cognisable offences for the purposes of the Criminal Procedure Code notwithstanding anything to the contrary contained therein. Section 3 of the Act of 1947 contained a proviso that police officers below the rank of a Deputy Superintendent of Police shall not investigate any such offences without the order of a Magistrate of the First Class or make any arrest therefor without a warrant.
By Central Act 59 of 1952 the Prevention of Corruption (Second Amendment) Act, Section 3 was amended by adding Section 165-A also, so that offences under Sections 161, 165 and 165-A I.P.C. became cognisable offences under Section 3 of the Act of 1947. Proviso to Section 3 of the Act of 1947 (already referred to) was substituted by a separate section, Section 5-A. The result was that even though the Criminal Procedure Code showed these offences as non-cognisable, under the Act of 1947, as amended by Central Act 59 of 1952, the offences tinder these three sections were made cognisable. So far as the machinery for the actual investigation is concerned, there was no change and proviso to Section 3 was replaced by the new section. Section 5-A, which contained the same provision that notwithstanding anything contained in the Criminal Procedure Code, no officer below the rank of, in the Presidency Towns of Calcutta and Madras, an Assistant Commissioner of Police, in the Presidency Town of Bombay, of the Superintendent of Police, and elsewhere of the Deputy Superintendent of Police, shall investigate any offence punishable under Section 161 or Section 165 or Section 165-A or the offence of criminal misconduct under Section 5(2) of the Prevention of Corruption Act of 1947 without the order of a Presidency Magistrate or a Magistrate of the First Class as the case may be.
The proviso to Section 5-A dealing with investigation by police officers of a lower rank of the Delhi Special Police Establishment is not relevant for the present purpose. In the year 1955 the Criminal Procedure Code was amended by Central Act 26 of 1955 by which amongst other things, in respect of offences under Sections 161 and 165 I.P.C. the police officer can arrest without warrant and the offences were made expressly cognisable. Consequent amendments in the Prevention of Corruption Act of 1947 were also made by Central Act 50 of 1955 omitting Sections 161 and 165 in Section 3, retaining Section 165-A alone as cognisable offence, notwithstanding anything to the contrary in the Criminal Procedure Code. The net result was of the offences covered by Section 5-A of the Act, offences under Sections 161 and 165 were made cognisable by the provisions of the Criminal Procedure Code; the offence under Section 165-A was made cognisable under Section 3 of the Act of 1947 and the offence under Section 5(2) of the Act of 1947 was made cognisable under Section 5-A of the Act. In other words all the four offences i.e., the offences under Sections 161, 165 and 165-A I.P.C. and the offence of criminal misconduct under Section 5(2) of the Act of 1947 were made cognisable offences, subject to the special provision in Section 5-A to the effect that if the investigation were to be conducted in respect of these offences by any police officer below the rank of the designated one the permission of the Presidency Magistrate or the Magistrate of the First Class, as the case may be, should be obtained.
5. Till the Criminal Law (Amendment) Act of 1952 (Central Act 46 of 1952) was enacted, the trial of the delinquent public servant, the procedure governing such trial etc., were in accordance with the provisions of the Criminal Procedure Code, subject however to special provisions in the Act of 1947. In this connection, it should be mentioned that so far as investigation into the offences was concerned the proviso to Section 3 of the Act of 1947 (or Section 5-A of the Act introduced by the amendment of 1952) governed the matter, being a special provision, a deliberate departure, from the provisions of the Code of Criminal Procedure.
6. Central Act 46 of 1952, the Criminal Law (Amendment) Act was enacted making a special provision for the trial of public servants who are guilty of the offences under the Act of 1947. Sections 2, 3, 4 and 5 of the Criminal Law Amendment Act of 1952, which dealt with provisions for punishments and other matters not relevant for the present enquiry were repealed by the Repealing and Amending Act 36 of 1957. Section 6 which is the important and relevant section for our purpose confers the power upon the State Government to appoint as many special Judges as may be necessary for such area or areas as may be specified in the notification to try an offender for offences under Sections 161, 162, 163, 164 and 165 or 165-A I.P.C. and the offence of criminal misconduct under Section 5(2) of the Act of 1947, and for the offence of conspiracy to commit or any attempt to commit or any abetment of any of these offences specified above. Section 6(2) contains the restriction that no person shall be appointed a special Judge unless he is or has been a Sessions Judge or an Additional Sessions Judge or an Assistant Sessions Judge under the Criminal Procedure Code.
Section 7(1) provides that notwithstanding anything contained in the Criminal Procedure Code or in any other law, the offences mentioned under Section 6(1) shall be triable by the Special Judges only. Section 7(2) 'provides that offences specified in Section 6(1) shall be tried by special Judges for the area within which the offence was committed or where there are more special Judges than one for such area by such one of them as may be specified by the State Government. Section 7(3) provides that when trying any case a special Judge may also try any offence other than the offences mentioned in Section 6, with which the accused may under the Criminal Procedure Code be charged at the same trial. Section 8 deals with the procedure and the powers of the special Judges and in particular it provides that the special Judge may take cognisance of the offences without the accused being committed to him for trial and that in trying the accused persons the special Judge shall follow the procedure for the trial of warrant cases by Magistrates.
Section 8, Sub-sections (2) to (4), contains other provisions not relevant for the present enquiry, with reference to certain particular provisions of the Criminal Procedure Code. See. 9 provides for the right of appeal and revision treating the special Judge as a Court of Session trying the cases without a Jury. Section 10 contains the provision for transfer of cases, which are pending before any Magistrate immediately before the commencement of the Act, which as a result of the Act should be tried by the special Judges exclusively.
7. In more decisions than one, the Supreme Court had laid pointed emphasis upon the mandatory character of the provisions of Section 5-A. Vide H.N. Rishbud v. State of Delhi : 1955CriLJ526 , State of M.P. v. Mubarak Ali : 1959CriLJ920 and State of U.P. v. Bhagwant Kishore Joshi : 1964CriLJ140 . In : 1955CriLJ526 the Supreme Court has adverted to the definite policy underlying the salutary and mandatory provisions, Section 5-A, in the important and significant background of the offences by public servants being made cognisable for the first time under the provisions of the Prevention of Corruption Act of 1947. The safeguard that public servants who have to discharge their functions in difficult situations should not be lightly exposed to the harassment of investigation against them on complaints levelled and information given possibly by persons affected by the official acts of the concerned public servants has still been maintained under the stringent conditions of Section 5-A by providing this important substituted safeguard that even though the offences are made non-cognisable they could be investigated only by police officers of a designated high rank and failing that, in special cases, by police officers of a lower rank, after obtaining the order of the Presidency Magistrate or the Magistrate of the First Class as the case may be. The significant policy and object underlying Section 5-A was put in these terms by the Supreme Court in : 1959CriLJ920 :
The Act was passed, as the preamble indicates, to make more effective provisions for the prevention of bribery and corruption among public servants. It introduced a defintion of the offence of criminal misconduct in discharging an official duty and new rules of presumption against accused in the case of the said offence. But in the year 1952, by Act 59 of 1952, presumably on the basis of the experience gamed, Section 5-A was inserted in the Act to protect the public servants against harassment and victimization. If it was in the interest of the public that corruption should be eradicated, it was equally in the interest of the public that honest public servants should be able to discharge their duties free from false, frivolous and malicious accusations. To achieve this object, Sections 5-A and 6 introduced the following two safeguards : (1) no police officer below the rank (a) in the presidency towns of. Madras and Calcutta, of an Assistant Commissioner of Police, (b) in the presidency town of Bombay, of a Superintendent of Police and (c) elsewhere of a Deputy Superintendent of Police, shall investigate any offence punishable under Section 161, Section 165 or Section 165-A I.P.C. (45 of 1860) or under Sub-section (2) of Section 5 of the Act, without the order of a Presidency Magistrate or a Magistrate of the first class, as the case ma)' be, or make any arrest therefor without a warrant-see Section 5-A(2). No Court shall take cognisance of an offence punishable under Section 161 or Section 164 or Section 165 I.P.C. (Act 45 of 1860) or under Section 5(2) of the Act alleged to have been committed by a public servant except with the previous sanction, of the appropriate Government-see Section 6. These statutory safeguards must be strictly complied with, for they were conceived in public interests and were provided as a guarantee against frivolous and vexatious prosecutions. While in the case of an officer of assured status and rank, the legislature was prepared to believe them implicitly, it prescribed an additional guarantee in the case of police officers below that rank, namely, the previous order of a Presidency Magistrate or a Magistrate of the first class, as the case may be. The Magistrate's status gives assurance to the bona fides of the investigation. In such circumstances, it is self evident that a Magistrate cannot surrender his discretion to a police officer, but must exercise it having regard to the relevant material made available to him at that stage. He must also be satisfied that there is sufficient reason, owing to the exigencies of administrative convenience, to entrust a subordinate officer with the investigation. This Court in : 1955CriLJ526 , emphasised the necessity to adhere strictly to the provisions of Section 5-A of the Act. Jagannadhadas J. who delivered the judgment of the Court observed at page 202: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 cognisable, 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.
The question that arises for consideration is whether any delimitation of area is necessary involved in the jurisdiction of the Magistrate who gives the requisite sanction and whose status as designated in Section 5-A gives to the accused the assurance regarding the bona fides of the investigation as against apprehensions of frivolous and vexatious prosecution. I see no warrant whatsoever for imposing any such limitation as to the area of jurisdiction, whether it is for the period of 1947-52 till the Criminal Law (Amendment) Act of 1952 or thereafter. The position after the Criminal Law (Amendment) Act of 1952 is a fortiori and it is impossible to fit into the scheme of this Act, any motion of a limitation with reference to the local area, when a Magistrate of the First Class grants permission for investigation under Section 5-A of the Act II of 1947.
It cannot be disputed that so far as investigation of the particular offences is concerned, Section 5-A was enacted by the legislature as a deliberate departure, the said provision taking the place of Sections 155 and 156 Crl.P.C. This provision Section 5-A, undoubtedly, is a provision to the contrary within the meaning of Section 5, Crl.P.C. It confers, in its express language, the statutory power upon the designated police officers to investigate the particular offence by public servants. This power is conferred only upon certain categories of Magistrates and not upon all Magistrates functioning under the Criminal Procedure Code. Whenever under special statutes special power is conferred thereunder, upon Courts, either civil or criminal, it is well-known and familiar practice and a general pattern that a limitation is imposed on the competency of the Courts, civil or criminal by delimiting the area of jurisdiction, as one, over which the Court concerned has competency and jurisdiction under the general law of the land.
For instance, we notice this, even in Sec-Won 155(2) Crl.P.C. which provides that the order for investigation of non-cognisable cases should be obtained from the Magistrate of the First Class or Second Class, having power to try such cases or commit the same for trial or of a Presidency Magistrate. Similarly even in respect of cognisable offences, Section 156(1) provides that the police officer may investigate any cognisable case which a Court having jurisdiction over the local area within the limits of such station would have the power to enquire into or try under the provisions of Ch. XV Crl.P.C. When the legislature conferred this power under Section 5-A in such general terms upon the Magistrate of the first class in general as a substitute for Section 155(2) Crl.P.C. there is no warrant whatsoever for importing into Section 5-A this delimitation of the area. If that were the intention of the legislature an express provision to that effect would have been made in Section 5-A, This is not something accidental but deliberate.
Activities of the delinquent public servants may be extending over several areas and that investigation would be seriously hampered if the further condition is imposed that the Magistrate] concerned under Section 5-A should also have the power and the competency to try the offender. This special enactment, the Prevention of Corruption Act IX of 1947, is a Central Act and the investigation by the police may extend or expand from place to place, and in the initial stages, it may be exceedingly difficult to predicate the Court which may ultimately have jurisdiction to try the accused. It will be only after the investigation is over, that it will be possible to predicate and determine the jurisdiction of the particular Court to try the offender with reference to the materials gathered in the course of the investigation. Even though the offences were made cognisable, as observed by the Supreme Court in : 1955CriLJ526 at p. 203, the saving provision in Section 156(2) which would cure any defect or want of jurisdiction in the investigation would not apply to an investigation under Section 5-A. It will be imposing an almost impossible burden upon the police, if it were to be held that the requisite permission under Section 5-A should be obtained only from the Magistrate who would have the competency or jurisdiction to try the offender. Any such notion would cut at the root of the special provision in Section 5-A, which is differently worded from Sections 155 and 156 Crl.P.C.
8. There is one other important aspect. This is not a case in which the legislature completely left out of account all notions of delimiting the area of the Magistrate concerned, thereby attracting by necessary implication, the general scheme under the Criminal Procedure Code, to hold that Magistrate of the First Class, means the Magistrate having jurisdiction to try the offender. On the other hand, there is a demarcation of the area of the Presidency towns in Section 5-A Sub-sections (a) and (b) in contrast to places outside the Presidency towns. The words 'elsewhere of the Deputy Superintendent of Police' in Section 5-A(c) is a clear specific provision that the Deputy Superintendent of Police will have jurisdiction over the entire area and an officer below his rank can investigate in the entire area with the permission of the Magistrate of the First Class. If the intention of the legislature were that there should be a limitation of the area it would not have used this general language. When a new specific power which is conferred on the Magistrate under Section 5-A is not under the Criminal Procedure Code, but under the special statute the ambit of his power has to be determined, only, with reference to the provisions of the special statute.
9. The position is a fortiori after the Criminal Law Amendment Act 46 of 1952. The jurisdiction to try the offenders under the Prevention of Corruption Act is conferred exclusively upon special Judges under Section 7, and the Government has to notify the area of their jurisdiction. In the instant case the jurisdiction conferred upon the special Judge covers the entire State of Madras. Magistrate of the First Class has no jurisdiction whatever to try the offenders under the Prevention of Corruption Act. The special Judge should be either a Sessions Judge, or an Additional Sessions Judge or an Assistant Sessions Judge. A Magistrate of the first class has no place in Sections 7 and 8 of the Criminal Law Amendment Act. The special Judge may take cognisance of cases himself under circumstances as provided under the Criminal Law Amendment Act. But under the scheme of Section 5-A in the matter of investigation he is nowhere in the picture.
The Magistrate of the First Class referred to in Section 5-A cannot be equated to the special Judge functioning under the Criminal Law Amendment Act of 1952. The inference is therefore irresistible that under the scheme of Section 5-A, there is no warrant for introducing the notion of Magistrate having competency to try the offender or delimit the area. The sole object underlying Section 5-A is that the delinquent officer should have the guarantee that he would not be harassed by frivolous or mala fide investigation by all police officers high or low and the status of the Magistrate who grants the requisite sanction operates as an effective safe guard that even though the investigation is conducted by a police officer below the designated rank it is a bona fide investigation and there is justification for that investigation being conducted by the officer below the designated rank. That is all the safeguard that is provided under Section 5-A and nothing more.
The First Class Magistrate who grants the requisite sanction is not so much concerned with the merits and details of the case, and he is only to be satisfied on the materials placed that for exigencies of administrative convenience or for other analogous reasons the investigation could not be conducted bv the police officer of the designated rank, and that an officer of lower rank should be authorised to investigate the case. In discharging that duty I am unable to see how the question that he must also have jurisdiction to try the offender has any relevance at all having regard to the scheme of the Act.
10. In this view, the question whether the District Magistrate of Coimbatore, has jurisdiction to grant sanction for investigation with reference to the offence committed at Tiruppur loses its significance. The District Magistrate, Coimbatore, will have undoubted jurisdiction even if we import into Section 5-A the condition of the limit of territorial jurisdiction. In interpreting the scope of Sections 10 and 12 of the Criminal Procedure Code all the High Courts have uniformly taken the view that when the State Government appoints a Magistrate 6f the First Class, as the District Magistrate, he shall have jurisdiction throughout the entire district, even though under Section 12 the State Government appoints Sub-Divisional Magistrates with respect to the sub-divisions of the District for convenience and exigencies of pressure, arrears or accumulation of work.
Section 12(2) is unambiguous and clear to the effect that even though areas or sub-divisions are demarcated and Sub-Divisional Magistrates are appointed for those sub-divisions, the Sub-Divisional Magistrates shall have jurisdiction and lowers throughout the district unless an express restriction or limitation of the area is imposed by the State Government while; making the appointment. In the case of the; District Magistrate his jurisdiction over the entire district is under the statute Section 10 and it is doubtful whether it is open to the Government to delimit his jurisdiction within' that district. In the instant case, it is not contended that there has been any such delimitation of the area with reference to the jurisdiction and powers of the District Magistrate. As the question is well settled by authorities, it is unnecessary to burden this judgment by a detailed reference to the decisions of the several Courts.
11. Reference may first be made to the Bench decision of the Nagpur High Court in State Govt. M.P. v. Krishnadas Nima AIR 1955 Nag 189, the Bench consisting of Mudholkar and Chodhuri JJ. That case related to a prosecution for an offence under the Factories Act. The District Magistrate of Hoshangabad gave the requisite sanction under the Factories Act and the complaint was forwarded to the Magistrate of the First Class, Hoshangabad for disposal. The case was later on transferred to the Court of the Magistrate of Harda Sub-Division. Under Section 106 of the Factories Act, the proceedings should be filed within 3 months after the detection of the offence. The argument was that as the offence took place within the territorial limits of the Court of the Magistrate of Harda the initiation of the proceedings earlier before the District Magistrate of Hoshangabad was incompetent, misconceived and without jurisdiction and could not arrest the running of time.
This argument was repelled and it was held by the Bench that the complaint originally initiated in the Court of the District Magistrate of Hoshangabad was proper as the District Magistrate has jurisdiction over the entire district wherever (in that District) the offence might have been committed. The Bench followed the Bench decision of the Calcutta High Court in Golam Rahman Khan v. Kali Pada Manha : AIR1932Cal864 , holding that mere definition of areas by way of distribution of work amongst the various sub-divisional magistrates would not affect the jurisdiction of the District Magistrate stationed at the headquarters of the district. It was emphasised that mere sub-division of the district cannot amount to delimiting the area of jurisdiction, as, if it is so understood, it would render Sub-section (2) of Section 12 useless and devoid of any meaning.
12. This Bench decision of the Nagpur High Court has been followed in Parichhan Singh v. Heman Singh : AIR1961Pat94 , in which it was held that the jurisdiction of the powers of the Magistrate of a District extends throughout the district. I may also refer to the decision of the Allahabad High Court in Choti v. Khecheru ILR All 649 : AIR 1920 All 177 (2), in which the question related to the legality of the sanction granted under Section 195 Crl.P.C. By the application of Section 12 Crl.P.C. it was held that the mere fact that the Magistrate of the First Class was transferred to some other sub-division, did not deprive him of the power to continue the proceedings already initiated under Section 195, while he was functioning previously in some other sub-division, and that the powers and jurisdiction of the Sub-Divisional Magistrate extended throughout the district of Meerut.
13. It is sufficient to refer to the leading decision of the Calcutta High Court in Saratchandra Roy v. Bepinchandra Roy ILR (1902) Cal 389, which has been followed in all the subsequent cases. The Bench held in that case that a Magistrate appointed to act as a Magistrate in a district has, unless his powers have been restricted to a certain local area, jurisdiction over the entire district.
14. The same view was reiterated in a recent Bench decision of the Allahabad High Court in Omprakash v. State : AIR1962All157 , holding that a Sub-Divisional Magistrate has jurisdiction and powers over the entire district unless under Section 12(2) an express limitation is imposed concerning the area of jurisdiction. In the case of a District Magistrate the position is a fortiori as observed earlier, it is even doubtful whether it would be open to the Government to impose any such restriction in the case of a District Magistrate in contrast with Sub-Divisional Magistrates.
15. My attention was also drawn to the decision of the Mysore High Court in Chinnappa Eswarappa v. State of Mysore AIR 1960 Mys 242, in which the same view was taken about the scope of Section 12 Crl.P.C. in a case arising under Section 5-A of the Prevention of Corruption Act. It was held that the sanction granted for investigation by the First Class Magistrate at Dharwar was valid even though the offence is alleged to have taken place within the local area of the Judicial Magistrate, First Class, Haveri, as both the areas are in the same district of Dharwar. It is significant to note, that independently of the application of Section 12 it was held, that the power under Section 5-A is a special power conferred under a special statute and not under the Criminal Procedure Code.
16. My attention was also drawn to an unreported decision of Kailasam J. in Cri.R.C. 157 of 1965 (Mad) where the learned Judge has taken the same view following decision of the Mysore High Court referred to already. In that case, the argument that the requisite sanction granted by the Sub-Divisional Magistrate of Poonamallee, in respect of an offence committed at Arkonam, was invalid was not accepted. The learned Judge took the view that any Magistrate of the First Class can grant the requisite sanction, and there was no warrant for construing the section in this way, namely, that the First Class Magistrate should be one having territorial jurisdiction. It is important to note that, this decision dealt not with a case of a different subdivision but a different district altogether.
17. On the second point, I cannot accept the argument that the District Magistrate granted the sanction under Section 5-A in a routine mechanical manner without applying his mind to the seriousness and the implications of the salutary provisions in Section 5-A of the Act. In the application filed under Section 5-A of the Act Mr. Raghavan, the Inspector of Police Special Police Establishment, had stated that the Superintendent and the Deputy Superintendent of Police are unavoidably engaged at Madras, in connection with important administrative matters and supervision of important cases and that they are not in a position to investigate the case. The order of the District Magistrate shows that he was fully alive to his responsibility in the matter, that he had perused the relevant papers, also heard Mr. Raghavan, the Inspector of Police, before granting the requisite sanction. It is clear that the magistrate was satisfied that there were materials calling for scrutiny and investigation, that it was not a mala fide or malicious harassment and that the higher police officers could not be spared and the exigencies of the cases warranted the investigation of the case by a subordinate officer.
18. Learned counsel urged, that as the order of the District Magistrate, constitutes the very foundation of the jurisdiction, and as the Supreme Court has held that a sanction granted in violation of the spirit of Section 5-A would bear the stamp of illegality that question must be considered even at the threshold. He urged that the District Magistrate should in his order advert to the particular urgent work or investigation in which the officers of the higher rank were engaged and the nature and the details of the work and the urgency thereof or of the investigation and that a bare statement in the order that Mr. Raghavan was heard in Court by the District Magistrate and the District Magistrate perused the connected papers would not be sufficient compliance with the requirements of law.
He urged that the order which the District Magistrate passed in an application under Section 5-A is a judicial or a justiciable order and subject to scrutiny either by the special Judge, who actually tries the case or by the High Court, if there should be a revision or an appeal from out of the proceedings. He urged that under Section 5-A it is not the mere subjective satisfaction of the District Magistrate, but that he should apply objective tests which should also be apparent on the face of his order. My attention has not been drawn to any decision in which it was held that the order of the First Class Magistrate under Section 5-A is a justiciable one. Learned Counsel placed considerable reliance upon the decision of the Supreme Court in : 1959CriLJ920 , already referred to, in which the decision of the High Court of Madhya Pradesh (setting aside the order of the special Judge who upheld, the legality of the investigation) was affirmed.
The facts of that case are easily distinguishable. In that case the Sub-Inspector of Police in his application for sanction under Section 5-A merely stated that he had been deputed to investigate the case and permission therefor may be granted to him and the Magistrate passed the cryptic order: 'Permission'. Neither the application nor the order made thereon disclosed what precise materials were placed before the Magistrate and the facts of that case showed that the Magistrate passed the order in a mechanical manner merely on the basis of the application. The Supreme Court observed that when the Magistrate passed the order he was proceeding on the assumption that he had to pass the order merely in formal compliance with the provisions of the section.
19. In the instant case the situation is totally different. The very fact that the Magistrate heard Mr. Raghavan shows that the Magistrate was fully alive to his responsibility in the matter and was not satisfied with a mere perusal of the papers. It is neither expedient nor feasible to formulate any precise set formula of the language of the order which the Magistrate has to pass, as each case will depend upon its particular facts. Public interest may demand the particular administrative work or the particular case or cases in the investigation of which the superior officers are engaged should not be disclosed in full detail as that might hamper and seriously prejudice the investigation work. Suppose, for instance, the superior officer is busy in investigation of a deep-rooted conspiracy and other offences of bribery and corruption under the provisions of the Act amongst several officers and public servants in a particular department, if Mr. Raghavan were to disclose the whole investigation and how the superior officer is busy, it will be impossible to maintain secrecy of investigation.
It will seriously affect a successful investigation. Administrative convenience, exigencies of pressure of work and investigation of other cases are undoubtedly good reasons which would justify the grant of sanction under Section 5-A. It is essentially a matter for the District Magistrate, and if there is evidence that he has bestowed his responsibility and had applied his mind to the matter and has not acted in a mechanical manner the order cannot be subjected to a detailed scrutiny. In my opinion, such a detailed scrutiny as though it is an at>pealable order would be completely opposed to the scheme and the spirit of the Act.
20. Public interests require that public servants must be allowed to have full freedom and courage to discharge their duties with high integrity and impartiality without any fear or favour. First Class Magistrate while acting under Section 5 must bear in mind that if permission were to be given lightly, at the dictates of the police officer, the purpose of the Act would be defeated and frivolous and vexatious harassment engineered or instigated by aggrieved persons whose displeasure the public servant might have incurred in the discharge of his duties, would be encouraged. The Magistrates should act in a responsible manner in this regard, justifying the confidence reposed in them by the Legislature, which made these serious offences cognisable for the first time in 1947. In this context, it has also to be borne in mind that in the Special Police Establishment superior officers of the designated rank are not too many with the result that there will be bona fide urgent need for investigation by subordinate officers. I am not prepared to accept the argument of learned Counsel for the petitioners that because the order of the Magistrate is brief and is not as full and rich with details as the petitioners would desire, the sanction granted should be held to be invalid.
21. Further, in this case the District Magistrate granted the sanction on 2.5.1964, and within a very short time thereafter Act IV of 1964 came into force on 19.12.1964 by which Inspectors of Police of the Special Police Establishment have also been empowered to investigate without the sanction of the First Class Magistrate. The three decisions of the Supreme Court referred to earlier show that the mere fact that there was some defect or infirmity in the grant of sanction would not ipso facto vitiate the entire proceedings as illegal, and that the accused in all the cases should nevertheless establish that there has been a miscarriage of justice, and that he has suffered prejudice consequent upon want of compliance with the provisions of Section 5-A.
But that does not mean that this objection can be raised only after the trial is over, but it is not open to the public servant to agitate this question at any earlier stage. But whatever may be the stage he must establish that upto that stage he has been prejudiced by the investigation conducted by the subordinate officer without the requisite sanction. In this case, no attempt was made in that direction and the matter was argued only as a pure question, of law. No attempt was made to dissect the period of investigation from 2.5.1964 till 19.12.1964, and thereafter to lay the foundation for a complaint of prejudice that a subordinate officer has shaped his investigation to achieve the desired result or to implement his scheme of having a successful investigation. In this view also the objection has to be rejected as lacking substance.
22. Looked at from any point of view, I am satisfied that there is no defect or irregularity in the permission granted by the District Magistrate. The revision petition is accordingly dismissed.