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A. Venkataramanappa Vs. State of Karnataka - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKarnataka High Court
Decided On
Case NumberCriminal Revn. Petn. No. 463 of 1983
Judge
ActsIndian Penal Code (IPC), 1860 - Sections 161, 165 and 165A
AppellantA. Venkataramanappa
RespondentState of Karnataka
Appellant AdvocateH.R. Venkataramanaiah, Adv.
Respondent AdvocateM.V. Devaraju, Spl. Public Prosecutor
Cases ReferredState of Rajasthan v. Tarachand Jain
Excerpt:
- code of civil procedure, 1908.[c.a. no. 5/1908]. section 9: [v.g. sabhahit, j] jurisdiction of civil courts suit for declaration held, entry made by the revenue authorities is always subject to the declaration that may be granted by the civil court. .....bangalore, has placed charge-sheet against the petitioner, who is an official of the karnataka state government, in the court below, for offence under s. 161 of the indian penal code, under s. 5(1)(a) of the prevention of corruption act, 1947 (the act) read with s. 5(2) and under s. 5(1)(c) read with s. 5(2) of the act, in c.c. no. 13 of 1982. 2. pleading for his discharge, he raised several objections in the court below and the learned judge overruling those objections, by his order dt. 16-6-1983, has framed charges against him for the aforesaid offences. 3. challenging that order, he has preferred this revision. 4. the objections raised by the accused mainly centre round certain lapses said to have been committed in the matter of the investigation into this case and also by not.....
Judgment:
ORDER

1. The Inspector of Police attached to the State Vigilance Commission, Bangalore, has placed charge-sheet against the petitioner, who is an official of the Karnataka State Government, in the Court below, for offence under S. 161 of the Indian Penal Code, under S. 5(1)(a) of the Prevention of Corruption Act, 1947 (the Act) read with S. 5(2) and under S. 5(1)(c) read with S. 5(2) of the Act, in C.C. No. 13 of 1982.

2. Pleading for his discharge, he raised several objections in the Court below and the learned Judge overruling those objections, by his order dt. 16-6-1983, has framed charges against him for the aforesaid offences.

3. Challenging that order, he has preferred this Revision.

4. The objections raised by the accused mainly centre round certain lapses said to have been committed in the matter of the investigation into this case and also by not complying with the requirements of Sections 5(a) and 6 of the Act.

5. At the outset, it may be stated that it is not in dispute that an investigation into any offence under the Act must be by the officials duly empowered as provided under S. 5(a) of the Act. Under that provision, no Inspector of Police can investigate into any offence arising under the Act without the order of a presidency magistrate or a Magistrate of the First Class, but he could investigate without such orders only if he is authorised by the State Government in this behalf by a general or special order (first proviso to sub-section (1) of S. 5A of the Act). The second proviso to this sub-section further provides that an offence under Clause (e) of sub-section (1) of S. 5 shall not be investigated without the order of a Police Officer not below the rank of Superintendent of Police. This means, that, to investigate into an offence under Clause (e) the Investigating Officer should have, in addition to the qualifications provided for in the first proviso to this sub-section, also this requirement, it being an order of a Police Officer not below the rank of a Superintendent of Police to investigate into that Offence.

6. It is not in dispute that, in the instant case the Assistant Commissioner of Investigation (General) and Deputy Superintendent of Police of the City Division, State Vigilance Commission, Bangalore, Sri H. M. Mariswamy, having registered a case on 23-9-1981 against the petitioner-accused for an offence punishable under sections 161 of the I.P.C. and 5(1)(a) and 5(1)(e) of the Act read with S. 5(2) thereof, had sent the FIR to the Court below. He, thereafter, entrusted the investigation to Sri K. Basavaraj, Inspector of Police, Bureau of Investigation, State Vigilance Commission. Sri Basavaraj investigated into the case and after completion of the investigation, obtained the necessary sanction from the Government as required under S. 6(1)(b) of the Act and submitted the final report to the Court below on 26-5-1982.

7. Having taken cognizance of the offence, the Court issued process to the accused.

8. The State Government have, by their Notification in No. HD.447 PEG. 80 dt. 1-9-1980 authorised, exercising their powers under the first proviso to sub-section 1 of S. 5A of the Act, all the Inspectors of Investigation (General) and Inspectors of Police of the Karnataka State Vigilance Commission, to investigate into offences punishable under sections 161, 165 and 165A of I.P.C. and S. 5 of the Act. This is not in dispute.

9. Inspector Basavaraj, having been transferred to the Bureau of Investigation, State Vigilance Commission, by Government Notification No. CB.2/163/79-80 dt. 10-8-1979, of the office of the Inspector General of Police, Karnataka State, Bangalore, was at the relevant time an Inspector of Police attached to the Commission.

10. It is also not in dispute that Sri Kasturi Rangan who, at the relevant time was a Deputy Commissioner of Investigation (G) and Superintendent of Police, State Vigilance Commission, Bangalore, exercising his powers under the second proviso to sub-section (1) of S. 5 of the Act had ordered an investigation into this case. The memo issued by him in this connection on 20-3-1981 reads thus :

VC 1 42/80-81 Dt. 20-3-1981 MEMO

A copy of the report of the Assistant Director of Inspection (Intelligence)-I, Office of the Commissioner of Income-tax, Bangalore, along with its enclosures in original is sent herewith. The case records in case No. VCB-83/77-78 are also enclosed herewith. As could be seen from the records in VCB-83/77-78 and the records from the Income-tax authorities there is enough evidence to indicate that the AGO is in possession of property for which he cannot satisfactorily account. The records also indicate that the AGO is habitually accepting illegal gratification showing official favour. You may therefore register a case against the accused Sri A. Venkataramanappa under section 161 IPC & 5(1) (a), 5(1)(e) r/w 5(2) of the Prevention of Corruption Act and take up investigation. The copy of the FIR may be sent to this Office for record.

Sd/- dtd. 20/3/81,

(H. R. Kasturi Rangan),

Dy. Commissioner of Investigation (G) &

Supdt. of Police, SVC. Bangalore.

To

Shri H. M. Mariswamy,

Asst. Commr. of Invn. (G) & DSP,

City Dn, SVC, Bangalore.

Received

H. M. Mariswamy,

A.C.O.I. (G) & DSP

20/3/81.

11. Challenging the initiation of this prosecution and the Court below taking cognisance of the offences, it is contended by the learned counsel for the petitioner that Inspector Basavaraj could not have prepared the final report (or the chargesheet) or filed it in the Court below and in the circumstances the Court had erred in taking cognizance of these offences on such a void report. It is further contended that the sanction accorded by the State under S. 6 of the Act to prosecute his client was also bad and the Court below had committed an error in taking cognizance of the offences on the basis of such a sanction by the State Government.

12. The questions that arise for consideration in this revision are :

(i) Was Inspector Basavaraj not competent to investigate into these offences or to prepare the final report or the charge-sheet and to file it in Court

(ii) Is the sanction accorded by the State Government under S. 6 of the Act bad in law

(iii) Has the Court below committed any error in taking cognizance of the offences in question as is being contended by the petitioner

13. The learned State Public Prosecutor supporting the order of the Court below overruling the objections raised by the accused, placed before me for my consideration, the relevant notification issue by the authority concerned declaring the State Vigilance Commission as a Police Station for purposes of the Code of Cr.P. and appointing several of these officials to the Commission on transfer.

14. The memo issued by Sri Kasturi Rangan Superintendent of Police of the Commission is extracted above. Sri Kasturi Rangan was then the Deputy Commissioner of Investigation (G) & Superintendent of Police, SVC, Bangalore; In the Notification of the State Government dt. 2-6-1981 issued in No. HD.254 PEG 81 under Clause (s) of S. 2 of the Code of Criminal Procedure 1973 (the Code), the Deputy Commissioner of Investigation (General) the Superintendent of Police was an Officer having jurisdiction as a police station over the entire Bangalore City Police Commissioner's area. His memo is directed to Sri Mariswamy, who was then the Assistant Commissioner of Investigation (General) and Deputy Superintendent of Police, State Vigilance Commission, Bangalore City Division and under the above notification his office is also treated as a police station having local jurisdiction over the Bangalore City Police Commissioner's area, Bangalore.

15. What is contended is that, the memo of the Superintendent of Police issued under the second proviso to sub-section (1) of S. 5A of Act, had empowered only Sri Mariswamy and, if at all, he alone could have investigated and filed the final report including therein the offence under Clause (e) of sub-section (1) of S. 5 of the Act, and that, in the circumstances, the investigation done by Sri Basavaraj and the final report filed by him was all void.

16. There is no merit in this submission.

17. In order to better appreciate the contention of the learned counsel for the petitioner, let me extract sub-section (1) of S. 5(a) of the Act.

'Notwithstanding anything contained in the Code of Criminal Procedure, 1898, no police officer below the rank, -

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

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

(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 S. 161, S. 165 or S. 165A of the Penal Code or under S. 5 of this Act without the order of a Presidency Magistrate or a Magistrate of the first class, as the case may be, or make any arrest therefore without a warrant :

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

The first proviso to sub-section (1) of S. 5A deals with the category of Officers in the hierarchy who may investigate into offences referred to in the main provision (sub-section (1); the second proviso makes an exception into the case of an offence, it being an offence under Clause (e) of sub-section (1) of S. 5 and treats that, as belonging to a special category and says that, unless the Police officer who wants to investigate into an offence falling under Clause (e) of sub-section (1) of S. 5 obtains an order from a superior officer not below the rank of a Superintendent of Police to so investigate he cannot investigate into such a case at all. That proviso means only that much and nothing more. In this view of the matter, the memo referred to above, issued by Sri Kasturi Rangan cannot, and should not, be construed as an order empowering Sri Mariswamy and Mariswamy only to investigate into these offences. Though the memo reads that he may register a case and proceed with the investigation, it should not be construed as is sought to be made out by the learned counsel for the petitioner. That is a memo issued by the authority concerned under an enabling provision (2nd proviso referred to above). We have to construe the memo as one issued under that proviso and in accordance with that proviso only. If certain words, in the memo also convey some different meaning, the said words may have to be simply treated as an unwarranted surplusage. The order cannot convey more power than what has flowed into it by the enabling law.

18. The Office of the Assistant Commissioner of Investigation (General) and Deputy Superintendent of Police, State Vigilance Commission, Bangalore City Division, as already stated, is treated as a police station having jurisdiction over the local area comprising the Bangalore City. Sri Mariswamy was the holder of that post at the relevant time. It means he was the head of that police station. A police station as is well known contains a hierarchy of Officials ranging from a constable at the bottom to the head of the Police station. The very fact that Sri Mariswamy, having registered a case, had entrusted the investigation to Sri Basavaraj, an Inspector of Police of the Vigilance Commission, does show that the investigation into these offences had been taken over by Sri Basavaraj, the Inspector who as already stated, was one of the officers empowered under the first proviso to sub-section (1) of S. 5A of the Act to investigate into all these offences. In the contention of the learned counsel for the petitioner that Sri Mariswamy could not have delegated the investigation to Sri Basavaraj etc., there is no merit. Both these officials were duly empowered to investigate into all these offences. They also had local jurisdiction in the matter in question. No question of delegation etc., arises at all in this case. The two decisions of the Supreme Court H. N. Rishbud v. State of Delhi : 1955CriLJ526 and State of Madhya Pradesh v. Mubarak Ali : 1959CriLJ920 have no application to the facts of this case. Both those cases deal with the obtaining of the prior permission of the Magistrate required under the main provision of sub-section (1) of S. 5A of the Act, but the first proviso to that sub-section is an exception to the sub-section and Basavaraj is one of those empowered under this proviso.

19. If Inspector Basavaraj of the Commission was empowered to investigate into all these offences and, as is clear, he was so empowered, his investigation into these offences and the filing of the final report by him into the Court cannot at all be found fault with.

20. There is no merit in the contention that Sri Basavaraj was not an Officer-in-charge of a Police Station and, therefore, could not have laid the final report into the Court. The term 'officer-in-charge of a police station' is defined under S. 2(o) of the Code :

'Officer-in-charge of a Police station' includes, when the officer-in-charge of the police station is absent from the station house or unable from illness or other cause to perform his duties, the police officer present at the station house who is next in rank to such officer and is above the rank of constable or, when the State Government so directs, any other police officer so present.'

21. As provided in S. 7A of the Act, the Code subject to certain modifications as provided in the Act, governs the proceedings of the Court of the Special Judge. The Court has taken cognizance of these offences exercising its powers under S. 190 sub-section (1) Clause (b) of the Code and on the report submitted by Sri Basavaraj, a police officer. The following observation of Division Bench of this Court in Writ Appeal Numbers 4560 of 1982 and connected cases C. M. Prasad v. State 8-7-1983 (Reported in (1984) 1 Kant LT 219) which is relevant in this connection may be noted.

'It will be seen that the nature of the investigative powers exercisable by the Police Officers of the Vigilance Commission are not in any way different from the powers of an Officer-in-charge of a Police Station under the Code. S. 2(s) defines 'Police Station' to mean 'any post or place declared generally or specially by the State Government, to be a Police Station, and includes any local area specified by the local Government in this behalf. In exercise of the powers conferred by S. 2(a) the Government issued a Notification Dt. June 2, 1981 declaring the places mentioned in Column (1) thereunder as 'Police Stations'. By reason of this notification the said Officers became the Officers-in-charge of the Police Stations. They could, therefore, exercise all the 'powers located under Chap. XII of the Code in relation to offences which they are empowered to investigate. Moreover they continue to be the members of the 'Police Force' as envisaged under S. 2(16) of the Karnataka Police Act, 1963. They, therefore, fall even within the narrow view supported by the decision of the Patna High Court in Radha Kishun Marwari's Case (1933-34-Cri LJ 1).'

22. Therefore, it cannot also be said that the Deputy Superintendent of Police Sri Mariswamy could alone have acted as an Officer-in-charge of this police station and none else. As observed above, 'Officer-in-charge of a police station' includes a Police Officer present at the station house who is next in rank to an officer-in-charge of the police station. The final report submitted by Sri Basavaraj cannot be dubbed as not a police report properly filed on the only ground that, he has filed it and not Sri. Mariswamy. He was in charge of the investigation, had investigated into the case was duly empowered to investigate into all these offences and besides, to investigate into one of these offences arising under Clause (e) of sub-section (1) of S. 5 of the Act there was prior sanction of the concerned Superintendent of Police and, added to this, prior to the laying of the final report, sanction had been obtained under S. 6 of the Act. Thus, the presentation of the final report by Sri Basavaraj cannot be challenged as bad.

23. There is also no merit in the submission made by the counsel for the petitioner that the facts placed do not at all disclose any offence under S. 161 I.P.C. r/w S. 5(2) of the Act.

24. Now, regarding the other contention of the learned counsel that the sanction accorded under S. 6 of the Act by the State Government was bad in law. It is contended that the Government have not applied their mind while according sanction. There is also no substance in this contention. The order according sanction to prosecute the petitioner is extracted by the Court below in the order impugned herein. I have perused it. It is not a one sentence order and a bare reading of the order shows that the authority concerned, had before it the materials placed and, applying its mind, has accorded sanction. As observed in the State of Rajasthan v. Tarachand Jain : 1973CriLJ1396 'these facts might appear on the face of the sanction or it might be proved by independent evidence that sanction was accorded for prosecution after those facts had been placed before the sanctioning authority. 'It cannot be said that, in this case, not applying its mind, the Government had accorded sanction.

25. According to me, there is no merit in any of the contentions raised by the learned counsel and, therefore, for the reasons stated above, the petition is dismissed.

26. Petition dismissed.


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