A R ANTULAY Vs. RAMDAS SRINIWAS NAYAK

JUDGEMENT

(1.) This appeal by special leave is directed against the decision of a Division Bench of Bombay High Court in Criminal Revision Application No. 510 of 1982, which was preferred by the appellant against the rejection of his application by the learned special Judge as per his order dated Oct. 20, 1982.

(2.) The various stages through which Special Case No. 24 of 1982 progressed up to and inclusive of Oct. 18, 1982 have been set out in our judgment rendered today in cognate Criminal Appeal No. 356 of 1983 and they need not be recapitulated here. After the learned special Judge Shri P. S. Bhutta took cognizance of the offences upon a complaint of Ramdas Sriniwas Nayak, the first respondent (Original complainant), the case was adjourned to Oct. 18, 1982 for recording the evidence of the complainant. On that day, learned counsel appearing for the appellant in the trial Court moved an application questioning the jurisdiction of the Court on two specific counts; (i) that the Court of special Judge set up, under Section 6 of the Criminal Law Amendment Act, 1952 ('1952 Act' for short) cannot take cognizance of any of the offences enumerated in S. 6 (1) (a) and (b) upon a private complaint of facts constituting the offence and (ii) that where there are more special Judges than one for any area, in the absence of a specification by the State Government in this behalf, specifying the local area over which each special Judge would have jurisdiction, the special Judge (Mr. Bhutta) had no jurisdiction to take cognizance of the offences and try the case. The learned special Judge rejected both the contentions, The appellant filed Criminal Revision Application No. 510 of 1982 in the Bombay High Court On a reference made by the learned single Judge, this revision application was heard by a Division Bench of the High Court, The learned Judges by two separate but concurring judgments held that special Judge is competent and is entitled to take cognizance of offences got out in Section 6 (1) (a) and (b) upon a private complaint of facts constituting the offence and consequently rejected the first, contention. In reaching this conclusion the learned Judges held that a prior investigation under Section 5-A of the Prevention of Corruption Act, 1947 ('1947 Act' for short) by a police officer of the designated rank is not a condition precedent to the special Judge taking cognizance of the offences under Section 8 (1) of 1952 Act. The learned Judges also held that by the time the matter was heard by them, the Government of Maharashtra had issued a notification dated Jan. 15, 1983. under sub-sec. (2) of Section 7 of 1952 Act specifying Shri R. B. Sule, special Judge for Greater Bombay for trying Special Case No. 24 of 1992. After taking note of this notification and the statement of Shri P. R. Vakil, learned counsel for the respondent, the second contention of the learned counsel for the appellant was also rejected. The learned Judges accordingly rejected the revision petition. Hence this appeal by special leave.

(3.) On behalf of the appellant, the pivotal point canvassed was that a private complaint cannot be entertained by the special Judge in respect of all or any of the offences enumerated in Section 6 (1) (a) and (b) of the 1952 Act. In support of this submission, it was very vehemently urged that the provision contained in Section 5-A of the 1952 Act has been repeatedly held to be mandatory in character and if its non-compliance is brought to the notice of the superior Court at a stage anterior to the conclusion of the trial, the proceeding would be vitiated. It was urged that Section 5-A incorporates a safeguard against frivolous, speculative and tendentious prosecutions and therefore it must not only held to be mandatory but it must be so interpreted as to make an investigation under Section 5-A a condition precedent to the taking of the cognizance of an offence or offences committed by a public servant by the special Judge. A number of subsidiary points were submitted in support of this principal contention which need not be enumerated but would be dealt with in the course of the judgment.