STATE OF MADHYA PRADESH Vs. MUBARAK ALI

JUDGEMENT

(1.) This is an appeal by special leave against the judgment of the High Court of Madhya Pradesh at Jabalpur directing the Special Judge, Indore, to order the Deputy Superintendent of Police to carry on the investigation afresh. The facts are simple.

(2.) One Shri Mohinder Nath Bhalla was the manager of Daisy Sewing Machine Co. Ltd., Bhopal. On January 11, 1955, between 12 and 1 p.m., he contacted the Sub-Inspector of Police, Special Police Establishment, Gwalior, and gave him the following information:The Company had opened their stall in the Gwalior Mela and he (Shri Bhalla) had to book empty wooden cases of machine and machine parts from Golakmandir railway station, which was near the Gwalior Mela, to New Delhi. When he went to the station to enquire for booking the said cases; the Station Master demanded annas ten for each case as illegal gratification, but he did not agree to it. Subsequently, the Assistant Station Master agreed to accept annas eight for each case and asked him to bring the wooden cases between 2 and 4 p.m. on the same day i.e., January 11, 1955. On this allegation he requested the police to take action "to stop the said sort of corruption". The police officer went along with the informant to his stall at Gwalior Mela and saw the twenty wooden cases-twelve big and eight small-ready for booking. The said Shri Bhalla gave the police officer a typed complaint signed by him and duly attested by two witnesses. With the assistance of the police officer, a trap was laid. The numbers of the rupee notes intended to be given as bribe to the Assistant Station Master were entered in a memorandum which was attested by witnesses. The said rupee notes were given to Shri Bhalla in the presence of the witnesses. Shri Bhalla was instructed to pay the amount to the Assistant Station Master when demanded by him in such a manner that the witnesses could over-hear the conversation and also see the Assistant Station Master taking the bribe. He was also told that on his giving a signal, the police would come on the scene. The plan was carried out in detail as agreed. The Assistant Station Master, after some bargaining, took the bribe, and after the act of bribery was completed, Shri Bhalla gave the prearranged signal. The Sub-Inspector then went to the Station Office and disclosed his identity to the Assistant Station Master in the presence of witnesses and asked him to produce the money taken by him as bribe. The Assistant Station Master, when questioned by the Sub-Inspector, gave him his name and also produced the notes which he had kept in his pocket. The police officer took those notes and counted them. The numbers on those notes tallied with those noted in the memorandum. He then searched the person of the Assistant Station Master and secured the articles found on him. He also searched the person of Shri Bhalla and took from his shirt two currency notes, which he did not give to the Assistant Station Master, as the bargain was struck at a smaller amount and secured the same. The numbers of those notes also tallied with the corresponding numbers noted in the memorandum. Thereafter, a memorandum of the articles recovered was prepared in the presence of the witnesses and was duly attested by them. The forwarding note, together with the record copy of the R/R prepared in respect of the booking of the twenty wooden cases to New Delhi, was taken possession of and another memorandum was prepared in regard to them. An inventory of the twenty wooden cases lying on the platform near the weighing machine at booked by the Assistant Station Master was also prepared and the same was attested by the witnesses. The Sub-Inspector, having regard to the aforesaid facts, came to the conclusion that the facts disclosed offences punishable under Ss. 120-B and 161 of the Indian Penal Code and S. 5(2) of the Prevention of Corruption Act, 1947, (2 of 1947), had been committed by the Assistant Station Master, Shri Mubarak Ali, and the poinstman, Shri Mool Chand, of Golakamandir railway station. On the same day he sent a report of the aforesaid facts to the Special Police Establishment Office, Madhya Bharat. The office registered it on January 14, 1955, in its register. Seven days thereafter, on January 21, 1955, the Sub-Inspector filed an application before the Additional District Magistrate (Judicial), Gwalior, asking for permission to investigate the offence under the aforesaid sections. The record does not disclose what further steps were taken by the Sub-Inspector after he obtained the said permission from the Additional District Magistrate. On October 1, 1955, a charge sheet was filed before the Special Judge Anti-Corruption, Indore. It appears from the record that soon after the case was taken up for trial, the respondent filed objections questioning, inter alia, the validity of the order of the Additional District Magistrate giving permission to the Sub-Inspector to make the investigation. But the scope of the objections is not clear as they have nor been placed before us. It appears that the Special Judge intended to take evidence on the question of delegation of power of investigation, but the prosecution applied for adjournment on the ground that an appeal had been filed in the High Court against a similar order directing the prosecution to give evidence on the said question and the same was pending there. The learned Special Judge, though inclined not to give the adjournment made an order giving an adjournment of three weeks on December 3, 1955, on the ground that "the Special Police Establishment Office might not have any grievance on that account". We do not know what transpired between December 3, 1955, and the date of disposal of the objections by the Special Judge i.e. August 21, 1957. On August 21, 1957, the learned Special Judge made an order discharging Shri Mool Chand, the pointsman, and charging Shri Mubarak Ali, the Assistant Station Master, under S. 161 of the Indian Penal Code. By the said order, the learned Judge, presumably an officer different from the one who gave the adjournment in 1955, disallowed the objection of the accused on the ground that on the date when the Magistrate gave the sanction, there were many papers in connection with a case against the accused, on observing which the Magistrate could have satisfied himself whether there was a prima facie case or not against the accused and that there was no reason to believe that at the time of giving the sanction, the Magistrate did not peruse the papers. The accused preferred a Revision against the said order to the High Court of Madhya Pradesh. The High Court came to the conclusion that the Sub-Inspector applied for permission ten days after investigation had started and that the Magistrate did not satisfy himself that there were good and sufficient reasons for authorising the officer of a lower rank to conduct the investigation but had given the permission as a mere matter of routine. In the result, the High Court set aside the order of the Special Judge with a direction that "in order to rectify the defects and cure the illegality" he should order the Deputy Superintendent of Police to carry on the investigation himself while the case remains pending on his file". The State preferred the present appeal against the said order of the High Court.

(3.) Learned Counsel, appearing for the State, raised before us two points:(i) the High Court was not justified in holding that the Magistrate gave the permission as a mere matter of routine without satisfying himself as to the advisability of giving such permission; (ii) the High Court was wrong in holding that the investigation started ten days prior to the obtaining of permission of the Magistrate by the Sub-Inspector.