M B THARADA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) This is a criminal revision application filed against the judgment and order passed by the Special Judge Ahmedabad (Rural) at Narol Shri D. J. Dave rejecting an application of the applicant requesting the Court to order re-investigation in the criminal case against him on the ground that the investigation carried out by the police officers was contrary to the provisions of sec. 5A of the Prevention of Corruption Act 1947 (hereinafter referred to as the Act).

(2.) The short fact leading to this prosecution are that the applicant in the month of July 1963 was working as a Police officers (Constable at the Police Station Dehgam. The offence punishable under secs. 419 and 420 of the Indian Penal Code were alleged to have been committed by one person. That offence was registered at the Police Station Dehgam as criminal register No. 98 of 1963. The present applicant was investigating the said offence. One Karsandas Jividas the resident of village Motipura was suspected to have committed this offence. Karsandas is brother-in-law of Kalidas Khodidas Patel. The present applicant in his capacity as a public servant was alleged to have made a demand of illegal gratification of an amount of Rs. 300.00 from Kalidas Khodidas Patel as a motive or a reward for forbearing to do an official act i.e. for not pressing the case or showing favour in the case which he was investigating against Karsandas. Some amount was alleged to have been already paid to the applicant by Kalidas Khodidas Patel towards the said demand of the illegal gratification. On July 21 1963 Kalidas Khodidas Patel approached Police Sub-Inspector Erulkar. Anti-Corruption Branch had informed him that the applicant demanded illegal gratification and the last installment of the illegal gratification was to be paid to him on that day. Police Sub-Inspector Erulkar recorded his complaint. Thereafter Police Sub-Inspector Erulkar submitted an application to the Judicial Magistrate First Class Ahmedabad (Rural) at Narol for permission to investigate into the offence. The learned Judicial Magistrate First Class granted the permission under sec. 5A of the Act. Police Sub-Inspector Erulkar thereafter lodged a trap and carried out further investigation into the case. On the completion of the investigation he obtained sanction to prosecute the applicant and filed a charge sheet in the Court of the Special Judge Ahmedabad (Rural) at Narol. The case was numbered as Special Case No. 2 of 1964. In that case the applicant gave an application stating that the prosecution against him for offences under sec. 161 of the Indian Penal Code and sec. 5 of the Prevention of Corruption Act was barred by limitation in view of the provisions of sec. 161 of the Bombay Police Act 1951 The learned Special Judge accepted the contention and passed an order discharging the applicant. The State of Gujarat preferred Criminal Revision Application No. 449 of 1965 in this Court against the said order. The said application came for hearing before my brother Sheth J. on August 10 1967 who took the view that the proceedings were not barred by limitation and remanded the case for trial before the Special Judge. In the said case the applicant again filed another application contending that a proper sanction to prosecute was not obtained and the Court of the Special Judge had no Jurisdiction to take cognizance of the case in view of the provisions of sec. 6 of the Act. The learned Special Judge rejected the said application. The applicant being aggrieved by the said judgment filed Criminal Revision Application No. 405 of 1967 in this Court. The said Criminal Revision Application was heard by Shelat J. who held that the sanction to prosecute was not legal and therefore passed an order dropping the prosecution. Thereafter Police Sub-Inspector Zala Anti Corruption Branch took charge of the investigation of the case against the accused. Police Sub-Inspector Zala went through the record of investigation carried out by Mr. Erulkar obtained the permission to prosecute the accused from Inspector General of Police and ultimately filed a charge sheet in the Court of the Special Judge Ahmedabad (Rural) at Narol. This case was numbered as Special Case No. 3 of 1968. In this case the applicant filed an application contending that the investigation carried out by Police Sub-Inspector Erulkar and Police Sub-Inspector Zala was in contravention of the provisions of sec. 5A of the Act and therefore illegal and requesting the Court to order re-investigation into the case. The application was rejected by the learned Special Judge holding that the permis sion granted by the Judicial Magistrate First Class to Police Sub-Inspector Erulkar to investigate in the case was valid one and that the investigation carried on by Mr. Zala was only formal and there was no contravention of the provisions of sec. 5A of the Act. It is against this judgment and order that the applicant has filed this Criminal Revision Application No. 270 of 1968 in this Court. The revision application came up for hearing before Thakor J. who referred the matter to Division Bench and it has now reached hearing before us.

(3.) Mr. Shethna appearing for the applicant contended that the investigation carried out by Police Sub-Inspector Erulkar and Police Sub Inspector Zala was not in accordance with the provisions of sec. 5A of the Act and therefore a fresh investigation of the case should have been ordered by the trial Court before the commencement of the trial. The argument advanced is thus two fold. The investigation carried out by Police Sub-Inspector Erulkar was illegal submitted Mr. Shethna because no valid sanction to investigate as required under sec. 5A of the Act was obtained by the officer. The argument was that the provisions of sec. 5A of the Act are mandatory and the Magistrate before he granted the permission to investigate as required by the provisions of the section had to apply his mind and satisfy himself that there was a prima facie case against the accused in other words (1) the case against the accused was not vexatious or frivolous and (2) that there were circumstances which satisfied him that this was a case wherein he should have given permission to Police Sub-Inspector Erulkar to carry out the investigation in the case. Sec. 5A of the Act so far is relevant to our case provides that notwithstanding anything contained in the (Code of Criminal Procedure no police officer below the rank of Deputy Superintendent of Police shall investigate any offence punishable under sec. 161 sec. 166 or sec. 165A of the Indian Penal Code or sec. 5 of the Act without the order of the Magistrate of the First Class. In the present case the investigation was to be carried out by Police Sub-Inspector Erulkar and therefore he had made an application to the learned Judicial Magistrate First Class (Rural) to obtain permission to investigate as required by law. It was contended by Mr. Shethna that the learned Magistrate passed an order granting permission under sec. 5A of the Act and this order ex-facie did not mention any reason why the learned Magistrate granted the permission to Police Sub-Inspector Erulkar to investigate the offence. The order prima facie indicated that the learned Magistrate had not applied his mind while granting the permission to investigate and therefore the investigation carried out by Police Sub-Inspector Erulkar was in contravention of the provisions of sec. 5A of the Act. In support of this argument the learned advocate relied on the two decisions of the Supreme Court. The decisions relied upon are R. N. Rishbud and another v. State of Delhi A.I.R. 1955 5.C. 196 and State of Madhya Pradesh v. Mubarak Ali A.I.R. 1959 S. C. 707. Mr. Shethna also relied on two decisions of this Court and they are Naginlal Nandlal v. State of Gujarat II G.L.R. 664 and the decision in Criminal Appeal No. 200 of 1961 delivered by J. M. Shelat (as he then was) and Bakshi JJ. on January 30 1962 The argument of Mr. Shethna so far as the investigation carried out by Mr. Zala was that he had not obtained any permission as required under sec. 5A of the Act. Mr. Zala had carried out the investigation viz. formation of opinion that the accused had committed the offences on the basis of the materials collected by Police Sub-Inspector Erulkar of filing a charge sheet in the Court against the accused and arresting the accused during the course of the investigation. Thus the investigation carried out by Mr. Zala was in contravention of the provisions of sec. 5A of the Act.