M B KHARADE Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Both these matters have been referred to a Division Bench by our brother Sarela J. on account of the questions of law raised. The order in Criminal Revision Application No. 95/69 which is challenged before us was passed by Mr. D. J. Dave as Special Judge Ahmedabad (Rural) at Narol on 17-12-1968 and the order in Criminal Revision Application No. 102/69 was passed by Mr. M. P. Thakkar Special Judge Ahmedabad City on 28-2-1969. These two orders were passed in Special Case No. 5/68 and Special Case No. 15/68 pending before the respective Special Judges.

(2.) In Criminal Revision Application No. 95/69 the facts are that the Government appointed Mr. D. Dave Assistant Judge and Additional Sessions Judge Ahmedabad (Rural) at Narol to be a Special Judge for the District of Ahmedabad (Rural) to try the offences specified in sec. 6 of the Criminal Law Amendment Act 1952 by notification dated June 20 1966 Then by notification dated May 13 1968 Mr. D. J. Dave was appointed by Government to officiate as Chief Magistrate for the city of Ahmedabad vice Mr. D. C. Mehta who proceeded on leave from 29th April 1968 to 7th June 1968 with permission to suffix 8th and 9th June 1968 which were holidays. Thereafter by notification dated May 29 1966 the High Court reposted Mr. D. C. Mehta as Chief City Magistrate for the city of Ahmedabad on his return from leave and reposted Mr. D. J. Dave as Assistant Judge Ahmedabad (Rural) at Narol on his relief by Mr. D. C. Mehta. The charge sheet against the petitioner in Criminal Revision Application No. 95/69 was submitted by the police on October 28 1968 Thereafter on November 22 1968 the Government issued another notification under sec. 6(1) of the Criminal Law Amendment Act 1952 in supersession of the previous notification dated June 20 1966 By this notification Mr. D. J. Dave Assistant Judge and Additional Sessions Judge Ahmedabad (Rural) at Narol was appointed to be the Special Judge for the Ahmedabad Revenue District excluding the city of Ahmedabad. By the same notification Mr. S. L. Talati Joint Judge and Additional Sessions Judge was appointed as Additional Special Judge for Sabarkantha Revenue District. It was after this notification that the petitioner submitted application dated November 30 1968 in Special Case No. 5/68 questioning the jurisdiction of Mr. D. J. Dave to commence the trial against him on the ground that on his appointment as Chief City Magistrate for the city of Ahmedabad he ceased to be the Assistant Judge and Additional Sessions Judge Ahmedabad (Rural) at Narol and therefore ceased to be the Special Judge for that area. As per the submission in this application the reposting of Mr. D. J. Dave as Assistant Judge Ahmedabad (Rural) at Narol did not automatically confer power on him as the Special Judge of that area in the absence of a fresh appointment in accordance with the provisions of sec. 6 of the Criminal Law Amendment Act 1952 Another contention was also taken in this application which raises a common question of law in both these revision applications before us. That contention was that the Anti-Corruption Branch of the State Government having been made independent from the local police force under the control of the Inspector General of Police its officers cannot be said to be the police officers because the Anti-Corruption Branch was made independent by the State Government without any authority of law and in contravention of the provisions of the Bombay Police Act 1951 (hereinafter referred to as the Act) under which there can be only one police force. It was further submitted that the police officer of Anti-Corruption Branch who had submitted police report or charge-sheet on October 28 1968 was thus not a police officer and the charge-sheet submitted by him could not be said to be a police report upon which the Special Judge could take cognizance of the offences disclosed in the police report. In view of these two contentions it was prayed that appropriate orders may be passed on the ground that the Special Judge has no jurisdiction to commence the trial.

(3.) In Criminal Revision Application 102/69 the charge-sheet was submitted by Mr. Solanki P.S.I. Anti-Corruption Bureau before the Special Judge for the city of Ahmedabad. In that case being Special Case No. 15/68 the petitioner accused gave application to the Special Judge objecting to the investigation by Mr. Solanki on the ground that Mr. Solanki was not a police officer because of creation of Anti-Corruption Bureau as an independent force in contravention of the provisions of law. This ground is similar to the second ground which was urged before Mr. Dave at Narol. A further ground was also taken before the Special Judge at Ahmedabad as regards the legality of investigation and it was that it was the duty of the learned Magistrate who granted permission to investigate the offence to Mr. Solanki to get himself satisfied not merely about the absence of superior officers in the Anti-Corruption Branch but also the non-availability of other officers of the general police force in the city of Ahmedabad. In the course of argument on this application before the Special Judge of Ahmedabad it was urged that the learned Magistrate acted mechanically in granting permission to P.S.I. Solanki because he did not satisfy himself about the non-availability of other police officers of the general police force who were entitled under the law to investigate this offence. Another contention was also taken up and it was this. According to Mr. Solanki the date of giving bribe was fixed between the bribe giver and bribe taker as June 29 1968 whereas the superior police officers no doubt were out of station on June 28 1968 but there was nothing to show that they were to continue to remain out of station on June 29 1968 It was urged that the learned Magistrate failed to realise that the material date with reference to which the date of availability of the superior police officers had to be judged was June 29 1968 It was urged that in over looking this aspect the learned Magistrate failed to apply his mind in granting permission.